R v McDowell

[2019] NSWDC 441

District Court

New South Wales

Medium Neutral Citation:	R v McDowell [2019] NSWDC 441
Hearing dates:	25 October 2019
Date of orders:	25 October 2019
Decision date:	25 October 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentenced CRO for 12 months.
Catchwords:	CRIME. SENTENCE. Entering a building with intent to commit an indictable offence – Crimes Act 1900 section 114(1)(d) – Form 1 matter: intimidation – At the time of the offences offender 26 years old and suffering Major Depression with Anxiety – Enters through roof of a residential apartment seeking to reconcile himself with former girlfriend – Culpability of offender attenuated by psychiatric illness – Offender makes full recovery and prospect of reoffending negligible – Complainant wanted charges withdrawn – Police alleged more serious offences but they were withdrawn – Excellent subjective circumstances – Conditional Release Order for 12 months.
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Crown – Regina   Offender – Samuel Andrew McDowell
Representation:	Crown – Staples   Offender - Gallaher
File Number(s):	2017/00293315
Publication restriction:	Nil.

Sentence

1. HIS HONOUR: Samuel Andrew McDowell stands for sentence as a consequence of pleading guilty to a charge that on 27 September 2017 at Manly in this State he entered a building at 184 Pittwater Road with intent to commit the indictable offence of intimidation in that building. That is an offence contrary to s 114(1)(d) of the Crimes Act 1900 and carries a maximum penalty of seven years imprisonment. There is no standard non parole period. Mr McDowell also asks me take into account on a Form 1 an offence of intimidation which occurred at the same place and on the same occasion. That was count 2 in an indictment that was presented on 20 September 2019 but the offender was not required to plead to that count when Judge Syme noted that it was to be placed on a Form 1.

2. At the time of this offence the offender was 26 years old. The offender had been in a relationship with Ms Maria Viloria. At the time of the offence Ms Viloria was 32 years old and lived in a two bedroom apartment at 184 Pittwater Road, Manly. The offender and Ms Viloria were in an intimate relationship until May 2017. Between May 2017 and September 2017 the parties have agreed that the offender and Ms Viloria were in “an on-off intimate relationship”. However, the intimate relationship had stopped prior to the events now in question, the events of 27 September 2017. The relevant events occurred because of an attempt made by the offender to reconcile with Ms Viloria.

3. In order to do that, he had provided to Ms Viloria access to his telephone and bank records, his Facebook account and other social media platforms which he used. He provided his logins. Ms Viloria understood, as I understand, that that was a gesture made by the offender to prove to his former girlfriend that he was loyal and true. However, on 27 September 2017 Ms Viloria discovered something on the offender’s phone bill of which she did not approve. She asked the offender about that and thought that he was lying to her. She blocked his access to her telephone and to her social media. She arrived home that evening at 8pm and, fearful that the offender might come to her unit, she turned off the lights in her unit to indicate that she was not at home.

4. The offender did turn up at her home at 10.30 and tapped on a window in order to gain her attention. However, the victim remained quiet in a darkened room, in fact, hiding in her flatmate’s bedroom. The offender then entered the victim’s unit by removing a tile from the roof and entering the cavity between the roof and the ceiling and then entering the victim’s unit by dropping through an open manhole. This sounds awfully criminal but the same manoeuvre had occurred on two earlier occasions, the first occasion being when Ms Viloria managed to lock herself out of her own unit when she asked the offender to gain access to the unit and open the door. The second time the offender did that that manoeuvre was without the victim’s consent but the victim was not angered by that untoward entry into her flat.

5. Having entered her flat the offender turned on a light. The two eventually went to the victim’s bedroom. Once inside the bedroom the offender straddled the victim as she was laying on her bed. He sat on top of her effectively pinning her down. He asked Ms Viloria to listen to what he had to say. There was then talk for about 40 minutes, the offender pleading with the victim, no doubt seeking to reconcile with her. The offender did not straddle the victim for the whole of that period of time. Repeatedly, the victim was asking the offender to leave and she made those requests in fairly blunt terms: “Piss off”, “Go away”, “Leave me alone”, “Stop”. Eventually the offender agreed to leave and did so.

6. At about midnight Ms Viloria attended Manly Police Station and reported what had happened to the police. At about 5am on the following morning the offender was arrested at his home and taken to Manly Police Station where he was introduced to the custody manager and read his rights under LEPRA. The offender accepted the opportunity offered to him by the police to participate in an electronically recorded interview. In that interview the offender admitted entering the victim’s unit by removing a roof tile and entering through the roof into the cavity between the roof and the ceiling and from that cavity into the victim’s unit via an open manhole. He also admitted that he knocked on the window of the victim’s apartment before he entered through the roof. He admitted that he knew the victim was at home because she had told him that she would be and he knew that she was in fact present because he saw a glow from a laptop through the window on which he tapped. The offender also admitted that he was on top of the victim for some of the time that he was with her. He agreed that he was asking the victim to listen to him when she was asking him to leave.

7. The offender appears to have been granted bail either by the police on 28 July or perhaps by the Local Court at Manly later that day. In the Local Court the offender was charged with an offence contrary to s 113(2) of the Crimes Act 1900, breaking and entering with intent to commit the indictable offence of intimidation. He was also charged under s 86(1)(b), the offence commonly described as kidnapping. Each of those offences carries a maximum penalty of 14 years imprisonment. At some time in the Local Court the allegation of a breach of s 113(2) was withdrawn and the offender was charged with an even more serious offence, one contrary to s 112(2) of the Crimes Act 1900, breaking and entering and committing a serious indictable offence of intimidation in circumstances of aggravation. That carries a maximum penalty of 20 years imprisonment and carries a standard non-parole period of five years.

8. The offender was committed for trial by the Local Court at Manly on 22 March 2018 on the charges under s 112(2) and under s 86(1). An indictment was presented on 5 April 2018 on which the offender was arraigned. On 6 April 2018 the matter was set down for hearing on 14 January 2019. On 14 January 2019 the matter was listed for hearing before Payne DCJ. On 16 January 2019 her Honour held a voir dire. A jury was empanelled at 11.03am. Her Honour then made her opening remarks to the jury and they were followed by addresses by the Crown and by the defence. The evidence of Ms Viloria then commenced but her cross examination was interrupted when the barrister and solicitor then retained for the offender sought to withdraw from the matter. Her Honour discharged the jury and granted the leave which that barrister and solicitor sought. On 1 February 2019 the matter was fixed for hearing again on 19 August 2019.

9. On that day a fresh indictment was presented with charges under s 114(1)(d) and under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. As I have already indicated, the offender pleaded guilty to the first count in that indictment and asked the Court to take into account the second offence when the offender stands for sentence.

10. I have recorded that history to show that the offender was charged with very serious offences which must have been a very disturbing, indeed frightening, state of affairs for this offender to find himself in. He was possibly facing a lengthy custodial sentence. An offence under s 114(1) merely requires the entering or remaining upon any part of a building or any land occupied or used in connection with such a building with intent to commit an indictable offence in or upon the building. A home unit is clearly a building. It is in fact a dwelling house. A indictable offence can be anything from murder to common assault. The range of matters that fall within s 114(1) is legion. In my view, the offence which this young man committed is at the bottom of the range of offences that could be charged under s 114(1)(d) of the Crimes Act 1900.

11. There are two salient documents for me to consider. The first is a report by a psychiatrist, Dr R W Lyndon, which bears date 9 June 2017. That report was written three months before the event currently in consideration. The offender was referred to Dr Lyndon by a general practitioner at Brookvale. The relevant part of the report commences thus:

“Sam is presenting with a classic melancholic depression with agitation. His symptoms began probably between six and 12 months ago and started rather suddenly. His symptoms include depressed mood, loss of confidence, loss of interest and energy, pervasive anhedonia, feelings of worthlessness and hopelessness, feelings of being a failure, social avoidance and poor concentration and memory. Although Sam can feel quite hopeless he denies any suicidal thoughts, except for one brief episode. He has never had any suicidal intent. Sam feels empty, there is a lack of emotional feeling and his libido is severely impaired. His sleep is disturbed with initial and middle insomnia and occasionally terminal insomnia and there is diurnal mood variation with mornings being worse.

Sam also describes periods of agitation, with irritability and racing thoughts. These will occur during night and usually following some argument with his girlfriend [the victim]. At these times he feels restless, has to move and will often go for a run or do some boxing training.

On close questioning, I could not detect any signs of bipolarity. Sam can be moody but he does not give any history consistent with hypomania.

Sam’s alcohol intake is usually quite low, because he does not like alcohol and does not like the effect. However, in recent months he has been using alcohol more frequently than he normally would. He does not use recreational drugs.

Sam lost his maternal grandfather last month. He was very close to his grandfather and although he dealt with his loss, he is surprised at the lack of real emotional impact that his grandfather’s death has had on him. This is entirely consistent with anhedonia seen in depression.

The family history is a little unclear. Sam’s father suffered from alcohol abuse and possibly depression and died in a car accident when Sam was only three years old….His main supports are his mother, Susan who is a psychiatric nurse and his maternal grandmother.

Medically I understand Sam has been well. There do not appear to have been any significant life events that might have precipitated this episode of depression. He is in a relationship with a young woman [the victim] and it sounds like the relationship has always been a bit stormy. At the moment Sam has not been able to work because of his symptoms. He is very self-conscious, his self-esteem is very low and he is avoiding as much as possible contact with friends and workmates. He has not been able to work for the last two weeks but fortunately he has been able to confide in his boss, who understands that he is struggling with depression.”

12. The formal diagnosis is one of Major Depression with Anxiety. I take that formal diagnosis from the reference provided to me by the offender’s mother who is a psychiatric nurse as Dr Lyndon pointed out and who has a senior position in the health administration of this State. Major depression is a biochemical abnormality. It is organically induced by chemistry in the brain. Clearly this was an episode of major depression which greatly destabilised the offender, led probably to the breaking down of the relationship that he had with the victim and led also most probably to the criminal conduct for which he currently stands for sentence. Insofar as the offender’s conduct was driven to some extent by his psychiatric illness the offender’s culpability for his crime is greatly reduced.

13. The offender has recovered from that episode of major depression and, as far as I am aware, has not had any further episode of major depression. He had six treatments from the psychiatrist and also took psychotropic medication. He fully recovered and has returned to full-time work as an electrician and his other usual activities.

14. The other document which needs to be carefully considered is the victim impact statement by Ms Viloria. She was going to read it from the witness box but I pointed out to her and the solicitor appearing for the Crown that that was not necessary because I would give it the weight which it deserves which, in my view, is significant weight. The victim impact statement is this:

“It’s been almost two years now since the incident of Sam breaking into my place one evening in September, which now to me, feels like such a long time ago and if it had happened and I never reported the incident to the police, it probably would not have crossed my mind. We had many crazy arguments like that so is just another argument to me. The relationship itself was unhealthy which is why I wanted to end it. Which is why I intended to report the incident to have an AVO in place so the both of us could move on with our lives. That being said, I never felt in fear or in danger with Sam. I just wanted to be left alone and wanted the contact to end. Most of the time, Sam was just trying to reconcile our relationship or to justify why we should be together but unfortunately, I didn’t feel the same way. I very much cared and loved Sam at the time but I did not want a relationship with him anymore.

The week after the incident I looked into having the charges removed. I went into the police station on numerous occasions to speak with Detective Ayling directly and when I finally got in touch, he advised that it was not an option to amend my statement or remove the charges that were pressed against Sam.

I am not disregarding that Sam’s actions were not morally right and to most people, what he did that night, very much sounded insane and questionable but I think we have all had moments in our lives when we do stupid things because we’re not thinking clearly and have reacted in not the most reasonable way. I strongly feel that the charges placed against him were/are unfair and an overreaction on behalf of the police and I have stated this many times.

Although I am the victim and I made the report, I feel that this has more impacted Sam’s life than it has impacted mine. These charges will stop him from travelling to certain countries, possibly stop him from applying for certain jobs due to a criminal record and I am sure the financial and mental stress of the legal support he has had to put towards a mistake he made two years ago has definitely affected him. I am sure Sam has very much learnt his lesson.

I do not wish for Sam to have to face possible imprisonment on a mistake he made during the midst of his depression. All I wish is for this Court case to be finalised so that we can both move on with our lives and put this to bed. I have moved on from this incident accepted the lengthy processes involved. I have certainty that if I were to cross paths with Sam with my new partner or my seven year old son, Justice, who only has fond memories of Sam, I will not feel threatened or unsafe.

I know this statement should have been written earlier, but it was only last week I was given the opportunity to write this from the DPP, so I plead for this to be taken into consideration and hope for a lesser punishment/outcome for Sam.”

15. Ms Viloria makes the valid point that most of us, being fallible human beings, do the wrong thing at times and can do stupid things especially when depressed and especially when a matter of passion is concerned. The law is here to punish crime, not to punish stupidity. The golden rule of sentencing is that there is no golden rule. For example, the Crimes (Sentencing Procedure) Act 1999 contains inconsistent guideposts. Section 4A is in these terms:

“(1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either:

(a) a sentence of full-time detention, or

(b) a supervised order.

(2) However, the Court is not required to impose either of those sentencing options if the Court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.

(3) For the purpose of this section, a supervised order is in order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.”

Section 4B the same Act refers to the provision of adequate protection and safety of victims of domestic violence. The Court is to make such order as will adequately protect any victim or any potential victim of further domestic violence. On the other hand, s 5 commences thus:

“(1) A court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”

16. There is no longer any need for the victim, Ms Viloria, to be protected from the offender. Her victim impact statement makes that point succinctly. There is not a scintilla of evidence that anybody else needs to be protected from the offender. This is an offence which was “one off”, completely out of character, and driven by the offender’s temporary mental illness at the time, a mental illness so severe that the offender could not do any work. There has been no relapse or no further occurrence of major depression and therefore it is highly unlikely that there is any need for the community to be protected from the offender’s conduct.

17. One purpose of a sentencing assessment report is to consider the future. According to the sentencing assessment report the offender has been assessed as at a low risk of reoffending. The offender has returned to full-time work as an electrician and spends most of his free time involved in his sport. That sport is Thai kick boxing. There is a reference before me from his coach, Mr Nick Stone. He has been teaching Thai kick boxing for over 20 years and has been acquainted with the offender for five years. He has been training him on a full-time basis since 2016. His reference continues thus:

“During the time I have known Sam he has always shown himself to be very hard working and respectful. He is very dedicated to his training and during our time together has won New South Wales, Australian and South Pacific titles, both as an amateur and a professional. Earlier this year Sam and I travelled to Queensland where he fought for a world title. With continued hard training and dedication I can see Sam having a successful career both nationally and internationally. He rarely drinks alcohol and doesn’t use any drugs and gives up his Saturdays teaching the kids’ class at the gym.”

18. Mr Stone is aware of the offences with which the offender was charged and to which he has pleaded guilty and points out that he is extremely remorseful and embarrassed about the event which brings him before this Court. Mr Stone acknowledges that the event occurred at a low point of time in the offender’s life. There are other references before me which clearly indicate this offender is not a man prone to violence or the like. The likelihood of the offender again committing what could be described as an act of domestic violence is extremely remote. The offender having regained his mental health and continuing his work and sport has clearly rehabilitated himself and the prospects for the future are excellent.

18. There is no need in this case to consider community protection further. The only real consideration is to general deterrence. I am satisfied that the offender will not reoffend therefore specific deterrence does not arise and when thinking of general deterrence a person suffering a transient mental illness is hardly an appropriate person to hold up to the community as what does happen to an offender against this particular provision of the law and what the likely outcome of such offending in the future might be.

19. I have come to the view that the appropriate penalty to impose is a conditional release order. Despite the provisions of s 4A of the Crimes (Sentencing Procedure) Act 1999 I do not believe that the offender ought be placed on supervision. Indeed the sentencing assessment report says that if a supervision condition is imposed it will be suspended. Supervision is hardly necessary because, as Community Corrections make clear, there is little risk of reoffending and there is no potential victim in sight. The term of the conditional release order will be for 12 months. I do not intend to impose any condition other than the standard conditions bearing in mind this. The offender works five days per week full-time, spends his Saturdays teaching Thai kick boxing to children and has to have at least one day a week to himself for recreation and rest. To impose a condition such as community service would be inappropriate because the offender be left with no time for recreation and rest and indeed when that subject was raised the Crown disavowed the need for the offender to perform community service.

20. Samuel Andrew McDowell, on the charge that on 27 September 2017 at Manly in this State you entered a building at 184 Pittwater Road, Manly with intent to commit an indictable offence of intimidation in that building, you are convicted. Under s 9 of the Crimes (Sentencing and Procedure) Act 1999 having regard to your good character and mental health at the time of the offence and the extenuating circumstances arising from your mental health I am satisfied that it is expedient release to you on a conditional release order. I order that you be released on a conditional release order for a period of 12 months from today. Conditions of the order are as follows:

1. you are not to commit any offence;

2. you are to appear before the Court if called upon to do so at any time during the term of the conditional release order.

In passing this sentence I take into account the matter on the Form 1.

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Decision last updated: 15 April 2020