R v Meaker

[2017] NSWDC 459

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Meaker [2017] NSWDC 459
Hearing dates:	15 September 2017
Decision date:	01 December 2017
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – need for extended parole period to receive assistance in relation to drug problems and anger management Indicative sentences: 001: Imprisonment for 6 months 008: Imprisonment for 2 years and 9 months Aggregate sentence: Sentenced to a term of imprisonment for 3 years comprising of a NPP of 1 year and 8 months to commence on 11/4/16 and to expire on 10/12/17 and a balance of term of 1 year and 4 months to commence on 11/12/17 and to expire on 10/4/19. To be released to parole on 10/12/17. 004 & 005: The backup charges are withdrawn and dismissed.
Catchwords:	CRIMINAL – sentence - aggravated detain for advantage – s166 matter - contravene a prohibition or restriction in an AVO – found not guilty at trial on 3 charges of aggravated sexual assault, inflict ABH on victim & 2 charges of sexual intercourse without consent (DV) - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina Dale Neil Wayne Meaker
Representation:	Counsel: Defence: Mr M King   Solicitors: Crown: Ms V Morgan
File Number(s):	2016/00079309
Publication restriction:	NPO in respect of the name of the complainant or anything that might tend to identify her.

Judgment

1. HIS HONOUR:  Dale Meaker appears for sentence in respect of two offences, the first being aggravated detain for advantage, the full text of the charge being that he, between 11 March 2016 and 14 March 2016, at Albury, in the State of New South Wales, did detain DJ without her consent and with intent to obtain an advantage, namely psychological satisfaction, and at the time of the offence, he did occasion actual bodily harm to DJ, contrary s 86(2)(b) of the Crimes Act 1900. The maximum penalty provided is 20 years' imprisonment. There is no relevant standard non‑parole period. The second offence is contained on a s 166 Certificate as a related offence, being contravene a prohibition or restriction in an AVO, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act.  The maximum penalty is a term of imprisonment of two years.

2. The offender was arraigned on 30 May 2017 in respect of six offences, all alleged to have occurred between 11 and 14 March 2016l in respect of the same complainant, DJ.  Three of the offences were contrary to s 61J(1), being, in abbreviated fashion, having sexual intercourse without DJ's consent, knowing she was not consenting, in circumstances of aggravation, that is, immediately before the offence occasioning actual bodily harm to her.  There are two offences contrary to s 61I, being offences that he had sexual intercourse with DJ without her consent, knowing she was not consenting.  Count 2 on the indictment was that he detained DJ without her consent and with intent to obtain advantage, namely psychological satisfaction, and at the time of the offence, he did occasion actual bodily harm to her.

3. The accused stood trial with a jury and on 14 June 2017. The jury found him not guilty in relation to each of the offences, other than the offence of detaining her without her consent and with intent to obtain an advantage. 

4. Consistent with the jury verdict, I find the following facts beyond reasonable doubt.

5. At the time of the offence, the offender and DJ had been in an on‑and‑off‑again relationship.  On 24 February 2016, a provisional Apprehended Domestic Violence Order had been applied for and was granted on behalf of the victim, DJ, against the offender.  The Apprehended Domestic Violence Order was current until 22 March 2016 and contained the usual orders, in essence, that the offender was not to have any direct contact with the victim, nor was he to harass or intimidate her.

6. On around 1 March 2016, DJ left Sydney and travelled to the Riverina area to visit her family.  After visiting family, she travelled to Albury to visit the offender.  On Saturday 12 March 2016, the offender and the victim walked from his unit to the Albury Caravan Park, where they met a mutual friend, Diane Thorpe.  The offender and DJ remained in the company of Ms Thorpe at the caravan park, watching television and talking.  After a few hours, the victim left.  Ms Thorpe and the offender walked back to the offender's unit before the victim returned.

7. Between about 8pm and 9pm on 12 March 2016, the victim walked to the offender's unit.  The offender started yelling and arguing with DJ.  The offender physically assaulted the victim by punching her in the face, causing her to fall onto the floor.  He then directed her to remain on the kitchen floor for a period of time.  It is difficult to establish beyond reasonable doubt the actual period of time, but I accept that it was between one and two hours, and most probably towards the lower end of that range.

8. The following morning, DJ reported the matter to police.  After making inquiries, investigators attended at premises where the offender was then present, and arrested him.  He informed the investigators that he had seen the victim and been with her at his premises, knowing that there was an enforceable Apprehended Domestic Violence Order.  He denied assaulting the victim.

9. In relation to the offence of detaining her, the actual bodily harm occasioned was from him punching her to the forehead, causing swelling.  The victim was his on‑and‑off‑again domestic partner, and the psychological satisfaction was the satisfaction that he derived from exercising power and control over her, as well as by belittling her and demeaning her by forcing her to lay on the ground for a period of time, while she was too scared to endeavour to leave the premises.

10. The injury occasioned falls at the low end of the range of any actual bodily harm that might have been occasioned.  The period of the detaining, as I have indicated, is probably to the lower end of the one hour to two hour range, but within that range.  In those circumstances, I find that the offence falls below the midrange of objective seriousness, although not at the lowest end of such range.  I note that the complainant was so distressed during the course of the detaining that she was heard to be crying by neighbours.

11. An aggravating circumstance in relation to the offence is that at the time, the offender was the subject of an ADVO imposed to protect DJ.  As to the contravention of the ADVO, I note that it was not the offender who established or sought contact contrary to the order, but the complainant, who, of her own volition, re‑established contact, and as a result was residing on and off with the offender, placing him in breach of the order, however, he did contravene the order by his actions in detaining her and assaulting her.

12. In the circumstances, I regard the breach of the ADVO order as being below the midrange of seriousness for such an offence.  I note in respect to that offence that the matter having been placed on a s 166 certificate, the offender indicated a plea of guilty this morning when that charge was first put before this Court.  While there is no apparent offer to plea to such an offence before this morning, I will however in the circumstances regard it as a plea at the earliest opportunity, entitling him to a 25% discount for the plea in respect to that matter.

Subjective matters

13. Before the Court is the offender's criminal history, a Pre‑Sentence Report under the hand of Allison Robb, dated 1 August 2017.  In addition, the offender's mother, Karen Kennedy, gave evidence on sentence.  Subjective matters are taken from that material. 

14. The offender was 33 years of age at the time, and he is now 35.  He is the third eldest of five children.  One of his siblings is deceased, and three of his siblings are stepbrothers or sisters.  The offender's biological father has never been informed of the birth of the offender.

15. The offender's mother had been in a relationship with Neil Meaker, and the first two of her children were the children of her and Mr Neil Meaker.  Not long after the birth of the offender, Neil Meaker and the offender’s mother split up.  When the offender was five months of age, his mother had a breakdown, she then being approximately 21 years of age, and the offender was placed into the care of another couple, where he remained for a period of approximately eight years.  His mother maintained access during that time.

16. When he was approximately eight years of age, the offender went to live with his stepfather, who at the time was involved in the trucking industry; however, at some stage, the stepfather went to the Philippines and then Thailand, where he was engaged in the brothel industry, taking the offender with him.  When he was 16, he returned to live with his mother and her then partner.  His mother has had problems with both alcohol and prohibited drugs for many years.

17. He has been in custody since his arrest in respect of these matters on 13 March 2016.  While he has been in custody, he has had regular contact with his mother by telephone, at least on a weekly basis.  He also apparently has regular contact with his surviving siblings.  The offender is single and has no children, and his relationship with the victim has been turbulent and dysfunctional.

18. He left high school after completing Year 10, but had changed schools three times during that year due to transient accommodation.  He is said to have completed a number of certificates since leaving school, including qualifications in fitness, hospitality and machinery.  He is said to have had regular employment throughout his adult years in various fields of work, including bartending and having been a swimming pool supervisor for a period of four years; however, he has not been employed since 2012.

19. He has a long history of abuse of alcohol and drugs, and at the time of the offences, he was using methylamphetamine daily, as was the victim.  He had been released on parole on 10 October 2015, that is, approximately five months prior to committing this offence.  He claims to have been abstinent from drugs for a period of two months when last released, but had relapsed prior to committing this offence.  He has had minimal intervention in respect to the abuse of illicit substances in the past, although service records indicate that he completed the “Getting Smart” program during a period of incarceration in 2014.

20. He is said to have "appeared to minimise his substance abuse history, and instead apportion blame to others".  He has been prescribed while in custody with some medication, which appears to relate to depression and anxiety, a common problem for prisoners serving sentences or awaiting to be sentenced.  As to his past interaction with Community Corrections, a report states the following:

"Mr Meaker was sentenced through the District Court on 30 August 2013 to a term of imprisonment for the offence of take/detain person with intent to obtain advantage.  The offender's response to supervision was considered unsatisfactory, given the short periods of time he had in the community before committing further offences of a similar nature, resulting in his parole being revoked on two occasions."

21. As to his attitude to offending, the report states:

"Throughout conversations with the offender, he displayed limited insight into his offending behaviour, and instead attributed all blame towards the victim.  He admitted to assaulting the victim, however, reported that he could not see any issue with his behaviour, stating that, 'She punched me first, so she deserved it.'  Mr Meaker was unable to identify any pattern in his offending behaviour with prior and index offences being of a similar nature, and he was not able to verbalise how he could have managed the situation any differently.  He reported feeling powerless to his actions, claiming that others provoke him, which in turn led to the offending behaviour.  While he expressed cooperation regarding seeking treatment for substance dependence, he reported that he would not be willing to engage in treatment to address the violent offending."

22. He was assessed as a high risk of reoffending, an assessment which would appear to be entirely appropriate in view of his past criminal history, including a number of matters involving personal violence and matters of a similar nature to the current offence.  I accept that he has substance abuse issues, coupled with mental health and anger management problems.  I have noted in relation to his past custody the relatively short periods of time that he has had in the community before committing further offences of a similar nature.

23. As a juvenile, he has been dealt with for offences such as robbery in company, receive property theft, being a serious indictable offence, and as an adult, offences such as:  assault occasioning actual bodily harm; larceny; destroying or damaging property; stalk/intimidate; intend fear of physical/mental harm; in 2012, an offence of take or detain person with intent to obtain advantage; failing to quit premises; common assault; goods in personal custody suspected of being stolen; drive with a low range PCA; unlicensed driver/rider; state false name/address; never licensed person, drive vehicle on road; drive while disqualified; possess or attempt to possess proscribed, restricted substances; driving while under the influence of alcohol or other drug; possess prohibited drug; not wear approved bicycle helmet; and a matter involving the same victim, committed in September 2014 and dealt with at the Newcastle Local Court in November 2014, of stalk/intimidate, intend physical harm, in respect of which he received a term of imprisonment of two months.  In addition to those offences, which are recorded in his New South Wales criminal history, there are also a number of offences recorded on his Victorian criminal history, some involving personal violence.

24. I accept the submission of Mr King, counsel appearing on behalf of the offender, that the offence was not premeditated but opportunistic. 

25. For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account in particular the aggravating feature that he was on conditional liberty at the time. Any sentence must reflect the objective seriousness of the offence as well as, in my view, in relation to this matter, the need for both general and specific deterrence, as well as meeting the fundamental purpose of punishment, that is, the protection of society. I am satisfied pursuant to s 5 prima facie the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, indeed, no submission has been made on behalf of the offender that there is in fact any alternative.

26. Having taken all of those matters into account as part of the instinctive synthesis of determining an appropriate sentence, I indicate that I will proceed by way of an aggregate sentence, which requires me then to state the indicative sentence in respect of each of the two offences.

27. In respect of the offence of contravening the ADVO, the indicative sentence is a fixed term of six months' imprisonment.  In relation to the aggravated detaining offence, the indicative sentence is two years and nine months.  The aggregate sentence will be a non‑parole period of one year and eight months, commencing on 11 April 2016.

28. I order that he be released on parole on 10 December 2017.  The balance of term is one year, four months, giving a total sentence of three years.  So that is a three year total sentence with a non‑parole period of one year and eight months, and a balance of term of one year and four months.  The total sentence will expire on 10 April 2019.

29. I have found special circumstances in relation to the need for the offender to receive assistance in relation to his drug problems, and just as importantly, in relation to anger management, although I note that he has so far indicated to the pre‑sentence officer that he would not be willing to engage in treatment to address violent offending.  Hopefully, that will change.

30. I further note that there is no evidence of remorse or contrition in relation to this matter, and the prospect of his reoffending in the absence of dealing with anger management and the abuse of prohibited drugs means that there is, as opined in the Pre‑Sentence Report, a high prospect of reoffending and a low prospect of rehabilitation, until he accepts responsibility for his own conduct, and makes a determination to do something about his problems.  I have reduced the non‑parole period as a result of finding special circumstances for those reasons, by some seven months' reduction of the non‑parole period below the statutory relationship.

31. Two offences contained on the s 166 Certificate of stalk/intimidate, intend physical harm, being H60849361, Sequence 4, and incite person 16 years or over to commit act of indecency, being the same H number but Sequence 5, are each withdrawn and dismissed.

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Amendments

19 March 2019 - paragraph [1] - replaced name with 'DJ'

Decision last updated: 19 March 2019