R v Meloury; R v Green; R v Schulz

[2019] NSWDC 919

District Court

New South Wales

Medium Neutral Citation:

R v Meloury; R v Green; R v Schulz [2019] NSWDC 919

Hearing dates:

14-16 August 2019

Decision date:

16 August 2019

Jurisdiction:

Criminal

Before:

Payne DCJ

Decision:

MELOURY

Count 1: non-parole period of ten months; total term of one year eight months

Statutory alternative to Count 3: non-parole period of two years nine months; total term of four years nine months

GREEN

Count 2: non-parole period of one year three months; total term of two years six months

Count 3: non-parole period of three years nine months; total term of six years six months

SCHULZ

Count 1: non-parole period of three years three months; total term of six years

Catchwords:

SENTENCING – specially aggravated break and enter and commit serious indictable offence (wound) Crimes Act 1900 s 112(3) – aggravated break and enter and commit serious indictable offence (inflict actual bodily harm) Crimes Act 1900 s 112(2) – armed with intent to commit indictable offence Crimes Act 1900 s 114(1)(1)

SENTENCING – relevant factors on sentence – objective seriousness – aggravating factors – mitigating factors – co-offenders - parity

Legislation Cited:

Crimes Act 1900, ss 112(2), 112(3), 114(1)(a)

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A

Cases Cited:

Bugmy [2013] HCA 37

Marshall v R [2007] NSWCCA 24

R v Li (NSWCCA, unrep, 9 July 1997)

Category:

Sentence

Parties:

Regina (Crown)
James Meloury (Offender)
Dale Johnathan Green (Offender)
Cody Schulz (Offender)

Representation:

Counsel:
P Kerr (Crown)
I Wallach (Offender Meloury)
C Goodhand (Offender Green)
T Warr (Offender Schulz)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Lamond Legal (Offender Meloury)
Aboriginal Legal Service (Offender Green)
Max Staples (Offender Schulz)

File Number(s):

2017/00216682, 2017/00212682, 2017/00225868

Judgment

CODY SCHULZ

1. On 1 April 2019, Cody Schulz pleaded guilty to one offence on an indictment. With agreement by the defence, he was re‑arraigned on 17 April 2019 due to a defect in the previous indictment. That offence is as follows:

On or about 9 July 2017, in Albury in the State of New South Wales, did break and enter the house of JH and GF, situated at xxx Keene Street, Albury, whilst armed with an offensive instrument, and did commit a serious indictable offence therein, namely, did wound JK, while being in company and reckless as to causing actual bodily harm to him, and at the time of the offence did intentionally wound JK.

2. This offence is contrary to s 112(3) of the Crimes Act 1900. The maximum penalty prescribed is imprisonment for twenty‑five years. There is a standard non‑parole period of seven years.

3. I convicted him of this offence on 14 August 2019.

PLEA OF GUILTY

4. As noted, he pleaded guilty on 1 April 2019, this being the trial date. He had been committed for trial on 9 April 2018. The offender indicated his willingness to plead guilty to one offence contrary to s 112(3) on 25 February 2019. Charge negotiations formally commenced on 27 February 2019. At the telephone callover conducted by myself, which was on 5 March 2019, it was indicated he had made an offer to plead but my memory is that it was apparent that he in fact would plead. The agreed facts were settled on 22 March 2019, five working days prior to the trial.

5. Having considered the circumstances and the submissions of both counsel, I am of the view the reduction for utilitarian considerations only is 17 percent. Both counsel accepted this reduction as being appropriate.

CONTRITION AND REMORSE

6. In relation to remorse, the provision found in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides:

“the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”

7. The Crown submitted in written submissions at para 47, “The Crown does not accept that Mr Schulz has satisfied both limbs of that test.” The defence submitted the plea is “evidence of the [prisoner’s] willingness to accept responsibility for the offence”.

8. In my view, his plea together with his letter of apology which became part of Exhibit 1 is evidence that the prisoner has taken responsibility and he is sorry for his offending behaviour and accordingly on the balance of probabilities is entitled to the mitigating feature found in s 21A(3)(i).

FACTS

9. The factual circumstances of the offending in relation to Mr Schulz are found in a statement of agreed facts.

The offender, Cody Schulz, is a twenty‑three year old male.

The victim, JK, is a nineteen year old male.

On or about Monday 3 July 2017, the victim won about $800 on the poker machines at the Newmarket Hotel, Borella Street, East Albury.

That same day, the victim loaned $300 to the offender to help him purchase a Ford Falcon motor vehicle in Wodonga.

After that time, the victim attempted to contact the offender to try to retrieve his money. On or about Saturday 8 July 2017, the victim saw the offender at an address in Lavington. The victim spoke to the offender about ignoring his phone calls and asked where the money was. The victim became angry and punched the offender once on the mouth.

At approximately 8.30pm on Sunday 9 July 2017, the victim was visiting his friends GF and JH at xxx Keene Street, East Albury (‘the residence’). Also present at the residence were JH’s friend, WT, and another occupant, BC.

Sometime later that evening, the offender and James Meloury attended the residence. The offender has knocked on the door and spoke with resident GF. After this he walked back towards his car. The victim, upon realising that the offender was outside, ran outside and grabbed a steel pole. The victim ran to the car and using the steel pole has hit the windscreen three times in the driver’s side window, causing both windows to smash. The offender and Mr Meloury sped away from the location and the victim went back inside the residence.

Sometime later that night, between 10.30 and 11.30pm, the victim answered the door, holding a steel pole which was about two inches thick and about sixty centimetres in length. He observed the offender, Mr Meloury and Mr Dale Green standing outside. The offender was holding a black coloured machete with a blade approximately forty centimetres long. Mr Meloury was holding a metal baseball bat in his hand. Mr Green was holding what appeared to be a shortened .22 rifle with a grey barrel and a wooden stock.

Green pointed the shortened rifle at the victim’s head. The victim closed the front door. Using the firearm, Mr Green smashed a glass panel on the front door and the three men entered the residence. Upon entering the front door, the offender was hit in the head two times by the victim using the steel pole.

The victim then turned and ran towards Mr Ouster’s bedroom at the rear of the residence.

The offender has then entered the bedroom, where GF, JH and WT were also situated, and the victim has swung the steel pole and hit the offender in the head. The offender has then swung the machete and hit the victim’s hands. The victim suffered:

(a) a laceration to the dorsal surface of the index finger of his right hand, and

(b) lacerations to the dorsal surface of the middle ring finger with partial amputation of the little finger of his left hand.

The victim was then struck by Green using the rifle barrel, causing a contusion to the left side of his forehead. The victim was also hit on the left leg by an unknown person, causing a laceration to the lateral border.

The offender then said to the victim, ‘Get in the car now’. The victim said, ‘Get fucked and suck my dick’.

The offender, Meloury and Green then left the residence.

The victim was conveyed to Albury Base Hospital where he received treatment for the injuries referred to above, and an injury to his forehead.

On Monday 10 July 2017, a crime scene warrant was granted and executed in relation to the residence. An examination was conducted by crime scene officers.

Police also conducted a search of the offender’s residence at yyy McDonald Road, Lavington. A Ford Falcon sedan, dented and with smashed windows and matching the description provided by the victim, was located in the allocated car space for unit 23. This vehicle was seized by police and towed to the Albury Police LAC holding yard for examination.

The offender’s DNA profile was located on the handle of a knife seized by police from unit 23, and on the sheath belonging to that knife.

Shortly before midnight, police again attended the unit of the offender and found blood stains on the concrete stairwell leading to his apartment.

On Tuesday 11 July 2017, the victim participated in a series of photograph identification line-ups at Albury Base Hospital. He identified the offender. He also told police that during the incident he did not really fear for his safety.

The offender was subsequently arrested and charged on 14 July 2017.

10. In relation to the injuries suffered by the victim noted above, the Court received a further document marked defence Exhibit 3, an expert certificate of the Orthopaedic Registrar at Albury Hospital. It relevantly states at para 5:

“My findings on examination were: contusion left side of forehead, right hand lacerations to the dorsal surface of index finger, left hand lacerations to dorsal surface of middle and ring finger with partial amputation of the little finger, laceration to lateral border of left leg. Treatment right hand index finger repair of extensor tendon and radial lateral band, left hand middle finger saggital band repair, ring finger extensor tendon repair, little finger central slip and natural band repair and stabilisation with Kirschner wire and extensor tendon repair.”

11. It is accepted the little finger was repaired. There is no further updated medical report.

OBJECTIVE SERIOUSNESS

12. The serious indictable offence committed was an offence contrary to s 35(3) of the Crimes Act, being reckless wounding in company. The maximum penalty for that offence is imprisonment for ten years. The feature of aggravation in relation to the s 112(3) offence is as found in s 105A(1) Crimes Act, the alleged offender is armed with an offensive weapon or instrument. The feature of special aggravation is also found in s 105A(1) Crimes Act, the alleged offender intentionally wounds any person.

13. Relevant to that aspect of the offence pursuant to s 105A Crimes Act as noted above, is the offender knows that there is a person or persons in the place where the offence is committed - see R v Li (NSWCCA, unrep, 9 July 1997) and Marshall v R [2007] NSWCCA 24.

14. There was limited planning in relation to the offence in this case. I do not elevate this to a feature of aggravation but it still makes the offending somewhat more serious. There is also the aggravating factor of s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999, the offence was committed in the home of the victim or any other person.

15. Mr Crown submitted, “the offending in this matter, having regard to all the facts and circumstances, lies above the mid-range of offending for offences of this kind”.

16. Defence counsel submitted his client was provoked by the victim, and this mitigating feature reduced the seriousness of the offence. Matters of mitigation need only be proved on the balance of probabilities. He refers to an unprovoked assault the day preceding, damage to a vehicle and putting his client in fear in the hours preceding and two head strikes at the front door and a single head strike inside the bedroom. At para 13 of the defence submissions the following is found:

“It is a unique set of circumstances in which the offender struck JK once to the hands whilst facing a clear danger of JK striking him four times with a steel pole. It occurred in the face of a number of unprovoked assaults of JK the day before and just prior to the offence.”

17. I have outlined in particularity what those were. The Crown on the other hand submits at paras 10 and 11:

“The facts agreed by Cody Schulz accepted that he was participating in a joint criminal enterprise with the other two co‑offenders.

The offending comprised a ‘home invasion’ type attack on JK by Cody Schulz in retribution for the damage caused by the victim to Cody Schulz’s car.”

18. The Crown submitted there was nothing which reaches the level of actual provocation. It was not an offence carried out in the heat of the moment. Mr Schulz had an intention to wound. He chased the victim into the house who was struck by the attacker, being Mr Schulz, with the machete. I accept the Crown’s submission. There was some very moderate element of provocation but the response was an attack by three armed men who broke into the property as noted in the facts at paras 6 and 7. I have already considered the injuries sustained by the victim.

19. This was a serious example of a s 112(3) offence. In my view, the offence falls at the lower end of the middle range.

VICTIM IMPACT STATEMENT

20. The Court received a Victim Impact Statement. The effect upon the victim of this criminal offence was terrible in a number of ways. The consequences to him were severe.

21. One of the purposes of sentencing noted in s 3A of the Crimes (Sentencing Procedure) Act is: “(g) to recognise the harm done to the victim of the crime and the community”. It is this way that I give weight to the statement of the victim.

22. The Crown did not submit the effect should be elevated to a feature of aggravation pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act, nor do I so.

23. As to the physical injury and consequences from it, I take into account only that which is found in the expert certificate, Exhibit 3.

SOME SENTENCING PRINCIPLES

24. The maximum penalty and standard non‑parole period provide guideposts when determining the appropriate sentence. This applies to each of the prisoners.

25. General deterrence must be a significant feature of the sentencing exercise. Home invasion offences must be deterred; they must be denounced.

SUBJECTIVE FEATURES AND RECORD

26. The prisoner’s date of birth is 2 May 1995. His age at the time of the offence was twenty‑two years and two months, his age now is twenty‑four years and three months. He has had a very sad background. He had no contact with his father until seventeen years old, his mother left him at the age of four and he was cared for by his auntie until twelve years old at which time he returned home to his mother. He moved in with a friend at age fifteen and left school when in Year 9. He commenced illicit drug use at the age of thirteen and by seventeen was heavily addicted to ice. He had a daughter at age eighteen; the relationship ended the same year due to his drug use.

27. He has a lengthy record despite his age and this record in my view disentitles the offender to leniency. He was in a special education unit at high school and has received treatment twice for [condition omitted]. He has been on the antidepressant Avanza for the past three to four years. At the time of the offence he had a chronic methylamphetamine habit, had not slept for days and was suffering from the effects of the drug. He intends to use methadone if he is able to enter into that program whilst in custody to avoid future drug use. This drug addiction and the effect upon him at the time is certainly not an excuse for the offending behaviour but some explanation.

28. I have also considered what the prisoner said in Exhibit 2, his second letter, and I have made reference already to the content of the first.

29. He was on parole at the time of the offence. This is a feature of aggravation. He had only been released to parole on 14 April 2017. He had served a non‑parole period for drive whilst disqualified and balance of a previous parole. He came into custody in New South Wales on 20 December 2017. He had gone to Victoria. He served a term in Victoria before being extradited. After an appeal from the Albury Local Court was allowed in the District Court, he was sentenced to two years and four months with a non‑parole period of one year and six months commencing on 16 September 2017 with the non‑parole period expiring on 15 March 2019. This date is one of course prior to his entry into new custody in New South Wales which was, as already noted, 20 December 2017. It is not necessary to go into any further detail as it was agreed between the parties and it is my view the appropriate sentence commencement date is 20 January 2018, one month after he came into custody in New South Wales.

30. His age, his determination in relation to his drug use and seeking treatment and his desire to look after his daughter and his acceptance of responsibility indicates his prospects for rehabilitation are reasonable.

31. I make no finding one way or the other as to whether it is likely he will or will not re‑offend. The matter is neutral.

32. In relation to the sentence to be imposed, I make a finding of special circumstances, being his relatively young age, the risk of institutionalisation, his requirement for treatment for his drug addiction can better be provided in the community and a lengthy period of supervision on parole will assist him with rehabilitation and reintegration into the community.

JAMES MELOURY

33. I now turn to Mr James Meloury. On 3 April 2019, James Meloury pleaded not guilty before a jury to two offences on indictment, being Count 1 and Count 3 in the indictment. The jury returned verdicts of guilty to Count 1 and to the statutory alternative to Count 3 on 15 April 2019. Those offences are as follows:

Count 1, on or about 9 July 2017, at Albury in the State of New South Wales, was armed with a weapon, namely, a baseball bat, with intent to commit an indictable offence, namely intimidate.

This offence is contrary to s 114(1)(a) Crimes Act. The maximum penalty is imprisonment for seven years.

The statutory alternative to Count 3, on or about 9 July 2017, at Albury in the State of New South Wales, did break and enter the dwelling house of JH and GF, situated at xxx Keene Street, Albury, whilst being armed with offensive instruments, did commit a serious indictable offence therein, namely, did wound JK, while being in company, and reckless as to causing actual bodily harm to him.

This offence is contrary to s 112(2) Crimes Act. The maximum penalty is imprisonment for twenty years. A standard non‑parole period of five years is prescribed.

34. I convicted him of these offences on 14 August 2019.

FACTS

35. There is a statement of facts which has been agreed between the parties and is as follows:

The offenders who appear for sentence following a trial by jury are James Meloury, also known as James Kerr, and Dale Green (‘the co‑offenders’).

A third offender, Cody Schulz, also appears for sentence following his guilty plea, entered on 1 April 2019. Separate agreed facts apply to Mr Schulz.

At approximately 8.30pm on Sunday 9 July 2017, the victim, JK, was visiting his friends GF and JH at xxx Keene Street, East Albury. Also present at the residence were JH’s friend, WT, and another occupant, BC.

Sometime later that evening, Mr Schulz and Mr Meloury drove to the residence. Mr Schulz knocked on the door and spoke with the resident GF. After this, he walked back towards his car. The victim, upon realising that Mr Schulz was outside, ran outside and grabbed a steel pole. The victim ran to the car and, using the steel pole, has hit the windscreen three times and the driver’s side window, causing both windows to smash.

Mr Schulz and Mr Meloury sped away from the location and the victim went back inside the residence. Sometime between 10.30 and 11.30pm, the victim heard a knock at the front door of the residence. The victim answered the door holding a steel pole which was about two inches thick and about sixty centimetres in length. He observed the co‑offenders and Mr Schulz standing outside. Mr Schulz was holding a black coloured machete with a blade approximately forty centimetres long. Mr Meloury was holding a metal baseball bat in his hand. Mr Green was holding a shortened .22 rifle with a grey barrel and wooden stock.

As soon as JK saw the three men, he attempted to close the door. Using the firearm, Mr Green smashed a glass panel on the front door. When the barrel of the sawn‑off rifle smashed the glass in the door and protruded through the broken glass, JK abandoned the door and ran back to the bedroom where he had been before the three co‑offenders arrived. This is when the victim swings the steel pole at Mr Schulz.

The three co‑offenders followed JK to the bedroom of the house. Also present in that bedroom were JH, GF and WT.

As the three co‑offenders came into the room, JK stood on the bed. He tried to protect himself by swinging the metal pole at Cody Schulz and Dale Green, who had approached the bed. James Meloury remained near the door and was not physically involved in the assault upon JK.

Cody Schulz approached JK and inflicted serous lacerations to his hands and arms with the machete. JK suffered (a) a laceration to the dorsal surface of the index finger of his right hand and (b) lacerations to the dorsal surface of the middle and ring finger with partial amputation of the little finger of his left hand.

The victim was then struck by Green using the rifle barrel, causing a contusion to the left side of the forehead. The victim was also hit on the left leg by an unknown person, causing a laceration to the lateral border.

The incident took place over about one-and-a-half to two minutes.

The three co‑offenders then left the residence.

The victim was conveyed to Albury Base Hospital where he received treatment for the injuries referred to above as follows:

Right hand

(a) index finger repair of extensor tendon and radial lateral band.

Left hand

(a) middle finger sagittal band repair, ring finger extensor tendon repair,

(b) little finger central slip and lateral band repair and stabilisation with Kirschner wire and extensor tendon repair.

On Monday 10 July 2017, a crime scene warrant was granted and executed in relation to the residence. An examination was conducted by crime scene officers.

The next day, 11 July 2017, the victim participated in a series of photograph identification line‑ups at Albury Base Hospital and correctly identified each of the co‑offenders.

Mr Dale Green was arrested and charged on 11 July 2017. Mr Cody Schulz was arrested and charged on 14 July 2017. Mr James Meloury was arrested and charged on 17 July 2017.

36. The Crown in relation to Mr Meloury said the offending was above the middle range. Defence counsel, Mr Wallach, noted at paras 12 to 19:

“Each offender is to be sentenced on the basis of his role and actions in the commission of the offence.

An immediate distinction arises as Mr Schulz and Mr Green are each to be sentenced for an offence under s 112(3) which involves intentionally wounding JK. Mr Meloury is to be sentenced for the lesser (though admittedly serious) offence involving reckless wounding under s 112(2) Crimes Act. Accordingly, Mr Schulz and Mr Green should be categorised as the principal offenders.

This distinction as a matter of law is further reflected in the different actual roles played by Mr Schulz and Mr Green as opposed to Mr Meloury. Both Mr Schulz and Mr Green were the perpetrators of actual violence on JK. Mr Meloury was not an actual perpetrator even though he is to be sentenced for an offence involving reckless wounding. Mr Meloury’s participation in and criminal liability for the wounding arises out of his being available for support and encouragement of Mr Schulz and Mr Green.

It is conceded the Court would infer and be satisfied beyond reasonable doubt that there were two joint criminal enterprises to which Mr Meloury was a party. The first was a joint criminal enterprise amongst three offenders to go to the Keene Street house and intimidate JK. The second joint criminal enterprise (by way of extended purpose) among the three offenders was to break into and enter the Keene Street house (through the front door) and wound JK.

There was a third joint criminal enterprise between Mr Schulz and Mr Green to which Mr Meloury was not a party. That was a joint criminal enterprise by Mr Schulz and Mr Green to intentionally wound JK.

Further, Mr Meloury does not behave in any way at the front door or in the bedroom to initiate matters or to assault JK. At both locations Mr Meloury is not an active participant and appears more as a bystander. At most, his role is one of passive support or encouragement.”

I do note at this point of course though that he was armed with a baseball bat.

“This observation is intended as descriptive of Mr Meloury’s actions rather than to exculpate Mr Meloury from criminal liability.

The appropriate conclusion is that Mr Meloury has a lesser degree of criminality because of his lesser role in the events and because he is guilty of a s 112(2) offence. Mr Schulz and Mr Green are each guilty of the s 112(3) offence.”

37. At para 29, Mr Wallach says, “Under all the circumstances, it is therefore submitted that Mr Meloury’s offending is below mid-range for this type of offence.”

38. I accept these submissions, subject to a refinement of where the offending falls.

39. I have already noted in my remarks the indictable offence is one contrary to s 35(3) of the Crimes Act and the s 105A aggravating feature, the alleged offender is armed with an offensive weapon or instrument. Relevant to that aspect of the offence pursuant to s 105 Crimes Act as noted above, is the feature the offender knows that there is a person or persons in the place where the offence was committed - see Li and Marshall.

40. There was limited planning in relation to the offence in this case so I do not elevate this to a feature of aggravation. It still makes the offending somewhat more serious. There is also the aggravating factor of s 21A(2)(eb) Crimes (Sentencing Procedure) Act, the offence was committed in the home of the victim or any other person.

41. In my view the objective seriousness of the offending is just below the mid-range for offences contrary to s 112(2).

42. Mr Meloury’s date of birth is 18 July 1996. At the time of the offending he was ten days short of his twenty‑first birthday. He is now aged twenty‑three years and one month. The subjective features Mr Wallach notes, and I accept, at paras 32 to 35 of the written submissions:

“The psychological report by Dr M Rodriguez, dated 18 June 2019, draws a picture of a young man from a disadvantaged background. He was raised by his grandparents in the absence of his mother who had not played any real role in his upbringing. In addition he has used illicit drugs since he was seventeen years old.

In the opinion of Dr Rodriguez, Mr Meloury suffers from a conduct disorder directly linked to this dysfunctional upbringing.

Dr Rodriguez expresses a guarded prognosis for rehabilitation. This is hardly surprising (and almost to be expected) in view of Mr Meloury’s dysfunctional and disadvantaged background. On release he will require considerable community support, drug and alcohol residential treatment and ongoing counselling. In brief, Mr Meloury is a young man who will require considerable resources to assist in preventing relapse into drug taking and crime.

In effect, Mr Meloury will require a complete ‘reset’ to maximise his opportunity to avoid recidivism. This is a case where rehabilitation because of Mr Meloury’s youth and disadvantage should assume a greater role than it may otherwise in view of the nature of the offending.”

43. As to his criminal record, it does not disentitle him completely to leniency, although only very limited leniency. This is the first time he has committed an offence for which he is to be sentenced in the District Court; his other criminal behaviour has been quite different and not nearly as serious. The only previous sentence was seven months with a three month non‑parole period for an offence of assault occasioning actual bodily harm and one month for a contravene apprehended violence order.

44. He has been in custody since 14 July 2017. He was released to parole on 4 June 2017. His present offending is in breach of that parole which is a feature of aggravation.

45. The present offence having been committed on 9 July 2017, he had only been released from custody some short time before, in the order of slightly more than one month. When he came back into custody he has been serving a balance of parole term of two months and twenty‑six days and a sentence of one year with a nine month non‑parole period to date from his return to custody on 17 July 2017. It was agreed by the parties and I am of the view the appropriate commencement date is 17 October 2017, being three months after he came into custody which reflects some period for the custody he was already liable to serve.

46. As to his prospects for rehabilitation, in my view given his age, his prospects are reasonable. As to the likelihood of re-offending, the matter remains neutral and I make no finding one way or another.

47. Mr Wallach emphasised his age and the need for emphasis on rehabilitation. I have taken into account the content of the report of Dr Rodriguez dated 18 June 2019 and the written and oral submissions from Mr Wallach.

VICTIM IMPACT STATEMENT

48. The Court received a Victim Impact Statement. The effect upon the victim of this criminal offence was terrible in a number of ways. The consequences to him were severe. One of the purposes of sentencing noted in s 3A of the Crimes (Sentencing Procedure) Act is “(g) to recognise the harm done to the victim of the crime and the community.” It is in this way that I give weight to the statement of the victim.

49. The Crown did not submit the effects should be elevated to a feature of aggravation pursuant to s21A(2)(g) Crimes (Sentencing Procedure) Act, nor do I do so. As to the physical injury and consequences from it, I take into account that which is found in the expert certificate, Exhibit 2.

SOME SENTENCING PRINCIPLES

50. General deterrence must be a significant feature of this sentencing exercise. Home invasions must be deterred, as already noted. They must be, again as already noted, denounced.

CONCURRENCE

51. In respect of the s 114(1)(a) offence, all parties agreed this was one episode of criminality and the sentence should be wholly concurrent with the more serious offence.

SPECIAL CIRCUMSTANCES

52. In relation to special circumstances, I make a finding of special circumstances in this case, they being a need for a longer period on parole to enable extended supervision for residential drug rehabilitation, counselling and support as recommended in the psychological report and also his age. His treatment can be better undertaken in the community.

DALE JOHNATHAN GREEN

53. I turn now to Dale Johnathan Green. On 3 April 2019, Dale Johnathan Green pleaded not guilty before a jury to two offences on an indictment, being Count 2 and Count 3. Those offences are as follows:

Count 2, on or about 9 July 2017, at Albury in the State of New South Wales, was armed with a weapon, namely, a shortened rifle, with intent to commit an indictable offence, namely, intimidation.

This offence is contrary to s 114(1)(a) of the Crimes Act. The maximum penalty is imprisonment for seven years. No standard non‑parole is prescribed.

Count 3, on or about 9 July 2017, at Albury in the State of New South Wales, did break and enter the dwelling house of JH and GF, situated at xxx Keene Street, Albury, whilst being armed with offensive instruments and did commit a serious indictable offence therein, namely, did wound JK, while being in company and reckless as to causing actual bodily harm to him, and at the time of the offence did intentionally wound JK.

This offence is contrary to s 112(3) of the Crimes Act. The maximum penalty is imprisonment for twenty‑five years. A standard non‑parole period of seven years is prescribed.

54. I convicted him of these offences on 14 August 2019.

55. The facts are identical as for Mr Meloury and it will not be necessary to repeat them. The prisoner was found guilty by the jury of the offence charged in the indictment and not the alternative offence. He was also found guilty of the s 114(1) offence. I will not, as I have said, repeat the agreed facts document.

OBJECTIVE SERIOUSNESS

56. In relation to objective seriousness, the Crown said, as with the other two prisoners, the offending in this matter, having regard to all the facts and circumstances, lies above the mid-range of offending for offences of this kind.

57. Defence counsel submitted at para 8 of the written submissions:

“It is submitted that these offences are well below the mid-range of objective seriousness for offences of this type. The incident occurred over a very short period of time and happened quickly. The incident occurred as a result of provocative behaviour towards Mr Meloury and Mr Schulz leading up to the offence where he smashed Mr Schulz’s car. Further, the injuries sustained by JK were not the most serious in the range.”

58. The serious indictable offence committed was an offence contrary to s 35(3) Crimes Act, being reckless wounding in company. The maximum penalty for that offence is imprisonment for ten years. The feature of aggravation in relation to the s 112(3) offence is, as found in s 105A(1) Crimes Act, the alleged offender was armed with an offensive weapon or instrument. The feature of special aggravation is also found in s 105A(1) Crimes Act, the alleged offender intentionally wounds any person.

59. Relevant to that aspect of the offence pursuant to s 105A Crimes Act, as noted above, is the feature the offender knows that there is a person or persons in the place where the offence is committed.

60. There was limited planning in relation to the offence in this case. I do not elevate this to a feature of aggravation. It still makes the offending somewhat more serious.

61. There is also the aggravating factor of s 21A(2)(eb) Crimes (Sentencing Procedure) Act, the offence was committed in the home of the victim or any other person.

62. Defence counsel submitted the mitigating feature of the offence not being part of a planned or organised criminal activity is present. I reject this, even on the balance of probabilities. I have noted my view.

63. As to provocation, I reject this submission. It was not Mr Green’s car that was damaged, nor was he assaulted.

64. This, as noted, was a serious home invasion. In my view, the s 112(3) offence falls in the lower end of the middle range.

SUBJECTIVE FEATURES, CRIMINAL RECORD AND GENERAL DETERRENCE

65. Mr Green’s date of birth is 24 April 1986. At the time of the offending he was aged thirty‑one years; at the time of sentence aged thirty‑three years. I have taken into account the contents of the two psychiatric reports. I accept his background (an Aboriginal man from a deprived background; subjected to physical and sexual abuse as a child; as well as substance abuse issues) impacts upon his moral culpability as noted in Bugmy [2013] HCA 37 at [40] and [44].

66. General deterrence must still be a feature of this sentencing exercise, although slightly less than otherwise given his very deprived background.

67. I note administrative policies have been brought to attention that apply within the Department of Corrective Services, however even though this is an administrative matter, I do note that he has been made subject to an E Classification and his first attempt to have this removed was refused even though he was but sixteen years at the time of the behaviour. His conditions of custody accordingly are more onerous.

68. He has a significant criminal record which disentitles him to leniency. He was last released from gaol in Victoria full-time after a significant period in custody. He was only out less than two months before the present offending, having been released on 22 May 2017.

69. Given the psychiatric reports and his history, his prospects for rehabilitation are guarded, and in my view are only fair to reasonable.

70. As already noted, the offending was one episode of criminality and the sentence for the s 114(1) offence should be served concurrently.

VICTIM IMPACT STATEMENT

71. I note what I have stated previously in regards to the Victim Impact Statement and it will not be necessary to repeat it for a third time. It applies equally to this prisoner.

72. As I have already noted, home invasions must be denounced.

73. I am of the view there are special circumstances in this case, namely that of Mr Green. The need for an extended period on parole to address his issues arising from his traumatic childhood and his substance use problem and the requirement for him to be assisted in reintegrating back into the community in an attempt to prevent institutionalisation. His treatment can be better accommodated in the community.

74. I have considered parity very carefully. The cases are very different. Mr Schulz had the benefit of a plea of guilty and a finding of contrition and remorse. The plea of guilty resulted in a reduction for utilitarian considerations only. He had only one offence, different facts, the facts in relation to him have been stated. He is younger than Mr Green though not Mr Meloury. He was on parole at the time.

75. Mr Meloury committed a different offence, s 112(2) with a different and lesser maximum penalty and standard non‑parole period than that provided for in s 112(3). He is the youngest of the three offenders, indeed twenty‑one at the time of the offence. He was on parole. His criminal record is less extensive than that of Mr Schulz and Mr Green. He comes forward for sentence for two offences. He was found guilty following trial.

76. Mr Green was found guilty of the s 112(3) offence, he also had two offences. He is the oldest of the three, he was not on parole at the time and therefore that feature of aggravation is not present in his case but he had only been released full-time from Victoria on 22 May 2017 after a lengthy term in custody, less than two months before the offence. He has a lengthy criminal history in Victoria.

77. Despite these very considerable differences, I have been aware of parity considerations and in my view none of the prisoners will have a justifiable sense of grievance in relation to the sentence imposed on another. In relation to each of the cases, the effective non‑parole period I have imposed is the one which in my view appropriately reflects all sentencing principles and is the least possible appropriate in the circumstances.

SENTENCE

CODY SCHULZ

78. In relation to Mr Schulz, I confirm the conviction entered on 14 August 2019. In respect of the sentence I would have imposed prior to the reduction for utilitarian considerations only is seven years and three months, reduced by 17 percent results in a sentence of in the order of six years.

79. In respect of Count 1, I impose a non‑parole period of three years and three months, commencing on 20 January 2018 and expiring on 19 April 2021. The total term is six years, commencing on 20 January 2018 and expiring on 19 January 2024.

80. You will be eligible for consideration for release to parole on 19 April 2021.

81. The special circumstances found are those in my Remarks on Sentence.

82. I will make a recommendation in the strongest possible terms that the offender be considered for the methadone program whilst in custody.

83. The allowance for special circumstances is fifteen months. The non‑parole period in his case is in the order of 54.16 percent of the total term.

JAMES MELOURY

84. In relation to Mr Meloury, I confirm the convictions entered on 14 August 2019. In respect of the statutory alternative to Count 3, I impose a non‑parole period of two years and nine months, commencing on 17 October 2017 and expiring on 16 July 2020. The total term is four years and nine months, commencing on 17 October 2017 and expiring on 16 July 2022.

85. In respect of Count 1, I impose a non‑parole period of ten months to be served concurrently, commencing on 17 October 2017 and expiring on 16 August 2018. The total term is one year and eight months, commencing on 17 October 2017 and expiring on 16 June 2019.

84. You will be eligible for consideration for release to parole on 16 July 2020.

85. The special circumstances are those noted in my Remarks on Sentence. The allowance for special circumstances in relation to this sentence is nine months and three weeks. The non‑parole period is in the order of 57.89 percent of the total term.

DALE JOHNATHAN GREEN

88. In relation to Mr Green, I confirm the convictions entered on 14 August 2019. In respect of Count 3, I impose a non‑parole period of three years and nine months, commencing on 25 November 2017 and expiring on 24 August 2021. The total term is six years and six months, commencing on 25 November 2017 and expiring on 24 May 2024.

89. In respect of Count 2, I impose a non‑parole period of one year and three months to be served concurrently, commencing on 25 November 2017 and expiring on 24 February 2019. The total term is two years and six months, commencing on 25 November 2017 and expiring on 24 May 2020.

90. You will be eligible for consideration for release to parole on 24 August 2021.

91. The special circumstances are those noted in my Remarks on Sentence.

92. I make a recommendation in the strongest possible terms that the offender be considered for the methadone program whilst in custody.

93. I further recommend in the strongest possible terms consideration be given to the reduction in the offender’s E Classification, that classification having arisen whilst the offender was a juvenile.

94. The allowance of special circumstances is 13.5 months. The non‑parole period is 57.69 percent of the total term.

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Decision last updated: 06 July 2020