R v Michael John CHRISTIAN

[2009] NSWDC 227

CITATION:	R v Michael John CHRISTIAN [2009] NSWDC 227
JUDGMENT DATE:	31 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 3 years. Balance of term 2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - aggravated break and enter and commit serious indictable offence - submission of provocation as mitigating feature - significant prior record - offence committed while on conditional liberty - submission of good prospects of rehabilitation - application of standard non-parole period
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 21A, s 44, s 54B(2)
PARTIES:	Regina Michael John Christian
FILE NUMBER(S):	2008/11/1528
COUNSEL:	Mr B Hancock (def)
SOLICITORS:	Director of Public Prosecutions

JUDGMENT
1. After nine o’clock at night on 14 February 2008 James Munro was minding his own business in his home at 72 Weir Road, Warragamba. He was watching TV. He heard a voice, which I find was Michael John Christian’s voice, saying, “Get the fuck outside.” A man he did not recognise was at the side window. The lounge room that he was occupying did not have its lights on.

2. The next thing that he heard were repeated kicks or thuds on the outside of the wooden front door with somebody leaning against the front door. He tried to stop it being opened, but he was unsuccessful. There was a security screen door outside. What happened was that the front door was eventually kicked in and fell on to the lounge room floor area. Seconds later somebody sprayed a kind of irritating spray into Mr Munro’s eyes, which caused a burning sensation and temporarily blinded him. Whilst he was in that state he was attacked a number of times on the back of his neck with some sort of object.

3. Michael John Christian was charged with being one of the two persons who broke into Mr Munro’s house on that night and inflicted that assault upon him. The charge was laid under s 112(2) of the Crimes Act 1900. The charge is aggravated break and enter and commit a serious indictable offence. It carries a maximum of twenty years imprisonment and a standard non-parole period of five years. Mr Christian pleaded not guilty to the charge and came on for trial before me. The trial commenced on 12 May 2009 and concluded on 19 May 2009 with the jury finding him guilty of the offence.

4. If I did not do so at the time, I now convict Mr Christian of the offence of aggravated break and enter and commit serious indictable offence.

5. What is happening now is that I am about to sentence Mr Christian for that offence and I need to give my reasons for the sentence which I am about to impose.

6. The Court of Criminal Appeal in this State has made it clear that whenever a judicial officer is sentencing someone the most important commencement point is to assess the objective seriousness of the offence itself. Both Ms Roberts who appeared as the prosecutor in the trial and on sentence and Mr Hancock who appeared as counsel for Mr Christian at the trial and in the sentence proceedings, have addressed this issue of the objective seriousness of the offence.

7. One feature of the offence needs to be described in order to put the offence into context and also because Mr Hancock makes a submission in mitigation based upon that feature. Mr Munro, the victim of the crime, is a half-brother of Mr Christian. Mr Christian’s sister - and half-sister of Mr Munro - is a person named Melissa Christian, who also lives in Warragamba. She has a teenage son called Blake. In addition she has custody of Mr Christian’s young daughter. A couple of days before the offence there was an incident outside the house where the offence occurred between Mr Munro’s landlady’s teenage daughter and Blake, who is Melissa Christian’s son.

8. The incident resulted in Mr James Munro going outside and shoving Blake and asking him to leave. Blake stumbled backwards slightly as a result of the shove. Later on James Munro was driving through Warragamba when he was confronted by Melissa Christian who punched him a number of times. Mr Munro reported this to the police, but later indicated that he did not wish to proceed any further with his complaint.

9. Mr Hancock submits that that circumstance amounts to provocation and therefore qualifies as a mitigating feature under s 21A of the Crimes (Sentencing Procedure) Act 1999. He refers to the words uttered to the victim “Get the fuck outside” which were said, according to Mr Munro, by his client. He refers also to his client wanting to know what happened about Blake and his daughter, and his client having said, “You want to mess with Melissa and their sons and my daughter.” It is relevant to observe that a reason that Mr Christian’s sister is looking after his child is that that is under an arrangement with the Department of Community Services. Hence on Mr Hancock’s case the incident may have resulted in that Department looking unfavourably upon Mr Christian and thereby affecting access to his daughter.

10. As Mr Hancock submitted, the events “may provide some explanation of how it came about; the context involved some element of provocation”. On the other hand Ms Roberts argues that it was not until after the relevant time that Mr Christian heard about the events which are said to have amounted to the provocation. In any event she argues that the provocation by Mr Munro amounted to no more than shoving Blake when he went outside to get involved with the altercation between Blake and his landlady’s daughter.

11. I am not satisfied on the balance of probabilities that what occurred, which I have described in brief terms, amounted to provocation for the offence as that expression is used as a mitigating factor in s 21A of the Crimes (Sentencing Procedure) Act. In so finding I accept Ms Roberts’ submissions and I also regard the event as too slight in seriousness and too removed in time to amount to sufficient evidence to be satisfied that it was provocation.

12. Ms Roberts argues that I should find that the offence fell within the middle of the range of objective seriousness for this kind of offending behaviour. She acknowledged that it would fall at the lower end of that mid range. She points to factors about the offending behaviour which support that conclusion. The first was that the offence involved violence. That is not to double count that factor so far as the crime is concerned; her point is that this kind of offence can vary in seriousness. One of the factors which can bring about a variation is the nature of the serious indictable offence committed by the offender. An offence of violence should be regarded as more serious, for example, than an offence of stealing. I accept that submission.

13. Another aggravating feature which I accept was that one of the offenders was armed with some kind of substance which, like pepper spray - and indeed it might have been pepper spray - brought about irritation when sprayed upon the victim’s eyes and also blinded him. In addition some kind of implement was used to assault Mr Munro whilst he was indoors and blinded by the spray. The offence was also a fairly shocking instance of this kind of crime, in that the offenders literally broke down the door of the victim’s home, despite the victim’s efforts to withhold the blows being made to the door. He was also assaulted with the implement when he was completely defenceless and temporarily blinded. I also accept that Mr Christian was the leader of the two men, based upon the evidence of Mr Munro and a neighbour.

14. Mr Hancock on the other hand highlights the nature of the actual bodily harm which was inflicted. He points to the medical evidence which found that there was some blood in one of Mr Munro’s nostrils and some tenderness over his face with some markings. He was treated with saline solution and given analgesia, and no follow-up was required. Mr Hancock also points to the fact that the offence itself was of short duration. I accept both those submissions.

15. To my mind given the features described by Ms Roberts, the offence does fall within the middle of the range of objective seriousness, but I accept her submission that it falls within the lower end of that range.

16. Ms Roberts points to other features which are aggravating and for me to take into account in sentencing Mr Christian, but are not directly connected with the objective seriousness of the offence.

17. Mr Christian has a criminal record. It is not a good criminal record. In fact it is a bad criminal record because it contains one serious criminal offence, namely an armed robbery for which he was sentenced in this court in 2003 with a period of fulltime imprisonment. He also has a record for a further conviction for armed robbery for which he was sentenced in this court in 1999 to a Community Service Order. That was after an appeal from a Control Order imposed when Mr Christian was a child at the Sutherland Children’s Court. He has a conviction for possessing housebreaking implements in 2006.

18. I regard this record as significant and one which requires me to take into account, so far as the protection of the community is concerned, the need to deter Mr Christian from committing further serious offences.

19. In addition, the offence was committed whilst Mr Christian was on conditional liberty. Courts regard it as seriously aggravating that an offender who has been given bail or a bond in order to be at large or pursue their rehabilitation, use the opportunity instead to commit further crimes. This is such an example and in my opinion it is an aggravating feature which I need to take into account in sentencing Mr Christian.

20. Mr Hancock draws my attention to aspects of his client’s personal background which are set out in a helpful presentence report prepared by a Probation and Parole officer on 16 July 2009. He had a disrupted childhood which involved him and one of his sisters being placed in State care when his mother was reportedly unable to care for her children. He was later made a ward of the State when he was two years old.

21. The death of his sister, reportedly the result of a drug overdose, has made a significant impact on Mr Christian himself. He currently maintains some contact with his birth mother. He has a relationship with two children, daughters now aged three and nearly one year. Both of these children, as I have said, have been the subject of intervention by the Department of Community Services.

22. Mr Christian left school when he completed his School Certificate and worked part time for some years before taking up an apprenticeship as a heavy vehicle mechanic, but did not complete it because of his arrest for other matters. He has undertaken various positions since then, usually involving manual labour and was involved in a serious car accident in 2002.

23. He has serious substance abuse issues, having commenced using cannabis almost at the same time that he started his secondary schooling. He graduated to using amphetamines, but has not used them since his most recent release from custody before being arrested for this offence. Since being in custody he has not come to adverse notice. The author of the presentence report was of the view that he would benefit from an alcohol and other drug assessment and generalised counselling to support his reported grief and loss issues.

24. That presentence report is supplemented by exhibit S1 tendered by Mr Hancock, a report from a clinical psychologist, Jessica Santos dated 5 July 2009. She also recommends that Mr Christian continue to address his substance abuse after he has been released into the community, because that is where he will be, as she said, most at risk. She also thought that he would benefit from psychological intervention to address his emotional disturbance and substance abuse.

25. I have read a letter from his partner, Lyndall Robson, which draws my attention to her need for Mr Christian to be with her in order to pursue their custody and relationship with their two children as well as a reference from his mother, Beverley Christian. I have taken those documents into account, along with employment which he has undertaken whilst in custody.

26. There was a further submission made by Mr Hancock which I have not yet referred to. His submission was that the offence involved limited planning and that that should be regarded as a mitigating factor. For the reasons advanced by Ms Roberts, I reject that submission. In order to be a mitigating factor under s 21A(3)(b) I need to be satisfied on the balance of probabilities that the offence was not part of a planned or organised criminal activity. In my opinion I can hardly so find when the evidence is that the offender turned up in company and armed - either by himself or with his companion - with the two implements which I have referred to and uttered words of knowledge about Mr Munro. I reject Mr Hancock’s submission.

27. Mr Hancock further submits that his client’s prospects of rehabilitation are good. He points to the employment his client has undertaken since being in custody and notes that his client has sought counselling from a prison psychologist and is making efforts to retain contact with his children. He also pointed out that his client had not re-offended between the date of the offence and the time when he was remanded in custody after being found guilty by the jury. Indeed he had obtained employment within that time.

28. I need to address the question whether the standard non-parole period applies in this case. Section 54B(2) of the Crimes (Sentencing Procedure) Act provides that “the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.” Subsection (3) goes on to provide that the “reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A.”

29. Mr Hancock points to the provision contained in s 21A(3)(a) of the Crimes (Sentencing Procedure) Act and argues that the “injury, emotional harm, loss or damage caused by the offence was not substantial”. I am satisfied that that submission is correct. That is consistent with the evidence of the nature of the treatment administered to Mr Munro and the fact that there was no requirement for any follow up. For that reason I propose to set a non-parole period which is shorter than the standard non-parole period.

30. My attention has been drawn to statistics produced by the Judicial Commission of New South Wales both as to the terms of sentence and to non-parole periods in respect of this offence and I have taken those statistics into account insofar as they can be of assistance, bearing in mind that the nature of the offending behaviour under this offence can vary greatly.

31. Bearing in mind the various features and various matters which I have referred to, I regard an overall sentence of five years imprisonment as appropriate for this offence committed by Mr Christian.

32. Mr Hancock submits that the standard ratio between the non-parole period and the head sentence for a sentence - which is normally three quarters - should be varied in his client’s favour under s 44 of the Crimes (Sentencing Procedure) Act because there are special circumstances for the balance of the term of the sentence to exceed one third of the non-parole period. He submits that those special circumstances are the need for an extended parole period to assist his client overcome his substance abuse and to develop the relationship with his partner and children. He points to the fact that his client is undergoing some psychological assistance and that he was employed before going into custody for this offence and has undertaken employment in the prison system as well as commencing medication. He would benefit, Mr Hancock says, from an extended parole period to assist that rehabilitation.

33. I propose to accept that submission and to alter the ratio to some extent. I regard an appropriate non-parole period in this case as three years. I set a non-parole period for the sentence of three years from 19 May 2009 to 18 May 2012. The balance of the term will be two years from 19 May 2012 to 18 May 2014.
Now this is not a matter where I can order his release on parole, because it’s more than three years. Am I right in that? Section 55 I think or am I wrong?

HANCOCK: I think your Honour’s right. Unfortunately I don’t have the provision in front of me.
HIS HONOUR: No, three years or less. So I don’t make an order directing his release on parole.
HANCOCK: Sounds right to me your Honour.
HIS HONOUR: Sorry, three things. First any factual errors or matters that need to be correct in my remarks on sentence?
HANCOCK: I think there was one thing your Honour, but I think your Honour corrected it on the way through.
HIS HONOUR: All right.
HANCOCK: At one stage your Honour referred to Mr Christian’s landlady’s daughter being involved in a fight with Blake, but then when you next referred to it, your Honour referred to it as Mr Munro’s landlady’s daughter.
HIS HONOUR: As Mr Munro’s?
HANCOCK: Landlady’s daughter being involved. She wasn’t the principal party, but your Honour referred to her. I don’t think that’s a source of any--
HIS HONOUR: There was some altercation between her and Blake and then the physical altercation was between Mr Munro and Blake.
HANCOCK: Yes your Honour stated all those facts correctly.
HIS HONOUR: Thanks Mr Hancock. Ms Roberts?
ROBERTS: No your Honour.
HIS HONOUR: The second thins is whether the maths are correct, which I’ve pointed out.
HANCOCK: Yes your Honour.
ROBERTS: Yes your Honour.
HIS HONOUR: Okay and the third thing is whether I should recommend to the Parole Authority any conditions of parole or not or do I leave it to the Parole Authority? What do you want to do?
HANCOCK: The only thought I have your Honour is that it’s some years away, but if your Honour were to make recommendations then, they wouldn’t - I would say be directed towards efforts towards rehabilitation; that is accepting counselling.
HIS HONOUR: Counselling and drug and alcohol.
HANCOCK: Drug and alcohol assistance your Honour, yes.
HIS HONOUR: What about - I was going to say the psychological report accompanying him, but once again it’s a long way away, isn't it?
HANCOCK: Yes.
HIS HONOUR: And I don’t have a clean copy of the psychological report. I could leave that up to you and your instructing solicitor, if you wanted to forward that to the Department of Corrective Services I could indicate that that would be appropriate if you wanted to do it and if you did, then it can be taken into account in his assessment.
HANCOCK: I think the Department would probably have access through - by means of the court record in any case your Honour.
HIS HONOUR: That might be right. I just don’t know the answer to that. Presumably they would have access to the presentence report, but I’m not sure about your detailed psychological report.
HANCOCK: Certainly we can forward it to the Department, yes your Honour.
HIS HONOUR: Do that. Ms Roberts?
ROBERTS: Your Honour I don’t wish to be heard, thank you.

34. I recommend that when the Parole Authority comes to consider Mr Christian’s parole that it give consideration to conditions which will support his efforts of rehabilitation with particular emphasis on psychological counselling and drug and alcohol rehabilitation. I indicate that I have recommended that a clean copy of exhibit S1, being the psychologist’s report of Ms Santo dated 5 July 2009, may be forwarded to the Department of Corrective Services by Mr Hancock’s instructing solicitors. Anything else?

35. Mr Christian I have got to explain this to you, but it is probably fairly straight forward. You have got five years for the reasons that I outlined. It was a serious offence, but on the other hand, in the middle of the range, but towards the lower end. I have taken into account what Mr Hancock has said regarding your prospects of rehabilitation and so instead of a non-parole period of three quarters of five years, which would be forty-five months, I’ve reduced that to three years or thirty-six months.

36. You will be eligible for parole on 18 May 2012. That is when the Parole Authority may consider your eligibility. Whether you get parole or not is a matter for them and not for me. Once you get parole you are still under sentence as you know and your sentence will finally expire on 18 May 2014.

37. I have recommended, as you heard, that the Parole Authority take into account, once you are released on parole, the support you will need for your continuing rehabilitation with psychological support and drug and alcohol support. Do you understand that?

OFFENDER: Yes.

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