R v Murdoch

[2023] NSWSC 786

Supreme Court

New South Wales

Medium Neutral Citation:

R v Murdoch [2023] NSWSC 786

Hearing dates:

30 June 2023

Date of orders:

07 July 2023

Decision date:

07 July 2023

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.

(2) The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to a fixed term of imprisonment of 3 years commencing on 4 June 2020 and expiring on 3 June 2023.

Catchwords:

CRIME – Sentence – Enter dwelling with intent to intimidate in company – Offender found guilty after trial – Relative youth of offender – Parity not significant consideration in the circumstances – Prospects of rehabilitation

Legislation Cited:

Bail Act 2013 (NSW), s 49

Children (Criminal Proceedings) Act 1987 (NSW), s 15

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)-(3), 44, 45, Pt 3 Div 2

Crimes Act 1900 (NSW), ss 111(2

Criminal Procedure Act 1986 (NSW), ss 166, 167(1)(a)

Cases Cited:

Carreno v R [2023] NSWCCA 20

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Howard v R [2019] NSWCCA 109

Martinez v The Queen [2022] NSWCCA 12

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category:

Sentence

Parties:

Rex (Crown)
Travis James Murdoch (Offender)

Representation:

Counsel:
B Hatfield with A Isaacs (Crown)
N S Carroll (Offender)

Solicitors:
Officer of Director of Public Prosecutions (Crown)
George Sten & Co (Offender)

File Number(s):

2020/00165265

Publication restriction:

Under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of, or any information identifying or likely to identify any participants who were involved in the offending and under the age of 18 years at the time of the offending must not be published or broadcast.

JUDGMENT

Introduction

1. On 11 April 2023, the offender, Travis James Murdoch, was found not guilty of each of the three counts on the indictment which were:

1. Count 1, assault with intent to rob being in company and armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW);

2. Count 2, murder contrary to s 18(1) of the Crimes Act; and

3. Count 3, entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of special aggravation, namely being in company and being armed with a dangerous weapon contrary to s 111(3) of the Crimes Act.

2. The offender was, however, found guilty of the statutory alternative to Count 3, entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act. Mr Murdoch now stands to be sentenced for that offence.

Maximum penalty

3. The maximum penalty for the offence of entering a dwelling with intent to intimidate whilst in company is imprisonment for 14 years. There is no standard non-parole period for this offence. The maximum penalty is a legislative guidepost which I have taken into account.

Back up offence

4. It can be noted at this point that Mr Murdoch was also charged with a back up offence, contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), of having his face disguised with intent to commit an indictable offence contrary to s 114(1)(c) of the Crimes Act. Since the offender was found guilty of the offence for which he is to be sentenced, and there are no circumstances which render it inappropriate to do so, the back up offence is dismissed pursuant to s 167(1)(a) of the Criminal Procedure Act.

Purposes of sentencing

5. In order to identify and assess the many factors relevant to the sentence to be imposed, I have had regard to the purposes of sentencing stated in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), which are:

“(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

The facts

6. For the purpose of determining the sentence, I must make findings of fact as to what occurred. ^[1] Any facts found must be consistent with the jury’s verdict but, where findings are not necessarily implicit in the jury’s verdict, the facts I find against the offender must be found beyond reasonable doubt but the facts I find in favour of the offender need only be found on the balance of probabilities. ^[2]

   1. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

   2. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [12]-[14] (Gleeson CJ, Gummow and Hayne JJ)

7. In the present case, the Crown has helpfully provided a document setting out what it contended were the facts proved at trial. Ms Carroll, who appeared for the offender, stated in her written submissions that those facts were not disputed.

8. Applying the principles referred to and having regard to the evidence as a whole as well as the facts as agreed between the parties, I find that the relevant facts may be summarised in the following way.

9. In 2020, Mr Kevin Kourtis, lived in a house in Langton Street, Riverstone, NSW. Ms McKenzie and her partner, Mr Sorenson, moved into the house in about March 2020. Between April and May 2020, Mr Kourtis’s girlfriend, Ms Howlett, stayed at the house on a number of occasions. At about this time, Mr Kourtis paid a friend to work on his truck by providing him with small quantities of methylamphetamine, or “ice”. Mr Kourtis and Mr Sorenson kept their drugs on a table in the garage of the house.

10. In the two months leading up to 23 May 2020, a young person, DPD, attended the house and had disagreements with Mr Kourtis. One disagreement was about the price of ice. At a later date, as a result of another disagreement, Mr Kourtis would not let DPD into the house.

11. On the night of 23 May 2020, DPD and two other young persons, DJD and SP, were at DJD’s house. On that same night, at around 11:01 pm, Mr Shillingsworth and the offender, Mr Murdoch, who had been at Mr Shillingsworth’s house, drove off in Mr Shillingsworth’s Silver Subaru.

12. On 24 May 2020, at 12:10 am, Mr Murdoch, who was still in the Silver Subaru, received a phone call from DPD which lasted about 70 seconds. At some time not long after 12:10 am, DPD, DJD and SP met the offender and Mr Shillingsworth at DJD’s house.

13. The offender, Mr Shillingsworth, DPD, DJD and SP all drove in the Silver Subaru to the streets near Mr Kourtis’s house. CCTV footage captured the Silver Subaru driving down one of the nearby streets without its headlights on.

14. After the Silver Subaru had been parked on a nearby street, at about 12:31 am, all five males got out of the car and walked down Langton Street and looked towards Mr Kourtis’s house. They all had the lower half of their faces covered. They gathered in a circle on the roadway outside the house for about 20 seconds before walking together down the driveway towards the front door at about 12:32 am. The front sensor light came on as they approached the front door. DPD was the first person to reach the front door and was holding a shortened .22 calibre 250 Remington savage model 110L repeating bolt action rifle in his right hand. SP was carrying a knife. The jury’s verdict requires me to find that the offender did not know about the rifle, which constituted a dangerous weapon, at this stage.

15. The five males gathered around the front door and one of them knocked on the door before proceeding to knock more loudly a second time. Mr Kourtis yelled “who is it?” and one of the males replied, “[i]t’s James, come on man let me in”. Mr Kourtis opened the door a fraction and then immediately tried to shut it again but some of the males pushed against the door, pushing Mr Kourtis backwards, knocking his phone out of his hand and onto the hallway floor in the process.

16. Mr Kourtis was physically forced down the hallway, past the loungeroom which was located immediately to the right, and into the kitchen at the end of the hallway. DPD was still carrying the rifle, whilst another male was carrying a 30 cm knife.

17. This male with the knife was not SP because he went into the lounge room by himself and confronted Ms Howlett who was sitting on a lounge in the loungeroom. SP stood over her, prevented her from calling the police and took about $200 from her wallet. SP remained in the loungeroom and did not enter the kitchen.

18. Whilst this was occurring in the loungeroom, Mr Kourtis was in the kitchen and one of the other four males in kitchen said, “where’s the stuff?”. Mr Kourtis was being physically assaulted, which caused two of his teeth to be knocked out and, at some stage, he was also stabbed a number of times by at least one of the four males in the kitchen.

19. The Crown conceded that it could not establish beyond reasonable doubt who stabbed Mr Kourtis.

20. DPD went upstairs with the offender into Ms McKenzie’s bedroom. She was inside the room. The offender was wearing a hat, a black coloured mask over his mouth which was tight fitting and appeared to be made of a wet-suit type material, and a hoodie. When he entered the room, DPD was carrying the rifle in both hands, but then dropped it down by his right side. Ms McKenzie said to DPD, “what are you doing” and he replied, “Kevin’s a dog. Kevin’s a dog. Kevin’s a dog.” The offender said to DPD, “we have to go”, walked past DPD and left the room. After Mr Murdoch left, DPD threatened Ms McKenzie with the gun and assaulted her. Then he went back downstairs.

21. Downstairs, Mr Shillingsworth approached Ms Howlett in the loungeroom and asked, “where’s the shit”. She said that she did not know what he was talking about, and he responded, “you better not be lying to me”. As this conversation was taking place, Ms Howlett heard the metal garage roller door open.

22. Mr Shillingsworth then took the phone out of Ms Howlett’s hand, threw it on the floor, stomped on it and threw it at the wall. He also kicked the TV. SP did not participate in this conduct, although he was in the loungeroom for the entire incident. Ms Howlett heard one of the males, who was not SP, say “we gotta go, the coppers are coming”. Mr Shillingsworth ran out of the house, stepping on Mr Kourtis’s phone as he was leaving which left a bloody shoe print on the phone, with the blood matching that of Mr Kourtis.

23. Mr Shillingsworth and SP went into the garage through the internal access door.

24. At some point DPD, who was now downstairs, was heard to say to Mr Kourtis, “wake up mate, wake up mate. Where’s the keys to the ATV? Where’s the keys to the quad?” Another of the males, not SP, yelled “Kev where are the bike keys”.

25. At approximately 12:36 am, the offender, Mr Shillingsworth, DJD and SP ran from the house. They had been in the house for a total of about five minutes. DPD remained inside. The offender was captured on CCTV running in a south easterly direction. Shortly after running from Mr Kourtis’s property, at around 12:37 am, SP walked back down the driveway and re-entered the garage. A short time later, DPD and SP left the premises together.

26. Once Ms Howlett could no longer hear any noises she went upstairs to check on Ms McKenzie. She was upstairs for a few minutes before she went back downstairs to check on Mr Kourtis who was lying on the kitchen floor. She then returned upstairs and told Ms McKenzie to phone the police and they both locked themselves in the upstairs bathroom until police arrived.

27. A neighbour, who lived on the same street, had seen the males enter and exit Mr Kourtis’s property. The neighbour contacted police between 12:32 and 12:33 am when he heard yelling from within the house. Police arrived at Langton Street shortly after 12.45 am.

28. Upon entering the house through the garage, police saw that in the loungeroom the television was smashed, there was a hole in the wall to the right of the television no bigger than a hand and a smashed black smartphone on the floor in the hallway. There was drug paraphernalia and tools scattered throughout the premises. In the kitchen, police located Mr Kourtis on the floor. There were blood smears and debris on the kitchen floor and part of the dining room area. There were broken plates and a hole in the gyprock. There were blood spatters on the kitchen floor, across benches, cupboards and also a tooth on the ground and a smashed plate. Police and ambulance personnel tried to revive Mr Kourtis but he died in the kitchen.

29. After hearing police arrive, Ms Howlett and Ms McKenzie went downstairs. Ms McKenzie identified DPD as one of those involved.

30. DPD and SP were apprehended by the Dog Squad about 1.3 km from Mr Kourtis’s house, within an hour of leaving the house, and were arrested.

31. Mr Murdoch and DJD left the house together and Mr Murdoch borrowed DJD’s telephone to call his partner and arranged for her to pick them up from Quakers Hill in a car driven by her friend. A short while later, DJD was dropped off and returned to his house in Quakers Hill. Mr Murdoch, his partner and her friend went to the friend’s house.

32. Later in the morning of 24 May 2020, the rifle which had been carried by DPD was found on a street in Riverstone.

33. DJD was arrested on 28 May 2020.

34. On 3 June 2020, a warrant was issued for the offender’s arrest and a media release was posted on the Police Facebook page.

35. On 4 June 2020, Mr Murdoch handed himself into police at Blacktown Police Station, where he was charged and placed into custody. He remained in custody until he was released on bail at the conclusion of his sentence hearing on 30 June 2023, a total of 3 years and 26 days.

36. Mr Murdoch’s finger prints were located on the exterior and interior of the front door of Mr Kourtis’s house as well as on a vertical pole of the staircase landing inside the house.

Objective seriousness

37. The offender was a participant, with four other young males, in a violent home invasion. They induced Mr Kourtis to open the front door of his house by deception, with one of them claiming to be a person called James, which was false. When Mr Kourtis attempted to shut the door to keep them out, they physically forced their way in, and in so, doing Mr Murdoch left his finger prints on the door. They entered against Mr Kourtis’s will, in the very early hours of the morning, while it was dark. Mr Murdoch, like the others, had his face at least partially covered or disguised with a mask and he was wearing long pants, a hat and a hoodie. Mr Murdoch and three of the other males forced Mr Kourtis by physical violence down the hallway and into the kitchen. Mr Murdoch’s presence with the other four young males and their actions at the front door and in the house had the effect of terrifying and intimidating Mr Kourtis and the two other residents.

38. As to the attack on Mr Kourtis, the Crown acknowledged, however, that it had not proved beyond reasonable doubt that Mr Murdoch had taken part in stabbing Mr Kourtis and, similarly, Ms Carroll accepted that it had not been established on the balance of probabilities that he had not been involved. In my view, both of these positions were correct and, accordingly, I proceeded to sentence Mr Murdoch on the basis that it was not known whether or not he was physically involved in the attack. ^[3] In addition, as part of the home invasion, Ms Howlett was robbed in the lounge room by SP and had her telephone smashed by Mr Shillingsworth. Ms McKenzie was confronted in her bedroom by DPD and the offender and she was assaulted by DPD after the offender had left the room.

    3. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (French CJ, Bell, Keane and Nettle JJ); Martinez v The Queen [2022] NSWCCA 12 at [51] (Beech-Jones CJ at CL, Macfarlan and Brereton JJA agreeing).

39. The Crown submitted that the offending involved targeting Mr Kourtis’s premises and therefore involved a degree of planning greater than what might be inherent in the offence for which the offender is to be sentenced. Thus, it was contended that the aggravating factor in s 21A(2)(n) of the Sentencing Procedure Act had been made out. I do not accept this submission. I was not satisfied beyond reasonable doubt that the offender’s involvement in the offending commenced to any significant extent prior to the telephone call with DPD at 12:10 am on 24 May 2020. As a result of the offender being in the car with Mr Shillingsworth and the other three males, travelling to the residence and, like the other participants, having his face partially covered, standing in a circle with the others outside the house before barging in, there must have been some degree of planning and organisation involved. Nonetheless, I do not accept that this level of planning was greater than what was inherent in a joint criminal enterprise to commit the offence of entering a dwelling house with intent to intimidate in company.

40. Since the offence for which the offender is to be sentenced involved entering a dwelling, it was inherent in that offence that it occurred in the home of the victim or some other person. Thus, the aggravating factor in s 21A(2)(eb) of the Sentencing Procedure Act was not applicable in the present case.

41. The Crown submitted in effect that this was an objectively serious example of the offence. Counsel for the offender agreed and contended that “his role and participation is arguably just below the middle of the range, for offences of this kind”.

42. In my view, in all the circumstances relevant to the assessment of objective seriousness of the offender’s conduct in relation to entering a dwelling with intent to commit a serious indictable offence in company, his offending fell at the lower end of the mid-range for offences of this kind.

The offender’s subjective case

43. The material in relation to the offender’s subjective case consisted of:

1. an affidavit from the offender of 30 June 2023; and

2. a letter from the offender’s mother, Natalie Murdoch, of 29 June 2023.

44. I have had regard to this material.

Background and circumstances

45. The offender is now 24 years of age and was 20 at the time of the offending. He has two brothers and a sister. He has contact with, and support from, his mother but does not have contact with his father. He gave evidence that he was raised by his grandparents, who died in the 12 months before the offending for which he is to be sentenced. His mother said that their deaths affected Mr Murdoch immensely and after that time he started “hanging with the wrong crowd”.

46. The offender has been in a relationship with his partner, Ms Salas-Contreras, for the last seven years and prior to being in custody he lived with her in their own home, although they stayed with his mother on some weekends. His partner and his mother have supported him throughout his time in custody and, after Covid-19 restrictions eased, have visited the offender every week. He also kept in touch with them by telephone. On release, Mr Murdoch intends to resume living with his partner.

47. His mother reported that the offender had a good work ethic, having started part-time work at Swimart when he was 12. Mr Murdoch is a scaffolder by trade and has his basic scaffolding, working in confined spaces and working at heights tickets. He was working for his partner’s father’s scaffolding business before being taken into custody. He intends to return to this work when released.

45. In custody, Mr Murdoch has worked where employment was available, including in heavy metal and in media promotion while at Macquarie Correctional Centre.

46. The offender gave evidence that before he was arrested he was using ice “maybe a few times per week” but it was getting worse. While in custody, he relapsed into drug use once and this was reflected in his punishment history in custody which recorded punishment for possession of a prohibited drug in September 2022. Mr Murdoch expressed a desire to remain drug free after his release, and is willing to participate in programs for that purpose.

Custodial history

50. In addition to the one occurrence of drug possession, the offender’s custodial punishment history included three incidents of violence, which the offender attributed to daily life in maximum security prisons where “fighting happens all the time”, often over trivial matters and the need to defend himself. However, the offender’s history of employment while in custody and his completion of a Certificate III in Cleaning Operations and a Certificate I in Information, Digital Media and Technology, as well as completion of a Working Safely course should be weighed against this. In addition, Mr Murdoch participated in the Macquarie Marathon supporting the McGrath Foundation while in custody.

Remorse

51. The offender gave evidence that he accepted that he should not have entered the house on that night with the others. He stated:

“I regret my actions. I am sorry to the victim, his family and friends, and the 2 ladies in the house, for everything that happened that night.”

52. The evidence from his mother included her understanding that the offender took full responsibility for his choices and actions and had expressed to her much regret and remorse.

53. The Crown submitted that the offender’s expression of remorse was limited and late and should not impact the sentence in any significant way.

54. In all the circumstances, I accept that the offender has shown a degree of remorse by taking some responsibility for his actions and, in effect, acknowledging the harm done to those affected. I have taken this into account as a mitigating factor, albeit only to a quite limited extent, given the timing and the content of his expressions of regret and sorrow.

Prospects of rehabilitation

55. as to the offender’s prospects of rehabilitation, the evidence established that:

1. this was the offender’s first time in custody;

2. he is relatively young;

3. he has significant support from this mother and partner with whom he has been in a long term, apparently stable, relationship; and

4. he has trade tickets and a demonstrated willingness to work as well as employment available with, and support from, his partner’s father.

56. In my view, the offender’s prospects of rehabilitation depend to a large extent on his ability to remain abstinent from illicit drugs and free from the influence of antisocial peers. Given his past work history and significant family support, however, I am prepared to find that the offender has good prospects of rehabilitation and the sentence should be set so as to take this into account in his favour.

Criminal history

57. The offender’s criminal history included an offence of reckless wounding in company when he was 17 years old^[4] as well as offences of having custody of an offensive implement in a public place and destroying or damaging property when he was 18 years old. In addition, his record included various driving offences committed in 2018 and 2020. Nonetheless, I accept that it is appropriate, as Ms Carroll who appeared for the offender submitted, to find that his criminal history is limited and does not amount to a significant record. While his record deprives him of a finding of good character and means that he cannot be afforded the degree leniency that might otherwise apply if he had had no prior convictions, I accept that he is entitled to a limited measure of leniency in all the circumstances.

    4. The operation of s 15 of the Children (Criminal Proceedings) Act 1987 (NSW) was not raised by either party in relation to that offence and, as I understood it, this was because the offender committed the driving offences on 21 April 2020, which were within the period of two years prior to the commencement of proceedings for the offence for which he is to be sentenced.

Youth

58. The offender was 20 at the time of the offending. Although he was over 18, it does not follow that his relative youth is not to be taken into account. In Howard v R [2019] NSWCCA 109 Fullerton J (Macfarlan JA agreeing) noted at [13]:

“It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s.”

59. The law recognises the potential for the cognitive, emotional and physiological immaturity of a young person to contribute to their breach of the law. ^[5] In my view, the offender’s emotional immaturity and poor impulse control as a result of his age probably contributed to his offending in this case. In recognition of the capacity for young people to reform and to develop their capacity to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation.

    5. See the helpful summary of the applicable principles by McNaughton J (Button J and R A Hulme AJ agreeing) in Carreno v R [2023] NSWCCA 20 at [69]-[70].

60. In the present case, I have taken all of this into account as mitigating, to an extent, the sentence to be imposed and so that the offender’s prospects of rehabilitation are preserved or enhanced.

Parity

61. As was noted at the outset, the offender was found not guilty of each of the counts on the indictment, including the most serious charge of murder, and was only found guilty of the less serious alternative offence of entering a dwelling with intent to intimidate in company. He is not to be sentenced for those more serious offences and I have been careful only to sentence the offender for the offence of which the jury found him guilty. Mr Murdoch is thus in a position which is significantly different from that of the three other males involved in the home invasion, SP, DPD and Mr Shillingsworth, who pleaded guilty to the offence of constructive murder and who have been sentenced on that basis.

62. Ms Carroll, on behalf of the offender, submitted that the parity principle had no role to play, and the Crown submitted that it did not have a significant role to play, in determining the sentence in Mr Murdoch’s case.

63. The parity principle, which is a norm of equal justice and an essential aspect of the rule of law, requires like offenders to be treated in a like manner and different sentences to be imposed upon like offenders to reflect their different degrees of culpability and any different circumstances. ^[6] Furthermore, the application of this principle is not limited to situations where different persons involved in the same criminal activity or enterprise are to be sentenced for the same offence. ^[7] Nonetheless, given the circumstances of the present case and the great disparity in the seriousness of the offence for which Mr Murdoch is to be sentenced and the seriousness of the offence of murder for which the three other offenders have been sentenced, I accept the Crown’s submission that, in this case, application of the parity principle in respect of the sentences imposed on the three offenders who pleaded guilty to murder has no significant impact on the sentence to be imposed on Mr Murdoch.

    6. Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28] (French CJ, Crennan and Kiefel JJ).

    7. Green at [30]

Time spent in custody and conditions in custody

64. The offender was arrested and entered custody on 4 June 2020 and spent 3 years and 26 days in custody solely as a result of the offending for which he is to be sentenced. At the end of the sentence hearing in this matter on 30 June 2023, a release application was made under s 49 of the Bail Act 2013 (NSW) and I ordered that the offender be released on bail, for the reasons given ex tempore at that time.

65. In order to take the period of 3 years and 26 days spent in custody into account, the sentence to be imposed should, in the circumstances of this case, commence on 4 June 2020.

66. Mr Murdoch gave evidence of the effect of the restrictions put in place as a result of the Covid-19 pandemic by way of half day and full day lockdowns in custody from February 2021 to September 2022. In addition, for one and a half years, there were no in person visits. I have taken into account the additional hardship suffered by the offender because of the restrictions imposed as a result of the pandemic in mitigation of his sentence.

Victim impact statement

67. A victim impact statement prepared by Ms Ulaan McKenzie and was tendered by the Crown without objection from the offender. ^[8] Ms McKenzie referred to the impact of the home invasion upon her, including the nightmares it has caused and her living in fear for her own safety and that of her family. I have considered this material.

    8. In accordance with Pt 3 Div 2 of the Sentencing Procedure Act.

Imprisonment

68. The Crown submitted that, in the circumstances of the present case, no penalty other than imprisonment was appropriate and Ms Carroll, on behalf of the offender, agreed that a full-time custodial sentence was warranted.

69. Having considered all possible alternatives, I was satisfied that no penalty other than imprisonment was appropriate.

Comparable cases

70. Ms Carroll also provided extracts from the statistics published by the Judicial Information Research System (JIRS) concerning aggregate/effective sentences imposed for offences contrary to s 111(2) of the Crimes Act. These statistics could be summarised as showing that, where a sentence of imprisonment was imposed, more than 70% were three years or less.

71. In addition, a table of four Court of Criminal Appeal cases and two District Court cases dealing with sentences imposed for an offence contrary to s 111(2) was provided. The sentences for that offence ranged between 4 years (after a discount of 10% for a plea of guilty) and 2 years and 3 months (after a discount of 25% for a plea of guilty). I accept Ms Carroll’s submission that the sentences in those cases were broadly consistent with the JIRS statistics.

72. I have taken into account the statistics and the cases referred to. Nevertheless, the extent of any assistance and guidance provided by such material is necessarily limited because of the inevitable differences between what occurred in those cases and the circumstances of those offenders, and the facts and circumstances in the present case. Ultimately, I was required to exercise my own sentencing discretion after having had proper regard to the relevant sentencing principles to which I have referred and after having considered the salient features of the present case.

Sentence

73. Given the nature of the offending contrary to s 111(2) of the Crimes Act, being a violent home invasion, general deterrence should be accorded some significant weight in determining the sentence, notwithstanding the offender’s circumstances. Similarly, personal deterrence has a substantial role to play in the sentence to be imposed. Nonetheless, the offender’s circumstances did, in my view, justify a conclusion that his moral culpability and the need for specific deterrence were reduced to a limited extent, and his suitability as a vehicle for general deterrence was not of the highest order.

74. Having regard to these purposes of sentencing as well as the others to which I referred at the beginning of these remarks, the objective seriousness and circumstances of the offending, the subjective case of the offender and the other relevant principles and considerations, in my view, the appropriate term of imprisonment for the offence of entering a dwelling house with intent to intimidate while in company contrary to s 111(2) of the Crimes Act is 3 years commencing on 4 June 2020 and expiring on 3 June 2023.

75. Since the sentence expired on 3 June 2023 and the term is less than the time the offender has spent in custody attributable to the offending, it appears to me to be appropriate not to set a non-parole period. ^[9]

    9. Under s 45 of the Sentencing Procedure Act, the Court may decline to set a non-parole period despite the terms of the s 44 of that Act.

Orders

76. Accordingly, the Court orders as follows:

1. Pursuant to s 167(1)(a) of the Criminal Procedure Act 1986 (NSW), the back up offence of the offender having his face disguised contrary to s 114(1)(c) of the Crimes Act 1900 (NSW) is dismissed.

2. The offender is sentenced for the offence of entering a dwelling house with intent to commit a serious indictable offence, namely intimidation, in circumstances of aggravation, namely being in company, contrary to s 111(2) of the Crimes Act 1900 (NSW) to a fixed term of imprisonment of 3 years commencing on 4 June 2020 and expiring on 3 June 2023.

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Endnotes

Decision last updated: 11 July 2023