R v Ngoma

[2021] NSWDC 462

District Court

New South Wales

Medium Neutral Citation:

R v NGOMA [2021] NSWDC 462

Hearing dates:

6 September 2021

Date of orders:

9 September 2021

Decision date:

09 September 2021

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate sentence of 4 years and 3 months with a non parole period of 2 years and 6 months.

Catchwords:

CRIMES – common assault - aggravated break and enter and commit serious indictable offence of intimidation - causal connection between mental illness and the offending - intensive and extensive supervision to ensure offender insight into his illness and the need to be compliant with medication – drug use – COVID-19 effect on custody – accumulation of sentences

Legislation Cited:

Crimes Act, 1900

Crimes (Domestic and Personal Violence) Act, 2007

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

DPP (Cth) v De La Rosa (2010) NSWLR 1

Hunter v R [2011] NSWCCA 141

Mbele v R [2021] NSWCCA 182

McCullough [2009] NSWCCA 94

Muldrock v The Queen [2011] HCA 39

Tepania v R [2018] NSWCCA247

The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002, (2002) 56 NSWLR 146.

Valentine v R [2020] NSWCCA 116

Category:

Sentence

Parties:

Regina
Timothy NGOMA (Offender)

Representation:

Counsel:
Mr P Swaine (for the offender)

Solicitors:
Ms L Hanshaw (ODPP, for the Crown)

File Number(s):

2020/121958

Publication restriction:

None

REMARKS ON SENTENCE

1. The offender appears for sentence in respect of three substantive offences and three charges attaching to a Form 1 document. The substantive matters are one count of Common Assault contrary to s 61 of the Crimes Act, 1900, one count of Aggravated Break Enter and Commit Serious Indictable Offence, namely Intimidation, contrary to s 112(2) of the Crimes Act and one count of Recklessly Inflict Grievous Bodily Harm contrary to s 35(2) of the Crimes Act.

2. The offender was committed for trial from the Local Court at Wagga Wagga on 23 December 2020 but pleaded guilty at arraignment at the District Court at Wagga Wagga on 25 June 2020. The matter is an EAGP matter. The joint position of the parties is that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty. Given the relevant legislation I also agree that that is the appropriate discount in this matter.

3. The maximum penalty for the Common Assault is two years imprisonment. The maximum penalty for the charge contrary to s 112(2) of the Crimes Act is twenty years imprisonment and the maximum penalty for the charge contrary to s 35(2) of the Crimes Act is ten years imprisonment. In respect of the charge contrary to s 112(2) Parliament has specified a standard non-parole period of five years and in respect of the charge contrary to s 35(2) Parliament has specified a standard non-parole period of four years.

4. In dealing with the matters on the Form 1 document I will need to ensure that I apply and give effect to the principles enunciated in the decision of the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No. 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters (2002) 56 NSWLR 146. Given the nature and circumstances of the offending the matters on the Form 1 document must have some meaningful impact on the sentence to be imposed in respect of count 2 on the indictment.

Facts

5. The facts are before the court by way of a set of agreed facts. For the purpose of proceeding to sentence I find the following established beyond reasonable doubt.

6. At the time of the offending the offender lived at an address in Bruce Street, Tolland, a suburb of Wagga Wagga and was involved in an intermittent domestic relationship with Emma Todd for about two years. During the relationship Ms Todd maintained another unit in the same block.

7. On the evenings of 20 and 21 April 2020 Ms Todd stayed overnight at the offender's residence. At about 12 noon on 22 April Ms Todd was in bed in the offender's unit when the offender woke her. The offender was angry and yelling at Ms Todd and told her to leave the unit. She asked why and was told that she did not need an explanation. A verbal argument ensued for about five minutes while Ms Todd collected her belongings.

8. As Ms Todd attempted to exit the front door the offender hit her from behind. She asked if she could get past and ran to the door to get out. She went downstairs to the unit of Ms Jemma Molloy who was a friend of hers. The hit from behind constitutes the common assault which is count 1 on the indictment.

9. Ms Molloy is the occupier of a unit in the same block or complex. Katie Maloney and Jennifer Hay were staying with her. At about 9.30 am on Thursday 23 April 2020 Ms Todd, Ms Maloney and Ms Molloy were all in Ms Molloy's one bedroom unit. The offender knocked on the door and called out, "Where's Emma?" Ms Maloney could see that the door was shut. She told the offender to fuck off. The victims heard three loud bangs after which the offender broke through the front door of the premises and entered the unit. He caused visible damage to the frame of the brown timber door. The offender did not have permission to enter the unit.

10. Ms Molloy told the offender, "Please leave! We don't need this" to which the offender said, "you fucking cunts". The facts recite that all four women feared for their personal safety at that time. That fact is not surprising.

11. It is the breaking into the unit and conducting himself as he did that constitutes the offending contrary to s 112(2) of the Crimes Act.

12. The offender then committed the three common assaults which attach to the Form 1 document. For more abundant caution I make it plain that I do not take these assaults into account in determining the seriousness of count 2 on the indictment. Ms Todd retreated into the bedroom and the offender followed her. He caught up with her and struck her to the head region causing her to fall backwards into some cupboards. The offender struck Ms Maloney who was telling him to get out, striking her several times to the head and face region. Ms Hay said that she was going to call the police to which the offender said, "Call the cops, I don't give a fuck". Ms Hay ran out the back door yelling and screaming for assistance.

13. The offender also attempted to strike at Ms Molloy several times however she was able to evade him. Fearing for her safety Ms Molloy entered the bathroom and locked the door. The offender attempted to follow Ms Molloy into the bathroom. As he did this Ms Todd ran out of the unit, Ms Molloy opened the bathroom window and exited the unit via that window. She ran through the courtyard screaming for assistance.

14. Ms Maloney meanwhile witnessed the offender following Ms Molloy to the bathroom and attempted to intervene. At this point the offender again struck her several times and said, "Keep out of my business or I'll seriously hurt you…you don't know how bad I can hurt you. Do you understand?" Ms Maloney did not answer and the offender slapped her in the face and asked again, "Do you understand?" Ms Maloney described the offender as "going crazy" and "throwing punches at whoever he could get". She was hit multiple times.

15. Ms Todd was in the courtyard yelling for assistance. She was joined by Ms Molloy a short time later. Ms Malloy feared for the safety of Ms Todd and told her to run. Ms Todd ran to the front of the unit block facing Bruce Street and hid behind a clothes line until police arrived. While hiding she could hear the offender. Another resident of the unit block called triple 0.

16. Stuart Glover, the victim in count 3 on the indictment responded to Ms Todd's cry for help and confronted the offender; he ran towards the offender with his fists raised. The offender and Mr Glover threw punches at each other.

17. At one point the offender picked up Mr Glover from behind in a bear hug. The offender was facing Mr Glover's back and had both arms wrapped around Mr Glover's chest. Mr Glover was attempting to break free. The offender lifted Mr Glover to approximately shoulder height and slammed him on to the concrete path. Ms Egan observed Mr Glover's head and back contacting first with the concrete causing a thud. Ms Egan was still on the phone to the police and advised an ambulance would also be required.

18. Mr Glover recalls yelling out the words, "Tim back off, leave her alone" but his next memory is waking up in hospital. He was initially taken to the local Base Hospital but due to his injuries was airlifted to Canberra. The agreed facts set out the injuries as being a traumatic extradural haematoma, un-displaced fracture of the right parietal bone and squamous temporal bone extending to the base of the zygomatic arch. He was managed conservatively, made a good recovery and was discharged from hospital on 29 April 2020. This is the extent of the information I am given on the injuries. I am obliged to proceed on the basis that the victim suffers no ongoing issues or sequelae as a result of the incident. The facts recite that Mr Glover was interviewed by police on 1 May 2020 and informed them that he had memory loss and was receiving occupational therapy.

19. The offender was arrested on 23 April 2020 and as was his right reserved his right to remain silent. The offender has been in custody since that date but another sentence was imposed. I will deal with this issue later in these reasons.

Assessment

20. When dealing with the assessment of the criminality it is necessary to go to the material tendered by Mr Swain, counsel for the offender. In particular there is the report of Ms Godbee, Forensic Psychologist and a summary of the Justice Health Notes prepared by counsel. Ms Godbee had access to the material from Justice Health in the preparation of her report.

21. At paragraph 19 of her report Ms Godbee notes that the offender was diagnosed with schizophrenia in his early 20's, and notes further that the offender while in custody has been receiving monthly injections of Abilify, an anti-psychotic medication. At paragraph 20 she sets out that the offender experiences hallucinations and delusions when not medicated. Further, the self-report was consistent with the account given in the medical records that noted the offender was experiencing both hallucinations and delusions when he entered custody.

22. However, Ms Godbee at paragraph 22 says that on the basis of a single self-report she was unable to offer a formal diagnosis of schizophrenia but notes that the offender has previously received that diagnosis from Justice Health.

23. Despite indicating that she could not offer a diagnosis of schizophrenia Ms Godbee at paragraph 28 says:

"Mr Ngoma was diagnosed with schizophrenia in his early 20's and it appears that his prior and his index offending were the result of delusional beliefs. His drug use and his limited insight into his illness (as indicated by the belief that he was better) contributed to treatment non-compliance. According to Mr Ngoma and the Justice Health Records his symptoms are manageable when he receives regular anti-psychotic medication.

24. I commend counsel for preparing exhibit 2, the summary of the Justice Health notes rather than as is usually the case providing the raw notes and expecting the sentencing judge to go through the usually voluminous records.

25. The offender was admitted to Flinders Mental Health on 17 March 2014 and was discharged on 25 March 2014. It was then that the formal diagnosis of schizophrenia was made. Since then the offender has had a number of admissions and has been subject to a Community Treatment Order. On 5 August 2020 a Dr Custodio notes that the offender was experiencing a relapse of psychosis precipitated by medication non-compliance. Later in August 2020 the offender was made subject to a Forensic Community Treatment Order as he was not taking his medication. In September 2020 it was noted that the offender had ongoing residual psychotic phenomena. On 23 October 2020 he had ongoing auditory hallucinations but was managing them well and it was further noted that he had a stable mental state on depot Aripiprazole. On 4 February 2021 it was noted that the offender had ongoing mental health problems and on 20 February 2021 his mental health had improved because of medication.

26. The totality of the information before me is such that it enables me to find on balance that the offender suffers from schizophrenia and moreover there is a causal connection between that mental illness and the offending. Appropriately the Crown conceded this at the sentence hearing.

27. At the sentence hearing I drew counsel's attention to the decision in Tepania v R [2018] NSWCCA247 in which Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

28. On the issue of moral culpability Johnson J went on to say in Tepania at [119]:

“Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

29. The mental illness suffered by the offender affects the assessment of the objective seriousness of the offending and also impacts on the moral culpability of the offender. I take this into account in making the following determinations as to the seriousness of the matters.

30. Initially on the issue of the assessment of the criminality the common assault charges on the Form 1 are serious examples of common assaults and accordingly, as I have already observed the matters on the Form 1 must have some meaningful impact on the ultimate sentence that is imposed in this matter.

31. Count 1 on the indictment, i.e. the common assault is the striking of Ms Todd from behind. The facts are silent as to what part of her body was struck and actual nature of the striking. The matter is an example of domestic violence that regrettably is all too common. The matter is within the mid-range for a common assault.

32. I now turn to count 2, i.e. the Aggravated Break Enter and Commit Serious Indictable Offence charge. I proceed on the basis that the Intimidation ceases immediately before the conduct to which the three common assault charges on the Form 1 commences.

33. The breaking in of the premises involved the breaking through the door of the unit. Three women were inside and the offender was aware of this. Knowing that persons were within the premises is pleaded as the circumstance of aggravation and accordingly is an element of the offence. There was no planning and the offending was essentially spontaneous. There were no repeated incursions into the premises. Intimidation is at the cusp of being a serious indictable offence. The assaults that occurred are the matters on the Form 1 and should not be taken into account in determining the seriousness of the s 112(2) offence. Taking into account what Adams J said in Hunter v R [2011] NSWCCA 141 at [52] the matter is below mid-range but not substantially so. I did not understand either counsel to dissent when I indicated this as a preliminary view at the sentence hearing.

34. The s 112(2) charge was committed in the home of the victim and accordingly the factor of statutory aggravation pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 is enlivened.

35. The charge contrary to s 35(2) is essentially a result offence. In McCullough [2009] NSWCCA 94 Howie J (McClellan CJ at CL, Simpson J (as her Honour then was) agreeing) said at [37]:

“Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27].”

36. In Mitchell and Gallagher Howie J said inter alia at [27]:

“The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence.”

37. In the matter presently under consideration the nature of the assault was very violent, noting that it involved the offender lifting the victim to shoulder height and "slamming" him into the ground. The surface to which the victim's head was directed was concrete. The nature of the assault must impact on the seriousness of the matter.

38. There is no medical evidence before me, nor is there any indication of the present condition of the victim other than the rather bland statement that he was managed conservatively and that he made a good recovery. In these circumstances I am obliged to proceed on the basis that the victim has no ongoing sequelae or injuries as a result of the events. I note that there is no victim impact statement. The injuries are described as a traumatic extradural haematoma, un-displaced fracture of the right parietal bone and squamous temporal bone extending to the base of the right zygomatic arch.

39. Mr Swaine on behalf of the offender submits that the matter "is about the mid-range". The Crown submits that the matter is slightly or marginally below the mid-range. Taking into account the injuries, what I have said about the lack of ongoing sequelae and the nature of the assault I am of the opinion that the matter falls marginally below the mid-range of seriousness.

40. In respect of all of the offending I accept that it was unplanned. I also agree with counsel for the offender (paragraphs 36-39 written submissions) that the mental health of the offender while not excusing the conduct certainly gives an explanation for the offender's actions.

Criminal History

41. The offender was born on 18 August 1993 and accordingly is now 28 years of age and was 27 at the time of the offending. On 18 October 2019 he was sentenced to an aggregate sentence of 12 months imprisonment to be served by way of Intensive Correction Order for the offences of Common Assault, Larceny and Remain in Building with Intent to Commit an Indictable offence. On the same day he was sentenced to a Community Corrections Order for a further Common Assault.

42. However the Custodial History which is part of the Crown tender bundle indicates that on 29 January 2021 the offender was sentenced to a fixed term of 12 months in respect of a charge of Intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act, 2007. That sentence commenced on 26 March 2020.

43. In June 2017 the offender was also before the Magistrate's Court in Adelaide for traffic offences including drive while disqualified and assaulting police. The record appears to say that the offender was released unconditionally.

41. Of concern is a notation on the South Australian Criminal History next to the word health that reads, "Intel impair". The only reasonable inference is that is an abbreviation for intellectual impairment. Upon seeing that on a clearer copy of the record in the course of preparation of these reasons I had my Associate draw that to the attention of the parties.

42. Mr Swain indicated that he did not have any further submissions. I note there is nothing in Ms Godbee's report to suggest that there is any issue of intellectual impairment. In light of these factors I proceed on the basis that there is no issue of intellectual impairment. The notation is most probably related to the mental health issues suffered by the offender.

43. Mr Swain submits in his written submissions that the offender is entitled to some degree of leniency because of his record. The Crown submits that the offender is not entitled to any particular leniency because of his record. I agree with the submissions made by the Crown in this respect.

44. Further, the factor of statutory aggravation as provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 is enlivened noting that the offending was subject to conditional liberty at the time of the offending.

Sentence Assessment Report (SAR)

48. The SAR should be read in the context of the other material, particularly the report of Ms Godbee, Psychologist. The offender was diagnosed with schizophrenia and has been treated for that diagnosis for some time, including while he has been in custody.

49. The offender told the author of the SAR that he had been non-compliant with his mental health medication and acknowledged to the author that that was the catalyst for how he reacted at the time.

50. Further, the author of the SAR notes that the offender minimised his involvement in the offending by implying he had been provoked and was acting in self-defence. Again, this has to be seen in the light of the other material.

51. The offender denied to the author of the SAR that he was affected by drugs at the time of the offending. He expressed remorse and reiterated a need to address his mental health. He indicated to the author of the report a willingness to engage in interventions to address his mental health and aggression.

52. The offender's response to the ICO imposed in October 2019 was unsatisfactory in that he failed to engage in intervention and report consistently. The offender is assessed by the author of the report to be a medium to high risk of re-offending.

Report by Ms Megan Godbee of Lennings Seidler Collins, Psychologists

53. Ms Godbee notes that the offender described growing up in Zambia. There were no issues in his upbringing. He denied any childhood experiences of abuse or other trauma. His family moved to Australia for better financial opportunities. His mother obtained work in the Northern Territory and his father joined them about two years later and the family was reunited. They relocated to Wagga Wagga some few years later. He plans to reside with his parents upon his eventual release. It appears from the report that the offender's schooling was unremarkable. He began a university course in Environmental Management but was diagnosed with schizophrenia and withdrew from the course. The offender still enjoys family support - see paragraph 17 of the report.

54. The offender began smoking cannabis on weekends from the age of 14 and began smoking and injecting meth amphetamine (ice) at the age of 25. I understand from the report that the offender was using half a gram per day.

55. The report notes (paragraph 15) that the offender was not aware of the relationship between substance abuse and schizophrenia and that the offender's medical history indicates that drug use has contributed to treatment non-compliance. Ms Godbee recommends counselling to improve insight into the impact of substances on the offender's mental health. This is amplified at paragraph 22 of the report.

56. The offender told Ms Godbee that the relationship he was in with the victim (of count 1) was impacted by his paranoid delusions that she was cheating on him or planning to hurt him.

57. The offender's mother told Ms Godbee that the offender was diagnosed with schizophrenia in 2013. The offender said that he was prescribed anti-psychotic medication but he did not take it consistently. He was admitted to hospital and at one stage was subject to a Community Treatment Order. Since being in custody the offender has been receiving regular medication by monthly injections.

58. According to the history given by the offender he suffers hallucinations and delusions when he is not medicated and he hears voices. Ms Godbee noted that the offender's self-report was consistent with the account given in the medical records which noted that the offender was suffering both delusions and hallucinations at the time he entered custody. However at paragraph 21 Ms Godbee notes that the offender did not report any specific trigger for the most recent incident.

59. I have dealt with a number of aspects of the report when dealing with the issue of the seriousness of the offending.

60. After dealing with the offender's criminal history Ms Godbee notes that the details suggests that the offender has some distorted attitudes about the appropriateness of violence and his substance abuse may have also played a role in this offending. She also notes that the offender's drug use may have also played a role, noting that he used meth amphetamine on the weekend prior to the offence.

61. It is recommended that the offender develop a comprehensive release plan that includes details such as his plan for ongoing medication management, regular interviews with a psychiatrist and abstinence from drug use. It is also recommended that the offender be assisted to engage in individual psychological treatment focusing on psycho-education about his drug use and schizophrenia as well as strategies to manage his psychotic symptoms.

62. There is not the slightest reason to doubt the recommendations made by Ms Godbee. Clearly, upon his eventual release the offender will require intensive and extensive supervision to ensure that he gains insight into his illness and the need to be compliant with medication. He also needs assistance so far as illicit substances are concerned. These matters together with the fact that this is the offender's first time in custody justify a reasonably generous finding of special circumstances. I will direct that a copy of Ms Godbee's report be forwarded to the Department of Corrective Services with the warrant, together with counsel's summary of the Justice Health Notes.

63. The fact of the mental illness enlivens the principles enunciated by the High Court in Muldrock v The Queen [2011] HCA 39 at [54] and by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) NSWLR 1 at [177]-[178]. The offender's moral culpability is reduced. The impact of general deterrence is lessened. However, there is nothing before me on which I could find that the offender's mental illness will make his imprisonment any more onerous.

64. However, the Crown submitted - or at least as I understood the submission - that the last point in [177] of De La Rosa was enlivened given the history of the offender abusing illicit substances but moreover his non-compliance with medication. The Crown submitted that there was an issue of protection of the community. Given the criminal history I am not prepared to make this finding. However, the offender must understand that if when he is ultimately released and he relapses into the use of illicit substances and non-compliance with medication if he reoffends a court would be justified in making such a finding.

Submissions

65. Mr Swain in his very comprehensive submissions sets out the maximum penalties for the offences and the approach the court should take in respect of the Form 1 matters. He then goes to the facts. The facts are before the court by way of agreed facts. I have made findings as to the objective seriousness of the offending. Essentially I did not understand my findings to be different to what was submitted by counsel.

66. Mr Swain submitted at paragraph 41ff of his written submissions that the offender was entitled to some consideration for his facilitating the course of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act, 1999. The Crown opposed such a submission. The offender was unrepresented on the day of his committal for trial but had been represented by the Legal Aid Commission up until then. At arraignment at the request of the solicitor for the offender who instructs Mr Swain the offender was not arraigned but a trial date was fixed in the event the matter could not be resolved. Later the offender was arraigned and pleas of guilty entered to the three charges on the Indictment. The offender receives a 10% discount for the utilitarian value of the pleas of guilty. I am not persuaded that the offender should be extended any consideration pursuant to s 22A of the Crimes (Sentencing Procedure) Act.

67. However, the pleas taken with the contents of the SAR (page 3) that "Upon reflecting back on the offences Mr Ngoma recognised that his actions would have caused fear and trauma for the victims involved" and "He acknowledged that his behaviour could have resulted in a more detrimental outcome for which he expressed his remorse and reiterated a need to address his mental health" entitle the offender to a finding on balance he is remorseful. I did not understand the Crown to oppose such a finding. The Crown however submitted that it was very much a question of the weight that would attach to the finding. I agree with the Crown. Although the offender is entitled a finding on balance that he remorseful I am not prepared to attach much weight to that finding.

68. Given the record of the offender, the breach of conditional liberty and the history of non-compliance with medication I am quite unable to find on balance that the offender is unlikely to re-offend. I am fortified in this conclusion given that the author of the SAR assesses the offender at being a medium to high risk of re-offending.

69. The offender appears to be gaining some insight into the correlation between his substance use and his mental health. The offender is compliant with medication but that is in a custodial setting where he can be more closely watched and supervised.

70. The offender has a pro-social family. His father was in court supporting him at the sentence hearing. The offender's mother is a nurse and nurse educator. The offender is able to reside with his family upon his eventual release.

71. There are certainly some very positive signs on the issue of rehabilitation. However, given the history of non-compliance with medication, the breach of conditional liberty and the criminal history, I am not prepared as at the time of the preparation of these reasons to find on balance that the offender has good prospects of rehabilitation. As I observed at the sentence hearing much will depend on the attitudes and actions of the offender upon his release, in particular whether he remains abstinent of substances, whether he remains compliant with medication and how he engages with the appropriate authorities.

72. Mr Swain (paragraph 85ff written submissions) addresses the issue of the COVID-19 pandemic. It was put in oral submissions that each time a prisoner is transferred from one institution to another the prisoner must isolate for 14 days upon arrival at the new institution. The custodial history indicates that the offender has been transferred a number of times. It seems that the impact of the pandemic is something that is factored into the overall subjective mix. I note and have regard to the authorities of Mbele v R [2021] NSWCCA 182 at [96]-[104] and Valentine v R [2020] NSWCCA 116 at [59]-[62].

General Remarks

73. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

74. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the standard non-parole periods prescribed for counts 2 and 3 there must be a sentence of imprisonment in this matter.

75. It is accepted by counsel for the offender that there must be a sentence of full time imprisonment in this matter. However, there was an issue as to the commencement date of the sentence. The offender was sentenced to a fixed term of 12 months for a charge of Stalk/Intimidate which dated from 26 March 2020. At the sentence hearing I suggested that the sentence date from 25 December 2020. I did not understand either party to dissent from that indication and accordingly that will be the commencement date of the sentence.

76. This is an appropriate matter for the invocation of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. Mr Swain submitted that if separate sentences were imposed there would only need to be modest partial accumulation. The Crown submitted that there should be a substantial degree of accumulation given the different offending and the different victims.

77. In this regard Mr Swain submitted on behalf of the offender that the offences for which the offender appears for sentence are the one course of conduct. That may be so, but there are different victims. Mr Glover for example was coming to the assistance of the young women that the offender was assaulting. The principle of totality has to be considered. However, I am firmly of the opinion that if separate sentences were imposed there would need to be some meaningful partial accumulation to take into account the different victims and the different offending.

78. It will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are:

Count 1:   A sentence of 3 months indicating a starting point of 4 months with rounding down in favour of the offender;

Count 2:   Taking into account the Form 1 document, a non-parole period of 1 year 11 months with a balance of term of 1 year 2 months making a total sentence of 3 years 1 month indicating a starting point of 3 years 6 months.

Count 3:   A non-parole period of 23 months (1 year 11 months) with a balance of term of 1 year 2 months making a total of 3 years 1 month indicating a starting point of 3 years 6 months.

Orders

79. In respect of each of the offences to which the offender has pleaded guilty he is convicted.

80. The offender is sentenced to an aggregate sentence of 4 years and 3 months with a non-parole period of 2 years and 6 months

81. The non-parole period will commence on 25 December 2020 and will expire on 24 June 2023. The balance of term will commence on 25 June 2023 and will expire on 24 March 2025.

82. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

83. The sentence indicates a finding of special circumstances, the reasons for which include the need for an extended period to allow for intensive and extensive supervision to ensure that the offender receives appropriate treatment and counselling for his mental health conditions and substance abuse. Included in the treatment for his mental health conditions is the issue of compliance with medication. There is also the issue of partial accumulation of sentences.

84. I direct a copy of exhibits 1 and 2, i.e. the report of Ms Godbee and the summary of the Justice Health records accompany the warrant to Corrective Services.

85. The total effective sentence being served by the offender dates from 26 March 2020 to 24 March 2025. The total period in actual custody, presuming that the offender is released at the conclusion of the non-parole period I have imposed today, is from 26 March 2020 to 24 June 2023. It is for the reason of the partial accumulation of sentences that the ratio between the non-parole period and the total sentence for the sentence I have imposed today is lower than what would otherwise be justified.

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Decision last updated: 09 September 2021