R v Nicholson

[2021] NSWDC 614

District Court

New South Wales

Medium Neutral Citation:

R v Nicholson [2021] NSWDC 614

Hearing dates:

09 August 2021

Date of orders:

09 August 2021

Decision date:

09 August 2021

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Matter adjourned pursuant to s 11(1)(b) & s11(1)(b2) Crimes (Sentencing Procedure) Act 1999 for further determination

Catchwords:

CRIME — Property offences — Larceny

SENTENCING — Adjournment for purpose of sentence

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Subjective considerations on sentence — Bail pending sentence

Legislation Cited:

Bail Act 2013

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

BugmyvR [2013] HCA 37

Imbornone v R [2017] NSWCCA 144

Markarianv R [2005] HCA 25

Muldrock v R [2011] HCA 39

R v Henry [1999] NSWCCA 111

R v Qutami [2001] NSWCCA 353

Tepaniav R [2018] NSWCCA 247

The Queen v Osenkowski (1982) 5 A Crim R 394

Category:

Principal judgment

Parties:

Regina (Crown)
Kelly Marie Nicholson (offender)

Representation:

Amarande Chauvet (Crown)
Maree Flynn (solicitor for the offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (offender)

File Number(s):

2020/00222304

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

1. Kelly Marie Nicholson appears before Court today by that name charged with an offence contrary to s 112(2) Crimes Act 1900 expressed in the following terms:

“On 29 July 2020 in Potts Point in the State of New South Wales did break and enter the restaurant workplace of Federico Van Kooten Losio situated at 155 Victoria Street, Potts Point and then in the said restaurant workplace did commit a serious indictable offence, namely larceny in circumstances of aggravation, namely she knew that there were persons present within the said restaurant workplace.”

GUILTY PLEA

2. She pleaded guilty to the offence in the Local Court and is therefore entitled to a discount in accordance with the legislation which now provides for the management of committal proceedings for sentence; I refer to s 25D(3)(a) Crimes (Sentencing Procedure) Act 1999.

MAXIMUM PENALTY

3. The maximum penalty specified for this offence is imprisonment for 20 years. There is a standard non-parole period specified for the purposes of Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999; the period specified is five years.

FORM ONE

4. The offender confirmed that she pleaded guilty in the Local Court and adheres to her plea of guilty in this Court. The offender asks that when I determine sentence upon this matter that I take into account two additional offences both contrary to s 192E(1)(b) Crimes Act 1900.

5. They are expressed in the following terms; that she:

“On 29 July 2020 at Potts Point in the State of New South Wales did by deception, that is by use of stolen debit card dishonestly obtain a financial advantage, namely obtain $95 worth of goods from TSG Kings Cross.”

6. That is sequence H75592575-2.

7. Sequence H75592575‑3 is expressed in the following terms; that she:

“On 29 July 2020 at Potts Point in the State of New South Wales did by deception, that is by use of a stolen debit card dishonestly obtain a financial advantage, namely ... $73 worth of goods from Kings Cross Tobacconist.”

8. The offender has confirmed that she wants these additional offences taken into account and she admits her guilt in respect of each one.

PRE-SENTENCE CUSTODY

9. She was arrested on 30 July 2020 and has been in custody since that time; thus the sentence when it is ultimately to be determined will bring to account the period of imprisonment commencing on that date. Orders today will include an adjournment for the purposes of s 11 Crimes (Sentencing Procedure) Act 1999 with stringent bail conditions which will also be material relevant to the assessment of the ultimate outcome in these proceedings.

10. She was subject to conditional liberty at the time of the commission of these offences in respect of two matters of possessing prescribed restricted substance and she was subject to Community Correction Orders. She has been called up in respect of those. Those breaches were determined in the Local Court. The breaches arose as a consequence of the offences with which I am concerned. The Local Court magistrate who determined that matter found the breaches established but without imposing a sentence applied s 10A Crimes (Sentencing Procedure) Act 1999.

AGREED FACTS

11. The facts are agreed between the parties and are set forth in the document signed on behalf of the Crown and on behalf of the offender. These tell me that she was born in 1982. She is now 39 years of age and was 38 years of age at the time of the misconduct.

12. The restaurant where the break and enter occurred is located at 155 Victoria Street, Potts Point. Staff there left their belongings in a small downstairs room while they were working. This room was located at the rear of the building near the fire escape which opened onto Hourigan Lane.

13. At midday on 29 July 2020 employee, Justyn Szeto, put his house fob key and mailbox key in his white backpack in the staff locker room. About 1pm Federico Van Kooten Losio placed his bag in the storage room. Inside the bag was a black leather wallet which contained $42 cash and personal cards including his driver’s licence and bank cards and a Medicare card.

14. About 4.30pm Mr Van Kooten Losio went to the storage room on his break and saw his bag had been searched. His wallet was missing and he saw other bags were unzipped with loose belongings scattered along the floor. Mr Szeto noticed that the house key fob and the mailbox key had been taken from his backpack. Remaking of those keys cost him $50.

15. The manager, a Mr Swinhose, went to the back door and noticed that it was open which was not usual. The staff entered the premises to work using the front door of the premises.

16. Mr Van Kooten Losio checked his Westpac banking account using his telephone and saw that his card had been used at 4.27pm at TSG Kings Cross where purchases in the amount of $95 were made and he saw another transaction at Kings Cross Tobacconist of the $73.

17. Police obtained closed circuit television in Hourigan Lane which showed the offender walking there with another person named Daryl Brain. Between 2.35pm and 3.05pm the offender entered the restaurant alone through the unlocked but closed rear door off Hourigan Lane. She there stole the leather wallet of Mr Van Kooten Losio from his bag and the house fob key and the mailbox key of Mr Szeto from his backpack.

18. At 1.30am on 30 July 2020 the police recognised the offender from CCTV footage and arrested her; she was taken to Kings Cross Police Station; she participated in an interview; she admitted using the cards at the outlets where the transaction occurred. She denied the break and enter; she identified herself on the closed circuit television; she said she went to use Xanax and heroin with Daryl Brain in the laneway which is known as a common area for the injection of drugs.

19. Brain was not with her when she got the cards and she confirmed, using her term, “100%” that it was not Brain who committed the break and enter.

THE OFFENDER

20. Although she denied her participation in the break and enter in the initial stages, on the material I have before me and notwithstanding that the offender has not given evidence I accept that she has taken responsibility for this misconduct and has demonstrated appropriate contrition and remorse.

21. The offender has an extensive record of offences; these extend from 12 November 1997 when she was aged 15; they extend for over 34 pages. She has been charged on four occasions with larceny, on one occasion with stealing from a person, once for breaching a recognizance, once for robbery, twice for demanding property with menaces, twice for obtaining money by deception, twice for making a false and misleading statement, 11 times for shoplifting, twice for being armed with intent to commit an indictable offences, once for resisting an officer in the execution of duty, three times for assaulting an officer in the execution of duty, seven times for common assault, three times for intimidation, another four occasions of dishonestly obtaining property by deception, another occasion of breaching recognizance, self-administering a prohibited drug, ten occasions of goods in custody, she has failed to appear on nine occasions, she possessed implements to enter a conveyance on two occasions, she received stolen property, stolen from outside New South Wales once. She has entered inclosed lands three times, possessed prohibited drugs three times, caused damage to property four times, was found in possession of prescribed restricted substances on four occasions, entered a motor vehicle without consent once, behaved offensively twice, refused to obey a direction once, break enter with intent once, continued to misbehave after having been given a move on order once and stealing in a dwelling once.

22. It is apparent when one considers the array of offences that drugs have been her downfall and notwithstanding the structure of the sentences adopted by the Courts on various occasions she has not been able to completely rid herself of the scourge that they cause and the consequent deterioration into crime.

23. She has an unfortunate custodial history, with periods of incarceration as set out over three pages in all. It appears that since 13 June 2003, and I think she would have then been 18 years old or thereabouts, she has been out of prison for 13 of her last 18 years. It appears to me that she spent about five years in gaol overall whether on remand or serving punishment.

24. The sentence assessment report refers to her comprehensive assessment for suitability to undertake the opportunity for rehabilitation provided at Miruma diversionary program; this is a three to six month community based diversionary program based in Cessnock for female offenders with a dual diagnosis of mental health and substance abuse problems. This program is operated by Corrective Services; the aim is to divert such as this offender to address her offending issues. The objectives included are set forth in the report; 24 hour accommodation and support is provided.

25. The assessment section of the report refers to the course of imposition of s 11 bail. The adjournment required is one of three months at least; the conditions imposed will require her to accept the supervision of Community Corrections, comply with all reasonable directions of the Community Corrections officer, and to reside at Miruma until otherwise directed. A bed for her is available from 12 August 2021.

26. A report was provided by psychiatrist Dr Sathish Dayalan written on 26 July 2021; this report has been prepared upon clinical assessment conducted by audio visual link on 16 July 2021 assisted with a sentence assessment report written on 22 June 2021 which predates the document which I have been provided. The one I have was from 3 August 2021.

27. The psychiatrist also had records from Justice Health to support the history that was obtained from the offender. She has endeavoured in the past to undertake rehabilitation; she completed the EQUIPS Foundation and the remand Addiction and Pathways Courses whilst incarcerated and she has worked as wing sweeper; I understand that this refers to her present period of incarceration.

28. With regard to her psychiatric history her father was incarcerated when she was two years old with a custodial sentence of 28 years. It is not said here what the crime was that led to that sentence, but it must clearly have been of significant moment carrying a long maximum penalty.

29. Her mother has not been involved in her care; she was raised by various siblings of her mother, who has also been addicted to drugs abusing amphetamine and prescription medications.

30. From the age of nine, the offender was raised by one of her maternal aunts; she suffered sexual abuse by her aunt’s boyfriend throughout her childhood. Her aunt physically abused her; her aunt had violent tendencies and abused cannabis. Her childhood was characterised by neglect and lack of basic necessities. She suffered malnourishment as a child. She spoke of having eaten cat food. She performed well academically when given the opportunity to attend school but that was discouraged by her aunt as time progressed. She ran away from that environment, she initially lived in a refuge.

31. She became involved with a boyfriend who was a drug user and introduced her to drugs. She lived on the streets for a period of time. She engaged in sex work to help fund her drug habit. She suffered a physically abusive relationship for nine years. She suffered concussion at the hands of the partner in the course of attacks upon her. On one occasion, she was strangled until she passed out. She attempted to leave the relationship but the partner would have others hurt her so that she would return to him for his protection. She fortunately ended that relationship three years ago.

32. She suffered low mood since childhood. She began inflicting lacerations on her arms at the age of nine. She wears long sleeved shirts to hide the residual scars. She attempted suicide at age 19 and as an adult she replaced self-harm with illicit drug use. She had a long history of poor impulse control and anger outbursts, she displayed physical aggression towards others but in recent years she was also expressing her anger at inanimate objects. She suffered a fear of abandonment in relationships which prompted her to self-sabotage any such opportunities to avoid getting too close to the other person. Her self-esteem was low most of the time. She suffered flashbacks consistent with post-traumatic stress from past experiences; this occurred a couple of times a year. She suffered panic attacks but these are less frequent in recent years.

33. In the context of drug use, she has experienced psychosis including auditory hallucinations, disorganised behaviour and paranoia. She did not have a history of psychotic symptoms when abstinent from illicit drugs. She had repeated admissions to psychiatric units at Nepean Hospital and at St Vincent’s Hospital and Cumberland Hospital. These followed such induced psychosis.

34. Her first admission was at the age of 18 years. She has been diagnosed with multiple personality, bipolar affective disorder, schizophrenia and acknowledged a diagnosis of borderline personality disorder. Her treatment for antipsychotics and antidepressants was noted including administration of lithium.

35. At the time of the offending she had been using crystal methamphetamine and heroin on a daily basis. She also used cocaine and Xanax. She used drugs intravenously. She had been released from custody two months before. Her social circumstances had been stable at the time of the offence and she had been pleased with her accommodation. She had been in a relationship with a man who on this occasion has treated her well.

36. She was taken to hospital a week before the offence because of intoxication from drugs. She attributed her misconduct to the abuse of her pills, the offence she said was not planned, it was opportunistic, the consequence of the effect of the drugs upon her.

37. She expressed remorse recognising the loss she caused to the victims who were working and survived with the income they were able to thereby earn.

38. She has in recent times been commenced on injections of Buibidal. This followed her arrest; this has been beneficial to her; it has reduced her urges to use drugs and is a better treatment she finds in contrast to methadone. She is presently in a safe environment according to this. She tested positive for HIV at the age of 21 and continues on medications for HIV; she suffered seizures from the age of 21 years, the cause of these is not confirmed.

39. Her drug use has been extensive beginning with cannabis at the age of 14; this has become more occasional in recent years. From the age of 16 she began using heroin. She began on methadone from the age 17 years but stopped it two years ago. She began using crystal methamphetamine at the age of 21. This was daily use intravenously taken. She also abused Benzodiazepine and cocaine as well. She has attended detoxification in the past but has never been placed in a residential rehabilitation facility according to this.

40. Her personal history is discussed. She was born at Blacktown and grew up in that area. She had a sister who died from SIDS, a twin. She has a half-brother who died in a motorcycle accident. She was close to him. She has a half-brother and half-sister from her father but has limited contact with her. Her father would contact her when he was incarcerated; he spoke of the violence he experienced in gaol and this caused her trauma; as a young child one might expect that to be so.

41. Her mother is one of 14 siblings, all abused illicit drugs. Her mother lives in Mount Druitt and there is limited contact between them.

42. She was infected with HIV as a consequence of her unprotected sex work. She is not employed, and has not been employed anywhere since that time.

43. Mental state examination is then discussed; I need not rehearse that. The mental health problems that she has were largely related to her drug use and she is keen to engage in rehabilitation. There is then a reference to collateral information available to the psychiatrist including the proposal for the Miruma facility and what was contained in the Department of Corrective Services records, Justice Health records and the hospital from Royal Prince Alfred Hospital. She was also diagnosed as positive to Hepatitis C which is recorded in the report from the Kirketon Road Centre.

44. The opinion given by the psychiatrist is that her childhood was characterised by neglect, physical and sexual abuse and disruption in care providers, with exposure to violence and substance abuse from an early age. She had no opportunity to form secure attachments with a responsible adult at any time in her childhood. Those experiences and circumstances resulted in maladaptive personality traits with features of borderline personality disorder. She has a long pattern of offending stemming from childhood initially to meet basic necessities which no doubt contributed to the offence on this occasion.

45. She has responded well to the Buibidal injections with motivation to rehabilitate and complete the proposed program.

46. There is a high risk of relapse if she is released directly into the community and therefore the suggested controlled circumstances of the transport from the facility where she is held to the program.

47. Of note is that she has in custody spent extensive periods when she tended to refrain from illicit drug use. There was support for that as I recall.

48. The punishment details in the custodial records end in July 2019. There are only four entries overall between 2003 and the most recent in 2019 and there is only one offence concerned with drugs when she possessed a drug implement that was in 2013.

FINDINGS

49. The provisions introducing standard non-parole period are set forth in Part 4 Div 1A, Crimes (Sentencing Procedure) Act 1999 in their present form after the decision of the High Court in Muldrock v R [2011] HCA 39.

50. The provisions specify that the standard non-parole period for an offence is that which is included in the table to the provisions; as I said, in this case the period specified in that table is five years.

51. The standard non-parole period represents the non-parole period for an offence in a table that falls within the middle or the range of objective seriousness, taking into account only the objective factors affecting the relative seriousness of the offence. It is a matter to be taken into account determining the appropriate sentence without limiting other matters that are required to permitted to be taken into account; I must give reasons for recording a non-parole period that is longer or shorter.

49. The objective gravity of the offending will be assessed without references to matters personal to the offender or class of offenders but by reference to the nature of the offending bringing into account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act 1999 except those that are essential elements or integral characteristics.

50. This process is one of intuitive synthesis in the course of which the standard non-parole period and the maximum penalty are factors to be considered with all of the objective and subjective material before me. The process is well established as discussed McHugh J in Markarian v R [2005] HCA 25.

51. Guidance was offered by Johnson J more recently with regard to the assessment of objective gravity, including offences, for which there is a standard non-parole period: Tepania v R [2018] NSWCCA 247. The relevant part in the judgement appears at para [110] where his Honour summarised the standard non-parole provisions in their present form and spoke of the matters that would bear upon the assessment of the seriousness of the offence.

52. His Honour made specific reference to Muldrock v R (ibid) and Bugmy v R [2013] HCA 37, in particular para [44] of the judgement of the Court where reference was made to ‘profound childhood deprivation’ the impact of which does not diminish with the passage of time and repeated offending.

53. The Form 1 offences are matters that are brought to account in the assessment of the sentence that is to be imposed and they will impact but marginally upon the sentence that I will impose in due course. They were of limited seriousness and toward the low end of the range of objective seriousness of such misconduct, albeit part and parcel of the course of conduct upon which the offender engaged beginning with the break and enter, and the larceny. Some consideration must be given to them though to specifically address matters of specific deterrence and to reflect the community’s entitlement to the retribution that arises from the extent of the misconduct upon which the offender engaged; but as I say upon application of the guidance provided by Spigelman CJ in the guideline judgement it appears to me that the impact will be marginal: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

54. I am grateful to the parties for having provided appropriate submissions in this case; I would comment upon the fairness demonstrated by the Crown in recognising that an adjournment pursuant to s 11 Crimes (Sentencing Procedure) Act 1999 with appropriate bail conditions would provide the offender with an opportunity to demonstrate rehabilitation; the Crown does not want to be heard against me taking that course.

55. The Crown acknowledges the plea of guilty in the application of s 25D(3)(a) Crimes (Sentencing Procedure) Act 1999.

56. The Crown points to the features of the offence but that will inform the assessment of objective seriousness and concedes that it falls below mid-range. I agree with that submission.

57. She correctly points out that the breach of the Community Corrections Orders to some extent demonstrated an attitude of non‑compliance with Court orders but that is not so as to discourage me from the course I am proposing to take.

58. I agree with the Crown’s submission that general and specific deterrence are matters of concern. Community protection is also a matter to be given appropriate weight.

59. The Crown submits that the threshold provided in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and she invites me to consider the purposes of sentencing articulated in s 3A.

60. Ms Flynn, on behalf of the offender, helpfully provided the comprehensive submissions providing the history of the matter, and the history the offender has demonstrated.

61. I agree that on the material I have there is to be applied the principles in The Queen v Osenkowski (1982) 5 A Crim R 394 and the judgement of Wood CJ at CL in R v Henry [1999] NSWCCA 111 at para [273] is also of application, I refer specifically to item (c) in that paragraph of his Honour's judgement.

62. There is clearly a link between her misuse of drugs and her mental health. Her resort to drugs is hardly surprising when one considers her background and the life she has had to bear in her formative years. I have not overlooked that she did not give evidence before me, has not made any of these representations under oath or affirmation, she has not been tested by cross-examination and I am conscious of what was said by Smart AJ in R v Qutami [2001] NSWCCA 353 but also more recently by Wilson J in the Court of Criminal Appeal in Imbornone v R [2017] NSWCCA 144.

63. Notwithstanding the absence of any evidence as to those matters to which I am referring from the offender, in light of what has been provided by the sentencing assessment report, what has been provided by the psychiatrist with reference to supporting material, I accept the representations that have been attributed to her in that document.

64. There has, I find, been demonstrated a reduction in moral culpability; in the circumstances rehabilitation should be given significant weight in the determination of this matter; it is for those reasons that intend to apply s 11 Crimes (Sentencing Procedure) Act 1999.

65. The offending was unsophisticated, it was opportunistic. The loss was minimal and the objective seriousness of the offence is below, and I would find well below, middle range.

66. The prior offending would deny her leniency but it does not aggravate the offending or the punishment that she might otherwise be justified in suffering.

67. I have been reminded by Ms Flynn of the decision in Ponfield and the guidance there provided for the assessment of objective seriousness and I have taken account the various matters of which I was reminded.

68. I note that in accordance with the plea of guilty entered to the offence upon which sentence is to be determined I find that the offender is guilty of that offence. To allow the offender to demonstrate that rehabilitation has taken place in the period since she has come into custody and in the further period which I am going to allow pursuant to s 11(1)(b) and s 11(1)(b2) Crimes (Sentencing Procedure) Act 1999, I adjourn the further determination of this matter to 11 November 2021.

69. I shall allow the offender bail. The bail conditions that are proposed, that set forth in a document provided on behalf of the offender; to make sure that she understands, I shall read these on to the record:

1. She is to be of good behaviour;

2. She must appear on 11 November 2021 in the District Court at the Downing Centre or such other time as be required for the determination of this matter;

3. She is to reside at Miruma diversionary program at 5 Alunga Avenue, Cessnock until otherwise directed by the Community Corrections officer, and to follow all reasonable directions of the Miruma staff;

4. She is to accept the supervision of Community Corrections and to comply with all reasonable directions of the Community Corrections officer;

5. She is to undertake a course of rehabilitation at Miruma diversionary program;

6. She is to be released directly to the Community Corrections service transport unit when her bed is available on 12 August 2021, and she is thereupon to travel to Miruma diversionary program from the correctional centre via Corrective Services transport unit;

7. She is not to leave the Miruma diversionary program until the rehabilitation program is complete, except for the purposes of participating in compulsory program activities, complying with reporting conditions, conferences with legal advisors, attending court or at the direction of the person for the time being in charge;

8. If she ceases to reside at the Miruma diversionary program she must travel directly to the nearest police station and report that she is in breach of bail and immediately notify the Sydney District Court registry that she is in breach of bail;

9. If she is not accepted into the Miruma diversionary program for any reason she must go directly to the nearest police station to report that she is in breach of bail.

73. The conditions number 6 that she is to be released directly into the Corrective Services transport unit when her bed is available on 12 August 2021 is a release requirement for the purposes of s 29 Bail Act 2013 and must be complied with before she is released to this bail.

74. I have signed those orders and will make sure that they are transmitted to where she is being held by way of the registry; I will have my associate send copies to the Crown and to Ms Flynn for inclusion on their file.

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Decision last updated: 16 November 2021