R v O'Reilly

[2023] NSWDC 443

District Court

New South Wales

Medium Neutral Citation:

R v O’REILLY [2023] NSWDC 443

Hearing dates:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence imposed. Indicative sentences nominated: Count 1, Aggravated enter a dwelling with intent to intimidate: 4 years imprisonment; Count 2, Intimidation with the intent to cause fear of physical or mental harm: 2 years and 6 months imprisonment; Count 3: Robbery in company: 5 years imprisonment. The sentence imposed is 5 years and 9 months with a non-parole period of 3 years and 5 months to date from 13 November 2021.

Catchwords:

SENTENCING – penalties – imprisonment – multiple offences – aggregate sentence – special circumstances – aggravated enter dwelling with intent to intimidate – intimidation with intent to cause fear of physical or mental harm – robbery in company.

Legislation Cited:

ss. 97(1) and 111(2) Crimes Act 1900 (NSW)

s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Category:

Sentence

Parties:

R;
Phillip O’Reilly

Representation:

Counsel:
Crown: Mr A Singh
Defence: Mr S Cairns
Solicitors:
Crown: Mr J Anderson
Defence: Ms Y Swifte

File Number(s):

2021/322992

JUDGMENT

1. The offender Phillip O’Reilly appears for sentence after trial. On 25 July 2023 the offender was arraigned before a jury on an indictment containing three counts:

Count 1: Aggravated enter a dwelling with intent to intimidate contrary to s.111(2) Crimes Act 1900 (NSW); and

Count 2: Intimidation with the intent to cause fear of physical or mental harm contrary to s.13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW); and

Count 3: Robbery in company contrary to s.97(1) Crimes Act 1900 (NSW).

2. All three offences nominated 13 November 2021 as the date of the offence and Rhianna Giambruno as the victim. On 31 July 2023 the jury returned verdicts of guilty on all counts.

3. The maximum penalties are 14 years, 5 years and 20 years imprisonment respectively. The maximum penalty operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

4. As this is a sentence after trial, I am required to determine the facts for sentence. I am to determine facts that are not inconsistent with the verdicts being mindful of the different standard that applies dependent upon whether a matter aggravates or mitigates offending.

5. The victim gave evidence of what she said occurred. A significant part, but not all, of the interaction was recorded and that recording was tendered. As a contemporaneous account of part of the incident it provided compelling evidence of that portion of the interaction. Evidently what occurred prior to and after the recording was reliant on the account provided by the victim. The recording captures the offender on the victim’s fence throwing a pole like item. He then entered towards her home. The victim was screaming to be left alone. She sounded genuinely scared and fearful and repeatedly asked to be left alone. She armed herself with a baseball bat and could be observed backing away from the offender and co-offender. The victim’s phone was found in the co-offender’s home. There was also support for the victim stemming from her texts or telephone conversations with other persons. The offender relied upon a version provided to police in an ERISP. He accepted he was present but denied intimidating the victim or stealing her phone. The offender accepted in his account to police that he did enter the house. The nominated co-offender was not involved in the trial.

6. Aspects of what occurred are still disputed by the offender.

7. I have reviewed the victim’s evidence of what occurred; being her account at the time and her evidence in court. She immediately mentioned an item being thrown and the offender using fists and the bat to hit her. This was maintained in her sworn evidence. Her phone was clearly taken as it was located at the co-offender’s home.

8. Consistent with the verdict on count 1, the offender entered her house with the intent to intimidate her. These are the elements of the offence and the jury were satisfied beyond reasonable doubt.

9. Consistent with the verdict on count 2, the offender intimidated the victim with the intention of causing her to fear physical or mental harm. These are the elements of the offence and the jury were satisfied beyond reasonable doubt. This intimidation involved the use of force including fists and the baseball bat. I accept she was hit more than once by the offender. I do not determine a precise number. The absence of injury is not determinative. This occurred in the context that there was a continuing assault by the co-offender upon the victim.

10. Consistent with the verdict on count 3, the offender or the co-offender, acting in company, took the victim’s phone at the time she was being assaulted with the intention of permanently depriving her of it. These are the elements of the offence and the jury were satisfied beyond reasonable doubt. I am unable to determine who took the phone from the victim. She said the co-offender demanded it, the victim let go of it after being bitten on the cheek by the co-offender who then took it and handed it to this offender. In the circumstances it does not greatly matter which one physically took it from her and carried it way. She was being assaulted by both during this incident.

11. I have considered the facts informing the offending. There was no planning. The offender was asked to attend by the co-offender who had a previous altercation with the victim. The pole used from the fence appears to have been obtained at the location. The offender intended to intimidate and did so through the use of weapons and violence. The bat was presented by the victim acting in self-defence although she lost possession of it during the offending. The offender acted along with the actions of the co-offender. The robbery included the element of “in company” and I take into account that the minimum number of participants was involved. The offences occurred close in time to each other and overall for a relatively brief although sustained period. The offences occurred within the rear garden and inside the home of the victim. I do not take into account that the victim’s child was present. There is no indication she witnessed any aspect.

12. Each offence is a moderately serious example of the offence provision.

13. There are no factors that apply to inform moral culpability. That the offender attended at the request of the co-offender does not excuse his conduct once he arrived. That he initially intended to intervene falls into insignificance when the intervention commenced soon after his attendance and entailed direct physical and verbal threats.

14. At the time of offending the offender was subject to conditional liberty. He was on bail for the offence of stalking / intimidation. That offence occurred on 2 November 2021, or 11 days prior to the index offending. A breach of conditional liberty is a matter of aggravation as it reflects an abuse of the freedom granted by taking the opportunity to further offend.

15. The offender is now aged 45.

16. The offender has a number of entries on his criminal history commencing in 2000. These offences include drug offences, property offences and offences of personal violence. It is noteworthy that some previous offences are not dissimilar to the index offending. He has received various sentencing outcomes including conditional liberty and imprisonment. His last term of imprisonment was imposed in 2017 and he was released to parole on 5 April 2019. The offender’s antecedents do not operate to permit leniency.

17. The offending was and is denied by the offender. There has been no remorse or insight into the offending. The offender did not give evidence on sentence but relied upon material contained in the Sentencing Assessment Report including his continued denial of offending. The offender indicated he has the support of his adult son and his sister. He indicated he could reside with her. She did not support this outcome. The offender has not been employed in the community for over 6 years although he was incarcerated for part of this time and he did obtain employment in custody in March 2023.

18. The offender is said to have engaged well with his 2020 parole. His supervision was focussed on his aggression with undertaking a specific anger program. This offending reflects that further attention to his aggression issues would be beneficial.

19. He is assessed as falling in the medium risk of reoffending in the Sentencing Assessment Report. A supervision plan is nominated if he received a supervised order. This includes addressing his mental health, his drug use and his criminogenic factors including anger, conflict resolution and developing pro-social activities.

20. The offender’s prospects of rehabilitation and of reoffending are not promising. He committed these serious offences soon after entering bail for another matter. He has no insight into his conduct and no acceptance of responsibility. He has conduct issues requiring addressing, despite engagement with an aggression program recent to the offending. Personal deterrence continues to serve an important role.

21. General deterrence and retribution are important considerations for each of the offences.

22. One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community. Senseless acts of violence cannot be condoned or minimised. The fear instilled in the victim was evident from the recording.

23. I am to sentence for three related offences; all on the same victim and committed close in time. All involved violence and instilling fear. They present as a continuum. This suggests significant concurrency to be appropriate.

24. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate. The offender did not submit to the contrary. The offender was arrested on 13 November 2021 and has remained on remand during this period. Sentence will commence on this date.

25. I make a finding of special circumstances relying on the need for a lengthier period of supervision and support.

26. The offender is convicted of each of the three offences.

27. I intend to impose an aggregate sentence. I nominate the following indicative sentences:

Count 1, Aggravated enter a dwelling with intent to intimidate: 4 years imprisonment;

Count 2, Intimidation with the intent to cause fear of physical or mental harm: 2 years and 6 months imprisonment; and

Count 3: Robbery in company: 5 years imprisonment.

28. The sentence imposed is one of 5 years and 9 months imprisonment with a non-parole period of 3 years and 5 months to date from 13 November 2021. The offender will be eligible for release to parole on 12 April 2025. The sentence will expire on 12 August 2027.

29. This variation to the statutory ratio to 59% gives effect to my finding of special circumstances. This facilitates sufficient time on supervised parole. No lesser sentence would address the offending.

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Decision last updated: 23 October 2023