R v Olson

[2022] NSWDC 449

District Court

New South Wales

Medium Neutral Citation:

R v Olson [2022] NSWDC 449

Hearing dates:

30 September 2022

Date of orders:

30 September 2022

Decision date:

30 September 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 57 - 58

Catchwords:

CRIMINAL LAW – severity appeal – multiple offences – challenges to indicative offences – significance of Local Court’s jurisdictional limit – focus on the right of appeal on the aggregate sentence

Legislation Cited:

Crimes Act 1900 (NSW) ss 112, 193C, 195

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 4A, 4B, 13(1)

Cases Cited:

Bugmy v R (2013) 249 CLR 571

R v Henry (1999) 46 NSWLR 346

Category:

Principal judgment

Parties:

Ms M Olson (appellant)
ODPP

Representation:

Legal Aid for the appellant
ODPP

File Number(s):

2021/00250230

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Gosford Local Court

Jurisdiction:

Local Court

Date of Decision:

1 September 2022

Before:

Magistrate J Price

File Number(s):

2021/00250230

REASONS FOR JUDGMENT

1. This is a severity appeal from an aggregate sentence following pleas of guilty imposed by the Gosford Local Court on 1 September 2022 of imprisonment for 18 months, with a non-parole period of 12 months, arising from 4 multiple offences that are set out in the table below.

2. It is to be noted that there is a s 10A conviction (with no additional penalty) on 4 other offences occurring on 5 October 2021. There is no appeal against that sentence.

Sequence/Section	Offence	Maximum Penalty	Initial Sentence Received
H 325024796/1 s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)	Stalk/intimidate intend fear physical harm (domestic)	District Court Imprisonment for 5 years and/or 50 penalty units ($5,500) Local Court Imprisonment for 2 years and/or 50 penalty units ($5,500)	Indicative term: 12 months
H 83134630/7 s 193C(2) Crimes Act 1900 (NSW)	Deal with property proceeds of crime <$100,000	District Court Imprisonment for 3 years Local Court Imprisonment for 2 years and/or 50 penalty units ($5,500)	Indicative term: 4 months
H 84705042/1 s 112(1)(a) Crimes Act 1900 (NSW)	Break and enter house steal value <=$60,000	District Court Imprisonment for 14 years Local Court Imprisonment for 2 years and/or $11,000 fine	Indicative term: 14 months
H 84705042/2 s 195(1)(a) Crimes Act 1900 (NSW)	Destroy or damage property	District Court Imprisonment for 5years Local Court Imprisonment for 2 years and/or $2,200 fine	Indicative term: 14 months

3. I have pointed out the maximum penalties that would have been imposed by this Court partly to emphasise that the jurisdictional limit in the Local Court is not a guidepost to an appropriate sentence. Hypothetically, a sentence reflecting the maximum jurisdictional limit could be imposed even after an early plea of guilty if the offending was sufficiently serious.

FACTS

Offending on 18 August 2021

4. On 1 August 2021, the victim consented to the appellant moving into her residence with her.

5. On 18 August 2021, the appellant returned to the said residence at 10:00am. When she arrived, she began inviting friends over. This was contrary to the wishes of the victim, who told her that she did not want others to attend her home. That indication annoyed the appellant, who told the victim to “Fuck off” to her bedroom.

6. The appellant proceeded to speak on the phone to unknown persons. The victim heard the appellant saying to the person on the phone “It’s my fucking house now… I’m going to kill her cat… I’m going to take all my shit and I’m taking everything”.

7. The victim went to her bedroom and her brother attended the premises. Her brother took the appellant to a service station. At this point, the victim received notices from her bank indicating that $600 had been taken from her account. The victim had not given permission to anyone to withdraw money from her account.

8. The appellant returned to the home and the victim confronted her about the money taken from her account. An argument occurred during which the appellant told the victim “Yeah it was me cunt. I’ll take your stuff and kill your cat!”.

9. The appellant told the victim to go to her bedroom whilst she, the appellant, packed her property up. The victim walked out of the room and the appellant told her “Get in your fucking room or I’ll kill your cat and your birds!” The cat at this point was outside with the appellant (and other people). The victim was fearful for her pets and went to her room and began to cry.

10. The appellant entered the room and took two mobile phones from the victim, removing two sim cards and batteries, telling the victim that she did not trust her not to contact police; as she was taking property away from the home.

11. The appellant – and others – emptied the home of the majority of its furniture and seized a Sony branded speaker stereo; airfryer; as well as clothes and shelving.

12. The victim exited the bedroom and was fearful of returning. She messaged the appellant the next day, telling her to return the property and threatening to contact police. The appellant did not return the property or the money and the victim reported her to police.

13. The appellant’s legal representative submitted that a period of 12 months as the indicative period was excessive. It was appropriate that it should be 6 months. The Crown submitted that although the indicative period may appear prima facie high, it was to be recalled that the course of conduct occurred over hours and in the victim’s home. There is force in both parties’ submissions.

Offending on 5 October 2021

14. At about 8:48am on this day, the appellant was driving a silver Nissan Dualis motor vehicle (which was stolen) near her residential address in Davistown. The vehicle bore registration plates (CB-31-LJ) which were stolen. They belonged to the Australian Red Cross Society.

15. At about 11:45am on the same day, the same motor vehicle was observed parking in Gosford with the appellant in the driver’s seat. This vehicle was observed by police which had been patrolling nearby. As police attended the carpark, the appellant fled from the motor vehicle. She had positioned herself in a garden bed, and was seen, crouching down, by police.

16. After police introduced themselves, the appellant denied being in the motor vehicle and falsely asserted that she had seen two men in the vehicle before the police had arrived.

17. Police searched the vehicle and, amongst other things, identified two other registration plates (CW-86-WF and DM-CO-7G) located in the boot of the vehicle. The appellant falsely claimed that she had not been in the vehicle and knew nothing about it or its contents.

18. CCTV footage obtained by police showed that the appellant had been driving the Nissan Dualis vehicle to and from her residence in early August 2021.

19. Initially, the appellant did not challenge the indicative sentence for this offence, but her legal representative corrected this and submitted that it should be 1 month.

Offending on 21 October 2021

20. At about 6:45am the victim left her home in Springfield for work. She left her home locked and secured. No one else was expected to be at the location during the day.

Breaking & entering

21. The victim returned in the evening, at about 7:45pm. She attempted to gain entry, but discovered that the front door had been barricaded from the inside. On closer inspection, the victim discovered that the inside of her home had been trashed: her property was all over the place and in a state of disorder. She called the police immediately.

22. Whilst waiting for police, a neighbouring witness approached the victim, telling her that he had seen a woman enter the home that afternoon.

23. After police arrived, they were able to remove the barricade and ease the path of entry.

24. Police walked into the upstairs main bedroom. They saw that the entire room was dishevelled. The built in cupboards were observed to be half open. There police discovered the appellant, in a crouching position. The appellant was non-responsive and police called an ambulance. The appellant went into a seizure. She was conveyed to Gosford Hospital. There she tested positive for COVID-19.

25. At the hearing of this severity appeal, the appellant said that she was in drug-induced haze when she committed this offending. The appellant’s legal representative submitted that even if this may not itself reduce her culpability, her disadvantaged upbringing did. She did not even know the occupant. The Crown emphasised that this latter fact actually made the offending worse and the indicative sentence was low.

Destruction of property

26. The victim later reported to police that she did not know the appellant and stated that jewellery had been taken. She also reported damage maliciously inflicted upon the property; featuring a hole deposited into the bathroom roof. Items of property were removed from the house to the front lawn.

27. The appellant’s legal representative argued that a more appropriate indicative sentence was 4 months.

AGGRAVATING CIRCUMSTANCES

28. The offending occurred whilst the appellant was on an Intensive Correction Order (ICO), following offences including taking and driving conveyance and larceny. The ICO, which was of a duration of 10 months and 9 days, was ordered on 2 June 2021 and expired on 10 April 2022. This was later revoked on 8 March 2022.

THE APPELLANT’S SUBJECTIVE CASE

Age, background

29. The appellant was 42-43 years of age at the time of the offending.

30. The appellant’s background was partly addressed in a report by Justice Health to the Local Court Magistrate dated 21 July 2022. The report was a mental health assessment of the appellant, which occurred that day. At the hearing of this severity appeal, the appellant said that what she told Ms Cummins was true and correct.

31. This report disclosed a tragic upbringing for the appellant. She is of indigenous descent and the eldest of three girls. Her mother lived in fear of her father, who the appellant described as being “domineering”. The appellant herself was a victim of sexual abuse by a neighbour at the frightfully young age range of between 3 and 8 years old. Shockingly, this was done with her mother’s awareness.

32. Sadly, but predictably, this led to her mental health problems; and also issues with alcohol and drugs, utilised from early teenage years; in lieu of proper counselling and treatment. She acknowledged that from 2019, she was back into drugs.

33. She had received no real treatment for her mental health until she came to be in custody. She received diagnoses of Bipolar Affective Disorder and Substance Use Disorder, and these were confirmed in the recent report. Disturbingly, she has generally only been compliant with medication whilst in custody. But the Department of Health did not regard her as presenting as a “mentally ill person”.

34. The appellant’s background was also partly addressed in a sentencing assessment report dated 22 August 2022 which was before the Local Court. The appellant has 3 children from a previous relationship (whom currently reside with their father). It was apparent that she has had custody issues with her ex-partner and also a narrow circle of friends and estrangement from her family.

35. She has been unemployed since 2017. She has lived off a family inheritance. She has been reliant upon friends for transient accommodation (as indicated in the offending).

36. The appellant has had alcohol and drug (AOD) use. She attributed the offending to her AOD issues. The appellant explained that she used drugs to cope with stress associated with her custody issues and absence of stable accommodation.

37. In my view, Bugmy considerations have some salience. It was her upbringing which at least fuelled her alcohol and drug issues. And, as explained in R v Henry (1999) 46 NSWLR 346, addictions (drugs or alcohol) may help explain impulsivity and impairment in capacity to exercise judgment. I accept that there is a causal connection with her offending. However, although this may serve to reduce the seriousness of the offending, thereby moderating general deterrence and specific deterrence, only to a small degree, it conversely elevates the need to protect the community. It is not the case that the appellant has been deprived of opportunities to rehabilitate herself or been given indulgences afforded by sentencing courts to aid with her rehabilitation.

Antecedents

38. The appellant has a long criminal history, especially of driving offences since her early 20s. Her earlier offending involved domestic violence offences (in 2014, 2015 and 2019), taking and driving conveyance without consent (in 2020 and 2021) and dishonesty type of offences (in 2020).

39. It was observed by the Community Corrections Officer (CCO) in the sentencing assessment report that her offending has escalated throughout the years. Since 2020, her offending has been more financially motivated. She has also committed other custodial offences in 2021 and 2022.

40. The Crown emphasised that even with the present proceedings, the appellant had missed court appointments; apparently to reinforce the impression created by the appellant’s record of her lack of compliance with restrictions placed upon her. At any rate, it is obvious to say that the appellant’s record disentitles her to leniency.

Guilty Pleas

41. I take into account the 25% discount for the appellant’s guilty pleas to each of the offences.

Contrition & remorse

42. The CCO identified that the offender displayed insight into the harm caused to the victims by her drug use and that she had displayed some empathy.

43. The appellant also gave evidence today in which she indicated that she had prepared a letter for the victim of the offending on 21 October; though that had not been sent. I accept that she is remorseful.

Rehabilitation prospects/likelihood of reoffending

44. The Crown placed before the Court documents from the State Parole Authority, which relevantly featured breach notices of the ICO. A recurring theme was the unsatisfactory nature of her responses to her supervision, including also disregard for conditions of bail.

45. The CCO noted that the appellant indicated a willingness to undertake intervention and community service work.

46. I acknowledge evidence given by the appellant in which she sought to explain earlier unsuccessful, or ineffective supervision. I also acknowledge the appellant’s evidence which showed that, to some extent, she had used her time productively in custody. But although certain events may be satisfactorily explained, the fact is that there is a pattern suggesting the inefficacy at attempts to supervise her.

47. She gave evidence, consistently of what she had told others, of frittering away an inheritance (the value of which was not disclosed) and little, if any, real family or community support upon her release. It is seriously to be doubted how she will be able to comply with her medications upon her release in those circumstances. Her prospects of rehabilitation are extremely limited.

48. I take into account the CCO’s opinion of her medium-high risk of reoffending on the LSI-R scale.

INSTINCTIVE SYNTHESIS

49. I note the seriousness of the offending, especially the break and entering and theft of items of property.

50. I take into account the s 3A considerations (and also s 4A and 4B of Crimes (Domestic & Personal Violence) Act 2007 (NSW)) for the offending which occurred on 18 August 2021. General deterrence & specific deterrence, protection of the community, making the appellant accountable for her offending, and denunciation are important; even if general deterrence and specific deterrence are moderated due to her childhood disadvantage which itself generated her alcohol and drug addictions contributing to her offending. The sentence also needs to reflect the harm done to the victim. Even if, as the appellant described, the victim for the offending on 18 August 2021 had an adverse effect on her, she did not deserve to be mistreated in her own home after generously allowing the appellant to stay with her. Nor did a complete stranger deserve to return home to find the sanctity of her home violated on 21 October 2021.

51. The appellant’s legal representative conceded that the s 5 threshold is crossed for all of the offences. I consider that this concession was properly made.

52. I have reviewed the indicative sentences (taking into account the guilty pleas) of the learned Magistrate. I would slightly reduce the indicative sentence for the offence on 18 August 2021: although the victim had every right to be fearful, the threat was directed to the victim’s pets and not to herself. I would also reduce the indicative sentence for the destruction of property offence, noting that the facts disclose actual damage to a limited part of the house. I would also reduce the indicative sentence for the dealing in proceeds offence. No particular value was ascribed to the plates but the circumstance that there were 3 plates indicated multiple instances of the plates being stolen. Otherwise, I agree with the indicative sentences imposed by the learned Magistrate, taking into account the guilty pleas. The indicative sentences therefore are:

Stalking offence:         8 months

Dealing in proceeds offence:   4 months

Break & entering offence:      14 months

Destruction of property offence: 6 months

53. The mere reduction in most of these indicative sentences does not automatically translate to a reduced aggregate sentence. The severity appeal is against the aggregate sentence; not the indicative sentences. Overwhelmingly, the overall effect of the appellant’s criminality is such that the aggregate sentence was, within and reflected recognition of the limit of the Local Court’s jurisdiction, generous. I agree with the Crown that the aggregate sentence effectively allowed for a large degree of concurrency which, had the matters been tried in this Court, may not have been permitted to a comparable degree given the separate dates of the offences, the different offences, the nature of the offences and the multiple victims.

Prior Period in custody

54. There was some debate about this, due to complexities surrounding her breaching her ICO and returning to custody. The appellant’s representative argued that on her calculations, the appellant had spent 5 months and 16 days in custody which were solely referable to the offences. The Crown submitted that the Local Court had generously backdated the commencement date by 5 months. I propose to follow the course taken by the Magistrate.

55. The learned Magistrate’s sentence reflected a finding of special circumstances. I would not disturb that finding. The Crown did not ultimately suggest that I should. But the appellant’s representative submitted that I should reduce if further than the Magistrate (who had reduced it to 66.7% of the head sentence). Doubtless a longer period on parole potentially may aid the appellant’s rehabilitation, but in any particular case, the extent of reduction reflects a predictive assessment of what an offender might do. Whilst acknowledging the sincere expressions of intent by the appellant, about what she says she has learnt, her past experience indicates that such expressions of intent are to be treated cautiously. I consider that the ratio fixed by the Magistrate was appropriate, which I think was lenient in the circumstances.

Orders

56. Ms Olsen, please stand.

57. Considering the matters, I reach an aggregate sentence no lesser than that which the Magistrate imposed. I vary the commencement date for sentence to reflect the period in custody. The sentence of 18 months’ imprisonment is varied to commence on 6 April 2022 and expires on 5 October 2023, with a non-parole period of 12 months expiring on 5 April 2023, after which you will be eligible for release on parole.

58. The severity appeal is otherwise dismissed.

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Decision last updated: 05 October 2022