R v Pleace

[2016] NSWDC 178

District Court

New South Wales

Medium Neutral Citation:	R v Pleace [2016] NSWDC 178
Hearing dates:	1 April 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence consisting of a non-parole period of 3 years and a head sentence of 5 years.
Catchwords:	CRIMINAL LAW - Sentence - Totality - Aggravated enter dwelling house with intent to commit serious indictable offence - Intimidation - Assault occasioning actual bodily harm - Offender suffers from schizophrenia
Legislation Cited:	Crimes Act
Category:	Sentence
Parties:	The Crown Troy Douglas Pleace
Representation:	Counsel: S Howell - Offender     Solicitors: Director of Public Prosecutions
File Number(s):	2014/69677

Judgment

1. HIS HONOUR: On 3 July 2015 I sentenced Troy Douglas Pleace, along with two co-offenders, for an offence of assault occasioning actual bodily harm in company. I imposed a sentence of three years six months with a non‑parole period of two years. The non-parole period expires on 17 July 2016.

2. I am now to sentence him for two offences committed about a month earlier than the offences for which I have previously sentenced him. In those circumstances, the principle of totality must be borne in mind. That principle often means that offenders receive shorter sentences than they would receive if they were sentenced for individual offences committed at completely separate times. The principle is given effect to by, usually, partially accumulating sentences. It is also necessary to bear in mind that in order to preserve the statutory ratio, or a ratio of non-parole period to head sentence other than the statutory ratio, special circumstances need to be found. On the other hand, the offence I am about to describe was completely separate to the one for which Mr Pleace is currently serving a sentence. There were completely different victims, and completely different motivations for Mr Pleace’s offending.

3. Mr Pleace formed a relationship with a Ms Vitalis, indeed she was one of the co-offenders who appeared for sentence in July 2015. Ms Vitalis worked as a prostitute and one of her clients was a Mr S. Mr S was in a relationship with a Ms J, they lived together in Coogee. On occasions Ms Vitalis would provide sexual services to Mr S, sometimes in the presence of Ms J.

4. In October 2013, Mr S attended Ms Vitalis’s home where she was introduced to the offender Mr Pleace. It is clear that Mr Pleace was not happy with the arrangement between Mr S and Ms Vitalis, his girlfriend. He told a psychiatrist that he believed that Ms Vitalis was being mistreated.

5. So, on 5 November 2013, the offender went to the premises where Mr S and Ms J lived and knocked at the door. It was about 7 in the morning. Ms J opened the door and saw the offender standing there. The offender asked whether Mr S was home and, when asked by Ms J who he was, the offender gave her his correct name and pulled a crowbar out from underneath his jacket. He moved past Ms J and into the premises.    

6. At this stage Mr S, was wearing only a T-shirt, was sleeping on the lounge in the back of his home. The offender threatened Mr S and demanded money from him. He said that it was money that Mr S owed. He was holding the crowbar and swinging it towards Mr S. Ms J overheard the offender say something like “you owe me money, if you ask for a girl then you have to pay for her, you pay for my girls”.

7. There is obviously conflict between what Mr Pleace was saying to Mr S as to why he was threatening him with the crowbar and the motivation that Mr Pleace had according to his version given to the psychiatrist.

8. Mr S offered to pay money because he did not want any trouble. He said “I never meant to cause you to be upset and I’m sorry for whatever happened”. Mr Pleace then threatened to hurt Mr S with the crowbar and struck Mr S, using that weapon, to his left forearm. As a result, he experienced pain and suffered swelling to his left forearm.

9. At one stage the offender and Ms J and Mr S went upstairs. He continued to threaten Mr S verbally and by swinging the crowbar towards him. Mr S said “whatever you need us to do we’ll do it, just please don’t hurt us”, the offender said “as long as you do what I say I won’t hurt her”, of course the “her” was a reference to Ms J.

10. After they went downstairs, the offender told Mr S to get on his knees and he ordered Mr S to apologise to Ms J for the manner in which he had previously treated her. Mr S assured the offender that he would not call the police and then made his escape. He ran to a dry cleaners where police were called.

11. As the offender the left the house, he was able to see Mr S and he continued to verbally threaten him. Mr S could see, outside his premises, Ms Vitalis and a second unidentified male. The three then left the location. Mr S was taken to hospital via ambulance. His left forearm was X-rayed, fortunately there was no fracture found.

12. As a result of the events I have just described, the offender has pleaded guilty to an offence of aggravated enter dwelling house with intent to commit the serious indictable offence of intimidation, as well as an offence of assault occasioning actual bodily harm. The maximum penalty for the first matter is 14 years and for the second matter it five years.

13. The Crown also presented a Form 1 offence which contained on it an offence of common assault committed against Ms J. However, when I asked Mr Pleace about that matter today he denied that he was guilty of common assault, and so I will not take the matter on the Form 1 into account.    The two offences for which Mr Pleace appears for sentence are counts 1 and 3 on an indictment presented against him on the day his trial was due to commence.

14. The Crown accepted pleas of guilty to counts 1 and 3 in full satisfaction of the indictment. Although those pleas appear to be late, upon analysis they were entered at the earliest opportunity. Count 3 had never been presented against him, either at the Local Court or previously, until it appeared on the indictment presented on the day of trial. Although count 1 as originally laid against Mr Pleace was a charge of aggravated enter dwelling house with intent to commit a serious indictable offence, the serious indictable offence particularised was not that of intimidation.

15. Thus, I am satisfied that Mr Pleace pleaded guilty to counts 1 and 3 at the earliest opportunity available to him. I will, therefore, impose upon him a sentence which is 25% less than it would otherwise have been in order to reflect the utilitarian value of his pleas.

16. Mr Pleace is a troubled man. He suffers from schizophrenia. His difficulties are apparent even today as he sits in the dock. During sentence proceedings he was distracted by the lights, indicating that there was a connection between the lights and God. His behaviour in court is only to be expected given the findings of the forensic psychiatrist, Dr Kerri Eagle, in a report tendered to me today.

17. It is apparent that Mr Pleace has suffered from schizophrenia for a significant period of time. That illness may have been masked on occasions by his drug use, but I am satisfied that the diagnosis is accurate and that the symptoms reported by Mr Pleace are genuine.

18. Some of the history Mr Pleace gave to the psychiatrist is not accurate, but I do not believe that he was attempting to mislead the psychiatrist. I accept that he genuinely believes those things which he told the psychiatrist, even where the objective evidence would tend to contradict that belief. The best example of this is Mr Pleace’s reference to him having been convicted of drive in a manner dangerous occasioning death, or perhaps grievous bodily harm. No Mr Pleace hears voices and receives messages from television. I accept that many aspects of what Mr Pleace told the psychiatrist are accurate, certainly his criminal history is suggestive of a person who had the problems that he describes to the psychiatrist.

19. As far as his moral culpability is concerned, the psychiatrist says this:

“Mr Pleace’s judgment is generally impaired as a result of his mental illness…schizophrenia is also associated with cognitive impairment including higher executive function. This can result in impairments and problems of inhibition and planning. However, Mr Pleace’s account of the index offences suggested that his motive for the offences was one of anger and retribution. This is not a psychologically driven motive. Given his experience of anger, he likely lacked the problem solving abilities or inhibitions to manage his response appropriately”.

20. So whilst these offences were not directly a result of, for example, Mr Pleace hearing voices, his lack of problem solving abilities or inhibitions to manage his responses appropriately were clearly contributing factors to the commission of the offence. In those circumstances, his moral culpability is reduced.

21. Mr Pleace is a person who clearly is an inappropriate vehicle for the imposition of a sentence reflecting a significant component of general deterrence, but there is no reason that personal deterrence should become unimportant. Mr Pleace must know that he cannot continue to act this way. He has a significant criminal history and he must realise that every time he commits a significant criminal offence he is going to receive a custodial sentence. If he wishes to avoid custody, he must stop committing criminal offences. I am satisfied that the custodial sentence that I must necessarily impose will weigh more heavily upon him.

22. Given Mr Pleace’s criminal history, and given the conclusions of the psychiatrist as to the risk of further violent offending, it has to be said that Mr Pleace’s prospects of rehabilitation are bleak. The psychiatrist says that Mr Pleace is a member of a group of persons who are at high risk of violent reoffending in the longer term. While that is a statistical analysis which is probably accurate as regards a group of people, the problem is, of course, that such analysis says little about the risk of further offending of Mr Pleace as an individual. Despite that, I am satisfied that there is a high chance of Mr Pleace reoffending given the nature of his condition and his criminal history and the conclusion reached by the psychiatrist.

23. Mr Pleace expresses his remorse. He, indeed, said that he was sorry for what he did while speaking, uninvited, to me in proceedings today. On the other hand, the psychiatrist noted that Mr Pleace’s acceptance of responsibility and expressions of regret appeared to be superficial.

24. In assessing the objective gravity of these offences I bear in mind, as far as count 1 is concerned, that intimidation is a much less serious indictable offence than others which could be the subject of that charge. Those who enter a dwelling house with intent to sexually assault someone, those who enter a dwelling house with intent to inflict grievous bodily harm would still be charged with an offence under s 112(2) of the Crimes Act, and so in assessing the objective gravity of Mr Pleace’s misconduct that circumstance has to be borne in mind. The offence of intimidation is, I repeat, much less serious than other serious indictable offences which could be the subject of charges under s 112(2).

25. As far as count 3 is concerned, the assault occasioning actual bodily harm, I note that the offender used a weapon, indeed a crowbar, with which he struck Mr S’s forearm. The injuries themselves were not terribly serious and they are unlike to have had any long terms consequences for Mr S, but the use of a weapon is a matter that has to be borne in mind when considering the objective gravity of the offender’s conduct as far as count 3 is concerned.

26. When I earlier sentenced Mr Pleace, I made a finding of special circumstances in his favour. Mr Howell, who appears for Mr Pleace, asks that I make a similar finding. I will do so but will not be as generous, at least in percentage terms, as I was earlier. There are a number of reasons for this.

27. Firstly, the sentence I will shortly announce is the least that I believe properly reflects the objective gravity of the offender’s crimes. And secondly, the period that I will allow for Mr Pleace to be released to parole is, I believe, sufficient. If he is to respond to treatment, then the period I determine will be plenty of time for him to do that.

28. I should have mentioned earlier that quite clearly these were planned offences. Mr Pleace turned up intending to do what he did, arming himself with a crowbar in order for him to achieve his objective.

29. As I think I might have mentioned earlier, Mr Pleace’s existing non-parole period expires on 17 July 2016. I will give effect to the principle of totality by commencing the sentence I will shortly announce one year earlier, from 17 July 2015.

30. I will impose an aggregate sentence covering both counts 1 and 3 on the indictment. Were I to have imposed separate sentences, I would have imposed a sentence of four and a half years on count 1 and 18 months on count 3. Instead, I impose an aggregate sentence consisting of a non‑parole period of three years to date, as I said, from 17 July 2015. It will expire on 17 July 2018, on which day Mr Pleace is eligible to be release to parole.

31. The aggregate head sentence is one of five years making an overall sentence, taking into account my earlier sentence, which consists of a non‑parole period of four years with a head sentence of six years.

32. The report of Dr Eagle is to accompany the warrant so that Corrective Services staff may be given as much information as possible as regards Mr Pleace’s mental state.

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Decision last updated: 23 August 2016