R v Pocknell

[2015] NSWDC 332

District Court

New South Wales

Medium Neutral Citation:	R v Pocknell [2015] NSWDC 332
Hearing dates:	01/04/2015
Decision date:	01 April 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 1b - Sentence to a term of imprisonment of 3 years with a non-parole period of 2 years 1 month and 2 weeks.
Catchwords:	Criminal - Sentence, indecent assault.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Director of Public Prosecutions Kevin Anthony Pocknell - Offender
Representation:	Counsel: Ms Seeto – Crown Mr Conwell - Offender   Solicitors: Director of Public Prosecutions Nyman Gibson Miralis Lawyers - Offender
File Number(s):	2013/66506

Sentence

1. HIS HONOUR: Mr Pocknell, you have been following this conversation I trust. I propose to impose a sentence upon you of three years imprisonment, backdated to when you came into custody, and fix a non-parole period of two years one month and two weeks to expire, as I would best calculate it, on 18 April. The reason I fixed that period, rather than directing that you be released to parole immediately, is that I think some arrangements ought to be made for your release to the community.

2. You have been in custody for two weeks. You are no stranger to being in custody, I know that, so you will just have to bear with it for the next two weeks. You will be classified of course. You will probably go out of remand into some other prison for a short period of time, but some arrangements ought to be made for your return to the community in order, not only to help you, but to help the community. Because I have to worry, not just about you, my primary concern has to be the welfare of the community. I cannot lock you up forever, and I am not suggesting for a moment you should be locked up forever. But I have to be concerned about what emerges from your criminal history, do you understand that?

3. I just gave judgment in relation to the trial by judge conducted by me over the last six or seven days in relation to the accused, Kevin Anthony Pocknell. I found him guilty of one count of indecent assault, and the facts and circumstances I need not dilate upon at this point. The maximum penalty for the offence for which he is to be sentenced now, the offence for which I found him, count 1B, is five years imprisonment. I would understand that there is no standard non-parole period in relation to that offence, is that right, Madam Crown?

4. CROWN PROSECUTOR: No, your Honour, there’s not.

5. HIS HONOUR: In any event, even if there was a standard non-parole period, what I am about to say would be equally apposite in that circumstance, as it is without a standard non-parole period. The offence of course is a serious offence. The prisoner took advantage of a woman who was heavily sedated or intoxicated. But then again, the prisoner himself was heavily intoxicated, and I take note of the fact that both he and the victim were very much part of the same milieu, although representing different aspects of it.

6. I want to speak, if I may, just briefly of Mr Waters, Ms Murray, and Ms Cargill. They are people who obviously have gone through life with many disadvantages, some of which, many of which perhaps, Mr Pocknell has never had to face bearing in mind their Aboriginality. I want to commend them on the interest they took in the welfare of the complainant and the interest they took in the matter such as to bring this matter to the attention of the police. It was right and proper that this matter be investigated by the police and I want to commend the police on their conduct of the investigation.

7. I appreciate there were criticisms made, in a professional sense, of the conduct of the record of interview and the conduct of the Custody Manager. But, ultimately, as I concluded in the earlier judgment I gave, the relevant parts of the interview were admitted because of the attitude of the accused himself. Because the accused himself was willing to be interviewed. I have absolutely no doubt that if the accused, at any stage of the early part of that interview, had made it clear to the detectives, one of whom is in court today, that he did not want to continue because he was unable to do so, the interview would have come to an end.

8. I sincerely want to commend all the police for the work they did in relation to this matter. The poorest and the most vulnerable in the community are as much equal to the protection of the law and the best efforts of the New South Wales Police Force as the wealthy, and the powerful living in Vaucluse. I believe the complainant has been given opportunity to be protected by the actions of those who sought to look after her, both civilians and those representing the New South Wales Police Service and the various instrumentalities of our public health system.

9. That having been said, as I earlier indicated, this is a serious offence for the reasons I have identified but it has to be seen in its proper context. I could not conclude, although it is always possible that it is so, that the prisoner is a serial sexual predator. His own circumstances speak against him randomly preying upon homeless women. His circumstances really were no better than that of the complainant. The offence, however, is one that would ordinarily require a term of imprisonment.

10. I have had regard to the prisoner’s criminal history. He has an extensive criminal history in South Australia and in New South Wales. I do not know much about his personal circumstances. No material has been put to me from the bar table. But I note, for example, that in South Australia, apart from breaches of orders for him to be of good behaviour and assaults against the person, he has a conviction for armed robbery for which he was sentenced to four years nine months’ imprisonment, with a non-parole period under South Australian law of 31 months.

11. He has convictions of drinking and driving, street offences, failing to comply with bail agreements and assault occasioning actual bodily harm. A number of offences are consistent with his heavy abuse of alcohol. Although I understood from the evidence given on the voir dire that his circumstances in Sydney of being a homeless person, who is clearly heavily addicted to alcohol and perhaps other substances, have largely arisen in intensity over the last four to seven years.

12. That having been said, being homeless and being an alcoholic or “killing” himself by drinking alcohol, are no excuses for committing crime. I note that in New South Wales he has convictions for drink driving, assault, occasioning actual bodily harm, resisting police and particularly a conviction in the Sydney District Court on 9 April 2010 for wounding a person intending to cause grievous bodily harm, for which he was sentenced to three years imprisonment with a non-parole period of 18 months. He is no stranger to being in custody in New South Wales, he is no stranger to being on parole. I note that he has other terms of imprisonment in New South Wales. He has been given the benefit of bonds and the like. So ultimately, his criminal history entitles him to no specific leniency.

13. Having said all that, the bottom line is, the law is quite clear as to the significance of the maximum penalty for particular offending. This is not the worst case by the worst type of offender, and it seems to me, in the reality of the situation with which I now face the matter, that the appropriate term of imprisonment, giving due weight to s 3A Crimes (Sentencing Procedure) Act and taking on board the issues that arise over s 21A, is a term of imprisonment of three years.

14. I note in relation to s 21A matters that, whilst the prisoner has very few mitigating factors, I certainly could not conclude that he is contrite or that he is unlikely to re-offend or he has good prospects of rehabilitation, certainly he did not plead guilty there was certainly no “co-operation” with the police. I can conclude as one mitigating factor that there was no substantial harm to the victim, in the sense that there was no physical injury to the victim. What psychological harm she bears from the knowledge of what has happened is of course something that I cannot measure in the absence of evidence.

15. There are no specific aggravating factors that arise under s 21A(2). In that regard it seems to me what arises under s 21A(1) of the Act is most pertinent, that is, the facts speak for themselves.

16. I should make one other point about mitigating factors. I believe it is appropriate to conclude on balance that this is not a planned offence, certainly not part of organised crime. This is an opportunistic offence. Two people affected by alcohol and/or drugs, known to each other, albeit casually, in the same place at the same time, finding themselves sleeping rough together under blankets obviously contributed to the situation. But I certainly conclude that at no stage did the complainant indicate to the accused that she was prepared to sleep with him for the purposes of having sex. I believe that no matter how intoxicated he was, he sought to take advantage of the fact that she was “out of it”.

17. His criminal history, as I have said, entitles him to no particular leniency. It seems to me, in the context of what is the very most that could be imposed by way of a maximum penalty, that there should be some finding of special circumstances. The period of supervision will be limited in context, but there needs to be some extension of the period of supervision, to assist the accused to adjust to community living and perhaps to get some direction in relation to the fundamental issues that confront him, that is, his inability to control his drinking, his use of prescription or other drugs, and his inability to find appropriate housing and/or employment. What his capacity is in that regard I do not know. As I say, I am denied relevant information. But then again the reality of the situation is, as the parties seem to agree, this is a matter that should be dealt with now and not delayed any longer than has occurred at the present time. I make that comment without any criticism of the learned Crown or learned counsel for the accused.

18. I have concluded thus that I should fix a sentence that would permit me to direct the accused for release to parole. I do not believe that he should be released to parole immediately. Simply because I believe some steps should be taken to provide him with some assistance to find either accommodation and/or transport to travel to another place, if needs be, and also there should be some rudimentary plan in place to structure the supervision that will be available to him. Simply sending him off into the street today, which is within my power in one sense, would be a recipe for disaster, as I said during the submissions, for both the accused and the community.

19. And thus, in the circumstances of the matter, I convict the prisoner of count 1(b). In respect of that count I sentence the prisoner to a term of imprisonment by way of non-parole period of two years one month and two weeks. I direct that that non-parole period commenced on 4 March 2013. It will expire on 18 April 2015. I direct that the prisoner be released to parole on that date and be subject to a balance of sentence that will expire on 3 March 2016. Thus, the total sentence is three years, the non-parole period is two years one month and two weeks. That constitutes a finding of ‘special circumstances’ pursuant to s 44 Crimes (Sentencing Procedure) Act 1999 for the reasons I have earlier outlined shortly in my judgment. I will leave the issue of the appropriate conditions of supervision for the prisoner to the expertise of the Parole Authority.

20. SEETO: Your Honour, might I just check, your Honour said non-parole period of two years one month and two weeks?

21. HIS HONOUR: Two weeks, starting from‑‑

22. SEETO: At one stage you said one year.

23. HIS HONOUR: Did I? I meant two years. He’s obviously been in custody - in fact I think I heard myself say that, too, Madam Crown, and I apologise. No it’s a non-parole period of two years one month and two weeks commencing on 4 March 2013, expiring on 18 April 2015. I direct that the accused be released to parole on 18 April 2015. That order’s been signed.

24. Mr Pocknell, do you understand the order I’ve made? You should be released to parole on 18 April. Hopefully the parole authority will have the opportunity in the next fortnight to consider your case and to fix appropriate conditions for your release to supervision. What you do when you are released is going to be a matter for you. What power you have to avoid drinking alcohol and all those things are going to be matters for you in conjunction with those that are going to assist you. But you know as well as I do, if you go back into the streets and continue the way you were living, your death is going to come sooner than it otherwise will. But unfortunately, too, you’re going to create troubles for yourself and other people that will lead you back to Court inevitably.

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Decision last updated: 20 January 2016