R v Proctor

[2022] NSWDC 489

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Proctor [2022] NSWDC 489

Hearing dates:

11 August 2022 and 14 October 2022

Date of orders:

19 October 2022

Decision date:

19 October 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1       

1             The offender is convicted.

2 Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment,                 the offender is ordered to comply with a Community Corrections Order for 3 years.

3             The standard conditions of the order apply:

               (a)      the offender must not commit any offence; and

               (b)      the offender must submit to supervision by a Community Corrections Officer.

4             The following additional conditions apply:

               (a)      the offender must participate in and receive mental health treatment as reasonably directed by                                         Community Corrections;

               (b)      the offender must not associate with Ethon Paul;

               (c)      the offender must complete 80 hours community service work.

5             The offender must report to the Wyong Community Corrections Office on or before 4pm on 26 October 2022.

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Regina (Crown)
Nathan William Proctor (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aubrey Brown Lawyers (Offender)

File Number(s):

2021/335510

Publication restriction:

None

Judgment

1. Nathan William Proctor (the offender) appears for sentence after pleading guilty in the Local Court to an offence of Aggravated Break Enter and Steal contrary to s 112(2) Crimes Act 1900.

2. The maximum penalty for the offence is 20 years imprisonment and parliament has prescribed a standard non-parole period of 5 years.

Approach to Sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters referred to in s 21A of the Act.

4. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Agreed Facts

6. The parties tendered an Agreed Statement of Facts that differed substantially from those tendered in the co-offender’s case. The offender’s Agreed Statement of Facts can be summarised as follows.

7. The offender is currently 28 years of age.

8. In the period 12 April 2021 to 17 April 2021 the offender and co-offender exchanged several text messages in which they discussed a plan to go to premises at Greenacre and steal money belonging to Mohomad Dalati, otherwise known as “Moey” or “Boss”. These messages discussed a plan to storm into the house “covered up” with “a knife or fake gun or real”, take the cash and leave.

9. At about 5:04pm on 17 April 2021, the offender and co-offender began driving from Wyee to the premises in Greenacre.

10. At about 9:07pm on 17 April 2021 the offender and co-offender arrived at the premises and stood across the road. The offender and co-offender approached the premises and entered the al fresco area by opening the garage door which was closed, but not locked. This was captured on CCTV footage.

11. At that time, Nahida Dalati was sitting in the al fresco area. She said to the offender and co-offender, “You can’t open the garage, you are not allowed to come inside, go outside”. The offender and co-offender asked whether Mohomad Dalati was home because they needed to buy something off him. The victim replied that he was not home. The offender and co-offender asked the victim, “Is that Moey’s safe?”, to which the victim replied. “I don’t know. You’re not allowed in here, please go out.”

12. The co-offender placed a phone call to Mohomad Dalati and said, “Hey ‘Bro, where are you? All right, we’ll see you in five”.

13. At about 9:10pm the offender and the co-offender left the al fresco area closing the garage door behind them. While standing outside the garage door the co-offender said to the offender, “Run in, grab the bag fast. Ready, set, go”.

14. A few seconds later, the offender and co-offender re-entered the al fresco area of the premises by opening the garage door that they had previously closed. The offender and co-offender said to the victim, “Moey just called us and said we can grab the bag quick”. The victim said “no”, to which the offender and the co-offender replied, “Sorry, Ma’am, we have to”.

15. The offender and co-offender started to look around the al fresco area while the victim was yelling at them to get out. The offender found a black backpack belonging to the victim’s son, which was empty. The offender left the premises through the garage door while the offender remained looking around the shelves.

16. The co-offender then located a small electronic safe behind an Asics shoebox on one of the shelves. The safe belonged to Mohomad Dalati.

17. The victim walked towards the co-offender to try and stop him from taking the safe. The co-offender used both his hands to push the victim on her left forearm, which hurt and caused her to fall on the couch.

18. The co-offender removed the safe from the shelf and carried it from the premises. The offender and co-offender then travelled back to the Central Coast.

19. On 18 April 2021 and 19 April 2021 the offender and co-offender exchanged several text messages in which the co-offender confirmed that he was in possession of the safe taken from the premises.

20. On 21 November 2021, the offender attended Toronto Police Station and was placed under arrest. The offender declined to participate in an ERISP.

Sentencing Assessment Report

21. The Court received a Sentencing Assessment Report, the content of which can be summarised as follows.

22. The offender is single and lives with his parents, with whom he has a supportive relationship. The offender admitted to the author that he often felt bored and has regular contact with anti-social associates.

23. The offender has no recorded criminal history.

24. The offender was diagnosed with Asperger’s syndrome in 2008. The offender’s Behavioural Therapist told the author of the report that the offender has difficulty in managing stressful social situations and may panic and engage in undiscerning behaviour at such times.

25. The offender’s records indicate that the offender has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD).

26. The offender rationalised his offending to the author, stating that his actions fell within a “morally grey area” because his intended target was a drug dealer. He admitted he was financially motivated and had calculated the risks involved in his offending behaviour. He lacked insight into the serious nature of the offence and deflected blame onto his co-offender, minimising his role and responsibility. The author wrote that the offender displayed a preoccupation with financial gain and wealth. The offender admitted that he gained employment as an Uber driver and delivered packages of illegal substances for $2000 per week. He displayed a negative attitude about the financial expenses he has incurred since his offending behaviour.

27. The offender denied being aggressive or violent at the time of his offending.

28. The author of the report found that the offender had limited insight into the seriousness of the offending behaviour, that he seemed more concerned with saving face and that he displayed a limited understanding of the negative impact his conduct may have had on the victim and her family.

29. The offender expressed willingness to engage in intervention and undertake community service. The author of the sentencing report stated that the offender displayed an unsatisfactory attitude toward supervision throughout the interview and that the offender appeared resistant to engaging in the interview process because of potential loss of employment opportunities and income that may result.

30. The offender was assessed as a medium-low risk of re-offending and suitable to perform community service work.

The Offender’s Case on Sentence

31. The offender tendered a report of Dr Matthew Conroy, clinical neuropsychologist dated 9 August 2022. His mother, Sally Proctor, gave evidence and was cross-examined.

32. The offender was born in Australia in 1994 and is the youngest of two children.

33. He did well at pre-school and in kindergarten and was a happy child who enjoyed the company of his friends.

34. At age six the offender reportedly fell to the ground while playing soccer and after several more incidents he was diagnosed with epilepsy. The offender commenced medication and his seizures were well controlled.

35. The offender attended Wyee Public School until year 1, when he was placed in a composite class with year 2 students. He was bullied by the year 2 students and became disruptive. He was assaulted by one of his teachers and came home with bruising. He had an episode where he had a “meltdown” at school and his teacher locked him in a wire enclosure. His mother was called to come and collect him. On the telephone she could hear the offender yelling for help. When she arrived at the school, his mother observed him to be confined in the wire enclosure and markedly distressed. His parents were told that he could not remain at the school.

36. The offender was then home schooled. His mother observed him to be very depressed because he could not understand at age seven why he had been excluded from school and the company of his friends and he tried to kill himself at about this time.

37. At around age eight the offender was diagnosed with ADHD and Asperger’s syndrome. He came under the care of specialists who assisted him for a long time and regularly conducted tests on his brain function.

38. The offender returned to school in about year 9, at the request of the Department of Education in an attempt to reintegrate him into the system. He experienced further behavioural difficulties in his return to formal schooling and was locked in a cupboard by a teacher when he had an episode of bad behaviour. He obtained his Year 10 Certificate from an alternate learning centre.

39. The offender has worked in several semi-skilled jobs including as a lawn maintenance worker and at McDonald’s. In 2016 he completed his first year of a carpentry apprenticeship. He was offered a traineeship at Midcoast Timbers and initially excelled in the position but ceased working there after he was allegedly assaulted at work and also suffered several seizures. In 2020, the offender completed an Assistant in Nursing course. In 2021 he commenced working at Woolworths for up to 40 hours per week.

40. The offender has had ongoing mental illness including anger issues and depressed mood with self-harm and suicidal ideation at times. He had inpatient admissions to Wyong Hospital in November 2018 and June 2019 following incidents of self-harm. Following these admissions, psychological and psychiatric support services were recommended to the offender but it is unclear whether he engaged regularly with these services.

41. In October 2019 the offender was admitted to Wyong Hospital for a suspected drug overdose. A brain MRI revealed multiple acute infarcts bilaterally in the basal ganglia, corona radiata, central semiovale, right occipital and left para-hippocampus regions. He remained in ICU for a week. There was some concern about ongoing right-sided weakness. In the neuropsychologist’s interview the offender’s father reported that the offender had significantly changed since this brain injury and that he was now easily exploited and had difficulty problem solving and managing stressful situations. He also had concerns for his attention and memory.

42. The offender has been receiving a disability support pension since this incident. He was also accepted as a participant in the National Disability Insurance Scheme in 2020 and receives support from a behavioural support worker once per fortnight.

43. On 21 April 2021 the offender was assaulted. His Glasgow Coma Scale score was 15/15 on admission to Concord Repatriation General Hospital. He did not lose consciousness and there was no evidence of vomiting, headaches, amnesia or other neurological symptoms.

44. The offender was having monthly psychological sessions but at the time that the report was written, his psychologist had been on maternity leave, so he had not had psychological support for three to four months. He was also meeting with a behavioural support practitioner once every three weeks to work on problem-solving. The offender denied having any substance abuse issues. He admitted to experimenting with multiple illicit substances but denied ever being addicted to them. He acknowledged that he placed himself at risk by way of his close associations with local drug users and suppliers.

45. The offender told the neuropsychologist that since his arrest he had difficulty trusting other people, was more cautious and was worried that he may be taken advantage of by other people.

46. The neuropsychologist performed neuropsychological assessment to ascertain the level of his acquired brain injury and how this might impact the offender’s decision-making abilities or the offending behaviour. It was determined that the majority of the offender’s cognitive abilities fell within the expected average range and that his intellectual functioning, attention, working memory, learning and memory were all average or better. The neuropsychologist found little to no evidence of disinhibition or deficits in problem solving, reasoning or mental flexibility. The neuropsychologist did find, however, that the offender had a clinically significant reduction in process speed. However, he opined that it is unlikely that this contributed to poor decision-making in relation to the offending given the premediated nature of the offender’s actions.

47. The report acknowledged that there was a disparity between this neuropsychological assessment and the reports of the offender’s family which indicated that the offender had deficits in inhibition, flexible thinking, emotional control, self-monitoring, initiation, planning, organisation and task monitoring.

48. The offender has lived at home his whole life, except for a period of five days when he moved out with friends. He found it too difficult to live away from home due to the habits of his housemates.

49. He has a good relationship with his parents. He speaks regularly to his father, who works nightshift and spends time with him during the day. His mother’s evidence was that the offender requires a lot of support and that she expects he will always live with his parents. They try to give him autonomy. He has a driver’s licence and they respect his privacy. He pays board and is responsible for arranging his own finances. He had a pattern of seeing his psychologist in one week and the behavioural support worker the following week. In the period leading up the offence, his psychologist was on maternity leave and he was not seeing another psychologist.

50. The offender’s NDIS entitlements are presently being reviewed for the next two years. He is seeking additional funds for psychological support and less funding for physiotherapy and speech therapy which are services he does not need much anymore.

51. His parents were shocked by his involvement in the offence. At the time, of the offence the offender appeared a little more stressed than usual, but he did not appear to be up to no good.

52. He has an offer of work as a traffic controller, subject to completing three trial shifts successfully. He has not embarked on those shifts to this point because he has had a series of other appointments to attend.

53. The offender told his father that just prior to the offence that a friend had tried to get him working for Uber Eats as a driver. When he accompanied the friend on shifts to see what it would be like, he became aware that the friend was delivering illicit substances for money and he decided not to pursue that work opportunity any further.

54. His mother gave evidence that the offender has learned behaviours to deal with his mental condition, which I infer means in this context a lack of social awareness and reduced empathy. I am satisfied that his condition is so significant that he would find it difficult to live away from home and without the substantial support and stability provided to him by his parents.

Objective Seriousness

55. The offence involves some objective gravity.

56. The circumstance of aggravation relied on by the prosecution is that the offender broke into the premises knowing that there were people present inside. There are a number of aggravating factors referred to in s 21A(2) Crimes Sentencing Procedure Act 1999 that are established, that I will return to. To the extent that those matters are also referred to in assessing the objective seriousness of the offence, I have not double-counted those factors.

57. The offence involved some planning. The offenders exchanged text messages in the days leading up to the offence, as well as having discussions amongst themselves at the time of the offence as to how it would be committed.

58. The offence involved multiple incursions into the same property.

59. The offenders spoke to the victim who told them to leave. The victim was pushed when she tried to intervene.

60. The victim was in her own home and vulnerable to an attack by the younger male offenders, who were in company.

61. The offence was committed for financial gain. The offenders stole a safe. There was no evidence as to the value of the property taken, but it appears that the offenders expected it to contain a not insignificant sum of cash.

62. The offender has a history of Asperger’s syndrome, ADHD, epilepsy, an acquired brain injury and ODD. The neuropsychological testing demonstrated only a reduction in processing speed. However, the offender’s parents reported more significant issues in conducting his activities of daily living. I note that the offender is receiving a disability support pension and is receiving services through the NDIS that include regular support from a behavioural support worker. I am satisfied that the extent of the offender’s mental impairment is substantial and more in line with his parents’ observations as opposed to the results of the neuropsychological testing. My conclusion is supported by reference to the responses the offender gave to the author of the SAR, which indicate to me that the offender has difficulty in regulating his behaviour and understanding the consequences of his actions even when that would be in his best interests. I am satisfied that there was a causal connection between his mental condition and the offending conduct. The offender did not fully understand the consequences of his actions and was easily led into becoming involved in the offences and taken advantage of by the co-offender. His mental condition justifies a very substantial reduction in his moral culpability for the offence.

63. I have taken into account the maximum penalty for the offence and the standard non-parole period.

Deterrence

64. General deterrence is of significance to the offences before the Court, One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with appropriate punishment.

64. There is a need for specific deterrence. The offender has a complex mental condition and it may lead to recidivism in the future. The offender needs to understand by reference to the penalty imposed on him that if he continues to commit offences that he will meet with condign punishment.

Aggravating Factors

66. The offence involved the actual use of violence, but the level of violence was relatively minor: s 21A(2)(b) Crimes (Sentencing Procedure) Act 1999.

67. The offence was committed in company: s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

68. The offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

Mitigating Factors

69. The offender does not have a record of previous convictions: s 21(A)(3)(e) Crimes (Sentencing Procedure) Act 1999.

70. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.

71. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. His insight into his offending conduct is limited as a result of his mental condition. The offender entered a plea of guilty which also indicates remorse.

72. The offender was not fully aware of the consequences of his actions by reason of his complex mental condition: s 21A(3)(j) Crimes (Sentencing Procedure) Act 1999.

73. Overall, this is a case that calls for a significant reduction in sentence to what would otherwise be appropriate by reference to the offender’s complex mental condition for the following reasons. First, the offender’s moral culpability is reduced and the need to denounce the crime is reduced. Second, the offender is an inappropriate vehicle for general deterrence. Third, I am satisfied that there was a causal connection between the offender’s mental condition and the offending conduct, in that he was preoccupied with money and failed to understand that his actions were socially unacceptable. I accept the evidence of his mother that he has not previously engaged in anti-social behaviour of this severity. Fourth, a custodial sentence would weigh more heavily on the offender. He would be at significant risk of being physically and mentally intimidated. Fifth, his mental condition renders him psychologically immature in that he is less likely to be able to understand social cues and to apply what he learns to more complex problems.

Other matters

74. I must have regard to parity. I sentenced the co-offender, Ethon Paul to a term of imprisonment of 2 years and 6 months with a non-parole period of 15 months. The co-offender had prior convictions and was on conditional liberty at the time of committing the offence. There are good reasons for imposing a lesser sentence of a different nature on the offender, including the co-offender’s criminal history, their respective roles in the offence and the offender’s complex mental condition.

Penalty

75. The offender is convicted.

76. I have considered s 5 Crimes (Sentencing Procedure) Act 1999. For the reasons given, I am not satisfied that the threshold has been crossed, even for such a serious offence. The nature and extent of the offender’s mental condition are such that he did not fully understand the consequences of his actions. He was easily influenced and taken advantage of. The offender needs to be assisted to avoid getting into similar difficulties in the future. He has already recognised that he needs to be more wary of people.

77. Pursuant to s 8(1) Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, the offender is ordered to comply with a Community Corrections Order for 3 years.

78. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

79. The following additional conditions apply:

1. the offender must participate in and receive mental health treatment as reasonably directed by Community Corrections;

2. the offender must not associate with Ethon Paul;

3. the offender must complete 80 hours community service work.

80. The offender must report to the Wyong Community Corrections Office on or before 4pm on 26 October 2022.

81. If the offender fails to comply with the conditions of the order, further action may be taken against him. This may require him to return to Court and be re-sentenced.

82. The offender must attend the Registry where a copy of the order will be explained and given to him.

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Amendments

30 January 2023 - Orders on cover sheet amended so as to read identical to orders listed in the judgment in [75] to [80].

Decision last updated: 30 January 2023