R v Quirk

[2023] NSWDC 394

District Court

New South Wales

Medium Neutral Citation:

R v Quirk [2023] NSWDC 394

Hearing dates:

4 August 2023

Date of orders:

4 August 2023

Decision date:

04 August 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to term of imprisonment of 11 months served subject to intensive correction in the community

Catchwords:

CRIME — Violent offences — offensive weapon — intimidation

SENTENCING — Aggravating factors — In company — Planned or organised criminal activity

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Intensive correction orders—Community Safety— time served in custody taken into account— time served in rehabilitation facility taken into account

SENTENCING — Relevant factors on sentence — Objective seriousness — Co-offenders — Parity — Quasi custody

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental health — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

R v Merritt [2023] NSWDC 29

Stanley v Director of Prosecutions (NSW) [2023] HCA 3

Category:

Sentence

Parties:

Brendan Quirk (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
S Fraser (for the offender)

Solicitors:
Morrisons Law (for the offender)
L McGonigal for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/192851

JUDGMENT – EX TEMPORE REVISED

Introduction

1. In the early hours of 28 June 2022 there was a disturbing incident in southern Wollongong. There is a CCTV recording which reveals what occurred. Four people driven by Brendan Quirk, the offender, now before the Court, arrived at a residential unit. One, a woman, who knew the residents, went to the door and tried to get entry. As she moved away from the door Greg Merritt appeared and demanded the door be opened. He produced, what is accepted, was a shortened gun. He was unable to effect entry.

2. The driver of the vehicle and another person are seen lurking in the shadows. While the woman went to the door. They could not have been seen by the residents of the premises. At about the time Merritt makes his demands of them, who I accept was Quirk, is seen at to retreat towards the car.

3. A police investigation, assisted by the CCTV, led to all four’s arrest on 1 July 2022. Quirk remained in custody for effectively 9 months until bailed to Oolong House.

4. Quirk appears today for sentence. In the Local Court he indicated that he would plead guilty of use Offensive Weapon in Company with Intent to Commit an Indictable Offence: s 33B(2) Crimes Act 1900 (NSW). The maximum penalty for that offence is 15 years imprisonment. The otherwise appropriate sentence must be reduced by 25% to reflect the utilitarian value of that early guilty plea.

Objective seriousness

5. The offence was a very serious one. People are entitled to the security of their home. No one should be disturbed by armed persons at all. No one should be subject to intimidation and to have someone with a shortened firearm appear at your door, is a particularly intimidating thing. Intimidation itself, while not the most serious of indictable offences caught by s 33B(2), is still a very serious offence with a maximum penalty of 5 years.

6. Where an offence is committed by a group of people the force of numbers makes it a more serious offence. Here, as Mr Fraser, who appears for the offender points out, there are some unusual features because the victims of the offence were not aware of the other two. Nevertheless, the offender’s role, while not obviously as serious as that of Merritt, whose motivation remains unclear, was still instrumental to the offence.

7. The offence could not have been committed if he had not driven the others to the scene. He did, however, retreat as soon as things started to escalate, a matter that I take into account. Although he is equally liable, he is not equally culpable as Merritt. Nevertheless, so serious was his role in this serious offence, that it is accepted that a custodial sentence is entirely appropriate and that ordinarily a sentence of full-time imprisonment would be imposed.

Parity

8. In April 2023 I sentenced Merritt: R v Merritt [2023] NSWDC 29. My starting point for his sentence, before allowance for statutory reductions, was 3 years.

9. Principles of parity apply to these proceedings. No one should be left with a sense of injustice that they have been treated unfairly by comparison with the sentence imposed on another - like should be compared with like. Parity is an expression of the Court’s desire so far as is practicable to ensure equal justice.

Subjective case for the offender

10. I have before me material relating to Quirk’s background. It is primarily set out in the report of Kris North, a respected Forensic Psychologist. Here report is not controversial.

11. Quirk is still young. He was born in 2001. He has a criminal history, but this is the most serious matter that he has ever faced. He has been subject to non-custodial sentences and Intensive Corrections Orders (ICOs). He has spent time on remand on prior occasions. He has had an experience of gaol for this matter, and I hope he has learnt the lessons gaol is meant to teach. I accept he does not want to return there.

12. He has supportive family. His mother stands by him and offers him accommodation. Her reference is before the Court.

13. Quirk was born locally. He lacked motivation in school. On leaving school he has had jobs, but it is clear, from the material before me that from an early age, before he was able to make rational informed choices, he took up the use of illicit drugs. It would appear that drugs have dominated his life. The material before me does help me to understand the man for sentence.

14. Ms North’s report indicates one important factor that is inextricably linked with his drug use. He has symptoms of a mental health disorder and depression since early adolescence. She also he has struggling to manage his anger, leading to conflict within the family, particularly with his father.

15. Ms North believes that he fits the diagnostic criteria for the following disorders; Major Depressive Disorder with recurrent episodes, Generalised Anxiety Disorder and a Stimulant Use Disorder.

16. Mr Fraser fairly accepts that none of these disorders played any role in the offending. He accepts that drug use and underlying drug use or even a mental illness cannot excuse such behaviour.

17. It is submitted that given the progress shown to date, a return “to custody” would be counterproductive.

18. It is always important to note that when sentencing for a serious offence like this courts have to consider retribution, that is by the seriousness of the punishment, the need to send a message to this offender, and others, that what they did was totally unacceptable. This is because crimes like this have an impact, not just on their victims, but the community.

19. At the same time, it is well recognised that for the young people with underlying mental conditions and people who have struggled since young with a drug problem, the community is best served by helping that person deal with those underlying problems – helping them turn the corner, work and contribute to the community. That purpose of sentencing should never be underestimated.

20. Ms North puts forward a treatment plan which involves substance abuse counselling, engagement with a general practitioner and a psychologist. He requires anger management treatment. He should be referred to Community Corrections for supervision and support.

21. Quirk has engaged in a number of aspects and programs within Oolong House over the four months he spent there. There is still a lot of work to be done. The report notes that Quirk is aware that he has a substance dependency issue but may not be ready to address these issues at the present time. Quirk has been given the tools necessary to implement change, that can only be done once Quirk is ready to address his core issues.

22. The Oolong report says he is polite and respectful, but he needs prompting to engage in therapy. Oolong has given him some good advice; that is, to stay connected with family and support networks, engage in relapse prevention plans, such as Strengthen your Motivation to Change, and take the help offered by supporters and family. They recommend he engage in their aftercare program.

23. His family are proud of him. They are proud that he has stepped out of his comfort zone and has sought assistance, but he will have to do more.

Quasi-custody

24. Quirk was granted bail to enable him to engage in the respected Oolong House Rehabilitation Program. He completed that program. It is not an easy program. It is a residential program. It is a quasi-custodial program. Courts in such circumstances can give a reduction in the otherwise appropriate sentence, to take into account attendance at such programs. For transparency’s sake, I indicate that I will reduce, the otherwise appropriate sentence by two months to reflect the four months spent in that program.

Submissions

25. In their written submissions Mr McGonigal, Solicitor for the Director of Public Prosecutions, and Mr Fraser, counsel for the offender, took me through the applicable legal principles. There was no significant difference between them. Both accept the seriousness of the offence. Both accept the application of relevant authorities.

26. At the outset I indicated that given his youth, immaturity, underlying mental health conditions and the need to address his drug problem that I would not contemplate sending him back to full time custody. Mr Fraser’s initial submission was that a total sentence, taking into account parity issues, the plea, Quirk’s subjective case and a finding of special circumstances, would effectively mean his non- parole period has been served.

Synthesis

27. Mr Fraser’s calculations were reasonably accurate. A full-time sentence with a short non-parole period was an option I considered; and which we discussed. Release to parole with a backdated sentence would place Quirk under the supervision of Probation and Parole. But I take the view although it is perhaps slightly more onerous for him to be supervised in the community, subject to intensive correction

28. An ICO would ensure he gets the help he needs and provide the positive reinforcement. As Ms North indicates, that community support might best help him help himself overcome his own reluctance to face the problems he has to deal with, and the difficulties involved in doing so.

29. Before I can impose an ICO I have to consider that no penalty other than imprisonment is appropriate. I have made that finding. I must then determine the appropriate term of the sentence, and where the issue arises, consider whether or not to make an ICO.

30. The paramount consideration before an ICO is made is community safety, and that principally concerns the harms to the community from the offender’s future risk: Stanley v Director of Prosecutions (NSW) [2023] HCA 3.

31. Here, for the reasons I have outlined, I believe that an ICO could best moderate any future risk. I have some confidence that with such assistance Quirk, stands a much better chance of not re offending. An ICO will enable him to work in the community and enable him to live with his parents.

32. For transparency I indicate that, had I accepted Mr Fraser’s submissions, taking into account all relevant matters I would have imposed, a sentence of 1 year and 10 months imprisonment with a non-parole period of 11 months, backdated to take into account time served in custody and Oolong. I would have made a finding of special circumstances allowing 50% of the sentence. I cannot backdate an ICO; which leaves the balance of the sentence that I had intended, of 11 months, to be served subject to an intensive correction. So had it not been for that decision a sentence of 1 year 10 months with 11 months on the bottom would have been imposed.

Orders

33. The formal orders of the Court therefore, Mr Quirk, are that you are sentenced to a term of imprisonment of 11 months. That sentence is to be served subject to intensive correction in the community. The standard conditions apply. You are to be of good behaviour, report to Community Corrections and accept their supervision. Additional conditions:

1. Engage in mental health care as directed;

2. Engage in drug relapse prevention programs

34. You will have to sign those conditions in the Court office before you go, that will take about half an hour.

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Decision last updated: 26 September 2023