R v Sharn Bergan; R v Rick McAndrew

[2017] NSWDC 405

District Court

New South Wales

Medium Neutral Citation:	R v Sharn BERGAN; R v Rick McANDREW [2017] NSWDC 405
Hearing dates:	10 November 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	BERGAN: Convicted. Agg B&E & commit serious indictable offence-in company:- Special circumstances found – age, need for extended parole period, and assistance in addressing anger management, drug and alcohol issues, Sentenced to a term of imprisonment for 2 years and 6 months comprising of a NPP of 15 months to commence on 30 September 2017 and to expire on 29 December 2018, and a balance of term of 1 year and 3 months to commence on 30 December 2018 and to expire on 29 March 20/20. To be released to parole at the end of the NPP, on/about 29 December 2018. Stalk/intimidate intend fear physical etc harm (personal)- Sentenced to a fixed term of imprisonment for 6 months to commence on 30 September 2017 and to expire on 29 March 2018. The sentences are to be served concurrently. McANDREW: Convicted. Special circumstances found – 1st time in custody, age (57), cancer and sequelae. Indicative sentences: Agg B&E & commit serious indictable offence-in company: Imprisonment for 30 months – NPP 15 months Assault occasioning abh in company of other(s): 9 months imprisonment Stalk/intimidate intend fear physical etc harm (personal)-: 6 months imprisonment Aggregate sentence: Sentenced to a total term of imprisonment for 2 years and 10 months comprising of a NPP of 17 months to commence on 27 September 2017 and to expire on 26 February 2019, and a balance of term of 17 months to commence on 27 February 2019 and to expire on 26 July 2020. To be released to parole on 26 February 2019.
Catchwords:	CRIMINAL – Sentence - aggravated break and enter and commit serious indictable offence in company – stalk/intimidate, intend to cause fear of physical harm assault occasioning actual bodily harm in the company of others - joint criminal enterprise - subjective matters - special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	King v R (2010) NSWCCA 202
Category:	Sentence
Parties:	Regina Sharn BERGAN Rick McANDREW
Representation:	Counsel: Defence (McAndrew): Mr J Jeffrey   Solicitors: Crown: Mr R Munro Defence (Bergan): Mr D Murray
File Number(s):	2015/00322437, 2015/00322444

Judgment

1. In this matter Sharn Bergan and Rick McAndrew appear for sentence.

2. Sharn Bergan is to be sentenced in respect of two offences, being an offence of aggravated break and enter and commit serious indictable offence in company in regard to Krystal Evans, contrary to s.112(2) of the Crimes Act 1900. The maximum penalty provided is 20 years' imprisonment and a standard non-parole period of five years is provided by the legislation.

3. The second offence is stalk/intimidate, intend to cause fear of physical harm, et cetera, in respect of Matthew Clarkson, contrary to s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty is five years' imprisonment and there is no standard non-parole period.

4. Rick McAndrew is to be sentenced in respect of three offences, the first being assault occasioning actual bodily harm in the company of others in respect of Mr Shanahan. The maximum penalty provided is seven years' imprisonment and there is no standard non-parole period.

5. The second offence is aggravated break and enter and commit serious indictable offence in company in respect of Krystal Evans, contrary to s.112(2) of the Crimes Act, in relation to which the maximum penalty is the same as previously referred to in respect of Mr Bergan, and with, of course, the same standard non-parole period.

6. The third offence is stalk/intimidate intend fear or physical harm re Matthew Clarkson, contrary to s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007 and the maximum penalty is the same as previously referred to.

7. Each of the offenders was committed for trial on 28 October 2016 at the Gosford Local Court. The matters were listed for trial commencing on 28 August 2017 at the Gosford District Court. The indictment contained four counts. The first count related only to the offender Rick McAndrew and on arraignment he entered a plea to that count, being the offence previously referred to of assault occasioning actual bodily harm in company in relation to Mr Shanahan. The plea was in the circumstances very belated, and of little real utility in the circumstances where the other charges proceeded as a defended trial; however, in respect of that offence I will allow him a discount for the utility of the plea in the order of about 7 and a half percent.

8. Count 2 was an offence contrary to s.112(2), being the offence of break and enter the dwelling house of Krystal Evans and commit a serious indictable offence therein, namely, intimidation in circumstances of aggravation, namely, that they were in company with each other, and Adam Fleeton and Rodney Heginbotham.

9. Count 3 was an alternative to Count 2, which for present purposes is irrelevant as the jury found a verdict of guilty in respect of the each of the offenders in respect of Count 2.

10. Count 4 was the further charge that each of the offenders, on 2 November 2015, at Wamberal, did intimidate Matthew Clarkson with the intention of causing the said Matthew Clarkson to fear physical or mental harm contrary to s.13(1) of the Crimes (Domestic and Personal Violence) Act as previously referred to.

11. The Crown case in respect of each of the offenders was one of a joint criminal enterprise. The jury returned their verdicts of guilty in respect of Counts 2 and 4 in respect of each offender on 31 August 2017.

12. Each of the offenders was arrested on 2 November 2015. Sharn Bergan was in custody from 2 November 2015 to 15 December 2015, being a period of 44 days. Rick McAndrew was in custody from 2 November 2015 to 18 December 2015, being a period of 47 days, rather than the 46 days referred to in the Crown Sentence Summary.

13. Reporting Services Branch was unable to provide transcript during the course of the trial, and there is still no transcript available for the purposes of establishing the facts found by the jury beyond reasonable doubt. I have relied on my not always complete notes of the trial together with the document entitled Crown Position on the Facts, contained at Tab 2 in each of the Crown sentence bundles and on the submissions that have been made during the course of the sentence hearing.

14. I find the following matters beyond reasonable doubt, unless otherwise indicated. The Wamberal Youth Hostel Association premises are located in Ocean View Drive, Wamberal. The hostel is comprised of a main residence containing leased rooms and two detached units. The entrance to the front of the main residence was at the time of the offending unlocked and unsecured.

15. On 2 November 2016, Room 8, being a detached unit almost directly opposite the front door to the premises, was leased to John or Johnny Evans and his partner Krystal Evans. At around 7.30pm, CCTV captured the offenders Rick McAndrew and Sharn Bergan and their co-offender in some of the offences, Adam Fleeton, having a conversation opposite the hostel on Ocean View Road. The group remained at the location for approximately six minutes before approaching the entrance to the hostel.

16. CCTV captured Bergan and McAndrew approaching the entrance, followed by Fleeton and then followed by the co-offender Troy Ivins. As Ivins approached and entered on to the porch area outside the entrance, he produced a meat cleaver, which had been wrapped in a jumper. Some of the group that entered the foyer area exited before Ivins produced the meat cleaver. The co-offender Heginbotham entered the premises separately.

17. In the premises at the time were the caretakers, Matthew Clarkson and his partner, Karly Webb-Kreft, as well as their 4 month old child Marley. Ms Webb-Kreft's grandmother, Narelle Webb, and her stepfather, Warren Shanahan, were also present in the premises, as were a number of residents, including Krystal Evans, who was then in Room 8. John Evans was not present at the time.

18. Once inside the main foyer, members of the group commenced opening the doors of the leased rooms and questioning residents as to the whereabouts of John Evans. They exited back on to the front porch. In respect of the offender Bergan, the CCTV recorded that when Ivins produced the meat cleaver, Bergan looked in his direction and proceeded to go away from the front entrance and down one or two steps and to turn to the right. This would have taken him to the vicinity of the door to Room 8, and a passage between Room 8 and the main part of the building. At the end of the passage there was an open area associated with some facilities such as laundries and toilets. The group made their way to the common area at the rear of the residence via the passage between Room 8 and the main residence.

19. Warren Shanahan at the time was in the open area at the end of the passage to the rear. He was immediately attacked by the offender McAndrew, who hit him approximately four times around the face and head area. Webb-Kreft, who was present at the time, described her stepfather as in effect being “hit all over the place.” The assault caused Shanahan's chin to bleed from a superficial laceration.

20. Ivins intervened, threatening Shanahan with the meat cleaver, and said, "Get on the ground". Shanahan proceeded to cower on the ground. Karly Webb-Kreft then pushed the offender McAndrew away from Shanahan, repeatedly informing him that Shanahan was her stepfather, and not “Johnny”, as well as indicating that Johnny resided in Unit 8.

21. The accused persons then attended Unit 8. Krystal Evans had been alerted by the commotion at the rear of the premises at least, and was outside Room 8 when she heard the reference to Room 8 being made. She then re-entered Room 8, closing the screen door and locking the main door. One or more of the group then proceeded to open the screen door and the wooden door was then kicked in and forced open. McAndrew entered the room as one of three persons who entered.

22. Ms Krystal Evans' evidence was that three persons initially entered the room, but that eventually there were in fact five persons in the room apart from herself. The contents of the room were generally placed in turmoil, including the mattress from the bed being upset. While this was happening, McAndrew and others were demanding that she inform them as to where Johnny Evans was. Ivins was also one of those persons who had entered the room, still armed with the meat cleaver, and was a party to the threats made to Ms Evans, although eventually he pulled McAndrew from the room and told him and the other accused, "He's not here, enough, let's go." Krystal Evans was warned, "You've got 24 hours", in relation to providing the location of Johnny.

23. Heginbotham had entered the foyer area and approached Karly Webb-Kreft stating, "Where the fuck is he? We're going to get him; we're going to get him. You're a little slut." Fleeton approached Webb-Kreft outside the premises, standing over her, and yelling at her, "Make sure you tell him we're going to get him. We'll be back. This isn't over yet." All then left the premises.

24. At approximately 10pm, police were conveying Clarkson and Webb-Kreft to Gosford Police Station to make a statement when they identified Heginbotham seated in a motor vehicle outside the Terrigal Hotel. He was stopped in his vehicle a short distance away and arrested, cautioned and conveyed to the Gosford Police Station. As a result of the police having to deal with Heginbotham, Clarkson and Webb-Kreft had alighted from the police vehicle and walked back to the youth hostel.

25. At 10.25pm McAndrew, Bergan and Fleeton again attended the youth hostel. In the intervening period they had attended at the Terrigal Hotel. Fleeton had bought a carton of alcohol, or a half carton of alcohol, which returned with them to the hostel. In the intervening period, while Clarkson was walking back to the youth hostel, he had rung McAndrew, who was known to him. He was informed by McAndrew that there would be, "more drama over Johnny" ... "more shit was going to go down."

26. As part of the interactions between the residents and the manager, Clarkson, Bergan asked Clarkson to show him where Johnny's car was and threatened to, "…put funnel webs in your bed."

27. While at the premises on the second occasion, Fleeton demanded to know who owned a vehicle, in fact owned by Karly Webb's grandmother. Persons were heard to say: " If that's the car, let's smash it up. Clarkson informed them that it was his mother-in-law's, and he was taken to his mother-in-law so that she could confirm it, at which time Fleeton replied: “Bullshit, you told her to say that. You're lucky you've got your baby here; I'd slaughter you."

28. The three persons then left the hostel.

29. A few minutes later, a police sergeant saw McAndrew and Fleeton walking towards the Country Comfort Inn on Terrigal Drive and then located them in Ena Street, Terrigal. They were arrested and cautioned and conveyed to Gosford Police Station.

30. Fleeton was also located in the area, and although his identification was obtained, he was not at that time identified as being one of the offenders and left the area.

31. However, at around 11.15pm, police were again conveying Clarkson and Webb-Kreft to Gosford Police Station when they identified Bergan walking along Terrigal Drive. He was then arrested, cautioned and conveyed to Gosford Police Station.

32. McAndrew and Bergan were offered the opportunity to participate in an ERISP but declined, as was their right. Fleeton participated in a record of interview where he made partial admissions to attending the youth hostel on the first occasion with McAndrew and Bergan and entering the premises. He otherwise made what might be regarded as a series of self-serving statements. He did at least admit to attending on the second occasion with McAndrew and Bergan.

33. Fleeton was called by the Crown to give evidence in the trial. His evidence clearly did not accord with his undertaking that had been given, or the content of the record of interview on which the prosecution was relying for certain matters. Leave was granted pursuant to s 38 of the Evidence Act for the Crown to cross-examine him in relation to his previous statements.

34. Not relevant to the conduct of either of the accused is that, to my observation, Mr Fleeton in his evidence went out of his way to deny his memories of the events and to endeavour to prejudice the jury against Mr Evans in order to make them more sympathetic to his co-offenders. As I have indicated, neither of these offenders is responsible for that conduct.

35. In short, each of the offenders was party to a joint criminal enterprise to attend the premises, being the youth hostel, to locate and to intimidate the person John Evans. They were two discrete incidents within the space of a few hours.

36. In respect of McAndrew, I accept that he participated in both incidents and indeed it is apparent from the evidence that he was the inspirational cause for all of the offenders to attend. He was responsible for hitting Warren Shanahan and causing him actual bodily harm.

37. I accept that the cause for attacking Shanahan was a case of mistaken identity. Mr McAndrew was entirely unaware of what John Evans looked like. He was prepared to attack Shanahan simply on that basis that he might be Evans. This demonstrates the inherent danger to law abiding citizens from conduct such as this.

38. I accept Mr McAndrew was present in Room 8 after the group had broken in, and was present while threats were made to Ms Evans, the room was upset and a search made and Ms Evans was knocked to the ground and further intimidated by the presence of Mr Ivins wielding a meat cleaver.

39. There was some dispute in the trial as to how many persons entered the room. Ms Evans had said to the police that three had entered the room, but in her evidence she referred to a further two entering the room later. Mr Jeffrey has submitted on behalf of his client that the evidence does not support his client Mr Bergan having entered the room. The difference between the evidence in the statement to the police referring only to three entering the room and her evidence at trial of an additional two later entering the room was in my view acceptably explained by her in cross-examination, and that in fact all five did enter the room. However, I note that in my view it is not important to determine in this matter whether Mr Bergan was also one of those who entered the room or whether he stayed as submitted by Mr Jeffrey in the near vicinity of the doorway outside the room. This was a joint criminal enterprise. He had clearly attended the premises for the purpose of intimidating Mr Evans. He had seen Mr Ivins produce the meat cleaver as he approached the door and immediately walked away from him; but he did not leave the premises and go out to the street, he walked in the direction of Room 8 and the side passage which led to where the assault occurred on Mr Shanahan. Accordingly he was aware, whether he be inside or outside Room 8, that Mr Ivins was in possession of a meat cleaver and of the purpose of their visit. He is as responsible for the acts of the others as they are for his.

40. Having departed from the premises, Mr Bergan, together with at least McAndrew and Fleeton attended the Terrigal Hotel before returning later in the evening with full knowledge of the violence and intimidation that had previously occurred, even though on this occasion Mr Ivins and the meat cleaver were not present. His presence at each of the two occasions was sufficient to embolden the others to conduct themselves in the way that they did with knowledge of what had happened or was likely to happen.

41. On the second occasion, the offender Bergan was heard so say words to the effect of: "If something happens to my brother (McAndrew) I will kill everyone."

42. Aggravated break and enter offences where an offender or the offenders commit serious indictable offences while in company are clearly regarded seriously by the legislation, as 20 years imprisonment is the maximum penalty provided, and, of course, relevant as a guideline where the matter has in fact been defended, there is a standard non-parole period of 5 years.

43. Although Ms Evan's room was placed in turmoil after the offenders had broken in and she was knocked to the ground and intimidated by the presence of all, including the presence of the meat cleaver, I accept that the matter falls below the mid-range of objective seriousness, although not at the lowest end.

44. As for the assault occasioning actual bodily harm in the company of others in respect of Mr McAndrew and Mr Shanahan, the actual bodily harm was of a relatively minor nature. While I have no doubt it was a terrifying event for Mr Shanahan, who, however, as I understand, was only present as a result of visiting his stepdaughter and grandchild, fortunately Ms Webb-Kreft managed to persuade the offenders to desist from continuing the assault. I am of the view that that offence falls towards the lower end of the range of seriousness.

45. In relation to each of the offences of stalk intimidate in respect of Matthew Clarkson, I note the offences are constituted by the group presence and the making of threats. I would also accept that these fall towards the lower end of objective seriousness.

46. Of serious concern to the Court is that these offences occurred in circumstances where various reasons have been given for why the offenders attended the search for John Evans. Mr McAndrew gave evidence on sentence and he was asked by Mr Jeffery at page 14:

“Q. Now prior to this incident occurring did you become aware that there had been a problem between your wife and the person who went to look for her at the YHA?

A. Yes.

Q. In simple terms, had he threatened her once with a gun?

A. Yes.

Q. And once he had kicked her in the back, kicked to the floor?

A. That's when he did the second home invasion with the guy that got killed.

Q. He also threatened your daughter?

A. Yes, not in words, but my daughter was in the car with my ex when he was stalking, following them and everything. I don't even know what the guy looks like."

Q. You anticipated my question. It is not the case your daughter came into contact with the man?

A. He did meet her, yes.

Q. But under a bond situation he didn't come into contact with her?

A. My daughter, when she was about nine, ten, used to when her mother was doing good and she worked at the YMCA or whatever, my daughter used to help the girl there, as she said before, and she went and cleaned his room once and he kicked her out."

47. I note that it was variously suggested, including at least by Mr Fleeton in the course of the trial, that the cause for their attendance was that he had been informed that Evans had threatened the life of a young girl. According to some of the questions asked during the trial, it was because of a perceived threat to Mr McAndrew's daughter that they were in attendance. However, in his evidence on sentence, having referred to his wife as being a confirmed drug addict, the reason appeared to be asserted as his ex-wife having been threatened with a gun and kicking her. However, his only source of information about any threat was hearsay, he never having been present at any interaction between Mr Evans and his ex-wife.

48. He also said in evidence that he understood his ex-wife had reported an alleged event between herself and Evans to the police some three weeks before he attended with the others on 2 November at the youth hostel.

49. It appears that some of the offenders met at Mr McAndrew's before attending at the youth hostel, and in respect of the first incident. This was in fact a form of vigilante activity apparently inspired by Mr McAndrew's hearsay knowledge of some asserted incident between Mr Evans and his wife, and/or Mr Evans and his wife and daughter that had previously been reported to the police.

50. There can be no justification for the conduct in this matter in those circumstances. These were serious offences committed by the group as a joint criminal enterprise in circumstances where they must have anticipated that there would be other persons present other than Mr Evans in what was a hostel, and where they in effect, by force, invaded the premises and committed a number of acts of violence.

51. Overall, the offending conduct as a joint criminal enterprise must be regarded as serious. Vigilantes cannot be tolerated by the community. The community employs a police force to keep the peace and address any relevant issues.

52. Of all the offenders, it is only Mr McAndrew and Mr Bergan who proceeded to trial. With the exception of the offence to which Mr McAndrew pleaded guilty to on the first day of trial, there can of course be no discount for utility in relation to the offences of which they were convicted, as there was no utility.

53. The sentencing exercise in this matter is not straightforward. Each of Rodney Heginbotham, Adam Fleeton and Troy Ivins entered pleas of guilty in various courts before various judicial officers. As the Court must always take into account the question of parity, it is necessary to refer to each of those individual matters. Each of those three offenders had the common sense to enter pleas of guilty and, it would appear, to have successfully negotiated a plea to one or more offences in circumstances where it resulted in the common set of facts being significantly redacted to reflect the individual pleas. Adam Fleeton was sentenced on 17 February 2017 in the Local Court at Gosford after pleading guilty to two offences of stalk/intimidate contrary to section 13(1). The Crown has provided the redacted facts, Mr Fleeton's criminal history and the learned magistrate's reasons on sentence, as well as two relevant CANs. One CAN relates to an offence in relation to Krystal Evans. The other CAN relates to an offence said to be in relation to both Matthew Clarkson and Karly Webb-Kreft.

54. The redacted facts do not include, as I read them, anything relevant to any intimidation of Krystal Evans. However, the transcript of the matter, when it was before the magistrate on 17 February 2017, shows there was an amendment to Sequence 4 to replace the name Krystal Evans with the name Matthew Clarkson. The CAN notices provided do not have sequence numbers. I conclude, however, that the name Krystal Evans was removed and replaced with the name Matthew Clarkson. There is no reference in the transcript to any deletion of the name Matthew Clarkson from the second CAN. but that would appear to have been appropriate.

55. The facts before the magistrate do appear to at least reflect two separate acts of intimidation, one in relation to Webb-Kreft and the other in relation to Clarkson. It would appear to be a separate incident of intimidation by Mr Fleeton of Clarkson to that alleged in respect of Mr Bergan or Mr McAndrew. The material before me is, however, confusing.

56. I also note that provided to the magistrate were what is referred to in the transcript as psychological reports and references, and an undertaking. Mr Fleeton was called at trial, and presumably the undertaking was to give evidence in accordance with his interview.

57. The magistrate does not indicate what discount he allowed on sentence on the basis of the plea of guilty, or of assistance. His remarks on sentence are no more than one page in length. He does not refer to remorse or contrition or the prospects of rehabilitation or re-offending. He refers to an Ellis discount as "…probably take it out of the alternatives to custody and down into a bond area". It is not clear whether it was an early plea or not, or whether there was only a plea on the day when the facts were amended.

58. In the circumstances of the particular charges and the lack of information contained in the magistrate's reasons, I am unable to find that there is any real question of parity in relation to the two section 9 bonds of twelve months that were imposed for the two section 13(1) offences.

59. The next to be sentenced was Rodney Heginbotham. He was sentenced on 9 March 2017 by Garling ADCJ after a plea of guilty apparently entered in the Local Court. The offence was an offence contrary to section 112(2) in relation to Matthew Clarkson. That is, of course, a different offence to the aggravated break, enter and commit serious indictable offence in company in relation to either of these offenders, as their offence related in each case to Krystal Evans, whereas the offence for which Mr Heginbotham was sentenced was in relation to Matthew Clarkson.

60. The facts before his Honour appear to have not been redacted and are otherwise consistent with the unredacted parts of the facts in relation to Adam Fleeton.

61. His Honour allowed a 25 per cent discount for the plea but his reasons are only three pages in length. They contain a very abbreviated version of the facts, a reference to the offender's age and his criminal history as demonstrating no previous violence, his good record and a number of references speaking highly of him. The reasons also reflect that the psychological report "indicates that he has no real problems although he might benefit from some counselling". He refers to the offender as having given his version of why he said he was there and why he took part in it. However, his version is not contained or referred to otherwise.

62. His Honour was also aware of the section 9 bond of twelve months in each case that had been imposed on Adam Fleeton, although I cannot determine from the reasons that his Honour was aware of the specific nature of the charges, or in relation to which victim the bonds were imposed. His Honour imposed a term of imprisonment of 18 months which he suspended pursuant to section 12.

63. Troy Ivins was sentenced on 26 May 2007 in the District Court by Ellis DCJ after a plea of guilty. This was the same charge in respect of which each of Mr McAndrew and Mr Bergan were eventually found guilty by the jury. His Honour had available Mr Evans' criminal history as well as a Pre-Sentence Report. His Honour's reasons on sentence constitute one and a half pages, double spaced.

64. It is apparent from his Honour's reasons that the matter had come before him as a result of what has been referred to as a “super callover”. That is, as I understand it, in circumstances where the matter had been committed for trial from the Local Court, and at a special callover prior to any trial date occurring, a plea of guilty had then been entered.

65. His Honour indicated that he was entitled to a discount of fifteen per cent for the plea of guilty at the super callover. He had available to him what is referred to in his reasons as "all the relevant Crown material including his priors", a psychological report, a report from a Dr Morris and references from five persons, all of which had been provided to him at the time of the super callover. Apparently at the time of the super callover, he also received various submissions and formed the view that a sentence of two years was appropriate, and so the matter had been stood over so that an assessment for an Intensive Corrective Order could be obtained.

66. In addition to the fifteen per cent discount, his Honour indicated that he would allow a discount of ten per cent, which he also referred to as being an Ellis type discount, giving a total discount of twenty-five per cent. So far as I can determine, the Ellis type, or assistance discount for past assistance, of ten per cent would be provided to Mr Evans on the basis that he had attended the police station and identified himself as being one of the attendees at the youth hostel prior to any positive identification of him being made from the CCTV recording.

67. His Honour made no reference to remorse, contrition, the prospect of rehabilitation or the prospect of re-offending. I am accordingly unable to conclude from his Honour's reasons what account was taken of those relevant matters. However, it is evident that as he imposed a sentence of two years to be served by way of an Intensive Correction Order, that his Honour's starting point to which the discount was applied was a term of imprisonment of 32 months, that is, two years and eight months.

68. I note that from the material provided to me and as was before his Honour, that Mr Ivins had a number of previous offences for possession of prohibited drugs, self-administering prohibited drugs, offensive language, resisting arrest, stealing, assault occasioning actual bodily harm, and common assault. The most recent offences prior to the sentence imposed by Judge Ellis was a common assault in 2004 for which he received a section 9 bond. His record involving offences of violence distinguishes him from Mr Bergan and Mr McAndrew.

SUBJECTIVE MATTERS IN RESPECT OF SHARN BERGAN

69. Before the Court, tendered on his behalf, is a report from Emma Hubner, a psychologist, with Duffy Robilliard Psychologists, dated 7 November 2017 and as part of the Crown bundle a Pre-Sentence Report under the hand of Scott Hill, dated 2 November 2017, the offender's criminal history and a New South Wales Department of Corrective Services Convictions Sentence and Appeals Report. The offender also gave evidence on sentence. Subjective matters are drawn from that material.

70. The offender is now 38 years of age. He is an indigenous man. His parents separated when he was an infant and he remained in the care of his indigenous mother and maternal grandmother at Mount Druitt. He describes his mother as suffering from chronic substance dependence, and having been involved in numerous violent relationships. As a result of those relationships, he has a number of half-siblings, being five, aged between 33 and 19. The eldest, Rhiannan, is said to suffer from alcohol dependence and poor mental health and the youngest, Trey, is said to be in custody in relation to drug offences. He recalls his family as living in poverty, with their electricity being often disconnected and the children not receiving gifts for birthdays or Christmas.

71. He has had no contact with his Italian father since his parents' separation. He informed the psychologist that he was sexually abused by an older male when he was 10. At 14 years of age he commenced drinking alcohol and smoking cannabis with his delinquent peers and also became hostile and violent towards others. "Violence and intimidation was power in Mount Druitt".

72. He met his first partner when he was 17, but the relationship was marred by physical violence. That relationship produced his first child, being a son now aged 18. His ex-partner has significantly restricted his access to the son. At 19, he separated from her and moved to the mid-north coast where he experienced "mission life", but found out, "... that I am not black enough to be black or white enough to be white." He then entered another relationship at the age of 25, described as being chaotic. It lasted for eighteen months and produced a second child, a daughter who is now aged 14. In 2009, when he turned approximately 30 years of age, he is said to have gained full custody of his daughter, she then being some five years of age.

73. At the age of 30 he entered a fresh relationship with a woman he had met at Wagga Wagga University, being another student, however, he still wanted his "party life" and the relationship ended after eighteen months. The relationship produced his third child, a son, now 7 years of age. He has apparently remained engaged in his son's life, having face to face contact on a fortnightly basis.

74. He attended a number of different primary schools apparently experiencing concentration and behavioural problems which became more pronounced after his sexual abuse at 10 years of age. As an adolescent, he attended Randwick Boys High until Grade 7 and then Whalan High School for Grades 8 through to 10, but leaving school before completing Year 10.

75. In 2009, he commenced a Bachelor of Health Science degree at Charles Sturt University in Wagga Wagga, which he is said to have satisfactorily completed, and he claims to have worked in the mental health field for some seven years between 2009 and 2016. In 2015, he gained employment as an Aboriginal Case Manager with the Indigenous Youth Justice Program. He claims to have been an aboriginal advocate and a guest presenter at the National Indigenous Health Conference in 2015.

76. He has no serious physical illnesses or neurological complications. He is said to have made multiple suicide attempts in the past, particularly when his relationships have broken down, and he has sought psychological support during these times from an aboriginal clinical support worker, Ms Sandra Kelly of the Blacktown Mental Health Service, with whom he has an ongoing relationship, as they both reside on the Central Coast. They apparently from time to time visit each other in their respective homes.

77. He claims to have been diagnosed with depression and substance dependence disorder in 2013; however, he was unable to recall who made the diagnosis. It appears that at the time he was prescribed Seroquel to treat his symptoms, but he did not adhere to taking the medication for very long. Having commenced alcohol and cannabis use at 14, he was using amphetamines by the time he was 16, and experimenting with methylamphetamines, MDMA, heroin, cocaine and benzodiazepines in his early to mid-20s. His substance abuse is said to seem to continue well into adulthood.

78. Prior to the index offence, he reported drinking alcohol, and smoking cannabis fortnightly, and using methylamphetamine monthly; however, he denied any alcohol or drug use on the afternoon of the index offence. I note that in his evidence on sentence he said that between the two incidents, while at the Terrigal Hotel he consumed a couple of beers, but nothing before attending the first incident.

79. His offending commenced as a juvenile in 1994 with an offence of stealing, and there were further offences of break, enter and steal and assault as a juvenile. As an adult, he has been convicted of a number of offences such as failing to appear, common assault, destroy or damage property, stalk/intimidate, be carried in a conveyance taken without consent. Of note in relation to a number of his early offences, he was convicted in his absence. Assault officer in the execution of duty, malicious damage, contravening ADVO, behave in an offensive manner in or near a public place or school, unlicensed for class, possess prohibited drug, goods in personal custody, supply prohibited drugs and, in relation to a number of those offences, there was more than one entry in his record, and in respect of some offences he has also been called up having been given the benefit of a bond or Community Service Order which had been breached.

80. The Pre-Sentence Report indicates that he first had contact with Community Corrections in 1998, and was the subject of numerous Pre-Sentence Reports resulting in supervised good behaviour bonds and Community Service Orders. His response to supervision was considered unsatisfactory, either because he didn't report or he re-offended. In 2004 and 2008 he was supervised by Community Corrections in relation to parole for driving and drug offences, and on this occasion his response was satisfactory and he complied with the supervision requirements. He was further supervised in 2012 on a good behaviour bond and a community service order and, again, satisfactorily completed both orders.

81. He is currently residing with his current partner and his now 13-year-old daughter. He is said to have regular contact and support from his grandparents, who are said to have been supportive of him. He lost his employment as an Indigenous Case Manager with the Indigenous Youth Justice Program as a result of the index offences. Having been released on bail, he became employed in the demolition and construction industry. His work site manager reported in a reference provided to the pre-sentence officer that he was a reliable and honest employee who was trustworthy and did his job without incident.

82. Having completed his Bachelor of Health Science, he is said to also have multiple work tickets from SafeWork NSW, including high risk work and traffic control plans. He is said to have always been in employment and to have had a number of varying positions with youth services, including Aboriginal care and health services.

83. I note that he has served a number of periods of imprisonment in the past as a result of his offending behaviour. I note that the Pre-Sentence Report refers to him as having consumed some alcohol prior to being involved with the current offences, although I understand from his evidence on sentence that was only two beers between the two incidents, as previously referred to. He has had some past issues with mental health service providers in regards to anger management in 2012 and 2013.

84. As to his attitude to the offending, it is said that he has stated that it was a “silly, stupid mistake” to become involved, placing his lifestyle at risk, and the safe environment he has provided for his daughter. He claimed not to have been directly involved in the incident, that he was only trying to provide a presence for the other co-accused, and that he did not go along to hurt anyone or to be physically involved. There is no evidence that he did hurt anyone or was physically involved, however, he was clearly part of a joint criminal enterprise which did involve physical hurt as well as psychological stress by way of intimidation, and he was an active participant at least in relation to the intimidation, and he did not withdraw from the group activity when he became aware of the presence of the meat cleaver.

69. One would have hoped that an individual of his background, not having completed Year 10 at school, but having gone on to obtain a university qualification at the age of 30 or 33, and to have been involved in the Youth Justice Program for some years prior to the offence, would have known better than to participate in any way at all, and, indeed, to have sought to dissuade the others from participating in the offence.

70. Of note, even after he had commenced studying for his university qualification apparently he committed further offences involving violence, being offences committed at the age of 32, that is some four years before these offences, being offences of destroy or damage property and common assault, the common assault being domestic violence-related.

71. As he said himself to the psychologist, "The old Sharn came back to play, and I was like, let's go, deal with this guy". His understanding, according to the psychologist's report, was that they were looking for someone who was threatening a mate. If that was a reference to Mr McAndrew, it would seem that he did not have a good understanding at all as to why they were going to attend at the hostel.

72. It has been submitted by Mr Jeffery on his behalf that the psychological report indicates that he has a mental health issue which is relevant to assessing his moral culpability for participation. I do not accept that submission. There is nothing contained in the report that indicates that at the time of the offending he was suffering from a mental illness. His psychologist's report indicates that on the composite IQ score he is within the average range and that he has a moderate to high risk of re-offending. The Pre-Sentence Report officer assessed him as being in the medium range risk of re-offending. Considering his current age and past criminal history, I would accept that he is in the medium or moderate range of re-offending rather than in the high range.

73. I note that the psychologist believed that he had pleaded guilty to one count of aggravated break and enter. This was incorrect, but it does not, in terms of the report itself, appear to have significantly affected in any adverse way the utility of the report.

74. I note that the reports would seem to indicate that even while he has been utilising his qualifications in relation to mental health, he has unfortunately continued from time to time to make use of prohibited drugs. I accept that even though alcohol and prohibited drugs were not a factor in relation to this offending, that he requires ongoing assistance in that regard.

MORAN: Excuse me, your Honour, I am genuinely sorry for having to interrupt you. I just received a document from Gosford Local Court which confirmed a concern that I had as to your Honour's understanding as to when Mr McAndrew entered a plea to the assault matter.

HIS HONOUR: Sorry, the one he pleaded guilty on the indictment?

MORAN: Yes, Gosford Local Court has confirmed that he had pleaded guilty on the date of committal.

HIS HONOUR: And why was it the subject of an indictment?

MORAN: I can't answer that question, but I have a court document that confirms the plea was entered at the Local Court, your Honour.

HIS HONOUR: Mr Crown.

GRAHAM: Your Honour, I have sighted that document and I have also made an inquiry of the solicitor with carriage of the matter to confirm that fact. But on its face it does appear that is the case.

HIS HONOUR: How is it, Mr Crown, that where a plea of guilty has been entered it can result in the charge being placed on the indictment?

GRAHAM: Yes, that does seem peculiar.

HIS HONOUR: It must be a matter of incompetence surely.

GRAHAM: I don't have anything to add about that, your Honour, but if those facts are going to be adduced as part of the circumstances of the allegations, then perhaps it was placed on the indictment so that he could arraigned and plead guilty to that offence, and then that may well been a decision taken in the trial. But I don't know, your Honour.

HIS HONOUR: Being informed of that fact, apparently in agreement - it is of course a good indication on how little faith the Court can ever place in the New South Wales DPP. However, I will take that fact into account.

91. I had previously indicated that in relation to assault occasioning actual bodily harm in company in respect of Mr Shanahan, a plea having been entered on the first morning of the trial, that I would provide a discount in the order of 7 and a half per cent. I will in the circumstance of which I am now informed provide a discount of 25 per cent on the basis that the plea was entered at the earliest opportunity, and I will adjust the sentence that I intend to provide accordingly.

GRAHAM: As your Honour pleases.

HIS HONOUR: It seems that the Court not only has to check the Crown's calculations as to days spent in custody in future but also check such things as when the plea was actually entered.

SUBJECTIVE MATTERS IN RESPECT OF RICK MCANDREW.

92. The offender is now some 57 years of age.

93. Before the Court in respect of subjective matters are:

• -A letter to the offender from Professor Currow, the Chief Cancer Officer with the New South Wales Cancer Institute, dated 5 May 2016, the letter being to inform him of issues relating to the inquiry into dosing of chemotherapy of the patients under the care of Dr Grygiel.

• -A letter from Keith Cook, undated, he being a fellow member of the Terrigal Men's Bowling Club.

• -A letter from Alan Davis, dated 16 August 2017, he being a friend of some 34 years.

• -A letter from John Mackintosh, the Chairman of the Terrigal Bowling Club, who has known the offender for some ten years.

• -A letter of 10 March 2016, addressed: "To whom it may concern", from Dr Darren Rem or Rom, being for the purpose of having the offender excused attendance in respect of legal matters because of a previous surgery.

• -A patient health summary printed on 15th of August 2017 setting out the medications that were prescribed for the offender at that time.

• -A letter of 15 August 2017 from Professor Gallagher of St Vincents Clinic, addressed "To whom it may concern."

• -A letter from Professor Fogarty to Dr Dianne Spooner, dated 14th July 2017.

And, contained in the Crown bundle:

• -The offender's criminal history.

• -A New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report.

• -A Pre-Sentence Report under the hand of Lisa d-Annibale, dated

• 3 November 2017.

94. I'll refer first to the number of letters and references, being part of Exhibit M1. As previously indicated, the letter from Professor Currow is only to inform the offender that there is an inquiry into issues relating to the chemotherapy administered to the offender in the past. No doubt it caused him some stress to understand that there may be some question about his past chemotherapy.

95. The letter from Keith Cook, being a fellow member of the Terrigal Men's Bowling Club who has known him for ten years, refers to the offender as being a sole parent devoted to his young daughter, Breanna, and having been in the past a respected concreter in the local community before being diagnosed with throat cancer.

96. I have no doubt that the offender’s diagnosis with throat cancer would have caused him a great deal of stress, and of course as a result he has had to have treatment, being surgery, chemotherapy and radiotherapy. I have no doubt that has caused extensive problems for him in his personal life and his desire to raise his daughter.

97. Mr Cook opines that the conduct is inconsistent with the man he knows. He indicates that the offender has expressed his deep remorse for his actions and his belief that he is sincere in expressing that remorse.

98. The reference from Alan Davis indicates that he has known the offender for some thirty-four years; that he regards him as reliable and trustworthy and always willing to help. He states that the he understands the charges the offender was facing, and that his actions were, "completely out of character."

99. The letter from John Macintosh indicates that he believes the offender devoted all of his time to raising his daughter, and that he has otherwise contributed to the club, running the weekly raffles, and is respected by other bowlers. He is said to have completed major concrete works around the club in a professional manner. It is not stated whether that was as part of his paid occupation or as a charitable contribution to the club. He also states that the offending is totally out of character, and that the offender has expressed deep remorse.

100. The handwritten letter from Dr Rem or Rom refers to the offender needing to be excused from legal matters for some ten to fourteen days, the underlying cause being his treatment in respect of his cancer.

101. The letter headed, "To whom it may concern" from Professor Gallagher indicates that in April of 2012 the offender was diagnosed with right oropharyngeal (tonsillar) squamous cell carcinoma with metastatic disease to the neck, and he underwent surgery followed by radiotherapy, and that he required long-term follow-up.

102. The report further indicates that he developed a second primary cancer in the left floor of his mouth; the first symptoms apparently appearing while he was in custody for forty-seven days in respect of this matter. After his release, he required further surgery with reconstruction and further radiotherapy. He states that he requires ongoing close follow up as he has already had two primary malignancies of the head and neck, and that he needs to be followed up on a regular basis because, as I understand it, he is visiting the appropriate medical practitioner on a three monthly basis.

103. The letter from Professor Fogarty to Dr Spooner provides a more detailed account of the second surgery to the left floor of his mouth. He otherwise indicates that at the time of the letter, 14 July 2017, he was in complete remission. However it states that the chance of recurrence, given that he has had two episode of cancer already, is probably higher than the usual 25 per cent over five years.

104. The offender in his evidence gave evidence that he has not been able to work since 2012 as a result of cancer and the need for various surgeries.

105. I accept that he takes a raft of medications, and I accept, although it is not referred to in any of the reports before me, that the inevitable effect of the significant surgery has resulted in him having significant difficulty in eating, being only able to masticate soft food such as pasta and omelettes, and, that in order to receive sufficient nutrition, he is required to drink some unspecified formulation three times per day. I accept that, suffering from the results of his cancer, any term of imprisonment imposed will be much harder on him than it would be on other offenders who do not suffer from the same difficulties, however I have no doubt that Corrective Services are capable of dealing with his issues resulting from his now in remission cancer.

106. The offender in his evidence stated that his daughter, who is now thirteen years of age and in high school, has been in his sole custody, and that if he is incarcerated there is no one that can look after her in his absence; her grandparents residing in the Hunter Valley, and in the circumstances of her being a drug addict, her mother is asserted by him as being totally incapable of looking after her, according to the offender.

107. In respect of hardship in respect of an offender’s family, King v R (2010) NSWCCA 202 at 18:

“Hardship to an offender's family caused by imprisonment is generally an irrelevant consideration and can only be taken into account in highly exceptional circumstances in justifying a noncustodial sentence." R v Edwards (1996) 90 A Crim R 510 at 516: There are circumstances, however, that whilst not sufficiently exceptional to justify a noncustodial sentence are sufficiently exceptional in a suitable case to justify a finding of special circumstances. R v Grbin (2004) NSWCCA 220; R v Murphy (2005) NSWCCA 182.”

108. At the time of the offending the offender had already had one bout of surgery, and chemotherapy or radiation therapy for cancer. He had ceased working in 2012 and was the sole carer of his young daughter.

109. It is of significant concern that before embarking on this serious offending he gave no consideration to the potential effect that his offending might have on his daughter. He now, in effect, on sentence, asks the Court to give the consideration to his daughter that he was not prepared to give either before attending the hostel on the first occasion or returning later that night on the second occasion.

110. He has a number of matters recorded on his criminal history. He has one offence as a juvenile in relation to stealing, and one offence as an adult one year later, in 1977, of stealing, in respect of which he was fined $100, and a further similar offence in 1980, in respect of which he received a further fine. He has from that time had a number of offences, mostly in relation to the driving of motor vehicles, either unlicensed, or mainly while affected by alcohol. Although there are a number of such offences, I am of the view that they cannot have any adverse effect on the sentence to be imposed.

111. He has a number of other offences such as offensive behaviour, hinder police, cultivate prohibited plant, all of which were dealt with by small fines, indicating that they were, in the scheme of things, very minor offences. He cannot be regarded as a person of blemish-free character on the basis of his past criminal history, but it is not a criminal history, as a general proposition, which can adversely impact on the sentence. It simply means that he is not blemish-free.

112. The Pre-Sentence Report indicates that during the assessment period he appeared to take responsibility for his offending behaviour, and to have identified that he needed to address his criminogenic needs. His risk of reoffending is said to be medium/low, an assessment with which I agree.

113. As to remorse and contrition, I note the content of some of the references referring to him being remorseful. They do not refer to how he expressed this remorse, and I note that, with the exception of the one count that he pleaded guilty to, the matters proceeded as defended matters, the most significant charge of course being the aggravated break and enter in the company of others in relation to Krystal Evans. In his evidence on sentence he did not express remorse or contrition.

114. In those circumstances, while there is some evidence of remorse and contrition contained in the references, it is not persuasive. I accept that at his age of 57, with a relatively minor criminal history, that there is a low prospect of reoffending and a good prospect of rehabilitation if he can address anger management issues.

115. In relation to Mr Bergan, I note that the psychological report does not refer to the expression of any remorse or contrition. In his evidence on sentence, he said, as to how he now felt about what he had done:

“I feel so bad about how, you know, the choice I made by even going there, you know. Not rationally thinking about it, you know, making the right decision, not even talking with the other fellows about, you know, not at all, not go there at all. I am usually the one to take, you know, at that time I was a youth worker, I am usually the one who makes the right decision, you know what I mean? Just irrational, unthought decision, where alcohol come into play, it was just stupid. I feel so bad, you know, the psychological trauma I inflicted on the victims, I've got to live with that. And I sincerely apologise for the victims, and also for the Court and the law, because I am, you know, I was a youth worker. I used to work beside the police, you know. I was an upstanding citizen in society, you know. It really, you know, it was a stupid mistake in my life and I've got to live with it, but I just try to, you know, I've just got to move on.

Q. Did you lose your job as a youth worker as a result of this?

A. Yes, I've lost my career and that. I'm doing demolition now. I'm doing something. I've got to do something to pay the bills but I wish I could go back working with young people, you know, be there for the kids, like I wish somebody was there for me.”

116. As poorly expressed as it is, there is at least some expression of remorse. But as with Mr McAndrew, it comes after having defended the offences at trial and being found guilty by a jury. It is easy to make trite statements such as "I feel so bad about the choice I made" when faced with sentence after a defended trial. It is a shame that he did not otherwise evidence remorse by entering a plea of guilty at an early stage.

117. The same can similarly be said in respect of Mr McAndrew. Remorse expressed at the last minute, after trial, is never likely to be convincing. While Mr Bergan has expressed some remorse, in the circumstances in which it is made, it is certainly not very convincing, but I will take it into account.

118. In respect of the issue of parity, I have already referred to each of the sentences imposed on the other offenders, noting the different offences with which they were charged and the sentences imposed in the circumstances of pleas of guilty.

119. In my view, the only matter in relation to which parity is a relevant question is the sentence imposed on Troy Ivins by Ellis DCJ at the Newcastle District Court, as that was similarly an offence contrary to section 112(2) in relation to Krystal Evans, and in relation to the same part of the incident as is relevant to each of these offenders. I have already referred to the difficulty of understanding how Ellis DCJ arrived at the particular sentence, but neither of these offenders should be left in a position where they can have any justifiable sense of grievance by comparison to the sentence imposed on Mr Ivins.

120. As it was a joint criminal enterprise, I do not see that there is a particular difference in relation to the role played by Mr Ivins in threatening Ms Evans while holding a meat cleaver, and Mr McAndrews' then presence in the room as she was otherwise pushed to the ground and threatened.

121. For the purpose of sentencing, I have regard to section 3A of the Crimes (Sentencing Procedure) Act 1999 and I take into account section 21A(2) and (3). Any sentence imposed on an offender must reflect the objective seriousness of the offence, as well as the need for both general deterrence and specific deterrence.

122. Clearly, in relation to an offence involving an element of vigilantism, general deterrence is a significant factor for the Court to take into account. Specific deterrence in my view in relation to each of the offenders is also a relevant matter for the Court to take into account. I have otherwise taken into account the maximum terms of imprisonment provided for each of the sentences, as well as, in relation to the aggravated break, enter and commit serious indictable offence in company, the fact the standard non-parole period of five years is a guideline rather than tram track.

123. I am satisfied pursuant to section 5 of the Crimes (Sentencing Procedure) Act, having considered the possible alternatives, that no penalty other than imprisonment is appropriate. I intend to sentence Mr Bergan to individual sentences and to sentence Mr McAndrew to an aggregate sentence.

124. I have adjusted the indicative sentence that I proposed to provide for Mr McAndrew in relation to the offence of assault occasioning actual bodily harm to Mr Shanahan, as a result of the further information provided during the course of these reasons on sentence as to the timing of the plea of guilty in respect of that charge, I will provide a twenty-five per cent discount instead of what I would have otherwise provided, rather than the seven and a half per cent approximately that I had already taken into account.

125. Mr Bergan, would you please stand. In respect of the offence of aggravated break and enter and commit serious indictable offence in company in respect of Krystal Evans, you are sentenced to a term of imprisonment with a non-parole period of fifteen months and a balance of term of 15 months, giving a total sentence of 30 months, that is, two years and six months.

116. I have found special circumstances on the basis that I perceive you need assistance, even though drugs and alcohol were not relevant to this matter, that you will receive greater assistance for a longer period than would apply if I applied the statutory relationship of the non-parole period to the balance of term. Accordingly, I have set the non-parole period at 50 per cent of the total term.

117. As you have been in custody previously for a period of 44 days, the sentence will be backdated from today by 44 days. It commences on 30 September 2017. I order that you be released on parole at the end of the non-parole period, which will be on or about 29 December 2018. The balance of term of fifteen months, giving a total sentence of two years and six months, means the total sentence will expire on 29 March 2020.

118. In relation to the further charge of stalk, intimidate, intend fear, physical, et cetera, harm in respect of Matthew Clarkson, you are sentenced to a fixed term of imprisonment of six months. As I am of the view that, despite the fact that it related to a separate incident, it can be reflected by the sentence already imposed, I will make it entirely concurrent with the last sentence. That is, it will commence on 30 September 2017 and expire on 29 March 2018.

119. Mr Bergan, as you have previously spent time in custody, I am sure you understand that if you are in breach of your parole when released you will be returned to custody.

OFFENDER: I'm not sure of the sentence, your Honour. I'm not sure what was even said. I'm not sure like--

HIS HONOUR: All right, well try listening, Mr Bergan. The sentence is a total sentence of 30 months. That, is two years and six months. It is backdated to take account of the 44 days you have been in custody previously in relation to this matter only. The sentence commences accordingly on 30 September 2017. The non-parole period of fifteen months means that you will be released on parole at the end of the non-parole period on or about 29 December 2018. I make an order for your release on parole at the conclusion of the non-parole period. The balance of term is fifteen months. That is, one year and three months. That will be completed on 29 March 2020. So you will be on parole for fifteen months.

OFFENDER: So I'm going to prison?

HIS HONOUR: If you breach the parole you will inevitably end up back in custody.

OFFENDER: Of course, your Honour.

130. HIS HONOUR: I am sure you understand that, because I note that you have spent several times in custody in the past. I have found special circumstances to assist you with rehabilitation and particularly in relation to drugs and alcohol, but also in relation to anger management, and also on the basis that at your age of 38 it is likely that you will be able to address your problems and cease committing criminal offences. Thank you.

131. Mr McAndrew, would you please stand. As indicated, I intend to provide indicative sentences in respect of Mr McAndrew, and an aggregate sentence. I have taken into account, in respect of the indicative sentence for the assault occasioning actual bodily harm to Mr Shanahan, the early plea and a discount of twenty-five per cent for the utility of the plea.

132. Accordingly, the indicative sentence in respect of the assault occasioning actual bodily harm regarding Mr Shanahan is nine months.

133. The indicative sentence in relation to the offence of stalk, intimidate, intend physical, et cetera, harm in respect of Mr Clarkson is six months and the indicative sentence in respect of the aggravated break and enter and commit serious indictable offence in company in regard of Krystal Evans is a non-parole period of fifteen months and a total term of 30 months, having found special circumstances and being required, as it is a standard non-parole period offence, to indicate the non-parole period as part of the indicative sentence.

134. The aggregate sentence is a seventeen month non-parole period. The balance of term is seventeen months, giving a total sentence of two years and ten months.

135. As you have been in custody solely in respect of these matters for some 47 days, the aggregate sentence commences on 27 September 2017 and the node non-parole period will expire on about 26 February 2019. I order that you be released on parole at the expiry of the non-parole period. The balance of term is seventeen months, and the full term of two years and ten months will expire on 26 July 2020.

136. As you have just heard me explain to Mr Bergan, if, when released on parole, you are in breach of the conditions of your parole, you will no doubt find yourself in custody again.

137. I have found special circumstances in relation to, in particular, this being your first time in custody, your age of 57, and I have significantly taken account in relation to the sentence imposed the difficulties that I expect that you will have as a result of your previous cancer, and the sequelae. You can sit down, thank you, Mr McAndrew.

Is there any particular matter that anyone would like to raise?

MORAN: Not on my part, your Honour.

HIS HONOUR: Any errors in relation to the facts as expressed?

CROWN PROSECUTOR: No.

HIS HONOUR: Mr Jeffrey?

JEFFREY: No.

Adjourned

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Decision last updated: 16 February 2018