R v Shepherd

[2020] NSWDC 273

District Court

New South Wales

Medium Neutral Citation:	R v Shepherd [2020] NSWDC 273
Hearing dates:	03 June 2020
Date of orders:	03 June 2020
Decision date:	03 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 44-47
Catchwords:	CRIMINAL LAW – severity appeal – domestic violence offences – two counts of contravention of a prohibition or restriction under an AVO offences – second offence committed on same day as first, after bail granted – whether Intensive Correction Order more appropriate than period of full time custody – whether special circumstances arise to justify variation of non-parole period
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Category:	Sentence
Parties:	Director of Public Prosecutions
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Legal Aid for the appellant
File Number(s):	2020/93967; 2020/93986
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 7 May 2020 Before: Magistrate E Ellis File Number(s): 2020/93967 2020/93986

Judgment

BACKGROUND

1. In this severity appeal, on 7 May 2020, the offender was sentenced by the Wyong Local Court, after a guilty plea, to a period of imprisonment for 12 months, commencing 7 May 2020 and expiring on 6 May 2021, with a non-parole period of 9 months, with him becoming eligible for parole on 6 February 2021.

2. He pleaded guilty to two charges that on 26 March 2020, he contravened a prohibition or restriction under an apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act2007 (NSW). The sentence I have referred to was imposed in relation to each offence, and each sentence was to be served concurrently.

3. That offence carries a maximum penalty of two years’ imprisonment and/or a $5,500 fine.

4. I note that on 26 March 2020, the appellant had, to that point, been taken into custody and has remained in custody for a period which the appellant’s legal representative identified as 2 months and 9 days, a calculation of the period which was not contradicted by the Crown. Although he lodged an appeal on 13 May 2020, he was refused bail.

CIRCUMSTANCES OF OFFENDING

5. A facts sheet that was placed before the Local Court was also placed before this Court.

6. The appellant was in a relationship with his then partner, Nicole Sutherland. They resided together in Mannering Park. As at 26 March 2020, there was an enforceable Apprehended Violence Order (‘AVO’), for Nicole’s protection which named the appellant as a defendant. One condition of that order was that the appellant not approach or be in Nicole Sutherland’s company for at least 12 hours after drinking alcohol or taking illicit drugs.

7. At about 1:00am on 26 March 2020, police attended the couple’s address after a domestic dispute. On arrival, Ms Sutherland referred the police to the AVO. The police approached the appellant and smelt a strong odour of intoxicating liquor. They noticed that the appellant’s eyes were bloodshot. The accused admitted that he had breached the AVO and admitted having consumed at least 6 bourbon and coke drinks at the residence. He was arrested and charged. This was the conduct constituting the first offence.

8. Based purely upon the objective gravity, the nature of the breach of the AVO is at the low end range of offending of this kind. There was, for example, no suggestion that the appellant was likely to inflict any imminent violence or commit some other more serious contravention of the AVO.

9. The appellant was, however, released on conditional bail from Wyong Police station at 3:00am. Immediately, he caught a taxi and returned to the address at Mannering Park.

10. At about 4:00am, on the same day, police returned to the same address, in response to another complaint of a domestic dispute. The police approached the accused, who was upstairs. Police could smell a strong odour of alcohol and they noticed that his eyes remained bloodshot and his coordination was very impaired. This was the conduct constituting the second offence.

11. The observations about the level of objective gravity in relation to the first offence apply also to the second offence.

Aggravating circumstances

12. The offending conduct occurred not only in contravention of an AVO, but whilst the appellant was subject to an intensive correction order (‘ICO’). That ICO was for a period of 6 months and was due to expire on 10 May 2020. It arose out of a contravention of the AVO. That had been imposed by the Wyong Local Court on 11 November 2019 in respect to a different offence.

13. This is an aggravating circumstance to the first offence.

14. As noted, at the time he committed the second offence, he was on conditional bail after having committed the first offence. One condition was that he was not to approach or be in the company of Nicole Sutherland for at least 12 hours after drinking alcohol, or taking illicit drugs.

15. This is an aggravating circumstance to the second offence.

SUBJECTIVE CIRCUMSTANCES

16. There was little evidence of the appellant’s circumstances that purported to directly explain why the appellant acted as he did. In September 2019, in explanation for an earlier contravention of an AVO, he accepted that he had been heavily affected by alcohol but said that he had nowhere else to go after consuming the alcohol. A similar explanation, of sorts, was provided in relation to these offences.

17. The appellant acknowledged to the community corrections officer on 4 May 2020 that he had breached the condition of his AVO, but justified his conduct on the basis that he had “no choice”.

18. This explanation does not lessen his culpability absent any information as to why he believed he had no choice. I note that in the sentencing assessment report, he indicated that upon his release from custody he could reside with a long term family friend and that he had a ‘supportive’ mother. It is not apparent whether, after having consumed the drinks that he had, and in full appreciation of the condition to his AVO, he could not have sought accommodation with either of them. On the basis of the evidence before the Court, I accept the characterisation of the community corrections officer that he “blatantly disregarded” the condition, twice, on the one night.

Age and background

19. The appellant is now aged 40. He was aged 39 at the time of the offending.

20. The most recent sentencing assessment report indicates that he has limited supports in the community, excepting a long term family friend.

21. He last worked over three years ago.

Antecedents

22. The offender has a significant criminal history, going back to offences from 1998. Most pertinently, he was convicted of a multitude of domestic violence offences; although there were also come convictions for larceny. His legal representative submitted that most of these offences were the product of his consumption of alcohol.

Plea

23. The appellant is entitled to a 25% discount on account of his plea.

Remorse

24. The circumstance of the pleas only reflects their utilitarian value. There is nothing before the Court to indicate remorse or contrition. Indeed, the sentencing assessment report placed before the Magistrate was to the contrary: the appellant blamed the victim, Ms Sutherland, and was said to have showed no insight into his offending.

Alcoholism

25. An intensive corrections order breach report was placed before the Court, dated 1 April 2020, which had recommended the revocation of the ICO made last November. That report summarised the appellant’s compliance and also relevantly attached a sentencing assessment report dated 11 September 2019.

26. The sentencing assessment report of 11 September 2019 noted the appellant reporting to the community corrections officer that he had a long-standing alcohol dependence, since the age of 15. He had been diagnosed with depression, post-traumatic stress and Attention Deficit Hyperactivity Disorder.

27. A more recent sentencing assessment report dated 4 May 2020, which was before the Local Court, indicated that he had been able to rehabilitate himself in relation to illicit substance abuse by 2017. The appellant had intermittent engagement with an alcohol counsellor, but that was superficial. The appellant told the community corrections officer that despite periods of abstinence, he had relapsed into consuming alcohol on a regular basis.

Likelihood of re-offending

28. The ICO breach report noted that since the order had been imposed on 11 November 2019, the appellant had had minimal engagement with community corrections. This impeded his attempts to treat his alcohol usage. The report expressed concerns for the safety of the victim of his offences. It noted that the appellant had been provided numerous and varied opportunities to access community based services, but that he had failed to engage in those interventions.

29. The more recent sentencing assessment report also noted his limited engagement with an alcohol counsellor. He has recommenced taking medication for his diagnosed mental health issues. He told the community corrections officer that he was willing and able to undertake intervention.

30. The community corrections officer noted that community corrections were aware of the appellant since 2019 by reason of the supervised community corrections order and an intensive corrections order. The appellant was assessed as medium risk of re-offending. I am prepared to adopt this assessment.

31. The prospects of rehabilitation cannot be said to be more than reasonable. The appellant has been unemployed for a significant period, at a time of widespread communal unemployment. Although he has shown an ability to overcome illicit substance abuse, he has struggled to deal with his alcoholism, despite the best endeavours of community corrections.

32. It noted that the level of community service work that the appellant needs to undertake may be reduced or altered as a result of the COVID-19 pandemic.

33. He was assessed as suitable to undertake community service work.

THE APPELLANT’S SUBMISSIONS

34. The appellant queried why he was even the subject of the second charge. Knowing that he was intoxicated, the police did not interview him, but still released the appellant. As I understood the submission, it was to the effect that it was inevitable that the appellant would re-engage in the offending conduct, as he did.

35. The appellant’s submissions, more broadly, acknowledged that he had an alcohol problem, however, it was only in the light of spending a period (two months and 9 days) in custody since 26 March 2020 that he had fully appreciated his need to seriously engage with it. This he was prepared to do. It was submitted that the appropriate punishment was a further ICO, coinciding with the remainder of the existing non-parole period and that an additional condition be imposed that the appellant completely abstain from alcohol.

36. In response, Madam Crown submitted that an ICO was inappropriate. The appellant had been given multiple opportunities to deal with his triggers. She noted that the appellant had engaged in repeated breaches of court orders which was not only an affront to the Court, but also of concern to the victim.

SYNTHESIS

37. I take into regard the sentencing factors in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW).

38. The appellant’s submissions implicitly acknowledge the s 5 threshold has been passed. I agree that it has. The issue is whether he should be subject to an ICO of undertake full time custody.

39. General deterrence is always significant and that is especially so in the setting of domestic violence offences. So too is community protection. Although the appellant’s relationship with the victim in this case is now over, that concern is not diminished. It appears the appellant has no appreciation or insight into his conduct. His legal representative this morning questioned why he was even released after the first infringement on the early hours of the morning of the offence. This manifests a view that he did nothing wrong. There is an added aspect of needing to impose a just sentence acknowledging the dignity of the victim in this context and to hold the offender to account for his conduct.

40. Other than the circumstance of his pleas, the appellant’s subjective circumstances are lamentable. The gravity of his conduct has been significantly elevated by aggravating circumstances. No satisfactory explanation has been provided for why those circumstances occurred and the indications are that they involved a blatant disregard for the law and, in particular, disregard of an ICO that was intended to spare the appellant the need for a period of full time custody. There is, in other words, a significant requirement that the punishment here be directed to specific deterrence.

41. I am sceptical about the submission that it is only now that the appellant is likely to seriously engage in efforts to address his alcohol in the light of his experience with community corrections. I think the concerns about his rehabilitation can be met in the length of a non-parole period.

42. Although the sentencing discretion is to be exercised afresh, as I read the punishments imposed for the two offences by the learned Magistrate, they coincide broadly with my own assessment of what is appropriate. In particular, this is so having regard to his extensive criminal history and the more lenient sentences imposed in relation to domestic violence orders.

43. I would only be inclined to vary the sentence in one respect. That is, I propose to vary the statutory ratio for the non-parole period on account of special circumstances. This is to assist with rehabilitative efforts to assist the appellant with his alcohol. That will be of benefit to the community.

ORDERS

44. In relation to the offence for sequence H74134252(1), I vary the sentence so that the appellant is sentenced to a period of 1 year imprisonment, commencing 26 March 2020 and expiring on 25 March 2021, with a non-parole period of 7 months. The appellant will be first eligible for parole on 25 October 2020.

45. In relation to the offence for sequence H74806241(1), I vary the sentence so that the appellant is sentenced to a period of 1 year imprisonment, commencing 26 March 2020 and expiring on 25 March 2021, with a non-parole period of 7 months. The appellant will be first eligible for parole on 25 October 2020.

46. The sentences are to be served concurrently.

47. Otherwise the appeal is dismissed.

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Decision last updated: 05 June 2020