R v Smith; R v Catt

[2023] NSWDC 166

District Court

New South Wales

Medium Neutral Citation:

R v Smith; R v Catt [2023] NSWDC 166

Hearing dates:

27 April 2023

Date of orders:

15 May 2023

Decision date:

15 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty - Smith

1    Frank Alexander Smith is convicted.

2    I impose an aggregate term of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 6 months to date from 4 April 2022. The non-parole period will expire on 3 October 2025 and the head sentence will expire on 3 January 2028.

3    Mr Smith will be eligible to be released on parole on 3 October 2025.

Penalty – Catt

4   Tenielle Catt is convicted.

5   I impose an aggregate term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months to date from 4 April 2022. The non-parole period will expire on 3 January 2024 and the head sentence will expire on 3 July 2025.

6   Ms Catt will be eligible to be released on parole on 3 January 2024.

Catchwords:

CRIME — Violent offences — Assault occasioning actual bodily harm

CRIME — Violent offences — Stalking or intimidation

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

CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Frank Smith (Offender)
Tenielle Catt (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Smith)
Gregory J Goold Solicitors (Catt)

File Number(s):

2022/96693 (Smith)
2022/96691 (Catt)

Publication restriction:

None

Judgment

Introduction

1. Frank Alexander Smith appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H87737462	Offence	Maximum Penalty and SNPP
1	Aggravated break and enter and commit a serious indictable offence, namely assault occasioning actual bodily harm on Mr Molina, contrary to s 112(2) Crimes Act 1900	20 years with a 5 year SNPP
3	Use/possess or attempt/threaten to use offensive weapon with intent to commit a serious indictable offence, namely stalk and intimidate, contrary to s 33B(1)(a), Crimes Act 1900	12 years

2. Mr Smith also asks the Court to take into account the following offences on a Form 1:

1. Aggravated break and enter and commit serious indictable offence, assault occasioning actual bodily harm on Mr Lockyer, contrary to s 112(2), Crimes Act 1900 (sequence 2).

2. Stalk/intimidate with the intention of causing the other person to fear physical or mental harm, contrary to s 13(1), Crimes (Domestic and Personal Violence) Act 2007 (sequence 7).

3. Tenielle Catt appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H87737462	Offence	Maximum Penalty and SNPP
1	Aggravated break and enter and commit a serious indictable offence, namely assault occasioning actual bodily harm on Mr Molina, contrary to s 112(2) Crimes Act 1900	20 years with a 5 year SNPP
3	Aggravated enter dwelling with intent to commit a serious indictable offence, namely stalk and intimidate Mr Lockyer, contrary to s 111(2), Crimes Act 1900	14 years

Approach to Sentencing

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

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

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

7. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

8. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to each offender to permit an understanding of the sentence imposed.

9. Gustavo Molina, Cian Rurik, Malcolm Lockyer and Rebecca Gray were residents of an apartment complex in Lilyfield. Mr Molina and Ms Gray resided in apartments on the ground floor, and Mr Rurik and Mr Lockyer resided in apartments on the first floor.

10. In early March 2022, Ms Gray met Mr Smith and Ms Catt in Kings Cross. Both offenders were homeless at the time. On or about 21 March 2022, the offenders began to live in the spare bedroom of Ms Gray’s apartment at her invitation.

First incident in Mr Molina’s apartment

11. At approximately 5.50pm on 4 April 2022, the offenders left Ms Gray’s apartment and approached Mr Molina’s apartment on the ground floor. Outside Mr Molina’s apartment, the offenders started yelling angrily and Mr Smith knocked on the front door.

12. Mr Molina approached his front door and looked through the peephole. He decided not to answer the door, leaving it locked and secured. He walked back into the kitchen.

13. Shortly thereafter, Mr Smith attempted to force the door open by shoulder barging it. He then kicked the door, which broke the lock and the door swung open. Mr Molina saw Mr Smith and Ms Catt entering his premises and became very frightened.

14. The offenders found Mr Molina in his living room. Ms Catt yelled something about cannabis whilst Mr Smith approached Mr Molina and threatened to hit him. A few seconds later, Mr Smith punched Mr Molina on his right cheek, causing him significant pain. Mr Molina attempted to punch Mr Smith but failed to connect. Mr Smith then punched Mr Molina in the face again, connecting with his mouth and causing him to fall to the ground.

15. Whilst Mr Molina lay on the ground, Mr Smith punched him in his rib cage. This punch broke five of Mr Molina’s ribs, three of which were broken in two places, collapsed his lung and caused a small amount of internal bleeding. In an attempt to keep Mr Smith at bay, Mr Molina kicked his legs at him.

16. After about 5 minutes, Mr Smith and Ms Catt left.

17. Mr Molina telephoned Mr Lockyer, asking for help. At approximately 5:54pm, Mr Molina telephoned “000” and reported the incident. At that time, he was finding it difficult to breathe.

18. Between about 6:00pm and 6:40pm, Mr Lockyer arrived at Mr Molina’s apartment. He noticed that the front door was broken and looked as if it had been kicked in. Mr Molina told Mr Lockyer that he was in a lot of pain and had called an ambulance. Mr Lockyer advised Mr Molina to call “000” again, and to ask for police to attend.

19. Mr Smith returned to Mr Molina’s apartment and knocked on the front door. He was met by Mr Lockyer. Mr Smith introduced himself as “Frank”. Mr Lockyer asked Mr Molina if he knew someone called “Frank”, to which Mr Molina replied that he did not. Mr Smith left a short time later. Throughout the interaction, Mr Lockyer thought Mr Smith was acting strangely.

Intimidation charge – Mr Smith

20. Between about 6:00pm and 6:40pm, Mr Rurik returned home from the city. Whilst walking to his apartment, Mr Rurik heard a man speaking behind him. He turned around and saw Mr Smith right behind him. In a furious tone, Mr Smith said to Mr Rurik words to the effect, “was that you talking all of that horseshit about me earlier?”. Mr Lockyer heard this interaction and recognised Mr Smith’s voice from the interaction at Mr Molina’s front door.

21. Mr Rurik entered his apartment and immediately shut and locked both the outer security door and the front door. Mr Smith forcefully pulled on the security door which dislodged the latch bolt from the wall and allowed Mr Smith to open the security door. Mr Rurik heard the security door buckle and burst open.

22. Mr Rurik then heard Mr Smith banging on the front door, threatening to enter the apartment. Mr Rurik barricaded the front door and called out of his apartment window for someone to help. He hid under his bed for about 10 minutes.

Second incident in Mr Molina’s apartment

23. Whilst Mr Smith was banging on Mr Rurik’s front door, Mr Molina called “000” a second time to request the assistance of police and an ambulance. Mr Lockyer took the phone and reported to the operator that he could hear Mr Smith intimidating Mr Rurik.

24. Whilst Mr Lockyer was on the phone, the offenders returned to Mr Molina’s apartment. Mr Smith challenged Mr Lockyer to a fight in the hallway. There was a heated argument, during which Mr Smith repeatedly beckoned Mr Lockyer to fight him. The argument was overheard by the operator.

25. As the argument escalated, the offenders entered Mr Molina’s residence. Mr Lockyer told them to leave, but they did not. Mr Smith kicked Mr Lockyer in the face under his right eye, which broke the skin and started to bleed.

26. Mr Smith then picked up a kitchen knife from the table. The knife had a blade approximately 12cm in length. Mr Lockyer grabbed a dining table chair to protect himself. Mr Smith stabbed at Mr Lockyer, which Mr Lockyer was able to successfully defend. Mr Smith, who was less than 2 metres away from Mr Lockyer, threw the knife at Mr Lockyer. The knife struck the chair and bounced off. The knife landed near Mr Smith, who picked it up and threw the knife at Mr Lockyer a further two times. Following the third throw, the knife bounced away from Mr Smith.

27. During this incident, Ms Catt was standing behind Mr Smith yelling at both Mr Molina and Mr Lockyer.

28. Mr Lockyer then herded Mr Smith and Ms Catt outside Mr Molina’s apartment and attempted to shut the broken door.

29. Mr Smith and Ms Catt returned to Ms Gray’s residence. Mr Molina continued to speak to the “000” operator. He told the operator that he believed the altercations arose out of his being asked by a woman to procure cannabis for $50, which he said he was unable to do. Mr Molina stated that he had returned the $50.

The offenders’ arrest

30. Police arrived at the apartment complex at approximately 7:36pm, first entering Mr Molina’s apartment and then Ms Gray’s, where both offenders were placed under arrest and cautioned.

31. Both offenders participated in recorded interviews with police. Both claimed in their interviews that the altercations began when Ms Gray gave Mr Molina money for cannabis which he never supplied to her.

32. Mr Smith conceded that he broke the door down with one kick and that he had nine years of Thai boxing experience. He denied punching anyone. He conceded that, with his martial arts background he knew he was capable of causing injury.

33. Ms Catt conceded that she had entered Mr Molina’s residence on both occasions. She stated that Mr Smith threw a knife and accepted that on the first entry into Mr Molina’s apartment, she knew they were going to confront him and that it was likely to result in a physical altercation. She stated they had consumed numerous alcoholic drinks prior to approaching Mr Molina’s apartment.

Sentencing Assessment Report – Ms Catt

34. The Court received a Sentencing Assessment Report dated 5 April 2023 for Ms Catt, which can be summarised as follows.

35. Ms Catt did not consent to Community Corrections contacting her family. She suggested that her family are anti-social and negative influences. Ms Catt left school in Year 11 and has never been employed in the community.

36. Whilst Ms Catt has been in custody, she has incurred a number of misconduct charges. The author of the SAR opined that Ms Catt’s history of anti-social behaviour is related to illicit drug use, violence and aggressive behaviour. Ms Catt claimed that she was acting in defence of a friend but admitted being the instigator of the violence. The author concluded that violent behaviour appeared to be a normalised response to conflict for Ms Catt in an effort to control others.

37. Ms Catt stated that she was intoxicated during the commission of the offences and may have been withdrawing from illicit substances.

38. Ms Catt appeared to the author of the report to be unwilling to undertake intervention and stated she wants to change at her own pace, not that of Community Corrections. Ms Catt is not willing to undertake community service work. She has not been subject to any periods of supervision by Community Corrections.

39. Ms Catt was assessed as at a high risk of reoffending.

Mr Smith’s Case on Sentence

40. Mr Smith tendered a psychological report prepared by Patrick Sheehan dated 14 March 2023. The following is a summary of that report.

41. Mr Smith was born in 1984 in the Newcastle area. He has one sister. He described his childhood as tumultuous and unstable. He never met his biological father. He believed that his stepfather was his biological father until he was 12 years old.

42. His earliest memory was when he was age 3 that he set his infant brother’s clothes alight using a lighter. His brother died from the burn injuries sustained. Mr Smith reported feelings of guilt and self-loathing related to that incident.

43. His stepfather and mother separated when he was 3 years old, and his care was shared between them.

44. He was frequently exposed to drug use, alcohol abuse and domestic violence as a child. At one stage, there were 16 people living in the same room at his house. His stepfather was an “ex-bikie” who had served prison sentences for violent offences.

45. Mr Smith told a previous Justice Health psychiatrist that he had been seriously assaulted by his uncle when he was 6, as a result of which he was placed in a coma. He has an incomplete memory of his childhood, which Mr Sheehan opined is often related to childhood trauma.

46. He first moved out of the family home at age 16 but has returned to live with various family members throughout his life. He speaks regularly on the phone to his mother and stepfather. He was previously close with his sister however they are now no longer in contact.

47. Mr Smith reported that throughout his schooling he struggled with inattention and aggression. He attended numerous primary schools due to family relocation. He repeated Year 3. He was expelled from Raymond Terrace High School in Year 8 for attacking a teacher with a cricket bat. He never returned to formal study but has participated in basic education classes in custody over the years.

48. He has received a Disability Support Pension since his early twenties. He said that this was awarded due to low intellectual functioning and low literacy.

49. He has done agricultural work and work as a trolley collector, but these were casual roles that lacked consistency. He currently works in the cabinet shop at Goulburn Correctional Centre, where he has worked five days per week for the past four months. He hopes to return to agricultural work on his release, preferring to work in isolation so as to avoid conflict with other workers.

50. Mr Smith reported persistent problems with social adjustment, with his behavioural issues impeding his ability to forge friendships with pro-social peers. He gravitated towards anti-social peers in his teenage years and once he reached adulthood, his friendships became transient drug associations.

51. Mr Smith has had several intimate relationships, with his longest relationship lasting five years. His partners have tended to share his substance use and mental health issues. He has several domestic violence-related convictions. He has three children. He is estranged from two of these children but has regular contact with his three-year-old son. His relationship with this child over the last 11 months has ignited a desire to be a better and more stable person.

52. Mr Smith’s relationship with his current partner, Ms Catt commenced two years ago.

53. Mr Smith reported having first smoked cannabis at age 8. He has smoked an average of 7 grams per day throughout his adult life. He began drinking alcohol to excess by age 14. He used amphetamines regularly in his late 20s. He has used heroin, but never habitually. He started using methylamphetamine at age 30, injecting up to 1 gram per week. He stated that methylamphetamine worsened his paranoia and caused him to experience episodes of psychosis.

54. He was using cannabis and methylamphetamine at the time of the offences. He underwent withdrawal and detoxification in custody during his mandatory COVID-19 isolation.

55. He commenced injecting non-prescribed buprenorphine in prison and was dependent upon this drug until he commenced the Buvidal program, with monthly slow-release injections. However, he has experienced some withdrawal symptoms toward the end of each month and has been using non-prescription buprenorphine during the week prior to his injection. His Buvidal dose was recently increased, and it is hoped that this will be sufficient to avoid use of non-prescribed buprenorphine.

56. Mr Smith has never participated in a residential rehabilitation program. He was housed in the High Intensity Program Unit at Cooma Correctional Centre in 2021. Upon completion of the program, he began using cannabis immediately but did not use methylamphetamine for four months.

57. He reported an intention to complete alcohol and drug programs in custody.

58. Mr Smith suffered serious injuries to his left leg at age 21 from a pedestrian-vehicle accident. He required reconstructive surgery and had a plate inserted into his tibia and fibula, with a slow recovery aided by physiotherapy. The injury continues to generate pain in colder months. He has also caused injury to his hands by punching hard objects when agitated. He has developed adult asthma and carries Ventolin with him at all times. He contracted Hepatitis C whilst in custody through needle sharing, but recently completed treatment and is no longer infected.

59. Mr Smith started self-harming at age 15 and this continued into his late teenage years, where he experienced suicidal ideation. He reported that he was diagnosed with depression in his mid-to-late twenties and was trialled on several antidepressant medications but found these to have no effect. His first psychiatric admission was at around age 30. He has been previously diagnosed with schizophrenia, bipolar disorder, “split personality”, borderline personality disorder, and Attention Deficit Hyperactivity Disorder (ADHD). Mr Smith stated that he had always been suspicious and paranoid of other people, but only began to experience auditory hallucination and psychosis after he started to use methylamphetamine. These auditory hallucinations continue despite Mr Smith having ceased using methylamphetamine.

60. In January 2021, he was involuntarily admitted to John Hunter Hospital following a serious self-harm incident. He was agitated but not psychotic at the time. He was released after two days. He was also involuntarily admitted to St Vincent’s Hospital on 18 March 2022, presenting with agitation and paranoid delusions, thinking security were “imposters” and seeking to fight them. He was thought to have drug-induced psychosis. He was discharged the following day. During this admission, he expressed a concern that the victims were a threat to him and his partner. He committed the current offences within a few weeks of discharge.

61. Mr Smith is currently treated with Sodium Valproate and Mirtazapine. He reported that these medications were not meeting his needs and his mood remained volatile and his affect labile. He is concerned that he will attack his cell mates.

62. Mr Smith has a significant criminal history primarily related to violence offences, along with property offences and driving offences.

63. Mr Sheehan opined that Mr Smith has likely developmental trauma, ADHD with comorbid conduct disorder and a possible neurodevelopmental disorder, serious personality dysfunction and mood disturbance, severe polysubstance use disorder and likely substance-induced psychosis.

Ms Catt’s Case on Sentence

64. The offender tendered the following documents:

1. Affidavit of Tenielle Catt affirmed 21 April 2023;

2. Letters of Attendance for the Remand Addictions Program from Danielle Robinson dated 7 December 2022 and Mark Rayner dated 9 March 2023; and

3. Achievement Award for successful completion of Theory in Hygiene Operations dated 28 March 2023.

65. The following is a precis of the evidence relied on by Ms Catt.

66. Ms Catt was born in Maitland in 1994. She is currently 29 years of age. She was born half deaf, with 40% hearing in her left ear and 60% hearing in her right.

67. She is the youngest of four children born to her parents’ union. Her eldest sister lives in Melbourne. One of her brothers is in prison at Muswellbrook and the other works in the mines at Maitland. Her parents live in Taree.

68. During her primary school years, Ms Catt was overweight and was bullied at school. Throughout her childhood and adolescence, her father physically abused her mother on a regular basis and she and her siblings were also subjected to corporal punishment.

69. Ms Catt’s father was a member of a motorcycle club in Maitland until she was 14. Her father would leave and stay at the club for days and when he returned home, he would be drunk or high on drugs. On these occasions, he would argue with her mother, accuse her of sleeping with other men and physically abuse her whilst Ms Catt and her siblings watched. Ms Catt recalls getting home from school and observing that the house was trashed and that her mother was covered in bruises. Ms Catt would often call the police to protect her mother.

70. When she was eight years old, Ms Catt’s mother gave her a mobile phone to call the police if her father was physically abusing her, as her father would often smash her mother’s phone to prevent her calling police. Her father was subject to multiple Apprehended Violence Orders in relation to her mother during her childhood. Ms Catt stated that violence was “the answer to every dispute in our home and all I ever knew growing up”.

71. The offender attended Grossmann High School in Maitland where she continued to be bullied. She would often react to this bullying with aggression and was frequently suspended from school. She left school in Year 11.

72. After leaving school, she started to drink heavily. She also began smoking cannabis and using ice. She stated that at this time, she started hanging around with “the wrong people” and drugs and alcohol became her escape.

73. At age 18, Ms Catt fell pregnant with her first child. She moved to Kempsey to live with the father of the child, who was physically abusive toward her. The two-year relationship ended when the father took the child to live with his mother, Claudette. Ms Catt attempted to gain custody of the child through the courts but was unsuccessful. She described that during this period she was depressed and slipped back into using methylamphetamine and drinking alcohol to excess.

74. In 2015, Ms Catt entered into a relationship with Jeremy Goodacre. They were together for five years and had two children. Mr Goodacre’s mother assumed care of the two children in 2018.

75. After the birth of her second child, Ms Catt was admitted to hospital for her mental health. After her discharge from hospital, Ms Catt lived on the street for four months. For the next five years, she stayed with friends in Maitland. Every three months she would travel to Tamworth to see her two children from her relationship with Mr Goodacre.

76. In 2021, Ms Catt went to live with Claudette and her first daughter and helped care for them both.

77. Ms Catt has known Mr Smith for two years. On the day of the offences, Ms Catt was intoxicated.

78. She has not had much family support since the arrest. She has not taken any drugs or consumed any alcohol in gaol. Ms Catt has participated in five sessions of the Remand Addictions Program and Mr Rayner stated in his letter that her participation in those sessions was of a high standard. She has also completed the Theory in Hygiene Operations course.

79. She expressed a desire to be a better mother to her children upon her release. She wants to apply for government housing and to attempt counselling for her drug and alcohol issues. She recognised that she needs to cease contact with anti-social associates, like Mr Smith.

80. Ms Catt expressed remorse and recognised the harm done to the victims. She stated that she did not anticipate the extent of the harm that would be inflicted on the victims.

Objective Seriousness - Smith

81. The offences involve significant objective gravity.

Aggravated Break and Enter and commit assault causing ABH

82. Mr Smith began the offending conduct by yelling at Mr Molina and seeking entry to his premises. He then sought to forcibly enter the premises, knowing that Mr Molina was inside. Once inside the premises. Mr Smith punched Mr Molina in the face twice, causing him to fall to the ground. When Mr Molina was on the ground and defenceless, Mr Smith struck him a powerful blow in the ribs, causing multiple rib fractures, internal bleeding and a punctured lung. Mr Smith continued to try to attack Mr Molina for a period whilst he was on the ground. The attack would have been a terrifying experience for Mr Molina. There was also some damage sustained to the front door of the premises.

83. The serious indictable offence committed by Mr Smith was an assault causing actual bodily harm. The extent of the actual bodily harm suffered by Mr Molina was significant and towards the upper end of the range for this type of offence. The circumstances of aggravation relied on by the prosecution was the infliction of corporal violence.

84. The offence involved some planning in that the offenders had agreed to confront Mr Molina about the alleged debt.

Use weapon to intimidate

85. During the second incursion into Mr Molina’s residence, Mr Smith picked up a knife from the kitchen table and lunged at Mr Lockyer who was forced to defend himself with a chair. Mr Smith then threw the knife at Mr Lockyer on three occasions. On each occasion, Mr Lockyer used the chair to shield himself from the knife.

86. Mr Smith had a deprived upbringing marred by violence, drug use, alcohol abuse and interrupted schooling. He failed to fit in socially and formed poor relationships, characterised by taking drugs and domestic violence. He was introduced to drugs at a young age when he could not make an informed choice. He has developed a complex mental condition that includes a number of specific and serious diagnoses which led to further drug use. He has developed drug-induced psychosis. I am satisfied that by reference to all of these matters that his moral culpability for the offences is significantly reduced.

87. I have taken into account the maximum penalty for the offences and the applicable standard non-parole period.

Objective Seriousness – Catt

88. The offences are objectively serious.

Aggravated break and enter and commit assault causing ABH

89. The evidence demonstrates a clear joint criminal enterprise with both offenders approaching Mr Molina to make demands of him about the return of money allegedly advanced for the purchase of drugs. The offending conduct commenced with Ms Catt yelling angrily towards Mr Molina and seeking access to him. She was present and remained present when Mr Smith began to violently break into the premises. Once inside the premises, Ms Catt made demands for the return of the money and stood by while Mr Smith assaulted Mr Molina.

90. The matters recited at [83] above, in relation to Mr Smith, are also relevant to Ms Catt and I will not repeat them.

Aggravated break and enter with intent to intimidate Mr Lockyer

91. The offenders returned to the entry to Mr Molina’s premises where Mr Lockyer had come to assist Mr Molina. Mr Smith began to argue with Mr Lockyer and challenged him to a fight. As the argument escalated, the offenders re-entered Mr Molina’s premises. By her plea of guilty, Ms Catt accepts that she entered the premises on the second occasion with the intent to intimidate Mr Lockyer. At this time, she stood behind Mr Smith and was yelling at Mr Lockyer.

92. I have taken into account the maximum penalty for the offences and the applicable standard non-parole period.

Deterrence

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

94. There is also a need for specific deterrence. Mr Smith has a lengthy criminal history for less serious offences, but a high proportion of them include some violence. He has been incarcerated on a number of occasions. He presents a danger to the community unless he engages with treatment for his mental condition and substance abuse issues. The penalty imposed on him must bring home that if he continues to commit serious offences, he will be met with significant punishment.

95. Ms Catt has two previous convictions for minor matters. She has incurred a number of misconduct charges whilst in custody. She has been assessed as a high risk of reoffending. I am very concerned for her prospects of rehabilitation in circumstances where she is unwilling co-operate with Community Corrections.

Aggravating Factors

96. Mr Smith has a record of previous convictions for violence offences and has served terms of imprisonment for violence offences: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

97. The offences were committed in the home of Mr Molina: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

98. The offences were committed in company and the victims were faced with the combined threat posed by both offenders: s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999.

Form 1 offences – Smith

99. The Form 1 offences are significant and should be taken into account in increasing the penalty to be imposed for the principal offence. First, Mr Smith remained in the vicinity of Mr Molina’s premises and intimidated Mr Rurik, causing him to fear for his safety and causing damage to the front door of his premises. This offence was committed in Mr Rurik’s home. Second, the offenders committed a further aggravated break and enter by entering Mr Molina’s premises for a second time. In this incursion, Mr Smith kicked Mr Lockyer in the face causing a cut under his eye.

Mitigating Factors

100. Ms Catt does not have a significant record of previous convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW).

101. Ms Catt has some prospects of rehabilitation, but I am not satisfied that she has established the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. She has expressed positive plans for the future, but I am not satisfied that they are realistic unless and until she accepts the supervision and assistance of Community Corrections or finds another source of support. She has complex needs relating to her propensity for violence and risk factors for reoffending.

102. Mr Smith also has some prospects of rehabilitation if he accepts appropriate interventions, but I am not satisfied that he has established the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. He has demonstrated while on remand that he can work productively and stay out of trouble. He has not had the benefit of an extended period of supervision on parole in the past because most of his sentences have been relatively short. The severity of his mental condition requires substantial commitment on his part to rehabilitative treatment. He has not had many opportunities in the past to participate in such treatment.

103. Ms Catt has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. She has expressed remorse and shame to the Court and shows some insight into her poor choices that led to these offences.

104. The offenders’ pleas of guilty also indicate remorse.

105. The offenders have been in custody since the date of their arrest and are entitled to have their sentences backdated to 4 April 2022.

106. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions will make the offenders’ time in custody more onerous and that they may be imposed for some time into the future.

107. I am satisfied that Mr Smith’s mental condition has and will make his time in custody more onerous because he is regularly exposed to interactions with other inmates which he finds difficult to cope with.

108. I have had regard to parity. There are good reasons for imposing substantially higher penalties on Mr Smith by reference to his conduct in the offences and his more extensive criminal history.

109. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate for each offender.

Penalty - Smith

110. Frank Alexander Smith is convicted.

111. I make a finding of special circumstances. The offender’s mental condition requires an extended period of treatment that will be best provided for in the community and he has not previously had the benefit of a lengthy period of supervision on parole, which may provide him with the opportunity to participate in residential rehabilitation.

112. I will deal with Mr Smith by imposing an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 1 – 5 years with a non-parole period of 3 years;

• Sequence 3 – 2 years.

113. I impose an aggregate term of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 6 months to date from 4 April 2022. The non-parole period will expire on 3 October 2025 and the head sentence will expire on 3 January 2028.

114. Mr Smith will be eligible to be released on parole on 3 October 2025.

Penalty – Catt

115. Tenielle Catt is convicted.

116. I make a finding of special circumstances. This is Ms Catt’s first time in custody, and she has drug and mental health issues that justify a longer period on parole.

117. I will deal with Ms Catt by imposing an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 1 – 3 years with a non-parole period of 1 year and 6 months;

• Sequence 3 – 18 months.

118. I impose an aggregate term of imprisonment of 3 years and 3 months with a non-parole period of 1 year and 9 months to date from 4 April 2022. The non-parole period will expire on 3 January 2024 and the head sentence will expire on 3 July 2025.

119. Ms Catt will be eligible to be released on parole on 3 January 2024.

**********

Decision last updated: 23 May 2023