R v Teece

[2020] NSWDC 920

District Court

New South Wales

Medium Neutral Citation:

R v Teece [2020] NSWDC 920

Date of orders:

4 December 2020;
11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Count 3 SEQ 002 (CTH offence)

Count 4 SEQ 003 (CTH offence)

Indicative sentence:

SEQ 002, 003: 9 months’ imprisonment

Aggregate sentence:

The offender is sentenced to a term of imprisonment for 1 year commencing on 9 March 2020, to be released to recognizance after 8 months, on 8 November 2020, for the balance of term of 4 months to expire on 8 March 2021.

Count 1 SEQ 006 – NSW offence:

Sentenced to a term of imprisonment for 5 years and 6 months comprising a NPP of 4 years to commence on 9 September 2020 and to expire on 8 September 2024 on which date the offender will become first eligible for parole. The balance of term of 1 year and 6 months will expire on 8 March 2026.

Catchwords:

CRIMINAL – sentence after trial – guilty pleas to Counts 2 (alt), 3 and 4 on indictment – use carriage service to menace - convicted on Count 1 at trial - possess an offensive weapon in company with intent to commit an indictable offence, namely, intimidation – joint criminal enterprise – statutory aggravating features - subjective matters

Legislation Cited:

Crimes Act 1900

Criminal Code Act 1995 (Cth)

Category:

Sentence

Parties:

Regina
Teece, Matthew

Representation:

Counsel:
Crown: Mr M McAuliffe
Defence: Mr S Loomes
Solicitors:
Crown: Mr L Betts
Defence: Mr M Stidwill

File Number(s):

2019/00225907

Judgment

1. HIS HONOUR: Matthew Teece appears for sentence in respect of three offences. Two of those offences are each use carriage service to menace contrary to s 474.17(1) Criminal Code Act 1995 (Cth). The maximum penalty provided in respect of each of those offences is three years’ imprisonment and there is no relevant standard non-parole period as they are Commonwealth offences. The third offence is possess an offensive weapon in company with intent to commit an indictable offence, namely, intimidation, contrary to s 33B(2) Crimes Act 1900 (NSW). The maximum penalty provided is 15 years’ imprisonment and there is no relevant standard non-parole period.

2. The offender was arraigned in front of a jury panel in respect of an indictment containing four counts. Count 1 was the offence of possession of an offensive weapon in company with intent. Count 3 and Count 4 were each related to the use carriage service to menace charges. Count 2 on the indictment was in the alternative to Count 1: that in relation to the commission of the offence of possessing an offensive weapon with intent to commit an indictable offence, namely, intimidation by Matthew Yealland, that he did receive, harbour, maintain and assist that person.

3. On arraignment, he pleaded guilty to the alternative Count 2 and also to Count 3 and Count 4. The Crown did not accept the plea to Count 2, which left only Count 1 to be considered by the jury. The trial commenced on 14 October 2020 and on 20 October 2020 the jury returned a verdict of guilty in respect of Count 1.

4. The Crown has prepared a statement of proposed facts which it submits the Court should find as properly reflecting, beyond reasonable doubt, the evidence in the trial. Mr Loomes, counsel for the offender, has agreed on 4 December 2020 that they are an accurate reflection, and I intend to deal with those facts with minor changes which do not in any way affect what was said, other than to correct some things, such as the word “censored” when it should have been ”sensitive”.

5. I accept beyond reasonable doubt the following:

1. The offender is Matthew Teece, date of birth 28 May 1976. The co‑accused is Matthew Yealland, date of birth 12 August 1991. The co‑accused was not part of the trial, but I understand has subsequently pleaded guilty and is currently listed before another judge today for sentence.

2. The victim is Bob Sopovski, who resided in premises at Bonanza Parade, Sans Souci. The premises were a single‑storey brick house with a detached garage that had been converted to a granny flat at the rear. The granny flat could be accessed through a rear gate at the back fence, which provided access onto Bonanza Lane. At the rear of the premises there were motion‑sensitive CCTV cameras mounted on the back of the granny flat.

3. The victim and the offender had been close friends for approximately five years, but had known each other for approximately 20 years. They would, on occasion, take recreational drugs together.

4. Sometime in the afternoon on Friday, 12 July 2019, the offender called the victim and told him that he wanted to talk to him. The victim was at home in his granny flat at the time. Sometime before 6pm the offender arrived at the granny flat and spoke to the victim in the back lane. The offender told the victim that he had $190 in his bank account, but he could not get it out because he had lost his key card and mobile phone. The offender asked the victim to assist him in obtaining access to the $190 from his bank account by downloading a St George banking application, as the offender banked with the St George Bank.

5. While the offender downloaded the application onto the victim’s phone, the offender called his friend, Yvonne Bentata, to assist with the transfer of money by using a “paid mobile” service. The offender also called his bank in an attempt to access the $190 by linking the victim’s phone number to his account. The St George banking application was downloaded onto the victim’s phone.

6. Following considerable discussion regarding how this transaction could occur, $190 was eventually transferred from the offender’s bank account to the victim’s bank account. The victim then received a text message notification that the transaction was successful, however that it would take two working days for the funds to clear. The offender was “a bit annoyed” as he wanted to gain access to the money that day. A screen shot of the victim’s online bank account shows that the $190 cleared into his bank account on the following Monday, 15 July 2019.

7. The offender left the victim’s home and said he would call in about an hour to see if the funds had cleared. The offender did this and the victim confirmed that they had not. That evening the offender continued to contact the victim to ask about whether the funds had cleared. The victim informed him that he needed to wait 48 hours for the funds to clear, that is, until Monday.

13 JULY 2019

1. At approximately 1.21pm the following day, Saturday, the offender called the victim to enquire again about the transaction and whether the money had cleared. The victim repeated what he had previously said about it taking 48 hours.

2. Sometime that afternoon Yvonne Bentata received a phone call from the offender, who asked her what she was doing. Ms Bentata told him that she intended to go to Beverly Hills. The offender offered to drive her there and she agreed to that.

3. Sometime later that evening the offender arrived at Ms Bentata’s house. The co-offender, Matthew Yealland, was in the vehicle with him at the time, in the front passenger seat. The co-offender Yealland got out and sat in the back seat; Ms Bentata then sat in the front passenger seat. The offender drove Ms Bentata and the co-offender to a service station on King George’s Road.

4. Ms Bentata asked the offender where they were going. The offender said, “We have to go past Bobby’s and pick up $190 from him. I need you to go and knock on Bobby’s door for me.”

5. At approximately 9.42pm, the offenders and Ms Bentata drove down Bonanza Lane. Before they reached the area of the victim’s granny flat, they made a U-turn with no headlights on in the laneway and parked approximately 20 to 30 metres’ distance from the granny flat. The vehicle was facing away from the victim’s residence in an easterly direction which was the direction that the group would eventually flee in.

6. The offender called the victim again at 9.45pm. The victim told the offender that he could come over and look at his bank account on his mobile phone, which the offender agreed to do. At this time the victim was at home with his friend, Nicholas Diniakos.

7. Shortly after 10.07pm, Ms Bentata entered the victim’s premises via the back gate. The offenders remained in or near to the vehicle, which was parked down the lane. Ms Bentata and the victim had a conversation. She showed the victim information saved on her phone which she said meant that the money would be cleared.

“The money is not in my account, it hasn’t cleared, so it doesn’t matter what information you have to show. The money is not there and it’s not cleared.”

8. At 10.07pm, CCTV footage from the victim’s camera, located in the lane, depicts the offender approaching the entrance gate at the rear of the premises. The offender was wearing an unzipped jacket and shorts, and was barefoot. Shortly after, the co-offender Yealland appeared, walking along Bonanza Lane from the same direction towards the premises, before stopping a short distance before the entry to the victim’s premises. The co‑offender was wearing a black zip‑up jacket with the hood pulled up above his head, and slim‑fit jogger pants, Asics runners and gloves. A loaded, shortened 12‑gauge calibre shotgun was hidden down the right side of the co-offender’s pants.

9. The offender stood in the lane for about 50 seconds, waiting for Ms Bentata to exit and the victim to enter the laneway. The victim had observed the offenders in the laneway from his CCTV monitor in the granny flat. The co-offender was not known to the victim.

10. The victim and Ms Bentata then walked out of the granny flat and into the laneway. The victim was wearing a bag around his left shoulder and across his torso. The offender told the victim that his money should have cleared by now. The victim told the offender that it had not cleared and that he was probably going to have to wait until Monday.

11. The co-offender Yealland then approached the victim, after removing the shortened shotgun from his pants and then pointing it at the victim’s chest. The shortened shotgun, as shown in the CCTV footage, had had the stock removed with what in effect was nothing but a pistol grip left to the rear of the trigger, and a barrel which appears to have also been shortened. The co‑offender Yealland said to the victim, “The bag, the bag” and gestured towards the victim’s bag worn over his shoulder and torso.

12. The victim, on presentation of the shotgun, immediately looked at the offender. He did not notice the offender to be showing any look of surprise, concern or alarm as a result of the presentation of the shotgun. The co‑offender approached the victim with the firearm and the offender, similarly, at the same time, walked towards the victim. The firearm was pointed at the victim’s chest. (Count 1, possess offensive weapon in company with intent to commit indictable offence of intimidation).

13. A few seconds later, the co-offender stepped backwards and held the firearm only in his right hand, with his right arm extended straight before firing a round into the ground near the victim’s feet. The victim ran back into the granny flat, while the offenders and Ms Bentata ran away from the premises down the laneway.

14. The offender drove the co-offender and Ms Bentata from the scene at speed to the Allawah Hotel. where they were captured on CCTV footage. The three attended in the gaming area before leaving together at approximately 22.45. Each had approached the hotel separately.

15. At 2.37am on 15 July 2019, the offender called the victim’s mobile phone and left the following voice message.

“I’ll leave you this message. I’ll be catching up with you tomorrow you police copper dog. Go talk to the coppers, go tell all you want. You think I give a fuck? You must be so dumb, dumb as dog shit. Well, I’ll do a shit on you and show you how I shit on people. I hope your recording voicemail is recording from it. Yeah, Matthew Teece, cunt’s friend, you’re my enemy now. See what happens to my enemies.”

(Count 3, use carriage service to menace).

16. At 2.53am, some 16 minutes later, the offender again called the victim’s phone and left another voice message:

“Ah, um, ah, you know what a warning is I. Strike 1, strike 2, you know what happens on strike 3 mate…mate, bitch better have my money…bitch.”

(Count 4, use carriage service to menace).

CIRCUMSTANCES OF ARREST

1. On 18 July 2019, police contacted the victim after receiving information in relation to the incident. As a result, police attended the premises and a crime scene examination was conducted. The victim provided the police with the CCTV footage from the incident.

2. Police located and seized a 12‑gauge shotgun wad which was located at the rear, but within the premises of the victim. Also observed was an indentation to the concrete caused by the discharge of the shotgun.

3. On 21 July 2019, police conducted a search of the offender’s vehicle. Located in the offender’s wallet was a Revesby Workers membership card in the name of the co-offender.

4. The offender participated in a record of interview with police, during which he stated that $190 of his money was transferred into the victim’s account and had not yet been paid back. He initially denied knowing about a shooting at the Bonanza Parade premises. Eventually he accepted that he had heard a bang at some point. After being shown the CCTV footage of the incident, the offender identified himself and Ms Bentata. He stated that the guy with the gun had just appeared and he would not have a clue as to who he was.

6. The offender and his co-offender had attended the victim’s premises for the purpose of intimidating him into making available $190 of the offender’s money which had not yet been transferred into the victim’s account. There is a bizarre element to this offending in that a relatively minor matter, which could readily have been solved by waiting until the Monday, when the funds would become available, was sought to be resolved by the combined presence of the offender and the co-offender together with a shortened shotgun in order to intimidate the victim into handing over funds, if he had $190 cash available to him, that had not yet been transferred into his account. The trivial was thereby escalated into a significantly serious offence. Further intimidation was caused by the actual discharge of the shotgun. The jury verdict accepted that the offender had been present as part of a joint criminal enterprise with the co‑offender Yealland to intimidate the victim into providing the $190.

7. The offence was clearly pre-planned, and it has been accepted during the course of submissions by Mr Loomes on behalf of the applicant that it should be accepted that it was pre-planned. It was the offender who had the desire to obtain his $190, and there was no other evidence of any other motive for intimidating the victim beyond assisting the offender to obtain his $190. It was the offender who had arranged for Ms Bentata to accompany them on the basis that he was going to drive her to Beverly Hills. When she joined them at the car, the co-offender was already present in the front passenger seat and vacated it to return to the back seats, allowing her to sit in the front passenger seat.

8. Clearly at that time, the offender and the co‑offender, as part of a joint criminal enterprise, were in possession of the shortened shotgun. It was the offender who instructed Ms Bentata to go and knock on Bobby’s door for him, which allowed her to gain entry to discuss the matter of the $190, with the expectation that she would eventually exit the premises onto the laneway, opening the back gate or door, at which time the offender and the co‑offender were present in the immediate area.

9. The offender had parked the vehicle some 20 to 30 metres down the lane, after reversing it with the headlights turned off, and facing the direction in which they would eventually flee. The CCTV shows that, while the offender and the co‑offender waited in the back lane for Ms Bentata to reappear, they made no effort to enter the victim’s gate or to have it opened for them, although the offender was no doubt aware of the fact that the victim had CCTV coverage of the area.

10. When Ms Bentata exited the premises, she was followed out by the victim. Present behind him was also the victim’s friend, Mr Diniakos. As the co‑offender withdrew the shotgun and then presented it at the victim, he stepped forward towards the victim, as did the offender. The victim saw that there was no expression of surprise or alarm on the offender’s face at that time.

11. The shotgun having been discharged, the offender ran from the scene together with the co-offender and Ms Bentata. The shotgun having been fired, the offender made no effort to see whether his long-time friend/acquaintance was injured in any way. From where he was standing at the time the shotgun was discharged, it appears unlikely from the CCTV footage that he would have been able to observe whether the victim had suffered any injury or not.

12. The offender then drove the co‑offender and Ms Bentata away to the Allawah Hotel, where they remained together for some time in the gambling room before departing together. The offender then drove the co‑offender and Ms Bentata to their respective premises.

13. On 15 July 2019, the offender left the menacing voicemail messages threatening the victim and, in effect, embracing the shooting incident as part of the intimidation. Having not stayed long enough to see whether his friend/acquaintance had been injured, he did not call to find out whether he had been injured or not, but only to leave threatening messages.

14. I accept that, although the offender did not in fact fire the firearm, he had actively participated, advanced and persisted in the plan to intimidate the victim with the shortened shotgun, and it was all done for the purpose of intimidating the victim into supplying him with $190, which he need only have waited to the Monday to obtain. Clearly, in the circumstances, the co‑offender being unknown to the victim, it is this offender who must have instigated and organised the offending conduct.

15. Although the Crown, in their written submissions, has described the offending conduct as serious and falling at the mid-range for an offence of this type, this is not an offence to which a standard non-parole period applies, and it is not necessary to describe the offence in that fashion.

16. It is, in my view, clearly a very serious incident of such an offence, contrary to s 33B(2), and each of the offences of use carriage service to menace are in themselves significant offences within offending of that nature, particularly as they followed on from the actual discharge of the shotgun which caused some minor injury to the victim.

17. Tendered on sentence, but not in the course of the trial, was a photograph of what appears to be the victim’s right leg. Depicted in the photograph are what appear to be a number of small puncture wounds, consistent with either penetration by discharged gunpowder or concrete chips caused by the impact of the shotgun wad and other content of the shotgun shell. The injuries can reasonably be described as very minor. There is no evidence of any sequelae or any need for surgical intervention.

18. Although I have already referred to the objective seriousness of the offence, there are further statutory aggravating features, that is, that the offence was committed in the home of the victim, although commencing initially when the victim was immediately outside the gate, he was back inside the property when the shotgun was discharged. The offence was committed without regard for public safety and, as I have previously said, it was part of a planned or organised criminal activity, rather than being spontaneous or spur of the moment.

19. A further statutory aggravating feature was that the offender at the time was the subject of a 12‑month Conditional Release Order imposed on 18 October 2018 in respect of an offence of goods in personal custody suspected of being stolen. That is a form of conditional liberty. Offences, when committed while the subject of any form of conditional liberty, are aggravated by that fact.

6. The jury verdict clearly contemplated that the offender had attended with knowledge of the shotgun and the purpose of its presence. There is no evidence that he was aware that it was loaded and there is no evidence as to who in fact supplied the shotgun wielded by the co‑offender, or as to whether the co‑offender was aware it was loaded. It defies common sense, however, to expect that either the co-offender or the offender did not make themselves aware as to whether it was loaded or not. The injuries received by the victim indicate that the discharge was very close to him.

SUBJECTIVE MATTERS

21. In respect of subjective matters before the Court are: the offender’s criminal history in New South Wales, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, a Sentencing Assessment Report under the hand of Ms Sule Caylioglu, dated 1 December 2020 and a Psychological Report from Mr Borenstein dated 15 November 2020, and a letter from Dr Kwan to Centrelink dated 18 July 2019, relating to the offender’s mother, who is said to have end stage Chronic Obstructive Airways Disease with worsening respiratory symptoms. The letter was for the purpose of endeavouring to obtain a carer’s pension for this offender to assist his mother. There is a letter from Jessica Hancock, an alcohol and other drug counsellor with Odyssey House Community Services, dated 20 November 2020. In short, it indicates that the offender had commenced attending group counselling on 14 September 2020, and at the date of the letter had attended a total of six relapse prevention group meetings.

22. In addition, there are four Clean Workforce Workplace and Alcohol Testing Services urinalysis results as a result of a sample taken on 12 August 2020, a further sample on 23 October 2020, a third sample taken on 20 November 2020 and a final sample taken on 3 December 2020. The results show that on each of those four, widely-spaced occasions, no prohibited drugs were detected on urinalysis. The gap between the first two reports was approximately a little over two months, between the second and third report approximately one month and approximately two weeks in relation to the gap between the third and fourth. The reports at least show that on those occasions, widely spaced as they were, the offender was capable of being tested with a nil result.

23. Subjective matters are drawn from the material to which I have just referred. He was 43 years of age at the time of the offence and is now 44. His criminal history is described in the Sentence Assessment Report as follows:

“Mr Teece’s offending history is mainly related to fraudulent activity in addition to drugs driving and possession of house breaking implements.”

24. His offending commenced as an adult when he was approximately 28 years of age and initially related to shoplifting, driving with a high range PCA, using offensive language in or near a public school and driving while disqualified, all those offences occurring in 2004.

25. Subsequently, in 2008, there were a number of offences such as driving under the influence of alcohol or other drugs, supply prohibited drugs, less than an indictable quantity of cannabis, possess prohibited drug, and again on a separate occasion in 2008, possess prohibited drug, as well as contravening a prohibition and restriction in an AVO.

26. There was a break in his record of approximately four years until he committed an offence in February 2012, where he was before the Central Local Court in May of that year for a number of offences of dishonestly obtaining property by deception, an offence of dealing with identity information and commit an indictable offence, offences of make and also use false documents and goods suspected of being stolen in/on premises (not motor vehicle) as well as possess housebreaking implements, receive property and further offences of dishonestly obtaining property by deception.

27. There are further offences of a similar nature occurring in his record thereafter and, in relation to a number of previous offences having been dealt with by way of s 9 bonds, he has subsequently been called up for breach of the bonds.

28. There are also, as previously referred to, driving offences such as drive or ride or state false name or home address, drive licence suspended, take and drive conveyance without consent of owner and, in 2005, some three offences of goods suspected of being stolen in or on premises, two offences of possess identity information to commit an indictable offence, and also receive or dispose of stolen property.

29. There were further offences of a similar nature committed in 2016, and further driving offences in 2019. In 2005, there was an offence of responsible person/custodian not supply driver’s particulars and in 2012, an offence of custody of a knife in a public place. The description provided in the Sentence Assessment Report is, in general terms, accurate, but does not acknowledge the extent of the offending over the years that it has occurred.

30. As a result of past offences, the offender has spent at least some five periods of not insignificant duration in custody as an adult. However, it is evident that he is at least able to comply with prison regulations, as, despite the periods of imprisonment, he has only once been breached for failing to comply with the prison regulation, being fail to comply with correctional centre routine in 2014.

31. He was at the time of the offending residing with his then 73‑year‑old mother in a granny flat apparently attached to those premises. His father passed away in June 2019 and the offender has been unemployed for the past ten years. He is said to have been diagnosed with Attention Deficit Disorder when he was ten and prescribed Ritalin, which he ceased taking when he turned 14. He is said to have commenced using cannabis and amphetamines at age 15, but elected to cease using marijuana and alcohol as he believed they led him to be aggressive. When released from a term of imprisonment in early 2013, he recommenced the use of amphetamines on weekends.

32. Mr Borenstein, who has previously provided reports for the offender in relation to his past offending, was also providing psychological assistance by way of sessions on a perhaps three-monthly basis, in 2015 seeing him twice, in 2016 seeing him three times, in 2017 on two occasions and in 2018 on two occasions.

33. I note, consistent with the offender’s evidence at trial, which was not accepted by the jury, that he continues to deny committing the offence and has referred to himself as being the victim. He informed Mr Borenstein that he “hardly knew Yealland”, had met him once about a week before, “I didn’t know he had a gun” and had spun a tale to Mr Borenstein about competing bikie gangs of which he actually had no evidence because he confirmed,

“He is uncertain whether that is the case and throughout the time I have treated Mr Teece he has alluded to himself being caught up in gangland matters”.

34. He is the eldest of three children. His father was an accountant, dying at age 83. His mother, now aged 74, worked as a bookkeeper until her diagnosis with Chronic Obstructive Airways Disease. He has one younger brother by two years and a younger sister by three years. As to his family, he has little contact with his brother who he describes as, “He is a dog. He has made statements on me. I don’t want to talk about him.” He believes he had a close relationship with both his parents; that their marriage was satisfactory and his childhood was fine.

35. He attended St Finbar’s and Kogarah Marist College for two years and then boarded at St Joseph’s College, as did his younger brother. He became a full boarder from Year 9 to Year 12 and describes himself as an average student who lost interest in the senior years of study. He later attended Gymea TAFE and commenced a certificate course in accounting, but only completed “three‑quarters”. He was employed by his father for two years but said, “It wasn’t for me.” He later attempted training as an apprentice chef, but discontinued after one year. He describes himself as having had 100 jobs, but the longest period of employment has been the two years he worked with his father in his accounting business while studying at TAFE.

36. There is said to be no family history of psychiatric or psychological disorder and he acknowledges that he is an associate of those who use prohibited drugs. His longest relationship spanned approximately nine years, but ended some time in approximately 2016 because, “It was too much hard work. I felt better when it ended.” He is said to have ceased using marijuana and alcohol during that relationship. Although he denies domestic violence, he admits that he has at times been verbally abusive to his parents.

37. Mr Borenstein found no evidence of any serious psychiatric disorder, although there was a theme of vigilance, wariness and paranoia with possible delusional content, particularly with regard to his fear of being subject of gangs. His thoughts and content of processing were deemed normal and he was found to be cognitively intact. Dr Borenstein refers to his earlier reports or treatment of the offender, stating,

“Following initial interview and assessment, Mr Teece continued under my care, and relapsed, as is evident in his criminal history.”

He further states:

“Since arrested and charged Mr Teece has significantly cut back his use of stimulants. Mr Teece continues to use ice on weekends, which allows him to feel calm and focused so he can care for his mother.”

38. However, that indicates that, while on bail in respect of this matter, having been arrested on 21 July 2019 and remaining in custody as a result of this offending until 15 April 2020, since that latter date he has apparently been using the prohibited drug ice while on bail. Mr Borenstein also includes the following, according to what he was told by the offender:

“Mr Teece was under the influence of methamphetamine leading up to and during the offending period.”

39. I note that in the trial the offender gave evidence, but did not give any evidence in chief that he was, at the time of the incident, affected by any drug. It was only in cross-examination that he said, “I was off my face on drugs at the time” and “I was under the influence of drugs”. He did not give any evidence as to what drug he claimed he had taken, the quantity he had taken, when he had taken it or its effect, except that he was “off his face.”

40. In respect of his interview with the police, he also did not raise that at the time of the incident he was affected by any drug, just that he had been awake for some days. Of course, that is not a surprising omission. Few persons being interviewed by police, who deny the offence, are going to be telling them that they were affected by prohibited drugs at the time they committed it.

41. The Sentence Assessment Report under “Attitudes”, contains the following:

“Mr Teece denied the facts and takes no responsibility for the offences. He claimed to have been ‘in the wrong place at the wrong time’ and with no prior knowledge that the attack would be carried out. Although Mr Teece denied part in the offence, his attitude and beliefs appear to be antisocial, indicating no remorse or guilt for behaviour displayed. Mr Teece took responsibility for the messages left on the victim’s phone, however he denied the correlation between his messages and the offences.”

Under the heading “Social Influences” the report contains the following:

“Mr Teece indicated he has no positive peer influences and his companions and associates to negatively impact his life. He reported having no further contact with such persons in attempts to live a more pro social lifestyle.”

42. As to substance use, he informed the Sentence Assessment Officer that at the time of the offences he was heavily using methamphetamines and that his drug use connected him to negative associates, putting him in the situation he was now in. However, he denied his behaviour being altered by drugs, recalling being in a rational state of mind at the time of the offence, although he did state he had not slept for days leading up to the offence. He denied being in a position of financial struggle, and acknowledged that the money was not worth the consequences.

43. As to any insight into the impact of his offending, the report provides the following:

“Mr Teece has limited insight into his offending and considered himself as the victim of the offences. He expressed being impacted by the co‑accused’s actions.”

44. As to risk assessment, he was assessed as being a medium risk of reoffending, an assessment which I accept.

45. In this matter, the offender stood trial and gave evidence that he did not commit the offence, which was clearly disbelieved by the jury. He has again given evidence on sentence and in that evidence again asserted that he was a victim, as he did to the Sentence Assessment Report officer. There is clearly no evidence in the circumstance of remorse or contrition. In view of his past criminal history and the position that he takes in relation to this matter, he must be regarded as having only a very guarded prospect of rehabilitation.

46. That is not to say, of course, that there is no prospect as, having now reached the age of 44, it is possible that he might finally take on board the stupidity and criminality of his conduct and endeavour to cease committing offences which will only end up with him being returned to gaol. It is frequently only when offenders reach their mid-30s or later that the reality of the revolving door of justice finally dawns on them and they adjust their conduct. It is indeed unfortunate that this offender is still committing offences at the age of 43 and, indeed, more serious than that, committing more serious offences than are otherwise recorded in his past criminal history.

47. Although the pleas of guilty to the two offences contrary to s 474.17(1) Criminal Code, that is, using carriage services to menace, were pleas of guilty at the outset of the trial, it was in circumstances where the threats had been recorded, and it must have been obvious to the offender that those charges could not be successfully defended. The pleas merely acknowledged the strength of the Crown case.

48. It is unfortunate that he did not elect to plead guilty to those offences in the Local Court so that a more generous discount could be provided for the utility of the plea and/or the facilitation of justice. I will, however, take into account that at least some time was saved by way of not having to prove those matters beyond reasonable doubt in the trial, they being the subject of guilty pleas. The evidence was, however, still relevant to the remaining count. So the pleas did not in effect shorten the trial at all. I will allow some discount for the plea, but it is not necessary in relation to Commonwealth matters to specify a specific discount and I will not do so.

49. I take all the matters that I have referred to into account. I am aware that under Commonwealth legislation in relation to the Commonwealth offences, I must impose a sentence that is of a severity appropriate in all the circumstances of the matter, as provided by s 16A(1) and of the matters that are relevant to take into account pursuant to s 16A(2).

50. There is separate offending between the State offences and the two Commonwealth offences: however they are significantly interrelated and I will take that into account as well as the concept of totality.

51. In relation to the Commonwealth offences, I intend to proceed by way of an aggregate sentence and it is necessary in those circumstances to specify an indicative sentence for each. The indicative sentence in relation to each of the offences of using a carriage service to menace is nine months’ imprisonment. The aggregate sentence will be one year, and I will impose a Recognizance Release Order after the offender has served eight months of that period.

52. The offender, having been arrested on 21 July 2019, was released on 15 April 2020. The Crown has calculated that period as being 269 days. I have calculated it as being 270 days and I am sure that my calculation is correct. So I will backdate the sentence from the date when I refused bail on 4 December 2020 by 270 days, accordingly, the aggregate sentence in respect of the Commonwealth offences commenced on 9 March 2020. I would make the Recognisance Release Order for his release on 8 November 2020, that is, eight months after commencement of the sentence and the aggregate sentence of one year expires on 8 March 2021.

53. In respect of the significantly more serious offence contrary to s 33B(2) of possess an offensive weapon in company with intent to commit an indictable offence, namely, intimidation, I acknowledge that intimidation is an indictable offence that comes towards the lower end of the scale of offences that might be covered by the term “indictable offence”. I will start the sentence to be imposed for that offence six months after the commencement of the aggregate sentence for the Commonwealth offences; that is, it will commence on 9 September 2020. The total sentence for that offence is a term of five and a half years’ imprisonment which will, accordingly, end on 8 November 2026.

54. In order to establish the appropriate non-parole period, I have taken into account the earlier period of six months in relation to the Commonwealth offences that will be served, that is, in effect, the total term of imprisonment is six years, taking into account all of the offences, and I have readjusted the standard relationship of the non-parole period for a State offence to take account of that earlier period, so that the non-parole period will be four years ending on 8 September 2024 when he will be first eligible for parole. The balance of term is one and a half years. As I have previously expressed, that will conclude on 8 November 2026.

55. As I have made a Recognizance Release Order as required in respect of the Commonwealth offences, I have imposed no conditions or terms in respect of that for the obvious reason that he will still be serving the State offence sentence at that time. Indeed, he has already passed the date of the Recognizance Release Order.

Is there any error or anything I have omitted?

SPEAKER: Not that I can see, your Honour.

SPEAKER: No, your Honour.

HIS HONOUR: Thank you. That concludes that matter.

56. MATTER INTERPOSED

Mr Crown, just while we’re waiting for Mr Teece, an email has been sent to Mr Stidwill. I don’t know whether he’ll get it in time to be here or whether he’s probably gone back to some outer suburb.

MCAULIFFE: Yes, we tried to contact him, your Honour.

HIS HONOUR: Somewhere my calculation went wrong and I’ll inform you as to the error so that you can check it while we wait for Mr Teece to come up, but the term of imprisonment of five and a half years in respect of the New South Wales offence, I expressed as finishing on 8 November 26. It should have been 8 March 26.

MCAULIFFE: Yes, I’ve reviewed that after receiving your call, your Honour, and agree.

HIS HONOUR: All right, thank you.

MATTER INTERPOSED

Mr Crown, I hope that the problem isn’t that Mr Teece has got an early truck back.

MCAULIFFE: Possible.

HIS HONOUR: Can you enquire to see if Mr Teece is there and coming up?

SPEAKER: I did phone, your Honour.

HIS HONOUR: And he is still there?

SPEAKER: They said they’re bringing him up.

HIS HONOUR: They’re bringing him up. Okay. As long as he’s here.

Mr Teece.

OFFENDER: Yes.

HIS HONOUR: I’m sorry to have to call you back in.

OFFENDER: Yes.

HIS HONOUR: But I’m sure you’ll be happy to hear that I made an error in relation to the expression of the dates in respect of the State offence.

OFFENDER: Yes.

HIS HONOUR: We have endeavoured to contact Mr Stidwill.

OFFENDER: Yes.

HIS HONOUR: And he’s perhaps on his way back to wherever his office is.

OFFENDER: That’s out Cronulla way.

HIS HONOUR: Out Cronulla way. He’s not here. The Crown is here, you’re here, I can deal with the error and we will communicate with Mr Stidwill what the error was and the change. The change is this, I said that your sentence in respect of the, New South Wales offence contrary to s 33B(2)--

OFFENDER: Yep.

HIS HONOUR: --would start six months after the commencement of the sentence for the Commonwealth offences. That gives a start date of 9 September 20, which is what I said before. And I specified a non-parole period of four years, which means the non-parole period ends on 8 September 24 when you become first eligible for parole in relation to the State offence and that was correct.

What I said was that the balance of term would be one and a half years, the total sentence for the State offence being five and a half years. But I then said that the total sentence would expire on 8 November 2026, when in fact I should have expressed it as expiring on 8 March 2026. So that’s some eight months earlier than I had indicated.

OFFENDER: And what about parole? Parole is still--

HIS HONOUR: Parole stays exactly the same.

OFFENDER: So when am I eligible for parole?

HIS HONOUR: Eligible for parole on 8 September 2024 and then parole for one and a half years, and the total sentence expires on 8 March 26.

OFFENDER: And can one of you guys give me a pen so I can write that down properly, please, because my lawyer’s going to be asking me tomorrow and my mother’s going to be going like what’s going on for ...not transcribable...

HIS HONOUR: We will communicate it to Mr Stidwill so--

OFFENDER; Yeah, I know, but I’m going back to my gaol cell tonight and I’d like to know what the Hell’s going on with my life, you know, that’s all. It’s not an unreasonable request.

HIS HONOUR: We’ll just give you a copy of the order that goes on the file.

OFFENDER: Yeah, so that if I’m correct in understanding, so the two years that I’ve already done, like the nine months in gaol to eight months.

HIS HONOUR: 270 days are taken into account.

OFFENDER: Yeah, yeah, and what about--

HIS HONOUR: I’ve backdated your sentence start to 4 December when you went into custody by 270 days.

OFFENDER: Yes.

HIS HONOUR: That gives a start for the sentences of 9 March 2020.

OFFENDER: May I ask one question as well? What about the other eight months that I was in under home arrest at home, is that included as well, your Honour, or is that - what about--

HIS HONOUR: No, that was taken into account in assessing the sentence that I imposed.

OFFENDER: Thank you.

HIS HONOUR: There you’ll see you now have a copy of the actual order that goes in the Court file and expresses all the relevant dates for you.

OFFENDER: Okay, thank you.

HIS HONOUR: Okay.

OFFENDER: Yep.

HIS HONOUR: Sorry about that.

OFFENDER: No, all good, thank you.

HIS HONOUR: Nothing further, Mr Crown?

MCAULIFFE: Thank you, your Honour.

HIS HONOUR: My apologies, Mr Crown, I obviously had far too much to do this morning.

MCAULIFFE: No, your Honour gave me the opportunity to review it.

HIS HONOUR: Having to deal with the other three accused and I just sat straight through with--

MCAULIFFE: Not at all, your Honour.

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Decision last updated: 24 August 2021