R v Timbery

[2008] NSWDC 340

CITATION:	R v TIMBERY [2008] NSWDC 340
HEARING DATE(S):	9 - 22 April 2008 6 June 2008 15 August 2008
JUDGMENT DATE:	19 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment consisting of an overall term of 24 years with a non parole period of 18 years.
CATCHWORDS:	Criminal Law - Sentence - Re-trial - Malicious wounding - Sexual intercourse without consent - Aggravated sexual intercourse without consent - Maliciously inflict grievous bodily harm - Acts of cruelty - Conditional liberty
CASES CITED:	Regina v Timbery unreported CCA 1 April 1996 Veen v The Queen (No1)(1979) 143 CLR 458 Veen v The Queen (No2)(1998) 164 CLR 465
PARTIES:	The Crown Joseph Anthony Timbery
FILE NUMBER(S):	DC 2005/11/1115
COUNSEL:	A Seeto (Crown) W. Hunt (Offender)
SOLICITORS:	NSWDPP Adamsons Solicitors

SENTENCE

1 HIS HONOUR: In October 1999 LB, who was then eighteen years of age formed a relationship with the offender, Joseph Anthony Timbery. They started to live together at (an address not to be published) where other members of Mr Timbery’s family also lived from time to time.

2 It was not long before the relationship became one characterised by regular violence on the part of the offender. He is now to be sentenced for eleven serious acts of violence, some of which left LB with significant and permanent scars.

3 The first offence was committed on 16 April 2000.

4 The complainant and the offender were having a few drinks and ended up in an argument. During the argument the offender came at the complainant with an iron bar hitting her across the forehead with it. She went to the Prince of Wales Hospital where the injury was treated by doctors. Stitches and butterfly straps were put on her forehead. LB has a scar above her left eye as a result.

5 This is an offence of malicious wounding for which the maximum penalty is seven years imprisonment.

6 Count 2 occurred on the same day as count 1, after the complainant returned from hospital. LB went to bed and pretended that she was going to sleep. The offender began kissing her before pulling her pants down and inserting a VO5 mousse bottle into her vagina. She jumped out of bed and the offender left.

7 This is an offence of sexual intercourse without consent, for which the maximum penalty is fourteen years imprisonment.

8 Count 4 occurred in May 2000. On this occasion the complainant and the offender were drinking in the lounge room at (an address not to be published). Again, they got into an argument and this time the offender came at the complainant with a wooden chisel. The sort used to carve wood. The offender started to stab her on her shoulders, arms and upper body with that chisel. He was also, at the same time, stabbing her with a metal dinner fork. Then got out a little wooden baseball bat and started hitting LB on the vagina. LB was screaming. The offender pinned her down on the ground, took her pants off and then put his penis into her vagina. After he had finished she passed out and when she woke up in the lounge room her vagina was very sore. Photographs of the complainant were tendered at the trial and some marks caused by the chisel were easily identifiable.

9 This is an offence of aggravated sexual intercourse without consent, for which the maximum penalty is twenty years imprisonment.

10 Count 5 occurred on 18 May. The complainant and the offender were drinking when the offender bashed her with a baseball bat. She was trying to block his assault with her arm and was back-pedalling as she did so. She said he “chucked” her on the bed in the front room, hitting her and told her to take her clothes off. After that he put his penis into her vagina. The Complainant was screaming as this occurred and in response the offender just told her to “shut up” saying he could do whatever he wanted because she was “his woman”.

11 This is another offence of aggravated sexual intercourse without consent for which the maximum penalty is twenty years imprisonment.

12 Count 6 occurred straight after count 5. After the offender had penetrated LB’s vagina with his penis he turned her on to her stomach and told her to put her knees up under her belly and as he was using the baseball bat on her back he put his penis into her anus.

13 This is yet another offence of sexual intercourse without consent for which the maximum penalty is once more twenty years imprisonment.

14 Count 7 occurred on 25 June 2000. The complainant was at the offender’s sister’s house. She and the offender had an argument so she went out of the house and he chased her to the front of the building where he began choking her. He dragged her to a block of flats next door, where he pinned her up against the wall and punched her all over her face. She had blood coming from her mouth and head. After this she noticed that her jaw was painful and she was taken to the hospital. She went back the following day and discovered that her jaw was broken.

15 This is an offence of maliciously inflicting grievous bodily harm for which the maximum penalty is seven years imprisonment.

16 Count 8 occurred on 21 August 2000. The complainant and the offender were at (an address not to be published). They might have been drinking when they got into an argument and the offender hit her with the same iron bar that he had hit her with before. This time he hit her in the left eye and told her to get into the caravan. Once in there he told her to get on to the bed where he pulled her pants down and performed oral sex on her by licking her vagina. Once more this is another offence of aggravated sexual intercourse without consent for which the maximum penalty is 20 years imprisonment.

17 Count 9 also occurred on 21 August 2000 after the offender had licked LB’s vagina, which was count 8, he jumped up, pulled his pants down and said “suck me cock”. As a result of him having already hit her with the iron bar, and still having the iron bar in his possession, she did what he asked. This is another offence of aggravated sexual intercourse without consent for which the maximum penalty is 20 years imprisonment.

18 Count 10 occurred straight after count 9. The offender told LB to take her clothes off because he wanted sex. She said “Fuck off, I don’t want you near me”, to which he replied “Shut-up you mole, and I can do whatever I want”. After that he raped her putting his penis into her vagina.

19 This is another offence of aggravated sexual intercourse without consent for which the maximum penalty is 20 years imprisonment.

20 Count 11 occurred on 29 September 2000. The complainant was getting ready to go to a birthday party. She walked into the lounge room as she was about to leave when the offender told her that she was not going anywhere. The offender had a ceramic plate which he broke on the corner of the lounge and used one part of it to slice LB’s left thigh, after which he said “You won’t be walking nowhere now”. LB was taken to the hospital, but lied about her injury telling doctors that she had fallen off a cliff. She has been left with a significant scar on her leg as a result of his incident.

21 This is another offence of malicious wounding for which the maximum penalty is seven years imprisonment.

22 Count 12 occurred on Christmas Day, 2000. The complainant was at (an address not to be published), with the offender having a few drinks when the offender came at her with a hammer and began hitting her. He dragged her inside the house and they ended up in the front bedroom. Once there he told the complainant to get on the bed but when she refused his demand that she "jerk him” he said he was going to “bash her worse”. So he pulled out the little baseball bat, which he had used before, and a golf club. He began hitting her all over her body with those things. He put an orange extension cord around her throat before putting his penis into her vagina at the same time as choking her with the extension cord and hitting her with the hammer.

23 This is yet another offence of aggravated sexual intercourse without consent for which the maximum penalty is 20 years imprisonment.

24 The brutal depravity of these offences needs no emphasis from me. The descriptions of the offences speak for themselves.

25 This is not the first time the offender was convicted of these offences. He stood trial earlier but a re-trial was necessary because of errors identified by the Court of Criminal Appeal in the conduct of the first trial. I mention this circumstance only to explain why it is that the offender is to be sentenced today for matters which occurred many years ago.

26 The offender is now thirty years of age but was only twenty three at the time of these offences. He is the fourth of five children who came from a supportive environment. There is no suggestion that the family in which he was raised experienced problems with either alcohol or domestic violence.

27 Despite this upbringing the offender has a terrible criminal history with many offences of violence upon it. The first of those violent offences resulted in the offender being sentenced to imprisonment for five years to be served in a detention centre. The circumstances of that offence are set out in the remarks on sentence of the Court of Criminal Appeal in Regina v Timbery unreported, CCA 1 April 1996. The offender and his brother-in-law set upon an off duty police officer, beating him with wooden sticks, knocking him to the ground and punching him and kicking him into unconsciousness before stealing his credit cards, $15 and a watch and then running away. When he was sentenced for that matter he asked that two other offences involving assault be taken into account. One of those was another robbery in which a victim’s leg was broken.

28 Later he was convicted of malicious wounding. Then there was an offence of assault occasioning actual bodily harm which occurred in disturbingly similar circumstances to the offences for which I must sentence him. The offender and the victim of this offence had been in a relationship for five months but despite the victim wishing to end the relationship, the offender appears to have remained affected by overwhelming feelings of jealousy and a desire to inflict violence. When he met up with this victim he asked her where she was going and when she replied that she was going to basketball he said “No, you’re going to Redfern to get fucked by someone”. He then grabbed her by the hair, dragging her along the street, saying “If I can’t have you, no cunt can”. He punched her to the mouth causing her to fall to the ground before taking her to his sister’s address, pushing her into a bedroom and punching her in the face several more times.

29 The offender has numerous other convictions on his criminal history. It has been a characteristic of sentences imposed upon him that the offender has breached every order of a court involving supervision of the Probation and Parole Service by re-offending. Indeed all of these offences, represent breaches of two forms of conditional liberty, a s 558 bond and perhaps more importantly, parole. He had only just been released to parole when he began the relationship with LB and it was only a comparatively short time after that when he commenced committing these seriously violent offences against her.

30 The offender drinks enormously. Indeed at the time of these offences he had apparently consumed a case of beer and a four litre cask of wine at a sitting. This level of consumption would usually be on a daily basis. On top of that he used illegal drugs as well.

31 A report by Dr Christopher Lennings was tendered on behalf of the offender. He also gave evidence when the Crown indicated that she wished to cross-examine him. I will have more to say about that report later but will note at this stage an apparent difference between Dr Lennings’ findings and those others who have been called upon to make an assessment of the offender. Dr Lennings concluded on the basis of IQ testing that Mr Timbery is a person who is functioning only at the very bottom end of Australian society and is having a great deal of difficulty in being able to manage accordingly. Dr Lennings places his IQ at the top end of the mentally retarded region or better than only the bottom two per cent of the population.

32 These findings are difficult to reconcile with earlier reports. An earlier pre-sentence report describes the offender as

“an articulate young man which would appear to belie the lack of formal education and certain level of illiteracy”.

33 And a report from the Department of Corrective Services, Forensic Psychology Services, describes him in these terms, “Mr Timbery impressed as a bright young man”.

34 The possibility is of course that the offender, experienced as he is in the criminal justice system, has simply not done his best when tested by Dr Lennings. I did not see in his report any suggestion that he had administered tests designed to establish whether the offender might have been feigning, but I have not found it necessary to resolve this issue. Even if the conclusions of Dr Lennings are to be preferred this is not a case where the offender’s moral culpability is in any way reduced by a low IQ. Dr Lennings was of the view that the offender, because of his low IQ, would not have had the mental resources to address issues in a way which a more intelligent person might. But it takes very little intelligence at all to understand that the offences committed by the offender were seriously wrong, indeed cruel. These offences were motivated by a desire to control, abuse and humiliate the victim. Despite the offender’s low IQ he got precisely what he wanted. The victim was subjugated to his will, even to the extent of declining many opportunities to complain to the authorities about the terrible things the offender was doing to her.

35 No-one really seems to hold out much hope for the offender’s long term rehabilitation. Dr Lennings assesses the probability that he will commit further offences of sexual violence as moderately high and said in evidence that the risk of the offender committing a further violent offence is high.

36 This, combined with an examination of the offender’s history and a consideration of the nature of his wrong doing in the present case satisfies me beyond reasonable doubt that it is almost inevitable that the offender will commit further serious offences once released from custody.

37 It is of course legitimate for a sentencing judge to take into account the need to protect the community when imposing a sentence upon an offender. What is not permitted is a sentence which is extended beyond that which would otherwise be appropriate in order to give effect to the desire for preventative detention.

38 I am not going to mince words here. Given the offender’s history of violence and given Dr Lennings’ assessment of the probability of future violence it is my confident prediction that once released from custody the offender will harm someone else through a further offence of violence in a serious way.

39 The two cases of Veen v The Queen (No 1)(1979) 143 CLR 458 and Veen v The Queen (No 2) (1998) 164 CLR 465 set out quite clearly the proper approach to preventative detention and the circumstances of the offences of Mr Veen demonstrate why it is that preventative detention can and should, in appropriate cases, be an important factor in determining an appropriate sentence. I repeat I will not extend the sentence I would otherwise have imposed upon the offender, extension by reason of preventative detention which is impermissible but in exercising my sentencing discretion I will have regard to the protection of society, among other factors of course.

40 The offender suggested his offences were not premeditated. Even if that is the case, it is a matter of very little mitigation in the context of an ongoing series of sexual and physical assaults. There is no suggestion that after each offence the offender was genuinely remorseful and determined to mend his ways. On the contrary the offender having perceived that he got what he wanted each time he violently abused LB seems to have adopted the attitude that when the occasion next arose he would do exactly the same again.

41 I have to be careful of course to remember that the offender was a much younger man when he committed these offences than he is now. However he was far from an immature youth when he commences his series of offences against LB. I do not regard his age either then or now as a matter of mitigation.

42 Given the number and nature of the offences and the requirement to take into account the protection of society there is a real risk that the sentence I impose upon the offender will be a crushing one. I do not aim to crush the offender but do aim to reflect his overall criminality by an appropriately harsh sentence.

43 The effect of these many crimes on LB has been substantial. She is left with physical scars as well as mental ones from the ongoing physical and mental abuse she received at the hands of the offender. The impact of the offender’s crimes upon LB is a matter which of course I must take into account. However, I should say a number of things about the victim impact statement. There are a number of matters contained within it that I am not allowed to take into account when formulating a sentence to impose upon the offender. These include other acts of criminality of which the offender has not been convicted, the conduct of others, the effect of the trial process and what in effect amounted to submissions on sentence. Of course this is not to ignore the very serious impact of the offender’s wrongdoing but it is to recognise that some consequences for LB are not properly to be taken into account when deciding what sentence to impose upon the offender.

44 The offender has apparently been serving his time in custody on protection and is still there now. No longer is it automatically assumed that a prisoner, once on protection, will remain there. Nor is it automatically assumed that those serving their sentences on protection experience harsher conditions of custody than those in the general prison population. There is however a risk the offender will serve a large part, if not all of his sentence on protection and there is also a risk that this will involve harsher conditions than would otherwise be the case. I will take those risks into account.

45 The offender has been in custody from the date of his arrest on 19 May 2005. Ordinarily his sentence would commence on that date but since being arrested for these matters he has served a period of imprisonment of six months for an unrelated matter. Accordingly the sentence I will shortly announce commences from 19 November 2005.

46 Not much can really be made of the delay in this case. There is little to suggest that the offender spent the period between the commission of his offences and his arrest worrying about whether he would ultimately be dealt with for his wrongdoing. Nor has the offender been able to demonstrate any rehabilitation since he committed these serious offences. Indeed his failure to admit them suggests that he has not changed much, if at all.

47 I record that the offender has previously been sentenced by the late Judge Donovan. He sentenced the offender for all of the offences which I must sentence him, apart from one. It was count 3 on the indictment before me where the jury found the offender not guilty. The overall sentence imposed by his Honour Judge Donovan consists of an effective non parole period of twenty-four years with an effective total term of thirty-three years. This was the subject of an appeal to the Court of Criminal Appeal but the Court sensibly did not deal with that appeal, having decided to quash the offender’s conviction and return him to this Court for a new trial.

48 The relevance of Judge Donovan’s sentence is of course that ordinarily the offender is not to receive a longer sentence simply because he successfully appealed against his conviction.

49 There are no special circumstances in this case apart from the fact that there is some accumulation of sentences.

50 On count 1 the offender is sentenced to imprisonment. I set a fixed term of four years to date from 19 May 2005.

51 On count 2 the offender is sentenced to imprisonment. I set a fixed term of imprisonment of five years to date from 19 May 2006.

52 On count 7 the offender is sentenced to imprisonment. I set a fixed term of five years to date from 19 May 2007.

53 On count 12 the offender is sentenced to imprisonment. I set a fixed term of six years to date from 19 May 2008.

54 On counts 5 and 6 the offender is sentenced to imprisonment. I set a fixed term of twelve years to date from 19 May 2010.

55 These sentences are all fixed terms because there is no utility in setting a non parole period given the other sentences which I will now announce.

56 On counts 8, 9 and 10 the offender is sentenced to imprisonment. On each count I set a non parole period of nine years and a head sentence of twelve years to commence on 19 May 2012.

57 On count 4 on the indictment the offender is sentenced to imprisonment. I set a non parole period of eight years and a head sentence of fourteen years to date from 19 May 2015.

58 Thus the overall term is a sentence of twenty-four years with a non parole period of eighteen years. The non parole period will expire on 18 May 2023 on which day the offender is eligible to be released to parole.

59 It is my recommendation that the offender not be granted parole until the offender has successfully completed the CUBIT program or some other similar program.

**********