R v Vute

Case •

[2021] NSWDC 639

•

01 October 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Vute [2021] NSWDC 639
Hearing dates: 20 August 2021 & 01 October 2021
Date of orders: 01 October 2021
Decision date: 01 October 2021
Jurisdiction:Criminal
Before: Bennett SC DCJ
Decision:

Aggregate sentence of imprisonment of 4 years 3 months with a non-parole period of 2 years 6 months

Catchwords:

CRIME — Drug offences — Possess prohibited drug

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

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

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518

Bugmy v The Queen [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194

Markarian v R [2005] HCA 25

Osenkowski (1982) 30 SASR 212

R v Carver (2003) NSWCCA 243

R v Harris (2007) NSWCCA 130

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No 2) [1988] HCA 14

Walsh v R (2020) NSWCCA 183

Category:Sentence
Parties: Regina (Crown)
Anasa Vute (offender)
Representation:

Tara Reddy (Crown)
Anoj Anastasius (solicitor for the offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (offender)
File Number(s): 2020/003287847

EX TEMPORE REVISED JUDGEMENT

Introduction

  1. Anasa Vute is now 41 years of age, born in the first half of 1980.  He pleaded guilty in the Local Court to two offences.

  2. The first of those, contrary to s 113(2) Crimes Act 1900 is in the following terms: 

That he, on 17 September 2020 at Redfern in the State of New South Wales, did break and enter the dwelling house belonging to Xiao Wei Tan situated at unit XXXX/XXXX Bourke Street, Redfern with intent to commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely there were persons present within the said dwelling house. 

  1. The maximum penalty specified for that offence is imprisonment for 14 years. There is no standard non-parole period specified for the purposes of Part 4 div 1A Crimes (Sentencing Procedure) Act 1999.

  2. The second offence to which he pleaded guilty is one contrary to s 111(1) Crimes Act 1900 in the following terms: 

That he, on 6 October 2020 at Rosebery in the State of New South Wales did enter the dwelling house of Alice Brennan situated at XX Princess Avenue, Rosebery, with intent to commit a serious indictable offence therein namely larceny.

  1. There are two offences listed on a Form 1 by means of which the offender asks the Court to have them considered when sentence is determined for the offence of enter dwelling house with intent to steal. 

  2. These are: an offence of possessing a prohibited drug namely one Suboxone film equivalent to 8 milligrams of Buprenorphine; that is contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for two years; and an offence in the following terms: 

On 6 October 2020 at Rosebery in the State of New South Wales did assault Alice Brennan, contrary to s 61 Crimes Act 1900.

  1. The maximum penalty specified for that offence is imprisonment for two years.

The Pleas of Guilty and Form 1 Offences

  1. The offender confirms that he pleaded guilty to the offences upon which sentence is to be determined in the Local Court.  He also confirmed his wish that the additional offences be taken into account when sentence is determined for the offence of enter a dwelling house with intent to steal.  He admitted his guilt in respect of each of those offences and thus, the sentence for the principal offence in which the additional offences shall be taken into account will be increased to a level beyond that which would have applied had he been sentenced upon that offence without the additional offences taken into account.

  2. He has had the benefit of avoiding separate punishment for those additional offences. 

  3. The assault, I might say, in the circumstances, was a serious assault.  That said, having taken the course that he has, he facilitated the conduct of these proceedings and that should be brought to account to his credit.

  4. The increase that will be applied to the sentence that would have otherwise been imposed is to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct upon which he is presented to the Court, and the community’s entitlement to retribution for what he has done wrong.  Guidance was provided by Spiegelman CJ in Attorney-General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2002] NSWCCA 518.

Pre-sentence Custody

  1. The offender has been in custody since his arrest on 6 October 2020, but not in relation to these matters alone.  At the time of the commission of these offences he was subject to parole.  He was released to parole on 6 June 2020 and had been at large some three months and ten days before his commission of these crimes.  For reasons provided in the breach of parole report, to which I shall come, his parole was revoked and he has served the balance of parole, which expired on 23 January 2021.

  2. The question arises as to when the sentence I impose today should commence.  The guidance provided by the Court of Criminal Appeal in Callaghan v R [2006] NSWCCA 58 applies here. Simpson J wrote at para [22] of her judgement of the discretion which she found existed in sentencing courts in determining when to commence a sentence to be imposed after revocation of parole. At para [23], she wrote:

“It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period.  It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

24. However, I am also of the view that, particularly where, as here, the reoffending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.”

  1. This is such a case, in my view. 

  2. The Crown submissions, at para 10, provide a history of offending up to the time of these offences.  Between 20 May 2016 and 20 July 2016, he committed two offences of aggravated break, enter and steal with people on premises; three of entering building or land with intent to commit an indictable offence and dishonestly obtain property by deception, with a Form 1 containing offences of larceny, dishonestly obtain benefit by deception and entering enclosed lands.  He was subject to a sentence of imprisonment of four years and three months from 28 June 2016 until 27 October 2020, including a non-parole period of two years and three months, which expired on 27 October 2018.

  3. On 10 March 2019, he committed an offence contrary to s 114 Crimes Act 1900, an offence of larceny, an offence of entering a building with intent, an offence of disposing of property and two offences of dishonestly obtaining financial advantage.  For those offences, he was sentenced to imprisonment of 18 months from 4 July 2019, to expire on 3 January 2021, with a non-parole period of 11 months, to expire on 3 June 2020.

  4. On 8 March 2019, he committed an offence of larceny and two offences of dishonestly obtaining financial advantage by deception, for which he was sentenced to imprisonment of ten months, commencing on 7 January 2020 and expiring on 6 November 2020, with a non-parole period of five months, to expire on 6 June 2020.

  5. I am satisfied that in this case, it is appropriate to commence the aggregate sentence I shall announce at the end of this judgement, on 1 January 2021.  That provides some overlap with the balance of parole he was required to serve, which expired on 23 January 2021. 

  6. I have also included as a special circumstance, the extended period during which the offender has been in custody beyond the sentence which I will announce today.  There are other special circumstances to which I shall in due course refer but the extended period of imprisonment to which he is subject beyond that which is to be imposed is a matter that must be brought to bear.

The Facts

  1. He committed these offences in the following circumstances. 

  2. First of all, with regard to the aggravated breaking and entering with intent to steal, knowing a person was present on the premises: about 8pm on 16 September 2020, the victim, Ms Tan, went to bed in her house which is located in the New South Wales Evergreen Taoist Centre.  She retired early because she was not feeling well.  She locked the screen door and glass door before she went to bed.

  3. About 3am on 17 September 2020, she was laying on her bed when she saw the offender standing in front of her drawers towards her bathroom.  At that time of night, it must have been obvious that there would be someone on the premises.  The offender shuffled along the wall to a coat hanger where her handbag was.  She shouted out, “Who” in Mandarin and the offender ran off.  He was dressed in a raincoat with a hood over his head.  He did not say anything to the victim.  When she checked her doors she saw that the glass door was open a little bit and the screen door was closed but not locked.

  4. She recognised the offender on closed-circuit television footage from her building.  The police recovered CCTV which showed the offender walking in the direction of the victim’s unit around 3.30am.  The police were able to identify the offender from footage taken on 16 September 2020, in which he was searched and was wearing the same shoes, jacket and pants as he was wearing at the time of the offence.

  5. The offence of enter a dwelling with intent to steal occurred on 6 October 2020.  About 8.30am that day, the victim, Alice Brennan, left her home in Rosebery to take her son to day care.  Her husband had locked the front door at 8am when he left for work.  She exited via the back door.  The back roller door was left open.  At 9.10am, she returned home and walked through the rear courtyard and saw the back door was wide open.  She walked into the kitchen area and saw the offender walking toward her from her lounge room.  He was wearing a black face mask.  She said, “Who the fuck are you?  What the fuck are you doing here”?  He responded, “I thought it was John’s house.  I have a delivery for him”.  She said, “What have you got in your pockets”?  He said, “Nothing”.  She told the offender to drop whatever he had and to “get the fuck out”.

  6. The Form 1 offence of assault then occurred.  The offender walked past her and out the back courtyard.  The victim followed him into Salisbury Avenue, where he turned left towards Dunning Avenue.  She said, “Stop, I need to take a photo”.  Unsurprisingly, he kept walking about 200 metres towards a black bike that was on the ground.  He in due course used this bike to ride away.  The victim again said, “Stop, I need to take a photo”.  He turned around, stepped toward her, and swung his left elbow toward her; his hand struck her on the right shoulder, causing her pain.  She took a photo of him as he walked away from her.  Closed‑circuit TV was recovered showing the offender riding back in the same direction at 9.13am and checking behind him as he did so.

  7. The victim returned home and noticed that two bags on the floor of the lounge room had been rummaged through. 

  8. The offender was arrested a short time later at the corner of Chalmers and Cleveland Street in Redfern.  He declined to be interviewed at the Mascot Police Station.  He participated in a forensic procedure.  He was seen to be wearing the same clothing as in the picture taken by Ms Brennan and the CCTV footage recovered.  He was found to be in possession of the strip of Suboxone at the point of his arrest, the other Form 1 offence.

  9. I confirm that I shall take into account the additional offences; and I will certify the Form 1 to confirm that I have done so. 

Consideration

  1. The Crown concedes that these offences are below the mid‑range of objective seriousness.  That must be so. Apart from anything else, the serious indictable offences that are contemplated in the provisions extend from those which carry a maximum penalty of five years, such as in the case of larceny, to offences which carry a maximum penalty of 25 years.

  2. Although not the sole determinant, that is a matter that carries significant weight in the assessment of objective seriousness, together with the circumstances of the offending in each of these two cases.  The offences appear to me to be more opportunistic than carefully planned, but there was a measure of planning required.  It could not have been otherwise in the case of the aggravated break and enter, in circumstances where he knew that there would be someone in the premises at the time that he went into the house, preparing to engage upon the misconduct mitigating the possibility or risk of his identification.

  3. So too in respect of the second offence where he had a black mask together with the opportunity he took to provide a false reason to the occupant for being in the premises. 

  4. That said the level of planning and organisation that must have been required for the commission of these crimes is no greater than what one might expect in such circumstances.

  5. The fact that these offences occurred in the homes of the victims is a matter to be brought to account as an aggravating factor.  It is said on behalf of the offender that there is no evidence upon which the Court could conclude that he was aware of the advanced years of the victim in the first of the offences, a matter with which I must agree. 

  6. When I bring all of those circumstances together in the objective assessment of the misconduct, it must be that the offences are significantly below the middle range of objective seriousness.  It will always be a matter of judgement where to place an offence on the scale of seriousness.  These are not at the lowest end of the scale of seriousness.  I would place them somewhere between the low end and the mid-range, perhaps about halfway.

  7. Relevant to the assessment of objective seriousness is the guidance provided by Johnson J in Tepania v R [2018] NSWCCA 247. His Honour was there concerned with standard non-parole period offences, but as his Honour made clear in the judgement, at para [112] and following, regardless of whether an offence is a standard non-parole period offence or is not,

“the Court must make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute).”

  1. His Honour included mental disorder or mental impairment, and emotional distress as matters that are always material to the consideration of an appropriate sentence.  His Honour referred to the concept of moral culpability as it has been understood in the various authorities.  His Honour referred to Veen v The Queen (No 2) [1988] HCA 14, Bugmy v The Queen [2013] HCA 37.

  2. The offender, by way of his lawyer, has represented as significant the application of the decision in Bugmy, referring to profound childhood deprivation that will impact upon the assessment of moral culpability, the effect of which does not dissipate with the passage of time and remains relevant to the assessment of sentence whenever an offender might choose to embark upon criminal misconduct. But the impact of background and emotional distress or other psychological or mental impairment has to be balanced against the need to protect the community, as discussed by McClelland CJ CL in Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194. As Johnson J pointed out in Tepania, all of these aspects are matters to be taken into account with all of the relevant factors which bear upon sentence, some of them pulling in different directions, in the exercise of instinctive synthesis as discussed by McHugh J in Markarian v R [2005] HCA 25 at para [52].

The Offender

  1. The offender has an appalling record of antecedents. They extend to 22 pages and begin with an appearance in the Children’s Court in October 1994. The offences upon which he has been presented were unlawful entry; possession of prohibited drug; stealing; entering land with intent; goods in custody; fail to appear; stealing a motor vehicle; stealing from a person; breaking, enter and stealing; breaking and entering with intent; assaulting an officer in the execution of duty; robbery in company; affray; resisting an officer in the execution of duty; stealing in a dwelling house; custody of a knife in a public place; aggravated break and enter and commit a serious indictable offence in company; possessing or attempting to possess a prescribed restricted substance; dishonestly obtaining property by deception, an offence contrary to s 114 Crimes Act 1900, having previously been convicted of an indictable offence; disposing of property before then stolen; common assault.

  2. There are multiple examples of offences as I have described them, leading to the courts embracing all of the sentencing options that were available to them, including non-custodial and custodial sentences, no doubt endeavouring to impose outcomes that would, at least as part of their consideration, provide opportunity for rehabilitation.

  3. He has a history of custodial offences, the most recent of which was in March 2020, failure to comply with the Centre routine, and back in 2019, possessing drugs, possessing tobacco; in 2018, disobeying directions, possessing tobacco; and then back in 2015, for fighting.  These offences extend back to October 1999.

  4. He has spent most of his adult life in gaol.  Ms Anastasius has assisted me with the calculation. Bearing in mind that he is now 41 years of age and thus, has been an adult for some 23 years, of that period he has been in custody, incarcerated, for some 17 years, two months and two weeks which, as I understand it, does not include the custody with which I am presently concerned.

  5. Institutionalisation is a very real risk in this matter, requiring appropriate consideration; I add that to the circumstances which I find to be special, requiring an adjustment downward of the custodial component of the aggregate sentence I am to impose. 

  6. His response to supervision when subject to parole was poor.  The report, with which I have been provided for his breach of parole, was written on 19 October 2020. His failure to comply with the conditions included the failure to comply with his obligation not to commit any offence; that occurred by the commission of these further offences upon which sentence is to be imposed today.  He was also required to report to a Community Corrections officer at a time and place directed.  He failed to report for scheduled interviews on 24 September 2020 and 25 September 2020, to which he had before then agreed.

  7. He was supervised from Blacktown Community Corrections with a medium to high risk of reoffending.  This required weekly interviews and a case plan to address his ongoing illicit drug use, his negative peer associations, and undiagnosed mental health and impulsive behaviours, which appear to be associated to theft and his financial difficulty from his illicit drug habit.

  1. He provided a false address in July and September 2020 and failed to engage in supervision.  He continued to evade Community Corrections in the weeks leading up to his arrest and when spoken to by telephone on 21 and 24 September 2020, he provided misleading information, confirmed by his family to be false. 

  2. Inquiries were made of his ex-partner and his family.  Their concerns were his rapid decline into drug use, his criminal associations, and how he was misleading everyone regarding his circumstances.  He resumed the use of illicit drugs and criminal behaviours which led to these further offences and revocation was thus recommended and in due course, implemented.

  3. The matter first came before me on 20 August 2021.  The offender gave evidence.  He provided particulars of his age.  He spoke of the information provided to a psychologist, who assessed him at Windsor Correctional Centre.  He gave evidence of boot camp training upon which he had engaged and which he said he was now running.  It involved him setting up gym equipment and getting it ready each day for this process.  He arranged timing of that activity to accommodate the inmates who wanted to participate but had work commitments.  He explained how he had little stability in his life until this activity, which now has provided some stability in his gaol life; when he is released he will pursue physical training employment opportunities with a friend.

  4. He attributed excessive discipline to his father.  He said as a child he was punished physically.  He spoke of an event when his mother was shaken by his father.  He was then 12 or 13, he said.  He has not had anyone from his family present in the course of these proceedings.  Little can be drawn from that, however, in light of the present circumstances through COVID‑19 and how proceedings must be conducted in the courts so as to protect against the risk of the spread of that infection.

  5. He said he did not know that the occupant of the first house was an elderly woman.  He agreed that the occupants of the houses would feel unsafe as a result of this misconduct.  He said he has not been using drugs since October 2020.  He has had no opportunity before this to take part in a residential rehabilitation program.  No such opportunity was ever offered to him.  He did not know how he would go about making arrangements to have access to that facility.  He said he is motivated to change because he has four children, with whom he wants to restore his relationship; when he is released he will do whatever is required of him.

  6. He noted that his parole was revoked for failing to keep in contact.  He said he was using drugs at the time as the explanation for that.  He said he will try to do better and he will make sure that the Community Corrections people, once he is released to parole, will have accurate details so that they can maintain supervision. 

  7. In response to cross-examination he acknowledged the obligations to which he was subject. He confirmed that he had not complied.  He confirmed that he had no access to heroin in custody.  He confirmed he wore a face mask in his offending.  He explained that it was because of the COVID-19 pandemic.  I do not find that a persuasive answer, I must say.  It would test credulity to come to the view that at the time of that offence, when he was found to have entered the premises, the second offence before me, that he did not wear that mask to limit the opportunity that anyone who saw him might have to identify him.

  8. He spoke of not having had the chance to apologise to the victim of the assault. 

  9. He was taken to the psychologist’s report that was tendered at that stage; it was noted that he had not expressed any remorse to that psychologist.  He responded that he was, of course, sorry for what he had done, and not only because he had been caught.  He said his head is now clear and he looks to a brighter future.

Report of Psychologist Claire Barker

  1. In the course of submissions, there was a reference made to the report provided by the psychologist, Claire Barker, bearing date 16 August 2021.  As a consequence of what was discussed, the proceedings were adjourned until today to allow the offender the opportunity to gather further information with regard to allegations he made that he had been the subject of sexual assault when in the custody of Juvenile Justice.

  2. The report by the psychologist extends over 18 pages.  Significant in this document is the position he occupied within his family as the youngest of five children.  He had a positive and supportive relationship with all siblings, none of whom had been in any trouble with the law.  His mother and father both had strong Christian backgrounds and raised their children to have the same attitudes.  His father has since passed away, suffering a heart attack in 2015.  His mother, 73 years of age, still works as a nurse at a nursing home in Rooty Hill.  She was described as an encouraging and positive woman and as a very good mother to him and his siblings.

  3. His father was very strict and a proud man, he said, with strong opinions about how things should be.  His father was said to be a harsh disciplinarian.  He is attributed with the following:

“He would bash me a lot.  He’d hit me with sticks.  The other kids didn’t get it as much as I did.  He was upset because I was the youngest and I didn’t do that well at school.  Older people with a strong Christian background are very proud people.  They show their love by being strict and having strong discipline.”

  1. The assessment for this report, written on 16 August 2021, was on 29 July 2021, and is the most recent of such material tendered in the offender’s case. 

  2. He had limited schooling.  He found school difficult.  He left school at the beginning of year 8.  His main interest was playing rugby league.  He played at a district representative level, hoping that he would have the skills to enter that sport professionally, however because of his failure to commit to his schooling, he said, his father prevented him from engaging upon his one true interest in his young life; and that was to play rugby league.

  3. Everything deteriorated from that point on.  He began smoking cannabis.  He did return to play football when he was aged 30.  He was selected for the Sydney Fijians, a representative team.  That was for a year and a half and he said these were the happiest times of his life.  He was asked to travel to Fiji to play for the Fijian national team, but because he was on parole at the time, that opportunity was lost to him.

  4. He associated with negative peers, after which he began to get into trouble with the law.  He asserts that had he been able to play football, he would not be in the predicament he now faces; he would not have taken the path that he did.  He began running away from home.  He said his father would bash him every few days.  His relationship with his father from the age of 13, he described as “not good”.

  5. From the age of 18, he began working with his brother in a floor sanding business.  He could not continue there because there was a shortage of work, after which the offender returned to illicit drug use; at the age of 21 he was sent to gaol for some ten years.  He was released in 2010.  He worked as a shop fitter.  He left after four months.  He did not enjoy that work.  He has not worked since then.  He has been a participant in several courses in custody including Equips addiction, Equips aggression relapse prevention and smart recovery program.  He completed a two-year apprenticeship as a welder boilermaker whilst in custody.

  6. He has had two significant relationships; the first with the mother of his eldest child, a boy.  It lasted for 18 months after he was incarcerated in 2001.  His son was born at the beginning of a ten-year sentence.  He says that he has a strong bond with his son; they speak regularly by phone.  His second significant relationship was formed and he has three children born of that union; they are aged six and one respectively; the younger children are twins.

  7. Before his present incarceration he was living with his partner and the children in Newtown.  They are in regular contact.  The reference in the breach of parole report to which I earlier referred speaks of his former partner.  There is an apparent inconsistency between what is here in para 11 in this report and what was there said in the breach of parole report, but that may simply be a matter of their separation because he is presently in gaol.

  8. He has, he said, many good friends from his football years, all of whom are worthwhile members of the community.  There is reference to the opportunity to enter the personal training business to which I earlier referred. He also has friends who are regular drug users; he is only around them when he is using drugs and otherwise does not like to be around those friends in those circumstances.  His association with illicit drug users is recognised as a problem for him.  He has no significant medical history.

  9. He said he rarely consumed alcohol, only occasionally.  His history of drug use began with cannabis when he was 13 but he has not used that for some 18 months.  He used heroin at the age of 14; he was introduced by older friends.  He smoked the heroin to avoid the risk of infection from a needle.  He was using half a gram a day when he was arrested.  He “went cold turkey”, to use his words, in October 2020 when he was arrested.  He has not been on a methadone program and he has not attended drug rehabilitation of any kind.  The Drug Court apparently rejected him in the past.  He had previously attended Narcotics Anonymous and would like to resume that.  He saw a prison psychologist in 2006 for a few months.

  10. The report then deals with childhood trauma which is said to have had a profound impact on his life.  This begins with his alleged mistreatment by his father, and when incarcerated at the Reiby Juvenile Justice Centre and the Mount Penang Juvenile Justice Centre as a teenager, where in both places he was sexually abused by case workers; that misconduct continued throughout the periods of incarceration.  It was not disclosed until recently.  He has since suffered chronic anxiety which worsens in incarceration.  There are triggers which bring the memory of those events back to him.  He has had support from a consultancy given the name “Voice of a Survivor” since he reported the misconduct to which he was subject.

  11. His criminal history is discussed in some depth.  He escaped from lawful custody when he was at Mount Penang.  He attributed the sexual abuse to which he was subject as the reason for that, but it does not appear that he exposed it, which could, I would have thought, given him sound bases for either defending the charge that followed or mitigating whatever penalty to which he might have been exposed.

  12. There is reference to his loss of opportunity to play for the Fijian national football team.  It is evident, according to this report, that his criminal misconduct has for the most part been in attempts to get money to fund his drug use.  That is a fair observation, I accept. 

  13. It is said that these offences were spur-of-the-moment things, not planned, just opportunities that presented.  I earlier described these as opportunistic but I would not call these spur-of-the-moment episodes of misconduct, because there had to be some measure of planning and organisation that he exploited to embark upon the crimes.

  14. It is noteworthy though, and something to which I should have referred to earlier, that immediately after he was discovered he did not persist in the crimes, and sought to flee, save for the second offence when he turned and confronted his victim and assaulted her in circumstances that should attract a measure of punishment.

  15. His plans for the future I have discussed.  He was assessed for his mental state.  It is said that he presented as clear and straightforward.  There was no apparent attempt to engage in self‑serving behaviours.  He had gaps in his memory coincidental to his periods of heavy heroin use.  There were no active symptoms of gross abnormal psychopathology.  There was no psychometric assessment because the assessment made for the purpose of this report was made via AVL.

  16. There is an assessment of his risk of reoffending, which identifies those factors that he ought to address to minimise the risk of further misconduct.  He is assessed as falling within the moderate category. 

  17. The report is sympathetic, I should say, but it must be accepted that his misconduct has a connection with opioid misuse through his life; it is probable that his disciplinarian father contributed to his wayward life, but the significant factor was what occurred when he was in the Juvenile Justice facilities, to which I shall come.

  18. He acknowledged that his four siblings have progressed in their lives where he has not.  He has limitations which were assessed when he did undertake psychometric testing, to which I shall refer in a moment, that might explain why he was a poor scholar at school and not, it would appear, appreciated by his father who sought to impose physical punishment as a way of disciplining him to encourage him at school, and which he decided should be compounded with the denial of the one activity that the offender enjoyed, namely football.

Sexual Assaults in Custody

  1. The matter was adjourned from the last occasion, as I said to allow evidence to be gathered in support of the allegations that he had been the victim of sexual abuse in juvenile justice institutions.  It was I thought at the time implausible that such a significant factor would not have been detected by the representatives who appeared for the offender throughout his antecedent court appearances. But he gave evidence today to explain that he did not disclose that he had been the victim of sexual assault at the hands of those responsible for his supervision and care because of embarrassment.  He discussed his circumstances with someone who had also suffered at the hands of such individuals and as a consequence of that he, for the first time, disclosed to Associate Professor Robertson what had befallen him.

The Report of Associate Professor Robertson

  1. The Professor saw the offender on 26 November 2020 and wrote on 8 December 2020.  He summarised the claim for psychological injury for sexual abuse at Reiby and Mount Penang.  His background is discussed, consistent with what I have already rehearsed, including the success of his siblings in life and his lack of education beyond Year 7.  He rebelled against his father’s discipline and that resulted in his association with undesirables; there is reference to his father’s intervention in his football activity and hoped-for career.

  2. The experience of sexual abuse is discussed in some detail.  The perpetrators are identified, or at least there are particulars which would enable, I would have thought, further investigation into the matter to have their identities confirmed.  He was a young teenager at the time that these things occurred to him.  They were, on these descriptions, clearly sexual offences against a young boy and the Court has, unfortunately, over the years been exposed to so many cases involving such behaviour that it is unsurprising that people who are the victims of such abuse at a young age suffer embarrassment as a result, such that they tend not to disclose it when they have the opportunity to do so. Indeed, juries are directed in those terms in the modern era to ensure that they do not attribute inappropriate weight to the mere fact that such behaviour was not reported proximate to the time when it occurred.  The offender did not say so in evidence, but it is not unknown that people who experience this type of abuse self-blame, at least to some extent, and carry a measure of guilt in addition to the embarrassment that they have been forced to experience; the suppression of those events does lead to symptoms of post-traumatic stress disorder, as described in this report.

  3. I have no difficulty coming to the view that it is at least probable that the history of this offender is to be seen within the context of limited ability at school, failure in his father to appreciate the significant challenge that he faced at school, excessive discipline and intervention in the one opportunity that might have kept him from a life of misconduct, which in due course, led him into the custodial setting of Juvenile Justice, where these base individuals preyed upon him for their own sexual gratification.

Report by Psychologist Carlene Ryder

  1. The other report that I have is one written on 5 November 2002 for earlier proceedings, by Carlene Ryder, psychologist.  This was for the sentence proceedings for the offences of armed robbery that appear on his record.  He underwent psychometric testing.  His background to that point in time is consistent with what I have already rehearsed.  There is nothing in here about the sexual misconduct to which he was exposed but, as I said, there are reasons and explanations which I accept, for him having not done so before this.

  2. The Kaufman Brief Intelligence Test gave scores which placed his intellectual functioning well below average range.  His personality was assessed on the Carlson Psychological Survey, which placed him within the 50th percentile for chemical abuse, thought disturbances and anti-social tendencies.  The assessment though, on this occasion, was burdened by the offender’s presentation.  There were two occasions when he was presented to the psychologist.  On each occasion, he was late attending the consultation because of difficulties getting him from the custodial setting to where the assessment was to be made.  The first was on 23 October and the second on 30 October 2002.

  3. The delays occasioned on the first consultation left only time for the psychometric assessments and clinical assessment was performed on the second occasion.  On the first occasion, his presentation was one of disinterest and lack of motivation, which the psychologist suggests might have impacted upon the outcome of the psychometric testing to reveal his personality. On the second occasion when he was clinically assessed, he was much more positive.  As the author wrote on p 6, last paragraph:

“Due to Anasa’s detachment during the first interview, the personality assessment did not provide much information.  Anasa’s presentation between the two interviews was remarkably different. On one hand, he was impassive and cool, and on the other, he was accommodating and pleasant.” 

  1. She suggested that the presentation on the first occasion might have indicated moody immaturity.  She suggested that his history appeared to demonstrate a young angry man who impulsively acted out his anti-social feelings, including drug use, which possibly began as rebellion against an overly strict and emotionally distant father.

CONSIDERATION

  1. Upon this material, I am satisfied that the special circumstances should include the opportunity for an extended period on parole, hopefully to mitigate the risk of institutionalisation and to encourage an appropriate response by the offender, to submit to the supervision which he so sorely needs, to redirect his path.  At the age of 41, it would seem to me that this is his one last opportunity to change direction.

  2. I could not come to the view that he is at the crossroads in keeping with the guidance offered in the decision from South Australia of Osenkowski (1982) 30 SASR 212. However, I accept that he wants to improve his position; he wants to rehabilitate and change his life; but one must come to the view, I believe, that the prospects of rehabilitation are guarded because of the history that he has so far accumulated. It will be up to him, though, to take the chances presented to him to change direction, if that is his wish. If he fails to do so, of course, he will simply have to serve the balance of the parole that he would otherwise have.

  1. Written submissions provided by the Crown remind me of the guideline judgement for Form 1 offences, to which I have already referred; the objective seriousness of the aggravated break and enter include the time of the offence, the methodology employed, the attire worn by the offender including a hood, revealing a degree of planning and the offender being in the 81-year-old victim’s bedroom.  Once again, I cannot come to the view that he was aware of her advanced years, but he could not have but known there would be someone in that house at that time.

  2. The Crown concedes the offences are below mid-range.  The offence of enter a dwelling with intent includes reference to the black face mask, the lie told to the victim, reflecting a measure of planning, and there is reference to the assault which was clearly unprovoked and deliberate and, one might say, particularly unwise and deserving of punishment.  He could have simply walked away, mounted his bicycle and ridden off.  Instead, he chose to stop, apply force by the battery and cause a measure of fear in the victim.  The Crown puts this offence as just below mid-range.

  3. His parole, at the time of the offence, is noted; I have already referred to the table which the Crown provided in written submissions including the offences that had him subject to parole at the material times, and the nature of the offences as similar or of the same type to those which led to that parole.  He has an extensive criminal history and this demonstrates, I agree, a continuing attitude of disobedience to the law; specific deterrence and protection of the community indicate a more severe penalty in accordance with Veen v The Queen (No 2), ibid.

  4. I am reminded of the Court of Criminal Appeal decision in R v Harris (2007) NSWCCA 130, asserting that heavy sentences should generally be imposed for break and enter offences committed by repeat offenders on domestic premises, whether or not the more aggravated form of misconduct. I have noted that authority, but one must bring to bear those mitigating factors to which I have already referred, including his regrettable history and the aspects to which the decision in Bugmy (ibid) have application.

  5. The aggravating factor of the offences being in homes of the victims is noted. The Crown concedes a discount of 25% to the sentences that would otherwise have been imposed in each case in accordance with s 25D(3)(a) Crimes (Sentencing Procedure) Act 1999.  Custodial history is noted.  Totality must be brought to account.  The offences occurred some three weeks apart, the Crown notes.  The first offence occurred on 17 September and the second on 6 October 2020.

  6. The Crown makes submissions with regard to the need for the deterrence and community protection; and reminds me that there must be some evidence to support a finding that an extended period of parole could promote the offender’s rehabilitation and that it must be more than mere hope, referring to Walsh v R (2020) NSWCCA 183 and R v Carver (2003) NSWCCA 243, observations with which I agree. But in light of what is now a more complete picture of the offender’s background, I am satisfied that there is evidence before me justifying a finding of special circumstances.

  7. In the submissions made on behalf of the offender, it is said, as was submitted by the Crown, that the offences are below the mid-range, and there was limited planning.  I do not agree with the proposition that this was a spur-of-the-moment thing, as I earlier noted.  I agree with the proposition that I could not find that the offender knew the victim was elderly.

  8. His opioid use disorder is noted with his history under the influence of his father’s discipline and the events in the custodial setting in Juvenile Justice, as I have already discussed.  The proposition of him having an impaired state of mind is advanced, referring to para 49 in the report provided by psychologist Claire Barker.  I am not prepared to accept that submission.  I do not see this as spontaneous or impulsive behaviour.  Apart from anything else, the offences were three weeks apart and there was a measure of planning and organisation consistent with the type of offence upon which the offender engaged.

  9. The extent that he might have an impaired mental state is qualified, I believe, and is not as significant as was advanced by Ms Barker.  That said, as I have noted, the history of intense discipline, resort to drugs, inappropriate associates, and the impact of the offences against him in the Juvenile Justice system all contributed to his ongoing misuse of drugs which has been the foundation, I find, for the extensive criminal career that he has pursued up until this stage of life.  I agree with the submissions with regard to institutionalisation. I do not agree that there are good prospects of rehabilitation. I accept that the offender has demonstrated contrition and remorse.

THE SENTENCE

  1. He is convicted of each of the offences.  I will certify the Form 1.  There will be accumulation of the sentences I find to be appropriate for each of these offences.  I have taken into account the additional offences when determining the sentence for the second of the offences upon which the offender has been presented before me.  I have decided to impose an aggregate sentence of imprisonment.  The aggregate sentence I impose consists of a non‑parole period of 2 years and 6 months commencing from 1 January 2021, with a head sentence of 4 years and 3 months.  The offender will become eligible for release to parole on 30 June 2023.

  2. The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are as follow.

  3. For the offence of aggravated break and enter with intent to steal, a sentence of 3 years.  This has been reduced by a discount of 25% for the plea of guilty. 

  4. For the offence of enter a dwelling with intent and the Form 1 offences taken into account, a sentence of 2 years and 6 months, which was reduced by a discount of 25% for the plea of guilty.

  5. I will repeat the sentences for everyone’s information.  The aggravated break and enter with intent is one of 3 years.  The enter dwelling with intent, taking into account the Form 1 offences, is 2 years and 6 months. The non-parole period is one of 2 years and 6 months from 1 January 2021.  That is the non-parole period in respect of a head sentence of 4 years and 3 months, during which he will be eligible to be released on parole on 30 June 2023.

**********

Decision last updated: 29 November 2021

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

3

Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Bugmy v The Queen [2013] HCA 37
Callaghan v R [2006] NSWCCA 58