R v Watson

[2020] NSWDC 952

District Court

New South Wales

Medium Neutral Citation:

R v Watson [2020] NSWDC 952

Hearing dates:

Friday 16 October 2020

Date of orders:

Tuesday 29 October 2020

Decision date:

29 October 2020

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

RE: Appeal Matters

Sentence appeal upheld.

Quash the aggregate sentence and instead impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 3 years commencing with an aggregate non-parole period of 18 months.

RE: Sentence Matters
An aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years with a non-parole period of 2 years.

Catchwords:

CRIME — Appeal against sentence imposed in Local Court — Further matters to be dealt with on sentence following appeal — 10 offences in for appeal — 3 offences in for sentence — Assault occasioning ABH — Choking without consent — Drive disqualified — Break enter steal — Goods in custody — Larceny — Habitual traffic offender — never held car license — Stealing offences committed to obtain clothes, food and drugs — Offences of violence occurred in context of offenders domestic relationship with long-term partner — Victim Impact Statement provided and taken into account — Offender has long history of drug use from childhood — Offender had unstable upbringing and was subject to physical abuse — Offender has lengthy criminal record — Prospects of rehabilitation are guarded.

Legislation Cited:

Crimes Act 1900 (NSW): s 59(1);

Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A.

Category:

Sentence

Parties:

Regina (The Crown)
Daniel Watson (The Appellant/Offender)

Representation:

Solicitors:
Mr. D. Wilcox-Watson (The Crown)
Mr. M. Kwan (The Appellant/Offender)

File Number(s):

2019/00303338; 2019/00303912; 2019/00358873

Judgment

1. HER HONOUR: The offender/appellant is before the Court to be dealt with for both sentence and on a sentence appeal. There is a sentence appeal to be dealt with covering 10 separate offences, in fact involving three groups or distinct periods of offending, originally dealt with in the Local Court at Nowra on 18 August 2020. For these offences he received an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years with a 2-year non-parole period all commencing on 27 September 2019.
    

2. I will return to these matters soon. He has been in custody serving this sentence since that date.
    

3. He is also before the Court for sentence on three separate offences for which he was committed for sentence from the Local Court in Nowra on 18 August 2020. He pleaded guilty in that Court to three charges and is to be sentenced, therefore, in this Court for the following offences:
    

Sequence 2

4. Assault occasioning actual bodily harm, specifically that on 21 September 2019 at Burrill Lake he assaulted Kylie Richer causing her actual bodily harm.
    

Sequence 3

5. A further charge of assault occasioning actual bodily harm against the same victim, also on 21 September at Burrill Lake.
    

6. Each of these is an offence contrary to s 59(1) of the Crimes Act 1900 (NSW) and each carries a maximum penalty of 5 years’ imprisonment in this Court. They are both capable of being dealt with in the Local Court where the jurisdictional limit would be two years for each of the offences.
    

Sequence 8

7. The third offence for sentence is an offence of intentional choking, specifically that on 22 September 2019 at Burrill Lake he intentionally choked Kylie Richer without her consent. This offence also carries a maximum penalty of five years’ imprisonment in this Court but is also an offence capable of being dealt with in the Local Court.
    

8. It is necessary to deal with the sentence appeals first because the outcome of those will have a bearing on the commencement date for the sentences.
    

Sentence Appeal Matters

9. The appeals seem to fall into three distinct groups of offending.
    

Sequence 1

10. This is an offence of drive disqualified, which is H320654294, and occurred on 6 April 2019. At that stage the appellant was disqualified from holding or obtaining a licence until 2036. The most recent disqualification had been on 31 March 2017 where he was sentenced to a period of 18 months imprisonment for drive disqualified and was disqualified for a further two years.
     

11. He is now 32. His traffic record is appalling. It would appear that he has never been licenced. The formal traffic record has been tendered and indicates a very large number of traffic offences from December 2008 including offences of drive disqualified, drive whilst under the influence of alcohol, drive in manner dangerous and other traffic matters. In 2008, for the first matter on his traffic record, he was sentenced to three months gaol for drive disqualified. In March 2010 there was a further episode of drive disqualified for which he received a gaol term of eight months and a disqualification. In September 2014 there was another drive disqualified dealt with by way of a one-year sentence, suspended pursuant to s 12, with a further period of disqualification.
     

12. In May 2015, as best I can read the traffic record, there would appear to be two further drive while disqualified within two days of each other for which he received concurrent 18-month sentences and further disqualifications. There was another drive disqualified on 1 June 2015, leading to another gaol term. These would appear to have all been dealt by way of concurrent sentences and disqualifications. He was declared to be a habitual traffic offender on 17 February 2016 and disqualified for five years taking the disqualification at that stage up until 2026. In March 2017, he committed a number of other traffic offences including yet another drive disqualified for which he received an 18-month gaol term and further disqualification. There was another habitual traffic offender declaration which extended his disqualification for a further five years until 7 December 2036.
     

13. That was the state of the appellant’s licence as at 6 April 2019. On that day, police were patrolling the showground and saw the appellant driving a car displaying ACT registration plates which were not the correct plates for the vehicle he was driving. They followed and tried to pull him over activating their lights and sirens. He accelerated off turning into at least two streets. Police were not able to pursue because they were driving a caged utility.
     

14. The appellant drove off well in excess of the speed limit. He entered a sweeping 45-degree angle bend at speed and well in excess of the 50 kilometre per hour posted speed limit. He applied the brakes, locked up, lost steering, skidded across the road for about 30 metres and then collided with a traffic sign and the vehicle left the road. The bumper bar of the car was torn off as a result and was located in grassland nearby. The following day a member of the public alerted police to the car which he had been driving which was dumped in bushes nearby.
     

15. Police located the car and noted that the ACT registration plates had been removed. Inquiries revealed that the car had been earlier sold to the appellant. As a result, police placed a demand on him for the driver of the vehicle at the time of the incident. He told police that it was his car, and in his own words, “I was pretty fucked up at the time probably possibly I can’t remember much.”
     

16. This is a very serious incident of drive disqualified. Fortunately, he did no harm to any individual or he would be here on very different charges but the potential for harm to other road users was high. He had been extensively disqualified. He had no right to be driving a car for many years into the future. Despite that he bought a car, something he should have never done. His record for drive disqualified, in my view, operates as something of an aggravating factor in this case. He would appear never to have held a licence in New South Wales and on those occasions when in fact he was driving without a licence, and not entitled to do so but because he was unlicenced or disqualified, on many occasions he has driven unsafely and presents a risk to the public.
     

17. He is a risk to the public on the roads and fortunately he will not be entitled to drive for some considerable period in the future. The sentences for drive disqualified for this man should reflect some general and specific deterrence in these circumstances. The s 5 threshold for this drive disqualified is well and truly crossed. He has been sent to prison many times in the past for drive disqualified and his expectation must have been that this would occur again.
     

18. The maximum penalty here is 12 months. That is, in fact, less than previous occasions on which he has been sentenced for this particular offence.
     

19. The indicative sentence provided by the Magistrate for this offence was 11 months. It is argued that this is somewhat excessive because he pleaded guilty and on face value this does not seem to reflect an appropriate discount for the utilitarian value of the plea. This argument I accept is more or less made out, but this is a very serious example of drive disqualified, perhaps not quite at the top but he is entitled to some discount for the utilitarian value, and I will be indicating that sentence at nine months and therefore amending that indication by the Magistrate.
     

20. There then follows a group of eight offences committed by him in September 2019 at Milton. They are sequences 2 to 9 inclusive of file H72912748. In summary between 15 September 2019 and 26 September 2019 there were a number of stealing offences and break enter and steal offences in Milton and surrounding areas. The items stolen largely were food, clothing and money, but there was also a speaker, iPads and some alcohol. At the time the appellant was living in a tent, apparently, at a campsite within the Milton Showground although, as will become clear for some of the time within this group of offences, he was also at Burrill Lake committing the offences that are the subject matter of the sentences before me.
     

21. On 27 September 2019 police were patrolling the Milton Showground in relation to these incidents of local stealing and break and enter offences. They saw the accused’s tent and noticed he was there apparently speaking on a mobile phone. They followed him with the intention of speaking to him. He changed direction and began to walk away towards the oval and then started to run away from police who then followed him. During the course of this pursuit, they drove back past his tent and according to the facts police stopped to see if anyone was inside. They could see through the open tent flap that there was no one there but also noticed a cardboard box with an open lid which contained a large amount of cannabis.
     

22. Shortly afterwards they apprehended the appellant nearby. They took him back to his tent and he admitted to having been inside drinking alcohol and smoking cannabis. They then searched the tent and located a number of items reported stolen from the recent break and enter offences. The items were returned to their owners. He was not interviewed because he was drunk. He was refused bail and police were not able to interview him until about a month later whilst he remained in custody bail refused.
     

Sequence 2

23. This is a goods in custody charge with a maximum penalty of 6 months. The subject matter of the appeal was either a Country Road sweater or a blue school sweater for Milton Public School. The Court Attendance Notice says it was a blue Country Road cardigan with the price tag attached with a value of $179. The facts say that it was a blue school sweater with Milton Public School printed on it being a child’s sweater. During the subsequent interview with the appellant whilst he was in custody, he said he had no knowledge of where it came from but believed his partner had stolen it because she did not have enough money to buy it legally and he did not ask any questions but believed it was stolen. It is impossible to reconcile the facts as to whether it was a Country Road sweater still with the swing tag on it or a school sweater originally sent by post to a local resident but, I infer, stolen from there. It is hard to know, in fact, which of the two versions is more serious; being involved in the theft of a Country Road cardigan apparently from a store or being involved in the theft of a child’s school cardigan from someone’s front door.
     

24. The appellant and his partner did not have any children with them at the time. Either way it is just theft, and he knew it was stolen. The explanation that his partner could not afford the item, whatever it was, and so that is why it was stolen does not, in fact, make sense whichever way it is viewed. The Magistrate indicated three months as an indicative sentence for this offence.
     

25. It is appropriate that I now deal with his criminal record before dealing with the rest of the offences on appeal. The offender has an extensive criminal record in addition to his extensive traffic record. There are entries in the Children’s Court from 2005 for break and enter. There are further break enter and steal convictions committed in 2006 leading to periods of imprisonment and there are larceny convictions on his record. There is a further offence dealt with as an adult for aggravated break enter and steal in 2008 for which he was ultimately sentenced to prison so there are least three other convictions or entries for break enter and steal on his record. There are numerous other convictions for larceny and similar offences. All of this is in addition to his very extensive traffic record and periods of imprisonment largely for drive disqualified. Relevant for the sentences, that I will deal with in due course, are also his convictions from 2012 for assault occasioning actual bodily harm and stalk and intimidate which were domestic violence offences and convictions for contravening an ADVO.
     

26. There are further convictions for assault occasioning actual bodily harm which is noted as a domestic violence offence and a conviction for possessing an unauthorised firearm which were offences occurring in May 2015 for which he also received a term of imprisonment. That is just a very brief summary of his extensive criminal record in addition to the matters leading to sentences for drive disqualified.
     

Sequence 3

27. This is an offence of larceny where the maximum penalty is 5 years with a jurisdictional limit in the Local Court of two years. This involved stealing five blankets on 16 September 2019 from the rear of Annabel’s Café in Milton. They were located in the accused’s tent by the police on 27 September and during the subsequent interview the accused admitted to stealing them. He said his partner drove him there, he got out, walked around the yard, located a basket full of blankets near the door of the café and drove away with them.
     

28. They were labelled or embroidered with the ‘Annabel’ logo on them. He said he took them to keep warm because they were living in a tent. The Magistrate indicated 6 months as appropriate for this offence.
     

Sequence 4

29. This is another larceny offence committed between 15 and 19 September. The accused admitted that he had jumped the fence at the rear of Pilgrims Café in Milton and from the rear of that business he stole a Sony Bluetooth speaker and two boxes of cakes. He told police that he took the cakes because he was hungry and had no money for food and that he intended to use the speaker for himself.
     

30. Perhaps the community generally and the Courts might have some sympathy for those who steal food although in the case of this offender, and for that matter his partner, the only reason they did not have enough money for food is because they were otherwise spending it on drugs. However, there is no evidence before the Court that the offender tried to exhaust the many other avenues that exist in our community to obtain food and whichever way this is viewed, it provides no excuse for stealing a speaker that he intended to use. The Magistrate indicated six months for this offence.
     

Sequence 5

31. This is a break enter and steal at Duke & Co coffee shop, Milton. The maximum penalty for this offence is 14 years’ imprisonment in this Court and again with the jurisdictional limit of 2 years in the Magistrates Court. On 19 September he attended those premises and forced the side window open. The facts indicate that it was ‘jemmied open’ although there is no indication in the facts of the extent of any damage. He climbed inside and stole an iPad and an unknown amount of cash in coins and $5 notes. He drank one bottle of Corona beer whilst inside. The Magistrate indicated 12 months for this offence.
     

Sequence 6

32. This is another offence of break enter and steal with the same maximum penalties relevant. It occurred at the Ulladulla basketball centre at Milton Showground. He forced entry to the office area and from there stole a black computer bag containing two laptop computers and a USB stick. He admitted to police that he did this, and he also took a pair of red and white sports shoes and a jumper which he was going to take to keep warm. He also had a shower at the premises, broke into a fridge and took food he said because he was hungry.
     

33. He told police he was going to swap or sell the computers for drugs. The Court is only too aware that local sport teams have to go to enormous lengths to try to acquire property. If it be the property of a club operating out of the basketball centre, whether it belongs to a club or belonged to individuals, it has value. If it belonged to a club it has value that the local community and community members spent a lot of time acquiring. The Magistrate indicated 12 months for this offence.
     

Sequence 7

34. This is another offence of break enter and steal committed on 16 September when the appellant forced entry to the premises at 24 Stony Hill Road, Milton by using a stick to lift the door latch and forcing the door open. It was a holiday house and I accept there was a degree of planning because he knew it was a holiday house having lived next door in the past. This is what he told police and I accept from what he told police that before he committed this offence he had looked on Trivago to see if the holiday house was being occupied at the time.
     

35. Whilst he was inside he stole one bottle of Moet champagne, a bottle of gin, three shirts and a pair of shoes. He told police that he took the clothes and shoes to wear and that he was going to drink the alcohol. Fortunately, he did not tell them that he needed those because he was too poor to buy them. Police recovered the Moet, but the gin was half consumed and not taken. He also stole a laptop computer from inside those premises. The Magistrate indicated 12 months for that offence also.
     

Sequence 8

36. This is an offence of break enter and steal at the Coastal Café in Milton. Overnight on 26 and 27 September 2019 he forced the side window of the premises open and stole an iPad, two white ceramic plates containing food and an unknown amount of money in coins and a bottle of Midori. The iPad and the plates were returned to the owner. The food had been consumed and the alcohol half consumed. He told police that he took the food because he was hungry and did not have any money which is no explanation for the computer. The Magistrate indicated 12 months for this offence also.
     

Sequence 9

37. This is the last of this group of offences. It is an offence of attempt break enter and steal at Ted’s Butchery in Milton. It is very nearby the Coastal Café. The accused attempted to gain entry to this business overnight on 26 and 27 September through the rear door. He caused damage to the locks in this attempt but in fact did not gain entry. When questioned by police he admitted to committing the offence and said he was hungry and looking for food. Whether he had committed this before or after he stole two plates of food from the Coastal Café is not before me. The Magistrate indicated 12 months for this offence. The objective criminality of this offence is to be assessed to an extent by the fact that perhaps unlike some of the other break enter and steal offences this was only an attempt. He also inflicted some damage on the property. The extent of that, however, is not known on the facts. It is simply that he caused damage to the locks.
     

37. Most of the items stolen during the course of this spree between 15 and 26 September were returned to the owners. The value of the property in most cases was relatively small, I accept. Nonetheless in each case there was either a local business which had stock taken or items taken, there were iPads taken, computers taken, a speaker taken. These belonged either to individuals or businesses. Each of them, no doubt, were people who worked hard to acquire them and even though the value in each case was small it was significant to those who owned them.
     

38. The third group or separate offence in these appeals is a further drive disqualified offence committed on 22 September at Burrill Lake. The facts in relation to that are an integral part of the sentence offences which I will deal with, and I do not propose to go through the facts for this second drive disqualified at this stage. The Magistrate indicated 11 months for that sentence also and the same arguments that were made in relation to the first drive disqualified offence are made here in addition to a submission that objectively this particular drive disqualified offence is of lower factual criminality and in any event it is an integral part of the offending for the sentence matters.
     

39. If each of these individual indicative sentences was accumulated, the total period of imprisonment would be just over 8 years. That would be excessive in the circumstances. It was, to a large extent, one spree of criminal activity committed in Milton in September bookended by two drive disqualified offences, however the first drive disqualified is relatively serious, the second one less so. It seems to me that the indicative sentence of 11 months is too high for the second drive disqualified. I will indicate 6 months as the indicative sentence for the second drive disqualified.
     

40. I will in due course set out how I propose to deal with these matters, but it seems to me that the indicative sentences imposed by the Magistrate for each of the offences in Milton is more or less correct. For the two drive disqualified offences, I have already indicated, I will be setting a lower sentence. The second drive disqualified is an integral part of the sentencing offences and should not be viewed in any way that amounts to a partial accumulation with the appeal offences. Overall, I have concluded that the aggregate sentence of 4 years with a 2-year non-parole period is slightly excessive and I will be reducing that to 3 year aggregate sentence with an 18 month aggregate non parole period.
     

Sentence Matters

42. I now turn to the sentence matters before me. There are two assault occasioning actual bodily harm offences, and one intentionally choking without consent offence.
     

43. The relevant facts are that the offender had been in an on-off relationship with the victim for about 12 years. They have one child who is now aged 6 but who is in the care of the victim’s parents in Canberra and who, in any event, was not living with them at the time of the offending. They had been living in Canberra for a period before these offences. In mid-September 2019 the offender and the victim travelled to Ulladulla to stay with some friends and stayed there for about a week. It is also apparent from the facts for the appeal that they had also been staying in Milton in a tent for a period of time at about mid to late September 2019. On 21 September they drove to see a friend who was not home and then drove a car that the offender was driving onto a bush track at Burrill Lake. As I understand it, there is no more evidence about where this car came from apart from the fact that the offender was driving it, he should not have been, he was disqualified. They are the facts of the drive disqualified, the second drive disqualified.
     

44. While they were driving, the offender asked the victim to grab something for him and then punched her in the right arm and began using a torch to hit her repeatedly on her right arm. She suffered extensive bruising to her right arm from at least the shoulder down to the elbow. These bruises are depicted in photographs tendered as part of exhibit 4. This is sequence 1, the first assault occasioning actual bodily harm offence.
     

45. The offender then stopped the car along the track because it was running out of fuel, and they started to set up to sleep there. The offender punched the victim and pushed her onto the ground and then kicked her and hit her in the back of her head and on her back. As a result, she suffered lacerations and bruising to her back and buttocks. Photographs of those injuries are also tendered. They indicate extensive bruising particularly to the right shoulder and left buttock or lower back. In both cases the photographs are indicative of the use of considerable force in the commission of this offence. This second assault occasioning actual bodily harm is the second offence for sentence. The facts say that the offender then calmed down and they slept in the car that night.
     

46. The next morning, that is 22 September, the car battery was flat and so they walked to a farm nearby. The occupants came back to the car and helped them to start it and gave them directions to a place. The victim did not mention her injuries and covered up the bruises with a jumper. They then drove to this place, Shallow Crossing, and on the way the offender lost control of the car and damaged the front of the car and the radiator. He continued to drive the car until it ran out of fuel just past Shallow Crossing. A passing driver took the offender to the East Lynne Store where he obtained more fuel and after it was put into the car, he continued to drive with the victim. He became angry with the victim again and she got out of the car. The car battery then had become flat again and so the two of them tried to push the car to get it moving.
     

47. The offender then pushed her onto the ground, punched her in the face and began choking her with both hands. She suffered red marks to her neck. According to the facts, he then calmed down, tried to get the car started unsuccessfully and then told the victim to either get help or walk further into the bush. She got up and walked to the East Lynne Store. When she got there she told the owners what had happened, and they called police. Police arrived at the store at around just before 7 at night and completed a DVEC recording with her. The offender was not with her at that stage.
     

48. In fact, he was not arrested until 27 September in the circumstances which I have already outlined at Milton Showground, and in the meantime he had committed at least two of the break and enter offences to which I have already referred on 25 to 26 or 26 to 27 September in Milton. The offender has been in custody bail refused for these at least and for these sentence offences since his initial arrest. He was in fact, as I have said, questioned by police in custody but not until 23 October when he admitted all of the matters that were then dealt with by the Local Court.
     

49. He was sentenced on 18 August 2020, giving rise to the sentence which I have already outlined. That sentence was backdated to commence on 27 September 2019 and so whilst he has been in custody bail refused possibly initially for the sentence matters, he has in fact been serving that other sentence since 27 September 2019. I have already gone through his criminal record. He has pleaded guilty to the sentence matters before the Court as he did to the matters that he was dealt with in the Local Court. He is entitled to a 25% discount to reflect the utilitarian value of these pleas.
     

50. The objective criminality for the offences, particularly the assault occasioning actual bodily harm, is around the mid-range in my view. The violence used by him must have been extreme to produce the bruises that are depicted in the photos. It was an unprovoked attack. It may well be that there was a degree of psychosis involved but for reasons I will deal with soon that is not the entire explanation for what he did. It was committed in a domestic violence situation.
     

51. I have read and taken into account the victim impact statement provided by the victim. For reasons that I will soon explore it seems to me that the intentional choking without consent is of somewhat lower objective criminality than the two assault occasioning actual bodily harm offences. I accept that the offences have had a considerable impact on her. There was extensive bruising and some lacerations but there is no actual evidence before me of any ongoing physical impact on her of these offences. There have, I accept however, been other implications for her. Not surprisingly she has had some psychological sequelae as a result of these injuries. The victim impact statement indicates that she has had to give up her job because of both the physical and psychological impacts on her of the offences. Overall, I accept that the offending has had a serious impact on her and take that into account. There are some difficulties about the extent to which I would do so especially given that she would appear to have been willingly in company with the offender and herself appears to obtain some benefit from the larceny or similar offences in September but whatever be the fact or the truth of those matters, in fact she was seriously attacked by the offender for no apparent reason.
     

52. The choking offence, of course, is a serious offence in its own right. The impact overall is serious but not of a nature, in my view, which would amount to a circumstance of aggravation.
     

53. There is a psychological report before the Court in relation to the offender from Dr Sharon Klamer. The offender told her that just before the sentence offences he believed that the victim had received a text message on her phone and he thought she was being unfaithful to him and in his words he, “Lost it and hit her”. He said he had paranoid thoughts and thought she was lying to him trying to get him into the bush and that in his words he, “Lost the plot and attacked her.”
     

54. He claimed to have been intoxicated by the drug methylamphetamine, known as ice, at the time which I accept more likely than not is the case and that this affected his ability to manage his anger and made him agitated and have feelings of jealousy towards her. I accept that in part his reason for committing the sentence offences arose out of jealousy because he thought she was texting another person.
     

55. I accept from the history he gave to the psychologist, which he has confirmed in the evidence, that he had a history of early childhood dysfunction. He was physically assaulted by both his parents and after his parents separated he was also physically assaulted by his uncle. He claimed to the psychologist that his mother was a heroin user who was diagnosed with bipolar disorder and schizophrenia and had died about four to five years ago. He said that his mother had multiple partners and he had been physically assaulted by some of them. I accept more probably than not that this is true. He said that when he was about 13 his mother injected him with Oxycontin and he then went to live with his grandmother on the South Coast of New South Wales when he was not in custody.
     

56. He also lived sometimes in Canberra. He would appear not to have lived in stable accommodation frequently as an adult and has often lived in camping grounds, in the bush in tents as well as briefly with his grandmother. He has been therefore itinerant, albeit he would have been entitled to apply for public housing. I accept that this disadvantaged childhood has to an extent impacted on his ability to develop pro-social skills and behaviours and to an extent has impacted on his moral culpability for offending but not in a significant way. As will be expected with such a background, he has had a very poor educational history. He has been suspended and expelled from all schools he has attended and frequently truanted. He has very limited formal education.
     

57. He claims to have been diagnosed with ADHD at the age of 11 or 12 and prescribed medication which he used properly for the first 12 months until in his words his mother, “Discovered what it was and started to use it herself.” He has been employed as a mechanic on and off since leaving school and although he is experienced, he has no formal qualifications. He would like to undertake formal qualifications, and if he did so and attained them, this would improve his prospects of rehabilitation. He, however, expects he would have difficulty concentrating and interacting in a group.
     

58. As previously stated he was in a 12-year relationship with the victim of these sentence offences before me, but I accept that the relationship has now ended. They have a 6 year-old daughter, but she was not there at the time and had been removed from them because of their joint ongoing substance abuse. He has had some visits from his daughter whilst he was in prison but none in person since the COVID-19 pandemic has prevented personal visits in New South Wales prisons. He would like to have an ongoing relationship with his daughter after his release from custody.
     

59. He has been using drugs since he was 13, initially the Oxycontin which his mother provided him, and then daily cannabis use from the age of about 13 which he continued until his current period of imprisonment up to three grams a day. He started using methylamphetamine known as ice at the age of about 27. His use increased to about half a gram per day until this period of incarceration.
     

60. As is well-known to the Court this drug is extremely addictive and has a very serious adverse impact on people. He was in and out of prison and relapsed into drug use almost immediately every time. He has used Methadone and Buprenorphine in custody apparently not prescribed. His custodial history supports this but there are no indications that he has been charged with any offences in custody during this period of incarceration and he claims to have been diagnosed with post-traumatic stress disorder, drug-induced psychosis, psychotic tendencies, depression and anxiety. He told Dr Klamer about beliefs or thoughts that might in fact amount to evidence of psychosis, namely delusional thinking, but there is no formal diagnosis before the Court.
     

61. He claims to have suffered flashbacks from traumatic events during his childhood but was unable to provide details of them. In custody, on this occasion, he has been medicated with Seroquel, an anti-psychotic, and Avanza, an anti-depressant. It would appear that he has been similarly medicated in the past in the community and when he takes his medication properly, and does not use it as a substance, that he is able to live a relatively pro-social life. There is a period of four years between 2011 and 2015 when he was in the community not in custody and during that time he was receiving support from an organisation in Ulladulla and regularly seeing a forensic psychiatrist, Dr Rafe Pulley. It would appear that he remained on prescribed medication during this period and did not commit offences and did not come into the criminal justice system. He was receiving a disability support pension from the centre and would be eligible for referral to the NDIS which may be able to assist to provide further funding for community-based carers and support when he is released, however the Court is aware of the lengthy delays that exist for accessing this support.
     

62. I accept from Dr Klamer that he meets the threshold for a diagnosis of substance-induced psychosis, and I accept to a limited extent that his use of these substances, accelerating as he got older, has some connection with his very poor and dysfunctional upbringing and that he continued to use them to an extent in order to deal with stressors. This has led to a deterioration in his mental state. He was using these drugs extensively and it had an impact on his mental state at the time he committed the offences for sentence.
     

63. Dr Klamer is of the opinion that he appeared to be experiencing some psychotic symptoms at the time of the offending against Ms Richer. I accept that to some extent, but it is not the entire explanation. The evidence of the events of 21 and 22 September, whilst indicating perhaps some psychotic thoughts, do not explain entirely the reason for his offending. He was able to think clearly enough to walk to a nearby property, to obtain assistance when the car ran out of fuel and to do that twice. He was able to send Ms Richer for assistance when the battery ran flat a second time.
     

64. There is some evidence of psychosis, but it does not explain the offending entirely. I do accept, however, that he had a serious addiction to methylamphetamine at the time. I accept that all of the larceny and break enter, and steal offences were done either to get money for drugs or to get food and clothing. There is no connection between the drive disqualified and that, however. Further, in relation to his assertion before me that in his terms he, “Flipped out,” and started to become psychotic, which is why he offended against Ms Richer, I take into account the fact that he did not provide that explanation to Dr Klamer.
     

65. He told her that what he did, he did in large part because he was jealous, although it would appear the reason that he thought that might be the case involved a degree of paranoia on his part because he saw her using the phone. It may well be however, and I accept more probably than not, that the level of violence that he used towards her was as a result of using extensive quantities of the drug ice.
     

66. All three offences are serious offences of violence committed over two days and particularly so the assault occasioning actual bodily harm. The actual bodily harm in both cases was relatively serious given the bruising that is evidenced in the photographs.
     

67. As I understand his evidence, on this occasion in custody, he has been given depot injections of Buprenorphine and he expects to continue with that on his release. He understands that that will require him to attend to accept the injections and he has agreed that he will do so. In the past except for a period of four years he has not complied with medication. He has relapsed into drug use and most of the time he has been released without any effective supervision or access to programs. The ongoing depot administration of the drug will assist in relapse prevention and assist his overall prospects of rehabilitation.
     

68. As I have said it seems to me that the assaults occasioning actual bodily harm are about the middle of the range. The choking is not at the more serious end of offences capable of being charged under this section. It was for a very short period according to the facts and apart from red marks on the neck there is nothing else in the facts about any immediate effects on the victim. The victim is not a vulnerable victim as that is defined pursuant to s21A but nonetheless she was in a position of some vulnerability. She was alone with him out in the bush. That finding is tempered, however, to an extent by the fact that she did not take the opportunity initially when they both went to the first place to bring the assault to their attention.
     

69. The offender’s prospects of rehabilitation overall are guarded, in the light of his lengthy criminal history, his extensive drug addiction and his psychiatric history. He does, however, appear to be taking some steps in custody. I accept Dr Klamer’s recommendations about schemes that ought to be put in place both whilst he remains in custody and on his release to the community. He definitely needs a longer than normal period of supervision in the community to help him towards rehabilitation.
     

70. If the recommendations by Dr Klamer are put into effect in some way, his prospects of rehabilitation are improved but overall, they depend entirely on his remaining free of illegal drugs. He needs supervision, referral to drug and alcohol counselling and also to undertake psychological or psychiatric treatment for whatever it is that his condition is.
     

42. For each of the assault occasioning actual bodily harm offences taking those findings into account I have concluded that the starting point should be 3 years with a 25% discount, giving rise to 2 years and 3 months for each.
     

43. For the choke without consent it is a matter of note that apparently this offence has never been dealt with in the District Court before. There are no statistics for this offence in this Court and the only statistics are from the Local Court. For the reasons I have found it is under the mid-range in terms of objective seriousness. It seems to me the starting point is about 2 years less 25% so 18 months.
     

44. I have concluded that there should be an aggregate sentence pursuant to s 53A for all three offences and that if each of these sentences was totally accumulated on the other it would be 6 years which is excessive. I have concluded there should be an aggregate sentence of 4 years with an aggregate non-parole period of 2 years.
     

45. There are some special circumstances which I take into account in setting this, that is, a degree of partial accumulation between this and the appeal sentence, the fact of his psychiatric condition and the fact that he needs a longer than normal period of supervision in the community. I will deal with that in due course.
     

46. The issue then is when to commence this sentence and that depends on the appeal. As I have said it seems to me that the first drive disqualified is close to the top of the range but not entirely and there should be a 9-month indicative sentence. The indicative sentences of the Magistrate for the remaining eight offences in my view are appropriate and I will not interfere with them.
     

47. The second drive disqualified as I have indicated should be somewhat lower and I indicate a sentence of 6 months for that offence. As I have already said because of the fact of a slight change in indicative sentences and the fact that the second drive disqualified should be viewed as entirely concurrent with the sentence matters, in the circumstances there should be an aggregate sentence of 3 years with an aggregate non-parole period of 18 months for each of those appeal matters.
     

48. I then turn to the relevant commencement date for the sentence matters. If the appeal sentence, which I have now indicated should be 3 years, was entirely accumulated with the overall sentence for the assault matters that would give rise to an overall term of 7 years with an overall non-parole period of 3 years and 6 months. In my view that is somewhat excessive. I have decided there should be overall a sentence of 5 years with overall a non-parole period of 3 years. It is clear that although I have made a finding of special circumstances for the sentence and set a non-parole period of 50%, in my view that ought not be the overall non-parole period for all of the sentences taken together. A non-parole period of 3 years overall is what is required and nothing less than that is appropriate to deal with the total criminality reflected by all offences.
     

49. To give effect to those findings I make the following formal orders:

The Appeal matters

1. The sentence appeal is upheld.

2. For file number H72912748 – Confirm the indicative sentences.

3. For file H320654294, sequences 2 to 9 inclusive – Quash the indicative sentence and substitute an indicative sentence of 9 months.

4. For file H74028655-1 – Quash the indicative sentence of 11 months and substitute an indicative sentence of 6 months.

5. Quash the aggregate sentence and instead impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 3 years commencing 27.9.2019 and expiring 26.9.2022 with an aggregate non-parole period of 18 months commencing 27.9.2019 and expiring 26.3.2021, with parole thereafter of 18 months commencing 27.3.2021 and expiring 26.9.2022.

The Sentence Matters

1. Sequences 1 and 2: Indicate an overall sentence of 2 years and 3 months.

2. Sequence 3: Indicate a sentence of 18 months.

3. I impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 4 years commencing 27.9.2020 expiring 26.9.2024 with a non-parole period of 2 years commencing 27.9.2020 expiring 26.3.2022 and parole thereafter of 2 years commencing 27 September 2022 and expiring 26 September 2024.
    

79. I think that is all I have to do, is it not? There are no 166 certificates, so that gives rise then to a 3-year non-parole period overall which started on 27 September 2019 and will expire on 26 September 2022 with 2 years’ parole thereafter.

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Decision last updated: 15 November 2022