R v Zarad Brown

[2023] NSWDC 477

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Brown [2023] NSWDC 477

Hearing dates:

19 October 2023

Date of orders:

3 November 2023

Decision date:

03 November 2023

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1) The offender, having pleaded guilty, is convicted of the offences.

(2) I impose a total aggregate sentence of imprisonment 4 years 6 months to date from 1 February 2023 and to expire on 31 July 2027.

(3) I impose a non-parole period of 3 years 4 months to date from 1 February 2023 and expiring on 31 May 2026.

(4) The earliest date the offender is eligible to be released on parole is 31 May 2026.

Catchwords:

CRIME – sentencing – attempt steal motor vehicle - aggravated enter dwelling house with intent to commit serious indictable offence – larceny - demand property with menaces with intent to steal - intentionally destroy property by fire – possess prohibited drug – Form 1 offences - multiple offences – principle of totality - offences committed whilst on parole – lengthy criminal record - Bugmy principles – guilty plea

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Drug Misuse and Trafficking Act 1985

Cases Cited:

Alkanaan v R [2017] NSWCCA 56

Bugmy v The Queen [2013] 249 CLR 571

DC v R [2023] NSWCCA 82

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1

Field v R [2020] NSWCCA 105

Hall v R [2021] NSWCCA 220

Hesketh v R [2021] NSWCCA 262

Hoskins v R [2016] NSWCCA 157

Hoskins v R [2021] NSWCCA 169

Imbornone v R [2017] NSWCCA 144

Lloyd v R [2022] NSWCCA 18

Muldrock v R (2011) 244 CLR 120

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353

Regina v Fidow [2004] NSWCCA 172

Category:

Sentence

Parties:

Rex (Crown)
Zarad Brown (Offender)

Representation:

Counsel:
Mr Williams (Offender)

Solicitors:
Department of Public Prosecution (DPP) (Crown)
Ross Hill & Associate Solicitors (Offender)

File Number(s):

2022/00150068

Publication restriction:

None

Judgment

1. The offender appeared at Campbelltown Local Court on 21 December 2022, pleading guilty to the following offences: –

1. Sequence 10 – Attempt steal motor vehicle contrary to s 154F of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment with no standard non-parole period.

2. Sequence 14 - Aggravated enter dwelling house with intent to commit serious indictable offence, namely, larceny, contrary to s 111(2) of the Crimes Act 1900 carrying a maximum penalty of 14 years imprisonment with no standard non-parole period.

3. Sequence 15 - Demand property with menaces with intent to steal contrary to s 99(1) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment with no standard non-parole period.

4. Sequence 7 - Larceny contrary to s 117 of the Crimes Act 1900 carrying a maximum penalty of 5 years imprisonment with no standard non-parole period.

5. Sequence 8 - Intentionally destroy property by fire contrary to s 195(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years in prison with no standard non-parole period.

2. Attached to Sequence 14 are two offences on a Form 1 of steal motor vehicle contrary to s 154F of the Crimes Act 1900 and possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (s 166 certificate related).

3. In dealing with matters on the Form 1 I will need to ensure that I apply the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

4. Admitted on behalf of the Crown were the following: -

1. Notice of Committal

2. Charge Certificate H86887910

3. Form 1 - H86887910/9 and /13

4. Section 166 certificate related

5. Statement of Agreed Facts

6. Criminal History

7. Custodial Record

8. Parole Order

9. Breach of parole report by Sarah Nelson dated 30 May 2022

10. Order revoking Parole order

11. Sentencing Assessment Report dated 19 June 2023

5. Admitted on behalf the offender were the following: -

1. Report of Dr Paul Pusey dated 28 February 2023

2. Letter of Ms Brown

3. Letter from Ms Rynehart

4. Letter of Ms Street

Agreed facts

6. At the time of the offences the offender was aged 31 and resided in Macquarie Fields. All of the offences for which the offender is to be sentenced arose out of a series of acts which occurred on 23 May 2022.

Attempt steal motor vehicle

7. Ferbigio Lasike had parked his Holden Captiva in the driveway of the family home in Percy Street, Ingleburn. Whilst the doors to the vehicle were closed it was not locked. At about 12:30pm the offender entered the vehicle, which was seen by the victims 9-year-old son, who yelled out to his parents. In response, the victim's partner approached the offender who at this stage was still in the vehicle reaching around under the steering wheel. Upon being challenged, the offender exited the vehicle and ran down the road. Whilst the victim gave chase, he ultimately lost sight of the offender.

Aggravated enter dwelling with intent to commit serious indictable offence

Demand property with menaces with intent to steal

Steal motor vehicle

8. At about 12:45pm on the same day Deanne Sheehan returned to her home in Enid Place, Ingleburn in her grey Ford Territory. Approximately 15 minutes later Ms Sheehan’s 14-year-old son (Sanjay), when taking out the recycling bin, observed the offender seated in the vehicle. He immediately returned inside home and alerted his mother to the offender seated in the vehicle. Ms Sheehan subsequently went out onto the veranda by which time the offender was out of the vehicle. He demanded Ms Sheehan give him the keys to the vehicle, to which she agreed. Ms Sheehan then returned into the house and a short time later observed the offender standing in the hallway. The offender said to Ms Sheehan, "just give me the fucking keys, they are after me, just give me the fucking keys". Ms Sheehan replied, “I am trying, I just want to get my house keys". The offender replied, “hurry up, give me the fucking keys". During this conversation Sanjay was standing behind his mother listening. Ms Sheehan’s four-year-old son was asleep in the lounge room. When Sanjay went to retrieve a knife from the kitchen the offender said to him, “stay back and don't do anything dumb". Ms Sheehan thereafter gave the key to the offender who then left the house and drove away with the car.

Larceny

9. On the same day, Mark Davis was performing maintenance renovation work with the owners of the property in Bensley Road, Ingleburn. He had parked his Ford Courier Utility at the front of the property. Mr Davis subsequently saw the offender driving the Ford Territory up the driveway towards the property. The offender then went to Mr Davis’ ute, opening the driver's side door before entering it and rifling through its contents. Mr Davis ran to the front of the property by which time the offender had returned to the Ford Territory. Mr Davis yelled out to the offender to stop in response to which the offender rapidly reversed the Ford Territory, colliding with a fence, before driving forward. The offender had stolen the following items from Mr Davis’ ute: -

1. Kathmandu branded vest

2. Black Samsung mobile phone in black leather case

3. Aspera mobile phone

4. Set of house keys

5. Garage remote control

6. Set of car keys to the Ford Ute

7. Canvas bum bag containing:

1. A black leather wallet

2. $340 in cash

8. Driver’s licence

9. Commonwealth and ANZ bank cards

10. Club card

11. Opal card

12. Bunnings PowerPlus card

10. The total value of the property taken was in excess of $700. The only property later recovered was the driver's licence as well as the Commonwealth and ANZ bank cards. Mr Davis returned to the property and, using the property owners’ mobile phone, called his stolen mobile phone. The offender answered and the following conversation took place: –

Mr Davis - “Bring my stuff back or you're in big trouble."

Offender – “Have you rang the cops?”

Mr Davis - “Yes.”

Offender - “Well go fuck yourself."

Before hanging up the phone.

Destroy property by fire

11. The offender then drove the Ford Territory back to his street where he parked it adjacent to his unit block. Shortly after 1:15pm the offender set fire to the vehicle. The fire brigade was called and attended although the vehicle was destroyed.

Possess prohibited drug

12. The following day the offender was arrested by police. A search subsequently located a small resealable plastic bag inside a wallet which contained 0.5 g of methylamphetamine. The offender declined to be interviewed.

The offender’s criminal record

13. The offender has a lengthy criminal record commencing as a juvenile. At the age of 15 there are offences of never licensed, drive motor vehicle, and drive conveyance taken without the consent of the owner. There are further driving offences in the same year including drive vehicle recklessly, furiously, or at a speed or manner dangerous to the public. In 2006 the offender committed several offences of resist police officer in the execution of duty and assault police officer, as well as driving and allow to be carried in a conveyance without the consent of the owner. The offender committed further offences thereafter including drive special range PCA, drive whilst disqualified, drive vehicle recklessly and furiously, larceny, aggravated break and enter with intent. The record reveals further offences thereafter involving taking vehicle without the consent of the owner, driving whilst disqualified, and driving recklessly and furiously.

14. There are property related offences including steal from the person and demand property with menaces. The offender committed further property related offences in 2010 as well as escape from lawful custody.

15. In 2012 the offender committed further driving offences including driving motor vehicle whilst never being licensed and police pursuit. There were further property and driving offences in 2012.

16. The offender committed housebreaking offences in 2014 as well as larceny offences. Further offences were committed to 2014 including assault, larceny, possess prohibited weapon and possess housebreaking implements. The offender continued in 2016 to commit offences involving taking and driving conveyances without consent, dishonestly obtaining property by deception, and goods in custody.

17. There were further property related offences involving break and enter in 2016 and goods in custody offences in 2017.

18. In 2018 the offender was convicted of aggravated break and enter and commit serious indictable offence (wounding) for which he was sentenced to imprisonment of 6 years and 9 months with the non-parole period of 4 years. The offender was on parole in respect to these offences when he committed the offences the subject of this sentence.

Parole revocation

19. On 16 February 2022, the offender was released on parole with standard conditions including being of good behaviour, not committing any offences, and adapting to normal community life. Additional conditions included a prohibition on the use of prohibited drugs or substances other than those prescribed and to participate in VOTP maintenance.

20. According to a breach of parole report dated 31 May 2022, the offender was breached for failing to comply with a condition in respect to committing any offences given the matters the subject of this sentence.

21. The following comments were made in the report as to the offender's response to supervision: –

“Mr Brown has complex criminogenic and responsivity needs related to aggression, violence, illicit substance use, antisocial attitudes, mental health and accommodation. Mr Brown vocalised his willingness to address these issues, however demonstrated resistance towards taking the steps required to achieve meaningful progress."

22. The offender was referred to the Community Restorative Centre – Outreach Alcohol/Drug counselling service on 10 March 2022. Whilst phone contact was initiated, the offender had not completed any of the counselling sessions as at the date of the report. Further the offender had obtained a mental health care plan and referred to a psychologist upon release to address mental health concerns, however it remained unconfirmed whether he engaged in such service. The offender had attended regularly to obtain Suboxone treatment.

23. The offender had left the accommodation at his partner's residence and was provided temporary accommodation through Dignity House. However, the offender was “exited” from the property on 23 May 2022 due to non-compliance with program requirements around accommodation seeking. The report noted that the offender's response to supervision was inconsistent. He had been required to report to Community Corrections on a weekly basis but had failed to report on five occasions. A verbal warning was provided, and the offender was given an official direction to report as scheduled. The offender displayed “resistance to behaviour change conversations".

24. The report further observed that the offender had reoffended in a similar pattern to the offence for which he was on parole. Due to the nature and seriousness of the offences, the offender appeared to be at an increased risk of reoffending and therefore was an increased risk to community safety. A recommendation was made that the offender’s parole be revoked. An order was issued for the revocation of the offender’s parole from 23 May 2022 and the offender returned to custody on 24 May 2022 where he has remained ever since.

Custodial record

25. The custodial record reveals that since being returned to custody, following the revocation of his parole, the offender has been breached for a total of 14 matters as follows: –

1. 15 October 2022 - Possess offensive weapon instrument

2. 25 December 2022 - Possess offensive weapon instrument

3. 27 February 2023 - Possess camera video audio recording equipment

4. 6 April 2023 - Damage destroy property

5. 6 April 2023 - Possess drug

6. 6 April 2023 - Disobey direction

7. 7 April 2023 - Possess offensive weapon/instrument

8. 7 April 2023 - Fail to comply with corrective centre routine

9. 7 April 2023 - Conceal for purpose of escape

10. 25 May 2023 - Smoke/use tobacco/e-cigarette when in custody

11. 11 July 2023 - Fail to comply with corrective centre routine

12. 25 July 2023 - Fail to attend muster

13. 29 August 2023 – Possess offensive weapon/instrument

14. 12 September 2023 - Smoke/use tobacco/e-cigarette when in custody

26. The records further reveal that an unscheduled review of the offender's classification was completed at the request of centre management due to the offender no longer being suitable to be housed at the centre. The offender was being managed on segregation due to threatening to assault. A further unscheduled review was conducted on 16 May 2023 with a report in respect to poor behaviour and was currently being housed on segregation.

Sentencing Assessment Report

27. A Sentencing Assessment Report completed on 29 June 2023 reported that the offender had been in a relationship for the previous 4 years with the mother of his youngest child who was aged 6 months. He intended to reside with his partner, son and 2 stepchildren upon his release in circumstances where she was his main support and they had maintained a good relationship whilst he was in custody. He did not have contact with his mother although he had regular phone contact with his father.

28. The offender was not employed at the time of the offences and had not confirmed any employment upon release. Since his return to custody the offender had had short periods of employment.

29. The extensive history of antisocial behaviour since the age of 15 years was noted, including various criminal offences to which reference has already been made. It was also noted that at the time of the report the offender had incurred 8 institutional misconduct charges since his return to custody.

30. The offender acknowledged his behaviour was wrong and had not considered the consequences at the time. He claimed to have been under the influence of illicit substances and attributed his offending to this as well as mental health issues. Whilst acknowledging his actions were “stupid", he was unable to offer an explanation as to why he had burnt the car. There was a report of drug dependency and the offender considered himself to be an addict. He acknowledged that past attempts to engage in treatment were unsuccessful which had resulted in him relapsing.

31. He reported a history of mental health issues and historical trauma, experiencing symptoms of anxiety and depression. He also described delusional thoughts. He expressed sorrow and guilt in respect to his actions and in circumstances where he was “coming down" off a mental state from the day before. He claimed this was “out of character". This is difficult to accept given the offenders lengthy criminal history, and in particular the offence for which he was on parole was not dissimilar to the offending conduct for which he is to be sentenced. He claimed his behaviour was while under the influence of drugs.

32. The offender was assessed at a high risk of reoffending. It was noted that in the short period under supervision that the offender had failed to engage in such supervision to an appropriate standard, and there was a clear lack of willingness to engage in behaviour change discussions.

Subjective material

Letter from Belinda Brown

33. Ms Brown is the casework coordinator for the Drug Court at Parramatta. She met the offender during her previous employment as part of the drug and alcohol release and planning team. She first met the offender prior to his release as part of a program for support and “linkage" to services for the offender’s reintegration back into the community.

34. The offender had disclosed traumas of physical or mental abuse from the age of 8 years. Ms Brown continued to work with the offender upon his release into the community and was linked with a GP to best suit his needs. She reported that whilst working with the offender it appeared that he had positive supports in his life in the form of his partner and herself. Ms Brown observed that the offender had previously had anti-social peers who did not provide positive role models for his life in society.

35. The offender had been at a residential treatment provider with his mother at the age of 8 where he had been receiving treatment for drug and alcohol abuse. The offender reported that he had been sexually abused at this treatment facility. He had not spoken to his mother prior to his release for several years. Upon his release he saw his mother and it was following this that the offender was in a “downward spiral" in circumstances where the visit had allegedly triggered the offender’s unresolved emotions.

36. Ms Brown referred to having regular contact with the offender since his release, and had built a “healthy professional relationship" with the offender and his partner. She claimed that the offender had accomplished a number of positive outcomes in the short period out of custody. She claimed that he had attended his community corrections appointments, although when he was unable to attend he would call and re-schedule. She claimed that the offender had engaged in the connections program and had attended his GP appointments. She expressed the opinion that the offender had the capacity to live a crime and drug free life if the right supports were in place for him.

37. There is no evidence before the Court as to Ms Brown's qualifications other than having 20 years’ experience working in mental health, drug and alcohol and child protection. Having read her letter, the Court expressed its concern that the tenor of the report was that the offender had effectively been compliant with parole conditions including supervision by community corrections. This was inconsistent with the breach of parole report and Sentencing Assessment Report. In the circumstances Ms Brown was called and gave evidence on the sentence hearing. In effect Ms Brown called into question the statements of the two reports as to the offender's compliance with parole conditions, and his overall supervision whilst on parole. In the circumstances it was appropriate that the authors of the report be given an opportunity to respond to such claims.

33. After a short adjournment Counsel for the offender advised that the offender would not rely upon the evidence of Ms Brown to the extent that any such evidence was inconsistent with the two aforementioned reports. The offender was prepared to accept the accuracy of those reports as to his conduct whilst on parole.

Tanya Rynehart

39. Ms Rynehart and the offender had been in a romantic relationship for a period of 4 years and had one child together who was 7 months old. She first met the offender approximately 10 years prior in circumstances where the offender's sister was her best friend. She was aware of the offender’s history and the offences for which he was to be sentenced. She observed that the offenders’ decisions and actions were a “snowball effect" of past trauma which had affected his mental health. However, the offended now wanted to change and was willing to do whatever it took to make that happen. He was willing to participate in counselling upon his release to deal with these issues. She claimed that apart from the Buvidal Injection Program, the offender had otherwise “been clean" for the duration of his incarceration, and that the program had helped the offender to move past his addiction problems and that this would continue upon his release. Ms Rynehart claimed that the offender had “the potential to sort out his life" if given the opportunity and with the right support network. In this respect she would be entirely supportive.

Teagan Street

40. Ms Street is the maternal auntie of the offender’s son and had known him for approximately 5 years during which time she had seen the offender “progress mentally and physically with his struggles". Despite having made “wrong choices", she considered the offender was “changing his path" and wanted to create a better life for himself given the opportunity. She indicated that he had a large support network within her family who were willing to support him “through his journey". She claimed that the offender was “making all the right choices" and was “working hard to be a better version of himself".

Report Dr Paul Pusey - Clinical and Forensic Psychologist

41. Dr Pusey assessed the offender via AVL on 28 June 2023. The offender displayed an appropriate attitude throughout the examination and was open and disclosing during the interview. He displayed a reasonable level of engagement. Whilst accepting the agreed facts as being consistent with what occurred, the offender said that he was “delusional", having not slept for days and followed the consumption of “a lot of drugs". He stole the car in circumstances where he felt like someone was chasing him. It was the offender's belief that there was a relationship between his mental health, substance use and offending.

42. In acknowledging his lengthy criminal history, the offender said that he had to offend to survive when he was younger, and his adult offending was a function of his poor mental health, use of drugs, and poor decision-making. He offended as an adult to support his drug habit to cope with untreated mental health problems. His biological father was incarcerated when he was 9 months old for a period of 9 years. His two maternal half-sisters went into “DOCS care" when he was 13 and later became wards of the state. Whilst he was closer to his mother when he was young, over the last 6 or 7 years there had been a "big divide". The recent contact with his mother following release was a significant trauma and the offender claimed it was because of this that he returned to drugs. He was subjected to physical and sexual abuse at the hands of his stepfather as was his mother and sisters. Further his stepfather would threaten him into committing crimes during his childhood and adolescence. His childhood was characterised by significant physical and sexual abuse as well as exposure to drugs and crime, describing his stepfather and mother as “junkies".

43. The offender left school in year 8 and was committing crimes to support his family and at the direction of his stepfather. The offender completed a TAFE course in car detailing and had also undertaken several other courses in juvenile detention. He was unemployed at the time of commission of these offences. In addition to the abuse at home, the offender indicated that he had also experienced abuse whilst incarcerated in juvenile detention facilities. It occurred multiple times between the ages of 15 and 17. He recently disclosed the abuse as part of a compensation claim and it had “opened a can of worms and now weighs very heavily on me".

44. The offender indicated that his primary support was his partner, her family and his sister. He is the father of a 7-month-old son and he claims to being close to the young children of his partner. The offender claimed to take his role as the children's stepfather “seriously". He denied being currently engaged in the use of illicit substances, the consumption of alcohol or the use of either cigarettes or e-cigarettes. This was attributed to his present incarceration. The offender admitted that prior to his most recent return to custody he was smoking and injecting ice and other drugs which led to his “delusional state". His substance use commenced at the age of 11 when he started drinking alcohol and smoking cannabis. At the age of 13 his parents gave him his sisters ADHD medication and he also began “doing gas and continued smoking pot". He started injecting heroin and ice at the age of 18 and had also engaged in the use of “speed, alcohol, pot and sometimes ecstasy". He had previously been prescribed and was presently on anti-depressant medication.

45. He referred to his release on parole as a period during which he was interacting with a psychologist, a GP, and a community support worker. He claimed that “this time was different" and that he was “actively engaging in follow-up in the community" which he had not done before. However, he claimed that things “unravelled" over a two-week period following the visit with his mother. The offender told Dr Pusey that his mother had suffered from “severe bipolar affective disorder", his stepfather was on various medications, and his younger sisters were also on medications for mental health conditions, the details which were unknown to him. The offender said that he had been constantly reminded of his past events and that his mood would fluctuate multiple times per day. He experienced multiple disruptions in his sleep and felt lethargic all the time. Whilst he did have suicidal ideations, he denied any intention to act on these.

46. The offender told Dr Pusey that he was “over jail", and whilst acknowledging the need to be punished for his behaviour, he felt that he did not have the necessary support “to make life in the community work". He claimed that the behaviour leading to his present offending was “not me", instead claiming that he was delusional. He claimed to want to be out of jail to assist his partner with her children, claiming that they were struggling whilst he was in custody.

47. Testing for malingering indicated that there was an 18% probability that the offenders’ results belong to “an experimental feigner". The odds therefore were 4.56 to 1 of the offenders score arises from a credible presentation.

48. Dr Pusey was of the opinion, based upon the information provided, that at the time of the offending, the offender would have met the diagnosis for multiple mental health diagnoses being: –

1. Drug induced psychosis

2. Major depressive disorder

3. Post-traumatic stress disorder

4. Substance use disorder

49. The diagnosis of most relevance in relation to the offending was one of drug induced psychosis. The offender continued to meet the diagnostic criterion for diagnosis of major depressive disorder and post-traumatic stress disorder. Further his presentation was consistent with a diagnosis of substance use disorder in remission given it had been more than 12 months since he would likely meet the criterion for that disorder.

50. Dr Pusey believed the offender's risk of recidivism was entirely dependent on his ability to adequately address the risk factors identified, in particular, his ability to maintain abstinence from ongoing substance abuse. Further the ongoing impact of the offender’s underlying psychological vulnerabilities and the recidivism risk factors which arise from his lack of engagement in evidence-based mental health treatment will mean that the offender requires ongoing assessment and monitoring whilst in the community. A “treatment pathway" included supporting the offender’s continued development of insight into his psychological vulnerabilities and the role they played in the commission of his offences, assisting in the offender constructing “psycho social context" which supported “fusion" with prosocial behaviours, roles and cognitions, and supporting abstinence from illicit substance abuse.

Crown submissions

51. The Crown conceded that, given the timing of the plea, the offender was entitled to a 25% discount on the sentence that would otherwise be imposed.

52. The Crown contends that Sequence 10 (attempt to steal motor vehicle) fell below the mid-range, but not at the lowest level, of objective seriousness. Sequence 14 (aggravated enter with intent to commit serious indictable offence) fell below the mid-range although not at the lowest level. In this respect the Court will have regard that the larceny offence, being an element of the Count, was a set of car keys. The offence of larceny carried 5 years and it is for this reason that it would fall towards the lower end of the range of offences within the definition of serious indictable offences.

53. As to Sequence 15 (demand property with menaces with intent to steal) this fell just below the mid-range in circumstances where the victim's child felt the need to arm himself with a knife, indicating the fear he felt for himself and his mother. In respect to Sequence 7 (larceny) this would fall at the lower range of objective seriousness but not at the lowest given the value of the property stolen. Sequence 8 (destroy property by fire) was at the mid-range of objective seriousness given the vehicle was destroyed and was set on fire at a time and location which gave rise to potential risk of physical injury to members of the public.

54. Aggravating factors included the offender’s record of prior convictions, which disentitled him to leniency, and demonstrated the continued disobedience of the law, increasing the need for specific deterrence and the protection of the community. The offences in Sequence’s 10, 14 and 15 were in circumstances where a child was present who witnessed the offending (s 21A(2)(ea) of the CSPA). The offences were committed in the home of the victim (s 21A(2)(eb) of the CSPA) and the offender was on conditional liberty at the time of commission of the offences (s 21A(2)(j) of the CSPA).

55. The Crown contended that given the history provided to Dr Pusey, s 21A(5AA) of the CSPA was applicable in that the offenders self-induced intoxication at the time the offence was committed was not to be taken into account as a mitigating factor.

56. In respect to the subjective material, it was noted that the history provided by the offender that he had not engaged in the use of illicit substance or cigarettes was inconsistent with the custodial records. It was further contended that the history provided to Dr Pusey was an indication that the offender was not accepting responsibility for his actions.

57. It was noted that the SAR report and breach of parole report attested to programs which were available to the offender which he did not accept. The diagnosis made by Dr Pusey was only based upon statements made by the offender and the Court would be guarded in accepting those opinions absent independent corroboration. Whilst acknowledging that Bugmy factors must be given full weight in a sentencing decision, the offender continued to make poor choices within the correction system, the community and accordingly the Court still needed to have regard to the protection of the community.

58. Given the offenders record, previous parole revocations, and his behaviour since returning to custody, the Court would be guarded in assessing the offenders’ prospects of rehabilitation. The Crown contends that there were no relevant factors that would permit the Court to make a finding of special circumstances which will alter the statutory ratio. The Crown reminded the Court of the relevant principles in terms of accumulation, particularly in circumstances where the offender returned to custody in May 2022 as a consequence of breach of parole for his previous offending and was now serving the balance of his term.

Offenders’ submissions

59. The offender conceded that the offences comprising Sequences 10, 14 and 15 were such that they would have been a frightening experience for the victim and her young son. In respect to the overall criminality, it was noted that the total period of offending was approximately 45 minutes. It was conceded that the initial offending would have caused “a degree of terror" to the victim and her teenage son.

60. It was conceded that the offender should be sentenced to a period of imprisonment adequately reflecting the totality of his criminality. Reliance was placed upon the history provided to Dr Pusey in terms of the offender’s attitude to the offending arising from his mental and drug induced state at the time. Reference was made to the offender’s background which was provided to Dr Pusey, and the psychologist’s diagnosis as to the offender’s mental health. The offender contended that the principles in Bugmy were applicable in the sentencing process although agreed that the Crown’s submissions should be accepted in respect to Bugmy including the importance of protecting the community from the offender.

61. It was contended that the conditions diagnosed by Dr Pusey could be clearly linked to and arose in the history of abuse suffered by the offender in his early years. That had impacted on him at the time of the offending and continued to impact him over the course of his adult life. The offenders reduced capacity to function in the community had led to his offending and frequent incarceration resulting in a destructive lifestyle with the danger of entrenched institutionalisation.

62. It was submitted that the offender had some insight into the issues and the need for treatment, and that he was willing to engage in counselling and treatment and motivated to a more normal life. Given the support of his partner and others, there were positive prospects for rehabilitation. A finding of special circumstances would be made given further lengthy periods of full-time custody were likely to further institutionalise the offender.

Consideration

63. The offender engaged in what could be described as a crime spree over a period of approximately 45 minutes, involving the attempted theft of one motor vehicle which the offender abandoned after being confronted by its owner. The offender fled only to enter another vehicle, no doubt with the intention to steal that vehicle. When again confronted by the owner, the offender demanded she hand over her keys. Having returned to her home, the offender entered the home and again, with menaces, demanded the keys in the presence of the victim's young son. Undoubtedly the experience would have been terrifying for the victim and her young son, even more so in circumstances where the victim’s other 4-year-old son was asleep in the lounge room. The offender proceeded to drive away in that vehicle before attending another property and another vehicle, a ute, stealing the contents of it. The offender fled in the original vehicle, having been confronted by the owner of the ute from which he had stolen the property. The offender then drove the original victim’s vehicle, before setting it alight in a residential area, requiring the attendance of the fire brigade.

64. In respect to Sequence 10, attempt to steal motor vehicle, I note that this occurred in a residential property where the vehicle was parked in the driveway. When confronted the offender fled. I am satisfied that this offence falls below the midrange of objective seriousness for this type of offence, although not at the lowest level.

65. In respect to Sequence 14, aggravated enter with intent to commit serious indictable offence, this occurred in circumstances where the offender entered through an open door of the home uninvited, with the intention of stealing the keys to the vehicle. I am satisfied that this offence falls towards the lower end of the range for the offences given the indictable offence was larceny, and accordingly toward the lesser range of offences contemplated by the section.

66. In respect to Sequence 15, demand property with menaces with intent to steal, the demands were first issued when outside the premises, and continued when the offender entered the victims home. It occurred in the presence of the victim’s teenage son, where there was clearly concern for their safety. I am satisfied that this offence falls just below the midrange objective seriousness.

67. In respect to Sequence 7, larceny, this involved the offender stealing property from the victims ute to the value of $700 before fleeing once confronted. I am satisfied that this offence falls in the low range of objective seriousness.

68. In respect to Sequence 8, intentionally destroy property by fire, this involved the offender deliberately setting fire to the vehicle he had stolen in a residential area with the antecedent risks attached to such conduct. The fire was such that it needed to be extinguished by the fire brigade, although not before the vehicle was totally destroyed. I find this offence falls within the midrange of objective seriousness.

69. The offender’s lengthy criminal record disentitles him to leniency. An aggravating feature is that the offender was on conditional liberty, namely parole, at the time he committed the offences. Indeed, the offences were committed a little over 3 months into a parole period of 2 years 9 months. Whilst the fact that the offender was on parole does not elevate the objective seriousness of the offences, it has an aggravating effect on the imposition of the sentence as explained in Field v R [2020] NSWCCA 105 in so far as it aggravates the sentence by affecting considerations of punishment, deterrence and protection of the community.

70. The offences comprising Sequences 10, 14 and 15 were committed in the presence of a child, although the presence of a child in Sequence 10 is less aggravating than the circumstances in which the latter offences were committed in the child's presence.

71. Sequences 14 and 15 were committed in the home of the victim, being a further aggravating factor.

72. In respect to the subjective features, there are aspects of the history provided to Dr Pusey which are concerning and give rise to issues of reliability. The offender had denied that at the time of the assessment (28 June 2023) he was engaged in the use of illicit substances or the use of cigarettes or e-cigarettes. This is inconsistent with the custodial history which reveals breaches including possessing drugs (7 April 2023) and smoke use tobacco (25 May 2023) in the months prior to the assessment. Further only a matter of months after that assessment the offender was breached in respect to smoke use tobacco.

73. Further the offender claimed that his release on parole, immediately prior to commission of the offences, was “different", in that he was actively engaged in follow-up in the community, unlike before. This is inconsistent with the breach of parole report and sentencing assessment report. Further the offender was expressing the sentiment of someone who was going through a reformation, suggesting he was on the road to reform. This included taking the role as stepfather to his partners children seriously, and suggesting that he recognised his partner and children were struggling with him being incarcerated, again suggesting that he was now driven towards a more law-abiding life in the future.

63. However, this is inconsistent with the offenders conduct since his return to custody, documented in the custody record, including breaches as recently as August and September this year. His claim that he had been deprived of the necessary support to make life in the community work is inconsistent with the support offered to the offender detailed in the breach of parole report. The evidence is more consistent with the offender failing to embrace the opportunities and services offered to him on his release.

64. Whilst mindful of authorities such as R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144 as to the approach to expert opinion based upon untested history provided by an offender, it is also necessary to consider the observations of McCallum JA in Lloyd v R [2022] NSWCCA 18. The observations from cases such as Qutami are sometimes mistaken for principal, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing Judge. Her Honour observed at [47] that there is no principle of law that requires a sentencing Judge to exercise “very considerable caution" before relying upon the contents of an expert report absent evidence from the offender. In this respect her Honour acknowledged that the Court is not the only forum in which a reliable medical history can be obtained and that “to sweep aside the considered opinions medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance."

65. Dr Pusey obtained a careful history from the offender as to the environment in which he was raised, including an exposure to drug taking by his parents and subjected to physical and sexual abuse at the hands of his stepfather. Further the offender's exposure to criminal activity at an early age through his stepfather. The history also included being subjected to sexual abuse in juvenile detention facilities. It is apparent that Dr Pusey accepted the history provided by the offender when arriving at diagnoses including major depressive disorder and post-traumatic stress disorder. Despite the reservations traversed earlier in these remarks in respect to some of the history provided by the offender, I am satisfied that the offender does suffer from the conditions as diagnosed as being at least in part attributable to his adverse childhood experiences, as well as his exposure to and the influence of anti-social associates, which must include his stepfather.

66. I am satisfied that the offenders’ moral culpability is reduced: Bugmy v The Queen [2013] 249 CLR 571; Hoskins v R [2021] NSWCCA 169. However as was observed by the High Court in Bugmy this does not detract from the importance of protection of the community depending upon the circumstances. In this case, the offender has a lengthy history of committing serious criminal offences, including the offence for which the offender was on parole of aggravated break and enter and commit serious indictable offence – wound. The offences for which the offender is to be sentenced includes demanding property with menaces with intent to steal.

67. As to the effect of a mental condition reducing an offender’s moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed:

“[74] A reduction in moral culpability results where an offender’s mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending.

[75] The sentencing task should not be approached in “an unduly technical or restrictive way”: see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence.

[76] While a sentencing Judge should not become preoccupied with the issue of “causation” as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing).” (Emphasis added).

79. Whilst authorities such as Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sentencing have no relevance. Muldrock referred to the fact that in “most cases" mental impairment or disability will substantially lessen the offender’s moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: –

“The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."

80. Whilst I accept that the offender’s mental health played some role in the offending such that moral culpability and general deterrence is less of a factor than might otherwise be the case, it is readily apparent that the offending was primarily as a result of the offender’s drug induced condition, which cannot be taken into account as a mitigating factor (s 21A(5AA) of the CSPA).

81. Accordingly, taking into account the purposes of sentencing in s 3A of the CSPA, the sentence must ensure that the offender is adequately punished for the offences and to make the offender accountable for his actions. Conduct such as that in which the offender engaged must clearly be denounced. The offending involved the offender committing a series of criminal acts perpetrated on a several victims in a relatively short period of time. Such criminal activity not only inflicts harm on the victims of these crimes but additionally on the community more generally. As previously observed, the offender has a lengthy criminal history and repeatedly engaged in criminal behaviour culminating in the offence for which the offender was on parole. The offender committed these offences shortly after being released on parole and in these circumstances protection of the community looms large in the sentencing process. Given the offenders failure to adequately engage with community corrections following his release on parole, his non-compliance with his parole conditions and his behaviour since being in prison, the offenders’ prospects of rehabilitation would be considered as poor. This must be balanced against the expressed support of the offender’s partner and her family, although this appeared to have been of little assistance to the offender whilst previously on parole.

82. In all the circumstances, I am satisfied that the section 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke section 53A the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

83. In respect to Sequence 10, attempt steal motor vehicle, an appropriate sentence is 1 year 9 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 1 year 3 months (rounded down).

84. In respect to Sequence 14, aggravated enter dwelling with intent knowing people there, it is necessary to also take into account the matters on the Form 1, in particular the steal motor vehicle.

85. In respect to the Form 1 offences, as Beech-Jones CJ at CL observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:

“First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (citations omitted). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).”

86. In respect of this sequence, the appropriate sentence is 3 years 9 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 2 years 9 months (rounded down).

87. In respect to Sequence 15, demand property with menaces with intent to steal, the appropriate sentence is 2 years 9 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 2 years (rounded down).

88. In respect to Sequence 7, larceny, the appropriate sentence is 10 months from which is to be deducted 25% for the plea of guilty, resulting in a sentence of 7 months (rounded down).

89. In respect to Sequence 8, damage property by fire, the appropriate sentence is 2 years 6 months which is to be deducted 25% of the plea of guilty, resulting in a sentence of 1 year 10 months (rounded down).

90. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] – [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the “crushing” effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] – [17] per Spigelman CJ, Whealy J and Howie JJ).

91. It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.

92. Whilst there will need to be some accumulation reflected in the total aggregate sentence, it has a lesser role to play in determining the aggregate sentence given the offences occurred over a relatively short period of time and there is some underlying factual commonality.

93. The offender contends that there would be a finding of special circumstances in that the offender's rehabilitation would be enhanced by serving an extended proportion of his sentence under supervision in the community, and that further lengthy periods of time in full-time custody would be likely to further institutionalise the offender.

94. As Spigelman CJ (with whom Hulme and Adams JJ agreed) in Regina v Fidow [2004] NSWCCA 172 at [22]: –

"... Simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.”

95. In Hoskins v R [2016] NSWCCA 157 the Court (Payne JA, McCallum and Wilson JJ) said the following at [88]:-

“For a finding of special circumstances to be made, there must be some particular utility in a period of parole longer than that which would flow from the ordinary operation of statute. It is difficult to see any utility in this instance other than a simple reduction in the non-parole period. Mere reduction in the period of the sentence to be served in custody is not a proper basis for a finding of special circumstances.”

96. As previously observed in these remarks, the offender has a lengthy criminal history and previously spent periods in full-time custody. The offenders most recent release on parole was revoked, resulting in his return to custody, following the commission of the offences for which he is now to be sentenced. Those offences were committed within a relatively short period of time after being released. The breach of parole report further observed that the offender's response to supervision whilst on parole was inconsistent, and he had failed to report on numerous occasions. He failed to complete any of the alcohol/drug counselling sessions offered to him. Further, since returning to full-time custody, the offender has been frequently reported for breaches including a breach in the month prior to the sentence hearing. In the circumstances I am not satisfied that there is any particular utility in varying the statutory non-parole period and therefore decline to make a finding of special circumstances.

97. The offender’s parole was revoked on 23 May 2022 by reason of the offences for which the offender is to be sentenced. In such circumstances, the relevant authorities establish that the sentencing Judge has significant discretion in determining the appropriate commencement date of the sentence. Relevant considerations includes that the imprisonment for the period of the revoked parole was due to the original sentence, the length of period the offender was on parole prior to the current offending and the length of the parole period, the nature of the offence for which he was on parole including any similarity and the reason for revocation of the parole. In the present case, the offence for which the offender was on parole is not dissimilar to Sequence 14. The evidence establishes that the present offending was one of the reasons for which his parole was revoked, in combination with the offender’s failure to engage with community-based interventions, and his apparent resistance to addressing his offending behaviour.

98. I have determined therefore that the aggregate sentence for the current offences should commence on 1 February 2023 and the sentence is to be backdated to this date.

99. I find that in the appropriate aggregate sentence is 4 years 6 months with a non-parole period of 3 years 4 months.

Orders

1. The offender, having pleaded guilty, is convicted of the offences.

2. The indicative sentences are set out above. I impose a total aggregate sentence of imprisonment of 4 years 6 months to date from 1 February 2023 and to expire on 31 July 2027.

3. I impose a non-parole period of 3 years 4 months to date from 1 February 2023 and expiring on 31 May 2026.

4. The earliest date the offender is eligible to be released on parole is 31 May 2026.

Amendments

30 April 2024 - Corrected typographical errors

Decision last updated: 30 April 2024