Regina v Bradley Reginald White

[2008] NSWDC 203

CITATION:	Regina v Bradley Reginald White [2008] NSWDC 203 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	7 February 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentenced to four years imprisonment with a non-parole period of three years.
CATCHWORDS:	Criminal law - Sentence - Aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm) - Standard non-parole period - Violence against a 59 year old woman in her home - Extensive criminal record - On conditional liberty at time of offence
LEGISLATION CITED:	ss 59, 112(2) Crimes Act 1900 s21A Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
CASES CITED:	Regina v Maxwell [2007] NSWCCA 304 Regina v Millar [2005] NSWCCA 202 Regina v Price [2005] NSWCCA 285
PARTIES:	Regina Bradley Reginald White
FILE NUMBER(S):	07/41/0213
SOLICITORS:	Ms Walshe for the NSW DPP Mr Boom for the offender

SENTENCE

1. I am sentencing Bradley Reginald White for an offence described as aggravated break and enter and commit a serious indictable offence. That charge is brought under the Crimes Act 1900 . The relevant section in the Crimes Act is s 112(2). The serious indictable offence which Mr White committed when he broke and entered was described as maliciously inflicting actual bodily harm. I myself know of no such offence in the Crimes Act and I take it to be assault occasioning actual bodily harm contrary to s 59 of the Crimes Act carrying a maximum of five years. Nevertheless the crime that he committed, I repeat, was aggravated break and entering committing the serious indictable offence, namely assault occasioning actual bodily harm.

2. The maximum sentence for the crime that he is convicted of is twenty years imprisonment. Parliament has also fixed to that crime a standard non-parole period of five years. One of the most challenging aspects of this case for me in sentencing Mr White is where his case falls so far as assessing its seriousness is concerned. I commence by recording what happened.

3. The offence happened on 27 March 2007. Mr White and a person named Benjamin Earl were drinking alcohol. They drank a lot. They moved on to a unit in Campbell Street, Moruya. Mr White thought a man named Joe lived there. He had a dispute with Joe regarding money. When they got to the unit in Campbell Street, Mary Pike, a fifty-nine year old disability pensioner, was standing on the front porch. Mr White screamed at Ms Pike, “ You’re hiding Joe Innes inside aren’t you ”. Ms Pike replied, “ Joe doesn’t live here, I have an AVO on him ”. Mr White said, “ I don’t believe you, I’m coming in to search the place ”.

4. Ms Pike wisely turned around and raced back inside the house locking the door behind her. She got to her phone and was calling triple-0. While she was speaking with the police she saw the front door of her house being kicked in. That damaged the door lock. Mr White ran in armed with a block of wood about 2 feet long. He was swinging it at her. She raised her left arm defensively. She was struck twice, once on the left hand and once on the left-hand side of her face and jaw. They caused a cut, swelling and bruising to her hand and swelling and bruising to the left side of her face and jaw. Mr Earl, who was not accompanying Mr White so far as being a co-offender was concerned but was present, took the piece of wood from Mr White saying, “ Shit she’s an old woman ”. He took the wood outside the house.

5. But having been deprived of the wood Mr White picked up the telephone and wrapped the cord around Ms Pike’s neck. He wrapped it around not once or twice or three times but four times. She was described in the agreed statements of facts understandably as petrified. She called for help. Once again Mr Earl intervened. They both left the unit. As he did so Mr White ripped the phone cord away from the wall connection, damaging the phone. Ms Pike was left with the cord still wrapped around her neck.

6. Police arrived and attended to her. Photographs were taken which were admitted into evidence before me as part of exhibit A. A fence paling was seized from outside the house. Ms Pike was able to identify Mr White but Mr White had made his escape. It was not until 11 July 2007, that is some three and a half months later, that Mr White was arrested at or near Merrylands.

7. That is a brief account of what happened. The first thing I need to do is to make an assessment of what the law calls the objective seriousness of this offence. That is another way of saying that an important task for me in sentencing is to first recount just how serious this crime is. I take into account the following matters which are relevant to the objective seriousness of this offence.

8. The victim was a fifty-nine year old woman. She was in her own home. She was alone at the time. The door was kicked in after it was locked, no doubt a shocking experience for the victim. The phone was pulled out of the wall thereby putting her in a position where she would not know whether help would come. Not one but two offensive weapons were used: first the post; and when Mr White had the post removed from him he found the second weapon, the cord, and wrapped it round his victim’s neck, as I said, four times.

9. I need also take into account in assessing the seriousness of this crime that the injuries sustained by Ms Pike, although obviously significant, were not substantial, that is probably owing more to luck than any design. I take into account that Mr White had to be stopped both times by his companion from inflicting further injury. In other words, as Ms Walshe who appeared for the prosecution pointed out, the decision to end the violence was not made by Mr White but was made by somebody else. In addition, relative to the seriousness of the offence, is the fact that the offence occurred over a relatively short period of time, measured in minutes rather than a greater period of time. The offence itself I find was not pre-meditated. The first weapon was apparently picked up outside the house. Mr White, and in this regard I accept Mr Boom’s submission (he appeared for Mr White), formed the intention to force entry just before he did.

10. The particular aggravating feature which is relied upon by the prosecution is referred to in s 105A(1)(d) of the Crimes Act , that the offender maliciously inflicted actual bodily harm on any person inside. That explains to my mind the reference to that activity in a way which does not describe it as a crime. My earlier remarks need to be seen in that context. In addition to that particular form of aggravation there is the additional aggravation that, as I have already said and taken into account, Mr White was armed with not one but two offensive weapons, namely the post and the use which he made of the telephone cord.

11. I do not take into account any of the other circumstances of aggravation referred to in s 105A. I regard it as a component of the charge that Mr White knew that there was a person in the place because the component is inflicting actual bodily harm. I do not regard the use of corporal violence as aggravating the offence in this particular case, although in that regard there would appear to be, with respect, in the short opportunity I have had to consider the authorities, some difference of opinion in the Court of Criminal Appeal regarding whether that component of aggravation of corporal violence can be taken into account in a case where the pleaded aggravation is inflicting actual bodily harm. See the judgment of Simpson J in Regina v Price [2005] NSWCCA 285 at [25] to [32] and the judgment of Howie J in Regina v Maxwell [2007] NSWCCA 304 at [13]. I, in this case, do not take into account the use of corporal violence because in argument the issue was raised, and my recollection is that it was the common understanding between the bench and the bar table, that taking that into account would be double counting.

12. I return to a consideration of the objective seriousness of this case. The injuries, although serious or significant as I said, do not involve broken bones. I note that in a number of the authorities which were discussed during argument, offences of this kind which did involve broken bones were regarded as below the middle of the range of objective seriousness. See Regina v Millar [2005] NSWCCA 202 and Regina v Price [2005] NSWCCA 285. I appreciate that that is not the only factor which is relevant but it is nevertheless a significant one.

13. In addition Mr White not only had been drinking but had been taking drugs including ecstasy which he had taken for the first time. I have found the assessment of where in the range of objective seriousness this case falls to be a difficult exercise. My first impression was clear, this case fell within or above the range of objective seriousness of offending behaviour. However, I have since read in greater detail the relevant Court of Criminal Appeal authorities to which reference was made during argument and others. I have taken into account Mr Boom’s submissions and I have also taken into account that the form of aggravation could have been a lot worse, the violence which was inflicted. I therefore regard this case as being below the mid range of objective seriousness for offences of this type.

14. Other relevant factors to consider in sentencing Mr White, which are brought to my attention by s 21A of the Crimes (Sentencing Procedure) Act 1999 , are that he has a criminal record for both violence and break and enter and steal. It is quite extensive. However, the last serious conviction was in 1994 when he was convicted by the District Court. Since then there has been one conviction relevant in 2006 for carrying a knife. He received a bond from the Local Court. However, that bond leads to another aggravating feature. The offence which I am sentencing Mr White for was committed whilst he was on that bond. It was imposed on 5 March 2007 and he committed this offence some three weeks later, 27 March 2007. When the courts are lenient towards offenders and by measures such as bonds or parole allow them at liberty in the community, they are trusting that those offenders will not abuse that liberty. That is what Mr White did. Three weeks after he had been given his liberty he was attacking a defenceless woman in her own home. I regard that as a significantly aggravating feature.

15. On the personal side I do not regard Mr White as having pleaded at the first opportunity. He absconded. He was arrested, as I said, some six months later. I do accept that after his arrest he pleaded at the earliest available opportunity. I appreciate there was some discussion about a number of appearances in the court but I accept Mr Boom’s submission that his client pleaded guilty at the first available opportunity after receiving considered legal advice.

16. I take into account his prospects of re-offending. There must be some prospect of re-offending. He has not offended seriously for the last thirteen or fourteen years but now he has committed this serious offence, his prospects of rehabilitation can be no greater than fair. He finds it more difficult to cope with gaol at his age and there is little before me to form a basis for finding that he is contrite about his behaviour.

17. References were tendered before me which I have taken into account. He has worked hard and is described as considerate, kind and thoughtful. I have also taken into account a letter from his partner, Patricia Lees, which describes the impact on Mr White of the death of his father in 2006. She also describes his personal assistance to her and her uncle when he was terminally ill. She describes his good recent employment history. However, she also describes the dramatic change in his personality as a result of his father’s death in 2006. At that stage he returned to his drug use which resulted in this crime. She said that he is devastated by the events but that is different to having evidence directly from Mr White in the witness box about his contrition. I have taken into account the other references as well.

18. There is a pre-sentence report which has been prepared dated 10 December 2007. It confirms that his father’s death had an impact upon his life to the extent that he resumed using drugs. It regarded him as unsuitable for community service and ineligible for periodic detention. I have taken into account those matters and I have taken into account the submissions, the very helpful submissions from both Mr Boom and Ms Walshe. As I said I regard the offence as falling below the middle of the range of objective seriousness but nevertheless it is a serious offence.

19. I propose to sentence Mr White to imprisonment for four years with a non parole period of three years. Now would you stand up Mr White.
20. For the offence of aggravated break and enter and commit serious indictable offence I sentence you to imprisonment. I set a non-parole period of three years, that is the minimum period for which you must be kept in detention. That non-parole period commences on 11 July 2007, the date of your arrest, and will expire on 10 July 2010. I fix a balance of the term of one year from 11 July 2010 to 10 July 2011. There is not sufficient evidence in this case, in my opinion, to amount to special circumstances for extending the balance of the term of the sentence.

There are two backup offences which you asked me to dismiss, Mr Stanley, is that right?

STANLEY: Yes your Honour.
21. In respect of two backup offences of assault occasioning actual bodily harm and maliciously destroying or damaging property I dismiss those offences under the Criminal Procedure Act 1986 .

Now is there any other order I need to make?

STANLEY: No your Honour.
HIS HONOUR: Ms Blomfield?

BLOMFIELD: I have no instructions in that regard your Honour.

HIS HONOUR: Mr White, the sentence I have backdated to when you were arrested so your penalty starts on 11 July 2007.

OFFENDER: Yes sir.
HIS HONOUR: It goes for four years, there is a minimum that you have to stay in gaol for three years, so you are definitely in gaol until 10 July 2010. After that you may be considered eligible for release on parole. That is for the Parole Board to decide. They decide that, and if they do release you then you have got one year to go on parole up to 10 July 2011 when your sentence is finished. Do you understand that?

OFFENDER: Yes sir, thank you.
HIS HONOUR: All right Mr White can be taken down.
oOo

19/09/2008 - Typographical error - Paragraph(s) Catchwords