McLeod v R

Grounds of Appeal

1. In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing:
2. The sentencing judge erred in finding that the offence was above the mid-range of objective seriousness where such a finding was not available on the evidence. 1A. The sentencing judge erred in sentencing the applicant on the basis that the serious indictable offence particularised in the section 109(2) count was intimidation, when in fact that the [sic] charge pleaded to particularised the serious indictable offence as "malicious damage".
3. The sentencing judge erred in failing to consider the offender's deprived background when assessing moral culpability, the need for general deterrence, and denunciation of the offence.
4. The sentence is manifestly excessive.

Objective features

1. The following summary is derived largely from the remarks on sentence of the sentencing judge, in turn based upon the document entitled "Facts on Sentence" that was tendered in the proceedings on sentence.
2. At about 8 am on Sunday 24 January 2016, the applicant, who was at the time a disqualified driver and was driving a car that had been taken without the consent of its owner, was stopped by police and questioned at Gateshead at Lake Macquarie. He gave police a false name. When the police returned to their vehicle to carry out some checks, he accelerated away from the location.
3. Police then engaged in a pursuit of the applicant, activating their warning devices. The applicant failed to stop his vehicle, and instead continued to accelerate away at speeds of up to 100 kilometres per hour in a 50 zone. At that time, he also committed a number of other acts of dangerous driving, including by way of driving erratically and in excess of the speed limit, crossing double white lines, driving on the incorrect side of the road on several occasions, failing to stop for a red light, and failing to stop at a pedestrian crossing. At numerous stages, police terminated the pursuit due to the danger to the public.
4. After some time, the car driven by the applicant mounted a gutter and drove into some bushland, and there came to a halt. The applicant left his car and ran into the bush. He was pursued by police on foot.
5. The applicant then ran into the backyard of the adult female victim, after breaking some of the panels of the fence to her home. He entered the home by the rear open door. The applicant pushed past the victim on entry, assaulting her by doing so. The applicant closed the door behind himself, and locked the door, which left the victim locked outside her own home. She was "extremely upset and frightened as the offender was not known to her and her 14 year old daughter was inside asleep".
6. The applicant then climbed into the ceiling space of the home, and from there clambered up onto the roof, damaging a manhole at the first stage, and some roof tiles at the second. Police arrived and spoke to the applicant, who was on the roof and was refusing to climb down. After a time, they assisted the applicant in getting down before he was finally arrested. Meanwhile, the police located a large kitchen knife in the applicant's car.
7. Later, the applicant tested positive for methylamphetamine and amphetamine, to the extent that his driving would have been impaired. He admitted to using crystal methylamphetamine (ice) in the previous two weeks, and told Dr Rebecca Smith, psychologist, that he had "been awake for 2 weeks" prior to the extended incident.

Objective seriousness

1. As for the question of objective seriousness, the learned sentencing judge found that the circumstances of the aggravated breaking out offence were serious. In doing so, her Honour mistakenly referred to the serious indictable offence (the "sub-offence" contained within the aggravated breaking out offence), as intimidation, instead of reckless damage, as was particularised on the charge document to which the applicant had pleaded guilty. Her Honour said the following: "In assessing the objective seriousness of the offence, I observe that with respect to the enter and break out offence, the serious indictable offence in the complaint is that of intimidation, an offence with a maximum penalty of five years' imprisonment. The offence of intimidation is not the most serious of the potential serious indictable offences, however the circumstances of this offence do make it a serious example of that offence." (remarks on sentence (ROS) page 3)
2. Furthermore, as the complainant was assaulted on the applicant's entry to the home, causing her significant concern, the aggravated break out offence was assessed to be "above mid range seriousness save for the pleas of guilty that were entered at the first available opportunity" (I interpolate that this elision of objective and subjective matters did not found a ground of appeal).
3. With regard to the police pursuit offence, her Honour found it to be "serious", on the basis that it posed a great deal of danger to members of the community, featuring as it did driving straight through several intersections and failing to stop at a pedestrian crossing.

Subjective features

1. Again, the following is largely derived from the remarks on sentence; it also summarises evidence that was not in dispute before the sentencing judge.
2. The sentencing judge found that the applicant was entitled to a discount of 25% for his early plea of guilty.
3. Her Honour accepted that the applicant was remorseful, and that, if and when he became drug free, he possessed reasonable prospects of rehabilitation.
4. At the time of the commission of the offences, the applicant was then aged 34 years. By the time of sentence, he was 35 years old.
5. A psychological report prepared by Dr Smith of 20 November 2016 discussed the applicant's disrupted upbringing, featuring the applicant's father encouraging him to drink alcohol and smoke marijuana from age 9, his becoming a heavy user in his teenage years, and the applicant stating that he was a "pretty messed up kid". Dr Smith also recorded that the applicant was diagnosed at age 9 with Attention Deficit Hyperactivity Disorder (ADHD).
6. Following the separation of his parents, his father began using amphetamines, and soon lost his job. The applicant initially lived with his mother, until she entered into a new relationship. The applicant then decided to live with his father, who was heavily involved in drug use and "petty" dealing. The applicant also reported that his father was diagnosed with schizophrenia.
7. The applicant, at age 13, left home, and became a "street kid" as a reaction to the poor parenting of his father. He reported experimenting with amphetamines, including ice at age 14, which led to his addiction to heroin by age 18.
8. He reported receiving a diagnosis of manic depression at around age 15, and believed that he suffered symptoms of Post-Traumatic Stress Disorder (PTSD) arising from two occasions on which he witnessed his father and brother being attacked by the same offender.
9. The applicant denied experiencing any suicidal ideation or self-harming behaviours, at least since his mid-twenties.
10. The applicant's father died from a drug overdose in 2014. The applicant reported that he was deeply affected by knowing that his father had "died with a needle in his arm". The applicant also reported that his own propensity to self-medicate prevented him from grieving or coming to terms with the death of his father.
11. Dr Smith recorded that the applicant reported a longstanding history of polysubstance abuse, it being the "bane of my existence" for "almost my entire life". As I have said, the applicant reported that, prior to the offences, he had been "awake for 2 weeks straight" as a result of heavily abusing ice. He acknowledged that his drug use is "highly entrenched" and that he required "long-term rehabilitation" to recover from his addiction.
12. Dr Smith also stated that the applicant found religion important to him, and had spoken of it "keeping me strong at the moment". The psychologist also noted that the applicant has four siblings, two of which also experience issues related to drug abuse.
13. The applicant also told Dr Smith that he was prescribed medication by a psychiatrist at Parklea Correctional Centre for anxiety and paranoia three months prior to the interview that led to the psychological report. He also suggested that that same psychiatrist at Parklea may have given him a diagnosis of schizophrenia, as he reported sensations of an auditory hallucination.
14. Dr Smith found the applicant to be "within the high range for reoffending" due to his antisocial peers, history of antisocial conduct, lack of employment and other prosocial activities, and his ongoing substance abuse.
15. Dr Smith opined that in order for the applicant to have any prospects of rehabilitation, he required a long-term stay at a residential rehabilitation facility. Dr Smith also concluded that, despite the applicant's reports of a diagnosis of bipolar disorder and schizophrenia, "there is little corroborating evidence to support a psychiatric diagnosis", and expressed the opinion that it is "unlikely that his offending behaviours were as a result of an underlying psychiatric condition".
16. Perhaps unsurprisingly in the circumstances summarised above, the criminal record of the applicant began when he was a juvenile. It featured offences of attempting to steal, reckless damage, breach of probation, unlawful entry, armed robbery, and robbery in company.
17. As an adult, the applicant had been convicted of numerous offences, including being in custody of a knife in public, driving offences, goods in custody, drug-related offences, assault occasioning actual bodily harm, multiple stalk or intimidate offences, larceny, and, very troublingly, possession of an unauthorised firearm.
18. He had served sentences of imprisonment for some offences, the longest of which was a head sentence of one year four months with a non-parole period of ten months for larceny.
19. As at the date of the offences under consideration, the applicant was on conditional liberty, and was in breach of an intensive correction order (ICO) and a bond; her Honour made no reference to that fact in the remarks on sentence.
20. A pre-sentence report (PSR) emphasised the applicant's response to supervision being unsatisfactory, due to a number of breaches, re-offending, and his failure to maintain contact with Community Corrections.
21. The report also confirmed the disrupted upbringing of the applicant, in a way largely repetitive of the history recounted in the psychological report of Dr Smith. In addition, the PSR recorded that the applicant's challenging behaviours related to the applicant himself being a victim of sexual assault that had been unreported. He has four children, from two previous relationships, and, at the time of the report, had had no contact with any of his children for four months. The applicant also identified that substance abuse "had been a criminogenic trigger for the majority of his offending". He had previously completed a residential rehabilitation, and had discharged himself early on another attempt.
22. The PSR records the applicant's desire to address his alcohol and drug abuse "for himself"; his expression of disappointment in himself following the commission of these offences; and the fact that he did not attempt to minimise his responsibility for that offending.
23. The report concluded that the applicant is a person who has "long term unresolved substance abuse and mental health issues, who has not made the most of prior periods of supervision", and suggested that the applicant would benefit from a period of supervision by Community Corrections.
24. In the remarks on sentence, her Honour discussed the fact that the applicant reported "that his early life was marred by his father's destructive influence as a drug user and dealer". He did not provide appropriate support or supervision of the applicant, and suffered from psychiatric problems. That upbringing of the applicant was evidenced by the fact that his own criminal record commenced when he was aged 10, and by the fact that he began living on the streets from age 13.
25. Her Honour also found the applicant to be "an intelligent man", committed to study, a not "insignificant achievement for a person of his deprived background".

Aspects of sentence

1. Her Honour concluded that special circumstances were found, as there "is ample evidence that his upbringing was such that his current drug addiction was not his choice, but an inevitability brought out by the destructive features of his upbringing and his father's lack of appropriate supervision". The sentencing judge also concluded that "many offences, even the driving offences, seem to be drug related".
2. The indicative sentences were as follows: imprisonment for 18 months for the police pursuit offence, and imprisonment for three years nine months with a non-parole period of two years for the aggravated breaking out offence.
3. With regard to the certificate offences, the sentences were imprisonment for six months for driving under the influence of a substance; a conviction only for giving a false name; imprisonment for nine months for driving whilst disqualified; imprisonment for six months for driving a motor vehicle without the consent of the owner; a conviction only for enter enclosed lands; imprisonment for three months for damage to property; imprisonment for nine months for common assault; and imprisonment for one month for custody of a knife.
4. As I have said, the aggregate sentence imposed was a head sentence of imprisonment for five years, with a non-parole period of two years eight months. Clearly, that featured a significant departure from the "statutory ratio"; if that departure had not occurred, the non-parole period would have been three years nine months.

Ground 1 The sentencing judge erred in finding that the offence was above the mid-range of objective seriousness where such a finding was not available on the evidence.

Ground 1A The sentencing judge erred in sentencing the applicant on the basis that the serious indictable offence particularised in the section 109(2) count was intimidation, when in fact that the [sic] charge pleaded to particularised the serious indictable offence as "malicious damage".

1. In my opinion, it is convenient to discuss these two related grounds together.

Submissions

1. Counsel for the applicant submitted in writing that the finding of the sentencing judge that the aggravated breaking out offence was "above mid range seriousness", was not available on the evidence, as the offence was "unplanned, spontaneous, and involved a large degree of panic".
2. It was also submitted that the applicant had no intention to harm the victim or her daughter when he entered the home, as there was no suggestion he used any great degree of force when he pushed past the adult victim; nor did he intend to take any property from the house. The "push" was also subject to a separate charge as a certificate offence. The damage to the home was submitted to be "reasonably limited", as the total quote for repair to the property was $1027.75.
3. While it was accepted that the applicant's conduct would have caused the victim "substantial fear", particularly when she was locked out of her home and her daughter was asleep inside, that fear was submitted to be ameliorated by the police arriving shortly after the applicant entered the house.
4. Further, the locking of the door was "more likely to have been aimed at slowing police, rather than an attempt to exclude the occupier", and it is unclear whether the locking was deliberate.
5. In relation to her Honour wrongly proceeding on the basis that the sub- offence particularised was intimidation, it was submitted that the conduct amounting to intimidation was the applicant pushing past the victim. However, there was no evidence that that act involved any threats or menacing words. It was submitted, therefore, that the conclusion that this was "a serious example of that offence [that is, the sub-offence]" was in error, as the circumstances surrounding the offending such as the brief time period involved, the lack of verbal or physical threat, and the impulsive nature of the offence "all mitigate towards a finding of lesser criminality".
6. Furthermore, the applicant's motivation after entering the house was submitted to be to "get out of it" and "get away from police", and not to cause harm or fear to the victim. Counsel for the applicant concluded that such conduct falls towards the lower end of the spectrum of objective seriousness, or at least well below the mid-range.
7. In supplementary written submissions for the applicant pertaining to ground 1A, it was emphasised that no assessment of the objective seriousness of the offence as particularised actually occurred, as the sentencing judge mistakenly assessed the objective seriousness of the serious indictable offence of intimidation, not reckless damage. Counsel for the applicant submitted that, if there had been an assessment of the correct sub-offence, it would have included consideration of the unplanned and impulsive nature of the offence; the lack of intention encapsulated in the offence of reckless damage; the overlap in the criminality of the reckless damage and the breaking out; and the proposition that the damage that occurred was readily rectified.
8. In oral submissions, counsel for the applicant emphasised the additional ground 1A, and the proposition that the sentencing judge proceeded on the basis that the sub-offence particularised was intimidation, contrary to the relevant Court Attendance Notice. It was submitted that the particulars had an impact upon the assessment of the objective seriousness of the offence, and that her Honour's finding that that particular of intimidation was a "serious example" of that offence was made in error, as her Honour should have been assessing the offence of reckless damage.
9. It was also submitted that, if the sentencing judge had correctly reflected upon the sub-offence of reckless damage, such reckless damage was a relatively minor offence that fell towards the lower end of objective seriousness. That was said to be due to the entire context of the offending, including its impulsive nature, the lack of intention to harm the occupants of the property, the lack of intention to take or destroy property, and the proposition that, once the applicant entered the home, his only real intention was to get out again.
10. Finally, the circumstance of aggravation (knowing that people were inside the house) was submitted to be "the least serious of the various circumstances of aggravation that fall within…this particular offence", when one reflects upon other available circumstances of aggravation such as being armed with an offensive weapon, or being in company.

Determination

1. I respectfully think that these two grounds can be determined concisely.
2. It is perfectly true that her Honour made a slip in thinking that the "sub-offence" for the aggravated breaking out offence was intimidation, when in fact it was reckless damage.
3. Perhaps that slip occurred because, as it happens, each of those offences carries the same maximum penalty of imprisonment for five years. They are each also indictable offences that are capable of being dealt with summarily, as they both appear in Table 2 of Schedule 1 of the Criminal Procedure Act.
4. In other words, I think it important that it is not the case that, disadvantageously to the applicant, her Honour wrongly believed that the "sub-offence" was inherently far more serious than the correct one.
5. Separately, it was inevitable that, whichever "sub-offence" was believed (rightly or wrongly) to be the particularised element of the overarching aggravated breaking out offence, the facts underpinning the other sub- offence would be taken into account as a factor of aggravation. By that I mean, if the sub-offence had in fact been intimidation, undoubtedly the damage to the home was available to have been taken into account as well; conversely, if the sub-offence had been correctly appreciated to be reckless damage, inevitably the effect of the behaviour of the applicant upon the complainant, the details of which appeared explicitly in the agreed facts, would have been taken into account as an aggravating feature.
6. In short, it is perfectly true that the slip complained of in ground 1A occurred. But in my opinion, it had no practical effect on the sentencing process or its outcome, and cannot be characterised as an error that affected, in a practical sense, the exercise of the sentencing discretion calling for consideration of re-sentence by this Court: see Lehn v R [2016] NSWCCA 255 at [68].
7. As for ground 1, and focusing merely upon the objective seriousness of the aggravated breaking out offence and not the police pursuit offence, to recap: the applicant, whilst grossly affected by a pernicious prohibited drug, invaded a home on a quiet Sunday morning, and in the process assaulted the adult female occupant. She was extremely frightened that the intruder would harm her sleeping 14 year old daughter, from whom, as a result of the action of the applicant in locking the door, she was cut off. Far from desisting at that point, the applicant broke into the roof cavity, and from there onto the roof, in the process not only damaging the home but no doubt further frightening the occupants. It took some little time for him to agree to surrender himself to the authorities. Many portions of the home were damaged. The whole regrettable event occurred because of the ongoing, self-centred wish of the applicant to evade the police.
8. It is true that one can readily posit examples of the offence that are more, or less, serious than this one. But, in my opinion, it was perfectly open to the sentencing judge to characterise the objective seriousness of this offence as being "above mid range".
9. In short, I would uphold neither ground 1, nor ground 1A.

Ground 2 The sentencing judge erred in failing to consider the offender's deprived background when assessing moral culpability, the need for general deterrence, and denunciation of the offence.

Submissions

1. Counsel for the applicant, in written submissions, emphasised that the finding of the sentencing judge of "ample evidence" that the applicant's drug addiction "was not his choice, but an inevitability" was taken into account in support of special circumstances. It was not referred to, however, by her Honour when considering the weight given to the applicant's moral culpability, general deterrence, and denunciation. It included factors such as his father's drug addiction and encouragement of the applicant to drink and smoke from an early age, the applicant becoming a "street kid" at age 13, his diagnoses of ADHD and manic depression, and his heavy use of illicit substances.
2. Reliance was placed on Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] for the proposition that "full weight" must be given to an offender's deprived background in every sentencing decision. It was submitted that, even when the link between the circumstances of the offending and the offender's background is less direct, that does not mean that the background is less significant in relation to the moral culpability of the offender. Specifically, in relation to this applicant, his impulse control and thinking was impaired by his intoxicated state, and as his use of such substances was to cope with grief, those factors were submitted to be clearly linked in turn to his exposure to drug abuse from an early age.
3. In oral submissions, counsel for the applicant submitted that the sentencing judge erred by limiting the findings regarding the applicant's deprived background to the finding of special circumstances. That was said to be because her Honour did not refer to it with regard to other relevant sentencing considerations, such as general and specific deterrence. It was submitted that her Honour also failed to take them into account in relation to fixing the indicative sentences and the ultimate aggregate head sentence.

Determination

1. I consider that this ground can also be determined shortly.
2. A significant structural aspect of the remarks on sentence is as follows. After having recounted the undisputed objective features, and having made an assessment of the objective seriousness of each of the two offences, her Honour said the following: "When considering the purposes of sentencing, sometimes a sentencing Court has to take matters into account which are in conflict with each other. The protection of the community and general and specific deterrence are important considerations for this particular offender." (ROS page 3)
3. Thereafter, her Honour immediately said: "This particular offender also has some circumstances that require a strong consideration of rehabilitation. It is very clear that this offender has a serious drug addiction, and to some extent his drug addiction is driving his offending behaviour." (ROS page 3-4)
4. After that, her Honour referred to the fact that the offences were unplanned, featured a degree of panic on the part of the applicant, and were motivated by a desire not to return to custody.
5. The remarks on sentence proceeded to deal, in substantial detail, with the sad and damaging attributes of the upbringing of the applicant. After that, her Honour analysed in similar detail the resultant criminogenic drug dependence of the applicant.
6. In short, within minutes of speaking of the well-known countervailing purposes of sentencing, including rehabilitation, her Honour went on to speak in detail of the very adverse background of the applicant. In those circumstances, I do not accept that it has been established that the sentencing judge failed to consider that background in reflecting upon the factors relevant to sentencing that are particularised in this ground; quite the contrary.
7. I would not uphold ground 2.

Submissions

1. In written submissions, counsel for the applicant set out the indicative sentences imposed by the sentencing judge for the two main counts: as I have recounted, a head sentence of imprisonment for 18 months for the police pursuit offence, and a head sentence of imprisonment for three years nine months with a two year non-parole period for the aggravated breaking out offence. It was submitted that as the sentencing judge allowed a 25% discount for the guilty plea, the starting point for the latter offence was a head sentence of five years.
2. That was submitted to be a very lengthy putative head sentence, when one considers the subjective case of the applicant; that the offence resulted in limited harm to the victim, and little damage to the victim's property; an absence of intention to harm or interfere with the property of the victim; and the fact that the offence was spontaneous and motivated by a panicked desire to avoid police.
3. It was said that, due to the relationship between the state of mind of the applicant and his criminal conduct, it was appropriate for there to be a "reasonable degree of concurrency in the sentences imposed".
4. In oral submissions, counsel for the applicant emphasised that the propositions underlying the earlier grounds, in particular their impact on a proper assessment of objective seriousness, would have an impact upon the determination of the appropriate sentence that should have been imposed.

Determination

1. Again, I believe that this ground can be determined concisely.
2. Taken as a whole, the conduct of the applicant constituted a significant endangerment of, and intrusion upon, other members of the community. The first offence pertaining to the police pursuit (and its related certificate offences) was particularly selfish, and could have been catastrophic. The latter offence (and its related certificate offences) was particularly invasive of the right to security of others in their own home, and certainly must have been terrifying.
3. Separately, the criminal record of the applicant has become, over the years, extensive. He had been sentenced to imprisonment on many occasions prior to the one under consideration.
4. Furthermore, as the sentencing judge pointed out in the remarks on sentence, he is no longer a particularly young man who can point to his youth and attendant immaturity as a mitigating factor.
5. One can accept that this man has been bedevilled by a problem with prohibited drugs for many years; that that problem in turn developed from psychological difficulties arising from the way he was treated as a child, through no fault at all of his own; that he had accepted responsibility for all that he had done on this occasion; that he is a person of intelligence and potential; and that he did and does sincerely wish to get help.
6. The aggregate head sentence of imprisonment for five years may be characterised as substantial. But in all of the objective and subjective circumstances that I have summarised, in my opinion an aggregate sentence of imprisonment for five years, along with an aggregate non-parole period of two years eight months, featuring (as the latter does) a significant departure from the "statutory ratio", cannot be characterised as manifestly excessive.
7. I would therefore reject ground 3.

Conclusion and proposed orders

1. In accordance with the above analysis, I propose the following orders: (1) Leave to appeal granted. (2) Appeal dismissed.

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