Parker v R

Court of Criminal Appeal (NSW)|2021-05-17|Before: Garling J, Beech-Jones J, Adams J, Jones J

Judgment

GARLING J: I agree with the orders proposed by N Adams J and with her Honour's reasons, particularly that no error has been identified by the applicant. I wish to add that the remarks on sentence of the Herbert DCJ were careful, thorough and comprehensive. In those circumstances, it is appropriate that this Court confines its judgment, as N Adams J has done, to the matters essential to the determination of the application for leave to appeal.
BEECH-JONES J: I agree with N Adams J.
N ADAMS J: The applicant, Mr Luke Parker, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Herbert DCJ on 10 March 2020. The applicant requires an extension of time. The Crown does not oppose that application.
On 22 October 2019, the applicant pleaded guilty to the following charges: Count 1: Enter dwelling house with intent to commit a serious indictable offence in circumstances of aggravation contrary to s 111(2) of the Crimes Act 1900 (NSW) (maximum penalty: 14 years imprisonment); Count 2: Common assault contrary to s 61 of the Crimes Act (maximum penalty: 2 years imprisonment); Count 3: Do act with intent to pervert the course of justice contrary to s 319 of the Crimes Act (maximum penalty: 14 years imprisonment).
The applicant was also sentenced pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) for a related offence of contravene apprehended domestic violence order ("ADVO") contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (maximum penalty: 2 years imprisonment and/or 50 penalty units).
The applicant received a discount of 10% for his pleas of guilty to count 1, count 2 and the certificate offence and a discount of 25% for his plea of guilty to count 3.
On 10 March 2020, the applicant was sentenced to an aggregate sentence of 3 years 7 months imprisonment commencing on 27 February 2019 and expiring on 26 September 2022, with a non-parole period of 2 years 5 months. The indicative sentences were as follows: Count 1: 2 years 3 months imprisonment; Count 2: 10 months imprisonment; Count 3: 2 years 7 months imprisonment; S 166 offence: 10 months imprisonment.

Grounds of appeal

The applicant seeks leave to appeal on two grounds: "Ground 1: compassionate grounds: father very unwell with cancer, tumors [sic] etc; Ground 2: sentence was too long a punishment for the offences committed."

Factual background

The sentencing judge described the applicant's relationship with the victim as follows: "The offender, Luke Parker, and the first victim, Kristie Corben, were in an off and on again relationship for about three years. They have one child together, who was born [in July 2018], and Kristie Corben has two children from her previous relationship, a son born in December 2012 and a daughter born in June 2008. The three children live with Kristie Corben. Kristie Corben and the offender have a mutual friend, James Duncan. From mid September 2018, the offender and Kristie Corben were living at a premises at Yagoona, a single storey house. On 26 October 2018, the offender attended Bankstown Local Court and while at court, a Final Apprehended Domestic Violence Order between the offender and Kristie Corben, as a person in need of protection, was varied … From 25 October 2018, the offender was no longer living at the house at Yagoona."
Her Honour found the facts as follows for the related offence of contravene ADVO: "Between 26 October and 1 November 2018, Kristie Corben received telephone calls and text messages from the offender. On 30 October 2018, he went to the house at Yagoona and collected some belongings and left quickly. At about lunchtime on 1 November, the offender sent Kristie Corben a message saying, 'Just got to go do something and I'll be over to get my shit'. She sent back a reply, 'I told u to stay away from me u understand I'll get your shit organised and let u know when it's ready to be picked up'. At about 6.20pm that evening, Ms Corben arrived home with her three children. She was spoken to by one of her neighbours who lives across the road from [her]. As she was having a conversation with her neighbour, the offender walked through the front yard and into the house. She continued to talk to the neighbour while watching the offender. The neighbour left. Kristie Corben went inside her house and saw the offender collecting some of his things. The offender said he wanted to talk. He became emotional and was crying and shaking. Kristie Corben said to the offender three or four times, 'You need to leave'. The offender left the premises. Sometime later, Kristie Corben sent a message to James Duncan and let him know that the offender had been at the house. James Duncan came over to the house and he and Kristie Corben shared a pizza. There were messages exchanged between Kristie Corben and the offender, with the offender asking to reconcile and if he could be permitted to attend her home. At about 9.30pm, the offender came to the residence and knocked on the door. Kristie Corben did not know who was there, so she opened the front door but kept the screen door locked. The offender said, 'Can we talk please, I'm sorry'. She replied, 'You can't be here just go home. Leave or I'll call the police' and she shut the front door."
The sentencing judge found the facts as follows in relation to counts 1 and 2: "The offender walked around the side of the house and climbed through a window to Kristie Corben's bedroom and he entered the house. He went to the living area where both Kristie Corben and James Duncan saw the offender. James Duncan asked the offender, 'What are you doing here?', and Kristie Corben said to the offender, 'I don't know why you're here'. The offender and James Duncan grabbed each other and wrestled for a couple of minutes. During this time, the offender punched James Duncan to the right side of the face and used a key to scratch his back. That is the basis of the common assault offence. James Duncan restrained the offender in a lounge chair. The offender said he could not breathe, so James Duncan released the offender and told him to leave the premises. The offender went into the kitchen. He said to Kristie Corben, 'How can you do this?' She said, 'There's nothing going with Jamie, we have been friends for years'. The offender walked through the house past James Duncan, and the offender and Duncan started to wrestle again. James Duncan pushed the offender towards the front door and outside. The neighbour who had previously visited saw the offender being pushed out of a house. As soon as the offender was outside, Duncan let go of the offender, who ran off screaming, 'You're dead, you're dead'. Kristie Corben contacted the police and asked for the police to attend. Police attended a short time later, obtained a signed notebook statement from both Kristie Corben and James Duncan, and photographs were taken. That evening, police located the offender at his father's home, also in Yagoona, where the offender was residing. It is about a kilometre away from the victim's premises. The offender was arrested and cautioned and taken to the police station. He was read his rights and exercised his right to silence."
Count 3 took place while the offender was remanded in custody for counts 1 and 2. Her Honour found the facts as follows: "The offender was remanded in custody. While he was in custody, he wrote letters to Kristie Corben, sending them to his father who then provided them to Kristie Corben. In one of the letters, he wrote: 'I know you have to be at court bub on the case with Jamie, but can you talk to Jamie please see if he don't show up then I could get off that charge bub and then I can get out…I'm not forcing you bub just hoping that cause if Jamie don't come that's it. Won't go to trial. If it goes to trial I'll be in jail till end of next year bub. Please help me…Babe maybe you could tell Jamie that my dad needs me because he's sick. Bub I will be in for a year before trial. Bub you know dad won't last that long without me, please baby please talk to him, I know you can say no and I don't deserve your help or Jamie's after the way I've treated you over the years, but this time I'm staying off everything…Please Jamie I'm sorry for how I treated Kristie...' In another letter, he wrote: '…please bub don't go to court please try to have the charges dropped. Not the AVO just the other charges. Tell them that you were not thinking straight, that I hurt you with what I said, if I can get 1 charge dropped then I can go for bail again.' Corrective Services records show that Kristie Corben's telephone number was registered under the name of 'Emma Collins' on the offender's telephone list. Apart from her ten year old daughter, Kristie Corben is the only person to use that telephone. Records show that the offender called Kristie Corben from November 2018 until April 2019. In some of the calls, the offender attempted to convince Kristie Corben not to attend court and to tell the police and DPP due to her pregnancy at the time, her judgment was impaired, and if called to give evidence, she should say that she cannot recall what happened. Extracts of the calls are produced in the agreed facts. The offender took these actions with the intention of having the charges withdrawn or dismissed, to be free from custody. On 26 February 2019, Kristie Corben sent a letter to the NSW Police stating she wanted the charges dropped, that she was not willing to attend court, and at the time of the incident she was pregnant and highly emotional. In a call on 18 November 2018, it includes: Offender: '…why don't you go down the coppers and tell him you don't want the last charges to happen?' Ms Corben: 'I can't just take them away' Offender: 'You can, babe. You just say you don't want them. That you're not gonna go, that you're not gonna go to whats-her-name. Why don't you just do that? You, they, they can't say, we, you can say that when you get up there that you won't say nothin'. Anyway, it's up to you but...' Ms Corben: 'So I can't. That's the thing. You just can't go and change it'. Offender: 'Yeah. Well, you can just say you made a mistake. You were having, you were having a mental breakdown cause you were pregnant and that, saying you're, you're got it all wrong. But anyway, it doesn't matter. But if they, if I get found guilty, I think I'd do about two and a-half years just for the fuckin GBH.' On 26 November, there was another call when the offender was again asking for Ms Corben's help so he could get out of gaol as quickly as possible. Offender: 'Anyway, can't you go see if you can drop the charges?' Ms Corben: 'No. I can't. And you know what, if I do that again, guess what? FACS get involved. Everything I do, FACS know about. Everything that happens within court, now, everything else, FACS knows about'. Offender: 'Okay'. Ms Corben: 'You need to, un, like, I can't just escape this and stop all this from happening'. Offender: 'Well, when you get up on the - '. Ms Corben interrupted him and said: 'Maybe you should've really thought about how your actions from the beginning...' Offender: 'Yeah, I know'. Ms Corben: '…and stop trying to get out of it and making me feel guilty'. Offender: 'I'm not trying to make you feel guilty. I'm trying to get out so I can help you, but I can't get any help in here myself. I need to get out to get help. Just maybe when…you get up on the stand, say you can't remember.' Ms Corben: 'And then what? When FACS are sitting there listening, they know I remember. I told you. I'm not going to sit. I'm not risking my kids to get up there and fuckin lie for you again'. Offender: 'Yep, all right. No worries. All right. I gotta go'. 21 December 2018 in a call, the offender spoke about: [Offender:] 'Jamie doesn't turn up, or you and Jamie don't turn up, it'll be good if youse didn't'. Ms Corben: 'I know that' Offender: 'I know it, I know I don't deserve it, but please, babe, I don't want to miss my son'. In January, there was another call where he was saying to Ms Corben 'Just don't turn up to court and I'll be out a lot quicker, babe'. … 23 January, there was a further call. 24 January, another call. 21 March, there is another call. The offender is ongoing with his pressures on Ms Corben not to attend court, or to say that she does not remember and saying that there was so much going on. 28 March, there was another call. She was asking what she had to do, and he said, 'Yeah, just don't show up. I, I don't know. I can't tell you what to do. You got to do what you want to do'. Ms Corben: 'No, I know that. I know what I want to do, I'm just saying, I'm not, like, I can't get up there and just lie'. Offender: 'Yes…worry about that, I'm not worried about it. Don't worry about it'. In April, there was a call: Ms Corben: 'I told her that I'm not coming to court…' Offender: 'Yep'. Ms Corben: '…and she recorded that and she's going back to the DPP to ask their advice…and she said that it's not something that's gonna disappear. It's in the District Court, so um, you would, we will be filing the warrant, like the judge will do that for your arrest'. Offender: 'Yep' Ms Corben: 'And yeah, so…' Offender: 'All you have to do, is say you don't know, babe, you can't remember or whatever you want to say'."
At the time of the first two offences, the applicant was on conditional liberty in relation to previous domestic violence offences against the same victim.

Proceedings on sentence

A Crown bundle was tendered on sentence comprising the applicant's criminal and custodial history, agreed facts, as well as the facts for previous offences against his partner, Ms Corben. The Crown also tendered a Sentencing Assessment Report dated 15 January 2020 and a Justice Health Psychiatric Report of Dr Gordon Elliott dated 6 March 2020.
Counsel for the applicant tendered two letters from the applicant, a letter from Mr Mathew Hyde, an inmate at Parklea Correctional Centre, and a letter from the victim, Ms Corben. A medical report from Dr Michael Phipps (general practitioner for the applicant's father, Mr Michael Rootsey), four certificates of educational attainment for the applicant and case notes from the applicant's time in custody were also tendered on behalf of the applicant. The applicant did not give evidence in the proceedings on sentence.
The report of Dr Phipps stated that the applicant's father struggled with the activities of daily life and suffered from shortness of breath and chronic lower back pain. The medical history provided included pneumonia, empyema, chronic renal failure and chronic airway limitation. Dr Phipps further noted that the applicant was assisting his father with the activities of daily life. Counsel for the applicant submitted that the applicant would be "incentivised" not to re-offend by caring for his father upon his release.
It is to be noted that nowhere in that material was there any suggestion that the applicant's father had cancer.
Submissions on sentence addressed the applicant's substance abuse, mental health, relationship with the victim and an alleged sexual assault that occurred in custody.

Remarks on sentence

After finding the facts as set out above, the sentencing judge assessed the objective seriousness of the offences to be as follows: Count 1: "just below the mid-range of objective seriousness"; Count 2: "a serious example of a common assault"; Count 3: "well within the mid-range of objective seriousness" for such an offence.
The sentencing judge noted that it was an aggravating factor in relation to count 1 that the offence was committed in the victim's home. In relation to count 3, the sentencing judge noted that the acts constituting that offence took place over a period of more than five months and involved persistent pressure on the victim of a domestic violence offence.
Her Honour then turned to consider the applicant's subjective case. The applicant was 37 years of age at the time of the offences and 38 years of age at the date of sentence. The sentencing judge noted that the applicant had a lengthy criminal history including numerous offences of breaching ADVOs and other domestic violence matters. The applicant's first offence involving violence occurred when he was 20 years old.
In relation the applicant's mental health, the sentencing judge noted that the history obtained from the report of Dr Elliott included repeated presentations to mental health services for suicidal behaviour and a history of emotional volatility and problems with anger management. The sentencing judge noted Dr Elliott's finding that the applicant was not mentally ill at the time he was assessed but that his substance use disorders and borderline personality traits could be considered mental conditions. Her Honour also noted that the applicant had a "history of cannabis use consistent with moderate severity cannabis use disorder… [and a] stimulant use history … consistent with moderate severity stimulant use disorder". Dr Elliott opined that the applicant was at significant risk of relapsing into substance use at times of relationship conflict.
As for the applicant's need to be with his father, her Honour noted that the applicant was his father's carer as his father "has many health problems". Her Honour also noted that the applicant had told his doctor and his psychiatrist that he had been caring for his father and it was his intention upon his release from custody was to live with and care for his father.
The sentencing judge found special circumstances by reason of the applicant's need for supervision to ensure he addressed his substance use issues and received treatment for his personality disorder. Her Honour was not satisfied however that the applicant's mental health contributed to his offending in a material way, reduced his moral culpability, or made him an inappropriate vehicle for general deterrence.
As for the applicant's complaint of being recently sexually assaulted, her Honour stated: "The offender has claimed to be the victim of a sexual assault while in custody, in light of the observations by Dr Elliot, and in the absence of sworn evidence, I cannot accept this evidence."
In relation to remorse, her Honour found that the applicant took no responsibility for his actions and blamed his behaviour on the actions of the victim. It was further noted that the applicant minimised his behaviour and saw himself as the victim.
In the absence of sworn evidence from the applicant, the sentencing judge did not place weight on the applicant's expression of remorse in his letter to the Court.
Her Honour noted that the medical evidence recommended that the first priority for treatment should be to address the applicant's substance use problems. Her Honour further noted that "[t]he doctor thought he was at considerable risk for relapse into substance use at times of relationship conflict."
It was noted that the applicant's response to supervision in the past had been deemed unsatisfactory due to his failure to report and engage and that the applicant was assessed as a "medium to high risk of reoffending." Her Honour concluded: "I cannot be satisfied that the offender is unlikely to reoffend and I am not satisfied that the offender has good prospects of rehabilitation."
The sentencing judge found that it was a significant matter of aggravation that the applicant was on conditional liberty at the time of the first two offences. Her Honour did not accept that there should be concurrency with the applicant's pre-existing sentences, noting that the applicant received a "modest" non-parole period for a series of domestic violence offences and that these offences had occurred since 2017. The sentencing judge noted the need for some accumulation in the present sentences to reflect the separate nature of the offences and the overall criminality.

Ground 1

The applicant did not rely upon any fresh evidence under this ground. In his Notice of Application for Extension of Time he stated: "Compassionate grounds i.e. Father is very unwell, Tumors - cancer etc."
The only reference to this ground in the applicant's written submissions was the assertion: "Father very unwell".
At the hearing of this application the applicant submitted that he wanted "eight weeks to be put from the bottom sentence to the top sentence" so he could be released to look after his father. He stated, "all I need to do is to get out to look after my dad. And then when my dad passes, keep going the way I'm going". He later stated, "dad's deteriorated over the last two and a half years".
As for the fact that there was no mention in the material tendered at his proceedings on sentence about his father having cancer, he submitted: "… they had - they have this thing with no tumour. He just had an operation to have a tumour removed from his throat, so where the paperwork that they haven't showed you, that's the paperwork that's she's put aside because it was already there. He just had an operation on his throat. How is that not going to be down as - as not being no tumour?"

Ground 2

In his written submissions the applicant wrote: "Completed 4 out of 4 EQUIPS programs. Off all illegal drugs, currently stable on Buvidal injection. Completed TAFE Barista course. Numerous literacy - logistics programs Father very unwell - own mental health stable being drug free - children and mother are struggling in all aspects due to being away for so long being so far away. Have full-time employment the day I get out. Family and I aren't and won't be going back to the area where my crimes were committed. Old friends and drug associates are no longer an issue."
At the hearing, the applicant expanded upon these written submissions. He relied upon his remorse and the fact that he was "high on drugs" at the time. He stated that he had been doing a drug program in custody so that he would not be "going back to drugs" when released. He submitted that he is working seven days a week in custody and that his family needs him. He submitted that his partner needs him because she has three children to raise by herself and that his son is a "handful".
He complained that the sentencing judge should have believed his claim that he was sexually assaulted.
The applicant noted that he will be released in eight weeks' time which means he will have served 2 years and 11 months when, it was submitted, he should only have received 2 years and 3 months.
He complained that his first lawyers told him not to plead guilty in the Local Court although he had intended to. He stated that his lawyers had told him he would be sentenced to time served, being 18 months, and then "they slapped me with a three year nine months on the top."
He pointed out that he has never been forced to do any courses for domestic violence; he has volunteered to do them. He noted that he had a bad record but said that he had to start somewhere and that he did not know what else he could do to prove that he has changed.

Ground 1

The applicant's first ground of appeal did not, in terms, complain of any finding made by the sentencing judge in relation to her father's health. Rather, it was submitted that he should be released eight weeks early on compassionate grounds.
This is a Court of error. No error is disclosed in the manner in which the sentencing judge dealt with the health issues of the applicant's father.

Ground 2

A ground alleging manifest excess is a ground in which it is contended that, even if no patent error is established, the sentencing judge's discretion miscarried nonetheless and the sentence is "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. I am not satisfied that the aggregate sentence imposed on the applicant was "unreasonable" or "plainly unjust" for the following reasons.
The applicant was being sentenced for four offences, three on indictment. The public justice offence and the break and enter both carried a maximum penalty of 14 years imprisonment. The offences all arose in the context of a three-year relationship which was marred by repeated domestic violence incidents. The applicant breached orders put in place to protect his partner and also breached the conditions of two good behaviour bonds imposed for offences committed against the same partner. He breached these orders in the context of a long criminal history which disentitled him to any leniency. Her Honour was unable to make any favourable findings in relation to his prospects of rehabilitation.
The sentencing judge found that the applicant took no responsibility for his actions and blamed his behaviour on the actions of the victim. Her Honour went on to note that in fact the applicant saw himself as the victim. No error is disclosed in these findings; the applicant maintained this position in his submissions to this Court and minimised the seriousness of the assault offences.
The applicant relied upon the fact that he was not being sentenced for any offences of actual violence on Ms Corben in support of his contention that his sentence was too high. The difficulty with this submission is that it was the public justice offence in relation to which the highest indicative sentence was noted. That was a very serious offence. The applicant's relentless badgering and needling of his former partner to force her to change her evidence, including suggestions as to what her explanation for doing so should be, constitute serious conduct.
As for count 1, Ms Corben had the right to refuse the applicant access to her home. The applicant failed to grasp this. In Yaman v R [2020] NSWCCA 239 Wilson J, with whom Fullerton and Ierace JJ agreed, observed the following in the context of the need for general deterrence in such cases [131]: "Offences committed by (mostly) men who, like the applicant, refuse to accept that a partner or former partner is entitled to a life of her own choosing, must be dealt with sternly by the courts, to mark society's strong disapprobation of such conduct, and to reinforce the right of women to live unmolested by a former partner. Offences involving domestic violence are frequently committed, and the criminal justice system must play a part in protecting those who have been or may be victims of it."
Given all of these factors it could not be said that the aggregate sentence imposed on the applicant was "unreasonable" or "plainly unjust".
I would propose the following orders: 1. Extension of time is granted. 2. Leave to appeal is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2021

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