The offender was committed for sentence on 16 March 2016 from Wagga Wagga Local Court. He is to be sentenced for two offences:
1. Take/detain for advantage - pursuant to s 86(1)(b) of the Crimes Act 1900, for which the maximum penalty is 14 years imprisonment.
2. Intimidation - pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 ("C(DPV)A"), for which the maximum penalty is 5 years imprisonment.
The offender has asked that two matters be taken into account on a Form 1. They are as follows:
1. Custody of knife in a public place - pursuant to s 11C of the Summary Offences Act (1988) (NSW). This offence carries a maximum penalty of 2 years imprisonment.
2. Destroy or damage property - pursuant to s 195(1)(a) of the Crimes Act. The offence carries a maximum penalty of 5 years imprisonment.
[2]
Circumstances of the offending
As at 7 November 2015, the offender and the victim had been in a domestic relationship for one year and five months. They had one child together. During that day the offender was at work and the victim sent him a large number of text messages, and made a large number of telephone calls to him, as she believed he had been unfaithful to her.
At 8.15pm that evening, the offender attended the victim's residence in Tolland. He walked through the house to a shed where he obtained possession of two hunting knives. One was contained in a brown leather sheath and had a wooden handle, whilst the other was contained within a plastic yellow sheath, and had a blue handle. Both knives had blades that were approximately 20cm in length.
The offender proceeded back into the house where an argument took place between himself and the victim, and the victim's mother. In addition to the victim's mother, two children were in the premises.
The offender grabbed the victim by placing both hands around her neck, and dragged her towards the front door. Her mother intervened, and both women attempted to push him towards the front door to get him out of the house.
The offender raised his right hand, in which he held the blue-handled knife, above his shoulder, with the point of the knife facing directly towards the victim's mother. Upon seeing the knife pointed at her, the victim's mother backed away in fear of being stabbed. That is the conduct that constitutes the intimidation offence pursuant to s 13 of the C(DPV)A.
The offender then dragged the victim from the premises onto the driveway, where her vehicle was parked. He pushed her into the driver's side door of the vehicle and she collided with the side mirror, breaking it off. This conduct is the subject of the Form 1 charge of destroy and damage property.
The offender yelled at the victim to get into the car and she got into the passenger seat. The offender threw the two knives into the passenger side of the vehicle and then drove the vehicle towards Ashmont.
The victim's mother contacted the police immediately, and police observed the vehicle and pulled it over. They observed the victim in the passenger seat crying and cowering. The police conducted a search of the vehicle and located the two knives. This is the conduct behind the Form 1 matter of custody of knife in a public place.
[3]
The sentence hearing
The sentence hearing took place on Tuesday 26 April 2016. The Crown bundle (Ex A) included the offender's criminal history. On 15 April 2013, he had been convicted of two offences of stalk/intimidate with intend fear or physical harm, for which he was sentenced by way of two s 9 Bonds to be of good behaviour for 12 months and 15 months respectively. On the same date, he was sentenced for an offence of assault occasioning actual bodily harm, to which he was sentenced by way of s 9 Bond for a period of 18 months.
On the same date, the offender was convicted of an offence of destroy or damage property and fined $330.
On 5 September 2014, the offender was convicted of three further offences which occurred on 24 May 2014. The offences were:
1. Assault occasioning actual bodily harm, for which he was sentenced to a Bond to be of good behaviour pursuant to s 9 for 18 months.
2. Contravene prohibition/restriction in AVO, for which he was placed on a s 9 Bond for 18 months.
3. Stalk/intimidate, intend fear physical harm, for which he was placed on a Bond pursuant to s 9 for 12 months.
On the same date, namely, 5 September 2014, the offender was dealt with by way of call-up in respect of the previous Bonds for the offences of stalk/intimidate (s 9 Bond for 15 months), and assault occasioning actual bodily harm (s 9 Bond for 18 months).
On the same date, namely, 5 September 2014, the offender was sentenced in respect of the following offences which occurred on 12 July 2014, namely:
1. Possess unauthorised firearm - non-parole period of 4 months and total term of 8 months imprisonment commencing 24 July 2014.
2. Common assault - 4 months imprisonment commencing 24 July 2014.
3. Contravene prohibition/restriction in AVO - 4 months imprisonment commencing 24 July 2014.
4. Stalk/intimidate intend fear of physical harm - 4 months imprisonment commencing 24 July 2014.
5. Possess ammunition without holding licence - s 9 Bond to be of good behaviour for 15 months.
The offence was therefore committed whilst the offender was subject to the s 9 Bonds which were imposed on 5 September 2014 for a period of 18 months, and the s 9 Bond imposed on the same date for 15 months.
Exhibit A contained the pre-sentence report under the hand of Mr Adam George dated 13 April 2016. The report noted his prior management by Community Corrections in relation to the preparation of a pre-sentence report for his appearance at Wagga Wagga Local Court on 5 September 2014. In respect of the good behaviour Bonds imposed on him, case plan strategies focussed on domestic violence, anger management and mental health treatment. The offender completed an anger management program with CentreCare and he complied with a mental health assessment and commenced treatment by way of prescription medication.
The report noted that the current matter places the offender in breach of three 18 months s 9 Bonds and two 15 month s 9 Bonds which were imposed for offences of a similar nature.
The report noted that during the offender's period of supervision he had a poor attitude to compliance with his mental health treatment. He had two children from a previous relationship, with whom he has no contact, and he has a biological child and one step-son with the current victim. At the time of his offending he was employed full time at the Visy Mill in Tumut.
Under the heading "Attitude to Offending", the author noted that the offender disagreed with the police facts and appeared to lack insight into the effects of his behaviour, and the potential impact towards the victim and wider community. He claimed to have stable accommodation and employment prior to entering custody, which will be available to him once he is released from custody. It was the opinion of the author of the report that the offender would benefit from a period of supervision by Community Corrections, with case management strategies to include an appropriate domestic violence program, and monitoring compliance with his mental health treatment. He was unsuitable for a Community Service order.
The offender tendered a report of Dr Rafe Pulley, dated 25 April 2016. That report recorded that he had been diagnosed with attention deficit/hyperactivity disorder (ADHD) and severe depression and anxiety when he was young. He described a history of social anxiety from age 10, and he had suffered from excessive worry and fear of negative social evaluation. He felt anxiety in crowds and sought to manage his anxiety by avoiding situations including crowds, shops or meeting new people.
The offender's ADHD had been treated with methylphenidate, a stimulant medication, for many years. He stopped taking the medication at age 13, but continued to suffer ongoing symptoms of ADHD. This had impacted upon his employment, relationships and self-confidence. He had had 15-20 jobs since the age of 18. He had impulsively ended relationships and frequently found himself arguing with his partners. He described being irritable and quick to anger in relationships, with highly reactive mood. He had been commenced on anti-depressant medication in gaol which he found helpful in reducing his anxiety and alleviating his depression.
Dr Pulley made a diagnosis as follows:
1. Attention Deficit Hyperactivity Disorder.
2. Social Anxiety Disorder.
3. Major Depressive Disorder (episodic, non-melancholic, currently in remission).
Dr Pulley suggested the following treatment:
1. A trial of stimulant medications, and SSRI medication.
2. Appropriate treatment for his ADHD once he returns to the community.
3. Prescription of anti-depressant medication in prison.
4. Further psychological work relating to management of his anxiety, once his condition is stabilised on a medication regime for his ADHD.
5. Upon release, the offender should establish a therapeutic relationship with a general practitioner and seek referral to local mental health services, or a private psychiatrist.
[4]
The offender's evidence
The offender gave evidence that he was still in a relationship with the victim. She had been visiting him every second weekend whilst he was in custody, but was no longer able to do so, and he rang her twice per day. He had told both Dr Pulley and the author of the pre-sentence report the truth. He had also previously had issues with the victim's mother, however, those issues had been resolved.
He was asked why he fetched the knives, and said it was "A lapse of judgment really".
When asked why he had committed the offence of taking and detaining the victim, and had manhandled her and taken off with her in the car, he said, "I wanted to talk to her, to get her away from (her mother)".
When asked how he felt about the offending, he said he was "disgusted with himself" and "that it shouldn't have happened that way".
Following his previous conviction for domestic violence, the offender had done an anger management course through Centre Care. He gave evidence that he had learnt a little bit, but not as much as he would have liked. He intended to resume his relationship with the victim upon his release from custody and would live with her aunt at first. He said, in future, if they argued, he would walk away.
The offender said he would like some professional assistance with his anger management issues, and was prepared to do a course and/or have counselling. Since being in custody, he had been prescribed Avanza, which had made his moods more stable, and was helping him to control himself. In the past he had not treated his mental health seriously, but he now realised that he needed assistance and that he will in future go to a GP for treatment.
Since leaving Junee High School in year 12, he had always worked, except for a period of eight months. He intended to keep working because he could not otherwise support his family.
In cross-examination, the offender was asked whether he was angry at the time of the offending, and he said he was upset. It was put to him that he was angry, and that the reason for the knives was that he wanted to frighten her, which he denied. He conceded that he had used the knife to scare the victim's mother.
It was put to the offender that in the pre-sentence report under the heading "Attitude to Offending", he had placed blame on the victim because of the amount of phone calls and text messages he had received. He agreed that his reaction was way out of proportion, but said, "If I didn't go there, it would not have happened". He agreed that there was no reason to resort to violence and that there were children in the house.
By leave, the offender gave further evidence that he intended to keep the victim, once they were in the car, for between 20 and 30 minutes, and then drop her home. He then intended to leave for a few days. He said that her mother was drinking alcohol at the time.
In re-examination he said that he agreed with most of the facts, however, he had no memory of grabbing the victim around the neck, and as it was alleged that he had a knife in both hands, he had difficulty reconciling how he could have done that.
[5]
Crown submissions
The Crown submitted that an aggravating feature of the offending here was that it occurred in the home of the victim. There was also a threatened use of weapons, namely the knives, and in respect of offence pursuant to s 86(1)(b), there had been the actual use of violence. Further, the offending had occurred in the presence of two children.
The offender had been on conditional liberty at the time of the offending by virtue of the s 9 Bonds imposed for a period of 18 months on 5 September 2014.
The Crown submitted that the offender was entitled to a utilitarian discount on sentence of 25% for his early plea of guilty. Further, it was a mitigating circumstance that it was not a planned or organised activity. However, the objective seriousness of both offences, together with the criminal record of the offender, meant that a full time custodial sentence should be imposed.
[6]
Offender's submissions
Learned counsel for the offender conceded that in respect of the s 86 offence, that the s 5 threshold was crossed, namely, that a term of imprisonment should be imposed. However, the offending in respect of all offences arose out of one criminal episode, and the offence pursuant to s 13(1) of the C(DPV)A would ordinarily be dealt with in the Local Court.
Counsel for the offender agreed with the aggravating features advocated by the Crown and also the mitigating features. However, he submitted that there were two further mitigating features to take into account. First, the offender had shown remorse, and secondly, pursuant to s 21A(3)(c), there was an element of provocation which explained how the offending came about.
It was conceded that the pre-sentence report was equivocal on the question of remorse, however, here the offender had taken responsibility for his offending. He was a low to medium risk of reoffending and he had acknowledged that he needed to address his mental health problems. He had no drug and alcohol issues and had a good work record. He was also now taking Avanza, an anti-depressant, with good effect and with some assistance, he had increasing prospects of rehabilitation and a low risk of reoffending upon his return to the community.
On the question of objective seriousness of the offending pursuant to s 86, it was submitted that the section related to a wide range of conduct. In R v Boney [2008] NSWCCA 165 at [112], the Court of Criminal Appeal held that the offence could cover holding a person for ransom, or for an extended period of time over hours or days, or weeks and months. Here, the detention was for a short period of time, and in fact, a matter of minutes before the police intervened. In any event, the offender only intended to detain the victim for half an hour. The purpose of him manhandling her into the car was merely to talk to her, and it was therefore submitted that the offending was below the mid-range of objective seriousness for an offence pursuant to s 86, and at the lower end of the range.
It was submitted that, on the basis of Dr Pulley's opinion, that there was a connection between the offender's mental illness, namely ADHD, and his offending behaviour, there was a diminishing importance of general deterrence and specific deterrence in the sentencing process. It was submitted that he now has insight into his mental health issues, and he understands the need to deal with them.
It was submitted that the court should find special circumstances, given his mental health issues, and that any term of imprisonment should not be crushing in the circumstances, but the ratio should be varied so that he is supervised for a longer period of time to ensure his return to the community is uneventful.
Finally, it was submitted that in accordance with principles of totality, despite there being two victims in the offending, the sentence should be wholly concurrent because it all arose from the same course of conduct and took place over a very short period of time. The second offence was incidental to the offence pursuant to s 86.
[7]
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
I accept the offender's submissions that the offending pursuant to s 86(1)(b) is below the mid-range of objective seriousness for the offence, which does cover a wide range of criminal behaviour, however, it was still serious criminal behaviour.
I have had regard to the maximum penalty of 14 years imprisonment in respect of the s 86 offence, and 5 years in respect of the offence pursuant to s 13, as guideposts in the sentencing process. I have also taken into account the two matters on the Form 1.
The offender is entitled to a 25% utilitarian discount on sentence for his early plea of guilty. Whilst he has not demonstrated a great deal of remorse for his offending, he has accepted responsibility for it.
The objective seriousness of the offending pursuant to s 13 was also just below mid-range, but of a serious nature. It involved the threatening use of a weapon, however, it was for a very short duration, and the victim's mother retreated from the situation. I have taken into account the aggravating features agreed between the parties, namely, that there was a threatened use of weapons in respect of the s 13 matter, actual use of violence in respect of the take and detain matter, and that the behaviour occurred in the presence of two children and whilst the offender was on conditional liberty pursuant to the s 9 Bonds.
Whilst there was an element of provocation which may explain how the offending came about, that does not, in my view, mitigate the offending in this case.
I make a finding of special circumstances pursuant to s 44(2) in that the offender's long-standing mental health issues require treatment and monitoring, and he requires considerable assistance and rehabilitation in respect of his anger management issues.
While Dr Pulley draws a connection between his mental illness and the offending criminal behaviour, that does not diminish, by any great extent, the need for general deterrence and specific deterrence in respect of both offences.
Further, the offender's criminal record disentitles him to any leniency whatsoever. He has a record for similar types of offences on at least three occasions in the last five years. He has had the benefit of having conditional liberty on a number of occasions and has offended whilst on conditional liberty.
I accept the offender's submission that the totality principle in sentencing requires concurrency of sentence where all offences arise from the same single course of criminal conduct, where they are committed within a relatively short period of time, and are an incident or incidental to the other offence - see R v Pearce (1998) 194 CLR 610 at [45]. There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue of one of totality - see R v Cahyadi (2007) 168 ACrimR 41, and R v Caldwell [2016] NSWCCA 55.
In respect of the first offence pursuant to s 86 of the Crimes Act 1900, I intend to sentence the offender to a non-parole period of 18 months imprisonment, to commence on 7 November 2015. There will be a further period of imprisonment of 9 months, and the total term will be 2 years and 3 months.
In respect of the offence pursuant to s 13(1) of the C(DPV) Act, I intend to sentence the offender to a period of imprisonment of 6 months, commencing on 7 November 2015, to be served concurrently with the previous sentence.
I have certified that I have taken into account the matters on the Form 1.
[8]
Orders
I make the following orders:
1. You are convicted of both charges pursuant to s 86 of the Crimes Act and s 13(1) of the C(DPV) Act.
2. In respect of the offence pursuant to s 86, I sentence you to a non-parole period of 18 months to commence on 7 November 2015 and to expire on 6 May 2017.
3. The balance of the term of imprisonment will be 9 months imprisonment from 7 May 2017 to 6 February 2018. The total term of imprisonment will be 2 years and 3 months.
4. You will be eligible for parole on 6 May 2017.
5. In respect of the offence pursuant to s 13(1) of the C(DPV)A, I sentence you to a period of imprisonment of 6 months, commencing on 7 November 2015, to be served concurrently with the previous sentence.
6. I direct that pursuant to s 12 of C(DPV) Act, the conviction, pursuant to s 13, is a domestic violence offence.
7. In respect of the breach of each of the S 9 Bonds referred to above, I order pursuant to s 98(2)(a) of the C(SP)A that no further action be taken in respect of the failure to comply with each bond.
[9]
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Decision last updated: 10 May 2016