R v Bridge

The facts for sentence

1. For the purpose of sentencing the offender, I find the following facts proved beyond reasonable doubt.
2. As at 17 December 2018, Beau Threadgate (the victim), 24 years of age, lived in Charmhaven with his partner Jayme Mace. She was 23 years old and 21 weeks pregnant. They also lived with their daughter, who was 3 years of age. He owned three dogs.
3. Jason Snape and his partner, Alicia, lived next door. Whilst the victim and Jason Snape had initially been on reasonable terms as neighbours, in the weeks leading up to 17 December 2018, there had been some issues between the victim and Jason Snape, in relation to their dogs. The victim was told that one of Jason Snape's dogs had been injured by one of his dogs. As a result of this incident, one of the victim's dogs was put down.
4. Thereafter, the victim did not speak to his neighbours and ultimately received a lease termination notice from the real estate agent. He needed to vacate the premises by 18 December 2018.

The events of 17 December 2018

1. On 17 December 2018, the victim and Jayme Mace were at the premises in Charmhaven to move out. Kevin Whitty, Jayme Mace's grandfather, was present to assist them with the move. He was going to drive the truck to be used to move household items and also mow lawns at the property.
2. At one stage whilst Mr Whitty was walking to the garage of the property, he saw two men, this offender and Jason Snape, enter the property. This offender began to abuse Mr Whitty, saying, "Your fucking dog killed my dog. I'm going to kill your dogs." Jason Snape also said the same thing to Mr Whitty, whilst he was standing near his face.
3. Mr Whitty told the two men that there were no dogs at the house. Jason Snape then grabbed Mr Whitty under the armpits and lifted him up and shoved him backwards up against a garbage bin (s 166 matter - common assault). This offender then grabbed the screen door of the property and opened it.
4. Both this offender and Mr Snape went inside. This offender then ran up the stairs, pushing aside Jayme Mace who was on the stairway at the time. He then pushed the victim into the toilet and put his knees on the victim's chest and started punching him in the face.
5. Whilst the victim in his evidence‑in‑chief at trial said he was punched about ten times, he agreed in cross‑examination that in his police statement, he had said he was hit about four times. In such circumstances, I am satisfied beyond reasonable doubt that the victim was punched by this offender at least four times.
6. Mr Whitty began yelling, "That's enough." Ms Mace was also screaming. The victim estimated the punching continued for just under a minute before the offender went down the stairs and left the premises.
7. The victim described his injuries as severe bruising on his back where he had hit the toilet bowl and bruising to his face, being his left cheekbone area and swollen around his eyes, together with a split to his lower left lip. He also described that he was bleeding from his nose and his lip. Exhibits N and O were photographs taken of the victim tendered in the trial.
8. On 28 December 2018, the victim identified this offender from a video photo identification procedure. The offender was arrested on 10 January 2019.
9. Having regard to those facts that I find establish beyond reasonable doubt, I also find the offender guilty of one count of common assault (s 166 certificate matter), in circumstances where I am satisfied he was acting together with Jason Snape and was present and ready and willing to assist his co‑offender if called upon to do so at the time Mr Whitty was assaulted by Mr Snape.
10. Those facts that I have found proved beyond reasonable doubt, clearly disclose serious subjective criminality. The victim was violently assaulted in his own home. I have no doubt it would have been very distressing not only for the victim, but also other persons present at the time. Both general and specific deterrence are important considerations on sentence. Both the offender and the community must understand that Courts will not tolerate violence in homes and stern sentences will be imposed.
11. In Haines v The Queen [2012] NSWCCA 238, Bellew J observed as follows at [63]: "…members of the community are entitled to assume that they will be safe in the confines of their own home. Persons whose criminal offending interferes with those justifiable assumptions of safety must expect the imposition of condign punishment."

Assessment of objective seriousness

1. In assessing the objective seriousness of Count 1 on the indictment, I have taken into account the following factors: 1. The manner of entry into the premises, namely through a closed front door. 2. The degree of violence used being multiple punches to the face. 3. The serious indictable offence committed, namely intimidation, recognising that this serious indictable offence has a maximum prescribed penalty of 5 years imprisonment. 4. The circumstance of aggravation relied upon by the Crown, namely that there were persons present in the premises. The Crown also relies upon the following additional statutory aggravating factors, namely that the alleged offender was in company, that corporal violence was used and that the offender inflicted actual bodily harm upon the victim. I have taken into account each of those aggravating factors.
2. It was submitted on behalf of the Crown that the objective seriousness was at the middle of the range. It was submitted on behalf of the offender that the objective seriousness was below the middle of the range.
3. Having regard to the above factors, I assess the objective seriousness as being below the middle of the range.
4. In assessing the objective seriousness of the offence of common assault, I have taken into account that there was no physical contact between this offender and Mr Whitty, rather he was part of a joint criminal enterprise with Mr Snape. I regard the objective seriousness of this offence as being at the lowest level.

Aggravating factors

1. The Crown relied upon one aggravating factor, namely that the offence was committed in the home of the victim. I accept that aggravating factor is established.

No Victim Impact Statement

1. There was no Victim Impact Statement from the victim in relation to the matter. Notwithstanding the absence of a Victim Impact Statement, I accept that this would have been a highly distressing incident for the victim.
2. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

1. Mr Bridge is now 33 years of age.
2. He has a limited criminal history commencing in 2009 when he was dealt with for an offence of assault police. He was fined.
3. In 2016, he was dealt with for offences of drive whilst suspended and mid‑range PCA. In respect of each of those matters, he was fined.
4. In 2021, as I have already indicated, he was dealt with before the Sydney District Court for a Commonwealth offence of possess commercial quantity of a border controlled drug, reasonably suspected of being unlawfully imported. As I indicated, the sentence for that offence was 6 years with a non‑parole period of 3 years and 3 months.
5. At the time of the offending for which the offender is being sentenced today, the offender had a very limited criminal history. I am satisfied that he would have been entitled to some leniency on sentence.
6. The following material was tendered on behalf of the offender during the sentence proceedings: 1. Exhibit 1 - Report of Dr Olav Nielssen, psychiatrist, dated 12 March 2021; 2. Exhibit 2 - Affidavit of Vicky Cook, the offender's mother, dated 19 April 2021; 3. Exhibit 3 - Letter under the hand of Jennifer Mooney, the offender's sister, dated 13 April 2021; 4. Exhibit 4 - Letter under the hand of Bianca Denison, the offender's partner, dated 15 April 2021; 5. Exhibit 5 - Letter under the hand of Steven Decent, a friend of the offender, dated 6 April 2021; 6. Exhibit 6 - Letter under the hand of Carl Travers, a friend of the offender, dated 8 April 2021; 7. Exhibit 7 - New South Wales Corrective Services records; 8. Exhibit 8 - Justice Health Records; 9. Exhibit 9 - Extracts of medical records in relation to the offender; 10. Exhibit 10 - Department of Veteran Affairs documents in relation to the offender; 11. Exhibit 11 - Konekt Workcare extracts; 12. Exhibit 12 - Remand Addictions Completion certificate; and 13. Exhibit 13 - Defence written submissions.
7. The offender did not give evidence during the sentence proceedings. The offender's background is outlined in the Affidavit of his mother, Vicky Colleen Cook, as well as a report of Dr Olav Nielssen.
8. Dr Nielssen assessed the offender on 23 March 2021 via audio visual link. He had previously interviewed the offender in relation to a separate offence on 23 June 2020 and 25 November 2020.
9. The offender provided the following information to Dr Nielssen in relation to his background. He said he was raised on the Central Coast. He is the third child born to his parents and has three siblings, an older sister and brother, as well as a younger sister. His father was a mechanic and truck driver, while his mother stayed at home to raise himself and his siblings.
10. His parents separated when he was ten years of age and the offender lived with his mother, younger sister and older sister in rental accommodation and moved frequently. His mother reported that the offender's father did not provide adequate financial support for the children and accordingly she described that, "we had to live very tight." There was a house fire in their home in Charmhaven in which the offender, his mother and siblings were living at the time and they were forced to move back into the marital home.
11. The offender's mother reported that she moved the family to Townsville to live with her new partner, Terry when the offender was 13 or 14 years of age. The offender became very close to his stepfather, who became a father figure in his life. His stepfather worked at the airport and was diagnosed with bowel cancer. Tragically, he passed away shortly after the offender had joined the Navy.

Education

1. The offender attended St Cecilia's Catholic school until 10 years of age when he was transferred to Camberwell Public School. He then attended North Lakes Primary School. The offender attended Lake Munmorah High School before moving to Townsville and attending school there.
2. He left school after completing Year 11 and joined the Navy.

Service in the Navy

1. The offender reported that he served in the Navy for 10 years between 2007 and 2017 and trained as a clearance diver. He then worked as an instructor. He also joined the tactical assault group and had postings in New Guinea and Noumea, undertaking explosive ordinance disposal.
2. The offender reported to Dr Nielssen that: "…he was injured in an accidental explosion that left him with both physical disability and emotional symptoms, and he said that he was medically discharged from the Navy in 2017 on both physical and psychological grounds."
3. The medical records (Exhibit 9) confirmed the offender's history of injuries.
4. Further documents from the Department of Veterans Affairs (Exhibit 10) confirm that as at 10 May 2019, the department has accepted liability for eleven conditions as follows: sexual dysfunction; major depressive disorder; anxiety disorder; alcohol use disorder; tinnitus; right testicular torsion; recurrent dislocation of the right shoulder; lateral tear of the right shoulder level; lateral tear of the left shoulder; complex sprain of the left ankle with instability; and articular cartilage injury to the left glenoid.
5. There were two further conditions in respect of which liability was yet to be determined, namely a fracture of the right wrist and an unexpected consequence of a medical procedure.
6. In relation to the emotional effects of his time spent in the Navy, the offender stated: "I struggle from night to night…I struggle with things that have happened in the past…training wise…military and operational wise."
7. He reported that he was affected by observing mishaps affecting other people during his time in the Navy, as well as his own injuries, and said, "You don't have a big career span as a clearance diver."
8. It is clear to the Court that the offender's military service for his country has come at a very significant personal cost, both physically and emotionally.

Medical history

1. The offender's mother reported that during his time in the Navy, the offender suffered from multiple physical conditions. She described two shoulder reconstructions, multiple hernias, a broken tailbone and a ruptured Achilles tendon for which a screw was inserted in his ankle.

Psychiatric history

1. The offender reported that he was prescribed antidepressant medication for the first time in 2012. After discharge from the Navy in 2017, his psychiatric care was undertaken by Dr Marsh, apart from three appointments which he had with Dr Hardwick, a psychiatrist.
2. The offender has been diagnosed in the past by Dr Hardwick as suffering from major depression, anxiety disorder and alcohol abuse disorder. He has been referred to the military rehabilitation service and prescribed antidepressants and antipsychotic medication. He reported ongoing nightmares on themes related to his service and diving accidents. He experienced panic attacks with no obvious trigger.
3. The offender confirmed that he had seen a psychologist while he had been in custody on two occasions. He reported that he did not find these consultations helpful. He did indicate that he was comforted by visits from his family and friends whilst he has been in custody up until the commencement of the COVID‑19 pandemic. He reported he had not seen his family in nine months.

Substance use history

1. The offender reported occasional binge drinking as part of Navy culture. However, his intake increased following his medical discharge in 2017. He reported consuming up to ten drinks per day and "becoming irritable and angry when affected by alcohol". The offender also reported occasional cocaine use and use of anabolic steroids to train and to improve his recovery from physical injuries however, this ceased once he left the Navy.

Opinion of Dr Nielssen

1. In the opinion of Dr Nielssen, the offender meets the diagnostic criteria for depressive illness, anxiety disorder, panic disorder and post-traumatic stress disorder, as well as substance use disorder in remission.
2. Dr Nielssen noted that: "The psychological complications of drug use almost certainly include the exacerbation of underlying symptoms of anxiety and depression, despite Mr Bridge's account of using alcohol as a way of alleviating psychological symptoms, in particular, post-traumatic anxiety."
3. Dr Nielssen further stated as follows: "The main factors contributing to his condition would appear to be the effect of traumatic events during his military career, the circumstances of his leaving the military, the effects of ongoing substance use, and his current situation."
4. In relation to future treatment, Dr Nielssen was of the opinion that the offender required: "…more intensive treatment for depression, both in custody in the form of a review of his medication regime, and appropriate psychiatric and psychological support in the period after his release."
5. He noted that the offender: "…has a high number of risk factors for eventual suicide, and referral to the Veteran's Mental Health Services prior to release is recommended."
6. Dr Nielssen also recommended that the offender participate in substance related counselling, both in custody and after his release. I note that the offender, whilst in custody in late 2020 has completed the Remand Addictions Program.

Other material tendered on behalf of the offender

1. Exhibit 3 is a letter of support written by the offender's older sister, Jennifer Mooney. She describes a close relationship between herself and the offender. She describes him as a "wonderful and cherished part of our family life," as well as the godfather of her child. She noted that the offender has an enormous support network of immediate and extended family and affirmed her desire to support the offender upon his release from custody.
2. Exhibit 4 is a letter of support written by the offender's partner, Bianca Denison. They have been together for three years and plan to buy a house, settle down and have children together. It is clear to the Court that she is very supportive of the offender and intends to continue to support him upon his release from custody.
3. Exhibit 5 is a letter of support written by the offender's friend Steven Decent. Mr Decent has known the offender since 2006, when they served in the Navy together. Mr Decent was also a clearance diver and was an instructor when the offender started his clearance diving training. He described the "demanding and exacting" nature of the offender's work in the Navy and noted that the offender performed exceptionally well.
4. The offender also worked for Mr Decent doing marketing and promotional work for his fitness business in Sydney. Mr Decent described the offender as a loving son to his mother and siblings and also a friend that can be counted upon.
5. Exhibit 6 is a letter of support written by the offender's friend Carl Travers. Mr Travers also served in the defence forces. He worked as a clearance diver before undertaking other roles in the defence force. He met the offender through mutual military friends.
6. Mr Travers has known the offender since 2009 and described the offender as an "easy going, generous, hardworking man." He noted the offender's great disappointment at having to leave his military career and the stress that he suffered working out his future outside the military. He also noted the difficult nature of work as a clearance diver in the Navy and stated that the offender's good service is a testimony to his good character.
7. Exhibit 7 comprises Corrective Services medical records in relation to the offender.
8. Exhibit 8 comprises Justice Health records relating to the offender and confirm the offender's reported medical and psychiatric conditions, including depression, PTSD and hernias.
9. Exhibit 9 comprises extracts of medical records relating to the offender, and these records begin from February 2018 and relate to the offender's history of depression and anxiety. They confirm that he has been prescribed antidepressant and antipsychotic medication in the past and he has a history of panic attacks.
10. Exhibit 10 comprises records from the Department of Veteran Affairs relating to the offender's liability claims for various disorders to which I have previously referred.

Submissions of the parties

1. The Crown relied upon comprehensive written submissions, supplemented by oral submissions. The ultimate submission of the Crown was that a full‑time custodial sentence was appropriate for the offence on indictment. It was conceded that a non‑custodial sentence was appropriate for the offence of common assault on the s 166 certificate.
2. The Crown submitted that the sentence for the count on the indictment should be significantly cumulative on the sentence imposed for the unrelated Commonwealth offences to reflect the separate and distinct criminality involved.
3. Mr Moutasallem of Counsel, on behalf of the offender, also relied upon comprehensive written submissions, supplemented by oral submissions. It was submitted on behalf of the offender that the Court would take into account the following factors in determining the appropriate sentence: 1. The limited criminal history of the offender prior to the commission of the offence; 2. That the offender suffers from a number of significant physical and mental health issues as a consequence of his service in the navy and has recently been diagnosed with mental health conditions which, it was submitted are relevant on two bases, firstly to reduce his moral culpability, and secondly, on the basis that his time in custody will be more onerous; 3. That the offender has good prospects of rehabilitation, having regard to his age, his lack of similar prior convictions and his ongoing family support. Further, there is also support through Veterans Affairs and he has engaged in courses whilst in custody; 4. That the Court should take into account that some of these offender's time in custody has been more onerous, given the COVID-19 pandemic, which commenced in March 2020. It was conceded on behalf of the offender that there is no direct parity to Mr Snape in relation to the principal offence. However, it was submitted that parity still had a role to play.

Relevance of the offender's mental health

1. Having regard to the available evidence, I am satisfied that the offender has had longstanding mental health issues and has been diagnosed with depressive illness, anxiety disorder, panic disorder and post‑traumatic stress disorder. The principles in relation to the relevance of an offender's mental health on sentence are well‑established (see Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; NSWCCA 194).
2. The evidence before the Court in relation to the offender's mental health proximate to the time of the offending in December 2018 is as follows. The offender had been referred to Dr Hardwick, psychiatrist, by his GP on 20 September 2018, that is, three months before the date of the offending.
3. On 19 October 2018, D Hardwick wrote to the offender's GP, advising that the offender reported "struggling" with civilian life since his discharge from the military.
4. Dr Hardwick was of the opinion that the offender had ongoing anxiety and depressive symptoms, noting that his alcohol abuse was the most urgent issue to be addressed.
5. On 4 February 2019, that is one and a half months after the date of the current offending, Dr Marsh provided the following opinion: "Mr Jarrad Bridge has severe depression and post-traumatic stress disorder which he has been struggling to control with multiple medications which he is fully compliant with and psychology counselling for the past 3 years. He is also under the care of Dr Lee Hardwick, a psychiatrist in Sydney, and she has arranged for inpatient admission for his treatment soon and he is on the waiting list. His mental health conditions are injuries sustained by active overseas service in the Australian Defence Force and make some of his reactions to emotionally triggering events take the form of uncontrollable 'blackouts' of rage when provoked to a sufficient high threshold or a past stressful/emotional event flashback is triggered."
6. Having regard to this evidence, I am satisfied that at the time of the offending, the offender's cognitive functioning would have been impaired, resulting in a reduction in his moral culpability. I am further satisfied that his mental health conditions will make custody more onerous. In such circumstances, I propose to moderate the otherwise appropriate sentence.

Parity

1. I am not satisfied there is any direct parity to the co-offender, Mr Snape, for the principal offence in circumstances where Mr Snape was dealt with for the less serious offence of enter building with intent. I accept it is necessary to consider parity in relation to the offence of common assault.
2. Mr Snape was sentenced in the Local Court to a community correction order for 12 months with 100 hours community service work in respect of that offence.

Totality

1. In circumstances where the offender is currently serving a lengthy term of imprisonment, the Court is required to consider the question of totality and determine whether the sentence imposed today should be concurrent, cumulative or partly cumulative.
2. The operation of the principle of totality was explained by the Court of Criminal Appeal in R v MAK, R v MSK (2006) 167 A Crim R 159; NSWCCA 381 at [15] to [18] as follows: "Whenever the Court sentences an offender for multiple offences, including when there are different victims, or sentences an offender who is already serving a sentence after conviction for other offences, it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: … the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences." The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."
3. In determining the question of totality, I have had regard to the objective criminality of the offence for which the offender is currently serving a lengthy sentence. Included in the Crown material on sentence was the remarks on sentence of Judge Zahra, in respect of the offence of possess commercial quantity of border controlled drug, reasonably suspected of being unlawfully imported.
4. Stated briefly, the facts of that offending were that 79.12 kilograms of methylamphetamine had been imported into Australia from the US via China. The 79.12 kilograms was found inside an industrial mixer.
5. Judge Zahra found that this offender assisted in the movement of the drugs, in return for a modest financial reward. He found that the offender's role was limited to the provision of manual labour. However, this was a necessary role in the enterprise, which had as its aim, the dissemination of imported drugs into Australia.
6. Having considered the objective seriousness of the offending for which the offender is currently serving a lengthy sentence and also the objective seriousness of the current offence, I am satisfied that some partial accumulation is appropriate.

Prospects of rehabilitation

1. I am satisfied that the offender has reasonably good prospects of rehabilitation. He is well supported in the community, both by family and friends and also by medical and mental health professionals and Veterans Affairs. It is also positive that he has completed the remand addictions course, whilst in custody.
2. At this stage, I am unable to find that the offender is unlikely to reoffend in circumstances that will to a large extent depend upon his level of engagement with treatment when he is released from custody.

COVID-19

1. I accept that the offender's time in custody in 2020 was more onerous in circumstances where between March 2020 and November 2020 there were significant restrictions in custody and also no personal visits. I have taken into account that his time in custody during this period would have been more onerous.

Special circumstances

1. I am satisfied that special circumstances are established, warranting an adjustment in the ratio between the non‑parole period and the parole period, given that the sentence imposed today will be partially cumulative on the offender's Commonwealth sentence.
2. A variation in the ratio between the non‑parole period and parole period is necessary to maintain an overall suitable ratio between the total effective non‑parole period and parole period.

Determination

1. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crime (Sentencing Procedure) Act.
2. Having considered all possible alternatives in relation to Count 1 on the indictment, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.
3. I have had regard to the objective gravity of the offending, the relevant prescribed maximum penalty, the prescribed standard non‑parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act and the offender's subjective circumstances.
4. Mr Bridge, in relation to the offence of aggravated break and enter and commit a serious indictable offence (intimidation), you are convicted.
5. I sentence you to a non‑parole period of 12 months to date from 16 July 2022 and expire on 15 July 2023 with a balance of term of 2 years to expire on 15 July 2025. The total term of the sentence is 3 years imprisonment with a non‑parole period of 12 months. The earliest date upon which you become eligible for parole is 15 July 2023.
6. The combined total effective sentence is 6 years imprisonment with a non‑parole period combined of 4 years imprisonment. The ratio between the combined total effective sentence and the non‑parole period is 66%. I recognise that this is an increase in the ratio between the non‑parole period and parole period as imposed by Judge Zahra. However, if the ratio was not increased, then I am satisfied I would be unable to reflect the totality of the criminality appropriately. For that reason, the ratio has been increased.
7. In relation to the offence of common assault, you are also convicted.
8. I sentence you to a community correction order for a period of 12 months to date from today, 14 May 2021 and expire on 13 May 2022.
9. The conditions of the community correction order are: 1. You must be of good behaviour; and 2. You must appear before the Court if called upon to do so.

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: 05 October 2021