R v Brown

District Court of NSW|2020-02-27|Before: Health Report J

Judgment

The offender Sonny Brown, born in 1998, is before the court for sentence for aggravated break and enter and commit serious indictable offence, contrary to section 112(2) of the Crimes Act 1900 for which the maximum penalty is 20 years and the standard non-parole period is 5 years.
There is also a Form 1 matter which the offender asks me to take into account when sentencing him, which is a charge of resist officer in execution of duty, contrary to section 58 of the Crimes Act 1900.

Evidence

Before me are 8 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. The Notice of Committal; 2. The Charge Certiticate; 3. The Form 1; 4. The section 166 certificate; 5. The Agreed Facts; 6. The offender's criminal history; and 7. The offender's custodial history.
Exhibit 2 is a COPS report on bail conditions.
Exhibit 3 is a letter from the victim dated 26 February 2020.
Exhibit 4 is a bundle of documents prepared by Ms Socorro on behalf of the offender, which includes: 1. A psychologist report of forensic psychologist Megan Godbee dated 14 February 2020; 2. A Justice Health Report by Clinic Nurse Consultant (mental health) Jodie Massey produced on 16 July 2019; 3. South Coast Medical Service Aboriginal Corporation (AMS) Patient Summary from 21 January 2020 to 14 February 2020; 4. AMS client engagement letter from Nathaniel Curtis dated 18 April 2019; 5. A K10 assessment and referral to AMS from general practitioner Dr Samuel Baxter dated 12 July 2017; 6. A Mental Health Act Form 1, and clinical notes from Nowra Acute Mental Health Team dated 11 December 2019; and 7. Clinical notes and discharge summary from the emergency department of Shoalhaven District Memorial Hospital dated 16 January 2019 and 30 March 2019.

Section 112(2) Offence 1. The offender in this matter is Sonny Brown. 2. The victim is 54 years of age, who resides by herself at Nowra. 3. On the morning of Saturday 30 March 2019, the victim was in her bed asleep. Her bedroom door was ajar, and light entered the bedroom from the hallway. At about 3.30am, she was suddenly awoken by a noise in her room. She looked around and observed a person at her dresser. She rolled over and yelled. 'who is it?' 4. The victim observed a male, approximately 20-25 years of age, with dark skin. He was thin and fit and wore a white jumper and dark pants. He had short curly hair. 5. When the victim yelled, the male ran from the room. She heard him go into her front lounge room. There was a loud banging and crashing as he exited via the front window. 6. The offender was situated on the street as the "look out". The victim got out of bed and went to the front door and saw the offender in the street. She recognised him as a young male named 'Sonny' who walks past her house daily and has a distinctive action when he walks - he limps and throws his shoulder back. 7. The victim went to call police, but her phone was missing. She walked across the road and used a neighbour's phone to telephone the police, and then waited out the front with her neighbour. 8. The victim's handbag, which was brown with white lace around the bottom, was missing. It had her purse inside which contained her licence, bank cards, Medicare card and other personal items including $40 cash. Her Samsung s9 mobile was also missing as was her son's Samsung tablet. Her medication had been disturbed, and Endone, Valium and Oxycodone tablets were missing from the lounge room. 9. The three cars in her front yard had been accessed. Their doors had been left open and 2 mobile heater lights were stolen from one of them. 10. At 3.39am, police responded to a call over the police radio, which reported that the victim had awoken to find a male going through her bedroom drawers before jumping out of the window and decamping on foot. En route, police were advised that the victim had said that the offender looked like a local male named "Sonny". 11. When the police arrived, the victim was shaking and crying. Police observed that the flyscreen from the top left window and the window was open. The victim stated that the window was generally open only a few centimetres with the flyscreen attached. Below the window, police observed cushions which were ordinarily located in the victim's lounge room. The cupboards and drawers in the lounge room and two bedrooms were open. 12. The items reported by the victim as being stolen were: 1. 1 x brown handbag with white lace; 2. 1 x purse with personal cards, Medicare card and licence; 3. $40 cash; 4. A purple Samsung s9 and a Samsung tablet; and 5. Medication (Valium, Endone and Oxycodone). 1. Police conducted a COPS search on the offender and ascertained that he resided at a local address in Nowra. At 4.08am, police attended the residence. On arrival, they observed a male looking out of a window. The offender's brother opened the door. He said the offender was home and pointed towards the kitchen area. 2. As police approached the kitchen, they observed the offender seated and slumped over the dining table. The observed a brown handbag with white lace around the bottom. 3. Police pointed to property on the table. The offender's brother told police that he had no idea where the offender got the property from, and he pointed to a tablet and a phone. 4. The property was seized.

Form 1 Matter 1. Police had the offender's hands behind his back attempting to handcuff him. They told him to stop pulling. He was resisting police by bending his arms and moving about. Police continued to attempt to handcuff the offender who continued to resist arrest. 2. The offender then began to wrestle with police. The offender's brother told him to stop. The offender tried to exit through the dining room window, but police had hold of him. Police applied bursts of capsicum spray into the offender's face which caused him to fall on the ground. He continued to resist police. 3. The offender was conveyed to Nowra Police Station. 4. At about 8.25am, police attended the victim's home and returned her handbag and purse, tablet, phone and a pair of shoes. She went through her purse and found that the $40 cash was missing along with her Commonwealth Bank visa debit card. 5. The victim informed police that a "3 in 1 bathroom light" was also missing. 6. On 30 March 2019, police attended the residence of the offender to return some clothing. Whilst present they enquired with the offender's father about the "3 in 1 heating light" and the Commonwealth Bank card belonging to the victim. The offender's father invited police inside and they observed the "3 in 1 bathroom light" in the lounge room. In the dining room, the offender's brother pointed to a small floral clutch bag, sunglasses and leather strapping. Police seized those items. The victim subsequently confirmed ownership of those items and they were returned to her.

Exhibit 1

The offender has a criminal history of note. He has committed multiple offences of larceny cover multiple years. He has driving related charges and one charge of enter vehicle or boat without consent of owner/ occupier. He has several charges of assault occasioning actual bodily harm for which he received prison sentences. He further has been found guilty of break enter and steal less than or equal to $60,000, shoplifting and resist or hinder police officer in the execution of duty.

Exhibit 3

The victim wrote a letter to the court, detailing the impact the offence has had on her life. She said that the offender "took any freedom, security and safety away from me" and that she cannot sleep at night anymore. I pause here to say that this offence, one in which a victim's private and sacred space is invaded, is of the utmost seriousness. The court recognises the real harm caused to the victim in this instance.

Exhibit 4

Ms Godbee interviewed the offender by audio visual link (AVL) for approximately one and a half hours. She reported that the offender was in a special education class in high school and that his presentation was consistent with someone with intellectual difficulties. He has specific difficulties with reading and writing and is functionally illiterate. On two occasions during the interview, the offender became so distressed that he expressed an imminent risk of self-harm ("if I had a gun right now, I'd shoot myself"). The offender described a history of auditory hallucinations which he said were always present.
Mr Brown grew up as 1 of 12 children born to his parents. His parents separated when he was approximately 9 years old. After his parents' separation, the children moved to a mission to live with their paternal grandparents. The offender noted that he was surrounded by his cousins on the mission and that he witnessed and engaged in many fights with them. Two of his older male cousins sexually abused Mr Brown on several occasions when he was approximately 11 years old. At age 15 he began 'couch surfing'. He then began stealing cars and using drugs. He said that, upon release, he would like to find work as a mechanic or bricklayer. The offender stated that he has "been hit by a few cars" and experiences memory problems. He has been assaulted, following which he has lost consciousness.
The offender stated that he first consumed alcohol at age 13 and estimated that he consumed up to 40 standard drinks per day throughout his teens. Mr Brown began smoking cannabis every day from age 13 and estimated that he consumed over $100 of cannabis per week. He also inhaled petrol during his early teens. He began using methylamphetamine every day at age 14, using up to $200 per week. He began using ecstasy regularly from age 17 and heroin every second day from age 18. He continued using substances during his previous periods in custody and began abusing buprenorphine during his most recent release. The offender also described a history of problematic gambling. However, the offender stated that he stopped using all substances when he entered custody about a year ago, explaining that he now has his children to think about.
The offender stated that he completed the Equips addiction program during his previous period on parole, although he continued to engage in polysubstance abuse throughout the program, which the report writer believed suggested limited insight. Ms Godbee is of the opinion the offender has complex treatment needs, and will likely need intensive support to transition back into the community if he is not to return to drug use and offending.
Mr Brown identifies as Aboriginal and indicated that he has experienced racism throughout his life. In Ms Godbee's view, he is impacted by the "intergenerational trauma of colonisation that has contributed to his people's overrepresentation in the offending, substance-using and victim populations." On the day prior to the offence, Mr Brown stated that he had consumed 12 pills of ecstasy, a bottle of whisky and $300 worth of ice.
The offender entered into his first relationship at age 14 and stayed together with his partner until shortly before he entered custody. He has two children to other relationships. He was admitted to the mental health ward of a hospital due to thoughts of self-harm prior to his arrest, and is currently prescribed Avanza. He has had multiple suicide attempts, but he denied any current suicidal planning. Mr Brown described himself as "anxious" and stated that he hears voices that tell him to kill himself.
In Ms Godbee's opinion, it was difficult to glean a clear mental health picture of the offender. She recommends that the offender be referred for a psychiatric assessment because of his hallucinations. She also believes that he requires individual psychological treatment to help him develop a broader repertoire of emotional coping skills. She also suggests that he undertake a neuropsychological assessment because of his history of heavy alcohol abuse and repeated head injuries.
Clinical Nurse Consultant Ms Massey stated that the offender reported the onset of depressed moods during early adolescence. He also described a traumatic childhood, using methamphetamines from the age of 15. He reported suicidality. She was of the opinion that he would benefit from lengthy cognitive behavioural therapy.
The AMS client engagement letter states that the offender participated in the South Coast Medical Service Aboriginal Corporation men's group for social, emotional wellbeing support. They offered intensive support to help address his addictions.
The K10 assessment provided a basis for a provisional diagnosis of major depression. Doctor's notes suggest that the offender was sexually assaulted by older cousins when he was 8 years old, and that he suffers anxiety attacks.
Other documents indicate that the offender was scheduled and admitted to the acute mental health inpatient unit at Shellharbour Hospital in December 2018.

Exhibit 5

Mr Brown received a formal offer of entry to Oolong House on 26 February 2020. Conditions of entry included not to consume any illegal substances, alcohol or non-prescribed drugs.

Exhibit 6

Mr Wellington, Aboriginal Field Officer, offered to transport Mr Brown to Oolong house. The offender was released on bail to Oolong House on 2 March 2020, but was taken back into custody within days.

Exhibit 7

The notes of the South Coast Medical Service Aboriginal Corporation of 4 March 2020 indicate that the offender was released (on bail) from Goulburn jail on 3 March 2020 and that he was requesting his usual anti-depressant medication Avanza. He was given a Ventolin puffer and a plan was made to chase his medical record so that his medication was confirmed and he could book an appointment to pick up a script.

Exhibit 8

The letter from Oolong Aboriginal Corporation to the court says that the offender entered Oolong House on 3 March 2020, but that he left on his own accord on the night of 7 March 2020 knowing that he would be in breach of his bail conditions. Authorities and next of kin were notified.

Mr Brown's evidence

The offender gave evidence before me on 27 February 2020 and 31 March 2020, and he corroborated many of the significant matters set out in Exhibit 4. He told me that he was without his stabilising medication at Oolong House. When he left, he tragically relapsed and took drugs for the first time in more than 11 months. He was picked up by police in a bad state on 10 March 2020. He told me that he has still not had access to his stabilising medication, and that his mental state has deteriorated in custody. I note that the offender had previously been abstinent of all illegal substances whilst in custody, and has not had any since his return.

Plea of Guilty

The offender has pleaded guilty to the offence at the earliest opportunity. He is entitled to a utilitarian discount of 25%.

Objective Seriousness

The Crown submits that Mr Brown's offending falls in the lower part of mid-range of objective seriousness for offending of this type, for the reasons which follow.
Ms Socorro submitted that the serious indictable offence for which Mr Brown is being sentenced is larceny, which is towards the low end of seriousness for serious indictable offences that can be committed within the scope of s 112(2) offences.
The Crown submits that this fact should not be given undue weight or be determinative of the objective seriousness of the offending. He observes that in R v Huynh [2005] NSWCCA 220, Simpson J, as her Honour then was, said at [27]: The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the "serious indictable offence" is larceny, being classified as in the middle of the range.

Items stolen

The Crown notes the items stolen, and says that whilst there is no evidence as to their value, as personal items they likely had a greater personal value to the victim than merely their resale value.
Ms Socorro concedes that the value of goods would not be insignificant to the victim.
The Crown submits that stealing a mobile phone involves an invasion of privacy and that stealing a wallet with personal cards, similarly involves an invasion of privacy that is difficult to quantify. Further he says that the stealing of prescription medication carries the risk of causing adverse medical consequences to a victim left without her medication. The Crown submits that this increases the objective seriousness of the offending.
The Crown submits that the offence took place in the home of the victim, where she lived alone. She awoke to find the co-offender near her bed, after the co-offender had forced entry into her home through a window.
The offender took part in the offending in company, as part of a joint criminal enterprise, and he acted as a lookout. Whilst it may not have been a sophisticated operation, it involved a degree of planning or foresight.
The Crown noted that the offending took place whilst the offender was on conditional liberty.

Offender's role as a Lookout

The Crown said that the agreed facts show that Mr Brown took part in the offending as part of a joint criminal enterprise, and that he acted as a lookout. In certain cases, he submitted, the actual role that an offender plays in a joint criminal enterprise can affect his culpability. However, here there is no evidence as to the degree of planning that took place or of the respective roles that Mr Brown and his co-offender played leading up the offence. Therefore, in the absence of any evidence as to the offender's specific role, he bears criminal responsibility for the full range of criminal acts done by all parties to the enterprise.
The Crown submits that the court should not find that the objective seriousness of Mr Brown's offending is reduced by the fact he was a lookout. He says that this should be considered a neutral factor in analysing the objective seriousness.
Ms Socorro submits that in the case of R v Mouzomenos [2005] NSWCCA 203, the sentencing judge determined that one of the reasons the co-offender was less culpable was that he had acted as a "cockatoo", staying outside of the premises. She submits that is the case here. Furthermore she says that there is no evidence that the offender played a key or any role in planning, that there is no evidence of a sophisticated level of planning or organisation and that his role is lesser then the co-offender who entered the premises. She accepts that the offender had the victim's handbag close in proximity to him when the police entered his premises, and that all other items were located at the premises in which he resided.
Ms Socorro submits that the offence falls within the low range of objective seriousness.
I have had regard to all the submissions made by the parties. In my opinion, it is plain that there was some planning but the operation was not sophisticated. Whilst the items taken were not of a great monetary value, they were items of significance to the victim. I also take into account the legislative guideposts of the maximum penalty of 20 years imprisonment and the standard non-parole period of 5 years. The guideposts demonstrate the seriousness with which the legislature considers such a crime. In my view, taking all matters into account, the offending falls somewhere between the low and mid-range of objective seriousness for offending of this type.

Mental Health

The offender has a significant and troubling history of suicidal ideation and self-harm. Mr Brown reported hearing voices telling him to kill himself. The offender has received a provisional diagnosis of major depression.
It was submitted by Ms Socorro that on balance, the offender's mental state around the time of the offences and since being in custody, should have a bearing on sentencing considerations. The offender clearly has significant need for treatment and rehabilitation outside of the custodial environment. Furthermore, Ms Socorro submits that due to the offender's mental health issues, he is not an appropriate vehicle for general deterrence and that specific deterrence should be moderated.
In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are present here. In particular I find that the state of the offender's mental health likely contributed to, and is linked to the commission of the offence. He gave evidence that he could not recall much about the offending and that he was in a bad mental state at the time. In my opinion, the offender's moral culpability is thus reduced, although it does not exculpate the offender. It also has the consequence that the offender is less of an appropriate vehicle for general deterrence, which will result in a reduction in the sentence I would have otherwise have imposed. It also reduces the significance of specific deterrence.

General Deterrence

The Crown submits that there is a legitimate community expectation that offending of this kind should be met with condign punishment. So much is true, as "the invasion of people's homes and the plundering of their property is a social evil for which the community looks for protection to the law… and the criminal courts": R v Hayes [1984] 1 NSWLR 740, per Street CJ. As I have said, general (and specific) deterrence have a limited role to play in this sentencing exercise. That is not to say that denunciation has no role to play.

Youth

Ms Socorro submits that the court should take into account the relative youth and immaturity of the offender. He is a very young man of 21 years of age. I take his youth into account.

Disadvantage

To say that the offender has suffered disadvantage in his past is an understatement. I find that he has suffered sexual abuse, homelessness, illiteracy, substance abuse, neuropsychological issues and mental health issues all from a young age. The Bugmy v The Queen (2013) 249 CLR 571 factors are present here, and also go to reducing his culpability. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where she explained the relevance of evidence of an offender's background of deprivation. In that case, she said: [69]…I am not prepared to accept that an offender who has had the starting life the respondent had bears equal moral responsibility with one who has had what might be termed a normal or advantaged upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions.

Remorse and Prospects of Rehabilitation

It was submitted by Ms Socorro that the offender has prospects of rehabilitation due to his youth, and critically in my opinion, his abstinence from illicit substances whilst in custody and his plans upon release. I note his recent failed admission to Oolong House, which I do not count against him. Unfortunately, at that time he was without his stabilising medication. Indeed, notwithstanding that failure, I do not believe he is irredeemable. I find that the offender has some prospects upon his release, but only if he is carefully monitored and supervised whilst on parole, and when he is stabilised on appropriate medication.
I note that in evidence before me, Mr Brown expressed his remorse articulately. I accept that his remorse is genuine.

Prior Criminal History

Mr Brown's criminal record discloses, inter alia, a history of property offending. The Crown submits, and it is not in dispute, that he is not entitled to any leniency on account of his criminal history.

Time in custody

The offender has been in custody (including several days of quasi custody at Oolong House) since 30 March 2019, not all of which is referrable to this offence. The present offending took place whilst the offender was on bail. There is no doubt that I have a discretion to backdate the commencement date of this sentence, and the Crown did not disagree that some backdating would be appropriate: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. I backdate the offender's sentence to 30 June 2019.

Threshold

The Crown submits that s 5 threshold of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) is enlivened. That is not disputed by Ms Socorro. I find that there is no alternative to a sentence of imprisonment being imposed.
The Crown further submits that in the interests of community safety and in accordance with the principles of sentencing in the Sentencing Act, the offender should be sentenced to a period of full-time custody. I agree, but I take into account those matters already referred to in this sentence judgment.

Standard Non Parole Period and Special Circumstances

Mr Wilcox-Watson and Ms Socorro agree that the court should find special circumstances as a result of Mr Brown's youth, mental health requirements and risk of institutionalisation, and that some variation of the statutory sentencing ratio should follow.
Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 5 years) are the special circumstances that I find, that is the offender's youth, his risk of institutionalisation given the time he is spent in jail during his adult life and the considerable guidance and intervention he will require to treat his drug and alcohol issues and to facilitate the stabilisation of his mental health. I have deviated to a ratio of 50% because of special circumstances.

Form 1

As indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender, the details of which I have already set out above. In this matter, this has the effect of slightly increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community's entitlement to retribution for the Form 1 offence, although the focus remains on the primary offence. I have taken this offence into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Sentence

I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's need for psychiatric review and ongoing rehabilitation.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
As I have said, in determining an appropriate sentence I have kept in mind the two legislative guideposts, the maximum penalty of 20 years and the standard non-parole period of 5 years.

Orders

Mr Brown, please stand.
You are convicted of aggravated break and enter and commit serious indictable offence, contrary to section 112(2) of the Crimes Act 1900.
Taking into account the matter on the Form 1, and after allowing a 25% discount for your plea of guilty, you are sentenced to a term of imprisonment for 2 years. Your sentence would otherwise have been 2 years 8 months. Your sentence will be backdated to 30 June 2019.
I impose a non-parole period of 1 year, which will expire on 29 June 2020.
Your head sentence will expire on 29 June 2021.
I recommend that Justice Health be provided with the report of Ms Godbee dated 14 February 2020 and that a neuropsychological assessment be obtained if possible.
Mr Brown, do you understand the orders I have made?

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: 24 November 2020

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Judgment (29 paragraphs)

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Cases Cited (10)