R v Casey

Facts

1. In respect of all matters the facts are before the Court by way of a Statement of Agreed Facts. There is a different set of facts in respect of the different indictment. I proceed initially to the first indictment.
2. On the evening of 2 June 2016 the offender was at premises in Batlow consuming alcohol with Robyn Penrith and Terrence Casey. The offender's step-father and Terrence Casey's partner Karleena Hillier were present. During the evening the offender became agitated towards Terrence Casey and accused him of having a sexual relationship with Robyn Penrith. The accused pointed a knife that had a blade of approximately 10 to 15 centimetres in length at Terrence Casey and said words to the effect of, "I'll stab yous, I'll stab the lot of yous". Terrence Casey and his partner stood up and as they were leaving the accused said, "I will kill yous if you try anything". It is the use of the knife that constitutes count 1 on the indictment.
3. This matter was of relatively short duration. The weapon involved was a knife. Threats were made although the offender made no attempt to carry through with any of the threats. Noting the nature of the weapon and the oral threats the matter is below mid-range but not significantly so.
4. Count 2 on the first indictment is a charge of Common Assault that occurred immediately after the conduct to which count 1 relates. The offender struck Robyn Penrith with the back of his hand causing her to fall back into the lounge. This is a typical example of a common assault noting that there was actual force used. The facts also recite that the offender then grabbed hold of her hair and pushed her into the lounge, although given the manner in which the matter was presented this does not form part of the facts relating to the charge of common assault.
5. The offender then followed Terrence Casey and Hillier out of the premises. They went to Hillier's vehicle with the intention of leaving. The offender yelled out the words, "You better fucking get back inside" and walked towards Terrence Casey. The offender was holding the knife in his right hand and a stubby of beer in his left hand. The offender lashed out very quickly with his left hand striking the complainant to the right cheek with the stubby bottle. That contact caused a pressure type wound under the right eye. That is what is relied upon in respect of count 3. I was informed at the sentence hearing that the wound was a "pressure" type wound as opposed to the beer bottle breaking. Offences such as reckless wounding are generally "result offences" - see R v Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] and McCullough v R [2009] NSWCCA 94 at [37].
6. I cannot be satisfied to the criminal standard that the victim suffered any permanent injury as a result. In those circumstances and noting what little I am told about the actual injury sustained the matter is moderately below mid-range. The facts go on to recite that the offender then threw the beer bottle at Terrence Casey. That struck Terrence Casey's head causing a laceration to the side of his head.
7. Terrence Casey ran to other premises up the road from where a triple‑0 call was made. Police and the ambulance attended. The wound and the laceration were sutured. The laceration was described as small.

Second indictment

1. I now go to the second indictment. The facts recite that the offender and Robyn Penrith were in a domestic relationship between February and April 2016. The facts further recite that Penrith began to distance herself from the accused after April 2016.
2. Going to counts 1 and 2, i.e. the charges of Aggravated Break Enter and Commit Serious Indictable Offence and Intimidation, the victim Robyn Penrith was asleep in bed between 1 am and 2 am on 21 May 2016. The offender broke into the victim's premises by removing pieces of board located above an air conditioning unit in a window of the lounge room of the house and climbing over the top of the air conditioning unit into the house.
3. The offender then entered the bedroom and woke the victim by grabbing her about the throat. The victim could tell that the offender was drunk as he was swaying and staggering and she could smell alcohol on him. When the offender grabbed the victim by the throat she felt pain but she was still able to breathe. The victim's two young daughters woke and walked into their mother's bedroom.
4. While the children were present in the bedroom and while the victim was still in bed the offender who was standing over the victim yelled at her demanding to know with whom she had been sleeping. He told the victim that if he walked in and saw her with another man he would kill her. Not surprisingly, the children became frightened.
5. The victim asked the offender to leave and he refused. After about two hours the offender said he was tired and wanted to sleep. The victim took her daughters to the lounge room for the rest of the evening/morning. The victim later told the offender that they could not be together because of what had occurred.
6. The offending occurred at the victim's home and accordingly the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act is made out. The offending occurred at night and involved the offender removing pieces of board. The offending occurred in the early hours of the morning. Intimidation is at the cusp of being a serious indictable offence. The offence of intimidation is made out with the threats, demeanour and the time (i.e. 2 hours) the offender spent at the premises. My note and memory is to the effect that the Crown submitted that the matter was below mid-range but not significantly so. In all of the circumstances I am of the opinion the matter is moderately below mid-range.
7. The offences to which counts 3, 4 and 5 on the second indictment relate were committed two days later in circumstances similar to counts 1 and 2. On 23 May 2016 the offender again went to the victim's premises between 1am and 2am. The victim was asleep and her two daughters were in the premises. The victim was woken by the offender breaking in the same manner as he did two days earlier.
8. The offender went to the kitchen and armed himself with a knife and then moved through the premises shouting, "Where is he?" He then entered the victim's bedroom where she was asleep with the children. He held the knife to her throat and threatened to cut her throat if she was seeing other men. Not surprisingly, the victim was terrified that she was about to be killed. The victim could tell that the offender was intoxicated.
9. The children woke and began to scream. He put down the knife so that his daughter would not see the knife. When the victim told the offender to leave as he was scaring the children, she was told to shut her mouth.
10. The incident lasted approximately four hours, during which time on about four or five occasions the victim attempted to get up and leave the premises pretending she was going out for a cigarette. Each time she approached the door the offender took hold of the back of her neck with his thumb and forefinger and squeezed her neck pulling her away from the door.
11. During this time the offender said words to the victim to the effect of, "Don't test me" and "Don't try it". The victim was held for that period of time against her will. The offender continued to question the victim about who she was seeing and with whom she had been sleeping.
12. The victim disclosed the offending when at the police station in respect of an incident that occurred on 2 June 2016.
13. Count 3 relates to the breaking into the premises and the intimidation that occurred by him being there and his conduct in going around the house. Count 4 relates to the act of the offender holding the knife to the throat of the victim and count 5 is the charge of detain for advantage that took place over approximately 4 hours.
14. Again, the offending occurred in the victim's home in the early hours of the morning. The children were present. The offender armed himself with the knife but the knife was obtained from within the premises. This is a matter of aggravation in respect of count 3 but is one of the elements of the offence in count 4. Intimidation is again at the cusp of being a serious indictable offence. The aggravated break, enter and commit serious indictable offence is moderately below mid-range. The armed with intent to commit the intimidation is mid-range. Mr Swain put that the Detain for Advantage offence is below mid-range.
15. I note the observations of Adams J in Hunter v R [2011] NSWCCA 141 at 52, which, although dealing with different offending, offers some guidance as to the assessment of the objective seriousness of matters contrary to s 112(2) of the Crimes Act.
16. The offending occurred in the victim's home in the early hours of the morning with the children present. The detention continued for about four hours, which would have been a very significant time for the victim and the children. During that period the offender asked the victim about whom she was seeing and with whom she was sleeping. I have no doubt that the victim would have found the whole situation very frightening. It was put on behalf of the offender that the victim was not blind-folded or otherwise restrained. While that is so there is the aspect of the actual violence that was used in the offender taking the victim from the door by squeezing the victim's neck. The purpose of the detention was to obtain the advantage of psychological satisfaction. In all of the circumstances the matter is below mid-range but only marginally so. I have considered the decision of Speechley v R [2012] NSWCCA 130 at [105]-[110] in coming to this conclusion.
17. I have now referred a number of times to the presence of the young children in the house. Mr Swain in his written submissions (MFI 1 on sentence) at [34]-[36] puts that there is no evidence before the court as to any "deleterious effect on the emotional wellbeing of either of the children…" While that is so the matter would be more serious if there was. The factor of statutory aggravation contemplated by s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act relates to the offence being committed in the presence of a child under the age of 18 years rather than any "deleterious effect" on the child.

Criminal History

1. The offender has a criminal history that does not entitle him to any leniency. I observe and warn the offender that given the substantial number of convictions for matters of serious violence on his record he is edging ever closer to the his record being treated as a factor of aggravation in accordance with the principles enunciated in Veen v The Queen (No 2) (1988) 164 CLR 465 and McNaughton v R (2006) 66 NSWLR 566.
2. The offender was born on 9 May 1987. He has recorded against him a substantial number of convictions including resist or assault police, matters of dishonesty, assault occasioning actual bodily harm, damage to property, robbery in company (which was dealt with on indictment), break enter and steal, reckless wounding, driving while disqualified. I note that he has been convicted twice of reckless wounding. Substantial sentences of imprisonment have been imposed in respect of a number of the offences of which the offender has been convicted. I also note that the offender has a criminal history in Queensland which includes entering premises with intent to commit an indictable offence and proceedings for breaches of court orders.
3. In the circumstances I will deal with the criminal history on the basis that that record does not entitle the offender to any particular leniency. My understanding of the submissions was that the Crown did not submit otherwise. However, there will need to be an element of general and specific deterrence factored into the sentence to be imposed on the offender in this matter.
4. This offending was committed in breach of conditional namely parole. That is a further factor of statutory aggravation pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. On this issue also see for example R v AD [2008] NSWCCA 289 at [41].

General Deterrence and Domestic Violence

1. These offences must be called for what they are; namely serious matters of domestic violence. It is no hyperbole or exaggeration to say that barely a day let alone week goes by where this court does not deal with serious matters of domestic violence either on appeal from the Local Court and increasingly on indictment. This is one of the reasons why in the preceding paragraph I made a reference to the issue of general deterrence.
2. The Court of Criminal Appeal has made a number of pronouncements on the need for general deterrence in matters of domestic violence over the years. Some of the decisions are Hamid v R [2006] NSWCCA 302; Vragovic v R [2007] NSWCCA 46 at [33]; Hiron v R [2007] NSWCCA 336 at [32]; R v Eckermann [2013] NSWCCA 188 at [55] (and relevantly in this matter [36]); Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86] and Cherry v R [2017] NSWCCA 150 at [76]-[80]. See also the remarks on sentence of Fagan J in R v Biles (No 2) [2017] NSWSC 525 at [60]. I also note the statements made in this regard by the High Court in Munda v The Queen [2013] HCA 38.

Subjective material

1. No oral evidence was called from or on behalf of the offender. However a comprehensive psychological report prepared by Ms Julie Dombrowski became exhibit 1 on sentence. Counsel for the offender provided very comprehensive written submissions, which were supplemented by brief oral submissions.
2. The author of exhibit 1 recognises the offender's criminal history and the fact that he was subject to parole at the time of the commission of this offending. The offender is 32 years of age and is indigenous. The offender told the author that he commenced the relationship with the victim in March 2018 (that is a typographical error as the offending occurred in 2016) i.e. three months before the offending. He gave a history of experiencing auditory and visual hallucinations in which he saw a man entering the victim's home and the voices telling him that the victim was being unfaithful.
3. At paragraph 7 of the report the author sets out that the offender "expressed remorse for his offending" and that he said, "I'm sort of sad it happened to be honest because I don't think anyone deserves to go through that, being accused of doing stuff". Despite submissions on behalf of the offender I am not prepared to make a finding of remorse on this untested statement in a psychological report.
4. Clearly there is an issue with the offender either being or becoming institutionalised noting that he told the author of the report that he finds community living more stressful than being in custody. A little later (paragraph 11) the author notes that the offender's employment has been largely disrupted by frequent periods of incarceration, limited vocational skills, criminal history and transient lifestyle.
5. The background and developmental history of the offender is given at paragraph 9 and continuing of the report. The offender's mother is aboriginal but he knows very little of her background. His father was born in New Zealand. Between the ages of 5 and 7 he was sexually abused by two different individuals on multiple occasions. His mother was arrested for her involvement in a home invasion. He attended fifteen different schools. The history of "significant disadvantage" is noted at paragraph 17 of the report. Given these factors I am more than satisfied that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender's moral culpability.
6. The offender began drinking alcohol and smoking cannabis at 16 years of age. The report sets out that the offender engaged in binge drinking throughout most of his adolescence. He last smoked cannabis in 2016.
7. At paragraph 15 of the report the author notes that with regard to psychiatric history the offender is not aware of ever being diagnosed with mental illness. However, there have been attempts at suicide. The offender engages in self-harm when distressed. He maintained he commenced hearing voices at the age of 15 but the author goes on to say that the offender deliberately withheld information from others because he was worried about the experience. He has been prescribed and is taking anti-psychotic and anti-depressant medication while in custody.
8. The author of the report recommends that the offender requires treatment for his excessive and poorly controlled alcohol use and further recommends that he participate in a substance abuse programme. A further notation is made at paragraph 18 that treatment will need to treat trauma and abuse to be effective. Further assessment is suggested to "better understand" the underlying causes of the hallucinations. The author goes on to observe that the offender will require a high level of structure and support to function in the community.
9. These matters in combination justify a finding of special circumstances. Clearly the offender will need a period of intensive and extensive supervision to address these various issues on release. However given the issue of offending while on parole and the criminal history the finding of special circumstances will not be as generous as it would have been otherwise.
10. Given the criminal history and the breach of parole I am not prepared to find that the offender is unlikely to re-offend. For the same reasons I am not prepared to find that there are good prospects of rehabilitation. I note the submissions at paragraph 66 and continuing of the written submissions, MFI 1 on sentence essentially go to the issue of special circumstances.
11. At paragraphs 51 to 54 of the written submissions, MFI 1 on sentence counsel for the offender submits in effect that in "light of the offender's mental health concerns…the offender is a less suitable medium for general deterrence, retribution and denunciation". I made the point at the sentence hearing that there was no causal connection between any mental condition and the offending. In fact, as I read the psychological report there is not even a clear or particular diagnosis of any mental illness or mental condition. I note the decision of the plurality in Muldrock v The Queen [2011] HCA 39 at [54] but also the decisions of Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125.
12. The issues relating to the offender's mental health or mental condition are part of the overall subjective mix but no more. They also are part of the mix of factors to which I earlier referred that justify a finding of special circumstances.
13. I referred earlier in these remarks to the issue of institutionalisation. I note the decisions of Jackson v R [2010] NSWCCA 162 at [24] per Fullerton J and Hart v R [2014] NSWCCA 172 at [29]-[31] per Bellew J. However, I also note the judgment of Beech-Jones J in Beale v R [2015] NSWCCA 120 at [68]-[69]. This issue is also one of the many factors that go to the finding of special circumstances.

Submissions

1. I have already dealt with a number of the submissions made by counsel for the offender. I have now read the written submissions a number of times and have considered those submissions. I have acceded to a good number of the submissions made on behalf of the offender.
2. The Crown Prosecutor made a number of submissions about the seriousness of the matters. The Crown made an appropriate submission that the matters demonstrate an escalation of the domestic violence perpetrated by this offender. The Crown submitted, correctly in my view, that there will need to be general and specific deterrence factored into the sentence imposed in this matter. The Crown also noted that the offender has never completed a course of rehabilitation. I have declined to find that the offender has good prospects of rehabilitation. The Crown also submitted that the victim had the right to feel safe in her home. As I hope I have already made clear the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act has been made out in a number of the matters for which the offender appears for sentence.

General Remarks

1. I will need to give effect and have regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, no other sentence is appropriate. Given the nature and multiplicity of the offending, the maximum penalties provided and the need for general and specific deterrence I am firmly of the opinion that a sentence of imprisonment is the only appropriate sentence. I did not understand counsel or the offender to submit otherwise.
3. Given the multiplicity of offending I am of the opinion that this is an appropriate matter for imposition of an aggregate sentence. I did not understand either counsel to oppose that course. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed.
4. Further, had separate sentences been imposed there would need to be some care taken with the issues of partial accumulation of sentences. There is the issue of parole being revoked. The issue of accumulation is further justification for a finding of special circumstances. In respect of the matters on the first indictment the sentences would need to be partially accumulated to recognise the different victims. However, I am of the opinion that the extent of the accumulation would not be significant and in respect of the common assault the accumulation would only be marginal.
5. However, in respect of the second indictment again there would need to be some partial accumulation. The two offences contrary to s 112(2) of the Crimes Act were committed two days apart. It would be entirely inappropriate for concurrent sentences to be imposed in respect of those matters. There would need to be some meaningful partial accumulation. In that regard I note the decision of R v Merrin [2007] NSWCCA 255. There would also need to be a degree of accumulation to recognise the criminality involved in the kidnapping and the s 114(1)(a) offences. However, the sentence for the Intimidation charge should in my opinion be wholly concurrent with the s 112(2) offence that was committed on that date, i.e. 21 May 2016.
6. I have a note and memory to the effect that it was agreed at the sentence hearing that the appropriate commencement date for the sentence to be imposed in respect of these matters commence on 8 December 2017.

Aggregate Sentence

1. I intend to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. These remarks have been reduced to writing and a copy will be made available to the parties immediately after pronouncement of the sentence.
2. The sentences that would have been imposed if separate sentences had been imposed are as follows
3. First indictment: 1. Armed With Intent to Commit an Indictable offence: a total sentence of 15 months which indicates a starting point of 18 months with some rounding down in favour of the offender; 2. Common Assault: a total sentence of 2 months which indicates a starting point of 3 months, again with some rounding down; and 3. Reckless Wounding: a non-parole period of 12 months with a balance of term of 6 months making a total sentence of 18 months (all figures rounded) which indicates a starting point of 1 year 9 months.
4. Second Indictment: 1. Aggravated Break Enter and Commit Serious Indictable offence committed on 21 May 2016: a non-parole period of 2 years 1 month (25 months) with a balance of term of 12 months making a total sentence of 3 years 1 months which indicates a starting point of 3 years 6 months, with some rounding down; 2. Intimidation: a total sentence of 8 months with a starting point of 9 months; 3. Aggravated Break Enter and Commit Serious Indictable Offence committed on 23 May 2016: A non-parole period of 2 years and 5 months with a balance of term of 1 year 2 months making a total sentence of 3 years and 7 months which indicates a starting point of 4 years; 4. Armed With Intent to Commit Indictable Offence: A total sentence of 18 months indicating a starting point of 1 year 9 months, with some minor rounding down; and 5. Detain for Advantage: A total sentence of 3 years and 7 months which indicates a starting point of 4 years.

Orders

1. I invoke s53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence.
2. The offender is sentenced to an aggregate sentence of 6 years with a non parole period of 4 years and 1 month.
3. The non-parole period will commence on 8 December 2017 and will expire on 7 January 2022. The balance of term of 1 year 11 months will commence on 8 January 2022 and will expire on 7 December 2023.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is approximately 68% of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated within these reasons.

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