R v Collins; R v McWaters; R v Butler

R v Collins; R v McWaters; R v Butler - [2023] NSWDC 258 - NSWDC 2023 case summary — Zoe

Introduction

In the early hours of the morning of 13 April 2022, a woman left her home in Barrack Heights in southern Wollongong. She closed and locked the wooden door. She also shut the security door. It closes but does not lock. When she left, a friend was sleeping inside in the bedroom. She has security cameras with a link attached to her phone. She returned home after doing her chores at about 4.20am. She had, however, pressed the security camera activation button on her phone at about 4am. As she arrived at her home, another friend who was with her yelled, "Someone's just come out of your backyard."
She saw someone wearing a hooded jacket go down the street. She saw two other people run to a nearby car and drive off. The home occupant, (the principal victim), and her friend went into the residence. She noted that her PlayStation was missing from the television cabinet and that the handbag belonging to friend who had been staying, had its contents scattered over the lounge room. Her bedroom drawers were open and other items were scattered. Her friend was still asleep.
She reviewed the CCTV footage captured on her mobile phone. On that footage she saw that four people had entered her premises and were walking around and rummaging through her property.
She recognised those people. Some had been to her home previously as guests. She saw Dale McWaters walking up the hallway and looking into the room where her friend was sleeping. He then walked back down the hallway putting his fingers over his mouth with a "shoosh" motion. Melissa Butler was seen carrying a black handbag, but no handbag was reported as stolen. Timothy Collins, the person who removed the PlayStation, had a torch in his mouth. The four were inside the premises for about 15 minutes.
Triple 0 was called, and a police investigation followed. At some point the homeowner made a call made to Melissa Butler. Melissa Butler also attended the premises the following day. The property stolen included; the PlayStation, a battery-operated drill, about $20 in coins, an old mobile phone with a cracked screen, a gold watch, and the visitor's wallet and papers.
Although the facts mentioned Tracey Butler doing and saying things, she gave evidence today, which I'm prepared to accept, that at the relevant time she was quite "scattered" as she was on methylamphetamine. She accepted the facts as tendered but had no recall of what's recorded in them.
Police were soon looking for those depicted in the CCTV. On 13 April 2022 they went to the premises where McWaters and Collins resided. They were arrested there, although McWaters jumped over a fence in an attempt to get away. In a bum bag police found a butterfly knife. McWaters has accepted responsibility for possessing it. Collins had two bags containing small quantities of methylamphetamine.
In their premises police found; the PlayStation, the drill, the wallet and other property stolen from the house. The bulk, if not all of what was taken was recovered.
Warrants were issued for two women who were involved, Melissa Butler and Tracey Butler. They were both arrested on 6 May 2022.

[4]

Assessment of objective seriousness

Each of the offenders entered the home together. Each of them is equally responsible for what occurred in that home. Given the hour at which they entered, it should have been obvious to them, as was the case, that someone was present. They knew, or two or perhaps three of them, knew the owner of the premises. Tracey Butler had previously stayed there.
A residential property; a person's home was entered. The risk of confrontation was very real. That risk is one of the reasons why knowing someone there is a circumstance of aggravation. It does not take much imagination to understand that if someone is at home, and finds four strangers in the dark, that things could get out of hand. Further, it does not take much imagination for anyone, offenders or members of the community, to understand how a person would feel waking up the following morning to find that four strangers had been rummaging around the house while they slept. This is another reason for the maximum penalties that are provided for.
The serious indictable offence of Larceny, when compared with some of the serious indictable offences that could be elements of this offence, is not as serious as some of the offences that could be incorporated into this offence.
I note that there was one incursion point and the offence went on for a period of 15 minutes. There is no suggestion of planning. I note that the property taken was relatively modest, but I do not know how much property the owner actually had. Not everyone has a lot of property and each of the items would have value to the two people who lost them. Prompt police work in response to the identification led to the recovery to most, if not all, of the property.
I have received that submission from each of the counsel appearing today on the question of objective seriousness. Each adopted Mr Hibbard's assessment. Mr Hibbard accepted that the circumstances of aggravation, are elements of the offence, and in accordance with the plea. He accepted that the more co-offenders the more serious the offence.
So far as the respective roles of the offenders are concerned, I could not accept the submission that one had any lesser role than the other.
Mr Kwan, for McWaters, took a slightly different but similar approach.
Ms Skinner in her submissions for Collins, pointed more to the absence of some aggravating factors. Many of the factors that would make this type of offence more serious, are absent in this case, but I focus on what was done.
When a general comparison is made with other offences of its type, I accept the submission that it falls towards the bottom of the range for offences of this type. But in making that finding, I note that rather than fixing the matter on some notional range, I must focus on the seriousness of what occurred. A home was entered by four people in the middle of the night. Property was taken. Offences such as this cause grave disquiet to both to the victims, and the community, leaving both the victims themselves and the community in general with a sense of violation and unease.
There is a guideline judgment that applies to matters of this matter: In the matter of Attorney General of NSW Application number 1 1999 under s26 Criminal Appeal Act; R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327. It requires that I assess objective gravity by reference to the particular facts of the case as I have sought to do. I have to take into account s 42A Crimes (Sentencing Procedure) Act, but here the guideline would appear to have little work to do, particularly since the introduction of s 21A Crimes (Sentencing Procedure) Act.

[6]

Matters relating to each offender

In sentencing the offenders, I take into account their involvement in the offence. Every sentence must be individual, but here the sentence imposed on one should be proper and proportionate to the sentence imposed upon the other. None of the offenders should be left with a sense of injustice that somehow, they were treated more harshly than the others.
But their backgrounds and criminal antecedents can make a difference to the sentence imposed.
The principle of totality to which I just referred is an example of how the Courts try to, so far as practicable, ensure equal justice.
Each of the offenders have criminal records. They vary in intensity and type. For the male offenders, their records reflect a significant degree of what lawyers call 'institutionalisation', an important matter that I will come to when I discuss their offending.
In each matter, I have received detailed reports from psychologists and/or social workers and a psychiatrist, Dr Allen, for Collins. Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Most do not require a declaration that the Evidence Act 1995 (NSW) applies. The calling and testing of evidence is generally only required if an asserted fact is controverted, or a judge is not prepared to act on it.
Minds might differ about what weight should be given to such matters, but here there is no reason to lessen the effects of the opinion of each of the professionals who presented their opinions and reports to the Court. Those opinions were admitted without any request they be made available for cross-examination. I can take the various opinions into account as expert advice based on clinical experience. I can take them into account on sentence and I intend to do so.
The material in each of the reports I have received, when it comes to the backgrounds of the offenders is sad but not controversial. Some of the matters set out were raised by the offenders and go second hand to the objective seriousness of the offence. And, frankly, even in Tracey Butler's case where she gave evidence on oath as I told her at the time - if she adhered to those matters, I would not have believed her because of her use of methylamphetamine at the time and its impact on the memory. But no one has sought to go behind the agreed facts at all.
So far as each offender's backgrounds are concerned, they have support in all the material before the Court, not the least in their criminal and gaol histories.
Each person's history, in their own individual way, reveals evidence of various childhood traumas and disadvantage.
There is evidence of, in Collins' and McWaters' case, of childhood sexual abuse in an institutional context.
Each was exposed to violence. Each was raised in communities and individual households where there was considerable disadvantage.
So far as the male offenders are concerned, each took up the use and abuse of illicit drugs when very young.
In Tracey Butler's case, she took up the use and abuse of illicit drugs when older, during a period in her life when she was subject to considerable stressors, including domestic violence. I am sure she had used drugs before then, but it was only when she got older, she used methylamphetamine to an extreme extent.
Each has spent time in custody before.
The impacts of the various traumas that I will shortly summarise, very succinctly I hope, do not diminish over time. For each individual they attract the principles that were succinctly summarised in R v Millwood [2012] NSWCCA 2 at [69] and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 42.
Each of the offenders produced evidence that they suffer from various mental health conditions. And while I may differ in the weight given to each of the relevant factors, each involved my close consideration of the principles that were enunciated by McClellan CJ at CL, in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
The evidence before me in each matter leads me to conclude that the offender's moral culpability was less than that of people who did not suffer the disadvantages that they did. Those matters require a moderation of the sentence and the principles relating to general deterrence.
That said, each of the sentences raise important issues about community protection. One of the purposes of sentencing is to prevent people offending against others in the community. One of the reasons we punish and remove people from the community by sending them to gaol, is to try and get through to them that they cannot continue to offend as they have in the past and that their actions have consequences. Their actions have consequences on the victims of the offence, on the community, their families and themselves. And it is hoped that by imprisoning people, it might get through to them that they cannot continue to behave as they have done.
At the same time, the Courts recognise that not everyone has the same personal resources to enable them to avoid committing offences and getting involved in matters that lead them into custody, particularly if they use and abuse illicit drugs.
Sentences have a retributive purpose; that is to let the offenders and others know the consequences of their actions and what will happen if they offend in a similar way. Sentences should attempt to vindicate the dignity of the victims and signal that the community will not tolerate breaking into people's homes late at night. I will apply each of those principles to individualised sentences to which I will now turn.
I note that in each of the matters I was assisted by comprehensive written and oral submissions. I trust I have addressed the matters that were referred to in those submissions.

[7]

Tracey Butler

Tracey Butler was born in 1984. She grew up in Wollongong area in a particular locality, where crime, violence and alcohol abuse are common. She had a few brushes with the law while young but was able to raise a family and live in the community.
She gave evidence before me and adhered and adopted what was set out in the sentence assessment report. The report of a psychologist, Mr Brecht, notes there were times in her young life where she felt that there was no one there to support her. She left school in Year 9. She was pregnant by the time she was 15. At various times she struggled with homelessness and domestic violence. At times she used illicit drugs. It would appear that a particularly toxic and violent relationship, led her to seek solace in methylamphetamine, to which she quickly formed an addiction.
Butler was so affected by drugs, that she lost what support she had from her family. She lost custody of her children; who are now being cared for by other family members. She lost her self-respect and she committed offences on multiple occasions. Those circumstances are understandable, in a sense, when one considers her personal history and what is set out in the material before me.
On a number of occasions, she has attempted to change. Butler has been given opportunities to do so; at least on one occasion by me. But time and time again, she has failed in those attempts. She told me that that was because she was not mature and ready enough to deal with the demons in her past and to take on responsibility for herself. I accept that until she takes responsibility for herself, she will not be able to care for her children.
In an earlier matter she was given a release date by me that was brought forward to enable her to be supported in the community, but there was a delay in her release because she had unresolved matters in the Local Court. Those problems were eventually resolved in her favour. Although she was eligible for parole earlier, she was not released to parole until 29 November 2021. However, when she was released, it appears that she quickly relapsed into drug use, as this offending occurred not long after. This is not surprising because although help may have been available to her, she was not then ready to take it.
Butler committed this offence and then went into custody on 6 May 2022. She served the balance of parole until 21 June 2022. She was then bailed to enable her to go to the We Help Ourselves Rehabilitation Service ("WHOS") on 26 September 2022. She served 3 months on remand solely referable to this matter. She was at the WHOS until 20 February 2022, a period of 5 months. She completed their first stage and then moved to the transition stage, where she is still residing. I am presuming, from the material before me, the transition stage is not subject to as strict conditions as the first stage.
That pre-sentence custody will be taken into account. It is my general practice, to give approximately 50% of that time as a credit as time served for a facility such as WHOS.
In Butler's evidence today she showed a maturity, commitment and also an insight into the fact that she cannot rehabilitate by herself. She has taken the help that was offered by WHOS. She now has a mentor from the Women's Justice Network and she has a positive report from Probation and Parole, which although it assesses her of medium risk of offending, puts forward a supervision plan.
That supervision plan is similar to the recommendations made by Mr Brecht, her psychologist. It will involve; long term substance abuse addiction treatment, psychological therapy, domestic violence programs to help her manage relationships and deal with other dynamic risk factors in order to prevent reoffending. It will require continued engagement with her family and kinship and community and her taking up, if at all possible, employment and study. The Women's Justice Network have been, and are committed to, providing continued support and mentoring.
Mr Hibbard, on her behalf, submits that when all relevant factors are taken into account and noting while serious, this is not near the middle or high end of the type of offences often sentenced by this Court, that, taking into account time spent in the rehabilitation facility, a sentence served in the community but subject to intensive correction is the best option.
Mr McGonigal, solicitor for the Director of Public Prosecutions, submits that while there may be benefits in intensive correction, there is a very important limit to whether that option is made available; that being, I have to first form a view a sentence of 2 years of less can be imposed.

[8]

Synthesis - Butler

I have considered the objective seriousness of the offence and the need for a retributive sentence. When I come to consider a potential starting point for this sentence, given her lesser antecedents and her personal history, a slightly lesser starting point than her co-offenders would be required. That would not offend the principles of equal justice and the parity principle. I then take into account effectively 6 months of pretrial custody. When I do those figures, I can come to a sentence of just under 2 years. That then requires that I consider s 66(2) Crimes (Sentencing Procedure) Act. The High Court of Australia in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 recently considered that section.
Recently R v Zheng [2023] NSWCCA 64, Gleeson JA summarised the points that emerge from the judgment of Stanley. Firstly, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending but the narrower risk of reoffending in a manner that may affect community safety. Second, s 66(2) is premised upon the view that an offender's risk of reoffending may be different depending on how their sentence of imprisonment is served and implicitly rejects any assumption that fulltime detention of the offender will most effectively promote community safety. Third, the nature and content of the conditions that might be imposed by an ICO, will be important in measuring the risk of reoffending. Fourth, the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender's risk of reoffending. Fifth, while community safety is not the sole consideration in the decision to make or refuse to make an ICO, it will usually have a decisive effect unless the evidence is inconclusive.
Assessing community safety in this case in a forward-looking manner, leaves me with no option. If Butler was returned to custody, there would be necessarily a short time in custody of only months. That period would interrupt the plans that are well in place for her to be supported and mentored in the community. It could, given her history and fragility as a result of that history, result in her putting aside the lessons that she has learned and losing some hope.
She should be rewarded for her efforts. But she has to understand that an Intensive Correction Order has conditions, and if she breaches those conditions she could be returned to custody.
She has completed the WHOS program. She is ready, as I understand it, to take her place in the community. She has; supports, accommodation, plans, mentoring, community support and has frankly acknowledged that she has to choose her friends wisely. If the time is not now it never will come.

[10]

Dale McWaters

Dale McWaters was born in 1994. When I sentence him, I have to take into account on a Form 1, his possession of the butterfly knife. The possession of any knife, given his history, puts him at risk unless he has a lawful purpose for having a knife. He needs, when he is released from custody, to be acutely aware that a return to custody could occur if there is any breach of the criminal law. The knife was in a bag, but that bag was being carried when he tried to escape the police. If police find someone armed, if someone pulls out a knife, they could end up dead, or someone else could end up hurt.
I will take that matter into account in accordance with the principles set out in the guideline judgment, but I do not sentence for that matter: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146.
McWaters' offending was in breach of his parole. While he was breached officially for this matter, it was coming anyway in the sense that the reports show a borderline response supervision, and that he was engaged in high-risk criminal behaviour.
There are two reports before the Court. The psychosocial report was prepared for earlier proceedings, and the second for these proceedings. They set out a very similar history.
He told one of his report providers, Ms North, that although he had a job and support and somewhere to live, the constraints of leading an ordinary life in the community got too much and he just wanted to "get out of there" and then he lost track of reality because he started using and abusing illicit drugs. Once that started, as had happened so many times in his young life, he used drugs until he was locked up again.
McWaters has not only had none of the advantages that most in the community would expect, but his family, in particular his father, encouraged and directed him in criminal behaviour. One bonding experience with his father was being in the car driven by his father during a police pursuit. It is sad to note that his criminal record includes matters involving police pursuits. His family background, what appears to be learning difficulties or difficulty adjusting with school, led to him being effectively illiterate until this last time in custody.
Drug use was normalised from a very young age. There is evidence in the material before me of sexual abuse while in an institutional setting. There is material which supports a diagnosis of post-traumatic stress disorder and underlying mental health conditions, including an adjustment disorder, a stimulant induced disorder and opioid use disorder.
He took up the use and abuse of drugs before he was able to make rational choices. Under the influence of his father, he took up crime before he was able to make rational choices.
There were number of significant traumas in his life, and he was ill equipped to deal with them.
He has had one constant in his life, his partner, who despite everything has stood by him and sought to guide him. He has turned his back on her more than once, but she is still here to support him. She sees things in him which are not reflected in his criminal record.
McWaters gave evidence today and he proudly showed me, the certificates he has been able to obtain in custody. He is working on his reading. He has done two of the EQUIPS programs. He is working in the gaol.
He expressed an apology to the victim and regret to his family. I think he still does not understand how serious his offending was, but he has demonstrated some insight.
A plan was put in place the last time he was released from custody. A similar plan is provided for in Ms North's report. It must be implemented if he is to avoid reoffending. It is clear that he will need to engage with a psychologist. I note that he is only now "down for" an appointment, despite having been in custody for the best part of a year. He will need to see Victim Services for counselling in relation to his past trauma. He will need to continue with his buprenorphine maintenance program. He must continue the work he has done with EQUIPS programs in the community and engage in relapse prevention.
He will need support and supervision on release.
It accepted by the Crown that even in the face of his recidivism, the risk of his institutionalisation requires that he be given as much supervision as possible, and a finding of special circumstances must be made. As Mr McGonigal reminded me, the minimum term he must spend in custody, must however, reflect all the purposes of sentencing, including those relating to retribution and deterrence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. It is clear that as he matures and as he educates himself with assistance, he might, this time, be prepared to be more able to take the assistance that is offered to him, including work and accommodation.

[13]

Timothy Collins

Turning now to Collins. Collins is older than his co-offenders. He was born in 1974. He has a longer criminal history. The material before me, shows he too had none of the advantages that most in the community expect when growing up. There is a well-documented history of sexual abuse while he was in institutions.
The report of Dr Allen, a psychiatrist, sets out his personal history and expresses the opinion that as a result of that history, he has a persistent depressive disorder with enduring symptoms. It also notes prominent anti-social personality traits, as is evidenced by his continued incarceration, including for offences of violence. At times he has not had the capacity to understand the impact of his own offending, lacking remorse. But given what are significant matters in his history, which in the way of psychiatrists are described as "negative developmental pathways," this is understandable.
Collins has spent too much of his life in gaol, which is an intrinsically violent environment. He clearly has become institutionalised and at times it would appear that gaol is the place he can go for refuge, so he can dry out and take a break from living in the community and the use and abuse of illicit drugs.
Recently, that is over the last few years, there has been an improvement, but that improvement has been modest.
Ms Skinner provided a succinct chronology. Colins was born in 1974. He came before a Court for the first time when he was aged 11. Since he was an adult, 52% of his life has been spent in gaol and I suspect a large proportion of the time in the community has been spent committing offences against the community.
His prognosis for the future given his age is not good. It is agreed by those who have prepared reports, that it is still in the community interest that he be given as much support and monitoring in the community as possible. He has had many incentives in his past to improve and he has turned his back on those who have offered help, on his family, and others.
People who know him well, including his children, have written letters of support for the Court. A cousin is for the first time prepared to offer him work on release. He is here today to reinforce that promise. His adult children have written to me about the changes that they have noticed in their father during this latest time in custody. He now has a sad incentive of getting released as soon as he possibly can because of his mother's terminal illness. While I take that matter into account, I cannot reduce the otherwise appropriate sentence because of that impending tragedy, but it is a matter I take into account generally.
In discussion, I raised the question of what his prognosis might be. Given the history one cannot be confident, but the criminal trajectory seems to be dropping off as he has matured. I have to consider in his case that he is a man who continued to offend and continues to offend who has never really had a chance to lead a normal life in the community.
The magistrates who dealt with him last, put him on two Intensive Correction Orders so that he could have people to turn to and get support. He kept to those conditions until the commission of this offence, which was obviously precipitated by, I presume drug use. What triggered that particular episode is not clear to me, but it has put him back in custody again.

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