R v Colvin

District Court of NSW|2021-08-13

Background

Colvin is now is 45 years old. He has spent the majority of his adult life in gaol. There are only two significant gaps in his NSW custodial history. One was when was in prison in Queensland from 1995 to 1998. The second, between October 2014 and March 2016, corresponds with a time when he was in a stable relationship and living with his mother. But even during this period he spent about two months in the Shellharbour Hospital for treatment of his mental illness.
His childhood was traumatic; characterised by domestic instability and sexual abuse. He never knew his father. His education was incomplete. He was abused and he was excluded from the family home. From 14 he was a ward of the State and had multiple placements in boys' homes, resulting in extreme social and educational disadvantage. He commenced using of illicit substances as a child. He became addicted to heroin at 15 years; in part to deal with the memories of being sexually abused. He also experienced the Juvenile Justice system and spent time at Juvenile Detention Centres.
That history demonstrates both early childhood deprivation and also helps explain his trajectory into drug use and criminality. He is not as morally culpable as an offender who did not have these disadvantages. The effects of this sort of disadvantage do not diminish with the passage of time and will be given full weight when I formulate an appropriate sentence: Bugmy v The Queen (2013) 249 CLR 571.
His sister was, until this incident, the only family support he had. Now because of his own criminal actions toward her he has lost that support.

Mentally ill offenders

Dr Furst concludes that Colvin meets the diagnostic criteria of Schizophrenia and Substance Use Disorder. His schizophrenia has developed over the last 6 years or so on a background of a lifelong history of emotional disturbance, drug dependence and institutionalisation. Childhood sexual abuse and sexual assaults as a young adult likely precipitated and maintained his drug addiction. He has a strong biological loading or vulnerability toward schizophrenia. His 'ice' use likely exacerbated this illness.
Sentencing offenders who suffer from a mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed. They have been described as "to an extent intractable": Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 at [1] (Basten JA). They require a "sensitive discretionary decision": Engert v R (1995) 84 A Crim R 67 (Gleeson CJ).
A judge has to consider the purposes of the sentence in s 3A Crimes (Sentencing Procedure) Act and also common law principles such as ".. protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform": Veen v R (No 2) 164 CLR 465; [1988] HCA 14 at [476].
There are some cases where the offender's mental illness, disability are such that human sympathy would say, "Well, you would not expect him [or her] to get the same sentence as someone else": Engert v R (1995) 84 A Crim R 67 at [70] (Allen J). There are other cases where, because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28]
As the decisions in Veen (No 2) and Engert make clear, the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead, as an automatic (or logical) consequence, to a reduction in sentence because of its effect on moral culpability.
Other principles that can be applied when sentencing an offender suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. Each has to be considered in the context of this case. Omitting citations, they are: "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, an offender's mental illness may mean that he or she presents more of a danger to the community than a person not afflicted by such a condition and considerations of specific deterrence may therefore result in an increased sentence."

Submissions

I am indebted to Ms Hughes, Solicitor for the Director of Public Prosecutions (DPP), and Ms Parkes, for the offender, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determinations.
Ms Hughes accepts that Colvin's longstanding mental health and related mental health issues should be given proper weight, but she notes that the letters subsequently sent to his sister show the extreme level of animosity he harbours toward her: "They express overt, violent threats and show a blatant disregard for the ability of the law to protect the victim …The letters demonstrate a crucial need for specific deterrence, particularly in relation to offending against the victim. They highlight the level of potential dangerousness the offender presents. They display an utter disregard for the ability of criminal sanctions to curb his actions which elevates the danger the offender presents to both the victim and the community."
Ms Parkes notes that the offender has already been sentenced for the letters and should not be double punished. She concedes that absent a structured treatment plan and prosocial community supports on release, the offender is at risk of re-offending. At present Colvin is institutionalised, functionally impaired and prone to relapses of mental illness. Unless he can get adequate support in custody and in the community that situation is likely to continue. He has lost any family support he had but a plan can be put in place for his release. Dr Furst recommends that when released to the community he be subject to a Community Treatment Order (CTO) and given supported accommodation, such as at the Integration Support Centre at Campbelltown.

Special circumstances

Colvin's history can give me no comfort he will not reoffend but the longer he is supervised on parole the better chance a treatment plan may have some effect. Further, the additional hardship he suffers in custody because of his mental condition must be taken into account: R v Hemsley [2004] NSWCCA 228 at [41]. A long period of conditional and supervised liberty may assist the protection of the community by maximising the prospect he will not reoffend again: Jinnette v R [2012] NSWCCA 217.
This sentence must commence some time after he was first arrested to recognise his breach of parole and allow some punishment for the matters dealt with in the Local Court. It should commence on 6 February 2021. All of these matters require a finding of special circumstances.

Synthesis

Colvin must be removed from the community for a period so that he can be adequately punished, but he will have to return to the community, and the longer he can be supervised on parole the safer the community will be.
His tragic background must be given full weight, but the sentence must also recognise the harm he did to his sister and punish him for what he did to her and her home. He is capable of learning. He capable of change but he will need help doing so. If he takes that help his life may improve. If he does not, he will return to gaol.

Orders

I indicate the following sentences, less 5% for the assistance with the course of justice: Crimes (Sentencing Procedure) Act 1999, s 22A. 1. Aggravated Break Enter and Commit Indictable Offence Intimidation - as it carries a standard non parole period, I indicate a sentence of 2 years 10 months with a non-parole period of NPP 1 year 8 months. 2. Common Assault - I indicate a sentence of 1 year. 3. Destroy or Damage Property - I indicate a sentence of 8 months.
The total aggregate sentence is 3 years 2 months. There will be a non-parole period of 2 years commencing 6 February 2021 and expiring 5 February 2023. The balance of the sentence of 1 year 2 months is to commence upon the expiration of the non-parole period on 6 February 2023 and expiring on 5 April 2024.
You will be eligible for release to parole at the expiration of the non-parole period on 5 February 2023.

Amendments 20 September 2021 - "No 2" added to title 20 September 2021 - Typographical error in sentence end date: 5 April 2024 not 2023 17 April 2024 - Reformatted 18 April 2024 - Amended typographical error 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: 18 April 2024

Introduction

On 11 August 2021, after a judge alone trial, I convicted Jason Keith Colvin of the offence of Breaking and Entering the home of his sister and committing the serious offence of Intimidation, in the Circumstance of Aggravation that he Knew Others to be There: Crimes Act (NSW) 1900, s 112(2); R v Colvin [2021] NSWDC 390. The offence has a maximum penalty of 20 years imprisonment. There is a standard non-parole period of 5 years. The standard non-parole period represents the non-parole period for an offence "that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness": Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2).
After the trial I also convicted Colvin of two related offences that came to the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate: 1. Common Assault: Crimes Act 1900, s 61, maximum penalty 2 years imprisonment. 2. Destroy or Damage Property: Crimes Act 1900, s 195(1)(a), maximum penalty 5 years imprisonment.
I heard sentencing submissions on 13 August 2021 but there was no time left in a long day to finalise the matter. Since then, the matter has been adjourned a number of times as Mr Colvin tested positive for COVID-19 and was placed in lockdown in Parklea Correctional Centre.

COVID-19 and a judge alone trial in 2021

Colvin relinquished his right to a jury trial during the currency of the pandemic. He also cooperated further with the course of justice by restricting the trial to very specific issues and reducing the number of witnesses who need to be called. This facilitation of the course of justice must be considered: Crimes (Sentencing Procedure) Act 1999, s 22A. Such action is worthy of greater weight in mitigation and amelioration of sentence than cooperation at a time when the community and the courts are not affected by the pandemic's effects: Worboyes v R [2021] VSCA 169; Chenhall v R 2021] VSCA 175. While not necessary, it is preferable to nominate a numerical discount for this factor: Droudis v R [2020] NSWCCA 322 at [104]-[105]. I propose to reduce the sentence by 5% in accordance with s 22A.
COVID-19 has entered our gaols. After the matter was last adjourned, Colvin tested positive. He has been sick, he has lost weight and he has been kept in isolation. At present no prisoners have been allowed early parole but Colvin falls into a category that might be considered for it: Crimes (Administration of Sentences) Act 1999, s 276.
Social visits have been suspended for over a year reducing any capacity to remain in contact with pro-social friends and family. Access to telephone calls and AVL links has increased. Although recent evidence in this Court indicates there are often long delays. I have also heard evidence about there being fewer programmes, reduced work opportunities and more lock downs where prisoners are confined to cells. The offender has endured over a year of such restrictions and has caught the virus while in custody. These are all relevant factors that must be synthesised along with all other matters.

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