R v Colvin

[2021] NSWDC 494

District Court of NSW|2021-08-13

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2021-08-13

Catchwords

CRIME - Aggravated Break Enter and Commit Indictable Offence Intimidation - Common Assault - Destroy or Damage Property

Source

Original judgment source is linked above.

Catchwords

CRIME - Aggravated Break Enter and Commit Indictable Offence Intimidation - Common Assault - Destroy or Damage Property

Judgment (7 paragraphs)

[1]

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.

[2]

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."

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Colvin

Legislation Cited (4)

Crimes Act 1900(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Crimes (Administration of Sentences) Act 1999(NSW)

Criminal Procedure Act 1986(NSW)

Cases Cited (15)

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.

[2021] VSCA 175

(2013) 249 CLR 571

(2010) 79 NSWLR 1

(2006) 66 NSWLR 566

(1988) 164 CLR 465

Cited By (2)

R v Colvin

R v Sultan