R v Cormack

Agreed facts

1. Mr Boyce, although he had known the offender for a number of years and considered him a friend, did not see him very often in 2018. They were in occasional communication by text messages. It is clear from the material before me that Mr Boyce knows something about computers and technology. Some years ago he helped the offender with his devices.

COUNT 1 - Assault with intent to take a motor vehicle pursuant to s 154C(1)(a) Crimes Act 1900

1. Around 4pm on Sunday 18 March 2018, Mr Boyce returned to his home at Penrose with his two-year-old son. He saw the offender standing in the front yard of his premises. Cormack was with another male, Wayne. Their car was parked in Mr Boyce's driveway. Mr Boyce parked his black Holden Commodore on the roadway outside his house. Mr Boyce got his son out of the car and went to the offender, who immediately began to accuse Mr Boyce of hacking into his mobile phone and other devices belonging to him. Mr Boyce denied any hacking and attempted to explain to the offender that the systems he installed years ago would not even enable this.
2. After about 20 minutes Mr Boyce and the offender went inside Mr Boyce's residence and the conversation continued. The other man largely remained on the verandah. At around 8pm, as he was leaving, the offender said, "I'm taking your car." Mr Boyce hesitated and the offender said, "I'm taking your car to make sure you come see me tomorrow. I got a blade."
3. Mr Boyce, understandably worried for the safety of himself and his two-year-old, handed the offender the keys to his Holden. The offender drove away in Mr Boyce's car. The other male drove away in the car they had arrived in. Mr Boyce was working long hours, and not having a car, caused him considerable inconvenience.

Count 2 - Aggravated enter with intent to intimidate pursuant to s 111(1), (2) Crimes Act

1. The aggravating circumstance as an element to the offence was being armed with an offensive weapon. The offence also occurred in company. In the weeks that followed the first offence, the offender continued to contact Mr Boyce by text about the issues he was having with his devices. On 24 March 2018 Mr Boyce went to the offender's home in Unanderra to discuss the issues further. During the meeting Mr Boyce asked, "What's happening with my car?" The offender replied, "We'll wait till we get this sorted."
2. Over the weeks that followed there were texts and meetings. Mr Boyce's car was not returned. The offender at one stage sent Mr Boyce screenshots of his phone settings for Mr Boyce to look at. On 17 April 2018 Mr Boyce was at home asleep. At approximately 1am he was woken by a knocking at his window. He went to his front door to find the offender and another male at his front door. That man has been identified but he has a trial listed in June 2020 and I will simply refer to him as the other man.
3. They spoke through the door's security screen. Mr Boyce asked, "What do you want?" The offender responded, "I want to chat." After a short conversation the offender said, "Open the doors otherwise we're coming in anyway." Mr Boyce opened the screen door and the offender walked into his house. The other man was holding something in his right hand behind his back. He was wearing motorbike gloves and something covering half his face. The other man told Mr Boyce, "I got a piece. Just relax." Mr Boyce was fearful. He considered running away but was concerned that if he did so he would be chased. The three went into the lounge room and sat down.

Count 3 - Intimidation s 13(1), Crimes (Domestic and Personal Violence) 2007

1. The third offence a charge of intimidation pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) 2007 is related because it is the result of the entry with an offensive weapon. It covers the offenders' conduct from entering the house at 1am until leaving the house at 5am. After the entry, the other man locked the screen door and the front door. Mr Boyce looked briefly at the item he was carrying. To Mr Boyce it looked like a firearm. He tried, out of fear, not to focus on it.
2. The offender continued to accuse Mr Boyce of hacking his devices and hiding things on his mobile phone. He also accused Mr Boyce of withholding knowledge about his partner having an affair with a mutual acquaintance. Mr Boyce denied any knowledge of this. This conversation went on for some time, during which the other man fell asleep on the lounge. The offender continued to accuse Mr Boyce of various matters. After a period the other man woke and pointed the weapon towards Mr Boyce and said, "Where's your money?"
3. Fearing for his safety, Mr Boyce then cooperated with that other man. Other crimes were committed by that man in another part of the house. The men then returned to the lounge room.
4. Once in the lounge room the offender continued his conversation about problems with his phone and devices. The other man then began to ask Mr Boyce about two cars he had on the property. Again, other offences were committed against Mr Boyce by that other man. They are not the subject of charges before me.
5. During the course of the morning the offender handed Mr Boyce a USB drive. Mr Boyce looked through it and saw it contained photos of the offender and his partner. He could not find anything unusual on the USB and he told the offender this.
6. Around 5am the other man demanded Mr Boyce hand over his bank card and PIN number. Mr Boyce did so. Shortly after the offender and the other man left, they both assured Boyce that his property would be returned once he delivered Ricky West to them. Threats were made by the other man about ringing the cops.

Form 1 matter - obtain an advantage by deception: s 192E(1)(b) of the Crimes Act

1. Shortly after leaving Mr Boyce's home the offender and the other man drove to a Westpac Bank and used Mr Boyce's bankcard to withdraw a thousand dollars. This transaction was caught on CCTV footage and is an offence and to be taken into account on a Form 1, is the offence of obtain an advantage by deception, s 192E(1)(b) of the Crimes Act 1900.
2. The offender and the other man then returned to Mr Boyce's property. They were in Mr Boyce's Holden. The offender told Mr Boyce to accompany the other man in the car so it could be filled up with petrol. Mr Boyce did not want to do this but he did go with the other man while the offender remained at the house. Mr Boyce later ran away from the other man at the Caltex Service Station and ultimately succeeded in getting a lift home.
3. Entirely understandably, having been the victim of serious offences, Mr Boyce remained fearful of repercussions from the offender and did not report the matter immediately. There were further text messages between the offender and Mr Boyce and demands were made in relation to devices.
4. On 17 April 2018 Mr Boyce's home was broken into and property taken. Police were told. Police then conducted investigations which indicated that Mr Boyce's Commodore was parked outside the offender's residence in Unanderra. On 25 April 2018 Cormack's bail, on other matters, was revoked and he went into custody. The other man was arrested on 30 April 2018.

s.166 Criminal Procedure Act matters

1. On 1 May 2018 a search warrant was executed at the offender's home in Unanderra. During the search police found a number of items that had been taken from Mr Boyce's premises. Offences relating to this property were placed on a s 166 Criminal Procedure Act 1986 certificate. As guilt was admitted I will sentence the offender for receiving goods knowing them to have been stolen: s 188(1) Crimes Act.
2. On 10 May 2018 Mr Boyce's Commodore was recovered from a car park in Kiera Street, Wollongong.
3. On 27 June 2018 the offender was formally arrested by police at the Metropolitan Reception and Remand Centre.

Maximum penalties

1. Section 154C(1)(a) Crimes Act offence carries a maximum penalty of ten years imprisonment and for an offence which falls objectively within the middle of the range, taking into account only objective features a standard non‑parole period of three years has been fixed by parliament.
2. An offence of aggravated armed with an offensive weapon with intent to intimidate, s 111(2) Crimes Act, carries a maximum penalty of 14 years.
3. An offence of intimidate, s 13(1) Crimes (Domestic and Personal Violence) Act, carries a maximum penalty of five years.
4. Receiving stolen property has a maximum available penalty of two years imprisonment; matter on a s 166 certificate.
5. Careful attention must always be paid to maximum penalties and applicable standard non‑parole periods. They are guides to be exercised in my sentencing discretion.
6. Matters on a Form 1 must be taken into account. Here, they require greater weight be given to personal deterrence and retribution. I do not sentence the Form 1 matters. They can and should be synthesised as part of my overall assessment of the appropriate sentence.

Seriousness of offending

1. Count 1 involved an abuse of the friendship that had previously existed between Mr Boyce and the offender. It is clear, and from the facts themselves and is reinforced by the other material before me, that at the time of the commission of all of these offences, the offender was "not himself."
2. As his mother said in her letter to me, exhibit 1(tab 10), "Jason had demons in his head and was not in a good head space." I will refer to the reasons for that later but so far as his former friend Mr Boyce was concerned, he was not to know what the rationale for these unusual and bizarre demands that were made of him was. He was confronted by a former friend who was behaving in a threatening and irrational manner. He was in his own home. His son was present.
3. While the taking of the car was accompanied by threats and a formal assault, the whole of the incident has to be taken into account. Mr Boyce's position of particular vulnerability must be taken into account. That said, it is not a matter that could be said to fall within the middle of the range of objective seriousness and there are other matters which require a fairly substantial reduction of the standard non-parole period that would otherwise apply.
4. The threat made about a weapon, even though not produced, is a matter that must have and did operate on Mr Boyce's mind. It would have continued to operate when the next offence occurred. It is clear, however, that Mr Boyce was hopeful that the two could be reconciled and that he would get his car back if he helped Cormack with whatever problem he was having with his devices; although I suspect there was no problem and that all of the problems were in Cormack's head.
5. So far as the next offence is concerned, Cormack went to Mr Boyce's home with another man. That other man was wearing gloves and for at least part of the period was masked. He was carrying a weapon of some sort and intended to, and did, convey to Mr Boyce that it was a firearm. The whole tenor of the entry into the premises was accompanied by menace and the objective of intimidation was clear. Again it occurred in the home of the victim. It occurred in the context of their prior friendship.
6. Once in the house, between 1am and 5am, there was a series of bizarre but intimidatory behaviour by the offender towards Mr Boyce. The period of time, and the time in the morning that these events occurred, all highlight the seriousness of the offence and its seriousness is related to the manner in which entry was obtained to the house and the presence of the other man throughout.
7. The Form 1 matter indicates the opportunistic way in which the offender dealt with his victim and speaks to the level of intimidation that was carried out during the four-hour period. Whatever happened thereafter and whoever was responsible for breaking into Mr Boyce's house, the connection with the present offender is obvious. He was in possession of some of Mr Boyce's property. He has accepted responsibility even though the warrant was executed while he was in custody. This conduct shows a continued disregard for Mr Boyce and his property and reflects badly on the offender.

Custodial sentences required

1. Each of the offences requires custodial sentences. Each of the sentences is aggravated by the fact that the offender was on bail at the time, having given a promise to a Court to be of good behaviour in order to secure that bail. He had been bail refused for a period. He was well aware of the consequences of committing further offences while on bail. It is clear that the revocation of bail in April reflected his failure to meet promises to be of good behaviour.

Case for the offender

1. The material produced for the offender reflects material that was before me when I sentenced him in 2017: R v Jason Cormack, unreported NSWDC, 4 May 2018, Haesler SC DCJ. It adds to that material in a number of substantial ways. I now have the benefit of reports from Dr Henderson, a consultant forensic psychologist. In his opinion, given the history he was given, the offender at the time he committed the offences was showing typical features of post‑traumatic stress disorder, persistent depressive disorder, with a possibility that he had suffered for some time, attention deficit hyperactivity disorder. Dr Henderson said that the manifesting symptoms associated with these disorders are; a hyper-vigilance for threat, increased sense of threat to his surrounds and impulsivity. The offender's background, which I will not set out in great detail, indicates potential reasons for those disorders.
2. Those disorders help explain what would otherwise be regarded as inexplicable behaviour towards Mr Boyce. I am prepared to accept that Cormack's underlying mental conditions did contribute to his offending behaviour. That conclusion receives further from the report of Ms Duffy, a forensic psychologist.
3. I will take into account Cormack's mental health at the time of offending, it related to the commission of the offences and does operate to reduce his moral culpability.
4. In some cases a person's mental condition can make the offender an inappropriate vehicle for general deterrence. That is not this case here. General deterrence, while it can be moderated, is still of importance here.
5. There is no evidence that custodial sentences weighed any more heavily on the offender than a prisoner who does not have his mental conditions because it would appear that while in custody he has been able to resolve some of the problems that led to the mental health symptoms being manifest when he committed the earlier offence.
6. There is still need here for specific deterrence because the offender has to understand, as I suspect he now does, the consequences of illicit drug use and not taking medication.
7. The impact of his mental illness is also relevant because it made Cormack, frankly, more dangerous to Mr Boyce, because he was not thinking rationally or calmly. Mr Boyce was not to know what was going to happen next and he was understandably apprehensive and fearful. So apprehensive and fearful, that he handed over, not just his car on one occasion, but his bankcard and PIN on another.
8. It is also clear that at the relevant time the offender was also using illicit drugs. The genesis for that drug use is set out in the reports.
9. The fact that someone is abusing illicit drugs is not a matter in mitigation and it can never excuse the commission of a crime. In fact, if someone was using drugs at the time, it can make them more dangerous because they can act even more irrationally. It is impossible for me to know whether it was his mental health issues and/or drug use or just a mental health issue that contributed to the commission of these offences. What is important however, so far as the matters for sentence are concerned, is that the offences appeared almost bizarrely impulsive and that there is material now before me to indicate that with assistance from medical professionals, Community Corrections and his family, and with some persistence on his own part, he can deal with the problems that led to the commission of these offences.
10. In that regard, Ms Duffy's report of 28 January 2020 is, as always, helpful. Ms Duffy indicates that since coming into gaol Mr Cormack has ceased using drugs. I have discussed with counsel the matter on his Correction's record which for the moment I will disregard. Ms Duffy reports that although he still has some PTSD and anxiety symptoms, Cormack's mental health has improved and he reported clearer thought processes.
11. She noted that the major risk factor for Cormack's committing further offences would be relapse into drug use. That drug use, as it has in the past, could exacerbate Cormack's paranoia, suspiciousness and hyper-alertness to threat. It could lead to irrational thoughts and poor decision making: things which characterise the commission of each of the offences before me and frankly, the earlier matter I sentenced him for. She notes he has a motivation to remain drug free and resist relapse; being part of a supportive family, his parents, his children and step‑children, all of whom have provided references to the Court, and have come to court to support him. However, as Madam Crown noted in her submissions, those motivations existed when he committed these offences.
12. Cormack's strong pro-social supports in the community should have helped him deal with his problems before the commission of these crimes. There is now a renewed commitment, which gives me some hope for his future when he is released.
13. Ms Duffy notes that to address his co-morbid mental health problems on release he needs cognitive processing therapy and trauma-focused cognitive behaviour therapy, which both have been found effective for his mental conditions. He will need to be continued to be supervised by Community Corrections, have regular drug tests and referral to programs to reinforce resistance to relapse.
14. He will need considerable help in adjusting to normal community life. The references before me from friends and family indicate that when treated and illicit drug free Cormack has the capacity to be a solid working man who can provide for his large family. He is in constant contact with that family, despite his incarceration. It is clear that his family needs him at home as soon as possible. At the present, the burden of growing up his children, rests solely on his wife. It is clear he has engaged with work in custody and is receiving treatment.
15. Cormack wrote a letter to me. It was not supported by evidence on oath but it is not particularly controversial. He expresses appropriate remorse for how his behaviour affected Mr Boyce's life and says "for that I am truly sorry." He expresses appropriate regret for what he has put his family through. He makes a promise on release not to return to prison. It is difficult for a judge to evaluate such expressions set out in a letter. To be frank, it is difficult to evaluate such expressions when given in evidence in the witness box. 'crocodile tears' can be shed in writing or orally.
16. Cormack has the support of many people who have said, despite everything, they are here to support him. He has other supports in the community. On the other hand he has offended against our community on a number of occasions and on this occasion he has offended on a number of occasions against Mr Boyce. His offences were directed at his victim and carried with them, as I said, bizarre elements which I am prepared to accept for good and ill, reflected his mental state at the time. He requires some degree of sympathy.

Chronology

1. The offender was arrested for the earlier sentence matter on 21 June 2016. He was bailed on 6 December 2016. He committed these offences in March and April 2018.
2. He was arrested for beach of bail on 24 April 2018. He was arrested for this matter on 27 June 2018. Bail was ultimately refused.
3. He was sentenced by on 4 May 2018. That sentence was back dated to take into account time served. It started on 7 November 2017. It expires on 6 September 2022. The non-parole period expires on 6 December 2020. Were it not for these matters, he would have been released.
4. His record, while serious and denying him leniency, does not put him in the category often referred to Veen No 2: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

Structure of the sentence

1. The material before me indicates Cormack has some capacity to lead a normal community life. He will need considerable assistance, which justifies a finding of special circumstances. He is presently serving a sentence of four years and ten months. His non-parole period of three years and one month expires on 6 December 2020. In December 2017 because of his subjective matters, his need for rehabilitation and supervision and evidence about rehabilitation I formulated a sentence based on 65 per cent being spent in custody with the balance is spent on parole.
2. This sentence must be accumulated, at least in part, upon that earlier sentence. So far as practicable, I will try and maintain that ratio because it is clearly both in the offender's and community interest that he get as much help as possible for as long as possible when he is released to parole. The rationale for that conclusion is set out in full in Ms Duffy's report, to which I have earlier referred.
3. I must sentence him for distinct offences on different days on the same victim. They were separate offences and they had compounding consequences. Each count involved discrete acts of criminality. However, each count had, within it, some common features and while the purposes of sentencing apply to each offence, those purposes overlap.
4. I must also take into account the sentence already being served and its consequences. One of those consequences is what appears to be a successful turning around of many of the attitudes and reasons why both sets of offences occurred.
5. There must be substantial of accumulation of the aggregate sentence being imposed today on that imposed in May 2018 but some concurrence is required. The overall purpose of the sentencing would not be served by total accumulation on the earlier non-parole period.
6. The sentences should be partly cumulative however and the aggregation of all sentences must be adjusted in the appropriate measure of the total criminality involved in all of his offending. Courts recognise that the severity of combined sentences should still allow for prospects of rehabilitation and reform to be facilitated. It is also recognised that each year in gaol is harder to serve than the year before. It is also accepted that that there should be no discount for multiple offending. Courts have considerable discretion into how to construct an appropriate sentence but that discretion must, as I indicated at the outset, be informed by principle to which I have referred.

Synthesis

1. Synthesising all of those relevant factors requires a further and reasonably substantial period in custody. It can be moderated by a finding of special circumstances to adjust the ratio of the combined sentences. Returning to the purposes for which punishment is inflicted. The sentences must; adequately punish this offender for what he did to Mr Boyce, recognise the harm that was suffered by Mr Boyce and attempt to vindicate his dignity. They must recognise, so far as possible, what brought this offender to where he is now and the harms he suffered as a young man and the mental conditions he suffered from at the time of offending. It is difficult in situations like this to extract a mental condition from the effects of drug use but it is clear that there are underlying conditions which are being addressed in custody and will need to be addressed on released.
2. If Mr Cormack is released in a worse mental condition than when he went into gaol, the community will suffer. It is in everyone's interest that he be released to parole and be supervised in the community for as long as possible. His release to parole will be subject to orders of the State Parole Authority. He will have to earn that release.
3. The indicated sentences will each reflect the reduction of 10% required by s 25D Crimes (Sentencing Procedure) Act to reward the offender's guilty plea. I have sought in the accumulation process not to erode the benefit of those pleas. Section 25D appears to require very specific reductions and adjustments to give effect to identified percentages. Meeting requirements for percentage ratios, whilst observing other principles of sentence, is not necessarily a straightforward task: RL v R [2018] NSWCCA 274 at [62]. I have rounded down. I do not believe the recent amendments require sentences be expressed in weeks or days. Sentencing is not meant to be a mechanical, numerical, arithmetical or rigid activity: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [39], [70] & [133].
4. I propose to start this sentence after Cormack has served two years and one month of that non-parole period, which will mean this sentence will start on 6 December 2019.

Orders

1. In relation to each of the matters I record convictions. I will indicate individual sentences. I will then impose an aggregate sentence.
2. There is a finding of special circumstances which includes allowing for the impact of accumulation. 1. Count 1, I indicate a sentence of two years three months. Non-parole period, one year five months; 2. Count 2, taking into account the Form 1 matters, I indicate a sentence of two years eight months; 3. Count 3, I indicate a sentence of one year nine months; 4. Count 4, I indicate a sentence of five months;
3. There will be an aggregate sentence of three years and seven months. There will be a non-parole period in this matter of one year and seven months, which will commence on 6 December 2019. To expire on 6 July 2021 on which date you will be eligible for consideration for release to parole. There will be a parole period of two years from that date.
4. To summarise - an aggregate sentence of three years and seven months; comprised of a one year seven months non-parole period and a two year parole period, to date from 6 December 2019.

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: 22 April 2020