Mr A Wong, counsel for the offender
File Number(s): 2019/139806
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Judgment
In the early hours of Sunday, 5 May 2019, Leonie Ingray was asleep in her home at Little Bay. She has two young children with the 30-year-old offender, Christopher Dickson. They were not living together at the time. He went into her house, and into her bedroom. She was awoken by him yelling at her. They began to argue about each other's alleged infidelity. At the time he was holding a short, silver axe, holding it over her head and threatening her. He demanded to know where she was the night before, who she was with, and kept threatening her with the axe. She was very scared. She drove away and called triple-0. Police found her crying in her car. She wasn't willing to make a statement about what happened. She was visibly upset during the time she was speaking to police, crying, and displaying visible signs of fear and shock. Mr Dickson was arrested soon after in a nearby backyard, when found by police dog. There was a provisional ADVO put in place and served on him while he was in custody following his arrest. One of the conditions of the ADVO was that he not approach her in any way. While in custody he added her phone number to his approved contact list, and between 17 May and 14 June he contacted and spoke to her on 42 separate occasions, which was in breach of the ADVO. The calls were audio recorded and in many of the calls the offender was angry and verbally abusive towards the victim. These agreed facts lead to him appearing for sentence having pleaded guilty at an early opportunity to,
1. An offence of stalk and intimidate, contrary to s 13(1) of Crimes (Domestic and Personal Violence) Act 2007, which carries maximum penalty of five years imprisonment, with no standard non-parole period (H71454743/3);
2. A count under s 115 of the Crimes Act 1900, of being armed with intent to commit an indictable offence. That offence carries a maximum of ten years imprisonment with no standard non-parole period (H71454743/7);
3. And finally an offence contrary to s 323(a) of the Crimes Act 1900 of doing an act with intent to influence a witness, which carries a maximum of seven years imprisonment with no standard non-parole period (H71700672/3).
The maximum penalties and standard non-parole periods are legislative guideposts or yardsticks to be used in the sentencing process, to be carried out in accordance with the purpose of the sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.
The plea was at an early stage, justifying 25%discount for utilitarian value of the pleas.
Also to be dealt with, summarily is an offence of contravening the ADVO contrary to s 14 (1) of the Crimes (Domestic and Personal Violence) Act 2007 which relates to the phone calls made to the victim by the offender (H71700672/3). That offence carries a maximum penalty of two years imprisonment.
At the time of offending, he was on conditional liberty in a number of respects. Firstly, on 9 May 2018, he was sentenced to ten bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, for a term of 12 months for dishonesty offences. On 31 October 2018, he was sentenced to two 18-month Community Corrections Orders for offences of stealing property at dwelling house and aggravated enter a dwelling in company with intent to steal. He was also on conditional bail granted on 8 April 2019 for another offence.
The first matter to deal with is the breaches of the community corrections orders. The offender gave evidence before me on the facts and the Waverley Court papers are available. In short, the offender's version was that his co-accused, Holton, on 1 February 2018, went into an apartment and stole a packet of the cigarettes. The offender said that he was outside. Police facts suggest that he was inside the apartment at the time of this event. The matter was subject to a defended hearing before the Magistrate. The offender was convicted and sentenced to the Community Corrections Orders to which I have referred.
I am unable to make any firm findings of facts in the light of the evidence but on any view, they were not particularly serious examples of the offences. I propose what I will do is ultimately impose a sentence of three-month imprisonment on each to commence on the day of which he was arrested, 5 May 2019.
I then turn to sentence on the remaining matters. His subjective case is compelling. Not only was a detailed history and recent psychologist report confirmed by him in evidence but, perhaps unusually, as part of the Crown case the prosecutor tendered a psychologist's report containing a relevant and similar history prepared in August 2016, so it cannot be said that there is any controversy about his subjective circumstances. In short, they are summarised helpfully by Mr Wong in submissions as being that both his parents were absent from his life. His father died before he was born. His mother's alcoholism meant she could not play a meaningful role in his life. He was raised by an aunt and uncle, who was a heavy drinker and at times physically and verbally abusive towards him.
He felt isolated within the family unit where he was raised. His cousins targeted him as he had paler skin and his uncle's extended family didn't accept him because he was not directly related in the biological sense. He experienced significant trauma in the form of his brother dying after he committed a break and enter in 2016 and his sister hanging herself in June 2019. Due to violence and isolation experienced in the home, he started running away from the age of 14. He mixed with older peers, who were a negative influence and began experimenting with cannabis and alcohol at age 13, amphetamines at age 15 and methamphetamines at age 17. He abused drugs as it killed the pain and provided feelings of euphoria.
He had a disrupted education; he was suspended from school and placed in special classes, which resulted in him being bullied. He has a real difficulty with reading and writing.
He spent about 75 per cent of the last ten years in prison, which has obviously impacted, upon his ability to obtain regular employment. All of that clearly leads to consideration of Bugmy factors (Bugmy v The Queen (2013) 249 CLR 571) in this case.
His record, as has been indicated, is lengthy. There was sentence of seven years with a four-year non-parole period commencing December 2010 for aggravated break and enters; and a further sentence of six years, with three years and three months non-parole period commencing 7 February 2012. Another sentence of 24 months with a 14-month non-parole period commencing October 2015. And some balance of parole was served in 2015. He was out in the community for about a year before these offences. He made a number of attempts at rehabilitation according to the evidence tendered by the Crown and the report of August 2016. At John Morony he completed the IDAPT intensive drug and alcohol treatment program for ten months. At Wellington, he was Head of Hygiene in the wing. He was then moved to Dawn de Loas where he worked in the kitchen, packing dinners and he was a sweeper, which is a position of trust in the prison system. Finally, he was at Windsor, where he remained for ten months, engaging in Aboriginal art courses, computer courses and literacy programs. After his release in 2015, he went to see a psychologist for his mental health, and he has completed programs such as Get Smart and IDAPT for drug relapse. He was, at that stage, on the waiting list to do a partner in recovery course as well as another Get Smart drug and alcohol course, although it is not clear as to whether he undertook those courses.
As the Crown pointed out, Ms Duffy assessed him as being a moderate to high risk of re-offending and in hindsight that was accurate. He demonstrated that with comprehensive supervision he had good prospects of rehabilitation, if he were able to complete the treatment plan. He was described in the recent report as a polite, cooperative, and respectful 30-year-old man of Aboriginal appearance, which is consistent with the impression that I formed of him giving his evidence today.
He was born in Kempsey and grew up in the Aboriginal mission on the mid-North coast. He said that he needed his mother's love, but he never got it and he always felt lost and lonely. He didn't want to be alone when he was growing up. His mother is a severe alcoholic. She is not a good person and he has never had any real relationship with her. He said that he had a good relationship with Leonie since he first met her at the age of 14 and 15 years. They were always in love but when he started using drugs it broke her heart.
He was diagnosed with ADHD when he was seven, and took prescription drugs to manage the condition until he was about 16 or 17. He was diagnosed with schizophrenia in 2010 and he was prescribed Seroquel to manage the symptoms. He was also diagnosed with depression in 2010 and he takes Avanza for that condition. He had suicidal thoughts in the past and attempted suicide by swallowing razorblades after he was first taken into custody on the current charges. Whilst in the community before his current period in custody he had been living with his family in Newcastle and attempting to establish stability in his life. He moved back to Mascot and the victim was living in La Perouse. He was using ice and drinking heavily. On the morning of the offences, he formed the belief that she was with someone else and he got paranoid. He said that his heart was broken and that led to him taking matters into his own hands.
As to the calls made to her while he was in custody, he said he was withdrawing from drugs, he was emotionally unstable, and he wasn't coping and acknowledged that it shouldn't have gone that far. He told the psychologist and he said in unchallenged evidence that words can't describe how sorry he is about what he did. He has to accept that he can't be with his partner and said he just got paranoid when he was on drugs. The psychiatrist notes confirming diagnoses of adjustment disorder, major depressive disorder amphetamine-type substance use disorder and alcohol use disorder.
All of these factors have had a significant impact on his psychological development, together with his significantly disadvantaged upbringing. Mr Borkowski recommends a significant custody-based treatment program including a compulsory drug treatment program. I
In February and March of this year he attended remand domestic abuse program while in custody.
As to the objective seriousness of the first offence, it is clear that he armed himself with a frightening weapon, committed the offence against his ex-partner in the early hours of the morning, in her bedroom where she was asleep and entitled to feel safe. It was a terrifying ordeal for her.
As Mr Wong puts, on this issue, there is no evidence of sophisticated planning or premeditation. The offence was of a short duration. The facts of the intimidation and the armed with intent offence are closely related obviously. He acknowledges that the offence is objectively serious given the involvement of the axe and grave fear that he instilled in the victim. It is unnecessary for me to place these offences in any notional range of seriousness, but the recitation of those factors referred to by the parties indicate the serious nature of the offence. When I say the offences, I mean the stalk and intimidate and the armed with intent offence which rely on the same facts.
As to the offence of doing an act with intent to influence a witness, the courts regularly stress the very serious nature of this offence; it strikes at very heart of the judicial system and those who interfere with the course of justice, or attempt to interfere with the course of justice, must be subject to severe penalties. As Mr Wong puts, it was an unsophisticated offence. It was mostly likely, particularly given his knowledge and experience of long periods in prison, that his behaviour would be detected and prosecuted knowing that prison phone calls are monitored and recorded. The attempt to influence a witness had little prospect of success and minimal risk of interfering with the administration of justice, but as was said in Marinellis v R [2006] NSWCCA 307, it is irrelevant whether the conduct actually brings about a miscarriage of justice. He was experiencing withdrawal from heavy drug use at the time of the offending and, as Mr Wong acknowledges, the gravamen of the offence is the pressure brought to bear on the victim and the stress that she must have experienced because of that pressure. It is a serious example of this type of offending.
It is common ground that committing the offences while on conditional liberty is an aggravating factor. I accept, notwithstanding the Crown's submissions, that the offender is now remorseful and has expressed regret for his offending and a desire to improve his lot with further treatment and courses. His previous record obviously does not entitle him to leniency, and it shows that he has a propensity to reoffend.
I think with some maturity by the age of 30 and having had the salutary lesson of a number of lengthy periods in custody, the prospects of rehabilitation are, at least, reasonable. Full weight should be given to his deprived background and the impact that such factors have had on him, as, of course, was said in Bugmy. That background explains his inability to cope with the vicissitudes of life without resorting to substance abuse.
I take into account in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 terms the fact that he was suffering from the unchallenged mental disorders referred to by Mr Borkowski and also referred to in the earlier reports. As Mr Wong put, sentencing an offender who suffers from a mental disorder commonly calls for a sensitive, discretionary decision.
His mental health issues created real challenges for him and made it difficult for him to cope with life in the community after years in prison, the stresses within the relationship and the pressures of raising and supporting a family. I think Mr Borkowski's opinion is an accurate summary, namely, that "his behaviour was combined function of his withdrawal from illicit substances which compounded his emotional instability and his pervasive fears of rejection and abandonment and his adequate problem solving and conflict resolution skills." Notwithstanding all that, the Crown correctly submits that the Court should emphasise general and specific deterrence and denunciation in the context of domestic violence offences and offences against justice.
I must take into account questions of totality and accumulation in imposing a sentence in addition to the sentences that I have indicated will be imposed for the breach, revocation and the re-sentencing for the offences for which the community corrections orders were imposed.
There is a clear basis for a finding for special circumstances given the need for significant assistance and treatment on parole and the risk of institutionalisation.
I have had regard to the comprehensive statistics provided by Mr Wong and to the cases of Evans v R [2012] NSWCCA 59 and R v Burton [2008] NSWCCA 128 which are put forward by the Crown as some comparator in the sentencing process.
The orders that I make are:
1. In relation to the community corrections orders each bond is revoked, a conviction is confirmed, and I impose a fixed sentence of three months' imprisonment commencing 5 May 2019.
2. On the three principal offences I impose an aggregate sentence of three years with a non-parole period of two years commencing on 5 June 2019 - that is an accumulation of one month. The indicative sentences are 15 months, 20 months, and 18 months, respectively. I find special circumstances.
3. In relation to the contravene AVO the offender is convicted but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I impose no further penalty.
4. I note that sequences 1 and 2 are withdrawn.
5. On the breaches of the ten s 9 bonds, in relation to offences of dishonestly obtain financial advantage by deception no action is taken.
HIS HONOUR: Anything else?
WONG: No, your Honour.
KO: Nothing further, your Honour.
HIS HONOUR: All right. Thank you all for your considerable assistance.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 29 April 2021