[2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2023] HCA 3
Veen v The Queen (No 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2023] HCA 3
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (6 paragraphs)
[1]
Solicitors:
Legal Aid NSW (for the offender)
J Azad for Public Prosecutions (NSW) (Crown)
File Number(s): 2022/336940
[2]
Introduction
Liam Doolan is before the Court today for sentence for two serious offences:
Aggravated Break and Enter: 112(2) Crimes Act 1900 (NSW); and
Break and Enter Dwelling and Steal: s 112(1) Crimes Act.
There is a related matter of Take and Drive a Conveyance, the produce of the second burglary, to be taken account on a Form 1: s154A(1) Crimes Act.
Doolan was born in June 2000. Most of his life, as a teenager or a young adult, has been spent in custody. His time in custody, particularly in juvenile detention, was blighted by what, to a civil standard, appears to have been unlawful treatment, causing him harm. His responses to imprisonment and childhood exposure to domestic violence are reflected, in his chaotic and, frankly, dangerous lifestyle. During his early life he required considerable intervention by government agencies.
Doolan was raised in a dangerous and chaotic home environment. He was exposed to extreme examples of drug abuse and violence. A young brother was killed by his mother, who was ultimately found not guilty on the grounds of mental illness. He was subject to Department of Community Service intervention. It is tragic that part of his background is revealed in Supreme Court proceedings in relation to his mother: R v Doolan (No 2) [2010] NSWSC 194.
He has been in almost continuous custody since first going to gaol in July 2019. He has an E (escapee) classification.
He has become used to gaol, but he is not a compliant prisoner. He has a poor custodial history with multiple prison discipline matters. His sister reports he's now "a sad empty shell" and has become much more violent.
Since he was too young to make rational choices, he used methylamphetamine extensively and consistently. As is noted in the report of Ms Spatz at [39], Exhibit 1, before me:
"His attitude towards his offending behaviour and committing property crimes reflects a sense of normalcy and a lack of perspective. He struggled to recognise the gravity of his actions, as break and enters and stealing have been a normal part of his life since being a young teenager. For Mr Doolan, this is how things have always been done."
He has had poor physical health, except when he has been in custody, reflecting his history of neglect and deprivation. He has had few positive role models. He has very little trust in the system. He sees himself as a victim but responds aggressively.
When he was released to parole in September 2022, he was found a place in a group home and provided with some assistance. But he had difficulty complying with rules. He started using drugs again. He went out at night, and very soon left that residence. He was not looking after his health and went back to his old ways and committed the offences which he has admitted and for which he must be sentenced.
[3]
A court's duty to protect the community
Judges have a duty to the community to try and prevent future crime. One important purpose of punishing criminals is to protect the community from people who commit offences against the community. One way we do that is by locking people up. We lock people up to try and send a message to them about the consequences of their actions and to others who might be tempted to do what they did. We also try, by the conditions placed on them after release, to help them to help themselves. But the resources available to parole officers are limited.
The options available to the Court in this matter are also limited.
[4]
Is an Intensive Correction Order an available option?
As both submissions of the defence and the prosecution make clear, given Doolan's history, his criminal antecedents and the objective seriousness of each of the offences, only gaol sentences could be imposed. It is accepted that both matters fall towards the bottom of the range of what are serious offences.
It is accepted that Doolan's moral responsibility for his offending must be reduced because of the inextricably interrelated impacts of:
1. The effects of childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;
2. Childhood trauma: Nasrallah v R [2021] NSWCCA 207; and
3. Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Were I to do a simple calculus - taking into account the objective seriousness of both matters, the Form 1 matter, the need for some accumulation, the early guilty plea, Doolan's youth and reduced moral culpability, and also make allowance for at least 8 months on remand - an aggregate sentence of less than 3 years could be imposed.
That then enlivens the prospect, I stress, "the prospect," of the sentence being served in the community subject to intensive correction. The paramount consideration before an Intensive Correction Order can be made is the safety of the community: s 66(1) Crimes (Sentencing Procedure) Act 1999 (NSW).
For understandable reasons Doolan has consistently failed to be of good behaviour when released. Accordingly, I could not make an Intensive Correction Order today.
As the High Court made clear in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Intensive Correction Orders should have a forward-looking focus and be accompanied by appropriate conditions. Those conditions should not set someone up to fail.
If Mr Doolan was sentenced to full time imprisonment, he would be released in a few months, subject to parole, as he was before. Any conditions apart from supervision would be difficult to enforce. He would have no resources available to him other than what could be provide by the NDIS. It is likely he would reoffend as he has done repeatedly before. He could not be granted an Intensive Correction Order today because I do not have enough information as to his capacity to meet the conditions of the Intensive Correction Order.
[5]
A s 11 remand
What I have proposed and discussed with Mr McKenzie, for Mr Doolan, and Ms Azad, who appears for the Director, is to give Mr Doolan a chance to prove that he can meet the strict conditions of an Intensive Correction Order, if made, and take up the considerable support that is available to him today.
Where a court has some confidence in an existing process of rehabilitation in the community, which is already underway, the longer-term likelihood of re-offending may be diminished by not sending the person to prison: Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337, Basten JA at [93]. Conditional bail will give Doolan an opportunity to obtain that evidence. It could not be obtained were he to be returned to custody.
The risk of course is that he will breach those conditions. If he breaches his bail, he will go back to gaol. I am not particularly concerned about his return to gaol, sad though that would be. What I am concerned about is that if he breaches the bail conditions by committing further crimes, he might have hurt someone in the community or taken their property. And, as I said earlier, it is my job to try and prevent that happening.
Given all the material before me, that short term risk is probably less than what would occur if he was simply returned to gaol and served his sentence and was then released. It is a risk that I have to take responsibility for. I will not punish him if the breach is a minor one. A significant breach will however require a sentence be imposed by either me or another judge on the basis that having been tested he has shown he cannot be trusted in the community. He may then be subject to subject to the principles explained by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [477].
So, I propose to allow Mr Doolan bail today. I will set out the conditions which we have gone through carefully.
Doolan will have to appear before me in this Court on 10 November 2023 so I can get a progress report. It will only be a short mention, if things are going okay. I will then sentence him in this Court on 7 December 2023. If he gets a positive pre-sentence report, if he has kept to the conditions of his bail, it is my intention that the balance of the sentence I intended will be served in the community. If he stuffs up, he will receive a gaol sentence, but it will not be a lengthy gaol sentence, but it will be the gaol sentence that is required. There will be little more I can do.
Which means that if things go totally wrong it is not going to be the end of the world, Mr Doolan, but it will mean a return to gaol. If, however, you commit more offences, well then, all bets are off. You get the sentence I intended plus whatever else you deserve. I cannot put it any clearer than that, can I?
I propose to grant bail pursuant to of course the Bail Act 2013 (NSW) and s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is a condition of his release that he reside at 17 Kathleen Crescent, Woonona, that he enters into the residence agreement and obey the directions of Mindtree. That he be subject to a curfew between 8pm and 7am. I direct that there be no police enforcement of that curfew to avoid disturbing other residents, noting that if he breaches the curfew the police will be contacted. I cannot put an enforcement obligation on them. He is to report to Wollongong Police each Monday and Friday between 8am and 6pm. He must abstain from taking any non-prescription drugs and alcohol. I will add another condition of your bail, that having been released you not to leave the courthouse today except in the company of someone from Mindtree.
I request a full Sentence Assessment Report for 7 December 2023. Doolan would be advised to contact Community Corrections and make an appointment.
[6]
Amendments
08 November 2023 - Typographical error corrected.
08 November 2023 - Typographical error corrected.
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Decision last updated: 08 November 2023