R v Eager

[2021] NSWDC 848

District Court of NSW|2021-11-11|Before: Statistics Bureau J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-11-11

Before

Statistics Bureau J

Catchwords

[2013] HCA 37 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Hili v The Queen (2010) 242 CLR 520
[2010] HCA Muldrock v The Queen (2011) 244 CLR 120 Queen v Pham (2015) 256 CLR 550
(1999) 46 NSWLR 346
2020/265755

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Hili v The Queen (2010) 242 CLR 520[2010] HCA Muldrock v The Queen (2011) 244 CLR 120 Queen v Pham (2015) 256 CLR 550(1999) 46 NSWLR 3462020/2657552020/280461

Judgment (14 paragraphs)

[1]

JUDGMENT - ex tempore revised

When he was before the Local Court Lee Dillan Eager indicated that he would accept responsibility and plead guilty to two serious offences: 1. Aggravated Break and Enter and Commit a Serious Indictable Offence, indictable offence being, Assault Occasioning Actual Bodily Harm, and the circumstance of aggravation being that, he knew that people were in the building that was broken and entered: s 112(2) Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years imprisonment and standard non-parole period of 5 years. 2. Intimidation with intent to cause fear of physical or mental harm: s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). It has a maximum penalty of 5 years imprisonment.
The offences occurred on 20 March 2021. Eager was arrested on 22 March 2021 and has been in custody since his arrest. The offences occurred in breach of a Community Correction Order and a Community Corrections Release Order for two drug related matters. The breaches are admitted, and I have been asked to deal with those breaches. I note, at this stage that none of those matters would have crossed the s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) threshold requiring custodial sentences. But the fact that the principal offences were committed in breach of promises to be of good behaviour, aggravate the sentences that I must impose. I will not double count those matters.

[3]

A chronology of events

The Agreed Facts indicate that on 20 March 2021 Eager was at Wollongong Emergency Department. He had injured his little finger. He left the hospital intending to speak to his then partner who was at work. He took a taxi to her workplace. He was rambling but also focused. Rambling because he somehow blamed his partner for not attending the hospital where he had been waiting. On reflection, he now understands that he was being kept waiting because his behaviour at the hospital indicated that he was drug affected.
He arrived at his partner's place of work. She would not let him in. He threatened to kill her. He complained about waiting at the hospital. He was speaking to the complainant through the locked door, which she understandably refused to open. He threatened to kick the door in. He abused her for "not giving a fuck" about him. He used derogatory terms toward her. He then picked up a large cement block and broke the glass in the door.
The complainant ran from him. He followed and grabbed her. He punched and kicked her multiple times to the head and body. He pulled her hair with significant force. She described "seeing stars." At the same time her co-worker was screaming at him asking him to stop. He grabbed her belongings, abused her further and took her to the cab.
She was trying to mollify him by apologising to him, he responded with abuse. She tried to calm him, as is obvious from the CCTV, but he was still making derogatory remarks about her to the taxi driver. At one point he said to her, "We're going to kill each other and bury each other. I've dug holes and everything. The holes are dug, we are going to sleep." And then further derogatory terms were uttered. He made further threats about them both cutting each other's throats.
At one point she said, "Lee, look at my face and my head." She was distressed and in pain and the offender said, "What do you mean? What happened to your face and head, did you fall over?" He said, "Are you serious?" And held up his injured finger. He gave an explanation for what he said in his evidence today. He still does not appreciate the point being made by the prosecutor's question - that his actions that day showed concern only for himself.
He then took the cab to another location. As the cab left and it would appear that a mutual friend at the location asked him to pull up and stop fighting with the complainant. It was only on 22 March 2021 that he was arrested. He was with the complainant. It would appear that she was still shaken as at the time she told the police officer, "He's going to think I did this, called the cops. He's going to kill me. You can't help me, he'll put me in a hole, it's ready." Indicating that, drug affected or not, the threats he made in the cab were still operating on the complainant at the relevant time.
She was examined that day at Wollongong Hospital. Clumps of hair her had been pulled out. Her head was acutely inflamed, swollen and very tender. She was also tender over her abdomen. The injuries were consistent with having her hair pulled forcibly.
When arrested, as he maintains today, the offender told police he was taking a combination of illicit and prescription drugs and had no real memory of the events.
The objective facts reveal this was a particularly serious event. Although I am prepared to accept that his actions were spontaneous, it is not the complainant's fault that she locked the door against him. Once that door was locked against him and he could not get what he wanted, that is to take her from her place of work, she was personally targeted. A brick was used. The distress she and her co-worker were suffering is clear from what I heard on the recording.
Eager obviously knew people were there, an element of the offence. He obviously caused her actual bodily harm, an element of the offence, accompanied by blows, some to the head. Both during the incident, but also afterwards, he targeted her with serious threats that were derogatory in nature, and one that created in her a fear that she may well be killed.
Eager's actions that day indicated that somehow in his mind he thought he was trying to help her. He now, I am prepared to accept, realises how wrong that feeling was. His behaviour was controlling and cruel. Whilst spontaneous and unplanned, it was a serious example of a domestic violence type offence. It was committed without any regard to the possibility that he would be discovered. While CCTV enabled us to see what occurred in the cab, it did not prevent this offence occurring.

[9]

Drug use

I have referred already to his drug use. It does not mitigate. It helps me understand how this offence occurred. It has particular relevance to the structure and disposition of this sentence because if, and I say if, he gets sufficient help in custody. If, as he now professes, he has some realisation that he needs rehabilitation in the community, he may avoid a repetition of this offence and repetition of returning to gaol. Here, given the risk of a return to gaol, if he resumes drug use, subjective deterrence is a real significant factor: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
I am indebted, as always, to a comprehensive 'warts and all' report from Ms Godbee. The formal basis and facts upon which she makes her determinations and diagnosis were supported by evidence on oath, which is not significantly challenged. She notes Eager's personal history, to which I have briefly referred, and I have had regard to. She notes, his suicidal ideation and the matters to which I have already referred. It is clear that prior to this offence his drug use had led to a deterioration in his mental state; that is obvious from his behaviour. It is clear that if he can respond to his long-term drug problem, he may be able to lead a law-abiding life in the community.
He indicated to Ms Godbee that he was now stable and felt that he was confident enough not to need extensive intervention. Whether out of practical common sense or out of self-interest, he has now realised that it is absolutely essential that he engage in treatment in custody and in the community. Whatever his motivations are, that is an encouraging sign, because he may not get parole unless he engages in programs. He tells me he is aware of and has taken steps to engage in the various Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Addiction programs. And they would be absolutely essential, in my view, to the question of whether he gets parole.
As presently advised, it almost essential that he engage in some form of Intensive Drug and Alcohol Treatment Program to identify his triggers for relapse and to develop concrete strategies to avoid these triggers, as Ms Godbee recommends. In his evidence today, he said he has reconsidered his negative aspects to such programs. I will give him an opportunity to engage in community programs by a finding of special circumstances.

[10]

Remorse

Eager has expressed remorse today. He has, by his plea, accepted responsibility for his actions. I am guarded, as Ms Hughes who appears for the Director submits, as to whether he has real insight into his offending behaviour. But I accept he now, having viewed the CCTV, accepts that his behaviour was unacceptable. It would appear however, that he still blames the drugs, not his underlying attitudes. It is those underlying attitudes that must be addressed, hopefully in the EQUIPS programs.
There are two matters for sentence. There was one incident. They have many common features. But the s 13 Crimes (Domestic and Personal Violence) Act intimidation offence continued after what occurred during the break and enter, and one sentence could not fully encompass the other. There must be some accumulation. The total sentence must be just, and appropriate measure of the total criminality involved.
Mr Kwan asked that this sentence not crush Eager's hopes for rehabilitation in the future. Whether a sentence crushes someone often depends on the perspective of the observer, whether they be offender, the victim, or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301. But while this matter is serious and requires a period in custody, it is not a matter that calls for anything like the standard non-parole period or the maximum penalty on the scale of matters.
The sentence can be structured to enable a minimum period that must be spent in custody, but to also allow for period of residential drug and alcohol rehabilitation, although it is a matter for the parole authority. He will need considerable assistance dealing with his addiction problem in the community and in custody to help him to adjust to normal community life.
In making that finding, I note the minimum period in custody must reflect the gravity of his offences and the purposes of sentencing. It is also important to note that offenders who do receive parole supervision were less likely to commit serious offences on release when compared with those who are released unconditionally: W Wan, S Poynton and D Weatherburn, "Does Parole Supervision Reduce the Risk of Re-offending?" (2016) 49 Australian & New Zealand Journal of Criminology 497; J Holmes, "Crime and Justice Statistics Bureau Brief: Re-offending in NSW" (2011) 56 NSW Bureau of Crime Statistics and Research 1.

[12]

Synthesis

Synthesising all those matters. While I recognise the impact of his childhood and Eager's long-term drug addiction, I have to focus on what was done. Mitigating circumstances can go only so far. But Eager must be returned to the community. He should be is returned in a better position to deal with the stresses and strains of work, of relationships, of caring for family. He needs help to avoid relapse into drug addiction. He will need all the help that is offered to him, and he is prepared to take.
After my review of all the material there is still an underlying fear that he believes, somehow, that what he was doing was justified. While he says the offending only occurred because he was drug affected, my fear is still there. The courts recognise that domestic violence offences carry with them special dynamics, and as here, it is clear that the victim was personally targeted. The offence was, as the offender now recognises, part of a larger picture. But that larger picture, from all the material before me, indicates that there was continuing and mental violence, with the offender exercising power and control over his victim: R v Burton [2008] NSWCCA 128 at [97].
He cannot step away from those underlying factors by saying he cannot remember what he did, even though that loss of memory may be true. The objective facts before me reveal that, on this day, he seemed to believe that what he was doing was justified or could be excused. He saw himself as the victim rather than the complainant. That threat continued up until his arrest. The victim may never have truly felt safe (until her death): R v Dunn (2004) 144 A Crim R 180. She was, however, protected from him by his being remanded in custody.
Proper recognition has to be given to the real harm crimes such as this do their victims and the community in general. There is a dilemma in such matters, however, because the law demands that people who offend against women in the way that Eager did be removed from the community. But as a deterrent to violent behaviour gaols have been a dismal failure. Gaol terms break prosocial bonds, they encourage links with other criminals, and in particular, those who engage in misogynous violence. They, rather than discouraging violent crime, can have a crime producing effect: D Ritchie, "Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1.
The offender himself spoke of the potential for being stood over in custody. Gaols are an ineffective way of addressing the underlying causes of such crimes, and s 9(3)(g) Crimes (Domestic and Personal Violence) Act says that such offences should be addressed by a coordinated legal and social response, which is why the parole authority should do everything that is possible to ensure that that response continues when he is admitted to parole.

R v Eager

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)