R v Farrell [2019] NSWDC 835 | Case summary

Recorded call 11 September 2018

On 11 September 2018, the offender explained his motivation for creating the account and amending the captions on the posts: LF: 'cause people'll know not to go near it 'cause it's a fuckin' headache. You know? 'cause cunts might be talkin' to it, and mightn't know it's a fuckin' dog. AT: Who? Him or her? LF: Both. Imagine that. One of the boys or somethin', you know what I mean, they'll be fuckin' spewin' when they fuckin' try and tell a story on 'em … Well, look at [LB]. [LB]'s doin' more statements on cunts … 'Cause cunts don't know about him."
The offending conduct caused detriment to the victims by way of making public their status as informer witnesses, thereby damaging their reputation and isolating them from their peers. [LB] was particularly vulnerable to retribution given he was an inmate at the time.
The offender admits by way of the agreed facts that his conduct caused an actual detriment to the two victims. This is not a case where simply threats of harm were issued, but actual harm was visited upon the victims as a result of the offender's conduct, as identified in paragraph 19 of the agreed facts above. Of relevance is the fact that the offender's conduct occurred while he was in custody, having been parole-revoked and charged with offences of a similar kind.
His conduct was, in the circumstances, not directed at causing the informant witnesses to withdraw their statements, because by the time of the conduct, his younger brother Cory Farrell had entered a plea of guilty on 21 August 2018, and this offending took place between 25 August and 12 November 2018. However, it is nonetheless a serious offence in each case. The offending was premeditated, deliberate, continuing and involved recruiting others to achieve his criminal objective. The offender was clearly intent on alerting the criminal milieu to the role of each of Ms [TJ] and Mr [LB] as persons who were prepared to give evidence in a criminal matter against a criminal offender.
Within the period of 25 August - 12 November 2018, material identifying them as informers ‑ or in prison terminology, "dogs" ‑ was published to the world at large, and the offender's expression as to his purpose on 11 September 2018 was clearly to warn other members of the criminal milieu against speaking with either of the victims. It is well known that within the prison system, if also not without, that individuals who turn on their criminal associates to provide evidence against them are dealt with extremely harshly, particularly if available to be so dealt with when in custody.
It is the reason why courts make Letters of Assistance from the police in relation to informants' confidential exhibits, and why reasons on sentence for those persons are also carefully worded to avoid it becoming common knowledge as to the role that they have played that has resulted in a discount on sentence. The inevitable result of a person who is in custody having been identified either before going into custody or while in custody as an informant is that they either have to ask for themselves to be placed in protective custody, or they are automatically placed in protective custody by the prison authorities because of the severe endangerment of significant injury, which might be occasioned to them in those circumstances.
In this case, Mr [LB] was in custody, and the fact that he was in the custodial witness protection program was identified to the criminal milieu by the use of the hash tag "supergrass". There is no evidence before me that there was any consequence of the Instagram account having been set up to Mr [LB], but the risk was high.
In relation to [TJ], having been an ex‑partner of the offender, while she was not in custody she had apparently formed a subsequent relationship with a prisoner, [SS]. The offender's request to those assisting him to identify that fact to anyone who might access the Instagram account clearly also placed [SS] in jeopardy, as it is likely that other persons or prisoners would hold it against [SS] that he had formed a relationship with an informant. He was clearly trying to create problems for not only [TJ], but also [SS], because he directed that [SS]'s wife be added to the Instagram account, and made reference to the location of [SS] within the prison population. If Mr [SS]'s wife did not know of his relationship; that in itself might cause significant problems for him.
I accept that the offender's conduct in relation to each of the victims is a serious example of offending of this nature, which potentially could have led to significant harm to each of them, including Mr [SS] as the current partner of the offender's ex‑partner.
Offending conduct of this nature represents a direct attack upon the justice system. The Instagram account could be viewed by any member of the public and it had the potential to undermine the trust that informer witnesses place in police and prosecuting authorities to provide for their protection. It would operate as a discouragement to members of the criminal milieu taking on the role of an informer in relation to other members of the criminal milieu.
It significantly diminishes the prospect, in general, of informers coming forward to provide evidence of criminal offending by others, and that is a significantly adverse circumstance in relation to the investigation of criminal offending, and as I have said, a direct attack on the justice system. In my view, the offending in each case can be assessed as approaching closely the midrange of objective seriousness for such offences.
Also of relevance in relation to the sentence proceedings is the offender's history. He had been sentenced at the Sydney District Court in September 2013 for offences committed in 2011, being robbery while armed with a dangerous weapon ‑ which appears to be a conspiracy to commit that offence ‑ possess unauthorised prohibited firearm; receive property, theft, serious indictable offence, less than $5,000; possess unauthorised prohibited firearm; and an aggravated break and enter and commit serious indictable offence, persons being there. In respect of the robbery while armed with a dangerous weapon, he was sentenced to a term of imprisonment of seven years to commence from 12 August 2012 and conclude on 11 August 2019. The non‑parole period was four years and six months and he was released on parole on 11 February 2017.
However, on 5 July 2017, he was charged with a number of offences, also concerning Ms [TJ] as a victim. Those offences were threaten person with intent to influence witness, contrary to s 322A of the Crimes Act; threaten to cause injury, harm, and prevent information about an indictable offence being given to police, contrary to s 215A(1) of the Crimes Act; two offences of contravening a prohibition/restriction in an apprehended violence order, in each case, as I understand it, in relation to [TJ]; and an offence of larceny.
Before the Court is an affidavit from the offender's solicitor, Christopher Cole, which indicates that, in short, the charges related to an alleged attempt by the offender to dissuade Ms [TJ] from giving evidence in proceedings against Mr Farrell's brother, Cory Farrell, in circumstances where she had been subpoenaed by the prosecution to attend court and give evidence, but had not yet made a statement. I should have noted, in relation to the offences that I referred to him being sentenced for on 13 September 2013, there were terms of imprisonment in relation to each of the offences other than one of the possess unauthorised prohibited firearm, that being taken into account on a Form 1, but a number of terms of imprisonment were imposed, which were all entirely concurrent with the seven year sentence with the four years and six month non‑parole period.
On 26 July 2017, the State parole authority revoked Mr Farrell's parole order, with the balance of his parole due to expire on 2 September 2019. So, at the time of this offending, the offender was in custody, parole revoked, pending resolution of the fresh charges, with the exception of the offence of larceny, which was discharged at committal on 16 May 2018. He was not arraigned in the District Court on the remaining charges until later, when he initially pleaded not guilty and the matters were listed for trial commencing 4 March 2019, and an ex officio indictment later filed. He was not charged with the offences currently before me until 18 December 2018, by way of a future CAN notice served on him while in custody.
In relation to the current charges, two other persons were also charged, being Ms Monique Farrell, a younger sister of the offender, and a Ms Allison Tasker. The information before the Court is that the offender met and formed a relationship with Ms Tasker after being released on parole on 11 February 2017.
In the period between then and his return to custody on 6 July 2017, Ms Tasker fell pregnant, and a child was born from that relationship while the offender was in custody on 30 January 2018. At the time of this offending commencing, the child was approximately six months of age. The trial in relation to the earlier offending of Mr Farrell was originally to commence on 4 March 2019, but did not proceed on that occasion, it would appear, because of an intended application to rely on the current matters as tendency evidence in that trial.
On 18 March 2019, the offender's parole revocation was reviewed, and noting that there was then a trial date of 30 September 2019, no further action was taken in respect of the earlier decision to revoke his parole. On 20 June 2019, the offender was committed for trial in respect of the present matters. Advice was given to Mr Cole by the Crown that they intended to try all of Mr Farrell's offences on a single indictment.
However, in August of 2019, [TJ] died, and representations were made in relation to, in particular, the earlier charges that had been laid against Monique Farrell and Allison Tasker, which were still pending in the Local Court. On 6 September 2019, the Director ordered no further proceedings in relation to the ex officio indictment against Mr Farrell, as well as in respect to the proceedings against Ms Farrell and Ms Tasker in the Local Court.
There is nothing before me as to the particular reasoning for that course being adopted, but it appears likely that it was because an essential witness was no longer available, having died. On the same day, there was negotiation between the parties, and Mr Farrell then entered a plea to the present two offences and asked that one charge contrary to the Crimes (Domestic and Personal Violence) Act be placed on a Form 1 schedule. It is of significant concern that the offender, having been charged with offences that resulted in his parole being revoked and his return to custody, went on to commit further offences of a very similar nature to the offences that had caused the revocation of his parole. Apparently, he learned nothing from the fact that his parole had been revoked for committing similar offences.
As to subjective matters, before the Court is the offender's criminal history, a NSW Department of Corrective Services Conviction, Sentences and Appeals report, a Breach of Parole report dated 11 July 2017, a further State Parole Authority Response Report to the governor of the Mid North Coast Correctional Centre dated 18 March 2019, and a copy of the order revoking the parole order dated 26 July 2017. The reason for the revocation of the breach was Condition 1, "The offender must, while on release on parole, be of good behaviour (outstanding charges)".
The parole order was to be treated as having been revoked on 14 June 2017. In addition, tendered on the offender's behalf is the affidavit of Christopher Cole, dated 2 October 2019, which sets out some of the history to which I have referred. An affidavit of Yvette Leaver dated 1 October 2019, being the offender's mother, a psychological assessment under the hand of Neil Ballardie, psychologist, dated 29 September 2019, a letter to the Court from Allison Tasker dated 1 October 2019, and a letter from Nolene Leaver, dated 1 October 2019, being, I take it, the grandmother of the offender. Subjective matters have been drawn from that material.
The offender is the eldest of three children of his parents. The family originally lived in Kyogle, but struggled financially. The offender grew up in Kyogle and then Tweed Heads in northern New South Wales. He is said to have a positive and supportive relationship with his siblings. His parents apparently often fought in his childhood, which negatively impacted on him, and they separated when he was about 15 years of age. He describes his father as angry, aggressive, and undermining and often hitting him. At 15 years of age he ran away from home and went to his grandmother's. He refers to his mother as supportive and considerate, and indicated that he has always been close to her. Now that he is older, he has forgiven his father for his past conduct and they have become closer.
His current partner is Allison Tasker, who it is evident from the material before me was at least alleged to be one of those assisting in relation to the publication in the Instagram account. He describes her as supportive and loving. He is described by his mother as having always loved being at home with his family and being close to his grandmother, who has often visited him in gaol. He is said to have had a smooth transition in formal schooling, which he mostly enjoyed, finding it easy to make friends, and not being the subject of any notable bullying. He achieved average grades and enjoyed sports. He was about to concentrate in school and mostly completed projects and his homework on time. He is said to have been most respectful of his teachers and engaged in classroom activities and rarely disruptive.
His mother and the children moved to Sydney in 1988, without their father, to get away from the domestic violence. According to what his mother told the psychologist, it was at this time that he had some difficulties adjusting from life in the country to Sydney with, "some difficulties adjusting to the gang culture", he found at Sydney schools. Apparently he attended a few different schools until his mother was able to place him in one which had a positive and supportive Aboriginal community, where he settled down. He left high school following Year 11 and commenced an apprenticeship in panel beating but did not complete it. He then commenced an auto mechanics apprenticeship, but left because he lost interest in it. He started a lawn mowing and gardening service in 2011, but was incarcerated as a result of criminal offending, and could not continue the service.
He informed the psychologist that he has recently undertaken research in Aboriginal art, and as an Aboriginal, he wants to become an Aboriginal art dealer, and has apparently registered an ABN for that purpose. He is said to have a strong connection with his Aboriginal community and his uncle, who he is close to, is the head of Tribal Warrior. That, from memory, is an indigenous person by the name of Shane Phillips. I note that I am aware from past matters of the activities of Tribal Warrior and the assistance it endeavours to give to indigenous persons, particularly those who are having difficulties, and I note that, not that I hold it against the offender, there is no reference from his uncle in this matter, who presumably could have assisted him over the course of years, the offender now being some 35 years of age and committing these offences at the age of 34.
The offender has a significant past criminal history, apart from the offences that I have already referred to. There were a number of offences as a juvenile, mostly in relation to motor vehicles, but eventually more serious offences in relation to aggravated break and enter and commit serious indictable offence in company, on a number of occasions.
As an adult, apart from driving offences, there have been offences of assault occasioning actual bodily harm, intimidate police officer in the execution of duty, aggravated break and enter and commit serious indictable offence in company, common assault, robbery armed with an offensive weapon, break into a building and steal a value more than $15,000, and it is obvious from his criminal history that he has committed a number of serious offences over the years, and he has spent a number of periods of imprisonment, commencing from 14 October 2004. While in custody, he has on a number of individual occasions breached the prison regulations, although in recent years, that is, since he has returned to custody, only one minor matter since 2016 of failing to look after clothing or bedding, in relation to which he was required to pay $13.15 compensation.
The breach of parole report in relation to past supervision includes the following under response to supervision, "Although the offender was mostly compliant with attending scheduled appointments, his response to supervision was considered superficial". He has, apparently, completed the EQUIPS aggression program whilst in custody, and informed the psychologist that he had completed the Phoenix nine month course, being a personal training course, and obtained his white card, as well as completing the course titled, "Enough is Enough", and computer courses, as well as an NRL referees coaching course. The psychologist found no evidence of any formal thought disorder or perceptual disturbances, or thoughts of harm to himself or others. His level of literacy is described as average, in the absence of testing, and the psychologist opined that his intellectual functioning appeared to be in the normal range, with no significant medical problems, no history of self‑harm, and no prior admission to a psychiatric facility.
Both the offender's mother and his grandmother indicate that they have observed significant positive changes in the offender since his now approximately 21 month old son was born. As to his use of prohibited drugs and/or alcohol, he is said to have started consuming alcohol when he was approximately 18 years of age, but never being a big drinker, and over drinking occasionally. He is said to have first tried cannabis when he was 17 years of age, consuming it with friends a few times, but had not consumed any since then. I note that he continues to enjoy the support of his mother, his grandmother and Ms Tasker.
Ms Tasker, in her reference, speaks about her difficulties as a result of now being a single mother, and opines that the offender's priorities are that he does not want his son to grow up without his father being around, and also wishing to set up a business involved in buying and selling indigenous artworks. Other than the expression of that desire to several persons, there is nothing before me that indicates that the offender has any particular expertise in relation to running a business, or in relation to art, of any nature. Ms Tasker says that, "Lance has told me how much he regrets what he has done. He is also very disappointed in the effects his actions have had on his family. He has told me that he wants to do better in and life, not only for himself, but for us as a family".
I have some difficulty in describing any significant weight to the letter from Ms Tasker, taking into account that it is apparent that she was charged as being involved in the present offending, even though the charges have been discontinued. As to the offender's desire to not want his son to grow up without his father, I note that the child was conceived while he was on parole between February 2017 and July 2017, and that the child was then born on 30 January 2018, as I have previously referred to, at approximately some six or so before this offending, that is, the offender embarked on this conduct at a time when he knew he had a young child to his relatively new partner. That is inconsistent, in my view, with what Ms Tasker indicates as to his desires to be with his family and with his son. Having been charged with like offending, he went on to commit these offences shortly after the birth of the child
A plea of guilty in itself does not necessarily indicate remorse or contrition, and this was a belated plea, after some negotiation. In respect of the passage that I have quoted from Ms Tasker's letter to the Court, it appears that he regrets what he has done and the effect that that has had on his family. It does not appear to be an expression of remorse or contrition. Even his grandmother fails to indicate that he has expressed any remorse or contrition to her. As to the psychological report of Mr Ballardie, under contrition is the following: "When asked about the seriousness of his offending behaviour, Mr Farrell acknowledged he was wrong to have committed the offense, and said he regretted his behaviour. His conduct and attitude towards offending reflected someone who had taken responsibility for his actions."
I accept that having eventually entered a plea of guilty, that he has taken responsibility for his actions, belatedly, but I am unable to find in the evidence before me any acceptable evidence of genuine remorse or contrition. As to the prospect of his reoffending, Mr Ballardie opines the following: "After considering the facts, his history, attitude, explanation of offending, and after reviewing his current family circumstances: in my opinion, if he was to follow through on the treatment plan provided in this report, his risk of reoffending should be considered moderate."
I have considered all of the material before me, and accept as an appropriate submission the following from the Crown's submissions on sentence, Exhibit 2 para 15: "It is submitted that it would represent the triumph of hope over experience to assess the offender's prospects of rehabilitation as anything other than poor. The present offences occurred while the offender was in custody, parole revoked, and with bail having been refused on similar charges involving the same alleged victim. This, taken with the offender's criminal history, indicates a continuing attitude of disobedience of the law, a point which is only underscored by the nature of the present offences, which themselves strike at the heart of the criminal justice system."
As indicated, in my view, that quote from the Crown submissions correctly summarises the real position in relation to this matter, taking into account all of the material. While the offender's youth was not without difficulty this is not a matter in which the factors referred to in Fernando and Bugmy have any application.
It has been conceded that the s 5 threshold has been passed, and that there is no alternative other than a period of imprisonment being provided.
Submissions made by Mr Howell, being Exhibit F2, note that the offender has been continuously in custody since 5 July 2017 as a result of the revocation of his parole, and having continuing matters hanging over his head at various times since then, including being in custody in relation to this matter since 2 September 2019. The Court has the discretion to backdate a sentence to be entirely concurrent, partly concurrent, or alternatively to be entirely cumulative on past sentence, as referred to by Simpson J in Callaghan v The Queen (2006) 160 A Crim R 145.
In Hutchen v The Queen [2015] NSWCCA 101, it was said at (36) that, "It is incorrect to characterise the time spent in custody as a result of the revocation of parole, as "any time for which the offender has been held in custody in relation to the offence", as referred to in s 47 of the Crimes (Sentencing Procedure) Act 1999.
Section 47(3) is directed to incarceration directly relating to the offence in respect of which the offender is being sentenced. In the Crown's submission, the period of custody solely referrable to these offences is the period from 2 September 2019, being the date on which his revoked parole expired. Noting that it was not until after that date that the earlier charges to which I have referred were withdrawn, after the death of Ms [TJ], those charges being withdrawn on 6 September 2019. Prior to 2 September 2019, the offender was in custody, bail refused on the like charges from 2017, parole revoked and eventually bail refused on the present charges when, as I understand it, bail was not applied for on one of the occasions that the matter came before this Court for sentence, before Hosking AJ on 28 June 2019.
In the circumstances of this matter, considering the offender's past history, I regard both specific deterrence and general deterrence as being important matters to take into account. Specific deterrence, particularly, because this offending was of a like nature to the previous charges, although those matters eventually were not proceeded with, and the fact that he was committing this offending while in custody. General deterrence is always important in relation to matters which interfere or potentially interfere with the integrity of the justice system and in relation to these matters, particularly where, although there is no evidence of any adverse consequence to either of the victims, or Ms [TJ]'s current partner, Mr [SS], the risk was very high, at least until such time as the Instagram account was cancelled.
Accordingly, I intend to date the sentence from the date of the expiry of the parole period. I intend to proceed by way of an aggregate sentence. I have already noted that I will provide a 10% discount for the utility of the plea in relation to each of the offences, and accordingly the indicative sentence in relation to the s 326(2) offence of cause detriment to a potential witness, [TJ], taking into account that that also includes an offence contained on a Form 1 of contravenes prohibition in an AVO is two years and four months.
In relation to the further offence contrary to s 326(2), cause detriment to the potential witness [LB], the indicative sentence is two years and six months. The reasons for the difference between the two sentences is that in my view, and as accepted during argument, the objective seriousness of the offence in relation to Mr [LB] is higher, considering that he was at the time of the Instagram account being in operation, a prisoner in protective custody in the New South Wales prison system, and in those circumstances, particularly at risk.
Those are the indicative sentences. The sentence that I will impose is a non‑parole period of one year and six months commencing on 2 September 2019. The non‑parole period will expire on 1 March 2021. The balance of term is a further period of one year and six months, giving a total sentence of three years, expiring on 1 September 2022, so, expressed differently, that is a sentence of three years with a non‑parole period of one year, six months.
I have found special circumstances in relation to this matter because I have taken into account the totality, being the total time in custody since 5 July 2017, and I have endeavoured to restore an overall balance of 75% for the non‑parole period, including that period of time, which is approximately two years, one month, so I have reduced the non‑parole period from the statutory relationship of 75% to the total sentence to 50% of the total sentence. I am unable to find any other special circumstances.
As to charge H65302742, Sequence 3, I note that is withdrawn and dismissed. That offence being a further offence of contravening a prohibition/restriction in an ADVO.

R v Farrell

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