HIS HONOUR: Dominik Lukas Frankiewicz appears today for sentence in relation to five offences committed by him between 14 July 2014 and 18 August 2014.
One of the offences to which he has pleaded guilty and for which he was committed for sentence is an offence contrary to s 112(2) Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of five years imprisonment. That is the "principal offence". But there are no matters on a Form 1, so in describing it as the "principal offence" I am referring to it as obviously the most serious offence with which I am concerned.
Related to that offence are four offences of contravening apprehended violence orders committed at various times between 14 July and 18 August 2014. Those offences, as the facts will reveal, are intimately connected with the underlying reasons for the offending and other related matters. One contravene apprehended violence order offence, that is the one committed on 14 July, is an offence which was committed at the time of the commission of what I have described as the principal offence. The other three offences, however, were committed at later date or dates, two of them committed on the one day and the third, that is the fourth contravene apprehended violence order committed on 18 August leading to the arrest of the prisoner.
The reason I am dealing with these matters which are ordinarily summary matters and are of course still summary matters but amenable to his jurisdiction is because they were referred to this Court as related offences on a s 166 Criminal Procedure Act certificate and are to be dealt with in accordance with s 167 of that Act.
I will return to the technical issues that arise concerning those matters shortly but those four charges dealt with summarily carry a maximum penalty each of two years imprisonment and 50 penalty units, and of course, I am required under s 167 to fix an appropriate sentence for those matters, the prisoner having admitted his guilt in relation to those matters before me.
The prisoner pleaded guilty to the indictable matter, that is, the principal offence to which I have referred at the Local Court and was committed for sentence. It was agreed by the Crown, as was submitted by counsel for the prisoner, that the prisoner was entitled to a discount of 25% upon the otherwise appropriate sentence to recognise the utilitarian value of the plea of guilty in accordance with the guideline judgment in relation to such matters of Thomson v R; Houlton v R. Likewise, I propose to give the prisoner the benefit of a discount of 25% upon the otherwise appropriate sentence for the matters on the s 166 certificate, they were placed on the s 166 certificate being summary matters, as I would understand it, in anticipation of pleas of guilty being entered and in my view thus the prisoner is entitled to recognition of the same discount given the way in which the matters have come to Court.
As I earlier mentioned the prisoner was arrested on 18 August 2014 when the last of the offences in time was committed and has been in custody since that date. The sentence will commence from the date he came into custody.
In sentencing the prisoner in relation to the indictable matter and the four summary matters I am required to give effect to principles of totality of sentencing in accordance with decisions such as the High Court judgment in Pearce v R (1998) 194 CLR 610, particularly at [45] and subsequent decisions of the Court of Criminal Appeal such as the decision earlier this century of Hammoud in 2000.
Each of the offences was committed whilst the prisoner was subject to a community service order in respect of offences committed against the same victim and were in breach of s 9 bonds granted in relation to offences directed at or concerned with the same victim. Committing offences whilst subject to conditional liberty is an aggravating factor and here the matter is a significant issue because of the fact that the offending on prior occasions bear similar characteristics, albeit not identical characteristics, of much of the offending on the prior occasion. Of course the offending with which I am concerned is related to the same victim, and much was said in the course of the evidence and in the submissions about what lessons the prisoner ought to have learnt from his experience of appearing at the Local Court in June 2014 from custody, after being apparently in custody for six or seven days, to be sentenced in relation to those earlier offences.
I will come back to that matter shortly.
The facts of the matter are set out in a set of "agreed facts" although I note the facts are not signed by the prisoner.
I will deal with the prisoner's evidence before me given yesterday afternoon, of which I do not have a transcript of course, at a later time. Essentially the prisoner accepted the facts that are set out.
The prisoner had been in a relationship with the person I will describe quite properly as the 'victim' for apparently 18 months up until they separated in about March 2014. The victim was, as I understand it, 18 years old at that time but obviously was somewhat younger when she commenced the relationship with the prisoner. He was born on 28 September 1989 and at the time of the offending with which I am concerned would have been 24 years of age. He is now 25 years of age. Not that it matters a great deal but I might have thought the prisoner in his presentation in both size and appearance appeared slightly younger.
Police had applied for and had been granted a provisional apprehended violence order in May 2014. This arose out of offences, as I understand it, committed by the prisoner towards the victim from mid‑May 2014. It is important that all relevant matters be placed in their proper chronological order.
On 16 May 2014 the prisoner assaulted the victim occasioning actual bodily harm to her and damaged or destroyed her property giving rise to those two charges for which he was subsequently dealt with on 18 June 2014.
He also had previously, on 9 May 2014 according to the records available to me, committed the offence of intimidation. He subsequently on 29 May 2014 contravened the provisional apprehended domestic violence order that had been granted in mid‑May as a result of the prisoner, I assume, assaulting the victim. He also further committed an offence of contravening an apprehended domestic violence order on 12 June 2014. This course of conduct, apart from being absolutely unacceptable, led inevitably to him being retained in custody because clearly at that point there could be no guarantee that the victim could be protected from the prisoner given his manner of behaviour.
I have read the facts as they were drafted in relation to that series of offences, as I understand it, committed between 9 May 2014 and 12 June 2014. I am not sentencing the prisoner in relation to those matters but I must point out given the number of offences, the time over which they were committed and the circumstances in which they were committed with the prisoner being restrained from contacting or being near the home of the victim, I am surprised that the prisoner was treated as leniently as he was in the Local Court.
Be that as it may, the prisoner when arrested apparently on 12 June 2014 remained in custody until he appeared at the Central Local Court on 18 June 2014. For the last contravene apprehended domestic violence order that he committed, that is the offence committed on 12 June 2014, he was ordered to perform 100 hours community service.
In respect of the other offences, the assault occasioning actual bodily harm which I regard as a very serious offence of its type and particularly vicious, as well as the other offences I have identified variously committed between 9 May and 29 May 2014, the prisoner was granted s 9 bonds pursuant to the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months. It appeared from what I heard of the evidence that the prisoner did not receive any supervision. The prisoner gave evidence of performing his community service, the phrase was used "picking up papers," but spoke not, nor was aware of, any supervision, counselling or direction given to him from the time he appeared at the Local Court on 18 June 2014 until he was arrested approximately two months later. Whether there was sufficient time for any counselling, direction and the like to be given to the prisoner is debatable but if it is true that all he did was perform some perfunctory community service without receiving what was clearly urgent attention to his obsession with the victim is a matter of considerable regret, particularly for the victim.
The final orders were granted in relation to the provisional apprehended domestic violence order taken out on 9 May, I assume when the matter was dealt with in mid‑June at the Court. Certainly it is clear that the prisoner knew that he was restrained in his contact with the victim. One of the complications, expressly stated in the facts, and a complication I am afraid that may live with the victim at least for some period of time, is that at the time of the ending of the relationship she was pregnant to the prisoner. What this means in due course is a matter for other jurisdictions to settle. However, part of the problem in this case, and it is not a problem of the victim it is a problem of the prisoner's, is that because the prisoner understood (I point out he was somewhat prevaricating about this aspect) that the victim was pregnant he felt that he had some proprietorial right over her or any decision she made about the child she was carrying. He could not have been more wrong.
I will deal with his evidence before me after I have summarised the agreed facts. But the prisoner kept on telling me that amongst the explanations he had for his totally unacceptable behaviour of harassing and making the life of the victim unbearable was his claim of "being in love" as if that was not only an explanation but an excuse for his conduct, nothing I hasten to say could be more wrong.
The two offences, the principal offence and one of the breach ADVO conditions and restriction offences committed on 14 July arose when the prisoner turned up at the victim's home, the victim luckily having her brother at home with her, and the prisoner was seen to kick the glass doors of the victim's family home open making a hole large enough for him to fit through.
The victim at the time the prisoner was kicking in or damaging the glass doors was in the bathroom. She called triple-0 and the victim's brother sought to intercept the prisoner when he stepped through the hole carrying a brick in his right hand and started walking towards the victim who had emerged apparently from the bathroom.
The victim's brother whose age is not disclosed to me tried to restrain the prisoner. The prisoner said to the victim. "This is your fault, I want another chance". The prisoner at this stage had the brick in his hand. He gave an account of this offence which if not false was certainly wrong, claiming that he created the hole simply by throwing the brick through the window or the glass door which is not in accordance with the agreed facts.
To be fair, this offence stopped when the prisoner turned around and left the house putting the brick down, stepping back through the broken glass. But he continued to remain around the house. At one stage while in the victim's house he went into the victim's bedroom, grabbed her laptop and apparently tore it into two pieces. The laptop was worth or had cost $1,562 to replace. Hence, the charge that I am specifically concerned with, rather unusually it might be said, involves a breaking and entering in circumstances of aggravation to wit the prisoner knew that people were present within the said dwelling house, the serious indictable offence being "malicious damage" as it is described in the charge.
By being at the house, of course, he was in breach of the apprehended domestic violence orders then permanently in place at least for two years, which restrained him from contacting the victim and approaching her or going to her home.
He committed two offences of contravening apprehended domestic violence orders as I said earlier on 15 August, one at 1am in the morning. The victim's mother heard the dog barking and found the prisoner, very disturbingly I must say, hiding in the cupboard of the daughter's bedroom. The second offence committed the same day at 3pm involved the victim's mother coming home and smelling the aftershave of the prisoner, going to the victim's bedroom cupboard and finding the prisoner hiding inside the cupboard again. The mother left the bedroom and dialled triple‑0. The prisoner asked her not to contact the police. While she was on the phone the prisoner left the house. He did not threaten her.
The last offence in time involved police being called to the home of the victim and seeing the prisoner exiting the victim's bedroom and run toward the front door. He jumped out a front window and was ultimately picked up some distance away and has remained in custody ever since.
This brings me to something that arose from the prisoner's evidence which is not addressed in the agreed facts and about which I cannot make a decision one way or the other. That is the suggestion that lies in the facts themselves, although implicitly, and in the evidence directly of the prisoner, that from time to time notwithstanding the existence of the apprehended domestic violence orders the prisoner was invited to the home by the victim herself. I cannot conclude one way or the other of whether that was so, but even if the victim had invited the prisoner to her home the prisoner had no right to be there. Certainly in the absence of other evidence I could not conclude in any way that the invitation that the prisoner spoke about was in fact one given voluntarily by the victim.
The prisoner's criminal history I have referred to in order to bring the current matters into context. His counsel who ably represented his interests drew the Court's attention to the fact that his other criminal history, if I may call it that, is not significant. That is fairly to be said. He has some appearances in the Children's Court in 2007. He does have a prior finding of guilt in 2008 for assaulting a police officer and resisting an officer in execution of his duty or her duty and behaving in an offensive manner, all offences apparently committed on New Year's Day 2008 for which he was modestly fined in each case.
He also has a finding of guilt for possessing a prohibited drug, he having some background in the abuse of illegal substances as well as alcohol, and a conviction for having a knife in his custody in January 2013 for which he was fined $300. Of course those findings of guilt do him no credit but they are modest matters. The most significant findings of guilt and convictions must of course be those involving the same victim and which gave rise to the various restraints upon him that mean that he had no right to be at the victim's home at any time.
The prisoner, as I said, gave evidence to the Court. He gave evidence about the history that he gave the psychologist whose report I have read, his use of medication in the past, matters relating to the commission of the offences, some of which I have already noted, and steps he had taken whilst in custody to address some of the underlying issues that apparently have contributed to some of his behaviour.
I am not sure that the particular matters identified by him really provide much insight into the clear obsession he had with the victim and the totally unreasonable way he went about trying to re-establish a relationship with the victim. One might have thought, as I pointed out to him in his evidence, that punching his former partner in the face who he would have understood was pregnant to him did not reflect the actions of a person who was truly in love with another.
I point out from the outset as was self-evident by the presentation of the prisoner that he was not an altogether impressive witness. It must be fairly said that he was quite inarticulate. He spoke on many occasions in generalities and in a formulaic fashion. I accept of course that he is certainly not an experienced witness. He may have never given evidence before.
I accept that he expresses regret for his conduct and on several occasions tried to explain his conduct, as I said earlier, as arising from the fact that he was "in love" and he was "not thinking straight". But he did not convince me that he had a complete understanding of the seriousness of his conduct in the context of his previous offending or a real insight into what caused him to act the way he did. As outspoken, and properly so, commentators on the issue of domestic violence point out time and time again such as Ms Rosie Batty the Australian of the Year, obsession leading to violence and intimidation and creating fear in the hearts and minds of the victims of domestic violence is not consolation for those victims at all. In the circumstances of this matter it is quite irrational, bearing in mind of course the offences with which I am concerned arose quite a number of months after the breakup of the relationship and after, as I have pointed out, the prisoner had been dealt with in another Court and given some leniency which ought to have restrained him from further crime.
The prisoner also reflected some degree of immaturity to be fair. He had very little insight as to the consequences of his previous appearance at Court, the granting of good behaviour bonds, and even the time that he had in custody before those bonds were granted to him to reflect upon his conduct. He told me that his conduct was inappropriate, which is an understatement, but he also told me that in custody he had undertaken some courses in relation to anger management and substance abuse, and being now alcohol and drug free this had given him an opportunity to "reflect." He pointed out that it took him some months actually to properly reflect upon what he did and this may reflect some disturbance in his thinking, if not arising from any psychological or psychiatric condition, arising out of his feelings towards the victim.
The Crown in a skilled cross-examination particularly pressed him as to why some of the matters that were raised with him by the Crown and by myself concerning his prior behaviour and the need to reflect upon it had not sunk in after he had been dealt with in the Local Court and had been in custody. The best explanation he could give in his evidence as I understand it was that he was "caught up in the moment" around this time, that in fact he had not adequate time to reflect even whilst in custody for seven days and also that he continued to drink alcohol, particularly after being released. He told me in fact that the offences of 14 July were committed after he travelled down from Newcastle, where he normally lived, by train and consumed a bottle of spirits. Again, the consumption of alcohol is not a mitigating factor and many examples of domestic violence such as this is arise when the perpetrators have drunk alcohol, inflaming the situation rather than improving the situation.
He told me he was content to undertake counselling and obey directions about his future conduct from the parole authorities. It seems to me that unless he follows directions from them the consequences will be catastrophic for him and possibly others.
He was unable really to explain the character of his conduct and could not in any way justify it given some of the circumstances I have pointed out.
I accept from his evidence that he is at this stage desirous of pursuing a path to reformation and complying with directions that may be required of him by the Parole Authority. But of course at this time he has a number of months of sobriety and I am concerned, as all Judges are, that when one is dealing with an offender who has committed offences over a period of time and repeatedly against the one victim the restraints upon him of parole supervision once freed from custody arrangements may not be sufficient to protect him from further offending or to protect the community.
It is in this context that I consider the psychologist's report. The prisoner had given evidence of being hospitalised at a mental health unit as it is described in the psychologist's report at the "Mater Hospital". I do not know whether that hospital is Newcastle or the "Mater" with which I am familiar on the Pacific Highway near North Sydney.
What the prisoner said in his evidence was that he had been "diagnosed with schizophrenia." It is accepted by his counsel and certainly it must be objectively observed that there is no reliable evidence that the prisoner had schizophrenia or has schizophrenia at this time. In fact the psychologist's report suggests that whatever condition he was treated with at the mental health unit, where he was an inpatient for approximately a month or six weeks, was not a chronic condition.
I point out initially the prisoner asserted that he was hospitalised in early 2014 which would have been at the time of the breakup. However, he told me that he had his 24th birthday whilst at the unit and his birthday is in September, so this hospitalisation would appear to have occurred some months before the breakup and certainly quite a number of months before the offences with which I am now concerned.
I am not a medical practitioner, obviously, nor a psychologist but from the history obtained by the psychologist and the statements of the prisoner it seems to me the condition for which he was treated, no discharge summary has been provided to the Court, would appear to be some form of 'drug induced psychosis', an expression in fact used by the prisoner himself to describe at one stage the circumstances of his admission and treatment.
What is interesting from the prisoner's evidence and from the psychologist's report is that the prisoner was prescribed risperidone which is an antipsychotic medication because he was "accusing people of doing things and being angry and to stop bad thoughts." However, he told me that when he was discharged from hospital he stopped using that medication notwithstanding advice to the contrary. He had not had the recurrence to the symptomology, nor any adverse effect of ceasing that medication. That would seem to suggest, purely of course from a lay perspective, that in fact the condition for which he was hospitalised was an acute condition not a chronic condition.
It must be said that the offences with which I am concerned were committed when he was not using antipsychotic medication but also where there is nothing in the objective facts or the account given by the prisoner to suggest any psychotic condition being causally connected to the offending, even if the offending represents conduct of a highly unstable person.
His counsel conceded that no issue arose pursuant to the 2004 decision of Hemsley, where Justice Sperling summarised relevant principles relating to the sentencing of offenders with mental illness and mental abnormalities which was in a more detailed fashion discussed by the then learned Chief Judge at Common Law, Justice McClellan, in the 2010 of De La Rosa ([2010] NSWCCA 194, particularly at [177] - [178]). Thus, I was not invited to consider a causal connection between any mental illness or abnormality or imbalance such as to warrant less weight being given to general deterrence to consider the hardships arising in custody from the condition, to consider whether the prisoner was a danger to the community and thus greater weight need be given to personal deterrence or the other matters described by Justice McClellan.
However, of course, this background of mental instability requiring hospitalisation and essentially relying upon the history recorded by the psychologist and some evidence of the prisoner is a relevant matter to take into account. It more likely than not reflects the adverse effect upon the prisoner of the abuse of alcohol and drugs which would be a contributing factor it would appear to some of the offending behaviour, particularly the principal offence given the history of consumption of alcohol.
I note from the psychologist's report that when he examined the prisoner on 8 April 2015 there was no evidence of significant psychopathology in his account to the psychologist. There was no evidence of psychosis, psychotic thought processes, unusual verbalisations, delusions, formal thought disorder or antisocial personality disorder. He presented an even mood and the psychologist thought he was of average intelligence.
He has had a very unusual history and I am prepared to accept that his personal history is so as the psychologist in a somewhat disjointed fashion reflected. He is one of three children but has had no real contact with his father for quite a long time and his mother had lived in a number of domestic relationships that were entirely unsatisfactory to the prisoner himself. He had witnessed it would appear a great deal of domestic violence. He has lived with his grandmother since he was about 13 and he has an aunt who also helped look after him. One of his aunts, maybe the same aunt, it is unclear from the evidence and the information I have, has travelled some distance to support him in Court, as his grandmother.
He told the psychologist that when he lived with his mother he saw a lot of "bad things" which have had a big impact on him. He could not remember, however, at school any diagnosis of dyslexia or ADHD or ADD, notwithstanding poor performance at school, although he did enjoy some subjects.
Since leaving school after finishing Year 10 he has had casual and irregular employment largely in the hospitality industry and with labouring, but he was about to start some form of warehouse management course at TAFE before he came into custody.
The psychological assessments that were undertaken reveal that by reference to the Beck Depression Inventory he scored in the moderate range for mood disorder, he had a mild range of anxiety, he had marked risk on personality assessment of acting out. That is, acting impulsively as he did on occasions here. Although I point out whilst I could not conclude the offences were planned offences the prisoner on occasions he travelled considerable distances in the knowledge that he was restrained from approaching the victim to commit various offences with which I am concerned.
He had a tendency to have detachment from others and alcohol problems and he was at moderate risk of future problems with anxiety, depression and personal distress. He was it is said, to put it as an understatement, at "mild risk" in the areas of anger control and hostility control. I think the facts of this matter reflect very high levels of inability to control his anger. The psychologist concluded that drug and alcohol use would disinhibit him which is self-evident and that the prisoner had a number of interpersonal deficiencies which is self‑evident. In the anger management area he was depicted on the relevant testing as being "somewhat impatient and easily irritated" which again is an understatement.
By reference to what was called the Personality Assessment Inventory the diagnostic possibilities that were hypothesised were alcohol dependence and substance dependence but there was no any substantial mental illness or abnormality causally connected to the offending.
His grandmother was spoken to by the psychologist and gave a history of his mental health problems and his difficulties arising after treatment for that. The prisoner's dysfunctional childhood was reflected upon as well as his chaotic upbringing. The psychologist formed the view, given the prisoner had undertaken courses in custody concerning anger management and drug and alcohol counselling, which the prisoner had found useful as he said in his evidence, that the prisoner's prognosis was good if he remained drug free and if he continued vocational training and "disassociates from past negative influences."
It must be pointed out of course by reference to that opinion that no negative influence caused him to commit the particular crimes with which I am concerned. He expressed regret to the psychologist and described his actions to the psychologist as "a very stupid brain explosion" and he wanted to "apologise for this disturbing behaviour." Again, I point out these "brain explosions" were repetitive and continued over an extended period of time and were not impulsive matters.
Of course all these sentiments may be genuinely expressed, but the conduct has to be seen not as one single brain explosion but a number of actions as I have categorised them. The psychologist said the prisoner would benefit from relapse prevention programs and would need appropriate medical psychological monitoring, although the prisoner did not have a full understanding of what mental health issues were, according to the psychologist.
Out of the evidence of the prisoner and the psychologist, and of course the material relating to the offending, the Crown by agreement addressed first in a most helpful manner. He conceded the need for a finding of special circumstances to give the prisoner an extended period of supervision to address the issues identified by the psychologist. This submission as supported by the defence and I am in agreement with the submission that the two parties have put. In my view pursuant to s 44 I should make a finding of special circumstances to give the prisoner who is now serving his first term of imprisonment in reality an extended period of supervision, firstly to assist him to adjust to community living and to get appropriate direction in relation to personal relationships, alcohol and drug usage, employment and training, and also counselling or treatment in relation to any residual mental health problems.
The Crown submitted that a discount of 25% upon the otherwise appropriate sentence for the early pleas was appropriate and I have already dealt with that.
The Crown made specific submissions about what was said to be "aggravating factors" arising under s 21A(2). In relation to a number of these submissions of course I bear in mind that whilst they were put in a general fashion I understood the Crown to be saying that some of the matters adverted to obviously were specifically relevant to the principal offence, although some of the features of aggravation are common to all five offences. However, they are of greater salience in the sentencing exercise obviously in relation to the indictable offence and the consideration of course of the standard non-parole period.
The Crown said, firstly, that the prisoner was in relation to the indictable offence "threatening violence" by carrying the brick in the manner he did as set out in the agreed facts. This is an aggravation under s 21A(2)(b) of the Act and this was not disputed by the accused's counsel.
Secondly, it was submitted that an aggravation was that the offence was committed in the home of the victim. This is an aggravation pursuant to subpara (eb). The Crown took me to the decision of Andrew Smith [2013] NSWCCA 209, particularly in the judgment of the Court at [44] - [47]. As the Court noted from previous decisions of the Court of Criminal Appeal, particularly the judgment of Palijan from 2010, the fact that an element of the offence was breaking and entering does not require that the premises be the home of the victim and thus the commission of an offence such as malicious damage of property in this case or intimidation as it was in the case of Palijan involved the aggravation of being committed in the home of the victim. This was conceded by counsel for the prisoner.
The third significant matter of aggravation arising under s 21A(2) was the fact that the offences with which I am concerned were all committed when the prisoner was subject to conditional liberty. He was subject to conditional liberty not only by reason of the fact that he was required to perform community service and he was subject to good behaviour bonds, but of course the four offences on the s 166 Certificate particularly involved breaches of restrictions under apprehended domestic violence orders reflecting upon the fact that in respect of the principal offence with which I am concerned on this aspect the prisoner committed that offence when he was subject to the ADVO. Of course I appreciate the need not to double-dip. It is an element of the four offences on the certificate that he breached the ADVOs. Clearly the element of breach of conditional liberty in this limited respect, not in the wider respect which applies to all five offences, does not apply to those offences. But that aspect of conditional liberty certainly has relevance to the principal offence. To put it in another way, the breach of conditional liberty in the circumstances of this case with that conditional liberty relating to offences or orders made in respect of the victim is a significant matter, particularly in relation to the sentencing for the principal offence.
The Crown submitted that the offence fell within the middle range of offending. I discussed this with the learned Crown Prosecutor and with counsel for the accused, I do not propose to go through the detail of those discussions but in my view in respect of the offending in relation to the principal offence, and that is the offence most concerned with this categorisation, given the terms of s 54A(2) and s 54B(2) of the Act, the categorisation of the offending in the middle range of offending in my view is not an accurate assessment of it. I appreciate the offending is objectively serious in the proper context that I have outlined, but one is required also to consider other factors. Firstly, the circumstance of aggravation arises out of knowing the victim was present in circumstances where the prisoner was directing the actions towards the victim. This is a substantial matter to take into account but on the other hand the serious indictable offence committed was that of malicious, as it is described, damage or reckless damage to property which has to be considered within the range of offences contemplated by s 112 Crimes Act as being of a less serious category. In that regard I note the discussion about these matters in decisions of the Court of Criminal Appeal such as Harris and Huynh from 2007 and 2005, particularly Justice Simpson's observations in Huynh. I appreciate of course her Honour was not laying down immutable rules. She was speaking of the situation generally that applies and there will always be exceptions.
I am mindful too of the course of the matters that arise out of the decision of Ponfield (1999) 48 NSWLR 327 which Justice Howie in Marshall [2007] NSWCCA 24 at [37] said were relevant matters in determining the factors to be considered in the evaluation of the seriousness of an offence, carrying with it a standard non-parole period.
The principal offence, referring to Ponfield criteria, was not the result of professional planning. The prisoner, whilst he had prior offences against the victim did not have a prior record of like offences. There was no specific vulnerability of the victim, although she was a young woman, she had her brother present. There was no vandalism as such. The element of damage to the property is an element of the offence which cannot be considered as a separate aggravating factor under s 21A(2). The offence was committed in a series of repeat incursions of the same premises, but while committing different categories of offending. I have already taken into account the threat of force.
In any event, Justice Simpson in Huynh ([2005] NSWCCA 220) reflected upon the relevance of the maximum penalty of the serious indictable offence at [27] as well as the relevance of circumstances of aggravation pleaded at [29].
Of course insofar as the prisoner's counsel's submissions were concerned he particularly addressed me in respect of the analysis of the objective seriousness of the offending that I am required to undertake given the fact there is a standard non-parole period. I have already indicated what my assessment is. I bear in mind of course that by reason of the decision in Muldrock (2011) 281 ALR 652, particularly at [17] - [32]. The High Court concluded that the standard non-parole period was one of many matters to be taken into account, that Courts were required to sentence offenders in accordance with what I have described as Markarian principles. The amended sections to which I earlier referred require the assessment of the middle range of objective seriousness as relevant to the standard non‑parole period to be undertaken by reference only to the objective facts and that in accordance with Muldrock and Markarian the Court is required to take into other factors in assessing the non-parole period bearing in mind that the standard non-parole period is not a starting point for such an assessment, but a guide to determining the appropriate non-parole period and thus balance of sentence to be imposed.
So far as his counsel's submissions in this regard are of concern he noted the absence of physical contact with the complainant in relation to the principal offence. There was no pleading of intimidation. There was conceded, as I said, the threat of force but the prisoner did not actually have any violent contact with the victim. I have already noted what was said about the criminal history and other submissions made about the mental health of the prisoner which I have taken into account in my earlier findings.
The matter that counsel for the prisoner particularly stressed was the issue of the prisoner's prospects of rehabilitation. He accepted that the prospects were guarded but he noted the prisoner's willingness to abide by conditions of supervision and, of course, the opinion of the psychologist. I am prepared to accept on balance in regard to the totality of the evidence that there are some prospects of rehabilitation. But they are guarded. To be governed, I would have thought, primarily by the capacity of the prisoner to avoid the abuse of alcohol and drugs.
It was conceded, notwithstanding s 5 of the Crimes (Sentencing Procedure) Act that I should impose a term of imprisonment. It was noted that when he is released he will have strong family support and will live with his grandmother.
I should also take into account his disadvantaged background as a relevant fact, which I do. This is relevant to assessment the way in which his behaviour may have been fashion in part by forces beyond his control. I am required to take into account, as was submitted, the time that had been spent in custody.
Of course, in this matter, I am required also to have regard to the purposes of sentencing pursuant to s 3A Crimes (Sentencing Procedure) Act and it is important to note that there should be an element of general deterrence in the sentences imposed. The community has long since ceased to be tolerant of crimes of violence committed against women, young or old, by people who believe that they have got the right to act in the way they do simply because they have been in some type of relationship. The prisoner should understand that he had absolutely no right to behave the way he did from the very beginning and the fact that he could not see that his attentions were unwanted is not a matter of mitigation and certainly no excuse for his behaviour.
In Victoria at this very moment there is a Royal Commission into the suffering of women at the hands of men who resort to violence, threats of intimidation, damaging property and breaching Court orders to suffocate, in a metaphorical sense, their former partners. The prisoner should understand that the sentence I impose reflects, as the purposes of sentences prescribe, the requirement that the Court recognise the need not only to give weight to general deterrence but also to deter the prisoner from further offending and to protect the community, in this case including the victim from the offender.
I appreciate the sentence I impose involves temporary incapacitation. But it is an incapacitation to give the prisoner more time to reflect upon the matters that he claimed he reflected upon before he came to give evidence before me. I have to make him accountable for his actions and denounce his conduct to recognise the harm done to the victim. I appreciate, notwithstanding noting the prior conviction of assaulting the victim quite unacceptably, that the prisoner caused no physical injury to the victim in the course of these various crimes. However, the emotional toll on the victim, even though I do not have a victim impact statement, must have been enormous. A very young woman, pregnant, in circumstances that her former partner will not leave her alone and having the fear of him just turning up and materialising inside a room, reflects a very serious state of affairs. The fact the prisoner may be immature is a matter to take into account. But again, cannot excuse what he has done. Of course ultimately the prisoner is to be adequately punished.
I have had regard obviously to all the submissions the parties have put and endeavoured to bring them together in a coherent fashion with the evidence that was available to the Court but notwithstanding the relative youth of the prisoner, which I acknowledge, notwithstanding the lack of significant criminal history but for the matters that arose in May/June 2014 it is clear that what I regard at this stage of the prisoner's life is a substantial term of imprisonment must be imposed.
The term of imprisonment for the principal offence will be partially accumulative, as I have indicated earlier upon the sentences for the breach of apprehended domestic violence orders.
I must say in passing I have referred to mitigating factors in part, particularly the prospects of rehabilitation. At the time of offending it must be made very clear that the prisoner could not be said to not have any record or significant record of previous convictions. The findings of guilt in June 2014 were very significant in my view. He was not a person of good character. I cannot say that he is unlikely to reoffend. The prisoner has expressed remorse and at this stage on balance I am prepared to accept that he has shown remorse but it has been a long time coming and it is not of such weight as might have been if the prisoner's remorse had been more readily and earlier expressed. His plea of guilty is itself a relevant mitigating factor but for that he gets a particular discount.
With regard to his record I conclude by saying, although I do not find it as an aggravating factor, it gets very close to the mark given the character of the offences committed in May and June 2014, it certainly is a criminal history in total that does not entitle him to any particular leniency or special leniency.
You can stand up, thanks very much, Mr Frankiewicz.
In relation to the principal offence, that is the offence for which you are committed for sentence, you are convicted.
However, before I turn to the sentence for that matter I will have to sentence you in relation to the other matters. I just have to make one amendment, sequence 1 will have a different commencement made.
In relation to sequences 2, 5 and 6, they are the three offences of contravene apprehended domestic violence order or restriction under apprehended domestic violence order, that is on 15 August and 18 August, in respect of sequence 2 you are convicted. You are sentenced to a term of nine months' imprisonment to date from 18 August 2014, that will expire on 17 May 2015.
In respect of the second offence committed that day, that is, the sequence 5 offence, you are convicted. You are sentenced to 12 months imprisonment, that shall date from 18 August 2014 and expire on 17 August 2015.
In respect of the contravene apprehended domestic violence order sequence 6, this is in its terms the least serious of the offences, although the last in time, you are sentenced to six months imprisonment from 18 August, expiring on 17 April 2015, and commencing on 18 August 2014.
In respect of sequence 1, because it was committed at the same time and intimately connected to the principal offence, you are convicted, you are sentenced to six months imprisonment but that six months imprisonment shall date from 18 February 2015 and expire on 17 August 2016.
In respect of the principal offence you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of one year six months to date from 18 February 2015, to expire on 17 August 2016. The balance of sentence will be two years and three months. The balance of sentence will expire on my calculation on 17 November 2018.
That means the effectively non-parole period for you is two years and it will be a matter for the Parole Authority whether you are released to custody at the end of that two year period.
You can take a seat, thanks very much. Yes. Thank you. Madam Crown, are there any technical matters?
BLACK: I don't think so. Can your Honour just confirm the length of this sentence for sequence 6, please?
HIS HONOUR: Sequence 6 is a conviction and a sentence of six months from 18 August 2014, expiring on 17 February 2015 but I have made the sequence 1 offence concurrent with the principal offence, that is, partially accumulative on some of the other sentences because it was committed at the same as the principal offence. In fact the principal offence is the manifestation of the contravention of the ADVO.
BLACK: Yes.
HIS HONOUR: By his presence in the house and all that sort of thing.
BLACK: Yes. I understand, your Honour.
HIS HONOUR: But the three sentences for sequence 2, 5 and 6 are concurrent with one another.
BLACK: Yes, your Honour.
HIS HONOUR: But the sentences in relation to sequence 1 and the principal offence are partly accumulative upon those three sentences. So the total sentence on my calculation as I told the prisoner at the start will be four years three months imprisonment with a non-parole period of two years. He will be eligible for release to parole on 17 August 2017 having come into custody on 18 August - sorry, 2016, I should say.
BLACK: 16. Yes.
HIS HONOUR: Having come into custody, I should say, on 18 August 2014.
BLACK: Yes.
HIS HONOUR: I'm sorry. Yes.
BLACK: Those dates look correct to me, your Honour.
HIS HONOUR: Sorry.
BLACK: I think those dates are fine.
HIS HONOUR: I will double-check them in the orders of course, if there's a slip of the tongue but effectively four years three months from 18 August, non‑parole period two years expiring on 17 August 2016.
BLACK: Yes.
HIS HONOUR: You will be eligible for release to parole in August next year. Whether you are released to parole will be a matter for the Parole Authority but you will be subject to parole supervision for two years three months. If you in any way contravene your parole, particularly by in any way threatening or going near, without appropriate Court orders to permit it to occur, the victim or the child you will be taken back into custody.
OFFENDER: Yes.
HIS HONOUR: It is in your interests ultimately. If you want to have a relationship with your child for you to not only comply with your parole conditions but to accept the fact that the relationship is over, to accept the fact that your conduct towards the victim was totally unacceptable and to accept the fact that you've got no rights whatsoever to molest, interfere or harass her in anyway whatsoever.
OFFENDER: Yes.
HIS HONOUR: Right. Thank you. Yes, thank you, you're excused, thank you very much, sir. Do you want to quickly speak to your client or not, before he goes?
HEENAN: If there's enough time I'll go downstairs.
ADJOURNED
[2]
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: 18 December 2015