HIS HONOUR: Mr Higgins, I normally tell people in advance what sentence is to be imposed. I am going to tell you what sentence I am imposing for you. I am going to explain how the sentences are made up, but I have to give my reasons which will need to be detailed because, ultimately, the Parole Authority will read my judgment. Other people will read my judgment too. Each party has its rights of appeal and all those sorts of things, but it's important that I set out the reasoning behind my sentencing of you, which is not an easy exercise. It's quite a difficult exercise.
I propose to sentence you to a total of five years and 10 months imprisonment with a non-parole period of three years, which will effectively date from 1 September 2013. It is partly concurrent with your balance of parole. Notwithstanding the Crown's cover sheet, when I checked the custody records, your balance of parole that you were required to serve because you were bail refused for these matters, was seven months 28 days. That started from 4 May 2013; the date that you were arrested, and it expired, according to the custody record, on 31 December last year.
What I am proposing to do is sentence you to two years three months for the breaking, entering and stealing on 29 April. That is where you broke into the house up in the outskirts of Sydney. I am fixing a non-parole period for that matter of one year. The starting point of that sentence is three years.
I am going to then fix the sentences for the other offences at Narrandera cumulative upon that non-parole period. For the break and enter and steal in circumstances of aggravation, that is where you held Mrs McDermott captive, so to speak; although you and she did go around cleaning up the house at various points, the starting point of that sentence is six years' imprisonment. I am fixing a non-parole period of two years for that sentence, and I am giving you a balance of sentence of two years six months.
For the assault upon her, I am sentencing you to nine months' imprisonment, and for the detain with intent to obtain advantage from a starting point of three years six months, I give you a discount of 25% and I am sentencing you to two years seven months, again with a non-parole period of two years. Those three offences are so intimately bound up with one another that I'm making all those sentences concurrent with one another. You will be eligible for release to parole on 31 August 2016.
Your counsel will write all this out for you, and I will be repeating these orders. You will have to stand up when I make the orders when I have finished going through my reasons.
Jacob Higgins appears today for sentence in relation to four offences; three offences committed at the one time, that is on 11 April 2013 at Narrandera, and the fourth offence being committed at Westmead on 29 April 2013. The three offences committed at Narrandera were firstly, an offence of breaking and entering the dwelling house of Helen McDermott, which was situated at 33 Charles Street, Narrandera; and in that dwelling house stealing one iPad, the property of Mrs McDermott in circumstances of aggravation, namely that he did deprive Helen McDermott of her liberty. This is an offence contrary to s 112(2) Crimes Act 1900. It carries a maximum penalty of twenty years' imprisonment and has a standard non-parole of five years' imprisonment.
The second charge is one of assault committed on 11 April 2013 at Narrandera in the State of New South Wales. That carries a maximum penalty of two years' imprisonment and the third charge is a charge alleging that you, on 11 April 2013, at Narrandera in the State of New South Wales did, without consent, detain Helen McDermott with the intention of obtaining an advantage; namely not allowing her to contact the police. That carries a maximum penalty of fourteen years' imprisonment.
The fourth charge is an offence for which you pleaded guilty at the Local Court and were committed for sentence of breaking, entering and stealing at Westmead at a property at 18 Wentworth Street, Westmead; and stealing one iPad and approximately $400 odd in cash, the property of Eric Warta.
The starting point of those sentences will be as I have calculated, but in relation to the matters on the indictment, the discount is 20%.
In respect of the three matters at Narrandera, the accused was arraigned in relation to those matters on indictment in this jurisdiction, having been committed for trial on 24 April 2014. I will return to the issue of the discount for the utilitarian benefit of the pleas of guilty, but I agree with the submission put that the discount in this matter for reasons set out in the submissions should be 20%. The discount for the committal for sentence matter should be 25% to represent the utilitarian benefit of the pleas of guilty in accordance with the guideline judgment of Thomson v Houlton.
The prisoner was arrested in relation to the matters at Narrandera on 4 May 2013, when he attended the Narrandera Police Station. He has been in custody since that date. Whilst in custody, serving the balance of parole and awaiting sentence in relation to the Narrandera matters, he was interviewed, or at least arrested and charged, in relation to the Westmead matter on 13 August 2013.
As I have earlier indicated in outlining the foreshadowed sentences to the prisoner, the prisoner was subject to parole at the time of the commission of all the offences. His parole had in fact been revoked by the Parole Authority before his arrest on 4 May 2013, he having not complied with the conditions of parole in reporting to Community Corrections as required. The balance of parole fixed by the Parole Authority was seven months 28 days. That began to run from 4 May 2013 and expired on 31 December 2013.
In sentencing the prisoner for the various offences with which I am concerned, there are a number of issues that affect the structure of the sentences and the commencement date of the effective sentence imposed.
I have concluded in the context of Simpson J's observations in the 2006 decision of the New South Wales Court of Criminal Appeal of Callaghan, bearing in mind, of course, that I am required to take into account the breach of conditional liberty as an aggravating factor, to avoid double dipping so to speak, and noting of course the chronology of relevant events, that the sentences that I impose should effectively commence from 1 September 2013; that is partway through the balance of parole to be served by the prisoner, or that has been served by the prisoner.
The structure of the sentences will involve accumulation, or at least partial accumulation, upon that balance of parole, and of course, there will be some accumulation in sentencing the prisoner for the Narrandera offences upon the sentence to be imposed in relation to the Westmead offence.
These various accumulations of themselves give rise to special circumstances warranting an adjustment of the relationship of the effective non-parole period imposed with the balance of parole. There are other matters to be taken into account in relation to special circumstances which I will deal with shortly.
The facts in relation to the offences committed at Narrandera are set out in a statement of facts which is largely undisputed, as I understand it, although the document is not put forward to the Court as "Agreed statement of facts", although I was provided with a copy with a number of signatures on it and I heard no submission to contradict what asserted within the facts.
The victim, Mrs McDermott, is a 68 year old retired lady, who as I understand it, is a widow and lives alone in an address in Charles Street, Narrandera. She knows the prisoner, and appears to know him well; the prisoner was a friend of her son, Wayne. She attended the residence of her son at a time when the prisoner was there, and other people, as I understand it; and it would appear that while she was in the house, her handbag went missing and she went off to the police to report it. She spent some time trying to find her handbag, ultimately returning to her own residence.
She went to bed where she lived alone in her home. She tried to sleep; she could not. She went back to her son's residence about 1.30am and she noticed that her son had her handbag. He did not give her any information as to how it came into his possession; it seems as though, frankly, that either her son was playing some game with her or had himself taken the handbag or someone close to him had taken the handbag. In any event, these matters are not matters for which the prisoner is responsible.
She remained at her son's residence for a period of time. She fell asleep on a couch and eventually left the residence after other people had left, including her son. She walked towards her home shortly after 2am and the prisoner walked up to her. She offered him a lift home, but he declined that. She last noticed the prisoner walking away from her residence.
For reasons that are not explained in the facts, the victim then got in her motor vehicle at her home and drove to another residence in Narrandera, to where her son was at that time. She mentioned the meeting of the offender near her home and said she was frightened. She went to her car, waiting for her son to accompany her, but he would appear to have, as he had throughout the evening, shown little regard for her convenience or concerns, and eventually she drove home by herself at 4am.
When she arrived back at her home, she noticed there was disturbance in cupboards and drawers and when she was standing in the doorway of her bedroom, the prisoner grabbed her around the neck in a form of headlock. She felt immediate pain to her throat and neck. She was told by the prisoner to calm down before he would let her go.
He then let her go, and although he had tried to disguise himself with his clothing, wearing a type of over garment called a hoodie, she could see him or recognise him from under that purported disguise. In fact, she said to him, "What on earth do you want, Jacob", and the prisoner said, "Where's your money".
She told him she did not have any money, because he knew that her bag had been stolen and he claimed "No, you've got a lot of money; you have it hidden somewhere". Part of the background material available or history available from the psychological report points to the fact that the prisoner had a belief, a fixation in fact, that the victim did have a quantity of money at the house and that was one of the reasons he broke into the house.
He did not break into the house, I hasten to say, in order to detain the victim, which I bear in mind. In fact, it would appear as though he broke into the house when he believed the victim was away from the premises and had been searching through the house for what he thought was the money when the victim returned and disturbed him. The facts state:
"The victim made the offender help her clean up the mess in the main bedroom. She tried to stall the accused, hoping that (her son) would come."
The victim saw other disturbance around the premises and the facts state at various points, she was cleaning up and the prisoner was sitting nearby her; one on occasion on the bed in a spare room. The victim saw the prisoner handling her iPad. She took it off him at one stage without any resistance from him, and placed it under a blanket in her bed and at various times, she saw him in possession of items that belonged to her and persuaded him to return those items to her.
Ultimately, she noticed the iPad was missing. At various times, things were being picked up by her and the prisoner sat by. The prisoner at one point knocked over a plastic tub that contained a number of beads that she collected. The prisoner sat on the bed near her as she placed the beads back in a plastic tub. The facts state that she was fearful of what the prisoner might do to her. She tried using her mobile phone to call her son but the prisoner made her show the phone to him to see who she was ringing.
It was starting to get light and she went to the front door and then endeavoured to try to get out of the residence. The prisoner grabbed her from behind, again in a headlock, and dragged her back into the hall and then let her go. She did not try to escape anymore. Eventually, she said, bearing in mind she had fears for her safety, not unreasonably, "Just take what you want and leave me alone and just go".
To calm herself down, and perhaps calm down the prisoner, although there is no suggestion he was agitated or threatening her directly with words or other actions, she went into a room and started playing her piano. Ultimately, when she stopped playing the piano, she found the prisoner had left the premises without further ado.
The prisoner apparently was in her home for about two and a quarter hours. The offence in the context of the detention of a person for advantage is a somewhat bizarre offence. I do accept, of course, the victim was fearful for her safety. The prisoner was an uninvited intruder. He was obviously seeking to take her property from her. He had grabbed her in a headlock on two occasions, but at the same time, he had also complied with the requests she had made in relation to his behaviour. In fact, as I said earlier, at one stage helped her clean up part of the house that he had rearranged in searching for the money in her absence.
The prisoner was ultimately arrested on a warrant on 4 May. The victim's impact statement I have read. She ruminates over the experience. I am mindful of the fact that she knew the prisoner. In some instances, being attacked in this way, or being held in this way by a stranger may be far more disconcerting. On the other hand, it is little comfort for her knowing the perpetrator.
She says in her statement that she had enjoyed her life at this point, being alone and was not afraid of being alone. She had been a widow for six years at that time and had grown used to living in the house by herself but this event had unnerved her. She made the very important point in her victim impact statement, "Our homes are supposedly our safe havens, but I feel that my safety and security have been taken away from me".
She has feelings of fear, anger and disgust. Certainly she says the events have affected her adversely and this is clearly to be understood. It is something of a shame that the prisoner, when he was in the house, having been obviously disturbed by the victim, knowing the victim, being a friend of her son, did not have the good grace and the common sense to leave her alone and abandon the premises when he had an early opportunity to do so. He might ruminate upon how he would feel if his mother was treated the same way.
The second offence the prisoner committed seems to have occurred with the prisoner effectively on the run, in breach of his parole. He went to a domestic premises in Westmead. He gained entry through a window by removing a flyscreen when the owner of the premises was absent.
A latent fingerprint that matched his fingerprint was found on the flyscreen and his identity was easily secured by the investigating police. The prisoner took $422 in Australian currency and an iPad from inside the house. As I said, he was arrested in relation to that matter whilst in custody serving the balance of parole.
The prisoner was born in February 1989. He is now 25 years of age. He was 24 years of age when these offences were committed. He has a very, very extensive history of offending as a young person, from the age of 14 onwards, with many appearances in Children's Courts in Wagga and Narrandera, and occasionally elsewhere for a range of offences of breaking, entering and stealing, offences of some violence, street offences, damaging property and the like.
I do not propose to go through the detail of his Children's Court appearances. He has a finding of guilt for escape from police custody, it would appear at the age of 16, and has convictions for assaulting police officers in the execution of their duties. His Children's Court record runs for almost 33 pages of the 34 pages of the criminal history.
As an adult, he was convicted of affray at the Wagga Wagga Local Court on 14 April 2009 and was sentenced to twenty months' imprisonment with a non-parole period of twelve months; that sentence being backdated to 2008, and was also convicted of common assault and sentenced to six months' imprisonment.
On release to parole, he was convicted again at the Wagga Wagga District Court on 8 February 2010 in relation to an offence of assault with intent to resist or prevent apprehension, for which he was sentenced to six months' imprisonment, and aggravated breaking and entering and commit a serious indictable offence, knowing people were in the premises, for which he received a sentence of three years nine months, commencing on 18 February 2010, with a non-parole period of 21 months.
I note from the custody record that the earlier parole that he was granted for the sentences imposed in 2009 was revoked, as was the parole that he was subject to when he committed the offences with which I am concerned. I have not deliberately skimmed over his extensive history as a juvenile. I have given some flavour of it but the circumstances of his offending from a very early age very much a reflection of aspects of his background and his disadvantage which I will refer to shortly.
I have two reports to assist me in providing some context for the current offending, the circumstances of his parole, supervision and other relevant matters. One is a report from the Family and Community Services Ageing, Disability and Home Care division. This sets out a little bit of background of the prisoner, which I will deal with in greater detail when I deal with the psychological report. It notes a history of neglect and abuse as a child.
The prisoner was removed from his parents' care, according to the Department's records, on 15 December 1994 and he had multiple foster placements and other placements over the next four or five years. He was, in fact, given twenty different placements and had some considerable disconnection from his siblings and his parents, being one of five children.
It would appear that when he was first released to parole as an adult in 2009, he was placed in the care of the Community Justice Program. He presented various complex challenges notwithstanding his youth, but he returned to custody within a month of his release to parole and little could be done to assist him.
When he was released from custody on parole before committing the current offences, he was given various support programs including what was called a Drop In Support (DIS) package, operated by Life Without Barriers. This provided up to thirty-five hours of support and the prisoner was eager to engage with that service. But in March 2013 he failed to report for a mandatory drug test and subsequently his parole was revoked and he disengaged with the Life Without Barriers program.
It is clear, having regard to the timing of the offences committed at Narrandera, that the prisoner had, shortly after his release to parole, begun using again prohibited drugs and this was one of the contributing factors to his offending. The report notes that the prisoner has largely spent his adult life incarcerated and it states that he "lacks peer networks outside of gaol". He has obviously developed many friendships with people in custody; and although he has told the staff of the Department that he would cease these relationships when he returned to the community, it is problematic as to whether that has been done.
He has been in a relationship with a young woman, as I would understand it, for four or five years and has a two or three year old son from that relationship. He says this is a positive influence on his life, I note these positive influences, which existed when he was last released to parole, did not prevent him offending last year.
He was initially paroled to reside in Wagga, but then approval was given for him to return to Narrandera. He also has indicated to the Family and Community Services department that he "struggles with life management skills". He obviously has difficulty dealing with being at large.
He has certain skills. He was regarded, for example, as a "pleasant and suitable tenant" in the accommodation that was provided to him. He is able to communicate with staff and has no difficulty verbalising what he needs as far as assistance is concerned, but does not appear to have been able to take up the assistance that was available to him.
The report notes that the prisoner requires "specialist services to address his complex needs" and the Community Justice Program is still dedicated to delivering some assistance to him in the future with accommodation. Some of the matters they identify as requiring particular assistance include his general functioning skills, his general and mental health, managing his finances, developing family relationships, developing education and employment opportunities, having pro social recreation and social contacts, cultural engagement and accessing appropriate services.
This brings me to the psychological report, from which most of the history of the prisoner I have derived, based to a large extent on the account given by the prisoner, but confirmed, as I have foreshadowed in the material in the Family and Community Services report.
The report from Delphine Bostock of Duffy Robilliard is an excellent report. It is quite thorough for a report of its type and undertakes a number of the psychometric tests that one would expect a psychologist to undertake. Many of the psychological reports we are receiving nowadays are merely unquestioning pre-sentence reports that do not even 'stoop' to undertake the tasks that the psychologist is supposedly skilled to undertake.
It provides a history of the prisoner growing up in an environment of alcohol abuse and reported drug injection by the prisoner's father. It notes the extended period of care by the Department. Finally the prisoner being, as a small child, moved into foster care by the age of nine, being separated from his siblings, as I said. He was diagnosed with ADHD, Attention Deficit Hyperactivity Disorder, when he was seven years of age; not assisted, one would think, by the lack of stability in his home life.
I have mentioned the number of placements he had over a period of time; one particular family when he was about eleven or twelve actually provided some positive support and displayed some interest in him. According to the history given the psychologist, they bought him a bike and a dog, they enrolled him in school, they arranged for him to undergo psychological testing in Melbourne.
Unfortunately, or fortunately, as the case may be, he ended up coming back to his hometown to play football. He met members of his extended family. He became homesick and ultimately, after repeated running away, he was returned to live with extended family members.
Notwithstanding all of this, he claims a good relationship with his parents. His mother earlier in the proceedings, when the evidence and the submissions were made, was a vociferous contributor to the proceedings without displaying any real understanding of the facts upon which her son was being sentenced and the character of the charges that he was facing.
He has had very little education and whatever education he has had has been considerably interrupted by foster placement, lack of interest in him by those who were supposed to care for him and, on some occasions, unwillingness of education authorities to take responsibility for him.
He freely concedes supporting himself over many years through criminal activity and living off welfare payments and the like; and he has had little work experience. Although in custody he has completed a number of courses including, he says, a course in horticulture, a bricklaying course, even a barber's course; and he enjoys doing hands on work.
I have mentioned his current relationship, but that has been interrupted by various terms of imprisonment and also by his continuing drug use. I have mentioned the son that he cares for, but has had spent little time with due to his own criminal activity. His criminal history has largely developed, at least in recent years, to support drug dependency and often, he has offended under the influence of illicit drugs, which is no consolation for his victims or the community.
He did say that he thought he had some stability on his latest release but he could not avoid offending. He described to the psychologist that conditions were good for him at the time; he had lined up a job interview, he was trying to get his driver's licence, which is of course a very important thing for a person to have in order to obtain employment, but he had difficulty, he said, adopting to outside life, and he felt, perhaps not using his words, "institutionalised".
This appears to be self evident from his regular offending and return to custody notwithstanding the support of his partner and his love of his son. He acknowledged the crimes involving Mrs McDermott were to obtain money to buy methylamphetamine. I have noted the fact that he was fixated with the belief that she had money in her home, which she did not have. To the psychologist he expressed some insight into his offending and regret for his conduct.
The results of the various tests undertaken note that his symptoms of depression, anxiety and stress were in the mild range. His composite IQ score was in the thirteenth percentile for a person of his age and would be considered below average for persons of his age. Although he was below average in verbal tests, in non-verbal tests he was within the average range; and this reflected his lack of or poor educational achievement.
Although the psychologist suggested that his intelligence quotient was within the borderline range of intellectual functioning, there was nothing in the report, nor in the histories given by the prisoner or the facts of the case, to suggest a direct relationship between intellectual functioning and the offending and no suggestion was made there was such a connection in the submissions.
The psychologist said that he suffered, self evidently, from a substance dependence disorder; and he had a very high probability of relapse. His profile on testing suggested that he had little insight into the problems of drug use and he had some defensiveness talking about it. His needs were described as "complex" as they had been by the Department of Family and Community Services and his needs extended "beyond recovery from substance dependence".
The testing revealed a very high risk of general recidivism. He scored in the 94th percentile of what was described as the Self Appraisal Questionnaire, a reliable and valid self report measure designed to assess the risk of general and violent recidivism in adult male offenders.
The key areas of factors contributing to his recidivism included drug and alcohol use, his criminal history, or criminal experience as it might be otherwise described, and antisocial associates, although his associates had nothing to do with the commission of these offences. I know nothing, of course, of Mrs McDermott's son and his relationship with the prisoner, but it does not appear that her son in any way contributed to this offending.
The psychologist noted that his offending was, at least in part, related to his childhood problems and that he very much would benefit from individual counselling to address these issues, as well as dealing with the negative effects of crime and the positive effects of living crime free.
His lack of education and his background of limited employment was a limitation for obtaining employment. His limited insight into his drug dependency made him ill equipped to make decisions and solve problems. His borderline intellectual functioning did complicate his capacity to live a pro social life.
He had, in the view of the psychologist, severe impairment in several areas of development, what are described as reciprocal social interaction skills, communication skills and other activities. His ADHD also contributes to a range of difficulties for him to organise his life, to meet commitments, undertake education, develop relationships and maintain employment.
He has a history of self harm. He had something of a collapse in custody apparently in 2010. He requires careful monitoring in custody. He needs, in the view of the psychologist, psychiatric and psychotherapeutic assistance. He also needs to undertake programs to address, obviously, his significant drug dependence and needs significant support in the community to assist him in these ways.
It is in the context of this report and the report of the Family and Community Services I have concluded in addition to the effective accumulation of sentences there are reasons that exist for a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act and a substantial reduction of the relationship of the ultimate non-parole period fixed in respect of two of the Narrandera offences to permit an extended period of supervision, notwithstanding his previous failures on parole.
The prisoner gave evidence about his time in custody throughout his adult life. He says he was in protection at Junee Gaol but, as I understood his evidence, one of the reasons he is there is because Junee Gaol is a protection gaol, and this gives him greater access to his family. He did not describe to me any particular threat to his person or any specific matter arising from his offences which warranted particular protection in custody.
He said that he had had limited access to courses at Junee. He was interested in undertaking courses, but on occasions, he has not been able to undertake what he would like to achieve. He was a witness who had difficulty articulating his thoughts. When asked when released to parole whether the Court could have confidence in him not offending, he said, as I noted it, "I don't know, my son", being a reference, I take it, to his son. If he was saying that his son was an incentive for him not to offend, then it was not a powerful incentive at the time of the commission of these offences, given the background I have outlined.
He conceded that he did not have a long term plan. He really did not seem to know what he was going to do on his release from gaol, other than assert that he was going to try and not use amphetamines, and he said that he did not want his son to become a drug user.
If he was concerned about the welfare of his son and his future, he should understand, of course, the self evident fact that he will set an example for his son. There is a very high probability that if he wants to pursue a life of crime, in due course, his son will follow that course, no matter what the best endeavours of the boy's mother may be.
Of course, the longer he stays in custody through his adult life, the more problematic will be the future of his son. He said in evidence that he planned to return to Narrandera, but if not allowed to live there, he would live in Wagga. Whether he should reside at Narrandera or not will be a matter for the Parole Authority.
He said he did not know why he did what he did to Mrs McDermott. He knew it was wrong, but he could not in any way explain why he subjected her to detention for the period of time that he did. In submission, his counsel noted the breach of conditional liberty as an aggravating factor, which is self evidently so.
The plea of guilty was entered after committal for trial, but before a trial date was fixed; and as I have earlier indicated, I am prepared to give him a discount of 20% for the utilitarian benefit of the pleas of guilty for the matters upon which he was arraigned on indictment. It was submitted there should be some partial accumulation upon the balance of parole and I have agreed with that submission.
In dealing with the character of this aggravated breaking and entering and stealing matter, being an offence under s 112(2), I was taken to the decision of John Hunter v R [2011] NSWCCA 141, and particularly the judgment of Adams J at [52]. His Honour was discussing in that matter characteristics of offences that might fall within the middle range of objective seriousness, where the breaking, entering and stealing offence carried a circumstance of aggravation of either being in company or knowing people to be inside the premises.
I have noted what his Honour said (at [52]), referring to characteristics that might put an offence within the middle range of objective seriousness, there being some significant degree of planning, property of substantial or significant value being stolen, persons present in the premises frightened by the incursion and some significant damage occasioned to the premises.
In that particular matter, it was held that a conclusion that the offence was in the middle range of objective seriousness was not an appropriate conclusion. Some of the matters referred to by Adams J, of course, picked up characteristics of breaking, entering and stealing matters that were discussed in the guideline judgment of Ponfield from 1999, particularly the judgment of Grove J. Many of the observations of Grove J about aggravating and mitigating factors in fact found their way into the legislation subsequently enacted, Crimes (Sentencing Procedure) Act 1999, that came into law in 2001, and particularly the relevant provisions in that regard in s 21A of the Act.
Learned counsel for the prisoner noted the matters identified by Grove J and suggested that this offence might, in the context of his Honour's assessment of the matter, fall beneath the middle range of objective seriousness. The difficulty with that submission is whilst there was not an extensive planning in relation to this matter, it is quite clear that the prisoner was interrupted by the victim near her house, contemplating at that early stage entering her house in the belief that she had money in her house, which in fact she did not have.
I have already dealt with the circumstances in which he clearly was interrupted, not expecting her to be there, which is a matter I take into account. But what is missing in the analysis of learned counsel for the prisoner was the importance of the particular aggravating feature pleaded in assessing where an offence may arise in the middle range or not, below or above, of objective seriousness, having regard to that aggravating feature.
The pleaded aggravating feature in this matter was a very substantial matter to consider indeed. This is not a matter of simply breaking into premises in company with someone else because you need two people to carry a television out of the premises. This is not a case of breaking into premises knowing somebody is in the house, intent however only on stealing property.
Although he did not know that he would be interrupted, it might have been reasonably expected by him that Mrs McDermott would return home. When he was aware of her being in the premises he did detain her for an extended period of time. So far as the consideration of this matter falling within a range of objective seriousness, I have concluded that it does fall within the middle range of objective seriousness of an offence contrary to s 112(2), particularly by regard to the character and nature of the circumstance of aggravation that is pleaded.
I appreciate the significance of aggravating features that are pleaded will depend upon the intensity of the particular aggravation on the facts of the case and other features of the offending, but the matters of which Adams J was referring to very much were more concerned with the typical house breaking case which is different from this particular matter, although in fairness to the prisoner, this offence started out as "a typical house breaking" offence.
I was taken to a number of decisions that reflect upon the offences of detention for advantage and the character of that offending, and I have taken those into account. There is R v Newell [2004] NSWCCA 183, and particularly the observations of Howie J at para [32]. At the present I am not just only dealing with the pleaded offence of unlawful detention but also the pleading of aggravation in relation to the offence contrary to s 112(2).
He said that there are a number of factors that may be relevant in making an assessment of the seriousness of an offence involving this character of conduct, including the period of detention, the circumstances of the detention, the identity of the person being detained and the purpose of the detention. The last factor, the nature of the advantage the offender sought to obtain, is not necessarily conclusive as to the seriousness of the offence. He went on to say:
"I am not persuaded that before an offence can come within the most serious range of an offence falling within the scope of the section, the detention must be for the purposes of ransom."
There is another decision of Allen [2010] NSWCCA 47. Of course, this was a much more serious case, although the detention was somewhat considerably shorter than the detention here, where a man abducted a child for the purposes of sexually assaulting the child. I note particularly the observations of her Honour at [20]-[22]. I note in that matter that her Honour concluded, in determining the seriousness of the detention offence, that bearing in mind that the detention was solely for the purposes of committing the other offences and no longer than required, the offence was less serious than been assessed by the sentencing judge.
The other judgment is R v Speechley [2012] NSWCCA 130, and particularly the analysis of Johnson J which appears at [48] through to [55]. As I said, those authorities and their discussion of the character of unlawful detention for advantage very much are concerned with the principle offence and, of course, the third count on the indictment.
It was submitted that the criminal history of the prisoner was not a circumstance of aggravation under s 21A(2), bearing in mind most of his breaking, entering and stealing offences were committed when a juvenile and he was still relatively young. I have ultimately concluded that whilst his criminal history does not entitle him to any particular leniency, of course, that must be so, it is not an aggravating factor in this matter.
It was conceded, as I said earlier, there was no causal connection between his psychological condition and the offending. The disadvantages of his upbringing were referred to and I will deal with some aspects of that in a moment. I was urged not to fix a "crushing" sentence; the prisoner was still suitable for a consideration of a finding of "special circumstances" and I have already dealt with that matter with the earlier finding I have made.
The Crown pointed out that the prisoner had committed the offences with which I am concerned barely four months since being released on custody. It noted the victim was vulnerable because of her age and the fact that she was alone. The prisoner was in breach of conditional liberty, and of course the detention offences were serious offences, the prisoner having no insight into his conduct, it was submitted. These were matters that required special consideration of general and specific deterrence, particularly in relation to the Narrandera matters.
In assessing all these matters, one of the factors that needs to be taken into account is the relevance of the prisoner's obvious deprivations as a child, through no fault of his, the dysfunctional character of his upbringing and the context of many other difficulties, which have no doubt contributed to his long history of offending behaviour, his lack of pro social attitudes, his drug abuse, dependency and ultimately what appears to be self evident, institutionalisation.
Courts have long been concerned with the sentencing of young Aboriginal people for serious crimes in circumstances where the upbringing and relevant social dynamics are at least contextual issues in the sentencing exercise. In the judgment of Wood J of Fernando in 1992, these matters were taken into account. There, of course, the "Fernando principles" as they have been described, developed by his Honour, were more directly concerned with eruptions of violence within the Aboriginal community, fuelled by alcohol and drug abuse, contributed to by significant historical, social and economic dysfunction.
Those general principles as enunciated by his Honour, in part, of course, are not without relevance here. But there is nothing in the facts of the matter to suggest the prisoner's offending in relation to Mrs McDermott had any direct connection with the social economic dynamics of the Aboriginal community. But there was, in my view, a considerable indirect connection.
The issue of the Aboriginality of an offender and its relevance to the sentencing exercise has been discussed extensively recently by the High Court in two decisions, Bugmy v The Queen [2013] HCA 37 and Munda, an appeal from Western Australia ([2013] HCA 38). In Bugmy, where the appellant was charged with an offence carrying the standard non-parole period, which of course is only applicable in New South Wales law, the High Court said, in line with the decision of Muldrock [2011] 244 CLR 120 that:
"While the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders, it is only concerned with the nature of the offending. The moral culpability of an offender may be diminished in circumstances where, as in Bugmy, the prisoner had been raised in a community surrounded by drug abuse and violence. The circumstance that the offender was raised in these conditions 'may mitigate the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way' [40]."
The same view was expressed in Munda; a very serious case of domestic violence leading to death, with the Court noting the consideration of this matter must be balanced with the seriousness of the offender's offending. A number of decisions of the Court of Criminal Appeal since Muldrock have discussed the importance of moral culpability in sentencing, such as McLaren [2012] NSWCCA 284, at [28]-[29].
A recent Information Bulletin from the Judicial Commission's Research Director said that these observations about 'moral culpability' have been accommodated in s 54B(2) of the amended Crimes (Sentencing) Procedure Act, the amendments to Pt 4 Div 1A coming into effect in October last year.
Section 54A(2) of the Act now provides that for the purposes of sentencing an offender, the standard non-parole period represents a non-parole period that takes into account only the objective factors affecting the relative seriousness of that offence and whether it is in the middle range of seriousness.
However, s 54B(2) provides - reflecting the principles laid down by the High Court in Muldrock, that the standard non-parole period for an offence is a matter to be taken into account in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
The standard non-parole period is just one of the many matters that a Court has to take into account. It is not a starting point for any consideration of the appropriate non-parole period or sentence to be imposed, and of course, in that regard, the legislation and the earlier decision of the High Court note there are many other matters for the Court to take into account, including, as I said, the issue of the moral culpability of the offender.
There are some other observations in Bugmy and Munda that also need to be taken into account. The majority in Bugmy said at [41]:
"Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular offender. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background."
In Munda, the majority of the Court said (at [51] and following):
"In R v Fuller-Cust [2006] 6VR 396, Eames JA observed that, in the application of the principle stated by Brennan J in Neil v The Queen, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not 'overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored'. Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender's recidivism."
Such is the case here. The principles that emerge in decisions such as Bugmy and Munda, Fernando, Fuller-Cust and the like continue to have currency, even if there be continual offending. The Court of Criminal Appeal itself has said on a number of occasions that there is not a sunset clause in relation to relevant considerations in this respect, as was ultimately found in Bugmy v The Queen.
In sentencing the prisoner, I have naturally had regard to s 3A Crimes (Sentencing Procedure) Act and seek to balance the competing purposes of sentencing, noting obviously the continual need for some element of general and personal deterrence, but also other matters that have to be taken into account, including the promotion of the rehabilitation of the offender.
With regard to s 21A, in respect of the Narrandera offences, clearly an aggravating factor is that the offence was committed in the home of the victim. I accept that the victim was a vulnerable victim, although it is to be fairly said, without diminishing the conduct of the prisoner, that such force the prisoner used was for limited periods of time and on a number of occasions during the period of the detention, the prisoner was compliant with the direction or the requests of the victim. The most important aggravating factor is, of course, the offence was committed whilst on conditional liberty.
With regard to mitigating factors in respect of all the offences, I have concluded ultimately that the offences were not planned offences, as that expression is understood, certainly not part of organised criminal activity. There is very little else that can be identified, of course. I cannot say the prisoner is unlikely to reoffend, or that he has good prospects of rehabilitation. He very much will be a work in progress for the Parole Authority.
He has expressed remorse, and I am prepared to accept as a mitigating factor his expression of remorse in the manner that he did, taking responsibility for his actions and acknowledging the harm particularly to Mrs McDermott. The plea of guilty, of course, is a mitigating factor, but for that he receives the discrete discount to which I have referred.
I earlier, in my haste, foreshadowed penalties to be imposed upon the prisoner by reference to the Narrandera offences which, in effect, included a discount of 25%, when in fact I had calculated the discount of 20%. I will need to adjust the balance of sentences to be imposed to reflect that fact. Naturally, the starting point of the sentences remains the same.
In relation to the offence of breaking, entering and stealing committed on 29 April 2013, you are convicted. You are sentenced to a term of imprisonment by way of non-parole for twelve months. That sentence will date from 1 September 2013. The balance of sentence is one year and three months. That will expire on 30 November 2015.
In relation to the offence of breaking, entering and stealing in circumstances of aggravation, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of two years; that will commence on 1 September 2014. The sentence will expire on 31 August 2016. The balance of sentence will be two years and ten months and that sentence will expire on 30 June 2019.
In relation to the matter of common assault, you are convicted. You are sentenced to a term of imprisonment of ten months. That will date from 1 September 2014 and expire on 30 June 2015.
In relation to the offence of detaining with intent to obtain advantage, you are convicted. You are sentenced to a term of imprisonment by way of non- parole period of two years. That will date from 1 September 2014, expire on 31 August 2016. I fix, in relation to that sentence, a balance of sentence of ten months, to expire on my calculation on 31 July 2017.
In fixing the sentences, I have had regard to the decision of the High Court in Pearce v The Queen [1998] 194 CLR 610, particularly the majority judgment at [45] and subsequent Court of Criminal Appeal decisions discussing the need to fix an appropriate sentence for each offence.
I have determined that the sentence for the Narrandera offences should be accumulative upon the non-parole period fixed for the other breaking, entering and steal matter, but the sentences for the Narrandera matters should themselves be concurrent one with the other because of the overlap between the pleadings in counts 1 and 3 and the fact that I have taken into account the assault of the victim in the context of the circumstances of the detention, which is reflected in counts 1 and 3 of that indictment.
In fixing the sentence for the breaking, entering and stealing matter, of course, I have noted the maximum penalty for that offence. I see the offence, so far as its objective seriousness, given the quantity of property taken, is at the lower end of the scale of offences of that type, with little planning and not a great deal of property stolen.
I foreshadowed that the total sentence was five years and six months. It is actually five years and ten months. The error was on my part in the calculation of the discount for the Narrandera matters. The non-parole period, effectively, is three years' imprisonment.
You will be eligible for release to parole, as I would calculate it, on 31 August 2016. It will be a matter for the Parole Authority whether you are returned to the community on parole.
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Decision last updated: 09 October 2015