R v Hill; R v King

District Court of NSW|2018-09-28

Ms M Fernando (Offender Hill) Ms C Feiner (Offender King)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Offender Hill) Mallinson + Rake Lawyers (Offender King) File Number(s): 2017/296611; 2017/296614

Judgment

The Offenders Matthew James King and Amie Jayne Hill have each pleaded guilty to one offence of especially aggravated kidnapping contrary to section 86(3) Crimes Act 1900 (NSW).

FACTS

The agreed facts in this matter can be summarised as follows.
In July 2016 the victim (aged 33 at the time of the offences) responded to an online advertisement on the application "Locanto", which was placed by the Offender Hill, for help to locate a place to stay in return for sexual favours.
The victim contacted Hill and began to text her in an attempt to ascertain her legitimacy. Eventually, the victim sent the Offender Hill money via cardless cash. A few days after this transaction, Offender Hill contacted the victim and informed him that her boyfriend, the Offender King, had a court appearance in Newcastle Local Court. The victim drove to Newcastle and met Offender Hill at a hotel which was booked by the victim. The pair stayed the night together and attended Newcastle Courthouse the following morning.
The Offender King was not granted bail on that occasion. However, he was eventually granted bail to reside at the victim's Collaroy address, which was owned by his parents. This was done at Offender Hill"s request.
The two Offenders stayed in a granny flat upon the Collaroy property for approximately 2 months. The parents of the victim eventually evicted the two Offenders from the property due to constant arguments.
The victim continued to maintain contact with Offender Hill and continued to provide both Offenders with assistance in booking hotels and finding regular accommodation. During this period the victim used Offender Hill's service as an escort once every couple of weeks.
On 28 September 2017 the victim and Offender Hill arranged to meet up for sexual intercourse in exchange for payments. They arranged that the victim would attend a hotel located in Botany.
At 11.56 am on the 28th September 2017 Offender Hill texted Offender King saying that "Lol. You're going to love me ever more tonight ;)". King asks, "Why?" Offender Hill responds, "Cause you're going to flog the fuck out of fat boy and then we're going to have sex". "Fat boy" was a reference to the victim.
At 4.47pm, Offender Hill asks, "When is this fat boy thing going to happen?"
At about 10.15 pm, the victim drove his personal vehicle to the address and arrived at around 11:00 pm. The victim parked his vehicle, locked and secured it in Mascot, leaving his wallet containing his driver's licence, two cash passport credit cards, one St George Visa Debit Card, and one St George Visa Credit Card in the centre drink holder console. He also left his iPad on the front passenger seat of the vehicle.
The victim went to Level 1 and knocked on the room of the unit he was advised to attend. The door opened and he entered the room noticing Offender Hill to be standing about 5 metres from the door towards the bed. Offender King closed the door and immediately moved towards the victim, swinging a close fist towards his face. The first punch was with his left hand which struck the victim to the right side of the face. The second punch hit the victim in the nose which caused the victim's nose to bleed. The third punch made contact with the victim's left side of his head towards the cheek bone. The victim fell to the ground and made an attempt to protect himself by covering his head. The victim began to yell, "Matt stop, Matt stop!"
While the victim was positioned on the ground, Offender King kicked the victim in the back twice and once in the groin area. Offender King stood over the victim whilst he was positioned on the ground, and punched the victim in the head three further times. As a result of the assault, the mobile phone and car keys belonging to the victim fell out onto the ground. Offender King picked up the victim's property.
Offender King said to the victim, "Unlock your phone" whilst holding the victim's phone out towards him. The victim took the phone from his hands and unlocked the phone. Offender King demanded the victim to open up his internet banking account. Offender King snatched the phone out of the victim's hand and said, "Where's all your money?" The victim said, "That's all there is but I can get you more, but I have to transfer it". The victim was told to transfer $2000 from one bank account into an accessible account. This transfer is confirmed by bank records.
Whilst the victim was making the transfer, Offender King turned away and walked towards the kitchen area and shortly returned to where the victim was standing, holding a knife. The knife was approximately 20cm long (blade and handle). He held the knife in his right hand. After the transfer was complete, Offender King took the phone from the victim. Offender Hill was present during the incident.
Offender King then demanded the victim's wallet. The victim explained to him that he didn't bring it to the Hotel with him and it was possibly in the car. Offender King said, "You better work it out, now" and was waving a knife in front of the victim. Offender King requested that Offender Hill go to the victim's car and get the victim's wallet. Offender King said, "Move to the couch" and the victim remained there in the hotel room. Offender King sat on the dining table area with the knife on the table in front of him.
About 10 minutes later Offender Hill returned to the hotel room, holding the victim's wallet in one hand and the victim's Ipad in the other. Hill said, "Look what I found?" as she was holding up the victim's Ipad.
Offender Hill pulled out the victim's Visa debit card from within the wallet. Offender Hill asked for the pin code, which the victim provided out of fear of what King would do to him. Offender Hill left the hotel with the debit card in her possession. The victim remained within the hotel with Offender King. Offender King was using a syringe to inject himself. The knife remained immediately in front of Offender King.
About 10 minutes later, Offender Hill returned to the hotel with a large amount of Australian currency in her hand. Due to the account being withdrawn over the daily limit, the Offenders discussed having to make a further trip to the ATM to obtain another $1000 after midnight.
The Offenders threatened the victim to write a statutory declaration stating that he gave permission to have Offender King and Offender Hill access his bank accounts and Itunes account. Offender Hill told the victim to write and the victim wrote the words down under duress. The victim at this point was in fear of what Offender King would do to him. The statutory declaration read, "I, [the victim] do solemnly and sincerely declare that, I willingly gift $2000 to Amie Hill." "I gave her my ATM and pin number". "I told her to withdraw the available money out of the account". "I willingly gave my phone and Ipad to Amie and provided password to clear both".
After midnight on the 29th of September 2017 Offender Hill ordered an Uber on the victim's Uber account. Offender Hill said to Offender King that she was going to get cigarettes and the rest of the money. She then left the unit. The victim remained at the unit with Offender King. Offender King had the knife and the syringes positioned in front of him on the dining room table. About 20 minutes later, Offender Hill returned to the hotel room with a pack of cigarettes and large amounts of Australian currency. Offender King and Offender Hill had a conversation at this time and the victim overheard Offender Hill say, "Can I stab him? Can I stab him? ". At this point in the conversation, Offender Hill turned to the victim and stated to him, "Give me your Itunes password". Offender Hill deactivated the victim's Itunes account and on his Ipad. She also deactivated the "Find my Iphone" application from the Iphone and Ipad. She also cleared all content on the victim's phone and Ipad.
Offender King and Offender Hill then told the victim that he needed to "smoke ice". Offender Hill stated that "either you smoke a pipe or we cut you up and move on". The victim proceeded to smoke one pipe. Offender Hill said to the victim, "Do it again, I want to record it this time. It will come in handy". Offender Hill proceeded to record the victim smoking the pipe on the victim's phone.
At about 2:00am on the 29th of September 2017 Offender King said to the victim, "Get in the bathroom and stay there and don't make a noise". Offender King was holding on to the knife at this time. The victim remained in the bathroom for approximately 4 hours. At about 6:30am the victim yelled, "Can I get some water?" He yelled this to try and see if anyone was still within the unit. After hearing no response, he checked the unit and all property belonging to the co-Offenders was gone. The victim left the location immediately and drove to Surry Hills police station to make a report. The victim did not attend Mascot police station out of fear of the Offenders seeing his car.
During the course of the night, Offender Hill sent an SMS to Offender King saying, "…I am just terrified about going back to gaol again babe". To which Offender King replies, "I know baby so am I but we won't because I'll murder the fat dog and his family if anything at all comes up. Did you maybe want to check in somewhere?" The time this message was sent is not disclosed in the agreed facts.
The victim made contact with his financial institution and was informed that a total of $2820.00 had been removed from his bank account at St George Bank. This total arises from 6 ATM withdrawals:

$400.00 at 11:27 pm on 28/9 September 2017 (sequence 3, obtain financial advantage by deception)
$60.00 at 11:28 pm on 28/9 September 2017 (sequence 4, obtain financial advantage by deception)
$60.00 at 11:30 pm on 28/9 September 2017 (sequence 5, obtain financial advantage by deception)
$600.00 at 11:33 pm on 28/9 September 2017 (sequence 6, obtain financial advantage by deception)
$1000.00 at 11:59 pm on 28/9 September 2017 (sequence 7, obtain financial advantage by deception)
$700.00 at 5:16 am on 29 September 2017 (sequence 8, obtain financial advantage by deception)

Other proceeds included the victim's 9 inch silver Apple Ipad and Iphone.
The victim sustained, "pain and swelling to the right jaw" and "soft tissue injuries to the right side of the face" following the assault. He received medical treatment at St Vincent's Hospital.
On 2 October 2017 at about 11:00 pm AFP officers arrested both co-Offenders residing in the ACT in a hotel room. Both declined to be interviewed by police.

OBJECTIVE CIRCUMSTANCES

The Crown submitted that the offending was aggravated in that it involved the use of a weapon, in that the Offender King armed himself with a knife and threatened the victim, [1] and further, that it involved the Offender causing the victim to take a narcotic drug, ice. [2]
In assessing the objective gravity the Crown contended that the offence fell within the low-mid range, taking into account: 1. The victim was detained for several hours from 11:00pm until sometime after 2:00 am, although he stayed in the bathroom until 6:30am 2. It was not a spontaneous offence and involved a degree of planning 3. It was not a single blow causing actual bodily harm but rather a series of punches and kicks by the Offender King upon entering the room; 1. Punched three times in the head 2. Kicked in the back twice and once in the groin 3. Punched in the head another three times 1. The victim had belongings taken from him 2. The victim was threatened with the use of a knife 3. The fact that the victim was an associate of the Offenders does not lessen the gravity of the offence
On behalf of the Offender King, it was accepted that this was a serious example of the offence and that the criminality of both Offenders is on par with each other.
On behalf of the Offender Hill, it was accepted that the offending was on par for each Offender. It was further submitted that the offence falls towards the bottom of the mid-range bearing in mind: 1. The offending took place over hours (rather than minutes or days); 2. The offence was committed in the company of one other Offender (the minimum required) to make out "in company"; 3. A single weapon was used but was not used to cause any physical injury; 4. There was actual and threatened violence but the actual bodily harm caused was not extensive; 5. The prior relationship between the Offender and the victim is not suggestive of a history of domination (such as in the case of a couple with a history of domestic violence). Rather, the history is reflective of the victim having previously been in a position of power. [3]
In R v Newell, [4] Howie J stated at [32]: …. an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the Offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence. In particular, simply because the section makes reference to one specific type of advantage, that is ransom, it does not follow that the presence or absence of that particular type of advantage is decisive in a determination of the seriousness of the particular offence before the court. In any event, I am not persuaded that, before an offence can come within the most serious category of an offence falling within the scope of the section, the detention must be for the purpose of ransom.
In this instance I accept that the period of actual detention was some three hours although, when the Offenders left there was no indication in the victim's mind before 6.30 am on the 29th September that they had done so. Moreover the agreed facts disclose that as the victim left the premises he decided not to report to Mascot police fearing that the Offenders may see his car. The offence involved the company of the two Offenders. On the facts presented it was not spontaneous but involved some degree of planning. No submission was made however in terms of section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the '1999 Act').
The physical assault on the victim appeared to persist until the victim was subdued.
Multiple kicks and strikes were inflicted and the agreed facts showed that the victim sustained pain and swelling to the right jaw and soft tissue injuries to the right side of his face requiring hospital treatment. I accept that the actual bodily harm was at the lower end of the spectrum of injuries. The offence however, was seriously aggravated within the terms of section 21A(2)(cb) of the 1999 Act by reason of the victim being required to twice take a narcotic drug. This took place during the actual detention. On the second occasion it was recorded on the victim's phone.
Although a weapon was presented, it was used to threaten rather than inflict injury. Nevertheless this constitutes an aggravating factor within the terms of section 21A(2)(c) of the 1999 Act. The circumstances in which the weapon was used no doubt added to the victim's fear on that occasion. This is particularly so when Offender Hill later asked if she could stab him. A number of items of property were taken including his Visa debit card, Ipad and Iphone. Information was obtained that enabled access to the victim's account ultimately led to the withdrawal of the funds in the Form 1 offences.
In terms of the purpose of the offending it was submitted on behalf of the Offender Hill that the purpose was that of obtaining financial advantage. [5] The Crown submitted that the offence was motivated by a desire for some retaliation. [6] There is evidence from the disclosures made in the psychologist report prepared by Mr Andrew Forsyth, dated 28 July 2018 and tendered in Offender King's case, that the reason for the detention was because of a perception by King that the victim was mistreating his partner. [7] There is no evidence of what this was based on, nor any statements attributable to the Offenders that support this perception. The psychologist report of Ms Lucas, prepared in relation to the Offender Hill reported that the Offender Hill acted to please Offender King with whom she had been in an abusive relationship. [8] I accept that this is an untested statement but it does not support the purpose of the detention being retaliation.
Offender King is recorded as stating that at the time he had engaged in heavy methamphetamine abuse and had limited financial resources indicating that he was under financial stress. [9] Mr Forsyth's report also notes that the Offender King resorted to criminal behaviour in order to fund his methamphetamine abuse and gambling. [10] Bearing in mind the contents of the agreed facts in particular I am satisfied beyond reasonable doubt that the purpose of the detention was financial advantage. [11]
As the offence does not carry a standard non-parole period it is unnecessary and undesirable to determine where it falls in relation to the mid-range of objective seriousness. [12] Beyond drawing attention to the features described I accept that the offence was a serious example of the offence contemplated by the legislation. Clearly more serious circumstances can be contemplated including serious maiming, torture, detention for a longer period and targeting family members for ransom demands. However, by no means does this offence fall at the bottom or towards the bottom of the range of offences contemplated by the provision.
The Crown submitted that the offending of both Offenders was on par.
On behalf of Offender Hill it was acknowledged that her role in the offence was significant, although she was not the person who used actual violence or caused actual bodily harm with a weapon. Nevertheless it is clear that Offender Hill made the arrangements with the victim to attend the premises and was aware that the victim was to be assaulted and acquiesced and participated in the events that followed. It was the Offender Hill that coerced the victim to ingest narcotics under the threat that if he didn't comply he would be "cut up." At one other point she made the statement "Can I stab him? Can I stab him?", which was overheard by the victim
I accept the submission that the involvement of both Offenders overall was on par.

Conditional Liberty

On 25 August 2017 the Offender had an intensive corrections order imposed for a period of 12 months for an offence of drive a conveyance taken without the consent of the owner.
Consequent to this offence on 10 October 2017, a recommendation was made to the State Parole Authority that the intensive corrections order be revoked. The State Parole Authority revoked the order effective on 28 September 2017. The Offender was on conditional liberty, at the time of the offending, an aggravating factor on sentence pursuant to section 21A(2)(j) of the 1999 Act. In setting the sentence for this matter care needs to be taken not to double count the aggravating feature of the offending on conditional liberty with the effects of the revocation.

Offender's Background

The Offender in this case gave oral evidence of his history to psychologist, Mr Andrew Forsyth, report dated 28 July 2018. [13] The report documents that Offender King was raised as an only child in the union of his natural parents. However, that union was not maintained and he has never met his father. He described his mother as providing practical support and assistance, but limited affection and care. His mother formed a new relationship around when he was three years old, and had two more children. He stated that his step father did not provide him with care and support and told his mother that, "he won't be responsible for me". He recalled being further rejected and isolated within his family unit, although he was well provided for in terms of food, clothing and school needs. He further reported that his family relocated on several occasions due to his mother's work which was a source of instability for him. The report documents that Offender King's mother's second relationship broke down when he was around 10 years old and she entered into a third relationship when he was around 12. In this relationship, his mother and second step father engaged in alcohol abuse and Offender King felt responsible for caring for his mother when she was intoxicated. He described being frustrated with his mother's alcohol abuse and began engaging in increasingly problematic behaviour. As a result, Offender King felt that his mother had shifted her attention to her second son and provided him with limited attention.
Offender King stated that he resisted corporal punishment from the age of 13, which led to physical alterations with his step father. At that point, he began to increasingly engage in problematic behaviour in his adolescence and often ran away to stay with his grandmother as he felt supported and cared for by her. He stated that he resided with her for Year 8 of high school and described returning briefly to his mother's home but then left at the age of 13 due to conflict within the home and recognition that his brother was beginning to emulate his problem behaviour. [14] Thereafter he spent a period of time residing in refuges and youth hostels, but eventually obtained accommodation with friends.
At the age of 16 he stayed with partners. He stated that he had not spoken to his mother for four years, although he has formed a positive relationship with his brother over the past 7 months and his brother was considered a good influence in that he was pro-social. [15] Offender King also confirmed that his brother has had a baby and that he is now an uncle; a factor that has impacted on his thinking
A letter addressed to the Court was provided by the Offender's grandmother, Theresa Carlile dated 24 September 2018. [16] In it, Ms Carlile states: "Matt has had a troubled childhood due to circumstances beyond his control. His mother, Donna, my daughter, did everything she possibly could for Matt growing up but, unfortunately it did no avail. Because of the continued conflict between Donna and Matt, Matt spent some time during his schooling and later years living with me. We had some difficult times, but we also had some great ones. Matt has always treated me with respect, kindness, and love. This is the side of Matt I know. I have never seen him under the influence of drugs, and that is why I am finding this whole situation so difficult to understand. I have never witnessed violent behaviour of any kind and can only believe this comes from the use of drugs."
Offender King gave oral evidence largely confirming his childhood history but adding that in addition to supporting his mother during periods when she was drinking, he also had to attend to the needs of his siblings.

Social History/Drug Abuse

According to Mr Forsyth, the Offender experienced social difficulties as a result of attention deficit hyper activity disorder [17] and poor social modelling within the home, but felt accepted by a group of negatively influencing peers with whom he engaged in drug abuse. He described a long history of drug abuse with methamphetamine, amphetamines and cannabis, the latter being the most problematic. He records Offender King commenced smoking cannabis at the age of 12 and was using it daily by the age of 13, abused alcohol by the age of 13 but reduced this as he commenced using other substances on weekends with peers between the ages of 15 and 16, progressing to intravenous drugs at the age of 18.
Offender King in his evidence confirmed his early introduction to illicit drugs at age 12.

Educational and Locational History

Whilst the report records that Offender King relocated with his family on several occasions due to his mother's work, which was a source of instability, it also notes that he liked changing schools because he found himself becoming restless when he had been in a school for too long. [18] It records that he started obtaining good marks and excelled in sports in Primary School. However, he also acknowledged that he was disruptive and distracting in classes. He acknowledged that he was a bully, but could not recall what precipitated his behaviour. The report notes that Offender King's behaviour deteriorated in High School when he began to associate with a group of negatively influenced peers and often smoked cannabis and drank before school started. Thereafter, his marks deteriorated and he was often truanting from school and was expelled from later schools, often for physical altercations. [19]
After leaving school, he commenced a boilermakers apprenticeship, but ceased it after two years due to disinterest. Offender King acknowledged having commenced work at the age of 15 and maintained an unstable pattern of employment in a variety of unskilled occupations. His employment was as a contractor in construction and demolition and often he worked for several weeks before moving on to another workplace due to his restlessness and boredom. He reported that his most stable period of employment was around 5 years, when he was employed at Telstra for 18 months as a telephone sales consultant, a position which he found engaging and enjoyable. [20] He acknowledged that he is capable of gaining work but has difficulty in sustaining employment. He further stated that this may relate to his ADHD. The Offender acknowledged that he was diagnosed with ADHD in his childhood, but ceased using medication after leaving home.
He stated that he is currently completing a Certificate III in fitness and hopes to complete Certificates II and III in business with an intention of developing a personal training business after his release from custody.

Remorse

The Offender was noted by Mr Forsyth to provide an account of the offence that was consistent with the agreed facts. He noted that Offender King had described a positive relationship with the victim for the index offence and records: [23] … Offender King expressed the belief that the victim was mistreating his partner and attempting to "move on to my girl", while he was in custody, and thought that "I"ll show this guy what he was doing was wrong", which reflect justifications he used at the time of the offence. Furthermore, he described that he had been engaged in a pattern of heavy methamphetamine abuse and had limited financial resources, indicating that he was under significant stress. Offender King's account of the offence indicated that he had anti-social attitudes which justify the use of violence as a means of seeking retribution stating, "I trusted him and he made me look like a fucking idiot". [24] Offender King had difficulty articulating the impact that this offence would have on the victim, but was able to recognise that the victim would have felt scared and also that his family was shocked by what had occurred. He stated that, "I'm very sorry for what I did and I don't expect him to forgive me". Offender King expressed that "I don't want to go back to that life, I don't want to hurt others for my stupidity and addiction". Overall, Offender King demonstrated superficial remorse and a limited understanding of the impact of the offence on the victim.
In evidence before me, Offender King was cross examined about his statement to the psychologist, "I trusted him and he made me feel like a fucking idiot". He stated that he now sees that, that was not the right thing.
Overall while I accept that Offender King has presented some evidence of remorse, I accept Mr Forsyth's view that it is superficial [21] and give it limited weight.

Previous Convictions

The Offender does have a history of previous convictions both in NSW and Queensland. Those offences include driving and drug related matters, dishonesty and weapons related offences. This is not an aggravating factor [22] however no submission was advanced that his sentence should be mitigated on the basis of his record. [23] However, the previous offending is also relevant to his prospects of rehabilitation.

Likelihood of Reoffending/Prospects of Rehabilitation

The Offender is currently aged 28 years of age.
According to a breach report by Community Corrections in respect of his Intensive Corrections Order, Offender King was refused entry to his pre-approved accommodation as a result of failing a drug test. After reporting to Newcastle Community Corrections on 28 August 2017, he was given approval to travel to Sydney to stay in temporarily approved accommodation with friends. He reported to Leichardt Community Corrections as directed on 4, 12, 28 September 2017 and received an assessed home visit on 15 August 2017 to approve his new home accommodation situation. He reported to be cooperative and compliant throughout interactions. He agreed to seek referral to a psychologist to address some of his underlying reasons for his impulsivity and offending and had concrete plans in place to obtain employment. The report notes that during his first week in Sydney, Offender King underwent an unexpected medical procedure and subsequently experienced some complications from the surgery. He provided appropriate documentation verifying his medical situation and short term unfitness for community service work.
Due to his relocation and medical issues he had to commence community service work. However, Offender King failed to attend the community service induction on 3 October 2017 and he was then arrested and extradited from the ACT.
In essence the Offender had minimal opportunity for engagement with Community Corrections, it being interrupted by accommodation and medical issues as well as the revocation.
Mr Forsyth psychologist records that the Offender maintained an unstable pattern of intimate partner relationships from his adolescence, describing that he enters into relationships quickly, maintains this for a period of around a year, and then will get itchy feet and push them away, self-destructs and ends the relationship by engaging in drug abuse and an excessive spending of money and infidelity. He described his relationship with his current partner, the Offender Hill, as being four years on and off, due to his periods of incarceration. He noted that they maintained a volatile relationship with different problematic interpersonal dynamics and records that his partner Offender Hill, maintains employment as a sex worker and he will become violent towards her clients that he believes mistreat her. He says that they often engage in drug abuse together and explained that whilst he attempted to end the relationship through self-destructive behaviours, the relationship was not broken down, but he will end the relationship after release as he believes that together they will return to a problematic lifestyle. Mr Forsyth records that in summary Offender King demonstrates an unstable and intense pattern of intimate relationships with passive aggressive interpersonal traits but noted that Offender King does express having re-established his relationship with his brother and maintains a relationship with his grandmother.
So far as his offending is concerned, the report notes that Offender King expressed that he needs to address his drug addiction and avoid anti-social peer relationships in order to avoid reoffending. Mr Forsyth notes that while there are appropriate treatment types available, Offender King will also need to address his criminal attitudes and behaviour patterns, emotional deregulation and unemployment in order to reduce his risk of recidivism. He further notes that he is completing the EQUIPS foundation program which will assist him to address his general criminogenic risk factors.
In oral evidence Offender King stated that he recognised that drugs accounted for his criminal behaviour and that he had previously denied it. He accepted that on release he would need residential rehabilitation.
Mr Forsyth accepts that Offender King has symptoms consistent with a diagnosis of ADHD, which he requires treatment. He also records that Offender King's presentation is suggestive of enduring personality traits of borderline nature characterised of difficulties in interpersonal relationships, emotional activity, impulse and self-damaging behaviours and intense anger exacerbated in the context of insecure childhood attachments. He notes that Offender King has few protective factors and his prognosis for recidivism is guarded. He notes that he is developing insight into his drug abuse and expresses motivation to maintain abstinence and has some work experience which may assist him in gaining employment after release from custody. He notes that he is rebuilding his relationship with his brother which is a source of motivation and may provide him with some support, and if he can engage in intense intervention to address his criminogenic needs, this may improve his prognosis for reoffending.
Mr Forsyth reported symptoms consistent with stimulant use disorder in a controlled environment, while he notes that there has been no engagement in drug abuse since his arrest in October 2017, a matter which appears confirmed from his correctional history.
The report notes that Offender King has recently completed a EQUIPS addiction program in custody, in which he recognised the negative consequences of drug abuse. He expressed motivation to engage in treatment, maintain abstinence and avoid relapse.
Certainly in evidence before me, the Offender indicated that he discovered that it was drugs that were the major part of his life and he needed to get back to his grandmother to support her and enhance his own physical fitness. He stated that he had had time in gaol to reflect upon what had happened.
Offender King was examined by Dr Gerald Chew, consultant psychiatrist from Justice Health and Forensic Mental Health Network. In a report dated 26 September 2018, Dr Chew states that he did not formally assess Offender King for cognition and subtle deficits, however, he was grossly intact and he was orientated to time, place and person. In his opinion, Offender King's primary diagnosis is substance use disorder, currently in remission in a controlled environment. He states that this should be the primary focus of criminal detention and should he be released from custody, this could be by way of a residential rehabilitation facility where he can address his drug issues. [24]
Ms Carlisle, the Offender's grandmother, states in her letter to the Court that she will continue to offer advice and support whenever needed. She states: "Matt phones me every week from gaol, and from these conversations I believe that he has learnt the hard way that he has made bad decisions, and has to pay for these, but is willing to turn his life around when he is released. I will be here with all my love and support for him when that time comes." [25]
I accept that by circumstances of Offender King's upbringing in particular his introduction to drugs at a very early age when he would have been less able to make rational choices his moral culpability is reduced. [26]
While I also accept that the Offender is motivated to turn his life around his prospects of rehabilitation must be guarded and the likelihood of reoffending is medium to high.
I note the recommendations made in the report that these prospects could be improved by Offender King to complete a comprehensive drug rehabilitation program to ensure that he is able to avoid relapse and to undertake intensive support when transitioning from custody into the community. I accept that this will require a holistic program that provides independent and individual counselling, vocational training and opportunities and assistance with accommodation. Mr Forsyth notes that within custody he should be considered within the intensive drug and alcohol treatment program and, if eligible, for the IDATP through care, to assist him reintegrating within the community.

Special Circumstances

The Offender has previously served a period of custody of 4 months from 17 April 2017 to 16 August 2017, for the offence of drive motor vehicle whilst disqualified (second offence), which he served concurrently with a sentence of imprisonment of 3 months for resist or hinder police in execution of their duty (x 2). As a result of a breach of a bond for drive conveyance taken without consent of the owner, the Offender was sentenced to 12 months imprisonment commencing on the 17th of April 2017 and expiring on the 16th of April 2018, with a non-parole period of 7 months. On appeal, an intensive corrections order [27] was imposed of 12 months, commencing on the 25th of August 2017 and concluding on the 24th of August 2018.
This sentence of imprisonment follows closely on the earlier sentence of imprisonment. I accept the submission on behalf of Offender King that in order to maintain the overall statutory ratio in section 44(2) of the 1999 Act a finding of special circumstances is justified. Beyond this, this sentence constitutes the first substantive period of time that the Offender will be in custody, and in light of the factors mentioned a more extended period on parole is called for. Accordingly I am satisfied that it is appropriate to find special circumstances for these reasons.

Commencement of Sentence

As a consequence of the breach of his ICO the Offender King has served a period of imprisonment of 10 months and 28 days from 2 October 2017 to 28 August 2018. The Crown accepts that from 29 August 2018 to 28 September 2019, the Offender's custody is solely referable to this offence.
Counsel for Offender King submitted that beyond this some degree of concurrency with the sentence he was serving is appropriate.
The Crown concedes some back dating for the commencement of the sentence is appropriate.
Taking into account the principles of totality I propose to commence the Offender's sentence from 2 April 2018 which allows for some concurrency and to reflect the totality of the separate offending.

Offender's Background

In Offender Hill's case, a report was tendered from Zan Lucas, forensic psychologist, dated 17th August 2018. The report provides background to Offender Hill.
According to the report's contents, Offender Hill's biological parents separated when she was an infant. Contact with her father since that time was intermitted until the ages of 4 and 5 years and thereafter a number of attempts to reengage have not been successful. Offender Hill's mother re-partnered on two occasions. Offender Hill has six half brothers and sisters, the four eldest of which live with their biological father and the two younger ones who live with her mother and their father.
There is no report that Offender Hill was exposed to parental abuse or neglect, though it is noted that her mother was a heavy alcohol user during childhood but has since overcome this. Offender Hill reported that her family moved around frequently when she was a child, attending eleven different schools as a result of those relocations and described having felt unsettled and found it difficult to form stable peer relationship of any lasting quality.
It was reported that at the age of 9 she was raped by a maternal cousin. At 14 years of age she was kicked out of home by her mother. Since that time, she lived with her sister and friends. Since leaving secondary school, she engaged in TAFE education in an attempt to gain her HSC, however this was interrupted by the need to earn money and live independently. It appears that she has worked in retail, hospitality, and administrative roles but ultimately came to work as an escort in the adult film industry at around the age of 19 years.
Offender Hill reported that she felt that escort work offered her an improved sense of self-esteem. She reports that she was aware that she uses sex as a mechanism to "make people like her". Ms Lucas in her report states that Offender Hill has developed a personality where she is now over reliant on others, often to the detriment of herself. The report noted that while Offender Hill presented as an intelligent woman and has the capacity to make positive changes, she is often personally exploited due to a fear of abandonment. Her impression was that although the Offender had made some inroads towards making decisions as an independent adult, she still has some way to go and would benefit from psychological counselling. [28] Offender Hill noted that in discussing the abuse to which she has been subjected to in her relationships, she minimised the behaviour of her partners, including Offender King. Ms Lucas stated that she spoke in respect of the Offender King in terms displaying significant cognitive distortions and unreasonably excusing his behaviour. It was opined that the Offender Hill still has difficulty associated with cognitive distortions surrounding what "a normal relationship is". Ms Lucas notes that although she is able to identify physical and psychological pressure exerted by her partner (Offender King), at the time of the assessment she continued to make excuses for his behaviour and minimised the level of violence and control he exerted over her.

Current Offences and Attitudes

In relation to the offence, Offender Hill described that she knew the victim as a client of escort services. She provided an account of being in an abusive relationship with the Offender King, preceding the offence. She reported wanting to please him as he had been acting in an increasingly aggressive manner towards her in the months leading up to the offence. She reported that in the days before the offence she had been suicidal and made requests to Offender King for emotional support. This was not reciprocated and the Offender King instead suggested that she should work harder as a prostitute to support both of them. Offender Hill was recorded as having stated that she did not want to continue with sex work, but did so out of fear that Offender King would leave her if she didn't.

Remorse

Offender Hill was reported to have stated that she regretted her involvement in the offence and harm to the victim. This statement was limited in its content and untested. It was conceded that this would not constitute remorse within the terms of section 21A(3)(i) of the 1999 Act.

Drug and Alcohol Issues

Ms Lucas' report states that Offender Hill maintained that before commencing her relationship with the Offender King she only used drugs very occasionally and only in social situations. When she entered into her relationship with the co-Offender she began to use methamphetamine intravenously with him and under his pressure. She denied being addicted to illicit substances and stated that she has not used substances in gaol.
In Offender Hill's letter to the Court the Offender stated that she was previously in denial, telling herself that the drug use was not that bad and minimised her addiction when talking to the psychologist. [29]
I have noted from the Department of Corrective Services case notes that she has completed some module sessions in the addiction support program, "Understanding Change" and she has no institutional charges relating to drug use.

Medical Issues

Offender Hill was reported as having been hospitalised on three occasions for psychiatric evaluation for suicidal ideation. According to the history recorded she was only kept in hospital overnight and was discharged without mental health follow up. At the age of 21 she began engaging in starving behaviours but has not discussed these with medical practitioners. She reported that since being in custody she had been treated for cutting behaviours and interpersonal conflict with her cell mate, who taunted her interpersonal isolation. The case notes record that Offender Hill did experience mental health issues in custody including self-harming. It was noted that following intervention and observation, Offender Hill regretted hurting herself, was overwhelmed by the situation she found herself in and had no thoughts of self-harm. In June 2018, it was noted that Offender Hill presented herself well, spoke well, had good eye contact and answered all questions. It was noted that she did not want to hurt herself and only did it because her cell mate was encouraging her to do it. She denied any current thoughts of self-harm or suicide.
Ms Lucas in her report notes that Offender Hill provided examples of having engaged in self-injurious behaviour when she felt that the stability of her relationships were challenged. These factors were considered consistent with the characteristics of personality disorder. [30]
Ms Lucas further notes that on the personality assessment inventory personality scales, Offender Hill endorsed items in a manner suggesting her self-concept is negative. She appeared to be self-critical, she does not handle setbacks well and blamed herself for past failures and lost opportunities. The key items indicated that she is more troubled by self-doubt and misgivings about her adequacy than is apparent to others.

Likelihood of Reoffending and Prospects of Rehabilitation

The Offender's mother, Ms Leanne Scott, has provided an affidavit in which she acknowledges the troubled background of her daughter and asserts that it played a big part in her development and the idea that abuse is "OK". Since Offender Hill has come into custody she has called her and written her letters. She states that she sensed that she is changing for the better and states that she has joined the not for profit association called Australia's Anti Ice Campaign and has a better understanding of the drug and can see how a lot of her behaviour was due to that use. She states she has discussed Offender Hill coming to live with her when she is released, as long as she is trying to turn her life around and has no communication with Offender King or his family.
Offender Hill, in her own letter to the Court, acknowledges that at the time she was under the influence of the drug Ice, although that was no excuse for her destructive behaviour. She states that she has finally accepted that she has a drug problem and is doing what she can to continue to remain clean even after she is released. She further states that since being in custody she has completed available education in courses and gained employment and continues to attend addiction classes, as well as doing a diploma in Community Services so that she is able to get a job on release. She states that she does not want to go back to escorting or the unhealthy lifestyle she had previously been living. She stated that she has also attended the "out of the dark" counselling program, which is provided for victims of abusive relationships. She also felt support from her mother and stated that she had a commitment to do everything she possibly can to turn her life around and become a better person.
A Certificate II in Skills for Work and Vocational Pathways from BSR Learning has been tendered. [31] I also acknowledge the reference from Ms Chloe Bramford dated 26 September 2018, who describes herself as Offender Hill's "best friend". [32]
Ms Lucas recommends that Offender Hill engage in therapy directed towards developing personal awareness of abusive relationships and strategies to avoid becoming involved in such relationships. She describes dialectical behaviour therapy may assist her in developing emotional self-regulation and mood stabilisation. This is offered in a number of correctional facilities across New South Wales. She states that she would also benefit from support offered by the department of Community Corrections to obtain stable accommodation and continue education leading to meaningful employment and the development of pro-social support systems.
Overall I am satisfied that the Offender has some insight into the factors underlying her offending and a motivation to address them. She struggles in terms of her own self-doubt and relationship awareness.
I am satisfied that Offender Hill does have reasonable prospects of rehabilitation. I would describe the likelihood of reoffending overall as low to medium.

Conditional Liberty

At the time of the offence, the Offender had been the subject of a section 9 bond for 18 months for the offence of being carried in a conveyance without the consent of the owner, dated 27 October 2017. The Offender has consented to this bond, being called up in this Court and the breach dealt with. The relevant facts are contained in Exhibit A, tab 8 (Hill).
The fact that the index offence was committed while subject to a section 9 bond is an aggravating factor on sentence. [33] The facts of the offence the subject of the bond are not before me. In the circumstances I am inclined to take no action on the bond avoiding any prospect of double penalising the Offender for the fact that the subject offence was committed on conditional liberty.

Previous Convictions

Apart from the offence the subject of the section 9 bond, the only other offence on Offender Hill's record is a failure to appear in accordance with a bail undertaking in respect of which she obtained a section 10A conviction with no penalty.
The Offender has one conviction for failing to appear in accordance with a court undertaking in Queensland, for which she received a suspended term of imprisonment.
Although no submission was made in terms of section 21A(3)(e) of the 1999 Act, I accept that the Offender's history is not one that would give rise to any emphasis on specific deterrence.

Special Circumstances

I accept that the Offender is well motivated to address her offending behaviour and to turn her life around. This is her first time in prison and at the age of 25, she is still relatively young. I accept that the promotion of her rehabilitation is an important aspect of the sentencing process without double counting, as to the head sentence. She has the support of her mother, has employment in custody which she enjoys (working as a librarian) and has attended courses to address her offending behaviour and skills deficits. I accept that the case calls for a longer period on parole and in all the circumstances a finding of special circumstances is warranted.

Sentence Commencement

The Offender came into custody for this matter on 2 October 2017. It is appropriate to commence the sentence form that day.

SENTENCE

It was conceded in respect of both Offenders no penalty other than a period of imprisonment was appropriate in the circumstances. [34]
This offence carries a maximum penalty of 25 years imprisonment, a reflection of the seriousness with which the offence is viewed by the legislature.

Plea of Guilty

Both Offenders pleaded guilty at the earliest opportunity and are entitled to a 25% discount. [35]

Form 1

So far as the assessment of the form 1 offences are concerned, it was argued by Offender Hill's counsel that they were very much part of a purpose for the purpose of the substantive offence in terms of the dishonesty. [36] It was argued that this does not add significantly to the criminality of the offence and does not demonstrate a need for any greater personal deterrence and retribution in sentencing for the principal offence. Further it argued that if the Offender had simply stolen the credit card and committed the fraud, a sentence of full time imprisonment would not necessarily have been imposed. Whilst I acknowledge these submissions it is the totality of the criminality in its context that needs to find reflection in the sentence.
In setting the sentence, I take account of the offences the subject of the Form 1 without double counting the overlapping features in the index offence in accordance with the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [37]
In Offender King's case I have regard to the purposes of sentencing is section 3A of the 1999 Act. The Offender needs to be punished his conduct denounced and made accountable for his conduct. In a sentence of this nature the needs of general and specific deterrence must be met, although this is somewhat ameliorated by a reduced moral culpability by reason of his upbringing and early drug use. [38] The harm to the victim needs to be acknowledged. The community needs to be protected noting that the Offender has according to Mr Forsyth's report few protective factors. [39] I acknowledge however that the Offender is a young man and it is in the community's interest to see him rehabilitated so that in the longer term the community can be protected from potential recidivism.
In Offender Hill's case, I have regard to the purposes of sentencing in section 3A of the 1999 Act. The Offender needs to be punished, her conduct denounced and made accountable. The harm to the victim needs to be recognised. General and specific deterrence are important sentencing considerations. So too is her rehabilitation which can reinforce the community's protection from potential recidivism.

Parity

In considering the question of parity Offender Hill has a criminal record that is less extensive than of Offender King.
The positive prospects of rehabilitation and likelihood of reoffending are more favourable in Offender Hill's case that Offender King's.
I accept that there is some diminution in the moral culpability of Offender King by reason of the circumstances of his upbringing and his introduction to illicit drugs at a very early age. However this needs to be weighed against the need to protect the community and the lack of protective factors that I have referred to.
Whilst both Offenders were subject to conditional liberty Offender King was the subject of an ICO which was an order of imprisonment to be served in the community. His breach occurred at an earlier time in the service of the bond and was more serious than that of Offender Hill which involved a breach of a section 9 bond.

Other Cases

Whilst my attention has been drawn to sentencing statistics, offences under section 86 are not sufficiently homogenous to make them of much assistance. [40]
My attention has also been drawn to the decisions in of this Court in R v Johnson, Hall and Ersman [41] and R v Khan, Rana and Mahay. [42]
I have also reviewed the circumstance in various appellate decisions; R v Anforth, [43] Wu; Li v R, [44] R v Bajouri [45] and Yousif v R. [46]
All these cases were determined on their facts and are referable to the offences for which sentences were imposed.

ORDERS

Matthew James King you are convicted.
In light of the plea of guilty you are sentence to a period of 4 years and six months imprisonment to commence on the 2 April 2018 and to expire on 1 October 2022. You are also sentenced to an additional term of 2 years and three months to date from 2 October 2022 and to expire on 1 January 2025.
You will be eligible to be released at the earliest on 1 October 2022 subject to a decision of the State Parole Authority.
In sentencing you for this offence I take into account the matters on the Form 1.
Amie Jayne Hill you are convicted.
In light of the plea you are sentenced to 4 years imprisonment commencing on 2 October 2017 and expiring on 1 October 2021. Thereafter you are to serve an additional term of 2 years commencing 2 October 2021 and expiring on 1 October 2023, during which you shall be eligible to be released to parole.
Your earliest release date shall be 1 October 2021
In sentencing you I take account of the offences on the Form 1.
As the sentence for Offender Hill has overall less than 6 years remaining, I refer the Offender to the Drug Court to determine if the Offender is eligible for a Compulsory Drug Treatment Order.
I take no action on the breach of the section 9 bond.

Endnotes

Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(c).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(cb).
Offender Hill's written submissions at [13].
[2004] NSWCCA 183 (Bell and Hislop JJ agreeing).
Offender Hill's written submissions at [12].
Crown submissions at [22]
Exhibit 1 (King) at [23].
Exhibit 1 (Hill) at [51].
Exhibit 1 (King) at [ 23].
Exhibit 1 (King) at [22].
Crown written submission at [22].
Georgeopoulos v R [2010] NSWCCA 246, [32]-[32].
Exhibit 1 (King).
Exhibit 1 (King) at [10].
Exhibit 1 (King) at [11].
Exhibit 2 (King).
Hereinafter referred to as 'ADHD".
Exhibit 1 (King) [12].
Exhibit 1 (King) [13].
Exhibit 1 (King) [15].
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i) .
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(e).
Exhibit C (King).
Exhibit 2 (King).
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, [200] (Spigelman CJ). See also Brown v The Queen [2014] NSWCCA 335.
Herein referred to as 'ICO'.
Exhibit 1(Hill), [56].
Exhibit 3 (Hill).
Exhibit 1 (Hill), [38].
Exhibit 5 (Hill).
Exhibit 6 (Hill).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(j).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 5.
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(k), 22; R v Thompson; R v Houlton [2000] NSWCCA 309.
Offender Hill's written submissions at [15].
(2002) 56 NSWLR 146; [2002] NSWCCA 518.
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37, [46] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); IS v R [2017] NSWCCA 116, [65].
Exhibit 1 (King) at [38].
R v Newell [2004] NSWCCA 183, [43]; Jefferies v R [2008] NSWCCA 144, [82], [85]; Hein v R [2008] NSWCCA 61, [34]; and Homsi v R [2011] NSWCCA 164, [116], [124].
[2009] NSWDC 279.
[2010] NSWDC 341.
[2003] NSWCCA 222.
[2005] NSWCCA 442.
[2009] NSWCCA 125.
[2010] NSWCCA 206. 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 October 2018

Crimes Act 1900(NSW)ss 86(3), 192E(1)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A(2)(c), 21A(2)(cb), 21A(2)(j), 21A(2)(n), 21A(3)(e), 21A(3)(i), 21A(3)(k), 44(2), s 21A(2)(c)., s 21A(2)(cb)., s 21A(3)(i), s 21A(2)(d)., s 21A(3)(e)., s 21A(2)(j)., s 5., ss 21A(3)(k), 22

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