SENTENCING - particular offences - property offences - aggravated (in company) break, enter and commit serious indictable offence
Source
Original judgment source is linked above.
Catchwords
SENTENCING - particular offences - property offences - aggravated (in company) break, enter and commit serious indictable offence
Judgment (4 paragraphs)
[1]
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blue Water Legal Pty Ltd (offender)
File Number(s): 2018/237703
[2]
Judgment
In relation to this matter, Jeremy John Holman comes before the Court in respect of one offence. The offence is aggravated (in company) break, enter and commit serious indictable offence, larceny. This offence is contrary to s 112(2) of the Crimes Act 1900. The maximum penalty prescribed for the offence is 20 years with a standard non-parole period of five years. That is sequence 4.
He also has a separate offence of assault occasioning actual bodily harm, sequence 5, the victim being V1. This offence is contrary to s 59(1) of the Crimes Act. The maximum penalty is five years imprisonment.
In addition, he asks that an offence on a Form 1 document be taken into account, assault occasioning actual bodily harm, victim V2, s 59(1) Crimes Act, maximum penalty at law, five years. The offence on the Form is to be taken into account in relation to the offence contrary to s 112(2). Weight must be given to the offence on the Form.
There is also a related offence, drive whilst disqualified, second offence, s 54(1)(a) Road Transport Act 2013, maximum penalty 12 months imprisonment and/or a fine up to 50 penalty units, automatic licence disqualification 12 months, minimum licence disqualification six months.
He was committed for sentence on 19 February 2019 from Forster Local Court. He is entitled to a reduction of 25 percent for utilitarian considerations.
In addition, I have read carefully the letter he composed, and I accept that he takes full responsibility for his offending behaviour, and he is entitled to the mitigating feature of remorse under s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999:
"the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)."
In addition, there is a reference to that in para 27 of the psychological report dated 29 April 2019:
""Mr Holman expressed remorse and contrition for the index offence. He generally accepted responsibility for his actions, although there was some suggestion of justification; he stated: 'even though he attacked me first, it didn't give me the right to hit him'. He demonstrated victim empathy, recognising that the victim would have 'worked hard for his bike' and 'could be traumatised' from the assault."
There is also a reference to his remorse in the Sentencing Assessment Report at p 2 under the heading "Responsivity":
"Insight into impact of offending
Mr Holman expressed a good level of insight into his offending behaviour which he claims stems from his illicit substance use and drug associates.
He acknowledged the impact his offending may have had on the victim and is prepared to compensate him financially if required."
He is now aged 26. He has had a very difficult and dysfunctional background, and of more recent times his father became very unwell and his mother passed away.
He is in a relationship and that is important to him, as is his relationship with the daughter, effectively his daughter.
Unfortunately, because of the difficulties he experienced after being released on parole, he lapsed back into ice use.
He has a prior record, and he is disentitled to leniency, but of significance is, he was released on parole on 4 January 2018. He returned to custody on 2 August 2018 and there was a revocation. The reason though for the revocation was the reoffending. From 2 August 2018 he was serving balance of parole. That was for a period of four months 29 days.
The factual circumstances of the offending are found in the Agreed Facts document and are as follows:
"Aggravated (in company) break, enter and steal: s 112(2) Crimes Act
Holman H133601402/Sequence 4; Brown H68195222/Sequence 6
1. The offenders are Jeremy John Holman and Dakota Brown.
2. The victims, V1 and V2, live in Wingham with their 19 year old son. The home has a detached Colourbond shed in which they keep six motorcycles, including a blue and orange 2018 model KTM 350 dirt bike purchased for $16,500 and an orange 2012 model KTM 200 dirt bike worth $7,000. The shed is secured with a lockable door and is accessed from a short driveway with a double gate that opens onto Rouse Street. The door was closed but unlocked on the night of the offence. The motorcycles were secured with a security chain locked with a padlock.
3. Shortly before 1:10am on Friday 6 July 2018, the offenders arrived at the victims' premises. The evidence does not establish whether it was Holman or Brown (or both) who broke into the shed. Holman stole the 350 dirt bike and Brown stole the 200 dirt bike.
4. V1 and V2 were awoken by the sound of the 350 dirt bike being started at their back gates. V1, naked, jumped out of bed and ran out the back door. He saw that the 350's tail light was illuminated. Holman was sitting on it, wearing one of V1's motorcycle helmets.
5. V1 ran down through the gates and dived onto Holman, wrapping his arms around his head, attempting to get the offender off his dirt bike. Holman was strong and remained upright. Holman said words to the effect that his sister-in-law or ex-partner made him come and get it.
6. The bike accelerated across the road. V1 was still holding onto Holman and was dragged down the street. He reached under his helmet and tried to gouge the offender's eyes. The bike zig-zagged across Rouse Street and onto the grass.
Assault occasioning actual bodily harm: s 59(1) Crimes Act [victim V1]
Holman only H133601402/Sequence 5
7. The dirt bike became bogged in some mud and they both fell off. Holman removed the helmet, held it in his right hand and swung it at V1, hitting him in the face. They began wrestling. The offender kept trying to pick up the bike and V1 kept grabbing him. The offender punched V1 to the face five or six times. The punches were hard and knocked V1 to the ground. The offender picked up the bike, started the ignition and swung his leg over it. V1 got up, pulled the offender off the bike and they both fell to the ground again. The bike stalled.
8. Holman again punched V1 to the face five or six times, knocking him to the ground for a second time. The offender again picked up the bike and started the ignition. V1 grabbed the offender off the bike and pulled him back to the ground. The offender punched V1 to the face. Both men were holding onto either side of the bike. The offender held the bike with his left hand and repeatedly punched V1 to the face with his right. V1 released the bike and fell backwards.
9. The struggle continued in the same way six or seven times. Each time Holman tried to ride off on the bike, V1 would grab him and pull him to the ground and the offender would punch him to the face.
10. V2 got into her car and drove to her husband and the offender. She saw Brown on the orange KTM 200 bike rolling down Rouse Street, trying to kick start it. He was wearing one of V1's helmets. V2 drove towards Brown and stopped her car in the gutter. Brown dropped the orange bike and left the scene.
11. Holman continued to wrestle with V1 and punch him. They ended up on the road and V1 grazed his elbows, knees and thighs on the bitumen.
Assault occasioning actual bodily harm: s 59(1) Crimes Act [victim v2]
Holman only H133601402/Sequence 1 [Form 1 attaching to sequence 4]
12. V2 ran to her husband. Holman got back on the KTM 350 and was trying to start it. She grabbed Holman by the throat with her left hand. She has long acrylic fingernails and dug them into the offender's throat. Holman punched her in the face, connecting with her right eye.
13. V1 and his wife called out for help. Holman rode the bike a short distance before it fell over in a nearby garden bed. He eventually walked away down the street. Neighbours came to V1's assistance, providing him with clothing and phoning for police and an ambulance.
Victim injuries
14. V1 was taken by ambulance to Manning Rural Referral Hospital at Taree and treated for the following injuries:
Laceration of mucosa on right side of top lip
Small chips of two front teeth (11 and 21)
Multiple grazes over body - graze to right cheek, graze above right eye, graze to back of head, graze of right hip, right knee and multiple fingers
Pain on palpitation on left side of rib cage with bruising
A CT of the facial bones identified two small separate fragments at the tip of the nasal bone suggestive of a minor fracture. There was also a fracture at the base of the right nasal bone with some slight medium displacement of the nasal bone in relation to the margin of the maxilla.
The wounds were washed and cleaned, he was given analgesia and he was discharged the same day.
15. V2 was also taken to hospital for observation. She suffered a red mark to her right eye, with some bleeding of blood vessels in the eye. A fingernail and its accompanying acrylic nail were ripped completely from her right small finger.
Arrest
16. DNA matching Holman's profile was obtained from blood smeared on V2's jacket and also from the inside of the motorcycle helmet. DNA matching Brown's profile was located inside the helmet he left at the scene.
17. At the time of the offences, Holman was disqualified from driving (drive whilst disqualified - second offence: s 54(1)(a) Road Transport Act - Holman only H133601402/2 related offence).
18. Holman was arrested on 2 August 2018 at Taree. He participated in a recorded interview. He denied all knowledge of and involvement in the offences.
19. On 3 August, whilst Holman was in police custody, Brown exchanged messages on Facebook with Holman's partner, admitting his involvement.
20. Brown was arrested at Glendale on 4 August 2018. He declined to be interviewed."
The actual offence of the aggravated s 112(2) is at the lower end of the range, but in relation to the assault occasioning actual bodily harm, and indeed, the one on the Form, they are well into the middle range. Indeed, the sequence 5 matter is in my view a very serious example of an offence contrary to s 59(1).
General deterrence must be a significant feature of this sentencing exercise.
Each of the offences could have been dealt with summarily, but clearly from their seriousness the Crown elected to have them brought forward for sentence in the District Court.
Parity is not really an issue. As the Crown properly says in the written submissions, para 44:
"The Crown submits that strict parity does not apply in this case due to the significant differences between the offender and co‑offender's roles in the offence. The offender [Mr] Holman faces more charges and his offending conduct was significantly more serious than the conduct of the co-offender, [Mr] Brown. Any disparity in sentences should rationally reflect any relative differences between the co-offenders: R v Clark [2013] NSWCCA 260."
I sentenced Mr Brown yesterday, and the sentence was two years with a non-parole period expiring yesterday, which was nine months and 12 days. He only had the one offence, he did not have the one on the Form and he did not have the separate assault occasioning actual bodily harm. He was on bail at the time.
Unfortunately, yesterday, after the Court adjourned for lunch with a view to returning to the sentence at 2 o'clock, Mr Holman had a clonic tonic seizure.
Unfortunately also, rather than being taken to the hospital, he was returned to the gaol, where he saw a person who may have been a nurse, but may not have been a qualified nurse.
In any event, he has now self-reported that situation, but he has had this problem for some time. Unfortunately, he was less than diligent in seeking treatment when he was in the community.
The Court brings to attention the following passage in the psychological report, para 15:
"Mr Holman described experiencing, what appear to be, absence seizures. He said that these episodes last for five to six minutes, during which his vision will blur, he will see lights flashing, he will experience racing images of his life and he will have an iron-like taste in his mouth. Afterwards, his vision gradually returns and he has migraine headaches. He stated that the seizures have occurred between once and four times a month since 2015. Mr Holman informed me that he had also experienced two tonic-clonic (full body) seizures; one in 2018 and another one [a] fortnight ago. He has not undergone a medical review of these seizures but is seeking such within custody. He denied a change to his cognitive functioning since the seizures began. Mr Holman said that he was pursuing medical treatment within custody, and I suggest that he receives such urgently."
The Court not only accepts what he said to the psychologist, but the severity of that condition was made very clear to the Court when he in fact suffered a seizure yesterday. He in fact fell down onto his face, and in my view this is a significant matter in terms of special circumstances. He clearly needs treatment for this condition.
He is currently on a methadone maintenance program and he is finding this helpful.
He was very forthright in what he said to the psychologist.
This is a difficult matter because, as the Crown says, it is serious offending, and as I said, there is significant weight to be given to general deterrence.
Having said that, there are clearly other special circumstances in this case, being his requirement for treatment for his drug abuse, and in my view, his reasonable prospects of rehabilitation.
The non-parole period will have a significant degree of leniency, but not in my view, an inappropriate degree of leniency, or leniency which does not reflect the objective seriousness of the offending. In my view, though, leniency at this point in his life may encourage his rehabilitation.
[3]
Orders
An aggregate sentence will be imposed in this case. I have given consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I state the following indicative sentences for each offence.
Sequence 2 on the s 166 certificate, four months, reduced by 25 percent to three months.
Sequence 4, attaching sequence 1 on the Form, three years six months, reduced by 25 percent to two years seven months. This being an offence with a standard non-parole period, a non-parole period has to be indicated. That period is 11 months.
Sequence 5, three years, reduced by 25 percent to two years three months.
The aggregate sentence is three years, commencing on 2 October 2018 and expiring on 1 October 2021. The aggregate non-parole period is 13 months, commencing on 2 October 2018 and expiring on 1 November 2019.
You will be eligible for release to parole on 1 November 2019.
The allowance for special circumstances is in the order of 14 months. The special circumstances are those noted in my Remarks on Sentence.
In relation to the offence of drive whilst disqualified on the s 166 certificate (sequence 2), disqualified for a period of nine months.
As I have made clear in discussions with counsel, in my view the offending is just far too serious for an intensive correction order to be made. Nothing other than full-time custody is appropriate in this case, even though I am aware that the aggregate sentence of three years means that an intensive correction order was legislatively available, but I have rejected that.
On the warrant, it is to say that the Court recommends in the strongest possible terms that the prisoner be given proper professional medical treatment for the seizures he has experienced, and in fact experienced yesterday.
[4]
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Decision last updated: 03 July 2019