R v Jessop; R v Woodford

SENTENCE 1HIS HONOUR: Paul Jessop and Aaron Woodford appear for sentence consequent upon their pleading guilty on 23 November 2010 to three offences committed at Warwick Farm on 19 September 2009. count 1A is an offence of break into the home of Corey Murphy whilst armed and in company and intimidating the victim Jessie Franks; count 2 is assault occasion actual bodily harm committed in company upon the victim Craig Flanagan; and count 3 is assault occasion actual bodily harm in company committed upon the victim Corey Murphy. 2Count 1A has a maximum penalty of 20 years imprisonment, a five year standard non parole period and cannot be dealt with summarily. Counts 2 and 3 have a maximum penalty of seven years imprisonment, no standard non parole period, but can be dealt with summarily. 3The Offenders pleaded guilty when their trial was due to begin. Although there had been some discussions at an earlier stage about a plea of guilty and those discussions included an attempt to resolve facts, from the point of view of the utility of the guilty pleas, the fact of the matter remains that they were only entered on the day of the trial. Accordingly the Court extended a discount in each case of 10% for the utility of the guilty pleas. 4Although those pleas were entered late, it meant that the victims did not have to give evidence during the trial. There is other evidence before the Court that satisfies the Court that each is genuinely remorseful and that the pre conditions referred to in s 21A(3)(i) have been met. Accordingly, the Court extended leniency on the basis of remorse. 5The agreed facts in relation to the Offender Woodford are that he was the ex boyfriend or partner of the victim Jessie Franks. They had a child and had separated on 20 June after some incident involving domestic violence. At that point in time he was already the subject of an AVO protecting Ms Franks. It had been put in place on 12 March 2009. It included conditions that he must not molest or assault or harass Ms Franks, or engage in conduct that intimidated her. 6On 18 September 2009 the Offender called Ms Franks who was at home with their son. She immediately recognised his voice. He made some nasty and threatening remarks to her, so she hung up. He repeatedly called back and Ms Franks continued to hang up on him. 7Later that evening she visited a neighbour, the victim Corey Murphy, who apparently lived in a unit in the same block as Ms Franks. He occupied a bedsit-type unit. He had invited her over as he was having some drinks with friends. Those friends included the other victim Craig Flanagan and Rohneel Kumar. Initially Ms Franks left her son asleep in her own unit which was close enough for her to hear him cry if he woke up. Whilst at Mr Murphy's unit, she received another call from the Offender. The Offender told Ms Franks that he was coming over with some boys to get her. She told him that she was going to contact the police. This was an attempt to discourage him from coming over. However, she did not contact the police as she considered he would not come to carry out his threat. However, as a precaution, she did bring her sleeping baby into Mr Murphy's unit and put him on Mr Murphy's bed. 8She received further phone calls from the Offender Woodford during the evening. Some of those she did not answer at all and others she answered and then hung up. At one stage the victim Murphy and the Offender Woodford had heated discussions over the telephone. 9The facts related thus far concern only the Offender Woodford and are not included in the agreed facts so far as the Offender Jessop is concerned. There is no evidence that he was aware of any of the matters to which the Court has thus far referred to concerning the Offender Woodford's conduct or his relationship with Franks. 10At about 12.25am on Saturday 19 September the three victims and Mr Kumar were still in Mr Murphy's unit drinking and talking. The wooden front door was open to allow a breeze to come in, but the screen door was closed. However, it was not locked. Suddenly the screen door flew open and the Offender ran into the unit. At this time he was holding an offensive weapon. He was followed closely by a second man who was also armed and the Offender Jessop who was not armed. 11Initially the victims thought that what the Offender Woodford was carrying was some type of rifle or airgun. However, the Crown accepts that it cannot establish beyond a reasonable doubt that it was a firearm or replica firearm. 12The second man, who apparently was known to some of the people in the unit by the name Graham, was wielding a machete with a blade about 30 centimetres long. The weapon was about 50 to 60 centimetres long overall. As already noted, the Offender Jessop was not armed. 13The Offender Woodford pointed his weapon at the victim Flanagan, then Franks and then Murphy. He screamed out: "I told you I would be here". The victim Franks was scared that physical violence would be inflicted upon her and followed Mr Kumar into the bathroom. In the main room the Offender punched the victim Murphy to the side of the face, causing him to fall back on the bed where the child was. He then started punching the victim Flanagan who was sitting on the lounge. This victim put his hands up to protect himself and moved his head from side to side to avoid being hit. Although the Offender made contact with some of these blows, they were only glancing in nature because of the evasive action taken. The man with the machete swung it at the victim Flanagan's head but missed because he ducked, that is Mr Flanagan ducked. In the reverse stroke he hit the back of Mr Flanagan's head with the butt of the machete. The Offender Jessop punched the victim Flanagan a few more times but he kept his face covered. The other male known as Graham hit the victim Murphy, causing his nose to bleed and the skin inside his lip to become bruised. 14During the incident the Offenders were yelling. At one stage the Offender Woodford yelled at the victim Murphy: "You think you're tough on the phone, you're seeing my ex". He went to the bathroom door and looked directly at the victim Franks and pointed his weapon towards her so it was about one and a half inches from her. He stared at her for a few seconds but did not say anything. She sprayed him with some aerosol which she believed to be capsicum, but it had no effect upon him. He turned and went back into the main room of the bedsit where he pointed the weapon at the victim Murphy who was sitting on the bed. He brought the weapon to a position where it was about two inches from the left side of this victim's head at eye level. Mr Murphy grabbed the weapon and flicked it towards the ground. The Offender shouted at him not to touch it and he moved the weapon back towards the victim's head. During this part of the incident, the victim Franks was apparently lying on the bed on top of her son in an attempt to protect him from what was going on. The Offender came up behind the victim Franks and pressed something into her back. He tried to push her off her son, but she resisted. He then kissed his son and said: "I'll always love you", and got up and left. The Offenders ran out and as they did so they were screaming: "Let's get the fuck out of here, let's go". 15Both victims Franks and Murphy contacted the police. Both victims Murphy and Flanagan had some bleeding from the face, Murphy had a graze under his nose, soreness to the right side of his head and jaw. The victim Flanagan had a laceration to the top of his head that did not require stitches or glue and was bleeding from a small laceration to the right cheek that required glue. Neither Franks, nor Kumar, nor the baby was physically injured. 16The Offender Woodford attended the Liverpool Police Station voluntarily on 7 October 2009. He was interviewed, but denied the allegations that were put to him. 17The Offender Jessop surrendered to police voluntarily on 3 February 2010. His fingerprint was located on the front door of Mr Murphy's bedsit. 18Now aged 23, the Offender Jessop was aged 21 at the time of the offence. The evidence discloses that he had the disadvantage of a dysfunctional upbringing. This was because of his mother's substance abuse and neglect. His parents separated when he was 13. Thereafter he lived with his mother for a period of time until one of his older sisters took over the role of mother. He has two older sisters and one younger brother. 19He was diagnosed with attention deficit hyperactivity disorder at the age of eight and was medicated for it until the age of 12. 20His schooling was interrupted while still in primary school by expulsion. He did not return to school until two years later. He left at the beginning of year 9. In 2005, he started a traineeship, but did not finish it. He has a limited employment history and was unemployed at the time of his arrest. He has the offer of a job to go to when released from custody. Whilst in custody, he has done a literacy and numeracy course, as well as a first aid course. 21The evidence discloses that he has had a substance abuse problem from the age of 14. It started it when he would not have fully appreciated the long-term consequences of that usage. In the past he has attended Narcotics Anonymous. Some months before the offences he self referred to a detoxification facility [Odyssey House] but only remained for a couple of days. Because of the drugs wearing off, he wanted to sleep and part of the program required him to be active. Because of his remand status, he is not undertaking any drug and alcohol program whilst in custody. His sister who has visited him regularly has noted a considerable change in him. 22This Offender does not have the benefit of prior good character. The Court notes in the juvenile jurisdiction he had a number of appearances for a range of offences, including traffic offences [some of which were drive while disqualified], dishonesty offences [one of which at least was break enter and steal], arson, robbery, accessory after the fact to an armed robbery or a robbery in company. 23In the adult jurisdiction, on 3 June 2005, he was placed on a two year bond for two counts of drive whilst disqualified and fined for a mid range PCA. On 21 June 2007 he was sentenced to imprisonment for ten months that was suspended, for a drive whilst disqualified. 24There is one offence that appears to be a subsequent offence, it is therefore relevant to rehabilitation. On 20 January 2010 he was placed on a s 9 bond for 12 months. 25He has not breached any prison discipline rules. 26He started a relationship at the age of 18 which is described in Mr Jacmon's report as stormy. It seems that it ended when he went into custody. He will live with his sister when he is released from custody. 27Clearly, he has a problem with substance abuse and according to Mr Jacmon's opinion, he also suffers from post traumatic stress disorder, attention deficit hyperactivity disorder, depression and anxiety. The Court notes that, according to Mr Jacmon's report, because of these conditions, he would have problems controlling impulsivity and has prominent suicide ideation. It seems that he has not received any treatment in custody for any of these conditions. Mr Jacmon has set a treatment plan out in his report. 28The Offender Woodford is now 24 and will turn 25 in June. He is about 18 months older than the other Offender. He also has the disadvantage of dysfunctional upbringing. He is one of two children. His father died when he was about three years of age. His mother formed a new relationship, but this partner was a violent individual. That relationship ended when the Offender was about 13 and she is now in a relationship that is positive in nature. 29He started a relationship with the victim Franks. It is not entirely clear when that started. The evidence is not entirely consistent, It may have started as long ago as 2005 and, according to some of the evidence at least, the child was born in August 2008. Although the relationship initially may have been good, it deteriorated because of the Offender's violence towards his partner. This led to periods of separation and then they would make up again. According to his account at least, they had made up after the events that gave rise to the s 12 bond that the Court will refer to in due course and split up again before the commission of these offences. 30He was disruptive at school and attended many schools. He was diagnosed with attention deficit hyperactivity disorder at the age of eight. That was treated with medication for a number of years. 31He has a reasonably sound work history. He held one job down for about five years and has work to go to when released from custody. 32He started using cannabis at the age of 14 and alcohol at the age of 15. He would not have appreciated, at those ages, the long-term consequences of using such substances. He claimed that, at the age of 21, he reduced his consumption of liquor and stopped using amphetamines. He said in his evidence that he had applied to join the army and had passed all the tests and had stopped using cannabis in the period that he was awaiting advice about whether he had been accepted into the army. However, he claims to have consumed a considerable volume of alcohol prior to the offence. 33Whilst in custody, he has done a small business management course and displayed positive attitude to the course. He has been dealt with twice for intimidation in custody, both events apparently occurring in May of last year. 34At the age of 13 or 14, he witnessed a drive-by shooting. This was when he was living in Sydney with a sister and a cousin after his mother, her partner and another sister had gone to the Hunter Valley to live. He was at a bus stop near the home where he lived with his sister when the shooting occurred. 35According to his account to Mr Jacmon, around 2006 he was declared bankrupt after he wrote off a car whilst affected by drugs and he could not make the repayments. 36As with the other Offender, he does not have the benefit of prior good character. His record is made up entirely of offences of violence. The first of those was in the juvenile jurisdiction in 2002 when he was placed on a bond for assault occasioning actual bodily harm. He was placed on a bond in 2004 for possession of a prohibited weapon and fined in 2008 for resisting police. 37On 13 May 2009, on appeal to this Court, he was placed on a s 12 bond for eight months for assault occasioning actual bodily harm. It is an aggravating feature that that bond was current when he committed this offence. The offence the subject of the bond was committed upon his partner Ms Franks. The Court notes that, prior to the appeal, he had been addressing his anger management problem via the Cabramatta youth team. It notes that his response to supervision was satisfactory and, whilst being supervised by Probation and Parole he completed an anger management programme. The Court has been asked to and will deal with the breach of the bond. 38This Offender, according to Mr Jacmon, suffers from depression, Post Traumatic Stress Disorder, ADHD and a substance abuse disorder. These conditions, according to Mr Jacmon, affect his impulsivity. Mr Jacmon has recommended a treatment program for him. Apart from receiving anti- depressant medication since going into custody, he has not received any further treatment for these conditions. 39Both Offenders were affected by liquor and/or drugs at the time of the offence and, in Mr Jacmon's opinion because of that intoxication and their other conditions, their judgment was impaired. Apart from discussing the extent of intoxication at the time of the offences, Mr Jacmon does not discuss the offences at all. He does not reveal in his report that he has considered the facts of the offences. Without apparently considering the facts in each case, he expressed an opinion that is set out in the two reports. In each case that is done after he refers to the various conditions that he diagnosed. In the case of the Offender Woodford, this part of his report reads as follows: + "These impairments markedly diminish the individual's ability to formulate reasoned judgments. PTSD, ADHD and depression are frequently associated with substance abuse and violent behaviour. + Mr Woodford's actions which led to offending indicated markedly diminished capacity for judgment because there appeared to be little thought given to the consequences. Impaired judgment is also shown by not seeking professional help for his distress over the years. Alcohol active in his organism at the time of the incident now before the Court was likely to have intensified cognitive impairments." 40In Mr Jessop's case, his report reads as follows: + "These impairments markedly diminish the individual's ability to formulate reasoned judgments. PTSD, ADHD are frequently associated with substance abuse and violent behaviour, including violence against the self. + Mr Jessop's actions which led to offending indicated markedly diminished capacity for judgment because there appears to be little thought given to the consequences. Impaired judgment is also shown by not seeking help for his distress over the years and relying on drugs for relief. Ice active in his organism at the time of the incident was likely to have intensified cognitive impairments." 41The Offender Woodford obviously knew where he was and that his son was present. He kissed his son and told him he loved him before he left. Whilst he was there he referred to the earlier conversation that he had had with the victim Murphy. In the Court's view, there is no credible evidence that, at the time of the offences he did not know what he was doing or did not fully appreciate the consequences of his conduct. 42As already noted, Mr Jacmon does not discuss the facts of the case and indeed does not reveal any great detail about examination of the Offender Jessop's state of mind at the time of the offence. During the course of his evidence, the Offender Jessop did not assert that he did not know what he was doing or did not fully appreciate the consequences of his conduct. He acknowledged that he was intoxicated. As I understood his evidence, he made it clear that he accepted responsibility for his conduct. In the circumstances, the Court is of the view that there is no credible evidence that this Offender, that is Jessop, did not know what he was doing, or did not fully appreciate the consequences of his conduct. 43In the case of each Offender, it seems to the Court probable that, but for their being intoxicated, they probably would not have been involved in the offence. This explains but does not excuse their offending. 44The offences were pre-meditated in the sense that the visit to the house was clearly planned. It was instigated by the Offender Woodford. There is no evidence that the Offender Jessop participated in any of the planning. 45The Offender Woodford went to the house armed and with two other men, one of whom was also armed. The Offender Jessop was not armed. The Offender Woodford pointed the weapon at all of the people in the house. 46The Offender Jessop punched the two victims, but it seems likely that most all of their injuries was caused by the other man who is apparently Graham. Although it is not clear on the evidence, it seems likely, because of the size of the room and the positioning of the victim Murphy on the bed, that he must have at some stage become aware of the presence of the child in the bedsit. 47It seems to the Court likely, as I have already noted, that the injuries to the two male victims were probably, in the main, caused by the use of the machete. They suffered relatively minor injuries. There is no evidence that they suffered any permanent disability or disfigurement as a consequence of the event. 48There can be little doubt that each of the three victims found the experience very frightening. Although there are no victim impact statements, the Court cannot exclude the possibility that it has left them with some long term emotional or psychological problem. 49Apart from deprivation of liberty, all of the aggravating features referred to in s 105A are present in this case. There was no damage to the premises at all, entry was gained by opening the unlocked screen door. The fact that physical violence was visited upon the two male victims, in the Court's view, would have increased the fear of physical harm to herself on the part of the victim Franks. 50There is reference in some of the written submissions to the R v Ponfield (1999) 48 NSWLR 327 guideline. The Court understands that relates to break, enter and steal offences, and, in any event, the legislation has been substantially changed since the guideline was handed down. 51The Court considered count 1A in accordance with R v Way [2004] NSWCCA 131. 52In the case of the Offender Woodford, he instigated the offence which was clearly premeditated. It seems, in the circumstances, his involvement in this offence was not impulsive. He obviously wanted to instil fear in the victim, for reasons that are not entirely clear from the evidence. To do so he instigated a home invasion involving three men, two of whom were armed. He must have appreciated the possibility of the child being present before he entered the bedsit because his ex partner was there, and certainly became aware of the child whilst present. As already noted it seems to the Court highly unlikely that the other fellow would not have become aware of the presence of the child either. 53In the case of Woodford, having considered all the circumstances, the Court is satisfied that his offence falls within the middle of the range of objective seriousness for offences under this particular provision. However, the Court will not impose the standard non parole period because of the plea of guilty and the finding of special circumstances, amongst other things. 54The presence of the Offender Jessop and his assault upon the two men would have added to the fear of the victim Franks that she would be dealt with in a similar fashion. Those assaults may have been impulsive. He was not asked if they were part of what had been planned before he went to the bedsit. In these circumstances, the Court cannot reject the possibility that the assaults themselves were impulsive acts once he got into the premises. As already noted, there is no evidence that he in any way participated in the planning of the offence. He was not asked during the course of his evidence why it was that he had no arms or weapon and the other two did. He did not instigate the offence and, in the Court's view, his criminality is somewhat less than the other man's criminality and, therefore, his criminality falls somewhat below the middle of the range of objective seriousness for offences under this provision. Because of that finding, the guilty plea, special circumstances and subjective features, the Court did not fix the standard non parole period in his case. 55In connection with the other two offences, he did make contact with both victims but, it seems to the Court, unlikely that he produced the actual injuries. However, as a participant in the joint criminal enterprise, as is the Offender Woodford, he is criminally responsible for those injuries. They were occasioned in the course of the assault after the house had been broke into at the instigation of the Offender Woodford. Again, he was not asked whether the assault upon the two males was part of what had been planned. 56As already noted, these offences do not carry standard non parole periods, but the High Court has made it clear in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 case that a Court must assess where in the range a particular offence falls. Having done so, the Court is of the view that this offence falls towards the bottom, but not at the bottom, of the range. There is no justification, in the Court's view, to distinguish between the criminality of these two men in relation to those two charges. 57There is, from the point of view of sentencing, no material difference in the age of the two Offenders, Although the Offender Jessop has a longer record, he was not at conditional liberty at the time of the offences and his criminality in relation to count 1A is less than the other Offender's criminality. There is a considerable degree of similarity so far as their subjective features are concerned. 58Turning then to their prospects of rehabilitation. Both have work to go to and places to live. It is clear in the case of each of them that being in custody has been a rude awakening for them and there is evidence to indicate a change in attitude. Both of them have undertaken various courses or programs as their circumstances in custody permit. However, the Court notes that the Offender Woodford, in the past, had the benefit of anger management programs but committed these series of crimes, one of which was against the same victim. The Court notes that the other Offender Mr Jessop had committed one subsequent offence and that his record is longer. 59On balance, in the case of each of them, the Court is satisfied that their prospects of rehabilitation and not re-offending is reasonable. 60Mr Low, on behalf of the Offender Jessop, referred the Court to two decisions of the Court of Criminal Appeal. The Court considered those cases, but did so bearing in mind that each case turns on its own facts, circumstances and sentencing discretion. 61The Court considered the purposes of sentencing set out in s 3A. It is not necessary to refer to all of those purposes but, because of their relatively young ages and dysfunctional upbringings, the Court gave greater weight to rehabilitation and less weight to deterrence. The Court considered that a custodial sentence is a sentence of last resort. Having done so and considered all the circumstances, the Court came to the view that in each case, sentences of imprisonment were required. 62The Court then turned its mind to the issue of totality. Each offence was considered separately and each involves a separate victim, but the fact of the matter remains that the assaults upon the two male victims, which are the subject of counts 2 and 3 were taken into account in considering the criminality in relation to count 1. In these circumstances, without meaning any disrespect to those two victims, the Court is of the view that it would not be appropriate to accumulate the sentences. 63In the case of the Offender Woodford, the Court will revoke the bond and activate the sentence and impose a non parole period. It considered totality as between that matter and count 1A and came to the view that there should be some accumulation. 64The evidence satisfies the Court that each Offender needs and extended period of supervised parole and accordingly it found special circumstances. 65Paul Jessop and Aaron Woodford, the Court convicts you of counts 1A, 2 and 3 and sentences you to imprisonment. 66Paul Jessop, the Court fixes a non parole period of fifteen months and a total term of three years to commence on 3 February 2010. It orders your release to parole on 2 May 2011, such parole is to be subject to supervision and further supervision as provided for in the standard conditions of parole prescribed by the regulations under the Crimes Administration of Sentence Act, 1999. I have not made it clear, that is for count 1A. 67On counts 2 and 3, the Court sentences you to imprisonment for six months on each to commence 3 February 2010, it declines to fix a non parole period because of the length of the sentence. 68Aaron Woodford, in your case, the Court revokes the s 12 bond, the eight months sentence for that matter will commence on 7 October 2009. The Court fixes a non parole period of four months. 69For count 1A, the Court fixes a non parole period of twenty one months and a total term of forty five months to commence on 7 January 2010. The Court orders that you are eligible for release to parole on 6 October 2011. 70For counts 2 and 3, the Court imposes a sentence of six months imprisonment to commence on 7 January 2010, because of the length of the sentence I decline to fix a non parole period. 71Mr Jessop, in your case I have sentenced you to three years imprisonment with fifteen months non parole commencing on the date of your arrest. In your case, release to parole will be automatic and that will occur on 21 May this year, and you will be then on parole for twenty one months, if my maths is correct - 2 May this year. On 2 May you will be released to parole, and that will be subject to conditions that will require you to be of good behaviour which means not committing any more offences, and other conditions that will relate to your supervision by Probation and Parole, and things of that nature. If in the twenty one months that you are on parole, you breach any of those conditions, including committing further offences, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of the sentence. 72Mr Woodford, the effect of the orders that I have made against you is that you are now sentenced to imprisonment for four years, with two years non parole, commencing when you went into custody on 7 October 2009. Your parole eligibility date is 6 October this year, but in your case release to parole is not automatic. Before that date, the State Parole Authority will hold a hearing and decide whether to release you to parole on that date or some later date. If released to parole, you will be subject to conditions that will be explained to you at the time of your release. If, whilst on parole you breach any of those conditions, including committing further offences, the State Parole Authority will revoke your parole and you will have to go back to custody to serve the balance of the sentences. Do you both understand?