R v Jones

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Road Transport Act 2013

Cases Cited: BP v R [2010] NSWCCA 159
Bugmy v R (2013) 249 CLR 571
Commonwealth DPP v De La Rosa (2010) 273 ALR 324
TM v R [2023] NSWCCA 185

Category: Sentence

Parties: NSW DPP – Crown
Dylan Jones - Offender

Representation: Ms Davidson for Crown
Mr Boyd for Offender

File Number(s): 24/30952, 24/30983

remarks on sentence

1. Mr Dylan Jones is for sentence today in relation to three offences, those being, firstly the sequence 2, aggravated break and enter with intent to commit assault occasioning actual bodily harm. That is an offence under s 112(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years is specified.

2. Secondly, there is an offence of engaging in a reckless driving, failing to stop in the course of a police pursuit, that being an offence under s 51B(1) of the Crimes Act 1900. It carries a maximum penalty of five years imprisonment and also a licence disqualification.

3. Thirdly, there is the offence of driving whilst disqualified, being an offence under s 54(1)(a) of the Road Transport Act 2013, which is being dealt with on a s 166 certificate and which carries a maximum penalty of 12 months imprisonment.

4. Furthermore, in sentencing him for the police pursuit matter, he asks that I take into account three other offences, each of which carry fines only which are on a Form 1 document and I will take that course.

5. The maximum penalties for the offences before the Court and, where applicable, the standard non-parole periods, are important guideposts in the sentencing exercise and I have had regard to them for that purpose.

6. The offender has pleaded guilty at the earliest opportunity and will be given a 25% discount by reason of the utilitarian value of that.

FACTS

7. The facts of the aggravated break and enter and commit serious indictable offence are as follows, in summary. The victim of the offence was a 51 year old male who lived in a unit located in a complex in Cessnock. The offender at that time was in a relationship of a casual nature with a lady called Maddison, who lived in another unit in that apartment block and, as a result, the offender would often visit.

8. The relevant events occurred around 8.30pm on the night of Thursday 11 January 2024. It appears that around 8.30 that night there was some shouting happening around the unit complex which related to the victim allegedly having been charged with some sort of offence involving a 14 year old girl.

9. At around 9.45pm that night, the victim was on the phone to a police officer at Cessnock Police Station due to concerns that he had about the attitude of his neighbours towards him. While on the phone, the police could hear loud banging coming from the unit where the victim was living. That was because this offender was banging on the victim’s door and yelling, “You’ve got five minutes to get out. We don’t want fucking paedophiles staying in these units.” The victim opened his front security door to the offender who was standing outside. The victim said, “I'm not a pedo. I have pled not guilty.” However, the offender said, “Get the fuck out.” Police, who were speaking to the victim on the phone, told him to close his front door and ignore the offender and that they would send a police car. The victim then closed and locked his door.

10. However, about five minutes later, the offender ripped off a flyscreen on the victim’s window next to the front door and pushed an air conditioning exhaust pipe through the window. The offender then went to a rear window of the victim’s unit.

11. Police, who apparently were still on the phone to the victim, could hear loud banging noises and smashing sounds over the phone. The victim told the officer that somebody was trying to get in and was at the back window, trying to smash it. What had in fact happened was the offender had gone to a back window at the apartment and had entered the victim’s unit and yelled at him, “You have to fucking go now. Get the fuck out.” The victim then ran towards his front door to escape. However, the offender punched the victim to his nose, causing him immediate pain, causing him to be dazed and for blood to come from his nose. The victim tried to unlock his door, but could not do so. The offender then yelled at him, “Fuck your door. Get out through the fucking window,” and the victim responded by saying, “You get out first.”

12. The offender then left the apartment through the window. The victim then followed through the window out of fear of what might happen if he did not do what he was being told to do. He then tried to retreat back through the window, but the offender grabbed his shirt and pulled him back out. The offender then used both hands to repeatedly punch the victim to the back of his head and neck as he was trying to get away. These punches caused the victim immediate pain.

13. The victim tried to move down the street away from the offender and did so to the extent of about five metres. However, the offender was yelling at the victim, “You better start running.” The victim then backed away from the offender, at which time some police vehicles were approaching. The offender then ran back into the unit complex and entered the unit where his friend, Maddison, lived.

14. Police arrived and spoke to the victim who requested an ambulance due to his head and neck being in pain, and police noted blood coming from the area of his nose. The victim identified the offender to police as the young male who had been visiting the unit where the young female, Maddison, lived. Police then entered that unit and found the offender lying on a bed.

15. When asked what he had been doing, and whether he had been in the unit that night, he said, “I don’t know, I’ve been asleep. But I was here for an hour or up to two hours before I went to sleep.” He was not arrested at that time. The victim was seen by paramedics and not taken to hospital but was given some pain killers.

16. The facts note that this offender was arrested on 24 January 2024 for other matters, and that after that arrest he was cautioned in relation to the matter I have just spoken about.

17. That then brings me to the events of 24 January 2024 which are the subject of, what I will call the driving offences. Those facts are, in essence, as follows.

18. At about 10.30pm on the night of Wednesday 24 January 2024 the offender was driving a red Toyota Corolla in the area of Mount Peter Road, Cessnock. Police were patrolling the area in a marked vehicle and saw the Corolla take a harsh left turn without indicating after which they noticed the vehicle doing a second harsh turn.

19. The facts note that the vehicle, which was being driven by the offender, appeared to be accelerating away from police and making further turns without indicating. Police activated warning lights and sirens to stop the offender for the purposes of a random breath test, however, he failed to stop and continued to accelerate away.

20. A police pursuit was initiated on Wollombi Road, Cessnock. The offender was noted to be reaching speeds of about 80 kilometres per hour in a 60 zone on that road. The facts note that he approached a red traffic light at the intersection of Wollombi Road and Allandale Road and went straight through that red light.

21. At the time, police noted the traffic to be light and there were no other vehicles in the intersection. Police requested further resources for the pursuit and the facts note that the offender was observed driving along Cessnock Road at around 80 kilometres per hour in a 60 kilometre zone occasionally crossing to the wrong side of the road, forcing oncoming vehicles to pull off to the side of the road. He continued along Cessnock Road where the speed limit increased to 80 kilometres per hour.

22. Several times, however, he swerved onto the incorrect side of the road and again oncoming vehicles had to pull over to avoid a collision. He ended up driving through the suburb of Neath and entered the suburb of Abermain at a speed police assessed as being higher than the speed limit.

23. At around that point, highway patrol officers had set up some road spikes over a bridge on Cessnock Road at Abermain. As the offender approached the spikes he swerved to the wrong side of the road to avoid them, however, the road spikes were successful to some extent and the rear tyre of the offender’s vehicle began to deflate.

24. He continued, however, driving along Cessnock Road into the suburb of Weston with the rear tyre fully deflated. He was crossing onto the wrong side of the road, and at this stage a second police vehicle joined the pursuit. While apparently still in that suburb of Weston, he turned left and failed to stop at a designated stop sign.

25. After that, he was seen to be driving in the middle of the road and struggling to maintain control of the vehicle given that one of the rear tyres was deflated. Nonetheless, he continued driving through Weston and then the suburb of Chinaman’s Hollow. At that stage he crossed to the wrong side of the road again and was estimated to be travelling at around 20 to 30 kilometres per hour under the posted speed limit.

26. The facts note that other tyres on the vehicle had also begun to deflate and the vehicle was driving on its rims causing it to slow significantly. It was at that point that police pulled alongside the vehicle and yelled at him to stop. Ultimately the vehicle was stopped by the offender and the facts note that he reached over and gave his passenger, a female by the name of Kaylee, a hug.

27. He was then removed from the vehicle, arrested and cautioned. He was asked who the vehicle belonged to and he said he had borrowed it from a friend. When asked why was he running from police, he replied, “’Cause I’m on parole.”

28. Police did a search of the vehicle and found certain items, however, those are not of any relevance to the sentencing exercise which I have to engage in.

29. The police checks indicated that the registration plate attached to the vehicle was one which had expired in January of 2024. That is in relation to the registration plate on the rear of the vehicle. The front of the vehicle was bearing registration plate which related to a Nissan utility. The facts also note that the vehicle at the relevant time was unregistered and uninsured. The offender was disqualified at the time that this driving occurred. He was taken to Cessnock police station where he declined to participate in an interview. Those, in summary, are the relevant facts.

OBJECTIVE SERIOUSNESS

30. It is important, of course, that I make some assessment of the objective seriousness of the various offences before the Court.

31. Firstly, the maximum penalty and the specification of a standard non-parole period for the aggravated break and enter offence marks that offence as being of significant potential seriousness. Any offence involving breaking and entering a person’s home is a serious offence. Such offences ordinarily require significant punishment, so as to acknowledge the invasion of the sanctity of a person’s home which such offences involve.

32. It is also relevant to have regard to the nature of the serious indictable offence that was the subject of the offender’s intention. In this regard, the offence was one of assault occasioning actual bodily harm. That offence itself carries a maximum penalty of five years imprisonment which places it at the lower level of serious indictable offences.

33. Nonetheless, it is appropriate that I have regard to all of the circumstances in making my assessment of the objective seriousness of the sequence 2 aggravated break and enter offence. The offence did not involve any sophistication or planning and it was not accompanied by the use of weapons or other dangerous implements. Although knowledge that a person or persons were inside the premises is an element of the offence, the offender in this case entered not just with knowledge that someone was inside, but with the precise intention of confronting that person. Not all offences under s 112(2) involve an intention to confront an occupant of premises. I keep in mind, however, that this aspect overlaps with the element of an intention to commit an assault occasioning actual bodily harm.

34. The assault to the victim was unprovoked, as was the breaking and entering, and involved numerous punches to the head, causing pain to the victim’s head and neck and a bleeding nose. The assault and the entry to the premises would have been a very frightening experience for the victim who was effectively being told to vacate his home. The fact that the offence involved a residential home also adds to its objective seriousness.

35. In my view, the offence sits slightly below the mid range of objective seriousness.

36. The police pursuit offence carries a maximum penalty of five years imprisonment, which marks it as being of potential seriousness, which it clearly must be given that ordinarily such offences involve real risk to other people including police.

37. This particular example of the offence commenced late at night on a Wednesday in an area where traffic was light. The offence involved the vehicle being driven through a red light and a stop sign, being driven well in excess of the speed limit, and at times on the wrong side of the road which on more than one occasion caused other drivers to take evasive action. Towards the end of the pursuit, the car was being driven on one or more deflated tyres with the obvious risk of a loss of control. The offence required more than one police vehicle to be employed and involved the deployment of road spikes. The duration of the driving is agreed to have been approximately 10 kilometres which would have occupied several minutes. It was therefore fairly prolonged and not brief. The offence was spontaneous and not planned or sophisticated.

38. The Crown submitted that the offence was committed without regard for public safety. While that might be so, it seems to me that there is a great deal of overlap between this and the element of driving recklessly and in a speed and manner dangerous to others. I have not, therefore, double-counted the aspect of public safety.

39. While this was a serious example of this type of offence, it was certainly not the most serious that this Court has seen. I assess it as an offence well above the low range but below a mid range offence.

40. The sequence 2 driving whilst disqualified offence occurred at the same time as these events. Simply put, the offender should not have been driving at all but, of course, this is an element of the offence. The duration of the driving was certainly not short, as I have already noted. The driving was reckless and put others at risk. However, this aspect must not be double-counted, given that this is the subject of the sequence 1 police pursuit offence.

41. I regard this offence as being above the low range but less than a mid range offence in terms of its objective seriousness.

42. Each of the offences were committed while the offender was on parole, which is a form of conditional liberty. This does not, however, increase the objective seriousness of any offence but it is a generally aggravating matter in the overall sentencing exercise.

43. As I have already noted, there are three matters on a Form 1 document to be taken into account in sentencing for the police pursuit offence. Those offences are ones of the vehicle being unregistered, uninsured and carrying unauthorised number plates. Form 1 matters do not increase the objective seriousness of a substantive offence. Rather, the Court is entitled to take Form 1 matters into account, in an appropriate case, by giving greater weight to the aspects of personal deterrence and/or the community’s right to retribution for serious offences. This is not, however, an automatic process, and it depends on the circumstances and the individual judge’s assessment.

44. In my view, the offences on the Form 1 document should operate to increase slightly the sentence for the pursuit offence because they indicate that the vehicle should not have been on the road in the first place.

SUBJECTIVE MATTERS

45. Turning then to subjective matters relating to the offender himself. He is now aged 25 and was almost 24 at the time of the offences. The psychological report of Caroline Hare sets out the offender’s subjective circumstances.

46. He was raised in Cessnock by his mother and stepfather until aged 12. However, his home life was marred, as the letter from the offender’s mother confirms, by domestic violence and alcohol abuse due to the stepfather’s violent and drunken behaviour. The offender lived with his grandmother from about age 12, which was a far more stable environment. The psychologist concludes however, that the offender had nonetheless developed an insecure attachment style due to the violence in his mother’s home and his mother’s emotional unavailability and inability to protect him from that violence and other disruption.

47. Due to his behavioural issues, the offender struggled at school and when he was in year 5 he was sexually abused on several occasions by a school teacher. The offender described having withdrawn emotionally after this, and he started using illegal drugs from a young age as an avoidance behaviour. His use of drugs escalated when he was about 17, partly as an emotional reaction to his learning that his sister had also been sexually assaulted.

48. Not surprisingly with this background, the offender’s criminal history indicates that from his mid-teens he started getting into trouble with the law. This has continued in recent times and he has spent a large part of his life since 2018 behind bars.

49. The psychologist concluded that the offender meets the diagnosis for Attention Deficit Hyperactivity Disorder, and Post-Traumatic Stress Disorder. Her views about this have not been the subject of challenge. She says that there is some connection between these conditions and the offending. Firstly, that the break and enter with intent to commit an assault occasioning actual bodily harm offence occurred where the offender was triggered by his own experience of sexual abuse. Secondly, that in relation to the driving, his “fight or flight” response was engaged.

50. I accept that there is some connection in these respects. However, there is also the fact that the offender, before engaging in the police pursuit, made the conscious choice to drive when he was disqualified.

51. I accept that generally the offender’s mental health problems made him more prone to engaging in all of the offending before the Court, in that it predisposed him to making poor choices and not thinking through the consequences of his actions. I think this reduces his moral culpability to a material degree (see the principles discussed in the well-known case of Commonwealth DPP v De La Rosa (2010) 273 ALR 324.

52. I also accept that the offender’s moral culpability for all of the offences is reduced by reason of the contribution made by his exposure to domestic violence and instability as a child, as well as his experiences of being sexually abused as a youth. These matters are interlinked with his development of mental health problems and his use of drugs. Together, however, I accept that they operate to reduce his moral culpability to a material degree (see the well-known principles discussed in Bugmy v R (2013) 249 CLR 571.

53. I further accept that the offender’s time in custody to date and into the future has and will be more onerous by reason of his mental health conditions. I have taken this into account in determining the overall sentence and especially in making a finding of special circumstances.

REMORSE

54. Turning to questions of remorse. The offender told the author of the Sentencing Assessment Report that he believed his actions in relation to the aggravated break and enter offence had had a positive outcome because the victim had relocated. In his evidence today, however, the offender qualified this by saying that he accepts that he ought not to have taken the law into his own hands. He says, in effect, that after reading about the victim in an article, he was triggered by his own background of sexual abuse and, being affected by drugs, he responded violently. He says he could have handled the situation better, which is no doubt true, and he said that, placing himself in the shoes of the victim, he would have been terrified.

55. On balance, I accept that there is some degree of remorse for this offence. I also accept that there is some genuine remorse in relation to the driving matters, given the comments made by the offender to the psychologist.

RISK AND REHABILITATION

56. I have also assessed the offender’s prospects of rehabilitation and his likely future risk of reoffending. The Sentencing Assessment Report notes that the offender is regarded as a medium high risk of reoffending, while the psychologist Ms Hare’s assessment seems to indicate an even higher risk.

57. The offender gave evidence in the hearing today and said he is sick of gaol, wants to get work, re-establish a relationship with his 10 year old son, and get help to quit using drugs. I accept that the offender is genuine about all of these things. There are some positive signs that the offender is beginning to take steps towards achieving these things in that he has been engaging in useful work training while in custody. However, it is very early days, and the offender has, on his own admission, continued at times to take illicit drugs whilst in custody.

58. He does have the support of his grandmother and sister, who came to court for the hearing today. He also has the support of his mother, who lives in Melbourne and who has provided a letter to the Court providing some support for her son.

59. In practical terms, however, the offender’s main risk of reoffending is linked to whether he can avoid returning to drugs, and engage in treatment, and that is a matter that only he, and not his family, can address. He is going to need help to achieve these things, but it is his own determination that is the key to whether he succeeds or just falls back into old habits. Time will tell.

60. I assess his prospects of rehabilitation as guarded. I think he remains a material risk of reoffending. Hopefully I am proved wrong.

YOUTH

61. Another factor that I have considered in this matter is the offender’s relative youth. He is only 25 and he was only 24 at the time of offending, or almost 24 at the time of the offending, I should say. As has been said in a number of cases, including BP v R [2010] NSWCCA 159, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and they may not be fully developed until the early to mid-twenties. That observation is of particular pertinence in relation to males. Furthermore, as Yehia J said in TM v R [2023] NSWCCA 185, a young offender’s moral culpability may be reduced as a result of a combination of factors which may include a background of dysfunction and youth as well as the fact that they are still young. The Offender’s relative youth is a matter to which I have given significant weight.

DETERMINATION

62. Turning then to my ultimate determination, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. All of them are relevant. However, for reasons that I have already set out, it seems to me that the importance of general deterrence is reduced to some extent by reason of the contribution made to the offending by the childhood background and his mental health. Personal deterrence remains in my view a matter of some importance, especially given that these offences were committed while the offender was subject to conditional liberty.

63. As I have indicated, I have had regard to the reduction in his moral culpability by reason of what I will call the Bugmy factors and the De La Rosa factors. However, as those cases also make clear, a sentence may have to be increased somewhat so as to give weight to the importance of community protection. The sentence that I have to impose, therefore, has involved a large degree of balancing of these somewhat conflicting factors.

64. I am satisfied for the purposes of s 5 that no penalty other than imprisonment is appropriate.

65. I have made a finding of special circumstances so as to adjust the ratio between non-parole period and head sentence. I have done that by reason of three factors: Firstly, the offender’s relative youth; secondly, the risk of institutionalisation; and thirdly, the need for a reasonable period of supervision upon his release.

TOTALITY

66. In determining the overall sentence, which will be an aggregate sentence, I have had regard to totality principles, given that there are three offences for which sentence must be imposed. In those circumstances, I must determine the extent, if any, to which there should be some notional accumulation among the sentences or whether they can be served totally or partially concurrently.

67. The police pursuit and the drive disqualified were committed as part of one incident but they involved different criminality, and so there should be some, although limited, notional accumulation between them. The aggravated break and enter offence was an entirely different incident, separated in time. In my view, there needs to be a degree of notional accumulation to acknowledge the criminal conduct committed on the two separate occasions.

BACKDATING

68. I have also given close consideration to the date upon which the sentence should commence. The offender was arrested on 24 January 2024 and has been in custody since that time. However, that time in custody has not been due solely to the matters now before the Court. That is because the offender at the time of committing these offences was on parole on a sentence for offences which included, among others, an earlier police pursuit. It was as a result of his being charged with the offences now before the Court that his parole was revoked, effectively from 11 January 2024. That previous sentence does not expire until 23 August 2025. He has, therefore, since 11 January 2024 also been serving the balance of that earlier sentence.

69. I have a discretion to exercise in which I am entitled to backdate the current sentence. It would not be appropriate, in my view, to backdate the sentence to the date of arrest, given the existing sentence and the decision of the State Parole Authority to revoke the offender’s parole on that sentence. In the circumstances, I intend to backdate by approximately half the period between today and the date of arrest.

70. I intend to impose an aggregate sentence. I am therefore required to set out the indicative terms that would otherwise have been imposed for the individual offences. The indicative terms are as follows.

71. For the aggravated break and enter offence, the indicative is two years nine months and I nominate a non-parole period of one year seven months. For the police pursuit, atter and taking into account the Form 1 matters, the indicative is 18 months imprisonment. For the drive disqualified which is being dealt with on s 166 certificate, the indicative term is six months imprisonment. All of those are, of course, after the application of the 25% for the pleas of guilty.

72. Instead, I impose an aggregate head sentence of three years three months. I impose a non-parole period of one year 11 months. The sentence will date from 29 August 2024. The head sentence, therefore, will expire on 28 November 2027. The non-parole period will expire on 28 July 2026.

73. I also order that the offender be disqualified for a period of three years.

74. I direct that a copy of the report of Ms Hare be sent to Justice Health and to Community Corrections.

75. Ms Crown and Mr Boyd anything arising about any of those, any factual matters or anything else?

76. BOYD: No, your Honour.

77. DAVIDSON: No, your Honour.

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