R v Leary

THE FACTS

1. These were manifested by the series of Court Attendance Notices. Before the Magistrate the appellant did not seek to substitute any contrary suggested facts.

10 August 2019

1. On this day, the appellant entered the Home Spot retail store in the St Clair Shopping Centre. An employee of the store observed the appellant entering the back store room. Concerned that the appellant may be stealing from the store, the employee placed canvasses at the front door to prevent the appellant's exiting the store.
2. This caused the appellant to become agitated. He started verbally abusing the employee and he acted in an intimidating and threatening fashion towards the employee.
3. A security guard within the shopping centre (Mesbah Ahmed) assisted the store worker. The appellant yelled and screamed, so much so as to yell at everyone in the store along the lines "I will kill you". Ahmed stood in front of the appellant, at which point, the appellant grabbed Ahmed, trying to access his portable radio and he succeeded in removing it from Mr Ahmed.
4. About this time, Ms Monica Conroy was a shopper in the retail store. She observed the appellant's conduct towards the employee and Mr Ahmed. She bravely approached the appellant in an attempt to calm him down. For her troubles, the appellant yelled at her, saying, amongst other things, "I will kill you"; understandably causing Ms Conroy to fear for her safety.
5. The appellant raised the hand that was holding Mr Ahmed's radio; and threw the radio on to the tiled floor of the premises; causing the left side of the radio to break and become loose. The radio was no longer operational. Further, after hitting the floor, the radio bounced up and struck Ms Conroy causing her brief pain but, fortuitously, no further injury.
6. The appellant continued to yell and threaten customers and as he moved around the store, continued to act in a violent and threatening fashion, he caused damage to a white circular table with wooden legs; specifically causing one of the legs to snap off. He also damaged a meerkat ornament.
7. After he got out of the store, whilst remaining in the shopping centre, the appellant continued yelling, wildly issuing verbal threats to kill. He pushed a sign and pushed a trolley, causing it to collide with a passer-by. His conduct was recorded on one witness' mobile phone.
8. The appellant walked out of the shopping centre and waited with security at the main entrance. Meanwhile police spoke to victims and witnesses.
9. Sgt Thornton arrested the appellant and cautioned him. In combination with SC Smith, both officers attempted to handcuff the appellant, but he resisted their efforts to do so. The appellant looked at Sgt Thornton and threatened to spit in his face. SC Smith and Sgt Thornton redoubled their efforts to handcuff the appellant. In the process, the appellant spat on SC Smith.
10. The officers were eventually able to handcuff the appellant and after placing him into a caged motor vehicle conveyed him to St Marys Police Station. The appellant continued to yell abuse at the officers. Due to his agitated state, police did not offer him the opportunity to be interviewed.

Culpability

1. In this appeal, the appellant's legal representative submitted, on his client's instructions, that in 2019 he became depressed and even suicidal. He took drugs and commenced becoming violent to his then partner.
2. In one of the many sentencing assessment reports before the Local Court, the appellant admitted that he was under the influence of drugs at the time of the subject offending. Whilst intoxication does not provide any mitigation, it is pertinent, when assessing the offender's culpability for the series of offences on this date to consider whether it is affected by other matters in his background. This includes his being a witness to family breakdown and apparent involvement in an anti-social peer group after having left school at an early age. There are suggestions, also, of undiagnosed mental disorders.
3. A sentencing Court however, can only sentence on the basis of provable facts. No independent or persuasive evidence was before the Local Court, or this Court, to establish any mental impairment, whether that be attributed to family breakdown or not. Mere exposure to a family breakdown, however lamentable, could hardly be regarded as a recognised mitigating factor in itself. It is not on a par, say, with the severe childhood disadvantage of the kind demonstrated in Bugmy v The Queen (2013) 249 CLR 571. Further, to the extent that the appellant became mixed up in an anti-social peer group and/or thereafter became exposed to drugs on the streets does not assist him.
4. In this appeal, the appellant's legal representative referred to a matter that had not previously been identified in the sentencing assessment report, being that he had just broken up with a partner. Given the omission to refer to this matter earlier, and its nature of being an out of court statement, I am unable to accept this as a matter in mitigation of his culpability.
5. On the basis of the evidence that was before this Court on appeal, I am not persuaded that there are factors at play which could materially reduce the appellant's culpability.
6. In relation to the victim, Ms Conroy, although the appellant threatened to kill her, (as he did others in his vicinity), I do not consider that I can treat that as an aggravating factor (as per s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act')) where the same conduct sustains the offence against her.
7. Before this Court, the appellant's legal representative did not make any substantive submission as to the gravity of the offending. He submitted that the conduct which occurred on 10 August 2019 should be viewed as one long episode. He further noted that initially the Local Court had imposed Community Corrections Orders, to be served concurrently, in relation to the offences and that it was unduly harsh for the Local Court, following revocation of the CCOs, to impose custodial sentences in relation to the subject offences on this date.
8. The Crown accepted that the punishments for these offences was harsh - amounting in the aggregate to approximately 4 years - and that there was scope to reduce the punishments for these particular offences. Nevertheless, viewing the conduct which occurred on this date as a whole, the s 5 threshold was crossed.

6 October 2020 (Nepean Hospital)

1. As at this date, the appellant had been in a de facto relationship with Ms Eleyah Williams.
2. At 5:00am, the appellant and Ms Williams attended Nepean Hospital Emergency Department. They were concerned about their unborn baby and had other concerns about Ms Williams' pregnancy.
3. After a while, they became aggressive towards hospital staff, complaining about the wait time. Security at the hospital was called. Ms Williams (a co-accused) threatened a nurse.
4. Mr Allen Andrew, a security guard, arrived at the scene. The appellant was highly aggressive and yelled at security. He moved towards Mr Andrew and said "I've got a knife here, I'm going to stab you cunt" and grabbed an item which Mr Andrew feared was a knife. Mr Andrew, who was fearful for his safety, went back to the control room to call police.
5. Police arrived a short time later and, after meeting with security, arrested the appellant. He was searched and a small black pocket knife was located. He was conveyed back to Penrith Police Station.
6. The appellant's legal representative submitted, based on instructions, that although not an excuse, the appellant's then partner was fearful that her unborn baby may die.
7. The Crown submitted that this particular offending fell within the mid-range of offending for conduct of this kind

6 October 2020 (Penrith - conduct towards Ms Williams)

1. Following his arrest and being placed in custody for his conduct at the hospital, the appellant was apparently released.
2. That evening, the appellant, his de facto partner Ms Williams and a friend, Mr Toms, attended Penrith Panthers club for dinner. At about 7:30pm, the appellant and Ms Williams got into an altercation with a stranger within the premises. This resulted in them being told to leave and they did. But they started engaging in a verbal argument. This escalated. As they were walking out of the club, the appellant approached Ms Williams from behind and grabbed her around the neck, holding her in a headlock for about 5 seconds. He was interrupted when security staff came to Ms Williams' aid. He and Ms Williams thereafter walked separately to the front entrance of the premises.
3. After he got out but before Ms Williams had left the premises, the appellant turned around and approached her. He punched her in the head twice. She was unable to block the punches. The punches did not leave any marks or bruises.
4. Police arrived at the scene. Shortly after they received a call about a domestic incident occurring at the residence of the appellant and Ms Williams. She opened the door and police entered before they arrested the appellant and cautioned him. He was conveyed to Penrith Police station where he was afforded, but declined, the opportunity to be interviewed by police. Police later applied for a Provisional Apprehended Domestic Violence order.
5. The appellant's legal representative submitted that the offending for the third and fourth categories of offending, occurring on the same day and within the same time range (7:30pm to about 8:00pm). The appellant offered no excuses for this offending, save to say that because he was intoxicated by ice, he had little recollection.
6. The Crown submitted that the offending against the victim here was especially serious. The victim was pregnant.
7. I substantially agree with the Crown's submissions and find that these offences occurred at the mid-range.

6 October 2020 (Penrith - conduct towards others)

1. The appellant engaged in separate offending whilst a patron at the Penrith Panthers Club on 6 October 2020.
2. At about 7:40pm, he, along with Ms Williams and Mr Toms, were located in the Kelly's Bistro area of the club and were situated at a table. The appellant was walking towards the bar when Ms Williams verbally abused him. Another female patron began to argue with Ms Williams, feeling affronted by the latter's offensive language and that patron waved over a security officer, Mr David Parry, to help her. Ms Williams continued arguing with the female patron when a male patron told Ms Williams off. She then approached the male, in an aggressive fashion but the appellant held her back. The appellant took it upon himself to approach the male and did so in an aggressive way, but the appellant was physically restrained by the security officer, Mr Parry.
3. The appellant, with Mr Toms, motioned to leave the bistro area, but as they did, the appellant grabbed Ms Williams in a headlock and dragged her down the ramp. Mr Parry, the security officer, came to Ms Williams' assistance.
4. The appellant struck Ms Williams several times. The appellant then commenced arguing with Mr Toms before both of them exchanged blows.
5. At this time, Mr Parry and a security shift manager, Mr Jose Dopico-Clarke, grabbed the appellant; and pushed him towards the wall. The appellant spat in the direction of Toms, but his saliva landed on Mr Parry.
6. A short time later, the appellant continued his fight with Toms. That was until Mr Parry and Mr Dopico-Clarke escorted the appellant to the car park. As they were doing so, the appellant verbally threatened them and the appellant spat again. Parry and Dopico-Clarke responded to this act of spitting by pushing the appellant's head downwards. This prompted the appellant to spit on Parry's right hand.
7. Eventually both Parry and Dopico-Clarke were able to escort the appellant to the car park of the premises towards an eviction gate.
8. The appellant's conduct was observed by many patrons at the premises. It is likely that his conduct would have caused members of the public to fear for their safety.
9. The Crown submitted that the offending against the police and security personnel, whilst it may have occurred at the same time date and location as the offending perpetrated against the appellant's then partner, was such that there should not be full concurrency in the penalty. This particular offending was particularly abhorrent in the context of a Pandemic and manifested a complete disrespect not only to the victims but also to the law, given that it occurred at a time when the appellant was subject to quasi-custodial conditions.
10. I agree with the Crown's submissions and would regard both offences as being mid-range offences.

Culpability in relation to conduct on 6 October 2020

1. Unlike the situation regarding the conduct in August 2019, the sentencing assessment reports do not contain any explanation by the appellant for his conduct on 6 October 2020 that might serve to reduce his culpability.

Aggravating circumstances

1. As will be explained, the offending that occurred on 6 October 2020 (and 16 November 2020) occurred at a time when the offender was subject to a Community Corrections Order (CSP Act, s 21A(2)(j)). At least in relation to the offences for conduct in the bistro area of the Penrith Panthers club on the same date, the conduct occurred in the presence of children (s 21A(2)(ea)).

16 November 2020

1. There were no additional facts relating to the two offences occurring on this date.
2. The appellant submitted merely that the penalty for these offences, in the sense that the penalties were accumulated, was harsh. The Crown submitted, rightly, that the offending manifested a disregard to Court orders and would, subject to other matters, lead the Court to find that his prospects of rehabilitation were guarded.

Age and background

1. The appellant was aged 22 or 23 at the time of offending.
2. The appellant's background is touched upon in a series of sentence assessment reports (six in number) that were before the Local Court Magistrate, covering the period 27 September 2019 to 30 June 2021.
3. He was unemployed at the time of his offending. His legal representative emphasised that, having an Aboriginal heritage, he experienced periods of homelessness.
4. The appellant's legal representative conveyed his client's instructions that he attended school until about year 9, then attended a behavioural school. After he left school, he 'bummed' around for a couple of years before finding work with a landscaper. He worked at a duck farm between 2018 and 2019.
5. It appears that he left school whilst young, between years 7 and 8. He has had a mixed employment history, generally with jobs in the transport industry, but has not worked since 2018. He is dependent on social assistance.
6. In the SAR dated 4 March 2020, the appellant was recorded as experiencing periods of homelessness since October 2018. His father had reported to the Community Corrections Officer that he had been 'unstable' since a family breakdown occurred whilst he was a teenager. This was consistent with the appellant's own view, of his condition being medically undiagnosed and his self-medicating through the use of illicit drugs purchased off the street.
7. In the same report, with reference to the offending in August 2019, he attributed his conduct (which he regarded as resulting from misunderstandings with staff) to his being in a highly intoxicated state; and specifically, a combination of high levels of Zanex and cannabis. The appellant had admitted regularly spending money on illicit drugs and 'street' pharmaceuticals and variants of mood-altering medications. His father considered that the only time he acted aggressively was whilst he was under the influence of drugs. Reference was made to the appellant falling in with an anti-social peer group when he was in his formative years.
8. It is not a mitigating factor that any of the subject offending occurred at a time when the offender was self-intoxicated (CSP Act s 21A(5AA)).

Antecedents

1. The appellant's legal representative emphasised that prior to the appellant's offending in August 2019, he had not much of a criminal record. He had had only minor offences for driving whilst suspended.
2. I accept that with reference only to the issue of antecedents, the appellant is entitled to a measure of leniency
3. There was no evidence before the Court of prior good character.

The pleas

1. The appellant is entitled to discounts on his guilty pleas as applicable. These require some explanation.
2. As to the offending which occurred on 10 August 2019, the appellant had entered pleas, but these were withdrawn. On 4 March 2020, he was convicted and sentenced for a Community Corrections Order of 12 months duration. He has no entitlement to a discount for any plea on these offences.
3. As to the offending on 6 October 2020 at Kingswood, the offender pleaded guilty to the offence H76829608/3. The appellant is entitled to a discount on his plea for this offence.
4. He was convicted, when absent from the court, of H76829608 sequences 1 and 2 of those particular offences. Similarly, in relation to his offending on 6 October 2020 concerning his de facto partner, he was convicted, in his absence of the offences H148400302 sequences 1 and 2. He pleaded guilty to sequence 3, and is entitled to a discount for that offence.
5. Finally, in relation to the offending at the Panther's Club involving the security personnel, he pleaded guilty to those two offences. He is entitled to a discount on those offences.
6. In each of these cases, there is no reason why the discount should not be 25%.

Remorse and contrition

1. The appellant did not demonstrate any remorse or contrition.

Prospect of rehabilitation

1. As at March 2020, the Mt Druitt Corrections Officer assessed the appellant as being at a 'low risk' of reoffending. By then, he was not previously known to Community Corrections. Even so, the Corrections Officer noted that he may benefit from a mental health assessment.
2. In a sentencing assessment report dated 25 February 2021, prepared in advance of sentencing for the offending conduct of 6 October 2020, the Community Corrections Officer assessed the appellant as being suitable for undertaking the Balund-a Program. The next entry date was expected for the middle of March 2021 and was expected to be completed by late September.
3. The appellant commenced the course. A Bail Supervision assessment report dated 27 May 2021 a favourable report was furnished, reporting on the appellant's progression to stage 3 of that Balund-a Program during which he abstained from the use of illicit substances and anticipated his completion of the program in late September. The appellant had been going well, completing the EQUIPS Foundations and Addictions component of the program and returning nine negative supervised urinalysis tests; albeit that he did return a positive result for Buprenorphine on 15 June 2021.
4. But on 28 June 2021, the appellant breached the conditions of his participation in the program. The appellant had cited his missing his family and his belief that the program was not for him. He had expressed a desire to leave the program in recent weeks before then. Disappointingly, the appellant's father indicated that the appellant had not returned to the family home and Police subsequently confirmed that he had not reported.
5. This recent conduct plainly represents a material setback to the appellant's rehabilitation.
6. In this appeal, the appellant relies upon a letter from a Counsellor, Shannon Speechley, of the Marrin Weejali Aboriginal Corporation, dated 15 November 2021. The letter noted that the appellant had been involved with the service since before some of the subject offending. The service had not, however, assisted him since August 2020. The service noted that it was capable of providing further instruction to him, five days a week, for counselling on such matters as anger management and living with addictions. The author of the letter opined that the appellant worked well with therapeutic support. However, the letter was written before many of the offences had occurred.
7. The appellant also relied upon a letter from his uncle, Mr Brett Leary, who stated his commitment to helping the appellant getting back on track, and living with him. Mr Leary also mentioned the prospect of the appellant securing employment with his own employer. It is pertinent to note that this hearsay evidence, although not objected to by the Crown and was not supported by an independent letter from the employer.
8. The appellant's legal representative submitted, on his client's instructions, that the appellant has no former contact with his former partner and, given the assistance of Brett Leary and the Marrin Weejali service, he is receiving assistance for his rehabilitation.
9. I regard his prospects of rehabilitation as guarded.

Submissions

1. In this appeal, the appellant's legal representative referred the Court to the 'Aggregate Sentence Form' completed by the Magistrate.
2. In relation to the offences on 10 August 2019, he submitted that the Court should effectively restore the community corrections orders which had earlier been imposed. Even though they were breached, that circumstance did not elevate them, in terms of their gravity, in a way that the s 5 threshold was crossed. In relation to the offending on 6 October 2020 offences and the two failure to appear offences, no submission was made about the appropriateness of the indicative sentences, but if this Court found that they were appropriate, full effect should be given to the totality principle. That principle would recognise the appellant's no prior (extensive) criminal record, his prospects of rehabilitation and the desirability of his receiving supervision from Community Corrections.

Consideration

1. I have regard to the maximum penalties for the respective offences. It is pertinent to point out that jurisdictional limit for imprisonment that could have been imposed by the Local Court is not a gauge of the seriousness of the offence (Park v The Queen [2021] HCA 37 at [19] & [23]). A majority of the offences had a maximum penalty of 5 years' imprisonment and one had a maximum penalty of 10 years when tried in this Court. The maximum penalties were a guidepost to the offending.
2. I also have regard to each of the considerations in s 3A of the CSP Act.
3. The appellant's offending conduct essentially occurred on two separate dates, but in at least three different places. On both dates, he engaged in avowedly frightening conduct to innocent members of the public in a shopping centre, scaring hospital staff, patrons enjoying the Penrith Panthers club as they went about their business or were enjoying recreational pursuits. But it was worse than that. His conduct was actually violent towards security officers and police and even his own de facto partner and friend. Such conduct elevates the need for a sentence that recognises the need for general deterrence and specific deterrence and also protection of the community. There is little in the appellant's subjective favour; although it is acknowledged that at least before his offending in August 2019, he did not have much of a criminal history. It is a concern to the Court however, that there was not a trace of contrition or remorse in his conduct. Facilitating his rehabilitation, for which his prospects are at best guarded, is of lesser weight than the other considerations adverted to.
4. I agree with the learned Magistrate that the appellant's conduct crossed the s 5 threshold.
5. I also agree with the learned Magistrate that the non-parole period should be varied to reflect the circumstances of his youth, the first occasion of his being incarcerated and the importance, from the perspective of the community's ultimate benefit, that much of his sentence is served under supervision. In terms of the reduction of the non-parole period (40% of the term), the Magistrate was generous to the appellant. I take into account, further, the recent letter from Mr Leary, regarding the support for the appellant from his family. I agree with the variation of the non-parole period identified by the learned Magistrate.
6. I am mindful of the principle of totality. As indicated, save as for the offences for failing to appear, there were three groups of offences, occurring on different dates. These are the group of offences in the shopping centre; the offences at the hospital; and the group of offences in the Panthers club. Some concurrency should be accorded to reflect the fact that the offences occurring on those dates, were generally part of the same episode, as part of a continuum. That is at least the case in relation to the conduct that occurred in August 2019, although the case for concurrency is not so powerful in relation to the offending conduct on 6 October 2020, which occurred in different places and at different times, and involved different victims. Even factoring in the consideration of concurrency in relation to the offending in August 2019, it remained the case that some accumulation was needed to reflect the overall criminality, involving different victims and different offences. I am mindful overall, that the sentence should not be crushing.

Indicative sentences

1. No direct challenge was made to the indicative sentences in relation to the offending which occurred on 6 October 2020 or the failure to appear offences. I agree with the appellant that there is some limited scope to reduce the penalties for some of the offending which occurred on 10 August 2019, but as will be seen, do not accept that Community Corrections orders are appropriate for all of the offences but only some of them. I find that the s 5 threshold is crossed for many of them. There is scope, however, to reduce the terms of some of the indicative sentences. H72545629/1 3 months H72545629/2 3 months H72545629/3* CCO for 12 months H72545629/4 3 months H72545629/5 CCO for 12 months H72545629/6 3 months H72545629/7 CCO for 12 months H72545629/8 3 months H72545629/9 3 months H72545629/10 6 months H76829608/1 9 months H76829608/2 9 months H148400302/1 9 months H148400302/2 9 months H77477262/2 9 months H77477262/2 9 months H76829608/3 3 months H148400302/3* 3 months

• denotes when the 25% discount on the guilty plea applied.

1. I propose to vary the aggregate term of imprisonment. I propose to retain the same ratio of the non-parole period imposed by the Local Court. I adopt the commencement date utilised by the Local Court.
2. Mr Leary, please stand, the aggregate term of your term of imprisonment is varied so that it is 4 years commencing 25 May 2021 and ending on 24 May 2025, with a non-parole period of 1 year, 6 months and 16 days expiring on 10 December 2022, after which you will become eligible for release.

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: 14 December 2021