R v LEE

District Court of NSW|2021-11-04

Judgment

The offender appears for sentence in respect of two substantive matters, namely one count of Intimidation contrary to s 13(1) of the Crimes (Domestic & Personal Violence) Act, 2007 and one count of Specially Aggravated Detain for Advantage contrary to s 86(3) of the Crimes Act, 1900. The matters arise out of different episodes of offending.
The offender pleaded guilty at the Wagga Wagga Local Court on 25 August 2021 and adhered to those pleas of guilty at the sentence hearing at the Wagga Wagga District Court on 4 November 2021. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
When passing sentence on the Specially Aggravated Detain for Advantage charge the offender asks that I take into account a charge of Reckless Wounding contrary to s 35(3) of the Crimes Act, which is on a Form 1 document. That offence was committed while the victim was detained. In passing sentence I will need to ensure that I give proper regard to the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, No. 1 of 2002 reported at (2002) 56 NSWLR 146, otherwise known as the Guideline Judgment on Form 1 matters. Given the nature of the offending so far as the charge of Reckless Wounding is concerned there must be some impact on the ultimate sentence to be imposed.
The maximum penalty for the offence of Intimidation is 5 years imprisonment. The maximum penalty for the Specially Aggravated Detain for Advantage charge is 25 years imprisonment. Parliament has not specified a standard non-parole period in respect of either offence.

Assessment

In respect of the charge of Intimidation the facts are silent as to whether the blowtorch was lit. As I observed at the sentence hearing I presume from the facts that it was not. In those circumstances I cannot be satisfied beyond reasonable doubt that it was and proceed to sentence on the basis that it was not. Nevertheless it was a weapon and the victim would have been scared. The offence was committed in the context of the victim being held against his will by someone other than this offender. It is not suggested that the offender played any role in the detention of that person. However the fact of the detention is still relevant to the overall circumstances of the offending. The matter is in the lower end of the mid-range. Before submissions were made at the sentence hearing I gave a preliminary indication that that was my view. I did not understand either counsel to dissent from that indication.
Turning to the Specially Aggravated Detain for Advantage charge it appears from the decision of R v Speechley [2012] NSWCCA 130 at [105]-[110] per Johnson J (McClellan CJ at CL, Hammerschlag J agreeing) that the factors that inform the objective seriousness of an offence contrary to s 86(3) are the length of time of the detention, the extent to which fear or terror was occasioned, the manner in which the victim was treated, the extent of the actual bodily harm and the motive for the detention.
The offending occurred in the home of the victim and accordingly the factor of statutory aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 is made out.
The detention occurred for a period of about an hour and one half. It occurred in the early hours of the morning. Being in company is an element of the offence but there was more than one person in whose company the offender was at the time of the offending. Significant fear would have been instilled in the victim, noting in particular for the period of time that the victim was threatened. The threatening conduct was sustained and continued for the entirety of the period the victim was detained. The actual bodily harm is limited to pain and bruising but both lasted for a few weeks. The actual bodily harm taken in isolation would be on the lower end of injuries contemplated by the expression "actual bodily harm". The motive appears to be for the offender and his accomplices to obtain illicit substances. There does not appear on the material before me to be any element of vigilante activity.
Mr Keller put on behalf of the offender at the sentence hearing that the offender initially attended the victim's premises as a result of an invitation communicated by text message. The Crown correctly submitted that there was no evidence of that. However, there is paragraph 8 of the report of Ms Dombrowski (exhibit 1) where the author recounts the offender telling her that he attended the victim's home with companions to purchase methyl amphetamine for their personal use. I am prepared to deal with the matter on the basis that the attendance by the offender and the co-offenders was not entirely random. This is not a matter of mitigation but rather it would be more serious if the attendance at the premises had been completely random.
Again I gave an indication of a preliminary view before submissions. The Crown did not take issue with the suggestion that the matter was within the mid-range.
Mr Keller on behalf of the offender submits (MFI 1) that the offending was "nasty" but not the most serious example of this type of offending. Again, I did not understand Mr Keller to take issue with the suggestion that the matter was within the mid-range of seriousness.
In all the circumstances noting the duration of the detention, the time at which it occurred, the sustained nature of the threatening conduct, the nature of the injuries, the number of people in whose company the offender was, the fact that it was in the victim's home and the motive the matter is within the mid-range of seriousness. I have found that the factor of statutory aggravation provided for by s 21A(2)(eb) of the Sentencing Act is made out. Care will need to be taken not to double count.

Criminal History

The offender was born on 22 July 1988 and accordingly is now 33 years of age and was 32 at the time of the offending. He was convicted of Affray in 2008 and placed on a bond to be of good behaviour. He was convicted and fined in 2008 for Resist Police and Offensive Manner.
On 20 March 2019 the offender was convicted and sentenced to a total term of 4 years 6 months with a non-parole period of 2 years 9 months for Manslaughter. The offender pleaded guilty to that offence.
The offender was subject to parole in respect of the Manslaughter offence at the time of the offending for which he now appears for sentence. The factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is enlivened in that the offence was committed while the offender was subject to conditional liberty.
On 31 August 2020 the offender was sentenced to a total of 9 months imprisonment to be served by way of Intensive Correction Order for Being Carried in Stolen Conveyance. He was also fined for possession of a prohibited drug and a trespass offence.
Although not particularly extensive the offender has a record that does not entitle him to any particular leniency. Again I gave that as a preliminary indication at the sentence hearing before counsel addressed. Neither the Crown nor Mr Keller took issue with that indication.

Subjective Case

No oral evidence was called from or on behalf of the offender. However there was a volume of written material before the Court. That material includes a comprehensive psychological report from Ms Julie Dombrowski of the Legal Psychological Group of Australia, which became exhibit 1. There is also the report by Ms Wakely of Duffy Robilliard Psychologists which was prepared for the sentence proceedings when the offender was sentenced in 2019 for Manslaughter.
At paragraph 6 of the report the author opines that there were no obvious indicators of intoxication or psychosis. The issue of the offender being on parole is then addressed. The offender was using methamphetamine (ice) and opioids in the form of non-prescribed oxycontin at the time of both episodes of offending.
The report notes at paragraph 8 that at the time of the commission of the Aggravated Detain for Advantage offence the offender was attempting to avoid apprehension and being returned to custody following a breach of an Intensive Correction Order. The offender told the author of the report that he attended the home of the victim intending to purchase methamphetamine for personal use. The victim refused and the offence occurred. The offender was angry with the victim.
The report goes on to say that the offender expressed regret for the offending saying, "I feel sorry…it's not nice what happened". He also expressed frustration over his use of methamphetamine and said, "…It takes the pain away…It blocks it out...I don't think about nothing…But that's no excuse".
On the issue of remorse I understood Mr Keller to submit that I would find on balance that the offender was remorseful noting the plea of guilty and what he said to Ms Dombrowski. The Crown opposed a finding of remorse. The expression of remorse is entirely untested. Given the decision of Imbornone [2017] NSWCCA 144 at [57] I am not prepared to find on balance that the offender is remorseful.
Returning to the report of Ms Dombrowski at paragraph 9 it is noted that the offender is now taking psychotropic medication and buprenorphine to manage opioid withdrawal. The offender has managed to abstain from using methamphetamine in custody this time, unlike the last time he was in custody.
The offender identifies as indigenous. According to the history given to Ms Dombrowski his father abused alcohol and physically abused the offender and his mother on a regular basis. At the age of 7 he was sexually abused by a family friend, which has never been disclosed. His parents separated when he was 14 years of age.
At paragraph 20 the author of the report says: "Mr Lee's offending is best understood within the context of his developmental history and the broader context of social marginalisation and disadvantage associated with his Aboriginality. In particular he grew up with parental substance abuse and domestic violence and experienced sexual abuse during childhood. He experienced racial discrimination and longed to feel accepted and a sense of belonging. He received little caregiver supervision and guidance during adolescence to manage these experiences or to positively shape his social and moral development…"
I indicated to the parties before submissions that I was prepared to find that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened. Unsurprisingly Mr Keller of behalf of the accused had no issue with this.
However, relying on the content of the report of Ms Wakely, exhibit 2 the Crown did take issue. At paragraph 4 of that report it is noted that the offender denied to the author of that report that there was any violence or drug use in the home. At paragraph 15 of that report it is noted that the offender identifies as indigenous and further that he feels he has been widely accepted by both the indigenous and non-indigenous communities. At paragraph 36 of the report it is noted that the offender denied any history of physical or sexual abuse.
As I said to the parties at the sentence hearing it is common within my experience that offenders to whom the "Bugmy factors" apply are often enough desensitised to the issues to the point where what actually enlivens those factors is seen by them as normal.
The offender was using substances during his previous incarceration. He was diagnosed by Ms Wakely as suffering from post-traumatic stress disorder. I am prepared to find that the "Bugmy" factors are enlivened to an extent reducing the moral culpability of the offender. However, those factors do not achieve the same weight as they would if more information or evidence was available as to the extent of the deprivations suffered by the offender.
Ms Dombrowski's report sets out that the offender keeps in touch with both of his parents, both of whom are unwell. Both remain supportive. That was also the situation in 2019 - see paragraph 5 of exhibit 2.
The offender left school after completing Year 10 and worked casually for his father as a removalist for about ten years until his (offender's) substance use worsened. He worked "sporadically" as a removalist after his release from custody in 2020.
At paragraph 14 of the report it is noted that the offender's involvement with antisocial peers escalated since his imprisonment for the Manslaughter offence. He has been disciplined for breaches of prison discipline including substance abuse. However as Mr Keller submitted the offender has not had an issue with prison discipline for some time. I note from the custodial history that the last incident was approximately 12 months ago.
The offender's substance use began with him smoking methamphetamine in 2014 when he was 26 years of age. He smoked cannabis during his adolescence. He left prison in 2020 feeling dependent upon methamphetamine and opioids. In August 2020 as a condition of the Intensive Correction Order the offender attended a detoxification programme. He left after three days because he could not tolerate the treatment. The offender has since completed the EQIPS Addiction Programme while in custody on this occasion.
In 2017 the offender was diagnosed with Post Traumatic Stress Disorder resulting from the incident that led to the offender's conviction for Manslaughter. He continues to have flashbacks. He is currently taking Avanza to manage his mood.
Ms Dombrowski notes at page 8 that the offender has never completed a therapeutic programme and as such is largely naïve to the therapeutic process. She also observes that treatment will need to be delivered by a clinical or forensic psychologist who has experience treating people with unstable personality structures, trauma and substance abuse.
These factors justify a finding of special circumstances. The offender will need intensive and extensive supervision to ensure his proper reintegration into the community on this occasion and also to ensure that he remains abstinent from illicit substances. The offender will benefit from the treatment recommended by Ms Dombrowski. On the issue of special circumstances there is also the issue of partial accumulation on the sentences currently being served by the offender. Mr Keller submitted that the court would make a finding of special circumstances.
Mr Keller submitted that on the issues of prospects of rehabilitation and the likelihood of re-offending that the offender is now abstinent from illicit substances and that he has some insight into his offending and the causes of that offending. I did not understand Mr Keller to submit that there were good prospects of rehabilitation, but rather that there were some very positive signs.
Given the breaches of conditional liberty and the criminal history of the offender I am unable to find on balance that the offender is unlikely to re-offend. So far as the prospects of rehabilitation are concerned I agree that there are some very positive signs. The offender has completed the EQUIPS Addiction course in custody and has remained abstinent. It seems he is now properly medicated. However, so far as long term rehabilitation is concerned much will depend on how the offender engages with the appropriate authorities and agencies upon his release. I am not prepared to find on balance that there are good prospects of rehabilitation at this point in time because it seems to me that it is simply "too early to tell".

General Remarks

In passing sentence I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate. Clearly in this matter given the offending, the need for general deterrence, the breach of parole and the need for general deterrence there must be a sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be full time custody.
There is an issue as to the commencement date of the sentence. The offender was arrested on and has been in custody from 12 November 2020. However, parole has been revoked as has the Intensive Correction Order. A fixed term of imprisonment of 2 months was imposed on 26 July 2021 in respect of a charge of Destroy or Damage Property. Because of these issues the offender has served no time in custody solely referable to the matters for which he now appears for sentence. There is an issue of totality.
During the sentence hearing I suggested to the parties that the sentence commence on 12 June 2021. Mr Keller submitted that to commence the sentence from that date was within the court's discretion with which he could not cavil. The Crown likewise had no apparent issue with the sentence being commenced on that date.
There does not appear to be any issue of parity to be considered.
There is also an issue of partial accumulation in respect of the two substantive matters on which sentence has to be passed. The Intimidation offence was separate offending. There should be some degree of partial accumulation to recognise the different offending and the different victim. The extent of the backdating in my view takes into account the issue of totality so far as the sentences currently being served by the offender are concerned - that is the balance of parole and the revocation of the Intensive Correction Order.
I am of the opinion that this is an appropriate matter for the invocation of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed. The sentences that would have been imposed had separate sentences been imposed are: 1. In respect of the charge of Intimidation a total sentence of 15 months imprisonment indicating a starting point of 20 months; and 2. In respect of the Specially Aggravated Detain for Advantage charge taking into account the Form 1 matter a total sentence of 5 years 7 months indicating a starting point of 7.5 years.

Orders

In respect of the matters to which the offender has pleaded guilty he is convicted.
The offender is sentenced to an aggregate sentence of 6 years and 3 months with a non parole period of 4 years and 3 months.
The non-parole period will date from 12 June 2021 and will expire on 11 September 2025.
The balance of term of 2 years will commence on 12 September 2025 and will expire on 11 September 2027.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The non-parole period is 68% of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons.
Taking into account the sentences being served by the offender at the time of the imposition of this sentence the total effective sentence is 6 years and 10 months. Presuming that the offender is released at the expiration of the non-parole period imposed by me today the period in actual custody is 4 years and 10 months. The period in actual custody is approximately 70% of the total effective sentence.
I direct that a copy of exhibits 1 and 2 be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Judgment (8 paragraphs)

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