R v Love

[2023] NSWDC 609

District Court of NSW|2023-10-04

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-10-04

Catchwords

(2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37
(2011) 244 CLR 462 Harrigan v R [2005] NSWCCA 449 Lloyd v R [2022] NSWCCA 18 Magaming v The Queen [2013] HCA 40
(2013) 252 CLR 381 MAK v R [2006] NSWCCA 381 Marinellis v R [2006] NSWCCA 307 Mill v The Queen [1988] HCA 70
(1988) 166 CLR 59 Postiglione v The Queen [1997] HCA 26

Source

Original judgment source is linked above.

Catchwords

(2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37(2011) 244 CLR 462 Harrigan v R [2005] NSWCCA 449 Lloyd v R [2022] NSWCCA 18 Magaming v The Queen [2013] HCA 40(2013) 252 CLR 381 MAK v R [2006] NSWCCA 381 Marinellis v R [2006] NSWCCA 307 Mill v The Queen [1988] HCA 70(1988) 166 CLR 59 Postiglione v The Queen [1997] HCA 26(1999) 46 NSWLR 346

Judgment (22 paragraphs)

[1]

R v Munn [2022] NSWDC 264 R v Pangallo (1991) 56 A Crim R 441 R v Taouk (1992) 65 A Crim R 387 R v Underwood (a pseudonym) [2023] NSWDC 309 Taylor v R [2007] NSWCCA 99 Veen v The Queen [No 2] [1988] HCA 14 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Sentence Parties: Clayton David Love (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: E Anderson (for the offender) D Coulton (for Director of Public Prosecutions) (the Crown)

[2]

[3]

Introduction - A robbery in Southern Wollongong

In the early hours of the morning on 10 February 2021 there was a violent robbery at a home in southern Wollongong. Signed and agreed facts were put before the Court. They say that four men forced entry into the home. The closed front door was pushed in as the two residents attempted to keep it shut. Each intruder had their face covered by a mask. One man held a firearm. He pointed it at both victims. Another man held a machete. Another man stomped on the female victim, kicking her back and ribs. He also kicked the family dog.
As the men entered, the male victim stumbled into the front bedroom. The door of that room was closed behind him and held shut by one of the intruders. The man with the firearm held it to the female victim's forehead. The man who had kicked her ran to an opal display in the lounge room, he grabbed opals and put them into a laptop bag. The man with the machete stood by the opal case. The fourth man stood near the front door and front bedroom door. He appeared to be timing what was going on. Less than two minutes later he yelled out, "Time". One of the men scooped up the remaining opals and all four men ran from the house.
A substantial quantity of opals was taken. They were valued at $500,000. Their owner estimates only a small portion of the stones were ultimately recovered.
A thorough police investigation ensued. A number of surveillance techniques were used. The investigations led to the arrest of a number of people including Clayton Love. Further investigations also led to other charges being laid against Love.
Love and his co-offenders; Underwood (a pseudonym) and Alcock, were captured on intercepted calls and messages discussing the stolen opals with various associates. After the robbery he and Underwood, sold or pawned four of the stolen opals for $300. Other stolen opals were received at the jeweller via another person. Attempts were made to sell the opals or exchange them for drugs. Love is recorded as speaking about a four-way distribution of the proceeds of the robbery. Another person stored some of the opals on behalf of Love.
Alcock and Love had a falling out over the division of the stolen opals. A third party claimed Alcock had stolen some of the opals from him. At one stage, Love sent the third party a photograph of a revolver. At the time Love was the subject of a firearms prohibitions order. A member of an outlaw motorcycle gang was enlisted to mediate in the dispute.
As a result of their investigations, police were able to seize a packet containing about 90 of the stolen opals; they had been posted to Love by the third party.
On 15 April 2021 a search warrant was executed at Love's home. A bag containing 0.5 grams of methylamphetamine was seized. Love was later monitored speaking with a friend, Tina Chamberlain, and his mother Debra Love.
On 20 May 2021 police executed a search warrant at Chamberlain's home. They found a bag of opals that were identified as being taken during the robbery. That day they attended Debra Love's home and seized a number of items belonging to the offender, including documents with instructions on how to manufacture prohibited drugs: Sequence 7.
Another search warrant was executed at Love's home. No opals were located but other items were seized.
For a period, Love was in custody for unrelated matters. I note that all gaol calls are preceded by a message indicating that they are being monitored and recorded. The calls between Love, his mother and Chamberlain were recorded. Although the conversations were in code, the code words used obviously referred to the stolen opals. Love gave directions to a location where he wanted "things" picked up from.
On 11 July 2021 Chamberlain went to an address and dug around in the yard. She located a container and took it to Debra Love's home. Inside the container was a gun which Debra Love later buried in her backyard: Sequences 11, 12. 13 and 19.
A further search warrant was executed at Love's grandmother's home, on 15 July 2021. Inside a safe police found a revolver style pistol: Sequence 18. Love's grandmother said the pistol was found in Love's garage while she was packing his belongings. It is the same brand, but a different gun, than that depicted in the photograph: Sequence 17.
On 15 July 2021 a further search warrant was executed at Debra Love's home. Buried in the backyard was a bag containing a rough-cut opal, a revolver and 57 rounds of ammunition: Sequences 19, 11, 12 and 13.
Love should not have been contacting Chamberlain from custody. There was an interim Apprehended Domestic Violence Order in place for her protection; it prohibited any form of contact. His contact phone list at the gaol had her number under the name of his sister. He made over 160 calls to her between 20 May 2022 and 25 May 2022. In addition, he had family members contact her and pass on messages on his behalf: Sequence 3.
Following the search of Chamberlain's home, he sent a message to her via his mother telling her to, "Shut her mouth. Don't even talk to any coppers". Thereafter, either directly in calls or as she listened to calls to his mother, or through his mother or others, Love was in regular and persistent contact with Chamberlain. The Agreed Facts, Exhibit, give details of 12 calls during his first time in custody for the unrelated matter. In those calls he urges her to: " … do the right thing and withdraw the statement … I want someone to think about retracting something, you know what I mean? … I love someone and always will … I wish … try and get that thing revoked … otherwise I'll be stuffed … I don't want to do 10 years, fuck that, for something I didn't do …. Just because they found some [opals] at her place it doesn't mean they come from me".
Love was in the community from 20 July 2021 to 10 November 2021, when he was arrested for the armed robbery. After his return to gaol, he contacted Ms Chamberlain on multiple occasions. The Agreed Facts, Exhibit B, set out details of 25 conversations, most are with his mother, but Ms Chamberlain is in the background listening. At the time, the two women were living in the same house. Love is recorded as saying: "They can't pressure ya and grill the fuck out of ya for something when you can't remember and that sort of business when you've had a few drinks and what not or if she had a few drinks so yeah. I love ya, that's all you need to know. Alright?"
He persistently reminds Chamberlain to tell the police she cannot remember events, to say she can't remember and be vague, and to "stay staunch" and "stand by me".
When Love was arrested on 10 November 2021, he was at Wollongong Local Court where he had attended for other matters. In the bag he was carrying was found a small, resealable bag containing 0.086 grams of methylamphetamine: Sequence 16. A further search of his home led to the recovery of another opal.
Other surveillance and monitored calls and messages revealed Love making arrangements to supply methylamphetamine on seven separate occasions. The total amount supplied was 7.4 grams: Sequence 15. The supplies took place between 19 March 2021 and 4 May 2021. Love would sell 0.5 of a gram for $200 or $180 for half a gram, 1.75 grams would be sold for $500.
When he was before the Local Court, Love indicated he would plead guilty to the following offences: 1. Specially Aggravated Break into and Commit Serious Indictable Offence: Crimes Act 1900 (NSW), s 112(3); H85068742, Sequence 1. 2. Possess Unauthorised Pistol: Firearms Act 1996 (NSW), s 7(1); H85068742, Sequence 17. 3. Possess Unauthorised Pistol: Firearms Act 1996, s 7(1); H85068742, Sequence 18. 4. Possess Unauthorised Pistol: Firearms Act 1996, s 7(1); H85068742, Sequence 19. 5. Supply Prohibited Drugs less than Commercial Quantity: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1); H85068742, Sequence 15. 6. Do an Act Intending to Pervert the Course of Justice: Crimes Act 1900, s 319; H8277722, Sequence 3. 7. Contravene Prohibition in an Apprehended Violence Order: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) on a Criminal Procedure Act 1986 (NSW), s 166 certificate; H8277722, Sequence 2.
He asked that when I sentence him, I take into account his acceptance of guilt on a number of other matters: Crimes (Sentencing Procedure) Act 1999, s 33(2)(b), Form 1.
On a Form 1, for the Aggravated Break and Enter; Sequence 1: 1. Knowingly Deal with the Proceeds of Crime: Crimes Act, s 193B(2); H85068742, Sequence 2.
On a Form 1, for the Possess Unauthorised Pistol; Sequence 19: 1. Possess Firearm subject to Prohibition Order: Firearms Act, s 74(1); H85068742, Sequence 11; 2. Possess Unauthorised Ammunition: Firearms Act, s 65(3); H85068742, Sequence 12; and 3. Possess Ammunition whilst subject to a Prohibition Order: Firearms Act, s 74(3); H85068742, Sequence 13.
On a Form 1, for the Supply Prohibited Drug: Drug Misuse and Trafficking Act, s 25(1); Sequence 15, he asked that I take into account: 1. Possess Instructions for Manufacture of Prohibited Drug: Drug Misuse and Trafficking Act, s 11C(1); H85068742, Sequence 7; and 2. Possess Prohibited Drug: Drug Misuse and Trafficking Act, s 10(1); H85068742, Sequence 16.
His guilty pleas were all entered in the Local Court. I will be imposing an aggregate sentence. That plea has value. It must be taken into account when I synthesise an appropriate sentence. The law provides, and I will, reduce each indicated sentence by 25% to reflect the utilitarian value of that plea. I will take care to ensure that benefits for the plea reduction are not eroded by the process of accumulation.

[13]

Offender's subjective case

Love did not give evidence, but there is nothing particularly controversial in the material before me on his behalf, and none of it goes to, or contests any, of the objective facts.
He is now 44. He grew up locally. He reports no particular issues growing up. He got on well with his father despite some harsh punishments. He reports of some behavioural issues during his adolescence.
He left school in Year 10, and he worked. He joined the Australian Army and served from 1997 to 2004. His service should be recognised in mitigation of sentence. He did two deployments to East Timor where the material before me indicates he experienced a number of significant traumatic events. He is currently, and has been for some time, in receipt of an Australian Defence Force TPI pension. On leaving the army he worked in coal mines until 2011. Since 2011 he has not been in regular employment.
He reports some instances of childhood trauma, including sexual abuse by a priest. Symptoms of post-traumatic stress disorder, PTSD, have been present since his time in Timor and have apparently escalated. He has had a number of admissions to private hospitals for treatment of his PTSD. At times he has engaged with psychiatrists and psychologists in the community.
Intermittent illicit drug use appears to have escalated from 2011. His primary drug of concern is methylamphetamine. At the time of the commission of these offences he reports, and the evidence supports, the fact that he was a daily user. But drug use, as he is well aware, and the community should be well aware, cannot excuse crimes of this nature.
It would appear that despite a number of stressors he was, prior to 2011 and then in a more increased rate of deterioration in 2016, capable of leading a reasonably law-abiding life in the community. But since 2016 he has effectively lived outside the law, with continued offending, culminating in the serious matters that bring him before the Court for sentence.

[16]

Remorse

The offender has accepted responsibility, as is evidenced by his guilty pleas, although, as is obvious from the attempt to pervert case, it took him a while to come to that conclusion. He expressed his regret to Ms North, but there is no indication in any of the material before me that he truly understands the impact of his offending on his victims and the community, across all of his offences. Improved mental health might enable him to do so.
It is clear that he has used and abused, in an escalating fashion, the drug methylamphetamine. That is not an excuse for the commission of any of the offences, in fact, drug use can sometimes escalate the seriousness of a matter because it makes a person more unpredictable.
What needs to be done to enable him to overcome his drug addiction and get appropriate treatment for both his substance abuse disorder and the PTSD is, however, important when I come to considering an appropriate sentence and the structure of the sentence.
His underlying mental health problems, trauma based as they are, require sensitive consideration. His Post-Traumatic Stress Disorder was acquired service in the military. He has sought to treat it in the past, but he is not to be punished for the fact that that treatment was not successful. It is understandable that he would take up the use and abuse of illicit drugs as a maladaptive way of dealing with those problems. As a consequence, his moral culpability is less than a person who did not have such underlying problems.
It will mean, because his need for treatment will be impeded by his time in custody, that custody will be a greater burden on him and more onerous than for offenders without his condition. While mental health conditions reduce the need for general and specific deterrence, both those factors still remain important in my sentencing calculus. He is intelligent enough and able enough to understand the consequences of his actions, and he must be held to account for them. But I do take into account those underlying problems and the need for treatment of them, and that includes the resultant drug addiction.

[17]

Parity

I have previously sentenced: R v Alcock [2023] NSWDC 326; R v Underwood (a pseudonym) [2023] NSWDC 309; R v Munn [2022] NSWDC 264; R v Gee [2023] NSWDC 327; R v Kominkovski [2023] NSWDC 511; R v Chamberlain, unreported NSWDC 25 May 2022; and Love's mother, Debra, on appeal from the Local Court.
Ms Chamberlain was sentenced to a 2 year good behaviour bond for her role in Knowingly Dealing with Proceeds of Crime. A Possess Prohibited Drug offence was taken into account. She had the benefit of a reduction in sentence for an early plea and other assistance: R v Chamberlain, unreported NSWDC 25 May 2022.
Mrs Love came before me on appeal for an offence of Hinder Investigation of a Serious Indictable Offence and Possess an Unauthorised Pistol. She was sentenced to 12 months' imprisonment to be served by way of intensive correction in the community. She made an early plea.
Munn was sentenced for his role in Knowing Deal with Proceeds of Crime. His early plea was taken into account. The sentence imposed was 2 years 7 months' imprisonment with a non-parole period of 1 year and 7 months: R v Munn [2022] NSWDC 264.
Gee was sentenced by me for his involvement in Knowingly Deal with the Proceeds of Crime. After his early plea was taken into account the sentence was 2 years 7 months' imprisonment with a non-parole period of 1 year 10 months: R v Gee [2023] NSWDC 327.
Lachlan Alcock was sentenced for his role in the Specially Aggravated Break and Enter and Possession of an unrelated prohibited weapon. The deal with proceedings of crime and a possess prohibited weapon offence were taken into account of a Form 1. After a reduction for his early guilty plea, I sentenced him to 7 years' imprisonment with a non-parole period of 4 years 3 months. The indicative sentence for the aggravated robbery was 6 years 9 months with 4 years 2 months' non-parole period: R v Alcock [2023] NSWDC 326.
Alcock's background and antecedents were different from the present offender. His background, particularly as a child, was impoverished and desperate, a matter that required the application of principles set out by the the High Court and Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and Court of Criminal Appeal in R v Millwood [2012] NSWCCA 2 at [69].
Underwood was sentenced for Specially Aggravated Break and Enter and Dealing with the Proceeds of Crime to an aggregate sentence of 4 years with a non-parole period of 2 years after discounts for his early plea and assistance: R v Underwood (a pseudonym) [2023] NSWDC 309.
Kominkovski was sentenced by me recently, on 22 September 2023. He pleaded guilty early. He was only sentenced for the Specially Aggravated Break, Enter and Steal. His sentence was 4 years 10 months with a non-parole period of 2 years 5 months. He had made considerable progress towards rehabilitation and spent a considerable time in a rehabilitation facility, which was taken into account in reduction in sentence: R v Kominkovski [2023] NSWDC 511.
This sentence must be determined by having regard to the circumstances of each of the co-offenders and their respective degrees of culpability. Where they are alike, they can be compared, but different personal and criminal histories can justify, as here, a real difference in the time each will serve in prison. This principle is known as parity. This is a classic example of the need so far as possible to ensure equal justice: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.
Here there was little to distinguish the men who entered the premises during the Aggravated Break and Enter. Underwood required a reduced sentence, but their personal histories differed. So too did the counts charged or put on a Form 1. Love has additional offences that have to be considered and his criminality in many different matters continued over quite a period.
Some offenders took differing roles in the Proceeds of Crime offence. Underwood's was minimal, Gee and Munn were active participants for reward. I will have regard to those matters. While their personal backgrounds are different, there was considerable similarity ultimately in the sentences that should be imposed so far as Alcock and this offender are concerned.

[19]

Structure of the sentence

I must sentence for a number of distinct offences, some with different consequences. There are five types or groups of offences, the Aggravated Break and Enter, the Firearms offences, the Drug Supply, the Pervert the Course of Justice and Domestic Violence offences. Particular care needs to be taken in relation to the Firearms offences as each was charged separately and charged as Possess Pistol offences.
Public confidence in administration of justice requires sentencing courts to avoid any suggestion of a discount for multiple offending, accordingly, there must be some accumulation. But where there is a similarity, such as the firearms matters, many of the purposes of sentencing apply equally or overlap.
In the firearms matters the penalty for one offence can comprehend in substantial part the other, allowing for considerable concurrence.
As there will be an aggregate sentence I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality for the offender's crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62] - [63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.
There must be some accumulation of penalty between each group and some modest accumulation where there are multiple offences within each of the five groups. There should be some independent punishment for the Breach of the Apprehended Domestic Violence Order.
The application of these principles recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. Mr Anderson submitted that a "crushing sentence" should be avoided.
It is accepted that the severity of a sentence is not simply linear. What that means is, the severity of a sentence increases at a greater rate than an increase in the length of the sentence. For example, a sentence of 2 years has a greater impact on an offender than a sentence of 1 year so far as its punitive aspects are concerned: R v Clinch (1994) 72 A Crim R 301 at [306], approved in MAK v R [2006] NSWCCA 381.
The severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be crushing upon an offender, crushing in the sense it would induce a feeling of hopelessness and destroy an expectation of useful life after release. This effect increases the severity of the sentence to be served on the offender and the sentence should try and avoid interfering with rehabilitative prospects. But what is a proportionate sentence, against what may be seen as crushing, can often depend on the perspective of the observer, whether they are the offender, the victim, community, or an appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.
There will be some adjustment to the ratio here between the time that must be served and the time on parole. Love will need help adjusting to normal community life on release. Some consideration has to be given to his underlying mental conditions and the present inability to provide him with the best care that underlying conditions require. He may need transition through a rehabilitation centre. His underlying conditions will make his time in custody more difficult.
He is, so far as he is able, trying to demonstrate his rehabilitative capacity, but that will have to be tested in the community. He will need assistance while he serves the non-parole period of his sentence, and that assistance should be followed up on release.
He will need to earn his release and the State Parole Authority will not make a parole order unless it is satisfied in the safety of the community: Crimes (Administration of Sentences) Act 1999, s 135(1).
That said, the minimum term he must serve in custody should reflect all of the purposes of sentencing and properly reflect the seriousness of his crimes.

[20]

Synthesis

The offender's background is always relevant in matters such as this and should be given proper effect to when synthesising an appropriate and just sentence. While I cannot take into account as a mitigating factor, the crime was committed during a period of addiction to methylamphetamine and the report before me indicates daily use of that drug. How that addiction came about and what can be done about it are relevant in mitigation: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at [273].
There are a number of matters in the offender's history that were traumatic and did have a profound and detrimental impact on him, particularly the impact of trauma while serving in the army in a hostile and confronting environment. Both the service itself and the resulting trauma are relevant by way of mitigation.
Love's trauma histories are inextricably related, so too is his maladaptive treatment response by using illicit drugs. It is not submitted, but it is not necessary, that there be a causal connection with his offending to have regard to these matters as mitigating: Dungay v R [2020] NSWCCA 209; Lloyd v R [2022] NSWCCA 18. His moral culpability is reduced as a result and weight can be given to it as part of the process of instinctive synthesis.
He is not yet receiving the treatment he needs despite over a year on remand. He will need considerable assistance in custody and in the community. While those problems underpin his crimes, his actions, particularly the planned and brutal break and enter, mean that he must still be held accountable for what he did and requires deterrent sentences be imposed.
Mitigating factors must be taken into account, but in each of the matters for sentence there is a community expectation the offender will suffer severe punishment.
Here, the Specially Aggravated Break and Enter was a grave offence committed against two members of our community. Offences such as this cause considerable disquiet in the community. The offenders, and others minded to commit crimes such as this, must understand the consequences. Violent home invasions will not be tolerated. It has to be understood that when offenders seek substantial reward they face substantial risks, including removal from the community and removal from family for a period. It has to be understood that any potential reward is simply not worth the time in custody.
While not as grave, the other offending had impact on individuals and the community. For a period, Love lived outside the law and his actions had consequences that warrant appropriate retribution. A proper sentence marks the Court's view of the seriousness of the crimes committed and should let others know what will occur if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205].
The factors that I have to consider in determining sentence, as is often the case, pull in different directions: Veen v The Queen [No 2] [1988] HCA 14. The task of the judge "is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.": Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75].
It is the duty of a judge to balance those often incommensurate factors and to attempt to arrive at a sentence that is just in all the circumstances: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41.

R v Love

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Judgment (22 paragraphs)

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Cases Cited (34)