Mr Z Khan (Counsel for the offender)
File Number(s): 2020/161040
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Judgment
Lee Newbold, aged 34, appears for sentence having pleaded guilty in an early opportunity justifying a 25% discount on a term of imprisonment, to an offence contrary to s 86(2)(a) of the Crimes Act 1900 of attempting to take or detain with intent to commit a serious indictable offence in company. That offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period.
The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be considered, and the maximum penalty for this offence is of course an important yardstick in the sentencing process.
A full-time custodial sentence is required, as conceded by Mr Khan, of counsel for the offender as such it is unnecessary for me to consider any alternatives. T
The commencement date of the term of imprisonment is complicated somewhat slightly by his previous period in custody, namelya term of nine years and six months imprisonment with a non-parole period of six years and two months, commencing on 18 March 2010 for aggravated sexual assault in company, occurring in September 2009. He was released to parole on 17 May 2017 but while on parole, he failed to report as required and his parole was revoked. A warrant was issued for his arrest on 20 March 2019. The warrant was not executed until his arrest for these offences on 29 May 2020 and it was then that the period of almost six months of unexpired parole to date from the revocation of parole to the notional end of the sentence was to be served. That leaves the Court in the position of having a discretion to commence the date of a term of imprisonment sometime between 29 May 2020 and 27 November 2020. Notwithstanding, the Crown's submission that any backdating should not reflect the time spent serving the balance of parole, in the exercising of my discretion, I consider it appropriate to take the midpoint of the term and to commence the sentence for this offence from 27 August 2020. His co-offender in this matter, Sean Gorman, has pleaded not guilty and is to stand trial on 19 July 2021 in this Court.
The agreed facts show that the complainant was a 19 year old international student from China, studying at the University of Sydney. On 1 May 2020, at about 1.20am, she had left a friend's unit and was walking home alone, along Jones Street Ultimo. She was wearing a face mask and holding a phone. A car stopped beside her, and two men and a dog got out. The two men were firstly the offender Newbold, aged 34 and the alleged co-offender Sean Gorman, aged 24. They lived in Penrith and Queanbeyan respectively, but Gorman was staying in Ingleburn at the time. She was nervous about the males but she kept walking as there was adequate street lighting and she wanted to get away from them.
There is CCTV footage that shows the two accused walking fast to catch up to her, and when they were near level with her, they split up so they were on either side of her and the dog went ahead. Newbold grabbed her from behind, placing one hand over her mouth and his other arm around her upper body. Gorman came up close to them but did not do anything. She fell to the ground in a sitting position. She was struggling to breath with Newbold's hand over her mouth. He said, "Don't make a sound, come with me". She struggled and was able to stand up. The struggle continued for less than a minute, but Newbold kept his hand over her mouth for most of it. Gorman was standing nearby.
She saw a bike delivery person and yelled out for help and asked him to call the Police. Once the delivery driver got involved, Gorman jogged away. The delivery man asked Newbold what he was doing and he said "I only wanted to ask her some questions". By this time a number of nearby residents who had heard her yell out, had come outside and were trying to detain Newbold until Police arrived.
She could not find her phone and she asked Newbold where it was but he denied taking it. Gorman returned to the car and drove close to where Newbold was. He flashed his lights at Newbold who took the opportunity to run from the crowd. The complainant and the delivery driver chased after him but they were unable to catch him. Newbold got into the car and they left the scene.
The complainant waited for Police. She gave them a version when they arrived, and she explained that her phone was missing. She said to her friend shortly after, "People came to help me and if they hadn't come I thought I would've been raped". They were able to trace her mobile phone, locating it under a nearby bush. With the CCTV footage, Police were able to locate the vehicle through the vehicle registration as well as a Facebook photo of the dog. They were able to identify the two accused. They ascertained that Gorman had sold his car a few days after the incident. They got a mobile number for him and on 27 May, he was arrested in Taree. He was taken into custody and after receiving advice, he exercised his right to silence.
On 29 May, police attended Newbold's home and once they established that his phone number had been in contact with Gorman's, they arrested him and took him back to Penrith Police Station where he participated in an interview. He denied committing any offence and denied being with Gorman on the night. He admitted to approaching the complainant but said the he simply tapped her on the shoulder and asked if they did a TAFE course together. He explained it was a case of mistaken identity. The DNA profile of Newbold was found on the complainant's face mask and the police obtained good quality CCTV footage, clearly captured all of the incident.
Newbold's criminal record commences with fraud offences dealt with in the Local Court in 2006. Also in 2006 was an offence of common assault and a stealing charge dealt with by a s 9 bond. As indicated previously a conviction relating to a serious sexual assault, resulting in a lengthy term of imprisonment in 2009.
I have a victim impact statement of the complainant and I take that into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269, bearing in mind that it is not tested or adopted in evidence, but it is a reasonable and graphic description of the effects of the offence being committed against her and not surprisingly, it portrays long lasting traumatic memories of this event.
The subjective case for the offender is put through a report of Dr Richard Furst a forensic psychiatrist who sets out a lengthy history. In accordance with sentiments expressed in cases such as in Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369 the history while it is not adopted or tested in cross-examination appears, particularly in the light of the first extensive prior contact with the offender, to be a reasonable basis upon which to proceed. Indeed the Crown makes no submission to the contrary, not surprisingly, given that Dr Furst ultimately does not opine that there is any causal connection between any condition which may be suffered by the offender and the offending on this day.
Dr Furst says that he knew Newbold from previous assessments and form his treatment in custody. He provides a history that Newbold is a 34 year old male with no dependants. He has been in a relationship with a man named Graham since 2017. He has two younger half-brothers and a younger half-sister. His mother lives in Casino and his father lives in Newcastle. His foster parents raised him when he was six and again between the ages of 11 and 14; they lived near Ballina.
He is unemployed.
His mother was a heavy drinker who is mentally ill and a victim of domestic violence at the hands of several male partners which was witnessed by Newbold. He was also submitted to abuse at the hands of her partners himself and his unstable home life led to numerous notifications to DOCS, set out in his extensive child protection file.
His grandparents were also alcoholics and offered little respite for the deprivations of the family home. After being with foster parents, he became a ward of the state at age 11, and subsequently resided in various group homes and refugees where he was a victim of sexual abuse at age 14.
His father had no real input into his upbringing or parenting. He missed a lot of school as a result of his mother's lifestyle and dysfunctional violent relationships. He was picked on and teased when he did go to school. He completed Year 10 in 2004, after being placed in special classes because of difficulties with reading and writing.
He does not appear to have an intellectual disability.
He was prescribed an anti-depressant medication when he was 12 or 13 and continued that until his twenties.
He was assessed and counselled by the Parramatta Community Mental Health team in 2009, reporting distress after breaking up with his partner at the time and he was prescribed another anti-depressant for several months.
He had worked in sales, hospitality and as a labourer after leaving school but he found it difficult to maintain employment. His main addiction is illicit drug use. His drinking escalated significantly after he broke up with his previous partner in 2009 and that was a factor in his offending in 2009.
There is no history of gambling.
He worked in custody at Long Bay for about four years from 2011 and qualified as a baker in 2015.
Dr Furst says that he developed symptoms of mental illness while serving his term of imprisonment from around 2014. He was under Dr Furst's care from 2014 to 2015. His symptoms included paranoid thoughts, erratic mood, with prominent depressive symptoms and two suicide attempts. Dr Furst prescribed mood stabilising medication and anti-psychotic drugs. He was transferred to the Hunter region and was managed by another psychiatrist there in custody and again prescribed a different anti-psychotic which was taken by monthly injections.
When he was released to parole at Campbelltown in May 2017, he was referred to the Campbelltown Community Mental Health team and monthly injections of the anti-psychotic were continued. Two months following his release he resided in a boarding house. He was seeing a psychologist while on parole, presumably for CUBIT maintenance sessions. He continued to take his medication while on parole and around till the end of 2019.
His breach of parole papers showed that he was supposed to avail himself of a home visit every eight weeks. A home visit was last conducted on 22 October 2018. Since that time, he had not facilitated a home visit, despite numerous attempts. On 6 March, the Parole office was advised by a co-resident that he had been evicted from the property in November 2018 for not paying rent, although his response to supervision had been initially satisfactory it had declined in recent months before March 2019.
He, ultimately answered a call from a parole officer on 12 March and was directed to report the next day for non-reporting. He denied that he had been evicted, claiming that he left voluntarily in February 2019. He was reluctant to advise the officer of his new address, due to the fact that he sighted the victim of his offence (for the offence he was currently on parole) at a nearby train station on two separate occasions. When he was contacted again by telephone, he became verbally aggressive and said he would not provide a contact number. Community Corrections had concerns about him withholding information and it was then recommended that his parole be revoked.
When discussing the offence with Dr Furst, Mr Newbold acknowledged his guilt and took responsibility and said "I'm extremely sorry for everything. I can't imagine what the person was going through … I should've kept my hands to myself, I'm extremely sorry for the whole thing".
He has now been in custody for about a year with ongoing mental health problems. He reported feeling depressed and lacking in motivation. He reported hearing a voice saying "He should be dead". He has been under the care of Dr Jeremy O'Dea, a treating psychiatrist at Goulburn Correctional Centre and continues on anti-psychotic medication.
He plans to finish a course in commercial cookery and he is also interested in becoming a barber. He has been working at the textile section throughout 2020 and he has now works in the laundry.
Dr Furst said that he was "noticeably blunted in affect and was someone impoverished in his thinking, signs suggestive of psychotic illness" There were no signs of acute psychosis and he is not suicidal. He appeared to be of lower than average intellectual function but he did not appear to be intellectually disabled or otherwise cognitively impaired.
Dr Furst opined that it is likely that emotional dysregulation experienced by Newbold in his twenties was a response to the type of brain pathways and abnormalities caused by the effects of long term exposure to trauma, abuse and neglect in his childhood and teenage years, including sexual abuse victimisation when he was 14.
When asked about causation, Dr Furst said the motivations for his actions at the time of offending remain unclear, but his actions occurred in company and appear to have been purposeful, suggesting they were not driven by bizarre delusions or hallucinations. He said the likely causal relationship between his schizoaffective disorder and his offending is not direct, being more related to this non-specific cognitive deficits often seen in people with schizoaffective disorder and schizophrenia.
He says that his time in custody will be more onerous than upon an average inmate, due to his schizoaffective disorder and a custodial sentence will probably also exacerbate this and maintain his symptoms of paranoid thinking, hallucinations and depressed mood. He also notes a higher risk of suicide for inmates compared to age matched peers in the community. Dr Furst suggested that a custodial sentence would be more onerous for Mr Newbold, than the theoretical average inmate, in that he would also have less access to psychological services and psychiatric treatment in custody than in the community. Although as I have indicated, Dr Furst has set out in some detail his lengthy psychiatric regime of care, that he has been able to access while in custody.
He says that he has displayed some insight and remorse. The fact that he has been studying and working, suggests that he is not inherently anti-social, notwithstanding, the nature of the current offending and his previous serious offending.
He has also noted that he does not have a drug addiction and he has accepted treatment of anti-psychotic medication.
However, it appears that he is vulnerable to the influence of others. Overall, Dr Furst is of the opinion that he has reasonable prospects of being successful in rehabilitating and he is at moderate risk of reoffending, commensurate with his identified risk factors and criminogenic needs, an assessment with which I concur. He recommends continued psychiatric treatment while in custody and in the community.
There is as Mr Khan noted, there is little in issue in the helpful and comprehensive written submissions prepared by the Crown and the offender.
The Crown notes that in R v Newell [2004] NSWCCA 183 (at [32]), a number of factors were identified as relevant to the objective seriousness of a s 86 offence, including a period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention.
As the Crown submits, although the offending was over in a relatively short period of time, it would have been terrifying for the victim, as she explains in her victim impact statement. The offence was not carried through, only due to the intervention of others, as the victim screamed for help and struggled seeking the assistance of a delivery driver who happened to be passing by. The offending occurred in circumstances where she was a young female, walking home alone, in the early hours of the morning, and the seriousness of the offending is not reduced simply because it was an attempt. As the Court said in R v Speechley [2012] NSWCCA 130 at [60];
"The statutory scheme recognises that a kidnapping offence committed in company is more serious because of the force of numbers deployed against the victim …"
I accept Mr Khan's submission, that the purpose of the attempted detention as expressed in the offence to which the plea of guilty was entered was to intimidate her and that , although serious, is towards the lower end of the spectrum of serious indictable offences, contemplated by that term.
As the Hulme J said in Boney v R [2008] NSWCCA 165 at [112]
"… it is to be borne in mind that …[the] provision covers also detention for the purposes of ransom, detention that might well extend for much longer than occurred in this case and in circumstances where a victim might be blindfolded, in an unknown location and completely out of contact with anyone not an offender."
I accept Mr Khan's submission that the offending is slightly below the mid-range.
As to aggravating factors, I note a record of previous convictions which the Crown acknowledges does not put him into a Veen (No 2) (Veen v The Queen (No 2) (1988) 164 CLR 465) category but it does disentitle him to leniency. I am not satisfied beyond reasonable doubt that the victim was vulnerable in the sense used in the authorities, notwithstanding, that she was a lone female walking home, in a relatively deserted area, in the early hours of the morning.
As to s 21A mitigating factors, the plea of guilty is noted and I accept his expressions of remorse. As I have indicated his prospects of rehabilitation appear to be moderate.
The Crown concedes that in terms of a deprived upbringing, set out in Dr Furst's report, the Court could apply moderation for Bugmy (Bugmy v The Queen (2013) 249 CLR 571) reasons. The Crown also acknowledges his statements to Dr Furst as a genuine expression of remorse.
Ultimately, there is a basis for some reduction in moral culpability by reason of Bugmy matters, but general deterrence remains a significant factor, notwithstanding, his mental health issues. There is clearly basis for a finding of special circumstances, given his need for extended supervision in the community as suggested by Dr Furst and to hopefully minimise any risk of institutionalisation.
I have had regard to the statistics provided by Mr Khan and a summary of cases set out in the Public Defenders website.
The orders that I make are:
1. The offender is convicted of the offence.
2. Taking a discount of 25% for the plea of guilty, I impose a sentence of three years and nine months, commencing 27 August 2020.
3. I impose a non-parole period of 30 months, expiring 26 February 2023.
4. I find special circumstances..
5. Sequences 2 and 3 are withdrawn and dismissed.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 11 November 2021