R v Rees

Second incident

1. The second series of offences occurred after the offender was taken into custody to the police station. In his pocket was found a small quantity of cannabis; a matter on the 166 certificate.
2. While in custody he was verbally and physically aggressive to police. Again he threatened Senior Constable Price, saying "I'm going to get a rod and push it through your eye to the back of your head you cunt." That is the matter involving the intimidation charge to which he has pleaded guilty.
3. Due to his aggressive behaviour he could not and would not be interviewed. He made continued threats to police and punched and kicked the custody cell security door. At one stage he punched the cell door so hard it was feared that he had fractured his wrist. Ambulance officers attended and they made the decision that he should go to Wollongong Hospital for x-rays. He was taken to the hospital and placed in a room reserved for mental health patients. While there he continued to throw himself against the walls and the doors. He again threatened Senior Constable Price and Constable Price's family.
4. Police arrived to assist with the x-ray process. During that process he was again aggressive. He was returned to the holding room handcuffed to his front. As police were speaking to the doctors regarding a clearance letter, the offender threw himself around the room. Police heard one of the doctors yell "He's broken out." The offender had smashed through the security door. He then ran from the hospital. He was chased, but was unable to be located. He was still wearing his handcuffs. An extensive police search failed to find him: He was later charged with escape police custody.
5. Wollongong Hospital had advised the police that the cost to repair the damage to the wall of the holding room was $5,000.

Third incident

1. On 5 March 2017, with a friend Ms Kirk, the offender drove to an apartment complex in East Corrimal. The vehicle that they were driving had been stolen: a matter to be dealt with on the Form 1. Some of the material relating to this third incident was captured on CCTV images: exhibit D (sentence). It is the subject of agreed facts because Mr Rees has accepted his guilt in relation to the matter.
2. Ms Kirk went into a unit. The offender then followed her into the unit. There, he and Mr Leiter, had an argument and a physical struggle. Leiter said "Let's take this outside. We'll sort it out right now". The facts are accurately reflected in the CCTV, which I have just reviewed. The facts indicate that there were threats backwards and forwards between the two men. They were then in an open cul-de-sac near a number of unit complexes. It is clear from the recording that the offender was walking away from Mr Leiter but both are shouting abuse one to the other.
3. When the offender was about 10 metres from Mr Leiter, he pulled a tomahawk from the back of his pants. The facts say he "gesticulated with it." At some stage it appears from the recording, although it is not in the facts statement, that he appears to hide that tomahawk behind his back. He then moved towards Mr Leiter holding the tomahawk above his head. He used it to strike, in a forceful motion, towards Leiter.
4. In an attempt to avoid what could have been a blow to his head, Mr Leiter raised his hand. His hand was struck, causing wounds to three of his fingers. Leiter then ran. The offender chased him and hit him twice in the back with the tomahawk. Leiter ran. The offender chased him before stopping. Leiter continued to run to nearby Smith Street, where he collapsed. Police and ambulance were called.
5. Leiter had two large wounds to his back and shoulder approximately 10 centimetres in length. He was treated at Wollongong Hospital for multiple back lacerations, involving skin, fat and muscle. He also received treatment for the wounds on his hand, in particular to the tendons in his fingers.
6. Not long after the offender was arrested. He has been in custody since 5 March 2017, awaiting resolution of all these matters.
7. When I deal with the wound with intent I will take it into account on the Form 1 the stolen motor vehicle matter. It does operate to increase the sentence. The increase recognises the need for personal deterrence and retribution for the crime for sentence. I take it into account as part of my synthesis of all relevant matters, but I do not sentence for that matter.

First incident

1. People in our community do not go about armed. It does not matter whether the weapon is real or a replica. Possession and ownership of a firearm is a privilege. The privilege is closely regulated. The weapon in question which was exhibit D at the trial, was clearly designed to look like a real weapon. Rees was carrying it for no other purpose than to create the impression he was armed with a real firearm. Such weapons if carried, could only be used to intimidate others. That is one reason for heavy penalties fixed by Parliament for matters such as this.
2. The damage to the fence was gratuitous. It would have required money be spent to replace it. The photographs indicate the damage was extensive. The photographs were exhibits in the trial: exhibit B (trial)
3. Police have a hard enough job as it is maintaining law and order without having to deal with abuse and assaults by those whose behaviour requires their arrest. The community depend on the hard work and at times courage of police officers for protection of life, personal security and property. Officers take substantial risks in the execution of their duties. Courts treat any attack on a police officer with seriousness and courts must by the imposition of penalties, which while remaining proportionate to the crime, must attempt to deter others from similarly offending. The Courts indicate by the penalties imposed their support for police in their job maintaining law and order: see Attorney General's Application No 2 of 2002 [2002] 137 A Crim R 196. While there is no report of significant or serious injury to Constable Price, his physical integrity must be respected by the Court.

Second incident

1. It appears from all the material before me that Rees was at the time affected by some substance, probably methylamphetamine. His drug use helps explain his behaviour, but it does not and cannot mitigate it. Again, back at the police station the police and Constable Price were deserving of respect not abuse or threats. While it is unlikely the Constable would have taken the threats to him too seriously, Mr Rees was intending to intimidate him and made personal and derogatory remarks. It is not beyond the bounds of possibility that he could have been in a position to carry some threat towards the Constable, given that he was enraged enough to burst out of a room.
2. So far as the hospital is concerned, to damage property at the hospital has an impact on us all. The room at the hospital was there for patients in need of it. I am sure the hospital neither welcomed nor wanted to put up with having their services to the community disrupted or the disruption that would have followed from the damage done.
3. So far as the escape is concerned, the Courts must recognise by the imposition of appropriate penalties that the power of arrest is one that requires respect. Here in particular, while I am sure the decision was spontaneous and as a result of the impact on him of some form of illicit drug, he had been taken for his own benefit to the hospital and he exploited the obvious lack of security inherent in the hospital environment. As a community we cannot secure our hospitals as such against the very rare case such as this: where that hospital environment is exploited by an offender, the Courts will both for reasons of genuine and specific deterrence treat the matter particularly seriously.

Third incident

1. So far as the third incident is concerned, there is a conflict between both parties as to how a judge should assess the objective seriousness of the offence. I am indebted to both counsel for their written and oral submissions. I have reviewed the CCTV and the agreed facts. Here two men breached the public peace by agreeing to a fight in a public place. It is clear, at least initially, that Rees was moving away from Mr Leiter and that both were exchanging verbal insults. It is also clear that Rees had the tomahawk with him. He did not produce it immediately and it may be that some words from Mr Leiter caused him to pull the weapon from his back pocket.
2. While mitigation of sentence because of provocation is allowed, nothing said by Mr Leiter could to any extent mitigate what then occurred. Rees moved towards Leiter with the weapon and as Leiter backed away brought it down towards his head, causing the defensive wounds to the hand, which involved injury to the tendons.
3. The use of a weapon is common in matters such as this and generally does not aggravate them significantly as generally some weapon must be used before a wounding offence occurs. Here however, the nature of the tomahawk is an aggravating feature: R v Zhang [2004] NSWCCA 358. There was no hint of self-defence. The mutual decision to fight does not create any form of self-defence. It is clear that Rees went on with the argument and then hit the victim the first time and then continued; hitting him in the back while he ran away. There was no threat when the weapon was first produced and used. There was certainly no threat when it was used the second time.
4. Here, the injuries were serious. There would have been scarring and ongoing problems, perhaps disability, as generally occurs with tendon injuries. The agreed facts do not allow me to put the injuries; one important measure of the seriousness of offences such as this, any higher than that. But it is important to note there were two acts of violence, both of which resulted in or are linked within the offence charged.
5. The absence of a Victim Impact Statement does not mitigate.
6. One aggravating feature here is the commission of an offence while an escapee. I have to be careful. This fact would not generally not go to the assessment of objective seriousness of the actual offence or be used when giving weight to the standard non‑parole period that applies and the provisions of s 54B Crimes (Sentencing Procedure) Act 1999, however there is authority that indicates that where an offender has used the opportunity of being at large to commit further offences, then the overall objective seriousness of his criminality is potentially increased: R v Plummer [2000] NSWCCA 363; Jinnette v R [2012] NSWCCA 217: R v Pham [2005] NSWCCA 94. I will take the commission of an offence while an escapee into account as an aggravating feature when I synthesise all relevant matters and assess and indicate as appropriate sentence for this matter. I cannot regard it as a matter that falls within the s 21A "conditional liberty" category: Turnbull v R [2019] NSWCCA 97.

Maximum penalties

1. Enter with a firearm, s 93H(1) Crimes Act 1900, carries a maximum penalty of five years. Damage property, s 195(1) Crimes Act, carries a maximum penalty of five years. Assault police in the execution of their duty, s 58 Crimes Act, carries a maximum penalty of five years. Escape in these circumstances is a common law offence and the maximum penalty is at large. An offence of escaping from a custodial environment, s 310 Crimes Act, carries a maximum penalty of ten years. That penalty a guide, but certainly at common law it would be inappropriate to impose more than that penalty. I accept Mr Fraser's submissions, who appears for the offender, that escapes of this nature would not be generally regarded as more serious than those from a prison environment.
2. Intimidate police s 61 Crimes Act, carries a maximum penalty of five years. Wound with intent to cause grievous bodily harm, s 33(1)(a) Crimes Act, carries a maximum penalty of 25 years imprisonment has a standard non‑parole period for an offence which falls, taking into account only objective factors, in the middle of the range, of seven years.
3. Careful attention to the maximum penalty and, where it applies, the standard non‑parole period is required. They provide guides and measures to be balanced with all other relevant factors. The process of comparing and contrasting an offence with an abstract one is not one that generally follow: see Tepania v R [20018] NSWCCA 247. I am required however to give content to that standard non‑parole period for the s 33(1)(a) offence. I do not engage in a staged approach to sentencing, nor do I have to fit every matter into specific categories.
4. My findings as to the objective factors mean that a significant custodial penalty is the only just punishment for these matters. I hope that I have identified all the relevant matters and discussed their significance, because what I have to do is make a value judgment. There are reasons here in the plea and the subjective case and need to take into account the principles of totality for variation from the standard non parole period.
5. After discussion with counsel, I formed the opinion that the wounding offence does not fall in the middle, but falls below the middle, of the range because of the nature of the injury despite nature of the weapon, which is a matter I have taken into account.

Subjective case

1. Mr Rees was born in 1974. He has been in custody for most of his life. He spent time in juvenile institutions and decades of his life in adult gaols. His criminal history is relevant to determining the proper sentence. It indicates that this series of offending is not uncharacteristic. He has demonstrated continuing disobedience to the law. His criminal history cannot result in a sentence which is disproportionate to the gravity of the offences for sentence, but a more severe penalty is warranted and additional focus needs to be put on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465.
2. By Rees own admission his custodial history is "not good." He is presently an E classification. I note from the Corrective Services documents that this classification can be reviewed. I would urge it be reviewed. It would appear that the escape in this case, whilst serious, was spontaneous. For what it is worth, my opinion is that the community and Mr Rees would benefit if he has that E classification removed, so that he can engage in programs which will be essential to ensuring he has some hope on release of adapting to a law abiding existence in the community.
3. I have to sentence for a number of offences, in three groups, with distinct and different consequences. I am required to impose a sentence for each offence and to structure the sentences so that the overall sentence is just and appropriate to the totality of the offender's criminal behaviour: Mill v The Queen (1988) 166 CLR 59. No one offence can comprehend and reflect the criminality of the others. The distinct episodes of criminality, have some common factors, but there must be some accumulation of penalty as between the matters in each incident and as between the incidents.
4. There is no discount for multiple offending. However, as the severity of any sentence increases the longer one has to spend in custody, if I were to simply add each sentence one upon the other, it would produce an unjust and crushing sentence.
5. I have a received report from Dr Adams, a respected forensic psychiatrist: exhibit 1 (sentence). What was said to Dr Adams by the offender was not supported by evidence on oath, but it does not address in any significant way the objective matters relating to the offences before me. The report is a comprehensive document. It is in accord with most of the material that is before me. It is not controversial and it contains matters which appear to be an accurate assessment of Rees, based on his own frank admissions.
6. As a child he regularly suffered physical abuse from his father. He witnessed domestic violence by his father on his mother. He was abused while in a juvenile detention centre when he was a young teenager. He has, it is accepted, a history of low self-esteem and low self-confidence. He grew up learning to distrust others and he continues to have trouble trusting others. He is subject to intrusive and distressing memories going back to when he was very young.
7. There is no indication that Rees has any psychotic symptoms, but his background readily explains why he, at times, feels extremely paranoid. From before he can remember he has been using and abusing alcohol and illicit substances. He has continued to use illicit substances while in custody; this is reflected in his custodial discipline record. He has never had any benefits from schooling. He has spent most of his life in adult and juvenile institutions; having first gone to gaol when he was 18. More than three decades of his life appear to have been spent in custody. He told Dr Adams; "That's why something must be wrong with me, because who in their right mind would do this shit". He has, as I have already indicated, a record of violent offending against the community, going back decades.
8. He has been able to form relationships when released into the community. He has children but he has no real family support. He was released in December 2016 at the end of a sentence. He had been given parole, but twice breached it. Where a prisoner is released without any support this means that they cannot go and seek assistance from Community Corrections. The door of the gaol opens and they are on their own.
9. Rees told Dr Adams he tried for the first few weeks. He found a job. He found somewhere to live. He did not engage with a psychiatrist or a GP. He was not seeing a mental health clinician. No such arrangements had been made before release. He was then laid off from work. From there a predictable downward spiral continued until only months later he committed the first offence for sentence today.
10. From his release date, on 1 December 2016, he was in the community for a bit over 3 months. In the last days of that time in the community, Rees committed the offences which will return him to gaol for a significant period. While he professes a desire to "just be normal… go somewhere fresh", he will need considerable assistance in adjusting to normal community life if he earns release to parole.
11. Dr Adams has formed the opinion that Rees' whole life has been blighted by a traumatic and disrupted childhood, including repeated physical abuse and witnessing the severe physical abuse of his mother. He has, as a consequence, endured emotional instability and has adopted no adaptive coping strategies. Anti‑social behaviour has become normal for him, as has serious crime. He has a long standing history of illicit substance abuse.
12. It has been hard for Dr Adams to formulate a specific diagnosis, but he indicates the possibly of an underlying post-traumatic stress disorder and notes the impact of long term drug use. He concludes that emotional instability, emotional dysregulation and a propensity for impulsive behaviour are all relevant. They are persisting problems, which will need to be addressed while in custody and on release.
13. In Dr Adams opinion it is paramount that Mr Rees aims for abstinence from illicit substances and that he engage positively with drug rehabilitation programs and those that an help him form strategies for coping with life in the community in the future. He will need to engage in such programmes for the rest of his life, both in custody and when released. He should engage in psychological therapy as he needs to address his emotional difficulties and trauma history.
14. Dr Adams doubts whether Rees can get such treatment in custody. He says if Rees' mental health does not gradually improve in the context of stable abstinence he may need to have his medication regime reviewed. In order to maintain stability on release, Rees needs to engage positively with mental health services, social services and drug and alcohol services. He will need employment and stable accommodation. He will need a lot of support. If he does not have it he will be returned to custody. If he returns to custody it will be as a consequence of having committed offences against the community. something courts must attempt to avoid.
15. The background that I have summarised is one of deprivation and one children in our community should never have to suffer. It is unfortunately a history that commonly leads to people coming before the Court. Those circumstances, as established here, can mitigate the sentence, because of offender's moral culpability is less than the culpability of someone who's formative years have not been marred in this way: Bugmy v The Queen (2013) 249 CLR 571. The effects of such profound deprivation do not diminish over time and must be given the full weight in determining the sentence in every case. The background of the kind experienced by Rees leaves a mark and that mark lasts throughout life and compromises their capacity to mature and learn from experience. Those wise words from the High Court are tragically reflected in all the material before me.
16. An offender's exposure to violence and illicit drug abuse when young, can explain their recourse for violence. It also explains their inability to control their impulses. However, and it is an important however, the evidence here of inability to control violent responses may increase the importance of protecting the community from the offender. The impact of the psychological condition, if I can put it that way, is referred to by both counsel in their submissions, oral and written. The Crown referred me to Elturk v R [2014] NSWCCA 61, a case where limited insight was shown. As Gleeson CJ noted in R v Engert (1995) 84 A Crim R 67, it may be that because of a person's psychological problems they present more of a danger to the community. Considerations of specific deterrence and community protection can lead to an increased sentence.
17. Mr Fraser, Public Defender, counsel for the offender, on the other hand points to the combined, whatever the cause, evidence that the offender really does not have the tools to evaluate his own behaviour in a rational way because of the impact of his background on him.
18. Putting a cause label on an offender is not necessary. What a judge has to do, and as I hope I have done, is indicate to the community and the offender that because he does not have the moral resources and the resources which we would expect a person without his background to have, the sentence has been mitigated.
19. It is clear that Rees has been institutionalised. Institutionalisation, even the face of entrenched and serious recidivisms can justify some change to the structure of the sentence. It is obvious that he needs to be supervised and assisted when he is released into the community, but I have to be guarded in that regard. His prospects are at the moment grim.

Pleas

1. There are various pleas before me. Mr Fraser has prepared a table suggestion discounts for the utilitarian value of guilty pleas when entered, which I have adopted.
2. So far as the enter land with a firearm and intentionally damage property offence there is no discount because it went to trial and he was found guilty. In so far as the assault of the police officer matter is concerned, a plea was entered on arraignment. In the circumstances here, given that went along with matters which were defended and which resulted in not guilty verdicts, his plea had the utilitarian value and I would reduce the otherwise appropriate sentence by 20%.
3. So far as the others matter before the Court: in the wound with intent matter, a plea was entered on the morning of the day of the trial. A reduction of the otherwise appropriate sentence of 10% is the best that could be expected. The remaining matters, were all pleas in the Local Court and the otherwise appropriate sentence will be reduced by 25% to reflect the utilitarian value of those guilty pleas. When I come to accumulate I will try as best as possible not to compromise the benefits of those pleas by the process of accumulation.
4. There is no evidence here of remorse, given Rees' psychological background it is not expected.
5. Rees was arrested on 5 March 2017. A few days before he had been served with what I presume is a Court Attendance Notice for a drive while disqualified offence. He was sentenced in the Local Court to 8 months imprisonment. Given that he was bail refused on serious matters explains why no parole period was fixed. There is a need for some independent punishment for that driving offence. I propose to start this sentence from 5 June 2017.
6. A submission was made that a finding of special circumstances should be made. Each sentence indicated must be proportionate to the gravity of the offending. The ultimate non-parole period that I do impose, has to take into account all of the purposes of sentencing. The non‑parole period must reflect the minimum period the offender must spend in custody. Generally speaking, prospects of rehabilitation can make a significant difference when the non-parole period is fixed, as the community benefits from the reformation of one of its members. Release on parole is a concession, that when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community, the requirements of full-time imprisonment should be relaxed.
7. A BOCSAR study from 2011 revealed that offenders who are supervised on release from custody take longer to commit new offences. There are obvious benefits from supervision in the community and assistance while in the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4.
8. Here I can have no real confidence that Rees will respond well to supervision however the more assistance he gets, the more likelihood he has of responding positively. He would first have to earn release.
9. A period of two years on parole would be required on the material presently before me. That conclusion and the accumulation on the Local Court matter require a modest, but only a modest, finding of special circumstances.
10. While he is in custody he will need to have his E1 classification reviewed so that he can engage in necessary programs and prove his capacity to abide by parole conditions by moving through staged pre-release classifications. He has to learn to think for himself: Is he prepared to earn his release to parole or will he spend the rest of his life in custody? It is a matter for him. I will give him that opportunity. While serious as these matters are, they are not crimes that require him to be held any longer than the objective gravity of his offences demand.

Submissions

1. I am indebted to Mr Fox, Crown Prosecutor and Mr Fraser, Public Defender for their comprehensive written and oral submissions. I hope this judgment does justice to them. I trust that I have in these remarks referred to all the relevant matters raised by them. I have endeavoured to consider and address those matters in coming to my determinations.
2. Mr Fox asked me to first focus on the most serious offence, the s 33(1) Crimes Act offence. He said that while it was the most serious offence, so too were the others. He said I should be concerned for the community as the offender has shown little insight into his offending behaviour. Rees, he said, has not used his time in custody to advantage. Risk of reoffending on release requires considerable emphasis be given to community protection, which here involves both specific deterrence and removal from the community.
3. Mr Fraser highlighted the material in Dr Adams report that shows that some insight is now shown by Rees. He noted that when Rees was given work and accommodation and had stability in the community, he could be offence free. Mr Fraser submitted that Rees has reached an age where he can make a choice to change. I am sceptical of that conclusion but I will give him that opportunity. It is in his interest, but more importantly the community interest, that he not be returned to gaol after he is next released.

Synthesis

1. A sentencing judge has to assess and evaluate all of the various matters so far as each individual offence is concerned and consider the total sentences that must be imposed. I have to consider the various purposes of sentencing. I have to consider, so far as they are relevant, the matters set out in s 21A of the Crimes (Sentencing Procedure) Act.
2. There is a generally accepted proposition that imprisonment operates to deter offenders but the efficacy of that proposition is perhaps illustrated by this case. Here, removal of the offender from the community will have a protective function. Others who might be tempted to offend as Rees has offended, must understand that they will be significantly punished if they do what he did, but the penalty must be proportionate to each offence. The first two incidents involve a course of conduct, but each offence was discreet. The elements though overlap, as do the sentencing principles that apply. The third incident was quite separate and discreet, but the principle of totality means I simply do not and should not add one sentence for one group of offences to the sentence of the other.
3. I have taken into account as best I can all mitigating factors, but ultimately the Courts have an obligation to vindicate the dignity of each victim, particularly victims of violence and that includes community victims, such as the hospital and New South Wales police. The Court has to express the community's disapproval of the offending and attempt to prevent their repetition.
4. Two of the offences involved disputes between community members. One of the historical functions of the criminal law has been to discourage victims and friends and family to resorting to self‑help. Where people engage in behaviour such as Rees or in fights in public areas there is always a risk of escalation of violence between members of the community; matters which must be deplored.

ORDERS

1. Mr Rees in respect of each of the counts and in accordance with your pleas and the findings of the jury you are convicted.
2. I impose the following indicative sentences: 1. enter with firearm s93H(1), I indicate a sentence of one year, nine months; 2. damage property, I indicate a sentence of six months; 3. assault police, I indicate a sentence of nine months; 4. common law escape, I indicate a sentence of one year and six months; 5. intimidate police, I indicate a sentence of nine months; 6. damage property, I indicate a sentence of one year, one month; 7. wound with intent to cause grievous bodily harm, taking into account the matter on the Form, I indicate a sentence of, four years six months. Non-parole period three years four months.
3. I have a modest finding of special circumstances to accommodate the accumulation and to allow for a two year period on parole so that you can be supervised and helped in adjusting to normal community life.
4. Having considered accumulation, concurrency and totality an aggregate sentence of six years and four months will be imposed. There will be a non-parole period of four years and four months. The sentence will commence on 5 June 2017. You will be eligible for consideration for release to parole on 4 October 2021. The total sentence will expire on 4 October 2023.
5. In relation to the possess cannabis matter, I deal with the matter pursuant to s 10A. It would be inexpedient to impose any other penalty.
6. As he is a under the age of 18, there is to be no publication of the name of the tenant's son. I mean no disrespect by referring to his mother by the term the tenant in the published version of this judgment. I have done so in order that he not be identified.

Amendments 21 November 2019 - Typographical error in [1] 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: 21 November 2019