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[2025] NSWDC 312
General information, not legal advice.
District Court of NSW
2025-05-23
Haesler SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Rees [2025] NSWDC 312
Hearing dates: 17 December 2024 and 23 May 2025
Date of orders: 23 May 2025
Decision date: 23 May 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision: Aggregate imprisonment sentence of 6 years 2 months with a non-parole period is 4 years
Catchwords: CRIME — Violent offences — Robbery with wounding — Common assault
CRIME — Property offences — Steal from the person
CRIME — Fraud — Dishonestly obtain property by deception — Attempt to dishonestly obtain property by deception
SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim or any other person — In company — Record of previous convictions
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness — Proportionality
SENTENCING — Sentencing procedure — Disputed facts — Findings of fact — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness and disorders — Childhood trauma, abuse, neglect and sexual abuse — Institutionalisation — Limited remorse
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Jackson v R [2010] NSWCCA 162
Jinnette v R [2012] NSWCCA 217
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Olbrich v The Queen [1999] HCA 5; (1999) 199 CLR 270
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Herring (1956) 73 WN (NSW) 203
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v Legge [2007] NSWCCA 244
R v Rees [2019] NSWDC 681
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Jason Lee Rees (the offender)
Director of Public Prosecutions (NSW) (Crown)
Representation: Counsel:
A Wong (for the accused)
D Coulton and G Porter (for the Crown)
Solicitors:
Just Defence Lawyers (for the offender)
Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2023/29083; 2023/48953
When he was before the Local Court, Jason Rees indicated he would plead guilty to two serious offences; a robbery with wounding which occurred on 9 February 2023, pursuant to s 98 Crimes Act 1900 (NSW); and a steal from person, that occurred on 22 December 2022, pursuant to s 94(b) Crimes Act.
Three related offences are before the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate. One, an assault, relates to the s 98 incident, the others to the s 94(b) matter. There is also a matter on a Form 1 in relation to the s 98 matter.
The sentence first came before this Court for sentence on 17 December 2024. The defence indicated that important factual matters needed to be resolved in relation to the 9 February offence. There were no factual disputes in relation to the other matter. The matter could not be finalised on that day because of listing and counsel’s availability. The matter had to be listed today, 23 May 2025, for resolution.
It is not in dispute that on 9 February 2023 Rees committed the s 98 offence at the complainant’s premises. It is not in dispute that while there he robbed and wounded the female complainant and took some watches belonging to the male complainant. Other aspects of what occurred were however in contest.
On 17 December 2024 I received:
A Crown sentence summary, Exhibit A;
Disputed facts document, Exhibit B, with disputed portions highlighted;
Exhibits including; CCTV or stills from CCTV, photographs of a broken golf club, photographs of the female complainant’s injuries, documents relating to the female complainant’s injuries or other related complaints, and from the defence, some crime scene photographs.
On 17 December 2024, I heard evidence from the female and male complainants. Today, I heard evidence from Mr Rees and submissions.
With the agreement of the parties, I directed that the Evidence Act 1995 (NSW) applies to the specific part of the proceedings relating to disputed facts: Evidence Act, s 4(2)(b).
Where a matter put forward in sentencing proceedings is contested it may not be acted upon unless established. I am obliged to assess the evidence as part of my overall synthesis of relevant factors. As the High Court has made clear, matters in mitigation must be established on balance of probabilities, matters in aggravation, a penalty must be established beyond reasonable doubt: Olbrich v The Queen [1999] HCA 5; (1999) 199 CLR 270.
The High Court also recognised that sometimes a sentencing court must sentence according to what is known, agreed or found: Olbrich at [24]. The Court noted a judge who is not satisfied of some matter urged in plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt.
Critical issues put in dispute were whether Rees had been let into the premises and, secondly, how the injuries were inflicted.
Rees’ case is that he was familiar with the house because he had been there before to smoke ‘ice’. And that he attended the premises that morning with another male. He said he was let into the premises by the male complainant. He argued with the male complainant. A fight developed. He said that he was jumped on by the female, who also threw a drawer from a chest of drawers at him. He said, he then headbutted her twice before demanding and taking her rings and then taking, opportunistically, the watches. He also says that he was given $500 by the male.
In evidence and in a statement to his psychologist, whose report is now before me, Rees put his case this way, “I just wanted my money back, and things got ugly”. He said he knew the male complainant as his drug dealer for about seven months, that he had “bought two 8 balls and I went home, and it was no good. I was robbed. It was all the money I had, and he robbed me of $1000”.
He also told his psychologist that his mental state at the time was not good, “I was pretty out of it, I hadn’t taken any ‘ice’ for two days”. In evidence today he said, “I didn’t think things through too well”.
The complainants gave a different version of evidence. They say they woke in their beds to find Rees standing on top of them and that he threatened and hit the female complainant with a golf club, made demands of her, including threats of a particularly nasty nature.
I accept that the objective seriousness of a robbery that takes advantage of an accidentally open door at premises might be greater than a vigilante style action to recover a drug debt where the violence was reactive rather than proactively aggressive. But Rees’ version still paints him as a violent, desperate, drug deprived man who did what was necessary to assault and intimidate his victims.
The second matter for sentence was not put in dispute factually. The victim was at a Woolworths store in the Wollongong area. She put her handbag with her iPhone on the shopping trolley. Her cards were in the iPhone. She stopped at the delicatessen with one hand on her cart. As she was making her selection, a man approached her and told her he saw another man steal a wallet from her handbag. She then saw a male running out of Woolworths and get into the passenger seat of a motor vehicle. Another witness, an elderly lady, yelled that she had seen him running out with the wallet. The victim approached the car and demanded her wallet back. The car drove off. That is the offence for sentence, the steal from person.
The surrounding circumstances lend some colour to what occurred. And while I do not sentence him for his behaviour, it certainly does him no credit that as his victim approached the car, she saw a female driver drive off. He knew what he had done, and he made his escape with the help of an accomplice.
The cards were used for some fraudulent transactions; others were declined. They were not for large amounts. Those matters are put before the Court on the s 166 Criminal Procedure Act certificate for sentence. The review of CCTV from the fraudulent transactions allowed Rees to be identified.
Robbery with wounding offence has a maximum penalty of 25 years and a standard non-parole period of 7 years. The steal from person carries a maximum penalty of 14 years. Common assault, dishonestly obtain property by deception or attempt, if dealt with in the Local Court, carry 2 year penalty limits. Those maximums, and where applicable, the standard non-parole period, are guides to the exercise of my discretion. They convey Parliament’s view of the relative seriousness of the offences.
There is a guideline judgment, R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149, that is relevant to these proceedings. Care needs to be taken; it is a guideline not a tramline: R v Legge [2007] NSWCCA 244. Although this guideline must be taken into account, care needs to be taken because some of the Henry factors do not go solely to objective seriousness: Crimes *(*Sentencing Procedure) Act 1999 (NSW), s 42A.
It is important to note the critical facts that demonstrate the seriousness of what occurred. For whatever reason, Rees entered those premises armed, supported by another man. He was angry. He was impacted on by either drugs or his abstinence from drugs. He was not welcomed into the home. He engaged in a violent altercation with the male resident, not a matter for sentence but relevant to what then occurred. There was then an interaction with the female victim during which she was injured. He had a weapon with him. I cannot find beyond reasonable doubt he used that weapon. Accordingly, given the medical evidence, I find he headbutted her twice. He was not acting in self-defence. He was in her home, fighting with her partner.
He was, although much larger now, a big man. I have his gaol photo from back then before me attached to his criminal record document. And two headbutts could easily account for the injuries which are shown, including the wounding. The wounds required stitching. There were related injuries which would fall into the category of actual bodily harm. The elements of the offence, however, are robbery and wounding and I do not double count. But the fact there are other aggravating circumstances can be taken into account. They had an impact to which I will refer later.
So far as the female victim was concerned, he demanded with a threat of violence, that she remove her rings. Those rings were not recovered. One of them had considerable psychological value.
Where a non-parole period is fixed by Parliament many judges find it helpful to fix a matter in some notional range, I prefer not to. But clearly there are, as Mr Wong points out, significantly more serious matters dealt with by this Court, and when it comes to the wounding element of the offence, it is relatively low in the scale of what can be often very, very extreme woundings.
It is still a serious offence, one that requires a significant penalty. The Court has to have proper regard to the standard non-parole period.
The steal from person was opportunistic, but it was to a degree calculated. Obviously, because it is an element of the offence, the victim was directly targeted. She was soon aware of what happened because other good citizens noticed what occurred. He ran off and defied her when he drove off. He also disturbed other shoppers going about what we all must do. He committed this offence, and the subsequent matters on the 166 certificate, in blatant defiance of CCTV that was available. His arrest was inevitable.
Not a large amount was taken. The offender, sadly, has not lived much of a life in our community. But when he eventually gets the chance to do so, he will realise that the loss of a phone and cards goes beyond their mere monetary value; the level of inconvenience and loss associated with their replacement is considerable. It is a serious offence and one that would ordinarily, and here does, require a custodial sentence.
There are no formal Victim Impact Statements before the Court, but the two complainants from 9 February gave evidence about the impact of the offending on them and, in that regard, I have to have proper regard to it. The female victim of the home robbery noted a particularly severe impact, but I have to take into account that she was particularly vulnerable, this was not the first time she had been the victim of serious crime. There is no evidence before me about what she described as post-concussion syndrome, nor was any noted in the portion of the facts that was agreed, nor is there a medical report. Rather, there are reports for compensation or support before the Court, and they fall into a different category than an expert report.
Nevertheless, what was said by the female in particular, had the practical purpose of drawing to the offender’s and the Court’s and the community’s attention the personal harm that such events cause. I do not find that she was a drug dealer, there is no evidence that I can accept that she was. But even so, there is no justification for going into someone’s home and inflicting violence there.
I did not hear from the victim of the stealing offence, but the absence of a Victim Impact Statement does not give rise to an inference the offence had little or no impact on her: Crimes (Sentencing Procedure) Act, s 30E(5). Such offences do have an impact, and they have an impact on the community as well.
Rees has spent most of his life in gaol or juvenile detention. I sentenced him to a lengthy term of imprisonment in August 2019: R v Rees [2019] NSWDC 681. He served the non-parole period of that sentence. It cannot escape my attention that it was also for entering a person’s home and committing acts of violence. He was released to parole in October 2021. He was back in custody in February 2022. He was again released to parole in June 2022.
It appears from all the material before me that he was getting some support from his family and Probation and Parole and responding well to it. But this offending started in December 2022, a little over six months later. And then there was the robbery on 9 February 2023. He was arrested and returned to custody, bail refused, on 13 February 2023. His parole was revoked and his balance of parole expired on 16 October 2023. It also appears that he served four months for a Local Court matter, subsumed during that period.
There must be some independent punishment for that offence which is totally unrelated to this matter. It was committed during the same period.
The fact that he committed offences on parole is a fact that aggravates the sentence I must impose. But because I have already taken that matter into account, it has to, because of the institutionalisation issues to which I will soon refer, be treated with some care. While I can, and could, in many cases date this sentence from the date his parole expired, to avoid any suggestion of double counting, I will give him a considerable benefit when setting this sentence’s the commencement date.
Although I will briefly refer soon to his history of institutionalisation and history in gaol, I cannot ignore his criminal record. It is relevant to determining a proper sentence. It shows that these offences were not uncharacteristic aberrations. Rees has, throughout his life, demonstrated a continuing disobedience to the law. His prior criminal history cannot result in a sentence which is disproportionate to what he did, but it requires the Court to give very careful consideration as to whether additional focus is required on retribution, deterrence and the protection of society: Veen v The Queen *(*No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477].
Here, however, gaol has not been a deterrent in the past and is unlikely to be so in the future.
I have the benefit of my earlier sentencing judgment and a review of the evidence that was put before me in 2019.
His sister, who has been there for most of his life, gave evidence. She reiterated some aspects of the family history and noted that when he was given intense support in the community he seemed to respond well. She noted that she is doing her best to collate material so that when he is released, he can get that support and possibly help from the NDIS. She has her own health problems, but she will do what she can as an older sister for her little brother to support him in gaol and on release.
A former partner was here to give support as well. So, there are members of the community who will provide support for him.
In his evidence today, and in his comments to his psychologist, he said he was sorry for what he has done. He also qualified that by saying he cannot accept he did it all.
I am not sure he is really capable of feeling sorry for what he did to either victim of the robbery, in the home where the robbery occurred or the lady whose purse he stole. He has trouble caring for himself let alone others. But to a limited extent, it shows he wants to change. I am prepared to accept that he is to a degree remorseful. He told me he is on Buvidal, a drug replacement program, which has enabled him, together with his self-determination, to remain drug free while he is in custody. That evidence is supported by comparison between a non-existent gaol discipline record during this time in custody and his previous gaol discipline history.
Rees’ family history is uncontroversial and sad. It is set out in my earlier judgment, his sister’s evidence, his evidence today, and the report I have from Mr Borenstein.
The family was dominated by a violent, drunken father. They had to move house often. Sometimes he and his family had to flee the father’s alcoholic fuelled violence; and there was a lot of it. His schooling was disrupted. His friendships were disrupted. From about the age of 14 he was living on the streets. At about that time he started using heroin intravenously. Throughout his life he has used a multitude of illicit drugs, most recently methylamphetamine. Drug use has become a part of his life.
He has however, it appears, been “clean” and on his best behaviour recently. He had some employment in the community and is proud of the fact that he is gaining some occupational experience from his present work in the gaol. He told Mr Borenstein that many of the things he did he did because it is what he learnt when he was trying to survive in juvenile detention and in prison. He knows what he has learnt is wrong and he knows he has to learn a better way of living his life. He says he tried last time and got some support but there were a number of stresses in his life that led to the resumption of drug use and then things appeared to have, as is obvious from the matters before the Court, fell apart.
I have to indicate an appropriate sentence for each offence. I have to structure the sentence such that the overall sentence is just and appropriate to his crimes: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at [62]-[63]. I have to evaluate that overall criminality and, if necessary, adjust generally, and here downwards, to achieve appropriate relativity: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).
I cannot be confident Rees will not reoffend, no-one could, given his history. I am buoyed by his working in custody and his efforts to avoid using drugs and his attempts to knuckle down and accept the discipline of the gaol. I am glad he still has family to support him because family support is an important factor in anyone’s rehabilitative process.
I will make a finding of special circumstances, but it cannot be a significant one because the length of the sentence will allow for a period of parole in the ordinary course, and the minimum time he has to serve in custody must reflect the gravity of his offences and the other purposes of sentencing.
There are matters that require some mitigation of the harshness of the law in this case, but there are also matters that require significant penalties to be imposed. The sentence must reflect the Court’s view of the seriousness of the crime, it should let this offender know what will happen if he commits offences in the future, although I note my earlier comments, this warning had little impact given his history: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
I also have to let others know that they cannot do as he did; attend other people’s premises, threaten them, rob them, wound them. They cannot take advantage of a person who is going about their ordinary business buying the family groceries.
We all want to live in a safe society. If we live in a society where you are looking over your shoulder every time you go to the supermarket, where as a matter of necessity you have to lock and bar your doors against others, where CCTV becomes the norm rather than something that is unusual, it is not much of a society to live in.
The offender’s prognosis is not good. Transitional programs should be put in place. He is presently well motivated, and I am conscious that too long a period in custody might reduce that motivation and cause him to say, “well, it is just not worth it” and give up. But I cannot reduce the sentence on the chance that programs will be put in place and he will respond to them. Past failures, even though they can be understood, have to be taken into account. Community protection is one of the principal reasons why sentences are imposed.
Community protection can be achieved if a person is removed from the community, but that is a temporary expedient. Community protection can be enhanced if a person learns from experience not to reoffend. But here, sadly, that object of sentencing has failed repeatedly. Community protection can also be achieved if a person finally, takes the help that is offered to him and is proactive in seeking that help. The offender is now in his 50s, he cannot just sit around and wait for people to give him help, he has to be proactive in doing so.
Rees said in evidence that he will need to learn. He has never really had much opportunity to experience and learn how to live a normal life in the community. He has little idea of how the modern world works or the technological changes that now govern our ordinary lives. He will need help living in the 2000s.
But I have to return particularly to the s 98 matter. One important reason for our criminal laws is to stop people taking the law into their own hands, all that does is escalate disputes. And that appears to be his motivation, at least in his own version of events, drug-addled though it may have been. While I have not made a positive finding in that regard, it would not in any event mitigate. One important reason for the criminal law is to discourage others from acting as he did on multiple occasions.
I indicate the following sentences:
In relation to the s 98 matter, a sentence of 5 years and 3 months and a non-parole period of 3 years and 4 months;
In relation to the s 94 steal from person, a sentence of 1 year and 6 months.
In relation to the 166 common assault, a sentence of 4 months;
In relation to the 166 frauds which were successful, a sentence of 3 months; and
In relation to the 166 attempt fraud, a sentence of 1 month.
The term of the aggregate sentence is 6 years and 2 months. Its non-parole period is four years. It will commence on 13 April 2023. Rees is eligible for consideration for release to parole on 12 April 2027. The parole period of 2 years and 3 months, reflecting my finding of special circumstances, will commence on 13 April 2027. That means the total sentence should expire 12 June 2029.
To reiterate: Four years from 13 April. So, the total effective sentence since he went into custody is 6 years 4 months, but this sentence is 4 years. 6 years 2 months with 4 years to serve.
**********
R
Rees [2025] NSWDC 312
(2002) 56 NSWLR 146
(2013) 249 CLR 571
(2005) 228 CLR 357
(1988) 166 CLR 59
(1999) 199 CLR 270
(1999) 46 NSWLR 346
(2001) 206 CLR 267
(1988) 164 CLR 465
An issue was whether the injury suffered by the female complainant was inflicted with the golf club or the two headbutts. I have the photographs. I have the evidence. From the photographs alone, on my extensive but non-medical experience, either the two headbutts or two strikes with a golf club could have caused the injuries. I cannot resolve that issue. What I am left with is a small wound that needed to be sutured on the forehead, an injury to the nose and extensive bruising, and a complaint of a concussion that was not picked up at the hospital.
On close examination, the complainants’ version does not fit with their CCTV. They say that they were confronted in their bed by a man wearing a mask who was standing over and on them. The CCTV shows the offender with the golf club under his hoodie, wearing sunglasses and the hood without a mask. He enters soon after and there are voices heard off screen. There was no time for Rees to take down the hoodie, find and place a mask on. The noises appear to be voices not a voice. In those circumstances, it is impossible to accept that the male complainant was in bed at the relevant time. That those brief facts are inconsistent with the complainants’ account of being woken in their beds is hard for me to accept everything they said.
There is no evidence before me, other than what Mr Rees said, that the complainants were, in fact, drug dealers or running a drug house. That seems inconsistent with what appears to be evident, that the door was left open, or not firmly secured. And it seems highly unlikely that in the circumstances of a potential rip-off, the male would have let an obviously angry and armed Rees, and a second unknown man following Rees, into his premises for a quiet chat, particularly if he was running a drug house that required CCTV and minders for protection.
Rees was not in a very good state of mind at the time. He is not a particularly good historian. He downplayed the role of the second man. I cannot accept, given where the golf club was under his shirt when he was at the front door, that he left it at the front door and collected it as he left. He went into those premises with violent intent, wanting some recompense or to gain some benefit.
As the Court said in Olbrich, sometimes a court cannot resolve matters. Accordingly, while I cannot find the highlighted aspects of Exhibit B were proved beyond reasonable doubt, nor can I accept fully Rees’ version. The proving of a negative does not allow a positive alternative to be found here. I am left with certain facts to which I will return shortly when I come to assess the objective seriousness of the offence.
When I sentenced him on the last occasion, I tried to give him the full weight that can be given to an offender because of a history of childhood trauma, abuse and neglect. As the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, matters that provide a genesis for those findings often do not diminish over time.
On the last occasion, a sexual abuse complaint was not raised, but it was noted that he had spent a long time in juvenile detention and graduated to adult gaols; where he has spent the bulk of his life. It is not unusual for such matters to be raised about juvenile detention, some are found to be proved, some are accepted as being proved, some I am aware of, from my own matters, are false claims designed to seek the sympathy of the court. I cannot make a finding about those matters at the moment, but there are so many instances of trauma, abuse and neglect in his life that one more does not surprise me.
He has a record of violent offending, and he has, as is clear, been institutionalised: Jinnette v R [2012] NSWCCA 217 at [103]; Jackson v R [2010] NSWCCA 162 at [24]. On the last occasion a particular comment made to his psychiatrist, Dr Adams at par [42] resonated with me, “Something must be wrong with me, because who in their right mind would do this shit?”.
The reports from Corrections note he has some psychiatric problems. Mr Borenstein’s testing reveals what he calls “frank symptoms of Post-Traumatic Stress Disorder” and a “clinical picture … consistent with Complex Post-Traumatic Stress Disorder”.
Mr Borenstein advises that treatment should emphasis drug rehabilitation, preferably as an inpatient of residential program that should go for 12 months, for example, those run by Odyssey House. Rees will also need psychological treatment to address his core emotional vulnerabilities that date back to his early childhood. He will require community support. Although it is noted he has some emotional and practical support from his older sister.
The Court has to consider a person’s moral culpability for their crimes. The background revealed in all the material before me indicates that Rees’ behaviour, even the violent behaviour and the offences against the property of citizens, cannot be viewed through the same lens as one would view an offender who did not have the significant disadvantages he has suffered during his life.
There is evidence here of childhood deprivation, childhood trauma, possibly even sexual assault. There are mental health issues. All of these things are interrelated, inextricably so. It is clear, as the Court recognised in Bugmy, that such disadvantage, trauma, mental health issues can have an inhibitory effect on the development of prosocial values, on the acquisition of moral compass and on a person’s capacity to make behavioural decisions and their consequential thinking. Such a background may compromise a person’s capacity to mature and learn from experience. I will give full weight to those matters.
The sentence that I impose will commence on 13 April 2023 to reflect the Local Court matter, that he went into custody on 13 February, and a very modest amount for the breach of parole. That accumulation is also a matter that goes to special circumstances. I take into account totality principles when I formulate the sentence. I will indicate sentences. I will take into account the matter on the Form 1. Each indicated sentence will be reduced by 25% to reflect the utilitarian value of a plea of guilty I referred to earlier. I will take care that that benefit is not eroded by the process of accumulation.