Regina v Jay Lindsay John Curtis-Hodge

Regina v Jay Lindsay John Curtis-Hodge - [2016] NSWDC 222 - NSWDC 2016 case summary — Zoe

[4]

Chronology of relevant events

On 8 December 2004 the offender was resentenced by the Court of Criminal Appeal, following a successful appeal, to 8 years imprisonment with a non-parole period of 4 years and 6 months to date from 17 December 2002.
On 16 June 2007 the offender was released to parole.
On 27 September 2007 the offender committed an offence of robbery armed with a dangerous weapon, being a double-barrelled sawn off shotgun. The victim was a female bank employee working in a country town by herself.
On 4 October 2007 the State Parole Board revoked the parole order and ordered that the offender serve the balance of his parole, being a term of 3 years, 2 months and 19 days.
On 20 October 2007 the offender was taken into custody and commenced to serve the balance of his parole order.
On 10 September 2008 the offender was sentenced to 6 years imprisonment with a non-parole period of 4 years to date from 18 June 2008 (the date he pleaded guilty) for the offence of robbery whilst armed with a dangerous weapon.
On 16 June 2012 the offender was released on parole.
On 13 October 2013 the offender committed the 4 offences for which he was given the section 9 bonds.
On 10 November 2013 the offender committed the offences for which he was given the suspended sentences.
On 14 November 2013 the State Parole Board revoked the parole order and ordered that the offender serve the balance of his parole, being a term of 7 months and 29 days.
On 29 November 2013 the offender was taken into custody.
On 17 February 2014 the section 9 bonds were imposed for a period of 2 years.
On 27 July 2014 the offender was eligible for release, after serving the balance of his parole.
On 10 September 2014 the offender was released from custody. He had been bail refused on the offences for which the suspended sentences were imposed since 27 July 2014, a period of 45 days.
On 22 October 2014 the suspended sentences were imposed.
On 19 November 2014 the offender committed the offences for which he appears for sentence. On 20 November 2014 the offender was taken into custody.
Since December 2002 the offender has been in custody except for 3 non-continuous periods adding up to approximately 2 years.

[5]

Facts of the matters giving rise to the section 9 bonds

The victim Sarah Temple and the offender had been in a domestic relationship over a 6 year period. They had 3 children together aged 3, 2 and 7 months (the baby) at the time of the offences. They lived in rented accommodation in Leeton.
On Sunday 13 October 2013 the victim awoke and found that items of her property were missing. At about 11.30am the offender returned home and there was an argument. The victim left the house intending to walk to the police station to report the offender's behaviour. The victim took the baby with her. The older children were being cared for by others at the time.
When she was walking past a residential property the victim saw the offender approaching her in a vehicle. The victim fearing a confrontation with the offender retreated to the front yard of the property. The offender stopped the vehicle in the driveway of the property. He said to her, "Get in the fucken car Sarah now, they will ring the coppers". The victim refused. The offender got out of the vehicle and approached the victim and said, "Get in the fucken car, I'll fucken kill you, I'll take your son". The offender repeated words to that effect, a number of occasions. The victim noticed that there was another man in the front passenger seat, Mitchell Crowe a relative of the offender. Mr Crowe said to the offender, "Just leave her". The victim left the front yard and continued to walk towards the police station. The offender followed her in the vehicle.
About 100m further down the road the offender drove in front of the victim and blocked her path by reversing the vehicle onto a dirt driveway. Mr Crowe was no longer in the vehicle but was on the street with his girlfriend Ms Kilby. The offender got out of the driver's seat and walked to the rear passenger door, where the victim was. The offender grabbed the victim by her left arm and twisted her arm up behind her back. At the same time he used his other hand to try to take the baby from her arms. The offender said, "Let go of him or I'll snap your arm, I'll fucken snap your arm Sarah". The victim was crying and experiencing pain in her arm. The offender continued to apply force to her arm for a further 10 seconds. The pain in her arm continued for 10 minutes after he released her.
Mr Crowe and Ms Kilby approached. Mr Crowe tried to reason with the offender to leave. Arrangements were made for the baby to go with Mr Crowe and Ms Kilby and they crossed the street. The victim walked in the same direction. The offender reversed the vehicle onto the grass traffic island in the middle of the street. The offender said, "Get the fuck in the car Sarah". The victim refused. The offender grabbed the victim by the hair and pulled her towards the vehicle.
The victim fearing for her safety got in the rear seat of the vehicle, behind the offender. Mr Crowe got in the front passenger seat. Ms Kilby left on foot with the baby. The offender drove in the direction of their house. The victim said, "Take me to my son". The offender replied, "You don't get it do you, you're never going to see your son again, I'm going to knock you". The victim took this to mean that the offender was going to kill her. The offender accelerated to about 90km per hour in a 60 km/hour zone whilst saying, "I'm taking you to the bush to knock you, you're never seeing the kids again". The victim tried to get out of the vehicle but could not do so because the child lock was engaged. The victim lowered the window and partially opened the door from the outside. The offender swung his left arm around and reached out for the victim, grabbing her t-shirt around the left sleeve causing it to tear whilst continuing to drive at speed.
A short distance further the offender turned right down a dirt access road and slowed the vehicle. The victim jumped out of the vehicle landing on the ground. The vehicle came to a stop a further 2m away. The offender yelled at the victim, "Get the fuck back in the car". The victim refused. As she was still getting up the offender said, "I'll fucken run you over then". The offender reversed the vehicle until it was about 4m away from the victim. He then drove the vehicle forwards towards the victim. The victim stood up and ran to the front left hand side of the vehicle. The vehicle came within an arms-length of her. Fearing for her safety the victim ran through a small park . The offender ran after the victim and continued yelling at her. The victim continued to walk to the police station to report the incident. On the way she saw Ms Kilby who returned the baby to her. The victim was left with marks on her neck.
The victim reported the matter to the police. The offender could not be located.

[6]

Facts of the matters giving rise to the section 12 bonds

The victims, Wesley Whiteman and Tiana Byrnes lived in a domestic relationship in Young. Mr Whiteman was known to the offender.
At about 11.15am on Saturday 9 November 2013 the offender came to the victims' house, with a co-offender. Mr Whiteman invited the offender and co-offender into the kitchen, where Ms Byrnes was seated at the kitchen bench.
The offender became aggressive and in the course of the conversation, the offender said to Mr Whiteman, "Give me one good reason why I shouldn't break your fucking jaw?" Mr Whiteman replied, "Whoa mate I have no idea what you're talking about". At the same time he raised his hands with his palms facing towards the offender.
The offender then put his left hand behind his back and stood up, producing a syringe. He said, "Give me all your fucking money". Ms Byrnes picked up a pair of scissors and held them in front of her. Mr Whiteman said, "I don't have any fucking money".
Mr Whiteman ran to the lounge room and told his 10 year old step-daughter to take his 19 month old son to the bedroom. The co-offender was standing in the hallway. The co-offender said to Mr Whiteman, "Get back in the kitchen, he's skitzing out". Mr Whiteman replied, "Get out of my house you fucking dog". The co-offender said, "Get out in the kitchen, he wants your money". Mr Whiteman said, "No!"
At this time the co-offender walked out the front door. Mr Whiteman followed him outside. Ms Byrnes left the kitchen and locked the front door to prevent the offender following Mr Whiteman. The offender said to Ms Byrnes, if you don't open the door I'm going to stab you with the syringe, I have Hep C and I am not scared to give it to you or anyone else. You don't know what I've got in this".
The offender continued to demand that Ms Byrnes open the door and then said, "I am going down to the kids if you don't". Ms Byrnes then pointed towards the glass sliding door. The offender left through the sliding door.
When Mr Whiteman could not enter because the front door was locked he went to the neighbour's house to call the police.
The offender was seen running from the scene and could not be located.
On 11 March 2014 the offender was taken from Goulburn Correctional Centre to Goulburn Police Station and charged with 2 counts of intimidation.

[7]

Facts relating to the sentence proceedings

At the date of the offence the victim, Francesco Carlino, was 86 years of age and required a walking stick to assist him with walking.
A few days before the offence the offender travelled from Young to Sydney with Jennifer Lee Clarke (the co-offender) and a friend.
At approximately 9.20am on 19 November 2014, the co-offender was sitting outside the Commonwealth Bank at Chester Hill having a conversation with the victim. At approximately 9.33am the bank opened. The victim entered the bank and withdrew $500 which he immediately put into his wallet before returning his wallet to his right back pocket. The offenders entered the bank separately and had separate interactions with bank staff.
The victim walked out of the bank and spoke to the co-offender. A short discussion ensued before the victim and co-offender walked away together.
The co-offender and the victim walked to Priam Street underground carpark. The offender also attended the carpark and hid behind a large concrete pole. Once the victim and the co-offender had reached the bottom of the carpark, they turned around and walked back.
When the victim passed the concrete pole, the offender stepped out and swung his right arm out striking the victim on the right side of his face. The victim fell backwards to the ground. The co-offender initially walked away, before returning to the offender who was crouching beside the victim. The co-offender then searched the victim's pockets while the offender stood next to the victim. The offender then stomped on the lower part of the victim's face.
The offender and co-offender rolled the victim back and forth a number of times. The offender then lifted the victim by the rear pocket of his pants before dropping him back onto the ground. The victim felt his wallet being removed from his back pocket, and his clothing being torn. The victim's wallet contained $570, a medicare card, pension card, and a list of phone numbers.
The offenders then left the victim and exited the carpark. Two people arrived shortly after and assisted the victim. The victim was treated by Ambulance officers at the scene before being transported to Liverpool Hospital. The victim suffered bruising to the right side of his mandible (jaw), swelling to the right side of his lips, 4mm laceration to the right upper lip inside his mouth, loosening of his lower left incisor tooth, a broken denture, as well as a graze to the left elbow.
Following the offence, the offenders travelled to Bankstown by motor vehicle.
At about 9.00pm the offender drove the same vehicle to Bankstown Police Station and 2 persons got in the vehicle. Police recognised the offender and activated their warning lights on the police vehicle. The offender accelerated harshly and failed to stop. A pursuit was initiated.
The offender accelerated north on the Cairds Avenue, turning left into Carmen Avenue, right on Brancourt before turning onto the Hume Highway and travelling west. The offender drove through a red traffic light at the intersection of Cooper Road, where there were other motorists waiting at the intersection. On approaching the intersection of Highland Avenue, the offender was unable to proceed to because of traffic stopped at a red light. The offender then veered harshly from lane 3 to Lane 1 and mounted the kerb. The offender drove the vehicle down the southern footpath colliding with a number of chairs and tables outside of a restaurant. The vehicle continued along the footpath and onto Highland Avenue at speeds of approximately 50 to 60 km/h. The offender drove the vehicle onto The Crescent and continued to stop before a brick fence at 105 The Avenue, Yagoona. The offender ran from the scene and could not be located.
On 20 November 2014 the offender was arrested on a train.

[9]

The offender's evidence

The offender relied on a report of Sam Borenstein, clinical psychologist dated 24 August 2016. That report can be summarised as follows.
The psychologist interviewed the offender at the Metropolitan Remand and Receptions Centre on 24 August 2016 for the purpose of preparing the report.
The offender told the psychologist that he was in the company of the co-offender, having to travelled to Sydney for the purpose of buying drugs. At the time of committing the offences he had not slept for 2 weeks and was consuming more than 3.5 g of ice per day.
The offender told the psychologist that when he learned that the victim was in his 80s that he felt putrid and knew that what he had done was not right. The offender told the psychologist that the offences were committed about 8 weeks after his release from prison. He had been using ice whilst in custody and when was released he attempted to reconcile his six-year relationship.
The offender gave a history of being in custody for approximately 18 years of his life, in both juvenile detention and adult prisons.
The offender provided a significant psychiatric history. He was diagnosed with attention deficit disorder as a child and treated with medications including Ritalin. He consulted a psychiatrist roughly every month for about two years. He was diagnosed as suffering from schizophrenia and possibly bipolar disorder. He was treated with antipsychotic medication but he could not tolerate side-effects.
The offender has been trialled on a variety of medications and did not like the side-effects of any of them. The offender instead of medicated with a variety of drugs in particular methyl amphetamine over many years.
He has consulted a psychiatrist in custody recently, but disagreed with the psychiatrist's suggestion to try a new medication, saying that he did not want to be treated like a guinea pig.
The offender has obtained benefit in the past from a medication known as Lyrica the past. Lyrica is a mood stabilising medication used to the treatment of bipolar disorder. It has been the offender's experience in the past that when he stops taking prescribed medication that he commences illicit drug use.
The offender has consulted a drug and alcohol counsellor and psychologist in the prison after his sister died of an overdose in February 2016. The offender has attempted suicide on a number of previous occasions.
The offender told the psychologist that he relapsed into drug use as a result of his relationship faltering prior to Christmas 2013. The offender said at this time he was making a concerted effort to get his life back on track but that he was not equipped to deal with the emotional turmoil.
The offender has been attracted to illicit drugs for the purpose of self-medication. They make him feel empowered and invincible and allow him to avoid feeling negative effects of his life.
The offender told the psychologist that he was introduced to marijuana at age 12, amphetamines at age 13 and heroin at age 15. The offender was introduced to ice at age 21 when he was in prison and it became his preferred drug. The offender has also engaged in binge drinking and gambling from time to time.
The offender told the psychologist that he understands he needs medication. The offender has not had benefit of impatient drug and alcohol treatment or inpatient psychiatric treatment. The offender reported previously experiencing hallucinations, hypersensitivity and paranoia. The offender is currently on protection as a result of being targeted by other prisoners.
The offender was born in Harden and is an only child to his parents. His father left prior to his birth and he only met him at the age of 16. His mother entered a de facto relationship when the offender was about age 7. He has a number of half siblings. He was very close to his sister Donna who died in February 2016.
The offender's mother was heroin dependent and placed on methadone. She was later diagnosed with depression. The offender's stepfather was drug dependent and violent towards the offender and his mother.
The offender identifies as aboriginal.
The offender attended about 10 different schools. He was regularly suspended and expelled. He was an average student. He can read and write. He was good at sport, particularly rugby league.
The offender has little employment experience. He does not like being told what to do. He has completed a number of courses whilst in juvenile detention including building/construction, welding, carpentry, commercial cookery, hospitality and landscaping.
The psychologist administered a number of tests. The results indicated that the offender was displaying symptoms of extremely severe depression, extremely severe anxiety and severe stress. He was unhappy and apprehensive, impulsive and compulsive. He has had anger management issues for as long as he can remember.
The psychologist did not find any frank evidence of serious psychiatric disorder. The psychologist reported that he has a history of mental conditions including attention deficit disorder, oppositional defiant disorder and bipolar disorder. The psychologist noted that the offender has not been adequately treated for bipolar disorder and has resorted to self-medication. The psychologist believed that the benefit provided by Lyrica was supportive ofthe diagnosis of bipolar disorder. Psychologist recommended further treatment with appropriate medications and cognitive behavioural therapy to manage his mood swings. The psychologist opined if the offender's bipolar disorder was properly treated would be less likely to resort to illicit drug use as a form of self-medication.

[10]

Pre-Sentence Report

I will try not to repeat matters contained in the PSR that have already been mentioned.
The offender has had 2 internal misconduct charges since has been in custody since 20 November 2014. They were both drug related. One of them occurred following the death of his sister.
Prior to being taken into custody the offender had resided with his mother and step-father and 3 of his step-siblings in the Harden area. They are supportive. The offender reported having a close relationship with one of his step-sisters, who committed suicide in February 2016 when he was in custody.
The offender had a violent childhood marred by domestic violence, alcohol and drug abuse as well as both physical and sexual abuse. During his childhood he was placed in the care of his grandmother and was first placed in juvenile detention at age 11. He has spent most of his life in custody.
The offender was expelled from numerous schools in New South Wales and the Australian Capital Territory. He completed Year 10 and has obtained a Certificate III in Commercial Cookery whilst in juvenile detention. His longest period of employment has been 6 months and he has performed odd jobs when he was most recently at liberty.
The offender started using cannabis at age 13 and used heroin form 14 or 15 years of age. He ceased using heroin following an overdose. He commenced using drugs as a coping strategy to deal with mental health issues. He has had some benefit from drug and alcohol counselling in the past.
The offender was using 5-6 grams of methylamphetamine and smoking a couple of cones of cannabis a day in November 2014. He had not slept for 11 or 12 days leading up to the commission of the robbery offence.
The offender reported being non-compliant with his prescribed mental health medication. He has attempted suicide 5 times during his lifetime, the last attempt being before the commission of the robbery offences. The offender reported having been diagnosed with attention deficit hyperactivity disorder (ADHD), bi-polar disorder, schizophrenia, depression and anxiety. He is not on any medication in custody and has refused the treatment from Justice Health. He has had treatment from a mental health practitioner in the community, but did not find that helpful.
The offender told the author of the PSR that his actions were "putrid" and "wrong". He was disgusted and ashamed of his actions and has tried not to think about their impact on the victim.
The offender was assessed as a medium to high risk of reoffending. The offender will need support on his release from custody to engage with drug and alcohol rehabilitation, intervention targeting his violent tendencies and referral to mental health practitioners.
I have also taken into account an undated letter from the offender to the Court.

[12]

Breach of the section 12 bonds

A determination of the breach of a suspended sentence is governed by sections 98(3) and 99 Crimes (Sentencing Procedure) Act 1999.
The Court must revoke a section 12 bond unless it is satisfied that the offender's failure to comply was trivial or that there are good reasons for excusing the offender's failure to comply. The subjective circumstances of the offender at the time of the breach proceedings are irrelevant to a determination of what will amount to "good reasons".
It was properly conceded on behalf of the offender that the bonds must be revoked.
Section 99(2) Crimes (Sentencing Procedure) Act 1999 provides that the Court may make an order that the sentence of imprisonment be served by home detention or an intensive corrections order. In Lambert v R [2015] NSWCCA 22 the Court of Criminal Appeal at [46], per Simpson J, decided that section 99(2) mandates the consideration by the Court of either home detention or an intensive corrections order as an available lesser punishment than full-time imprisonment, if appropriate.
In the present case, neither of those options is appropriate.
Section 99(4) Crimes (Sentencing Procedure) Act 1999 provides that in resentencing an offender for the breach of the bond the Act must be applied. Sections 24(a) and 47(3) Crimes (Sentencing Procedure) Act 1999 provide that I must take into account pre-sentence custody in relation to the offence. I calculate that to be 45 days. I will back date the sentences imposed to 7 October 2014 being 45 days before the offender was taken into custody on 20 November 2014.
The good behaviour bonds are revoked.
In relation to the offence of intimidating Mr Whiteman the offender is sentenced to imprisonment for 15 months, with a non-parole period of 10 months to date from 7 October 2014.
In relation to the offence of intimidating Ms Byrnes the offender is sentenced to imprisonment for 15 months, with a non-parole period of 10 months to date from 7 October 2014.

[14]

Deterrence

General deterrence is of significance to the offences before the Court, One of the main purposes of punishment is to protect the public from the commission of crime by making it clear to the offender and other persons intending to commit similar crimes that they will meet with severe punishment.
General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered.
The offender's substance use, in particular his abuse of methylamphetamine that was the most direct cause of his offending behaviour. Addiction is not normally an excuse for committing offences, but considered to be a choice: R v Henry (1999) 46 NSWLR 346. In this case, the offender was introduced to drugs at a young age and did not have the capacity to make an informed choice: R v Todorovic [2008] NSWCCA 49. I consider that his addiction was as a result of social disadvantage and arising from his mental condition. The offender is now 31 years of age and he has not managed to complete a course of rehabilitation. The offender now seems to accept that he needs to address his mental condition in order to stay away from illicit drug use.
There is no evidence to suggest that the offender did not know what he was doing or did not realise the gravity of his actions. The footage of the incident and his manner of driving during the police pursuit indicate that he acted deliberately and there was no casual connection between his mental condition and the offending conduct.
The offender's substance abuse makes the offender a danger to society when he is at large. That danger is likely to continue unless he can achieve rehabilitation from substance abuse. This cannot lead to the imposition of a heavier sentence than would be appropriate if the offender was not suffering from a mental condition, but it is a material factor in determining the appropriate sentence.
There is a need for specific deterrence in his case: R v Engert (1995) 84 A Crim R 67 at 68. The offender has a history of offences of violence and the penalty imposed needs to convey the message that he must address his offending behaviour.

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Judgment (23 paragraphs)

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Cases Cited (17)