R v Sutton-Howsan [2020] NSWDC 844

District Court New South Wales

Medium Neutral Citation: R v Sutton-Howsan [2020] NSWDC 844 Hearing dates: 28 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of two years, nine months, with a non-parole period of 22 months: at [18]. Catchwords: SENTENCING — Aggravating factors — Record of previous convictions — Use of weapon SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Intoxication — Special circumstances Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Texts Cited: Nil Category: Sentence Parties: Regina (Crown)

Regan Sutton-Howsan (Offender) Representation: Mr Gaynor (Solicitor for the Crown)

Mr Thomas (Counsel for the Offender) File Number(s): 2019/263541

Judgment 1. Regan Sutton-Howsan is only 25 years of age, but he has spent about nine years out of the last ten years in juvenile or adult custody. Although his parents are present in Court today and indicate that they offer their support for him by being prepared to take him in to live with them when he is ultimately released from prison, there is no evidence before me today of any family support at any time in the past. He said in evidence that he left school when he was 14, started drinking when he was ten or 11, and started using cannabis when he was 13 and ice when he was 17. He has very limited employment skills. Other than that, I know nothing about his background beyond what is summarised in the Sentence Assessment Report in which he asserts that he had some part-time jobs mowing lawns and delivery jobs, but had difficulty understandably maintaining employment due to his drug addiction and criminal history. 2. He has pleaded guilty to a number of offences in circumstances justifying a 25% discount for the utilitarian value of the pleas. 1. Sequence 1, aggravated break and enter and commit a serious indictable offence under s 112(2) Crimes Act 1900, carrying a maximum penalty of 20 years with a five year standard non-parole period. 2. Sequence 2, using an offensive weapon, being a knife, to prevent lawful arrest, contrary to s 33B(1)(a) of the Crimes Act 1900, carrying a maximum of 12 years imprisonment. 3. Sequence 6, resist officer contrary to s 58 of the Crimes Act 1900, carrying a maximum penalty of five years imprisonment. 4. Sequence 8, intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007, with a maximum penalty of five years imprisonment 1. There are three matters to be dealt with on a Form 1 in relation to the first matter, they being two counts of intimidation (sequences 9 & 10) and one of receiving stolen property (sequence 11). There is also a related offence of entering inclosed lands which will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. 2. The agreed facts have been amplified by his evidence today. He was heavily under the influence of drugs at the time of the offences in August 2019 when he intended to get on a bus from Canberra to Sydney but ended up in Jindabyne at 3am in the morning. It was minus 9 degrees and he walked around for three hours in the cold and thought he was going to die. For some unexplained reason he had a knife on him, and he entered a house at East Jindabyne, produced a knife to the victims. There was quite a significant interaction over the next hour between the victims. 3. The police arrived about 7.20am. They chased him across a paddock. He failed to comply with their directions, and he had a black handled hunting knife using that to prevent lawful detention. He entered inclosed lands occupied by Richard Wade. He was eventually apprehended by the police, still holding a blue cash tin and a knife. He resisted arrest, thrashing his arms and legs around making it difficult to restrain him. They seized the knife, the cash tin and a bloodstained sock. The receiving count relates to a doona that had been stolen from the Snowy Valley Motel. 4. It is unnecessary for me to go through his lengthy criminal and custodial history, having summarised the fact that it has led to him spending most of his life for the last ten years in custody. He acknowledges his severe drug problem. He says that he will not re-offend because he recognises that it is not the right thing to do and he needs to better his life and stop making wrong choices. 5. He was released on bail having served five and a half months in custody after his arrest. A condition of the bail was that he attend The Way Back rehabilitation program. He spent about two months there, but COVID considerations led to it being an incomplete effort at rehabilitation. He says he has a better medication regime requiring regular injections, which will hopefully go some way towards breaking the cycle of drug addiction and reoffending, as Mr Thomas puts on his behalf. 6. He has demonstrated some insight and accepts responsibility and demonstrates some remorse. 7. Although the Sentence Assessment Report says that he has a history of mental health concerns and reported periods of depression, there is no evidence of psychiatric treatment. 8. He acknowledged that the victims would have been traumatised and in fear and he feels remorseful and sorry for them. 9. The Form 1 matters will be taken into account in the way suggested by the Chief Justice in the guideline judgment (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.) 10. The offender has recently been sentenced to a 15 month term of imprisonment, with a non-parole period of 11 months commencing 2 June 2020 for aggravated break, enter and steal in company, and also has been sentenced to a fixed term of eight months for breaching a Community Corrections Order in relation to a receiving offence. It has been accepted by counsel during the course of submissions on the sentence that an appropriate commencement date for a term of imprisonment in this matter would be 23 December 2019, in the exercise of my discretion, and bearing in mind considerations of totality and accumulation. 11. The Crown's helpful written submissions have not been the subject of challenge by Mr Thomas and it is clear that the first sequence is objectively a serious matter involving breaking into residential premises early in the morning, the victims seeing him holding a hunting knife being waved in their direction. I accept Mr Thomas' submission, that insofar as it is necessary to place it on a scale of objective seriousness, it is below the mid-range. The other matters are also towards the lower end of the range of objective seriousness. 12. He told police that he had consumed an unknown quantity of MDMA and it was probably clear to the police officers, given the facts that I have recounted, that he was under the influence of drugs. 13. The aggravating factors, conceded by Mr Thomas, include that a weapon was used in relation to the sequences 8, 9 and 10, and a common aggravating factor is the record of previous convictions. 14. The Crown acknowledges by way of mitigating factors the plea of guilty and the fact that there was no planning or organised criminal activity. 15. I take into account all the purposes of sentencing set out in the Crown's submissions, and the acknowledgment that his criminal history disentitles him to leniency. It also requires greater weight to be placed on general and specific deterrence, denunciation and protection. His prospects of rehabilitation are guarded at best, given his history, and notwithstanding his professed enthusiasm for rehabilitation, but one would hope that in his mid-twenties there will be a degree of realisation of the need for maturity and prosocial activity. 16. The orders that I will make are as follows: 1. He is convicted of each offence. 2. The indicative sentences are: 1. Sequence 1, taking into account the Form 1 matters (sequence 9,10 & 11): two years and one month with a non-parole period of 16 months; 2. Sequence 2: 18 months; 3. Sequence 6: 13 months; 4. Sequence 8: 9 months . 1. I impose an aggregate sentence of two years and nine months commencing 23 December 2019. 2. I impose a non-parole period of 22 months expiring 22 October 2021. 3. I find special circumstances in view of his clear need for an extended period of supervision. 4. Sequence 4 is dealt with under s 10A. 5. Sequence 3 is withdrawn. Note – These extempore remarks were revised without access to the court file.