R v Aldridge [2021] NSWDC 302

District Court New South Wales

Medium Neutral Citation: R v Aldridge [2021] NSWDC 302 Hearing dates: 11 March 2021 Decision date: 11 March 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of be 2 years 6 months. Non-parole period of 1 year 3 months. Catchwords: CRIME – Assault with intent to rob in company SENTENCING — Relevant factors on sentence — early plea – parity - role of offender -strong case for – history of trauma and associated drug use - good prospects for rehabilitation - special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Daniel Aldridge (the offender) Director of Public Prosecutions Representation: Solicitors: Mr A Sumbak, Dillon-Smith Lawyers (for the offender) Ms A Cabrera (for Director of Public Prosecutions) File Number(s): 2020/00191717

SENTENCE – ex tempore revised 1. On the evening of 11 November 2009 four men went to a home in a suburb close to Batemans Bay. The residents, the two victims of this offence, were watching movies. Thankfully their children were not home that evening. The four men, included Dean Scicluna who was known to the residents. Scicluna called the male occupant outside. Scicluna was not disguised. The three other men with hiding in the shadows. They were wearing hooded jumpers; one of them held a machete. Threats were made to the male victim by both Scicluna and the man with the machete. They asked for money. They said he would be "chopped." The victim and Scicluna started wrestling. Punches were thrown. The three other men ran away. 2. Unsurprisingly, as he was well known to the victims, Scicluna was soon after arrested. He pleaded guilty and was sentenced by me on 18 September 2020. The three men outside Daniel Aldridge, Hood and Hood‑Carberry, were later arrested. Aldridge was arrested on 13 September 2020. He is for sentence today. The other two men will be sentenced later this month. 3. When he was before the Local Court Aldridge accepted responsibility for an offence of assault with intent to rob in company: s 97(1) Crimes Act 1900. There will be a reduction, 25%, for the early plea of guilty: s 25D Crimes (Sentencing Procedure) Act 1999. The offence carries a maximum penalty of 20 years imprisonment. It is an offence that falls within a guideline judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The maximum penalty and the requirement that attention be given to any guideline judgment of the Court are guides to the exercise of my undoubted sentencing discretion in this matter. 4. The offence was an intended home invasion. It occurred at night. One of the offenders was armed and the principal victim was assaulted and left bruised. The offender's role was to provide assistance if called upon and by weight of numbers to intimidate the victim to hand over money. The actual motivation for attending the home is obscure. The facts before me touch on the possibility that the victim was in debt to Scicluna, but in Scicluna's case he did not raise this motive. It is however clear that the men thought there was money at the victim's home and they wanted to take it from him. Given they used Scicluna to lure the victim outside and given their disguises were rudimentary it is also clear that this particular offence was ill‑thought‑out and badly prepared. It may be that they thought that their victim would not report the crime to police. But he did. 5. Aldridge's evidence before me shows he now has a degree of remorse and insight, not just for his victims but for the harm that this offence has caused his family, who are present to support him today. The plea has more than its utilitarian benefit in that it indicates that with assistance Aldridge may be able to turn his life around when he is released from custody. I will take that into account. 6. His role, and that of the other unarmed assistant, was the least in this particular criminal enterprise. The sentence must be determined by having regard to his circumstances and the circumstances of each co‑offender and their respective degrees of culpability and their histories. Like must be compared with like. But each offender's role and each offender requires separate and independent consideration. Different personal and criminal histories may justify a difference in the time each will serve in prison. The principle I apply known as parity is a classic example of a need so far as possible to ensure equal and consistent justice. 7. The offender has a criminal record but this is the first time that a custodial sentence has been imposed on him. Most of the matters on his record relate to the breakdown of his long‑term relationship. The breakdown of that relationship, the offender's take up and abuse of illicit drugs, and his commission of this offence, his association with criminal members of this community he associated with, because of his drug problem, are important both for the determination of the overall sentence, its structure and his prospects for rehabilitation. 8. Dr Lennings in a comprehensive report sets out Aldridge's family history. I also have the benefit of an affidavit from his father which details that history. Aldridge had, and has, the benefit of a strong and supportive family. They did everything they could for him. Although not academically inclined he was keen on sports until a teenager. A number of things caused that to change but in particular in 2018, he and, his partner's twin babies died. It is entirely understandable that he and his partner then struggled with grief. They had to deal with that loss and raise two other children. This then led to the relationship ending and his poor reaction to the end of that relationship is reflected in many of the criminal matters that are now on his record. 9. As a consequence of his actions he lost custody and access to his two girls. It would appear that he took solace in alcohol and cannabis, known on the South Coast as "yandi." It would appear that as more and more trauma afflicted him he took up the use of other illicit drugs. While drug use is not, and can never be, an excuse for the commission of offence such as this it helps me understand how he came to the point he was at in November 2019. 10. Since this offence and until his arrest the downhill spiral continued. It was exacerbated by his brother's suicide in 2020, and as his father deposes, as he and his brother had a fight on that day. 11. While he has been in custody he has not access to face to face visits and he has had no contact with his children. However his family speak to him every day if at all possible and are here and ready to support him both in custody and on release. 12. In his evidence today he spoke of the violence he witnesses and experiences each day in custody. He told me that initially he sought solace in the drugs that are available in custody, notably buprenorphine. He was frank about his desire to use that drug as a prop because, he said, he was receiving no mental health support and no programs have been made available to him while at Parklea. He tells me, and I accept, that more recently by regular exercise while in custody he has been able to avoid resorting to illicit drugs. He is looking forward to a move once sentenced to the South Coast Correctional Centre where, I am aware, more programs such as EQUIPS Addiction might be made available to him. Sadly, there may be little scope for him to access mental health programs until he is released. But it is clear from all the material before me, not the least the comprehensive report of Dr Lennings, that he requires such intervention as soon as possible to deal with not just his drug problem but the effect of the multiple traumas that are detailed in the reports. 13. His situation had reached rock bottom just prior to his arrest. I have a note indicating a significant suicide attempt on 4 September and his subsequent hospitalisation following that event. It is tragic it had to come to this and it is also tragic, that such is the seriousness of his offence, that a deterrent, or perhaps more accurately, a retributive sentence must be imposed upon him to recognise the objective seriousness of what he did and to signal to the community that offences such as this will be severely punished. 14. I must also recognise, as best a judge can, harm done to the victims of violence, the residents of this house, an attempt to vindicate their dignity; dignity which was not respected by the four home invaders who attended their home on 11 November 2019. 15. Dr Lennings' report, which will accompany the warrant. In it he confirms the history which I have briefly recounted. He assesses Aldridge's risk of recidivism as low. This opinion is partly conditional upon him getting the assistance he so sorely requires to deal with both his mental health and drug addiction problems. He is still a vulnerable and traumatised person. I find, on balance, that vulnerability and trauma he suffered made him susceptible to to the uptake and abuse of drugs and the peer pressure that led to his attending the premises that day and committing this offence. 16. I accept his evidence that he is genuinely remorseful and regretful. But he will have to prove during the remainder of his term in custody, and during his time on parole, that the trust shown in him by his family and will be reciprocated. A significant finding of special circumstances is justified. If he does not take the opportunity to engage in mental health programs and drug rehabilitation programs in the community, if he does not respect his parents and obey their strict moral guidelines, he will not get access to his children, he will not keep their respect and he will return to gaol. 17. Aldridge has never previously been in custody. If he does all that he has promised he will not return to custody. It is now up to him to put in practice those intentions. 18. His mental health problems do require some moderation of the otherwise appropriate sentence for the reasons set out succinctly in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 19. Both Mr Sumbak, for Aldridge, and the Director of Public Prosecutions have provided comprehensive written and oral submissions. I have sought in this brief judgment to do justice to them. Those submissions have informed this judgment and the ultimate result. 20. There has to be a balance between appropriate punishment and the interests of the community including an interest in the offender's rehabilitation. Having regard to all the factors I have fixed what I regard to be the minimum time that must be spent in custody. I have allowed for a significant portion of the sentence to be spent on parole. The interests of the community in this case do not require any more custody than is the minimum required. The interests of the community require a concerted effort be made by not just this offender but those entrusted with his supervision and monitoring in the community to protect the community by ensuring that the promise he has displayed to date are kept.