R v Zerafa [2021] NSWDC 547

District Court New South Wales

Medium Neutral Citation: R v Zerafa [2021] NSWDC 547 Hearing dates: 7 October 2021 Decision date: 15 October 2021 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 7 years with a non parole period of 4 years. Catchwords: CRIME - SENTENCE - possess unauthorised pistol - threatening to use an offensive weapon with intent to commit a serious indictable offence - specially aggravated break and enter and commit serious indictable offence - Covid-19 - extremely concerning conditions of offender's detention. Legislation Cited: Crimes Act 1900 (NSW): ss 33B(1)(a) and 112(3); Firearms Act 1996 (NSW) s7(1). Category: Sentence Parties: Regina (Crown)

Storm Leigh Zerafa (aka Storm Leigh Hyde and Storm Leigh Mellish) (Offender) Representation: Mr Wilcox - Watson (ODPP Solicitor)

Mr Leaver (Counsel for the offender) File Number(s): 2020/00215692 Publication restriction: Nil

judgment 1. Storm Leigh Zerafa (otherwise known as Storm Leigh Hyde and Storm Leigh Mellish), you appear for sentence today in relation to three offences. 2. First, possessing an unauthorised pistol (sequence 8). This involves a contravention of s7(1) of the Firearms Act. The maximum penalty for that offence is imprisonment for 14 years. There is a standard non-parole period of 4 years imprisonment. 3. Secondly, threatening to use an offensive weapon with intent to commit a serious indictable offence (the serious indictable offence being intimidation) (sequence 10). This involves a contravention of s33B(1)(a) of the Crimes Act. The maximum penalty for that offence is imprisonment for 12 years. There is no standard non-parole period. 4. Thirdly, specially aggravated break and enter and commit serious indictable offence (sequence 1). This involves a contravention of s112(3) of the Crimes Act. The maximum penalty for that offence is imprisonment for 25 years. There is a standard non-parole period of 7 years imprisonment. 5. The facts surrounding your offending conduct are, to a significant extent, contained in an agreed statement of facts which forms part of Exhibit A. 6. The "facts" in that document were added to by your evidence (both in an affidavit made by you on 6 October 2021 and in your oral evidence on 7 October 2021): some of which is accepted by the Crown; and some of which is not. 7. I shall deal with the areas of dispute during the course of these remarks. 8. In resolving the factual disputes, I cannot make a finding adverse to your interests unless the relevant fact is proved beyond reasonable doubt. On the other hand, I can only make a finding favourable to you if it is established on the balance of probabilities. 9. By having regard to the agreed facts and those two different onuses of proof, I am satisfied of the following facts. 10. As at July 2020, you were 26 years old. 11. As at that time, and in circumstances to which I shall return, you had been a regular abuser of illegal drugs, particularly ice, since you were 14 years of age; and, unsurprisingly, with this history of poly-substance abuse you had suffered (amongst other things) since you were 23 years old from drug-induced psychosis with accompanying paranoia and auditory hallucinations. 12. At some point in the evening of 22 July 2020, you were in the company of the person you described as an old friend, Tracy (or Tracey) Ross. In circumstances not entirely clear from your evidence, Tracy Ross was in possession of a black gel blaster pistol. Such a pistol, to the untrained eye at least, appeared to be a firearm capable of discharging bullets; however, it was (theoretically) capable only of discharging hydrated gel ball pellets. The pistol was both an air gun and a pistol within the relevant definitions of the Firearms Act. The functionality of the pistol, which seems to have been loaded with hydrated gel ball pellets, has never been tested. 13. In any event, whilst you were in the company of Tracy Ross, that pistol was produced and, in your then drug affected paranoia, you thought that Tracy Ross, and / or the people that person was with, might use it on you and, accordingly, you took it with you when you left the house. How that actually came about – i.e. by way of a struggle or otherwise – was not revealed in the evidence. 14. You were not challenged in cross-examination as to the circumstances in which you came to be in possession of the pistol and I, therefore, accept on the balance of probabilities, your explanation as to why you were in possession of the pistol at that time. And curiously, there was no evidence as to whether or not you knew that pistol was not capable of firing bullets but "only" gel ball pellets; or whether (if you thought it was capable of firing bullets) you had a belief as to whether or not it was loaded. I shall not speculate about these matters adversely to your interests. 15. At what time you left Tracy Ross's house is also not revealed but, at about 2:30am on 23 July 2020, you were in the front yard of residential premises at Sanctuary Point. 16. You knew at least some of the people who were, at that time, in the adjoining premises: victim 1 (being a man aged 40 years); victim 2 (victim 1's partner and who was aged 21 years); victim 3 (who was victim 1's son and who was aged 18 years); victim 4 (a friend of victim 3); and victim 5 (a baby born to victims 1 and 2). 17. You have said that your drug dealer lived in the premises occupied by the victims I have just referred to – and that that was why you went to those premises in the early hours of that morning. However, which of those victims was that alleged drug dealer was not otherwise identified, although it can be safely assumed that it was neither victim 4 nor victim 5. 18. I pause to observe that I have not used the names of the victims. I have done so because of the allegation that you have made against them, or some of them, involving reasonably significant criminal misconduct. Those persons have not been heard in these proceedings and it would be inappropriate for them to be further identified. 19. At 2:30am, 23 July 2020, the occupants of the victims' house heard a noise. Victims 3 and 4 opened the front door of the premises and walked out onto the veranda. Victim 3 saw you standing in the neighbour's yard looking over the dividing fence. 20. Victim 1 followed his son and his friend out of the premises. Victim 1 was holding a baseball bat. Victim 1 yelled out challenging you to identify yourself and you said, "I just want to talk". 21. It was at that point that victim 1 saw you walking along the dividing fence between the two properties. Victim 1 had a clear view of you as you were only 5 meters away from him. 22. You attempted to jump the fence and enter the front yard of the victims' premises. 23. Victim 1 walked towards you, motioning the baseball bat in your direction. 24. Victim 2 was watching this from her bedroom window. 25. Victim 1 saw you raise your left hand (which was flat with the palm up) and you were holding the pistol in that hand. You took the pistol in your right hand and pointed it in the direction of victims 1, 3 and 4. 26. You then said, "we're right, we're right. We've got no problems". 27. At about this time, victim 1 managed to get victims 3 and 4 back into the house; and then he yelled at you in a rather colourful fashion. 28. After victim 1 had done that, he went back inside the premises and closed and locked the front door. He then went to his bedroom window. 29. It was at about this point that victim 2 yelled at you from that bedroom window. She said, "what are you doing? I've got a baby here". You then pointed the pistol at her and said, "I don't give a fuck, I'll shoot you and the baby". 30. Victim 2 closed the bedroom window and all occupants of the house got onto the floor as they were scared that you would actually shoot at the house. 31. Victim 2 called 000 at 2:28am and the police arrived at 2:59am, by which time you had left the area. 32. About 4 hours later (i.e. at about 6:30am on 23 July 2020), you went to other residential premises at Sanctuary Point. These premises were occupied by Mr Jones. He was, or had been, a close friend of yours. You had, at some point, lived in those premises. Mr Jones heard a bang and went to the front veranda. He saw you on that veranda. Your back was to him. Mr Jones went back inside the premises and locked the doors and he was able to see you standing at the front door. You tried to open the screen door but it was locked. And then you began to yell various profanities at Mr Jones. 33. Apparently one of the loungeroom windows was boarded up with some wooden panels. You broke some of those panels. 34. You continued yelling obscenities at Mr Jones, amongst other things, demanding to know where a lotto ticket was. Mr Jones replied telling you that he didn't have a lotto ticket and telling you to "get off the drugs". It is noteworthy, for reasons I shall later refer to, that you made no mention of your girlfriend when yelling at Mr Jones. 35. It was at this point that you reached through the window that had been boarded up with wooden panels and you were holding the pistol. You pointed that pistol at Mr Jones and threatened to kill him. He was only 4 or 5 meters away and, unsurprisingly, he froze. 36. You stood at that loungeroom window pointing that pistol at Mr Jones through the opened window for about 30 seconds threatening to kill him. 37. Mr Jones grabbed an "eel spike" that was leaning against the wall, held it over his shoulder, and told you, in blunt terms, to go away – which you did. 38. Mr Jones called 000 at 6:40am and the police arrived at 6:52am. 39. You said in your evidence that you went to Mr Jones' house because you knew that you would be going to prison for what you did at the home of victim 1, and that you wanted to obtain some of your possessions (principally, photographs of your mother) which were still in that house before your arrest. 40. This suggests a level of rationality which seems inconsistent with the state of your drug intoxication at the time and your paranoid thinking. 41. There was some evidence that, not long before the incident involving Mr Jones, he had had a sexual relationship with your then girlfriend – something about which you were angry. In the course of your oral evidence, you gave inconsistent and contradictory evidence as to whether the fact of Mr Jones' involvement with your girlfriend had any connection with why you were at those premises in the early hours of that morning. 42. I am not persuaded, on the balance of probabilities, that you went there for the purpose of obtaining pictures of your mother preparatory to being arrested. Nothing you said to Mr Jones at that time is consistent with such an intention. I am also not persuaded, beyond reasonable doubt, that you went there because you were angry about Mr Jones' involvement with your former girlfriend – again, nothing you said at the time is consistent with such an intention. However, you were clearly not there for any benign purpose. 43. The police responded to the two 000 calls and they were searching for you in Sanctuary Point. At a time not revealed in the material, the police did find you in that location and you were subsequently charged and arrested. 44. You have been in custody continuously since the date of your arrest on 23 July 2020. 45. There were no victim impact statements provided, but clearly all victims (including Mr Jones), but excluding victim 5, would have been terrified. Whatever may have been your belief about the nature of the pistol, the only rational inference in the circumstances is that they are likely to have believed it to be capable of firing bullets. 46. It is necessary for the Court to make a finding of the objective seriousness of each offence for an offence of its kind. 47. In terms of its objective seriousness for an offence of its kind: sequence 8 is somewhere equidistant between the middle and the bottom of the range; sequence 10 is mid-range; and sequence 1 is also mid-range. 48. Sequence 10 is additionally aggravated because it involved multiple victims. It should not be necessary for me to say this but apparently it is. The use of the word "additionally" indicates that that consideration was not taken into account in assessing the objective seriousness of the relevant offence. 49. Your other subjective circumstances were placed before the Court by means of the psychologist's report by Ms Cameron dated 5 October 2021 (Exhibit 1); your affidavit made 6 October 2021; and your oral evidence on 7 October 2021. 50. You were 26 years of age when these offences were committed and you are now 27 years old. 51. You have never met or known your biological father. You were brought up by your mother and stepfather – each of whom had severe substance abuse issues. 52. At the age of 2 and a half years, you were taken into care because of those issues. 53. At some point, you were returned to their "care" (at what age is not clear), after which you were subject to sustained and brutal physical abuse from your stepfather and your stepsiblings. 54. At the age of 12, you and your mother were at the beach. You got caught in a rip and your mother drowned trying to save you. You have a profound sense of guilt around that traumatic matter which has never been properly addressed. 55. You ran away from you stepfather's house shortly after your mother's death and when you were in Year 7 at school. You have been effectively homeless ever since. 56. Your upbringing was clearly profoundly dysfunctional, and your moral culpability is, therefore, reduced in the manner the High Court has directed sentencing Judges to take into account. 57. You have had no formal education after Year 7; you have no work skills; and you have a very limited employment history. 58. You do, however, have a long history of illicit drug use since you were 14 years old. 59. You also have a long criminal history which started when you were a juvenile and has continued consistently into adulthood. 60. Although your offences as a juvenile cannot be held against you, your offences as an adult mean that you are not entitled today to the leniency which can, in appropriate circumstances, be extended to a first offender. 61. Whilst in detention in Juvenile Justice, you were sexually assaulted on a number of occasions. 62. Notwithstanding those sexual assaults (which I accept happened), you told the psychologist who prepared the report for these proceedings that you regarded Juvenile Detention as being "like a second home", where you felt "safe and secure". 63. This statement, together with your prolonged periods of imprisonment as an adult, mean that presently there is a real risk of you becoming institutionalised at such a young age. 64. The psychologist conducted tests which showed that you suffered from extremely severe levels of depression, anxiety and stress. 65. The psychologist also diagnosed a number of very significant clinical mental disorders: * Attention Deficit and / or Hyperactivity Disorder (moderate); * major depressive disorder (severe); * generalised anxiety disorder; * amphetamine induced psychotic disorder; * cannabis use disorder (severe); * stimulant use disorder (severe); * complex post-traumatic stress disorder; * antisocial personality disorder. 1. Amongst other things, these disorders mean that you have difficulty with insight and judgment into your mental health and have resulted in you minimising your symptoms and disengaging in the past with mental health services. 2. The psychologist concluded that you were at a high risk of reoffending. I agree with that assessment. 3. There is no evidence of any support from your remaining family – or, indeed, any other support in the community – apart from some people who apparently live in Albion Park, but about whom nothing else significantly is known. 4. You have been on numerous bonds (both s12 and s9) and on parole, but there is no evidence of any meaningful professional engagement to address your numerous mental health and drug issues. You have recently expressed a desire to attend residential rehabilitation to deal with your long term drug issues. However, it seems to me that the utility of such a programme would ultimately be dependent on substantive psychological intervention to deal with your extensive mental health issues. 5. In addition to your substantial mental health issues, it would seem that you also have been diagnosed with Hepatitis C and that you have suffered pneumonia on two occasions in recent times. 6. Against all these negative considerations, I note that the psychologist records that you were employed as a sweeper whilst in recent custody – this would have been before the impact of COVID-19 and the matters that I shall soon refer to. However, the fact that you were entrusted with the position of sweeper means that some of the experienced officers saw something positive in you. 7. You have expressed remorse for your offending – but I am not persuaded that it was based on any meaningful insight – and, not least, because of the contradictory, and therefore unhelpful, evidence you gave as to why you were at Mr Jones' premises. 8. On balance, I very much regret to say that I regard your prospects for rehabilitation as poor. 9. Your mental health issues mean that general deterrence is of reduced significance. Notwithstanding those issues, specific deterrence remains of significance, and the protection of the community is fully engaged. 10. I just made reference to the impact of COVID-19 on your imprisonment. 11. During the sentencing hearing, an affidavit made by you and dated 6 October 2021 was read. As it was served the day before the sentence hearing, I gave the Crown an opportunity to take instructions concerning the contents of the affidavit. The Crown did not ask for any adjournment to check the accuracy of what you said (that is not said critically of the Crown representative). In these circumstances, the contents of the affidavit are unchallenged, and on that basis I accept the statements in it as being true. 12. It is appropriate in the circumstances of this case that I set out a significant portion of your affidavit. This is because what is contained in that affidavit is extremely concerning, particularly when one bears in mind your very severe mental health issues and your underlying physical health issues – matters which must have been known (or ought to have been known) to the Department of Corrective Services which is charged with your care whilst you are in its custody: "… 3. I am currently being held on remand at Parklea Correctional Centre. 4. Approximately six weeks ago, my cellmate tested positive to COVID-19. 5. I was kept in a cell with my COVID-19 positive cellmate for approximately four weeks until he was released from custody. 6. For approximately three weeks, my cellmate and I remained isolated in the general population. 7. Approximately three weeks ago, my cellmate and I were moved to an "ICU wing", which I believed to be special COVID-19 quarantine accommodation. I understand it is "Area 6C." It is referred to by the Correctional Officers as the "ICU wing" or the "Intensive Care Unit". It is a normal wing of the prison where they have put everyone who has COVID-19. 8. Approximately two weeks ago, my cellmate was released from custody. 9. I do not have COVID-19 and have never tested positive for it. 10. In the ICU wing, there were originally about 60 people being housed. I was told by Correctional Officers that about 50 of them had COVID-19. I now believe that there are about 40 in the ICU wing and about 30 of the inmates currently have COVID-19. 11. While I remained in a cell with my COVID-19 cellmate, I wore a mask 24 hours a day. I was constantly worried about catching COVID-19 from my cellmate. I am now worried about catching it because I am being held on the ICU wing. 12. From my cell I can hear COVID-19 positive inmates coughing loudly, yelling out in pain and calling out to the Correctional Officers to give them Panadol. Occasionally, I see COVID-19 positive inmates being pushed around in wheelchairs. I feel frightened when I hear and see these things. I also feel very paranoid about catching COVID-19. 13. I have not been outside in approximately six weeks. I have been confined to my cell 24 hours per day. I am not allowed out of my cell to exercise. My meals are delivered to me, and I eat them by myself in my cell. 14. I have been sleeping all day and staying up all night watching television. The television I have in my cell is the only thing I have to entertain me. I have been feeling depressed and lacking energy since being confined to my cell. I have also felt that there is nothing to look forward to as each day I wake up in my cell by myself. 15. I am only allowed to make one phone call every two to three days. The Correctional Officers bring a phone to me. I am not allowed to leave my cell to make a call. 16. I do not understand why I am still being held in the ICU ward. 17. I had been tested for COVID-19 every fifth day for over six weeks. Each COVID-19 test has returned negative. 18. When I was first brought to the ICU wing, I had a conversation with a Correctional Officer to the following effect: Me: "I don't have COVID-19, when will I be sent back to the general population?" Officer: "You will be sent back when you catch COVID-19 and then get better." I have been told things to this effect about five times by different Correctional Officers. 19. Every time I can speak to a Corrections Officer, I ask when I can be sent back to general population. I have been receiving responses from Correctional Officers to the effect of: "We don't know." 20. I understand I was transferred to this wing because I was a close contact with my COVID-19 positive cellmate. I do not understand why I am still being kept here. I am scared it is unnecessarily increasing the risk that I will catch COVID-19. I feel like Corrective Services is waiting for me to catch it. 21. I have bad lungs and I have difficulty breathing when I am not sick. 22. I was told about 6 or 7 weeks ago that I have Hepatitis C. I was not aware of this before. It is possible that I have caught it during my current imprisonment. I am now on the Hep-C program, which involves me taking three pills per day. 23. In 2019, I caught pneumonia twice and was very sick and had to seek medical treatment. 24. I am very worried what COVID-19 would do to my lungs if I catch it. 25. Since I have been in gaol, I have been asking to see the prison psychologist and have put in a number of forms making that request. I have not seen anybody about my mental health, which is something that I want to do. I don't know when I will have the opportunity to do that. 26. For the past six weeks, I made requests to be vaccinated every five days when I was tested for COVID-19 by the nurses. The nurses responded to me, words to the effect of: "You will need to wait until you see a Doctor first." "I don't know when you will be vaccinated." "You can't be vaccinated at the moment because you are a COVID-19 close contact." 27. I received my first injection of Pfizer on Friday, 1 October 2021. Until last Friday, I have been scared that I would not receive the vaccine. 28. I do not know when I will receive the second injection. …" 1. As I have said, this evidence, unchallenged by the Crown, is extremely concerning. 2. It is even more concerning because it does not seem to be an isolated case involving Parklea Correctional Centre – see R v Michael Brown, (unreported) 8 October 2021, per Ierace J. 3. Clearly, the circumstances in which you have been detained for the last 2 months have been extremely confronting and will be taken into account, as in the nature of extra curial punishment, in fixing the head sentence which I shall shortly impose. 4. I intend imposing an aggregate sentence. 5. Consequently, it is necessary for me to state the indicative sentences underlying the ultimate aggregate sentence. 6. You pleaded guilty at the first available opportunity and, therefore, there will be a 25 per cent discount applied to each of the indicative sentences for the utilitarian value of those pleas. 7. In relation to sequence 8, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years; after the discount, the indicative sentence is imprisonment for 3 years. The indicative non-parole period is 1 year 9 months. 8. In relation to sequence 10, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 7 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 5 years 3 months. 9. In relation to sequence 1, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 6 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 4 years 6 months. The indicative non-parole period is 2 years 8 months. 10. Furthermore, I shall make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence, notwithstanding that this is not your first time in custody. 11. I make that finding because of your age, the risk of institutionalisation, and because your prospects of rehabilitation (although not good) might be enhanced by a longer period on parole. 12. Storm Leigh Zerafa (otherwise known as Storm Leigh Hyde and Storm Leigh Mellish), for the three offences, being sequences 8, 10 and 1, I sentence you to an aggregate term of imprisonment of 7 years. 13. I fix a non-parole period of 4 years to date from 23 July 2020 and which will expire on 22 July 2024. 14. I fix a balance of 3 years to date from 23 July 2024 and which will expire on 22 July 2027. 15. I direct that the expert report of Ms Cameron, dated 5 October 2021 (Exhibit 1), go with the warrant – and I draw particular attention to [80] of that report. 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: 15 October 2021