District Court New South Wales Medium Neutral Citation: R v James [2021] NSWDC 746 Hearing dates: 25 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of 18 months to be served by way of an intensive corrections order: [45]. Catchwords: SENTENCING — Aggravating factors — Home of victim or any other person — Record of previous convictions — Substantial harm, injury, loss or damage — Victim impact statement SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Form 1 offences — Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing — Quasi custody SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Mental illness Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal) Violence Act 2007 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 Mandranis v The Queen [2021] NSWCCA 97 R v Millwood [2012] NSWCCA 2 R v Pullen [2018] NSWCCA 264 R v Thomas [2007] NSWCCA 269 Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) Timothy James (aka Timothy James Smith)(Offender) Representation: Ms M Wankell (Solicitor, Office of the Director of Public Prosecutions) Ms H Webb (Solicitor, Aboriginal Legal Service) File Number(s): 2020/146162 Judgment 1. Forty four year old Timothy James, as he is now known, pleaded guilty to one count of aggravated break and enter and commit a serious indictable offence, namely intimidation in company, contrary to s 112(2) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. 2. He pleaded guilty in circumstances justifying a 10% discount on any term of imprisonment. 3. It is conceded that the section 5 threshold has been crossed, and that a term of imprisonment should be imposed. 4. The sentencing process is carried out in accordance with the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, and bearing in mind the maximum penalty and the standard non-parole period as yardsticks in the sentencing process. 5. There is also a Form 1 offence of intimidation (s 13(1) Crimes (Domestic and Personal) Violence Act 2007) to be taken into account in the way suggested by the Chief Justice in the guideline judgment on these matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146). The Form 1 matter is intimately involved in the facts of the principal offence, as will be clear when I recount the facts. 6. There is also a charge of possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985, relating to two grams of cannabis found in his possession upon his arrest, to be dealt with on a s 166 Certificate. 7. He was arrested on 16 May 2020 and was in custody for nine months and nine days until being released on bail to go into quasi custody conditions at a residential rehabilitation centre. Clearly the time spent in custody is a matter to be taken into account in setting the commencement date of any sentence, or the length of any sentence. 8. The co-offenders were Lucky Anthony and Jack Brown. 9. Jack Brown has pleaded not guilty and a bench warrant has been issued for his arrest. 10. Lucky Anthony was sentenced by Priestley DCJ on 20 July 2021. In short, her criminal record was a little less serious but as Ms Webb puts, her involvement in the offence was slightly more elevated. Priestley DCJ took the view that a starting point of two and a half years before a discount of 25% would be appropriate and taking into the account the eight months that she had served in custody, a community corrections order of 14 months was imposed, having in mind the provisions of s 66 of the Crimes (Sentencing Procedure) Act 1999 and what had been said by Simpson J in Mandranis v The Queen [2021] NSWCCA 97. 11. The facts show that the offender was a resident of Grafton, and friends with Jack Brown and Lucky Anthony. In May 2020, Brown and were chasing a repayment of a $3,000 debt, allegedly owed to Brown by a person named Karn Kennedy. They were trying to find Kennedy's friend Alyssa Sagaris, who they believed would lead them to Kennedy and whom Brown held responsible vouching for Kennedy's ability to repay. 12. The three of them drove to Coffs Harbour on the morning of 14 May 2020, and they went to a unit complex. They knew Sagaris was living at the complex, but they did not know where. They got through the front security door by unknown means, and they knocked and banged on various doors looking for Sagaris. They knocked on her unit, but she did not answer the knocks at the door and she rang police. 13. The three of them then reached the unit of Samantha Brown( 36) and Daniel O'Dwyer, (33) The pair were watching television, when they heard a loud knocking at their door. They ignored it. The knocking continued and ultimately, as a result of the loud banging, the front door was opened as the force of the banging had broken the lock. 14. Brown went in first, followed by the offender. They went straight up to O'Dwyer, stood either side of him, and Brown said, 'Where's Alyssa?", to which O'Dwyer responded, "I don't know what you're talking about". Brown pulled from his pocket a short baton which was extendable, and threatened O'Dwyer with it, demanding to know where Alyssa was and demanding money. The offender saw the baton produced and used in this way. 15. Brown then went to search the unit for Sagaris, taking the baton with him. The offender remained next to the occupants. Anthony then entered the unit and she went up to the couple and held out a phone with a picture of Sagaris on it for them to see. O'Dwyer said he didn't know her and that is the subject of the Form 1 offence, namely intimidation of Samantha Brown. 16. At this point Brown said, "We are at the wrong place, sorry," and "next time open the fucking door quicker." 17. The three of them left the unit, and rummaged through the letter boxes of the unit complex looking for mail addressed to Sagaris. They were seen doing this. 18. The Agreed Facts conclude by asserting that the offender was a party to a joint criminal enterprise with Brown and Anthony to intimidate Sagaris by going to the unit complex and finding and intimidating her into helping them to find Kennedy. Brown was responsible for banging or knocking on the door so robustly that it broke open. The offender did not foresee the possibility that Brown would have concealed in his pocket an extendable baton when he entered the unit, but once inside the unit he became aware of this and he entered and remained in the unit in order to assist Brown and Anthony if required. It is conceded the offender himself said nothing to the occupants. 19. The offender was arrested on 16 May and exercised his right to silence. 20. The offender has a lengthy criminal history extending over some 16 pages. He had been released to parole on 3 September 2019. He has a number of terms of full-time custody on his record, including * A term of imprisonment of four months for stalk and intimidate commencing December 2018; * A term of imprisonment of 12 months, with a non-parole period of six months for assault occasioning actual bodily harm commencing March 2019; * A term of imprisonment of nine months with a non-parole period of six months commencing June 2017 for various fraud offences and possession of drugs; * A term of imprisonment of 18 months with a non-parole period of six month commencing February 2015, for assault occasioning, assault and break and enter; and * A number of earlier sentences, following his first admission into custody in September 2013. 1. His record in custody in recent times, was the subject of cross-examination by the Crown. The record prime facie suggests an offence of possess drug for which he had three days in the cells. His evidence on oath before me today was that he was not possessing any drug, it was rather some form of assault and he spoke to his the correctives officers and did not actually serve the three days in the cells because he had not committed any offence, notwithstanding what the record seems to suggest, and I accept his evidence on that explanation. 2. There is a Victim's Impact Statement from Samantha Brown which is taken into account in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. The statement describes the significant ongoing effects on the lady as a result of this offence, particularly against the difficult subjective circumstances that she had undergone recently as a result of three of her friends dying in December 2019 in the New Zealand volcano explosion. 3. The subjective case is set out in an affidavit of Mr James affirming the truth of the history given to Chris North, psychologist, and set out in her lengthy report. He did nine weeks of a 12-week residential rehabilitation program and his mental health deteriorated, and after a self-harm attempt, he left on 28 April 2021. While he was there he did group programs every day and he was under fairly strict bail conditions. He has seen his GP for a review of his Mental Health Care Plan and he has an appointment with a psychiatrist next month in Grafton. He is willing to undertake any mental health treatment program which may be recommended by his medical practitioners or by Community Corrections. 4. He is attempting to engage with Narcotics Anonymous in Grafton, and he is actively engaged in getting a painting business established. He has obtained a contractor's licence and hopes to be able to employ people as well. 5. He has also done a traffic control work training card and he volunteers with the Australian Community Care network in Grafton. 6. His history to Ms North led her to the view that he was under the influence of alcohol, cannabis and amphetamines at the time of the offence. He acknowledged being in the wrong place at the wrong time, and he accepted responsibility for his involvement, stating he had put himself in that situation. 7. He recognised his antisocial peer acquaintances and substance use issues were the main risk factors for the offence. 8. He had a dysfunctional family background; with an abusive father, and ongoing violence throughout his youth. He is of mixed heritage with his mother's side of the family identifying as Aboriginal. 9. He was diagnosed with ADHD and prescribed dexamphetamines in the past. 10. A significant incident, ironically, because it seems that much of his mental health issues relate to a traumatic home invasion in 2004, when he was stabbed by a stranger who had broken into his house while he was there with his six year old son. He had eight surgeries, having lost his spleen and required microsurgery on two further occasions. He lost his business as a result and he engaged with a psychiatrist and a psychologist for treatment for PTSD for two years after this incident. 11. There are also symptoms of depression and anxiety from his apparent in his twenties and there were up to four suicide attempts, a history of drug abuse relating to cannabis and amphetamines and particularly escalating after the 2004 incident. 12. He did not present to Ms North as having active symptoms of PTSD or depression at the time of the assessment. She recommended a mental health and substance abuse treatment program, treatment by a psychiatrist and a psychologist, as well as substance use treatment to prevent relapse. 13. In addition to being adopted by the offender, his history is supported by contemporaneous documents from the Maayu Mali rehabilitation program, and his employment provider in the Grafton area. 14. There is not a lot in contest between the helpful written submissions prepared by the Crown and Ms Webb for the offender. I accept that the offending is towards the mid-range of objective seriousness for these types of offences. 15. The fact that the offence was committed at the home of the victim is an aggravating factor, and his record of previous convictions is also an aggravating factor. 16. While the Crown submits that the offence involved the threatened use of a weapon, it was not this offender that threatened to use the weapon, although of course, he is to be sentenced on the basis of his participation in the joint criminal enterprise, which did involve the threatened use of a weapon. 17. The emotional harm caused to the victim was in my view substantial, and thus an aggravating factor as the Crown submits. The factors related to assessing his culpability and objective seriousness are that it was a joint criminal enterprise, his particular role, and his conduct was in driving the offenders to Coffs Harbour. It is accepted that at some stage he became a party to an agreement to engage in the intimidation. He was not aware that Brown was armed with a weapon. He did not speak to the victims, although he remained standing next to them while Brown searched the unit. I accept that the evidence does not show that the three of them planned to conduct a break and enter offence, other than perhaps very shortly before the attempts to break into the unit occurred. So, to a degree, it was impulsive and not sophisticated offending and it was of short duration. 18. In terms of mitigating factors, he has pleaded guilty and his expressions of remorse are noted. His prospects of rehabilitation I think are reasonable, having regard to his willingness to accept treatment, in respect of his mental heath issues the steps that he has taken while on bail to access that treatment, and his willingness to accept treatment for drug and alcohol issues, his abstention from drugs and alcohol and his lack of reoffending in the relatively short period since his release, as well as the meaningful steps that he has taken to improve his employment prospects. 19. I accept, as the Crown says, that there is little to show that his mental illness or condition contributed to the offence in any material way, so that the general and specific deterrence and denunciation are still important factors in the sentencing process. However, his mental illness and the interaction of that with his drug and alcohol addiction, are subjective features that are relevant to the assessment of his moral culpability and the consideration of his subjective case. 20. As I have indicated, when considering parity, there is on balance, no great difference between Lucky Anthony and this offender, as submitted by Ms Webb. 21. I accept that his moral culpability is reduced to a certain extent by his background of deprivation and disadvantage, and that is taken into account in the way suggested in Bugmy v The Queen (2013) 249 CLR 571 and R v Millwood [2012] NSWCCA 2.. 22. I accept that the period in residential rehabilitation qualifies as quasi custody within the meaning of the cases that have considered that proposition. 23. I take into account what is put in relation to the sentencing in R v Pullen [2018] NSWCCA 264, and the purposes of sentencing together with s 66(3) of the Crime (Sentencing Procedure) Act 1999. 24. The starting point, in my view, for the term of imprisonment is the same as that adopted by Priestley DCJ for Lucky Anthony before the 25% discount in that case. After the 10% discount applicable in the present case and taking into account the period already served, a term of imprisonment of 18 months should be imposed. Taking into account community safety, for which there is no evidence that this offender presents a risk to community safety at present, I am of the view that the sentence should be served by way of intensive corrections order. 25. The orders I make are: 1. The offender is convicted of the offence. 2. Taking into account the Form 1 matter and the 10% discount for the plea of guilty, I impose a sentence of imprisonment of of 18 months 3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today. 4. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS 1. You must not commit any offence. 2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance. ADDITIONAL CONDITIONS 1. Abstain from the consumption of alcohol and illicit drugs. 2. Undertake mental health treatment plan as directed by Community Corrections or prescribed by his medical practitioner. 3. The offender is to report to the OIC at the Grafton office of CCS by 5pm, 1 September 2021. 1. In relation to the matter on the s 166 certificate, sequence 2 of possess prohibited drug 1. Pursuant to s 10A of Crimes (Sentencing Procedure) Act 1999, the offender is convicted of the offence and I impose no further penalty. ********** 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: 08 March 2022