District Court New South Wales Medium Neutral Citation: R v Matthew Schuman [2022] NSWDC 165 Hearing dates: 11 February 2022 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Criminal Before: Bright DCJ Decision: Aggregate sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years and 8 months. Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Larceny CRIME — Domestic violence — Stalking or intimidation Surveillance Devices Act — Possess surveillance device intending unlawful use — Use listening device to record a conversation, not being a party to that conversation Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Surveillance Devices Act 2007 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1 DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 Bugmy v R [2013] HCA Category: Sentence Parties: Regina (Crown) Matthew Schuman (Defendant) Representation: Solicitors: Mr S Allan (ODPP) Ms A Qvist (Defendant) File Number(s): 2020/00201115 Publication restriction: Nil Judgment 1. Matthew Schuman, 36 years of age, appears before the Gosford District Court for sentence in relation to the following six offences: Sequence 32, possess surveillance device intending unlawful use, the victim being AB, the date of the offence being 3 May 2013, an offence pursuant to s 13(1)(c), Surveillance Devices Act 2007. The maximum prescribed penalty for that offence is five years imprisonment and/or a fine. There is no prescribed standard non-parole period. Sequence 27, enter dwelling with intent to commit a serious indictable offence (larceny). The victim being OG, the date of the offence being 18 June 2014, an offence pursuant to s 111(1), Crimes Act. The maximum prescribed penalty for that offence is 10 years imprisonment. There is no standard non-parole period prescribed. Sequence 33, use listening device to record a conversation, not being a party to that conversation, date of the offence, between 13 August 2014 and 8 September 2014, the victim being OG, an offence pursuant to s 7(1)(a), Surveillance Devices Act. The maximum prescribed penalty for that offence is five years imprisonment and/or a fine. There is no prescribed standard non-parole period. Sequence 28, stalk or intimidate intending to cause a person to fear physical or mental harm, date of the offence 27 February 2015, the victim being JT, an offence pursuant to s 13(a), Crimes (Domestic and Personal Violence) Act. The maximum prescribed penalty for that offence is five years imprisonment and/or a fine. There is no prescribed standard non-parole period. Sequence 3, stalk or intimidate, intending to cause person to fear physical or mental harm, the date of the offence being between 20 March 2020 and 4 July 2020, the victim being JM, an offence pursuant to s 13(1), Crimes (Domestic and Personal Violence) Act. The maximum prescribed penalty for that offence is five years imprisonment or a fine. There is no prescribed standard non-parole period. Sequence 24, use tracking device to determine the location of an object, the date of the offence being between 14 April 2020 and 21 June 2020, the victim being JM, an offence pursuant to s 9(1)(b), Surveillance Devices Act. The maximum prescribed penalty for that offence is five years imprisonment and/or a fine. There is no prescribed standard non-parole period. Form 1 offences 1. There are two Form 1 documents to be taken into account. 2. Firstly, a Form 1 attaching to sequence 3, containing two further offences as follows. Sequence 4, destroy or damage property, an offence pursuant to s 195(1)(a), Crimes Act, the victim being JM. The maximum prescribed penalty for that offence is five years when dealt with on an indictment and two years if dealt with summarily. Sequence 29, possess identity information to commit an indictable offence, the victim being JM, an offence pursuant to s 192K, Crimes Act. The maximum prescribed penalty when dealt with on indictment is seven years; when dealt with summarily is two years. 1. The second Form 1 relates to sequence 27 and contains one further offence. Sequence 34, steal property in dwelling, relating to the victim OG, an offence pursuant to s 148, Crimes Act. The maximum prescribed penalty for that offence is seven years imprisonment when dealt with on indictment, or two years imprisonment if dealt with summarily. 1. The offender is also being sentenced for one further offence on a s 166 certificate as follows. Sequence 16, contravene apprehended violence order, the victim being JM, an offence pursuant to s 14(1), Crimes (Domestic and Personal Violence) Act. The maximum prescribed penalty for that offence is two years imprisonment. It is dealt with summarily. 1. The offender pleaded guilty to the offences on 10 September 2021. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%. 2. The offender has been in custody since 7 July 2020. The sentences imposed today will be backdated to that date. The Agreed Facts 1. The victims in the matter are JM, AB, JT and OG. Each victim was previously in a domestic relationship with the offender. 2. JM and the offender were previously in a four year domestic relationship. This relationship ended in October 2019. Following the separation, the victim JM moved to her parent's residence where she resided with her parents and her son. The premises are a dwelling home surrounded by open grass lawns. There are no fences or gates to the property. 3. In February 2020 JM purchased a grey Nissan X-Trail vehicle. The offender has not had lawful access to that vehicle. 4. On 11 March 2020 the offender purchased a S300 SuperKit Long Life Magnetic GPS tracking device from an online store, Spy City, also trading as Security and Surveillance Solutions. He paid $1,194.50 for the device on a three month contract using his Visa card. 5. On 13 March 2020 the offender purchased an S30 Pro Magnetic GPS tracker online from Spy City. He paid $678.50 for the device on a three month contract using his Visa card. As part of the purchases the offender was granted three months access to the web platform Locate GPS, an application Wialon. This allowed the offender to track the two devices remotely. Witness Renee Beaton described the offender as using the tracking devices to follow AB and JT. Sequence 32, possess listening device, s 13(1)(c), Surveillance Devices Act 1. On 3 May 2013 a neighbour of AB in Moolcha Street, Mayfield, was alerted to the presence of a male down the side of AB's house. The neighbour called out to the male, asking what the man was doing and the man fled. A small grey coloured box was located on the road that the man had dropped. This was provided to AB, who provided it to police. The device was examined and found to be a contact listening device that amplifies sound, allowing a person to listen to a conversation occurring inside a premise when placed on a window. Further examination revealed DNA on the device that was matched to the offender. The offences in relation to OG Sequence 33, used listening device to record private conversations, s 7(1)(a), Surveillance Devices Act. Sequence 27, enter a dwelling with intent to commit a serious indictable offence (larceny) s 111(1), Crimes Act, and Form 1, sequence 34, steal property from dwelling, s 148, Crimes Act. 1. OG was in a domestic relationship with the offender and approximately two months after that relationship ended, around June 2014, she returned home one evening to discover her bedroom light was on and her bedroom door unlocked with no sign of forced entry. 2. She identified that a number of items had been stolen from her residence including a white Akribos watch. She made a report to the police relating to the incident. 3. Witness Renee Beaton made a statement to police indicating that she had been in a relationship with the offender during the period 2014. During the course of that relationship the offender showed her a number of items the offender stated he had stolen from the house of an ex-partner. These items match those items stolen from OG's residence, including the white Akribos watch. 4. At a later point in time when Renee Beaton was moving to a new house, she located the white Akribos watch along with a listening device in a plastic bag, which she provided to police. Renee Beaton stated that she had seen the offender using the listening device. 5. On analysis of the listening device, recordings were located of OG engaged in private conversations at a time after her relationship with the offender had concluded. The offender was not party to these conversations and had no authority to record these conversations. OG was not aware that the offender was in her vicinity while she was conducting these conversations. 6. It is agreed between the parties that this listening device was on the property of the victim OG in close enough proximity to her to record her conversations, but the precise location of the item on the property cannot be agreed. For the purposes of sentencing, it cannot be established beyond reasonable doubt that the listening device was inside the home. Offending in relation to JT Sequence 28, stalking or intimidation with intent to cause fear of physical or mental harm. 1. JT was previously in a domestic relationship with the offender. Following the breakdown of the relationship an incident occurred on 27 February 2015, where a silver Ford Falcon was repeatedly driving past her residence, shining lights into the residence and yelling out. 2. I note that it cannot be established beyond reasonable doubt that this conduct is conduct of this offender. 3. A short time later the power went off to her premises and ultimately, she discovered that someone had removed a fuse from the power box. Witness Renee Beaton describes an incident in late 2014 or early 2015 where she was in a vehicle with the offender. The offender told her to drive to JT's residence. The offender then alighted from the vehicle and went up to the house. The offender returned to the vehicle with a fuse and indicated to Renee Beaton that he had taken it from the fuse box of JT's residence. Offending in relation to the victim JM Sequence 29, possess identity information to commit an indictable offence, the date of the offence 23 February 2020. 1. A review of the offender's Cellbrite reveals 10 images of JM's identification cards and resume taken in a vehicle of JM. The offender is wearing black gloves and the identification cards were in a beige wallet. The seat of the vehicle can be seen in the images and with distinctive stains. The photos were taken in furtherance of the offender's stalking behaviour. 2. Photographs of JM's vehicle at the time were later taken but show identical stains to those in the images taken by the offender. On the night the images were taken JM's vehicle and JM were at her residence. The offender did not have permission to be on the premises or to be in the vehicle. Sequence 3, stalking or intimidating with intent to cause fear of physical or mental harm, s 13(1), Crimes (Domestic and Personal Violence) Act. Sequence 4, destroy or damage property. 1. On 21 March 2020 the victim drove her grey Nissan X-Trail to visit her friend in Stockton Street, Morisset. Upon arriving the victim, JM, parked her vehicle in the shared parking area of the unit complex. About 9pm that evening an unknown person knocked on the door of the residence. However, upon answering the door there was no person there. 2. At 10.18pm the same evening, the victim received a phone call on a mobile telephone from a telephone number 49731654. Upon answering the victim heard a computerised message that said, "You've moved on quickly, I hope you're happy." 3. About 11.18pm the victim received another phone call from the same number with the same pre-recorded message. The following morning the victim saw that her vehicle had brake fluid poured over the vehicle. The victim reported the matter to police. 4. The offender told police that he had flown into Sydney Airport that evening and drove home where he went to bed. He denied going to the Morisset area that evening. 5. Call charge records on the mobile phone used by the offender show that it was active in the state of Victoria at 2.36pm on 21 March 2020. The records indicate that the phone was next active at Mascot at 4.03pm, the same day. Cell tower data indicates that the offender's mobile phone was active in the Morisset, Wyee, Dora Creek and Mount Nellinda areas between 8.25pm and 10.40pm that same day. 6. CLI details indicate the phone number 49371654 is attached to a Telstra pay phone situated in the vicinity of 46 Newcastle Street, Morisset. This pay phone is approximately 900 metres from where the victim was staying. Incident 2, 2 April 2020 1. About 8.07pm on 2 April 2020 the victim was at home alone when she heard a knock at the door. At this time she also received a notification of a CCTV motion detection activation on her security system. The victim reviewed this footage and saw a male running from her front door towards the roadway. Despite having his face obscured the male ran in a manner that further obscured his face from the camera. The Crown relies on this CCTV. 2. Due to the time, the infrared light ring on the camera lit up. The male was described as wearing a dark hooded jacket with hood on and dark jeans. These items were subsequently located at the residence of the offender. Police did attend, however the male could not be located. Incident 3, 25 April 2020 1. On the evening of 25 April 2020, the victim as asleep at home. The following day the victim reviewed footage captured on her surveillance camera that was set up outside her bedroom window. The Crown relies on this CCTV. 2. The victim saw that at 10.51pm on 25 April 2020 a person was captured walking towards the camera that was directly outside her bedroom window. The person then turned around and walked towards the bushland at the rear of the property. Due to the time in the evening the infrared lighting ring on the camera lit up. 3. The person was wearing a large hooded jacket, dark pants with distinctive stitching, a facemask and gloves. These items were later found at the residence of the offender during the search warrant. 4. The victim contacted police who attended. However, the person was not located. At the relevant time the mobile phone of the offender was pinging off a cell tower in the vicinity of the victim's home. Incident 4, 29 April 2020 1. On 29 April 2020 the victim was at home with her son watching TV in her bedroom. The victim later reviewed her CCTV system and saw a motion detection activation on the camera outside her bedroom. The Crown relies on this CCTV. 2. The footage showed a person standing outside her bedroom window at 7.40pm on 29 April 2020. The person stood there for approximately one minute before walking towards the bushland at the rear of the property. As it was dark outside the infrared lighting ring on the camera lit up. The person was wearing a large hooded jacket, dark pants, gloves and facemask. The jacket had a distinctive toggle and the jeans had distinctive stitching and label. These items, including the facemask were located at the residence of the offender during a search warrant. 3. Police made attempts to speak with the offender in relation to this incident, however, he refused to make any comment based on legal advice. On that day the offender received a message from his neighbour Schelling, who indicated a parcel had arrived for him. The offender indicated he would be home around 7.30. Schelling indicated she would place the parcel between the bins. At the relevant time the mobile phone of the offender was pinging off a cell tower in the vicinity of the victim's address. Incident 5, 6 May 2020 1. About 7.50pm on 6 May 2020 the victim's CCTV system captured a person crouched down in her carport. The person appeared to be looking under a vehicle that was parked in the carport at the victim's residence. The Crown relies on this CCTV. The person was described as wearing all dark clothing including a hooded jacket, pants, gloves and shoes. These items were subsequently located at the residence of the offender during the search warrant. 2. The mobile phone of the offender was pinging off towers in the vicinity of the victim's address at the relevant time. Police attended a short time later, however, after a search of a property the person could not be located. Apprehended Domestic Violence Order, 13 May 2020 1. Due to the above incidents police applied for an Apprehended Violence Order to protect the victim. This Apprehended Violence Order was served on the offender on 13 May 2020 with the following conditions: "1. You must not do any of the following to JM or anyone she has a domestic relationship with; (a) assault or threaten her; (b) stalk, harass or intimidate her, and (c) intentionally or recklessly destroy or damage property that belongs to or is in the possession of JM. 2. You must not approach JM or contact her in any way unless the contact is through a lawyer." Incident 6, 12 June 2020 On a s 166 Certificate as a related matter, sequence 16, contravene prohibition or restriction in an apprehended violence order (domestic) 1. About 10.15pm on 12 June 2020 the victim was at home with her parents when her mother alerted her to possible movement outside. The victim checked her CCTV system and saw a motion detection activation had captured a person crawling up the grass hill beside the driveway towards the carport where the victim's vehicle was parked. The Crown relies on this CCTV. 2. The person shown was wearing a large hooded jacket, dark pants and gloves. These items were located at the premises of the offender during the search warrant. 3. Between 9.42 and 10.43pm the mobile phone of the offender was pinging off the Erina and Mount Mouat cell phone towers in the vicinity of the victim's address. A short time later the same person was shown crawling back down the hill from the vicinity of the carport towards Noorumba Road. 4. The victim contacted police who attended a short time later and with the assistance of the New South Wales Police dog searched the property. The New South Wales Police dog tracked a scent around both sides of the home, however, no person was located. GPS device located on the victim's car, 20 June 2020 1. About 2.05pm on 20 June 2020 the victim engaged the services of Charles Carter who works for a company called "Bug Sweeper". The company provides a service that scans rooms and vehicles for tracking devices. 2. Moments after commencing the search of the victim's grey Nissan X-Trail vehicle he located a small magnetic black GPS tracking device attached to the rear metal bumper bar. Police and Crime Scene officers later attended where the device was fingerprinted. The SIM card was also removed from the device. 3. The GPS tracking device and SIM card were seized by police for further forensic analysis. This is the same device and SIM card as purchased by the offender on 13 March 2020. Incident 7, 26 June 2020 On a s 166 Certificate as a related offence, sequence 16, contravene prohibition or restriction in an apprehended violence order (domestic) 1. About 7.20pm on 26 June 2020 the victim was at home when she received a notification of a motion camera activation on her home surveillance cameras. The victim immediately checked her CCTV system and saw a person crawling up the front yard towards the carport where her vehicle was parked. The Crown relies on this CCTV. 2. The victim contacted police who attended a short time later, however the person could not be located. Upon a further review of the CCTV footage it was established that the person had walked through the bushland at the rear of the dwelling before they walked back down the front hill towards Noorumba Road. The person was wearing a large hooded jacket, dark pants, gloves and facemask. These items were subsequently located at the residence of the offender during the search warrant. 3. On this day the offender conducted internet searches for the following matters: Wi-Fi jammer, IR jammer, Arlo camera frequency, this is the brand of CCTV cameras at the house of the victim. Incident 8, 3 July 2020 On a s 166 Certificate as a related matter, sequences 16, contravene prohibition or restriction in an apprehended violence order (domestic) 1. About 8.20pm on 3 July 2020 the victim was at home when she received a notification of a motion camera activation on her home surveillance cameras. The victim immediately checked her CCTV system and saw a person was shown crawling up the front yard towards the carport where her vehicle was parked. 2. The Crown relies on this CCTV. The person was wearing a large hooded jacket, dark pants, gloves and facemask. The jacket, pants and shoes were subsequently located during the search warrant at the residence of the offender. The victim contacted police who attended a short time later and conducted an extensive search, however, the person could not be located. 3. Following the review of additional CCTV footage, it was established that the person was captured walking around the bushland at the rear of the dwelling prior to leaving the property and walking up the driveway of the victim's home. 4. The offender was aware of the motion activation cameras surrounding the premises, with some of these cameras illuminating upon activation. The offender used a disguise to cover his face and stuffing an object down his oversized jacket to alter his body shape. Search warrants, Spy City 1. Police obtained call charge records for the mobile phone used by the offender. A search of these records indicated four separate occasions where the offender's service was used to communicate with another mobile phone. These calls were dated 19 March 2020, 26 March 2020, 2 April 2020 and 6 April 2020. This service is used by Bill Sayed from Spy City. 2. On 6 July 2020 police executed a search warrant at Spy City where they were provided with documentation in respect of the two tracking devices purchased by the offender. These documents included invoices, payment details and delivery instructions. Police were also able to view the tracking information held on "Locate GPS", a web platform for each of the two tracking devices. Both devices had significant pings at the victim's home address. Search warrant executed at the offender's address 1. On 7 July 2020 police applied for and were granted a search warrant for the offender's address in Green Point. 2. About 5.55pm on the same date, police attended the address and the offender was placed under arrest. Police then commenced a search of the offender's premises. 3. Police searched a blue Mazda 323 parked in the garage and located a 4. T-shirt with two eyeholes cut out and tied as a makeshift mask, a black jacket with distinctive zippers matching the CCTV footage, a listening device in the breast pocket of the black jacket, black jeans, a S300 GPS tracking device and a handheld sound amplifier listening device with headphones. 5. The offender initially claimed that he had not used the vehicle for a week. However, later agreed to driving the vehicle on the occasions during the relevant period. Throughout the premises police located other items of interest including a S300 SuperKit device purchased on 13 March 2020, an additional GPS tracker, a St George Visa card that was used to purchase the two tracking devices, mobile phones, tablets, hard drives and a Dictaphone. 6. Following the conclusion of the search warrant, the offender was taken to Gosford Police Station. He participated in a record of interview with police where he denied the allegations. Sequences 24, use tracking device to find the location of an object, s 9(1)(b), Surveillance Devices Act 1. Investigators conducted a Cellbrite examination of the mobile phone belonging to the offender. A reveal of the search history identified five separate addresses searched on different dates. Police then reviewed the tracking information for the tracking device and saw corresponding data for the same days of the search history, whereby the tracker was parked at the same addresses that were searched for by the offender. 2. The offender was actively reviewing the tracking data for the device to locate the victim. Investigators also reviewed the tracking information for 23 May 2020. 3. On 23 May 2020 the victim was visiting a friend at an address in Jacana Avenue, Narara. The offender arrives at this address and changes the tracking device over on the victim's car. A second device was activated in the vicinity of Jarrett Street, Wyoming with a hundred per cent battery status. This device travelled north along the M1 Motorway and stopped in the vicinity of Warabrook Boulevarde, Warabrook. Call charge records for the offender reflect these movements. On the same date the first device was active as it travelled from Noorumba Road, Springfield to various locations on the Central Coast. 4. At 6.33pm this device arrived in the vicinity of 3 Jacana Avenue, Narara. This is indicative of the victim's movements for this day. 5. At 7.06pm the second device was activated as travelling south along the M1 Motorway and arrived outside the victim's friend's home in Jacana Avenue, Narara. The offender's call charge records also reflect these movements. 6. At 8.01pm the first device was deactivated in the bushland behind a home in Jacana Avenue, Narara and at the time the battery status was 18%. This device remained inactive from this date until 12 June 2020. 7. At about 8.30pm the victim was leaving that address where she saw a neighbour closing all her windows and doors. It was later established that this neighbour had seen an unknown person walking around in the front yard. 8. The second device remained active with daily movements between 23 May 2020 and 12 June 2020. The data for this period was indicative of the movements of the victim. The offender performed a change of devices on the victim's vehicles in Jacana Avenue, Narara at 8pm on 23 May 2020. 9. At 4.19pm on 12 June 2020 the first device was reactivated as it was travelling north along the Pacific Highway, Mount Colah. The device travelled north along the M1 Motorway and parked in Koolang Road, Green Point at 5.09pm. The offender's call charge records reflect these movements. 10. About 7.21pm on 12 June 2020 the second device travelled along Wells Street, Springfield and continued north along the M1 Motorway where the device was deactivated at 8am in the vicinity of Morisset. The battery status for the device at this time was 0%. This was the last time this device was activated. 11. At about 9.42pm the second device was reactivated. It travelled north-east along Althorp Street, North Gosford. The device continued to the vicinity of Noorumba Road, Springfield where it arrived at 10.11pm, that is, the victim's address. At this time the battery status for the device was a 100%. 12. This device remained active with daily movements between 13 April and 19 June 2020. The data for this period was indicative of the victim's movements. The offender performed a change of devices on the victim's vehicle at her home about 10.11pm on 12 June 2020. 13. Those Agreed Facts clearly disclose very serious criminality. 14. In relation to the use of surveillance devices and listening devices, the Court must impose stern sentences to discourage other members of the community from acting in this manner. The use of such devices results in a very significant intrusion into an individual's life and results in very grave breaches of privacy. 15. Surveillance devices are now readily available to purchase within the community. They are easy to install and use. Usually, it is extremely difficult to detect their presence and use. For these reasons, it is important that the Courts impose sentences to denounce, punish and discourage criminal use of such devices. 16. When such devices are used after the breakdown of a domestic relationship and in conjunction with other intimidatory conduct, not only is there a grave breach of privacy, but there are often far reaching consequences for the victims. 17. This is a very serious example of criminal offending. The Courts must send a clear message, not only to this offender, but the whole community that such behaviour will simply not be tolerated within the community. Every individual within the community has the fundamental right to freedom, privacy and to feel safe and secure. An assessment of the objective seriousness of each offence 1. In assessing the objective seriousness of sequence 32, the offence of possess surveillance device intending unlawful use, I have taken into account the following factors: 1. I am satisfied the offender's intention was to use the device to listen to private conversations of his former partner without her consent. 2. The offending occurred at the home of the victim. The device when placed on a window amplifies sound. 3. The victim was a former partner of the offender. 1. Having regard to those factors, I assess the objective seriousness of this offence as just in the middle of the range. An important factor in that assessment is that the offending occurred following a relationship breakdown. 2. In assessing the objective seriousness of sequence 27, enter dwelling with intent to commit a serious indictable offence (stealing), I have taken into account the following factors: 1. The offending occurred in the home of the victim. 2. The victim was a former partner of the offender. 3. The serious indictable offence that the offender intended to commit was stealing, recognising that it carries a maximum prescribed penalty of seven years. 1. Having regard to those factors, I assess the objective seriousness of this offence as in the middle of the range. Again, an important factor in that assessment is that the offending occurred following a relationship breakdown. 2. In assessing the objective seriousness of sequence 33, use listening device to record a conversation not being a party to that conversation, I have taken into account the following factors: 1. The victim was a former partner of the offender. 2. The offending occurred between 13 August 2014 and 8 September 2014. 3. The listening device was on the property of the victim in close enough proximity to record her private conversations. 1. Having regard to those factors, I assess the objective seriousness of this offence as being in the middle of the range. Again, an important factor in that assessment is that the offending occurred following a relationship breakdown. 2. In assessing the objective seriousness of sequence 28, stalk or intimidate intending to cause a person to fear physical or mental harm, I have taken into account the following factors: 1. The offence was committed at the home of the victim. 2. The victim was a former partner of the offender. 3. The conduct constituting the intimidation was the removal of a fuse from the power box so the power would go off. 4. The intention of the offender at the time was to cause the victim to fear physical or mental harm. 1. Having regard to those factors, I assess the objective seriousness of this offence as being below the middle of the range. 2. In assessing the objective seriousness of sequence 3, stalk or intimidate, intending to cause a person to fear physical or mental harm, I have taken into account the following factors. 1. The offending occurred at the victim's home and other places. 2. The victim was a former partner of the offender. 3. The offending occurred over a three month period, between 20 March 2020 and 4 July 2020. 4. The stalking and intimidatory conduct was as follows: 1. Incident 1. The offender poured brake fluid over the victim's vehicle. 2. Incident 2. The offender attended the victim's front door at approximately 8pm on 2 April 2020, knocking on the door and then running away. 3. Incident 3. On 25 April 2020 at a time when the victim was asleep, the offender was walking directly outside her bedroom window and looking in her window. 4. Incident 4. On 29 April 2020 at a time when the victim was home with her son, the offender was standing on the outside of her bedroom window. 5. Incident 5. On 6 May 2020 the offender was shown crouching down in the victim's carport and had appeared to be looking under her vehicle. 6. Incident 6. On 12 June 2020 at approximately 10.15pm when the victim was at home with her mother, the offender was shown crawling up a grass hill beside the driveway towards the carport where the victim's vehicle was parked. He is then shown crawling down the hill. I note that on 20 June 2020 a tracking device was located attached to the victim's vehicle, that device having been purchased on 13 March 2020. 1. Incident 7. On 20 June 2020 the victim was at home when at approximately 7.20pm the offender was shown crawling up the front yard towards her carport. 2. Incident 8, 3 July 2020, the victim was at home when at approximately 8.20pm the offender is shown crawling up towards her vehicle. The Court viewed the CCTV footage of a number of those events during the hearing of the sentence proceedings. 1. At the time of his attendance at the victim's property the offender was seen wearing gloves, masks, hats and darkened clothing to prevent his identity being disclosed. I am satisfied that such conduct demonstrates that the offending was planned. 1. By his plea of guilty he has admitted his intention was to cause the victim to fear physical or mental harm. 1. Having regard to those factors, I assess the objective seriousness of this offence as being well above the middle of the range. Again, an important factor in this assessment is that the offending occurred following a relationship breakdown. 2. In assessing the objective seriousness of sequence 24, use a tracking device to determine the location of an object, I have taken into account the following factors: 1. The object that the offender was seeking to determine the geographical location of was a motor vehicle belonging to the victim, JM. 2. The victim was the former partner of the offender. 3. The offending occurred between 4 April 2020 and 21 June 2020, a period of just over two months. 4. The offender was actively reviewing the tracking device data to locate the victim's vehicle. Such data was indicative of the victim's movements. 5. The offender changed the tracking device on the vehicle on two occasions in circumstances where the battery was low. 1. Having regard to those factors, I assess the objective seriousness of this offence as being above the middle of the range. 2. In relation to the s 166 offence of contravene Apprehended Violence Order, that offence relates to three occasions when the offender contravened the order, by being present at the victim's premises. I assess the objective seriousness of that offence as being above the middle of the range. Aggravating factors 1. The Crown relied upon three aggravating factors, that a number of the offences were in the home of the victim, there were a series of criminal acts, and the offending was planned or organised. 2. In circumstances where I have taken those factors into account in assessing the objective seriousness of each offence where relevant, I do not propose to double count those factors. Victim impact statements 1. Victim impact statements from JM and OG were read during the sentence proceedings. JM outlined that the actions of the offender had impacted upon not only her but her parents, son, family and friends. She described that she became concerned that she was being stalked by the offender so she decided to place cameras at her parents property. Their property is located on acreage surrounded by bush. 2. She described that she became hypervigilant and: "We were living in fear. I was shaking all night, waiting for the next move (on the CCTV). We were all living on edge and we were extremely jumpy." 1. She outlined that after she first noticed the image of the offender on the CCTV her freedom was stolen, "simple tasks of everyday life became impossible." She began reporting the incidents to police. There was some delay in obtaining an AVO in circumstances where she was advised by police that the footage was not "good enough." 2. She described that she began seeing a psychologist. She then discovered the tracking device on her vehicle. She stated as follows: "As the footage became more and more regular my symptoms became more and more out of control. I was referred to a doctor that specialises in trauma. From there I began a long list of medication and alternate treatments." 1. She described her physical distress as follows: "The stress was the biggest factor causing me to clench and grind my teeth all the time. This created migraines, headaches, tiredness, shaking, sweating, pain my face, meltdowns, weight gain, skin rashes, hives, irrational thoughts, blurred vision, crying out of the blue, Graves Disease brought on by the stress of the stalking. The list goes on." 1. She described the extent of the impact upon her by detailing the steps she had to take in an effort to feel safe, as follows: "I then had 90 plus days of the following: 73 nights hanging sheets over the venetian blinds so he could not see in the bedroom. 73 mornings taking the sheets down off the blinds to have a sense of normality in the house during the day. 89 afternoons spent placing night trail cameras. 89 mornings taking them down, checking footage, charging and changing batteries and the storage on cameras, downloading footage. 13 trips to Bunnings to purchase padlocks for cameras, rope locks to attach them to trees; rechargeable batteries, set up extra spotlights for around the house. 32 days gardening and clearing bush with my parents to make it harder for him to hide; nine phone calls to triple-0; seven phone calls to Belmont Police, three emails to Belmont Police requesting a review of the incident at Morisset; countless hours brainstorming where to place more cameras; 36 phone conversations with Catholic Care who sent me a safe watch and checked in with me; 38 sessions with a psychologist; eight visits to the doctor to manage my post-traumatic stress disorder, grinding of teeth, sleepless nights, fatigue, Graves Disease. Three visits to Riverside Dental to have a splint made to stop the grinding of my teeth; 11 visits to Thrive Physio to help manage the pain in my face and neck from stress; four visits to neurologist Dr Crimmins with pain in my face; five sessions of Botox in my face; masseter muscles to relax the tension muscles causing headaches; six migraines from stress stopping me from attending work; six hours on the driveway with the bug sweeper and police the day the tracking device was found; two hours on the driveway in freezing cold while PolAir and police dogs searched our property." 1. In my view, this list starkly demonstrates the degree of harm caused to the victim as a result of the offending. She also described the loss of her friendships as a consequence of the impact of the offending upon her. She described that she is still suffering the effects of the offending and describes herself as "always on alert". 2. She concludes as follows: "Because of the offending's invasive nature I now have a fear that I've never had before, a genuine fear of going forward he will continue to trespass and target me. This feeling has come about as there was an AVO in place and he continued to target and track me. He breached the AVO. I have a right and a need to feel safe in society. This is not achievable if there are minimal consequences for his actions. I will always have a genuine fear built in that never existed previously due to what he has done. I will have ongoing treatment for years to come for the trauma caused by Matthew." 1. The victim impact statement prepared by OG described the emotional impact of the offending upon her in the following way: "Home is meant to be a safe place for everyone including myself, my pets, my family and my friends. After meeting you this wasn't the case anymore. The anxiety I had while home waiting for something new and awful to happen drove me into a depression which I had to seek medical treatment for. I was fearful of being home but you also made sure I was fearful of being out of home. All my safe places were violated by you. It took for me to get a new car and move house to feel like I had some sense of personal safety back." 1. She outlined that she stopped trusting people and isolated herself. She described that she still feels fear seven years after the offending. She described that she let her career go and suffered financial loss. She said: "I stopped believing in my abilities. It has taken years to gain some of that back." 1. Each of the victims has clearly suffered extensive and debilitating harm as a consequence of the offender's conduct. To engage in conduct that undermines a person's capacity to feel safe and secure is extremely grave offending. It strikes at the very heart of one's ability to function on a daily basis and can have long-lasting consequences for the physical, social and emotional wellbeing of the victims. 2. One of the purposes of sentencing is to recognise the harm done to the victims (see s 3A(g), Crimes(Sentencing Procedure)Act). The offender's subjective circumstances 1. The offender is now 36 years of age. 2. He has a criminal history, commencing in 2005 when he was dealt with for driving whilst disqualified and racing between vehicles. He was fined in respect of each offence. 3. In 2006 he was dealt with for a further offence of drive whilst disqualified and fined. 4. In 2009 he was dealt with for an offence of use carriage service to menace and harass. He was fined. 5. In 2015 he was dealt with for destroy or damage property and contravening an Apprehended Violence Order. He was fined in respect of each offence. 6. I am satisfied that his criminal history disentitles him to the leniency that would otherwise be available to a person of good character. 7. The offender gave evidence during the sentence proceedings. The following material was tendered on his behalf: Exhibit 1, a report of Anne Lucas, psychologist, 20 October 2021. Exhibit 2, a letter from Forensicare, 25 October 2021. Exhibit 3, a letter from Lee Knight, clinical nurse consultant, 1 December 2021. Exhibit 4, a letter from Jamie Schuman, the offender's brother, 25 November 2021. Exhibit 5, a certificate for completion of the Positive Lifestyles Program, 3 November 2021. Exhibit 6, a letter from Chaplain Edgar Rayes, 4 September 2021. Exhibit 7, defence written submissions Exhibit 8, a chronology. 1. The offender's background is outlined in the report of Ms Lucas (Exhibit 1) and also the offender's evidence. 2. Ms Lucas assessed the offender on 15 October 2021 for two and a quarter hours via audio visual link. 3. The offender reported that he was born in Liverpool. The offender has one younger brother. He moved to Newcastle when he was four or five years old. His parents are of Polish/German heritage. Mr Schuman speaks Polish to his mother. He described his father as ruling the family with an "iron fist". He said violence was common within the family and he was subjected to violence. He described being frequently frightened as a child. His parents separated in 1988 when he was approximately 13 years old. He left home at 17 years to pursue carpentry training. He lived in rental accommodation and later in homes he had purchased. He described himself as a loner. He said the only close relationships he has maintained over a long period of time are with family members. 4. He described being in a relationship with the victim AB for two years until she ended the relationship in 2012. They had been engaged. He did not understand why she had ended the relationship. 5. His next relationship was with the victim JM. They lived together for eight months before she left the relationship. They briefly reconciled before the relationship finally ended in February 2019. Family Law proceedings were commenced in October 2019 with respect to property. Those proceedings were finalised in December 2020. 6. He described his relationship with the victim JT as a "fling." They were together for four months before the relationship ended. 7. He described his next relationship was with the victim OG. This relationship lasted approximately six weeks. 8. He denied that there had ever been any violence in his relationships. Medical history 1. He reported an unremarkable medical history. His education and employment 1. He reported that he had been bullied during his early school years due to literacy difficulties. He had overcome his difficulties by the time he commenced high school. He completed his HSC. He then completed a trade course in carpentry. He reported having consistent employment either in carpentry or as a crane operator. Drug use history 1. The offender reported a significant alcohol problem from 2004 until his arrest. He described that he would drink to the point of intoxication on a daily basis. He also said he used amphetamines three or four times a week and was an occasional user of cannabis. Psychiatric history 1. The offender reported that several years ago he had seen a psychologist for approximately three sessions when he had been feeling "very stressed". His GP then commenced antidepressant medication but he ceased taking it as it made him "like a zombie". He said his boss told him to "get off them". He then discontinued all mental health treatment. 2. Ms Lucas observed as follows: "Mr Schuman described high levels of paranoia, though not clear, bizarre, delusion. He suspects that others are bent on exploiting and deceiving him. He could not clearly identify when this had commenced. He provided an account in which he becomes preoccupied with doubts about the loyalty or trustworthiness of others." 1. Ms Lucas continued: "His paranoia did not extend to his willingness to disclose his concerns during this assessment. He advised that he realises he is unwilling to trust others and maintains he wishes to change this. However, he also described having spent significant amounts of time and money on gathering evidence that others are plotting against him. He reported that he had felt justified in doing so because he would be better able to protect himself if he knew what others were planning. This related especially to his intimate relationships. On letting people close it appears he would feel vulnerable and begin to look for signs that his partners were seeking to undermine him financially or otherwise." 1. Ms Lucas provided the following opinion: "Consistent with his presentation during the clinical interviews Mr Schuman's personality assessment results suggest that he suffers from a personality disorder with significant paranoid and obsessional features. He would also be diagnosed with alcohol and substance use disorders currently in early remission." His account of the offending 1. Ms Lucas summarised the offender's account of the offending as follows: "Mr Schuman advised of long-standing concerns that intimate partners had been planning to financially disadvantage or otherwise harm him. These concerns or beliefs impressed as fixed. He impressed as convinced that ex-partners had taken steps to procure items of value from him, unfairly access his savings and on some occasions when he was under particular stress, were intending to cause him physical harm." 1. He told Ms Lucas he felt scammed by AB and spoke of his ex-partner's planning to sell belongings of his. He maintained items had gone missing from his home after his breakup with JM. He said he had set up barricades at his home and used intrusion detect and strategies so he would know if she had tried to enter. 2. Ms Lucas observed as follows: "According to Mr Schuman tracking and surveilling these victims was undertaken by him to give him advance knowledge of what they were planning against him." 1. Ms Lucas was of the opinion that the offender's paranoia in his relationships with AB and JM continued into his more casual relationships with JT and OG. 2. The offender told Ms Lucas as follows: "I knew I was doing something wrong but I felt driven to do it. They were going to come after me or do something to me. I let my walls down and then I was vulnerable." 1. He also acknowledged that his behaviour must have "terrified" the victims. 2. Ms Lucas said the offender wanted to change his problematic beliefs, that others are intending to harm him, however, it is difficult for him to do so because of the fixed nature of his beliefs. Opinion 1. Ms Lucas was of the opinion the offender had a paranoid and compulsive personality disorder and that his disorder predisposes him to feeling others intend to harm him and: "That those fixed beliefs are the motivating factors or the way he justifies his offending behaviours as a maladaptive way of protecting himself from(perceived) harm." 1. Ms Lucas further observed as follows: "He feels most vulnerable in intimate relationships and it is those relationships on which he focuses his offending behaviours which he described as representing self-preservation." Future risk 1. Ms Lucas was of the opinion the offender would present a risk of further offending if he enters into another intimate relationship in circumstances where his behaviour had escalated from long-term relationships to short-term relationships. Treatment 1. Ms Lucas recommended that the offender engage in a combination of psychiatric management and psychological therapy to address his paranoid personality factors. 2. Exhibit 2 was a letter from the Victorian Problem Behaviour Program, indicating the program is not available to the offender because he resides outside Victoria. 3. Exhibit 3 was a letter from Mr Lee Knight, clinical nurse consultant, indicating he can provide the offender with treatment once he is released from custody. 4. Exhibit 4 was a letter from Jamie Schuman, the offender's brother, outlining the difficulties caused by the offender's incarceration including, that he has had to sell his motor vehicle and two houses. He also described the impact upon the offender's mother of the offending. It is clear to the Court that both the offender's mother and brother remain supportive of him. 5. Exhibit 5 is a letter under the hand of Chaplain Edgar Reyes from Bathurst Correctional Facility. He outlines that the offender has completed the Positive Lifestyles Program on 3 November 2021. Chaplain Reyes states as follows: "Matthew has expressed a desire to amend his life and behaviour with a view to never returning to prison. He realises he needs to make some major changes in his life. I will continue to support Matthew with spiritual guidance after he leaves prison." The evidence of the offender during the sentence proceedings 1. During evidence the offender described that he has completed courses whilst in custody and is working in the lolly shop. He accepted that all of the offences he committed involved some planning. He told the Court he wants to change his problematic belief that others are coming to harm him. 2. He said that at the time of the offending he really believed people were "after him". He has a clear understanding now that such beliefs are not normal behaviour and that he requires help. He said the Chaplain had made him see that what he was doing was not normal behaviour. He wants treatment for his mental illness so that he does not reoffend and "hurt anyone else with his silly behaviour." He intends to consult with Lee Knight and Dr Ellis, psychiatrist, upon his release, and if necessary take medication. 3. He was asked during evidence what he wanted to say to the victims. He gave the following evidence: "How deeply sorry I am to all the people I have hurt by my inappropriate conduct." 1. He said he regretted how he had behaved and how it affected everyone involved. 2. During cross-examination he gave evidence that due to his paranoia he believed the victims were coming after him and he wanted to get "the upper hand". He accepted they were not trying to make contact with him. He said the paranoia kicked in, and it was very hard to think of anything else. 3. In relation to removal of the fuse from JT's fuse box, I suggested to the offender during evidence that he was trying to instil fear in the victim. He said, "I don't know what I was thinking." I suggested to him that removing a fuse box had nothing to do with a pre-emptive strike. He said, "I don't know, I wasn't thinking." I do not accept on balance that this conduct was motivated by a desire to protect himself. 4. In relation to the tracking devices, he agreed during cross-examination that he had purchased those devices, activated the accounts to make them usable, attended different locations to change flat batteries and that the accounts provided him with access to movements of the vehicles. 5. He agreed that this was a considerable amount of effort to go to. He agreed he went to JM's residence on eight separate occasions. He was asked in cross-examination when he became aware that the behaviour was not okay. He said it was whilst he was on remand. I do not accept his evidence that he thought it was legal to go onto someone's property at night for the purpose of installing a tracking device. He agreed that after the AVO was served he knew it was illegal yet continued to engage in the behaviour. Submissions of the parties 1. The Crown relied upon written submissions supplemented by oral submissions. Mr Singh-Panwar, on behalf of the offender, also relied upon written submissions supplemented by further oral submissions. I have taken those submissions into account in determining the appropriate sentences. Remorse 1. Having regard to the evidence of the offender, I am unable to be satisfied that he has accepted full responsibility for his offending behaviour, or that he is remorseful for what he did in circumstances where I do not accept that his behaviour can be explained by paranoia, nor do I accept that he did not understand that his behaviour was wrong at the time. Such matters indicate to me that the offender is still coming to terms with the grave criminality of what he did. I am not satisfied he has a full appreciation of such criminality. In order to accept full responsibility for the offending, the offender would need to fully acknowledge the actual motivation for the offending. Prospects of rehabilitation 1. Any view of the offender's prospects of rehabilitation must necessarily be guarded in circumstances where I am not satisfied he has yet accepted full responsibility for his offending behaviour. It is positive that he is willing to accept treatment upon his release from custody, from both Mr Knight and also Dr Ellis. The Court is hopeful that he does remain committed to seeking treatment for his mental health issues. At this stage I cannot find he is unlikely to reoffend. Delay 1. There was a lengthy delay when the matter was before the Local Court, approximately 15 months before it was committed for sentence. Ordinarily matters are committed for sentence within eight months. The delay was caused by additional complainants and also that the listening devices matters required sanction. The Crown has conceded a very lengthy committal proceeding had taken place. 2. I accept the situation means that the offender was left in the state of suspension in relation to the outcome of the proceedings and I propose to take that matter into account on sentence. The relevance of the offender's childhood 1. It was submitted on behalf of the offender that the Court could take into account the offender's childhood, ultimately leading to a reduction in his moral culpability. It was submitted that the exposure to violence between his parents, him being subjected to significant violence at the hands of his father, including being assaulted with closed fists and a weapon, and being constantly frightened as a child, together with the injuries that had been detected by schoolteachers, and also the fact that he was bullied at school, are all matters that demonstrate a childhood characterised by dysfunction and neglect and warranting a reduction in his moral culpability. 2. Having regard to his exposure to violence as a child, I am satisfied that there is some reduction in his moral culpability and I propose to take that into account in accordance with the principles enunciated in Bugmy v R [2013] HCA at [37]. The relevance of the offender's mental health 1. Mr Singh-Panwar on behalf of the offender did not rely on the offender's diagnosed mental health condition as causally connected to the offending, warranting a reduction in his moral culpability in accordance with the principles enunciated in DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194. Rather, it was submitted it is relevant to be taken into account in the instinctive synthesis approach to sentencing. I accept that submission. Totality 1. In circumstances where I am sentencing the offender for six principal offence, and one offences on a s 166 certificate I am required to consider the principle of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other, if so, the sentences should be served concurrently, but if not, there should be some accumulation between the sentences (see Cahyadi v R [2007] NSWCCA 1). 2. In circumstances where the offences relate to four different victims and there is separate and distinct criminality, I am satisfied that some partial accumulation is appropriate. It will be notional accumulation because I intend to impose an aggregate sentence. Consideration of the COVID-19 pandemic 1. I accept that the current circumstances surrounding the COVID-19 pandemic are causing significant additional stress for all offenders whilst in custody. I accept that custodial conditions are now more onerous in circumstances where the conditions under which the offender has served his time on remand and will serve his sentence have changed. 2. Firstly, there are currently no personal visits to correctional facilities in New South Wales. Secondly, I accept that there will be a concern amongst inmates in relation to the virus spreading within their correctional facility. Thirdly, correctional facilities in New South Wales are regularly now subject to lockdown procedures to try and minimise the risk of COVID-19 spreading throughout the facilities. 3. For those reasons, I am satisfied that custody has been and will be more onerous for this offender. I have taken those matters into account in determining the appropriate sentence. Special circumstances 1. It was submitted on behalf of the offender that the Court would make a finding of special circumstances and vary the ratio between the non-parole period and the parole period having regard to the following factors. 2. Firstly, that he has a mental health diagnosis that requires specialised treatment in the community. Secondly, he requires treatment for drug and alcohol relapse. Thirdly, for partial accumulation between the sentences. I note that there will be no actual partial accumulation because of the imposition of an aggregate sentence. 3. I am satisfied that special circumstances are established because I do accept that the offender will be assisted by a longer period on parole to address both his mental health issues and his alcohol use issues. I do propose to vary the statutory ratio pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act. Determination 1. In determining the appropriate sentences, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. 2. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (see s 5(1), Crimes (Sentencing Procedure) Act). 3. I have taken the Form 1 matters into account in accordance with the principles enunciated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518. 4. I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties and the offender's subjective circumstances. 5. As I indicated, I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act. 6. Pursuant to s 53A(2)(b) the sentences that I would have imposed had I been imposing separate sentences are as follows: Sequence 32, possess surveillance device intending unlawful use, a starting term of two years, discounted by 25% for the plea of guilty leaving a total term of 18 months. Sequence 27, enter dwelling with intent to commit a serious indictable offence, (stealing), taking into account the Form 1 offence of larceny, a starting term of three years, discounted by 25% for the plea of guilty, leaving a total term of two years and three months. Sequence 33, use listening device to record conversation, not being a party to the conversation. A starting term of two years and eight months discounted by 25% for the plea of guilty, leaving a total term of two years. Sequence 28, stalk or intimidate intending to cause person to fear physical or mental harm, a starting term of eight months, discounted by 25% for the plea of guilty, leaving a total term of six months. Sequence 3, stalking or intimidating, intending to cause a person to fear physical or mental harm, taking into account two matters on a Form 1 of destroy or damage property and possess identity information, a starting term of three and a half years discounted by 25% for the plea of guilty, leaving a total term of two years and seven months. Sequence 24, use tracking device to determine location of an object, a starting term of two years and eight months, discounted by 25% for the plea of guilty leaving a total term of two years. 1. In relation to the offence on the 166 certificate, sequence 16, of contravene prohibition or restriction in an Apprehended Violence Order, a starting term of 16 months less 25% for the plea of guilty, leaving a total term of 12 months. 2. Mr Schuman, in relation to each of those offences you are convicted. 3. I sentence you to a total aggregate sentence of five years and six months imprisonment to date from 7 July 2020 and expire on 6 January 2026. 4. I fix a non-parole period of three years and eight months imprisonment to date from 7 July 2020 and expire on 6 March 2024. You will first become eligible for parole on 6 March 2024. 5. I have found special circumstances. I have reduced your time in custody and increased your time on parole because I am satisfied you will be assisted by an additional period of supervision. ********** 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: 20 September 2022