District Court New South Wales Medium Neutral Citation: R v Carroll [2022] NSWDC 419 Hearing dates: 19 September 2022 Date of orders: 19 September 2022 Decision date: 19 September 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraphs 53 - 58 Catchwords: Criminal Law – severity appeal from Local Court – domestic violence offences – break and entering offence Legislation Cited: Crimes Act 1900 (NSW) ss 58, 112 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14 Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A Cases Cited: Bugmy v The Queen 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Henry (1999) 46 NSWLR 346 Category: Principal judgment Parties: Mr M Carroll (appellant) ODPP Representation: Solicitors: ODPP Legal Aid File Number(s): 2022/00176889 and 2022/00193870 Publication restriction: Nil Decision under appeal Court or tribunal: Gosford Local Court Jurisdiction: Local Court of NSW Date of Decision: 18 August 2022 Before: Magistrate M Antrum File Number(s): 2022/00176889 and 2022/00193870 REASONS FOR JUDGMENT 1. Following pleas of guilty on various dates, the appellant was sentenced in the Gosford Local Court on 18 August 2022 for the following offences: Sequence/Section Offence Maximum Penalty Sentence Received H 91565288/1 At 7:55am on 18 June 2022 at Koolewong, the appellant did knowingly contravene a restriction specified in an apprehended domestic violence order Imprisonment for 2 years or 50 penalty units ($5,500), or both Full time imprisonment of 9 months with a non-parole period of 6 months s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) H 88134660/1 At 5:12pm on 3 July 2022 at Koolewong, the appellant did knowingly contravene a restriction specified in an apprehended domestic violence order Imprisonment for 2 years or 50 penalty units ($5,500), or both Full time imprisonment of 9 months with a non-parole period of 6 months s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) H 88134660/2 Indictment Imprisonment for 5 years s 58 of the Crimes Act 1900 (NSW) At 5:12pm on 3 July 2022 at Koolewong, the appellant did resist Kyran Bloemers being a Senior Constable executing his duty Summary Community Corrections Order of 18 months 50 penalty units ($5,500) and/or 2 years imprisonment H 88134660/3 Indictment Imprisonment for 14 years s 112(1)(a) of the Crimes Act 1900 (NSW) At 5:12pm on 3 July 2022 at Koolewong, the appellant did break and enter the dwelling house of Peter Mottershead, and then while in the said house did steal certain property Summary Full time imprisonment of 18 months with a non-parole period of 12 months 100 penalty units ($11,000) and/or 2 years imprisonment 1. On or about 19 August 2022 the appellant lodged a severity appeal. 2. At the hearing, the appellant's legal representative indicated that he did not press his appeal in relation to the offence of resisting an officer whilst in execution of his or her duty. Circumstances of Offending 1. The Local Court sentenced the appellant on the basis of the facts outlined in the Police Facts Sheet. To a small degree, they were supplemented by evidence from the appellant on appeal, which was unchallenged. They indicated the following. H 91565288/1 (18 June 2022) 1. The appellant had been in a relationship for over a year with the victim when their relationship ended in January 2022. On 3 April 2022, the appellant was served with an ADVO in which the victim was named the person in need of protection. The ADVO set out the following conditions: 1. That the appellant must not do any of the following to the victim, or anyone whom she has a domestic relationship with: 1. assault or threaten her; 2. stalk, harass or intimidate her; 3. intentionally or recklessly destroy or damage any property that belongs to her. 1. That the appellant must not approach the victim or contact her in any way, unless such contact is conducted through a lawyer. 1. At 7:55am on 18 June 2022, police attended the residential address of the victim in relation to a domestic related incident. After some time after arriving to the premises, the victim opened the door to the unit. The victim appeared distressed yet made no admission to police. 2. When the victim was asked if there was any other person in her home, she stated that there was not, however, police heard disturbance from the rear of the unit. Police subsequently entered the home and activated their body worn camera. Police found the appellant hiding in the shower recess of the unit. 3. Police placed the appellant under arrest for breach of the ADVO, specifically for breach of condition (2). He was then taken to Gosford Police Station. 4. The legal representative for the appellant submitted that the conduct fell at the lower end of the range. Whilst it may be accepted that the victim appeared distress, there was no evident sign of any actual or imminent violence. The Crown acknowledged that this particular contravention was less serious than the other contravention of the ADVO, to which I will shortly turn. I accept these submissions and find that the offending occurred at the lower end. H 88134660/1 (3 July 2022) 1. At the time of this offending, the ADVO that was served on the appellant on 3 April 2022, in which the victim was named the person in need of protection, remained in place. Also at the time of offending, the appellant was subject to bail conditions for the H88134660 offence, specifically, not to contact the victim or any prosecution witness. 2. After receiving a call stating that a female was yelling and screaming "I can't take this anymore", police attended the residential address of the victim. On approach to the premises police identified that the door to the granny flat was open. Police sighted the victim sitting on the edge of her bed crying and very distressed. 3. The victim informed police that she had a domestic violence incident with the appellant. After significant challenge to apprehend the appellant, of which relates to the sequence 2 offending where the appeal is not challenged, the appellant stated that he knew he should not have been near the victim, however, claimed that the victim had made threats of self-harm and he wanted to check on her. 4. The victim, being highly irate after the offending, claimed that she was injured as a result of an assault, however, she refused to show police any of the injuries she claimed. When she eventually showed police parts of her body, they were unable to identify any injuries in alignment with the alleged assaults. An ambulance was called to the scene. However, the victim refused to show them any injuries. She was subsequently conveyed to Gosford Hospital to conduct scans to ensure that no internal injuries were sustained. 5. The victim was unwilling to provide police with a statement as she explained that although she could be fearful of the appellant, she still loved him and intended to continue having a domestic relationship with him. She explained that they had spent the night together a few days prior to the offending. 6. In the hearing of this appeal, the appellant said that he had received a message that the victim was self-harming and went to see her if she was ok. This, he now realises, was improper. I view this offending as more serious than the previous offending, even though it falls within the mid-range of offending of this kind. H 88134660/3 (3 July 2022) 1. The victim's residence is a granny flat located beneath a large home owned by Mr Mottershead. Following the prior offending that occurred on 3 July 2022, Mr Mottershead accessed his property and identified that his front door had been forced open and multiple rooms had been ransacked. 2. Whilst in custody, police noticed that a memory card found in the appellant's possession had a handwritten note on it that read "2005 Europe II Pete's Photos." Upon being contacted by police, Mr Mottershead identified the memory card as his property. Mr Mottershead confirmed that the appellant had never been in his home, nor did he provide permission to the appellant to enter his home. As such, the only plausible explanation for the appellant having the memory card in his possession was that he took it from inside the property. 3. At this hearing, the appellant said that he did not remember the circumstances of this offending. 4. The appellant's legal representative argued that the sentence that was imposed by the Magistrate was too harsh. Although the item stolen may have had sentimental value, its total monetary value was meagre. This overlooks the other incidents of the offending, including the house being ransacked. Nevertheless, the dearth of proof of stolen items indicates that the offender was at the lower end of the range. 5. Whilst that may be so, and whilst it appears to be an offence at the lower end of the range, it is pertinent to emphasise the inherent gravity of the offending, as signposted by the maximum penalty had this particular offence been tried on indictment. It must surely be one of the most serious offences tried in the Local Court. Aggravating circumstances 1. The appellant was subject to an Intensive Correction Order when all offences relating to the appeal were committed. In relation to the offences on 3 July 2022, he was also on bail. These matters significantly aggravate his offending. THE APPELLANT'S SUBJECTIVE CASE Age 1. The appellant was 40 years old at the date of the offending. 2. In the severity appeal, the offender's legal representative referred to his having difficulties with a prosthetic on his right leg, which makes his life more difficult in custody. Whilst I accept that the issue of his prosthetic causes him inconvenience, it is not all that clear of the extent to what difference this would make if he was not otherwise an inmate in the correctional centre. Prior Criminal History 1. The appellant has a lengthy criminal history including offences of a similar nature to the subject offending. There are many offences involving dishonesty and personal violence, although it is fair to acknowledge that an earlier break and entering offence occurred 10 years ago. I agree with the Crown that, to a degree, he appeared to downplay earlier involvement in offences relating to violence and theft. This is not a record entitling the appellant to any leniency. Guilty Pleas 1. The appellant expressly adhered to his guilty pleas in this Court. He is entitled to receive a 25% discount for his guilty pleas for each offence. Sentencing Assessment Report 1. A sentencing assessment report (SAR) was prepared on 1 August 2022 by the Gosford Community Corrections Office. The report set out the appellant's recent circumstances. 2. Prior to being placed in custody, the appellant was residing alone in a unit complex in the Gosford Area. The appellant reported that he was not 'happy' where he was residing in Gosford as it severely affected his mental health. This was elaborated in his evidence when he said it was a Housing Commission property. The appellant described his partner, the victim of the first two subject offences, as supportive despite there being a current ADVO which prevents the two from having contact. 3. The community corrections officer contacted the victim who indicated that she was not fearful of the appellant and intended on applying to have the conditions of the ADVO varied so that they could resume their relationship. The appellant's mother was also contacted. She confirmed that she had little contact with her son. On the last occasion that his mother saw the appellant she recalled saying that she did not wish to see him again until he 'cleans himself up.' 4. The appellant reported being currently unemployed and in receipt of the Job Seeker allowance. 5. The appellant's prior criminal history and admission to illicit drug use was considered evidence of prior anti-social behaviour by the community corrections officer. 6. He gave evidence at the hearing of this appeal that he was sexually abused by his uncle when he was only 9 years of age. His legal representative argued that Bugmy considerations were engaged. The Crown's submission that, notwithstanding what might be presumed to have been a traumatic episode, with enduring consequences, it was not demonstrated that the effects of this episode caused or contributed to the offending. However, on the probabilities, I think that at least part of the anxiety about which the appellant spoke was at least partly influenced by that past traumatic event so, to that extent, Bugmy considerations are engaged which make the appellant's case a less than perfect vehicle for general and specific deterrence and denunciation. That said, consistently with what the High Court said in Bugmy, where childhood disadvantage may contribute to a pattern of offending, it may elevate the significance of community protection to the sentencing exercise. 7. The appellant reported a history of alcohol and drug abuse commencing as a teenager. At the age of 33, the appellant claimed to become a 'dysfunctional alcoholic' which saw him enter a period of residential rehabilitation. The appellant had three separate stays in the Dooralong Transformation Centre between February 2017 and September 2020. He reported that alcohol is no longer a problem, and he still drinks socially on rare occasions. 8. The appellant began smoking cannabis when he was 12 years old through to when he was 21. He also admitted to using 'ice' for a brief period commencing last year to manage his anxiety and chronic pain, however, stopped this due to 'family pressure.' 9. The appellant denied being a violent person, however, acknowledged that he was 'impatient.' The appellant reported that he was diagnosed with anxiety and depression when he was 25 years of age which he was not medicated for. He claimed to self-medicate using ice to assist with his mental health issues. It is understood that the appellant was referred to a GP to obtain a mental health care plan to engage with a psychologist and prescription medication, which he failed to do. 10. Although I am not persuaded that De La Rosa principles were engaged, I accept that, to a degree, his alcohol and drug issues partly mitigated his conduct in accordance with principles from R v Henry. 11. The appellant reported having a history of chronic physical pain partly due to 'wear and tear' on his body from physical work and to some extent having a prosthetic leg due to being born with a 'club foot.' The appellant explained that in the past he has been refused pain relief medication from his GP as a result of his use of the drug 'ice'. Contrition and Remorse 1. In his SAR, the appellant admitted to feeling ashamed of his actions, describing them as 'out of character.' He was especially sorry for his breaking and entering given that he had personally experienced a similar incident in 2020. I accept that he is sorry for his offending. I address the issue of insight separately. Rehabilitation Prospects and likelihood of reoffending 1. In the hearing of this appeal, the appellant said he had no intention of resuming contact with the victim. 2. He also said that he had made a booking, prior to the offending conduct on 3 July, to receive 'detox' treatment two days later, on 5 July. 3. In the SAR, the appellant indicated that he was willing to undertake intervention necessary to address his criminogenic needs but was unable to display his commitment due to being placed in custody after re-offending. The appellant further indicated that he is willing to undertake community service works any day of the week. However, the CCO determined that community service work would be unsuitable for the appellant due to his unresolved metal health and drug related issues. 4. His previous response to supervision has been identified as poor and unsatisfactory. The appellant has a well-documented history of non-compliance that has resulted in re-offending and a failure to engage effectively in interventions. 5. Asked by his legal representative what was likely to be different this time, the appellant said that whereas in the past he had identified himself as a victim, he said that he felt changed this time; and believed he could contribute to the community; a change which he attributed to the influence of his young daughter. He gave some evidence of using his time productively in incarceration, which is to his credit. 6. The appellant was assessed at a T2/Medium – High risk of re-offending according to the LSI-R model. It was recommended that if the Court were to make a supervision order, the appellant would be supervised at a T2/Medium – High risk level. This would require the appellant to have contact with a Community Corrections Officer on a weekly basis. A supervision plan was set out. 7. Reliance was also placed on a letter from the appellant's former partner that on the appellant's release, she would be happy to have the appellant live with her and their 8 year old daughter. 8. The appellant's legal representative argued, with reference to the evidence that the appellant gave at the hearing of this appeal, that the Court should take comfort from the appellant's evidence going forwards, including his desire to be with his daughter and former partner. I accept that these matters, along with his productive use of his time whilst in jail, along with his abstinence, have aided him. Nevertheless, I cannot ignore his record, and place weight upon the views of the community corrections officer in the SAR, including his poor response to supervision. Whilst I acknowledge that to a degree the appellant contests that, and also accept that even before the offending on 3 July he had made efforts to rehabilitate himself, the Court is concerned about his limited insight, manifested by statement that he made to the CCO, repeated in the Court, that he is not violent by nature, and his statement that his breaking and entering was out of character when he had committed previous property-related offences. I find that his prospects of rehabilitation are guarded. COVID-19 1. The appellant said in his evidence that whilst in custody, he had been exposed to 24 days' lockdown. That evidence was not contradicted and I accept it. Consistently with the authorities, I accept that this made the conditions of custody more onerous, which has a mitigating impact on sentence. INSTINCTIVE SYNTHESIS 1. I take into account the maximum penalty for each of the offences, not just as it was when imposed summarily, but also as it would have been if tried on indictment. 2. In this severity appeal, the appellant's legal representative accepted that the s 5 threshold was crossed. That was appropriate simply with reference to the breaking and entering offence alone. I consider the concession was properly made, taking into account the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the subject offences, general and specific deterrence have a significant role to play; being only slightly moderated by his prior drug and alcohol conditions and Bugmy considerations which I have alluded to. For the ADVO offences, the importance of a penalty to hold the offender to account and recognise the affront to the victim's indignity is significant even if the victim minimised such impact. Viewing his criminality overall, and having regard to his guarded prospects for rehabilitation, community protection is very important. Enhancement of his rehabilitation is a relatively subsidiary consideration and, as will be explained, more salient to the extent of the non-parole period. 3. In this Court, the appellant submitted ultimately, three points: the individual sentences for most of the offences were too severe; that the overall period of imprisonment for the 3 subject offences was too severe; that considered overall, the period of imprisonment indicated that, in substance, special circumstances were found not to exist and that the learned Magistrate did not backdate the sentence to take into account prior custody referrable to the offences. Emphasis was placed upon his reduced culpability with reference to Bugmy considerations, his alcoholic and drug addiction and mental conditions of anxiety and depression; and the onerous nature of his custody 4. The Crown acknowledged that the sentence for the first contravention of the ADVO on 18 June may have appeared harsh in comparison with the second contravention which occurred on 3 July. The Crown emphasised that even if it was, it made little difference to the overall outcome, having regard to the number and nature of the offences, his rehabilitation prospects, limited insight shown into his offending. 5. The appellant's legal representative noted that he had spent 4 days in custody attributable to these offences, that estimate was not disputed. 6. I accept that the appellant's submissions, viewed in isolation, have some force, but overall, it does not materially alter the outcome, save for the non-parole period. Indeed, notwithstanding some features of his subjective case, the nature of the offending and the aggravating circumstances, indicate the overall effective period of imprisonment imposed was relatively generous. I accept that there are special circumstances. Although I have expressed significant reservations of his rehabilitation, I accept that they will be enhanced by a longer than usual period on parole. 7. The indicative sentences, taking into account the objective gravity of the offending, the aggravating circumstances, and other personal circumstances - including the guilty pleas - are as follows: H91565388/1 6 months' imprisonment H88134660/1 8 months' imprisonment H88134660/3 1 year and 3 months' imprisonment 1. I agree with the Crown that whilst some concurrency is merited given that date and timing of the offences, some element of accumulation is necessary for the last two offences, to reflect their different nature, and to reflect the different victims. There then also needs to be accumulation with the first of these offences, occurring on a different day. 2. I agree that the sentence should be backdated to take into account 4 days' prior custody. I consider that the effective term of imprisonment, as ordered overall by the Magistrate and without reference to the non-parole period, is appropriate. 3. The severity appeal against sentence for offence H88134660/2 is dismissed. 4. For the balance of the severity appeal, the appeal is partly upheld, the individual sentences for H91565388/1, H88134660/1 and H88134660/3 are set aside and in lieu, an aggregate sentence is imposed of 1 year, 9 months and 14 days, commencing on 29 June 2022 and expiring 11 April 2024. The non-parole period is 1 year and 2 months expiring on 28 August 2023. ********** 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: 19 September 2022