District Court New South Wales Medium Neutral Citation: R v Slabb [2022] NSWDC 681 Hearing dates: 13 October 2022 Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 3 years 3 months with a non-parole period of 1 years 10 months. Catchwords: CRIME – Aggravated break & enter and commit serious indictable offence- knowing people there people there; Aggravated enter dwelling with intent - knowing people there SENTENCING - Relevant factors on sentence - repeated entry to same home- no real motivation – drug affected - early guilty plea - offender last released on Christmas Day - problems with Christmas release dates discussed - failure to comply with parole - background of disadvantage – E1 prison classification - poor future prognosis - need for extensive support in custody and on releases - glimmer of insight into offending behaviour Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Hoskins v R [2021] NSWCCA 169 R v Hookey [2018] NSWCCA 147 R v O'Connor [2014] NSWCCA 53 Texts Cited: Arresting incarceration: pathways out of Indigenous imprisonment, D Weatherburn, Aboriginal Studies Press, 2014 Category: Sentence Parties: Matthew Clifford Slabb (the offender) Director of Public Prosecutions Representation: Solicitors: Ms E Parkes, Legal Aid NSW (for the offender) Ms K Malcolm (for Director of Public Prosecutions) File Number(s): 2022/00000590 SENTENCE – EX TEMPORE REVISED 1. Matthew Clifford Slabb, who is also recorded in the papers as Matthew Clifford Thomas, this morning adhered to guilty pleas that he had entered in the Local Court to two serious offences: * Aggravated break, enter and commit serious indictable offence: s 112(2) Crimes Act 1900. Maximum penalty of 20 years imprisonment, and for an offence which taken into account only objective falls in the middle of the range there is a standard non-parole period minimum of five years imprisonment: sequence 6 * Aggravated enter dwelling to commit serious indictable offence, s 111(2) Crimes Act 1900. Maximum penalty imprisonment for 14 years: sequence 7. 1. In relation to each matter there are matters related to the principal offence which I am asked to take into account on a Crimes (Sentencing Procedure) Act 1999 Form 1. For the first matter, aggravated break, enter and commit serious indictable offence, an offence of common assault which occurred immediately after the injury, the subject of the first count. For the second matter, intimidation which is the completed offence, the subject of one of the circumstances of aggravation. It is appropriate that I do so. 2. Matters on the Form 1 can increase the sentence for the offence to which they relate, primarily because greater weight must be given to specific deterrence and community protection. But in matters such as this, where the Form 1 matters are closely related to the offence to which they relate, and will be taken into account when I assess the objective seriousness of those offences, care has to be taken not to double count those factors. 3. The pleas of guilty were entered in the Local Court and I intend to impose an aggregate sentence. I will reduce each indicated sentence by 25% to reflect the utilitarian value of the pleas of guilty. The pleas of guilty have other values which I will take into account. I will also take care that the process of accumulation does not erode the benefit of those pleas. The pleas were adhered to today. 4. Mr Slabb has spent most of his adult life in custody. He first went to gaol in 2006. When I consider his record the periods in the community since then can be measured in months. Of the last 16 years only 3 of those years in total have been spent living in the community. He was last released to parole on 25 December 2021. 5. I was once criticised for being sentimental about avoiding fixing release dates at Christmas: R v O'Connor [2014] NSWCCA 53 at [72]. If I can belatedly correct that misapprehension. There are several reasons why judicial officers should take care before releasing offenders during the holiday period, let alone on Christmas day. Evidence about such matters should not be a required; an experienced judge can take into count their long experience. 6. Gaols do have difficulties meeting the demands of family for visits and of prison staff for leave during holidays, particularly on Christmas Day. Stresses in the gaol increase, and they are already innately stressful places. Prisoners on release may be more tempted than usual to celebrate their release by overindulgence. But much more importantly, support services are simply not available during the holiday period. Most agencies will not be in any position to offer the sort of help that prisoners need if released during the holiday period; services such as accommodation, rehabilitation programmes, medical and psychological assistance, and advice and support. And, if they are open at all, they will be operating on holiday staff rosters. 7. That said, Slabb's evidence today was frank. He told me that even if help had been available to him, when he was last released, he would not have taken it. He thought he knew better. Immediately on release he continued, with (in his own words) his "young and dumb attitude". He did not even try to comply with his parole conditions. Unsurprisingly he was using methylamphetamine almost as soon as he returned to Nowra where he had spent most of his life. Agreed facts 1. There are agreed facts before the Court. Incident 1 - Aggravated break, enter and commit serious indictable: seq 6 1. On 26 December 2021 Slabb went to the home of the principal complainant in Nowra. He was with a woman who had told him of a grievance she had with that young man. Slabb went to the door and was told by the man at the house that nothing had happened. They shook hands and Slabb left. But he was persuaded by the young woman to return. Despite the complainant having said nothing happened, Slabb opened the unlocked flyscreen, grabbed the complainant by the front of his shirt and said, "I will run through you and everyone in this house". He swung his fist striking the young male complainant in the mouth. He then walked straight into the house. As he did so his victim, who was trying to stand, was hit again. At this point the young man's mother screamed "Get the fuck out of my house." She stepped between Slabb and her son and ushered him out the front door. She locked all the doors and called the police. Incident 2 - Aggravated enter dwelling to commit serious indictable offence: seq 7. 1. On Saturday 1 January 2022 Slabb returned to the victim's home at about 7pm. He tells me he was well affected by illicit drugs. That fact is not an excuse, to the contrary; he was not in control of himself. He tells me he has little memory of the events, but he accepts that his drug use made him more dangerous. 2. He knocked at the door and spoke to the complainant saying "Are you going to let me in?" The complainant thought that he was actually there to make amends and opened the flyscreen and let him in. An argument about the young woman soon started. Slabb walked towards the kitchen. The young man ran through the back door because he knew there were knives in the kitchen. His mother hearing the noises came out and saw Slabb holding a steak knife. To his credit, at no point did Slabb threaten anyone with that knife. The young man's mother talked him into handing the knife to her. Less than a minute later the young man walked back inside the house. He heard Slabb say to his mother "I'll come back later and stab him until he's dead." 3. The police were called. Slabb was arrested. Given he was in breach of his parole, he stayed in custody. He has been in custody since 1 January 2022. He served the balance of his parole until 27 June 2022. He also received a sentence on another matter which expired on 1 June 22 from Nowra Local Court. Objective seriousness 1. Slabb entered another's home. He broke into that home. The screen door had been closed against him. He entered with intent to intimidate, standover, and threaten. His motivation was to take the law into his own hands. Because of the young woman's perceived grievance. He well knew someone was inside the home when he did so. He may not have known the mother was in the home, but he could have expected other people to be present. The risk of escalation was high. He was aggressive. But as Ms Parkes, solicitor for Legal Aid, who appears for him, points out, the intimidation that actually occurred was at the lower end of the sort of matters that commonly are taken into account as aggravating circumstances for this sort of offence. He left of his own volition. 2. He had no right to do what he did. He had no right to confront someone in his own home, and he more than confronted him. The matter on the Form 1, the assault, has to be taken into account. 3. He then returned and he did not return to apologise or make amends, but significantly drug affected he entered the home. There he armed himself, but thankfully nothing came of that and he was able to be talked down. At that stage he is presumed to have known people would be present, including the mother who he confronted. And as he left he made a serious threat. Again, care has to be taken because of the matter on the Form 1 is the one of the reasons he entered the premises and an element of the principal offence. 4. I have to take guidance from the maximum penalty and where appropriate the standard non-parole period. I do not make proportional deductions from either the maximum or the standard non-parole period, but content has to be given to a standard non-parole period where it applies. 5. There are many reasons here for variation from that standard non-parole period, not the least being that in the scheme of things both offences fall well towards the bottom of the range of objective seriousness. But in making that finding I want to make it clear that these are still very serious offences as on two occasions he entered the homes of other people knowing there were other people there and, in their home, behaved in an aggressive and criminal manner. He was a stranger to them and was drug affected. His victims were not to know that he would leave; they could reasonably expected that matters might have gotten a lot worse. Other matters 1. Slabb was on parole, a matter that aggravates the sentence. He has a record that not only does not entitle him to leniency but means that greater weight must be given to specific deterrence and community protection. 2. For those reasons and his antecedent criminal history, he must go back to gaol. That was inevitable and he must have known that. He must have known that the minute he did not comply with his parole conditions, and the minute he used recommenced use of illicit drugs. 3. I note at this stage there are no Victim Impact Statements before the Court, but I do not underestimate the impact of having a strange drug affected person in your house. The fact that there is no Victim Impact Statement does not mitigate the sentence. Subjective Case 1. Slabb gave evidence today. He is now receiving buprenorphine injections and anxiety medication. They have given him a chance to slow down and think. He appeared to be honest and sincere in his evidence today. He made admissions against interests so far as the facts are concerned, although it was fairly obvious to me that he had been using drugs. 2. He was frank about his past history. He was frank about his previous failures to take any real notice of the fact that his crimes had resulted in imprisonment or of the strategies that were taught to him when he did the Violent Offenders Treatment Program. He told me that every time he has been released from gaol his only thought has been to resume contact with old associates and take up again the use of illicit drugs. 3. He told me that now, on medication, he has had time to reflect on what he did and why he did it. He said that he feels great shame, although he did discriminate between shame at the offending against the younger man as opposed to greater shame so far as the mother is concerned. She appears to have had some skills in dealing with young men and is to be commended. 4. He told me that he really has no support in the community. Prosocial members of his family will not put up with his behaviour and he does not want to associate with his other associates. He will be given time to reflect and plan for the future because the sentence must have appropriate punishment. 5. He says that he is exercising and accepts that to have a strong mind he needs to be in good health. He has plans for his future. He has seen the benefit of healthy living and he wants to continue. He has spoken to Ms Van De Velde, psychologist, who has given him some strategies to apply as he plans for his future. He intends to follow up with services while he is serving the balance of his sentence. 6. He has served this and other sentences during the pandemic. He caught COVID but thankfully he was triple-vaxed and had only moderate symptoms. He has spent time in quarantine and lockdown, matters I will take into account. 7. It appears he has never really asked for help before and has not taken advantage of help that was offered before. The question that then arises is should I give him an advantage this time? His response to parole in the past has been appalling. He has regularly offended against prison discipline. He has prison classification of E1. That classification means the has never had the chance to transition toward release through lesser classifications. 8. His history has to be understood in context, and that context was provided by Ms Van De Velde's report, exhibit 1. There she set out the history of this man, who is sadly no longer young. 9. Although Slabb had some support from his mother, as a child his father spent time in gaol. He reports happy memories, but when Ms Van De Velde drilled down into his childhood it is clear that from a very young age he was exposed to domestic violence, drugs, emotional abuse and neglect. By the time he was 14 he had run away from foster homes, and either living on the street or in juvenile detention. 10. An Aboriginal Australian, he has had no opportunity to connect with his culture. He has not seen a prison psychologist, and as he told me he did not take up the lessons meant to be learnt by the Violent Offender Treatment Program. He has offended against the community all of his adult life. 11. Ms Vandervelde notes symptoms associated with post-traumatic stress disorder and severe dissociative disorder. Those conclusions are well supported by his history of trauma and exposure to violence and drugs when very young. His history meant that he has still impaired emotional regulation. He does not process information as he should and his default response appears to be aggression and violence, as demonstrated by the material before the Court. 12. She notes at [46.1]: "It is my opinion that the emotional dysregulation, impulsivity, reactivity, aggression and antisocial personality traits associated with Mr Slabb's trauma impaired his ability to engage in rational thinking or problem solving and directly contributed to his offending to some degree during the offences." 1. That may explain what occurred and why it occurred. But for the reasons I have already outlined that way of thinking made him a particularly dangerous individual. And he will continue to be a particularly dangerous individual unless a real effort is made by him and the authorities to help him keep the promises he made in the court today. 2. Ms Vandervelde concludes: "He would benefit from a long term 12 month fortnightly treatment with a forensically trained, trauma-informed, culturally sensitive psychologist. That treatment should include motivational interviewing, treatment for illicit substance abuse. He should also be assessed for his dissociative and psychotic symptoms and treated as require." 1. A copy of her report will be sent to Community Corrections 2. Slabb currently appears institutionalised, and gaol is not helping him change. Submissions 1. I have had the benefit of comprehensive submissions from Ms Malcolm, for the Director of Public Prosecution, and Ms Parkes. They are not far apart in terms of application of principle. The consistent application of principle is always important when sentencing. Synthesis 1. Any sentencing exercise is premised on the fundamental premise of community protection. Those who commit crimes must be appropriately and proportionally punished and those who are likely to commit crimes in the future be discouraged and or incapacitated. Community protection means that an offender should in a case such as this be removed from the community for a period. But they must return to the community. Unless Slabb gets help his prognosis is not good. 2. Mr Slabb has never worked in the community; he has never led a normal life in the community. That creates a conundrum. A sentence must be proportionate to what he did. I cannot extend it. His history requires a measure of leniency, but it also indicates that to date he has done little to change either his behaviour or attitudes. A pattern set in place when he was very young. 3. It now appears he wants to change, and it appears he is maturing. He seems to do okay when medicated. 4. If he is removed from the community the less chance, he can reoffend during that period. But studies, including those extracted by Dr Weatherburn in his book Arresting incarceration: pathways out of Indigenous imprisonment, Aboriginal Studies Press, 2014, indicate that time spent in prison often makes little difference to the likelihood of the offender returning to prison. It seems that the answer lies not longer incarceration, but in treatment that neutralises or reverses the effect of trauma, childhood deprivation and the impact of years spent in violent environments, which include gaols: R v Hookey [2018] NSWCCA 147. 5. Until now the offender has taken only limited steps towards that end. His successful rehabilitation will require resources and effective coordination of services, in conjunction with support, supervision and monitoring. Programmes may build on his current insight, and willingness to accept he must change. But his capacity is limited, and he will not be able to effect change without assistance. 6. If he does not keep to the promises he made today, he will return to prison after release, as he has done time and time again. To be blunt, Mr Slabb, it is not your return to prison that is a concern, we have paid for your prison accommodation for over a decade, it is the risk that given your deep and understandable anger might be triggered again and someone in the community will get hurt; and the law will not tolerate that. 7. Effective rehabilitation programs must address the factors likely to increase the risk of further offending, such as; his need for extensive psychological treatment, drug abuse treatment, provide mental health support and helping him overcome his continued association with criminal peers. He will need accommodation and help with his poor impulse control and his complete absence of social skills. 8. Programs must attempt to strength protective factors, but here they are almost non‑existent. He has no job prospects, no stable accommodation and at present no family support. 9. These conflicting considerations place me, not for the first time, and sadly not for the first time today, in a difficult position. Their acknowledgment provides little practical assistance in determining the appropriate sentence. As Justice Baston has noted, the solution to social problems does not lie in the criminal courts, its best course may be to err on the side of leniency: Hoskins v R [2021] NSWCCA 169. 10. That said, there is a significant gap between rehabilitation hopes and rehabilitation reality. Acknowledgement of the harm done to his victims and community protection requires the offender spend more time in gaol. 11. For the reasons I have outlined there will be a finding of special circumstances. There are two offences, while the first offence carries a greater maximum penalty, the second offence was in my view objectively more serious. There will be some accumulation. I will formulate a sentence which reflects a substantial finding of special circumstances because of the matters I have outlined and because there must be some accumulation on the earlier balance of parole and the sentence imposed in the Local Court. 12. Release to parole will be contingent, that is, based upon, a decision of the State Parole Authority. They will only allow your release to parole if community safety matters can be mitigated, in other words, taking into account community safety. I would urge them, if you earn it, to give you the opportunity for early release to parole. There must be an attempt over the next parole period to provide you with sufficient support to give you an opportunity to avoid the mistakes you have made many times in the past. Orders 1. The sentence will commence on 1 April 2022. 2. In relation to each matter, taking into account the matters on the Forms 1, I indicate a sentence of two years and three months. For the first matter because it carried a standard non‑parole period I indicate a non-parole period of one year and two months. 3. The total aggregate sentence will be three years and three months. There will be a non-parole period of one year and ten months which will commence on 1 April 2022, meaning you will be released to parole on 31 January 2024. There will be a parole period of one year and five months from that date, total sentence will expire on 30 June 2025. 4. You have got effectively a bit over a year to work towards your release to parole. I wish you well Mr Slabb because I do not want to see you again. ********** 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: 13 February 2023