District Court New South Wales Medium Neutral Citation: R v Colvin [2024] NSWDC 281 Hearing dates: 19 April 2024 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of imprisonment of 3 years 3 months with a non-parole period of 2 years and 3 months Catchwords: CRIME — Violent offences — Use offensive weapon to prevent lawful detention — Resist/Hinder police officer in execution of duty — Use offensive weapon with intent to commit indictable offence — Assault occasioning actual bodily harm SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment Legislation Cited: Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 2 of 2002 [2002] NSWCCA 515 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Engert v The Queen (1995) 84 A Crim R 67 Nasrallah v R [2021] NSWCCA 207 R v Colvin (No 1) [2021] NSWDC 309 R v Colvin (No 2) [2021] NSWDC 494 R v Nydegger [2023] NSWDC 619 R v Windle [2012] NSWCCA 222 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Jason Keith Colvin (the offender) Public Prosecutions (NSW) (Crown) Representation: Counsel: A Booker (for the offender) Solicitors: Legal Aid (NSW) for the offender N Verghese solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2023/74818; 2023/145900 JUDGMENT – ex tempore revised Introduction 1. On 13 August 2021 I convicted and then sentenced Jason Colvin for offences committed against his sister in her home: R v Colvin (No1) [2021] NSWDC 390; R v Colvin (No 2) [2021] NSWDC 494. When I sentenced him, I took into account; his history of childhood deprivation, the fact that police had taken action against those who sexually abused him as a child, and his longstanding mental health and drug problems. I concluded by saying, at pars [40]-[41] : "[He] must be removed from the community for a period so he can be adequately punished, but he will have to return to the community, and the longer he can be supervised on parole the safer the community will be. His tragic background must be given full weight, but the sentence must also recognise the harm he did … and punish him for what he did … He is capable of learning. He is capable of change, but he will need help doing so. If he takes that help his life may improve. If he does not, he will return to gaol." 1. Colvin was released to parole on 5 February 2023. On 6 March 2023, a month later, he committed a number of serious offences: 1. Use Offensive Weapon to Prevent Lawful Detention, pursuant to s 33B(1)(a) Crimes Act 1900 (NSW), maximum penalty 12 years' imprisonment; 2. Hinder or Resist Police in the Execution of Duty, pursuant to s 61AA Crimes Act, maximum penalty 12 months; 3. Use an Offensive Weapon with Intent to Commit Indictable Offence, pursuant to s 33B(1)(a) Crimes Act, maximum penalty 12 years; and 4. Assault Occasioning Actual Bodily Harm, which was the offence intended for that earlier matter, pursuant to s 50(1) Crimes Act. 1. He is for sentence today for the first three offences and he asks, having admitted his guilt in relation to it, that I take into account the Assault Occasioning Actual Bodily Harm on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. It is appropriate that I do so. 2. When I do sentence him, the impact upon him of multiple traumas, which I took into account on the last occasion, will be taken into account. As the High Court noted in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, the impact of those traumas does not diminish over time and must be given full weight in every sentencing exercise. 3. Colvin was born in 1975. He has been in custody, almost continuously, since 1993. His time in the community can be often measured in days or months. Initially, on release, he stayed with his mother, but that did not work out. She, not for the first time and despite his history, had him back, but things became too much for her, she has her own problems to deal with. He went to live at a local budget hotel that is, sadly, all too commonly a crime scene. 4. His parole conditions required that he wear an electronic monitoring anklet. His parole conditions required that he abstain from taking illicit drugs. When he was released, he was in need of high-level support. He needed a Community Treatment Order, supported accommodation, and help engaging with the Illawarra Drug and Alcohol Health Service. All had been recommended when I sentenced him on the last occasion. 5. When he was released, it appears that his schizophrenia illness was still operating on him. He still had the Substance Abuse Disorder that had plagued most of his life. He still had other conditions, including perhaps an intellectual disability and antisocial disorders. His negative personality traits have become entrenched and his mental health issues remained untreated. 6. Although he did receive some medication, he soon stopped taking it. He also used illicit drugs. He failed to charge the battery on his EM bracelet. He became increasingly paranoid, feeling that he was under surveillance, even more surveillance that the EM anklet. He was, soon after his release, highly troubled. 7. A breach of parole warrant was issued after it became clear that he had cut off his EM anklet. It was in that situation that he committed the offences that brought him before the Court. 8. On the last occasion, I had the benefit of a report from a respected psychiatrist with extensive experience in custodial matters, Dr Richard Furst. He provided a further report. He said at p 9: "[Colvin] struggled to cope throughout his teenage years and adolescence as a consequence of his addictive disorder and the longer-term affects of childhood trauma and parental neglect. … [he] was highly troubled by paranoid beliefs [on release]. … he was still experiencing psychotic symptoms [when these offences occurred]." Agreed Facts 1. Turning now to the Agreed Facts. 2. As a consequence of becoming informed that he had breached his parole, police attended his mother's home on 6 March 2023. They went to the rear yard and the offender presented himself holding a T-handled car puncture repair tool – a device with a black handle and a sharp metal prong. 3. As a consequence of being so confronted, one police officer drew his firearm, the other drew his taser. They pointed their weapons at the offender and instructed him to drop the tool and get down. He refused, saying, "What for?" He was told, "you've got outstanding warrants". He was told again he was under arrest, and again, instructed to drop the weapon. He waved the tool in front of him, yelling to the police officers, "Do it, do it cunt." 4. A police officer activated his taser. The prongs embedded in Colvin's stomach, and he dropped to the ground. But as police tried to secure him, he struck out at them with his feet, attempting to kick them. He was eventually subdued but continued to resist during the handcuffing process. 5. He was placed in custody and taken to the Long Bay Correctional Centre at Matraville. There he was placed in the waiting area of the gaol clinic, a covered, enclosed yard. 6. CCTV of the incident that then occurred there was played in Court. In the yard was a man of a similar age to Colvin or perhaps older. He is sitting quietly while the offender is pacing backwards and forwards in an agitated manner. At a point the older man recalls being told by the offender, "I told you I would get you. When I come out of the clinic, I'll get you". Shortly after, the offender took a ballpoint pen from his pocket and struck the older man, his victim, about ten times with his hand and that pen. He held his hair and thrust the pen into the victim's face. The victim fell to the ground as police officers came to restrain the offender. 7. The incident took about 25 seconds; 16 blows were inflicted. The victim suffered a comminuted nasal bone and nasal septal fractures with mild deviation and minimally displaced fractures of the medial wall of both orbits; in other words, facial fractures. He also had multiple skin lacerations and other injuries to his head; on the temple, the mandible, bottom of his lip, around his right eye and on his arm. They were treated and bandaged with steri-strips. 8. There is no Victim Impact Statement before the Court. That fact does not mitigate, and I do not presume from its absence that there was no harm. People are sent to gaol to be punished by the deprivation of their liberty, not to be physically assaulted. Objective seriousness 1. Turning now to my assessment of the seriousness of the matters. 2. It needs to be stated and restated that the community is dependent upon the hard work and courage of police officers. Police officers take substantial risk in the exercise of their duty. The courts, by the imposition of penalties which must always be proportionate to the crime, attempt to deter others from similar offending and indicate the court's support for police authority in maintaining law and order: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 2 of 2002 [2002] NSWCCA 515. 3. As Mr Booker, counsel for Colvin, submits, there are many more serious types of offences dealt with by the courts than this one. But that does not mean that this was not a serious offence. The presentation of the weapon and the invitation to "do it" placed the police in a particular dilemma. They were in a relatively confined space; the weapon could have inflicted serious injury upon them. The offender was obviously unwell, but that did not make him any less dangerous. They were confronted with a dilemma of whether to use a weapon and what weapon to use. 4. I do not underestimate the impact of offending such as this on officers and nor should the community. 5. So far as the gaol assault is concerned, a makeshift weapon was used. There was obviously some premeditation. The perceived provocation has to be viewed in the light of a floridly mentally ill man who inflicted it. This crime involved serious and gratuitous violence with a weapon. The level of violence is demonstrated by the CCTV. It shows that the attack was persistent, even though it occurred over 25 seconds, and that Colvin intended to cause serious harm. This is evident by the multiple blows being primarily directed to the victim's head. 6. In making my assessment I have to also have regard here to factors personal to the offender that are causally connected or materially contribute to the offending; here his mental disorder and mental impairment: Tepania v R [2018] NSWCCA 247. 7. In cases such as this, mental illness is relevant to the issue of objective seriousness, but it is also relevant to my assessment of the offender's moral culpability and other matters that have to be taken into account. And, as all matters must be synthesised, I do not compartmentalise or double count. Other matters 1. Additional matters that can aggravate a sentence are the offender's record, which is extensive, and the fact that he had only been recently released to parole. Subjective case and moral culpability 1. I do not propose to set out in any detail the offender's background and history; they were comprehensively summarised in my earlier judgment: R v Colvin (No 2). 2. In Dr Furst's report of 1 March 2024, he carefully sets out the impact of schizophrenia on this offender and explains that illness and its impact on people. Dr Furst recommends that: * Colvin engage in drug and alcohol treatment with interventions including, the Intensive Drug and Alcohol Treatment Program and EQIPS Addiction. * He commences opioid replacement therapy. * Colvin engage in psychological treatment, particularly to improve his coping skills and address childhood trauma and abuse. * On release to parole Colvin be followed-up by the Illawarra Community Mental Health Team, preferably pursuant to a Community Treatment Order. It would seem in my judicial opinion, although it is a matter for the State Parole Authority, that that order should be put in place before he is released because, as Dr Furst recommends, Colvin will need to comply with his medication regime and attend appointments. * He engages with the Illawarra Drug and Alcohol Service. * If possible, he should be provided with a high-level support package through the NDIS. 1. Dr Furst notes that as Colvin ages, given that he is not mentally robust, he will be vulnerable in prison. It would appear that some of the matters on his record have been in response to being stood over. Dr Furst concludes at p 11: "Unfortunately, the clinical profile of Mr Colvin is not reassuring in terms of future prospects of rehabilitation, as evidenced by him spending most of his adult life thus far in custody and his tendency to reoffend within a relatively short period of release from custody. It is more likely than not he will continue to run into trouble with drug use and lower-order criminal offending in the future as a product of his addiction, impulsivity and paranoia. The combined effects of severe childhood trauma, deficient parenting, out of home care in childhood, schizophrenia, drug addiction, intellectual disability and institutionalisation are clearly daunting." 1. In Dr Furst's opinion: "The best placement option for Mr Colvin would be in supportive independent living in the community with high-level NDIS funding and to have assertive psychiatric drug and alcohol follow-up and treatment in parallel with such interventions." 1. A copy of Dr Furst's report will be provided to Community Corrections. 2. It is accepted that there are a number of paths to reduction of the offender's moral culpability. Here, they include the effects of childhood deprivation and neglect: Bugmy v the Queen. The fact that as a child he was additionally traumatised by being the victim of sexual assault: Nasrallah v R [2021] NSWCCA 207. And, his multiple mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. The De La Rosa principles apply here. Colvin should not be, judged in the same way as an offender who did not have his background and mental illness. Gaol will be harder for him. 3. Principles relating to general deterrence have also less application here. Specific deterrence is required and possible because, as I held on the last occasion and now repeat, Colvin is capable of learning, as the evidence before me today demonstrates. All of those matters are interrelated and, as I have said, must be given full weight. 4. As I said on the last occasion and have said in other cases, one of which Mr Booker drew to my attention this morning, the purposes of sentencing in dealing with people who are mentally ill points in a number of different directions. As Gleeson J said in Engert v The Queen (1995) 84 A Crim R 67: "A moment's consideration will show that the interplay of considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration." 1. In R v Nydegger [2023] NSWDC 619 I drew from what Basten JA said in R v Windle [2012] NSWCCA 222, to conclude that the criminal law is not the most appropriate mechanism for protecting society where the potential danger is a result of mental illness. Gaol terms, lengthy periods in gaol where access to treatment is limited, are very, very blunt instruments for community protection. They are not appropriate places for those with a longstanding mental illness. 2. Significant weight must therefore be given to those principles which apply in this case. Submissions 1. In his careful, comprehensive submissions, both written and oral, Mr Booker notes that there is evidence in the report of Dr Furst, the evidence of the offender today, and through his letters to the Court, one of which he read this morning, that he has some insight into his offending. Colvin said today, he is determined to do what he can to change. He is taking his medication, he is engaged in treatment, he is in the mental health ward, and, unlike previous gaol terms, he has no conduct matters on his record. 2. It is accepted that a custodial sentence has to be imposed. There are other matters where, apart from perhaps matters of emphasis, Mr Booker does not dispute what is in the written submissions put before the Court by Ms Verghese, for the Director of Public Prosecutions. 3. Mr Booker asks that I consider the context of this offending. He submits that even in the face of entrenched recidivism, it is in the community interest that this offender be supervised for as long as possible on parole. 4. The submissions of the Director put matters that have to be considered when it came to my assessing objective seriousness. They note the guarded opinions of the experts. They also note, and I accept, that the sentence must recognise the harm done to the victims, not just the victim of the offence who I am told was aged 79 and unable, as is clear, to defend himself when he was set upon without warning, but also the harm done potentially to the police officers. 5. The submissions also refer to the fundamental duty of courts to attempt to protect the community from the offender. But here, offending in the community and in gaol, and the underlying problems that I have referred to make that difficult. But even where there are significant mitigating matters, the Court must impose an adequate sentence and punish the offender accordingly. Synthesis 1. Things may change over the next year, but at the moment the sort of services that are clearly required are unlikely to be made available. And, despite Colvin's promises today, I share the pessimism of Dr Furst. 2. There must be punishment sufficient to recognise the seriousness of each offence, to vindicate the dignity of the victims and to signal to this offender that what he did was totally unacceptable, even though affected by his underlying mental illnesses. 3. He has not yet been able to learn that the consequence of further offending will be further gaol because he has always offended again. And, because he has offended again and again, he is not a good prospect for parole. But he must be released to parole and the longer he is supervised and the greater the extent of the supervision the better. 4. It had not been my original intention to make a finding of special circumstances. I will, however, increase the period on parole by a very modest degree for two reasons: 1. There must be some accumulation, some period to reflect the breach of parole, albeit only brief, from when he went into custody. 2. To give Colvin some encouragement to continue, as he has been doing during the last six months, to be of good behaviour in the gaol and to engage in and continue with his mental health treatment. 1. There is a danger with any person who has been institutionalised, as Colvin has, that they give up hope for the future and stop co-operating with the authorities. That said, any adjustment, given the sentence has been otherwise reduced because of the mitigating matters raised, can only be modest. 2. There will be some accumulation as between the sentences. I will, in the sentences indicated, take into account the early plea of guilty and they will be reduced by 25%. I will take care that the process of accumulation does not erode that benefit. The sentence, because of the application of the totality principle and because I have already taken into account they occurred in breach of parole, will start only shortly after he returned to custody on 6 April 2023. Orders 1. I will impose an aggregate sentence. The following sentences are indicted: * In relation to the use weapon offence against the police, there will be a sentence of 1 year and 1 month indicated. * In relation to the hinder, there will be a sentence of 3 months indicated. * In relation to the use weapon with intent, taking into account the matter on the Form 1 – and here I note the matter on the Form 1 was far from trivial and increases for the Form 1 do not need to be notional – there will be a sentence of 3 years' imprisonment. Noting that I sentence for the offence for sentence not the Form 1 1. The aggregate sentence will be 3 years and 3 months. There will be a non-parole period of 2 years and 3 months. It will date from 6 April 2023 and expire on 5 July 2025. There will be a non-parole period of 12 months, reflecting a modest finding of special circumstances, which will commence on 6 July 2025 and expire on 5 July 2026. 2. Release to parole will be contingent on the decision of the State Parole Authority and they will only allow release to parole having considered matters relating to community safety: Crimes (Administration of Sentences) Act 1999 (NSW), s 136. ********** 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: 11 July 2024