New South Wales District Court CITATION: Regina v Bradley Grant Hunter [2006] NSWDC 23 JUDGMENT DATE: 26 May 2006 JUDGMENT OF: Finnane QC DCJ DECISION: I impose upon him a sentence of full-time imprisonment of two years with a non parole period of 12 months. I impose that non-parole period, because I consider that there are special circumstances in this case. The non-parole period will commence on 26th May 2006 and will conclude on 25th May 2007. The balance of the sentence will commence on 26th May 2007 and will conclude on 25th May 2008. The offender is to be released to parole at the expiry of the non parole period; I recommend that he be given early classification to a minimum-security classification and if possible, the benefit of a young offenders programme. I also recommend that he be given counselling about relationships and anger and psychological assistance if deemed necessary by the Department of Corrective Services. CATCHWORDS: sentence - break and enter - intimidation of victim - stalking victim - breach ADVO - damage to property - offender's obsessive behaviour towards victim - psychological issues - adjustment disorder - obsessive compulsive disorder - depression - limited sentencing options due to offender's residence - LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v Elmir and Salami [2003] NSWCCA 192 Regina v Joel Tory and Luke Tory [2006] NSWCCA 18 PARTIES: Regina Bradley Grant Hunter FILE NUMBER(S): 05/11/1082 SOLICITORS: Ms Thompson (NSW DPP) Mr Marshall (Offender) - 1 - REMARKS ON SENTENCE Introduction. 1 A young man appears before me today for sentence. The crime with which he is charged is a very serious one, carrying a standard non-parole period of five years if I were to hold that it were an offence within the mid range of seriousness. It arises out of a broken love relationship, but also concerns obsessive behaviour on the part of the offender, which led to his persecuting the complainant for a period of almost a year. 2 The complainant, who was a young woman, for some months, had an intimate relationship with the offender. She terminated it because of his obsessive behaviour. He could not accept this. Notwithstanding court orders, he continued to pursue her, even though she asserted her entitlement to live separately from him. At no time did he give any consideration to her feelings or her entitlement to live her own life. He decided that she had no such entitlement, and that he had a continuing right to control her life. 3 Unfortunately, there are many in our community, particularly men, who believe that they have the right to control the lives of women, and that the women have no entitlement to refuse to have anything to do with them. Apprehended violence orders are made and ignored, until eventually, some quite serious crime brings the offender before the court. That is what happened here. 4 The offender, like many others who ignore apprehended violence orders, is a man of good character. He is a tradesman and could have a future. It has to be brought home to the offender and to other men of good character, that they have no entitlement to abuse women, humiliate them, harass them, assault them or commit any other crimes against them. These activities cannot be justified by claims of love. 5 Love has nothing to do with it. A person who loves another, consults the feelings of the other and is concerned about the welfare of the other. Obsessive harassment is not love. 6 The offender must learn that enough is enough and that when courts make orders, he must obey them. The sentence, which I impose upon him, takes into account all the facts, his youth, his previous good character, the need to protect the complainant, personal and general deterrence, retribution and rehabilitation. Facts. 7 On the 14th of August 2005, Bradley Hunter, a young man, 25 years old, broke and entered a flat in a building at Cronulla. The occupants of the flat were Catherine Fisher and her friend, Emily Williamson. At about 9:30 p.m., while the two young women were in the flat, Miss Fisher heard the offender, with whom she had lived a short time before, shouting out in the street. What then happened was that the offender caused damage to the car of a man called Darren Rogers and then entered her flat, by punching his way through a fly screen covering an open window. Miss Fisher ran into Miss Williamson's bedroom, and both women stood with their backs to the door to stop the offender getting in to the bedroom. Meanwhile, he was in an adjacent room, calling out "let me in. Why are you doing this to me?" He also yelled out, a number of times. "How could you do this? I still love you". 8 The two young women became quite hysterical, and very frightened. Mr Rogers, who had been in the flat, was now down stairs and unable to get back and come to their assistance. Somehow he managed to gain access to the building, came to the flat and knocked on the door. He and the offender then had an acrimonious conversation, during which the two young women managed to escape from Miss Williamson's room and get into Miss Fisher's room, where Miss Fisher grabbed her mobile phone and rang "000". By this time, she was so hysterical, that she was unable to speak, and Miss Williamson spoke to the operator. All the while, the argument between the offender and Darren Rogers was raging. By this time, Mr Rogers had got into the flat and there were sounds of a struggle between the two men in the course of which, the two women heard the offender say to Darren Rogers: "how could you do this to me? I still love Catherine." They also heard the offender crying. 9 The events, which led up to, this sorry state of affairs began in early December 2004. During early December 2004, Miss Fisher broke off a relationship with the offender. This relationship, which was of an intimate type, had commenced in October in that year. She broke off the relationship because she found the offender too possessive. 10 However, he refused to accept her entitlement to break off the relationship and continued to pursue her, adopting such means as constantly ringing her on her mobile phone and sending SMS text messages demanding that she return to him. 11 This continued for some months during which time he also sent her letters and went to her flat. On four occasions she reported what was happening to the police. On the 13th of April 2005, the offender sent her a message saying he was going to end his life. This caused her great distress, and she contacted the police. 12 On the 20th of April 2005 she laid a complaint and sought to obtain an apprehended violence order. An interim order was made on the 4th of May 2005. The terms of this order prohibited him from contacting her by any means whatsoever, and required that he not go anywhere near her place of abode. He was present in court and signed the order. The further hearing of the matter was adjourned to the 29th of June 2005. 13 Despite the order, on the 25th of May 2005, the offender wrote a card to the complainant, put it in an envelope and caused it to be delivered by someone else to the front door of the home units in which complainant lived. The card was full of apologies, protestations of love and a claim that he could not stop thinking of her. The delivery of this card was in clear breach of the order and the complainant notified the police who arrested him. When arrested, he admitted that he had signed the order and was in breach of its condition. On the 29th of June 2005, the interim order was made a final one, and he was fined $250 for contravening the interim order. 14 The obsessive behaviour of the offender continued. On Sunday the 17th of July 2005 the offender, confronted her at about 8 p.m. near her home. A friend had rung her and told her that she had seen the offender just after the complainant had left a hotel at Cronulla. Because she was concerned that he might damage her car, which was in the street, she left her home unit and went downstairs. The offender was down stairs, waiting for her near her car. He said that he wanted to talk to her. When the complainant attempted to leave the scene and go into the home unit block, he began to follow her. She stopped and an argument developed. She then attempted to run away and was pursued by the offender, who grabbed her and prevented her from leaving. When she broke away from his grasp, he pursued her. By this time, she was terrified and was screaming. Two men, who were passing by, came to her rescue, and they diverted the offender, while she ran to get inside her home unit block. Two other men heard her screaming and escorted her back to her flat. By the time she arrived at the flat, she was hysterical, and shaking. She contacted police the next day, and he was arrested on the 19th of July 2005. 15 On the 20th of July 2005, he came before the Sutherland local Court, where he was sentenced to imprisonment for eight months with a non-parole period of six months, the sentence being suspended upon his entering into a bond to be a good behaviour for a period of eight months. 16 Not content with what he had done so far, the offender then returned to harass, Miss Fisher again on the 14th of August 2005. On that day, apart from breaking into her flat and terrorising her and her friend Emily Williamson, he damaged the fly screen to the flat bedroom window and also caused damage to the motor car of Darren Rogers, the young man with whom he had a fight in Miss Fisher's flat. Those items of damage are reflected in the two items on the schedule, which the offender has asked that I take into account. 17 The offender left the area and disappeared. The police arrived, took statements, and then left. Miss Fisher's mother came to stay with her and give her some comfort. Late that night, after the police had left, the offender returned and again attempted to get into the flat. Miss Fisher's mother spoke to him, while Emily Williamson again rang the police, hoping that if she engaged him in conversation, the police would come and arrest him. However, the offender realised what was going on, and again left the scene after making some very derogatory comments about Miss Fisher, and after uttering threats against Darren Rogers. 18 Next day, the offender drank a half-cup of toilet cleaner and was admitted to hospital. Police arrived at the hospital and arrested him. He admitted the offence with which is now charged and the other matters, which are now in the schedule. The conversation he had with police at the hospital in my opinion indicates that he was in a very distressed state and was possibly suicidal. The conversation, as it was recorded in the notebook of Constable Patterson, which was signed by the offender was as follows: "Q. Brad, can you tell me what happened last night? A. All the shit I have been through, he was supposed to be my mate. I shouldn't have gone there. It's not the right thing to do. I am going to gaol for this. I've had a few drinks. I went there about two hours ago. I saw Darren's car there, he has a ute, he is supposed to be my mate. Q. What colour is the ute? A. White, Q. What happened then? A. I yelled out "I know you are up there. My sister and Kath are good friends. Darren why are you doing this to me?" He is supposed to be my mate. Q. What happened then? A. I climbed up the balcony. I jumped in through Kath's window. I remember being in there; I don't know why I was in there. Darren then said. " I'm your mate". Q. What can you tell me about the damage to the bedroom door? A. I remember letting Darren in. "Darren you have two kids, and you are 35-year-old, why are you doing this?" Q. Did you have a conversation with Darren? A. Yes, then I left the unit. Q. Did you come back and throw an object at the bedroom window? A. I threw something to get attention. Q. What did you throw? A. A lead, that I was going to hang myself with. Darren came out of the unit. I was upset and crying. Darren told me there was nothing going on. Kath's mum came out and chased me down the street, then I went home, and drank Harpic" 19 After the offender was released by the hospital, the police arrested him and charged him. He took part in an electronic record of interview. I will refer to this interview shortly. 20 On the 29th of August 2005, his appeal against his sentence for contravening the apprehended domestic violence order on the 19th of July 2005 came before the District Court and a Judge reduced the sentence imposed by the learned Magistrate, by placing him on a bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act, 1999 to be of good behaviour for a period of 12 months. 21 Notwithstanding his arrest on the 15th of August 2005, the offender's obsession continued and on the 29th of November 2005, he sent another letter to the complainant. This letter contained no threats and was an apology. It contained mention of the fact that he would go to gaol for this, but it was worth it. The sending of this letter caused further upset to the complainant who contacted the police. He was then arrested in Lismore and charged with a further offence of breaching an apprehended domestic violence order. This further offence has relevance, in my opinion, when I come to consider the question of personal deterrence and the other important matters of rehabilitation. 22 I referred earlier to an electronic record of interview between the police and the offender. During the course of this interview, the offender said on many occasions that he did not intend to harm Miss Fisher, that he just wanted to know what was going on and that he let Darren Rogers into the flat. According to him, he had been on antidepressants, which he had not been taking and he had been drinking. The police asked him what his intention was when he broke into the flat, but he gave a rambling answer to the following effect: "My intention was to find out exactly what was going on and I wanted them to tell me, because they kept hiding from me. They kept telling, you know, everyone else, all my friends, all his friends, nothing's going on and I knew that there was something going on. And I, sort of in a way, I would, I would care no matter which way it was, if there wasn't or if there was." (Q & A 97). 23 He claimed that he did not intend to hurt Miss Fisher and that he did not intend to intimidate her. He agreed that there was an apprehended violence order in force and that he could not remember what he said when he was in the flat. He said that he had brought a rope to hang himself with, and had thrown this against a window at the flat. 24 During the course of this interview, he appeared to me to be fully frank with the police. It is clear to me that at the time he went to the flat on the 14th of August, he knew that what he was doing was in breach of the apprehended violence order. He had been drinking and he had apparently not been taking his antidepressants. He did not acknowledge in any way that he was intending to do any harm nor to intimidate Miss Fisher. In a confused sort of way, his claim seemed to be that he was entitled to find out "what was going on" even if this meant breaking into a flat. Evidence Presented on Sentence Hearing. 25 The offender was arraigned before me on the 17th of February 2006 and pleaded guilty to the present charge and asked that the two matters on the schedule be taken into account. He gave evidence and his solicitor tendered a report from Dr Ian Hayes, psychiatrist, a letter from his father who could not be at court and references from Brent and Anita Pender and Liam Sheridan, friends of the offender, who were all at court on the 17th of February 2006. As well as this, I have considered carefully, a presentence report dated the 13th of February 2006. 26 In his report, Dr Hayes reports that the offender remains obsessed by Miss Fisher, thinking of her daily and dreaming about her frequently. The offender gave him a history, which included depression and attention deficit disorder. Dr Hayes considered he suffered from mild symptoms of obsessive-compulsive disorder. He reported how the offender felt guilty and ashamed of his behaviour. 27 Dr Hayes expressed the opinion that the offender had been suffering from an adjustment disorder with disturbance of mood (depression) and behaviour. He also has marked traits of obsessive- compulsive disorder, insufficient to meet diagnostic criteria. He also had a past history of adjustment disorder with depressed mood and of attention deficit disorder. 28 He was of the opinion that a different form of antidepressants should be prescribed and that the offender needed cognitive behaviour therapy designed to block his obsessional thinking and improve his mood. 29 During the course of his giving evidence before me, the offender denied a continuing obsession with Miss Fisher, claiming that thoughts of her came to him because he was facing court. He claimed that he was finished with Miss Fisher, and that he was no longer obsessed with her. The pre-sentence report paints a somewhat different picture. What the offender told the probation officer, was that he was no longer interested in Miss Fisher and that he understood that his actions were wrong and unacceptable. 30 The offender gave evidence about the matters raised by Dr Hayes and the probation officer. I've found it difficult to be certain that his obsession with Miss Fisher is over. 31 He is now living in Lismore, a place chosen by him because his parents live there and because it was a condition of bail that he remain away from the Cronulla area. There is very little work in the Lismore area, and it seems probable to me that when he is able to do so, he will move from that area to a larger place. Indeed, I cannot be certain that he will not move back to Cronulla. 32 One of the problems with his remaining in the Lismore area is that he is in a state of comparative poverty, because he is unable to get regular work. This has meant that he has not sought psychological counselling in any meaningful way, partly at least, because he has not been able to pay for it. It was suggested to him, in cross-examination that he has not made much of an effort to obtain any psychological assistance. I think there is much weight in that submission. 33 It is really difficult to be certain what to make of the offender. I can well understand that the Crown would find it difficult to accept that he has made any real attempt to get psychological assistance. I am not really convinced that he has done very much about it, and I find it a little puzzling that he should want to live in a place where there is very little work available to him, merely because his parents live there. As a skilled tradesman, his services should be in demand in larger centres, both in the country and in the city. 34 The probation and parole service have assessed him as suitable for community service, and as eligible for periodic detention, but not suitable for it, because he lives too far from the nearest periodic detention centre to Lismore, namely Grafton. 35 His choosing to live in a place away from Sydney does limit the sentencing options available to me. Subjective factors. 36 He is young, and a tradesman. His father in a letter about him speaks well of him, as do his friends speak well of him. Apart from the incidents, which bring him to this court, and the other incidents, which led up to it, he could be regarded as a man of good character. Sentencing him, then is a matter of considerable difficulty. Sentencing options. 37 Prison should be the last resort as a form of punishment. Indeed, the sentencing legislation makes that plain. However, the offence, which he committed, is one where the Legislature has prescribed a standard non-parole period of five years imprisonment. The maximum sentence, which can be imposed for this offence is 20 years imprisonment. The seriousness of the offence is added to by the fact that there are two matters on the schedule to be taken into account, and both of them carry maximum penalties of five years imprisonment in one case, and two years on the other. 38 In my opinion, what makes this offence worse is also the fact that it was committed in breach of an apprehended violence order, and at the time the offender was the subject of a suspended gaol sentence. The history of the persecution of Miss Fisher before the night of the 14th of August and subsequently make it difficult to conclude that the offender will in the future obey orders of a court. During the course of his evidence, he made it plain to me that the fact that there was a bond imposed on him and that there were apprehended violence orders imposed on him which were current, were not sufficient to stop him from doing what he did. 39 He pleaded guilty at arraignment and is entitled some discount on sentence for that fact. The original charge, which was presented against him, was altered. Originally it was alleged that he was guilty of aggravated breaking and entry because he knew persons were present and he committed a serious indictable offence inside the premises, namely affray. 40 However, the charge ultimately presented against him, alleged aggravated breaking and entering, namely knowing that persons were present and committing a serious indictable offence, namely intimidation of Miss Fisher. 41 Although the particulars of the charge changed, the fact that it was laid under section 112(2) of the Crimes Act 1900, did not change. The offence of intimidation, with intent to cause fear is an offence under section 562 AB of the Crimes Act, 1900. It is a table 2 offence, which must be prosecuted summarily, unless the prosecutor elects otherwise (see section 260(2) of the Crimes Act 1900). 42 If prosecuted on indictment, it is regarded as a serious indictable offence, because it is punishable by imprisonment for five years. 43 Thus, it is plain to me that the offender, when he broke into this flat intended to engage in conduct which intimidated Miss Fisher. He may not have intended to harm her physically, but the slightest amount of rational thought, would have enabled him to conclude that he would be likely to cause her extreme distress and upset. In fact, her distress was so great that she was physically affected to the point of being unable to speak, when her friend rang the police. He had had these encounters with her on earlier occasions and on those occasions she also showed signs of distress. During the period he was in the flat, apart from fighting with Darren Rogers, he was shouting and yelling and applied force against the door behind which Miss Fisher and her friend were hiding. His subsequent actions in returning on the same evening, and continuing to shout and yell, causing further distress, showed a marked lack of appreciation on his part for her feelings. Sentencing Considerations. 44 The offence of aggravated breaking and entry knowing persons are inside, is normally committed by people who break and enter for the purpose of committing some serious indictable offence such as stealing or rape. Breaking and entering for the purpose of intimidation, in the circumstances of this case is quite unusual. 45 The Crown submitted that I should not allow a full discount of 25% because an objective assessment of the utilitarian value would entitle me to come to the conclusion that a lesser discount should be allowed. 46 On the other hand Mr Marshall, solicitor for the offender, submitted that I should allow the full utilitarian discount of 25% I have decided after some reflection that I should accept Mr Marshall's submission. Whilst it may be true that the case against the offender was strong, for he made admissions and was clearly identified, nevertheless in my opinion there was considerable benefit to the criminal justice system in his pleading guilty. The crime with which he has been charged has as an element that he committed an act of intimidation, with intent to cause fear. It is quite possible that he could have pleaded not guilty on the basis that he did not have this intention. 47 His plea of guilty has undoubtedly meant a considerable saving in the cost of the trial, which could well have been a very harrowing event for the complainant. 48 I have indicated already that I find it difficult to know precisely how to deal with this offender. On the one hand, he appears to be a young man, who is basically of good character, but who is afflicted with an unfortunate obsession for Miss Fisher. If it were nothing more than that, or this was an offence where little harm was done, I could well envisage giving him the benefit of a bond to be of good behaviour for a period of some years, with appropriate supervision from the Probation and Parole Service. 49 However, the plain fact he is that he did break into the premises. He did cause considerable fear and upset and this is not the first time in which he had taken action of an intimidating nature, which caused Miss Fisher considerable upset. 50 I have been referred to two decisions of the Court of Criminal Appeal. One is a case of Regina v Elmir and Salami [2003] NSWCCA 192 and the other a decision of Regina v Joel Tory and Luke Tory [2006] NSWCCA 18. In each of those cases, the offenders were charged with breaking and entering offences, which did not involve them in robbery, rape or stealing as a motive. 51 In the case of Elmir and Salami, the two offenders broke into premises and attacked an occupant of the premises. It would appear that this was some form of retribution for what they perceived to have been an attack by the occupant on the brother of one of them. It was submitted that this was an episode in which the offenders took the law into their own hands. However, the Court of Criminal Appeal pointed out that this was not at all correct and what was done had nothing to do with the law. The case was a Crown appeal. The trial judge had sentenced the offender to periodic detention, but the Court of Criminal Appeal increased the sentences to sentences of full-time custody because the original sentence was manifestly inadequate. 52 In the case of the Torys, the circumstances again were unusual. Both of the offenders, who were brothers, attacked a man in his own premises, because they believed that he was interfering with their 14-year-old sister. They caused him facial injuries and evidence was called to establish that indeed there was some basis for their belief that the victim had done something to their sister. 53 In each case the Court of Criminal Appeal imposed sentences of imprisonment, but suspended them because this was a Crown appeal. The Court made it plain that in its opinion, sentences of full-time custody should have been imposed in the first place. 54 It has been put to me, by Mr Marshall that the present case is very much less serious than these cases and therefore I should impose a sentence of other than full-time custody. Regretfully, I cannot agree that this is a less serious case than the two cases to which I have been referred. Certainly, the offender did not physically attack the victim Miss Fisher, but he caused her extreme distress and what he did was the culmination of what in effect was a reign of terror lasting for nearly a year. 55 People must be protected if they are in their own homes. No person has a right to invade the home of another merely because he has some cause that he considers justifies him in doing so. The claim that he was entitled to do so in some way, because he was upset at what he saw as the treachery of a friend is something, which cannot be accepted. 56 I am required to have regard to the maximum sentence and to the standard non-parole period in determining what the sentence should be. I must have regard to the aggravating features, which I have mentioned. I must have regard to the fact that he pleaded guilty and is therefore entitled to a discount on sentence, which I have assessed as being of the order of 25%. I must take into account all subjective features in his favour and in particular, his prior good character, and his age and I must form an opinion also about his rehabilitation. 57 I find it very difficult to be certain, what is likely to happen in the future. The evidence does not enable me to be certain that he has ceased his obsession with Miss Fisher. His own evidence, I found less than convincing. I find it difficult to understand why, when faced with the possibility of imprisonment; he would make such little effort to get any psychological counselling. I have mentioned before the fact that he has chosen, for reasons, which I find difficult to understand, to live in a place, which is quite remote from Sydney, a place in which he can get little employment. 58 I find the offence is less serious than that of a mid range offence. I do so because of all of the circumstances, which I have earlier set out. Nevertheless, it is a serious offence, which warrants a sentence of imprisonment. 59 Having regard to the factors, which I have mentioned, I consider that imprisonment for a period of two years is appropriate. I must then consider what form of imprisonment can be served. There are only two forms of imprisonment, which can be served in this case; full-time custody and a suspended sentence. 60 The other possibilities are not open because of where he lives. He has already breached one sentence, which was suspended and that has caused me some considerable anxiety. He has said that he did not appreciate what a suspended sentence was and thought it was only a bond. I find it very difficult to accept his approach, but in many ways, what would be best for him, if I were thinking only of him would be some form of bond with close supervision. 61 I find myself unable to give him a suspended sentence, because his previous breach of a suspended sentence shows that he had little interest in taking advantage of such a sentence. A good behaviour bond has been given and ignored, apprehended violence orders have been imposed and ignored and I must give considerable weight to the need to protect Miss Fisher. Sentence. 62 Therefore, with some reluctance and because it is the only sentence open to me to impose, I impose upon him a sentence of full-time imprisonment of two years with a non parole period of 12 months. I impose that non-parole period, because I consider that there are special circumstances in this case. The non-parole period will commence on 26th May 2006 and will conclude on 25th May 2007. The balance of the sentence will commence on 26th May 2007 and will conclude on 25th May 2008. The offender is to be released to parole at the expiry of the non parole period 63 I recommend that he be given early classification to a minimum-security classification and if possible, the benefit of a young offenders programme. I also recommend that he be given counselling about relationships and anger and psychological assistance if deemed necessary by the Department of Corrective Services. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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