New South Wales District Court CITATION: R v Graeme Frederick CONNELLY [2007] NSWDC 236 HEARING DATE(S): 22 October 2007 JUDGMENT DATE: 22 October 2007 EX TEMPORE JUDGMENT DATE : 22 October 2007 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment with non-parole period of two years and a total sentence of four years. . CATCHWORDS: Criminal Law - Sentence - Aggravated Break and enter - Commit serious indictable offence - Assault occasioning actual bodily harm - Intoxication LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: The Crown Graeme Fredercik Connelly FILE NUMBER(S): 07/31/0216 COUNSEL: J. Booth - Offender SOLICITORS: NSW DPP Aborignial Legal Service SENTENCE 1 HIS HONOUR: Graeme Frederick Connelly appears for sentence today after having pleaded guilty to a serious offence. It is an offence of breaking and entering premises and then committing a serious indictable offence. The serious indictable offence committed was an offence of assault occasioning actual bodily harm. The offence is aggravated by the circumstance that at the time Mr Connelly broke into the premises he knew that the place was occupied. These events all occurred on 22 March 2007. On that day the offender was drinking heavily. He was also consuming drugs. In the evening he committed not only the offence for which he is to be specifically sentenced, but also other offences on a Form One which he asks me to take into account. 2 The first offence is one of the matters on the Form One. That occurred at about 9.10pm on 22 March 2007. Two gentlemen, a Peter Cullen and Mitchell Self, were at home. Mr Self is the offender's brother-in-law. Mr Cullen is cared for by Mr Self. It appears that Mr Cullen is an epileptic. They are the only details I know about why it is that Mr Cullen has a carer. For reasons that are not all apparent, but which are clearly related to the offender's intoxication, he and others forced open the front door of the premises where Mr Cullen and Mr Self lived. The offender was armed with a black metal pole and he had three other men with him. He handed the pole to one of those men and walked towards Mr Cullen. He swung a punch at Mr Cullen, but that did not connect. He said, "Where's the money? Where's the pot? Where's the alcohol?" and then said, "If you call the police, I'll kill yous. We'll be back later for the rest." The four of them then left leaving behind, no doubt, a frightened Mr Cullen and Mr Self. They, quite sensibly, called the police. That offence that I have just described is the first of the matters on the Form One. 3 The offender returned later on that evening at 10.50pm. Again Mr Self and Mr Cullen were in their home. They heard the offender say, "I'm coming in this time" and then the back door of the premises was kicked in. The offender came in, turned the light on and walked in with other men behind him. Again he was carrying the black metal pole. He walked towards Mr Cullen who stood up. All that did was result in the offender head-butting Mr Cullen causing him to fall back onto the bed and hit his head on the wall. The offender addressed those who were with him by saying, "Come in boys and get everything." After that, money was taken out of Mr Cullen's wallet and Mr Self's wallet. The offender was not finished, however. He punched Mr Cullen to the right and left side of his face. It seems that Mr Cullen was knocked unconscious. 4 The offender then left the premises, but returned with the other men. At this stage he grabbed a black pedestal fan and went to swing it at Mr Cullen who appears to have regained consciousness. Mr Cullen dived towards the offender and tackled him to the floor. They struggled it seems, but that cannot have lasted very long because Mr Connelly hit Mr Cullen to his face, again causing him to lose consciousness. Mr Self left the premises, no doubt afraid of what would happen to him. He ran out the back door and hid in the grass. Mr Cullen's next recollection is being woken up by police. 5 The other matter on the Form One relates to the fact that Mr Self's mobile telephone was stolen during the home invasion. That phone was returned after he, that is, Mr Self rang his own number in an attempt to identify who had the phone. His sister, the offender's de facto wife, answered the telephone. Mr Self heard the offender in the background saying, "I'll pay the money back. I'll replace the smokes. I'll replace everything else that was damaged." When Ms Whiting relayed this to Mr Self, Mr Self said, "It's too late. It's going through the police." Mr Self did get his phone back after he went next door to his sister's place and she gave the phone to him. The offender was arrested on 28 March, taken to Muswellbrook police station. He did participate in an interview with police, although he said that he could not recall the events of 22 March because of his high level of intoxication. He has been in custody since that date. 6 The offender is twenty-four years of age. He is currently in a de facto relationship with Ms Whiting and they have four children. He has had a problem with alcohol for some considerable period of time. He was expelled at fifteen after he as Mr Booth put it, went off the rails when he was in high school once he started smoking drugs. His parents are both working and although other members of his family appear to have been in some trouble with the police, it cannot have been terribly serious trouble because the offender is the only member of his family to ever go to gaol. 7 After he was expelled, he started labouring and fruit picking which is where he met Ms Whiting. She has a commendable attitude towards drugs and alcohol. She does not take drugs, she does not drink alcohol and she does not like her husband doing either of those things. She has been in a de facto relationship with the offender since the offender was sixteen years of age. Since the offender has gone into custody it has been very difficult for Ms Whiting to visit him, especially as she has four children under eight. In fact, since he has been taken into custody he has only received two visits from Ms Whiting. That, of course, makes his time in custody harder than it would otherwise have been. 8 The offender expressed remorse which I am satisfied is genuine. Not only did he say that he was sorry in court today, but he has told other people and, soon after he went into custody, prepared some letters which were sent to Mr Self and Mr Cullen in which he did express his regret for what occurred. As I have said, I am satisfied that those expressions of remorse are genuine. He understands the impact of his offence on Mr Cullen and Mr Self. He now understands also that because of his actions his wife and four children are more vulnerable to precisely the same sort of offence that he has himself committed. 9 Since going into custody the offender has made attempts at rehabilitation and is now enrolled in the Phoenix Program at Cessnock gaol. It is program which takes thirteen or twenty-six weeks depending on how close the offender is to release from custody. 10 This is a very serious offence. It carries a maximum penalty of twenty years and also is one of those offences that has a standard non-parole period attached to it. Of course, the standard non-parole period is not of direct application in the present case because of the offender's early plea of guilty, but it remains as a guidepost to the sentence that I should impose. The fact that it has a standard non-parole period I believe reflects the legislative concern at the level of sentences that have been imposed for offences such as this in the past. It is accurately described as a home invasion. Mr Cullen and Mr Self were entitled to feel safe in their home and should not have to put up with the back door of their premises being kicked in by the offender and others. 11 The offence is aggravated, whether under s 112 or s 21A of the Crimes (Sentencing Procedure) Act, by circumstances apart from that charged on the indictment. The offender was armed with that metal pole that I have spoken of and he was in company on each occasion that he entered the premises. I am not able to satisfy myself beyond reasonable doubt that Mr Cullen was vulnerable. There is that intriguing reference to him having a carer and I do know that he suffers from epilepsy, but that is not sufficient in my view to satisfy me that he is vulnerable as that term is used in s 21A. 12 There are prospects of rehabilitation, but I am unable to say that they are good. There is a genuine desire on the part of the offender to rehabilitate himself and the offender clearly recognises the link between his consumption of alcohol and drugs and his offending, but more than genuine desire is required for the offender to achieve genuine rehabilitation. 13 There are special circumstances in this case. It is a matter where Mr Booth has asked that I make it a condition of the offender's release to parole that he attend the William Booth rehabilitation program. That is a residential program and is in effect quasi-custody. Because of the length of the sentence I will shortly impose, it is not for me to determine the conditions of parole, but I say quite clearly that it is a recommendation of mine that it be a condition of his release to parole that he does attend the William Booth residential program. Assuming that is the case and that it results in a further period of quasi-custody upon the offender's release from Corrective Services' custody, I will find special circumstances resulting in a reduction of the time the offender will spend in custody and an enlargement of the period of eligibility for parole. 14 There was some reference during the course of evidence to the position of the offender's de facto wife and his four children. Clearly they will undergo hardship, but unfortunately such hardship as was referred to in evidence is not exceptional at all and I am unable to make any significant adjustment in the sentence that I would otherwise impose because of that circumstance. I do recognise, however, that the offender will do his time in custody harder. He blames himself for the predicament that he has placed his de facto wife and children in. 15 Because of the offender's plea of guilty, the sentence I will now announce is twenty-five per cent less than would otherwise have been the case. The offender is sentenced to imprisonment. I impose a non-parole period of two years to commence on 28 March 2007 and a total sentence of four years. This means that the offender will be eligible to be released to parole on 27 March 2009. ********** 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. 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