New South Wales District Court CITATION: Ledwidge, Anthony v D.P.P [2008] NSWDC 313 HEARING DATE(S): 10/11/2008 JUDGMENT DATE: 11 November 2008 EX TEMPORE JUDGMENT DATE : 11 November 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ Convicted. Pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999, for the purpose of assessing the offender's capacity and prospects for rehabilitation and assessing that rehabilitation has taken place, I adjourn these sentencing proceeding for a progress report to the 20th February 2009 at Sydney District Court Bail is granted to the offender on the following conditions: 1. To be of good behaviour 2. Reside at 21A Wentworth Street Telarah NSW 3. Report to Probation and Parole Office at Maitland within 48 hours of release 4. Obey all reasonable directions of Probation and Parole including counselling regarding domestic violence, self image and anger management 5. In the event of change of address, only do so by consultation with Probation and Parole 6. Notify the registry within 2 working days of any change of address DECISION: 7. Renew or report within 5 days of release to the Wesley Uniting Employment Agency and seek to have your program manager restored 8. In consultation with Probation and Parole, make contact with Local Mental Health Unit for psychological or psychiatric counselling 9. While unemployed you will find some community activity whether coaching, sports based, charity based that will occupy yourself for at least 15 hours weekly 10. You will abstain completely from alcohol for the next 6 months and there after only after consultation with Probation and Parole regarding responsible drinking program 11. You will provide proof of community based activities 12. Submit to random urine analysis for the purpose of detecting illicit drugs and or alcohol at least 4 times monthly 13. Any dirty drug test will be deemed a breach of bail 14. Supplying urine sourced from another person is deemed a breach of bail 15. Attend Court at all times required by the Court 16. Fail to attend Probation and Parole as directed by them or the Court will be deemed breach of bail 17. I require that I be notified within 48 hrs of any breach CATCHWORDS: Criminal Law - Severity Appeal from Local Court - ddomestic violence assaults (x2) - breach of C.S.O. - s.11 bail for 12 months with conditions focusing on rehabilitation strategies. LEGISLATION CITED: Crimes (Sentencing Procedure) Act PARTIES: Anthony Keith Ledwidge Director of Public Prosecution FILE NUMBER(S): 2008/16801 SOLICITORS: Crown: Ms Gomez Defence: Mr Kiely JUDGMENT 1. On 12 October 2007 this appellant was at home consuming alcohol. I suspect his wife was too. It seems that their alcohol preference was port because it was cheap. About 9 o'clock he started yelling at his partner. She could not understand why. She tried to reason with him, although in what condition she was is kept silent here. He refused to listen. He grabbed her by the throat, lifted her off the ground, pushed her from the lounge room into the hallway, yelling "I'm going to kick you in the head"; pushed her to the ground, placed his foot on the right side of her head pinning her to the ground. Experiencing pain in her ears she screamed "You're hurting me". She was held there for about two minutes before removing his foot. 2. She said to him "Do you want me dead or something?" He said "I want you dead". He walked into the kitchen and returned with something in his hand, which she believed to be a knife. Fearing for her safety she ran from her own home. 3. Some minutes later she re-entered by climbing through the lounge room window because she thought the appellant had fallen asleep. She went to their bedroom, collecting a blanket and a pillow. He was asleep. She was exiting the room and the door become jammed against the bed. That woke the appellant and he said, "You've got three seconds to get out of the room". Scared, she became stuck between door and doorframe. 4. There is other evidence describing this house as virtually uninhabitable. It is hard to know why that door became stuck. In any event the appellant came out of bed, began pushing the door against her stomach, preventing her from leaving the room. After a short struggle she managed to get most of her body through the door except for the right leg. He continued pushing the door against her leg, causing her pain there and bruising. 5. The appellant's partner eventually got her leg through and, upon doing so fell, striking her head. She thought she was out for about 10 minutes and woke to the sound of her children crying. She went to the children's room and comforted them. There she remained until morning. 6. The next morning the appellant woke, approached her and continued the argument "You'll never see your kids again." He said. She left her home again and contacted police and remained outside until police arrived. He was arrested without resistance. Ultimately he came before the Court. 7. For the first assault he received 100 hours community service comprised of 80 hours of community work and 20 hours of programs. It is clear, listening to the appellant today, that he was desperately in need of programs to assist him. A lot of people take a view that Probation and Parole are just there to hassle people. My view is that they are a resource for people who need assistance. 8. On the second assault he received 50 hours of community service, all of it to be served by way of community working. Those sentences were imposed on 12 December 2007. 9. On 8 January 2008 the appellant attended the Maitland district office of Probation and Parole as ordered by the Local Court. He participated in the community service order induction program where his obligations were explained to him. Among those obligations he would have been told that if he did not commit to complete the hours, he would be placed before the Court again and was liable to go to gaol. He was to be placed on an integrated community project when it commenced on 20 February. 10. On 22 February he attended the Maitland district office of Probation and Parole to sign his work instruction with that integrated community project. He was told to be at the pick up point at 8am on 27th and 28th and every subsequent Wednesday and Thursday. The first couple he did all right but on 14 and 22 April he failed to perform the community service and it was said he was unable to provide a satisfactory explanation for his absence. I think he has done that in Court today, he has explained that he could not get up. The reason he could not get up was probably because he was hung over from the night before. 11. On 13 June a failure to comply letter was sent to him, no doubt telling him or reminding him of what he had been told, that he was liable to have the order breached and then gaol was possibly an option. That letter on 13 June was in respect of absences of 26 May and 2 June. On 9 July a second failure letter to comply was sent because he had failed to go on 16th, 23rd and 30 July and 7 July. Even so, those running the community service program sought to discuss his problem on 17 July at 2pm but he failed to report for that discussion. On 23 July yet another letter was sent informing him he had been withdrawn from the assigned agency and the matter was to be returned to court. 12. He failed to attend for work on six occasions it was said, on my count it is more than that, and when he was there his performance was considered poor. He had also failed to complete the program component of the order, had only attended the first three sessions of I think it was 20. The Court did what he always knew it was likely to do; in respect of the first offence it put him in custody for six months and in respect of the second, put him into custody for three months. 13. A funny thing was that he had done a community service order once before in 2002 and those who were supervising him then thought his response was deemed to be excellent. It says to me that he has got it in him. In 2005 he was given a 12-month bond for an offence similar to the one that is the foundation for these community service orders. 14. In the course of his evidence today I indicated that it seemed to me he had two choices. The first was to demonstrate that he could co-operate with Probation and Parole, get out and do something about getting his life together. The second was, he could accept his time in gaol. He has given evidence that he was terrified in gaol; big hulking man, strong enough around the house to belt the living daylights out of people but did not feel so tough in gaol. He was scared to come out of his cell for most of his time, I can understand that. Nobody would like to be in gaol. 15. Orders of the Court can be enforced and sometimes, to be enforced, we have to look not to the offender to have the orders enforced, but rather to custodial officers to have our orders enforced because offenders will not do what they are asked. That is what has happened on this occasions. The men in uniform will do what we ask when offenders will not. 16. I am going to adjourn the finalisation of this matter for 12 months and during that adjournment I am going to allow you, pursuant to what is called section 11 of the Crimes (Sentencing Procedure) Act to have bail. Now that particular section of the Crimes (Sentencing Procedure) Act has, as its focus, to give to an offender an opportunity to demonstrate to the Court, that is me, that he can rehabilitate which in simple language means get back on his feet; lead a useful, valuable life to the community. 17. You can do that, firstly, by being a good husband or partner; secondly by being a good father. Look around the community, people have been raised in families that constitutes a community. People who are parents, even if they are not employed, there are good parents making a wonderful contribution to the community. If you can get employment - things may get tough they tell me in the next 12 months but if you can get employment, so much the better. If you cannot, you can start giving something to the community. There may be a sport that you are good at, you can go and be the gear steward for all I mind. If you get a home, you can keep the outside of it neat and tidy so that it looks tremendous. Become a gardener. You do not just have to sit on your backside saying "I'm unemployed, this is terrible, give me another port". That is allowing life to drift away. 18. The conditions of the bail will be, firstly, that you will be of good behaviour. Secondly, that you will reside at 21A Wentworth Street, Telarah. You will report to the Probation and Parole office at Maitland within 48 hours of release, that is two days. You will obey all reasonable directions of Probation and Parole including counselling re domestic violence, self-image and anger management. 19. Now in the event that you move, does your brother in law still live at that place where you are going? APPELLANT: Yes sir. HIS HONOUR: If there are any tensions and you feel you have to move, you will do so in consultation with Probation and Parole. APPELLANT: Notify them straight away. HIS HONOUR: No you misunderstood me. Consultation means "hello, I've got to move, can you help me". 20. In the event of change of address, only do so in consultation with Probation and Parole. You will renew or report within five days of release to the Wesley United Employment Program and seek to have your program manager restored. 21. In consultation with Probation and Parole, you will make contact with the local mental health unit for psychological or psychiatric counselling. I would like to find out what is causing you to be angry. Somebody must have mistreated you when you were a child perhaps, I do not know. Is that right? APPELLANT: My Dad was violent when he was drinking. HIS HONOUR: All right. So we want to get that out in the open and find out what it is so you can deal with it, do you understand that? APPELLANT: Yes sir. HIS HONOUR: 22. You will, while you are unemployed, find some community activity, whether coaching or sport based or charity based like sorting out clothes for the Salvation Army or whatever, right? But some community activity that will occupy you for at least 15 hours weekly. That is a couple of hours each day. When you come back to me in three months time, we have this checklist, you are going to have it and I am going to need to know about it. 23. You will abstain completely from alcohol for the next six months and thereafter only after consultation with Probation and Parole. I am not going to keep you off alcohol forever but there is a responsible drinking thing, I think you would be crazy to go back to it but I am not going to keep you off it except for the first six months understand? APPELLANT: Yes sir. HIS HONOUR: So consultation with Probation and Parole re responsible drinking program. 24. You will provide proof of community based activities, get a letter from somebody saying you have done what you have done, did I put in the random urine? Submit to random urinalysis for the purposes of detecting illicit drugs and/or alcohol at least four times monthly. Any dirty drug test deemed a breach of bail. Supplying urine sourced from another person breach of bail. 25. You will attend Court, that is my Court, at all times required. 26. Failure to attend Probation and Parole as directed by the Court or Probation and Parole deemed a breach of bail. 27. Is there any condition that I have put there that you cannot meet? APPELLANT: No sir I will stick to all those conditions. HIS HONOUR: You have said that in open court, you understand that? APPELLANT: Yes sir. HIS HONOUR: It means I am going to hold you to it, you have had your chance to change them. 28. I require to be notified of any breach of bail within 48 hours. 29. Bail can be entered downstairs. GOMEZ: Your Honour just in relation to any change of address must be done in consultation with Probation and Parole, I do not know if the registry are automatically notified but perhaps it might be prudent-- HIS HONOUR: You should also notify the registry here too yes. In consultation with Probation and Parole, that is that condition. In the event of any change of address only to do in consultation with Probation and Parole. There is a further condition related to that which is notify the Registry within two working days of any change of address. That is so we can keep in contact with you. APPELLANT: Yes sir. HIS HONOUR: You will get a copy of this bail and you will see in a minute, I am going to set a date early next year, you will have to probably come down to Sydney. APPELLANT: Yes sir. HIS HONOUR: And this will be a checklist, I will be asking you "have you been of good behaviour, where are you now residing" and so on and so on, right through the list. "What is the community organisation that you are attached to and doing" write it down so that you will know what you have to tell me when you come. APPELLANT: Yes sir. HIS HONOUR: Because it is the conditions on the bail sheet do you understand? APPELLANT: Yes sir. HIS HONOUR: If you make progress, I will indicate to you now I will suspend the sentences, that means that you will not go back into custody and I will reduce them for what you have served already. If you fail, you will go back into custody and complete the sentences and again, I will give you credit for what you already have done. APPELLANT: Thank you, your Worship. GOMEZ: Perhaps your Honour might want to take a transcript of today's proceedings. HIS HONOUR: Yes we might have a transcript please. 30. I wish you good luck. We had better set a date so we know when we are going to be hearing from you. I will see you on 13 February all right. APPELLANT: Yes sir. DISCUSSION AS TO SUITABLE DATE HIS HONOUR: Friday 20 February. I would very much prefer to keep counsel in it so I am very pleased to accommodate you. 31. What is the first thing you have to do once you get out Mr Ledwidge? APPELLANT: Go to Probation and Parole within 48 hours or 42 hours. HIS HONOUR: Yes. APPELLANT: The next two days. HIS HONOUR: When do you get your first drink? APPELLANT: Not for at least a year. HIS HONOUR: All right, so long as we understand each other. It is my intention to finalise this a year from today as best I can, which will be Friday 13 November. 32. All right good luck. APPELLANT: Thank you, your Worship. 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.