New South Wales District Court CITATION: R v Peter James DAY [3] [2009] NSWDC 359 HEARING DATE(S): 12 June 2009 JUDGMENT DATE: 12 June 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment. I set a non parole period for one year to date from 20 November 2009, and a total term of two years. The offender's non parole period will expire on 19 November 2010, on which day the offender is to be released to parole. CATCHWORDS: CRIMINAL Law - Sentence - Breaking and entering in company with intent to commit a serious indictable offence PARTIES: The Crown Peter James Day FILE NUMBER(S): 07/21/3387 COUNSEL: E. Balodis - Crown P. King - Offender SOLICITORS: Director of Public Prosecutions Matouk Joyner Lawyers - Offender SENTENCE 1 HIS HONOUR: On 20 May 2009, after a four week trial, the offender was convicted of an offence of breaking and entering in company with the intent to commit a serious indictable offence, namely to intimidate a man by the name of SA. At the same time the jury found the offender not guilty of a more serious charge, namely breaking and entering in company with intent to kidnap a woman by the name of RM, she was at the time SA's wife. 2 The offender had been involved in the running of mobile telephone stores for some time. It is through that occupation that he met RM and then SA. 3 The offender suffers from a condition called dyspraxia which interferes with his ability to speak and comprehend. He has had very few friends in his life, and was a person who could be easily manipulated by others who preferred their interests over his. RM was one such person. 4 She came into his life when she met the offender after being employed by him at one of his stores. They became friends and RM began to require, as part of her friendship with the offender, that the offender would assist her with problems she was having with her family. Perhaps because of the offender's difficulties in making friends he did what RM required. He helped her to leave her family home on two occasions when RM expressed a desire to run away. 5 A short time after the second of those occasions RM's father began to take steps to arrange for RM's marriage. She, without telling her family, then left Australia to go to Jordan, where she immediately married SA who was living over there at the time. The offender assisted her to leave Australia, and also when she later came back. 6 It is clear that on her return to Australia RM complained of domestic violence at the hands of her husband, not only to the offender but to others as well. The offender's reaction, however, went far beyond what was reasonable. In part that was due to his dyspraxia. It was also due to a series of emails which he received, purported from RM, which became exhibit M in the trial. These emails were the subject of a great deal of evidence in the trial. 7 (At one stage the Crown put to the offender in cross-examination that the emails were fabricated by him after his arrest. In the course of that cross-examination the Crown put as a positive proposition something which the Crown later acknowledged should not have been put, but which was never withdrawn. It is probable that no harm was done, however, because in response to what was asserted by the Crown in cross-examination the offender convincingly demonstrated that the emails were received by him well before 22 August 2006, the day on which the offence was committed.) 8 As matters turned out it may well be that the emails did not come from RM but were perhaps an attempt by two men, who knew of the offender's relationship with RM, to obtain some money from him. The evidence was not sufficient to draw any conclusion at all about who sent the emails beyond this: the emails were received by the offender and he believed they came from RM. I make that finding even in the light of evidence which I learned about only today concerning the offender's other criminal activities around this time, they including activities involving fraud. 9 In those emails the offender was asked by RM for his assistance in order that she may leave her husband. Accordingly the offender transferred $6,000 to a bank account nominated in the emails, but when the offender began to harbour suspicions that SA had become aware of the emails he took steps to recover the money. Contact from RM then ceased. 10 The offender was able to discover where RM was living and he hired a private investigator, and asked his other employees to drive past RM's home from time to time. I am satisfied that the reason the offender did these things was a combination of concern for her welfare and obsession that the offender had with RM, to some extent that obsession being attributable to RM's manipulation of the offender. 11 Most relevantly to a sentence I have to impose upon the offender one of the things he did, after contact with RM ceased, was engaged the services of two men. It was their actions on the evening of 22 August which led to the offence for which the offender must now be sentenced. 12 Many of the events of that evening were undisputed at trial, and as it turns out the issue for the jury to decide was relatively narrow. As far as the alternative count, that is the count on which the offender was found guilty, is concerned there was no dispute that the offender arranged for the two men to intimidate SA, and the only issue for the jury to determine was whether they were satisfied beyond a reasonable doubt that the offender either agreed that the two men would break and enter SA's home, or thought it reasonably possible that they would do so. 13 The offender said that he was present at the time because he was on a rescue mission, that is he was there to allow SA's wife, RM, to leave her relationship in which she was subject to violence. The Crown case throughout the trial, ultimately rejected by the jury, was that in fact the offender was there to kidnap RM, not rescue her, because he was obsessed with her. 14 On 22 August 2006 the offender, Ms Virginie Bond who was an employee of the offender's, and the two men, went to the home where RM lived with SA. They went in the offender's own car. The plan was not to take RM against her will but to allow her the opportunity to leave the home voluntarily if she wished, keeping SA at bay in order that she could do so. It was of course part of the offender's obsession with RM that he believed that she would willingly leave the home and go away with him. 15 SA had previously assaulted the offender. Not only for that reason, but others, he was known to be a violent person, and so the only way he could be kept at bay would be through threats of violence, if not actual violence. It was therefore clear that the plan for which the offender was responsible involved SA's intimidation. 16 When the two men got out of the offender's car leaving him and Ms Bond behind they went to the front door. They knocked loudly on it. It was late at night so SA did not open the door. The two men responded by firstly throwing a paving brick through a large window, and then, having got a machete from the car, waving it about through that open window. It was the actions of one of the two men in waving the machete through the open window which amounted to the breaking and entering of the home. The two men did not themselves enter the home, and after a short time they returned to the offender's car, which was driven away. 17 One of the issues at trial, and one of the issues on the sentence proceedings today, concerned whether the offender was aware of the machete being in the car, and also whether the machete was taken by one of the two men when they first left the car. I am prepared to sentence the offender on this basis: that he was not aware of the machete in the car until, after having left the car, one of them returned to the car, took the machete from a bag, and returned back to the home. 18 At trial the issue for the jury to determine was whether the joint criminal enterprise in which the offender was involved encompassed the breaking and entering of the home in which RM lived with SA. Was breaking and entering in company part of the agreement the offender had with the two men, or as an alternative did he think it was reasonably possible that in intimidating SA they would commit the offence of breaking and entering in company? 19 I am satisfied, consistent with the jury's verdict, and consistent with my understanding and findings on the evidence, that although it was part of the plan that SA would open the door, and therefore there would not need to be a breaking and entering, the offender contemplated as reasonably possible that if SA did not open the door then entry to the house would be forced, SA held at bay, and RM invited to leave voluntarily. 20 I regard as significant the evidence given by Ms Bond. She, it will be recalled, was one of the people who went with the offender and the two men to RM's home that evening. She described the offender's reactions as he and she waiting in the car. Those reactions, I am satisfied, are consistent with the two men doing something which the offender did not actual desire would occur albeit, as the jury found, he contemplated the possibility of something of that nature occurring. 21 This trial, more than most, involved Crown witnesses whose evidence was largely unreliable. The main Crown witness, RM, was shown to have told lies in many areas. During the course of her evidence she claimed that because of her suffering from a bi-polar disorder, which was not being treated at the time of the trial, her thinking was irrational. It was my impression that she was anxious to agree that she was irrational because she was concerned that she could be proved to be dishonest. Whether her unreliability flowed from her deliberate deception, which I think is more likely, or her irrational thinking, does not matter, but unreliable her evidence certainly was. 22 Also, SA, and RM's father JM, gave evidence which was punctuated by regular lies. Their attempts to deny that RM was subject to violence, or restraints on her freedom, were proved in many respects to be false. 23 In determining therefore the factual basis on which the offender is to be sentenced I have had little regard to what those three witnesses said, preferring to base my conclusions on the independent evidence. It would seem that the jury took a similar approach. 24 In assessing the criminality of the offender one important thing must be borne firmly in mind: consistent with the jury's verdicts and consistent with my view of the evidence, the offender was on what he saw as a rescue mission. As far as he was concerned he was not intending to take RM against her will because he wanted simply to be with her. He was, in his mind at least, giving her the opportunity of leaving her husband safely. The offender believed that there was a real risk that RM was trapped, that she was subject to violence, and that she wanted to leave her husband, but that she could not do so without assistance. This is a highly significant matter in assessing the gravity of the offender's conduct. He was prepared to break the law, even to the extent of committing the offence for which he is to be sentenced, in order to assist RM. 25 RM took advantage of the offender, a man easily taken advantage of. The evidence tendered by Mr King in the form of references and statements made by the offender's friends suggest, without contradiction from the Crown, that the offender is a person who was prepared to go to significant lengths to assist his friends. It is this attitude towards his friends that RM took advantage of. 26 His motivation is very important in assessing where in the range of objective seriousness the present offence falls. This offence carries with it a standard non parole period of five years. I am satisfied, in the light of my findings as to the offender's motivation, that this offence is below the middle of the range of objective seriousness, and indeed significantly so. 27 This is not of course to in any way forgive or minimise the offender's conduct. The offender's relationship with RM culminated of course in actions which were in may respects bizarre and worrying, and showed a significant level of obsession, ultimately concluding in actions which were not only worrying, but seriously criminal indeed. There is no evidence that the offender is remorseful for what he has done. 28 He may have been remorseful that it was necessary, as he perceived it, for the men to actually break and enter the home, but as I have said, and as is consistent with the jury's verdict, it was a real possibility he was prepared to contemplate. 29 This morning I dealt by appeals, one by the Crown and one by the offender, relating to offences of dishonesty. As part of the hearing of those appeals matters relating to the offender's subjective circumstances were tendered. One important aspect of that concerned the offender's assistance to the authorities. That assistance directly related to one of the series of offences the offender committed. His assistance remains of relevance in determining the appropriate sentence in this case. Usually I must exercise some circumspection in identifying what it is that the offender has done in order that his time in custody is not made harder as other criminals learn of what he has done, this is no exception, especially as these remarks will be publicly available. All I will say is having taken the assistance into account, the sentence I will impose is approximately fifteen per cent lower than it would otherwise have been. 30 The offender comes from a loving family. His parents were able to identify early in his life that the offender suffered from dyspraxia. They took significant steps to, as much as could be done, overcome the disabilities associated with that condition. 31 The offender left school before finishing high school and commenced work at Tandy. He opened his own telephone stores where, as I have mentioned, he met RM. 32 He spent some time in custody bail refused on this matter, but even after release on bail he was able to obtain some work with J Carr Electronics. This tends to suggest that the offender has an enviable work ethic, prepared to work hard in order to advance himself. One of the reasons he is prepared to work so hard is that, as I understand it, he wants to show others that he can be a success in life. Unfortunately, as I mentioned this morning, that desire was such that it led to him committing offences of dishonesty, and is no doubt related to his willingness to assist RM as she required in the present matter. 33 Another matter I have already mentioned this morning concerns his parents' current medical conditions. Those conditions will mean that they do suffer from having their son in gaol more than most loving parents, but that hardship is not exceptional and must be ignored. Nevertheless it is relevant to the circumstances in which the offender will serve his time in custody, he knowing that his criminal behaviour has caused distress to his family. 34 It is also possible that the offender will spend some of his time, if not all of his sentence, in protective custody, and it is possible that this will involve conditions of custody less favourable than those applying to the general prison population. I have taken those risks into account also in formulating the appropriate sentence. 35 The offences that I considered this morning are relevant in other ways as well. For a group of those offences the offender was sentenced to full time imprisonment. I must apply principles of totality. I must also consider the effect of accumulation, as there must of course be, on a finding of special circumstances. I am prepared to make that finding not only because of accumulation but also because of the offender's dyspraxia, and that this is first time in custody. 36 It seems that the offender was not actually on bail for the other offences however he was waiting to be sentenced for those matters. In those circumstances the offender nevertheless committed this offence, that is a matter I will take into account in formulating the appropriate sentence. It demonstrates an attitude towards the law which is scarcely to the offender's credit. 37 Clearly the gravity of this offence requires a sentence of full time imprisonment. It is a fundamental rule of sentencing that a sentence reflect the objective gravity in the offender's conduct. The offender's conduct was significantly criminal indeed. The description of the behaviour of the two men, the breach of the peace that represented, the fear felt not only by SA but by his neighbours, all show how wrong the offender's conduct was. 38 It is appropriate that the sentence I will now impose commence at the end of the non parole period of the sentence I imposed this morning. 39 The offender is sentenced to imprisonment. I set a non parole period for one year to date from 20 November 2009, and a total term of two years. The offender's non parole period will expire on 19 November 2010, on which day the offender is to be released to parole. ********** 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.