R v Kevin Doyle [2016] NSWDC 66

District Court New South Wales

Medium Neutral Citation: R v Kevin Doyle [2016] NSWDC 66 Hearing dates: 28 April 2016 Decision date: 06 May 2016 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [43] Catchwords: Aggravated break and enter while armed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v R [2013] HCA 37 DPP v De La Rosa (2010) 79 NSWLR 1 Kennedy v R [2010] NSWCCA 260 Category: Sentence Parties: Director of Public Prosecutions (Crown) Kevin Doyle (Offender) Representation: Counsel: V Morgan (Crown) M King (offender) File Number(s): 15/167960 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender was committed for sentence for an offence pursuant to s 112(2) of the Crimes Act 1900 of aggravated break and enter whilst armed The maximum penalty for the offence is 20 years imprisonment, and there is a standard non-parole period proscribed of 5 years. 2. In addition to the above charge, there is a s 166 Certificate in respect of an offence pursuant to s 195(1)(a) of the Crimes Act 1900, of destroy property, for which the maximum penalty is 2 years imprisonment. 3. The offender has been in custody since 6 June 2015, when he was arrested.

Circumstances of the offending 1. Exhibit A was the Crown bundle on sentence, and included a Statement of Facts which summarised the offending as follows. The victim was 77 years of age and was residing on her own in a single storey, semi-detached brick dwelling in Temora. She went to bed at 10.30pm on Friday 5 June 2015. At 1am on 6 June 2015, she heard the sound of a sliding door at the rear of the premises, and a short time later, her bedroom light was turned on and the victim saw the offender standing in her bedroom doorway. His face was covered with a blue and white covering with eye-slits, and he was holding a 15cm knife in his right hand, and was pointing it at her. The offender demanded money from her, then her credit cards, and PIN number. The offender ransacked the victim's bedroom and the victim went into the lounge room and sat down, hiding her purse underneath a cushion upon which she was sitting. The offender told her to get up and he located the purse and removed its contents, a total of $65.00. Whilst asking for her PIN number, the offender motioned as if to kick the victim while she sat on the lounge. The offender continued to ransack the premises and remove two gold-coloured ladies watches, together with a box of Zydol SR150 medication. 2. The offender then left and the police were called. They obtained a description of the offender and, later that morning, located the offender at other premises in Temora, where he was in the possession of the stolen items and knife. 3. Exhibit A also contained the offender's criminal history. It contained numerous Children's Court offences from 2007 until 2010, involving common assault, destroying or damaging property, stalk, intimidate with intent to cause fear of physical and/or mental harm, possessing prohibited drugs, larceny, goods in personal custody, enter inclosed land, intimidate police officer, take and drive conveyance without consent of owner, unlicensed driver, resist officer in execution of duty and escape police custody, negligent driving, aggravated break and enter and commit serious indictable offence. From 2009, the offender had been convicted of offences in the Local Court, including resist officer in the execution of his duty, common assault, drive whilst disqualified, and enter building/land with intent to commit an indictable offence. 4. In 2010, the offender had been sentenced to imprisonment with a non-parole period of 3 months, and a total term of 12 months for assault occasioning actual bodily harm, with the same concurrent sentence for a common assault charge. On 4 February 2013, he was sentenced for an offence of resist officer in execution of duty, and sentenced to a s 9 Bond to be of good behaviour for 18 months. On the same day, he was convicted of break and enter house and was sentenced to a non-parole period of 7 months, with a total term of 12 months commencing on 11 December 2012. On the same day, he was convicted of take and drive conveyance without the consent of owner and sentenced to a concurrent sentence of 7 months commencing on 11 December 2012. 5. On 7 February 2013, he was sentenced to a period of 6 months imprisonment, commencing on 11 December 2012, for an offence of goods in personal custody suspected of being stolen. 6. On 6 November 2013, he was convicted of a further larceny offence for which he was sentenced to a non-parole period of 10 months, and a total term of 18 months imprisonment. A further offence of break and enter a house led to a sentence of the same magnitude to be served concurrently. On appeal to the District Court, both convictions were confirmed on 11 February 2014. 7. On 11 September 2014, the offender was convicted of a stalk/intimidate intend physical harm offence and sentenced to a period of 4 months, commencing on 14 July 2014. 8. The offender tendered a report from Dr Pulley, psychiatrist, dated 16 April 2016 (Ex 1). That report set out the offender's past psychiatric history. He was diagnosed with a drug-induced psychosis at age 18, and developed paranoia and auditory hallucinations. In June 2015, he relapsed into drug use, but denied any subsequent drug use whilst he has been in custody following his arrest on 6 June 2015. He had used cannabis since the age of 12, and had been drinking heavily on a daily basis from the age of 17. 9. The offender also described difficulties with his childhood. His father was in and out of gaol and he has not seen him since he was aged one. His family moved several times when he was young, and he attended many schools and was often in trouble. 10. The offender acknowledged all aspects of the offences in question, but claimed that he had been heavily intoxicated with the use of alcohol and methamphetamine at the time. He regretted his actions. 11. Dr Pulley diagnosed chronic paranoid schizophrenia. He frequently denied symptoms to avoid safe cell conditions and Dr Pulley described that as a "plausible explanation". According to Dr Pulley, the offender manifests heavy poly-substance abuse, with heavy harmful use of alcohol and methamphetamine, and past dependence on opiates and cannabis. His offending could be considered to be primarily motivated by a need for money to buy illicit substances. The offender gave an account of experiencing ongoing paranoia and hallucinations in the months leading up to the index events. In Dr Pulley's opinion, it was unlikely that those symptoms would have resolved at the time of the offence. According to Dr Pulley: "It is therefore likely that he was experiencing an exacerbation of his psychotic symptoms, including disorganisation of thought and behaviour, auditory hallucinations and persecutory delusions at the time of the alleged offences". 1. His psychiatric functioning at the time of interview was impaired and he appeared to have ongoing persecutory delusions regarding other inmates, poverty of thought and cognitive slowing. 2. Dr Pulley set out a treatment plan for the offender which included continuation of psychiatric medications, education in respect of his psychotic illnesses, assistance in his return to the local community by mental health centre case management, psycho-education, vocational and psycho-social rehabilitation, and abstinence from the use of all illicit substances.