District Court New South Wales Medium Neutral Citation: R v Brewster [2016] NSWDC 310 Date of orders: 14 April 2016 Decision date: 14 April 2016 Jurisdiction: Criminal Before: Tupman DCJ Decision: See orders [30]-[36] Catchwords: CRIMINAL – sentence – pleas of guilty – aggravated break, enter, and commit serious indictable offence knowing that there was a person inside the premises – stalking with intent to cause physical or mental harm – assault occasioning actual bodily harm – summary offence of destroying or damaging property – domestic violence – need for general deterrence Legislation Cited: Crimes Act 1900 ss 112(2), 195(1)(a) Crimes (Domestic and Personal Violence) Act 2007 Criminal Procedure Act 1986 s 166 Category: Sentence Parties: Director of Public Prosecutions Liam John Brewster (Offender) Representation: Ms A Hudson (DPP) Mr B Thomas (Offender) File Number(s): 2014/297279, 2014/302142, 2014/334726, 2015/98969, 2015/161443, 2015/196683, 2015/211303, 2015/215066, 2015/215074 and 2015/272470 Publication restriction: Nil Judgment 1. HER HONOUR: The offender is before the Court for sentence following his pleas of guilty on indictment to two offences in an indictment dated 1 December 2015. The first of those - count 1 - is an offence of aggravated break, enter and commit serious indictable offence knowing that there was a person inside the premises. The serious indictable offence is nominated as stalking with intent to cause physical or mental harm. That offence is contrary to s 112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment and, where appropriate, a standard non-parole period of 5 years applies. 2. He also pleaded guilty to count 2, being an offence that on 10 October 2014 he assaulted the named complainant and thereby caused her actual bodily harm. At the same time I will be sentencing him for a summary offence of destroying or damaging property brought up to the Court pursuant to s 166 of the Criminal Procedure Act 1986. That is an offence which also occurred on 10 October 2014 and is contrary to s 195(1)(a) of the Crimes Act 1900. It is a matter which would otherwise be dealt with in the Local Court with a jurisdictional limit of 2 years imprisonment. 3. The relevant facts are that the offender was in a domestic relationship with the victim of these offences for about two years before they were committed. According to the facts it was an occasionally violent relationship. At the time the offender was using drugs, significantly the drug methamphetamine or crystal methamphetamine, known as ice. Eventually the victim decided to end the relationship because of his drug use and violence. That occurred on 8 October 2014. 4. On 10 October 2014 she was at home alone. She lived in those premises with her mother, in a granny flat at the rear of the premises. Just before 8am she was woken by the offender banging on the door. She sent her mother a text telling her that the offender was there. He then started banging on the window and telling her that he knew she was there and swore at her. He threatened to kick the door in. He knocked on the wall next to the front door causing the wall to dent which caused the light and fan switch to be forced from the wall. The victim went to the front door and slid the curtains back and saw the offender outside. She asked him to go away. She was upset. He threatened to pull the door off unless she opened it. She held the glass door with one hand and begged for him to go away. She told him she had to go to work. The door was locked but she felt it loosen and she saw the offender with both arms on either side of the door lifting it up. She ran to the kitchen and grabbed a knife and was extremely fearful for her safety. The offender removed the door from its frame and it fell backwards onto a table. 5. He entered the premises and the victim continued to ask him to leave. She was on the phone to her mother. She was upset. The offender was heard saying that he wanted to talk with her. She told him she did not want to talk and to go away. She also told him that her mother was going to call the police. The offender grabbed her hand and pushed her onto the ground in the kitchen. She felt pain to her legs and back. He then pushed her into the lounge room and she sustained a small cut to her knees. He picked her up again and put her on the lounge. He told her she brought this on herself and told her to call her mother back to cancel the call to police. He was pacing up and down and told the victim that he knew the police were coming. He picked up a candleholder and threatened her with it and threatened to hurt her. The victim asked for her phone and said she would call her mother and tell her to advise the police not to come. He then threw her phone at her and walked out of the premises. She called her mother again and said he is still here. The police were called. 6. The offender came back, which caused great fear and upset to the victim. When he came back he said to the victim, "It didn't have to be like this. You could have just spoken to me". The police arrived but by that stage the offender had gone. The victim's mother had to come home. The police did attend the premises. The offender was not there but they found him in a car park at a boat ramp in Kurnell, standing next to his truck. He said to police, when confronted, that the victim had recently broken up with him and that he did not know why, so he went there to get some answers. 7. He was arrested and participated in an interview. He made admissions to police about opening the door whilst the victim was on the phone to her mother to contact police and made admissions to pushing her and admitted that she had told him to leave. He was charged with damaging the property and released. 8. After a further statement was taken by the victim on 13 October, further charges, as I understand it before me, were added. He was granted bail. There was an interim AVO put in place after the initial event on 10 October. On 14 October he attempted to contact or approach the victim and was arrested for breaching the AVO but released on bail. He remained on bail for a period of time. 9. The relationship between the victim and the offender resumed in November 2014 but ended again in May 2015, again because of his continuing use of drugs. On 22 July 2015 he was arrested in relation to a series of other offences and has remained in custody ever since. That was bail refused in relation to these offences but also in relation to the subsequent offences and also having been called up on the breach of six section 12 bonds. 10. His offending for the matters before me is aggravated by the fact that at the time he was subject to conditional liberty, namely six section 12 suspended sentences which were all for eight months. He was resentenced to serve those by way of fulltime imprisonment with sentences commencing on 22 July 2015. For the other offences for which he was arrested in July 2015, he was ultimately sentenced in the Local Court on 22 October 2015 to a series of aggregate sentences with overall a 22 month term of imprisonment with a 12 month non-parole period, all of which commenced on 22 November 2015. His first entitlement to release to parole thus is 22 November 2016. 11. As a result of the assault occasioning actual bodily harm offence, the victim sustained bruising to her right arm and a cut on her right knee and a small graze to her right ankle. The damage to the property the subject of the section 166 charge includes the damage to the sliding door, to the wall and the light and fan switch which were knocked off the wall when he hit it. 12. In terms of assessing the objective seriousness, count 1 is at about the middle of the range for offences capable of being dealt with as aggravated break, enter offences. The circumstance of aggravation, namely knowing that someone was present is a relatively serious circumstance of aggravation. The offence committed inside, that is stalking with intent to cause physical or mental harm, being a domestic offence, is serious. The fact that this was committed in the context of a domestic relationship aggravates the commission of the offence. As I have said it is aggravated by the fact that he was on a form of conditional liberty at the time. The degree of damage to property is not significant. 13. The offence was also accompanied by threats to cause harm. Whilst there is no evidence before me by way of a victim impact statement, I accept from the facts that the victim was frightened and felt real terror by the actions of the offender. His explanation for committing the offence indicates that he thought he had some degree of entitlement to behave violently towards the victim. She, in her own home, was entitled to feel safe and entitled to feel that she had autonomy to end a relationship if it was no longer working. 14. Regrettably this is yet another example of domestic violence offences that come before the Courts. They are all serious offences. Fortunately this offence did not end in the tragic way that so many do. Domestic violence is all too prevalent in the community. Two or three women a week die as victims of domestic violence in Australia and many more are injured. Even more suffer ongoing psychological symptoms as a result of being terrorised by their partners or former partners. Sentences for offences involving domestic violence must carry a serious message of general deterrence. The community must realise that domestic violence is entirely unacceptable and those who would engage in it can expect to receive lengthy prison terms. 15. The offender pleaded guilty to this offence. It was not at the first available opportunity, but it seems to me there is a utilitarian value reflected in the plea. It is relatively high, given that the victim was not required to give evidence. Further the plea was entered well before the trial date set. So even though the plea was entered on indictment after committal for trial, nonetheless there is a significant utilitarian value and it seems to me that a discount of about 20% is appropriate. 16. I do accept from the pre-sentence report that the offender has expressed contrition and remorse, which on the face of it is genuine. There seems to be a degree of insight now shown for the way in which he behaved. He has as criminal history, regrettably on an occasion in the past for an earlier incident of domestic violence against another victim. The majority of the matters on his record however are not offences of violence but either offences involving driving or connected with drugs. 17. He had a significant drug addiction at the time he committed this offence which cannot amount to a circumstance of mitigation, but provides some explanation. He was using the drug ice extensively and probably was addicted to it. He had not undertaken realistically any form of rehabilitation at that stage. He is now 31 and was 29 at the time he committed these offences. 18. His offending behaviour, on my assessment, is in large part connected to his use of this particular drug, although I accept the opinion of the pre-sentence report author that he suffers from at least potentially a range of mental health issues that might dispose him towards such behaviour. However in large part it seems to me that his use of drugs is the major explanation for the way in which he has behaved on this occasion and on those other occasions that are on his record where he has acted violently. 19. He migrated to Australia with his mother as an infant. He has a very good relationship with his mother who raised him as a single parent. She remains available to provide support to him, although there have been some difficulties in the past, which more probably than not were connected with his use of drugs. He has had some partners in the past. He was educated to Year 10 level and then established his own business as a concreter. That apparently was going relatively well except that he was using drugs which meant that he was not as successful as he might have been. He sold the business when he went to gaol but I accept that he is a person who used to work and he will seek work as a paid employee on his release. He has a number of debts including business related debts that he will need to resolve on his release. There will be a number of factors that require resolution on his ultimate release from custody, including his work situation, ongoing debts and the need to deal with what had been a longstanding addiction to drugs. 20. There are two entries on his custodial record which indicate that he continued to use drugs at least for a period whilst in custody and that he has also been in trouble on one occasion in recent times in the gaol system for disciplinary matters. 21. I accept that he has, as I have said, expressed genuine remorse to the extent that he has told the author of the pre-sentence report that he is not proud of what he has done and he understood that what he did was wrong. He has also told the author that he in particular regrets the impact that his actions had on the victim. This degree of insight provides some positives in terms of an assessment of his prospects of rehabilitation. 22. His rehabilitation, however, must be regarded as somewhat guarded but will be assisted by access to courses whilst he remains in gaol and also by a somewhat longer than normal period of supervision in the community so that he can deal with issues of drug abuse, mental health and the proper way to deal with domestic relationships and issues that arise within those relationships. 23. I accept that when he is released from custody he apparently has accommodation available to him with his mother who, as I have said, will also provide ongoing support for him. 24. In the circumstances I have concluded that without taking into account the plea of guilty an overall term of imprisonment of four years would be appropriate for the most serious of the offences. I will be reducing that by nine months to take into account the discount for the plea of guilty which will give rise to an overall term of imprisonment of three years and three months. 25. There are some special circumstances, namely the need for a somewhat longer than normal period of supervision in the community to deal with drug addiction and relapse strategies, mental health issues and domestic violence issues. However nothing short of a non-parole period of two years and three months could deal with the criminality involved in my view. 26. The assault is a serious offence, given that it is committed in a domestic circumstance. The actual bodily harm is of relatively minor nature. If that were the only offence before the Court it may be that something other than fulltime custody could be applied, but that is not so and a term of fulltime imprisonment is necessary. I will be sentencing him to a fixed term of nine months. 27. For the section 166 matter, the damage property, I will be sentencing a six month fixed term. Each of those sentences should be concurrent with each other. In my view they are all part of the one episode of criminality and each of them to an extent inextricably connected to each other. 28. The remaining issue is the commencement date of this sentence. The total criminality involved in these offences and all of those other matters for which he has been in custody and serving sentences since 22 July, it seems to me require some partial accumulation, but of modest terms. In those circumstances I will be commencing this sentence on 22 September 2016 which is a partial accumulation of two months. 29. For those reasons then, there is nothing else that anyone thinks I have overlooked that I should deal with is there at this stage? I will deal with the AVO in a moment. 30. For those reasons then I make the following formal orders. On counts 1 and 2 in the indictment the offender is convicted. For count 1 he is sentenced to a non-parole period of two years and three months commencing on 22 September 2016 expiring on 21 December 2018, with parole thereafter of 12 months commencing 22 December 2018 expiring 21 December 2019, giving rise to an overall term of imprisonment of three years and three months commencing 22 September 2016 expiring 21 December 2019. 31. For count 2 he is sentenced to a fixed term of imprisonment of nine months commencing 22 September 2016 expiring 21 June 2017. I decline to fix a non-parole period because it is served as part of an overall non-parole period. 32. For the 166 offence he is sentenced to a fixed term of imprisonment of six months commencing 22 September 2016 expiring 21 March 2017. 33. I note the appeal offences. The appeals being withdrawn are dismissed. I confirm the convictions and the aggregate sentences imposed by the Magistrate. 34. Further, pursuant to the Crimes (Domestic and Personal Violence) Act 2007, I make an order that the sentences be recorded on the offender's record as domestic violence offences. 35. Now I just need to make an ADVO don't I? If I can I'd like to make an AVO order that at least extends for the time he's on parole. I mean not that this is the be all and end all, because the complainant can always approach the Court to have it varied, the Local Court. 36. Pursuant to the Crimes Domestic and Personal Violence Act vary the existing ADVO by extending it for three years from 22 July 2017 to 21 July 2020. Now you won't disagree with that Mr Thomas? A further condition of the ADVO will be a condition that the offender not himself or through any other person attempt to contact the victim or anyone with whom she is in a domestic relationship. This won't be a problem when he comes out because presumably he won't want to have anything to do with her anyway and at some stage, if that's no longer necessary, then the Courts can be approached to revoke it or vary it or do whatever. Alright, so does everybody understand that situation then? ********** 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. Decision last updated: 18 November 2016