R v Jeffreys [2016] NSWDC 433

District Court New South Wales

Medium Neutral Citation: R v Jeffreys [2016] NSWDC 433 Hearing dates: 7 June 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Criminal Before: Sides QC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 20 months with a head sentence of 30 months. Catchwords: CRIMINAL LAW – Sentence -Discount for guilty plea during "super callover" at Parramatta – Assault occasioning actual bodily harm – Do an act with the intention of influencing a witness – s166 certificate – Breach of AVO Legislation Cited: Crimes (Administration of Sentence) Act 1999 Crimes (Sentencing Procedure) Act Cases Cited: R-v-Borkowski (2009) NSWCA 102 195 A Cr R Category: Sentence Parties: The Crown Shannon Douglas Jeffreys Representation: Counsel: Mr Burton for the Crown Ms H Cox for the offender Solicitors: Mitchell Lawyers – The offender Director of Public Prosecutions – The Crown File Number(s): 2014/284557 Publication restriction: Nil

Judgment 1. The Offender Shannon Douglas Jeffreys appears for sentence consequent upon his pleading guilty on 2 June 2016 to the following two offences: * Count 1: assault occasioning actual bodily harm committed upon the victim Lucinda Lawrence on 26 September 2014 which has a maximum penalty of five years imprisonment; and * Count 2: doing an act on 12 February 2015 with the intention of influencing a witness, namely the victim, Lucinda Lawrence, to give false evidence which has a maximum penalty of seven years imprisonment. 1. There are no prescribed standard non‑parole periods and the matters could be dealt with summarily. 2. The Court notes that he was committed for trial in connection with offences more serious in nature. On 22 October 2015, following the Offender pleading not guilty to six counts the Court fixed a trial date of 29 September 2016. This matter was included in what was called the Super Callover conducted at Parramatta in the week commencing 30 May in an attempt to address the Court's workload which, over the past four years or so, has significantly increased, with no corresponding increase in the Court's resources, certainly not of the nature to meet the demands of the increased workload. This has led to a significant backlog, particularly in relation to matters committed for trial and sentence in all places where the District Court sits in this State. The backlog and consequent delay in finalising trial matters as a result at Parramatta is amongst the most significant in the State. The backlog and consequent delays in trials has an adverse impact upon the Court's capacity to deliver justice in a timely fashion. This has an impact upon victims, accused persons, as well as witnesses. Further the community has an interest in the delivery of justice in a timely fashion. 3. As a consequence of this Offender pleading guilty last Friday, almost four months before his trial was due to begin, the Court is in a position to provide that trial date to another trial. The Court notes that the estimate of the length of the matter when he was arraigned was 10 to 12 days. It will be apparent from what the Court has said that the utilitarian benefit of his guilty pleas was substantial. 4. Since the 2009 decision of R v Borkowski [2009] NSWCCA 102; 195 A Cr R, circumstances have substantially changed in the form of the backlog and consequent delays that were not being experienced by the Court in 2009. In light of those changes the Court is of the view that less weight should be given to that decision. 5. Noting the guilty plea was entered when in the experience of the Court little extra preparation would have been undertaken by the DPP beyond that which had occurred up until arraignment in October last year, the Court is of the view that it was appropriate to extend this Offender a discount of approximately 20% to reflect the utility of his guilty pleas. That discount has been reflected in the indicative sentences. 6. There is nothing in the material that persuades the Court that the conditions referred to in subpara 21A(3)(i) of the Crimes (Sentencing Procedure) Act are met and accordingly the Court is not able to extend a discount for remorse. 7. The victim of these offences and the Offender had been in a relationship for about three years before the first offence. There had been some disharmony in the relationship. Prior to September 2014, they had been living in their respective motor vehicles. On 25 September 2014 the victim, whilst speaking to the Offender on the phone, said that she was going to Wollongong to spend the night with a female companion. The Offender called her a slut and accused her of infidelity and hung up the phone. 8. He kept calling her but she did not answer the phone. Between 11.37 and 11.42 that day he sent the victim 30 text messages demanding she come home, which the Court infers to mean come to where he and she had their cars or normally had them. The Offender became increasingly upset and angry as the day progressed. He again called the victim and, after abusing her, accused her of infidelity. This made her scared about returning to the Offender. 9. However at 11.30am the following day, 26 September, she drove home which the Court infers means she drove to where the Offender had his car. She turned her phone on. The Offender walked towards the motor vehicle and opened the door. He said to her: "So you think everything is okay." He leant into the rear passenger seat and started going through her bag. At the time he was subject to an enforceable domestic violence order and apparently his conduct breached that. It is not clear what terms were breached but the plea of guilty to the matter on the 166 certificate, being sequence 8, is an acknowledgement of breaching the AVO. 10. The victim locked herself in the car. The Offender returned several times and stared at the car. The victim played with her phone and occasionally asked the Offender to leave her alone. As the victim was setting up a bed in the passenger seat of the car, the Offender approached it and attempted to open the door using keys to that car. As he was doing this she was holding the door from the inside, preventing it from being opened. He said to her that she was not sleeping in the car and tried to drag her from the car. They struggled for about five minutes. 11. During this struggle the Offender punched the victim to the eye with a closed fist. For a few hours after this punch she experienced a white patch in the vision of the eye. She ultimately agreed to go with the Offender because he was making a scene. Police attended shortly afterwards and noted the victim was extremely distressed, her eyes were puffy, tears were running down her face and she was breathing heavily. 12. The Offender repeatedly told her that he loved her and not to do it to him. This apparently caused the victim to become more distressed. Police arrested the Offender. 13. The victim, as a consequence of being punched in the eye, suffered swelling over that area and the right cheek. 14. The Offender was then placed in custody of Corrective Services. The victim and the Offender continued to talk to one another. These calls were lawfully recorded. 15. On 12 February 2015 during a conversation the Offender said to the victim: "You're going to have to say you made it up". The victim told him that she had told them she could not remember. The Offender said: "You can't say that, you've got to say you lied and made it up". Later the same day a further conversation took place during which the victim said: "I told them I don't remember". The Offender said: "But that doesn't say it didn't happen". She said it was the truth. He repeated it didn't say that it didn't happen and she repeated the words: "It didn't happen". 16. These telephone conversations give rise to count 2. 17. The Offender turned 38 early in February this year. The Court has little material concerning his subjective features. A friend, Ms Gordon, gave evidence that she has known him since he was a child. He had ADHD and other difficulties in his life. When he is released from custody she has offered him a room at her place. She gave evidence that she has visited him regularly in custody and noted there has been a significant change in his attitude. 18. Ms Gordon also gave evidence the victim lived in the same block of units and she had mental health issues. She noticed that the victim had become more stable in recent times and was compliant with treatment, including taking medication. 19. There is a reference before the Court from Adam Kovic who has known the Offender for 15 years. It makes reference to him watching the Offender grow as an individual and as a father. He has employed the Offender on and off over the years and speaks well of his skills and describes him as an honest and hardworking employee. He has offered the Offender employment when released from custody. 20. The Offender does not have the benefit of prior good character. In 1999 he was fined for two counts of resist police and placed on a bond for assaulting police. In 2001 he was fined for a number of drug related offences, mid‑range PCA and possession of ammunition. In 2002 he was placed on a bond for shoplifting. 21. In 2006 he was fined for offensive language. In 2007 he was placed on a bond for assault and another bond under s 12 for seven months for assault occasioning actual bodily harm. That was a supervised bond. He was fined for damaging property in 2009. 22. There have been eight breaches of prison discipline. There is no dispute the Offender has been on protection for a substantial period of time since going into custody, which the Court understands occurred on his arrest on 26 September 2014. 23. Count 1 was committed in the context of a difficult relationship where apparently both the victim and the Offender were homeless, living in their cars and both unemployed. Whilst it cannot be said that count 1 was premeditated, there was a build-up of events preceding it that led to the offence. It was obvious, it seems to the Court, that he wanted her to bend to his wishes and she was reluctant to do that. The assault was in the context of a scuffle but that scuffle would not have taken place had he not tried to get her out of the car. 24. The injuries suffered were relatively minor. There is no evidence of any permanent disability or disfigurement. 25. The second offence, in the Court's view and it is satisfied of it beyond reasonable doubt, was premeditated. Offences like this are serious because they strike at the heart of the criminal justice system. 26. It is difficult to know what impact in terms of traumatic consequences the offences have had on the victim. There is no victim impact statement. 27. The Offender has not previously served a custodial sentence. It is not clear whether the prior offences of assault were committed in a domestic setting but clearly, it seems, the assault occasioning was committed whilst he was subject to the AVO. The breaches of prison discipline are a matter of concern. In all the circumstances the Court is satisfied that his prospects of rehabilitation and not re‑offending are reasonable. 28. The Court has taken into account the purposes of sentencing set out in s 3A and that a custodial sentence is a sentence of last resort. The Court has taken into account totality in determining the appropriate aggregate sentence. The Court found special circumstances because of the need for an extended period of supervised parole and his being on protection. 29. Shannon Douglas Jeffreys you are convicted on counts 1 and 2 and sentenced to an aggregate term of imprisonment of 30 months to commence on 26 September 2014. The Court fixes a non‑parole period of 20 months and orders your release to parole on 25 May 2016, such parole is to be subject to supervision and further supervision as provided for in the standard conditions of parole described by the regulations under the Crimes (Administration of Sentence) Act 1999. 30. Pursuant to the relevant provision, having taken into account the matters in part 3, the indicative sentences are as follows: 31. Count 1: 12 months Count 2: 2 years 1. So, in short, I have sentenced you to 30 months imprisonment with 20 months non‑parole. Shortly you will be taken downstairs and then to enter your parole. Your parole will be subject to stringent conditions and you will be on parole for just under 10 months. One condition of parole is not to commit offences whilst you are on parole. There are other stringent conditions requiring you to submit to supervision by Probation and Parole. If in the time that you are on this parole you breach any condition of parole, the State Parole Authority will revoke the parole and you will have to go back into custody to serve the balance of the sentence. 2. In relation to sequence 8, the matter on the 166 certificate, I have taken that into account in assessing the criminality of count 1. Accordingly he is convicted of that matter but pursuant to s 10A the Court does not proceed to impose any punishment. 3. Yes all right well he can be taken downstairs. DISCUSSION ABOUT ORDER Order made under ss39(1): not to assault molest or harass with detention of 10 months.