District Court New South Wales Medium Neutral Citation: R v Leslie John Sullivan [2017] NSWDC 219 Hearing dates: 1 March 2017 Date of orders: 01 March 2017 Decision date: 01 March 2017 Jurisdiction: Criminal Before: Whitford SC DCJ Decision: Aggregate sentence consisting of a non-parole period of one (1) year and ten (10) months commencing from 14 June 2016 and expiring on 13 April 2018, and a balance of term of one (1) year and five (5) months. That is a total effective sentence of three (3) years and three (3) months. Eligible to be released to parole on 13 April 2018. Catchwords: CRIMINAL LAW – Sentence – Indigenous offender – disadvantaged background – cognitive impairment Legislation Cited: Criminal Procedure Act 1999 Cases Cited: John Hunter v R [2011] NSWCCA 141 Category: Sentence Parties: Regina (Crown) Leslie John Sullivan Representation: Solicitors: Director of Public Prosecutions Aboriginal Legal Service File Number(s): 2016/177936 REMARKS ON SENTENCE 1. The offender, Mr Leslie John Sullivan, appears today for sentence in respect of three offences. The first is an offence of aggravated enter dwelling with intent to commit a serious indictable offence, being larceny. The second is an offence of stealing property from a dwelling house. The third offence, which is on a certificate pursuant to s 166 of the Criminal Procedure Act, is an offence of indecent assault. All offences arise out of the same incident. 2. The seriousness of each of the offences is reflected in the maximum penalties which have been prescribed for them by Parliament. In the case of the offence of aggravated enter dwelling Parliament has prescribed a maximum penalty of 14 years imprisonment. For the offence of stealing from a dwelling house, a maximum penalty of seven years imprisonment is prescribed. In respect of the offence of indecent assault, when dealt with on indictment it carries a maximum penalty of five years imprisonment but of course I am dealing with it by reference to the summary jurisdictional limit of two years. 3. Much of what follows is taken from the careful written submissions handed up on behalf of the offender and I wish to record the Court's gratitude for being provided with such careful and fair submissions. It makes the work of the Court, particularly in sittings like these, considerably easier when given that type of assistance. Equally fairly and helpfully, the Crown has conceded in most respects the appropriateness and fairness of the submissions offered on behalf of the offender and I take that into account in the remarks that follow. 4. In respect of the objective seriousness of the offending, it was put on behalf of Mr Sullivan that there exists one relevant circumstance of aggravation, that being that Mr Sullivan knew that the victim was present in her home. That that is so is plain from the statement of agreed facts tendered with the crown materials. Of course, as was submitted on behalf of the offender, the number and nature of aggravating features present are relevant to an assessment of the objective seriousness of the offending. 5. It was submitted on Mr Sullivan's behalf and I accept that the offence falls below the mid-range in terms of its objective seriousness due to the fact that the sole circumstance of aggravation is comparatively less severe in its type than other circumstances of aggravation provided by the relevant statute. Furthermore, the serious indictable offence concerned is larceny, which is at the lower end of the range of offences that might be so contemplated. 6. The Court of Criminal Appeal [John Hunter v R [2011] NSWCCA 141] has identified factors that, all other things being equal, place offending around the "middle of the range of objective seriousness." In the present case, it seems to me that there are only two of those factors present. The first being that there was someone present in the premises who at least at the very end of the incident was frightened by the incursion. The second being that the property taken was of significant value. The value of the property stolen in the present instance was in the order of some $8,000 odd. In addition to its monetary value one should not overlook the deep sentimental value that much of the property stolen had to the victim. In respect of the offence of indecent assault, it is fairly conceded that the fact that the offence occurred in the home of the victim is an aggravating factor. 7. The offender has a long history of previous convictions dating back to his childhood. That record denies him leniency that he might otherwise have been accorded but does not seem to me to aggravate the objective seriousness of the present offending. However, that history will need to be taken into account in other ways in the course of this sentencing exercise. 8. There were identified in the submissions mitigating factors that I also take into account. The first of those is Mr Sullivan's remorse for his actions. That remorse is evident not only through the pleas of guilty but is also reflected in discussions with the author of the pre-sentence report where Mr Sullivan reported being shocked by his actions and indicated his remorse for his actions and the hurt he has caused the victim. He stated that he hated himself for what he had done, in particular for touching the victim. Similar expressions of his remorse were made to the consultant forensic psychologist who prepared a report on the offender's behalf for sentence. In addition, there was tendered today a number of letters written by the offender to me in which he repeats his remorse and his regret for his offending and for the consequences of it, in particular upon the elderly victim of his offending. 9. It is accepted by the Crown that for his early pleas of guilty Mr Sullivan should have the benefit of a discount of 25% and I will take that into account on sentence. 10. Mr Sullivan did not give evidence on sentence but there was tendered on his behalf, as I have already indicated, a report of a consultant forensic psychologist, Ms Anna Robilliard. That report, dated 20 February 2017, follows upon an interview and assessment undertaken with Mr Sullivan at the Junee Correctional Centre on 15 February this year. Most of what follows concerning his subjective circumstances is taken from that report and, to some lesser extent, from the pre-sentence report tendered with the Crown materials. 11. Mr Sullivan is 38 years of age. He was 37 at the time of the commission of the offences. It was accepted on his behalf that given his history of offending, his prospects for rehabilitation must be guarded. It was fairly submitted, and I accept, that he does display of level of insight regarding his offending. He recognises that he has to break the cycle that he is in, that he needs an intervention plan and that he needs to change the way he lives; all of which he accepts would be assisted if he could get a job and stay away from alcohol and drugs. 12. His capacity to do this over time will to a large extent be dependent on interventions that accommodate appropriately his circumstances and his level of ability. It is noted in the materials that his past transience has been a factor impacting upon interventions when previously supervised by the Community Corrections Service. It is also properly submitted on his behalf that his prospects for rehabilitation will inevitably be impacted by the capacity of the relevant authorities and services to determine the full nature and extent of the limitations he experiences due to cognitive impairment and the capacity accordingly to structure interventions to accommodate his impairment. 13. Mr Sullivan comes from a background of abuse and disadvantage, both in his family home and in subsequent foster placement. At six years of age he engaged in petrol sniffing with an older child. At 12 years of age he commenced smoking cannabis, a drug he has continued to use throughout his life. He commenced using methylamphetamine at 20 years of age and was under the influence of this drug at the time of committing these offences. His medical records also point to issues with excessive alcohol consumption in the past. 14. At approximately seven years of age Mr Sullivan was removed from his family and placed in a foster care situation with a single non-indigenous male in the Euabalong area. He reports ongoing sexual and physical abuse in this placement. He ran away from the placement, but was returned to it in spite of his attempts at this time to alert the authorities to what was occurring. Mr Sullivan believes that this person had fostered himself and other young indigenous males purely for financial benefit. He attributes much of his ongoing attitude to others as deriving from these experiences. His custody record reflects a similar pattern to that in the community. During the periods he has been at liberty his life has been marked by a level of transience and disconnection ever since his childhood. 15. In 2009 Mr Sullivan suffered various injuries as a result of a pushbike accident. He was admitted at the time to the intensive care unit at the Alfred Hospital in Melbourne. Records tendered in evidence show that he presented with an extensive intracranial haemorrhage requiring neurosurgical intervention. He consequently underwent surgery for a right frontal fracture with herniating brain. A right frontal craniotomy was performed with plates being inserted in the right orbit. In 2010 he was readmitted to the Alfred Hospital following seizures. Hospital notes refer to a right frontal craniotomy and excision of a frontal lobe abscess involving a partial lobotomy. 16. A conclusive intelligence ranking is not available in Mr Sullivan's case. Ms Robilliard records that his verbal testing score placed him in the below average range with 97% of the general population achieving higher scores. His non-verbal score was in the lower extreme range with 99% of the general population scoring better. Ms Robilliard considered that computing a total IQ would be misleading. She noted that the results may be consistent with an acquired brain injury and she highlights the need for further neurological assessment to arrive at a determinative diagnosis and to understand fully the degree of impairment. 17. Consistently with the history reflected in the evidence, Ms Robilliard opines that Mr Sullivan's early life experiences - of removal from family and culture, his exposure to abuse, and his early exposure to substances (in itself a form of abuse) - are apparent in his current presentation of antisocial attitudes and values. The effect of the brain trauma and subsequent surgical intervention in 2009 is said to add a further layer of complexity in this case. Naturally enough, these factors are relevant in an assessment of Mr Sullivan's moral culpability. It is conceded on Mr Sullivan's behalf that a term of full-time custody is appropriate having regard to the objective and subjective circumstances of the case. Mr Sullivan has been in custody since the time of his arrest on 15 June 2016 and that time already served will be taken into account on sentence. 18. It is conceded on Mr Sullivan's behalf that his history of offending adds weight to the purposes of specific deterrence, protection of the community, and retribution. I agree. It is also put, and I agree also with the proposition, that his cognitive limitations suggest that he is not a vehicle for general deterrence. 19. It seems to me that this case is yet another tragic example of how, as a community, we have failed adequately to value and support young indigenous Australians. It also serves to exemplify the layers of complication that inevitably attend any attempt to redress the imbalance and achieve just and equitable outcomes for those who have endured disadvantage and trauma beyond the contemplation of most Australians. 20. From a very young age, indeed, from a time well prior to him being capable of assuming any sensible responsibility for his own conduct, Mr Sullivan was submitted to physical, psychological and sexual abuse and degradation including, at least indirectly, through the intervention of the State in the purported attempt to protect him. The circumstances of his upbringing, and the deprivation it reveals, have had an enduring and, with time, an increasingly more profound negative impact on his life and his capacity now to participate in any meaningful way within the community. 21. The circumstances of his upbringing had the inevitable consequence of bringing him early into contact and conflict with law enforcement. The cases that come before this Court so frequently reveal that this is not an uncommon outcome for young people born into disadvantaged indigenous communities. As has been the experience for others, Mr Sullivan's early contact with the penal system became frequent and repetitive. It seems to have developed a self-fulfilling aspect in its progression. This experience has led to him being effectively institutionalised and has rendered him, for the time being at least, virtually incapable of maintaining a law-abiding existence within the community. It has also had the tragic consequence of disconnecting him from his own community and culture and all the support and protection that comes with that kind of connection. 22. What his experience reveals, like that of so many others in a similar position, is the utter inadequacy of the legal system to deal with what effectively are problems of social welfare which should attract a far more appropriate response than repeated intersection with the criminal justice system. It can only be hoped that some of the recent initiatives such as Justice Reinvestment programmes, might be capable of stemming this early diversion into a system ill equipped and inadequately resourced properly to respond to the multitude of factors that need to be addressed, in order to prevent entrenched disadvantage being inevitably converted into entrenched penal institutionalisation, with the corresponding cycle of offending and incarceration to which that state of affairs persistently seems to give rise. 23. Mr Sullivan must have some account given in his favour for the enduring consequences of his disadvantage. It diminishes his moral culpability, as I have already suggested and as the authorities make clear, and it has the consequence that this matter is an inappropriate vehicle for general deterrence. That consideration is given even greater force when one accepts that proper account must also be given to what appears to be the likelihood that he has an acquired brain injury that limits his cognitive functioning and likely underpins much of his offending behaviour. 24. Among the multitude of tragic circumstances revealed by this case is the fact that it is impossible to discern which of many possible causes, or accumulation of causes, has led to his cognitive compromise. Many of the evident possibilities date from his childhood and arise from the nature and extent of the deprivation and, indeed, abuse that he suffered. 25. This sentencing exercise is far from straightforward. Not only must the offender have account in his favour for the matters I have outlined and the enduring nature of them and their inevitable contribution to the offending, but one must also, against the constraints of those considerations, punish appropriately and denounce this conduct, which is so rightly condemned by the community. 26. Recognition must also be given to the harm done to the victim. I do not name her, not out of disrespect to her but to preserve her privacy. She eloquently set out in a statement tendered by the Crown the terrible consequences which she has experienced from the offending. Everything she records reflects precisely the sort of damage and suffering that one might reasonably expect to arise from offences of this character, particularly when committed against an elderly woman living alone. Nothing done in the present exercise can bring her any reasonable relief from that suffering but an important aspect of this exercise involves giving proper acknowledgment to the harm she has suffered. 27. Rehabilitation too must be considered in the balance. However, Mr Sullivan's prospects are, as I have indicated, at best guarded and this has been fairly conceded by his solicitor. That is in large measure no fault of Mr Sullivan's and not due to any lack of willingness on his part but rather through a lack of present capacity, as the evidence reveals. It was put in submissions on Mr Sullivan's behalf, and is well worth noting, that it is of concern that there is no reflection in the pre-sentence report of the particular cognitive impairment that Mr Sullivan suffers. Proper account must be taken of that impairment if any meaningful progress is to be made in assisting Mr Sullivan to eventually re-enter the community with at least some hope that he can remain there for an extended period. 28. His circumstances and the close supervision and management that he will require dictate that a finding of special circumstances be made to ensure a sufficient time for supervision in the community. He has not responded ideally to supervision in the past but that may be as much through a lack of appreciation of his particular difficulties and needs as through any deliberate avoidance on his part. 29. I intend to impose an aggregate sentence. That sentence will at least implicitly reflect some accumulation to acknowledge the separate criminality of the individual offences and, in particular, as between the s 166 offence and the other two. For the foregoing reasons I make the following orders. 30. For each of the three offences Mr Sullivan is convicted. I have decided to impose an aggregate sentence of imprisonment. That aggregate sentence consists of a non-parole period of one year and ten months commencing from 14 June last year and expiring on 13 April 2018 and a balance of term of one year and five months. That is a total effective sentence of three years and three months. Mr Sullivan will be eligible to be released to parole on 13 April 2018. 31. The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are, firstly, for the offence of enter dwelling with intent, a sentence of two years seven months, that term has been reduced by a discount of 25% for the plea of guilty. For the offence of steal property, a sentence of one year three months, likewise reduced for the plea. For the offence of indecent assault, a sentence of nine months' imprisonment. This term too has been reduced by a discount of 25% for the plea. 32. I direct that the report of Ms Robilliard be attached to the warrant, in the hope that Mr Sullivan's particular needs might be better accommodated, to the extent they can be, whilst he is in custody. I further recommend that, upon his eventual release, the report be conveyed to the Community Corrections Service to the same end. ********** 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: 21 August 2017