R v Mabb [2017] NSWDC 225

District Court New South Wales

Medium Neutral Citation: R v Mabb [2017] NSWDC 225 Hearing dates: 8 June 2017 Date of orders: 08 June 2017 Decision date: 08 June 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2 years with a head sentence of 4 years. The matters on s166 certificate are withdrawn and dismissed With the consent of the offender impose an AVO order for a period of 2 years. Matters on s 166 certificate are withdrawn and dismissed. Severity appeals are dismissed Catchwords: CRIMINAL LAW – Sentence – Aggravated break enter and commit serious indictable offence – Use carriage service to menace – On bail at time of offending – Threat of violence - Intimidation Category: Sentence Parties: The Crown Christopher John Mabb Representation: Counsel: Mr G Bullard – The offender/appellant

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2013/1838602015/304672015/247569

SENTENCE 1. HIS HONOUR: It was put to me during the course of submissions that events such as I am about to describe are not atypical when relationships break down. 2. I do not believe that is the case, but even if it were, it would only suggest the need for substantial sentences to be imposed when people act the disgraceful way that the offender Christopher John Mabb did towards his ex-partner after the break-up of their relationship. 3. Matters did not start well. On 8 August 2015 which was a Saturday, the offender's ex-partner went to an oval in Newport, so that her six year old son, the father of whom is the offender, could play soccer. The offender rang his ex-partner, he told her that he was going overseas. A little while later his ex-partner accessed a voicemail message on her phone, this is what he said to her in that message and I will repeat it in its entirety: "And if I have to come back to this country before they put me in gaol I'm going to kill you Candice, I'm going to kill whoever you're with as well. I'm going to kill your fucking new man. I'm going to kill you you fucking cunt. Take this to the police, I don't give a shit, you're fucking dead for what you've done you fucking cunt of a woman and I am going to fucking get you. I tell you what, I'm going to fucking kill you, you bitch." 1. To say that that conduct is not atypical of a relationship breakdown is startling. That represents an offence of using a carriage service to menace, a Commonwealth offence with a maximum penalty of three years imprisonment. I have little doubt that the threshold has been reached where a custodial sentence is required for that offence. 2. After that message was received a number of other phone calls were made to Ms Debresac, the offender's ex-partner, most of which she ignored. 3. Eventually she answered one call and recognised the offender's voice. Not unnaturally she told him "If you keep calling I will contact the police", to which the offender responded "fucking go on then I'm in Warriewood, I'll come up to your house." Ms Debresac said "then I will call police" and hung up the phone. 4. Later that afternoon she was getting ready to go out with her neighbours when she heard her front gate open and close. She saw the accused outside her house behind a glass sliding door. That door was locked. Ms Debresac yelled out to the offender to leave. He responded by hitting the glass door with his hand. This caused the glass door to shatter and shards of glass sprayed onto the lounge room floor. It appears that the offender did not intend the glass door to shatter. He has suggested through his counsel that after that happened his anger dissipated. That is difficult to reconcile with what happened afterwards, because instead of just up and leaving as he should have, he actually entered the home in the following circumstances. 5. I should mention that what I have just described happened in the presence of the other child of the relationship a two year old boy, he began to cry. Ms Debresac picked up the phone and contacted triple-0 yelling out at the offender to leave but he refused to. He said "Go on call the police then". It was then that the offender walked towards the front door of the house, it was closed but unlocked, he simply opened it and walked inside. At this moment Ms Debresac was actually on the phone to police, she yelled at her children to go into her bedroom and shut the door. The offender's response to this was to stand there and laugh at her despite the fact that Ms Debresac was crying and clearly terrified. He said "I'm not going anywhere until the police get here" and picked up some shattered glass, holding it by his side. The response of the complainant Ms Debresac was to grab her two sons, run into her bedroom door and close it. Sometime between then and when a neighbour arrived the offender left. 6. When police arrived they heard the voicemail message that I have already read out and another one which went this way: "You want to fuck with my life hey Candice you wait mate I'll be there in ten minutes you fucking cunt, call the police, do whatever you want you fucking, you fucking dead this time, I'm going to fucking punch the fuck out of you." 1. It appears that soon afterwards the offender left the country but returned a short time later, he was arrested on 28 August 2015 and has remained in custody since then. To say that these matters are both objectively serious is something of an understatement. The fact that these matters arose in the context of domestic violence is a matter which increases the seriousness of these matters significantly. I make that finding, even taking into account that there was no actual physical violence and the damage to the window glass seemed to be caused by a reckless action of the offender rather than a deliberate one. 2. People, and it is usually women, need to be protected from actions of the kind I have demonstrated. I described them as disgraceful, they are seriously criminal. They have lasting impacts. In this case a victim impact statement was tendered by the Crown, I have no trouble at all accepting that there have been significant consequences for both Ms Debresac and her children from the offender's criminal behaviour on 8 August 2015. 3. The offender grew up on the Northern Beaches, he left school at year 11 and has a work history of which he is entitled to be proud. However he has for many years suffered from mental illnesses, the precise nature of which has been difficult to determine. His parents speak of early concerns about their son's behaviour and he appears to have suffered from depression and loneliness for much of his life. Indeed he was at one stage involuntarily admitted to the psychiatric wing of Manly Hospital after he spoke about committing suicide by jumping off the Harbour Bridge. A recent diagnosis has been made which suggests that the offender suffers from a bipolar disorder. Although he has been medicated for some time, since going into custody on 27 August, 2015 he has had difficulty obtaining psychiatric help and there has been no review of his medication. 4. There is no doubt that the offender suffers from a mental illness and has for some time. Indeed that may explain some of his criminal behaviour, both appearing on his criminal history and also the offences for which I must sentence him today. 5. Consistent with the authorities, it is less appropriate for a sentence reflecting general deterrence to be imposed upon the offender but I do not accept the joint submission of the parties that this is similarly less of a reason to impose a sentence which reflects a sentence of personal deterrence. Nothing in the material I have read suggests that the offender is incapable of understanding that if he commits serious offences like this in the future he will go to gaol again. 6. The offender's mental condition has already made his time in custody harder and will continue to do so until he is released, I have already mentioned the difficulties that he has had getting the review of his medication and obtaining psychiatric help in prison. 7. The offender pleaded guilty, but not at the earliest opportunity. His plea was entered on the first day of trial, it is appropriate therefore that I reduce the sentence I would otherwise have imposed by about 10% to reflect that circumstance. 8. There are a number of aggravating features of the offender's conduct, firstly he was on bail at the time of these offences. Secondly his children were present, at least one of whom was in the same room where the offender caused the glass to shatter. To do what I have described whilst his children are present is a serious matter of aggravation as is the fact that the offences occurred at the home of Ms Debresac and her children. 9. I do take into account that after the offender entered the premises there was no actual violence, although clearly an implied threat of such. Had there been actual violence then a much more serious indictable offence would have been specified than the serious indictable specified in the charge on the indictment, the charge brought against the offender, namely intimidation. 10. The offender has found his time in custody difficult. I am not at all surprised to hear that, prisons are terrible places, even for those mentally well. This is the offender's first time in custody and I am sure it came as very much a shock to him. He has good intentions regarding his behaviour upon release from custody but whether he is capable of putting these good intentions into effect remains to be seen. He certainly understands the need for him to receive a great deal of psychiatric care upon his release from custody and expresses the desire to receive such care, knowing that there is a link between his offending behaviour and his mental state. 11. The offender has expressed his remorse, written references from his parents and his fiancé both speak about what he has said to them about his behaviour. I note of course that he gave no sworn evidence to that effect which limits the weight which I can put upon such expressions of remorse. 12. The offender refers to difficulties that his ex-partner has put in place as regards his contact with his children since going into custody. That does demonstrate something of a failure to gain a proper insight into why he is in custody in the first place. It is not at all surprising that Ms Debresac might be reluctant to do what the offender wants, given the nature of his offending and the fact that some of it at least was in the presence of the very children he wishes to gain access to. 13. The maximum penalties for these offences are three years in the case of the carriage service matter and 20 years with a standard non-parole period of five years in the aggravated break and enter to commit serious indictable offence matter. I have taken both the maximum penalties and where appropriate the standard non-parole period into account in deciding the sentences to impose upon the offender. My reasons for not imposing the standard non-parole period appear in these remarks on sentence., 14. The offender's time in custody has not all be exclusively referrable to the matters to which I am about to sentence him. He received a CSO for two offences of common assault. After he was bail refused in custody, that order was revoked because he obviously could not perform it and fixed terms of imprisonment of three months were imposed. Somewhat surprisingly those sentences were not ordered to date from the date he went into custody 27 August 2015. Given those circumstances what I propose to do is to commence the sentences I will announce from 27 September 2015, thus one month of his time in custody will effectively be referrable to the offences which first resulted in section 9 bonds, then, when those bonds were breached, in the community service orders to which I have made reference. 15. I will impose an aggregate sentence. Were I not to have done so I would have imposed a sentence of nine months on the matter of using a carriage service to menace and three and a half years with a non-parole period of 18 months on the aggravated break and enter matter. 16. Instead I impose a sentence as follows: 17. I set a non-parole period of two years to date from 27 September 2015 with a head sentence of four years. The non-parole period will expire on 26 September 2017 on which day the offender is eligible to be released to parole. As it is clear I have made a finding of special circumstances, they relate to the undoubted need for long-term psychiatric care, in order to assist the offender not to repeat the behaviours for which I have just sentenced him. I also, with the consent of the offender, impose an apprehended violence order for two years to date from today. The conditions are as set out in the document I will marked for identification 1, together with two other conditions. The offender is not to approach within 100 metres of any premises where Ms Debresac works or lives and the offender is not to have any contact with the two children of the relationship, except through either a legal representative or by agreement in writing with Ms Debresac or pursuant to directions or orders made under the Family Law Act. 18. Any other matter? 19. LAIRD: There are matters on a 166 certificate, I invite your Honour to withdraw them. 20. HIS HONOUR: They will be withdrawn and dismissed. 21. Thank you both for your assistance then.