R v Wade [2019] NSWDC 205

District Court New South Wales

Medium Neutral Citation: R v Wade [2019] NSWDC 205 Hearing dates: 3 May 2019 Decision date: 03 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 4 years 6 months. Non parole period of 2 years 6 months. Catchwords: SENTENCING – Relevant factors on sentence - objective seriousness – early plea – offence committed on parole – unable to cope with normal community life – drug abuse disorder – anxiety – depression – need for structured release to community – special circumstances. Legislation Cited: Crimes Act 1900 Cases Cited: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357 Ryan [2017] NSWCCA 209 Category: Sentence Parties: Kane Wade (the offender) Director of Public Prosecutions Representation: Solicitors: Mr D Pace (Legal Aid NSW) (Offender) Ms A Kerr (Director of Public Prosecutions) File Number(s): 2018/00276044

Judgment – ex tempore revised 1. When he was before the Local Court Kane Wade, the offender now before the court, accepted his guilt for a very serious offence; aggravated break enter and commit an assault occasioning actual bodily harm, an offence pursuant to s 112(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years gaol, and for an offence which, taking into account only objective factors, falls into the middle of the range, Parliament have said that a standard non‑parole period, that is, a minimum period in gaol, of five years should apply. 2. The maximum penalty and standard non-parole period are guides to the exercise of a judge's sentencing discretion. Judges must have proper regard to them. A judge has to give content to the standard non‑parole period. 3. Here, the plea of guilty was entered at an early stage. That acceptance of responsibility, the history of the offender, the need to effectively accumulate this sentence on the one he had just been released for, the need for a finding of special circumstances and my finding that given the broad range of matters that could constitute an aggravated offence this matter could not fall in the middle of the range considered objectively; all call for a variation from the standard non-parole period of some length. 4. A judge when sentencing has to start with an assessment of what was done. Here, it is important I recognise that a number of people were hurt by what Wade did that night; one man in particular. I am prepared to accept, as it seems overwhelmingly evident, that what he did was done during a drug fuelled rampage. He was not thinking, or capable of thinking, about what he was doing. However, the fact that he committed the offence while highly intoxicated, probably with methamphetamine or one of its derivatives, cannot and does not excuse what he did. It cannot and does not mitigate the penalty. At best, it helps me understand how the offence came about and it put Wade's behaviour in some sort of context. Knowing about his drug use and how it can be addressed is of help when it comes to structuring the sentence. Ultimately Wade must be released into the community. If he is released without assistance, without having done the correct programs, without having been reintroduced into the community in a staged and structured way, the community could be justified in thinking: what if this happens again? What if the injuries inflicted are more serious or more long lasting so far as physical injuries are concerned? All of those matters have to be taken into account. 5. Wade has been to gaol before, too often. Prior to this offence he had just served a year in custody. He had done some courses, but he clearly wasn't ready and able to adjust to normal community life. He kept his first appointment with his Parole Officer but it also appears he kept an appointment with a drug dealer. He was staying at the Piccadilly Motel. It is one of the few places in Wollongong where short term, cheap accommodation is available for people. It is often utilised by Community Corrections where there is nowhere else for someone to stay. Although Wade does have family in the area, he had exhausted his welcome with them. For understandable reasons his family, particularly his mother, who has her own concerns, cannot look after him; after all, he is an adult. 6. That said, the Piccadilly Motel is notorious as a place that is very close to where people who use and abuse illicit drugs congregate and attend a clinic to get help. It is a sad indictment of our community that when people are released from gaol they are placed in the only accommodation available but where there is a real risk old criminal contacts will be renewed. This is not the first time I have had to make that remark in sentencing proceedings. It is time for us as a community to consider where and how we provide emergency accommodation to people such as Wade. 7. Wade, having reported to his Parole Officer and having reinforced, in his own mind, the promise he made not use drugs when he was released to parole; used drugs regardless. He was still concerned about the relationship he had been in prior to going into custody. How those factors played on his mind I don't know but the result was devastating. He took drugs and went back to the Piccadilly Motel and went looking for his former partner, Karly. He went from room to room, he went down the corridors, he was yelling, "Where the fuck is Karly?" He kicked doors; he kicked some of them till they smashed. One of the doors was clearly marked, "Boiler Room". There is no way she could have been in there, yet he kicked it in. In fact, she had never been at the motel. 8. He made his way to room 33. He was screaming, "Open the fucking door, open the fucking door, I know Karly is in there, open the fucking door". Mr Davey was inside that room. He had lived in that room for 18 months. He was understandably worried. He yelled, "Bugger off". Such was Wade's state that he either did not hear, did not listen or I suspect did not understand what Mr Davey said. He kicked and banged at the door until he smashed it in. The door was knocked off its hinges pushing Mr Davey back into the room. Wade then grabbed Mr Davey round the arms and punched him with a clenched fist to the face. He kept on yelling out, "Where's Karly?" He then went round the room causing damage to it. The police facts, agreed to by the offender, describe what he did that day as a "rampage." The damage done to the motel was assessed at $7,600. 9. When police attended Wade was still outside Mr Davey's room. He was obviously under the influence of drugs. Police described him as "rambling, chewing and foaming at the sides of his mouth". 10. Thankfully, the physical injury suffered by Mr Davey, while serious, involved only a laceration to his left eye and some bruising and bleeding. I do not underestimate the continued impact of this assault on Mr Davey. He was entitled to feel safe and secure in his room when a complete stranger, obviously affected by drugs, obviously behaving irrationally and erratically, kicked in his door and assaulted him by punching him to the face. 11. As is conceded by Wade only a gaol sentence of some length could operate to vindicate the dignity of the man assaulted and to satisfy the community that justice was done. But Courts are not here solely to punish. The ultimate aim of any sentencing exercise is to ensure that the community is protected. 12. While the community will be protected by removing Mr Wade from it for a period, he has to be restored to our community, and if he is restored as he was last time we will all be at risk. He came out of gaol unable to cope with normal community life. After he serves the non- parole period of his sentence he should be released in a staged manner so that he can get better help this time in coping. The repetition of such offending could lead to someone being far more seriously hurt. 13. How did it come to this? I am assisted by a report of Dr Chew, from Justice Health. Dr Chew tells me that significant problem in Wade's life, from a psychiatric perspective, is what he described as a methamphetamine use disorder. He concludes that Wade should receive significant drug and alcohol input, including residential rehabilitation as a stepping stone back into the community, and that he will benefit from whatever programs can be made available to him while in custody. 14. The reasons and rationale for that conclusion are confirmed in a comprehensive report prepared by Ms Brown. In it she sets out Wade's background and history. 15. As a young man he had a supportive family. He is the only member of the family who has been in trouble. He went to good schools in the local area, but he did not apply himself and left school at year 10. He was able to work and is able to work, but has not really worked since 2014. Personal difficulties, including; the use and abuse of drugs, inappropriate relationships, a disruptive relationship and homelessness, and have led to him committing crimes and then back to gaol; time and time again. 16. Wade has demonstrated symptoms of anxiety and depression, which are interrelated with his drug use history and his substance use disorder. His immediate response when he does not cope is to turn to drugs. He had started, but not finished, a remand addictions program before release. He was not able to cope when he was released. 17. He wrote a letter to me. It was not on oath, but any sensible person would say what he said in it. I am prepared to accept that when he is not using drugs he is a thinking person. He says he is deeply remorseful of his actions and he takes full responsibility for them. He said it is out of his nature to act in this manner, although he then qualifies it by saying "to a total stranger". He does have a history of violence. He is not entitled to leniency because of his criminal record. He offers an apology to Mr Davey. I accept Wade now understands how terrified he would have been, although I doubt Mr Davey would ever accept his apology. Wade's letter shows some insight into what he did. 18. Wade had only been out of gaol for a couple of days. The fact that he broke his promise to the Parole Authorities, to the Court, to his family and himself means that a sentence has to be increased. The fact that these matters clearly breached his parole and that I have taken into account that increase means that I can start the sentence from the date of arrest, 9 September 2018. 19. The sentence I impose will effectively be accumulated on the year he spent in custody. The year he spent in custody did nothing to equip him for ordinary community life. In fact, this offence involves an escalation of his past criminal behaviour. 20. When Wade gets out he will be in his mid-thirties; he will have some choices to make. If he wants to stay in gaol he will do nothing, he will not take up gaol programs designed to help him change and in all likelihood will be refused parole. But he appears to at least have some insight into what the future might hold for him and the choices he has to make. 21. I will structure the sentence so that the time in custody, while it was intended to meet all the purposes of sentencing, gives him an opportunity earn parole and gives the parole authorities a chance to structure his release into the community as both Dr Chew and Ms Brown recommend. If possible he should go into residential rehabilitation. He would benefit from the available programs. He would benefit from the Compulsory Drug Treatment Program, but again I note that program is not available to people who commit offences in the Illawarra. It is about time we had such a program available here. 22. The plea of guilty justifies a reduction in the otherwise appropriate sentence. I have had regard to the written and oral submissions of Mr Pace, for the offender and the submissions of Ms Kerr, who appears for the Director. I have sought to address those matters in the judgment. Mr Pace raised Ryan [2017] NSWCCA 209 and DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, at [177]. While I take into account Wade's anxiety, depression and substance use disorder, I cannot distinguish to any significant degree Wade from many of the other offenders who come for sentence. It is a sad but tragic fact that depression, anxiety and substance use disorders are all matters that courts take into account generally in any sentencing exercise. I have tried to do so, so far as I can, to the prisoner's advantage. 23. Special circumstances will be found for reasons Mr Pace summarises in his written submissions. Mr Wade has complex needs, which will require intensive case management while on parole. He will benefit from an extended period of supervision focusing on securing accommodation, drug rehabilitation and his mental health. It is in the community interest, not just Wade's interest, that those programs be put in place while he is serving his sentence. He must be given as much assistance as possible to help him deal with a long‑standing problem in relation to the use of illicit drugs, and as demonstrated in this case, anger management. 24. I will take into account the matter on the Form 1. It does operate to increase the sentence for the aggravated break and enter. It requires greater weight be given to community protection and, frankly, retribution for the offence for sentence. I do so as part of my synthesis of all relevant matters: Markarian v The Queen [2005] HCA 5; (2005) 228 CLR 357. I note that in describing the specifics of the offence for sentence the rampage that preceded and followed it was part and parcel of the objective material before me. I have sought not to double count.