R v Sherrell [2019] NSWDC 261

District Court New South Wales

Medium Neutral Citation: R v Sherrell [2019] NSWDC 261 Hearing dates: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction order. Catchwords: SENTENCING - Relevant factors on sentence – break and enter with intent – role of offender – low level criminality – prosecution concessions – leniency required - intensive correction order – community service. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Tepania v R [2018] NSWCCA 247 Johnson v R [2010] NSWCCA 124 Pullen v The Queen [2018] NSWCCA 264 Category: Sentence Parties: Zach Sherrell (the offender) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defenders NSW (for the Offender)

Solicitors: Morrisons Law (for the offender) Ms A Kerr (for the Director of Public Prosecutions) File Number(s): 2018/00084286

JUDGMENT – Ex Tempore - Revised 1. Ms Grainger, her adult daughter, aged 20, and her adult son, Jamie, aged 24, and her daughter's boyfriend live in Station Street, Dapto. At about 2pm on Thursday 13 March 2018, three people appeared at their door. The three people then entered, after opening the closed door. Inside the premises they asked Ms Grainger for "yarndi," an old fashioned and, I am told, Aboriginal, name for the drug cannabis; not that the traditional owners of the continent had cannabis available to them before modern times. 2. A man who was with Sherrell was carrying a machete. He asked for money and drugs. Sherrell stood at the front door. He did not say anything. The occupants of the home said they did not have money or drugs. The man with the machete swung it; it causing damage to the hallway. One of the occupants called the police and put the phone on speaker. Jamie Grainger walked out of a bedroom. He saw Sherrell standing at the front door. Sherrell looked at him and said, "Stop". The victim said, "No, man, what's going on?" Sherrell then said, "They're all right; just leave it". 3. The third person who entered the home was Joanne Mitchell. She said to the occupants "Is it really worth it?" The three then left. 4. Police investigations led them to Sherrell and Mitchell. Sherrell was arrested on 15 March 2018. 5. The agreed facts before me conclude: "The Crown cannot prove beyond reasonable doubt that the offenders Sherrell and Mitchell were aware prior to the production of the knife and subsequent opening of the door of any planned criminal activity. It is accepted by the parties that by remaining at the premises and intending to drive the three from the scene, the offender, Sherrell, has demonstrated a willingness to assist during and after the enterprises. The Crown concedes that there is a reasonable possibility that in speaking to Jamie Sheppard Grainger the offender, Sherrell, was attempting to defuse the situation." 1. That concession is important. Nevertheless, when one looks at the offence itself and makes a necessary assessment of objective seriousness. It must be noted that a suburban home was invaded by three strangers, one of who was armed. There were a number of occupants of the home who were clearly perplexed by what was going on but I must take into account there was violence and there was a weapon. Whether the invaders got it wrong or right is not a matter of any relevance. 2. It is also important to note that the incident occurred over a short space of time, but that the threat inherent in the production of the weapon and the demands made by the unknown man would have been reinforced by the presence of Sherrell and Mitchell. 3. These are all matters that the Court must consider and consider in the light of the potential maximum penalty for this offence of 20 years and the standard non‑parole period of five years. These are all matters that the Court must consider in determining whether and to in what form a custodial penalty should be imposed. That maximum and the standard non‑parole period which relates to an offence that objectively falls in the middle of the range are important guides to the exercise of my sentencing discretion. 4. The plea of guilty and my assessment that this offence falls close to the bottom of the range of what are serious offences, for significant variation from the standard non‑parole period. In fact, the disposition which I indicated during submissions will not involve a standard non‑parole period at all. 5. There are many and varied examples of aggravated break and enter offences. This is not one of the more serious ones, serious though it is. Objectively, it is above the bottom of the range because of the production of the weapon. 6. Some leniency can be extended to Mr Sherrell because of his role in the enterprise. It does not appear that he had planned for the weapon to be produced or was in any way aware of what the third party was seriously intending when they entered the premises. Nevertheless, he was present and able if called upon to assist that person. He did assist that person. The concessions made by the Crown indicate that so far as he was concerned, while he did not leave and disassociate himself from the enterprise, his role was a minimal one. As the Crown conceded, it is open to conclude that he was attempting to defuse what could have been a particularly volatile situation. It needs no great imagination to understand what could have happened had the situation escalated. 7. The offenders, Mr Sherrell in particular, were all participants in the commission of the same crime. Proper application of parity principles does not necessarily mean that each offender to a joint enterprise is sentenced on the basis that their individual actions had the same objective criminality. There can be reasons why one offender is less objectively culpable than the other: Johnson v R [2010] NSWCCA 124. 8. As I said, I have regard to the standard non‑parole period as one guide to my exercising sentencing discretion, but the process of comparing and contrasting the actual offence with an abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non‑parole period: see Tepania v R [2018] NSWCCA 247 at [103] to [120]. Nevertheless, to enter someone's home, as the Crown forcefully submit, in the manner accepted here, ordinarily and should, call for the imposition of a custodial penalty. 9. Sherrell can take no great comfort from his criminal record. He was on a bond for drug matters at the time. He has been before the Court a number of times in the past and has had been given a number of opportunities by courts. 10. He will get the benefit of his plea of guilty. The guilty plea has two aspects to it. The first involves recognition of its utilitarian value, which given that it came at the death, so to speak, on the morning of trial, could only attract a reduction of 10% from the otherwise appropriate sentence. The second aspect is reflected in all the other material before me, particularly the agreed facts and the Sentence Assessment Report. Sherrell appears to have at last accepted some responsibility for his own actions; not just for committing this crime but in relation to the way he was living his life, in particular his long term problem with illicit drugs. 11. A sentence assessment report is before the Court: exhibit B. It indicates that his arrest and his two months in custody was, "a wakeup call", and that he has responded to it. The report notes that for over four years he battled with an addiction to methylamphetamine; ice. It indicates that following his release to bail he has participated in the Illawarra Drug and Alcohol Rehabilitation Program; that he has obtained stable accommodation and has stable, if part time, work. As with all long term drug users the assessment is guarded. Were he to lose his accommodation; were he to recommence the use of illicit drugs; the community would suffer. But his progress towards rehabilitation is one that is respected by his family and the parole officer who has prepared the report. 12. It is accepted that for the moment supervision is not required because his progress has been so good, but, with great respect to those who prepared the report, this order will require some supervision until it is deemed suitable by probation and parole not to follow‑up. He has been on strict bail conditions. The removal of those bail conditions will leave him to his own resources. 13. As his counsel Mr Fraser, points out in his submissions, commission of offences against individuals and commission of offences against the community can, if possible, be recompensed by work for the community. I note that the report's author, Ms Vlasic, says that he is suitable to undertake community service. 14. Sentencing courts have an obligation to vindicate the dignity of victims of violence. This is especially so when someone's home is invaded. Courts must express the community's disapproval of the offending and by the imposition of harsh penalties try and dissuade this offender and others from doing what he did. I am sure that his time in custody has opened Sherrell's eyes to what his future could be. If he breaches the order that I intend to impose he could be returned to custody. 15. An Intensive Corrections Order is an important community based sentencing option. It can only be imposed if the judge has taken account of community safety; which is generally the paramount consideration in any sentencing exercise. It is accepted by Parliament as reflected in s 66 Crimes (Sentencing Procedure) Act 1999 that as an alternative to serving fulltime detention community based orders can have a significant role in community protection. We all benefit if someone is rehabilitated. In many cases incarceration can have an opposite effect, and that is recognised both in the second reading speech which led to the revised Intensive Correction Order regime: see Pullen v The Queen [2018] NSWCCA 264, and in a number of important studies by the Bureau of Crime Statistics & Research. 16. Intensive Correction in the community is burdensome and allows for a condign punishment. It is not a light sentence. It allows for a person to be tested in the community and to give something back to the community. It also requires the Court to show a bit of trust in the offender and in that regard I cannot ignore the fact that a bond was breached. Nevertheless, it is an option that is, on all the material before me, that must be tried in this case. 17. In the interest of transparency, I indicate that had it not been for the plea of guilty a sentence of two years and three months would have been imposed. I will give you, as I must, the full benefit of the two months served in prison on remand. Adjusting, and not taking a purely mathematical approach, that means an effective sentence of one year and ten months should be imposed. 18. The formal orders of the court are that you are convicted. There will be a sentence of one year and ten months from today's date. That sentence is to be served by intensive correction in the community. 19. In addition to the standard conditions, it is a condition that you obey all directions of Probation and Parole and participate in drug rehabilitation programs, and perform 300 hours of community service. 20. If you breach those orders, you could be disciplined. If it is a serious breach you could be returned to custody to serve the balance of your sentence. Those orders will have to be entered in the Court office before you leave today. You should report to probation and parole within seven days to enable the community service component to take effect. I hope not to see you again, Mr Sherrell.