R v Schmalz [2019] NSWDC 775

District Court New South Wales

Medium Neutral Citation: R v Schmalz [2019] NSWDC 775 Hearing dates: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of four years with a non parole period of two years. Catchwords: SENTENCE – Break and enter – circumstances of aggravation - escalation and confrontation- resist arrest- use of weaponless control techniques. SENTENCE – Relevant factors on sentence – long record – remorse – institutionalisation – need for support on release- breaking the cycle that leads to more crime and more time in gaol- community protection. Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Bugmy v The Queen (1990) 169 CLR 525 Category: Sentence Parties: Nathan John Schmalz (the offender) Director of Public Prosecutions Representation: Counsel: Ms T Hennessey (for the offender)

Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (for the offender) Ms A Bird, Director of Public Prosecutions File Number(s): 2018/00373629

Judgment 1. Nathan John Schmalz, the offender now before the Court for sentence, was born in 1986. He is now 33 years old. As a young child he came before the Children's Court in relation to offences and welfare matters. As an adult he first came into custody in 2004. I have calculated that he has spent less than two years of the last 15 years in the community; and most of the period in the community has been spent either in a rehabilitation facility or under bail conditions or parole supervision. 2. He came before this Court last year charged with receiving and aggravated break, enter and steal, offences. I sentenced him for those crimes. At the time I received a report from a psychologist, Dr Rodriguez, references and a report from Oolong House. Schmalz had previously been given bail to attend that rehabilitation facility in Nowra. 3. On that occasion Schmalz was treated with a degree of leniency by me; a significant finding of special circumstances was made to allow him time under supervision to work towards his rehabilitation. 4. Evidence before me today indicates that initially he kept to his promise to the Court. He went to the vineyard where he had obtained work and did his job diligently. But a reoccurrence, a re-emergence, of matters that have plagued him psychologically for most of his life, led to uptake of first, alcohol and then illicit drugs. By December 2018 he was back in Wollongong and, as is his habit, preying on members of the community. He had breached the promise he made to this Court and to himself. 5. On 4 December 2018, Schmalz was in the Mangerton area. At about 4.15 pm he entered a home in Staff Street. Inside the home was a young woman; she was sick and having the day off work. The house had been locked by her older sister, when she went to work earlier that day. The sister came home at about 4.15 pm. As she approached her home she looked into her bedroom window and she saw a man next to the bedside table. She immediately yelled out "Oi what the fuck." The man looked at her and jumped out of the bedroom window and ran toward a mountain bike, which was standing up against a nearby wall. She chased him. She tackled him. There was a struggle. He eventually broke free and ran. She chased him again and grabbed at a nylon bag he was carrying. The two then wrestled over the bag. She was yelling to neighbours; "This man has just come out of my house and he has my stuff." At this stage her sister came out of the house and saw and heard what was going on. 6. The man eventually let go of the bag. He asked her for his mobile phone and wallet. When reaching for the mobile phone she pulled out a mobile phone charger and an envelope with her name on it. She showed these to the neighbours who had gathered saying; "Look he's got my stuff, this is my name on the envelope." The man then ran off. 7. The man returned. He was carrying a rusted metal broomstick. He went toward the older sister but the younger sister grabbed the stick off him. The man then reached out and attempted again to grab the bag from the older sister. He failed in that attempt and he ran off towards his bike: matter to be dealt with on Form 1. 8. For a second time the man returned. This time he was carrying a thick metal chain with a padlock attached to it. He was swinging it in circles, saying "Give me my stuff back." The younger sister grabbed the black bag and started to run back towards her house. She ran inside and locked herself in. In the bag she found a number of her belongings. The older sister walked towards the offender and shoulder charged him to prevent him chasing her sister. The man was apprehended by one of the neighbours. The man was the offender Nathan Schmalz. 9. The police had been called by then and arrived promptly while the incident was continuing. They attempted to arrest the offender. He resisted them. Schmalz continued to thrash around and it required considerable intervention by the police, using, "weaponless control techniques", to subdue him; weaponless control techniques are wrist locks and knee strikes to the legs, torso and back region. Schmalz was eventually handcuffed. That resist police is an offence and he has admitted his guilt and will be dealt with pursuant to a s 166 certificate, Criminal Procedure Act 1986. 10. After his arrest Schmalz's belongings were searched and an ACT driver's licence, that did not belong to him, was found. This matter is also for sentence and is on the s 166 certificate.