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. Assessment of objective circumstances 1. The offender entered the home of another person. He did so intending to steal that person's property. Given the way the flat had been locked up, I am prepared to accept that he did not expect to find a sick woman in the premises. 2. That circumstance of aggravation is reflected in the charge presently before the Court. One reason we have significant penalties for matters such as this, including standard non-parole periods, is because anyone who breaks into people's property has to understand that there is a risk that someone will be there. And, as occurred here, if they are disturbed there will be a confrontation and a further escalation of criminal activity. If there is further escalation of criminal activity, someone could get seriously hurt. That is particularly the case if weapons are used: no matter what those weapons are and even if they spontaneously picked up. To arm yourself, even with a spontaneously picked up item such as a bike chain and lock, and then confront the victim of your earlier crime, is itself a crime that carries a maximum penalty of seven years imprisonment. 3. When Schmaltz gave evidence before me today, he offered no excuses for his behaviour. He was appropriately remorseful. He said at the time that he simply was not thinking. That is unfortunately the pattern that has been demonstrated by the criminal record that is before me. When in custody, when he is not taking drugs, he has a capacity to understand the consequences of his actions. But once he resumes taking drugs in the community, he thinks not even of himself. He certainly does not think of others in the community and the harm he could do to them. 4. Appropriate recognition has to be given to the maximum penalties in this case, 20 years imprisonment with a five year standard non-parole period and seven years imprisonment. 5. I also sentence him for the matters on the s 166 certificate and I take into account the offence on the Form 1 when I sentence him for the aggravated break, enter and steal offence. 6. Each of the principal offences is objectively serious, although when the guidance offered by the standard non-parole period is taken into account, it is accepted that this matter falls towards the bottom of a range of what are indeed already serious offences. 7. Custodial penalties involving full time imprisonment are required. A number of discrete offences were committed, one sentence could not encompass all of them; nevertheless there are factors relating to each of the offences, which are in common, as are purposes of sentencing, which apply to each. There must be separate and distinct penalties indicated for each offence. There must be some accumulation, but I do not simply add one on top of the other. The principle of totality compels the Court to impose a sentence which is just and appropriate to all of the offending behaviour. 8. I have already alluded to the criminal antecedents of the offender. This is clearly a case where the Court's focus must be on community protection. It must however be recognised that we cannot simply lock Schmalz up and remove him from the community forever. He has to be restored to the community. 9. The subjective material is put before me in the form of a report from Mr Brabant, a forensic psychologist: exhibit 1. It indicates that the offender, who is an Aboriginal man, a proud Wadi Wadi man, who looks older than he is. He presented to Mr Brabant, as he presented in evidence today, as candid and insightful. His background as detailed in the report helps me understand the criminal antecedents before me and his offending behaviour. As a child, he had few of the advantages that most in the community expect. Violence was normalised in his home. Although he tends to dismiss the level of violence, it is clear that as a young boy, Community Services and the Children's Court believed he was in need of protection and removed him from his family. He spent time with Barnardos and in counselling. 10. He has quite recently, disclosed matters relating to sexual abuse when he was a child. It occurred during, and while subject to, counselling. He now has some insight into the impact of that abuse on him. If he is to deal with his underlying psychological and mental health problems considerable focus must be place on treatment aimed at enabling him to cope with the trauma of all the events of his childhood, in a manner that does not involve illicit drugs. His involvement with many illicit drugs and his anti-social behaviour and anti-social associates, has led to him committing crime after crime. It has led him to his present state where he is effectively institutionalised. 11. If the pattern of; drug abuse, crime, gaol, release, drug use, crime is to be broken, considerable effort has to be made, not just by him, by the authorities who will be responsible for him while he is in custody and while he is subject to release on parole. 12. He has some supportive family, but no other pro-social friends. He has worked while in custody, but most of his life has been spent in custody so apart from a few months at the vineyard he has never held a job. 13. It is clear from his evidence today that benefited from the programme at Oolong House, but he was unable to build upon what he learned and once he started using alcohol and then illicit drugs, he did not have the insight to go and seek the help again. 14. I would commend Mr Brabant's report to the State Parole Authority. I will have a copy sent with the warrant. It is also clear from his Justice Health record that he has a number of mental health problems. He reports auditory hallucinations, which may indicate a psychiatric condition. His evidence to me is that he has benefited from the anti-psychotic medication that he has been taking and he realises that in the community he must continue to take that medication. 15. A risk assessment has been made. I will not set it out but it is detailed in the report; his prognosis, his chance of not re-offending, is poor. There is some light; if he is given assistance. In submissions reference was made to the Balund-a programme. It is not available to him but another similar programme could help. If his release into the community is staged, if he keeps taking his medication, if he is able to obtain work and remain drug free, he may eventually lead a normal life in the community. Apart from a very short period last year he has never had the opportunity of leading a normal life in the community. 16. Ms Bird, solicitor for the Director of Public Prosecutions, submitted that Schmalz's prospects are not good but she accepted that the effort must be made. I do not want to be flippant, but insanity is sometimes described as - doing the same thing over and over again and expecting different results. We simply cannot as a community continue to imprison Schmalz, release him to parole without adequate support and expect that he, on his own, will be able to break the cycle. Considerable effort will have to be made not just in his interests, but in the community's interest, to ensure that his return to the community is staged and appropriately supported. If not, his prospects are bleak and that bleak prospect will mean that he will commit more offences against the community. 17. The offences he has committed to date have varied from the mundane to the very serious. Courts have a duty to protect the community. Protection of the community can involve efforts to prevent further crimes by both removing an offender from the community and by providing for his rehabilitation. His release to parole will be conditional upon him satisfying the State Parole Authority that he is capable of leading a law abiding life in the community. I will give him that opportunity by way of a finding of special circumstances. That is not the first time I have made such a finding. I am not optimistic, but believe that the time has not yet come where he simply has to be removed for as long as the objective circumstances of the offence demand. 18. Reference was made in submissions to the principles set out by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 57. I also have regard to the principles about parole periods of a sentence set out in Bugmy v The Queen (1990) 169 CLR 525. 19. Schmalz's mental health problems mean that his moral culpability for his crimes is reduced. I have to be careful not to double count those matters because the Bugmy principles also indicate that sentences can be reduced because of his background's impact on his moral culpability. There are also pointers in other directions that require a degree of harshness in the penalty to be imposed. However, to put it simply; harsh punishment has not worked in the past and it is unlikely to work again. Schmalz understands the consequences of his offending behaviour but still offends. 20. This is not a matter where full weight must be given to general deterrence; the principle that says harsh penalties are required to signal to others the consequences of behaving as this offender did. But there is a need here for a degree of retribution and denunciation. Schmalz entered someone's home, he confronted the occupants. He continued with that confrontation and used weapons to do so. When the police were called he resisted them and when arrested he was found in possession of someone else's property. 21. The offences were committed in breach of his parole. I have to be careful not to double count the weight given matter, which is also an aggravating feature on sentence. I propose to commence this sentence on 4 March 2019 to reflect the breach of the promise that he made. 22. I have to indicate sentences for each offence. I have to take into account the guidance offered by the maximum penalty. This is clearly a case where an individualised sentence is required, but there must be a further period in custody of some length to reflect the seriousness of what was done. 23. I have reduced the otherwise appropriate sentences by 25% to reflect the early plea of guilty. Mr Schmalz I have taken into account your remorse and your promise to take any help offered and change. There will come a time when Judges of this Court, hopefully not a superior court, will form the view that you simply cannot be trusted in the community. If you keep to the promises you made to yourself and the court today and you are given assistance, there is some prospect that you might not re-offend, but I must be guarded in my assessment, as I was on the last occasion. 24. I thank Ms Bird for the Director of Public Prosecutions and Ms Hennessey for the offender, for their written and oral submissions. I hope this judgment does justice to them. I have taken into account and hopefully reflected in the judgment all relevant matters. I return to the seriousness of what was done in particular to two young women, who did not want the offender in their lives at all. Their courage in confronting you has to be recognised, but one of the reasons you must be punished is that you put them at considerable risk. I think you understand that now; you did not understand it at the time. Orders 1. In relation to each of the matters you are convicted. In relation to each count * Count 1, aggravated break, enter and steal: taking into account the matter on the Form 1, as it carries a standard non parole period I indicate a sentence of 3 years 4 months with a non parole period of 1 year 8 months. * Count 2, armed with intent commit indictable offence: I indicate a sentence of 1 year 10 months * Count 3, resist officer in execution of duty: I indicate a sentence of three months. * Count 4, goods in custody: I indicate a sentence of one month. 1. The aggregate sentence in this matter will be one of four years imprisonment which will date from 4 March 2019. There will be a non-parole period of 2 years commencing 4 March 2019. You will be eligible for consideration for release to parole on 3 March 2021. There will be a parole period of two years from that date 3 March 2021 and expiring on 4 March 2023, during which you must be subject to supervision and obey all reasonable directions of the Probation and Parole Service. 2. The Psychological report of Mr Brabant, exhibit 1, will be forwarded with the warrant. ********** 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: 07 January 2020