Citation: R v McDowell [2019] NSWDC 441
Court: District Court of New South Wales
Date: 25 October 2019
Judge: Neilson DCJ
Background
The offender, a 26-year-old man, pleaded guilty to entering a residential apartment at Manly with intent to commit the indictable offence of intimidation, contrary to s 114(1)(d) of the Crimes Act 1900. The maximum penalty for this offence is seven years imprisonment, and there is no standard non-parole period. A related intimidation offence was placed on a Form 1 to be taken into account on sentence (meaning it was not separately punished, but the court considered it alongside the principal offence).
The circumstances arose from the breakdown of an intimate relationship. Following a dispute in September 2017, the offender attended his former girlfriend's apartment late at night and, after she failed to respond to knocking, entered by removing a roof tile and dropping through a ceiling manhole. Once inside, he sat on top of her on her bed for part of a 40-minute period, asking her to listen to him while she repeatedly asked him to leave. He then departed. The former girlfriend reported the incident to police that night.
The offender was initially charged with much more serious offences, including breaking and entering with intent under s 112(2) of the Crimes Act 1900 (maximum 20 years, with a five-year standard non-parole period) and kidnapping under s 86(1)(b) (maximum 14 years). Those charges were ultimately withdrawn, and the matter proceeded to a guilty plea on the lesser charge under s 114(1)(d).
Legal Issues
- What was the appropriate sentence for an offence of entering a building with intent to commit an indictable offence, where the offender's culpability was significantly affected by a diagnosed psychiatric illness at the time?
- What weight should be given to the offender's mental health, his subsequent full recovery, and other subjective circumstances in fixing the sentence?
- Whether a conditional release order, rather than a custodial or community service sentence, was appropriate in these exceptional circumstances.
Decision
Neilson DCJ characterised the offending as sitting at the very bottom of the range of conduct capable of constituting an offence under s 114(1)(d). The judge noted that the provision covers an extremely broad spectrum of conduct, from the most serious break-and-enter scenarios down to much lesser behaviour, and placed this offender's conduct firmly at the lower end.
Central to the sentencing outcome was evidence of the offender's psychiatric condition. A report prepared by a psychiatrist three months before the offence documented a diagnosis of Major Depression with Anxiety, describing a classic melancholic depression with agitation. His Honour found that this illness materially attenuated the offender's moral culpability at the time of the offending.
The court also weighed a range of positive subjective factors. By the time of sentencing the offender had made a full recovery, was in stable employment, and spent Saturdays voluntarily teaching Thai kickboxing to children. The former girlfriend had wanted the charges withdrawn. His Honour was satisfied the risk of reoffending was negligible, which meant specific deterrence was not a live consideration. General deterrence was also given reduced weight, on the basis that a person suffering a transient mental illness was not an appropriate vehicle for a deterrent message to the broader community.
Having regard to the offender's good character, his mental health at the time of the offence, and the extenuating circumstances overall, the District Court determined that a conditional release order without supervision was the appropriate outcome. The court declined to impose a community service condition, noting that the offender worked full-time, taught children on Saturdays, and required time for rest and recreation. The Crown did not press for community service.
Orders Made
- The offender was convicted of entering a building at 184 Pittwater Road, Manly on 27 September 2017 with intent to commit the indictable offence of intimidation, contrary to s 114(1)(d) of the Crimes Act 1900.
- Released on a Conditional Release Order for a period of 12 months from 25 October 2019.
- Conditions: (1) not to commit any offence; (2) to appear before the Court if called upon during the term of the order.
- The Form 1 intimidation matter was taken into account in passing sentence.
Key Takeaways
- The District Court confirmed that s 114(1)(d) of the Crimes Act 1900 covers a very wide range of conduct, and that sentencing courts must carefully calibrate where specific offending falls within that broad spectrum.
- A diagnosed psychiatric illness present at the time of offending can significantly reduce an offender's moral culpability and thereby reduce the weight given to general and specific deterrence in the sentencing exercise.
- Where an offender has made a full and demonstrated recovery from a transient mental illness, and the risk of reoffending is assessed as negligible, the court found those factors supported a non-custodial outcome even for an offence carrying a seven-year maximum.
- Under s 9 of the Crimes (Sentencing Procedure) Act 1999, a conditional release order remains available where good character, mental health at the time of offending, and extenuating circumstances together make it expedient to release without further punishment.
- Practical considerations, including an offender's work and community commitments, were relevant to the court's decision not to impose community service as a condition of release.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(1)(b), 112(2), 113(2), 114(1)(d)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4A, 9
Cases cited: No cases were cited in the available text of the judgment.