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District Court 20 September 2019

R v Johnston

[2019] NSWDC 607

Theft & propertyDomestic & family violencePublic order & justice offences
CRIME SENTENCE INTIMIDATION

Citation: R v Johnston [2019] NSWDC 607
Court: District Court of New South Wales
Date: 20 September 2019
Judge: Colefax SC DCJ

Background

The offender, a 38-year-old woman, appeared for sentencing on two offences arising from events in a small rural NSW town on 15 and 16 August 2018. She had been on bail for affray at the time of the offending. The events were triggered by a debt owed to the offender by an acquaintance, Ms Cock, who could not repay it until an expected Centrelink payment arrived.

After driving around the town with co-offenders in an unsuccessful attempt to obtain money or drugs, the offender and her associates attended the home of a second woman, Ms Zarbo, who was not a party to the debt. During that visit, the offender threatened Ms Cock that she was "going to get hurt," constituting the first offence of intimidation under the domestic and personal violence legislation.

When the offender and her group left but then returned, they forced open Ms Zarbo's locked front door in the early hours of the morning. Armed with a star picket and later a tomahawk found at the premises, the group rummaged through Ms Zarbo's belongings demanding drugs, with one co-offender threatening Ms Zarbo with the tomahawk. Ms Zarbo handed over a small quantity of an unidentified substance, after which the group left. This conduct formed the basis of the second and more serious offence of aggravated break and enter in company and commit a serious indictable offence.

  • What sentences were appropriate for the offence of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)?
  • What sentence was appropriate for aggravated break and enter in company and commit a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW)?
  • What discount, if any, applied to reflect the offender's plea of guilty?
  • Whether special circumstances existed to justify a longer parole period beyond the statutory ratio.
  • How to structure an aggregate sentence covering both offences.

Decision

His Honour assessed the intimidation offence as falling somewhere between the lower end and the middle of the range for objective seriousness. The aggravated break and enter offence was assessed as a mid-range offence. The break and enter was additionally aggravated by the fact that it occurred in the victim's home, a weapon was used, and the offender was on bail at the time. Being in company was not treated as an additional aggravating factor because that element already formed part of the offence definition.

The offender received a 25 per cent discount on her sentence to reflect her guilty plea. The indicative sentence for intimidation, after discount, was 13 months imprisonment. For the break and enter offence, after discount, the indicative sentence was 5 years and 3 months with an indicative non-parole period of 3 years and 11 months.

The defence sought a finding of special circumstances to extend the parole period on the basis that rehabilitation prospects would be improved by more time on parole. His Honour largely rejected that submission, accepting the Crown's position that such a finding was not clearly warranted on the facts. However, a minor adjustment to the non-parole period was made.

A psychologist's report before the court noted the offender had a history of avoiding treatment and recommended that rehabilitation support commence during the custodial period, where the structure of incarceration could assist engagement. His Honour acknowledged this in calibrating the sentence.

Orders Made

  • Aggregate term of imprisonment of 5 years and 6 months imposed.
  • Non-parole period fixed at 4 years, commencing 4 February 2019 and expiring 3 February 2023.
  • Balance of term of 1 year and 6 months, commencing 4 February 2023 and expiring 3 August 2024.

Key Takeaways

  • The District Court treated the presence of a weapon and the home invasion context as significant aggravating features for the break and enter offence, even where the weapon was not brought to the scene by the offender herself.
  • Being in company, while part of the offence definition under s 112(2) of the Crimes Act 1900, was not counted as a separate aggravating factor in sentencing.
  • A 25 per cent guilty plea discount was applied across both offences.
  • Where a psychological report itself recognises that a custodial setting is needed to provide structure for rehabilitation, that can weigh against a finding of special circumstances, since a longer parole period is not necessarily the mechanism through which rehabilitation will be achieved.
  • Under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, a verbal threat made in the context of a debt dispute can constitute intimidation even where no physical violence occurs, and the offender's prior references to personal violence formed part of the coercive context.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation; maximum penalty 5 years imprisonment)
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter in company and commit serious indictable offence; maximum penalty 20 years imprisonment; standard non-parole period 5 years)

Cases cited: None recorded in the judgment.