A man who made national headlines after throwing a cash register at McDonald's has been sentenced at Blacktown Local Court for damage to property.
Jake Sinderberry was alleged to have verbally abused employees at Kellyville McDonald's as he refused to check in using a QR code.
The 25-year-old has been ordered to attend counselling for anger management as part of his sentence.
His case drew attention from national media outlets as well as NSW Health Minister Brad Hazzard.
Sinderberry attended the restaurant on 9 January 2021 immediately after being refused entry at two pubs due to his intoxication.
NSW Police initially issued a statement saying the man had been asked to complete a COVID-safe check-in. All New South Wales food and drink premises have been required to collect customer details since 23 November 2020 for contact tracing purposes.
The western Sydney carpenter refused, before becoming aggressive and verbally abusing staff.
CCTV footage captured the incident which shows a McDonald's worker pointing at the QR Code on the counter.
Sinderberry can be seen walking to where the QR Code is and then begins arguing with the worker.
He then pushes the cash register and a printer off the counter before absconding from the premises.
A few days after the incident the 25-year-old was formally arrested over the incident.
He was charged with destroying or damaging property, use of offensive language in/near a public place and not complying with noticed direction COVID19.
Property damage charges at Blacktown Local Court
Mr Sinderberry fronted Blacktown Local Court on 1 February 2021 over the incident and pleaded guilty to all charges.
Magistrate Claire Follent said that the sentence needed to reflect the purposes of general deterrence.
"I need to denounce your behaviour as reprehensible... and I need to send a message to the community," she said.
The 25-year-old was handed a two-year community corrections order. As part of the order he must complete 150 hours of community service and must undergo counselling for alcohol and anger management.
He was also fined $2750.
What is General Deterrence?
General deterrence is a legal concept which argues that the threat of legal punishment can dissuade the community at large from committing similar offences.
In NSW, it is enumerated in Section 3A(b) of the Crimes (Sentencing Procedure) Act 1999.
Put simply, it is the theory that the harsher the punishment, the greater the deterrent effect on other would-by offenders (R v AEM  NSWCCA 58 at ).
In Mr Sinderberry's case there would have been a significant need for general deterrence to ensure other members of the community abided by sign-in requirements.
However, general deterrence can be significantly reduced in specific circumstances, such as when an offender suffers a mental illness or condition.
A specialist criminal defence lawyer may have advised the 25-year-old to obtain psychological help which may have diagnosed an underlying mental health condition. This may then have grounded a Section Application.
In the decision of Skelton v R  NSWCCA 320 at 140, the Court of Criminal Appeal (per Beazley P and Davies J) summarised the principles in relation to Mental Illness and deterrence:
- Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence;
- It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;
- It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced;
- It may reduce or eliminate the significance of specific deterrence;
- Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
Had Sinderberry retained an experienced Section 32 Application lawyer, he may well have been able to avoid a conviction for the charges.
NSW Health Minister Denounces Conduct
The incident was drawn to the attention of NSW Health Minister Brad Hazzard.
The Minister reacted to the footage at a press conference by launching a broad attack on those who refuse to sign in to venues.
"We've had almost a year of COVID and we all know the value of QR Codes to keeping us safe," he said.
Mr Hazzard labelled the actions of Sinderberry as "absolutely appalling".
QR Codes provide NSW Health with complete electronic records, so they can alert people if they have been in contact with someone who has tested positive for Covid-19.
Face masks are mandatory in some indoor settings in NSW. Staff at hospitality venues are required to wear face masks, patrons are not.
A McDonald's representative also spoke to media outlets about the incident, confirming that no form of abuse or violence is tolerated in their stores.
"We continue to follow Government advice and require all dine-in guests across the state to sign-in via the Service NSW QR Code in accordance with our Covid-Safe plan," the spokesperson said.
Damage Property Charges
Section 195 of the Crimes Act 1900 (NSW) defines property damage as intentionally or recklessly destroying or damaging the property of another person.
The prosecution must, beyond reasonable doubt that the accused intentionally or recklessly damaged property and that property belonged to another person.
It is sometimes called 'malicious damage to property'.
If the property was owned by the Accused jointly with another person, they can still be found guilty of this offence. This is a very common occurrence in domestic violence cases.
It is crucial to the police case that the physical integrity of the property was altered in some way. This includes if the alteration is temporary ( Grajewski v Director of Public Prosecutions (NSW)  HCA 8).
The maximum penalty for this offence varies depending on the value of the property damaged.
If heard in the District Court, the maximum penalty for destroy or damage property charges is 5 years jail. If the offence was committed while in the company of another person, the maximum penalty becomes 6 years jail.
If heard in the Local Court and the value of the property damaged is less than $5000, the maximum penalty is 12 months gaol and/or a fine of $5,500. Where the value is less than $2000, the maximum fine is $2,200;
However, if the value of the property damaged is greater than $5000, the maximum penalty becomes 2 years jail.
offence of affray is taken very seriously by the Courts. The maximum penalty is five times greater than the offence of common assault, reflecting the seriousness of the offence.
Despite this, there have been a number of recent examples of these charges being dismissed after an accused retains experienced criminal defence lawyers. You can read about some of those cases here.
Having experienced criminal lawyers for destroy or damage property charges will go a long way towards beating these charges.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.