R v Payne [2019] NSWDC 916

District Court New South Wales

Medium Neutral Citation: R v Payne [2019] NSWDC 916 Hearing dates: 21 August 2019 Decision date: 28 August 2019 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Form 1 matter taken into account on sentence imposed below. Special circumstances found – first time in custody, relative youth, need for extended period of parole to assist his return to the community. Sentenced to a term of imprisonment for 4 years and 6 months with a NPP of 2 years and 6 months to commence on 4/8/18 and to expire on 3/2/21 and a balance of term of 2 years to commence on 4/2/21 and to expire on 3/2/23. Catchwords: CRIME – Sentence - aggravated robbery with grievous bodily harm - demand with menaces in company – parity – objective seriousness – subjective matters Legislation Cited: Crimes Act 1900 Cases Cited: Thomson & Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Regina Payne, John Representation: Counsel: Defence: Ms C Mendes

Solicitors: Crown: Mr J Lee, Mr A Thomas File Number(s): 2018/00186024 Publication restriction: NPO in respect of the names of the child victims

Judgment 1. John Payne appears for sentence in respect of an offence of aggravated robbery with grievous bodily harm, contrary to s 96 of the Crimes Act 1900. The maximum penalty provided is 25 years' imprisonment. When being sentenced in respect of that offence, he asks that the Court take into account an offence contained on a Form 1, being an offence contrary to s 99(2) of demand with menaces in company. That offence, when dealt with in the District Court separately, has a maximum of 14 years' imprisonment. There is no relevant standard non parole period. 2. The facts are agreed and are as follows: 3. At about 8.45pm on 11 June 2018, JT (aged 16 years), KO (aged 20 years) and SP, a female (aged 13 years), were walking in a northerly direction on the east side of Mate Street, Albury, when they observed a group of three males, being the offender, Damien Clarke and Jake McEwen. 4. The three males were walking south towards JT, KO and SP. 5. JT's group felt uneasy, so they crossed to the other side of the road. The offender and his co offenders then crossed to the same side of the roadway and continued moving towards JT's group along the footpath. 6. Once the three offenders got closer to JT's group, the offender approached SP and wrapped his arms around her upper body. SP was holding a mobile phone in her hands at the time. The offender said to her, "Give me your phone, I want your phone". SP put the phone behind her back and said "no". The offender then yelled, "Give me your phone, give me your phone" (s 99(2) Crimes Act, on Form 1). 7. While this was happening, one of the co offenders took hold of JT and moved him to the traffic island in the middle of the roadway, where he demanded JT's property, including his wallet and mobile phone. 8. This offender let go of SP and crossed the roadway onto the traffic island. The offender approached JT and the co offenders and joined in the demand of property from JT. The offender punched JT once to the face, and then grabbed him by his shirt and pushed him into the pathway of an oncoming car. JT struck the windscreen of the car then being driven by Sonja Williams. 9. Ms Williams informed police that she had been driving at 60 kilometres an hour, but had slowed as she approached and observed a number of people standing on the traffic island, because she thought they might be crossing the road. Ms Williams slammed on her breaks when JT hit her windscreen. She was uncertain of her speed, but informed police that it had not taken a long distance for her vehicle to come to a complete stop. 10. Immediately after JT hit her car, Ms Williams observed the three co offenders to split up and run in different directions. 11. The wallet belonging to JT was removed from the scene. The wallet contained one ANZ credit card. * 10. JT was transported to the Albury Base Hospital via ambulance, and had suffered the following injuries; * fracture of the left midshaft tibia, * fracture of the distal femur to the left lateral condyle; * right proximal fibula avulsion fracture; * concussion; * liver laceration; * small pneumothoraces; * pelvic haemotoma. 1. The offender was arrested on 4 August 2018 at Lavington, New South Wales. The offender declined to participate in an interview, as was his right. He has been in custody since that date, and only in relation to these matters. 2. Each of the co offenders, Jake McEwan and Damien Clarke, was also arrested, and each has been sentenced in the Local Court. Before the Court are the facts and criminal histories of each of the co offenders. 3. In relation to parity, I note the following, Jake McEwan was sentenced to a term of imprisonment of 12 months with a non-parole period of nine months in respect of an offence contrary to s 99(2), and a further like offence contained on a Form 1. The offence contained on the Form 1 related to this offender's demand with menaces of SP, the offence for which he was sentenced was as a result of the demands he made of JT, causing JT to place his wallet and a pair of earphones and a mobile phone on the ground. Jake McEwan had a significant criminal history. 4. In relation to Damien Clarke, he was sentenced to an aggregate term of imprisonment of 12 months in relation to two s 99(2) charges, and a further s 61 common assault taken into account on a Form 1 in relation to one of those offences. The Form 1 s 99(2) offence also related to SP. The second Form 1 offence was a s 61 common assault in respect of Mr Clarke having punched KO with a closed fist to the face, the punch not causing any injuries. The offence not the subject of the Form 1 was a s 99(2) offence based on the demand of property and the pushing and punching of JT, and his placing, as a result, his wallet, earphones and mobile phone on the ground. 5. In relation to Damien Clarke's criminal history, I simply note that he had a significant history, but not as significant as Jake McEwan. Absent from each of the agreed facts in relation to Jake McEwan and Damien Clarke, as a result of their not having been charged with the offence of aggravated robbery with grievous bodily harm, was any reference in either of the agreed facts to JT having been pushed by this offender into the path of the motor vehicle. 6. As to the objective seriousness of the offences, JT, in respect of the robbery with grievous bodily harm, suffered two broken legs and a number of not insignificant injuries. However, I accept that in terms of grievous bodily harm, the injuries fall to the lower end of the relevant scale of seriousness. The offences were relatively spontaneous, although it is clear from the facts that it can be inferred that the three offenders crossed the street in order to confront, in the midevening, the three persons walking towards them. JT was a child, being 16 years of age, and SP was also a child, being a female aged 13 years. 7. As the group of offenders approached the victim group, there was immediate interaction as the offenders sought to commit offences against the group, who were merely going about their ordinary lives, and had provided no provocation other than, one can imagine, appearing to be vulnerable, because of their no doubt apparent age. 8. There is no Victim Impact Statement, but the fact that JT received, as a result of this offender pushing him in to the pathway of the oncoming car, two broken legs, it is perhaps fortunate for JT that the injuries were not much more significant, if not being life threatening. In my view, despite the fact that grievous bodily harm can include much more serious injuries, I am of the view that the offending on this occasion in respect of the robbery with grievous bodily harm falls towards the midrange of objective seriousness. 9. It is a serious example of such an offence. The offence of demand money with menaces in company, in respect to this offender, related to his assault on SP, the 13 year old female. I am of the view in relation to this offender that the seriousness of the offence falls towards although not at the midrange. It involved him physically accosting her by wrapping his arms around her upper body and making demands of her to surrender her phone, aggressively. 10. As to subjective matters, the Court has before it the offender's criminal history, a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report, evidence given by him on sentence, a psychological assessment under the hand of Anne Lucas, dated 19 June 2019, a certificate as to the completion of a Positive Lifestyles Program on 10 May 2019, and some 11 pages of Corrective Services case notes. Subjective matters have been drawn from that material. The offender gave evidence on sentence. 11. He is an indigenous person, presently some 24 years of age, but will turn 25 in a matter of days. He was brought up in the Riverina area and spent, as I understand it, his formative years at Murrin Bridge Mission, 12 km north of Lake Cargelligo, with a lack of adult supervision. His parents separated when he was young, and his earlier family life had been punctuated by episodes of violence between his parents, apparently his mother assaulting his father. When he was young, his parents separated, according to the offender, due to his mother's infidelity and a lack of engagement in the family. He had four siblings; two of them went to live with his father and himself and the two younger siblings went to live with their mother in Dareton. 12. From the age of eight or nine, as well as living some of the time with his father, he also resided with the grandmother, who was suffering from ill health, and he assisted in her care until she passed away in 2006. He was unable to recall either of his parents or his grandmother abusing alcohol when he was young. He was not in trouble with the law until he was approximately 13 or 14 years old, and had begun to associate with negative peers while living independently. 13. Psychological testing indicates that his IQ is within the borderline to low/average range, although there is no indication of any intellectual disability. His introduction to alcohol and prohibited drugs was at an early age, and from around the age of 15 or 16 he was drinking alcohol every day. He commenced the use of cannabis as a teenager, before transitioning to the use of methamphetamine when he was approximately 18 years of age. He used ice regularly for several years, and has noted that when using that substance he would become paranoid and hear voices, those psychotic symptoms disappearing when he was not under the effect of drugs. He has, however, never been admitted for psychiatric attention. 14. Initially when living independently, it was on the streets. The two co offenders in this matter are long time friends and part of his peer group, in respect of whom he has a long history of getting into trouble with. He attended school to Year 9, when he began to truant, and was then suspended for misbehaviour, and left school. After school, he briefly engaged in some pre-training designed to get him into an electrical trade course, but he discontinued as a result of his substance abuse. He has no other employment history and he is reported as having little occupational direction. He has had a significant drug and alcohol use problem from his early teens. The positive lifestyle program I previously referred to was with the Salvation Army, which he completed on 10 May 2019 while in custody. 15. The case note reports from the New South Wales Department of Corrective Services, which cover a period from 22 January 2018 to 21 May 2019, indicate that the offender is well regarded within the prison system by prison officers, being always respectful towards them, and there being no negative case notes and no internal charges. While in custody, he has obtained work as a sweeper, and has also worked as a Special Projects Worker doing the unit meals. The case note reports indicate that he has adjusted well to his time in custody and that he is not a problem. 16. I note that they also indicate that he has had very little contact during the period in custody, the last visit by anyone to see him being in November 2018, which would accord with his evidence that he had at the time of this offence established a relationship with a female who, despite having moved to Canberra to do a work course, continues to be supportive of him, and had last visited him in November 2018, and with whom he maintains regular contact by phone. 17. He was committed for sentence on 26 March 2019 from the Albury Local Court and is entitled to a 25% discount for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383. As to his past criminal history, I note that he has never served a significant period of time in custody, and that he has both juvenile and adult offences. In my view, in general, his criminal history is less significant than the criminal history of either of the co offenders. He has in the past had the benefit of Control Orders as a juvenile, and Community Service Orders as an adult. In my view, his criminal history is such as is to not deprive him of all leniency, particularly noting that in the past he has been called up for breach of orders made. Although he has spent some days in custody in the past, prior to this offending, he has previously not been sentenced to fulltime custody. Periods in custody have simply been between arrest and release, before being dealt with by the Court. 18. Although there was no weapon used on this occasion, in my view, the assault by the offender on JT and pushing him into the path of the motor vehicle, causing serious injury, is a significant matter. As to planning or premeditation, as I have previously referred to, it can be inferred that there was at least some intention, and that was the purpose of himself and his co offenders crossing the road to confront the two juveniles and the one 20 year old. What was taken actually appears to be only the ANZ bankcard of JT, apparently contained in his wallet. 19. The offender was some 23 years of age at the time of the offending. It has long been noted that, in particular, males do not necessarily reach maturity at the age of 18, but continue at least into their early twenties with a level of emotional immaturity and lack of impulse control. The offender had a relatively dysfunctional childhood. To the psychologist, and in his evidence, he expressed remorse and contrition for his conduct. 20. I accept that the offender was being genuine in those expressions. He claims to have been affected by alcohol and drugs on the occasion of this offending, but that is not an excuse or an explanation for the offending. Part of his broken childhood was that the then Department of Community Services became involved and all five siblings were removed from the family for a three month period and placed with foster carers in Parkes before then being split up between their father and their mother, as previously referred to. In his time on the missions he has regularly observed violence, and in his evidence he said that he thought that people being bashed was normal. His father now lives in Murrumbidgee and his mother in Albury; however his mother is now a user of prohibited drugs. 21. In his time as a sweeper in prison he was earning $34 per week, which he indicated in his evidence was something that made him feel good. It would, on his record, appear to be the only time that he has ever earned any income for anything, and I can understand in those circumstances why it made him feel good. The offences related to children, they were in company, although that is taking into account in relation to the demand with menaces, as it is an in company charge. 22. As to the question of parity, the significant feature in this matter is that it is only this offender who was charged with the aggravated robbery with grievous bodily harm, and not either of the co offenders. This is a significantly more serious offence, as is indicated by the fact that it attracts a maximum penalty of 25 years' imprisonment, rather than the 14 years' imprisonment that can be imposed in respect of demanding with menaces in company. 23. It is a serious concern frequently remarked upon by the Court of Criminal 24. Appeal in relation to robberies of people simply going about their daily life, in public streets, by offenders. All citizens should be entitled to expect that they can walk the streets without being assaulted and injured, certainly when the injured parties are children. There is in relation to offences of this nature a significant need for the penalty imposed to reflect both general deterrence, and in my view, specific deterrence. 25. I note that the offender while in the prison system is apparently doing well and has at least made some effort to better himself by participating in the program I referred to. I accept that there is a reasonable prospect of rehabilitation, particularly if he can cease using prohibited drugs. If he does not cease using prohibited drugs, it is highly likely that he will commit further offences, and find himself just another statistic in the revolving door of justice that sees people going in and out of gaol on a regular basis, because of their need to obtain money and/or drugs to feed their addiction. 26. I have taken all of those matters into account, as well as the concepts of accumulation and totality. I am of the view that there is no real parity question in relation to this offender, compared to the co offenders, who were sentenced for significantly lesser offences, and in relation to, in effect, different parties. There is also a difference in relation to which the co offenders were sentenced for individual offences with other offences on a Form 1. 27. Obviously, in respect of the Form 1 offence that is before me, that has to be taken into account in relation to the sentence imposed for the robbery with grievous bodily harm. 28. As to the s 96 offence, being the aggravated robbery with grievous bodily harm in respect of JT, the sentence is a term of imprisonment of four and a half years, and in specifying four and a half years I have also taken into account the offence on the Form 1 contrary to s 99(2). 29. Having found special circumstances arising from the fact that this is the offender's first time in custody, his relatively young age, and in my view, the need to ensure a more extended period of parole to assist him in reintegrating into the community, the non-parole period will be 2 years 6 months. The sentence will date from the date of his arrest on 4 August 2018 and the non parole period will expire on 3 February 2021. The sentence will expire on 3 February 2023.