R v Wiles; R v George [2020] NSWDC 689

District Court New South Wales

Medium Neutral Citation: R v Wiles; R v George [2020] NSWDC 689 Hearing dates: 20 July; 22 July; 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Offender WILES: aggregate term of imprisonment of 8 years with a non parole period of 4 years 9 months. Offender GEORGE: aggregate term of imprisonment of 7 years 6 months with a non parole period of 4 years 6 months. Catchwords: CRIME - SENTENCE - Use an offensive weapon with intent to commit an indictable offence - in company; robbery armed with a dangerous weapon; fire firearm in manner likely to injure persons; assault with intent to rob - armed with a dangerous weapon. Legislation Cited: Crimes Act 1900 (NSW), ss 33B(2), 97(2) and 93G(1)(c) Cases Cited: R v Achurch [2020] NSWDC 312; R v Henry (1999) 46 NSWLR 346; Bugmy v The Queen (2013) 249 CLR 571 Category: Sentence Parties: Regina (Crown)

Braddly Wiles (Offender)

Jackson George (Offender) Representation: Mr Carnell (ODPP Campbelltown)

Mr Townsend (Solicitor for Offender Wiles)

Ms Stares (Counsel for offender George) File Number(s): 2019/31248; 2019/31242 Publication restriction: Nil

Judgment 1. On 29 January 2019, Dean Achurch, Jackson George and Braddly Wiles were in a motor vehicle (the offenders' vehicle) travelling along St John's Road, Bradbury, in pursuit of another vehicle (the victims' vehicle). 2. Mr Achurch was the driver of the offenders' vehicle. 3. A firearm was in that vehicle. 4. The victims' vehicle was being driven by Mr Stanojevic. His passengers were Ms Rose and Ms Hite. 5. In general terms, the Crown's case against each of Mr Achurch, Mr George and Mr Wiles is that they were involved in a joint criminal enterprise in which the following criminal acts were carried out: 1. robbery armed with a dangerous weapon (the weapon being a firearm, namely, a shortened .22 single shot bolt action rifle); 2. firing that firearm in a manner likely to injure persons; 3. assault with intent to rob whilst armed with an offensive weapon (the offensive weapon being the firearm); and 1. using an offensive weapon (the offenders' vehicle) in company, with intent to commit an indictable offence, namely robbery. 1. Mr Achurch was sentenced on 19 June 2020 (cf R v Achurch [2020] NSWDC 312). He was sentenced to an aggregate term of imprisonment with a non parole period of 6 years. 2. As with Mr Achurch, each offender appearing today is to be sentenced for two principal offences; and in relation to each principal offence, a matter on a Form 1 is to be taken into account. 3. However, the three offenders are to be sentenced for different combinations of principal offences (with different maximum penalties) and matters on the relevant Form 1. 4. Mr Achurch was sentenced for two principal offences. First, robbery armed with a dangerous weapon – and, in respect of which, the matter on a relevant Form 1 was assault with intent to rob whilst armed with a dangerous weapon in company. This principal offence and that relevant Form 1 matter are common as well to Mr Wiles and Mr George. 5. The second principal offence for which Mr Achurch was sentenced was firing a firearm in a manner likely to injure. The maximum penalty for that offence is 10 years imprisonment. In relation to that offence, one matter on a relevant Form 1 was taken into account, namely, using an offensive weapon with intent to commit indictable offence (robbery) in company. 6. However, for both Mr Wiles and Mr George, those matters were "reversed": the second principal offence was using an offensive weapon with intent to commit indictable offence (robbery) in company. This principal offence has a maximum term of imprisonment of 15 years. The matter on the Form 1 was firing a firearm in a manner likely to injure. 7. Furthermore, statements of agreed facts were prepared for each offender which contain meaningful differences as between each offender (see MFI#1 prepared at the Court's direction during the sentence hearing involving Mr George and after the Court reserved its decision in relation to Mr Wiles. The legal advisors for Mr Wiles, however, were consulted and did not object to the Court treating MFI#1 as an aide memoire). 8. The difficulties confronting the Court have been compounded because each offender's sentencing hearing date was different – for reasons currently unnecessary to set out. However, the matters to which I have referred disclose the perils confronting a sentencing Judge when co-offenders are not sentenced on the same occasion: let alone for different offences and in relation to different facts. 9. Braddly Wiles, as I have already indicated in my preliminary comments, appears for sentence today in relation to two principal offences. 10. The first principal offence is using an offensive weapon with the intention of committing an indictable offence, namely, robbery in company. This involves a contravention of s33B(2) of the Crimes Act. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period. 11. In relation to this first principal offence, Mr Wiles has asked me to take into account one matter on Form 1 which I have certified, namely, firing a firearm in a manner likely to injure. 12. The second principal offence is robbery armed with a dangerous weapon. This involves a contravention of s97(2) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is no standard non-parole period. Although there is no standard non-parole period, there is a relevant guideline judgment, R v Henry. 13. In relation to this second principal offence, Mr Wiles has asked me to take into account a matter on another Form 1 which I have certified, namely, assault with intent to rob, whilst armed with a dangerous weapon. 14. Jackson George also appears for sentence today in relation to two principal offences. Those principal offences are the same as for Mr Wiles – and the same Form 1 matter is to be taken into account in relation to each principal offence. 15. I shall now set out the relevant facts upon which each of the present offenders is to be sentenced. 16. As I have already said, on 29 January 2019, at about 7:00pm, the offenders' vehicle was pursuing the victims' vehicle along St John's Road, Bradbury. 17. Unlike Mr Achurch, each of Mr Wiles and Mr George have, to a limited extent, explained why the offenders' vehicle was pursuing the victims' vehicle – a drug deal had "gone wrong" earlier in the evening. But no further details of what that involved are available to the Court, and I shall not speculate further about that aspect of the incident adversely to the interests of either of these two offenders. 18. At some point not clearly identified, Mr Achurch, Mr George and Mr Wiles all formed a spontaneous joint agreement to use the offenders' vehicle as an offensive weapon to make the victims' vehicle pull over so that the victims could be robbed at gunpoint. Accordingly, all three offenders are criminally responsible for the offences of using an offensive weapon with intent to commit an indictable offence in company, and robbery armed with a dangerous weapon. 19. Furthermore, both Mr George and Mr Wiles are criminally responsible for the offence of firing a firearm in a manner likely to injure persons as a result of the extended definition of joint criminal enterprise. 20. As the offenders' vehicle was pursuing the victims' vehicle, Mr Achurch drove it extremely close to that vehicle on numerous occasions. 21. As this was occurring, Ms Hite saw the front passenger of the offenders' vehicle hand the firearm to the passenger in the rear seat. As I have understood the submissions, it was Mr Wiles who was seated in the front seat and Mr George seated in the back seat. Consequently, and necessarily, it must have been Mr Wiles who handed the firearm to Mr George. 22. Mr Achurch drove the offenders' vehicle onto the oncoming traffic lane and overtook the victims' vehicle before pulling up in front of it, thereby blocking the victims' vehicle's entry to a roundabout. 23. Mr Achurch and Mr Wiles got out of the offenders' vehicle. 24. Mr George remained in the offenders' vehicle holding the firearm out of a back window. He pointed the firearm towards the bonnet of the victims' vehicle. 25. Ms Hite saw the firearm and panicked. She got on the floor of the victims' car trying to protect herself. Clearly, she was in fear. She told Mr Stanojevic to reverse their car and to drive away. This is what he did; however, in the process, that motor vehicle hit the gutter. 26. As this was happening, all three offenders got back into the offenders' vehicle. 27. Mr Stanojevic drove his car forward, around the offenders' vehicle across a traffic island, and proceeded through a roundabout on the incorrect side of the road towards oncoming traffic in a desperate attempt to get away from the offenders. 28. Ms Rose called 000 as the victims' vehicle was driving away. Ms Hite kept her head down in the back seat. 29. After a short time, the occupants of the victims' vehicle noticed the offenders' vehicle was following them again. 30. As the victims' vehicle approached another roundabout, Mr Achurch drove the offenders' vehicle around it on the incorrect side. Somehow the victims' vehicle spun around and came to a halt facing the opposite direction. It is not clear whether the two vehicles collided or whether the victims' vehicle came into collision with the roundabout itself – but the distinction is of no significance. 31. Eventually Mr Stanojevic drove the victims' vehicle away again. 32. Mr Stanojevic ultimately got onto Appin Road and started to drive towards Wollongong. The offenders' vehicle was still following them. 33. The victims' vehicle approached a set of lights which had turned orange. Mr Stanojevic proceeded through the intersection against the lights, swerving to avoid a truck that had started to enter the intersection. 34. About 50 meters past that intersection, the victims' vehicle broke down. Mr Stanojevic was able to pull over to the side of the road and that vehicle came to a halt. After a short time, the offenders' vehicle drove up and parked across the victims' vehicle - blocking it in. 35. As the offenders' vehicle came to a halt, Ms Rose could see Mr George holding the firearm. He remained in the offenders' vehicle. 36. Mr Achurch got out of the offenders' vehicle and approached the victims' vehicle. Ms Rose got out of her vehicle and confronted Mr Achurch who was screaming at her for money. 37. A highly charged exchange developed between Mr Achurch and Ms Rose. 38. Mr Achurch then reached into the victims' motor vehicle and grabbed Ms Hite's bag and wallet. He rummaged through that bag and then put her purse into a bag he was carrying. Around about this time, Mr Achurch saw a $50.00 note in Ms Hite's bag as he was rummaging through it. He grabbed the note and kept it. 39. Ms Hite was still in fear having earlier seen the firearm Mr George was holding. 40. There was then a verbal exchange between Mr Achurch, Ms Rose and Mr Stanojevic. 41. It was at this point in the narrative that the only matter of real difference between the two present offenders arises for observation. 42. In Mr Wiles' case, he is to be sentenced on the basis that, at this point, one of the offenders (but not Mr Achurch) asked another offender (again, not Mr Achurch) to be given the firearm as he (the person requesting the firearm) said in somewhat crude terms he was going to shoot Mr Stanojevic, and that one of the offenders (but not Mr Achurch) said to Mr Stanojevic, "What are you shaking for? Be a man". 43. As this was happening, Mr Achurch saw two bags on the floor of the front passenger seat of the victims' vehicle which he started to go through, throwing the contents everywhere in the car. He also searched the glove box. In his exasperation, he approached Ms Rose, pushed his hands into her chest to see if she had anything on her. 44. In Mr Wiles' case, it was at this point that Mr Achurch then issued a direction for the victims to be shot, and that one of the offenders (but not Mr Achurch) pointed the firearm towards Ms Rose through the back window of the offenders' vehicle. 45. In Mr Wiles' case, the firearm was then pointed towards Mr Stanojevic (who was seated in the driver's seat of the victims' vehicle) and the firearm was discharged - the bullet missing Mr Stanojevic by at least a meter, landing in the bonnet of the victims' vehicle. The unidentified shooter pointed the firearm at Mr Stanojevic again, but another round was not fired. 46. Mr George, on the other hand, is to be sentenced on the basis that it was Mr Wiles who approached him as he was seated in the car, and asked him (Mr George) to give Mr Wiles the gun because he was going to shoot Mr Stanojevic, and that, in fact, Mr Wiles did take the firearm from Mr George, and that Mr Wiles then said to Mr Stanojevic, "What are you shaking for? Be a man". 47. In other words, in Mr Wiles' case, there is no agreement as to whether it was he or Mr George who was the shooter. In Mr George's case, however, it is agreed between him and the Crown that the shooter was Mr Wiles. 48. Shortly after the discharge of the firearm, another motor vehicle arrived at the scene. It is not clear to me whether the occupant (or occupants) of that vehicle was (were) in any way involved with the victims. In any event, Ms Rose and Ms Hite asked the driver of this vehicle for assistance; and at about this time, all three offenders returned to the offenders' vehicle which then drove off. 49. Initially, Mr Achurch was again the driver, but at some point he got out of that vehicle and Mr Wiles took over that role as Mr Achurch walked off. 50. The vehicle then travelled to township of Appin, where Mr Wiles discarded the firearm. 51. All three offenders were arrested shortly thereafter. 52. Each of the principal offences in which you were both involved was a mid-range offence for an offence of its kind. Additionally, there will be a meaningful increase because of the relevant matter on the Form 1. 53. In Mr George's case, the matters are additionally aggravated because you were on conditional liberty. There is no additional aggravating factor so far as Mr Wiles is concerned. 54. In Mr George's case, there were early pleas of guilty and consequently there will be a discount of 25 per cent for those early pleas. 55. In Mr Wiles' case, there were not early pleas, and there is a mandatory statutory discount in each case of 10 per cent. 56. As I intend on imposing an aggregate sentence, these discounts will be applied to the indicative sentences underpinning the ultimate aggregate sentence. 57. Braddly Wiles, you did not give evidence in the sentencing hearing. 58. You are now 25 years of age. 59. You have a long-term history of illicit drug use since you were 17 years old, such that you now suffer from a severe substance use disorder which has continued whilst you have been in custody. 60. You have never attended any residential rehabilitation courses. 61. You had an unremarkable upbringing. 62. But since late adolescence you have displayed antisocial behaviour. 63. You have, however, had a reasonably good work record since leaving school after you were expelled at the end of Year 9. 64. You are in a supportive relationship and you have a young child with your partner. You also have a supportive mother – even if you have no "prosocial" friends. 65. You have expressed remorse to Dr Eagle, your wife and your mother. However, the Court of Criminal Appeal has indicated that sentencing Judges are entitled to look with scepticism at second-hand expressions of remorse, and that is how I regard yours. 66. You have a criminal history as a juvenile, but that cannot be used against you for sentencing purposes today. 67. However, you have one significant matter on your criminal history as an adult, with the result that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 68. You were sentenced in relation to that offence on 30 January 2019 when you received a fixed term of imprisonment of 3 months. 69. Ultimately, I have formed the opinion that your prospects of rehabilitation are reasonable. 70. They would be enhanced by a longer period on parole. Because of that factor, your age, and the COVID-19 conditions, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. It follows from what I have just said that I have concluded that no sentence other than a term of full-time imprisonment is appropriate. 71. In that regard, notwithstanding the matter for which you were sentenced on 30 January 2019 was not connected with the present offences, by reference to totality, the start date for the sentence will I shall impose today will date from 29 January 2019. 72. Jackson George, you did give evidence in the sentencing proceedings. 73. I have earlier noted that you were on bail at the time of the offending. However, I do note that that matter was ultimately dealt with by way of a fine. 74. You are 27 years old. 75. Your mother's affidavit reveals that you had a dysfunctional upbringing. Accordingly, and in accordance with the guidance given by the High Court in Bugmy v The Queen, your moral culpability for your offending is reduced. 76. You had a limited education and you are effectively illiterate. 77. Whilst you have a limited criminal background, this offending is not your first offence, and, therefore, you are also not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. 78. You have a troubled relationship with your partner with whom you have had a 3 year old daughter – for example, on the date of these offences, you had attended Court in relation to a domestic violence charge. 79. You left school at the end of Year 9. Your work history has been intermittent. 80. You have had long term issues of abuse of alcohol and illicit drugs. However, you have been off drugs since you have been in custody, and you are willing to engage in formal rehabilitation upon your release. 81. Furthermore, upon your release, you have a job waiting for you. 82. I accept as genuine your expressions of remorse. 83. Your prospects of rehabilitation are also reasonable; they would be enhanced by a longer period on parole. 84. For that reason, because this is your first time in custody, because of your age, and because of the COVID-19 considerations, I shall make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. 85. It follows from what I have just said that I have concluded that no sentence other than a period of full-time imprisonment is appropriate. 86. That sentence of imprisonment will date from 29 January 2019. 87. In relation to all three offenders, considerations of parity need to be considered. 88. One relevant consideration is the age of the relevant offender: Mr Achurch was 28 years old; Mr Wiles, 25 years old; and Mr George, 27 years old. 89. Another consideration is whether the relevant offender has prior offences and / or has served terms of imprisonment: Mr Achurch had a significant criminal history and had served terms of imprisonment; and both Mr Wiles and Mr George had limited criminal histories but had not previously served terms of imprisonment. 90. Another consideration is the role that each offender performed in the criminal conduct. Although each offender performed a different role, I accept the submissions made by the Crown that, notwithstanding that consideration, the overall involvement and level of criminality between each offender was relatively and relevantly indistinguishable. 91. Another consideration is the background of the offenders: both Mr Achurch and Mr George had dysfunctional upbringings; and Mr Wiles did not. 92. A final consideration is the significant difference in the maximum penalties for the second principal offences. 93. As I indicated earlier in these remarks, I intend imposing upon each of you an aggregate sentence, and it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. 94. Mr Wiles, in your case, for the offence of robbery armed with a dangerous weapon and taking into account the relevant matter on the Form 1, except for your plea of guilty, the indicative sentence would have been 7 years 6 months. But after the discount of 10 per cent, the indicative sentence is 6 years 9 months. 95. In relation to the offence of using an offensive weapon with intent to commit an indictable offence in company and taking into account the matter on the relevant Form 1, except for your plea of guilty, the indicative sentence would have been 8 years. However, after the discount of 10 per cent, the indicative sentence is 7 years 2 months. 96. Mr George, in your case, in relation to the principal offence of robbery armed with a dangerous weapon and taking into account the matter on the Form 1, except for your plea of guilty, the indicative sentence would have been 8 years. However, after the discount of 25 per cent, the indicative sentence is 6 years. 97. Insofar as the use of offensive weapon with intent to commit an indictable offence in company and taking into account the matter on the relevant Form1, except for your plea of guilty, the indicative sentence would have been 8 years. However, after the discount, the indicative sentence is also 6 years. 98. Braddly Wiles, for the two principal offences of which you have been convicted, I sentence you to an aggregate term of imprisonment of 8 years. I fix a non-parole period of 4 years 9 months to date from 29 January 2019 and which will expire on 28 October 2023. I fix a balance of 3 years 3 months to date from 29 October 2023 and which will expire on 28 January 2027. 99. Jackson George, for the two offences of which you have been convicted, I sentence you to an aggregate term of imprisonment of 7 years 6 months. I fix a non-parole period of 4 years 6 months to date from 29 January 2019 and which will expire on 28 July 2023. I fix a balance of 3 years to date form 29 July 2023 and which will expire on 28 July 2026.