District Court New South Wales Medium Neutral Citation: R v Andrew SWAN [2021] NSWDC 783 Hearing dates: 25 November 2021 Date of orders: 7 December 2021 Decision date: 07 December 2021 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: At [73]-[77] Catchwords: CRIME – Sentence – Stalk or intimidate – Armed robbery – Common assault – Bugmy principles – Henry guideline judgment Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Crown Andrew Swan (Offender) Representation: Ms J Todhunter (Crown) Mr J Sinclair (Offender) Solicitors: Solicitor for Public Prosecutions Aboriginal Legal Service File Number(s): 2021/0032292 Publication restriction: Nil Judgment 1. Andrew Swan appears for sentence with respect to three substantive offences which arose as a consequence of various interactions over several days between the offender and a number of other persons. 2. I will outline the detail of the individual offences in the course of describing the narrative facts. 3. On Saturday 30 January 2021, two people, Aaron Gordon (aka Aro) and Belinda Nixon, visited the home of Mr Gary Maybury in Moree. It would appear that Maybury had the use of a motor vehicle and Gordon and Nixon offered to pay him $10 for a lift to a house at Drummond St in Moree. Those premises were the home of the offender, Andrew Swan. Gordon told Maybury that he needed to get something from Swan. As will become clear, it would appear that various of the protagonists were likely to have had a prior relationship with various of the others, likely related to the supply of prohibited drugs. 4. Maybury agreed to drive Gordon and Ms Nixon to Swan's premises. His partner, Alison Haines, accompanied them in the car. 5. On arriving at the offender's premises in Drummond St, Swan came outside where he and Aaron Gordon commenced to argue. Gordon accused Swan of stealing his "stash". The argument continued for about 5 minutes. 6. Maybury then told his partner, Alison Haines, that they should leave. He then saw a pickaxe on the seat of the motor vehicle where Aaron Gordon had been sitting. Maybury started his motor vehicle and began to back out of the driveway at the offender's premises. As Maybury commenced to reverse, Aaron Gordon kept telling him "wait there, wait there." Maybury insisted on leaving. Aaron Gordon told the offender Swan to go inside and "get it". As Maybury went to reverse out of the driveway, Aaron Gordon took a bag from Swan and got back into the car. He produced a butcher's knife which he held to Maybury's ribs and told him to drive. At that point, Swan jumped in front of Maybury's car which had reversed out of the driveway and said, "Don't you fucking move." Aaron Gordon, in the car and holding a knife to Maybury, said "Drive or I will fucking stab you." Maybury pulled the keys out of the ignition of his vehicle and got out of the car. At that point Aaron Gordon got out of the vehicle and ran away. The Agreed Facts are silent as to what happened to Ms Nixon. After Gordon had left the scene, Maybury and his partner, Alison Haines, drove back to their home. 7. The court has no information as to whether any charge was preferred against Aaron Gordon arising from what had taken place. 8. About half an hour later on the Saturday evening, Maybury was at his home with Alison Haines. Another male by the name of Philip Sweeney was also present. He does not feature otherwise in the narrative. 9. Alison Haines heard a knock at the front door and she saw Andrew Swan standing at the door carrying a piece of steel. The shape and or length of what is simply referred to as a "piece of steel" in the Agreed Facts is not further described. 10. The front door of the premises was not locked and Swan opened the door and walked straight into the kitchen. He stood in front of Maybury and said, "I want money out of you or I'm going to jump all over your fucking head." Maybury told Swan, "Mate, you know I drove off without Aaron in the car. We have nothing to do with it. I have no money for you." Swan replied, "I want money or I'm going to cave your fucking head in." 11. Maybury purportedly agreed but escaped to the backyard where his dogs were kept. Swan, and what the Agreed Facts state were "the other unknown persons", then left the premises. 12. Whilst not of any particular relevance, that is the only reference to "other unknown persons" in the Agreed Facts in relation to this incident. 13. The act of intimidating Gary Maybury at his home is the first charge brought against Andrew Swan in these proceedings. It is an offence contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. It carries a maximum penalty of 5 years imprisonment and/or a fine. There is no standard non-parole period. 14. A short while later at around 6pm, Swan arrived at Belinda Nixon's home in Jones Avenue, Moree. Whilst not stated clearly it is to be inferred that Gordon also lived there at those premises or frequented them. He was heard yelling out for Ms Nixon and for "Aro" but they were not at the house at the time. Swan then left the area. Given the distance between Maybury's home and the premises where Nixon and Mr Gordon apparently resided, I would draw the inference that Swan, and whoever may have been with him, were traveling by motor vehicle. 15. The following day, Sunday 1 February 2021, Swan again went to Ms Nixon's premises in Jones Avenue where he was again seeking "Aro" i.e. Aaron Gordon. Belinda Nixon advised the offender that Aro was not at home. 16. The following night at about 10pm, Belinda Nixon was at her home when she heard someone knocking at the door. When she went to the door, she saw the offender, Andrew Swan, together with a man known as Edward Pitt (aka "Bladerunner" or "Eddy Machete") standing at the door. Pitt was carrying either a sword or an iron bar. Swan was holding a stick (referred to as a "boondie") and a screwdriver. Swan again asked where Aro was and Belinda Nixon said that he was not there. Swan demanded to come in and check but Ms Nixon refused to allow him in. The offender continued asking where Aro was and in due course Nixon said to Pitt, "Eddy you can come in but not you Andrew." Notwithstanding, both men then entered the house and started searching for Aaron Gordon. Belinda Nixon said, "Get the fuck out of my house." In due course, when Gordon could not be located, Swan approached Belinda Nixon and told her, "I should bust your mouth and jump all over you." Ms Nixon then told him to "fuck off" and the offender punched her in the mouth. 17. This assault has been charged as against Swan as common assault pursuant to s 61 of the Crimes Act 1900. It is the second substantive offence in these proceedings. It carries a maximum penalty of 2 years imprisonment. 18. After being punched, Belinda Nixon picked up a phone and commenced to call her family. Edward Pitt immediately left the premises while Swan remained for a short time and continued to ask where Gordon was. In due course, he also departed. 19. The following day in the night of 3 February 2021, Maybury received several telephone calls from a person referred to as "Boodles" whose actual name is Veronica Pitt. The Agreed Facts do not disclose what the connection, if any, is between Veronica Pitt and "Eddy Machete" or Edward Pitt. Veronica Pitt asked Maybury to come over to her house and to bring cigarettes. Maybury agreed and went to Pitt's house at approximately 2am in the early hours of 4 February 2021. When Maybury arrived at Ms Pitt's house, he went to the back door and knocked. He was let into the premises. 20. After entering the premises, Maybury saw Andrew Swan standing there holding a knife. Swan grabbed Maybury and flung him to the ground. He took hold of what is described as Maybury's bum bag which he was wearing slung across his body. Swan told him to let go of the bag and to stay on the ground. Swan then took the bum bag from Maybury. 21. The Agreed Facts then recite that "Pitt moved closer to the victim and told him to empty his pockets." It would appear that this is not a reference to Ms Veronica Pitt who had been described as walking into the living room to settle a crying baby from which she then emerges. The response by Maybury to being told by "Pitt" to empty his pockets, namely "Come on man, just let me go. It's my birthday" gives rise to what appears to be the intended inference that Mr Edward Pitt was also present with Andrew Swan in the robbery of Mr Maybury. Edward Pitt told Maybury that he had 5 seconds to leave whereupon Maybury got up off the ground and ran out of the house. 22. The facts then recite that Ms Pitt observed Andrew Swan walking away from her house carrying the bum bag which had been taken from Maybury. As she opened her back door, she saw Maybury in his vehicle reversing out of the driveway whilst yelling to Swan, "Just give me my bag." Veronica Pitt asked what was going on and Maybury drove away from the premises. 23. A short while later, Veronica Pitt found Maybury's mobile phone on the ground in her backyard. She is described as looking up and seeing Edward Pitt standing in the vacant lot next to her house. Maybury in due course contacted police. He advised police that his bum bag had contained his mobile phone, a sum of money, and various personal identification cards, as well as a quantity of tobacco. 24. The Agreed Facts indicate that the plea of guilty has been entered on the agreed basis that Swan in fact stole prohibited drugs which belonged to Maybury which were in the bum bag. 25. Later in the morning of 4 February, Veronica Pitt went to her uncle's house. Andrew Swan was there and boasted that he had "got Maybury." When Veronica Pitt reprimanded him for doing it at her house, the offender responded, "It had to be done." Andrew Swan and Veronica Pitt then returned to Ms Pitt's house in Florence St, Moree. 26. Later the same morning, at about 7:20am, police attended Veronica Pitt's home where they arrested the offender, Andrew Swan. 27. The mobile phone was seized and forensic testing subsequently disclosed Edward Pitt's fingerprints on the screen. 28. Andrew Swan has been charged with the offence of robbery whilst armed with an offensive weapon being an offence contrary to s 97(1) of the Crimes Act 1900. Such an offence carries a maximum penalty of 20 years imprisonment. 29. I should note in passing that Edward Pitt has been charged with respect to offences relating to his attendance at Belinda Nixon's premises and also with the robbery of the bum bag from Gary Maybury at Veronica Pitt's home. The proceedings against him are listed for trial in Moree in the April 2022 sittings. 30. I turn to a consideration of subjective features relating to Andrew Swan. Andrew Swan gave evidence in the sentence proceedings. He described growing up in Moree with his parents and having moved around quite a bit. At various stages he had been in Queensland. In Moree, he grew up in the Aboriginal mission described as Top Camp. It is also known as Stanley Village. The family had lived in the mission from when he was about 5 years of age. He had lived there for most of his life. 31. He described seeing violence on a regular basis both in the community itself and at his home. He described a lot of alcohol being consumed on a daily basis. He described his mother and father as also drinking heavily. He described having witnessed domestic violence between his parents and remembered a specific circumstance where his father was hitting his mother over the head with a glass bottle. He thought he was 5 or 6 years of age at the time. He described having been a victim of assaults by his father who he said would punch him and kick him. 32. He commenced using cannabis at the age of 11 and graduated to ice by the time he was 13. He first used ice as a consequence of seeing his father using methamphetamine. He said that he would get it from his cousins. By 17, he had started to use heroin. 33. Swan gave evidence that he was not using drugs whilst in custody. He said that he had been clean of drugs for 10 months and that he was now on the buprenorphine depo program. He agreed he had been on the bupe program previously but that he had still ended up in gaol. He described an understanding of what was required to remain on that program when he is released from custody. 34. His parents, who have always apparently been supportive of him, separated at some stage last year. While his father has remained in Moree, he intends on his release to move to Inverell to live with his mother. 35. She, apparently, is currently suffering from COVID after acquiring that virus although he has spoken to her recently on the phone. 36. The offender described the particular difficulties currently being experienced in the correctional institutions as a consequence of the COVID-19 pandemic. 37. He said that he felt bad about the offences which he had committed and he apologised to Maybury who he said was his mate and had been a friend of his. He proffered an explanation for what had occurred saying that "Maybury was a narc." 38. In addition to the oral testimony from the offender, a psychological report and assessment from Mr Tim Watson-Munro was also tendered in support of the offender's case. Mr Watson-Munro described the offender as cooperative though distressed. The psychologist noted a complex clinical and developmental history which had been characterised by significant substance abuse referable to crystal methamphetamine (ice) and heroin which Mr Watson-Munro thought had clearly impacted upon the offender's capacity to effectively negotiate his life. 39. However, he noted the positive aspect that the offender had detoxified whilst on remand over the previous 10 months. That circumstance was corroborated and reflected in the fact that Swan had weighed approximately 87 kilograms when he first went into reception at the jail and being absent drug use, had subsequently increased approximately 19kg in weight. The offender also expressed the positive desire to obtain a driver's license in the future and to be able to secure work and support his family. He described the benefits of the buprenorphine depot program. 40. The factual background of the offender's upbringing added some additional features which were not led in the offender's evidence. He is the fourth eldest of seven children in his family. His educational history was described by Mr Watson-Munro as dislocated. Swan had attended six primary schools and four different secondary high schools. He had ultimately left school at 15 years of age. He had suffered learning difficulties at school and had been placed in special classes. 41. His employment history since leaving school had been virtually non-existent. This was a function of his substance abuse, untreated psychological problems, and also his regular incarceration over the previous 11 years. 42. Although not married, the offender had been in a long term relationship with a 26 year-old woman since their teenage years. They have a 5 year-old son although the offender has had no contact with the child for some time. 43. The psychologist noted that the offender recognised his need for professional assistance and thought that Swan appeared to be highly motivated in this regard. The description recorded by the psychologist is indicative of the offender having a level of insight into his offending and the clear place that the abuse of drugs and alcohol has impacted on his consequential thinking. 44. Psychometric testing confirmed that the offender was suffering from a severe and recurring depressive disorder according to the criteria under DSM-V. Mr Watson-Munro thought that the offender would benefit from Dialectical Behaviour Therapy (DBT) which has been demonstrated to be effective in dealing with substance and mood disorders. 45. The offender's criminal history, both in NSW and in Queensland, is illustrative of his past repeated infractions of the criminal law. He was regularly before the Children's Court from about the age of 15 on a variety of offences including larceny, break and enters, shoplifting, and entering buildings or land with intent to commit an offence or without reasonable excuse. He was variously dealt with by probation or the imposition of control orders as he got older. 46. Shortly after turning 18, he was convicted of an offence of robbery in company for which he was sentenced to 2 years imprisonment with 12 months non-parole. He was arrested and went into custody for that matter roughly one month after he had turned 18 years of age. When sentenced in Tamworth District Court in September 2011, the Court also dealt with the offender for his breach of a conditional release following a control order which had been imposed in the Children's Court with respect to an earlier break and enter. The District Court partially accumulated the orders, the combined effect of which was that the offender was not released to parole until he was almost 19 years and 3 months of age. 47. In September 2012, he was fined and convicted for driving whilst unlicensed and for having a mid-range PCA in Newcastle. 48. On 30 October 2012, he was fined and disqualified from driving as a consequence at Newcastle Local Court. He received a section 10A conviction without further penalty for the driving whilst never licensed which was his second such offence, having been convicted of the same offence as a child. It would appear that his parole was subsequently revoked, presumably on the basis of that conviction, and he went back into custody from Moree Court on 7 November 2012, about a week after the conviction was recorded in Newcastle. He then served the balance of parole until his release in May 2013. 49. In February the following year, 2014, he was charged with common assault for which he was fined and placed on a section 9 bond in April 2014 at Inverell Court. It would appear that he was arrested on outstanding warrants from Queensland in April 2014 and extradited to Queensland to face a number of charges including outstanding matters from when he had been a child in 2007 at the age of 14 as well as indictable matters of breaking and entering, assault, and attempted robbery which had occurred earlier in 2014. He was ultimately dealt with in the Ipswich District Court in July 2015 having been in custody in Queensland since his extradition in April 2014. He was sentenced to the equivalent of an aggregate sentence of 5 years with a minimum term to be served of 18 months. He was eligible for parole on Christmas Eve 2015. 50. In November 2016, he was fined in Southport Magistrates Court for an offence of committing a public nuisance although no conviction was recorded. 51. Notwithstanding his apparent lack of employment, there do not appear to be any recorded offences either in Queensland or NSW thereafter until August 2019 when he was arrested and charged with a number of domestic violence offences including stalk or intimidate, common assault, and destroying or damaging property. He was sentenced to concurrent sentences with an effective 12 month head sentence and 7 months non-parole. He was thereafter released to parole in March 2020. 52. In July 2020, he was charged with breaching the Apprehended Violence Order that was in place as a consequence of the earlier offending and he was imprisoned for one month. 53. In November 2020, he was yet again charged with a contravention of the Domestic Apprehended Violence Order that was in place. There is no evidence before the court as to the circumstances of that breach although I note that he was charged at Inverell Police Station. The matter came before Moree Local Court on the same day when he was fined $400 and placed on a Community Correction Order for a period of 12 months. He was required to report to Community Corrections at Lismore who it was proposed would supervise him. I can but presume that he was living near or at that location at the time. 54. It is against that extensive background that the present offending occurred at the end of January and beginning of February this year. 55. SUBMISSIONS 56. Detailed written submissions were received on behalf of the offender and also from the Crown. On the question of objective seriousness, the Crown agrees that the offence of intimidation committed towards Mr Maybury falls below the mid-range of objective seriousness. The specific offence was aggravated by the possession of a piece of steel (notwithstanding the lack of any description) and also by the fact that the offence occurred at Mr Maybury's home. However, the threats were short and limited in duration and were not accompanied by any brandishing of the steel or associated gesticulation. I agree that it falls below the mid-range. 57. The common assault on Belinda Nixon involved an actual battery. While it was a single strike, it was a punch by a man to the mouth of a female victim. Mr Sinclair from the Aboriginal Legal Service puts forward in his helpful written submissions that the assault was an impulsive attack after the victim had told the offender to "fuck off". 58. The offence had occurred inside Ms Nixon's home after the offender had gone in despite being told he should not enter. The objective seriousness is correctly assessed by both parties as falling at about the mid-range of objective seriousness. 59. The robbery offence requires consideration of the guideline judgment in R v Henry (1999) 46 NSWLR 346 ("Henry"). Without itemising the list of features listed in Henry, it is appropriate to observe that the offender in the present matter, although comparatively young at 27 years of age at the time, had a not insubstantial criminal history including matters of violence or potential violence. He was holding a knife but the parties are agreed that he did not wield, brandish or wave it around in the course of the confrontation. There was limited planning of this offence other than that which was implicit in it being carried out. 60. The defence have suggested that the use of force was slight. I agree with the Crown's submission that there was in fact limited actual violence whereby the victim was physically thrown to the ground. 61. The nature of the relationship was different from Henry which dealt with victims in vulnerable positions such as shopkeepers or taxi drivers. The Crown agrees that the nature of the past relationship between the offender and the victim, and the nature of that relationship clearly relating to prohibited drugs, takes the case well outside the typical case related to Henry which had been contemplated in the guideline judgment. 62. The Crown's ultimate submission, in agreement with the submissions for the offender, is that the present matter falls towards the lower end of seriousness for offences of this type. I agree. 63. The fact that the agreed robbery related to an unknown quantity of drugs, which the Crown concedes must be presumed to have been a small quantity, does not remove the rule of law from relevant application to persons involved in criminal activity. I do not see the necessity to make reference to expressions of principle in this regard other than noting that the law consistently stands steadfast against permitting members of the community to effectively take the law into their own hands. The present matter remains as a robbery whilst armed irrespective of the activities which gave rise to it. 64. Those principles are important when one considers an overview and impression of what unfolded over the several days of these offences. Put succinctly, it would appear that Mr Gordon and Ms Nixon secured the assistance of Mr Maybury to go to the offender's premises with the intention of recovering Gordon's "stash" which one infers is a reference to a quantity of a prohibited drug which Gordon, rightly or wrongly, presumed that the offender had taken. In circumstances which are not spelt out in the facts, it would appear that the offender Swan handed over a bag. Whether it contained money or drugs or both or neither is unknown. The volatile nature of the various relationships then led to Gordon threatening Maybury with a knife before running away with Mr Swan's bag and whatever its contents may have been. The offender, Swan, thereafter went to Maybury's premises, Maybury having been the person who had driven Gordon to Swan's home. I draw the inference that he was either looking for Gordon and/or seeking retribution against Maybury. In that context, the intimidation occurred which did not result in actual violence. 65. Thereafter, the search for Gordon, in due course, led to the intrusion into the home which he apparently shared with Ms Nixon and in the circumstances I have previously detailed, he assaulted Ms Nixon. 66. Subsequently, and apparently unable to find Gordon, what seems to have been a set up in attracting Maybury to Veronica Pitt's home at 2 in the morning, led to the taking of his bum bag as described with what appears to have been agreed was a quantity of drugs. It is highly unlikely that Maybury had gone to Pitt's home simply to supply cigarettes at 2 in the morning. However, for the reasons I have outlined, Maybury was still entitled to the protection of the law in not being the victim of an armed robbery. 67. The offender's criminal history does not act as a matter of aggravation but reduces any allowance for leniency to which he might otherwise have been entitled. Both parties are agreed that the fact that the offender had been placed on a Community Corrections Order and was in breach of that conditional liberty operates as an aggravating factor. 68. The moral culpability of the offender is reduced somewhat in line with the principles in Bugmy v The Queen (2013) 249 CLR 571 ("Bugmy") which goes some way to explaining the offender's recourse to violence of different degrees as almost a first port of call in dealing with problems. The Crown similarly accepts that the offender's early introduction to drug use and his later addiction, as well as having a role to play in the consideration of Bugmy and Fernando principles, independently may mitigate his moral culpability to some degree. 69. The offender has previously had the benefit of courts recognising various of these mitigating factors. He has received the benefit of findings of special circumstances in earlier proceedings and supervision and programs have been endeavoured to be put in place to help facilitate his rehabilitation. The absence of a sentencing assessment report is noted and regretted. 70. However, notwithstanding those submissions by Ms Todhunter on behalf of the Director, the Crown concedes that a finding of special circumstances is appropriate in all of the present circumstances including the relative young age of the offender and his continuing need for an extended time under supervision. The continuing COVID-19 restrictions in custody and associated hardship also warrants such a finding. 71. I note that he pleaded guilty at the earliest opportunity and is accordingly entitled to a 25% discount for the utilitarian value of his plea. 72. I should note a final submission made on behalf of the offender with regard to his mental capacity. The DSM-V diagnosis of a depressive disorder which was severe and recurring was relied upon in support of a submission that such a condition was relevant to moral culpability and as such contributed to the effect of a diminution in the appropriateness of the offender as a vehicle for general deterrence or denunciation. 73. The Crown took issue with this submission on the basis that the particular circumstances of the connected offending over a period of days would not justify such a finding. In my view, it is a question of degree. Whilst it is true that the offending and associated attempts to locate Mr Gordon and to some extent what might be perceived as retribution or even a degree of restitution between drug users in relation to the robbery of Mr Maybury are a series of connected actions, in my view they are properly to be received as reactive to the initial confrontation which took place at Swan's residence. Whilst not a matter of mathematical precision, the offender's mental state, also undoubtedly fuelled by the ongoing drug addiction, plays some part in a consideration of moral culpability and, accordingly, in the instinctive synthesis which is required. 74. I propose to proceed by way of an aggregate sentence. I am therefore required to set out the indicative sentences that I would have imposed for the separate offences. The indicative sentences reflect the requisite discount of 25%. 75. For the section 13(1) offence (stalk/intimidate), 6 months. 76. For the section 61 offence (common assault), 12 months. 77. For the section 97(1) offence (robbery whilst armed), 2 years 9 months. 78. The aggregate sentence will be a term of imprisonment of 3 years 3 months. I find special circumstances and sentence him to a non-parole period of 1 year 8 months. The sentence will be backdated to commence on 4 February 2021. The non-parole period will accordingly expire on 3 October 2022. The balance of term will expire on 3 May 2024 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022