R v Thornton [2024] NSWDC 556

District Court New South Wales

Medium Neutral Citation: R v Thornton [2024] NSWDC 556 Hearing dates: 26 July 2024 Date of orders: 27 September 2024 Decision date: 27 September 2024 Jurisdiction: Criminal Before: D Barrow SC DCJ Decision: See [58]-[59] Catchwords: Armed robbery with wounding - s 98 of the Crimes Act 1900 – two offenders – joint criminal enterprise – offenders armed with replica firearm and machete - extensive criminal history – institutionalisation Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: R v Henry [1999] 46 NSWLR 346 Category: Sentence Parties: The Crown The offender (Mr Thornton) Representation: For the Crown: Ms S Hatch, Solicitor

For the offender: Mr Conwell of Counsel File Number(s): 2022/00199592

JUDGMENT 1. Todd Thornton appears for sentence today, having pleaded guilty on 13 May 2024 to a charge of armed robbery with wounding, an offence contrary to s 98 of the Crimes Act 1900. The maximum penalty is 25 years imprisonment. A standard non-parole period of 7 years applies. Both of those features are relevant as guideposts, nominated by Parliament, that reflect the seriousness of the offending and are to be taken into account when determining an appropriate sentence. 2. The victim in the armed robbery with wounding matter, was a young man named NA, who was 18 years of age at the time of the offence. The offence was committed on 1 July 2022. Mr Thornton has asked the Court to take into account two further matters. One being another offence, contrary to s 98 of the Crimes Act 1900, committed at the same time against another young man, JL, and a further offence of stealing from a dwelling, which involved the theft of jewellery and $3,500. 3. The maximum penalty for the related s 98 offence is the same as the matter before sentence. The steal from dwelling carries the maximum penalty of 7 years imprisonment. 4. As the plea was entered on the first day of trial, the parties are in agreement that by way of s 25D(3)(c) of the Crimes (Sentencing Procedure) Act 1999 the appropriate discount for the utilitarian value of that plea is 5%. 5. There was a sentence hearing on 26 July 2024. Agreed facts were tendered, and because they are not very lengthy, I will read them onto the record. They read as follows: "At the time of the offences, Mr Thornton was 25 years of age. He committed the offences with Mr Pritchard who was 28, so a little older. The victims, NA, aged 18; JL aged 31; and JA, aged 54. JA is the father of NA. The victims lived together with NA's brother, LA, in a three-bedroom home in Bennelong Place, Kincumber. The offenders were not known to the victims. On 1 July 2022, NA had finished work and was walking home. As he neared home, he observed a car driving erratically past him at speed which turned into his street, and he ran towards his house. JL was present at the time, in the house, in his bedroom. There was a knock on his bedroom door, he opened it and was confronted by Mr Thornton, who was holding a firearm in one hand. He pointed it at JL's head and told him to come out of the room. JL came out to the living room, and he saw Mr Pritchard holding a machete with a wooden handle, and a spatula shaped blade, approximately one foot long. NA arrived home, walked into the house and then observed the two males who had got out of the car to be in the loungeroom with JL, and he observed the pistol shaped firearm and the machete. The victims were moved into the loungeroom. Mr Thornton repeated frantically "Where's your dad's money?" and "We're not leaving until you give us the money. We'll blow your brains out." NA repeatedly told both men he didn't know where any money was stored. JL responded "I only live here. I don't know." Both victims handed over their mobile phones on demand. Mr Thornton ransacked JA's bedroom, the father; and was yelling "Where's the fucking money?" At one stage, JL picked up a small knife that was on the coffee table on his left-hand side. Seeing him do this, Mr Pritchard struck him on his right arm in the elbow area, causing him immediate pain and to drop the knife. He was later treated at Gosford Hospital, received three stitches to a 1.5-centimetre vertical laceration, located above and laterally to the Olecranon, approximately 1 centimetre in depth, and into the subcutaneous layer caused by the blow he received from the machete. At another point, Mr Pritchard tried to pull NA's bag from his shoulder. NA told him there was nothing in the bag. Mr Pritchard then struck NA with the machete on his right leg, on the calf, causing a wound that began to bleed. NA emptied the bag, showed Pritchard there was nothing of interest in it. Sometime later, Mr Pritchard struck NA again, with the machete on the left shoulder, causing him immediate pain. This was consistent with him being struck with the blunt side of the machete. NA was later admitted to Gosford Hospital for surgery, involving layered closure of a deep laceration, being a 3-centimetre gaping laceration to the medial calf. Mr Thornton left the bedroom, put the gun to NA's head, and said 'Where's the money? I'll blow your fucking brains out.' NA was crying and yelling that he didn't know. Mr Thornton asked him 'When is your dad back?' One of the offenders was heard to say 'Let's shoot them both anyway.'" 1. I stop there to note that the facts were referred to and as I understand it, it is not in dispute that this was a replica firearm, but the victims were not aware of that obviously. Returning to the agreed facts: "As a means of getting the offenders out of the house, NA told them that the money was in the backyard. As they moved towards the back door, NA ran towards the front door and onto the street, screaming 'Someone help. Call the police.' Pritchard initially gave chase to to NA, providing the opportunity for JL to open the back sliding door and escape over the fence, into the neighbour's property. NA telephoned his father from the neighbour's house to report what had happened. JA returned home soon afterwards. JL appeared at the house about 15 minutes later, and a call was made to triple-0. Items that were stolen included a $3,500 cash in $100 notes, collected by JA, some cannabis plants, the weight estimated to be 6-9 ounces; various items of jewellery, possessions that had come from NA's deceased spouse, including a South African gold diamond ring, some opal stud earrings, two gold rings, a gold locket, several other items of lesser value; and lastly, NA and JL's mobile phones. After the offences, both offenders travelled in a silver Toyota to a home in Umina Beach. Mr Pritchard was reported by the occupant of the house to be manic, and that he said 'I just peppered these cunts' and 'I'm two xannies down.' The offenders transferred items used in the robbery and the proceeds of the robbery, into the house, including clothing, the weapons used and marijuana that was stolen. At around 1.30 pm, police were searching for another person of interest unrelated to this matter in a nearby street. That person of interest fled into Harold Street with the police in pursuit. Seeing the police, Mr Pritchard attempted to run from the house. He was apprehended and told the police who he was. Mr Thornton travelled away from the house in another vehicle, driven by a young woman. Police observed this and attempted to stop the car. An officer drew a firearm in order to do so, but the vehicle drove away. On 2 July 2022, police came to that home, located the items of relevance to the robbery from the day before and declared the house a crime scene. A search warrant was executed on 2 July 2022 and police seized the firearm, two machetes, the cannabis and clothing worn during the incident by the offenders. On 8 July, Mr Thornton was arrested for these matters, but declined to participate in a record of interview. Mr Pritchard was arrested on 22 July 2022." 1. Turning to the objective seriousness of the first offence on the indictment, the home invasion. This offence was aggravated because it was committed in company. It took place in broad daylight, and the obvious purpose was to obtain money and items of value for the satisfaction of the offender's need for prohibited drugs. 2. Both the victims were entirely innocent. The first victim, NA, was only 18. The offenders carried with them fearsome items: the replica firearm, and the machete. They accessed a car for the purpose of the offending. They made a death threat to NA, and this offender held the replica firearm to his head. Injuries were sustained by NA, inflicted by Pritchard, the co-offender. 3. The most significant injury was to NA's leg. It required surgery. There were also in the agreed facts, terrifying statements such as "Let's shoot them both anyway." The offending was obviously a terrifying experience for both victims, and Mr Thornton, because this was a joint criminal enterprise, is responsible for the injuries sustained by NA. 4. The Crown made the submission that even after the injuries were inflicted, nobody, including Mr Thornton, provided any assistance to the victim. The offending only ended when both victims, NA and JL, escaped. The offending was obviously motivated by money to satisfy a drug addiction. 5. There was limited planning. Weapons were obtained, the house was targeted, and a car was utilised. Neither offender was disguised. 6. The matter is also aggravated because it occurred in the victim's home. In terms of its seriousness, it is at least in the midrange of objective seriousness. 7. I apply the guideline judgment set out in R v Henry [1999] 46 NSWLR 346, and taking from the Crown's submissions, the observations of the then Spiegelman CJ: "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment." 1. In Henry the Court of Criminal Appeal said that an offender convicted of armed robbery should receive a full-time custodial sentence other than in exceptional circumstances. Both parties in the sentence hearing made reference to the various factors that the guideline judgment refers to and the first thing to observe is that this is a more serious offence than the guideline judgment dealt with. It is more serious because the offence, being armed robbery with wounding, carries a greater maximum penalty. 2. Turning to the various factors that the Court identified in the guideline. The first is whether the offender is young with no/limited history. In this case, Mr Thornton is 32 years of age, with an extensive criminal history, although he does not have a history for an offence comparable to this one. His personal circumstances are not comparable to the typical type of case referred to by the Court of Criminal Appeal. 3. The second matter that the Court of Criminal Appeal identified was the use of a weapon like a knife, capable of killing or inflicting serious injury. It cannot be said that the replica pistol had those qualities, although it did have the capacity to instil terror. Mr Pritchard's machete certainly fits that description, and Mr Thornton's liability arises because of the joint criminal enterprise. 4. The next criteria the Court of Criminal Appeal regarded as relevant was the extent of planning. The cases relevant to the guideline judgment involved limited planning. Here, there was planning, but it was not sophisticated in any way. It was poorly planned, given that the target they were seeking to locate was not even home. He was at work. 5. The guideline judgment also contemplated the extent of violence, focusing on cases where there was limited, if any, violence, but the real threat of it. Here there was very significant violence, both physical and also threatened, including death threats. 6. The next criteria the Court of Criminal Appeal looked at was, in a typical case, a vulnerable victim. Examples were a shopkeeper or a taxi driver. That factor does not arise in this case. 7. The next factor was whether a small amount was taken. That is not so here. Whilst the amount is not enormous, it was significant, particularly given the amount of money, the nature of the jewellery and its sentimental quality. 8. The last criteria that the Court of Criminal Appeal referred to was where there was a plea of guilty, limited by a strong Crown case. Here, there is a plea of guilty. That type of limitation is no longer how these matters are approached, but relevantly, the plea of guilty was entered at the late point in time. 9. Considering the guideline there are factors here that make this offending more serious than what the Court of Criminal Appeal was considering. 10. Here, the matter is more serious because of the weapons involved, the intensity of the threats, the actual violence, it was committed by two people not one, the amount stolen was greater than the Court of Criminal Appeal's typical case and it occurred in the victim's home. 11. All of these factors apply in relation to the matter on the Form 1 as well. In terms of the Form 1 matter, the s 98 offence is very similar. The Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act 1999, is to the effect that matters on the Form 1 do not give rise to a separate sentence, however, they are relevant to the assessment of the appropriate sentence on the substantive matter, because they allow for increased weight to be given to the sentencing objectives of personal deterrence and retribution. 12. Here, the s 98 matter on the Form 1 is very relevant given the seriousness of it. Although, it is part of a course of conduct. The other offence, the steal from dwelling offence, is less significant given how closely related it is to the other offending. The matters on the Form 1 do not make the objective seriousness of the primary offence greater, but they do allow for increased weight to be given to personal deterrence and retribution. 13. The offending, in the case of Mr Thornton, is aggravated because he was on parole at the time. This feature does not increase the objective quality of the offence for sentence but it is relevant to sentence generally. He was on parole for a series of dishonesty offences. The agreed facts from those matters and the transcript of the Local Court sentence hearing on 14 April 2022 were tendered. The offences did not have a violent quality. 14. They were: using a credit card dishonestly to obtain petrol, a charge of possession of a prohibited drug, a charge of goods in custody, a charge of possession of a prohibited pistol in breach of a firearms prohibition order, and two counts of driving whilst disqualified. In relation to these matters, on 14 April 2022, Mr Thornton was sentenced in the Local Court to a term of two years imprisonment backdated to 7 April 2021, because he had been in custody, bail refused. The non-parole period was 12 months. 15. He was released at the end of the non-parole period, so this further matter that is for sentence, was committed about three months after his release. It was committed on parole, and that is a circumstance of aggravation. 16. The Court received two parole reports that tracked his brief period in the community. The earlier report of 16 May 2022 was prepared at a time where he had been charged with some other offences. They did not get dealt with by way of custodial penalties, although they were disturbing in the context of this case. The charges were for possession of ammunition, acquiring ammunition, and possession of a prohibited drug. 17. At that point, the author of the parole report did not recommend revocation of Mr Thornton's parole. It was noted that Mr Thornton had contacted his supervising officer and disclosed the new offences, and had indicated he was prepared to engage in intervention. 18. The second report, dated 8 July 2022, some days after the commission of this offence, recommended parole be revoked. He had only been released in April 2022. 19. The Court received a copy of Mr Thornton's criminal record. It is lengthy, but there is nothing in it that is comparable to this matter. It begins when he was a very young man in 2011 when he was placed on a suspended sentence for various offences, including affray and assaulting the police. In 2012, he was dealt with for another offence of affray, stealing, property damage and possession of drugs. He was sentenced to 12 months with a six-month non-parole period. In 2013, he committed an assault occasioning actual bodily harm offence and was gaoled for nine months. In 2014, he was charged with two offences of bringing drugs into a detention centre; he was fined. In 2015, he was charged with common assault and breaching an AVO. He was sentenced to a term of 14 months imprisonment with a six month non-parole period. 20. More offending of a similar nature occurred in 2017, including traffic matters and a police pursuit. The offender was subject to another term of imprisonment. In 2019 he served another short term of imprisonment. In 2021, he received an aggregate term of 14 months imprisonment with a non-parole period of eight months for affray, dishonesty offence and a driving offence. In 2021, he was also charged with the matters I have referred to and received a two-year sentence with a non-parole period of 12 months. 21. His record disentitles him to leniency. It is a long record. It is almost exclusively summary matters - drug possession, driving offences, dishonesty. Those matters of violence that I have referred to were all dealt with, at first instance, in the Local Court. As I say, there is nothing comparable on his record to these matters. 22. His record does mean that specific deterrence is a significant factor on sentence. The Court also received his custodial history, and what is notable and sad, is that since he was 18, he has spent about 8 years out of 14 years in custody with limited periods of time in the community in between. On my reading of the record, he has served a term of imprisonment every year since 2011. Gaol is not rehabilitative, and it is hard to avoid the conclusion that he is institutionalised. 23. The Court received a report from Kate Nelson, a psychologist, dated 16 July 2024. She assessed the offender by AVL. She had a copy of the agreed facts and his criminal history. I need to treat the contents of the report where Mr Thornton has made reports of factual matters relevant to his life with some caution because he did not give evidence. 24. However, his brother Tyrone Thornton did give evidence and he confirmed many of the matters raised in the report, regarding the offender's childhood and background. Their parents separated when he was only 8 or 9. Their father died by suicide in 2003 when the offender was only 10. It is clear, from the history that was provided by Mr Thornton to Ms Nelson and also from the evidence of his brother, Tyrone, that he experienced substantial disadvantage as a child. 25. Both his parents had substance abuse problems. They experienced the death of a baby. There was domestic violence at home. His father was an alcoholic. There was limited money available and the family lived in poverty. Mr Thornton told Ms Nelson that his father favoured the other children, possibly because he was so close to his mother. 26. He told Ms Nelson that life in Mt Druitt was enjoyable when he was very young, but otherwise he was ostracised because of the family's poverty and there were plenty of changes of school. His mother died two years ago when he was in custody. He has an ongoing relationship with his stepfather, and his brother, Tyrone, remains staunchly supportive. His evidence was that he will be there for his brother when he is released, and will support him if he turns his back on drug abuse and criminal conduct. 27. Ms Nelson's report detailed that by 16 Mr Thornton was binge drinking and using drugs. In his adult life, he has had very limited opportunities for employment. He foreswore drinking alcohol a long time ago because of the impact it has had on earlier relationships, but he has had ongoing problems with other drugs right up until his arrest, including the use of methylamphetamine or ice. He said the drugs made him feel angry and made him violent, as is so often the case. 28. At the time of these offences he was also dependent on heroin. Mr Thornton told Ms Nelson that he had finally reached the point where he wanted to make a serious effort to address these substance abuse problems. He recognised that these difficulties have robbed him of many important parts of life, including being with his mother when she passed away, his brother's wedding and the birth of his nephew. One step that he has taken towards this is that he is now on the buprenorphine program in prison. 29. It is clear enough that these offences were committed because of the offender's drug addiction. Section 21(5AA) of the Crimes (Sentencing Procedure) Act 1999, states that self-induced intoxication is not mitigating on sentence. However, Mr Thornton's addiction supports the conclusion that the offending lacked much planning. There was an impulsive, reckless element to what occurred. 30. Mr Thornton disclosed to Ms Nelson that he had been sexually assaulted in primary school. His brother, Tyrone, gave evidence he had not discussed that with him, but that he had been told about it by Mr Thornton's then partner some years earlier. Mr Thornton told Ms Nelson that his drug use helped him deal with the shame and flashbacks that arose from those experiences. 31. Although this account is not the subject of sworn evidence, his brother's evidence was not challenged, and I am prepared to accept it on the balance of probabilities. Mr Thornton recognised the need on his part, for mental health intervention, something that really can only thoroughly occur once he is back in the community. 32. He told Ms Nelson that he would like to participate in therapeutic programs whilst in custody, and that he will accept psychiatric support when he is released. It is a great shame that his case cannot be referred to the Drug Court, because of where he was living, for consideration of whether he could enter the treatment program within the custodial system. 33. Ms Nelson noted that he had limited insight about the harm that was caused to the victims and was unable to recognise that these two young men were innocent victims not drug dealers. She thought that he was a medium to high risk of reoffending, and that, to reduce that risk, he needed to address his dependence on opiates. He needed assistance so that he could deal with mental distress in other ways than using drugs. He will need help with obtaining employment, having a working life, and achieving prosocial recreational activities. All of those reasons support a finding of special circumstances in this case. 34. Ms Nelson considered it was possible that his childhood ADHD diagnosis may have contributed to the offending because this impacts on his poor emotional regulation, impulsivity and poor consequential thinking. 35. I cannot find on the balance of probabilities, that his ADHD was a causative link to the offending. There is not the evidence to support that. I do accept, however, that because of his serious childhood disadvantage and early entry into drug addiction to cope with his experiences as a child, his moral culpability is reduced consistent with the decision of the High Court in Bugmy v The Queen. It makes his rehabilitation a significant consideration on sentence, see Lloyd v R NSWCCA 18 at 54. 36. Ms Nelson set out recommendations at page 9 of her report regarding treatment within prison, and most importantly, when he is out of prison. As I say, those matters support the conclusion that special circumstances exist. The evidence was that his brother, Tyrone, continues to offer help and so one can expect he will have support available to him when he is released. 37. I accept that the offender's age, that he is now a mature man, and the statements that he made to Ms Nelson, although they are untested, do at least, give rise to some optimism that, ultimately, he will not reoffend. At the moment, such a conclusion is a guarded one because he needs so much intervention, both whilst he is in custody and when he is released. 38. I make the same finding when it comes to his prospects of rehabilitation. They are guarded, but he does have support and he does seem to have an insight into how important it is that he get professional intervention to address these issues, otherwise, life is going to continue in the way it has to this point. In relation to remorse, there is very limited evidence before me about that, aside from the guilty plea. 39. It is quite wrong for him to justify this conduct on the basis that these two victims were drug dealers. NA's father, it would appear, was selling cannabis. He was their target. These two victims just happened to be there. I am not satisfied on the criteria set out at section 21A of the Crimes (Sentencing Procedure Act) 1999 about remorse. 40. There is no parity issue to consider because Mr Pritchard is yet to be sentenced. 41. There is no submission to the contrary and I find that the threshold is crossed, and only a term of full-time imprisonment is appropriate. 42. There is a question about the commencement date. Mr Thornton has been in custody since 8 July 2022, serving the balance of parole until 12 April 2023. He has been solely on remand since then. Those matters were, as I have said, Local Court matters. They did not involve violence. He has had his parole revoked because of these matters, and although I accept that there is a need for some aspect of pre-sentence custody to reflect the balance of parole and to be incorporated into the sentence, in my view, that should be a period of three months. This sentence should start from 7 October 2022. 43. In terms of the various purposes of sentencing, they are really all invoked in this case. The need for general deterrence is obvious. The intolerable nature of a home invasion on innocent members of the community at their home must be denounced. Specific deterrence is relevant because of Mr Thornton's age and his significant criminal history. There is the need to protect the community and to recognise the harm caused to the victims, and also, the need to structure the sentence so that it provides potential for rehabilitation. 44. In relation to count 2, the charge of robbery with wounding committed against NA, taking into account the matters on the Form 1, I am making a finding of special circumstances. 45. The starting sentence is 7 years, reduced by 5% for the plea of guilty, to 6 years 8 months. I propose a non-parole period of 4 years and 2 months from 7 October 2022, with the earliest release date to parole on 6 December 2026, and an additional term of 2 years and 6 months. 46. I note that the non-parole period is shorter than the standard non-parole period, for the reasons set out above. The sentence will be completely served on 6 June 2029.