New South Wales District Court CITATION: R v Kevin Scorah; R v Carl Walton [2008] NSWDC 180 HEARING DATE(S): 26 May - 2 June 2008 - Trial, 13 August 2008 EX TEMPORE JUDGMENT DATE : 13 August 2008 JURISDICTION: Criminal JUDGMENT OF: Goldring DCJ DECISION: Kevin Scorah: On steal from person sentenced to non-parole period of 18 months and a total term of two and a half years. Commencing on 1 February 2008, the non-parole period will expire on 31 July 2009 and the total term on 31 July 2010. On robbery in company sentenced to non-parole period of three years and a total term of five years. Commencing on 1 February 2009, the non-parole period will expire on 31 January 2012, which is the earliest date upon which he will be eligible for parole and the total term will expire on 31 January 2014. Carl Walton: On steal from person sentenced to non-parole period of 18 months and a total term of two and a half years. Commencing on 16 March 2008, the non-parole period will expire on 15 September 2009 and the total term on 15 September 2010. On affray sentenced to a fixed term of eight months imprisonment commencing on 16 July 2009 and expiring on 15 March 2010. On robbery in company sentenced to a non-parole period of three years and a total term of six years. Commencing on 16 August 2009, the non-parole period will expire on 15 August 2012, which is the earliest date upon which he willl be eligible for parole, and the total term will expire on August 2015. CATCHWORDS: CRIMINAL LAW - Sentencing - Robbery in company - Steal from person - Affray - parity with juvenile co-offender LEGISLATION CITED: Crimes Act 1900 (NSW) CASES CITED: R v Henry [1999] 46 NSWLR 346 R v Ho unreported NSWCCA 28 February 1997 Crown PARTIES: Kevin Scorah (Offender) Carl Walton (Offender) FILE NUMBER(S): Wollongong 07/41/0024 ; 07/41/0138 K Ratcliffe (Crown) COUNSEL: G West, solicitor advocate (Scorah) D McCallum (Walton) NSW DPP SOLICITORS: Legal Aid Commission, Wollongong Russell Mclelland Brown, Wollongong SENTENCE 1 HIS HONOUR: On 2 December 2006 at about 5pm four young men left the Bellambi Hotel, walked east along Bellambi Lane and up the ramp to the Bellambi Railway Station. They had all been drinking in the hotel and were carrying bottles, including a bottle of whisky. From the point they entered the ramp their actions on the station were caught on closed circuit television. The four were the two offenders, AW and a fourth man who appears to be called SW. At the time, AW was under 18 years of age and has been dealt with in the Children's Court. 2 As they walked up the ramp to the station the four men appeared to have a discussion, then they walked in single file along the eastern side of the platform until they reached the entrance to a shelter where the ticket office and ticket machine is situated. MS, then 15 years old, had bought a ticket and was waiting in the shelter. He had seen the four men approaching and was a little apprehensive. He was counting money and had a $20 note in his hand. The four young men walked up to him and one of them took the money from his hand. They then went onto the western side of the platform. MS followed them and asked for his money back, but the four men mocked him. MS then left the station and walked east to Pioneer Road from where he called the police on a mobile phone. These events constituted the offence of steal from the person. 3 The four young men then walked south along the platform. At the southern end of the platform a youngish woman was sitting on an upturned milk crate. The offender Carl Walton kicked the milk crate from under the woman. She stood and walked north along the platform. The offender followed her. He reached the milk crate, picked it up and threw it at her. She avoided it and continued to walk north along the platform. The offender then picked up the milk crate and threw it at her again. These events, which were also captured on closed circuit television, constitute the offence of affray to which Mr Walton pleaded guilty at the trial. 4 The four men then caught a train to Corrimal. Again some, but not all, of their activities were recorded on closed circuit television. As they walked down the platform towards the exit, AW appeared to kick at the train and lost his footing. A young man with a bicycle, ZG, was following them, but when AW fell over, ZG walked around him. The four young men then walked past ZG and left the station. ZG mounted his bicycle and rode it off the platform. On his evidence, and this was not shown on the closed circuit television, he was then jostled by the four young men and placed in a headlock by Carl Walton, who then beckoned to AW. The other man stood in the middle of the road outside the station, blocking ZG's route. ZG became apprehensive, put down his bicycle and took off his bag which he placed on the ground. AW came up to him and knocked him to the ground two or three times. Carl Walton picked up the bicycle and rode off on it. The other offenders, including Kevin Scorah, picked up his bag and removed his watch and other items from it. They also took an ipod from a pouch on ZG's belt. 5 The four men then walked east down Murray Rd. Some of their movements can be seen on the closed circuit television recording, but the actual assault is obscured. However, ZG gave evidence, as did two eyewitnesses, Gregory Moon and Dayna Bradley. ZG got to his feet and ran after the four men, or three men actually, because Carl Walton had ridden off on the bicycle. They stopped ZG, and there was a further fight. Ms Bradley gave evidence that all four young men kicked and punched the victim again, when he was lying on the road. However, her evidence was also that Carl Walton had taken the bicycle and ridden it away out of sight. This is not consistent with four men being present at the continuation of the assault, and I could not be satisfied beyond reasonable doubt that either of the offenders before me took part in that assault. ZG says he was knocked to the ground, but cannot say who caused this. As a result, ZG suffered lacerations to his face and knee, and chipped a tooth. There is no doubt, in my mind, that there was a robbery immediately ZG left the station, and what happened after that is not necessary to find that offence established. 6 The offenders ran south and through the East Corrimal Public School to an area near Towradgi Creek. Scorah and AW were apprehended in this area. Carl Walton was arrested two days later, after a search warrant was executed at his parents' home, and clothing, matching that shown on the closed circuit television recording, was found there. These events constituted the offence of robbery in company. 7 The jury in Wollongong found both offenders guilty on each count and they were accordingly convicted of the offences. Mr Walton pleaded guilty to the offence of affray, and he is convicted of that offence. The offences were part of a continuing course of criminal activity, but they are quite separate from each other, and that will be reflected in the sentences that I impose. It is also quite clear that all four young men were seriously affected by alcohol at the time of the offences. Substance abuse of any kind must be taken into account by a sentencing court, but cannot be regarded as an excuse for criminal behaviour. 8 What makes these offences rather more serious than would otherwise have been the case, is that they were committed in or near railway stations on a summer Saturday afternoon. The public has a right to expect to be able to travel by train without being assaulted and robbed and otherwise put in fear by drunken hooligans. The property involved in this case was not particularly valuable, however, three totally different, innocent individuals were threatened by behaviour, put in fear and, in the case of ZG, suffered quite serious physical injuries. There can be little doubt, in my view, that each victim who gave evidence, suffered psychological injury. The robbery offence was vicious and unprovoked. It is aggravated because it involved the use of gratuitous force, which could have endangered the life of the victim. ZG, himself, did not say he was kicked in the head, but an eyewitness said he was, and that is not necessary for a finding of the use of actual or threatened force, that is, the violence which is an essential element of robbery. Quite apart from the evidence of Ms Bradley, there is evidence of gratuitous use of force and reckless regard for human safety, and that is a seriously aggravating factor. 9 The offence of steal from the person was not charged as an aggravated offence, but the fact that the two offenders, who appear before me, were in the company of each other and other people, is an aggravating factor, in what otherwise would not be the most serious offence of this type. There is no alternative to a sentence of fulltime imprisonment as an appropriate punishment for each of these offences. 10 The was a co-offender, AW, who was dealt with in the Children's Court because he was a juvenile at the time of these offences. There may be some reason why the prosecution did not seek to have that matter dealt with according to law, rather than in the Children's Court, but that reason is not apparent to me, as AW appeared to be the most violent of the young men, and took a leading role. That is not to say that Carl Walton was not also deeply involved in the offence, being the person who actually took the money from MS, the person who kicked the milk crate and threw it twice at the victim of the affray, and the person who put ZG in a headlock. AW received a bond. Unless he suffers from some sort of intellectual impairment, it seems to me that this penalty was manifestly inadequate, even for a juvenile. 11 There is a considerable body of authority that suggests that, where one offender is a juvenile and the co-offenders are adults, parity of punishment is less important because different considerations apply to the sentencing of a juvenile. See Ho, an unreported decision of the Court of Criminal Appeal on 28 February 1997. It is difficult to imagine a case where that principle would apply more strongly than in the case before me. Many of the cases, to which I was referred, concern situations where the Children's Court imposed a heavier penalty than the adult court. They also refer to the need for the Children's Court to place greater emphasis on rehabilitation. In this case, I have determined that the sentence imposed on AW should be disregarded for the purpose of sentencing these two offenders. 12 Mr Scorah is 28 years old. He has a partner and a child. His parents moved to Queensland some years ago. His mother came from Queensland to support him in court. Ms Coburn, from the St Vincent De Paul Society, also gave evidence on his behalf. She is the manager of a youth refuge, where Mr Scorah has stayed on occasions, and she has remained in contact with him. She has provided support and generally befriended him. Her evidence was largely hearsay, and the offender did not give evidence himself. The most significant part of Ms Coburn's evidence is her statement that Mr Scorah has acknowledged that he has a problem with alcohol. 13 Mr Scorah's case was that he was not involved in any joint criminal activity, and he does not take responsibility for the offences. This may well be because he has little memory of the offences, even though he has seen in court, if not elsewhere, video tapes which clearly show that he was involved, with the three other young men, in the commission of the two offences of which the jury found him guilty. It is important that he comes to terms with the offences and accepts responsibility for them. 14 Mr Scorah has a criminal record dating back to 2000, and he has served a short term of imprisonment for stealing property in a dwelling house and dishonestly obtaining a financial advantage. Most of his record consists of property offences, and there are no offences of serious violence on his record. Ms Coburn describes him in the following terms and I quote: "Kevin is very much alone and tends to isolate from others and finds forming healthy relationships with others at times difficult. Over the past years alcohol dependency has been raised on many occasions with Kevin, unfortunately he has never conceded having a problem with this until now. Alcohol has been responsible for several things over the years." 15 Ms Coburn goes on to say that, for the first time, Mr Scorah accepts that he does now have a problem with alcohol. This is an important step in addressing his problems with alcohol. He will need support and assistance in addressing this problem when he is released from custody. This is sufficient for me to find that special circumstances apply in his case. 16 Mr Scorah was on a bond to be of good behaviour at the time of these offences. He has spent just on six months in custody, and, of that time that he spent in custody since the end of 2006, when he was arrested, only five days relate to another matter. I propose to set a commencing date for his sentence, which will take account of the whole period that he has spent in custody. 17 It is also consistent with Ms Coburn's account that Mr Scorah was not known to associate with Carl Walton, AW and the group associated with them, on an ongoing basis. It was suggested that he may have been assaulted by Carl Walton, AW and others, shortly before these incidents, but I could not be satisfied of that, even on the balance of probabilities, as there was no evidence of it. The evidence of people, who know the Waltons and the other people in the group, suggests that Mr Scorah's involvement in these offences was not due to any ongoing involvement with these people, but primarily due to excessive use of alcohol. Mr Scorah was not shown in any of the video footage as actually using physical violence towards any victim. Witnesses did see him take property from ZG, and from his bag, and the jury was clearly and properly satisfied, beyond reasonable doubt, that he did take part in the joint criminal enterprise with the other offenders. 18 Mr Walton is somewhat younger than Mr Scorah. He is now 23 years old and was 21 at the time of these offences. His mother gave evidence, and his counsel tendered a report from Ms Duffy, a forensic psychologist. Mr Walton, himself, did not give evidence. This reduces the weight that can be placed on the evidence, given by others, in relation to what he has told them. However, there are some matters of which I can be satisfied. Mr Walton also has a record of previous offences. None of them are matters of violence, and at the time of the trial, he was in custody, bail refused, on certain matters that will come before the District Court in Wollongong, shortly. Before that time, there was a period in 2002, when he was about 15, when he was in serious trouble in the Children's Court. Since then, his record shows some relatively minor offences, none of which attracted a custodial sentence, until earlier this year, when he was sentenced to a short term of imprisonment for passing a valueless cheque. He has been in custody, other than on that sentence, for a total of three and a half months. Nevertheless, his role in these offences was significant. In relation to the affray, he was the only offender. 19 Mr Walton grew up in the Wollongong area with his parents, an older sister and a younger brother. His mother gave evidence that the family relationships are strong. Carl Walton did well at primary school, but in Year 9 began to have difficulty at school, and left. He attended TAFE for some time, but then left and got a job. He has never had any difficulty finding employment, and in evidence there were two references from his employer, the manager of a cement rendering company. They said that he is a good worker and would always find employment in that work. There is also evidence that he was a very good rugby league player, and enjoyed team sport. I have already referred to his experiences in 2002 at the Children's Court. 20 Also, when he was about 15, he formed a relationship with a woman who is about a year younger. According to Mr Walton's mother, this girl had an unhappy home life. She came to live with the Walton family for some years, and Mr Walton's mother supported her while she finished school. She and Mr Walton have a child, who is now three. On two occasions, the mother has left Mr Walton and the child, and on the first occasion, the evidence is that he was severely affected by the break-up of the relationship. This is reflected, not only in the evidence given by his mother and by Ms Duffy, but it was also noticed by his employer and family friends. It appears that, at this stage, he became depressed, and began to use alcohol and ice excessively. His mother noticed a marked change in his behaviour. The evidence is that he is very close to his son, and very conscious of the responsibilities of fatherhood. However, the break-up of the relationship with the son's mother appeared to affect him for a long time, and he was prone to substance abuse. I have already said that substance abuse is never an excuse for the commission of crimes. 21 I am satisfied that Mr Walton has also, at least in part, come to terms with his substance abuse problems. This is referred to in the pre-sentence report from the Probation and Parole Service. I consider that there are some good prospects of rehabilitation, provided that he has both family and professional support and assistance when he is released from custody, and, for that reason, I find that there are special circumstances in his case. I have already referred to the fact that, although these offences were part of a continuous course of criminal activity, they are separate offences. They cannot, for that reason, attract sentences which are totally concurrent. The principles of totality and proportionality require that there be some accumulation of the sentences. 22 The offence of stealing from the person is part of a group of offences dealt with in the same part of the Crimes Act. It is, even when committed in aggravated circumstances, less serious than the offence of robbery, because actual or threatened violence is not an element. The offence of robbery in company, however, is very serious and falls within the scope of the guidelines established by the Court of Criminal Appeal in the case of Henry. It must be remembered that the Henry decision applied to cases in which there was an early plea of guilty. In that case, the Court pointed to a number of factors which courts should consider, and, in this case, the victims were in each case a single person facing a group of four young men. In the case of the robbery of ZG, there was gratuitous violence and actual injury, and that, in itself, takes it slightly outside the range of sentences which the Court discussed in Henry. 23 Mr Scorah is charged with only two offences, and, although he was found guilty as a principal in respect of both, his role in the two offences that he has in common with Mr Walton suggests that his part was not so significant. 24 On the charge of steal from the person, Mr Scorah is sentenced to a non-parole period of 18 months and a total term of two and a half years. The sentence will commence on 1 February 2008, the non-parole period will expire on 31 July 2009 and the total term on 31 July 2010. 25 On the charge of robbery in company, Mr Scorah is sentenced to a non-parole period of three years and a total term of five years. The sentence will commence on 1 February 2009, the non-parole period will expire on 31 January 2012 which is the earliest date upon which he will be eligible for parole and the total term will expire on 31 January 2014. 26 On the charge of steal from the person, Mr Walton is sentenced to a non-parole period of 18 months and a total term of two and a half years imprisonment. That sentence will commence on 16 March 2008, the non-parole period will expire on 15 September 2009 and the total term on 15 September 2010. 27 On the charge of affray, Mr Walton is sentenced to a fixed term of eight months imprisonment, commencing on 16 July 2009 and expiring on 15 March 2010. That sentence reflects a discount of two months because of the plea of guilty. 28 On the charge of robbery in company, Mr Walton is sentenced to a non-parole period of three years and a total term of six years. The sentence will commence on 16 August 2009, the non-parole period will expire on 15 August 2012, which is the earliest date upon which he will be eligible for parole, and the total term will expire on 15 August 2015. 29 In relation to Carl Walton's pre-sentence custody calculation, I have allowed roughly half of the total period of seven months that he's spent in custody, so I've backdated that sentence for virtually four months to take account of the pre-sentence custody, and also to take account of the principle of totality, as it applies to the sentence that he is currently serving. He must serve some time in respect of that sentence, but not the whole of it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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