New South Wales District Court CITATION: R v Black [2007] NSWDC 234 HEARING DATE(S): 03/09/07 27/09/07 JUDGMENT DATE: 27 September 2007 JURISDICTION: Criminal JUDGMENT OF: Conlon SC DCJ DECISION: CONVICTED: Sentenced to a non-parole period of 3 years with an additional term of 2 years imprisonment CATCHWORDS: Influence person to be called as witness in judicial proceedings LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) PARTIES: Crown Michael Stephen Black (Accused) FILE NUMBER(S): 07/41/0008 SOLICITORS: Mr A Kernaghan (Crown) Mr G Morrison (Accused) JUDGMENT 1 HIS HONOUR: The offender Michael Black appears for sentence following his plea of guilty to a charge of doing any act intending to influence a person to be called as a witness in judicial proceedings so as to not give evidence. The offence is contrary to s 323(A) of the Crimes Act and carries a maximum penalty of seven years imprisonment. 2 The facts are that the offender stood trial at the Wollongong District Court on 5 June 2006 on a charge commonly referred to as car jacking. James Koning and his partner, Rebecca Noakes were crown witnesses and gave evidence at the trial. Prior to the commencement of the trial the offender sent a letter via Australia Post to Koning at his address, 27 Nannawilli Street, Berkeley. The back of the envelope indicated it was sent by Michael Black with the numerals 388494 being his prison identification number. The letter was dated 9 May 2006 and said: "To Jimbo, what's going on? Why are you saying it was me and Kano that done this car jacking? What cause your dirty on us? Going doubles on your missus. Come on that's in the past. That was two years ago and don't think you're getting any money off us now for that ounce of ice and if I go down for something I didn't do because of you, you better watch your back. All right so think about who you're covering for and what you're doing. Be careful it's a dangerous game. Blacky." 3 Mr Koning apparently made copies of the letter and handed the original to the police. The offender's fingerprints were located on the front and rear of the letter and the offender was found guilty, by a jury, of the car jacking and the charge of malicious wounding and he was taken in to custody. On 18 September 2006 he was removed from custody and taken to the Penrith Police Station to enable these allegations to be put to him. He declined to answer any questions. 4 I have taken into account the submissions made by Mr Morrison in relation to the particular circumstances of the offence and the fact Mr Morrison labelled it as indicating no real attempt by the offender to conceal his own identity. However in my view that does not lessen the objective seriousness of the offence. Deterrence both specific and general are significant factors in respect of an appropriate penalty. The very nature of this offending is a direct attack in my view on the system of criminal justice and stern punishment is required. 5 The offender has a number of Children's Court matters on his record commencing in 2003. In 2004, 2005 and 2006 there were a number of control orders imposed. Following his convictions at the Campbelltown District Court and in respect of those charges of malicious wounding and car jacking on 6 October 2006 he was sentenced by his Honour Judge Goldring first of all in relation to the malicious wounding to a non parole period of eighteen months and an additional term of two and a half years. In respect of the aggravated car jacking he was sentenced to a non parole period of five years and an additional term of two and a half years. 6 In coming to that sentence there were a number of subjective features which his Honour Judge Goldring made reference to and they appear at pages 7 and 8 of his Honour Judge Goldring's judgment and I will not repeat those here. 7 Until recently Mr Black has been very reluctant to discuss his background and the factors leading to this offence. 8 On the last occasion that the matter was before the court a request was made for the matter be adjourned to enable a psychologist to prepare a report, but I was told earlier this week that Mr Black decided he did not want to see the psychologist. A probation and parole officer did speak to Mr Black and to his mother and other members of his family and I accept that Mr Black has had a childhood which was far from happy and which lacked a high degree of security. There are suggestions that the home was affected by violence. 9 Mr Black is the youngest of a number of children and he lived with his mother in the Berkeley area of Wollongong for several years when he was not in custody. He has spent a significant period of his life in juvenile detention centres but has only been in an adult prison since the commission of these offences. His brother Shane who is now in his thirties was in court earlier this week and he also has a record of offences but is now out of gaol and has a young child. It was indicated to me that he seeks now to be a model for his younger brother and to try and influence Michael Black away from a history of criminal activities. 10 Mr Black has a long history of substance abuse. It appears that he started using cannabis and alcohol when he was a very young teenager and most recently he has become addicted to crystal methylamphetamine or ice. He says that at the times he committed both these offences he was under the influence of these substances. As I say that is not an excuse but it may help to explain the offences. 11 Those sentences imposed by his Honour Judge Goldring were appealed. The appeal was by the offender in respect to the severity of those sentences and on 14 August 2007 the Court of Criminal Appeal allowed the appeal. He was re-sentenced as follows. In respect of the malicious wounding he was sentenced to a non parole period of 18 months to date from 6 January 2006 and to expire on 5 July 2007 and he was further sentenced with an additional term of two and a half years expiring on 6 January 2010. In respect of the aggravated car jacking he was sentenced to a non-parole of three years to date from 6 January 2007 and to expire on 5 January 2010. He was sentenced to an additional term of two years expiring on 5 January 2012. 12 The Court of Criminal Appeal departed from the standard non parole period in respect of the car jacking offence because of his youth, his disturbed background and his prospects of rehabilitation. Given those factors the question of totality was a critical issue in arriving at the ultimate sentence. Consequently those same factors that the Court of Criminal Appeal referred to will have a significant bearing on the sentence I am about to pass. 13 I, of course, have taken into account his plea of guilty in relation to this matter. The plea was entered in the local court and accordingly this is a plea at the earliest opportunity. The utilitarian benefit of this plea to the criminal justice system will be reflected by a discount of about 20 percent. 14 I have taken into account the purpose of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act. In respect of the comments I have already made in relation to the objective seriousness of this crime and having considered all possible alternatives, I am satisfied that the only appropriate penalty is one of imprisonment. Special circumstances apply as was indicated by the Court of Criminal Appeal. 15 Would you please stand Mr Black. You are convicted of this offence. I sentence you to a non parole period of three years to date from 6 January 2008 and to expire on 5 January 2011. I sentence you to an additional term of two years to expire on 5 January 2013. 16 That Mr Morrison has added a year. Thank you. ********** 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. 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