R v Green; R v Upton [2012] NSWDC 230

District Court New South Wales

Medium Neutral Citation: R v Green; R v Upton [2012] NSWDC 230 Hearing dates: 9 November 2012. Decision date: 09 November 2012 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Joshua Upton is sentenced to imprisonment. In each of the three cases I impose a non-parole period of eighteen months with a head sentence of three years. In Mr Green's case I impose a non-parole period of eighteen months with a head sentence of three years. Catchwords: CRIMINAL LAW - Sentence - Robbery in company - Drunken violence Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR Category: Sentence Parties: The Crown Steven Glen Green Joshua Kim Upton Representation: Ms I Reed - Offender Upton Director of Public Prosecutions HCD Law - Offender Green File Number(s): 2012/109549 2012/109563

SENTENCE 1HIS HONOUR: The community is rightfully concerned about the problem of violence inflicted upon innocent people by drunken and drug affected offenders who, in seemingly random acts of thuggery, approach people walking along the street at night simply for the purpose of taking small amounts of money from them. 2One of the principal purposes of sentencing is to protect the community. It has to be recognised that the offences for which I am to sentence Steven Green and Joshua Upton were particularly serious. People should be entitled to walk along Hunter Street, Newcastle, in the evening without being bashed and robbed by others who care little for anything other than looking after themselves. 3It was about 10.20 in the evening on 7 April 2012 that three young people, between the ages of eighteen and twenty-three, were walking along Hunter Street, Newcastle. They were going to go to a pub. Walking in the opposite direction were three other people, the two offenders who I have to sentence today and a man by the name of David Murphy who is to be sentenced later. 4The three offenders approached one of the innocent young people. They made their intentions clear when one of them said, "Give us your fucking money." When the victim said, "No", Mr Upton simply punched him in the face. Not surprisingly, the victim then decided to give up some of his property. He took his wallet out and threw it on the ground. Mr Upton was not satisfied; he said, "What about your phone?" and when the victim said he did not have one, Mr Upton hit him again, once in the temple and once in the jaw. 5By now the victim had given up, so he took his new iPhone out of his pocket and threw it on the ground while trying to get away. He was left with a bleeding nose. 6While this was happening the other offenders, Mr Green and Mr Murphy, approached the other two victims. Mr Murphy yelled, "Give us your phone, give us your money." Mr Green was mumbling things but what he said could either not be heard or not be recalled later on. Because the two offenders were also waving their fists around at the same time the other two victims feared that they would be assaulted as their friend had been. 7One of them produced a wallet and gave it to Mr Murphy and the other one handed over a purse and gave that to Mr Murphy. The offenders then ran off. 8Fortunately, a patrolling police car drove past. The victims waved it down, described what had happened to them and described the offenders. Many police attended, including a police dog and handler. Eventually the three offenders were found and then arrested. 9The victim who had been punched ended up, with a bleeding nose, swollen and sore right side of his head, could only open his jaw halfway before being stopped by pain and had a small chip on his lower front tooth. 10Mr Green is now twenty-five years of age. School for him was hard. He is illiterate and that, of course, led to problems with him getting work after he left school. For a while he appears not to have tried to get work. He left school at a very young age and whilst he was living at home with his mother he said that he actually grew up on the streets. His criminal history attests to that description of his early life. He has an older brother with whom he is very close and they seem to have got into trouble together. 11He had a relationship with a woman at the age of eighteen and he has a young daughter from that relationship. When that relationship broke down Mr Green said he just "lost" it. He was homeless, and began using drugs much more heavily than he had been in the past. He committed more offences. He said that his use of drugs continued until the night he got arrested. At the time of the offence he was living on the streets, and was using drugs and alcohol. 12He has had jobs in the past and hopes to work in the future. He has worked as a car detailer and in demolition work. He is not thus the sort of offender who is incapable of getting a job and keeping one. The problems with his drugs, however, have prevented him so far from keeping in work. 13Since he has gone into custody he has stopped using drugs. He is now serving a sentence in an adult prison and has found it particularly hard. One particular circumstance is that he is serving his sentence on strict protection. For reasons he does not know, he was bashed early on in his time in gaol, which has resulted in him serving his sentence in conditions of custody which are harsher than those of the general prison population. 14He expressed his remorse for what he did and has plans to continue with his rehabilitation away from the use of drugs and get a job upon his release from custody. 15Mr Upton is now nineteen, was only eighteen at the time of the offence. He had an upbringing which, it is something of an understatement to say, was less than ideal. His mother seemed to have had her own problems. Unfortunately, she took these out on her son, the offender Mr Upton. As he was growing up he reported being chased around by his mother with knives in order that she could scare him. At times he had a knife held to his throat and his mother made her feelings towards him clear by telling him that she hated him. She had various partners over the years who treated Mr Upton in a similar way. 16He was told at the age of thirteen that they were going to go and visit his grandfather. He was effectively dumped there. His mother said that she was going out to get fish and chips and has never returned; he has not seen her since. It was not long before he left his grandparent's home and he too has been on the streets almost ever since. 17He gave evidence before me and upon my assessment is a very clever young man. He knows logically and rationally many of the things that many offenders simply do not understand. He knows that he has anger issues. He knows that they are a result of his upbringing. He fully appreciates that he has been dealt cards which have caused enormous problems to him. He has no family support at all. His mother's family simply do not get on and he never met his father who died whilst his mother was pregnant with him. 18Whatever his precise psychiatric diagnosis is, he is clearly a troubled young man. It is quite easy to make a finding that his moral culpability is reduced because of the way he was brought up. 19One bright light on the horizon is the relationship that he has with his girlfriend Bronte and, in particular, her sister Mykaela. Mykaela Padderson gave evidence before me. She clearly loves Mr Upton and wants to care for him. She is willing to have him live with her and her boyfriend upon his release from custody but she is realistic enough to know that it is not going to be easy and so she is prepared to be strict with Mr Upton as well as caring for him. As she said, she and her family are the only family that Mr Upton has. He is very lucky to have them. 20Both Mr Green and Mr Upton expressed their desire for rehabilitation upon their release from custody but there is a great deal of work that needs to be done in both cases. There are clearly special circumstances in each case. They will each need an extended period of supervision on parole to assist them in their rehabilitation. This means that they will spend less time in custody than they would otherwise, but given that the ultimate objective of sentencing these two offenders is to reduce the risks that they will commit further offences on innocent members of the community in the future, it is appropriate that their time in custody be reduced so that their time in rehabilitation can be extended. 21Ordinarily, the commission of three separate offences such as these, robbery of three separate victims, would see me accumulating sentences partially. There are, after all, three separate victims and three lots of harm occasioned by these three separate offences. It was, of course, one course of conduct but the harm is increased by the fact that there are three different victims. However, despite Miss Reed conceding that I would partially accumulate, I do not propose to. I will impose concurrent sentences in each case. I fully acknowledge that this is unusual but I do so as a measure of leniency. 22The principle of parity arises. Neither offender should have any justifiable sense of grievance when he compares his sentence with the sentence I impose upon his co-offender. There are clearly different circumstances relating to each different offender. Ultimately they effectively cancel each other out, so I will impose sentences on the offenders which are identical. 23Mr Upton was on a bond and so his offending is aggravated by that circumstance. On the other hand, he is younger than Mr Green. It was Mr Upton who did the punching and Mr Green did not, nor did he receive the proceeds, unlike Mr Murphy. 24I mentioned Mr Green serving his sentence on protection. That is likely to continue. His conditions of custody will be harder than those of the general prison population. 25I mentioned Mr Upton's mental state before and the difficulty in making a precise diagnosis as to what troubles him. It is clear, however, that he is not a person upon whom a full measure of general deterrence should be visited, but there is nothing suggesting the inappropriateness of imposing a sentence which contains a significant component of personal deterrence. In common with many young people who serve sentences in juvenile custody and then move to an adult prison, he has been able to contrast the conditions of custody for himself. Part of the terrible nature of serving a sentence in an adult gaol is the effect of hopefully deterring people like Mr Upton from committing offences in the future. The sentence I impose upon him will, I trust, have that effect. 26When he gets out of custody and goes to live with Miss Mykaela Padderson he will know that if he commits a further offence he will return to custody and return to those conditions of an adult prison which he finds so unpleasant at present. 27Reference was made to the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R. It has to be recognised, of course, that originally the guideline sentence of four to five years was for an offence of armed robbery, and whilst the maximum penalties are the same, that is the maximum penalties of robbery in company and armed robbery, I have little hesitation in finding that an offence of robbery in company is ordinarily less serious than an offence of armed robbery. 28The Henry guideline judgment postulates a sentence of four to five years in particular circumstances. Here there was, of course, no weapon used. If there were, they would have been facing a different charge. The plea of guilty came early, rather than the late plea contemplated in the Henry guideline judgment. 29It is agreed that Mr Upton's sentence should commence on 7 April 2012, the day he was arrested. That is notwithstanding that for almost all that time he has been serving a sentence imposed upon him after having breached a bond. That breach of bond came about because of the commission of these offences and so it would be double counting to commence the sentence today, as the same time as regarding his commission of the offence on a bond as an aggravating circumstance. For that reason I will date the sentences to be imposed upon Mr Upton from 7 April 2012. 30Mr Green is in a different position. He has also been serving a sentence. The principle of totality applies and so I will date the sentences to be imposed upon him from 7 July, slightly less than half the way through the sentence imposed for the other matter. 31So, I impose sentences as follows: 32Joshua Upton is sentenced to imprisonment. In each of the three cases I impose a non-parole period of eighteen months with a head sentence of three years to commence from 7 April 2012. His non-parole periods will thus expire on 6 October 2013, on which day he is to be released to parole. 33In Mr Green's case I impose a non-parole period of eighteen months with a head sentence of three years to date from 7 July 2012. His non-parole periods will expire on 6 January 2014, on which date he is to be released to parole. 34I order that the psychiatric report on Mr Upton, prepared by Dr Christopher Bench, is attached to the warrant regarding Mr Upton so that it may go with him as he returns to custody.