R v Genua; R v Hardy [2012] NSWDC 280

District Court New South Wales

Medium Neutral Citation: R v Genua; R v Hardy [2012] NSWDC 280 Hearing dates: 29 October 2012; Decision date: 02 November 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment - Mr Hardy is sentenced to imprisonment consisting of a non parole period of 3 years with a head sentence of 5 years. - Mr Genua, impose an aggregate sentence which consists of a non parole period of 4 years 6 months with a period of eligibility for parole of 3 years. Catchwords: CRIMINAL LAW - Sentence - Forms 1 - "One man crime wave" - Conspiracy to commit armed robbery - Using motor vehicle as an offensive weapon with intent to preven lawful apprehension - Taking and driving the vehicle knowing that it was stolen - Attempted robbery - Robbery - Steal from person - Driving in a manner dangerous to the public - Driving recklessly - Bag snatching Category: Sentence Parties: The Crown John Anthony Genua Nathan Hardy Representation: K Magnus - The Crown R Jankowski - Genua S Hall - Hardy Director of Public Prosecutions Mark Rumore - Genua Legal Aid Commission - Hardy File Number(s): 2009/247738; 2011/276398; 2011/307403; 2009/250145

SENTENCE 1HIS HONOUR: Earlier this year I sentenced two men, Shane Skinner and Gregory Elliott, for an offence of conspiring to commit an armed robbery in November 2009 with each other and with two other men who appear for sentence today, Nathan Hardy and John Genua. In addition Mr Genua is to be sentenced for a large number of other offences committed over a relatively short time in July and August 2011. 2In November 2009 police were monitoring various telephones and they became aware that the four men I have named were planning to commit an armed robbery. They listened as the men spoke to each over the telephone as they agreed to commit the offence and as they planned various aspects of what was to occur. 3In the early afternoon of 10 November 2009 the four men were arrested before the offence could be committed. Mr Genua was with Mr Skinner. They were in a stolen BMW X3 with Mr Genua driving. The arrest was effected by officers from the Tactical Operations Group. They surrounded the BMW driven by Mr Genua, but instead of immediately giving up he drove that vehicle towards a police vehicle before colliding with it. Because of what he did as police arrested him he has admitted his guilt of using the motor vehicle as an offensive weapon with intent to prevent his lawful apprehension as well as taking and driving the vehicle knowing that it was stolen. He asked that I take those matters into account when I sentence him for conspiring to commit the armed robbery. 4When the BMW was searched police located items clearly intended to be used in the armed robbery, a replica pistol, a shortened Remington rifle and a balaclava, amongst other items. 5Mr Hardy was arrested later after having avoided arrest in rather dramatic circumstances. Although at trial he faced a charge of using an offensive weapon, namely, a motor vehicle, to prevent the lawful apprehension of himself, the jury found him not guilty of that offence. They did, however, find him guilty of the offence of conspiring to commit an armed robbery and that is the only offence for which he appears for sentence today. 6After Mr Genua had been in custody awaiting trial he was given an opportunity to attend a residential rehabilitation centre. He went straight from gaol to Odyssey House. The clothes that he would need for the duration of the rehabilitation program were delivered to him by his partner. Unfortunately when they were searched four Xanax tablets were discovered. It appears that those Xanax tablets had been in his clothes for some time. Mr Genua's partner did not know about them as Mr Genua had forgotten about them, but of course introducing drugs into a residential rehabilitation facility is a serious matter even when that may have been inadvertent. 7Mr Genua was given the opportunity of remaining at the program with a support person other than his partner, but he refused. Thereafter he went downhill, committing a large number of offences which I will shortly describe and which culminated in the offender planning to commit suicide. Fortunately he was arrested before he could carry out what he had planned to do. 8Mr Genua's more recent offending commenced when he stole a car from a car yard on Parramatta Road. He simply got into the vehicle, which was not locked with the keys in the ignition, and drove off. When I sentence him for that matter he asks that I take into account seven other offences. Firstly, stealing a white Toyota Hilux on 8 August 2001, when the accused got into the unlocked Hilux, which had its keys in the ignition and drove away. The next offence to be taken into account is another one of taking and driving a conveyance, when the offender once more took a car which had been left unattended with the keys in the ignition. That car had been left in that condition by staff at a carwash. He used an unauthorised numberplate when driving that vehicle and that represents another offence to be taken into account. 9He also asks that I take into account four other offences committed on 25 August 2011. They began when the offender took a car that was not his from a service station. Once more it had been left with the keys in the ignition, this time when the owner went to pay for fuel. Two days later on 27 August police saw the stolen vehicle and attempted to stop it. The offender then drove the stolen vehicle in a way which caused an impact with another vehicle, negligent driving, and then when police ran to arrest him he resisted. On top of all of that he should not have been driving in the car in the first place because he was unlicensed. 10On 11 August the offender robbed a woman by the name of Tanya Stevenson. She was standing waiting for a lift when the offender approached her and grabbed her handbag. They struggled for possession of it before one of the handles broke which enabled Mr Genua to take the handbag away. When I sentence him for that matter he asked that I take into account eight other offences. An attempted robbery committed two days earlier when the offender pushed a woman named Mari Ly to the ground and tried to drag her handbag out of her possession. Ms Ly would not let go and there was a struggle which only ended when a bystander intervened. Not surprisingly the victim of that offence was left crying and shaking. 11The next matter he wants me to take into account is a robbery committed on 12 August and a steal from person offence committed at the same time. A couple in their seventies were walking along the road, one of them carrying a handbag and the other carrying a black case which contained hearing aids and accessories. The offender pushed one of those people, a seventy-seven year old man, which caused him to fall backwards, landing heavily on his back, hitting his head on a concrete floor. Rather than stopping and helping this poor unfortunate man Mr Genua simply took the black case that he had been holding and grabbed the handbag off that man's wife and drove away. 12A few days later he committed yet another offence which he asked me to take into account. He had been using a stolen vehicle in the course of his offending, it was time to get rid of it so the offender simply set it on fire. Unfortunately the owner of that vehicle had no insurance cover so the loss to him was substantial. 13The next matter to be taken into account occurred on 24 August. The offender was seen by police getting into a stolen motor vehicle. When they tried to arrest him the offender drove the vehicle towards a police officer who had to jump out of the way to avoid being hit. He did it again, this time to a different police officer and then drove away. This is an offence of using an offensive weapon with intent to prevent his lawful apprehension. As he was driving away he drove in a dangerous manner which led to him colliding with the front of an unmarked police vehicle. Of course he did not stop, he simply drove away and that is an offence of driving in a manner dangerous to the public. 14The final two matters to be taken into account when I sentence him for the robbery of Ms Stevenson occurred on 27 August 2011. On that day he was arrested. Four vials of Xanax tablets and a resealable bag containing forty-six grams of cannabis leaf was found upon him. His possession of those substances represents the two final matters to be taken into account when I sentence him for the robbery of Ms Stevenson. 15The next matter for which the offender Mr Genua must be sentenced in a substantive way is an offence of stealing from a person. On the same day he robbed Ms Stevenson he also robbed Anthea Lois. She was with her cousin and her cousin's three young children in a car park. She had put her handbag on top of a shopping trolley and was standing next to it. The offender grabbed it and ran away and got into a motor vehicle. Ms Lois did not give up, she did not take the loss of her handbag lightly. She grabbed the door of the motor vehicle trying to open it and screamed at him, "Give me back my handbag, please". He drove away, but Ms Lois' hand was stuck in the door. When she removed her hand she fell to the ground and her right foot and the right side of her body were run over. She was taken to hospital where she was treated for bruising and pain to her back. When I sentence him for that matter I am to take into account the offence of driving recklessly. Although the material tendered by the Crown does not make it clear, that presumably relates to the way the offender drove away from Ms Lois, running her over in the process. 16The day after those offences the offender committed another steal from person offence. Shortly after the attack on the elderly couple that I had mentioned earlier the offender took the handbag of a Ms Belinda Donovan from a shopping trolley car park. That offence of stealing from a person is a substantive matter for sentence. He asks that I take into account another offence of stealing from a person relating to a handbag which he took at exactly the same time. Once more the victims of these offences did not take matters lightly. They too attempted to stop the offender, who had got into the stolen utility, but the offender drove away. Fortunately on this occasion no one was injured. 17As well as that offence of stealing from a person the offender asks that I take into account two other offences of stealing from a person committed earlier in time, one on 17 July and the other on 18 July. On the 17th the offender took a handbag which was on the passenger seat of a car parked in a car park. On the 18th the offender did a similar thing, this time after telling the driver she had a flat tyre and removing her handbag as she got out of the vehicle to have a look. 18It is no exaggeration to say that all of the offences committed by the offender in the middle of 2011 justify a description of Mr Genua as being a one man crime wave. 19Some time ago now the Court of Criminal Appeal explained the seriousness of bag snatching offences. It was pointed out that offences such as those just described are a serious breach of the peace. Bag snatching offences are easy to commit, especially when the victims are elderly or distracted by the need to care for children, and the offender's efforts in taking their handbags, preventing their recovery and preventing his arrest show that he was willing to resort to violence and risk injuries to innocent people without much hesitation at all. That he committed these offences after being given bail so he could demonstrate his rehabilitation is a serious aggravating feature of these offences. The many victims of his offending in 2011 are entitled to be less than impressed with the circumstances that have led the criminal justice system operating in a way which meant that they were the victims of serious crimes. 20Mr Genua is now forty-three years of age. He gave evidence during the sentence proceedings before me. I formed the impression from what he said and the way he said it that he was a totally broken man, who now had enormous regret for the way he had been living his life and for the situation he now finds himself in. 21To say that Mr Genua's upbringing was dysfunctional is an understatement. His hardships began before he was even born, his mother was a heroin addict. Things did not get much better after he was born. His mother worked as a prostitute and she would take him with her whilst she worked. His parents separated and he moved between living with his mother and his father and at one stage was housed in a boys' home after being labelled as uncontrollable. He received no real guidance from his parents as he grew up and commenced to use drugs, starting with cannabis, but soon progressed to heroin. 22He has had a heroin addiction for many, many years. Of course the circumstances in which a person becomes addicted to drugs are important in deciding the extent to which that addiction can be treated as a mitigating factor when they commit offences to obtain money for drugs. The offender is not some rich kid who started using drugs while attending dance parties at a fashionable nightclub. To the contrary, the offender is a person whose use of drugs was to some extent inevitable given the way that he was brought up. 23Another of the challenges that Mr Genua faced, which no doubt had a devastating effect upon him, was that he was sexually assaulted when he was about twelve years of age and in his mother's care. 24He has committed a number of other offences in the past and served sentences in prison. During one of those times in prison he was sexually assaulted again, this time as an adult. As a result he is now on protection. I will take into account that there is a risk he will serve the remainder of his sentence on protection, and there is also a risk that that will involve harsher conditions of custody than would otherwise be the case. 25As I trust I have made clear I am satisfied that Mr Genua is genuinely remorseful, both as regards the effect of his offences on the many victims of his crimes, but also as regards the effect of his offending on those close to him. 26Although he has spent most of his life in gaol he commenced a relationship with a lady in 2007. They had one child and she had three children from a former relationship. However, since the offender returned to custody that relationship is no longer on foot. She has visited him only once and provided him with an ultimatum which has impressed upon Mr Genua the need to change the way that he has been living his life up until now. 27Consistent with his remorse he has pleaded guilty. His pleas of guilty to the 2011 matters were made at the earliest opportunity and so the sentences I will impose upon him for those matters will be twenty-five per cent less than they would otherwise have been. The pleas of guilty to the earlier matters were late, but nevertheless there was a utilitarian value attached to them and so I will discount the sentences I would otherwise have imposed for those matters by ten per cent. 28The offender's desire to rehabilitate is, I am satisfied, genuine in the extreme, but as he well knows, as do I, that rehabilitation is not going to be easy. As he explained in his evidence he has difficulty coping in the community. One of the ways that he responds to stress in the community is to use drugs, he knows that this must change. 29The principle of parity obviously applies so Mr Genua should not have any justifiable sense of grievance when he compares the sentences I impose upon him with those I impose upon his co-offenders. On the other hand, of course, he committed the 2011 offences alone so that must be borne firmly in mind. Another factor concerning parity is that when I sentenced Mr Skinner I did so on the basis that he had abandoned the conspiracy before he was arrested, that is, he had given up on the idea of committing the offence and was heading home. Mr Genua told police on his arrest that he was heading home but did not give evidence that this meant that he had abandoned the idea of continuing on with the plan to commit the offence at some later time. 30I now turn to look at Mr Hardy. Nathan Hardy is now thirty-seven years of age. His involvement in criminal activities began when he was but thirteen. What led to him starting a life of crime at that young age was probably a combination of factors flowing from a single source, namely, his father's behaviour. Mr Hardy's father was violent, drank to excess and committed crimes. In those circumstances Mr Hardy was often unsupervised as a child. His mother did her best, but times were tough. Having watched his father bash his mother unconscious on several occasions it is not surprising that he would occasionally stay with friends or live on the streets. Whether he was at home or elsewhere criminality was a normal state of affairs for him. 31It is not only Mr Hardy who has responded to those conditions by committing criminal offences, all four of his siblings have spent time in custody for their offending. He gets on well with almost all his brothers and sisters. His poor relationship with one brother arises out of the following circumstances, he had been in a de facto relationship with a woman for twenty years and, they have two children together. However, whilst he was in custody in 2009, his partner began a relationship with his older brother. Upon his release Mr Hardy was told that their relationship was over. This led to what a psychologist described as a decline in his psychosocial functioning and it was during this time that he committed the offence for which he must be sentenced. 32Mr Hardy has also had a significant level of problems with drugs. He started with cannabis and speed at twelve, commenced drinking alcohol to excess at thirteen and began to use heroin at the age of seventeen. On occasions he has used other drugs as well such as cocaine. In common with many offenders who are no longer young men Mr Hardy has found his time in custody on this occasion harder than it has been in the past. He is disappointed that plans which he had for his son to live with him had been thwarted by his current period in custody and told his psychologist that his son was angry at him for wrecking the plans that had been made. 33Mr Hardy denies his guilt and so does not express his remorse for his offending on this occasion. Notwithstanding that, there are some prospects of the offender rehabilitating himself, but it has to be said they are guarded given the level of his abuse of drugs and the regularity of his prior offending. Clearly, upon his release from custody Mr Hardy will need an extended period of supervision on parole in order to assist him to gain community living skills and to deal with his difficulties with drugs. 34It is unfortunate that Mr Hardy has spent so long in custody before being sentenced. The psychologist's report suggests the referral to the Compulsory Drug Treatment program would assist Mr Hardy's rehabilitation. However, given the length of time remaining in Mr Hardy's nonparole period, which I will shortly announce, he does not qualify for a referral. Of course it would be quite wrong for me to extend the period of Mr Hardy's incarceration simply to get qualified for a referral. 35Would you stand up please, Mr Hardy. Mr Hardy is sentenced to imprisonment. I set a nonparole period of three years to date from 12 November 2009. I set a head sentence of five years. Mr Hardy is thus eligible to be released to parole very shortly on 11 November 2012. 36Have a seat, Mr Hardy. 37In the case of John Genua I propose to impose an aggregate sentence. The sentences I would have imposed for the individual offences are as follows: The offence of conspiring to commit a robbery, four and a half years. For the offence of robbery of Ms Stevenson, three years. For the offence of steal from a person concerning Ms Lois, two years. For the offence of steal from a person Belinda Donovan, two and a half years. For the offence of take and drive a conveyance, eighteen months. 38The aggregate sentence I impose consists of a nonparole period of four and half years with a period of eligibility for parole of three years, making a total sentence of seven and a half years. That is to date from 10 December 2010. Thus Mr Genua will be eligible to be released to parole on 9 June 2015.