District Court New South Wales Medium Neutral Citation: R v Young; R v Douglas [2012] NSWDC 278 Hearing dates: 14 December 2012 Decision date: 14 December 2012 Before: Berman SC DCJ Decision: The offenders are sentenced as follows. Mr Young is sentenced to imprisonment. I set a non parole period of 21 months with a head sentence of 3 years and 6 months. Sequences 1,2 and 5 are formally withdrawn. Mr Douglas is sentenced to imprisonment . I set a non parole period of 2 years and a head sentence of 4 years . Sequences 1 and 3 are formally withdrawn. Catchwords: CRIMINAL LAW - Sentence Forms 1 - Joint criminal enterprise - Assault occasioning actual bodily harm - Common assault - Destroy/damage property - Offenders both on parole at time of offending Legislation Cited: Mental Health Act Category: Sentence Parties: The Crown Damien Raymond Young Representation: Ms C Feiner - Young Mr T Edwards - Douglas Director of Public Prosecutions File Number(s): 2011/202443; 2011/221999 SENTENCE 1HIS HONOUR: On 20 June 2011 the offenders Damien Raymond Young and Dwayne Daniel Douglas, while both on parole, committed a series of offences arising out of a relatively small debt, $150, which the offenders believed was owed by Charmaine Allen to a friend of theirs, Shane Cook. 2Mr Cook was dying. He had lent $150 to Ms Allen but the money had not been repaid. On 20 June both offenders were at Mr Cook's unit when they began discussing this circumstance. Mr Douglas had known about the debt for some time. The Crown suggests that Mr Young also knew about it before that evening but Mr Young says he only learnt about it that evening. It does not matter. What does matter is that, somewhat incensed at their dying friend's generosity having been abused by Ms Allen, the offenders decided to go and get the money from her. 3She lived with a number of other people. Jennifer Fielding, Brad Duncan and Darren Hilliard in a unit in Sutherland. At about 11 o'clock Ms Allen and Mr Hilliard were in their bedroom. Ms Fielding had just had a shower and Mr Duncan was watching television in the lounge room. Ms Fielding, who was wearing a singlet, underpants and a dressing gown, heard a knock at the door. The two offenders entered the unit. Mr Young made their intentions clear when he said somewhat eloquently, "Where's that fat slug?" They then made their way through to the lounge area. Ms Fielding saw that Mr Young was holding a thick length of chain with a large padlock attached while Mr Douglas was holding a thirty centimetre hammer. They were armed with those weapons with the intention of intimidating the occupants of the unit. Indeed that is the offence to which they pleaded guilty and for which they must now be sentenced. 4Ms Fielding expressed surprise and suggested that they were doing the wrong thing. Mr Young, who appears to have been somewhat taking the lead at this stage said that Ms Allen had ripped off his mate, Shane Cook. Ms Fielding bravely tried to stop them from approaching Ms Allen's room but she heard the commotion and came out and said "What's going on?" She saw Mr Douglas wrestling with Ms Fielding during which he dropped the hammer. It was at that stage that Mr Young confronted Ms Allen's partner, Mr Hilliard near Ms Allen's bedroom. He had some of the chain wrapped around his hand and was dangling the remainder. He said "Do you want some of this too you weak dog" and swung the chain as though he was going to hit him. Mr Hilliard, who had done nothing wrong, said "What have I done, I've done nothing to you mate" and Mr Young then walked away. 5That is an offence of common assault upon Mr Hilliard which appears on the Form 1 attached to the indictment concerning Mr Young. When Ms Allen came into the lounge room, she saw Mr Young and Mr Douglas. Mr Young was swinging the chain around saying "How could you rip someone off that's dying. No-one rips off my fucking mates." 6I mentioned before that there had been a struggle over the hammer between Mr Douglas and Ms Fielding. Ms Fielding managed to get the hammer first after Mr Douglas dropped it but in the struggle which ensued, she fell over backwards onto the lounge. Mr Douglas continued to try to get the hammer out of her possession and so she eventually let go. As a result of the struggle Ms Fielding sustained grazes and welts to her forearm. Mr Edwards who appears for Mr Douglas today tendered a photograph showing the injuries that Ms Fielding suffered. They were not terribly serious in the spectrum of offences covered by the description, "actual bodily harm". That represents an offence of assault occasioning actual bodily harm in which appears on the Form 1 attached to the indictment concerning Mr Douglas. 7Then both of the offenders continued to act aggressively, in particular Mr Douglas began to hit the wall beside Ms Allen with the hammer. He managed to break a mirror, a picture frame and dented the wall. He demanded money from her, once again complaining that she had ripped Shane Cook off and that he was dying. She tried to explain to Mr Douglas that that had been sorted out. The damage occasioned to the wall has formed the basis of another offence on the Form 1, this time concerning both offenders, of destroying or damaging property, Mr Young's criminality being based on the circumstance that his offence was committed as part of a joint criminal enterprise with Mr Douglas. 8Then we come to another common assault. After the assault on Ms Fielding there was a struggle between Mr Douglas and Ms Allen. Following that struggle Mr Douglas swung the hammer and hit the wall beside Ms Allen's head and that represents an offence of common assault which is on the Form 1 concerning Mr Douglas. 9Eventually Ms Allen and Mr Hilliard sought refuge in their room and called the police. They held the door closed and at some stage there was a kick at the door and a hole appeared in the door. The two offenders then left the room. As a parting shot Mr Young said "If you ring the coppers or the coppers get involved, it will come back on you tenfold". 10The offenders were arrested relatively soon afterwards. Mr Young, when he was arrested, displayed such concerning behaviour that he was sedated by the Mental Health team at Sutherland Hospital. Mr Douglas knew that police were after him but told Mr Cook that he would hand himself into police after he had spent the last few days with him. He was arrested a few days later. 11Of course, neither offender should have a justifiable sense of grievance when he compares the sentence imposed upon him with the sentence imposed upon his cooffender. Although it appears that, initially at least, Mr Young played the more aggressive role and it was he that was doing the talking and he supplied Mr Douglas with the hammer, once matters started, it was Mr Douglas who was much more enthusiastic in what he did. Looking at their circumstances objectively, that is what they did during the commission of the offences, it has to be said that Mr Douglas's conduct was more criminally serious than Mr Young's although there is not a lot in it. 12I mentioned before that both offenders were on parole at the time. Both offenders have lengthy criminal histories including for offences broadly of the same type for which they are to be sentenced today, although two things need to be noted in both cases. Firstly, that this is the first time they have appeared for sentence in this court and secondly, that the time they have both spent in custody awaiting sentence, is the longest time that they have spent in gaol so far. 13It has been some time since the offenders were arrested until today. I should explain why there has been a delay. Initially the offenders pleaded not guilty. They changed their pleas when fresh indictments were presented against them on the first day that their matters were listed for trial. This has led to some submissions as to the appropriate discount for the utilitarian value of the pleas of guilty. Having looked at the matters realistically, I am satisfied that whilst the pleas were late, the circumstances of the negotiations which led to the pleas being entered suggest that slightly more than ten percent, in fact approximately fifteen percent, should be allowed for the utilitarian value of those pleas. 14Both offenders are people upon whom it would be appropriate to reduce the level to which general deterrence plays a part in these sentences that I will impose upon them. Mr Douglas was seen by Dr Nielssen. Dr Nielssen noted that there was a history of psychiatric illness in Mr Douglas's case, most obviously demonstrated by an involuntary admission to a psychiatric ward when Mr Douglas was scheduled under the Mental Health Act. Dr Nielssen found a family history of mood disorder, substance abuse and possibly schizophrenia and diagnosed Mr Douglas with a bipolar mood disorder although when he was seen by Dr Nielssen, that was in remission. On top of that, Dr Nielssen regarded Mr Douglas as having a substance dependence and abuse disorder. 15Mr Douglas has had a number of challenges as he grew up. At a very young age he was sexually abused by an older boy. He then suffered a double tragedy in his life when one of his brothers was killed in a car accident. The driver of that car was another brother who subsequently committed suicide. He has also suffered the loss of a former girlfriend who died through a drug overdose. His father died from cancer before Mr Douglas got to know him and of course, there is the death of Mr Cook, the person with whom the offender was living at the time of the offence. 16To say that Mr Douglas had a challenging life is something of an understatement but the problems were compounded by the offender's substance abuse. He began using alcohol and cannabis from the age of twelve, took heroin from the age of fifteen, and was addicted to that drug for about ten years. He also uses and abuses other forms of medication. Of course, ordinarily, the abuse of drugs is not a mitigating factor in sentencing but given the early onset of the offender's substance abuse, it has to be recognised that he was not able to reason as an adult would about his decision to first begin drinking and using drugs. 17At times the offender appears to have done reasonably well (when not in gaol) when he engages with mental health services and receives consistent treatment for his bipolar disorder. There is thus some hope for the future should the offender, upon his release from custody, engage with mental health services and do what is required of him. He is now thirty two years of age and has spent a significant period of his earlier life in custody. He says that now having spent the longest period of custody that he has ever experienced, he wishes to change his ways. I have got no doubt that that is a genuine desire but I do not want to underestimate the challenges that Mr Douglas will face upon release. He does recognise that taking his medication on release will be an important aspect of increasing the likelihood that he will stay out of trouble. He does have family support. His mother, to her great credit, supports him and is present in court today. He expressed his remorse for what he had done. It appears to have been a matter that the offender was stewing over for some time and became distressed at watching his friend die, he responded in a completely inappropriate, violent and criminal way. There is no challenge by the Crown, that I observed to the suggestion that Mr Douglas is deserving of a finding of special circumstances in his favour. 18Mr Edwards relied on some statistics from the Judicial Commission. I want to briefly say some things about those statistics and the enhancement that the Judicial Commissioner has recently made. Previously, all that was available under the sentencing indication system were graphs setting out the sentences imposed for particular offences. There could be filters applied but the High Court in particular has expressed a view that statistics of that type were of little utility. There is now an enhancement whereby someone looking at the sentencing statistics can obtain some information about the cases behind the statistics. Mr Edwards did what he could in this case, but little further information was obtainable. 19Sometimes when the cases behind the statistics are examined, hyperlinks are obtained to District Court decisions which have been published on Caselaw. Unfortunately none of the five cases that Mr Edwards produced were in that category. The enhancement is at an early stage and it is to be hoped that as time goes on, the increasing use of Caselaw will lead to much more valuable information being available through the sentencing indication system. But I wish to say just one more thing before I move to the case involving Mr Young. Not all District Court judges publish their judgments and sentences on Caselaw. Some of us do, but many do not. The enhancement will mean that judges like me who do publish on Caselaw, will perhaps have a disproportionate influence on the statistics and thus, District Court sentencing. I am quite content with that but others may not be. 20I now move to the case involving Mr Young. Mr Young's background is also a troubling one. His first involvement with mental health services came at the tender age of three and a half. He has had a lengthy history of behavioural problems, and for example, he began smoking cannabis at only six. Mr Young understands that he has, as he told Dr Adams, longstanding behavioural problems. Those problems manifested themselves in very many ways: fights at school, truanting, difficulties with teachers, he was made a ward of the State and placed in foster care at a fairly young age but eventually ran away and went back to living with his mother. He has a developmental disability too. 21The entirety of Mr Young's problems mean that, as I mentioned earlier, he too is a person upon whom it is inappropriate to impose a sentence reflecting a substantial component of general deterrence. He is serving his sentence on protection but this is not that form of protection where he is effectively isolated from other human contact. There is a risk of course that in future the circumstances of his protective custody will change and things might get worse for him. I will take that into account. The offender is supported by his sister, she too is in court today. Upon his release he plans to live with his sister but he ultimately wishes to take up an offer that has been made to him, to live with a friend on a farm. Mr Young finds it difficult when there are a lot of people around. He would he thinks, do better where there are fewer people such as in a rural community. 22Subjectively and this is of course, relevant to the issue of parity, there is not a lot to distinguish between the offenders. Mr Douglas will receive a slightly heavier sentence than Mr Young because of his more aggressive role and because there are more serious matters on his Form 1 than there are on Mr Young's. On a couple of occasions during these remarks I have mentioned that the full measure of general deterrence is inappropriate for these offenders but there is nothing to suggest the inappropriateness of taking into account a large measure of specific deterrence in both cases. The offenders both have lengthy criminal histories. They were both on parole. The chances that they will stay out of trouble in the future must surely be affected by the level of punishment they receive when they commit further offences. They must know that if they are going to act this way, they will go to gaol for long times. Both of them of course will benefit from an extended period of supervision on parole. When they have been assisted at times things have gone better than when they have not received assistance. If they comply with their conditions of parole, there is a greater chance that they will commit no further offending whilst on parole and that of course is of benefit to the community. 23I sentence the offenders as follows. Mr Young is sentenced to imprisonment. I set a nonparole period of twentyone months to date from 21 June 2011. I set a head sentence of three years and six months. Mr Young is thus eligible to be released to parole on 20 March 2013 next year that is. 24Mr Douglas is sentenced to imprisonment. I set a nonparole period of two years and a head sentence of four years to date from 8 July 2011. Mr Douglas will be eligible to be released to parole on 7 July 2013. 25HIS HONOUR: Is there anything else? 26PACE: Yes your Honour. The Crown would ask that sequences for Mr Young, sequences 1, 2 and 5 are formally withdrawn. 27HIS HONOUR: Thank you I will note that they are withdrawn. 28PACE: And for Mr Douglas sequences 1 and 3 are formally withdrawn. 29HIS HONOUR: I will note that as well 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2013