District Court New South Wales Medium Neutral Citation: R v John Michael Camilleri [2014] NSWDC 235 Hearing dates: 17 September - 1 October 2014, 14 November 2014 Decision date: 12 December 2014 Before: Mahony SC DCJ Decision: Full time custodial sentence. For Orders see [58] and [59] Catchwords: Assault and steal motor vehicle in company; robbery with corporal violence; joint criminal enterprise Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: Cahadi v The Queen (2007) 168 A Crim R 41 KR v R [2012] NSWCCA 332 Manly v R [2014] NSWCCA 59 Pearce v The Queen (1998) 194 CLR 610 R v Barker, R v Gibson [2006] NSWCCA 20 R v Cotter [2003] NSWCCA 273 R v Hoschke [2001] NSWCCA 317 R v Matthews [2007] NSWCCA 294 R v Sukkar [2011] NSWCCA 140 Category: Sentence Parties: Director of Public Prosecutions (Crown) John Michael Camilleri (Offender) Representation: D Robinson (Crown) R Munro (Offender Camilleri) File Number(s): 13/199871 Publication restriction: Nil remarks on sentence 1On 1 October 2014 the offender was found guilty of two counts on the Indictment. They were: (1)Count 1 - On 21 June 2013 at Prospect in the State of New South Wales, whilst in the company of each other, assaulted Jeremy Henley with intent to take a motor vehicle, namely a Holden Commodore, registration AFB 23V, without the consent of the person in lawful possession of the motor vehicle, namely, Jeremy Henley, and then took and drove the said motor vehicle. The charge was brought pursuant to s 154C(2) of the Crimes Act 1900 and has a maximum sentence of 14 years imprisonment and a standard non-parole period of 5 years. (2)Count 3 - On 21 June 2013 at Prospect in the State of New South Wales, robbed Jeremy Henley of his property, namely, a sum of cash and key card, and immediately before the robbery used corporal violence upon Jeremy Henley. The charge was brought pursuant to s 95(1) of the Crimes Act 1900 and has a maximum penalty of 20 years imprisonment. 2The trial, which commenced on 17 September 2014, was a joint trial with identical charges being tried against the co-accused, David Hanna. 3The sentence hearing took place on 14 November 2014. Circumstances of the Offending 4Based on the evidence at trial, I make the following findings of fact. The evidence comprised the Crown case against the offender and co-offender, neither of whom gave evidence. Evidence was called on behalf of the co-offender. 5The offender had agreed with Jeremy Henley in June 2013 that Mr Henley would drive him, the offender having lost his licence. That agreement was reached on Monday 17 June 2013, and the agreement was put into effect on several days during that week. 6On Friday 21 June 2013 at approximately 8.20pm Mr Henley picked up the offender and his girlfriend, Ashley Cross, at the Hungry Jacks outlet on Great Western Highway at Prospect. After purchasing some food, they drove to Myrtle Street Prospect and parked outside 134 Myrtle Street. The cooffender, David Hanna, lived at 132 Myrtle Street. The offender alighted from the car and went into those premises. Mr Henley was waiting in the car, together with Ms Cross, who was seated in the backseat on the passenger side. After waiting for 15 minutes, Mr Henley rang the offender and was told that he would be out shortly. 7A few minutes later the offender walked out of the property and approached the driver's side door of the car. The window was down. The offender placed his left arm on the roof of the car and spoke to Mr Henley. He demanded the car. 8As that was happening, the co-offender walked out of the property towards the car. He said to the offender "Haven't you done it yet? I'll do it" and then reefed open the driver's door and proceeded to assault Mr Henley, who had his seatbelt on. It was an attack by the use of fists, head butts, kicks and knees. 9During the assault, Mr Henley heard the offender telling him to be quiet or that he would be hurt more. He was then told to get out of the car. He got out of the car and stood up and blacked out and then recalled kneeling on the ground. The offender was standing behind him and demanded his phone and his wallet. He told him his phone was in the car and handed the wallet behind him. He then felt the wallet hit him as it was thrown back to him. The offender then got in the driver's seat, the co-offender in the front passenger seat, and the vehicle drove off. That is the conduct that comprises Count 1 in the Indictment. 10Mr Henley proceeded to the side of an adjacent property and rang 000. During that phone call he realised that his Commonwealth bank key card was missing. Later, he told police that approximately $300 in cash was also taken from his wallet. That is the conduct that is the subject of Count 3 in the Indictment. 11The vehicle was subsequently identified on CCTV footage taken at McDonalds at St Clair, Woolworths St Clair, and the 7/11 store at St Clair. 12On 1 July 2013 the offender underwent an ERISP interview in which he gave a false alibi to the police, namely, he told them that he had been staying at the house of a friend's, Joe Ruffalo, and denied involvement in the offences. 13The vehicle the subject of Count 1 was observed outside premises the offender was associated with at 20A Wattle Avenue St Marys on the following day, 22 June 2013. The offender was arrested on 1 July 2013. He has spent the following periods in custody in respect of this offence: (i)1 July 2013 to 15 May 2014 (10 months 15 days) (ii)1 October 2014 to 12 December 2014 (2 months 12 days) The Sentence Hearing 14The Crown bundle (exhibit A) included a Certificate pursuant to s 166 of the Criminal Procedure Act 1986 in respect of the following related offences: (1)Sequence 4 - Dishonestly obtain financial advantage. This offence involved the use of the debit card of Jeremy Henley to purchase $35.50 worth of food from McDonalds St Clair. (2)Sequence 5 - Dishonestly obtain advantage. This involved the use of the same debit card to dishonestly purchase $79.92 worth of goods from Woolworths St Clair. (3)Sequence 6 - Dishonestly obtain financial advantage. This involved use of the same debit card to purchase $46 worth of goods from 7/11 Service Station Colyton. 15The criminal antecedents of the offender included a number of possess prohibited drug offences for which he had been fined. It also included two drive vehicle with illicit drug present in blood offences and one offence of custody of a knife in a public place. The history included no convictions for offences of violence. 16The Crown bundle included a victim impact statement from Jeremy Henley which outlined the injuries suffered by him as a result of the assault. He stated that whilst the physical effects lasted two weeks, the psychological impact had been much greater and had affected his life to the present day. That included flashbacks of the event. 17The offender tendered a report from Ms Lia McInnis dated 12 November 2014 (exhibit 1). Ms McInnis is a qualified psychologist who interviewed the offender on 5 November 2014 and completed a number of psychometric assessments of him. 18The report outlined the offender's family background. There was no history of drug or alcohol abuse or domestic violence, however, the offender spent most of his time as a child with his grandparents, and lived with them permanently from age 10. Following the death of his grandfather in 2004 the offender's mental health declined and his drug use escalated and remained high until his entering into custody in July 2013. He now has the support of his family. 19The offender has not worked since 2010, and prior to that time, was engaged in cyclical unskilled work. He wishes to obtain employment skills. He now has a daughter who was born in March 2014 and wishes to focus on his relationship and family on his return to the community. 20Counsel for the offender disavowed reliance on [30] and [31] of the report of Ms McInnis. Those paragraphs contain a version of the offending given to the author by the offender, which is somewhat inconsistent with the evidence at trial and the verdicts entered by the jury. 21The psychometric testing demonstrated that a major contributing factor to the offender's criminal behaviour was his drug dependence. He is of average intellectual capacity and should be able to engage in vocational courses to increase his future employment prospects. He is well motivated to return to the community to be with his partner and young daughter. It was the author's opinion that he is a low risk of reoffending. Crown Submissions 22The Crown submitted that an aggravating feature of the offending here was that the offender was on bail in relation to an offence he was charged with on 2 May 2013 of detaining a person for advantage in company and demand property with menaces. Those charges, however, were subsequently withdrawn. 23The Crown submitted that whilst the actions of the offender and cooffender were different, they were engaged in a joint criminal enterprise and therefore each was responsible for the actions of the other. The evidence established beyond reasonable doubt that the offender was by the door of the car making a demand for it and that he was the one who took the victim's wallet. 24The Crown submitted that [30] and [31] of the report of Ms McInnis established that he was still not telling the truth about what his involvement was, nor accepting responsibility for his conduct. His version of the offending was given to minimise his criminality. 25The Crown submitted that along with general deterrence, specific deterrence was important to send a strong message to the community that this type of criminal conduct will not be tolerated. 26The Crown submitted that the victim was a vulnerable person because of his relationship with the offender, namely, that he was employed as his driver. This did not constitute, however, him being a vulnerable person within the meaning of that phrase in s 21A of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A"). 27With respect to special circumstances pursuant to s 44(2), the Crown acknowledged that it was the first full time custodial sentence for the offender, that he has had a substantial drug dependency, and that he appeared to be a person who would benefit from counselling before his return to the community. The Crown therefore submitted that the Court could find special circumstances, but that the Court should not alter the usual ratio of the non-parole period by a large amount. Submissions on Behalf of the Offender 28Learned counsel on behalf of the offender submitted that the Court should be cautious not to punish the offender for his plea of not guilty. Secondly, the offender was not entitled to any discount for remorse and thirdly, on the question of planning of the offence, the Court would not be satisfied beyond reasonable doubt as a finding of fact that planning was either an aggravating or a mitigating factor to be taken into account pursuant to s 21A. Rather, it was somewhere in between. 29Referring to R v Barker, R v Gibson [2006] NSWCCA 20, counsel submitted that in assessing the objective seriousness of the offending here there were ten factors to be taken into account in accordance with the judgment of Howie J (with whom Basten JA and Hall J agreed) at [63]. Counsel submitted that being in company was an element of the offence and therefore not an aggravating feature. It was further submitted that because the offender was found guilty of Count 1, that it did not necessarily follow that the victim was bashed, although the Court would find that an assault took place. It was for the Court to determine beyond reasonable doubt the level of violence inflicted. The jury had rejected the Crown case that the offender had, at the time when he demanded the vehicle, a gun secreted in his pants. 30It was submitted that on the basis of the evidence, including that of the 000 call, that the car was not handed over voluntarily to the offender and his cooffender. The CCTV evidence did establish that within 10 minutes the offender was driving the vehicle. With respect to the violence inflicted on the victim, the evidence established that it was not the offender but the cooffender. The joint criminal enterprise involved the offender being ready, willing and able to assist the co-offender if required, however, his role was quite limited. 31With respect to Count 3, it was submitted that the Court would not be satisfied beyond reasonable doubt that $300 cash was stolen from the victim. It was not corroborated in any way and not reported by the victim to 000 and therefore it beggared belief that that sum was stolen. Counsel submitted that if the cash had been stolen, the offenders would have used it at McDonalds rather than pay by debit card also stolen from the victim. 32In applying the factors outlined by Howie J in Barker, counsel submitted that there was a low level of objective seriousness in the criminal conduct involved, given the low level of violence displayed, the fact that it happened in a short period of time and there was no damage to the vehicle. Counsel submitted that the criminal conduct in Barker was a more serious example of this offence, particularly given the offender's role, which was limited. In Barker the offender received a non-parole period of 18 months. In the case of R v Matthews [2007] NSWCCA 294 a nonparole period of 12 months was set in respect of a factual situation which was not dissimilar from the present offending. 33Learned counsel submitted that there were subjective features that the Court had to take into account here. The offender's prospects of rehabilitation were good, he was 29 years old with no significant criminal history. He had a number of driving and low level drug matters for which he had received fines. For the period between May 2014 and 1 October 2014 he had been on bail with no breach, and there had been no further offending since this offence on 21 June 2013. 34Counsel submitted that the Court would be satisfied that there were special circumstances here pursuant to s 44(2), as the offender had demonstrated a positive response to rehabilitation for the five months whilst he was on bail and the fact that his main risk factor was his drug dependency, for which he required treatment and rehabilitation. Further, it was his first full time custodial sentence. 35On the question of accumulation of sentences, it was submitted that the conviction on Count 3 arose from the same incident and there was limited violence involved. Any accumulation therefore, it was submitted, should be measured in months. 36In reply, the Crown submitted that the offender had to be sentenced on the basis of his involvement in a joint criminal enterprise for which the Court would be satisfied beyond reasonable doubt on the evidence was consistent with the way the matters were put to the jury. It was submitted that the Court could not differentiate the roles played by the offender and his co-offender. In respect of the offences pursuant to the s 166 Certificate, verdicts of guilty to Sequence 4 and 6 should be entered with short concurrent fixed terms being the appropriate sentences. The parties agreed that in respect to Sequence 5, the Court would find a verdict of not guilty as it could not be satisfied beyond reasonable doubt of the offence in the circumstances that the co-offender went into Woolworths by himself. Determination 37In respect of the offence in Count 1, for an offence pursuant to s 154C(2) of the Crimes Act 1900, I find, having regard to all of the circumstances of the offending, that the objective seriousness of the offence here fell below the mid-range of objective seriousness of offending for such an offence. However, it was still serious offending and just below the mid-range of objective seriousness. 38With respect to the offence in Count 3, pursuant to s 95(1) of the Crimes Act 1900, I find that the offending was within the lower range of offending for such of offence. The victim suffered physical injuries from which he had recovered within a period of two weeks. He was personally vulnerable by virtue of him having been previously been diagnosed with Autism Spectrum Disorder (ASD) which had amplified the psychological impact on his life of the violence perpetrated on him. 39I have also had regard to the victim's impact statement tendered by the Crown (exhibit A) and the impact that these offences have had on both the victim's physical and psychological state. I note that there is no medical evidence against which to assess the victim impact statement, however, it is clear from the manner in which the victim gave his evidence that the offences have had a substantial impact on him. I have therefore taken the victim's impact statement into account, but I make it clear that I have done so not to aggravate the offender's culpabililty. 40I have had regard to the maximum penalty in respect of Count 1 of 14 years imprisonment and the standard non-parole period of 5 years imprisonment, and the maximum penalty in respect of Count 3 in the Indictment of 20 years imprisonment. These are guide posts which I take into account in the sentencing process. 41I accept the Crown's submission that the offender was engaged in a joint criminal enterprise. I am satisfied beyond reasonable doubt on the evidence that the offender and his co-offender agreed to carry out that joint criminal enterprise and therefore that each is equally guilty of the crime, regardless of the part played by each in its commission - see R v Cotter [2003] NSWCCA 273 at [87]. It is therefore inappropriate to assess, with any degree of precision, the role played by the offender in the criminal enterprise - see R v Hoschke [2001] NSWCCA 317 at [18]. It is, however, relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced - see R v Sukkar [2011] NSWCCA 140 per Davies J at [36]. 42In respect of joint criminal enterprise, Latham J, (with whom Whealy JA and Harrison J agreed) said in KR v R [2012] NSWCCA 332 at [19]: "19 What emerges from the statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participants level of culpability stands to be assessed by reference to his/her particular conduct. 20 Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21 Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. 'The concurrence of will and physical and the concurrence of intent and physical act suffices to attract criminal liability': R v O'Connor (1980) 146 CLR 64 at [72], per Barwick CJ. 22 Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt (2004) NSWCCA 19; R v Henry & Ors (1999) 46 NSWLR 346." 43These principles were adopted by Bellew J (with whom Hoeben CJ at CL and Adams J agreed) in Manly v R [2014] NSWCCA 59 at [143]. 44I accept the submission made by learned Counsel on behalf of the offender that the offender should not be punished for his plea of not guilty. However, he is entitled to no discount in respect of remorse for his criminal conduct, and the content of [30] and [31] of Ms McInnis' report tendered on his behalf demonstrate that he has not accepted full responsibility for his part in the offending. 45I find that his offending was borne of his long-term drug dependency and that he has taken some positive steps in the process of rehabilitation towards overcoming that dependency. That was demonstrated by him being on bail between 15 May 2014 and 1 October 2014 with no breach reported, and the fact that there has been no further offending since 21 June 2013. 46The subjective features involving the birth of his daughter in March 2014, and his family's support demonstrate that he is a low risk of re-offending. His need for ongoing drug rehabilitation warrants a finding of special circumstances pursuant to s 44(2) of the C(SP)A. Sentence 47Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 48The maximum penalty (for each offence) and standard non-parole period (for the first offence) are guide posts to be taken into account in considering all of the circumstances of the offending. 49I am satisfied beyond reasonable doubt that the offence was planned between the offender and co-offender. That finding is supported by the facts proven beyond reasonable doubt that the co-offender said to the offender "Haven't you done it yet? I'll do it", and then proceeded to assault the victim. Whilst the offender was engaged in a joint criminal enterprise with the co-offender, his moral culpability in respect of the offending was less than that of the cooffender, having regard to his conduct, together with his subjective circumstances. 50I further find beyond reasonable doubt that the offending in respect of Count 3 involved the stealing of both the debit card of the victim, together with $300 in cash from his wallet. 51I am not satisfied that the fact that the offender was on bail in relation to an offence that he was charged with on 2 May 2013 of detaining a person for advantage in company and demand property with menaces, should be taken into account as an aggravating feature of the offending here, as those charges were subsequently withdrawn. Whilst it is a fact that he was on bail at the time of the offending, the basis for that bail was undermined by the fact that the charges were withdrawn. 52I have also had regard to the fact that general deterrence is important in the sentencing process to send a message to others that this type of criminal conduct will not be tolerated. Specific deterrence is also relevant here. 53I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v The Queen (1998) 194 CLR 610. I have also had regard to the principle of totality referred to in Pearce v The Queen at [45]. There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see Cahadi v The Queen (2007) 168 A Crim R 41. 54I find, and it is accepted by the offender, that there is no alternative penalty other than a full time custodial sentence pursuant to s 5 of C(SP)A. 55I have had regard to the fact that the offender has no previous convictions for offences involving violence. In the circumstances, I intend to sentence the offender in respect of Count 1 to a non-parole period of 18 months, together with an additional term of sentence of 12 months. The total sentence will be 2 years and 6 months. 56In respect of Count 3, I intend to sentence the offender to a period of imprisonment of 12 months to be served partially concurrently with the term of imprisonment in respect of Count 1. 57With respect to the offences that are subject to the Certificate pursuant to s 166 of the Criminal Procedure Act 1986, I intend to sentence the offender as follows: (1)Sequence 4 - You are guilty and sentenced to a fixed term of imprisonment of 3 months. (2)Sequence 5 - You are found not guilty. (3)Sequence 6 - You are guilty and sentence to a fixed term of imprisonment of 3 months. Orders 58I make the following orders: (1)You are convicted of the offence in Count 1 on the Indictment of taking and driving a motor vehicle with assault in company pursuant to s 154C(2) of the Crimes Act 1900. (2)I sentence you to a non-parole period of 18 months. I note that you have already spent 12 months and 27 days in custody in relation to this matter and therefore your non-parole period will commence on 24 November 2013 and terminate on 23 May 2015. (3)I sentence you to a further term of imprisonment of 12 months in relation to that offence expiring on 23 May 2016. The total sentence for the offence in Count 1 will be 2 years and 6 months. (4)You are convicted of the offence in Count 3 on the Indictment of robbery with corporal violence pursuant to s 95(1) of the Crimes Act 1900. (5)I sentence you to a fixed term of 12 months in respect of that offence commencing on 24 July 2014 and terminating on 23 July 2015. (6)Your parole eligibility date will be 23 July 2015. 59In respect of the matters contained in the s 166 Certificate I sentence you as follows: (1)Sequence 4 - I sentence you to a fixed term of imprisonment of 3 months commencing on 12 December 2014 and expiring on 11 March 2015. (2)Sequence 6 - I sentence you to a fixed term of imprisonment of 3 months commencing on 12 December 2014 and expiring on 11 March 2015. (3)Both terms are to be served concurrently with the terms set out above. (4)Sequence 5 - You are not guilty of the offence. 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: 16 December 2014