R v Winters [2017] NSWDC 166

District Court New South Wales

Medium Neutral Citation: R v Winters [2017] NSWDC 166 Hearing dates: 22 May 2017 Date of orders: 22 May 2017 Decision date: 22 May 2017 Jurisdiction: Criminal Before: Sides QC DCJ Decision: Sentenced to an aggregate term of imprisonment of five years to commence 7 October 2015, with a non-parole period of two years. Catchwords: CRIMINAL LAW – Sentence: Discount for pleading guilty at Parramatta on arraignment; car jacking; Skye's Law offence; wounding; armed robbery; intellectual disability; dysfunctional upbringing; reduced moral culpability Legislation Cited: Ss 10A & 53A Crimes (Sentencing Procedure) Act Cases Cited: R v AB [2017] NSWCCA 88 R v Koekoe [2012] NSWDC 254 R v Borkowski (2009) 195 A Cr R 1 Category: Sentence Parties: The Crown Reggie Winters (Offender) Representation: Mr K Kirupaidasan (Crown) Mr N Leach Aboriginal Legal Service (Offender) File Number(s): 2015/00294448

Judgment 1. HIS HONOUR: The Offender Reggie Winters appears for sentence consequent upon his pleading guilty on 29 September 2016 to four offences he committed on 5 June 2015. 2. Count 1 is an attempted aggravated carjacking committed upon the victim Rejhan Tahiri at Pemulwuy, which has a maximum penalty of 14 years' imprisonment and a standard non parole period of five years. 3. Count 3, wounding the victim Tahiri, being reckless as to actual bodily harm, an offence also at Pemulwuy. It has a maximum penalty of 7 years imprisonment and a standard non parole period of three years. 4. Count 4, an armed robbery of victim Jakye Brooks at Greystanes, which has a maximum penalty of 20 years' imprisonment. 5. Count 5, driving in a manner dangerous during a police pursuit at Greystanes that has a maximum penalty of three years imprisonment. 6. Unless indicated, there is no prescribed standard non parole period. With the exception of count 4, all matters could be dealt with summarily but that would not have been appropriate to reflect the totality of the criminality, at least in a sense of its objective features. 7. Via his solicitor he also pleaded guilty to sequences 6 and 7 that are on the 166 certificate. 8. Sequence 6 is driving never having been licenced, an offence committed on 5 June 2015, that has a maximum penalty of 20 penalty units; and 9. Sequence 7 is assaulting Constable Wilson, a police officer, in the execution of his duty on 9 October which has, on indictment, a maximum penalty of five years imprisonment. It is an offence normally dealt with summarily. 10. The Offender was committed for sentence in connection with counts 4 and 5. It is not clear to the Court why they ended up on the indictment but they did and he pleaded guilty. They are clearly early guilty pleas. Likewise, the matters on the 166 certificate, sequences 6 and 7, are early guilty pleas. The Court reduced the indicative sentences for all of those matters, with the exception of sequence 6, by about 25% to reflect the utility of his early guilty pleas. The Court proposes to deal with sequence 6 under s 10A in light of the other sentences imposed. 11. In relation to counts 1 and 3 the Offender pleaded guilty on arraignment. In those circumstances the Court proposes to reduce the indicative sentences by about 20% to reflect the utility of those guilty pleas. The Court of Criminal Appeal in R v AB [2017] NSWCCA 88 indicated the Court must articulate its reasons for doing so. Had the Court of Criminal Appeal been referred to this Court's decision in R v Koekoe [2012] NSWDC 254 it may have appreciated why the Court took the course it did in AB. The reasons for so doing can be found in paras 3 to 5 inclusive of that judgment, where the Court said: "3 The Offender pleaded guilty on arraignment and on the first occasion that the matter came before this Court. In a case a few years ago, the Court of Criminal Appeal [R v Borkowski (2009) 195 A Cr R 1] emphasised the need for consistency across the State in the approach to the discount given for the utility of guilty pleas. Here at Parramatta, as the list judge, it is patently obvious that only a tiny percentage of cases committed for trial are resolved by way of a plea of guilty upon arraignment. There are a large number of matters involving offenders who plead guilty in the Local Court and who are committed for sentence. But, of those who are committed for trial, on each Monday somewhere in the order of twenty-five to thirty-three per cent of cases where a trial is due to begin are resolved by way of a guilty plea. 4 There is a need to encourage such guilty pleas to be entered at a much earlier date. The consequence of this high percentage of matters listed for trial that resolve in guilty pleas on the day of the trial or within the week the trial is listed is that the Court has to over-list the matters that are listed for trial. This sometimes results in matters being marked "not reached", which can involve great expense to the taxpayer and to self-funded litigants. Notwithstanding the need to ensure that the approach is consistent across the jurisdiction, it seems to the Court that there is a need to revisit the percentage of a discount delivered in the usual case where a guilty plea is entered on arraignment. 5 The only additional thing that occurs, usually between committal for trial and arraignment, is a Crown Prosecutor screens a matter and finds an indictment. The way the cases are conducted here suggests that conferences with complainants and witnesses usually take place at a point much closer to the trial date. It seems to the Court a much greater degree of energy and resources from the prosecution and police point of view are put in once a not guilty plea is entered and a trial date is fixed, in comparison to the effort and resources put in between committal for trial and arraignment. For this reason the Court proposes in this case, having considered these matters as well as the need to consistency, to extend a discount of about twenty per cent to reflect the utility of the Offender's guilty plea." 1. The utility of the guilty plea entered on arraignment, as was the case here, meant that this Court did not have to fix a trial date for this matter. This is a matter that has significant utility for this complex here at Parramatta. At the time of the decision in 2012 in Koekoe the Court was listing 12 trials a week in circumstances where there were seven trial judges potentially available, in other words when there were no civil sittings. By last year and flowing through to the first term of 2017 it was only listing nine trials a week. As a consequence of the significant number of matters being marked "not reached" last year as of the commencement of next term, apart from the first week of term, the Court is listing only seven matters a week and 4 of those matters are priority trials, because of the experience last year where priority trials, even for individuals in custody, were being marked "not reached" with monotonous regularity. The delays in this Court have become unacceptable and pleas of guilty at an early stage in circumstances where a trial date is not set and available to a matter that is a genuine trial are of vital importance and at a premium. 2. The other thing that should be indicated is that this year, putting aside the weeks when there have been civil sittings, when there should have been seven judges available to do trial for all but one fortnight there have been less than seven judges available to do trials, ignoring any judges part heard in trials at this centre, and on some occasions the Court has been short of two trial judges. This has been brought about because of the availability of resources. The Court sat special sittings during the vacation of last year and that will take place again in the vacation of this year which is been designed to attempt to help the Court to address the backlog of trials. 3. When this person was arraigned, had he pleaded not guilty, his trial probably would have been fixed in the Court vacation of this year. However, since then, because of the limitation of resources, the number of trial judges available at this complex in the vacation this year has been reduced by two., emphasising again the importance of his early guilty plea which means that somebody who genuinely wants to go to trial and needs to have their matter resolved can get the earliest possible trial date. 4. The latest statistics available to the Court are for February of 2017. Those statistics demonstrate that the average criminal trial at Parramatta lasted 10 days in comparison to 8.67 days in the Downing Centre. In the time that I have been sitting at this complex, commencing in 2010, the average length of trials have increased. Last week is a representative example of what is happening at this complex. There were eight trials listed for hearing last week. Only four of those trials actually proceeded, one of them proceeding at Penrith. One trial was stood over to commence this week. That was for individuals, two of whom have been in custody and that had a committal date of 29 September 2015. Another trial last week for a person in custody with a committal date of 5 May 2015 was marked "not reached"1. Two accused on bail were marked "not reached" with respective committal dates of 4 September 2015 and 7 October 2015. The final matter that was in the list last week pleaded guilty and, if that individual had not have pleaded guilty, his matter would have been marked "not reached" as well. 5. I refer to these matters that demonstrate the extent to which the Court is overburdened and hindered by the limited resources available to it and the need to do everything possible to encourage early guilty pleas particularly in circumstances where there is no necessity to allocate a trial date to the matter. The Court should note that there was no appeal by the prosecution in the decision of Koekoe and the Court has continued to apply that discount to pleas entered on arraignment since that decision was entered without appeal until the decision of AB. 6. The victim Tahiri was 39 years of age at the time of the offence and lived at a place in Pemulwuy, which is a two-storey premise with a lock up garage. At the time of June last year, he owned a green Renault Scenic that he normally parked in his driveway. At about 6.05am on Friday 5 June 2015, he started his car, which was parked in the driveway. He then left it to warm up whilst he went inside and made a coffee. Whilst he was making the coffee in the kitchen, he heard a noise outside that sounded like the garage door rattling. When he emerged, he saw the driver's door open and the Offender seated in the driver's seat. After letting out an expletive, he lent into the car in order to get the Offender out. The Offender began thrashing around. The victim raised his arms to defend himself and could feel the Offender punching his back. The Offender punched the victim about three times and was yelling and screaming, but the victim could not make out what the Offender was saying. Suddenly, the Offender jumped out of the car and ran away. These events give rise to count 1. 7. The victim got into his car in order to chase the Offender, but lost sight of him and returned home. When he returned, he spoke to a neighbour who noticed he was bleeding from the shoulder. Triple-0 was contacted. The police arrived and an ambulance was called that conveyed the victim to Westmead Hospital where he was treated for his injuries. He sustained a two to three centimetre laceration to the posterior aspect of the left chest wall over the scapular. This laceration breached the dermis and epidermis. The doctors cleaned the wound and sutured it. The victim was discharged later the same day. The sutures were removed ten days later. The Offender admits that he had a knife at the time of the attempted carjacking and the stabbing of the victim gives rise to count 3. 8. Whilst the police were investigating those events, they heard a broadcast over police radio about the other matter involving the victim Brooks. He was 17 at the time and owned a Toyota Corolla. It was his second day on the job as an apprentice plumber. As directed by his employer, he turned up at his employer's house so they could go to the job together in the employer's utility. The victim arrived at his employer's place in Hopeman Street, Greystanes at about 6.35am. 9. As he was early, he sat in the car and played with his phone to pass time. As he was doing so, the Offender walked past. When two metres from the victim's car, the Offender stopped, looked back and walked to the victim's car and knocked on the window. The victim opened the door and the Offender asked for a lift to Guildford Station. The victim told him he was sorry he was due to start work at 6.45am. The Offender asked the victim the time and he was told it was 6.40am. 10. The Offender then walked to the other side of the car and got in the front passenger seat and said: "Come on please", but the victim said it was his second day. The Offender got out of the car and approached the driver's side of the car and said to the victim: "Take me to Guildford station or I'll stab you in the face". The victim said he was sorry he could not do that. The Offender removed a knife from the front pocket of his jumper. The blade of this knife was eight to 10 centimetres long. The victim got out of the car because he did not want to be trapped in it. The Offender pointed the knife at his chest and took the keys from his hands. There was a short struggle. The Offender pushed the victim, sat in the driver's seat and drove off. This gives rise to the armed robbery, count 4. 11. The victim contacted his mother who then dialled triple-0. At 7.06am, Highway Patrol officer Hamley was driving west on Woodstock Avenue Rooty Hill. When he stopped at a set of lights, he saw the Offender in the victim's Toyota. He was driving well above the speed limit. Constable Hamley made a speed check, it revealed the offender was driving at 96 kph in a 60 kph zone. Officer Hamley then activated the warning sirens and pursued the Offender. He caught up to him at a set of red lights. He stopped behind the Offender and the Offender released the brake and proceeded through the intersection contrary to a red light. He continued to drive away at speed. The officer then initiated the pursuit observing the Offender to be driving erratically and accelerating to speeds between 100 and 120 kilometres per hour in a 60 kilometre per hour zone. While doing so the Offender crossed the dividing lines that separated lanes one and two. He entered a roundabout at Hyatts Road intersection, oversteering as he did so. He then continued to travel west at speed. Other road users were forced to pull over to get out of the Offender's way. He also crossed double unbroken lines and drove on the wrong side of the road when there was oncoming traffic. He continued to drive erratically, swaying from side to side, causing the vehicle to lose balance. He again crossed double unbroken lines at speed and drove on the wrong side of the road for about 500 metres. A number of vehicles were forced off the road to avoid collision. 12. After three minutes, because of the danger, the pursuit was terminated. The Offender entered a roundabout at Carlisle Street in the wrong direction to turn right. At the time a truck negotiating the roundabout had to slow down to avoid collision. The officer lost sight of the Offender's car. His failing to stop and driving in a manner dangerous during the police pursuit gives rise to count 5. 13. The Offender has never held a licence in accordance with the relevant provisions, which gives rise to sequence 6. 14. At the time it had been raining and the roads were wet. It was the start of the Queen's Birthday long weekend and there were double demerit points in force. Police located the stolen car at 7.30am in a car park of a block of units in Tregear. The Offender's DNA was found on the brake pedal of the vehicle. 15. Police arrested the Offender on 7 October 2015 at Seven Hills Railway Station. He participated in an interview and told the police during that interview: 1. he had lived on the streets for the past seven or eight months, regularly used ice and did not have either a car or a job; 2. he acknowledged he never held a licence; 3. he told the police he had never driven a Corolla before and had not driven a car for at least a year; 4. he agreed he was driving through the police pursuit but did not remember driving. The people at the block of units where the car was left told him he had been driving; 5. he was familiar with the speed limit in the relevant area; 6. he denied committing the offences and said he did not stab people. 1. After the interview, the Offender was put in a custody cell and he became aggressive and agitated and he wanted to make an additional phone call. He began kicking at the cell door, he said to the police: "You cunts try to come in here and I'll kick your fucking heads in. You should've just given me my phone call. Now I'm going to rush you cunts if you come in here." 1. The Offender urinated into a Styrofoam cup and threatened to throw it on the police. He kicked at the cell door and managed to force it open. When police rushed towards the door, he threw the cup of urine on Constable Wilson which made contact with him. This gives rise to the assault police. He was returned to the cell. 2. On 13 May last year the victim Tahiri selected someone in a photo identification parade that was not the Offender. The other victim Brooks participated in a similar parade on 15 May and was not able to make a selection or identify anyone. 3. The Offender turned 22 about a month after committing these offences. He will turn 24 in July. He is the youngest of his parents' four children. His mother entered another relationship after the Offender was born and had another four children. Apparently his father and mother separated before the Offender was born. He has had virtually no contact with his father. The Court is satisfied that he had the disadvantage of a dysfunctional upbringing because of his stepfather's violence. He spent a lot of time with his grandmother until he first went into juvenile detention at the age of 13. He has spent a lot of time since until he turned 18 in juvenile detention. 4. The Offender left school at the age of 14, according to the PSR at least at the completion of year 8. He had behavioural issues both at home and at school. He was suspended for fighting. He was in a special school at least during his high school years. 5. He has a very limited work history but has done some vocational certificates in custody. Two brothers who have been in trouble with the law are currently working in the scaffolding industry and he hopes he will be able to join them when released from custody. 6. The Offender has been in a relationship for five years, there are two young daughters. This relationship is marred by violence and also substance abuse although, his partner is apparently no longer abusing elicit substances. On one occasion she stabbed him and was convicted in connection with that. At the time of the offence he was living with her and their children at their grandmother's place and, according to the pre-sentence report, he will return there when released from custody. 7. The Offender's substance abuse started at a young age when he would not have fully appreciated the long-term consequences of that abuse. In 2014 he went to the Wayback Rehabilitation Clinic in Harris Park whilst on parole, but was forced to leave because of non-attendance and a lack of commitment. He does want to address his addiction. He has not presented any evidence to indicate that he has done anything about that whilst in custody. 8. The Offender started offending shortly before his 14th birthday. The Court notes the matters he committed whilst a juvenile that included, amongst other things, robbery in company, robbery, assault occasioning actual bodily harm and at least one matter under subs 112(2) Crimes Act. 9. On 21 October 2011, in the District Court, he was given three years and ten months with one year and 11 months' non-parole for an aggravated sexual assault. This means regrettably that he is not eligible for the Balund-a Program at Tabulam. On 19 June 2016 he was fined for failing to appear and goods in custody and given three-months imprisonment for possession of house-breaking implements that I think was reduced to a bond supervised bond on appeal. He was on bail in connection with those matters at the time of the offences before the Court, which is an aggravating feature. He was also placed on a bond on 19 June 2015 for intimidation. On 27 June 2015 he was placed on a bond for damaging property and 28 November 2015 he was sentenced to imprisonment for damaging property, an offence committed after the matter before the Court that is relevant to his prospects of rehabilitation. 10. Since going into custody on 7 October 2015 he has breached prison discipline on eight occasions. 11. The Court notes that his response to supervision between 2012 and 2014 was not satisfactory. His parole was revoked on two occasions but it appears that those revocations were later rescinded. He was moved to the mental health step down unit at the Metropolitan Remand Centre at some stage, when that occurred is not clear. He has not, as I understand it, been a management problem there. During evidence he said he has been on protection for the past few months. 12. The pre-sentence report, the contents of which the Offender said were true, reports the Offender experiencing paranoia at the time of the offences and not been compliant with his medication. He said that he was diagnosed with schizophrenia and paranoia in 2013 that were controlled by medication and counselling. At times, before his arrest in October 2015, he had been managed by the risk intervention unit. Since his arrest, he has been seen by a psychiatrist, amongst other things, because of the risk of self-harm. The psychiatrist apparently indicated that, at the time of the admission into custody, the Offender was psychotic. He settled after receiving medication via medication. 13. The Court accepts that the accuracy of what he told the psychologist that he hears voices and that these voices are worse when he is using illicit drugs. He claims he does not always listen to the voices. He has visual hallucinations but only has these when he is using illicit drugs. He told the psychologist, and repeated it in his evidence, that, at the time of the offences, he had been using methylamphetamine, which in his evidence he said was something he did on a daily basis and had not slept for three weeks and was hearing voices. 14. The Offender has an intellectual disability that places him in the bottom one per cent of the population and a limited capacity to function independently in the community. 15. The Court considered the offences separately, but it is appropriate to discuss some matters together to avoid repetition. The Court is satisfied the offences were spontaneous and that the victims were traumatised. It is possible that one or both of the victims have been left with long-term emotional or psychological problems. The Court notes that one of the victims was only 17. 16. In connection with count 1, he did not take the car because he could not drive a manual. It seems to the Court that is the only reason why he did not commit the actual offence. In other words he had taken every step as far as possible in committing the offence. 17. He said that he had the knife in his possession because he was paranoid and had no intentions of using it, although the Court does note in his evidence he said that he had been with associates who were looking to break into houses so that they could get money or property to obtain drugs. 18. The Offender used corporal violence and in the process of that stabbed the victim. 19. Taking into account only the objective factors affecting the relative seriousness of count 1, the Court is of the view that that offence is a tad below the middle of the range of seriousness as connoted by the standard non-parole period of five years prescribed for offences in that provision. 20. The wound was two to three centimetres in length. It was to the chest wall and it required stitches. There may be some scarring, the extent of disfigurement is not clear. There is no evidence of permanent disability. No organs were penetrated and there is no suggestion that the wound was in any way life threatening. 21. Taking into account only the objective factors affecting the relative seriousness of count 3, the Court is of the view that it is a tad below the middle of the range of seriousness as connoted by the standard non-parole period of three years prescribed for offences under that provision. 22. Because the Court has taken into account the facts and circumstances surrounding the stabbing in assessing the criminality for count 1, there was no notional accumulation as between those two counts in terms of the aggregate sentence. 23. Turning then to count 4, it seems to the Court the motive for this offence was the same as it was for count 1, namely to get transport as a means to get home. 24. The Court has already noted the age of the victim. The victim was threatened that he would be stabbed in the face and a knife was produced. There is no evidence about the value of the car. However, it was recovered. There is no evidence that any damage was done to it whilst it was in the Offender's possession after he stole it. 25. There was a physical struggle over the keys, there is no evidence this victim suffered any physical injury. 26. The Court considered the Henry guideline in connection with this matter but did so bearing in mind his record. In the Court's view this is a serious example of an offence of this type. 27. The police pursuit was very short. It lasted only three minutes but it was very dangerous because it was on a Friday morning, the roads were wet, he drove at excessive speeds and at times on the wrong side of the road and other road users had to take evasive action. He was not licensed at the time. The Court also notes that he claims that he had not slept for three weeks and, during his evidence, he said that his body was shutting down because of that. 28. In the Court's view, this is a serious example of an offence under this provision. The assault upon the police was a serious one because of the risk of infection. 29. The Court is satisfied on all the evidence before it that the Offender was probably psychotic at the time and his judgment was impaired because of that and the lack of sleep. Because of those matters and his dysfunctional upbringing, combined with his intellectual disability, the Court made a finding of substantial reduction in moral culpability. 30. The Court notes that he wants to address his substance abuse problems. He has failed to do this in the past and, when in the community, he has not been compliant with medication. He committed these offences whilst on bail and has breached prison discipline on many occasions. The Court remains quite pessimistic about his prospects of rehabilitation and not re-offending. 31. The Offender said he was on protection and he has the mental health issues. The Court does note, however, that he is being treated in custody and probably more compliant with his medication than in the community. The Court is not persuaded that his time in custody is necessarily more burdensome to the extent that it is required to be reflected in the sentence. 32. The Court has taken into account all the purposes of sentencing. As they are well known and as some of them can be found in legislation, it is not necessary to refer to all of them. However, because of his relatively young age, intellectual disability, dysfunctional upbringing, mental health and finding of reduced moral culpability, the Court gave less weight to deterrence and greater weight to rehabilitation. 33. The Court considered that a custodial sentence is a sentence of last resort. Totality as between the matters before it, excluding sequence 6, has been taken into account in fixing the aggregate sentence. The Court has taken into account totality as against the sentence of one month imprisonment imposed for damaging property. 34. The Court found special circumstances because of his need for an extended period of supervised parole. It may well be that the Offender is institutionalised or approaching that point. He has spent a lot of time in custody since the age of 13, although his behaviour in custody as an adult, at least, might be seen as inconsistent with that because it does not demonstrate a compliant individual who accepts the routine imposed by the custodial setting. 35. The relationship between the non-parole period and the head sentence will be quite unusual and generous in his favour to give him the opportunity for the longest period of supervised parole available after release to parole. 36. Reggie Winters, the Court convicts you of the four offences on the indictment, counts 1, 3, 4 and 5 and sequence 7 on the 166 certificate. Pursuant to s 53A Crimes (Sentencing procedure) Act it imposes an aggregate term of imprisonment of five years to commence 7 October 2015. The Court fixes a non-parole period of two years and orders that your parole eligibility date is 6 October 2017. 37. Pursuant to sub para 53A(2)(b) the indicative sentences and non-parole periods are as follows: * count 1: three years, non-parole period 18 months; * count 3: two years, non-parole period 12 months; * count 4: 42 months; * count 5: 15 months; * Sequence 7: six months. You are also convicted of the offence sequence 6 but, pursuant to s 10A Crimes (Sentencing Procedure) Act, the Court does not proceed to impose any punishment. 1. I have sentenced you to five years with two years' non-parole, commencing on the date you were arrested. This means you become eligible for release to parole on 6 October this year but you have got to understand you will not necessarily get out on that day. This time you will have to go before the parole authority and they will decide whether they are going to let you out on parole. If they decide they will, they will set the date, it might be 6 October this year, it might be after that, there is no guarantee you are going to get out then. One of the things they will take into account is whether you continue to muck up in gaol or not. I am sure you know how you are supposed to behave while you are on parole and you know what is going to happen if you do not do what you are supposed to do on parole, you will be going straight back in. Just take a seat and we will work out what the disqualification periods are. 2. In relation to count 5 the Offender is disqualified from holding or obtaining a licence for three years, subject to legislation, from the date of conviction. Reggie, you are going to be disqualified for three years and, as I understand the way it works, that will not start until you get out of gaol. So, if you are detected driving a motor vehicle during this three year period of disqualification after you get out of gaol, you will be convicted of drive whilst disqualified and you can bet your bottom dollar that you would be sent back to gaol to serve a sentence for it and you will get a long period of disqualification, so do not be tempted to go off driving when you are on parole. Do not drive again until you have got a licence. I hope you understand all that. 3. Endnotes: 4. Subsequent checking of outcomes for week commencing 22 May 2017 revealed that this is an error because, no trial of an accused in custody was marked not reached at Parramatta in the week commencing 15/5/2017. 5. #Revised by Judge Sides: 26 June 2017 without access to file