R v Sam Everingham [2017] NSWDC 200

District Court New South Wales

Medium Neutral Citation: R v Sam Everingham [2017] NSWDC 200 Hearing dates: 8 April 2017, 16 June 2017 Date of orders: 16 June 2017 Decision date: 16 June 2017 Jurisdiction: Criminal Before: Letherbarrow SC DCJ Decision: Sentence of imprisonment of 3 years and 2 months with a non-parole period of 2 years and 4 months. Catchwords: CRIMINAL LAW – Sentence – demand property with menaces or by force with intent to steal – take and detain – dishonestly obtain property by deception – threats of violence – poor prospects of rehabilitation – lengthy criminal history Legislation Cited: ss 99(1), 86(1), 86(2), 192E Crimes Act 1900 s 21A(2)(d) Crimes (Sentencing Proceeding) Act 1999 Cases Cited: Veen v The Queen (No 2) [1988] HCA 14 Markarian v The Queen [2005] HCA 25 Pearce v R [1998] HCA 57 Cahyadi v Regina [2007] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) Sam Everingham (Offender) Representation: Mr A Metcalfe (Crown) Mr L Margaretic (Offender)

Mr A Strik (DPP) File Number(s): 2015/00370891 Publication restriction: None

SENTENCE 1. HIS HONOUR: I will now hand down my remarks.

INTRODUCTION 1. On Friday, 8 April, for a jury trial lasting some of four days, the offender was found guilty of three charges. The first and third were counts 1 and 3 in the three count indictment presented against him. The second was a statutory alternative to count 2. 2. Count 1 was a charge of demanding property with menaces or by force and with intent to steal, contrary to s 99(1) of the Crimes Act ("the Act"). The maximum penalty for such an offence is ten years imprisonment. There is no applicable standard non‑parole period. 3. Count 2 alleged a charge of aggravated take and detain without consent and with the intention of obtaining an advantage, contrary to s 86(1) and (2) of the Act. The circumstance of aggravation alleged, was that actual bodily harm was occasioned to the victim at the time of, or immediately before or after, the commission of the offence. The jury was not satisfied of the circumstance of aggravation alleged but found the offender guilty of the statutory alternative of taking and detain with intent contrary to s 86(1). The maximum penalty for this offence is 14 years' imprisonment and again there is no applicable statutory non‑parole period. 4. Count 3 was a charge of dishonestly obtaining property by deception, contrary to s 192E of the Act, for which the maximum penalty is ten years imprisonment. Again, there is no applicable statutory non‑parole period. 5. At trial and on sentence, the offender was represented by Mr Margaretic of counsel, who informed me after I discharged the jury that he appeared on a pro bono basis and had come from Western Australia to do so. He also informed me that he had appeared for the offender in that State in relation to other matters and was quite familiar with him. When I raised the possibility of standing the sentence hearing over if requested to do so by either party, Mr Margaretic stated that he was ready to undertake the sentence hearing immediately, subject to being granted leave to provide some medical evidence and perhaps some written submissions. The Crown agreed to this course. Accordingly, after the Crown handed up the offender's New South Wales criminal history bail report and his Western Australian criminal and traffic history, which I together marked as exhibit A on sentence, as well as some short written submissions which I marked MFI 1 on sentence, I then heard oral submissions and ordered that any documentary evidence and written submissions for the offender, be supplied to the Crown and to my associate by 28 April last, with the Crown to reply thereto by 5 May last. I then stood the matter over to 12 May last, with the intention of handing down my remarks on sentence that day. 6. However, after the matter was adjourned, my associate was contacted by Mr Margaretic who advised that he was having difficulty retrieving material from the archives of the Western Australian Supreme Court which he wished to tender on evidence. In those circumstances, I vacated the adjourned sentence hearing date of 12 May and re‑fixed it for today. I also extended the earlier timetable. I also ordered a full pre‑sentence report. 7. On 10 June last, Mr Margaretic supplied my associate with the transcript of the sentence hearing and the remarks on sentence of McKechnie J of the Western Australian Supreme Court, in relation to his sentencing of the offender in March 2006 for offences which I will refer to later. I marked such transcript and remarks as exhibit 1 on sentence. At the same time, Mr Margaretic supplied my associate with an undated reference from a Mr John William Taylor, which I marked exhibit 2 on sentence. 8. The pre‑sentence report dated yesterday, has become exhibit B on sentence. Mr Margaretic did not supply written submissions but made some brief further oral submissions this afternoon as did the Crown. The offender was not called on sentence.