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. THE FACTS 1. At trial, the Crown case largely relied upon the evidence of the victim, an adult male in his 20's. Whilst the offender gave evidence in his own defence and so doing, described the events of the morning in question as occurring in a way involving no criminal conduct on his part, the verdicts of the jury make it plain that his version was rejected by it beyond reasonable doubt. 2. Accordingly, the following summary of the facts is based upon the victim's evidence which I accept as a whole and, where necessary, beyond reasonable doubt. 3. On Thursday, 27 August 2015 at around 4.30am, the victim left his residence in Forest Lodge to walk to the Anytime Fitness Gym in Glebe Point Road. About 15 minutes later, whilst walking down the eastern footpath of Glebe Point Road, near its intersection with Norton Street, he saw a man, who was the offender, walking on the western footpath towards him. After they made eye contact, the victim crossed the road and said "hi" to the offender, who asked him whether he had any money. The victim said "no" but asked the offender whether he wanted to "have some fun" to which the offender replied "no, I'm straight". The victim then said "okay, cool, are you sure". Then the offender said "just come down the street". The victim then followed the offender and asked him whether he had "some ice". The victim replied that "I don't do ice". 4. The offender then said "let's go down to my girlfriend's house". The two men then walked a few hundred metres to a property which backed onto Campbell Lane, where the offender told the victim to wait at the back gate whilst he walked inside. The offender returned and the victim then commenced to perform oral sex upon him in the backyard of the premises. After a few minutes, the offender heard something from the rear lane and the sexual contact between him and the victim stopped whilst the offender looked over the back fence into the lane and had a brief conversation with another man who was waiting on a nearby resident to come out of his house and give him a lift to work. 5. When this conversation ended, the offender asked the victim to come inside the house and when he did so, the offender became quite aggressive and told him to "do what I say, or I will hurt you". He then ordered the victim to lie on the floor in an area adjacent to a staircase and when the victim complied, the offender kicked him just to the right side of his forehead. He then told the victim that he wanted "a hundred bucks" and made various further threats to him, stating that he was a violent man who had been in gaol and that if the victim called out, he would hurt him. It should be noted at this point, that during his evidence at trial, the offender appeared well‑built and stated that he was some 6 foot 3 inches tall, whereas the victim appeared much shorter and was of slight build. 6. In response to the demand for money, the victim said that he did not have a hundred bucks, at which point the offender took the victim's backpack and tipped out its contents which included his wallet and phone, whereupon the offender told him to put his PIN code into his phone. As he was scared, the victim put in the wrong PIN code, which prompted the offender to kick him in the head again. Eventually, the victim entered the correct PIN code. At this point, the offender took the victim's licence out of his wallet and asked him whether the address shown thereon was his current address. The victim replied in the negative and the offender told him not lie to him. The offender then appeared to send a text using his own phone. During further conversation, the offender said "you better hope my girlfriend gets home because she will save you". After looking at the victim's licence again, the offender continued to text using his own phone and then said: "If you report this to the police, I will have my mate after you. They will catch you when you come home." 1. In an attempt to get out of the house, the victim then suggested that they go to an ATM, where he would give the offender money in exchange for the offender letting him go. After some more conversation, the offender told the victim "let's pack up and go". The victim then collected his things and put them in his backpack but he couldn't recall, at that point of his evidence, whether he or the offender, carried it from the house. The victim said that in all, he was in the house for about "20 minutes to maybe 30 minutes". The offender and the victim then walked to a Commonwealth Bank ATM machine which was attached to a Newsagency on Glebe Point Road, arriving there "around 5.30 or 5.15". During the walk, a further discussion occurred regarding money during which, at the victim's request, the offender agreed to accept $50 instead $100 as originally demanded. When they arrived at the ATM, an Asian couple got out of a nearby van and the victim tried unsuccessfully to get their attention. The victim then took three attempts at entering his PIN into the ATM machine before doing so correctly, during which time, the complainant gave him "an angry look". When the correct number was entered, the offender pushed the balance enquiry button and then withdrew $500 from the victim's account, putting it into debit due to the availability of a small overdraft facility. 2. The victim then said "I want my stuff back now", whilst following the offender across the road. The offender then told him to remain there and returned to the ATM machine for a few minutes before returning to the victim and telling him that he had just attempted to withdraw further funds from another card which was also in the victim's wallet. The victim replied that this card could not be used to obtain cash or was "maxed out". They then walked a short distance to some other property, where the offender asked the victim to come inside with him and the victim refused and demanded his "stuff back now". The offender then returned the victim's backpack, including his wallet and keys, and asked him whether he wanted to "come back for some fun". When the victim answered no, the offender told him to "just take it easy", and jogged off down the road. 3. After a few moments, the victim became angry about the loss of his money and returned to the Campbell Lane addressed where he mulled over going inside to get his money back but ultimately he decided to leave. 4. When he was asked how he felt after leaving the house with the offender and walking to the ATM machine, the victim said that he could not run or escape "because (the offender) had all my stuff with him and just wanted to basically get rid of him". The victim ultimately called police at about 6am, at which time he took them back to the Campbell Lane address where the back doors were found to be open and no one was present. 5. As to the length of the victim's detention by the offender, the Crown frankly conceded that the Court could find it ended upon the two men exiting the Campbell Lane premises, and in this regard, Mr Margaretic's submission was that this was when it in fact did end. 6. In my view, I cannot be satisfied beyond reasonable doubt that the detention extended beyond the time the two men left such premises, particularly in light of the evidence given by the victim as to why he remained in the offender's company thereafter, namely, to get his possessions back. Accordingly, I am only satisfied beyond reasonable doubt that the detention in question lasted for about 20 minutes. PRE-SENTENCE CUSTODY 1. The offender was arrested in relation to the current matters in Western Australia on 11 February 2016 and, by consent, was extradited to New South Wales in relation thereto on 16 February 2016. Thereafter, he has remained in custody, bail refused, purely in relation to such matters until now. Accordingly, it is agreed that the first of any sentences of imprisonment that are to be imposed should be backdated to commence on 11 February 2016. THE OFFENDER'S PRIOR CRIMINAL HISTORY 1. The offender was born on 30 March 1985 and was aged 30 at the time of the subject offending. His criminal history is lengthy. It commences in January 2002, when he was dealt with in the Bidura Children's Court in Sydney for, inter alia, offences of assaulting an officer in the execution of his or her duty and assault occasioning actual bodily harm, committed in December 2000 and January 2001, respectively, when he was 15 years of age. 2. In May 2001, he was committed for sentence to this Court for an offence of assault with intent to rob whilst armed with a dangerous weapon, with the result that, in November 2001, he was sentenced to imprisonment for two years and six months with a non‑parole period of six months with a notation that he may be transferred to Western Australia on his release to parole. His record then demonstrates that in November 2001, when so released upon parole, he returned to live with his father in Perth. 3. His Western Australian criminal history reveals that in August 2002, he was dealt with in the Perth's Children's Court for an offence of assault occasioning actual bodily harm and a breach of bail. He was first dealt with as an adult in Western Australia in 2003. His record in that State between 2003 and when he returned to New South Wales in 2011, is littered with convictions for offences such as stealing, burglary, receiving, armed robbery, aggravated robbery, armed robbery in company, assault occasioning actual bodily harm, ill‑treating an animal and escaping from custody. These convictions are interspersed by numerous breaches of bail and serious driving offences. He was also sentenced to imprisonment in that State in 2005, as a result of, inter alia, breaching various intensive supervision orders and suspended sentences imposed for other matters. In 2006, he was sentenced to significant terms of imprisonment in the Western Australian Supreme Court in relation to, inter alia, an offence of armed robbery, being the matters referred to in exhibit 1. After he returned to New South Wales in 2011, he was quickly sentenced to imprisonment in May of that year for offences of affray, assaulting an officer in the execution of his duty and destroying or damaging property, committed in February 2011. Thereafter, up until 2014, he has numerous further convictions in this State, for assault occasioning actual bodily harm, common assault, stalk/intimidate, contravening an AVO, stealing from the person, larceny and goods in custody amongst others. 4. Whilst the offender has no prior kidnapping offences or offences of demanding money with menaces or dishonestly obtaining property by deception, he does have numerous convictions for offences, inter alia, of violence, committed more or less continuously since he was in his mid‑teens. 5. Mr Margaretic conceded that the offender's record was such as to disentitle him to any leniency but argued that it did not rise to the level of amounting to an aggravating factor, either at common law or under s 21A(2)(d) of the Crimes (Sentencing Proceeding) Act 1999 as explained in Veen v The Queen (No 2) (1998) 164 CLR 465, and as submitted in this case it did by the Crown. 6. In my view, the Crown's submission in this regard should be accepted. The offender's record is such that it manifests a continuing attitude of disobedience of the law in which case the principles of retribution, deterrence, and the protection of society indicate that a more severe penalty is warranted. In stating this I am mindful that the offender is not to be punished again in relation to his earlier offending and that his record cannot lead to the imposition of a penalty that is disproportionate to the objective seriousness of the subject offending. THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES 1. Where the offender did not give evidence on sentence, his subjective circumstances must be drawn from what documentary material is available and from what was said by his counsel from the bar table. In such circumstances care must be given in deciding what weight should be afforded to such material and such submissions. 2. The documentary material available as to this topic is far from expansive. The transcript of the Western Australian sentencing hearing from 2006, together with McKechnie J's brief remarks on sentence, shed little real light upon them. It seems that the offender was then a heroin user whom claimed through his counsel that he was working for his father as a painter, earning the large sum of $6,000 per week and was intoxicated and emotional at the time of the then relevant offending. Whilst there are brief references to comments from a psychologist, a relevant report is not in evidence before me and Mr Margaretic stated from the bar table that apparently it has been destroyed. Such references include statements that the offender had a childhood "of both material and emotional deprivation" and has "frontal lobe damage" that "may well have affected (the offender's) capacity to control his impulsivity." 3. Turning to the pre-sentence report, same refers to the offender reporting an "unsupportive and unstable family upbringing" with his parents separating when he was young. It also mentions the offender's lengthy juvenile record and the fact that he has spent most of his adult life in custody. 4. As to his education the pre-sentence report refers to the offender completing year 10. It goes on to state that he has "never been employed for lengthy periods of time and...periodically worked as a painter" but notes that prior to his latest period of incarceration he was in receipt of Centrelink benefits. 5. As to his personal life, it refers to him as being "currently single" although Mr Margaretic told me from the bar table today that the offender had a partner at the time of these offences who still keeps in contact with him. 6. The author of the pre-sentence report also interviewed the offender's mother and the report records that she advised that should the offender be released to the community, she would not be in a position to offer him support and accommodation and he would therefore be homeless. In this regard, Mr Margaretic told me from the bar table that this is incorrect and that upon his release from custody his mother is prepared to allow him to live at her address until he can find his own accommodation. 7. The pre-sentence report also notes that the offender wishes to return to Western Australia and participate in a social worker TAFE course "in which he had enrolled and was to start in March 2016 prior to returning to custody". 8. As to the offender's stated "frontal lobe damage," a very significant scar is apparent over his forehead. Mr Margaretic stated in submissions it was a result of a "significant brain injury" that the offender sustained in 2003 although I note that his extensive criminal history commenced prior to such time. 9. Mr Margaretic also stated that the offender had a dysfunctional upbringing and that his mother was a heroin addict and that from about the age of 11 or 12 he lived on and off on the streets. He also stated that at the age of 15, when the offender first went into juvenile detention, he was the subject of physical and sexual abuse. 10. Mr Margaretic further stated at the time of his arrest in February 2016, the offender had just arranged rental accommodation and had enrolled in tech in Western Australia, which is apparently a reference to the TAFE course earlier mentioned. 11. Mr Margaretic also referred to the issue of institutionalisation, stating that the robbery offences committed in Western Australia, for which he was sentenced by McKechnie J, were the result of an attempt by the offender "to get back into gaol" after an emotional argument with his father. 12. Lastly, Mr Margaretic described the offender's evidence at trial as "quite childlike" and whilst he showed a "degree of anger" towards the jury after the guilty verdicts were handed down he was later very apologetic in the cells. In this regard the offender, upon being found guilty, delivered expletive-ridden abusive comments at the jury. 13. Whilst I am prepared to accept and take into account that the offender had a socially deprived upbringing within the principles described in Bugmy, and that he sustained a brain injury of some sort in 2003, as to the latter, there is no evidence upon which I could be satisfied that such brain injury is causally related to his subject offending, especially in circumstances where his criminal history starts prior to any such injury. 14. I have also had regard to the reference from Mr Taylor. Mr Taylor describes himself as a professional tattooist, musician and youth mentor and makes various positive comments about the offender, although he does not mention whether or not he was aware of the offender's extensive criminal history. THE OFFENDER'S PROSPECTS OF REHABILITATION 1. The offender's record displays numerous failures to grasp various non-custodial options afforded to him over the years and it is overall of a type that gives me little confidence as to his prospects of rehabilitation. 2. The pre-sentence report notes that since entering custody in February 2016, the offender has incurred five institutional misconduct charges referrable to fighting, possessing prohibited goods, possessing drug implements, and two charges of intimidation. Contact with custodial officers indicated that the offender's behaviour "can be challenging and demanding at times". 3. As to his attitude to the offending, the offender told the author of the pre‑sentence report that he agreed with most of the police facts but did not agree that he hurt the victim. The author of the pre-sentence report also indicates that the offender "appeared to justify his actions claiming that at the time of the offence he needed money and the victim promised him money in exchange for sex". 4. The offender also told such report's author that if he had harmed the victim "he would have felt sorry for his actions" but as he believes that he was not harmed he "cannot feel empathy for him as he did not uphold his end of the deal". 5. Accordingly, there seems to be little or no evidence of remorse on the offender's behalf. 6. Further, his abusive expletive-ridden outburst at the jury after it had delivered its verdicts also demonstrates, in my view, a degree of non-acceptance of responsibility by him in relation to his subject offending. 7. Lastly, the author of the pre-sentence report assesses the offender as presenting a medium risk of re-offending. 8. Overall, unfortunately I would regard the offender's prospects of rehabilitation as poor. OBJECTIVE SERIOUSNESS 1. The most serious offence is of course the offence contrary to s 86(1). Whilst the jury were not satisfied that it was accompanied by the infliction of actual bodily harm upon the victim, nevertheless I am satisfied beyond reasonable doubt that it did involve some violence and significant threats. 2. On the other hand the period of the detention, whilst not fleeting, was also not lengthy. The offence was also spontaneous and did not involve the offender approaching the victim at the outset. In stating this I am in no way to be seen as accepting Mr Margaretic's submission that "to a degree" the victim "was the author of his own misfortune". There was also no evidence of any medium or long term harm, either emotional or physical, being occasioned to a victim. 3. As to this offence Mr Margaretic submitted that its objective seriousness was "towards the lower end of the scale", whereas the Crown's submission was that it fell within the mid-range. 4. In my view, taking all matters into consideration, it falls below mid-range. 5. I am of a similar view in relation to the demanding money with menaces offence which was accompanied by both threats and violence, albeit the same as also accompanied the take and detain offence. 6. The dishonestly obtaining property by deception offence is, in my view, the least serious offence although it is not a case of, for example, a person finding a credit card in the street and thereafter using it. Rather the offender took and used the victim's relevant card at the ATM himself, and whilst a large sum of money was not thereby obtained, it was nevertheless not insignificant, and the offender knew that he was leaving the victim without funds for his daily life. Overall, in my view, this offence falls well below mid-range. THE ONLY APPROPRIATE SENTENCE 1. Mr Margaretic accepted that the only appropriate sentence in relation to each of the three offences was one of imprisonment. I agree and so find. OVERALL APPROACH AND THE ISSUES OF CONCURRENCY AND ACCUMULATION 1. In arriving at the sentences which I will shortly impose, I have taken into account all matters to which I have referred and applied an instinctive synthesis in accordance with the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51]. In doing so, I have also had regard to the principals involved in sentencing for multiple offences as discussed in Pearce v The Queen [1998] HCA 57 and in such cases as Cahyadi v Regina [2007] NSWCCA 1. 2. In this regard, Mr Margaretic argued that I should make all three sentences entirely concurrent. In response the Crown submitted that there should be some degree of accumulation between counts 1 and 2 but accepted that this should be relevantly modest due to the overlapping nature of the force and threats involved. However, the Crown argued that there should be a significant degree of accumulation with respect to count 3, bearing in mind that the offender had "cleaned out" the victim at the ATM machine in circumstances where the victim had made it plain that he had little money and needed it for such matters as rent and the like. 3. The real question when considering issues of concurrency and accumulation is whether the sentence for one offence can comprehend and reflect the objective seriousness for the other. In my view, the sentence for the take and detain offence can do so in relation to the demanding money with menaces offence and I intend to make these concurrent. However I believe some degree of accumulation, albeit relevantly small, is warranted in relation to the dishonestly obtaining property by deception offence. SPECIAL CIRCUMSTANCES 1. Whilst Mr Margaretic made no specific submission as to the issue of special circumstances, he argued that the effect of any sentence imposed should either be that the offender be released on the basis of time served since February 2016 or that any additional non-parole period would be modest. 2. On the other hand, the Crown submitted that the offender's past record is such that his periods on parole "didn't work" and accordingly no finding of special circumstances should be made. Alternatively, the Crown submitted that the statutory ratio should only be slightly varied. 3. Bearing in mind the offender's poor prospects of rehabilitation, his past failures to grasp what chances the Courts have given him, coupled with matters such as the protection of society and the fact that the normal statutory ratio, when applied to the sentences I intend to impose, will result in what I believe is an adequate parole period in any event, in my view a finding of special circumstances in not warranted in this matter. 4. In making this finding I have taken into account, on the other side of the ledger, the offender's risk of institutionalisation, coupled with my partial accumulation of the sentence for count 3, on those imposed for counts 1 and 2. THE SENTENCE 1. Mr Everingham, could you just stand up please? 2. The offender is convicted of each of the three offences for which the jury found him guilty. 3. In relation to count 3, being the dishonestly obtain property by deception offence, I impose a non-parole period of one year and six months, commencing on 11 February 2016 and expiring on 10 August 2017 when the offender is to be released to parole. The head sentence is a period of two years imprisonment, commencing on 11 February 2016 and expiring on 10 February 2018. 4. In relation to count 1, being the demanding property with menaces or by force offence, I impose a non-parole period of one year and ten months, commencing on 11 February 2016 and expiring on 10 February 2018 when the offender is to be released to parole. The head sentence is one of two years and six months, commencing on 11 April 2016 and expiring on 10 October 2018. 5. In relation to count 2, being the take and detain offence, I impose a non-parole period of two years and two months, commencing on 11 April 2016 and expiring on 10 June 2018, when the offender is to be released to parole. The head sentence is one of three years commencing on 11 April 2016 and expiring on 10 April 2019. 6. Accordingly the offender is subject to an effective non-parole period of two years and four months, commencing on 11 February 2016, and expiring on 10 June 2018, with an effective head sentence of three years and two months, commencing on 11 February 2016 and expiring on 10 April 2019. You can sit down, thanks, Mr Everingham. Mr Margaretic, Mr Crown, have I made any mistakes as to the dates? METCALFE: I don't think so, your Honour, I was making a note as best I could. HIS HONOUR: Do you want to just check it, gentlemen, before I adjourn? MARGARETIC: Can I just confirm, your Honour, that the sentences are backdated to commence on 11 February 2016? Your Honour mentioned April. HIS HONOUR: Count 3 starts on 11 February 2016. Counts 1 and 2 start on 11 April 2016. In other words, there is three months accumulation in relation to count 3 before counts 1 and 2 start. METCALFE: That means two months accumulation, March/April. HIS HONOUR: That is right, yes. If I said three I meant two, it is two months accumulation. Thank you, gentlemen, for your assistance during the trial and the sentence. ********** Amendments 08 August 2017 - Hearing dates amended. 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: 08 August 2017