R v SM [2018] NSWDC 4

District Court New South Wales

Medium Neutral Citation: R v SM [2018] NSWDC 4 Hearing dates: 22 January 2018 Date of orders: 22 January 2018 Decision date: 22 January 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of one year and 9 months with a head sentence of 3 years and 6 months. Under s10 of the Children Criminal Proceedings Act I order that the sentence be served as a juvenile in a juvenile detention centre. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Juvenile offender – Violence - Taking and detaining while in company with intent to gain a financial advantage – Actual bodily harm – Offender had a disrupted and traumatic childhood. Legislation Cited: Children Criminal Proceedings Act Category: Sentence Parties: The Crown SM Representation: Counsel: Mr H White

Solicitors: Director of Public Prosecutions – The Crown Arthur Aguirre Criminal Lawyers – The offender File Number(s): 2016/216609 Publication restriction: There is to be no publication of the name of the offender or of any material which may tend to identify the offender

Judgment 1. HIS HONOUR: As a juvenile the offender SM committed two very serious offences. She has been held in custody since shortly after those offences were committed, and whilst in custody has progressed remarkably well. The sentence I impose upon her has to reflect her change in behaviour, and her prospects for rehabilitation but also has to reflect the seriousness of her misconduct. She was not a very young person at the time she did what she did. She was involved in an offence involving violence, terror and deprivation of liberty. It is conceded that a custodial sentence is required even despite her youth. That concession was appropriate. 2. What happened took place over an extended period of time - about 16 hours. Matters began on 13 July 2016 when this offender, her co-offender (a man by the name of Koroitamana) and the two people who ultimately become the victims of their crimes were in a car together. They went from place to place until Koroitamana and this offender began smoking methamphetamine. Those familiar with the use of that drug would not be surprised to learn that after the two of them began smoking methamphetamine their behaviour began to change. 3. The two victims were a Ms Wolf and a Mr Colburn. Ms Wolf was told to drive the car they were in. Almost immediately Mr Koroitamana began punching Mr Colburn to his face. Not unreasonably Mr Colburn said to Mr Koroitamana, "Why are you hitting me, why are you hitting me, we're supposed to be friends". In fact they knew each other from a previous association in custody. Mr Koroitamana did not stop, he continued to strike Mr Colburn and called him a dog. 4. Ms Wolf was upset by this turn of events and she began to cry. The offender then became involved saying to her, "Don't cry, don't cry, shut your mouth, don't talk just drive". Mr Koroitamana said to the offender, "If you don't shut her up I'm going to punch her". Mr Koroitamana then made a number of phone calls. He was requesting a firearm using terms he hoped perhaps would be difficult to understand. He told Ms Wolf to pull over and demanded that she and Mr Colburn hand over the phones. It was this offender who reached into Ms Wolf's bra and removed her iPhone 6 and began to look through it. Ms Wolf was told to drive to her home in Greenacre. Ms Wolf did that. 5. Mr Colburn was continuing to plead with Mr Koroitamana but the response was that he was punched by him. SM also struck Mr Colburn to his face on one occasion. Matters escalated even further when Mr Koroitamana produced some duct tape and he forced Mr Colburn to tape his ankles. Mr Koroitamana continued to punch Mr Colburn and said to him, "Shut the fuck up and do what you're told". All of this occurred in the presence of SM. She well knew what was going on and continued to participate. 6. Then the torture started. Mr Koroitamana proceeded to burn Mr Colburn on his arms using a flame from a lighter and also a lit cigarette. He used a set of scissors to point at Mr Colburn's eyes, putting the blade against his eye. I interpolate here to say that a victim impact statement was tendered by the Crown today. The effect on Mr Colburn as might be expected was a significant one. It is entirely foreseeable that a person subject to the violence to which Mr Colburn was subject would respond in the way he has. 7. Getting back the events that I was describing, Mr Koroitamana told the offender to tape Ms Wolf's hands to her steering wheel. Ms Wolf pleaded, "No, no, no, no". The offender told her, "Be quiet, be quiet nothing will happen to you. If you keep crying I'll have to hit you". Eventually the offender persuaded Mr Koroitamana not to tape Ms Wolf's hands to the steering wheel because she needed to drive. Mr Koroitamana then made further phone calls trying to get a firearm. Demands for money started to be made, Mr Koroitamana saying to Colburn, "You're going to have to call family to get us some money". 8. It was at this stage that Mr Koroitamana told Ms Wolf to drive to her home in Greenacre. Her manner of driving was deliberately designed to alert someone to what was going on but Mr Koroitamana appears to have worked this out, striking Mr Colburn and yelling at Ms Wolf who was driving, "Drive properly". Eventually the group arrived at Ms Wolf's home in Greenacre. Mr Koroitamana said to this offender, "Go suss the house out". She said to Colburn, "I'm going to take you in the house and torture and terrorise you". I repeat this was not something that Mr Koroitamana said, this was something the offender said. She told him that she was going to take him in the house and torture and terrorise him. Mr Colburn said, "I can get you money from my family", but this offender, I repeat this offender said, "Too late you've had your chance". Mr Koroitamana then punched Mr Colburn again in the face a number of times. 9. At this stage the offender and Ms Wolf went inside Ms Wolf's home. The offender held onto Ms Wolf controlling her movements. She struck her to her face using a clenched fist. The offender said, "Shut up don't talk to me you're my bitch, you're my puppet, you'll be working for me". This is serious criminality. These are the actions of a person acting in a very violent and disturbing way. 10. The offender began to open drawers and rummage through Ms Wolf's belongings in the kitchen. She found a full bottle of methylated spirits from under the sink in the kitchen. She turned to Ms Wolf and said, "I'm going to use this to burn the car and to burn you". Again this is conduct of great seriousness. One can only imagine the terror that Ms Wolf felt. 11. The offender took Ms Wolf into her bedroom and sat her on the bed. She was crying. For some strange reason the offender got a pair of tracksuit pants from a wardrobe and threw them at Ms Wolf and said, "Put these on you slut". Ms Wolf did what she was told and they returned to the vehicle. 12. The offender had armed herself with a knife. She pointed the blade of this knife towards Ms Wolf and said to Ms Wolf, "If you do anything I'll fucking stab you". Mr Koroitamana yelled at Ms Wolf to put her seatbelt on but she refused. Clearly Ms Wolf was planning something and she put this plan into effect soon afterwards. 13. As they approached a petrol station Ms Wolf opened the driver's side door and rolled out from the moving vehicle. That is, she jumped out of a moving car to escape these two offenders. That is perhaps the clearest indication of all of the terror that Ms Wolf felt. Driverless, the car rolled into a traffic control signal and came to a stop. Ms Wolf ran to the petrol station seeking refuge. Mr Koroitamana and the offender left the vehicle. Mr Colburn who is to be remembered was bound by duct tape, was able to remove that duct tape after rolling himself from the stopped vehicle. 14. It was not long before evidence was found indicating the involvement of Mr Koroitamana. He was arrested and taken to Liverpool Police Station. 15. On the afternoon of 15 July, the day after Mr Koroitamana was arrested, this offender attended Liverpool Hospital having injured her ankle as well as having a superficial stomach wound. That afternoon the offender voluntarily contacted triple-0 and made admissions to carrying out the offences to the operator. A short time later police arrested her and cautioned the offender. She was admitted to Liverpool Hospital but under police custody. The offender made admissions voluntarily to the police who were guarding her. These were electronically recorded. 16. Mr Colburn suffered a number of injuries. They are set out in detail in an agreed statement of facts tendered to me today. Photographs were also tendered which show just how badly treated he was by, primarily Mr Koroitamana, but also with the assistance of the offender who struck him on one occasion. Ms Wolf was not as badly injured. She was treated for grazing and swelling to both sides of her body. 17. As a result of all this the offender is now to be sentenced for an offence which carries a maximum penalty of 25 years imprisonment. That is an offence of taking and detain someone whilst in company with intent to obtain advantage and at the time occasioning actual bodily harm. The specific offence for which I am to sentence the offender concerns Mr Colburn. But she asks that when I sentence her for that matter I take into account an identical offence concerning Ms Wolf. 18. The offender pleaded guilty after she was committed for trial to this Court. The Crown says that she is deserving of a 10% discount. Mr White who appears for the offender says it is more like 15%. I am not going to specify the precise discount for pleading guilty but I will note the following. As well as offering to plead guilty SM offered to assist the authorities by giving evidence against her co-offender Mr Koroitamana. She signed an undertaking to that effect. It may be that her undertaking was not something that caused Mr Koroitamana to himself plead guilty, but her undertaking to give evidence for the prosecution is to be rewarded. This is not only because it is consistent with her remorse for having done what she did, not only because it speaks about her prospects for rehabilitation, but also and perhaps more fundamentally, because assistance of that kind is to be encouraged. I take into account both the assistance and the plea of guilty so that the sentence I impose upon SM will be about 30% less than it would otherwise have been. 19. I have learned a bit about SM's background. A Juvenile Justice report was tendered by the Crown. A psychological report was tendered by Mr White and SM herself gave evidence. The Juvenile Justice report notes that information on SM's background obtained from various sources is somewhat contradictory. However there is no doubt that SM experienced a troubled upbringing. She was exposed to substance misuse, domestic violence, sexual abuse and instability as regards to her accommodation. Her decision to become involved in these offences and to commit them has to be looked at in light of her background. The psychologist notes that SM has had a disrupted and traumatic childhood which has had a significant impact on her development trajectory. That is clearly the case. 20. Her behaviour began to deteriorate as a young woman, consistent with her unstable upbringing. For example she was suspended from school nine times for smoking and aggressive behaviour. Despite that she has shown that she can work. She worked fulltime at a McDonalds store in Liverpool but left following a disagreement with management. She worked at another McDonalds for a short time but left as a result of issues within her family. She has done some work experience as a barista in a café and that work is something she thinks she might pursue upon her release from custody. 21. She has continued to do courses to prepare for work as a barista whilst in custody. Indeed the Juvenile Justice report says "SM is an outstanding role model in the barista program and she enjoys teaching other students the fundamentals of coffee making". There is no doubt that SM has done very well whilst in custody. She has responded appropriately to requests made of her and participated willingly and enthusiastically in opportunities that have been offered to her, opportunities for education and work in particular. Because she has been on remand she has not been eligible for day release. But within that limitation she has shown that she has good prospects of rehabilitation. 22. Although of course not everything is rosy. SM's drug use leading up to these offences is going to be a challenge for her upon release from custody. 23. She will need considerable assistance for some time. SM has no previous convictions at all. She has expressed her remorse and is able to empathise with the effect of her offending on the victims of it. She clearly understood that what she did was wrong and her voluntary confession by ringing triple-0 from hospital is a significant factor which demonstrates SM's understanding of how wrong her behaviour was and a willingness to own up to what she had done and face the consequences. 24. It is apparent that the prime mover in these offences was not SM but her co-offender Mr Koroitamana. SM says that he, "stood over me" in the course of offending. But that is not an entire explanation. There were times, as I have noted, where SM acted independently of Mr Koroitamana, in particular by threatening Ms Wolf in her home, threating even to burn her with methylated spirits. 25. I mentioned at the very beginning of these remarks how serious this offending was. It extended over a substantial period of time. During that time there were numerous threats of assault and torture. Mr Colburn was actually tied up with duct tape, part of the offence occurred in Ms Wolf's home and a weapon was used, the knife that SM armed herself with and with which she threatened the victims. 26. The sentence I impose upon SM is of course a very different sentence to the one I would impose upon her were she not a juvenile offender. Particular rules apply to the sentencing of children. They appear in s 6 of the Children's Criminal Proceedings Act. In particular while SM bears responsibility for her actions she needs guidance and assistance because of her state of dependency and immaturity. There is reference in the material before me to SM being particularly immature, that is more immature than your average 17 year old. Clearly general deterrence and principles of retribution are of less significance in this case than they would be were I sentencing an adult for the same offences. I also must provide an opportunity for SM to rehabilitate herself. 27. Because of its seriousness, the offence for which I must specifically sentence SM must be dealt with according to law. I have no discretion. As I mentioned it is agreed that a custodial sentence is required and Mr White concedes that a further period of custody is required as a non-parole period to reflect the objective gravity of SM's conduct. 28. I will make an order under s 19 of the Children Criminal Proceedings Act. I direct that the sentence be served as a juvenile offender in a juvenile detention centre. I am required to give reasons for that finding. There are special circumstances justifying that order. They are that SM is vulnerable. She suffers from post-traumatic stress disorder and depression. Also there is material before me which indicates that if SM were committed to a Correctional Centre there would be an unacceptable risk of her suffering psychological harm due to a number of factors, in particular the very great difference between the assistance she has received in Juvenile Justice compared to the assistance she would receive in a Correctional Centre. There is also a greater risk in a Correctional Centre that her assistance would become known and there is a risk of associated harm to her from fellow inmates. 29. There are clearly special circumstances justifying a variation from the statutory ratio in this case. I make a finding to that effect. They relate to the need for SM to be supervised upon her release on parole to deal with issues such as her depression, her post‑traumatic stress disorder and her drug use. That finding of special circumstances is not made as a favour for SM, it is made because I want to ensure as far as I can that SM will not commit further offences in the future. 30. Taking into account the matter on the Form 1 I impose sentence as follows: 31. I impose a period of imprisonment consisting of a non-parole period of one year and nine months with a head sentence of three years and six months. That means that SM is eligible to be released to parole on 14 April 2018.