R v Greer ; R v Stewart [2018] NSWDC 159

District Court New South Wales

Medium Neutral Citation: R v Greer ; R v Stewart [2018] NSWDC 159 Hearing dates: 13 April 2018 Date of orders: 13 April 2018 Decision date: 13 April 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Mr Greer – adjourned under s11 of the Crimes (Sentencing Procedure) Act Mr Stewart – is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence - Robbery in company - Violence - Alcohol consumption leading to offending Legislation Cited: Crimes (Sentencing Procedure) Act. Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 Category: Sentence Parties: The Crown Luke Greer Troy Stewart Representation: Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender Greer) Aboriginal Legal Service (Offender Stewart File Number(s): 2015/365615 - 2017/34482 - 2017/33923

SENTENCE 1. HIS HONOUR: The case that I am dealing with at the moment is a good illustration of why it has been the law for some time that intoxication is not a mitigating feature when assessing the seriousness of an offence. Both offenders for sentence today have a history of acting illegally when drunk, Mr Greer much more than Mr Stewart. Despite that they continued to drink to excess. They both claim that they have no memory of the offence for which I must sentence them today because of the amount that they had drunk. But given, again especially in Mr Greer's case, the close connection between illegal and aggressive behaviour and his alcohol consumption, his decision to keep drinking to excess, is not something which really has a lot to say about the objective gravity of his conduct. 2. Both men had been playing football. At the conclusion of their game they went to the pub. There they had a few beers. They drank some more. At about 1 o'clock in the morning on 3 October 2016 they tried to go and have some more to drink at the Regent Hotel on Anzac Parade in Kingsford. They could not get in because it was closed. At this time the unfortunate victim, Mr Keyu Liu was walking north along Anzac Parade. He was in the wrong place at the wrong time. He was entitled, of course, to be out at 1 o'clock in the morning without being subject to the violent actions of two drunken men. What I am about to describe is a significant breach of the peace as well as serious criminal behaviour. 3. What happened was that Mr Liu walked past the two offenders. It was Mr Greer who first turned around and followed him. He appears to have been the leader in what I am about to describe, with Mr Stewart following along. Mr Greer caught up with Mr Liu. He asked him "Do you have a lighter?" Mr Lieu said that he did not. Both men then took a step towards him, Mr Stewart taking hold of Mr Liu's wallet, which he was holding in his hand. Not surprisingly Mr Liu tried to resist. Mr Greer placed both of his hands around Mr Liu's neck and pinned him against the fence, choking him. Mr Stewart rummaged through Mr Liu's wallet and took $200 while Mr Greer was holding him. Mr Greer then took the victim's iPhone and put it in his pocket. Again, not surprisingly Mr Liu asked the men not to take his phone. Mr Greer's response was to slap him to his face and said "Do you want to try and fight with my friend?" The reason that Mr Greer threatened Mr Liu with violence from Mr Stewart is because Mr Stewart is a large man. No doubt the prospect of fighting with him was a matter that caused Mr Liu some concern. Mr Greer asked Mr Liu if he wanted his wallet. Mr Liu said that he did. Mr Greer said "Just take it and go away". At this Mr Stewart did return the wallet as Mr Greer released hold of Mr Liu. Mr Stewart then shook Mr Liu's hand, perhaps in an aggressive manner, perhaps not, before wrapping his arm around the back of his neck and pulling him away from the fence, upon which he was leaning. They then turned away and walked away. 4. Mr Liu followed them. Mr Greer responded by turning around and forcefully pushing Mr Liu backwards. He did this a number of times, and Mr Stewart approached him in an aggressive manner. Mr Stewart handed Mr Greer $50. 5. When Mr Liu got home he contacted the police. As a result of the assault he sustained redness and scratches to his neck. Police later arrested Mr Greer on 2 February 2017 and Mr Stewart on the same date. Although Mr Greer said to police, who were transporting him to the police station, "It was just a stupid thing I did on the piss", once he got to the police station he declined the opportunity of participating in an interview with them. He did agree that he had said the words in the police car on the way to the station. 6. When Mr Stewart was arrested he participated in an interview, but made no comment. 7. This offence is a very serious one. Two men confronted an innocent man, who was doing nothing more than walking home. He was entitled to do that. People should be able to go out of an evening and enjoy themselves without being subject to violent robberies such as that I have just described. 8. The offenders pleaded guilty at the earliest opportunity and so the sentence I will ultimately impose upon them will be 25% less than they would otherwise have been. Neither of them has spent any time in custody being granted bail soon after they were arrested. 9. Mr Greer has a number of offences on his criminal history, aggravated enter dwelling, common assault, fail to appear and contravene an AVO. In evidence he acknowledged that these offences were also committed whilst he was drunk. Mr Stewart has one matter on his criminal history, an affray some years ago, also alcohol related, for which he received a s 10 bond. I should also mention that Mr Greer was on a s 9 bond at the time of this offence. He committed a serious breach of an Apprehended Domestic Violence Order. The magistrate dealt with him, I must say, remarkably leniently given the circumstances of the offence by putting him on a s 9 bond. As I mentioned he breached that bond by committing this offence and he has asked me to deal with the consequences of that breach at the same time as I impose sentence for the robbery in company matter. 10. Although both men are Aboriginal, perhaps the issue of alcohol consumption aside, this is not a case in which Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 considerations loom large. Both grew up in households where, again perhaps drinking aside, appropriate behaviour was modelled. 11. Mr Greer's parents argued over his mother's drinking and finally separated when he was 15. But his father continued to live in the same apartment building and had daily contact with him. Mr Greer was an average student at school. He left school after completing his School Certificate, has done a number of courses and most recently was working as a forklift driver, having gained his forklift licence. 12. He is in a relationship with a young woman, the person the subject of the breach of the Apprehended Domestic Violence Order. Together they have six children, twins born only a week or so ago included. Mr Greer has given up work as a forklift driver to assist his wife with the difficult demands of having six children, including two newborn twins. 13. There is an added factor as well that Mr Greer wants me to take into account, that is, that only very recently his wife was admitted to hospital with a burst artery in her neck. She requires further examination in the coming weeks as there is a possibility that there could be some blood clots in her brain. There are few supports for her apart from him and no real long-term options, although Mr Greer does acknowledge that were he to go into gaol today his partner would be able to cope. 14. Mr Stewart was raised in a loving and caring home environment. A psychological report tendered today describes his adolescence as unremarkable, after which he embarked on stable employment and a stable relationship. Mr Stewart has, however, developed a depressive disorder which has led in turn to him consuming alcohol to excess which has led to him committing the criminal offence of affray some time ago and this robbery in company offence most recently. In common with Mr Greer his use of alcohol began earlier than it should have and has escalated to a situation where, again in common with Mr Stewart, he drinks to excess and has sometimes no memory of what he did when he was drunk. 15. Mr Greer has prospects of employment in the future although, as I mentioned, he gave up his work as a forklift driver to assist his wife. Once things settle down in that regard he will have work available. 16. Mr Stewart is currently engaged in the Tribal Warrior program doing a coxswain's course. He will soon be embarking, should he be able to do so, on a trip on a boat to Townsville as part of that coxswain's course. He has been told that employment is pretty much guaranteed upon completion of the course, working on a ferry or a tugboat and that he hopes to be able to do a master mariner's course which will enable him to pilot the boats rather than simply being a deckhand. 17. In the case of both men personal deterrence is of clear importance. In Mr Greer's case he continued to drink despite knowing full well that when he did so he would get into trouble and become aggressive. It needs to be brought home to Mr Greer in no uncertain terms that his behaviour has harmed people, perhaps many people, including his wife and also of course most relevantly to the present offence, Mr Liu. Also, general deterrence is of importance, perhaps slightly less so in Mr Stewart's case because of his depressive disorder but, as I have said repeatedly throughout these remarks on sentence, people should be entitled to walk home at night without being robbed by drunken, aggressive men. 18. It is necessary to impose sentences upon the offenders which will have the effect of hopefully deterring others who may be tempted to act in the way these men have. 19. As I foreshadowed during the course of submissions, what I propose to do in Mr Greer's case is to adjourn this matter under s 11 of the Crimes (Sentencing Procedure) Act. I did this despite the opposition of the Crown who firmly and appropriately submitted that nothing less than full time custody was appropriate for Mr Greer. However, the extra family responsibilities he has recently taken on when his twins were born and the counselling that he has been undertaking with a Mr Freeman every Monday may well help to enable him to demonstrate to me that he will become a much different person to the person he was when he robbed Mr Liu. 20. It may well be the case that even if Mr Greer does well on the period of remand he does go to gaol full time when he comes back before me but even so a period on bail under s 11 of the Crimes (Sentencing Procedure) Act will enable me to make a better assessment of his prospects for rehabilitation. If he does not do well of course he may end up being worse off than if I was to sentence him today. 21. I should have said that I have of course taken into account the guideline judgment of R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 in formulating the appropriate sentence. Although Henry was a guideline judgment concerning the offence of armed robbery it has become, perhaps to the surprise of many people involved in Henry in the first place, to be considered as an appropriate guideline for the offence of robbery in company. I do take into account that actual violence was inflicted upon Mr Liu in the course of this offence, he was choked for a short time and slapped by Mr Greer. The four to five year guideline range, was postulated of course on a late plea of guilty, and the pleas of guilty in this case were early. In any case the guideline sentence was just that, a guideline, and sentencing judges are entitled to depart from it in an appropriate case; especially in the case of Mr Stewart I do consider that this is an appropriate case in which to depart from the guideline sentence. 22. Mr Stewart's consumption of alcohol is related to his depressive disorder and also related to his criminal behaviour. If Mr Stewart is able to deal with his depressive disorder then he will drink less and is much less likely therefore to commit offences in the future. 23. I have determined the length of the sentence I will impose upon Mr Stewart. It is such that an alternative to fulltime custody is available. This is, in my view, a fortunate state of affairs as there should be both an element of punishment of Mr Stewart and also an opportunity for him to rehabilitate with proper supervision, such an outcome being available in the event that I ultimately impose an intensive corrections order upon him. So the orders I make are these. 24. The conditions of Mr Greer's bail are these. He is to be supervised by Probation and Parole Service. He is to do all that the Probation and Parole Service require of him, regarding courses, particularly courses regarding his alcohol consumption and anger management. He is also to continue to see Brad Freeman as often and for as long as Mr Freeman considers that it would be useful. In the event that the Probation and Parole Service and Mr Freeman, in consultation agree, that Mr Greer need no longer attend on Mr Freeman, then that can stop. 25. In Mr Stewart's case, I adjourn the matter until 22 June and request that an assessment as to Mr Stewart's suitable to serve a sentence by means of an ICO. 26. I will ask that when the request goes to the Probation and Parole for that assessment, it is to be noted that Mr Stewart will be absent from the jurisdiction until the end of April. 27. I grant Mr Stewart unconditional bail pending the assessment. 28. HIS HONOUR: Now, Mr Greer - I am going to now address you directly. 29. As I told Mr Betts, if I sentenced you today, you would probably go to gaol. You are rather fortunate in that it would be difficult to send you to gaol today because Corrective Services are conducting some industrial action. I will not say that is the only reason I did not send you to gaol today but it created a few difficulties. So you really do deserve to go to gaol. The Crown says you have to go to gaol and one can understand why that submission is made. So if you want to stay out of gaol, you have to come back next March with, I will call it an A grade pass. Do you understand what I mean? Not a minus B plus. You need an A grade pass to stay out of gaol. I do not even make any promises. You might come back with an A grade pass and still go to gaol anyway but you want to maximise the chance that you are not going to go there. A place that, looking at matters, some people might think you richly deserve to go. So if you do come back and there is the slightest hint that you have not been able to deal with your alcohol consumption in the way you say you are trying to, then I am going to send you to gaol and you will only have yourself to blame. Do you understand that? Do you understand the real perilous position you are in? 30. OFFENDER GREER: Yes, your Honour. 31. HIS HONOUR: Good. Mr Stewart, you have got to persuade the Corrective Services authorities that you are going to be suitable for an Intensive Corrections Order. One of the things they do on an ICO, is they breath test you quite regularly and if you are found to be intoxicated during the period of their assessment, then you will probably end up in gaol too. So that is a bit of an incentive to you to do something about your drinking. Do you understand that? 32. OFFENDER STEWART: Yes, your Honour. 33. HIS HONOUR: Okay. I am not going to pretend that it is easy to give up an addiction, whether it is gambling, drugs or alcohol, but he here is a real incentive for you to do that. Do you understand? 34. OFFENDER STEWART: Yes, your Honour. 35. HIS HONOUR: Right, thank you. 36. ADJOURNED FOR SENTENCE TO FRIDAY 22 JUNE 2018 FOR OFFENDER STEWART 37. ADJOURNED TO FRIDAY 15 MARCH 2019 FOR OFFENDER GREER