District Court New South Wales Medium Neutral Citation: R v Williams [2018] NSWDC 526 Hearing dates: 18 June 2018 Date of orders: 21 June 2018 Decision date: 21 June 2018 Jurisdiction: Criminal Before: Buscombe DCJ Decision: See paragraphs [86] to [90] Catchwords: CRIME — Violent offences — Assault with intent to rob — circumstances of aggravation — armed with offensive weapon CRIME — Property offences — Take and drive a conveyance SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Aggravating factors — Home of victim or any other person — temporary accommodation — Subjective considerations on sentence — young offender — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: BP v R [2010] NSWCCA 159 Bugmy v R (2013) 249 CR 571 Bullock v R [2016] NSWCCA Johnson [2016] NSWCCA 286 White v R [2016] NSWCCA 190 Category: Sentence Parties: Kevin John Williams (Offender) Director of Public Prosecutions (Crown) Representation: Counsel: Solicitors: E Brown (Crown) J Wilcox (Offender File Number(s): 2017/217570 SENTENCE 1. HIS HONOUR: The offender pleaded guilty in the Local Court and adhered to those pleas before me to the following two offences: that on 27 June 2017 at Griffith he broke and entered the Shearers' Quarters Backpackers' common room situated at Scenic Drive, Griffith, and assaulted Conor Britain with intent to rob in circumstances of aggravation being armed with an offensive weapon. 2. That is an offence under s 112(2) of the Crimes Act and has a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. 3. There is a second offence that at the same time and place he, without the consent of Frank Pesigne the owner of a conveyance being a 1991 Holden Jackeroo four-wheel drive, took and drove the conveyance. That is an offence under s 154A(1)(a) of the Crimes Act. It has a maximum penalty of five years imprisonment and there is no standard non-parole period. 4. The offender asks that when sentencing him on the aggravated break and enter offence that I take into account his acknowledged guilt in relation to a larceny offence which is on a form 1. Agreed Facts 1. The facts are agreed. The victim Conor Brittain was a British backpacker who arrived in Australia in October 2016 on a working holiday. 2. As at 16 June 2017 he moved to Griffith and was staying in the Shearers' Quarters Backpackers' Hotel located on Scenic Drive in Griffith. 3. The second victim, Mr Pesigne, was a French backpacker who was also staying at the location. He was the registered owner of the vehicle, the subject of the take and drive offence. 4. The Shearers' Quarters Backpackers' Hostel consisted of two accommodation buildings with multiple bedrooms. There is a separate common area with a television, seating, and a snack vending machine, and at one end of this common room was a locked office area. 5. On Monday 26 June 2017 there were between 30 to 40 persons staying at the Shearers' Quarters Backpackers'. During the evening and into the early hours of Tuesday 27 June 2017, the front gate of the car park area of the premises was left open. 6. At about 10pm the victim, Mr Brittain, was watching a movie with friends in the common area of the hostel. During the movie he fell asleep on a lounge and upon waking saw that all other people had left the common room. He moved to another lounge and fell asleep again. 7. At about 2am on 27 June 2017 the victim Mr Pesigne's vehicle, a Holden Jackaroo, was parked in a car park with the keys in the ignition. The victim left the keys in the ignition of the vehicle as the next morning a mechanic was going to resolve an engine trouble. 8. About this time the offender, who was in company of an unknown male, entered the car park. Both the offender and the unknown male tried to open the doors of a number of vehicles before the offender opened the vehicle concerned. Shortly after the vehicle was driven out of the car park of the Shearers' Quarters Backpackers' and onto the Scenic Hill area of Griffith. 9. About 3am the offender and an unknown male returned to the Shearers' Quarters Backpackers' as captured on closed-circuit television. Both the offender and the unknown male were wearing the same clothing as before. 10. The offender and the unknown male entered the side door of the common room. The door was closed but not locked, and the victim Mr Brittain was asleep on a lounge in the common room. The victim was woken by someone feeling the pocket area of his pants. 11. At the time the victim said, "You right?" and the offender said, "This is a robbery. Give me your fucking wallet." The victim saw the offender was armed with a knife. The offender had the knife in his right hand and was waving it around near the victim. The offender appeared angry. The victim said, "I don't have one." The offender said, "Give me your wallet or I'm gunna stab you." The victim said, "I don't have my wallet on me." 12. The offender continued to feel the victim's pockets looking for items. The victim again informed the offender he did not have any property with him and did not know where any property was held as he had only been at the hostel for a short time. 13. The victim was convinced that if he tried to run or protect himself he would be harmed. 14. The offender asked how to gain entry to the attached office and when the victim could not help the offender said, "Come with me, be quick." 15. The victim followed the offender outside the common room door, turned to the right and walked up to the office window. As the offender looked into the office window he put his left hand on the window and tried to force the window open, sticking the knife he was armed with into the corner of the window. 16. The victim saw a distinctive tattoo on the offender. 17. The offender picked up a rock and threw it through the office window. He then started to pick glass out of the hole in the window he had caused with the rock. When the offender could not get inside he went back into the common room with the victim following. 18. The offender tried to pick the lock on the door with a knife and could not break the lock. The offender kicked the bottom half of the door once or twice and the bottom of the door swung open. The offender walked under the top half of the door as it was still locked and went inside the office. He attempted to pull two safes from a bench in the office but was unable to do so as they were bolted to the office bench. He walked out of the office into the common room and said to the victim, "Follow me." 19. The offender still had the knife with him at the time the victim followed the offender outside through the car park and towards the entry gates. The victim saw an old red coloured car parked near the gates with a male person standing near the car. The male was described as wearing a red-coloured hoodie. 20. At this time the victim saw his opportunity to run and escaped from the offender. He ran to the accommodation block. He woke up his roommates and informed them what had occurred. The police were contacted. 21. The offender and an unknown male entered the common room, then the office where they removed two safes which were bolted on the office bench. The safes contained car keys for a VW and an iPad. The offender and the unknown male carried the safes to the nearby red car and got into the car and left. 22. Police arrived a short time later and established a crime scene. A number of fingerprint impressions and swabs were taken. A fingerprint impression was left upon the office window where the offender placed his left hand. 23. On 29 June 2017 the relevant motor vehicle was found and there is no suggestion in the facts that it was damaged. There was a DNA swab from the steering wheel which matched the offender. The offender was arrested on 17 July 2017 in Narrandera. 24. There is a detailed and moving victim impact statement before me which I have read. The victim eloquently sets out the impact the offence has had upon him. The victim impact statement makes the point that young people from other countries ought to be able to experience the joys of travelling around Australia free of being the victim of such terrifying offending. Objective Seriousness 1. I turn then to my assessment of the objective seriousness of the two offences. 2. In relation to the take and drive conveyance there was clearly a joint criminal enterprise with another male. While each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant. 3. The taking of the vehicle appears to have been relatively opportunistic, given the keys had been left in it. The vehicle was recovered two days later and there appears not to have been any damage to it. In those circumstances I would assess the objective seriousness of the offence as being towards the low end of the range. 4. In relation to the aggravated break and enter offence, the returning to the premises with a knife, suggests some level of planning. The presence of the knife clearly was apparent to the victim and there was a threat to stab. There was a smashing of the office window. 5. There is in effect a detention of the victim but I must be careful as the offender is not to be sentenced for a detaining offence. 6. I do not consider the presence of the unknown male in relation to the aggravated break and enter offence as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. The facts contain very little reference to the presence of that person in terms of any interaction with the victim of that offence. 7. Keeping in mind the discussion of that factor contained in White v R [2016] NSWCCA 190, I do not consider the aggravating factor of in company is made out here beyond reasonable doubt. 8. It was submitted by the Crown that the offence was aggravated under s 21A because the offence was committed in the home of the victim albeit it being his temporary home. 9. In the decision in Johnson [2016] NSWCCA 286 it was made clear that the reason the fact that the offence was committed in the victim's home was said to be an aggravating factor was because of his or her entitlement to feel secure in the home. 10. The facts satisfy me that the aggravated break and enter offence was committed in the temporary home of the victim, a place where he was entitled to feel safe. The Crown has established the aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act that the offence was committed in the victim's home. 11. I assess the objective seriousness of this offence as just a little below the midrange level. The offence would have been terrifying for the victim. 12. In terms of the larceny offence on the form 1, two safes were taken and not recovered so that is a significant larceny. 13. I have had regard to that offence when sentencing the offender on the aggravated break and enter offence in accordance with the guideline judgment concerning taking form 1 matters into account. The larceny is not an insignificant one and has some impact on the sentence to be imposed on that count. Offender's Subjective Case 1. I turn then to the offender's subjective case. The offender's date of birth is 3 February 1995 so he is 23 years of age and was 22 as at the time of the offences. He is therefore a young adult offender and the principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of the relevant principles in Bullock v R [2016] NSWCCA 131 and BP v R [2010] NSWCCA 159. 2. He has a significant juvenile and adult record. As a juvenile he has been dealt with for a number of break and enter offences and has received a number of control orders. As an adult he has received sentences of fulltime imprisonment in the past. 3. On 16 July 2015 in the Local Court he received a short sentence of fulltime imprisonment for offences of stalk or intimidate. 4. On 5 January 2016 he received sentences of fulltime imprisonment in the Local Court for offences of resist police officer in the execution of duty, break and enter and destroy property. 5. In this Court on 12 August 2016, he was sentenced to 12 months with a non-parole period of nine months for an aggravated break and enter. The sentence expired on 28 February 2017. 6. His criminal record does not assist him in this sentence, although I do not consider it is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. 7. A number of reports have been tendered on the offender's behalf. A Juvenile Justice report dated 2 September 2013 prepared for use in the Children's Court five years ago was tendered. That report noted that the offender had found it difficult to break the cycle of reoffending due to negative peers that he associated with. The authors of the report at that time considered that the offender had "great potential" in relation to developing his artistic skills. The authors also considered at that time the offender had tried to engage in courses while in detention to the best of his ability, although he found it difficult to maintain concentration. 8. The report also recorded that at that time the offender acknowledged that he needed to take responsibility and make positive changes in his life and realise that his use of illicit drugs and alcohol resulted in him making poor decisions and reoffending. 9. There is also before me a report dated 14 July 2016 by Anne Lucas, a forensic psychologist, which was prepared when the offender was to be sentenced in 2016 for a number of break and enter offences. 10. The report contains background information concerning the offender. His father died when he was an infant. Up until he was 13 he lived predominantly with his mother and sister and after that time with various relatives. 11. His mother had passed away two years prior to the report and this had an emotional impact upon the offender. He described an unsettled home life as a child and did not engage with school well. It was recorded that his closest associates tended to be those in negative contact with the law and drug use. 12. While in juvenile detention he completed the core components for Year 10 in terms of his education. The report records that as at that point in time he had a very limited employment history. 13. The report records information the offender had provided in relation to his drug use. He had commenced using cannabis in his early teens and had for some years used ice. He acknowledged that he had a substantial drug use problem and as at the date of that report had not engaged properly with any drug rehabilitation program. He was recorded as expressing a willingness to do so. 14. In terms of his psychological assessment, the report records that he has difficulties trusting professionals and may have difficulties associated with attention deficit disorder. The report records that he has high levels of impulsivity coupled with his drug use which impairs his ability to maintain social role expectations. He was also said to be egocentric and to have little regard for most others around him. 15. In terms of the intelligence testing that was administered to him by the psychologist, she recorded that there was a lack of application by him in the testing process. His full IQ score was said to be in the 60 to 70% range which suggested his intellectual function was in the extremely low borderline range. 16. The psychologist considered that he may have some difficulties with his cognitive function and further testing was required in that regard. 17. The testing that was administered suggested that he had antisocial personality characteristics. 18. There is also a report dated 15 June 2018 by Andrew Fordyce, psychologist. The background of the offender as recorded in that report is similar to that in the other two reports that are before me. 19. In terms of his drug use he again confirmed that he had not engaged in drug rehabilitation but asserted he was willing to do so. 20. He told the psychologist that as at the date of the offending he was engaging in daily drug use. He was said to express a superficial insight into his offending, although he was said to have expressed some regret for it. 21. Mr Fordyce considered the offender presented in a manner consistent with the intellectual assessment made by Ms Lucas in the earlier report. 22. Mr Fordyce records in his report that the offender had stated that his capacity for concentration had improved and his hyperactivity had reduced with age in that he no longer endured symptoms consistent with an attention deficit hyperactivity disorder. 23. The report records the psychologist's opinion that the offender's "developmental environment failed to address his neuropsychological and behavioural issues and as a result he was unable to develop adaptive, emotional and behaviour regulation skills commensurate with his capacity". 24. The report also records that the offender experienced racial discrimination leading him to develop a sense of social rejection and alienation which led him to find acceptance with antisocial peers. 25. The psychologist noted the offender had spent significant periods in juvenile custody which normalised an antisocial lifestyle. The report records that the offender had engaged in few prosocial activities in his early adulthood and has continued to engage in substance misuse. His continued substance abuse and contact with antisocial peers has ensured he continues to commit offences. 26. The offender gave evidence before me. His presentation in the witness box was consistent with that of someone who has a limited intelligence, although he clearly understood what was asked of him in giving evidence. His presentation was consistent in my opinion with the assessment Ms Lucas made of his intelligence in her 2016 report. 27. He expressed some sorrow for the victim but struggled to explain the impact he thought his offences would have had on the victims. 28. He confirmed, as recorded in Mr Fordyce's report, that he had in the past experienced racism when a boy and that had in part led him to associate with negative peers. 29. He confirmed his background as recorded in the reports and clearly the death of his mother when he was in his late teens has affected him significantly. He expressed the hope and intention that he would be able to live a law-abiding life if he lived with his brother upon his release. 30. Clearly given his record, and his inability to engage in the past with drug rehabilitation, his prospects of rehabilitation are no better than guarded. Unless he receives very careful and intensive supervision upon his release from custody I think it is highly likely he will reoffend and return to custody. Consideration 1. As I mentioned earlier, the plea of guilty was entered in the Local Court and I will allow the offender a 25% discount of his sentence for the utilitarian value of his plea. There is some limited evidence of remorse being the expression of remorse recorded in the report of Mr Fordyce and the evidence the offender gave before me. 2. It seems to me, however, the offender has limited insight as to the impact of his offence on the victim. I also note the early plea of guilty as being some indication of his remorse. 3. The evidence about the cognitive capacity of the offender is not as clear as perhaps it should be. Ms Lucas in 2016 considered he did not try as hard as he might when she tested his cognitive functioning and she had some reservations as to whether his overall IQ score represented his intellect as a whole. Her report suggested that further comprehensive testing was required in order to determine whether or not he has a particular cognitive impairment. I noted earlier that he appeared to me to present in the witness box as someone who has a limited intellect. 4. On balance I am satisfied that the offender has a limited intellect and that has impacted upon his ability to make appropriate decisions when in the community, in particular in relation to his drug use and his chosen peers. I consider that his limited intellect to some degree reduces his moral culpability in relation to the offending. I also consider it means that he is not a suitable vehicle for the full expression of general deterrence when sentencing him. 5. Generally speaking the fact that he committed the offence while addicted to prohibited drugs is not a mitigating factor. I consider here, however, that his use of prohibited drugs is linked to his limited intellect and his unsettled upbringing and some regard can be had to that in the offender's favour when considering the appropriate sentence to impose. 6. His upbringing was unsettled but I do not consider that it can be said to have been a socially disadvantaged one. I consider that the principles in Bugmy v R (2013) 249 CR 571 have very little application here when all the evidence of his background is considered. It appears that he was materially well provided for and there were attempts to ensure he received an education, but I accept that his upbringing was somewhat unsettled. 7. I am satisfied on the evidence, as I say, the offender has guarded prospects of rehabilitation. His prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio. I also consider that his youth, his need for drug rehabilitation and the prospects of him becoming institutionalised, all justify a finding of special circumstances. 8. The offender has been in custody since the date of his arrest being 17 July 2017 and the sentence will be backdated to that date. 9. Given that there are two different victims I consider that there must be some accumulation of the sentences. I consider that it should be limited given that there was effectively one episode of criminality. 10. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include, amongst other things, the need to impose adequate punishment, general and specific deterrence and rehabilitation of the offender and the harm to the victim. There is some reduction in the need to reflect general deterrence in this sentence because of the offender's, what I consider to be, borderline intellect. 11. Offences such as the aggravated break and enter offence here are very serious violent offences where a significant sentence of imprisonment must be imposed. Clearly the victim would have been terrified during this particular offence. 12. The offender's record is such that there must be an element of specific deterrence reflected in the sentence. Given his relatively young age and limited intellect I must be careful not to impose a crushing sentence. 13. The maximum penalty and the standard non-parole period where applicable have been taken into account as legislative guideposts as explained by the High Court in Muldock v R (2011) 244 CLR 120. 14. I propose to impose an aggregate sentence. I will firstly record the indicative sentences and in relation to the aggravated break and enter the indicative non-parole period. Orders 1. Mr Williams would you please stand? You are convicted of the two offences to which you have pleaded guilty. On the take and drive conveyance offence, the stealing of the car offence, there is an indicative sentence of 12 months imprisonment. 2. On the aggravated break and enter offence, there is an indicative sentence of three years imprisonment with an indicative non-parole period of two years. 3. I impose an aggregate sentence of three and a half years imprisonment with an aggregate non-parole period of two years and four months imprisonment. 4. The sentence commences on 17 July 2017. It expires on 16 January 2021. The non-parole period expires on 16 November 2019. 5. The earliest date you may be released to parole is the date of the expiry of the non-parole period which is 16 November 2019. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. ********** 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: 24 October 2019