District Court New South Wales Medium Neutral Citation: R v Joshua White [2019] NSWDC 676 Hearing dates: 6 June 2019 Date of orders: 06 June 2019 Decision date: 06 June 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: Sentenced to an aggregate term of imprisonment for a period of 5½ years with a non-parole period of 3½ years. Catchwords: CRIMINAL LAW – Sentence – Affray – Assault Occasioning actual bodily harm – Common assault – Conduct negotiations to supply to an unauthorised person – Attempt to acquire a firearm without a permit – Attempt to acquire an unregistered firearm – Attempt to acquire ammunition without a permit – Act with intent to influence a witness. Legislation Cited: Crimes Act, Crimes (Sentencing Procedure) Act. Firearms Act Cases Cited: Bugmy v The Queen , [2013] HCA 37; (2013) 249 CLR 571 Jinnette v R [2012] NSWCCA 217 Category: Sentence Parties: The Crown Joshua White Representation: Counsel: A Bowen – The Crown I Reed - Offender Solicitors: Director of Public Prosecutions Katsoolis & Co File Number(s): 2016/59819 ; 2016/59862 Publication restriction: There is to be no publication of the name of a complainant or any material which may tend to identify a complainant Judgment 1. HIS HONOUR: Joshua Gregory White is before the Court for sentence, in relation to four principal offences. The first count is an offence of affray, in breach of s 93C(1) of the Crimes Act, for which is provided a maximum penalty of 10 years. In relation to that matter, I am invited by the parties to, and will, take into account, two matters on a Form 1; one being an assault occasioning actual bodily harm and the second being a common assault. The second principal count is an offence of conduct negotiations to supply a pistol to an unauthorised person, in breach of s 51(1)A(a) of the Firearms Act. That matter has provision for a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years has application. In relation to that matter, I am invited by the parties to, and will, take into account, on a Form 1, three offences, being attempt to acquire a firearm, without a permit, attempt to acquire an unregistered firearm and an attempt to acquire ammunition, without a permit. 2. In relation to the matters to which Forms 1 attach, it is inevitable that the offences, on those forms, need to be taken into account and will place upward pressure on the penalty that otherwise would be imposed. 3. The third and fourth principal offences for sentence are, two offences of act with intent to influence a witness, in breach of s 323(a) of the Crimes Act, for which a maximum penalty of 14 years, in each case, has application. No standard non-parole period has application. 4. In relation to the matters, I will take into account the maximum penalty and where relevant, the standard non-parole period, as a guide or a benchmark, in the way contemplated by the authorities. 5. These reasons for sentence should be understood to be extempore reasons delivered on the day that I read and heard evidence and read and heard submissions of both the parties. That was in the context of Mr White, earlier in these sittings of the Armidale District Court, having entered pleas of guilty, to these matters, which were preferred against him, after he was acquitted of a different class of offence, earlier again in the sittings. 6. The Crown material consisted of the Crown sentence bundle, which includes sets of agreed facts for the four offences, the offender's criminal history, his custodial movements and discipline record and various communications from the State Parole Authority. That material was tendered and admitted without objection as exhibit A. In the case for the offender, to which I will return in due course, that consisted, in documentary form, of a number of reports from Dr Olav Nielssen, forensic psychiatrist, as exhibit 1, some reports too and a determination of the Mental Health Review Tribunal, the offender's handwritten statement, which he adopted in sworn evidence before me. Additionally, I heard oral evidence, by way of a telephone link from Dr Nielssen, to expand upon his findings and, in particular, to answer questions by the Crown Prosecutor, designed to, as turned out to be the fact, allay the Crown's concerns about Mr White's future dangerousness, given a reading of his record and his entrenched mental health difficulties. 7. I will have regard to all the purposes of sentencing, as set out at s 3A of the Crimes (Sentencing Procedure) Act. 8. This is a matter where evidence pulls in different directions, in relation to some of those issues, particularly in relation to general deterrence, specific deterrence and rehabilitation. It is to be understood that successful rehabilitation of offenders, particularly those with entrenched mental health difficulties, really is in the protection of the community. 9. I propose to briefly now deal with the agreed facts, in relation to the different principal offences and the matters on the Forms 1 and make some observations about the objective seriousness, of each of those matters. 10. The facts in relation to the affray and the two assault matters, that are on one Form 1, are fairly briefly summarised. At about 2am, on 10 October 2015, the offender, a person called Kent Greentree and other patrons left the Oxford Hotel in Inverell. The offender and people that he was with walked along the street in the direction of the Inverell Motel. The offender approached Ayuelel Adut, who was the victim in relation to the affray offence and said words to the effect of "Leave J alone". That can be understood, in the context of all the material, as being a reference to the offender's then housemate and former partner. The offender approached Adut, slapped him on the face with an open palm, which caused that person to fall flat on his back, where he remained unresponsive for some time before getting back up. The offender yelled at him "I should have hit you with a closed fist, not a slap". They are the facts that relate to the affray. 11. Mr Greentree observed what was happening and came to Mr Adut's aid. The offender and Mr Greentree became involved in an argument, which became heated and both of them began pushing one another. The offender removed his shirt, shaped up in a fighting stance and began dancing around like a boxer. The two people became involved in a physical altercation, in which the offender ultimately punched Mr Greentree to the face. He fell backwards, hitting his head on the ground and became unconscious. The offender then kicked him while on the ground. A witness yelled to the offender "Don't kick him while he's down". As a result of that assault, the victim suffered a lump to the back of his head, which is the actual bodily harm, in relation to the offence of assault occasioning actual bodily harm that is on the form 1. The offender then spat at Mr Greentree's face, which constitutes the facts, in relation to the assault. 12. In terms of the affray, the objective seriousness of the affray falls towards the lower range of objective seriousness, simply because many matters that attract criminal liability for affray and go on for a long time, involve a large number of offenders and serious levels of fear in those observing the affray. It must be said that the affray, in relation to Mr Adut, was in a relatively narrow focus and even though the way Mr White behaved towards him, there was some material that is consistent with there having been some level of provocation. I find that matter falls towards the lower end of objective seriousness. 13. The assault occasioning actual bodily harm was a serious example of its type in the sense that Mr Greentree was, having already occasioned injuries and been unconscious, was kicked. Insult was then added to injury by the spitting, which is at the lower end of physical violence for common assault but is a degrading offence. I will say more about the offender's moral culpability, generally, when I deal with matters that relate to the psychiatric evidence. 14. Moving to the firearms offences. They are all linked. The Crown fairly, in my assessment, in its written submissions, concedes that these offences fall towards the lower end of the range, which is also the way that I am invited to characterise them, by Ms Reed, who appears for Mr White as well. That is because even though the offender, in the communications that have been intercepted in which he either purported to supply or sought to acquire firearms, as the case may be, there is not any evidence of a firearm actually changing hands. Of course, negotiations for these kind of things, is taken seriously and the whole purpose of the Firearms Act, at s 3 of that Act, is to protect the community. 15. In short, the facts that relate to the offences, that are on the Form 1, can all be dealt with together, that is the attempt to acquire firearm without a permit, attempt to acquire an unregistered firearm and an attempt to acquire ammunition. 16. Police had in place lawful interception of the offender's mobile phone service and JP's telephone service. That was a result of an investigation into a different matter and indeed, the matter of which he was acquitted last month. 17. Among communications that were caught by that warrant were the accused speaking to somebody called Brendan Blair, inquiring where he got "that piece from". 18. Between 14 December 2015 and 14 January 2016, there was ongoing telephone and text communications between the offender, Ms P and Mr Blair and his brother in Queensland, concerning attempted acquisition of the firearm. That included material consistent with there being a negotiation for a firearm for an amount of 800, which I assume to be $800. 19. In the event notwithstanding that there is material that suggests that the offender drove with Ms P from Inverell to Toowoomba, the accused received two calls from the person Andy Blair, that he did not answer, the co‑accused's attempted to contact Andy Blair but that was unsuccessful. 20. The offender and Ms P drove from Toowoomba to Warwick. There was an ambivalent communication between the accused and Mr Blair and there was no further contact between the parties and no firearm was in fact acquired. 21. The facts in relation to the negotiations to supply a pistol include that on 7 February 2016, Beau Devlin. The offender had a conversation with a person he knew only via Facebook as Beau Devlin. In effect, the accused offered to either directly or indirectly put Mr Devlin in touch with "the bloke I deal with who's at Warwick". There were a number of communications caught, including the accused quoting 1,200, which I assume to be a reference to $1,200. 22. In early February, there were a number of communications between the offender and Mr Devlin. That concluded with the offender sending a text message to Devlin, on 9 February 2016, "No good, we need to talk tomorrow bra, not now, out doing shit, okay". And Mr Devline, it is agreed, was not licensed to possess a pistol. 23. In terms of the firearms matters, there is a range of matters that are not made out, in those offences, that would normally serve to make the matters more serious. As examples, the number of weapons linked to organised crime, are examples of aggravating circumstances that are not made out, in relation to the firearms offences, for which I am sentencing Mr White today. 24. They are the facts in relation to those matters and I have already characterised the objective seriousness of those matters as towards the lowest range. 25. The third and fourth counts are serious counts. They are offences of influencing witnesses. In relation to the third offence, the witness was JP, who is now deceased and in relation to the fourth offence, the witness was a person called Alberico Mayol. 26. On 24 February 2016, the offender was arrested and remanded in custody, in relation to a number of offences. Before being remanded in custody and then whilst in custody, the offender made numerous telephone calls to JP, who at that time was his housemate and former partner and also to Alberico Mayol, a person he had come to know in Inverell, prior to his arrest. Additionally, the offender sent numerous handwritten letters to JP, while he was in custody. As a result of search warrants and with Ms P's consent, investigating police ultimately obtained that correspondence and also lawfully gained access to recordings of various telephone calls made while in custody. That correspondent clearly demonstrated the offender encouraging Ms P to change or add to her police statement so as to exculpate him and encouraging her to approach Mayol to change his statement likewise. 27. The contents of the letters indicated that the offender realised that Ms P was cooperating with the police and consequently, his assertions of events were more emphatically stressed. The offender challenged Ms P's memory, her loyalty to him and ultimately, made a number of threats, that were directed to her and her family. 28. In relation to the incident that I have already described, in relation to the affray event of 10 October 2015, the offender persuaded Ms P to give a version consistent with him acting in self-defence, which was the original way that he put it to the police and also to omit some relevant details, in relation to the assault on the victim, in so doing, he was asking Ms P to withhold true evidence. 29. Similarly, in relation to the alleged sexual assault and that is the matter of which the offender was acquitted in May of this year, the offender sent text messages and made relevant phone calls to both Ms P and Mr Mayol, advising them to "tell the truth", whilst insisting that his version was such. The substance of such communications, to both, clearly indicated that the offender was attempting to manipulate each, to align their version of events with his own, namely to give false evidence. 30. In a letter sent to Ms P, dated 26 June 2016, the offender notified Ms P that he knew that she had participated in a record of interview. He then had communications with her and calling her a thief, a dog, a backstabber and making various other threats and derogatory comments to her. Finally, he communicated with her "my mate, Lebanese people, come with a van, maybe you don't want that knowing you dogged me, liar". The nature of the text and telephone calls, with the final letter of 26 June 2016, demonstrates clearly the efforts of the offender to undertake to have Ms P and Mr Mayol change their evidence and give evidence. It ought to be noted, for completeness, that by the time the relevant trial proceedings were heard, Ms P was deceased and there was no attempt made, by the prosecution, to lead any of her evidence. A statement of Ms Mayol that apparently was not changed, as a result of the offender's communications, was read to the jury, in the event of me having determined that he was unavailable to give evidence. 31. What does all that mean, in terms of objective seriousness? These are matters that go to the fount of justice and are seen very seriously. The authorities have repeatedly said that the true victim of these kind of offences is the community itself. 32. The offending is made more serious, particularly in relation to the offence that touches Ms P, because it was conducted both while the offender was at liberty and in custody and across a number of months. I take the view that the offending, in relation to Ms P, because she was being invited to alter her evidence, in relation to at least two different events and was the subject of serious threats, was quite serious. 33. In relation to the offence that involved Mr Mayol, the objective seriousness is not as serious as will sometimes be the case because there is no suggestion that the threats in fact resulted in the giving of false evidence. I consider that the objective seriousness, in relation to Ms P, is at about the midrange of objective seriousness, whereas the offending in relation to Mr Mayol is below midrange but does not reach the low range. 34. I now want to move to some matters that are personal to the offender. He has a record that denies him leniency. He has a record that commenced when he was in his early teenage years. There is a range of matters across the criminal calendar and in the 1990s, the offender served a relatively lengthy sentence, for a serious sexual assault, which was the subject of a plea of guilty. An analysis of his record would reveal that, as a younger person, he was often before the courts in relation to typically juvenile offences, to do with stealing vehicles, driving in an unlicensed fashion and the like. From the early 1990s onwards, a pattern emerges in his record where there are a not-insignificant number of entries for either common assault, intimidation, assault police, assault occasioning actual bodily harm, assault police officer in the execution of his duty. Taking into account a period of more than three years that he has spent on remand, in relation to these matters, the offender has been incarcerated for a period of about 10 years, across the last 20 years. What that means, in part, is that he is at risk of institutionalisation and that is one of the range of factors that I will take into account when I ultimately determine to find special circumstances. The reason that can properly be seen as a finding of special circumstances is found in a CCA case of Jinnette v R [2012] NSWCCA 217, in which the Court of Criminal Appeal found that a judge was not in error to find that dealing with a risk of institutionalisation was a proper basis for finding special circumstances. In fact, I prefer the reasoning of Justice Johnson, who said really in that case that it was in the protection of the community to have people at risk of institutionalisation address that issue because otherwise, the idea of custody fails to become of any deterrent effect and that cannot be in the communities' interest. 35. The Court has a plethora of psychiatric evidence before it. All of that material was best put in a context by the elaborating evidence of Dr Olav Nielssen given in court today. In short, although the offender has been subject to either periods when he had untreated mental conditions or potentially, misdiagnosed psychiatric conditions. Given Dr Nielssen's admitted eminence in the area of psychiatry, the fact that he has assessed the offender on multiple occasions and as recently as this week, I am prepared to find, on the basis of his evidence and reports, that the offender is diagnosed with a bipolar condition that has some schizoaffective features. I accept Dr Nielssen's assessment that the bipolar condition is currently in remission. That is because, more recently in custody, Mr White has been compliant with his treatment and taking regularly lithium and Seroquel. The offender himself was able to give some evidence that persuades me that he understands the beneficial and necessary effects of taking that medication, both in custody and when he is released into the community. 36. Additionally, Dr Nielssen diagnoses him with substance abuse disorder, also in remission. That is because the offender has been in custody for three years and three months and is apparently not taking prohibited drugs while in custody. I accept Dr Nielssen's evidence that some of the schizoaffective factors within Mr White's mental condition, are likely contributed to by his past abuse of methylamphetamine. I am persuaded by his frank evidence in the witness box that the offender understands the links between his psychiatric illness, when unmedicated and taking illicit drugs. It is pretty obvious, even to the experienced lay observer, that somebody with a volatile mood disorder will only make it worse, by taking a pernicious stimulant drug like methamphetamine. Whether the offender's stated intention of staying drug free and being compliant with his psychiatric medication proves true in the community, is a question that ultimately, only he can answer by his future conduct. 37. Having heard his evidence and considered all the psychiatric material and his carefully crafted letter of remorse and apology, I am prepared to make the following findings. I accept that he is genuinely remorseful for his misconduct in the past. I accept that he understands there is a link both between drug taking and his unmedicated mood disorder and his propensity to violence. I am prepared to consider that his moral culpability, in relation to the affray and related assault matters, is significantly moderated because of his mental condition. That is because I am persuaded that, on all the material before me and Dr Olav Nielssen's opinion, that there is a causal connection between his unmedicated state and the violence that he showed on that occasion. Although levels of paranoia about his court outcome and paranoia in the community about those who he perceived might harm him, led in part to the offending, that led to the influenced witness matters and the attempts to acquire a firearm, I am not persuaded that the causal link is so strong in relation to the other offences. It is clear this his mental illness contributed to his conduct but all of those three offences involved a level of planning and commitment to purpose, that was somewhat inconsistent with just irrational, unmedicated behaviour. That said, his moral culpability is slightly moderated, in relation to those matters because of his untreated psychiatric illness at the relevant time. 38. On the basis of all the material and particularly given that the offender gave sworn evidence adopting it and was subject to cross-examination by the Crown, the thing that really does reduce his moral culpability, in a significant way, is that he had what can only be described as a very parlous upbringing. He was, to use his term, handed around between relatives, attended 13 schools, was sometimes placed into the care of his grandmother and was not well looked after by his mother. He reports that his understanding is that his father, who was never known to him as an adult, was a paedophile. It is clear that he commenced to be in various kinds of juvenile institutions from the age of 13 years. Although I am not able to make actual findings about the actual nature of the offences and the timing of the offences, on the balance of all the material, I am prepared to accept, on the balance of probabilities, that the offender was sexually trans passed against, whilst a teenager in various institutions. It fits with the general pattern of the difficulties that he experienced as a young person. 39. The principles, as discussed by the High Court in Bugmy v The Queen , [2013] HCA 37; (2013) 249 CLR 571 are engaged. All of these matters mean that the sentences will be ameliorated, to some degree, because of a reduction in his moral culpability. 40. In terms of the effects of his mental health difficulties, apart from what I have indicated about a modest reduction in his moral culpability, it flows from that that he is a less appropriate vehicle for specific deterrence than other offenders. I am not so sure about whether his mental conditions operate to reduce the importance of general deterrence, particularly in relation to the witness influencing matters. 41. I am satisfied that his time in custody is made more onerous because of his mental health difficulties. Dr Nielssen opines that he may suffer from an acquired brain injury. One of the reasons for that is that he had two very serious assaults, in 2018, while in custody. 42. The passage of his matters through court have some relevance. He was initially tried and the trial aborted because of difficulties with his mental health. He was then found unfit to be tried and in due course, the Mental Health Review Tribunal determined that he was fit to be tried and he has demonstrated so. 43. The Crown Prosecutor, appropriately in my view, indicated that she had seen a great change in the way that the offender was able to manage his emotions in court, compared to when he first faced trial. The Crown also put that that suggested that some confidence could be placed in Dr Nielssen's assessment, that the medication was appropriate and working, although it must be said that Dr Nielssen considers some further titration of the offender's Seroquel dosage will make him even more settled in custody. 44. I have ultimately determined, without objection from the Crown, to find special circumstances, partly on the basis of his risk of institutionalisation, partly on the basis that the offender needs a long period of supervision in the community, to stay drug free and to be compliant with mental health treatment in the community, as opposed to in the controlled environment of imprisonment. I do take into account that because he has been on remand for an extended period, most of the sentence that he will in fact serve has been served in conditions of maximum security. 45. It is common ground, between the parties, that the offender indicated very early, an intention to plead guilty to firearms matters and the Crown agreed with Ms Reed's submission that all matters should appropriately attract a 25% utilitarian discount. 46. The pleas, in relation to the other matters, were entered at the district court level, rather than in the local court but it must be said that there has been a significant utilitarian advantage by the pleas being entered. Ultimately, without demur from the Crown, I formed the view that in relation to the affray matter and both of the witness influence matters, that the utilitarian discount should be one of 20%. 47. I indicated to the parties that I propose to impose an aggregate sentence. Whilst Ms Reed accepted, for Mr White, that some degree of notional, partial accumulation ought operate between the two witness matters, as a group, the affray matter and the firearms matter, she contended that because the attempts to influence Ms P and Mr Mayol were part of causal conduct, that a full level of concurrency could be appropriate, in the Court's discretion, in relation to that matter. Ultimately, I am not persuaded by that argument and I have determined that in structuring the aggregate sentence, there should be some degree of partial accumulation, in relation to each of the four distinct episodes of criminality. 48. In the two matters, where there are Forms 1, I take into account the offences on the Forms 1, when I announce the indicative sentences. Each of the indicative sentences have the utilitarian discounts that I have identified applied to them. 49. In relation to the four counts, you are convicted. 50. In relation to the affray matter and taking into account the two matters on the Form 1, the indicative sentence, in relation to that matter, is 19 months. 51. In relation to the firearms matter, taking into account the matters on the Form 1 and because that matter has a standard non-parole period, I am obliged to announce an indicative sentence that includes a non-parole period. Accordingly, in relation to that matter, the indicative sentence is a head sentence of 27 months and a non-parole period of 18 months. 52. In relation to the influence witness matter, that related to Ms P, the indicative sentence is 29 months. 53. And in relation to the matter that involved Mr Mayol, the indicative sentence is 24 months. 54. As I have indicated, each of those matters have attracted the relevant utilitarian discount. 55. Having found special circumstances, I impose an aggregate term of imprisonment. The head sentence is five and a half years, to date from 24 February 2016 and to expire on 23 August 2021. There is to be a non‑parole period of three and a half years, which means that the earliest date of release to parole is 23 August 2019. 56. I recommend to the State Parole Authority, that apart from providing conditions that are consistent with Mr White having stable and supported accommodation, that consideration be given to imposing a condition to prohibit the use of prohibited drugs and further, a condition that Mr White remain in contact with his local community mental health team, to ensure compliance with his medication regime. 57. Mr White, I know that you probably would have liked to be released forthwith. I have intentionally structured the sentence so that you have got at least a further three months to serve. I cannot control what the State Parole Authority do but so that you have got three months to get your head around the idea of being released back into the community and start to work out the ways in which you can implement the things that you gave evidence about. I accept that you are at the crossroads, that as a man of 52, you are at a point in your life where you are ready to make some better decisions. You had a rough trot as a young man and you can make it work so that you have a better life as an older man. ********** Amendments 21 November 2019 - Nil amendments made 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: 21 November 2019