District Court New South Wales Medium Neutral Citation: R v Williams [2019] NSWDC 804 Hearing dates: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of three years and eight months. Non-parole period of two years and two months. Catchwords: SENTENCING – Relevant factors on sentencing – a series of serious offences – totality – parity – life of considerable disadvantage – never lived a normal community life – need for staged release into the community. Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Administration of Sentences) Act 1999 Cases Cited: Attorney General's Application No. 1 (2002) 56 NSWLR 146 R v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: Joshua Williams (the offender) Director of Public Prosecutions Representation: Counsel: Mr D McCallum (for the offender) Solicitors: Morrisons Law (for the offender) Ms N Olender, Director of Public Prosecutions File Number(s): 2018/00121569; 2018/00198434 Judgment- Ex Tempore Revised 1. Joshua Williams is still a young man. He was born in 1990. His youth was characterised by what a respected psychologist described as "dislocation and abandonment." He spent much of his teen years either living by his wits on the street or in juvenile detention. He has spent much of his adult life going in and out of custody. 2. He has committed offences while in custody and his gaol record is not a good one. He was released after serving a number of sentences on 25 August 2017. He was not subject to parole or guidance by the Parole Service, but it appears at least initially he was able to establish himself in the community. However, a pattern of association with others of a similar criminal lifestyle soon re-emerged and in March and April 2018 he committed further offences. 3. He has been in custody since 17 April 2018. He stands for sentence today for five serious offences. He has always indicated acceptance of responsibility for those crimes, however to accommodate the provision of a count on an ex-officio indictment, an indictment was presented today and he confirmed his guilt in relation to all five matters. He will have the full benefit of his plea of guilty so far as its utilitarian value is concerned. That early guilty plea and another matter, to which I will refer shortly, gives me a small amount of confidence that he has matured and is willing to turn his back on the lifestyle which has blighted his life since he was a young boy. 4. There are five matters for sentence. 1. Offence 1 - Indictment count 4. The offence of accessory after the fact to break enter and steal at Kiama Downs on 13 March 2018; s 112(2) Crimes Act 1900, s 350 Crimes Act; maximum penalty five years. 2. Offence 2 - Indictment count 1: that the offence of 9 April aggravated break enter and steal of premises s 112(2) Crimes Act; maximum penalty 20 years for an offence which falls objectively in the middle of the range, a standard non-parole period of five years. The circumstance of aggravation is that he was in company. 3. Offence 3 - Indictment count 2: knowingly being carried in a stolen conveyance which was the property taken from the earlier incident, s 154A(1)(b) Crimes Act; maximum penalty five years. 4. Offence 4 - Indictment count 3: on 9 April he did intimidate Ms Poole with the intention of causing her to fear physical or mental harm. Section 13(1) Crimes (Domestic and Personal Violence) Act 2007; maximum penalty five years. 5. Offence 5 - Indictment count 5: accessory after the fact to an offence committed by Christopher West of firing a firearm in a manner likely to injure or endanger safety. West's offences were pursuant to s 93G(1)(c) of the Crimes Act. Accessorial liability after the fact carries a maximum penalty of five years, s 350 Crimes Act. 1. Close attention must be paid to maximum penalties as they are one guide to the exercise of my sentencing discretion. Content should always be given to a standard non-parole period. However, the circumstances of the particular offence of aggravated break enter and steal do not put it in the middle of the range. In fact given the enormity of the range of such offences, it falls towards the bottom of that range. There are other matters calling for variation from the standard non-parole period to which I will later refer. 2. Any matter for sentence requires an examination of what was done and an assessment of the objective circumstances of the respective offences. There are detailed agreed facts before the Court. I will summarise them briefly. AGREED FACTS 1. On 13 March 2018, a number of people broke into the rear of premises in Johnson Street, Kiama Downs. They gained access to the garage. From that garage three of the owner's motorcycles were taken. Williams would have been waiting outside because very soon after the owner of the premises, alerted to what had occurred, woke, got out of bed, grabbed his car keys and went looking for the intruders. He saw two of his motorbikes, a Yamaha and a Suzuki being ridden away from his residence. He followed them in his car. 2. One of the motorbikes, the Yamaha, had been dropped to the ground and he saw two men running into nearby bush. He continued to follow two riders on the Suzuki but was unable to continue his search, as he collided with a power pole. The police made a DNA examination of the stolen Yamaha. There was a DNA profile matched to the offender. He later admitted that someone had ran the motorbike down to him. He held onto it and tried to take the motorbike away. 3. It was clear that by that time, whatever his good intentions on release from custody, Williams was associating with a number of people who were committing serious crimes in the local area. One of those people was Christopher West. Williams had known West and his family for many years. West had been in a relationship with Ms Poole. That relationship had ended. 4. On 9 April 2018, a number of people including this offender broke into, or gained access to, a garage in Cordeaux Heights. From it was taken a Toyota RAV4. The offence occurred at 3.30 am. Later that day West and Williams were in the stolen car. Williams was in the front passenger seat. 5. At approximately 3.45pm West and Williams pulled up outside premises in Northcliffe Drive, Berkeley in the stolen vehicle. It was the family home of Ms Poole. That day she was there with a number of family members and other people were also present. Ms Poole heard the car arrive and she went down the front steps so she could see what was going on. She saw Williams and West. At the time Williams had a sock on one of his hands and was staring at her from the front passenger seat. West began to yell and his words were abusive, threatening. He then started saying "I'm going to fucking start shooting. I'm going to blow your heads off. I'll kill your whole family. I'll spray your house with bullets and I'll kill you ….., I'm not joking." West too had gloves on his hands. 6. At that point West committed a further offence. He had something in his lap which was covered in grey fabric. That something was a shotgun. He lifted it, pointed it out of the window of the car towards Ms Poole and a number of family members and others who had come outside the premises and witnessed what occurred. West pointed the gun up out the open passenger window across Williams. West's arm was holding what later found to be a shotgun, directly across Williams' torso. He had his finger on the trigger. 7. Ms Poole saw the offender then hit West's arm down and the gun moved down just as she went to move away. As this occurred West pulled the trigger and the gun discharged. A round hit the inner front passenger seat door causing damage to the car. West then drove away with Williams. 8. The facts record that someone felt something hit their leg, but there is no indication that anyone was in fact shot or injured. The incident was captured on someone's mobile phone: exhibit B. Police were understandably called and made efforts to find the offenders who were known to a number of people at the Northcliffe Drive home. West was arrested on 11 April 2018. He initially denied any offence. 9. On 17 April 2018 Williams was arrested. He too initially denied offending in relation to the indictable matters, but on 27 June 21018 he was re‑interviewed and gave police a version of events so far as the presentation of the firearm was concerned. He told police that after the event West left in the car with the firearm. That West had come to his house a few nights before the shooting and showed him the gun. He had held it that day. 10. Police telephone intercepts on another man included numerous conversations between Williams and another man on 6 April 2018. They were captured discussing a firearm. On 11 April 2018, that was two days after the shooting, telephone intercepts capture the man speaking to Williams. The man is in bush land being directed by Williams as to the location of the RAV4 with the intention of fuelling it and burning it and the location of the firearm with the intention of collecting it. 11. Williams describes where the firearm is and what it is wrapped in. The other man has trouble finding the items and needs further directions. Then there is a call from that man to Williams saying "He's done it". The RAV4 is later found destroyed by fire. It is evident from the intercepts that Williams believed that this other man had found the firearm. Police intervened. That man was stopped as he emerged from bushes not far from the car. A firearm wrapped in material was found nearby. So too was the burnt out RAV4. 12. The firearm was examined and a spent cartridge and unspent cartridge were located in the chamber. It was a working firearm. DNA associated the firearm with Williams in accordance with his admission that he had handled it. 13. There is a further matter that must be dealt with on a Form 1 when I sentence for offence 2 (count 1). It relates to this offender being carried in a car which had been taken from the garage on 5 March 2018. His DNA was located in that vehicle. I will take that matter into account. I do not sentence for that matter, but it does operate to increase the sentence that would otherwise be appropriate as part of the instinctive synthesis process. It must be taken into account when I formulate the appropriate sentence for the offence 2 (count 1). The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 (2002) 56 NSWLR 146 14. There are a number of offences here. I must indicate individual penalties for each and I must formulate a total sentence which is just and appropriate to all the offending behaviour. Because there were two separate incidents, there must be some accumulation of penalty between them. There's no discount for multiple offending. 15. So far as the single incident is concerned, there were a number of crimes involved. The first was the taking, by breaking and entering, of the RAV4. There is insufficient material before me to indicate the purpose for which that vehicle was taken. Nevertheless it was used 12 hours later in the commission of a further offence and that this offender was knowingly carried in it is a natural incident of it being taken or it being used in the commission of the other offence of intimidation. 16. The accessory after the fact offence also requires some separate and independent punishment. Ultimately however, I have to apply the general principle commonly called totality, that the aggregate sentence not exceed what is called for in all the circumstances. The aggregation of all the sentences must be a just and appropriate measure of total criminality. So far as the first charge is concerned, there was entry to premises, a motorbike was taken from the premises. The offender is not to be punished for that break and enter: see R v De Simoni (1981) 147 CLR 383. However, he was nearby and available and ready to remove the bike that had been taken. 17. The owner was able to prevent by his prompt response that particular motorcycle being taken too far and was recovered. But this offender was out late at night engaged in criminal activity with a group of others. There obviously was some planning to his involvement there. It is impossible to accept that he was simply walking the streets of Kiama Downs and coincidentally met up with criminal colleagues. 18. The offence of aggravated break enter and steal is a particularly prevalent one in the community, for which Parliament has justified intervention to fix a standard non-parole period. The particular facts of this case are that a group of people entered a garage late at night, who took a valuable item, a car. For those of us who are lucky enough to own a home, that is our most valuable possession, but for most in the community their car is their most valuable possession and to have it taken causes not just inconvenience but cost. It cannot be presumed that items such as these are insured or fully insured. 19. For criminals to enter someone's home, and the garage is part of the home, late at night, risking confrontation with the owners of the home, with another person is of itself a serious offence and a matter that is taken seriously. But the circumstances of this offence compared with the range of aggravated break enter and steal offences put it towards the bottom of the range. It is not a matter to which a standard non-parole period should apply. It also highlights because objectively although the property was of greater value, it remains quite similar to the first matter I have to sentence for. In that matter the maximum was five years, in this it is 20 years. Courts accept guidance from maximum penalties, but the focus must be primarily on the objective seriousness of what was done. 20. The intimidation offence involved a confrontation between West, with the Williams's assistance, of his former partner. West was intending to exercise control and power and instil fear in the victim. Such confrontations can have long term consequences. Williams was there ready and able to assist him and his presence alone would have contributed to the intimidation. Such matters have great potential to escalate. One of the purposes of our criminal law is to prevent matters escalating and to prevent those intimidating or attempted to be intimidated from responding by the commission of criminal offences. 21. Williams is to have some credit for his actions in knocking the firearm which presented further harm occurring because of the irresponsible actions of his co‑offender West, but it is clear from the gloves that were worn, from his presence there that day that he was willing and able to contribute to the intimidation of Ms Poole. The commission of the firearms offence by West led this offender obviously to fear that he might be implicated in it, but he from the telephone intercepts that have been provided the summary of which I have read, actively took steps to dispose of that firearm knowing that a particularly serious crime had occurred. While he had attempted to prevent a more serious crime, to act with that knowledge in the disposal of and removal from the scene of a firearm which he well knew was capable of causing considerable harm, is a particularly serious offence and requires, as do all serious firearm offences, condign punishment. 22. Williams was born in 1990. He has a criminal record which does him no credit. He has committed offences in gaol, which do him no credit. He has only been able to live in the community for a very short time. 23. I am indebted, as always, to Ms Duffy for her comprehensive report: exhibit 1, tab 1. This offender did not give evidence. The statements to Ms Duffy about objective seriousness of his offences must be viewed with some scepticism. However, the background and her testing based on the background history given, appear to be uncontroversial. I believe I can rely upon them as they match in with the criminal record. 24. Following some tragedies and trauma in his life, particularly the death of his father, Williams was living on the streets from a young age. He has learnt some skills in gaol and juvenile detention, but has rarely had an opportunity to work in the community. His schooling has been limited. He has formed relationships, but they have been interrupted by his gaoling on regular occasions. He was psychologically tested in 2013 and again by Ms Duffy this year. She notes that his depression levels have been elevated. She also suggests that he suffers from adult attention deficit hyperactivity disorder. 25. She details why that conclusion is a reasonable one. It is clear that he left gaol on the last occasion with the intention of not returning. It is also clear that after a relatively short period, six months, all his good intentions fell apart and he associated again with former colleagues. He told Ms Duffy that he felt manipulated by his co-offender. I cannot accept his self-assessment, but Ms Duffy later in her report indicates that from all her testing and the history given, it is clear the offender is easily susceptible to persuasion and I suspect that that is his particular problem. He takes the easy course and the easy course is to go along with his mates rather than just stand up to them. 26. There is a letter from the Aagana Treatment Centre, which I understand provides effectively a halfway house for prisoners on release; to help them learn to adjust to normal community life: exhibit 1, tab 2. 27. This offender has never really, since a young teen, lived a normal community life. He will require considerable assistance in adjusting when he is released. I would urge the State Parole Authority to grant him parole and to allow him to undertake a staged release into the community. 28. I understand that they are restrained, appropriately, by s 135 of the Crimes (Administration of Sentences) Act 1999 and can only release a person if it is in the interest of the safety of the community that they do so. But every study that I have read including material produced by the Bureau of Crime Statistics and Research, indicate that offenders who receive parole supervision on release take much longer to commit new offences and are less likely to commit new serious offences and commit fewer offences than those released unconditionally. 29. When he was released on the last occasion in 2018 Williams was at a crossroads in his life and he took the wrong path. As Ms Olender, who appears for the Director said in her submissions, he needs to make that choice again. On release he needs to decide whether he continues the pattern that has blighted his life and led to his offending against the community or takes any help that is offered. I agree with that submission. I will give him an opportunity, but eventually, if he continues to offend, courts will have to remove Mr Williams from the community for community protection, for as long as the crimes he commits demands 30. The next matter that needs to be resolved is that there is a document as part of exhibit 1, which indicates that he in June provided information in relation to Mr West and in November agreed to assist in his prosecution. I am prepared to accept he is presently in the special management area protection. It is notorious that anyone who for any reason has agreed to assist police or prosecution might be at risk when in custody. The Court has a power to impose a lesser penalty having regard to the degree to which an offender has undertaken to assist law enforcement authorities in proceedings relating to the offence. Mr McCallum urges that I take it into account. 31. Ms Olender, for the Director of Public Prosecutions, says that while the assistance was offered, it was of no value and no reduction is required. I have to consider the provisions of s 23 of the Crimes (Sentencing Procedure) Act. I have to consider the significance and usefulness of the assistance, and its truthfulness, completeness, nature and extent, and timeliness. I have to consider his custodial conditions. 32. Those who commit offences in company and are subsequently arrested should always be encouraged to cut ties with their former associates and assist the course of justice. The material before me indicates that West did not accept his guilt in the Local Court and only did so at the special call over in July 2019, about two months before the allocated trial date. He will be sentenced in December 2019. 33. There is no indication in the submissions by the Crown that the offer of assistance provoked that early plea. Nevertheless it was made. Nevertheless limited though it was, it was not untrue, but it was far from complete as Ms Olender points out. To encourage offenders to cooperate with authorities and give assistance is one aim and rationale for the section. I will allow a very modest reduction of the otherwise appropriate sentence here of 3% to recognise the limited value of the assistance, and for the fact that the offer was made. 34. I will endeavour when I calculate the appropriate aggregate sentence not to reduce the value of that discount for assistance or that given for the early plea. 35. Synthesising all of these matters; there must be a further time in custody. I believe that he should be given an opportunity of proving himself to the State Parole Authority and of earning release to parole. He will have to change his gaol behaviour if that is to occur. I believe that it is essential that there be a structured release to the community by engagement with a centre such as Aagana Treatment Centre. It is in his interest and the community's interest but what he did has to be denounced and appropriately recognised by the imposition of further custodial penalty. 36. I would indicate in relation to each matter you have been convicted by me. I will, attempting to balance all the relevant purposes of sentencing, make a finding of special circumstances, but it is up to the State Parole Authority whether you be released on that date or not. As I said you have to earn that release to parole and you failed in that endeavour before. I cannot pre-empt what decision they would make. I can simply recommend in the community interest that you be given some supervision whilst serving your sentence. ORDERS 1. Each sentence has been reduced by 28%. The indicated sentences take into account special circumstances, 25% for the utilitarian value of the plea of guilty plus 3% in accordance with s 23. The sentences will be rounded to months not days. 1. Offence 1 - Indictment count 4: The first in sequence from 13 March 2018, I indicate a sentence of one year and five months. 2. Offence 2 - Indictment count 1: I indicate a sentence of one year and nine months, non-parole period one year, one month taking into account the matter on the Form 1. 3. Offence 3 - Indictment count 2: I indicate a sentence of one year one month. 4. Offence 4 - Indictment count 3: I indicate a sentence of one year five months. 5. Offence 5: I indicate a sentence of two years two months. 1. Taking into account questions of totality and accumulation and concurrence, there will be an aggregate sentence in this matter of three years and eight months which will commence on 17 April 2018. There will be a non-parole period of two years and two months, which means you will be eligible for consideration for release to parole on 16 June 2020. There will be a parole period of one year six months. Total sentence expiring 16 December 2021. 2. I have taken the matter into account on the Form 1 in relation to the second offence, count 1 on the indictment 3. I make a non-publication order so far as the file is concerned for the name of one of the alleged co-offenders. He can just be referred to as alleged co-offender as his trial is listed in 2020. ********** 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: 11 February 2020