District Court New South Wales Medium Neutral Citation: R v McGuiness; R v Trevascus [2020] NSWDC 90 Hearing dates: 25 October 2019 and 4 March 2020 Decision date: 04 March 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: For offender Mr McGuiness, term of imprisonment of 7 years 7 months with a non parole period of 5 years 8 months; for offender Mr Trevascus, an aggregate term of imprisonment of 7 years with a non parole period of 5 years 3 months. Catchwords: CRIME -SENTENCE- Robbery in company; attempted aggravated take and drive motor vehicle. Legislation Cited: Crimes Act 1900 (NSW) ss97(1), 154C(2) and 344A(1) Cases Cited: R v Henry (1999) 46 NSWLR 346; Bugmy v R [2013] 249 CLR 571 Category: Sentence Parties: Regina (Crown) Frank McGuiness (Offender) Ryan Trevascus (Offender) Representation: Mr Kotsis (Crown Prosecutor) Ms Skinner (Solicitor for offender McGuiness) Mr Park (Counsel for offender Trevascus) File Number(s): 2018/228669; 2018/248963 Publication restriction: Nil 1. Frank McGuiness and Ryan Trevascus, you each appear for sentence today in relation to the principal offence of robbery in company. 2. This involves a contravention of s 97(1) of the Crimes Act. The maximum penalty for that offence is 20 years' imprisonment. There is no standard non‑parole period, but there is a relevant guideline judgment from the Court of Criminal Appeal, namely, R v Henry. 3. Mr Trevascus you also appear for sentence in relation to a second principal offence of attempted aggravated take and drive motor vehicle with a person in it. 4. This involves the combined operation of ss 154C(2) and 344A(1) of the Crimes Act. The maximum penalty for that offence is 14 years' imprisonment. Again, there is no standard non‑parole period. 5. Mr McGuiness, you do not appear for sentence in relation to such a second principal offence. However, in your case I have certified a matter on a Form 1, which is to be taken into account with the robbery in company offence. The matter on that Form 1 is attempted aggravated take and drive motor vehicle with person in it. 6. Mr Trevascus, you appear for sentence following a trial which commenced on 22 July 2019, when you were arraigned before a jury panel in relation to both of those counts. At the conclusion of the trial, the jury found you guilty of both offences. 7. Mr McGuiness, you did not proceed to trial; but rather, you entered a late plea in relation to the robbery in company matter shortly before Mr Trevascus' trial date. 8. Mr McGuiness, you originally were listed for sentence on 27 September 2019 but I vacated that date, once Mr Trevascus had been found guilty by the jury, in order that both of you could be sentenced by the same judge at the same time. 9. Initially both of you were supposed to be sentenced on 25 October 2019. The hearing date, in fact, commenced on that day, but because of a power outage in Campbelltown, the sentence hearing date had to be adjourned to 10 December 2019. That date came and went because the Crown Prosecutor who had appeared in Mr Trevascus' matter (and who was essential to the sentencing process) was unable to appear because a trial in which he was participating had run longer than had been estimated. So, consequently, the sentence proceedings were adjourned to today's date. 10. The facts for which you are to be sentenced can be summarised as follows. (As I indicated in a judgment on 26 July 2019, I am satisfied of these facts - insofar as Mr Trevascus is concerned - beyond reasonable doubt following that trial). 11. As at 26 June 2018 each of you was on parole - and each of you had only been on parole for a very short time. 12. On the evening of that day, more specifically at about 8.50pm, Mr David Melia, the owner of an Audi motor vehicle, drove that motor vehicle to a service station in the Sydney suburb of Ruse. 13. When he was at that service station, Mr Melia encountered you, Mr McGuiness. You and he struck up a conversation and, in the course of it, amongst other things, you asked if he would drive you to Leumeah station if you gave him some petrol money. Mr Melia agreed and, in due course, you got into his motor vehicle. 14. But you did not go to the Leumeah station. You made a call on your mobile phone, as a result of which the motor vehicle deviated to an area near the Woodbine McDonald's, where you, Mr Trevascus, were waiting. You got into the motor vehicle with Mr McGuiness and Mr Melia. 15. The three of you then drove around various parts of the Campbelltown area. 16. At one point, the vehicle went to Minto Heights, where it stopped outside a home unit block. You, Mr McGuiness, got out of the car, went into the block, and then, after a few minutes, came out. What you were doing in that home unit block is not expressly stated in the facts, but the only rational inference from all of the material is that some form of drug transaction was taking place. I am not satisfied that Mr Melia knew about what was going on, although he may well have had his suspicions. 17. Mr Trevascus, you were involved in this journey (on your own admission) to obtain cannabis and heroin. 18. In any event, at one point the vehicle ended up near the Woodbine McDonald's and it stopped. Mr Melia no longer wished to involve himself in this tour of the outer south western suburbs of Sydney, and he wanted you both out of that car. 19. You, Mr McGuiness, insisted on being driven further - up some hill which was nearby. But Mr Melia refused to do it. You then became aggressive. Without provocation, you launched a physical attack on this man. You threw multiple punches at his face and at his ribs. You were sitting in the front passenger seat. 20. Whilst Mr Melia was being attacked in this fashion, you, Mr Trevascus, were sitting in the rear passenger's seat behind the driver, but you weren't just sitting there. You were an active participant in this attack. 21. Mr Melia gave evidence of your role at p 14 of the transcript of the trial. Mr Melia gave this evidence to the jury: "Q. What was he [that is you, Mr Trevascus] doing while you were being hit by the Aboriginal man? A. When the Aboriginal guy had me, he was grabbing on my chain from the back seat, choking me up against the seat while the Aboriginal guy was hitting me. Q. So, when the Aboriginal man was hitting you, the person in the back that introduced to you as Ryan was doing something with your chain? A. Yes, he was trying to tear it off my neck." Later he gave evidence of how you were choking him. At page 15 he said: "Q. You said the man from the back of the car who had introduced himself as Ryan had his hands up on your left, the way you've just described? A. Yes. Q. And you could feel something? A. Yeah, I could feel his hands going down, and then ‑ like ‑ he was actually ‑ I couldn't move my head forward because he was pulling on it that hard; and then ‑ while the Aboriginal guy was hitting me." 1. I accept that evidence beyond reasonable doubt. So that at the very beginning of the assault by Mr McGuiness on Mr Melia, you, Mr Trevascus, were playing an important role in restraining him, in a way that he could not move his head, by a choking mechanism. 2. And whilst Mr Melia was restrained in that way, you, Mr McGuiness, continued to punch him and to call him "a cunt". 3. As this was going on, you, Mr McGuiness, grabbed the car key from the centre console of the Audi. That car key also contained Mr Melia's house key. He demanded that his keys be given back to him; and at some point the three of you were outside of that motor vehicle and the struggle continued. 4. Whilst it is true that in this external struggle, you, Mr McGuiness, were the more aggressive participant, you, Mr Trevascus, were present. You made no effort to restrain Mr McGuiness; your presence in and of itself would have intimidated the victim; and you had already significantly contributed to the assault by your choking of the victim in the motor vehicle. It is true that for a time, you ran away; but you returned. 5. Eventually, bystanders intervened and the police were called. Mr Melia was taken to the Campbelltown Hospital. 6. As a result of the assault, Mr Melia sustained an acute fracture of the nasal process of the left maxilla - that is, he had a broken nose. He had a left lower orbital swelling and tenderness - that is, he had a black eye. And he had facial swelling and tenderness. There is no evidence before the Court, however, of any long‑term or permanent injuries. 7. The objective seriousness of the offence of robbery in company - for an offence of its kind – it is a midrange offence. In relation to the attempted aggravated take and drive motor vehicle principal offence for you, Mr Trevascus, it is slightly above a midrange offence for an offence of its kind. 8. Each principal offence is additionally aggravated by the fact that each of you was on parole. 9. And for you, Mr Trevascus, the attempted aggravated take and drive motor vehicle offence is additionally aggravated by the use of violence. 10. Neither of you gave direct oral evidence in the sentence hearing today. Rather, your subjective circumstances have been advanced through a psychological report for each of you. 11. Let us turn first to you, Mr McGuiness. 12. From the psychological report tendered on your behalf, I know that you are a 31‑year‑old man of Aboriginal Australian descent. 13. Your early life was clearly a confronting one and falls within the description of a dysfunctional upbringing, which the High Court has directed sentencing judges to take into account in the manner set out in Bugmy v The Queen. 14. Your parents separated when you were an infant, and you spent time being brought up by your extended family. 15. You left home when you were 16 and you have been independent since that time. 16. Also, at the age of 16 you received injuries from an assault, and that significantly impacted upon your already existing illegal drug use. 17. You have a long criminal history from your mid‑teens. That seems to be intimately connected with a long‑term drug habit that started when you were 15. You have abused alcohol, cannabis, heroin, and ice. You have also abused legal drugs such as Xanax. In fact, one of the reasons why your parole was revoked was because you were using ice almost immediately after you last got out of gaol. 18. Your schooling was very limited. Even at primary school, you were being suspended; and you left through year 10 without completing the School Certificate. 19. When you have been in the community, Mr McGuiness (which has not been much of your adult life) you have worked doing butchering, fencing and cleaning. 20. Some 18 months ago you went through the painful loss of a brother, shortly followed by the death of your father. 21. You have mental health issues of your own. You have had depression for a long period of your life. 22. You have on two occasions sought to take your own life. You do not have a strong support network in the community, Mr McGuiness. You said, somewhat sadly, in the psychologist's report, that you have no friends in the community. 23. You have some support from your surviving brother, your mother and several members of your extended family. So, there is some support for you in the community. You have two children from a relationship when you were very young, and you seem to have some contact with them and with the mother of those children. 24. Whilst in custody most recently, you have impressively completed a number of courses, including the EQUIPS program and the Work and Development Order program. 25. You have expressed remorse to the victim, not only through the contents of the psychologist's report, but shortly after the offence occurred you actually came across him in a shopping centre; you apologised to him and embraced him. I think your expressions of remorse are genuine. 26. It is difficult to form an assessment of your prospects of rehabilitation, Mr McGuiness. On the one hand, there is your long criminal history. There is the unprovoked nature of this offence. There are the courses that you have successfully completed in custody. There is the love and support of some members of your family. There are limited social support networks. In all, I regard your prospects for rehabilitation as being guarded. 27. Unlike Mr McGuiness, Mr Trevascus, you have expressed no remorse for your offending. 28. You are now 29 years of age. 29. You also had a dysfunctional upbringing, attracting the Bugmy principle; that is, your moral culpability is reduced because of that upbringing. 30. You also had difficulties at school. You left school when you were 17. 31. You then worked until you were 23, when you unfortunately had a motor vehicle accident which prevented you from returning to the scaffolding industry where you had been working for six years. But since the motor vehicle accident in 2013 you have not worked. 32. You, like Mr McGuiness, have a long criminal history. 33. At some point, when you were being held in Juvenile Justice, it would seem that you were sexually assaulted; and some of your drug abuse history (at least) is undoubtedly connected with the consequences of that sexual assault. What precisely its role has been, I do not know, because it is not explicitly stated or addressed in the psychological report. But it clearly has contributed, to some degree, to your post‑traumatic symptomatology. 34. You also have had a long history of use of illegal drugs; and, like Mr McGuiness, your most recent use of drugs has been that of ice, which you returned to almost immediately on your being admitted to parole. 35. You also have a large range of mental health issues stemming from your childhood. 36. My assessment of your prospects of rehabilitation are also that they are guarded, notwithstanding the birth of your daughter some ten months ago. 37. In both of your cases, the sentence to be imposed must be one that will discourage others from doing what you have done; it must be one that discourages you from again doing what you have done; and it must seek to promote your rehabilitation. And also, it must also protect the community. All four sentencing principles are fully engaged, although some pull in different directions. 38. There has been some debate today about the start date of the sentences to be imposed. I accept the submissions of the Crown that the start date should be entirely accumulated to follow on from the sentences that you had to complete for totally unrelated matters and for which you were on parole at the time you committed these offences. 39. I mentioned earlier, Mr McGuiness, that you had entered a late plea. The law mandates that you are to receive a 5% discount because of that late plea. 40. In relation to the offence of robbery in company, Mr McGuiness, and taking into account the matter on the Form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of eight years. Because of the plea and the consequential discount of 5%, the term of imprisonment is 7 years and 7 months. 41. I decline to make a finding of special circumstances. The non‑parole period that I will fix will be long enough to assist in your rehabilitation. 42. I therefore fix a non‑parole period of 5 years and 8 months to date from 11 July 2019 and which will expire on 10 March 2025. 43. I fix a balance of 1 year and 11 months to date from 11 March 2025 and which will expire on 10 February 2027. 44. In your case, Mr Trevascus, I intend imposing an aggregate sentence. It is necessary for me to state the indicative sentences which underpin that aggregate sentence. 45. For the robbery in company offence, the indicative sentence is 6 years' imprisonment. 46. For the attempted aggravated take and drive, the indicative sentence is 6 years and 6 months. 47. I therefore sentence you to an aggregate sentence of 7 years' imprisonment. The non‑parole period that I will fix will be sufficiently long to assist you in your rehabilitation and so I also decline to make a finding of special circumstances. 48. I fix a non‑parole period of 5 years and 3 months to date from 6 July 2019 and which will expire on 5 October 2024. 49. I fix a balance of 1 year and 9 months to date from 6 October 2024 and which will expire on 5 July 2026. 50. Whether either of you are admitted to parole will depend upon how you behave whilst in custody. At least one of you has a number of very serious matters of breach of custodial behaviour. You will now go with the officers, thank you. 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: 06 April 2020