District Court New South Wales Medium Neutral Citation: R v Pallister [2020] NSWDC 183 Hearing dates: 8 April 2020 Date of orders: 08 April 2020 Decision date: 08 April 2020 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: An aggregate sentence of imprisonment of 5 years. A non-parole period of 3 years. Catchwords: CRIME — Violent offences — Assault with intent to rob/cause wounding CRIME — Property offences — Take and drive a conveyance SENTENCING — Relevant factors on sentence — Form 1 offences – Drive motor vehicle whilst disqualified – Damage property SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences – Guilty plea SENTENCING — Subjective considerations on sentence — Special circumstances – Mental health - Drug addition Legislation Cited: Crimes Act 1900, s 154F Crimes (Sentencing Procedure) Act 1999, s 3A, s 5 Cases Cited: Hiron v R [2018] NSWCCA 10 Martin v R [2016] NSWCCA 273 R v Henry [2007] NSWCCA 90 R v Huynh [2005] NSWCCA 220 R v PB [2008] NSWCCA 109 Regina v Smith [2001] NSWCCA 152 Category: Sentence Parties: Regina Gavin Pallister Representation: Counsel: Mr C Evans (Crown) Ms M Swift (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid New South Wales (Offender) File Number(s): 2018/304807 Publication restriction: None Judgment on sentence 1. Gavin Pallister pleaded guilty to two offences occurring on 5 October 2018 for which he is to be sentenced today. 2. First, assault with intent to rob whilst armed with an offensive weapon causing wounding, an offence carrying a maximum penalty of 25 years and a standard non-parole period of 7 years. In sentencing for this offence, Mr Pallister has requested the Court take into account the offence on the Form 1 of damage to property, an offence which carries a maximum period of imprisonment of five years. 3. The second offence for which Mr Pallister is to be sentenced today concerns stealing a motor vehicle, an offence under s 154F of the Crimes Act 1900 carrying a maximum penalty of 10 years. In sentencing for this offence, I am to take into account the offence on the Form 1 of driving whilst disqualified, an offence carrying a maximum period of imprisonment of six months. 4. Both the offences were committed whilst Mr Pallister was on parole having been released to parole about a week earlier. His parole was revoked when arrested on the date of the offences, 5 October 2018, and he then remained in custody for the balance of those existing sentences until 27 June 2019, some 8 months and 23 days, whereupon he continued to remain in custody referrable to the present charges until today, a period of 9 months and 12 days. 5. The circumstances of the offences are recorded in a document headed "AGREED FACTS" signed by or on behalf of Mr Pallister and in substance are as follows. At about 3.30pm on 5 October 2018, Mr Pallister walked towards a roundabout in Merrylands at the same time as the male victim, driving a Toyota Rav4 motor vehicle, approached the roundabout. The victim stopped and Mr Pallister, believing the victim to have arranged to meet a friend of Mr Pallister to provide money, some of which was to be paid onto Mr Pallister, engaged in a verbal exchange. The victim intended to leave. Mr Pallister, approached the open driver's side window, reached inside, tried to remove the keys from the ignition and said, "Give me the keys and your wallet" to which the victim responded, "No, fuck off". Mr Pallister then said, "Okay" and produced a serrated kitchen knife approximately 40 cms in length and said, "If you're not going to give me the keys to the car and your wallet" when the victim interrupted saying, "I'm not going to give it to you". 6. A physical struggled ensued when the victim attempted to take the knife from Mr Pallister. In the struggle, the victim sustained, from the knife, a wound to the chest, a cut to the ear and a wound to the left hand. Mr Pallister also received a minor wound to the hands requiring stitches. The victim gained possession of the knife. Mr Pallister said, "Give me the knife", the victim responded, "I'm not giving it to you". Mr Pallister said, "I'm going to shoot you. I've got a gun" to which the victim said, "You can shoot me you bastard". Mr Pallister then ran away. 7. At the hospital, the victim was found to have a 0.5 cm superficial ear laceration, a 1.5 cm vertical sternum laceration "breaching epidermis and dermis with mild venous ooze" and a 3.5 cm left hand laceration between the thumb and the second digit breaching the epidermis and dermis. The evidence included photographs of the ear and hand injuries. 8. This assault with the knife resulting in the wounds constituted the armed robbery with wounding charge. 9. About an hour later at 4.30pm that day, Mr Pallister, at another address in Merrylands, spoke to a woman about a car at the front of the property with a sign indicating that the car, a Holden Calais, was for sale. It was owned by the woman's son. After Mr Pallister asked if he could start the vehicle to check how the engine was running the mother gave him the keys. Mr Pallister then got in, started the vehicle and drove away from the location. He did not return the vehicle. Police were contacted and the Holden Calais was recovered a short distance away. Mr Pallister was arrested in Merrylands about 400 m from the car and taken to Granville Police Station after being conveyed to the hospital. 10. Mr Pallister was disqualified from driving or obtaining a licence at the time he drove the Calais, that being the offence on the Form 1. The taking of the Calais constituted the steal motor vehicle offence. 11. Whilst in the police vehicle, Mr Pallister was left inside for some time as a result of the police losing the keys. During that time, he repeatedly kicked the rear doors causing them to break at the hinges. This damage to the police vehicle constitutes the damage to property offence on the Form 1 to be taken into account on the aggravated robbery with wounding sentence. 12. Mr Pallister accepted the opportunity to be interviewed. He said he was taking the car for a test drive and left it because it was not working. He acknowledged that he was disqualified from driving. Initially Mr Pallister did not comment on the assault, but at the conclusion of the interview he gave an account that the victim was looking to have sex with a female, that the victim had said he had money and cocaine to pay for sexual favours, that a female got into the car, that Mr Pallister reached in to pull the keys from the ignition so the victim could not drive off, that the victim pulled a knife on Mr Pallister and cut him on his right arm and that Mr Pallister took the knife off the victim. Mr Pallister refused to comment further about the incident. 13. Mr Pallister is now 31 years of age; he was 29 at the time of offending. 14. In respect of the armed robbery with wounding offence, the Crown submitted that Mr Pallister attempted to prevent the victim from leaving the scene, demanded the keys and wallet, produced a 40 cm serrated kitchen knife and implied by his words a threat to use it, wounded the victim in a struggle including in the chest, threatened to shoot the victim with a gun he claimed to have and subsequently gave a false exculpatory account of the incident contrary to the Agreed Facts. I accept these submissions, as I accept the feature of Mr Pallister being armed is a matter generally more serious than the offence of being in company. [1] The additional threat of a gun increases the objective seriousness of the offence. 15. Mr Pallister contended that the wounding was reckless rather than intentional, a submission which finds some support in the circumstances that the wounding resulted from the struggle. The Agreed Facts do not indicate any degree of planning, although Mr Pallister's conduct in approaching the car with a knife could not be regarded as spontaneous. The injury was less than the middle of the range although the injury to the chest had the potential to be more serious. 16. I am obliged to take into account the Form 1 matter of damaging the police vehicle. The seriousness of this armed robbery with wounding offence is not, in my view, increased to any material extent by the damage to the police car, which was at the lower range of seriousness for that offence. In these circumstances, I accept both parties' submissions that the offence for sentencing was below the midrange of objective seriousness. 17. In respect of the car stealing, the offence lacked any real planning, it was arguably spontaneous, there was only a short time and a short distance that the car travelled and it is, in my view, at the lower end of criminality for car stealing. The seriousness of the offence is increased to some degree by the Form 1 matter of Mr Pallister being a disqualified driver at the time. 18. Mr Pallister is entitled to a 25% reduction in the sentence by reason of the early guilty plea and the assistance he gave to the police at the time of his arrest. The value of this assistance is lessened by the circumstance that he gave a false account of the robbery. 19. Reference was made to the Henry guidelines and the reduced role that they play by reason of the increased maximum penalty for this offence since that decision. [2] In this case, the significant criminal history of Mr Pallister and the wounding are features not present in that standard, although perhaps in Mr Pallister's favour nothing was taken, unlike the features of the standard. 20. Mr Pallister has a poor criminal record including offences in the relatively recent period prior to these offences, including armed robbery, custody of a knife, using an offensive weapon to prevent lawful detention as well as driving whilst disqualified, repeated offences of taking and driving a conveyance without consent, and being pursued by police. Those offences bear some similarities with the present. Mr Pallister has been in custody for all but a few months since 2014. 21. The evidence included a Sentencing Assessment Report and psychiatrist's report. It is evident that Mr Pallister has had an unfortunate and difficult childhood characterised by developmental trauma and poor role modelling. He has spent the majority of his adult life in custody. His mental state was detrimentally affected by regular use of methamphetamine, he having commenced drug use at a young age. He has been considered for the drug Clozapine which, as the psychiatrist's report states, was itself a "marker for enduring chronic mental illness". 22. It is evident that Mr Pallister's prospects of rehabilitation are guarded and likely only to be achieved with the assistance of mental health and drug support programs. I take into account that time in custody is more difficult in the current coronavirus environment, not because I have any evidence of it at present in the gaol environment but because social isolation would likely be more difficult in that environment as would treatment and the opportunity for social engagement by prisoners with visitors and family contacts. 23. Mr Pallister has served already 9 months and 12 days. I accept that a significant part of the time he has spent in custody after his parole was revoked on the former charges by reason of these offences should be included as part of his time served, and I would allow a period of 6 months of that period of 8 months and 23 days that was served in custody after parole was revoked. Accordingly, any sentence of imprisonment Mr Pallister receives should be backdated 15 months and 12 days, and thus commence on 27 December 2018. I am satisfied that the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 has been met and that no penalty other than imprisonment is appropriate having considered the available alternatives. 24. The armed robbery with wounding offence, in the light of Mr Pallister's previous similar offences involving weapons and robbery, highlights the need for both protection of the community and to recognise the harm in this case to the victim, two of the purposes of sentence in s 3A of the Crimes (Sentencing Procedure) Act 1999. Deterrence and denunciation of the seriousness of the crime are also particularly relevant purposes of sentencing as is the need for Mr Pallister to be adequately punished for the offence. 25. To the extent that rehabilitation of Mr Pallister may be achieved, it is to be achieved, in my view, by a greater than ordinary proportion of the sentence being served on parole. 26. I have given consideration to the decisions in the Court of Criminal Appeal in Smith, [3] PB, [4] Martin [5] and Hiron, [6] which were provided to the Court, together with summaries of those sentences, which the parties accepted provided some guide to the sentence that might be applicable to the present circumstances. 27. On the sentence of assault with intent to rob causing wounding, taking into account the 25% reduction and the other matters mentioned, I would impose an indicative sentence of four years and six months' imprisonment, and on the steal motor vehicle offence, a period of 12 months' imprisonment as an indicative sentence. 28. As an aggregate sentence on the two offences, taking into account those matters and the Form 1 matters as I have earlier indicated, I sentence Mr Pallister to a period of five years' imprisonment to date from 27 December 2018 and to expire on 26 December 2023. 29. I find special circumstances in view of the mental health and drug issues suffered by Mr Pallister and impose a non-parole period of three years. Mr Pallister will become eligible for parole on 26 December 2021. ********** Endnotes 1. R v Huynh [2005] NSWCCA 220 at [29]. 2. R v Henry [2007] NSWCCA 90 at [34]. 3. Regina v Smith [2001] NSWCCA 152. 4. R v PB [2008] NSWCCA 109. 5. Martin v R [2016] NSWCCA 273. 6. Hiron v R [2018] NSWCCA 10. 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 May 2020