Solicitors:
Justine Hall Pty Ltd (for the offender)
File Number(s): 2021/00059709
[2]
sentence - EX TEMPORE REVISED
The people of Wollongong are entitled to go about their business. no matter what it is, free from interference from others, free from assault, free from intimidation and free from being taken from the street and stood over by people.
The victim in this matter supplemented his unemployment benefits by recycling cans and bottles. He was doing so on the afternoon of 28 December when a car pulled alongside him. The driver of the car was Justin Cameron. Jackson Black, the offender now before the Court, was the front seat passenger. Cameron called the victim over and the victim took up an offer to come with the two other men to have "a puff"; I presume of marijuana. They drove to an industrial area. Cameron got out of the car, sat next to the victim in the back and put a knife towards him. He brought up something from years ago that may or may not have occurred between the two, the facts are unclear. Cameron punched the complainant several times and asked for money. At that point Black came around to the back of the car and grabbed the victim around the neck. Cameron continued to punch him while asking him where his money and wallet were.
Cameron held the knife at the victim's throat and made demands. The knife caused the victim some injuries but I note that this offender is not charged in relation to any of those injuries.
The three then drove to a storage shed which the victim had mentioned to Cameron. The victim was told to look down otherwise he would be killed. Black went through the victim's bag and emptied it. A demand was made for the code to the storage area. Despite the victim saying there was nothing of value in it both Cameron and Black got out of the car, but they could not find the unit.
Cameron threatened the victim and forced him to disclose his address which they then drove to. The victim was frightened given Cameron's repeated threats that he would be killed if he did not keep his head down; understandably so. When they got to the garage where the victim was living Cameron went inside. He came out with the victim's phone and wallet. Black stayed with the victim in the car. Black, at this stage, held the knife. He demanded the phone's login, MyGov and bank details. The victim complied. He only had $3 in his bank but Black said, "We're going to get a 'corona loan' off you today, it's our money". Black then used the victim's phone and applied for a loan on his behalf through the MyGov website. Cameron then drove to an ATM, again telling the victim to keep his head down. At the ATM Black got out. Cameron continued to drive around with the victim. Black withdrew $200, which had been transferred to the account by the Department of Human Services. This is a separate matter on a s166 certificate, Criminal Procedure Act 1986.
Cameron returned and picked up Black. As they drove off, he grabbed a bag and put it over the victim's head. To the victim it felt to the victim like a leather handbag. They continued to drive around with the victim, still in the back seat with the bag on his head. The car then stopped. One of the offenders dragged the victim out and they then walked him to another residence and a storage area under the stairs. The victim was told to sit. He was threatened. He heard footsteps and muffled voices. The resident of the premises later told police what she saw and said "Jackson [Black] didn't do anything, I think he was telling Justin [Cameron] to let him go".
They took the victim outside. He was directed to strip naked. Cameron made more threats to him. Both men then told the victim to get dressed and took him back to the car. He was told to stay in the car and again threatened by Cameron but after about ten minutes he looked around and saw no one was there. He left the car and went to a house nearby where the occupant assisted him.
As best I can make from the facts the detention lasted from about 4.15pm until about 6pm that night.
The victim was spoken to by police but declined medical assistance. Police noted and photographed his injuries which were minor. A police investigation led to the arrest of both Cameron and Black. Black was arrested on 2 March 2021.
When the matter was before the Local Court, and this Court, Black said that he was not guilty of the offence and the matter was listed for trial. A plea of guilty was entered after arraignment and Black accepted responsibility for this offence which was charged as specially aggravated detain for advantage in company: s.86(3) Crimes Act 1900, maximum penalty 25 years. The circumstance of special aggravation was the occasioning of actual bodily harm. The late plea means that reduction in the otherwise appropriate sentences of 5% is required: s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999.
The injuries noted by the police, mention a small "laceration" under the victim's eye and what is described as a "wound" but it is accepted by both parties that the injuries are best described as actual bodily harm; and the offender is to be sentenced on that basis.
The matter on the s.166 certificate, obtaining benefit by deception, s 192E(1)(b) Crimes Act 1900, if dealt with in the Local Court, has a cap of two years as a maximum penalty. It involved the successful attempt to effectively defraud the government revenue and take a measure which had been put in place to help people, such as the victim in this matter, meet with the exigencies of the pandemic. It was an offence against the victim as well and the community.
An aggravating feature on sentence was the fact that it was committed while Black was subject to five Community Corrections Orders (CCOs). Of the CCOs three involved possession of knives and two were domestic violence offences for contravening Apprehended Violence Orders.
The nature of those offences whose details are before me in exhibit B and particularly the domestic violence offences, indicate that Black was not keeping to a fundamental requirement of the orders that were made in the Local Court to be of good behaviour. He was not taking up the opportunity that he was given.
I will formulate an aggregate sentence for those breaches which will be made partly concurrent with the present sentences. Although I have taken the matter into account as a circumstance of aggravation, and will take care not to double count this factor, breaches of CCOs in domestic violence matters in particular and other matters, given the facts here, involving knives require some independent punishment.
So far as the s.166 matter, while it is a separate offence, when I come to formulate, as I am about to do, the objective seriousness of the principal offence, the fact that the money was taken is one of the matters taken into account. It would be double counting were I to do anything other than make that sentence concurrent with the principal offence.
The principal offence involves detention for a period of hours, it occurred in company, and there was financial advantage and also a psychological advantage.
The actual bodily harm, in the scale of things, is at the lower end but that is not to in any way diminish; the real threats that were made, the real violence involved, the presence and the fact a weapon, was produced on a number of occasions to accompany threats to kill. That there were two offenders indicates the force deployed against the victim. Their motivation was partly financial but they were dealing with someone who had no assets so there was also a significant element of humiliation intended. That there was a psychological advantage by humiliating the victim is evident from the facts that I have read. Though I do not have a Victim Impact Statement it requires no imagination to understand the anguish, discomfort, terror and humiliation that the victim would have felt. I have to take care, punishment and humiliation are very, almost necessary elements of an offence involving specially aggravated kidnapping, not to double count matters.
Here the basis for the offender's liability is as part of a joint criminal enterprise. While it is accepted that Cameron was more aggressive and wielded the knife more often than Black, the distinction in their roles must only be modest. Black joined in all the actions and the only thing that can be said in his favour is that he lost interest for a period when they were at the witness's home.
As evident from the facts there is no planning or preparation in this matter.
It is accepted that a custodial sentence of some length must be imposed. One guide to my sentencing discretion is the maximum penalty here, 25 years. The offence and the subjective circumstances cannot be looked at in a vacuum. The two men who committed this offence were the products of their backgrounds and upbringings. I note that I have previously sentenced Cameron: R v Filipetti (Cameron) [2014] NSWDC 214.
Black's background is set out in a careful and thorough report from Ms Sidhu, a forensic psychologist. I also have benefit of a letter from Mr Black. He did not give evidence on oath but there is nothing controversial in what he says. He wanted me to know what had caused him to be standing in front of the Court today for sentence. He wants me, and the community, to know that he takes full responsibility for his actions. He tells me about the last 18 months of his life he has spent in gaol.
COVID has meant that he has been locked in for weeks in isolation. When he was locked away his father passed away and arrangements could not be made for him to attend the funeral, even by way of video link. He says his time in is the longest he has served; it has opened his eyes to the impact of his background. He has still the support of his mother.
He has some insight into what caused him to take up the use and abuse of drugs while young. He told his psychologist that the use of methylamphetamine particularly has been the driving factor in his life since he was a teenager. His letter concludes, "I can honestly say, I would not wish any upbringing like the one I received on anyone and it has only damaged me mentally and physically".
Although the psychologist spoke of him expressing some remorse for his victim the material before me indicates that while he clearly regrets what he has done and he clearly has some insight into himself he is yet to display any particular insight for the harm his actions caused his victim. That insight may come because the evidence shows he is maturing. It is sad but tragic fact that he will have to do that maturing in custody.
Black was born in 1994. The uncontroversial evidence before me indicates that his mother was a heroin user and that he was born heroin dependent and had to be weaned off that drug. He spent his early years with his mother and father, but his father was, by occupation, a drug dealer and. There was domestic violence in the home. There was drug use in the home. His mother had her own demons. She was a drug user and spent time in gaol. And while his father was there for him his father's business meant that he too was incarcerated.
As a consequence of both parents being unable to care for him Black was fostered to a family member. He did not see his mother and father again until he was 18. Ms Sidhu describes the history given about the foster family as "not nurturing with no positive role models". There is also an allegation, which is presently the subject of civil proceedings, that he was been sexually abused while in the Department of Community Services' care.
The report describes a childhood of fear, fright and abandonment. Black was diagnosed at 10 with Attention Deficit Disorder. He got little from his schooling and, as is sadly common, gravitated to other antisocial peers. He left school without any qualifications and has never held a job in the community. He suffered a serious motor vehicle accident which may have impaired his capacity to do some work.
As Ms Sidhu concluded; from the day Black was born there was an impact on his early neuro development; which would have shaped his temperament. Drugs, particularly methylamphetamine were used as a maladaptive coping mechanism for traumas resulting from his background. His life revolved around drugs, crime gambling and antisocial peers. He does not have the emotional containment to help process his distress other than drug use. The only protective factor available to him is his growing maturity and the support of his mother who appears to have dealt with her own problems.
Ms Sidhu makes several significant recommendations to help Black deal with his poor mental health and developmental trauma. I will have a copy of her report sent with the warrant. She recognises that inevitably he will face further life stresses including dealing with matters relating to the sexual trauma disclosed. He would benefit from referral to the Wayback program prior to his release and a staged approach to reintegration back into the community is recommended. He would benefit from doing the EQUIPS addiction maintenance programs. He will need considerable help in building positive peer relations. Programs such as the SMART may help. He will need to be seen by a suitably qualified psychologist to deal with childhood trauma. Referral to Victims Services is recommended.
Ultimately if Black is to not reoffend he will need to get a job, a home and get support in making a transition to independence. At present he seems to have some motivation. But, as the Crown submit, those prospects are guarded because he has little personal resources to deal with the stresses and strains of leading a normal life in the community. This is because, frankly, he has never lived a normal life in the community.
It is recognised that a sexual assault and the background described can have profound and highly detrimental impacts on children. The Court does not devalue the impact of the traumatic events on a child such as those detailed in the report. When I come to synthesize all relevant factors, it provides a reasonable explanation for why he took up the use and abuse of illicit drugs. He was and became part of the antisocial element in the community. He had little concern for himself, apparently little concern for his partners and obviously no concern whatsoever for his victim.
But an offender who has had the start in life that he had cannot be held to bear equal moral responsibility to one who had what might be termed normal or an advantaged upbringing. Those effects do not diminish over time and should be given full weight in determining the sentence. Common humanity, which he did not display to his victim but which the Court will display to him, means that he has fewer emotional resources to guide his behavioural decisions. This does not mean that Black does not bear moral responsibility for his crime, but those matters can and will be taken into account. His moral culpability is less than those whose formative years were not marred in the way set out in the material before me.
The material also indicates that Black is at considerable risk of being institutionalised. Since an adult he has been in and out of gaol with very little time spent in the community. His criminal record means that he is not entitled to leniency given to first offenders. It means that greater weight has to be given to matters such as deterrence and community protection. At the same time this offending was a serious escalation in his criminal behaviour.
The Crown submit that a sentence that reflects the objective seriousness of what he did is required. They say that I must be guarded as to his prospects.
I agree with those submissions, but it creates a conundrum. For a man as young and still maturing as Black his motivation is important. Too severe a sentence could result in a disproportionate level of punishment. That could operate to increase his risk to the community on release. This can arise first, if he becomes institutionalised by serving too long a sentence. Secondly, if the value of any steps he is taking to promote rehabilitation diminish. And, thirdly, if he loses hope of normal life after the end of his imprisonment those hopes might be crushed.
A sentence should not operate to destroy prospects of rehabilitation and reform. Offenders should not approach their term with a feeling of hopelessness. They should be given an expectation of a useful life after release. But I note as Basten J said in DPP (Cth) v Beattie [2017] NSWCCA 301, what might be seen as a crushing sentence really depends on the perspective of the observer, the victim, the community, an appeal court or the offender.
[3]
Breach of Community Correction Orders
I find the breaches proven and that for each matter the s 5 threshold is crossed. For the breaches there will be an aggregate sentence of eight months imprisonment. That sentence of eight months will commence on 2 March 2021 and expiring on 1 November 2021.
[4]
Indicative sentences
1. In relation to each of the two domestic violence matters, I indicate a sentence of three months.
2. In relation to each of the custody of knife - first offence matters, I indicate a sentence of one month
3. In relation to the custody of knife in public place - subsequent offence, I indicate a sentence of three months.
So far as the domestic violence matters are concerned it is pretty clear, as his partner said, "He doesn't get it, he has to get he has to treat women with respect".
[5]
s. 166 matter - Dishonestly obtain financial advantage etc by deception
For the remaining matters you are convicted. I will not give an aggregate sentence. For the dishonestly obtain financial advantage there will be a sentence of nine months' imprisonment. That sentence will date from 2 April 2021 and expire on 1 January 2022 that is a month after the breach matters.
[6]
Count 1: Take/detain in company with intent to get advantage occasioning actual bodily harm
Had it not been for his late plea of guilty a sentence of approximately four years six months would have been imposed. But sentencing is not meant to be strictly mathematical, nor should a sentence be set out in minor fractions of months. The required 5% must be deducted to reflect the utilitarian value of the plea: s 25D Crimes (Sentencing Procedure) Act.
The term of the sentence is four years three months. There will be a finding of special circumstances here, but release is contingent on him satisfying the State Parole Authority that it is in the interest of community safety that he be released. While the State Parole Authority will have to determine the conditions of Black's release for my part, I would urge that they consider his transition to the community through full time rehabilitation at a drug residential facility.
In accordance with my finding of special circumstances there will be a non‑parole period of two years and six months to date from 2 April 2021. You will be eligible for consideration for release to parole on 1 October 2023. There will be a parole period of one year and nine months which means the total sentence should expire on 1 July 2025. A total sentence of four years three months. Starting a month after he went into custody.
So, there is a month for the breaches and the two concurrent sentences, the principle sentence, which will subsume the nine months fixed term for the s166 matter, is four years three months, non‑parole period two years six months, parole period one year nine months; reflecting a substantial finding of special circumstances but whether he is released or not is really up to the State Parole Authority.
[7]
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Decision last updated: 17 October 2022