R v Daniel

R v Daniel - [2022] NSWDC 729 - NSWDC 2022 case summary — Zoe

[13]

Sequence 5 - Sequence 6 & 7 on Form 1

At 4.20am on 2 April 2021 the offender walked into the grounds of the Wallacia Hotel. He was carrying what appeared to be a shortened double barrel shotgun. He was wearing black clothing, gloves. He carried a duffle bag. A skull mask was concealing his face and head. The hotel was closed but there were two employees inside finalising closing procedures. He removed a screen attached to the hotel's kitchen window and entered the kitchen area. He was seen by those inside on the CCTV display. He used something, an implement to crack the glass doors. He then used the shotgun to smash a hole through the glass. He went inside the premises and held the gun to the heads of each of the two employees demanding money and the keys to a 2013 Holden Commodore Clubsport vehicle was parked outside. That car was valued at approximately $45,000.
He forced both employees to the ground. He put the barrel of the shotgun into the back of the head one of them. He left with $34,000 and the car keys. He returned soon after and demanded that the owner of the car help him start the vehicle. After the owner did help start it, the offender said to him, "You just saved your life bro". He drove off in the car. Police were called but were unable to find the car.
In the intervening period the offender took steps to disguise the car by obtaining vehicle registration plates, from a former friend, He then drove to the Mt Keira area. He drove there with Ms White a woman he had only recently met. She was a fellow drug user: see below at [75].
At Mt Keira he tried to disguise the vehicle taken by spray painting it to look like the vehicle from which the plates had been taken. At some point the kill switch on the vehicle was activated and he could not get it to start.
By this time, it was the early hours of the morning of Tuesday 13 April. At the same time a gentleman aged 66 was doing some work nearby. He had a backhoe on a trailer attached to his prime mover. He was securing his backhoe onto the trailer when he was approached by Daniel. Daniel told him, "I've broken down up the road, do you have insulation tape so I can tape some wires together". The victim agreed to this request and gave Daniel some tape.
At that time Daniel produced what appeared to be a sawn-off shotgun. He pointed it at the victim. The victim had some knowledge of firearms, and he believed the firearm was real. He was understandably terrified and agreed to do what he was told by the offender. He was told to stop and sit on the ground. He was then tied up using the electrical tape.
White was standing nearby with bags that had been taken from the disabled Holden. Daniel told the victim that White was going to keep an eye on him while he went across and tried to start the prime mover. He demanded of the victim instructions on how to detach the trailer. Leaving the victim tied, he detached the trailer and he and White drove off. The victim was detained for about 20 minutes in all.
After the prime mover had driven off, he was able to flag down a passing motorcyclist and, using their phone, call Triple‑0.
The prime mover did not get very far. Shortly afterwards it arrived at the lookout at Mt Kembla. There the second victim, a 26-year-old man was parked looking at the view. He saw the prime mover turn up. Daniel approached him and asked if he had jumper leads. Daniel then produced the shortened double barrel shotgun. White remained in the truck. He said to his victim, "Give me your keys, wallet and phone and walk towards the bush".
Understandably frightened, the victim handed Daniel his keyring, which had on them the keys to his car, his unit and work premises. He also handed over his mobile phone and wallet which had $10 in it and personal cards. Daniel said to him, "Walk towards the bush". He then told him to turn round and get on his knees. Before saying, "run into the bush and keep running." The victim, extremely scared, thought he would be shot or seriously injured if he did not do what was asked of him and went into the bush.
Attempts were then made to destroy the truck prime mover by starting a fire in the cabin. The interior was set alight, however, as the doors were closed the fire was starved of oxygen, although the cabin was left badly damaged.
Daniel and White drove away in second victim's vehicle. Soon after he was able to flag down someone and used their phone to call Triple‑0.
A police investigation led to Daniel's arrest on 15 April 2021. He has been in custody ever since.
On 4 May 2021 he took part in an electronic interview and put forward matters that were later contradicted by evidence. After the interview, however, he did agree to show the police where he had hidden the shortened double barrel shotgun. He directed police to a bush area and it was able to be recovered. It was determined that it was a firearm under the Firearms Act 1996 but it was an imitation as it could not be fired and was not in working order. A photograph of it indicates that Victim 1 from Mt Keira was quite right in his assessment that superficially it looked very much like a real shortened firearm.

[14]

Objective seriousness

Crimes such as those for sentence are crimes against people, no matter that property was taken or sought to be taken. Where citizens are robbed, assaulted and threatened by weapons, it can have a terrible impact on them. Such crimes can have more serious consequences. People lose confidence in institutions. They feel they cannot be protected by police or other security measures. CCTV, although present on a number of occasions, did not prevent the commission of these offences.
The community, hearing about such matters and victims of such matters, learn to fear others and lose their trust in others. Where people are fearful the entire community suffers. As a consequence, we lose our freedoms to go out and participate in community activities, we lose the freedom to simple things like going to the newsagents, going to the pub, going to work, going to a McDonald's restaurant.
Where criminals are caught committing such offences the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency shown by sentencing judges led the highest court in New South Wales in 1999 to publish a guideline judgment desired to guide the sentencing discretion of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.
While not prescriptive, careful attention to applicable guideline judgments of the Court is required. They must be taken into account: s.42A Crimes (Sentencing Procedure) Act 1999; Moodie v R [2020] NSWCCA 160.
In each matter I have to have regard to the nature of the weapon used and how it was used. In each offence there was a real threat of violence, at times that threat was made with some intensity. Each event involved some planning, although even for the Wallacia matter, the planning was rudimentary.
Each of the victims were in their own way vulnerable.
The amounts taken are also relevant, it varied from nothing to a few hundred dollars to the $34,000 or the taking, for a short period, the of the truck's prime mover.
Daniel now admits, through his psychologist, that he was affected by methylamphetamines at the time of each of the offences. That fact does not mitigate and, as he admits, he was not "thinking straight." His drug use, while armed and stressed, made him more unpredictable and thus more dangerous.

[20]

Forms 1

Daniel asks that when I sentence him for three of the offences, I take into account other matters on a s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 Form 1. He has admitted his guilt in relation to each of those matters. It should be clear from this judgment in all of the circumstances it is clearly appropriate I take them into account. There must be an increase in sentence, the increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146. I do not sentence for the matters on the Forms 1. I take them into account I do so as part of the instinctive synthesis approach to sentencing, noted in particular by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. Sometimes as here, that increase can be substantial: Attorney General's Application No. 1 at [18].
I have to be careful however, as to the extent the facts of Form 1 matters are interrelated with the matters for sentence, I should not double count.
I note, I should have said earlier, the damage to property in the Wallacia Hotel was not the damage when he entered the premises but other relatively minor damage. Some of the matters on the Form 1 were quite separate and serious and that is relevant when assessing the objective seriousness of the matter for sentence.
Looking at the Forms 1, the serious ones. At Wallacia, there was an additional confrontation with the victim and his motor vehicle was taken. It was a valuable motor vehicle, as the offender well knew. Some matters about it and that owner were raised in sentence today but they are not pressed in mitigation. I am left with the situation where he took this car, and it was ultimately recovered in a damaged state.
The other vehicle, the Subaru belonging to the second victim at Mt Keira was not recovered.
I j make this observation, unless you are lucky enough to own a home, a motor vehicle is generally the most expensive and valuable item a person can own. To lose a car means not just financial loss but loss of the ability to move freely about the community. Not all vehicles are insured and even if they are thefts lead to higher insurance premiums that are passed on as a cost to the whole community.
Victim 1 Mt Keira's truck prime mover was damaged by fire, it was his tool of trade. I do not underestimate the loss of impact of that vehicle would have had on him and his business, while it was being repaired. Again, it is not an answer to say it might have been insured; we do not know. And, as I said earlier, even insured vehicles take time to be replaced and their loss, even temporary loss, can be incalculable.

[24]

Subjective case

Daniel gave evidence today. He also provided a letter to the Court expressing his remorse and asking for the forgiveness of his victims. He also adhered to the history given to a psychologist, Ms Duffy, whose report is before the Court.
He expressed of appropriate remorse and recognition of the harm he had done. He said that he accepted the trauma that he must have inflicted on each of his victims. He made a promise to do better.
He told me of his history and how he went from a regular worker to a regular user of methylamphetamine. He told me that during his initial time as a methylamphetamine user he was able to maintain a superficial appearance of normality when dealing with his children and other members of the community. He said that he did not want to make excuses for what he did. It seems clear from his evidence that at the time of his offending, he was simply thinking only of himself, not about his family, not about his obligations as a citizen and certainly not about his victims. His sole selfish desire was to get more and more drugs.
The reports before me set out a number of important stresses that were upon him at the time. But as Ms Keay, for the Director of Public Prosecutions, pointed out, and Mr Booker accepted, those stresses apply to many, many people in the community during the pandemic. It is not unusual for people to have problems; obtaining work, providing for the family, or having to deal with sick relatives or a difficult separation from a long‑term spouse. Some do resort to drugs but few, thankfully, resort to the sort of crimes that Daniel committed.
He tells me, and I am prepared to accept, that drug free he is capable of reviewing what he did in a dispassionate manner. He says goal is so different from the life he lived before.
He is taking advantage of the discipline in gaol to train, to increase his weight, to look after himself, to work and to lead within the gaol community.
He told me that he is not a person who was disposed to talk about mental health issues or stresses, that he bottled it up. He said he felt some shame about matters that occurred when he was a child, where he has reported sexual abuse by a teacher. He does not understand the impact of that abuse but Ms Duffy, a respected forensic psychologist, has given me her opinion.
He accepts responsibility for what he did, and it appears has some genuine insight. Of concern, of course, is that he showed no such insight when he committed these offences. And he must, even drug affected, have understood what he was doing was seriously wrong and was serious offending against other individuals. That flaw in his character not only means he has to be gaoled and removed from the community, but it also means I must be guarded about his future prospects.
I accept his evidence now shows his remorse and insight. He has made a practical effort to show that remorse by his early pleas. They have their utilitarian value, but they also have other value. While I cannot quantify it in percentage terms, his subsequent disclosure of where the weapon could be found at least prevented someone else using it in the same way he did.
He told me that the money from the Wallacia Hotel was gambled away or used to buy drugs. Gambling and drug use can never be the excuse for serious crime. But the fact of an addiction to drugs and gambling, how it came about, what is to be done about it, can help explain offending and are relevant to what is to happen in the future and the offender's prospects of either recidivism or rehabilitation. It helps me understand his state of mind at the time, his incapacity to exercise sound judgment at the time: Henry at [273]. But as I said it does not excuse.
I will not go into the details, but Ms Duffy's report reveals a history of childhood trauma. A sentencing a court does not devalue the impact of particular traumatic events. It is well recognised that sexual assault on a child can have a destructive impact on them which continues or perhaps forever. It is relevant by way of mitigation: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R [2021] NSWCCA 207.
Some care needs to be taken, as Daniel told me, these things are discussed in gaol, such claims can be invented, but here the revelations seem to accord with his history of anxiety and feelings of rejection and abandonment and drug use; and the other matters noted by Ms Duffy. On balance I can accept it occurred. A person's background such as this is always relevant, it should be given proper effect when synthesising an appropriate and just sentence. It is also one reason to help explain why someone took up illicit drug use.
The matters disclosed by Ms Duffy do go to the offender's moral culpability and moderate some of the strictures that general deterrence principles often call for. They also call for some understanding.
In her comprehensive report Ms Duffy sets out the details of the abuse. She also sets out Daniel's personal history - work history, family history, the taking up of drugs and the various stressors that were operating at the time he did so.
Her testing revealed high scores for anxiety and depression and elevated scores on scales for Post‑Traumatic Stress Disorder (PTSD). She concludes four disorders were revealed by the testing and her assessments: stimulant, (methylamphetamine) use disorder, gambling disorder, persistent depressive disorder with anxious distress and PTSD (a provisional diagnosis).
In Ms Duffy's opinion, having detoxed from drugs and thinking more clearly and able to accept responsibility, Daniel has demonstrated a willingness to participate and continue to participate in any programs made available to him. She believes he would benefit from the intensive IDATP program and the real understanding of self‑help programs (RUSH) and EQUIPS programs.
She notes that at 50 his main risk factors for recidivism are, substance and abuse and gambling, but he can reduce the risk by behavioural controls when affected by stressors. But his depression and post‑traumatic stress disorder will increase the risk of relapse. He can be assisted by counselling; cognitive behaviour therapy and dialectic behaviour therapy.
She also notes that if given that assistance there are also several protective factors that reduce the risk of reoffending including; his steady employment history, his strong work ethic, his desire to take a positive role in the upbringing of his children and a relative lack of criminal record. He will, however, require supervision and assistance after release from custody.

[27]

Structure

The Crimes (Sentencing Procedure) Act assumes concurrency in the absence of a direction to the contrary: s 55. The Act, however, does not confine the approach to be taken to the structure of two or more sentences.
I am required to indicate an appropriate sentence for each offence and to structure the sentence as such that the overall sentence is just and appropriate to the totality of Daniel's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17.
Here, the various charges seek to encompass all his criminal conduct. Some are for sentence, and some are Form 1 matters. Questions of concurrence or accumulation is not one of temporal proximity but whether the offence for one can comprehend the criminality of the others. If it cannot there should be at least partial accumulation otherwise there is a risk the total sentence will fail to reflect total criminality: Cahyadi v R (2007) 168 A Crim R 41.
Sentences are not made concurrent just because of their similarity or even where they are part of a course of conduct. Madam Crown submits, and I accept, public confidence in the administration of justice requires sentencing courts avoid the suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381.
Courts have to be careful. Long sentences can have significant impact on a person and their prospects for the future. Long sentences have what some judges describe as a compounding affect; that is, a sentence of two years has more severe an impact on a person than a sentence of one year and a sentence of five years has more of an impact on a person than a sentence of two years and so on.
Judges do not ignore the impact of gaol and long‑term removal of a person from the community. Mr Booker cautioned me about the danger of a person becoming institutionalised, that is by the length of time in custody they forget how to live a normal life in the community or become so adapted to life in gaol that they cannot lead a life in the community.
Judges are given considerable flexibility on how an aggregate sentence is structured: Nguyen v The Queen [2016] HCA 17 at [36] - [40]. And I note that while each offence here is separate many of the matters that have to be taken to into account in formulating an appropriate sentence do overlap.
Too severe a sentence may result in a disproportionate level of punishment and the severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroying an expectation of a useful life after release. The value of steps taken to date which promote rehabilitation may diminish. This affect both increases the severity of the sentence to be served and also destroys, potentially, what prospects that there are of rehabilitation and reform. However, it has to be noted that the proportionate sentence and whether it is crushing or not can depend on the perspective of the observer, whether they are the offender, the victim or victims, the community or even the appeal court: DPP C'th v Beattie [2017] NSWCCA 301, Basten JA at [26]-[45].
Ms Keay submitted that any sentence I impose would of itself allow sufficient time on parole without the need for a finding of special circumstances: s44 Crimes (Sentencing Procedure) Act.
Mr Booker's position was that as the chance of re‑offending is low, the longer Daniel is supervised and assisted in the community the less he will become institutionalised and the greater the chance he can lead a normal community life on release.
It is important to note that a Bureau of Crime Statistics study reveal offenders who receive supervision upon release take longer to commit new offences and are less likely to commit serious offences than those released unconditionally: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.
The evidence relating to the offender's prospects justify a finding of special circumstances. I, accept his evidence that he has plans for release and that he has capacity to improve himself on release. He is seeing a psychologist for the first time, and he will need to continue those appointments when he is in the community. There are a number of underlying matters that will need concerted psychological help.
He will also need help after a lengthy period in custody adjusting to normal community life in the community. If given an extended period of parole, with appropriate supervision and assistance, it is highly unlikely he will re‑offend, and certainly not in the way that he offended in this very short period. That said I am mindful of the requirement of the minimum period he should be imprisoned must properly reflect the gravity of the offences and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

[28]

Synthesis

Daniel makes a compelling case for this one month of his life being aberrant. He had a number of underlying problems that must be addressed but there are protective factors and others can be put in place. It is unlikely he will re‑offend if this occurs. He has in the past demonstrated a capacity to lead a normal life in the community. I believe he will do in the future.
He has shown insight and capacity, but his short period of offending also indicated that he has the capacity, if drug affected, to lose all moral compass, that is, to offend in serous ways, knowing the consequence of his offending. The number and seriousness of each offence require individually and collectively lengthy custodial sentences. But while he will get some benefit from concurrency, he must be punished for what he did.
Each matter for sentence carries with it the community expectation that offenders will suffer severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which fall upon them will if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. Although I have accepted that his moral culpability was reduced because of matters in his background general deterrence is still an important factor. So far as specific deterrence is concerned his time in custody has already, I believe, drawn home to him the consequences of his action.
The mitigating factors, while it must be given an appropriate case, cannot lead to a disproportionate penalty. As I said at the beginning offences such as this cause considerable disquiet, and sentencing courts have an obligation to vindicate the dignity of each victim of violence in each matter, to express the community's disapproval of the offending and by the structure and length of the sentence attempt to afford some protection to the vulnerable against the repetition of this sort of offending by others.

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Cases Cited (25)