(1999) 46 NSWLR 346
Postiglione v The Queen (1997) 189 CLR 295
53 NSWLR 704
R v Windle [2012] NSWCCA 222
R v Wong [2003] NSWCCA 247
Ryan v The Queen (2001) 206 CLR 267
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Green v The Queen (2011) 244CLR 462[2011] HCA 49
Henry v R [1999] NSWCCA111(1999) 46 NSWLR 346
Postiglione v The Queen (1997) 189 CLR 29553 NSWLR 704
R v Windle [2012] NSWCCA 222
R v Wong [2003] NSWCCA 247
Ryan v The Queen (2001) 206 CLR 267
Judgment (10 paragraphs)
[1]
sentence - ex tempore revised
Shortly before the date fixed for his trial Bradley Green asked to be re‑indicted. He pleaded guilty to an offence of detain for advantage while in company and occasioning actual bodily harm on his victim, a young man: s 86(3) Crimes Act 1900. That offence carries a maximum penalty of 25 years imprisonment. That maximum penalty is one important guide to the exercise of my sentencing discretion.
With one exception, there are agreed facts before the Court. Ms Lister had allowed the victim to stay at her rented residence in Lake Illawarra as he was homeless. He and Ms Lister had a number of associates who were either homeless or transient and involved in the heavy use of illicit drug including methylamphetamine. They all lived in a fairly desperate, hand-to-mouth existence. Many had been either on the streets or couch surfing since they were young teenagers. Green was one of that group, although in this matter, the oldest.
Green was aged 24 at the time of the offence but given all the material before me his chronological age was not a measure of his true level of maturity. His education had been interfered with and as a young person he suffered a number of traumas. He took up the use and abuse of illicit drugs when too young to make any rational choices about drug use. He, as the evidence before me indicates, has until very recently been simply incapable of engaging in consequential thinking.
R v Green [2021] NSWDC 362 | Case summary | Zoe
The facts before me, which are similar to those of the other two young offenders, indicate that they all suffered that same incapacity. This is because what occurred involved a particularly serious series of events where their victim's rights as a human being were totally ignored. He was assaulted and detained over a lengthy period.
I am heartened by the evidence given by the offender today, when he said that when watching a recording of the treatment meted out to the victim by him and a young person, "I had to look away. The person doing that is not the person I am today." He told me that he now does not know the person inflicting that violence on the victim.
Tragically, he must be sentenced today for what he did then. I will take into account his; growing maturity, his change in attitude and acknowledgement of the wrongs of his actions. However a judge must return to the objective facts of the matter before him for sentence.
Ms Lister had insufficient food for the residents of the home or even the family dog. The victim was unable to pay the rent or board but he agreed to pay her some money as soon as he could. It is not clear what led this offender and two young people detaining the victim. There are two not necessarily contradictory reasons in the agreed facts. The first is their perception that a debt was owed to Lister, and the second, this offender's belief that the victim had taken his wallet; something the victim denies.
Nevertheless, the agreed facts indicate that on the day of the offence he and the two young people, Owen (a pseudonym) and Guinness (a pseudonym), were with the victim in the lounge room of the house he was staying in. They all knew each other. Ms Lister was in her room. One of the young people and this offender assaulted the victim. He was kneed. He was kicked. He was punched multiple times to the head. One young person filmed the assault and a portion of it was played in court as exhibit C. The offender said to the victim: "You're not leaving until you give Kayla (Lister) $150 and you give us the rest of your pay."
The offender accused the victim of taking his wallet and identification on a previous occasion, despite the fact the victim saying this was not true. A certain point after the assault, the men left the victim in the room, but at this stage one of the young people, Guinness, returned and took a knife and cut the victim's left cheek. A significant wound was inflicted, which later required suturing.
This offender was not present at that time, but he aware of the consequences as he returned to the room soon after. The offender asserts that he gave the victim a towel, but no other aid was provided. It is admitted that over the next few hours, despite his wounds and injuries, the victim was subject to verbal abuse from the offender Owen and Guinness.
The facts state, "the offender demanded he get on all fours and call himself a dog." Although the offender asserted to his psychologist that he had little memory of all the events because of his drug use, he in evidence today says that did not occur. However, he does concede that he called the victim a "dog." The agreed facts say Owen tried to get a water bowl and make the victim drink from it.
It may be that the details were confused by the victim as to who said what but these things were said. I sentence on the basis that there was continuing humiliation of the victim over a period of time, despite his obvious injuries. The victim was told numerous times he could not leave and the threats against him continued. Even when the two young persons and the offender left, the threats continued and Ms Lister was prevailed upon to, in effect, ensure that he did not leave. Further threats were made via text.
The victim made some attempts to obtain the money as had been demanded. However, at this stage, this offender had left the victim in the apparent custody of Ms Lister; although she took no active role to preventing him leaving. He did, however, leave and get assistance. His laceration received nine stitches. He also had lacerations on his lip, bumps and bruising to his face and head; which can be attributed to the assault by this offender and the other two young people.
The offender was arrested on 17 October. He had failed to appear in court two days before. He was on bail for another offence, a summary offence involving violence, and to get bail he had to make a promise to be of good behaviour. He broke that promise to the Court, a matter I take into account.
Looking at the seriousness of the offence, objectively, it was motivated by a degree of vigilantism and perception that a debt was owed, in a sense the young men were taking the law into their own hands. The detention took place over many hours. It was accompanied by serious assaults and a failure by this offender to give full recognition to the fact that the victim had been himself wounded. The victim's humiliation was continued. It is a serious offence and requires a significant custodial sentence.
In his Victim Impact Statement, which I have read today and heard read on another occasion, the victim speaks of the consequences to him. His concern was principally for the impact of the scarring as a result of the wound, but so far as this offender is concerned he also speaks of the general trauma this event had on him. He has lost trust in other people. He told me of his fears for his future and the way his life has been compromised because he feels insecure leaving the house. He says, "It's affected me massively, personally and as a person."
If we are to live as a community, we have to have respect for others and a prolonged offence of this nature indicates profound disrespect. Belatedly, this offender has expressed appropriate remorse; I suspect that it is as a consequence of what he has learnt in the Odyssey House program. That is at least one indication that in the future his chances of committing an offence like this are very slight. The real risk of re-offending, as identified in a report by Ms Dombrowski, a psychologist, is if he resumes the use of illicit drugs. If he can maintain a drug‑free existence, his prospects for rehabilitation are sound. I will give him an opportunity to demonstrate any progress to rehabilitation by a substantial finding of special circumstances.
I have already referred to some of his evidence to me today. He is accepting of the consequences and the punishment that must be afflicted. He affirmed the family history given to Ms Dombrowski. That history is also summarised in the Sentence Assessment Reports, dated 23/03/2021 and 22/04/2021, which are before me. There is no inconsistency in them. That history can be accepted, as can his expressions of remorse.
Green served eight months in custody before being given bail to attend the Odyssey House program. The report from Odyssey House is a positive one, even though he left just before the completion of the six‑month program. It notes his leadership position, his continued and significant progress. Although he did not welcome assistance in schooling, it is also clear that he benefitted from it.
Having left the Odyssey House program, his bail was varied. It was hoped that he could attend a full‑time Watershed program but he was unable to get a place. He did, however, endeavour, given the constraints of his strict bail, to engage in the day program and attended a number of sessions. It is his intention on release to resume life in this community and continue with the program.
Ms Dombrowski concludes her report by recommending that he continue to receive alcohol and other drug counselling and that he would benefit from EQUIPS programs, particularly the EQUIPS aggression program. He will need continuing help both in custody and on release in managing psychosocial factors. He will need help with housing and, in particular, avoiding negative peers, something he will not be able to do while he serves his time in custody. A dilemma facing a sentencing judge in a matter such as this is where full time custody should be imposed but the offender's need for rehabilitation would best be met by a non‑custodial alternative. It is notorious that gaol terms can interfere with progress towards rehabilitation, not just by forcing associations with anti-social peers, but by taking away hope from an offender.
An appropriate punishment is not always consistent with restoring a person to the community. A judge has to balance and synthesise all these matters. As I have indicated here and at the outset, the objective seriousness of what he had done calls for further time in custody, something Green recognises.
Ms Dombrowski's report, which I have read and considered, sets out a history of disadvantage during childhood. Green was estranged from his parents. Their separation had a significant impact on him. His mother went through some major problems of her own. And, it is clear that the family unit was blighted by the drug methylamphetamine; a problem that continued so far as he is concerned, until he went to custody for this offence. His parents have come to Court today to provide assistance. It is clear that, from the material before me, his mother has come to grips with her own problems.
Green will have their continuing support. Pro-social support in the community is one important measure as to whether someone can take advantage of parole and turn their life around, a promise that the offender made to me in court today. I will not go through that history here.
[2]
Guidance
A number of important principles, they were addressed in the written submissions of Mr McGonigal, solicitor for the Director, and Ms Parkes, Solicitor Advocate for the Legal Aid Commission. There is no significant difference raised in those submissions. They have informed this judgment and the sentence that I will impose. I will touch briefly on some critical factors. However, while every offence and every offender requires individualised treatment, I have to take guidance from a number of sources; they include the maximum penalty, the decision of other Courts and the many purposes of sentencing. They, in turn, include the deterrence of this offender. But his time in custody has and will, I am sure, deter him. A sentence must also attempt to deter others from committing similar crimes and, importantly here, there must be proper recognition of the harm done to the individual victim and the community by offences such as this.
One of the purposes of sentence is general deterrence but the heavy maximum penalties available did not deter any of the offenders from committing this offence. I do not think they had the capacity to think about the consequences of their actions for their victim or themselves. A proper sentence marks the Court's view of the seriousness of the crime, it should let others know the retribution that will fall upon them if they commit similar crimes and the proper sentence has to reflect what was done and the person who committed the offence at that time has to be punished: R v Herring (1956) 73 WN (NSW) 203, at 205; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21; R v Windle [2012] NSWCCA 222.
[3]
Drug Use - causal connection to crime
It is clear from all the material before me, the offender has been using illicit drugs, in particular methylamphetamine, since a young teenager. He was affected by drugs when he committed this offence; it is the only rational reason that can explain why he did what he did. That said, drug use can never excuse a crime, even for someone who took up the use of drugs while young and who has a long‑term addiction. The fact of the addiction and its consequences must be taken into account. It helps explain the offence and the offending: Henry v R (1999) 46 NSWLR 346. It is relevant to my assessment of his subjective case and allows me to assess his sincere and concerted attempts to overcome the problem. It helps me understand his state of mind at the time, and his incapacity to exercise sound judgment. It is also necessary, to consider in the context of the changes that have occurred since he was granted bail by the Supreme Court.
[4]
Parity
This sentence must also be determined by having regard to the circumstances of the co‑offenders and their respective degrees of culpability - like must be compared with like. However, different personal and criminal histories may justify a real difference in the time each will serve in prison: Postiglione v The Queen (1997) 189 CLR 295.
I have sentenced Ms Lister and the two young offenders who were given the pseudonyms Owen, and Guinness: R v Owen (a pseudonym) [2020] NSWDC 791; R v Guinness (a pseudonym) [2021] NSWDC 57; R v Lister [2021] NSWDC 132.
The two young people had the benefit of sentencing principles relating to young persons. However, even though Green was an adult, there would be a justifiable sense of grievance were he to be treated in any significantly different than the other two who joined in with him in the assault and the detention of the victim: R v Wong [2003] NSWCCA 247; R v Boney [2001] NSWCCA 432. Ms Lister was sentenced for a different offence.
The principle known as parity is a classic example of the need, so far as possible, to ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246.
[5]
Quasi-custody bail conditions
Time spent in residential programs can and should be taken into account. The rationale for allowance is the need to factor into the sentencing exercise the restriction of the offender's liberty during the period of the program.
Here, I find the Odyssey program closely resembles imprisonment and is a form of punishment, even though it had significant benefits for Green. While I do not have to quantify it, I generally allow approximately 50% of the time, which here would be a period of about three months. I do not have to be entirely strict in my maths when it comes to that. I will take into account the eight months spent in custody, the time spent in Odyssey and time on strict bail. I will commence this sentence 11 months before today's date to give effect to all the periods of custody and quasi custody.
[6]
The offender's background
While his background would not meet a criteria of "profound' deprivation, the background experienced by this offender can and has left a mark. It did, I find, compromise his capacity to mature and learn from experience. It does mitigate the sentence, as it did for the young offenders, because his moral culpability is likely to be less than the culpability of offenders whose formative years were not marred in that way. It also helps explain the offender's recourse to violence. An inability to control a violent response can increase the importance of protecting the community from the offender, a point made in Bugmy v The Queen (2013) 249 CLR 571. This this factor is addressed in part by the Odyssey report which notes his growing maturity and the resolution of his significant drug addiction. I would urge the authorities to allow him to do as many violent offender programs such as EQUIPS anger management programs, as possible.
[7]
Special circumstances
There is evidence here justifying a significant finding of special circumstances Green has, so far as he is able, done everything he can do during his period of remand to demonstrate a progress to rehabilitation. There will be risks when he is returned to custody, an intrinsically violent and harmful environment. One risk is that custody will interrupt or hinder the rehabilitation progress now well under way. He will require considerable assistance adjusting to normal community life. There may still be a need for continuing drug rehabilitation in the community, possibly even residential..
In making this finding I am also mindful of the requirement that the minimum period for which the offender should be imprisoned must properly reflect the gravity of his offence and the other purposes of sentencing. R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].
His made a promise to me that I am prepared to accept. He does not want to go back to the life he had or to the person he was. I will give him an opportunity but he will have to earn his release to parole.
[8]
Synthesis
Synthesising all those matters. As I did for the two young offenders, I believe the starting point for transparency's sake as a sentence of seven years. Allowing a 5% for plea of guilty, there will be a sentence in this matter of six years and seven months. Although s 25D Crimes (Sentencing Procedure) Act 1999 appears to require exact precision, I do not break the sentence discount down into days or hours.
[9]
Orders
There will be a non‑parole period of three years and four months. That sentence will commence 11 months prior to today, on 25 April 2020. Green will be eligible for consideration for release to parole on 24 October 2023. There will be a period of parole of three years and three months from that date. His total sentence should expire on 24 October 27.
The effect of my sentence, Mr Green, is a minimum term of three years and four months backdated by 11 months. This will mean a bit over two years has to be spent in custody. There will be a parole period of three years and three months. That is a significant period of parole. If you breach your parole you could go back to custody to serve at least another year.
I am confident that if given assistance you will not breach your parole, but the man you were has to be punished and that punishment has to be consistent with the punishment inflicted on the other people involved, particularly the two young offenders. Had there been an earlier plea of guilty there would have been a greater reduction in the sentence. But there is nothing I can do about that,
[10]
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Decision last updated: 29 July 2021