R v King

Cases Cited: Bugmy v The Queen [2013] HCA 37; DPP (Cth) v De La Rosa [2010] NSWCCA 194

Category: Sentence

Parties: Rex (Crown)
Jonnathon King (Offender)

Representation: Ms Stueckradt (ODPP Parramatta)
Mr Breeze (Counsel for offender)

File Number(s): 2023/44237; 2024/8778

Publication restriction: Nil

JUDGMENT

1. Jonnathon King, you appear for sentence today in relation to five principal offences.

2. Four of those principal offences were committed at the premises at 45A Tallawong Avenue, Blacktown on 2 April 2022.

3. Those four principal offences are 2023/000044237: sequence 6 (aggravated break and enter); sequence 2 (robbery in company – the relevant victim being Gagan Chuahan); sequence 3 (robbery in company – the relevant victim being Cara Provis-Jacinto); and sequence 4 (stealing a motor vehicle).

4. Sequence 6 involves a contravention of s112(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 20 years; and there is a standard non-parole period of imprisonment for 5 years.

5. Sequences 2 and 3 involve contraventions of s97(1) of the Crimes Act. The maximum penalty for each of those offences is imprisonment for 20 years; and there is no standard non-parole period.

6. Sequence 4 involves a contravention of s154F of the Crimes Act. The maximum penalty for that offence is imprisonment for 10 years; and there is no standard non-parole period. I pause to observe that if sequence 4 had been prosecuted in the Local Court, the maximum penalty would have been imprisonment for 2 years and/or 100 penalty units.

7. Insofar as sequence 6 is concerned, you have asked me to take into account one matter (sequence 5) on a Form 1 which I have certified. Sequence 5 is a matter of being carried in a conveyance without the consent of the owner. The maximum penalty for a breach of the relevant statutory provision, s154A(1)(b) of the Crimes Act, is imprisonment for 5 years. (There is a maximum term of imprisonment of 2 years and/or 50 penalty units if prosecuted in the Local Court - noting this information was not recorded on the Updated Crown Sentence Summary.).

8. The fifth and final principal offence concerns an offence which was committed in the Parklea Correctional Centre on 6 June 2023 (2024/8778 sequence 2). This last offence was assault occasioning actual bodily harm. It involves a contravention of s59(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 5 years; and there is no standard non-parole period. I also pause to observe that if sequence 2 had been prosecuted in the Local Court, the maximum penalty would have been imprisonment for 2 years and/or 50 penalty units - noting this information was not recorded on the Updated Crown Sentence Summary.

9. The criminal misconduct of 2 April 2022 captured by sequences 6, 2, 3, 4 and 5 involved a joint criminal enterprise in which the participants were: you (aged 32); a young person, JD (aged 17); Cole Taylor (aged 21); and Ashley Hall (aged 31). Clearly, parity will be an important sentencing consideration – a topic to which I shall return later in these remarks. However, at this point, I note that:

(a) JD was sentenced to an aggregate term of imprisonment of 5 years, to be served in juvenile custody, by his Honour Judge Buscombe on 2 June 2023; (b) Ashley Hall was sentenced to an aggregate term of imprisonment of 6 years by her Honour Judge Harris on 24 August 2023; and (c) Cole Taylor was sentenced to an aggregate term of imprisonment of 6 years by his Honour Judge Hanley SC on 6 November 2023.

10. In this context, the following extracts from the Sentencing Bench Book are apposite (citations omitted):

“Sentencing courts, prosecutorial bodies and defence counsel should take steps to ensure related offenders are sentenced by the same sentencing judge, preferably at the same time… As a matter of practice, it is in the highest degree desirable that co-offenders be sentenced by one judge… If this occurs, the judge is then in a position to consider the interrelationship between the objective and subjective features of the offenders in an overarching way… The desirability of this practice has been repeatedly emphasised on the basis that it serves the public interest in consistent and transparent sentencing of related offenders… Many of the parity problems that arise on appeal could be avoided if co-offenders were sentenced at the same time by the same judge” (emphasis added).

11. The agreed facts (in these proceedings) of that criminal misconduct can be summarised as follows. This summary is drawn from the “Agreed Facts” document which is Tab 1 of Exhibit A. However, for a full appreciation of your role in that criminal misconduct, careful regard must be had to the CCTV footage recorded in Exhibit C.

12. At all relevant times, Mr Singh lived at the residential premises at 45A Tallawong Avenue, Blacktown. Those premises had three bedrooms. Mr Singh rented out two of those bedrooms.

13. In 2021, Mr Singh rented out one of those bedrooms to JD. JD’s girlfriend also stayed in the premises in JD’s room.

14. The relationship between JD and his girlfriend was not a good one. They would frequently physically assault and verbally abuse each other.

15. On one occasion, Mr Singh carried out an inspection of the bedroom JD and his girlfriend occupied. He discovered holes in the walls.

16. After that inspection, Mr Singh told JD that he had to provide Mr Singh with money to repair the damage or move out.

17. On 27 or 28 December 2021 (having left the property at a date not revealed in the agreed facts), JD and his girlfriend came back to the property to retrieve things they had left behind. Mr Singh asked JD if JD were going to give him money to repair the damage to the property. The response of JD and his girlfriend was to force open the door between them and Mr Singh, further damage the property, and to punch Mr Singh.

18. That day, Mr Singh reported the incident to police.

19. On 23 January 2022, an AVO was applied for by police and granted. Mr Singh was named as the person in need of protection, and the person to whom the AVO was directed was JD. The AVO contained the “standard conditions”.

20. As at 1 April 2022, Mr Singh was renting the two spare bedrooms to Mr Chauhan and Ms Provis-Jacinto. All three were at home that night.

21. The property at 45A Tallawong Avenue was subject to CCTV surveillance.

22. At about 8:00am on 2 April 2022, you, JD and Messrs Taylor and Hall went to Mr Singh’s premises. All of you were wearing masks.

23. Much, but not all, of what then happened was captured by the CCTV cameras.

24. At about 8:10am, the CCTV recorded JD’s presence in the loungeroom of the premises. Precisely how he gained access is not revealed in the agreed facts – but, by your plea to sequence 6, you have admitted it was some form of a break and enter. JD was carrying a weapon described as appearing to be a “miniature scythe”.

25. JD then unlocked a glass sliding door which allowed access to the premises from an outside passageway. You and Messrs Taylor and Hall then joined JD in the loungeroom.

26. As this was happening, JD gave the miniature scythe to either Mr Taylor or Mr Hall; and JD took possession of a knife.

27. In all of what next happened, you remained mostly in the loungeroom near the sliding door – although, it is agreed between you and the Crown that you “…appeared to be communicating to the other accused during the offence.”

28. Your co-offenders first went and entered the bedroom of Ms Provis-Jacinto. She woke to find two or three men in her bedroom, standing over her. One was holding a knife; another the miniature scythe. They were taking her belongings. She was terrified.

29. One of the intruders screamed at her “Where’s the money? Where’s the money? Don’t move. Don’t move.” Another of the intruders stole her car keys, wallet and mobile phone from her bedside table.

30. The intruders then ran out of her room. The agreed facts state that JD handed to you what appeared to be a mobile phone. I am satisfied, beyond reasonable doubt, that that was the mobile phone stolen from Ms Provis-Jacinto.

31. Two of the intruders then went to Mr Singh’s bedroom. One was holding a knife; the other the miniature scythe. On entering Mr Singh’s bedroom, these intruders demanded money from him. They then punched him a number of times, took his mobile phone and demanded his password. Cash and other items were stolen from a cupboard.

32. After these intruders left Mr Singh’s room, they went to Mr Chauhan’s bedroom. Mr Singh attempted to go to Mr Chauhan’s assistance but one of the intruders threatened him with a weapon whereupon Mr Singh retreated to his room and locked the door.

33. It would appear from the agreed facts that only one intruder actually went into Mr Chauhan’s bedroom. This intruder jumped on Mr Chauhan’s bed (Mr Chauhan having only just awoken) and held a 10-inch knife to Mr Chauhan’s forehead – with the tip between his eyes.

34. The intruder demanded money from Mr Chauhan, searched him and a cupboard, and eventually took Mr Chauhan’s work keys, car keys and mobile phone.

35. After that intruder left his bedroom, Mr Chauhan came out of that bedroom and saw Mr Singh and Mr Hall still in the loungeroom. Mr Hall was kicking towards Mr Singh.

36. Shortly after this, you and Messrs Hall and Taylor, but not JD, left the premises through the open sliding door. JD went back to Ms Provis-Jacinto’s bedroom. He then went to leave the premises through the open sliding door. As JD went to do so, Mr Chauhan grabbed him. Mr Singh came to Mr Chauhan’s assistance. There was a struggle. JD was still holding a knife. Mr Chauhan was punching JD. Mr Chauhan and Mr Singh dragged JD back into the house and locked the sliding door. JD broke free and went towards the sliding door and, in so doing, whilst holding the knife, swung it in the direction of Mr Singh who was wounded near his left ribs. The struggle between JD and Messrs Singh and Chauhan continued until Mr Hall returned down the side passage and stood outside the closed sliding door holding what is described as an axe. JD was able to unlock the sliding door which allowed Mr Hall to re-enter the loungeroom. Mr Hall swung the axe at Mr Chauhan. Mr Hall and JD then swiftly left the premises and went down the side passageway.

37. All but one of the intruders (including you) then left the immediate scene in a black Suzuki motor vehicle (sequence 5). That motor vehicle had been stolen earlier that morning from residential premises in Blacktown. The other intruder then drove off in Mr Singh’s motor vehicle (sequence 4).

38. You are morally and criminally culpable for the first principal four offences and the matter on the relevant Form 1 on the basis of a joint criminal enterprise. However, it is agreed between you and the Crown that that moral and criminal culpability does not extend to the wounding by JD of Mr Singh.

39. You are, therefore, to be sentenced for your part in the joint criminal enterprise which gave rise to those offences. You are legally responsible for each and all of those offences, whether or not you personally carried out any of them. About this there is no dispute.

40. However, the issue of your moral culpability for those acts was the subject of some dispute in the sentencing hearing. It was submitted on your behalf that your moral culpability was “greatly reduced” (compared to your co-offenders) because of the role you played. It was further submitted on your behalf that your “…conduct in standing at the door [was] consistent with [you] being an unwilling and reluctant participant.”

41. That second submission was consistent with what you told the author of the sentencing assessment report:

" • …He claimed to have no knowledge that the index offences were going to be committed.

• He continued to state throughout discussion that he stayed at the door, once he saw what his co-offenders were doing, and claimed to have wanted no part in it.”

42. It is also consistent with what you told the psychologist who prepared a report, and which was tendered on your behalf:

“With the home invasion… When I went into the house I froze, I didn’t really want to be in it.”

43. These statements by you were not supported by sworn evidence on your behalf. They were inconsistent with your pleas of guilty. More significantly, they were inconsistent with the contents of the video footage which, in my opinion, showed you to be performing a fully active role in the events which occurred within those premises – a role which extended to giving directions and receiving items. And you are a person who has a significant criminal history of dishonesty.

44. In the result, I am satisfied, beyond reasonable doubt, that the two statements that you made to each of those authors were deliberately untrue and were made in an attempt to distance yourself from your criminal and moral misconduct.

45. And whilst your participation did not directly involve entering the bedroom of any of the three victims, nor the infliction or threatening of violence, you were fully aware of the presence of the weapons. You were a fully active participant in the totality of the activity of the group.

46. In the result, I am satisfied that you are not only equally legally responsible for each of these offences as your co-offenders, but your moral culpability is only very slightly less than your co-offenders.

47. You were arrested in relation to these offences on either 9 or 10 February 2023 (there is a difference in dates between the updated Crown sentence summary and [52] of the agreed facts).

48. I shall now turn to the criminal misconduct of 6 June 2023 captured by …8778/sequence 2.

49. As at 6 June 2023, you were an inmate at the Parklea Correctional Centre. The inmate in the immediately adjoining cell was Mr Shields. You were in segregation as a result of your then membership, as at 24 April 2023, of the Finks OMCG (see Exhibit E, page 18).

50. At the back of each cell was a caged area which looked out onto an open area.

51. At 10:00am on 6 June 2023, you and Mr Shields were in your respective cells. At this time, another inmate provided you with a plastic bag filled with hot water. The bag had been passed to you under the door of your cell. The temperature of the water was approximately 80 degrees.

52. Upon receiving that bag, you took it to a basin, punctured the bottom of the bag, and put the contents in a cup. You then immediately walked to the rear of the caged area at the back of your cell.

53. At around the same time, Mr Shields heard his name called out by a sweeper with whom Mr Shields had had some recent disagreements. Those disagreements resulted in that sweeper making threats towards Mr Shields, who retaliated by making racist comments regarding the sweeper’s religion.

54. Having heard his name called, and assuming the sweeper wanted to speak to him, Mr Shields moved towards the left side of the rear of his cell.

55. As he did so, you reached through the bars of the rear of your caged area and threw the cup of steaming hot water into the face of Mr Shields. The incident was captured on CCTV, and the moment that you threw the hot water into Mr Shields’ face is clearly captured in the still photograph at [6] of the agreed facts.

56. Having thrown the hot water into Mr Shields’ face, you asked him: “Have you learnt your lesson?” to which Mr Shields replied “Yes”.

57. As the agreed facts were drafted, the only rational inference that can be drawn from [1] to [7] is that there was a direct causal connection between the events set out in those paragraphs.

58. You participated in an electronically recorded interview concerning this incident on 8 January 2024, i.e., 6 months later. In it you gave various and inconsistent explanations for your conduct – none of which attracts the application of the concept of provocation which your counsel relied on in his submissions.

59. For the avoidance of doubt, by having regard to:

(a) the manner in which [1] to [7] of the agreed facts were drafted; (b) the contents of [15] and [16] of that document; (c) the absence of any sworn evidence from you; (d) your criminal history, which includes numerous offences of dishonesty; and (e) your misleading and untruthful statements to the authors of the sentencing assessment report and the psychologist’s report as to your reluctance at being involved in the criminal misconduct at the premises at 45A Tallawong Avenue, Blacktown on 2 April 2022,

I am not satisfied, on the balance of probabilities, that you acted as you did on 6 June 2023 as a result of any provocation by Mr Shields to you.

60. Mr Shields sustained burns to the top of his left ear, the right side of his face, his left collarbone and his left forearm. He was treated in prison by a nurse. There is no evidence he was admitted to hospital or seen or treated by a doctor. This, however, does not diminish the seriousness of his injuries.

61. At a later time, Dr De Torres, a plastic and reconstructive surgeon, reviewed Mr Shields’ medical records and photographs of his injuries. From that review, Dr De Torres concluded that Mr Shields suffered the following:

“i. Deep dermal burns to the neck (noted by medical staff to be approximately 10cm by 10cm);

ii. Associated superficial burns at the anterior edge of his trapezium;

iii. A combination of deep dermal and superficial burns to the left forearm (noted by medical staff to be 5cm by 5cm).”

62. It is necessary for the Court to make a finding of the objective seriousness of each of the five principal offences for an offence of its kind.

63. In relation to …4237 sequences 6, 2 and 3, by having regard to the number of offenders and the number and type of weapons, each offence is meaningfully above the mid-range but not into the upper range.

64. Sequence 4 is a mid-range offence.

65. Sequences 2 and 3 are additionally aggravated because they occurred in the home of the relevant or respective victim and because of the use or threat of violence.

66. By having regard to the facts of sequence 5, it will result in only a slight increase in the sentence for sequence 6.

67. Insofar as the objective seriousness of …8778, sequence 2 is concerned, it is meaningfully above the mid-range of objective seriousness.

68. Two of the victims of your offending on 2 April 2022 have provided written victim impact statements: Ms Provis-Jacinto and Mr Chauhan.

69. Ms Provis-Jacinto was only 21 at the time of what you have referred to as a “home invasion”. It is clear from Ms Provis-Jacinto’s victim impact statement that she has been very severely psychologically damaged by the events which gave rise to sequence 3, damage which I am satisfied, beyond reasonable doubt, is likely to be meaningfully long-term.

70. Mr Chauhan’s statement is more succinct but, nevertheless, it is clear to me (and I am satisfied beyond reasonable doubt) that he also has sustained significant psychological damage, but possibly not as long-term or profound as Ms Provis-Jacinto.

71. As I have already mentioned, you did not give sworn oral evidence in the sentencing proceedings. Your subjective circumstances were placed before the Court through the following documents:

(a) a sentencing assessment report dated 4 September 2024; (b) a psychological report prepared by Ms De Santa Brigida dated 27 September 2024; (c) a letter from you purporting to apologise for the offending conduct; (d) another letter from you addressing conditions in custody; and (e) a letter from a firm of solicitors which is acting for you in relation to a claim for damages which you are pursuing as a result of sexual abuse which you received whilst in detention at the Keelong Juvenile Justice Centre.

72. I have already commented on some aspects of the sentencing assessment report and the psychologist’s report.

73. Bearing in mind that you have the onus of establishing facts in mitigation of your offending on the balance of probabilities, I am, by reference to those documents, satisfied to that standard of the following facts.

74. At the time of the offences committed at 45A Tallawong Avenue, Blacktown on 2 April 2022, you were 32 years old. At the time of the offence in the Parklea Correctional Facility on 6 June 2023, you were 33 years old.

75. You were one of seven children born to your parents.

76. You had a difficult time as a child as a result of physical violence inflicted on you by both of your parents.

77. Your education was marked by learning problems and inattention and, ultimately, you were expelled from high school before completing Year 10.

78. There are inconsistent histories in the sentencing assessment report and the psychologist’s report as to your employment history – for example, the sentencing assessment report records that you had a lengthy employment history as a boiler maker, having commenced such employment when you were 15 years old; whereas the psychologist’s report noted that, after leaving school, you had been mostly unemployed, and that you had only been employed as a boiler maker for 10 to 12 months.

79. You commenced using cannabis when you were 12 years of age; you started consuming alcohol when you were about 13 years of age; you commenced using cocaine in your 20s; and, in more recent years, you have used methylamphetamine. You entered Odyssey House on two separate occasions when you were 19 years of age, but you did not complete either program nor have you had any other rehabilitation programs.

80. You were diagnosed by the psychologist as suffering from PTSD against a background of complex trauma, as well as intermittent explosive disorder and stimulant use disorder. However, I am not satisfied, on the balance of probabilities, that these disorders were in any way causative of your criminal misconduct on either of the occasions with which I am concerned today.

81. With this unfortunate background, you have a long criminal history as an adult, a history which includes numerous offences of violence. You also have a criminal history as a juvenile - the only immediate relevance of that being that, whilst in juvenile detention, you reportedly were sexually assaulted by "a correctional officer" on several occasions.

82. Because of your dysfunctional upbringing as a child (invoking Bugmy considerations) and your complex psychological issues (invoking De La Rosa considerations), the sentencing principle of general deterrence is somewhat reduced, but it remains of significance. However, the sentencing principle of specific deterrence is fully engaged, as are the other sentencing considerations of the protection of the community and the need to encourage your rehabilitation.

83. Insofar as your prospects for rehabilitation are concerned, an important factor in assessing such prospects is whether you are genuinely remorseful for your offending conduct. Not least because you did not give sworn evidence in the sentencing proceedings, and because of the problems I have identified with the histories you gave to the authors of the sentencing assessment report and the psychological report seeking to distance your involvement in the offending in April 2022, I am not satisfied, on the balance of probabilities, that you are genuinely remorseful.

84. In the result, my assessment of your prospects of rehabilitation are that they are guarded.

85. As I indicated at the commencement of these reasons, parity is an important sentencing consideration.

86. The Crown addressed the issue of parity at [21] to [27] of its written submissions dated 2 October 2023 (sic) and developed those submissions orally on 8 October 2024 (T11:50 to 18:47). Your counsel addressed the issue of parity at [37] to [39] of his written submissions dated 3 October 2024 and developed those submissions orally on 10 December 2024 (T32:36 to 35:45).

87. I have already discussed your role compared with that of your three other co-offenders. Of those other three, the offender whose sentence (for parity purposes) deserves most attention is that of Mr Hall. You and Mr Hall are of similar age. Mr Hall has a different, but not necessarily more significant, serious criminal history than you. Mr Hall was on conditional liberty at the time of the offending; you were not.

88. I accept the submission made on your behalf that Mr Hall was “an enthusiastic participant in a serious incident of violence.” However, I reject the submission that you “…played a subordinate role throughout the offences.” In my opinion, whilst you performed a different role to that of Mr Hall, yours was still an enthusiastic and fully engaged one.

89. No sentence for any of the offences other than a period of full-time imprisonment is appropriate, and the contrary was not submitted on your behalf.

90. I intend imposing an aggregate sentence in relation to …4237 sequences 6, 2, 3 and 4.

91. It is necessary for me to state the indicative sentences underpinning that aggregate sentence.

92. You pleaded guilty at an early opportunity in relation to all offences and you will, therefore, receive a discount of 25 per cent in relation to the sentence for each offence. Insofar as the aggregate sentence is concerned, the discount will be applied to the indicative sentences underpinning the ultimate aggregate sentence.

93. For completeness, I note that, unassisted by the remarks on sentence for your co-offenders, by having regard to my findings as to the objective seriousness of the offending, and giving full weight to your subjective case, I would have stated indicative sentences and ultimately imposed an aggregate sentence meaningfully more significant than what is to follow.

94. In relation to sequence 6, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years 10 months. After the discount, the indicative sentence is imprisonment for 3 years 7 months; and the indicative non-parole period is 2 years 3 months.

95. In relation to sequence 2, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 3 years 4 months. After the discount, the indicative sentence is imprisonment for 2 years 6 months.

96. In relation to sequence 3, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 3 years 4 months. After the discount, the indicative sentence is imprisonment for 2 years 6 months.

97. In relation to sequence 4, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 1 year 2 months. After the discount, the indicative is imprisonment for 10 months.

98. In the result, for these four principal offences, and taking into account the matter on the Form 1 in relation to sequence 6, I sentence you to an aggregate term of imprisonment of 5 years 8 months.

99. The start date of the sentence will be the date of your arrest, 10 February 2023.

100. With some hesitation, I shall make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. I do so only on the basis of hardship in custody. In this context, you have largely and will likely serve most of your period of imprisonment in segregation because of issues arising out of your past association with an outlaw motorcycle gang.

101. I, therefore, fix a non-parole period of 3 years 8 months to date from 10 February 2023 and which will expire on 9 October 2026.

102. I fix a balance of 2 years to date from 10 October 2026 and which will expire on 9 October 2028.

103. In relation to …8778 sequence 2, except for the discount of 25 per cent, I would have sentenced you to a term of imprisonment of 4 years. After the discount, the term of imprisonment is 3 years.

104. No persuasive consideration (including totality which has been taken into account) having been advanced, I decline to make a direction under s56(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Pursuant to s56 of that Act, the sentence for …8778, sequence 2 will be served totally consecutively with the previously mentioned aggregate sentence.

105. However, I also make a finding of special circumstances in relation to this sentence for the same reason as the preceding one.

106. I, therefore, fix a non-parole period of 1 year 11 months to date from 10 October 2026 and which will expire on 9 September 2028.

107. I fix a balance of 1 year 1 month to date from 10 September 2028 and which will expire on 9 October 2029.

108. I direct that the report of Ms De Santa Brigida dated 27 September 2024 go with the warrant.

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