Solicitors:
Morrisons Law (for the offender)
File Number(s): 2018/00211212
[2]
Introduction
On 29 May 2018, a number of people were staying at the Curtis home in Figtree. At about 1am, a few of the residents made a short trip to buy cigarettes before returning to the home. At about 1.30am, four of the adults were sitting in the lounge room chatting and playing games on a PlayStation. Two adults and three children were asleep in their beds.
Without notice or warning two men entered the lounge room. They were wearing dark clothes and each had a mask or cloth over his face. The larger man was armed with a meat cleaver; the smaller man with a large kitchen knife. The residents were frightened - some screamed. They demanded the men get out. The smaller man said, "No one is leaving. Go and sit down. Listen to what I've got to say."
Elwyn Curtis did not sit down. He moved towards the men. The men moved towards him. Mr Curtis recalls being stabbed. And then the three men fought. A witness described the scene; "…mayhem….there was furniture everywhere and blood." Mr Curtis tried to escape. He was chased and stabbed from behind. As Mr Curtis was trying to escape, another resident threw a coffee table at the armed men. Mr Curtis was able to get out of the house but collapsed screaming. He then ran to a neighbour's home. When he got there he broke through their glass door due to his fear of his attackers.
The two men left the house but during the struggle with Mr Curtis their disguises had come loose. Three of the residents recognised the larger man; the one with the meat cleaver, as Steven Lawrence. Mr Curtis did not know him. No one, apparently, recognised the smaller man.
Mr Curtis was taken by ambulance to Wollongong Hospital where he was treated for; a deep laceration to his right shoulder, which had exposed and damaged the muscle, a laceration below his left shoulder blade that extended into the subcutaneous tissue and a laceration to his left forearm, extending into the muscle area. He required surgery.
Lawrence was arrested after he attended Wollongong Police Station on 9 July 2018. He initially denied being one of the attackers and said he could not have done what was alleged as he was recovering from a broken collar bone. He has been in custody since that date.
When the matter was in the Local Court, he said, as is his right, that he was not guilty. He was arraigned in this Court on a charge of specially aggravated break enter: s 112(3) Crimes Act 1900. The matter was listed for trial on 8 July 2019. At the call over a week before the trial date, it was indicated that the trial would not proceed.
On 5 July 2019, leave was given to the Director of Public Prosecutions to present a fresh indictment. Lawrence then accepted his guilt to a charge that he entered a dwelling house and committed the serious offence of intimidation while in company and there he intentionally wounded Mr Curtis: s 111(3) Crimes Act 1900, maximum penalty 20 years imprisonment. It does not matter, which of the two men stabbed Curtis both are equally liable, both were acting together using weapons against Curtis.
The plea of guilty came late. This is a matter to which the new EAPG system applies: Section 25D(3)(c) Crimes (Sentencing Procedure) Act 1999. As the plea was entered after committal and after 14 days prior to trial, while it is technically "a new count", the facts that establish the elements of the new count remain substantially the same as those contained in the brief and relate to the original indictment: s 25D(4)(a) Crimes (Sentencing Procedure) Act. It is not in dispute that prescribed sentencing discount of 5% should apply.
Judges have been enjoined for some time prior to the introduction of the EAPG system not to impose with sentences that are broken down into, days or weeks. When I do my discount calculations, I will follow the general common law procedure of not being strictly arithmetical. I have rounded down the result to be as close to the 5% as the legislature could reasonably expect. The guilty plea while late had some benefits. A number of witnesses were subpoenaed to give evidence for the trial. They were able to be called off and did not have to come into court and tell their version of events. The jury panel was able to be cancelled.
The plea also indicates some degree of acceptance of responsibility, although it came very late and in the face of what appeared to be a strong prosecution case. By his late plea Lawrence did himself a disservice. Had he accepted responsibility while in the Local Court, a reduction of 25% of the otherwise appropriate sentence could have been afforded him. He did, however, get the benefit of having a fresh count put before the Court; that benefit being that no standard non‑parole period applies to this offence.
The offender was on conditional bail when he committed this offence. Although he has been in custody since 9 July 2008 he served an eight month non‑parole period for sentences imposed in the Local Court from 22 August 2018 to 22 April 2019. The commission of offences, while subject to bail, breaches an implicit condition of bail that he be of good behaviour. It is an aggravating factor that must be taken into account when I formulate the sentence that must be imposed today.
I must also consider when this sentence should commence, noting three important considerations:
1. The period 9 July to 22 August 2018 was spent in custody solely referable to this matter;
2. The principal of totality should apply because there must be some accumulation of sentences.
3. There should be some independent punishment for the matters that were dealt with in the Local Court, the facts of some of which are before me.
[3]
Objective circumstances
The fact that two men were involved in the initial intimidation and the wounding of Mr Curtis and the fact that a home was entered are elements of that make this a specially aggravated offence. They are reasons why there is a higher maximum penalty. Care must be taken not to take into account as matters that aggravate the sentence, those which are already essential elements of the offence. Care must also be taken to focus on what was done.
Here, what occurred was that four people were confronted and confounded by the entry of two armed and disguised men into the home they occupied. It was a family home; children and adults were asleep in their rooms. A number of people were directly confronted and intimidated. Others heard the confrontation and would, I can readily presume, have been disturbed. The confrontation involved a fight inside the home. Large bladed weapons were used. The weapons had been taken to the home, indicating some degree of planning. It remains a mystery to me what exactly was planned or what was meant by the smaller second offender saying, "Listen to what I've got to say".
Mr Curtis was wounded. He received three significant lacerations, each of which required surgery. The absence of a Victim Impact Statement does not give rise to an inference that the offence had little or no impact on him; s 29(3) Crimes (Sentencing Procedure) Act 1999. To the contrary, it would be expected that, apart from the physical harm, the immediate fear, if not terror, felt and the later physical scarring, an incident like this would leave psychological scars as well. That Curtis bravely, if fool heartedly, confronted the men who had invaded his sister's home, does not mitigate the offence. Such a reaction must have been expected.
The offence, given the entry into the home at night, the weapons used and that they were used with intent, the nature of the weapons, the extent of the wounding, requires serious and condign punishment.
I must pay careful attention to the maximum penalty here, 20 years, not just because Parliament has legislated for it. It provides a sentencing measure to be balanced with all other relevant factors. It invites a comparison between this case and other cases. But, that said, it is not appropriate here to look, first, to the maximum penalty and then to proceed by way of proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].
This is not the first time Lawrence has appeared in court for a crime of violence. He was born in 1984. He first appeared before the Children's Court in 1997. He was subject to a number of control orders as a teenager. He was once charged with riding a bicycle on the footpath. In 2004, he received a suspended sentence for a 2002 malicious wounding and an assault occasioning actual bodily harm offence. He breached that bond in 2006 and was imprisoned. He was then 19 years old.
In 2007, he committed an aggravated enter dwelling offence and went to gaol again. He has convictions for assault, carrying a knife and resist arrest. In 2015 he was gaoled in Queensland for assault occasioning actual bodily harm while armed and for burglary and commit indictable offences.
I must take this antecedent criminal history into account. It requires a more severe penalty than that which would be imposed on someone without such history. It requires the court to focus on matters such as retribution, deterrence and the protection of the community. While the weight given to his antecedent history can never result in a sentence which is disproportionate to the gravity of the offence for sentence, the history remains relevant. It shows that this offence is not an uncharacteristic aberration. It demonstrates the offender's continuing disobedience towards the law: Veen v R (No 2) (1988) 164 CLR 465, at 477.
I have the benefit of a carefully composed and heartfelt affidavit from his present partner, Maree Hamilton, dated 11 July 2019. I have the benefit of a letter from Brian Williams, who employed Steven Lawrence when he was free in the community.
After being released from custody in 2015, for the first time, Lawrence had some stability in his life. He met Ms Hamilton, who works for a government agency in a responsible position. They have a child, who is now two. Ms Hamilton has been able to provide him with stability. They had planned for the future. He had been able to obtain and keep employment and is reported to be a strong and enthusiastic worker.
The specific reasons why Lawrence, with all that to look forward to, ended up committing this crime and the matters that were before the Local Court remains a mystery. Ms Hamilton's affidavit sets out the offender's background, which can properly be described as one of deprivation. She was not required for cross‑examination.
It is far from unusual for a person with a family history like that of the offender to be is ill‑equipped for what we blandly call "normal community life." As a consequence they remain, because of their long period of living an antisocial existence and spending time in juvenile institutions and gaols, susceptible to falling back in with those they knew and met from their previous lives or met in gaol. It means their capacity for sound and moral judgments remain compromised. It means their capacity to resist the temptation to engage in crime, again, is compromised.
Without embarrassing the family who have come to support him in court, the offender; he had few advantages as a child, as is reflected in his criminal record and his history before me. His mother had, and still has, her own longstanding problems. Lawrence has a number of siblings but limited contact with them. He was grown up by his grandmother, a respected but now deceased, member of the local Aboriginal community. She did it tough, as I well know. She had a number of children and grandchildren to look after. Her death, I am prepared to accept, placed a heavy toll on him.
His present partner was not able to deal with his change in behaviour but she remains ready for him, I presume on his promise to be of good behaviour, when he was released from custody. It appears that he was doing well and it appears that, so far as can be discerned, things are going relatively well in custody, although I note that his gaol record is not blemish free. Strong prosocial models in the community can assist if he takes up the offer that remains to have and keep a family and keep up work. This remains a strong incentive to him to turn his back on the history of criminal activity that has blighted his life, with the possible exception of a few months.
The material before me does tend to establish, as I well know from having practised in the area, that he was raised in a community surrounded by alcohol abuse and violence. While not all Aboriginal offenders come from such background, if they do it can mitigate their sentence, because their moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marred. The effect of such deprivation does not diminish over time and should be given full weight in determining the sentence in every case: Bugmy v The Queen (2013) 249 CLR 571. But giving this factor full weight does not suggest that it always has the same mitigatory relevance. The Court must recognise there are countervailing factors and they include protection of the community.
Protection of the community can be achieved by removing an offender from the community as must occur here. The protection of the community is also enhanced if a person, after serving the minimum term that all the purpose of the sentencing require, is given support and assistance. Here, although he may not deserve it, Lawrence has a promise of assistance from his family, Ms Hamilton, in particular. He has an incentive to work so he can be returned to the community and care for his son. However, his son needed him when he committed this offence. He failed to think about the consequences for his family and his son and partner, in particular, when he committed this offence.
Mitigating factors can only go so far. As the High Court made clear in Munda v Western Australia (2013) 249 CLR 600, sentencing courts have an obligation to vindicate the dignity of victims of crime, particularly crimes of violence. Courts have a duty to express the community's disapproval of that offending and attempt to protect the vulnerable against repetition of the offending. One historic function of the criminal law that the Court noted has been to discourage victims and their friends and family from resorting to self‑help because, if they do, there can be an escalation of violent vendettas between members of the community.
The submissions from Ms Steedman, Solicitor Advocate for the Director of Public Prosecutions and Mr Khan, counsel for the offender, are fair and reasoned. They recognise the seriousness of what was done. They have assisted me.
There are grounds here for a finding of special circumstances. They include: the need to take into account the accumulation of this sentence after a period calculated as being necessary to punish him for the Local Court matters; the need to attempt to break what had been, for since he was very young, a cycle of crime, custody, release, crime; the need to give some incentive to the offender to look forward to release on parole and to attempt to reduce the impact of prison on him; the need not to break the links, which I hope are not tenuous, to prosocial members of the community and the need that for as much time as possible he can be supported in the community. I repeat, the minimum time he has to spend in custody has to take into account the many purposes of sentencing and it must be the minimum time he must be punished for what he did by way of custodial portion of the sentence.
He has been before the courts many times. He has been in prison many times. He has been given and breached supervised orders many times. Harsh punishments have not deterred him. To the contrary, it appears he has learned many negative lessons from imprisonment. He may have learnt more negative ones than positive ones. Except for a very short period, he has never lived a normal community life. He had no grounding, until he took up with Ms Hamilton, in normal community life. He has few skills to equip him for life, other than crime, but he has shown some capacity to work in the community.
He must be removed from the community. He must be removed from it as an appropriate punishment for what he did but he must be returned to the community. He must be supervised and monitored for as long as possible, another reason for the special circumstances to be found.
It is in the community interest that he engages in and learns about normal community life. He is to be encouraged, if at all possible, to engage in indigenous programs while in custody, particularly those in relation to violence and, perhaps, the Ngara Nura program, because his history of violence towards others in the community means that he will be a danger unless he gets help in addressing that particular problem.
[4]
Orders
In relation to the matter before the Court you are convicted. I have determined that the sentence should commence on 8 November 2018. Had it not been for your plea of guilty, a sentence of six years and six months would have been imposed. I have rounded down slightly to get at these figures.
There will be a non‑parole period in this matter of three years and eight months commencing 8 November 2018. You will be eligible for consideration for release to parole on 7 July 2022. There will be a parole period of two years and six months from that date, a total sentence of six years and two months commencing on 8 July 2022. Total sentence expiring 7 December 2025.
[5]
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Decision last updated: 15 November 2019