R v LITTLE

District Court of NSW|2022-03-17|Before: Ms J

Judgment

Regrettably this is the second attempt at delivering these reasons. I was part way through delivering these reasons on 16 June 2022 when Mr Stewart of counsel interrupted and inquired as to whether further material forwarded to chambers on behalf of the offender after the sentence hearing had been received. That material had not come to my attention. It had been received in chambers while I was sitting in Sydney for several weeks in March and April 2022. I am extremely grateful to Mr Stewart for interrupting me and drawing my attention to this issue. I have now considered that material. I have also taken the opportunity to correct a factual matter in the reasons that I partially delivered on 16 June 2022. That issue made no difference to any finding.
There was another issue. I prepared a first draft of these reasons soon after the sentencing hearing while in Sydney. However I was issued with a new computer and the draft was initially "lost" for several weeks in the transfer of contents from old to new computer.
The offender appears for sentence in respect of a multiplicity of offending arising out of two separate episodes, one that occurred on 23 March 2020 and the other on 1 April 2020. The matters on 23 March 2020 were defended and pleas of guilty were entered on the day of trial in respect of the 1 April 2020 matters. The offences that occurred on 23 March 2020 are on what I will refer to as the first indictment and the matters on 1 April 2020 are on which I will refer to as the second indictment.
On 20 September 2021 a jury after trial returned verdicts of guilty to the following (first indictment), that (the offender): Count 1: On 23 March 2020 at Gobbagombalin in the State of New South Wales detained Max Green without his consent and with the intent to obtain an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Max Green; and further Count 3: On 23 March 2020 at Gobbagombalin in the State of New South Wales detained Ryan Greenaway without his consent and with the intent to obtain an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Max Green; and further Count 5: On 23 March 2020 at Gobbagombalin in the State of New South Wales detained Lachlan Christie-Johnson without his consent and with the intent to obtain an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Lachlan Christie-Johnson; and further Count 8: On 23 March 2020 at Gobbgombalin in the State of New South Wales did recklessly wound Alex Farqhar; and further Count 9: On 23 March 2020 at Gobbagombalin in the State of New South Wales detained Samuel Nixon without his consent and with the intent to obtain an advantage, namely psychological gratification, and at the time of the detaining actual bodily harm was occasioned to Samuel Nixon.

Facts

As the matters on the first indictment were defended it will be necessary for me to make findings of fact that are consistent with the jury's verdict. I will need to review the evidence given by the victims at trial. However, in order to make these reasons more readily understandable very briefly the victims were a group of students from Charles Sturt University engaging in a hazing ritual in that they were walking naked back to the University after being dropped off some few kilometres away. The accused came upon them, and in the case of counts 1, 3, 5 and 9 detained them by threatening them with a pistol (or perhaps replica, but that is of no consequence) and struck each of them to the head and in some cases other parts of the body with a piece of wood causing injuries that amounted to wound. In respect of count 8 he struck the victim to the head causing a wound. As Mr Stewart of counsel for the offender submits in his written submissions the verdicts indicate that the jury accepted beyond reasonable doubt the version of the events given by the victims.
On the issue of fact finding in sentence proceedings following a jury trial Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said: "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'" R v Storey is reported at [1998] 1 VR 359.
Max Green, Ryan Greenaway, Lachlan Christie-Johnson, Alex Farquhar and Samuel Nixon were all first year students at Charles Sturt University. The campus, including the student accommodation is in the suburb of Gobbagombalin which to the north-west of the CBD of Wagga Wagga. It was decided that they would participate in what is known as a "Mott Walk". One of the organisers of the Mott Walk was Alexander Nowlan, who at the time was a third year student. Essentially the Mott Walk involved the participants drinking excessive quantities of alcohol and after dark being deposited some few kilometres from the University. Upon being dropped off they were required to surrender their clothes (other than shoes and socks) and also their mobile phones. They then walk back to the university while naked while doing their best not be seen or detected.
Mr Nowlan gave evidence to the effect that he had previously arranged "Mott walks", that the participants would drink beer for approximately two hours between about 8.30pm and 10.30 pm before being taken to the drop off point, which was Beck's Lane about 9 km from the University. The rules included staying on the road but not being seen. The participants were taken to the drop off location in two lots.
The participants in the walk arrived back at the University at about 2am. Ryan Greenaway called Mr Nowlan who attended the location at which the victims were. He noticed that they were extremely "shook up, really worried" and they had blood everywhere.
I will go into some detail of the evidence of each of the victims in the order in which they gave evidence at the trial as to what transpired between being dropped off by Mr Nowlan at Beck's Lane and arriving back at the University.
Although the academic year had commenced, so too had the COVID-19 pandemic. Most of the students were preparing to go home as at the date the walk was undertaken. Max Green had some alcohol on campus and then went to a home in Estella (a suburb neighbouring Gobbagomablin) where he consumed more alcohol. He recalls leaving the house at Estella at about 9pm (p 3/37). He said he was okay, he could speak, he could walk, he was drunk but could still operate (p 3/41). He travelled to the drop off point with Samuel Nixon and Ryan Greenaway. He could see the lights of the university and the city of Wagga Wagga from where he was dropped off.
Max Green gives an account of them beginning the walk. They noticed a spotlight in a paddock. Max Green, Ryan Greenaway, Alex Farquhar and Lachlan Christie-Johnson crossed a bridge. The creek bed was dry. Samuel Nixon and Hamish Spackman went through the gully (p 6/15ff). He observed the spotlight. The group got to a fallen tree where they attempted to hide. Nixon and Spackman were having difficulty getting up the bank.
The group was approached by a man (the offender) and a woman. The offender demanded that the group get off the property. He produced what the victims describe and which on their evidence I am satisfied beyond reasonable doubt was a handgun or perhaps a replica handgun of some description. As the Crown correctly submitted in the Outline of Submissions (MFI 1 on sentence) the weapon was never recovered so it cannot be determined whether it was real or a replica or if real was loaded or operational.
Given the presence of the woman at the scene who was with the offender I will interrupt dealing with the facts at this stage to deal with that issue. It occurred to me in the course of preparation of these reasons that potentially there is an issue, given the Detain for Advantage offences of which the offender was convicted are contrary to s 86(2) of the Crimes Act, which provides: A person is guilty of an offence under this subsection if - (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
Section 86(3), the specially aggravated form of the offence provides: A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) - (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.
Clearly the evidence is that the accused was with a woman at the scene of the offences. However, while present at the scene she took no part at all in any of the offending. The reference to the presence of the woman at the scene is merely part of the factual matrix and I deal with the matter on the basis that the offender was acting alone in the Take and Detain offences and that for the purpose of sentencing he was not in the company of that woman. In any event there is insufficient in the evidence to ground any finding that there was any joint criminal enterprise between them. The presence of the woman at the scene plays no part in the determination of any issue in relation to the matter. I may be being concerned about something that is not an issue, but nevertheless given the provisions of ss 86(2) and 86(3) it occurred to me that potentially there may be an issue so far as Di Simoni v The Queen (1981) 147 CLR 383. I note that neither party have raised this as a possible issue at the sentence hearing.
In the course of preparation of these reasons I had my Associate contact the parties on this issue. It was put to the parties that I deal with the matter on the basis as set out in the paragraph immediately above. I understood both parties were of the view that that was an appropriate manner of dealing with the issue.
Returning to the facts of the matter, Max Green said to the offender words to the effect, "You're not going to shoot us. You're not going to shoot six of us here on the side of the road on a public road. That's just not going to happen".
The offender then struck Green in the side of the face with the hand gun. He became a little dazed. He was "pretty sure" he was unconscious for a short time. He was dazed and went to his knees. He stood back up and was hit with a log. The offender was walking around the group holding the hand gun. He saw a number of the others in group also being struck by the offender. Green was struck in the head a number of times and is unable to say which blow to the head resulted in what injury.
According to the Agreed Facts at the trial (Trial exhibit T, which dealt with the injuries sustained by each of the victims) Max Green sustained a 10cm full thickness laceration on the back of his head that required staples to close and a small, full thickness laceration near his left ear that required sutures. He had swelling to the left upper lip. The examining doctor opined that the injuries were consistent with blunt trauma on the left side of his face and back of the head.
However at some point, the offender attempted to ring Spackman's phone, which was back at the University.
The female was telling the offender to calm down and to let the men go. The offender eventually released each of the young men who assisted each other go back to the University. They were taken to the local Base Hospital where they were treated for their injuries.
Ryan Greenaway said he was intoxicated (p 29/14) but he was not overly drunk. He was one of the young men that crossed the bridge. He saw a light after crossing the creek (p 30/24). He became aware of a car coming from behind. He saw Green get hit and then they were ordered onto the ground. The man was threatening them with the gun so they complied. They were accused of trespassing. Ryan Greenway gives an account of the man picking up a log from the ground and hitting the people of his group across the head. He was asked questions by the man (offender) would answer and then get struck across the head (see generally p 32). He put his arm over his head to prevent further harm to his head but was hit on the arm.
The treating doctor found that Ryan Greenaway sustained a 5cm full thickness laceration on the top of his head that was glued. He had a swollen right hand and swollen left forearm. The doctor opined that the injuries were consistent with having been assaulted with a solid object over the head.
Lachlan Christie-Johnson said he could feel the alcohol that he had consumed but he was still feeling "pretty contained and controlled" at the time they started the Mott Walk. They got to the bridge and he became aware of a spotlight being directed towards them (p 51) He was aware of Hamish Spackman and Samuel Nixon going under the bridge. The offender and the woman approached them and the offender accused them of trespassing (p 52). He was aware of the pistol (p 52/40) so they dropped to their knees and held up their hands. They were threatened with being shot in the kneecaps. Greenaway also heard that threat. Christie-Johnson was struck over the head with a piece of wood, blacked out and was struck again at which time he had the side of his face on the ground (p 53/32). The second blow broke the log (p 53/19). He felt blood running down his head. Lachlan Christie-Johnson in his evidence generally at p 53 describes clearly the systematic manner in which the offender went from one victim to the next hitting each of them over the head. When Samuel Nixon emerged the offender pointed the pistol at him and forced him down with the others.
According to trial exhibit T Lachlan Christie-Johnson sustained a 4 cm full thickness laceration on his scalp that required staples to close. The examining doctor opined that the injury was consistent with having been hit on the back of the head with a hard object with substantial force.
Alex Farquhar was the next of the group to give evidence. He consumed a considerable quantity of alcohol before embarking upon the Mott Walk but had vomited and was "starting to feel a little better". He conceded under cross-examination (p 72/6) that he was very intoxicated. He crossed the bridge and also became aware of the light (p 64). He recalled being hit on the head and thought that he was unconscious for a "little bit" (p 65/18). Alex Farquhar gave no evidence of being threatened or detained and accordingly there was a verdict of not guilty by direction given in respect of the charge of Aggravated Detain for Advantage.
Alex Farquhar sustained a 6cm full thickness laceration on the back of his head and a 1.5 cm laceration on the back of his head, both injuries requiring staples to close. The examining doctor was of the opinion that the injuries were consistent with having been assaulted with a solid object over the head. He also had bruising to his right thigh.
Samuel Nixon had about seven or eight beers (p 75/4) making him probably the least intoxicated of the young men that participated in the Mott Walk. He did not feel "that affected" (p 75/31). He became aware of the vehicle in which the offender and the female had been travelling. He became aware of the light (see generally p 76). He heard the others being struck (p 77/40-44). The offender called out for the others (Nixon and Spackman) to come out and they did so. Nixon was directed to get on to his knees. He saw what looked like a pistol. He was struck with a wooden log or a branch (p 78). Nixon negotiated with the offender so far as Spackman was concerned (p 79/24ff). It was Nixon that gave the offender and the woman the number of Spackman's phone to call.
Samuel Nixon sustained a full thickness laceration to the back of his head that required staples to close. The examining doctor was of the opinion that the injuries were consistent with having had a blunt trauma on the back of his head.
Hamish Spackman was very drunk (p 92/17). He can remember seeing the lights and then running away from the area around the bridge. There is no count on the indictment that relates to Hamish Spackman.
The detention ended when the offender directed the young men to leave the area after the failed phone calls.
For the purpose of proceeding to sentence I am satisfied beyond reasonable doubt that the offender and the female came upon the group of young men from the University that were undertaking the Mott Walk. Those young men were intoxicated by alcohol to varying but generally to a significant extent with the exception of Samuel Nixon. I am satisfied to the criminal standard that none of the young men were trespassing, nor for that matter had done anything in the way of approaching the house of the female in whose company the offender was. I am satisfied beyond reasonable doubt that the offender was armed with a pistol or a replica pistol that appeared real enough to the young men threatened.
I am satisfied beyond reasonable doubt that the offender detained those young men with the exception of Alex Farquhar, while they were naked for a period of 35 minutes. I am also satisfied that the difference in the accounts between Alex Farquhar and the others is entirely attributable to the level of Alex Farquhar's intoxication. During that detention the young men were obliged to be on their knees. There was a threat to kneecap them. The offender struck each of the young men in some cases a number of times causing the injuries that I have detailed when briefly dealing with the accounts of the young men. There is substance in the submissions (second set of written submissions, MFI 2) that the young men were struck one after the other systematically. I am satisfied beyond reasonable doubt that the young men were struck systematically as the Crown submits. The force of one blow to Christie-Johnson head was sufficient to break the piece of wood. He was face down on the ground and I note that in oral submissions Mr Stewart for the offender agreed that 35 minutes was the time of the detention.
I am satisfied that Max Green made what the Crown submits is a "courageous effort" to rationalise with the offender saying that he was not going to shoot them on the side of the road. I am satisfied that Green was struck a number of times and that his injuries are more serious although not substantially so than the other victims.
There are no victim impact statements from any of the victims. The ordeal must have been terrifying for each of them. I must deal with the matter on the basis that the victims have recovered from the physical injuries and that there are no residual issues or sequelae as I am not informed otherwise.

Assessment - First Indictment - (Old Narrandera Road matters)

It appears from the decision of R v Speechley [2012] NSWCCA 130 at [105]-[110] per Johnson J (McClellan CJ at CL, Hammerschlag J (as his Honour then was) agreeing) that the factors that inform the objective seriousness of an offence aggravated detain for advantage are the length of time of the detention, the extent to which fear or terror was occasioned, the manner in which the victim was treated, the extent of the actual bodily harm and the motive for the detention.
It is agreed that the detention was for a period of 35 minutes. Taken in isolation that period of time is not a particularly significant. However, the other circumstances including it was at night in a relatively isolated area and the victims were naked and intoxicated are matters to be taken into account. Two different types of weapons were used, i.e. the handgun (or replica) to threaten the victims and the piece of wood used to hit the victims over the head. The factor of statutory aggravation in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 is enlivened. In this regard see also the decision of Nowak v R [2008] NSWCCA 89 at [15]-[18]. Despite the courage of the victims particularly Max Green and Sam Nixon it must have been terrifying for the victims. There was no planning and the events of the offending were spontaneous upon the offender seeing the naked victims. Given the presence of the handgun (or replica) and the various threats the level of terror was considerable.
As the Crown submits in the second set of written submissions (MFI 2 on sentence) the victims posed no threat to the offender or the female he was with. All victims were compliant, which given the circumstances is hardly surprising. The victims were struck one after the other systematically.
The Crown submits that the matter involving Green is above mid-range (MFI 2 at para 17) and the remaining matters are mid-range (MFI 2, para 18).
Mr Stewart in his written submissions (last dot point paragraph 8) submitted that the offender may well have regarded the group of naked men behaving in a shocking and provocative manner by reason of them being a group of naked men near isolated properties at night. Mr Stewart further submits that in the circumstances the offender could legitimately have initially treated their explanation for being there naked with some scepticism. The conduct of the victims was unusual. However, they were on a road and really nowhere near any residence. It was never put to any of the victims that they were trespassing. While their conduct was unusual it does not amount to provocation.
Given the various facts and circumstances I am of the opinion that all of the matters contrary to s 86(2) of the Crimes Act are within the mid-range but the matter involving Max Green is obviously more serious than the others. The matter involving Mr Nixon is slightly less serious because of the shorter period of detention.
It is also necessary to make an assessment of the Reckless Wounding offence relating to Mr Farquhar noting that that matter carries a standard non-parole period. Wounding offences are generally result offences however the Court made clear in the matter of R v McCullough (2009) 194 A Crim R 429 that the circumstances of the offence are also relevant. The circumstances include that he was intoxicated, naked on the side of the road at night. The injuries included two wounds both of which required staples to close. One wound was 6 cm the other 1.5 cm. The Reckless Wounding matter is slightly below mid-range.
There is one further matter relating to the Wounding offence relating to Mr Farquhar that also arose in the course of the preparation of these reasons. The Crown pleads on the Indictment that the Reckless Wounding charge was contrary to s 35(2) of the Crimes Act. An offence contrary to s 35(2) of the Crimes Act carries a maximum penalty of 10 years with a standard non-parole period of 4 years whereas an offence contrary to s 35(4) carries a maximum penalty of 7 years with a standard non-parole period of 3 years. Section 35(2) provides for the offence of the infliction of grievous bodily harm. I note that the jury was directed in terms that they were dealing with charges of Reckless Wounding, contrary to s 35(4) of the Crimes Act. No issue was taken with this at trial.
This matter was raised with the parties during the preparation of these remarks. The reckless wounding offences were pleaded on the indictment as "…did recklessly wound (nominated complainant)". The section number is a particular only and is not an essential part of the averment on the indictment. I proceed on the basis that the alternative charges and in particular count 8, i.e. the count relating to Alex Farquhar, was contrary to s 35(4) with the maximum penalty of 7 years with the standard non-parole period of 3 years. I understand this accords with the attitude of the parties.

Facts - Second indictment

The facts in respect of the offences on the second indictment are before the Court by way of a set of agreed facts.
Although not specifically stated in the facts, the victim Jamsai Kelly was staying at the Quest Apartments in Wagga Wagga as at 1 April 2020 with her companion Chris Fisher, who was in Wagga Wagga working. The offender was staying in a neighbouring unit with his companion Bianca Byrne (also known as Bianca Bodel). Mr Fisher and Ms Kelly were staying in unit 1A and the accused and Ms Byrne in Unit 1B. There is a small foyer outside the entry doors to rooms 1A and 1B with the door to unit 1A on the left and the door to unit 1B on the right. There is an internal door, which if left unlocked permits access between the units.
Mr Fisher awoke shortly before 5.30am and readied himself for work with Ms Kelly still in the bed. As he left Mr Fisher closed the bedroom door and exited the unit. Meanwhile, police had received information that the offender was staying in Unit 1B.
At about 8am on 1 April 2020 police went to unit 1B of the complex, knocked on the door and announced themselves. A female from inside the unit was heard to say, "hang on, just let me get some clothes on". Ms Byrne partially opened the door and as she did so one of the police officers heard another door from within the unit closed. Police inquired of Byrne as to whether she had seen the offender to which she replied that she was there by herself. Police saw items of male clothing on the bed. Byrne was escorted from the room and due to information received police commenced negotiations with the offender to exit the room with his hands up.
Specifically relating to count 1 on the second indictment, while Byrne was speaking to police the offender opened the internal door that gave access to the unit in which Ms Kelly was located and was in bed. The offender opened the door to the bedroom. Ms Kelly, thinking it was Mr Fisher, called out, "Baby is that you" to which there was no answer. Ms Kelly remained on the bed using her phone.
At 8.39am police attempted to access Unit 1A using a generic swipe pass. Police were able to unlock the door but as the security chain was in place it would not fully open. At 8.51 am police heard a male voice they recognised as that of the offender from within the unit say, "Put the guns away and I will come out". Police were not aware that Kelly was also in the room.
The offender said, "I'm not coming out if you have your fucking guns out…I am not fucking armed I don't have anything". Police continued to negotiate with the offender.
The intimidation, which is the serious indictable offence is constituted by the presence and conduct of the offender within the premises causing Ms Kelly to fear harm.
Going to count 2, Ms Kelly heard the offender yelling at police (at 8.51am), "Put your guns away" and realised that the person inside the unit was not Fisher. She sent a text message to Mr Fisher asking where he was and he replied that he was still at work. Kelly told him that she thought a crazy person was in the unit and that she was very scared and "he says they have guns".
Ms Kelly got out of bed and walked out of the bedroom into the hallway. She observed the offender standing in the kitchen holding a bottle of water in one hand and a mobile phone in the other. On seeing Ms Kelly the offender told her to get back to the room. When she heard the offender talking about a gun she was fearful and returned to the bedroom.
At 9.05am Fisher received a telephone call from Ms Kelly in which she told him she was scared. Fisher attempted to assure her that it was a repairman. Ms Kelly replied that she did not think it was a repairman as he was talking about a gun. Mr Fisher heard a female voice yelling a command and other voices yelling and decided to return to the Quest apartments.
The offender entered the bedroom after Ms Kelly and hung up the phone from talking to Mr Fisher. He said to Ms Kelly, "You need to go out or something?" She replied, Yes, I am very scared". Police heard Ms Kelly's voice from the room and asked the offender whether there was another person with him. He replied, "Yeah a couple of girls and they are scared too".
At 9.10 am police asked the offender if he would let the female out of the room and he replied, "Yeah I will, she's scared". Police spoke to Kelly who told them that it was only her and the offender in the unit. At 9.14am the door to Unit 1A opened and Ms Kelly appeared with her hands raised in the air. Not surprisingly she was visibly distressed. Police escorted her away from the premises. She told police, "I was so scared, I heard him talking about a gun".
The Tactical Operations Region Support Team was deployed who continued to negotiate with the offender who exited the unit at 9.40am. He was cautioned and taken to the Wagga Wagga police station where he participated in a record of interview.
The two units were declared a crime scene and searched. A search of Unit 1A revealed a paring knife of approximately 20 cm in length with a black handle and small resealable plastic bag containing 1.18 grams of methyl amphetamine. These matters relate to matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986.

Assessment - second indictment

Going initially to the charge of Break and Enter and Commit Serious Indictable offence the premises were residential, it was around 9 am, Ms Kelly was there by herself and intimidation carrying a maximum penalty of five years imprisonment is at the cusp of being a serious indictable offence. Noting the nature of the intimidation the matter is towards the lower end of the scale of seriousness but not at the bottom of the range.
So far as the Detain for Advantage charge is concerned the offender was in the unit for about an hour, but the detention was for a much lesser period than that. There was no planning to the offending. There was no actual violence used towards Ms Kelly and, when analysed, the facts really do not indicate that there was a threat of actual violence to Ms Kelly. However, Ms Kelly could not leave the premises while the offender negotiated with the police. She heard the mention of guns. It would have been a frightening experience for her. The matter is well below mid-range.

Criminal History

The offender was born on 16 April 1992 and accordingly was 28 at the time of offending and just 30 at the time of sentencing. He has a number of convictions recorded against him. He has been convicted of Assault Police, Resist Police, Common Assault, Assault Occasioning Actual Bodily Harm, Stalk/Intimidate, Use Carriage Service to Harass/Menace/Offend, Possess or Use Prohibited Weapon, Drive in a Manner Dangerous in a Police Pursuit and Contravene Domestic Violence Order. He has received sentences of imprisonment in respect of some of those offences. The offender has a criminal history that does not entitle him to any particular leniency.
At the time of the commission of the offences for which he appears for sentence the offender was subject to bail and accordingly, the factor of statutory aggravation provided for by s 21A(2)(j) - committing further offences while subject to conditional liberty - is made out.

Subjective Case

No oral evidence was called from or on behalf of the offender. However, there was a volume of written material tendered namely two reports from John Machlin, Clinical Psychologist one dated 21 April 2021 and the other dated 7 December 2021, a reference from Wilfred Williams and a reference from Mr James Ingram of the Bidya Marra Consultancy.
I will firstly go to Mr Machlin's reports. The offender has indigenous ancestry on both sides and is the second eldest of eight children. He grew up in a household where he was exposed to domestic violence and substance abuse in his formative years on a regular basis. His father was a violent man who was in and out of gaol and is currently serving a sentence at Goulburn "Supermax" for the murder of a prison officer. He has particularly vivid memories of being locked in a cupboard as punishment as a child.
Clearly, the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a considerable extent reducing the moral culpability of the offender to that extent. In this regard I note in particular that part of Mr Machlin's later report at p 2, "He described a love-hate relationship with his excessively violent father who was in and out of prison…As the eldest male he reportedly received a large share of his father's abuses and would try to protect his mother and siblings…Other recollections involved being locked in a cupboard for hours at a time".
The offender received a limited formal education going to part way through Year 9. He had issues with literacy at school and was in special classes. The report of 21 April 2021 sets out that the offender was diagnosed with Attention Deficit Hyperactivity Disorder as a child as was medicated for that issue. He has had a sporadic work history.
The offender was introduced to cannabis when he was 10 or 11 years of age which (see p 3 report) apparently made the time go faster when he was locked in the cupboard. His cannabis use escalated and by the time he was 15 or 16 was using heroin and methamphetamine. The report goes on to say that he now places his hope in long acting injectable buprenorphine while in custody. It seems that the offender has commenced this treatment.
According to the report of 21 April 2021 (p 3) the offender was under the influence of heroin and methamphetamine at the time of the offences to which the second indictment relates.
So far as the offences to which the first indictment relates, the report of Mr Machlin of 7 December 2021 sets out (p 4) that the offender "although restricted by caution on his part yielded a number of insights which I would altogether describe as a partial admission". The offender had also used methamphetamine and heroin on the day of the offending on 23 March 2020. The offender perceived that the naked young men may have presented as a threat to his female companion. I note in this regard that there was not the slightest suggestion at the trial that they had been trespassing or that they presented any threat to that female. The offender denied holding a gun at the side of the road. That is inconsistent with the verdicts of guilty in the matter. He accepted that their nakedness made them more vulnerable. The second report (December 2021) sets out that the offender apologised for the harm that befell the victims without saying precisely what part he takes responsibility for and, "he appeared to include the incident in what he generally referred to as 'my own stupidity' which has caused him to end up in prison again.
So far as the offences at the Quest Apartments are concerned the offender explained to Mr Machlin (see p 4 first report of 21.4.21) that the police had guns trained on him and he feared being shot. He maintained to Mr Machlin that he has been mistreated many times in police custody.

Additional material received after sentence hearing

I will now deal with the additional material received after the sentence hearing. The material is a handwritten letter from the offender and a letter from Jamali Hanman, who is a fellow inmate. I will deal initially with the letter from the offender.
The offender expresses his remorse in a fashion that is more fulsome than in the usual "sorry letter". He expresses his remorse for what he did to the victims and the wider community. He accepts that his substance abuse has been a significant factor so far as his offending is concerned. He is beginning to do something about his substance abuse issues and has enrolled in a number of courses, in respect of which until recently the opportunities to participate has been limited because of the Covid-19 pandemic. He accepts that his offending has also had a significant and adverse impact on his own family. He wishes to become a better person.
Further to that the letter from Jamali Hanman offers some support that the offender is making a genuine effort. The offender and Jamali Hanman have commenced a programme with Corrective Services at the Parklea Correctional Centre called "Yarn with a Brother". It is a programme designed to assist younger indigenous inmates. Mr Hanman speaks positively of the impact the offender has had with aboriginal inmates.
The expressions of remorse are untested. However, in the circumstances I am prepared to accept on balance that the offender is remorseful. The letters also go some way to indicate that there are some very positive signs so far as the long-term rehabilitation of the offender is concerned.
Initially, I was not prepared to make a finding on balance that the offender was remorseful and it was at this stage that Mr Stewart kindly interrupted me to raise this additional material.
The case for the accused at trial was that he was not responsible for any of the injuries and further that they were injured before he came across the victims. It seems that the offender may have developed or is developing at least some insight in that at p 4 of his later report Mr Machlin says, "…My conversation with Mr Little although restricted by caution on his part yielded a number of insights which I would altogether describe as an admission…When asked about the physical assaults upon the victims he said, 'I was part of it'. Without specifying precisely what actions he took or whether being 'part of it' meant he attributed blame to another person…He denied holding a gun…He accepted that their nakedness made them more vulnerable…"
A little later on p 4 of that same report the author reports that the offender apologised for the harm that befell the victims without saying precisely what part he takes responsibility for, and he appeared to include the incident in what he generally referred to as 'my own stupidity' which has caused him to end up in prison again.
There is nothing unusual or exceptional about offenders expressing remorse and a sentencing court finding on balance that the offender is remorseful after trial where the conduct was denied. I am prepared to accept on balance that the insight referred to within the reports has developed into an expression of remorse. The offender in his letter says that he has had time to think about his actions. It may also be that the offender is abstinent from illicit substances.
The offender has completed EQUIPS addiction and aggression courses in custody as well as the Getting Smart recovering programme. He is also on the buprenorphine programme which the offender "views favourably as a means of staying off drugs". I note at p 6 of his later report Mr Machlin describes the buprenorphine programme as a positive development. These are positive signs but given the history of the offender the completion of those courses does not signal or justify a finding that there are good prospects of rehabilitation. Much will depend upon the manner in which the offender engages with the relevant authorities upon his eventual release.
At p 5 of the latter report Mr Machlin diagnoses Attention Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder and Substance Use Disorder. At p 6 of his report Mr Machlin says that there is a "reasonable likelihood that his judgement was impaired firstly by the effects of methamphetamine and secondly by his own background of violence and trauma that might have exaggerated his perception of threat on his arrival at the unusual scene".
Clearly enough there is a connection between what are now commonly referred to shortly as the "Bugmy factors" and the offending. However, I do not understand Mr Machlin to opine that there is a connection between the mental health diagnoses and the offending. Be that as it may these mental health issues are an important aspect of the offender's subjective case.
Mr Machlin's report of 21 April 2021 appears to raise essentially the same issues as the later report. I note that detail is given in the April 2021 report that the offender's father is at "Supermax" at Goulburn for the killing of a prison officer.
I have read and taken into account the references tendered on behalf of the offender.

Covid-19 Pandemic

The author of the report also raises the issue of the Covid-19 pandemic. The offender also refers to the effects of the pandemic in his handwritten letter. It is well known that the pandemic has significantly affected all persons in custody by severely limiting if not eliminating any face to face visits and multiple and lengthy lockdowns where prisoners are restricted to their cells for extended periods of time. I note and have regard to the various authorities on this issue such as Valentine v R [2020] NSWCCA 116; Mbele v R [2021] NSWCCA 182 and Toller v R [2021] NSWCCA 204. I take into account the issues associated with the pandemic. In particular so far as this offender is concerned I accept that given what happened to him as a child with being locked in a cupboard a lockdown would aggravate upsetting memories from childhood. This goes to the issue of custody being more onerous for the offender.

Totality

Totality is a substantial issue to be considered in this sentencing exercise. The offender is being sentenced for a total of seven offences all of which carry substantial maximum penalties. Additionally, the offender has served sentences since he was apprehended in April 2020. The commencement date of the sentence was a live issue at the sentence hearing.
The offender has been in continual custody since 1 April 2020. However, on 5 June 2020 the offender was sentenced to a total sentence of 18 months (non-parole period 10 months) for Intimidate Police, which sentence was confirmed on appeal to the District Court. That sentence ran from 1 April 2020 to 30 September 2021, with the non-parole period expiring on 31 January 2021.
Further, on 17 November 2020 the offender was sentenced to an aggregate sentence of 26 months that commenced on 1 June 2020 and which will expire on 31 July 2022. The non-parole period of 14 months expired on 31 July 2021. I have a memory (but no note) of indicating at the sentence hearing that I proposing to date the sentence from March 2021. Mr Stewart submitted that I would allow a greater back date than that. I have a note to the effect that in oral submissions the Crown put that the sentences should not be wholly concurrent. That is consistent with paragraph 46 of the written submissions in MFI 2.
Clearly, this is a matter where the imposition of an aggregate sentence would be appropriate. If separate sentences were imposed there would need to be some meaningful partial accumulation in respect of the five "Old Narrandera Road" matters to recognise the five different victims even though the offences were committed at the same time. Further, there would need to be meaningful accumulation between those matters and the Quest apartment matters again to acknowledge the different criminality and the different victims. However there would be substantial concurrency in respect of the two counts relating to the events at the Quest apartments.
In his written submissions Mr Stewart referred to the decision of R v MMK (2006) 164 A Crim R 481; [2006] NSWCCA 272 where the Court (Spigelman CJ, Whealy J (as his Honour then was) and Howie J in a joint judgment said at [11]-[13]: "One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) '... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ...' [13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality."
In all of the circumstances noting the matters of principle to which I have just referred I propose to date the sentence I impose in this matter from 1 November 2020 to make due allowance for totality. Given the issues of totality the finding of special circumstances will be greater than what would otherwise be appropriate in all of the circumstances.

General Remarks

In passing sentence I will need to pay proper regard and give proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided for, the criminality involved, the need for general and specific deterrence clearly no other sentence than full time imprisonment is appropriate. No contrary submission is made by counsel for the offender.
Neither party referred me to what might be called comparable cases. Given the nature of the offending I consulted the sentencing statistics kept by the Judicial Commission in respect of offences contrary to s 86(2) of the Crimes Act. Given that the maximum penalty for the offence is 20 years imprisonment the statistics appear to demonstrate that sentences imposed are very moderate.
In this matter I have found the offences contrary to s 86(2) to be within the mid-range. One of the principal factors in that determination was that the detention lasted for a period of 35 minutes. I observe again however, that that 35 minute period would have been terrifying for the young men involved.
I accept that the indicative sentences are towards the upper end of the range indicated by the JIRS statistics. However in this case the criminality was such that those sentences are appropriate. On the issue of statistics, I note in particular the decision of Brown v R [2015] NSWCCA 215 where Garling J observed at [81]: "In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad."
Although the decision in Brown is concerned with different offending it occurs to me that what was said by Garling J has a broader application.
However, despite the criminal history of the offender I am of the opinion that there should be a finding of special circumstances. There is the issue of partial accumulation of sentences and the need for a considerable period of supervision if the offender is to remain abstinent of illicit substances. There will also be need for assistance into reintegration into the community after what will be a substantial custodial sentence.
The matters attaching to the s 166 Certificate should be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
I have already indicated that this is an appropriate matter for the imposition of an aggregate sentence. It will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are as follows. In respect of the first (trial) indictment, i.e. Old Narrandera Road matters: Counts 3, 5 a total sentence of 5 years; In respect of count 9 a total sentence of 4 years 9 months; and In respect of count 1 a total sentence of 5 years 3 months In respect of count 8 a non-parole period of 1 year 10 months with a balance of term of 11 months making a total sentence of 2 years 9 months. In respect of the second indictment in respect of both counts a total sentence of 2 years 6 months.

Orders

The matters attaching to the Certificates pursuant to s 166 of the Criminal Procedure Act, 1986 are dealt with by means of s 10A of the Crimes Sentencing Procedure Act by the recording of a conviction and the imposition of no further penalty.
In respect of counts 1, 3, 5, 8 and 9 on the first indictment, i.e. the indictment in respect of which the jury returned verdicts of guilty to those counts, the offender is convicted.
In respect of count 1 and 2 in respect of the second indictment the offender is convicted.
The offender is sentenced to an aggregate sentence of 9 years 9 months with a non-parole period of 6 years 4 months.
The non-parole period will commence on 1 November 2020 and will expire on 28 February 2027.
The balance of term on parole of 3 years 5 months will commence on 1 March 2027 and will expire on 31 July 2030.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
The non-parole period is approximately 65% of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons.
The total effective sentence the offender is serving dated from 1 April 2020 to 31 July 2030. The period in actual custody assuming that the offender is released at the expiration of the non-parole period I have imposed today dates from 1 April 2020 to 28 February 2027, which is a period of 6 years 10 months. The period in actual custody, again assuming the offender is released at the expiration of the non-parole period I have imposed today is approximately 66% of the total effective sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2022

At a glance

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Judgment (13 paragraphs)

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Cases Cited (17)