R v Mark Chambers; R v Raynor Earnshaw

Victim Impact

1. It is hoped that they listened and took in what was said by Mr Fitzpatrick when he read his Victim Impact Statement today. This was not a trivial incident. It has had a lasting impact on its victim. The impact and the scars of what occurred are not just physical but psychological. It will be some time before Mr Fitzpatrick is back at the stage he was before the crime. As he said, "before he feels like his old self again."
2. While my remarks will focus upon the circumstances of each offender and my attempt to structure the sentences in a way that helps and encourages them to lead a normal and productive community life in the future, I must start with and ultimately return to what was done to Mr Fitzpatrick.

Agreed Facts

1. There are agreed facts before the Court. The reasons and motivations for the crime committed on 26 April 2018 are at best obscure. A significant difference as between each of the offenders for sentence is that in Earnshaw's case it is acknowledged by the prosecution that they cannot prove beyond reasonable doubt that he participated to anything like the extent of Chambers, but he was there when the crime commenced.
2. Mr Fitzpatrick knew Ms Taylor, who is to be sentenced in the New Year. Arrangements were made for Mr Fitzpatrick to be picked up by Taylor in Avondale Road, Avondale. A white Holden Commodore belonging to Chambers' mother but driven by Taylor turned up at the appointed time; about 8.49pm. Driving the vehicle was another woman. Taylor was in the front seat.
3. The women picked up Mr Fitzpatrick. The Commodore drove only a short distance towards the suburb of Huntley, when Taylor said, "Stop, pick him up." Beside the road was Chambers.
4. Chambers had grown up with Mr Fitzpatrick and had known him for most of their lives. He went over to the car and spoke directly to Mr Fitzpatrick: "Why did you send people around to my house?" Mr Fitzpatrick said, "I don't know what you're talking about." Chambers then punched Mr Fitzpatrick to his right cheek and pulled him from the car yelling, "You're getting in the boot." A scuffle occurred. At this point Earnshaw, who did not know and is not known to Mr Fitzpatrick, assisted Chambers in the struggle. I can only presume that Earnshaw was in the street with Chambers when the vehicle pulled over.
5. Chambers then placed Mr Fitzpatrick in a chokehold. Mr Fitzpatrick began to lose consciousness. Chambers and Earnshaw then put Mr Fitzpatrick in the boot of the Commodore. The boot was then locked. At this point Earnshaw's role in the offence ended.
6. Entirely understandably Mr Fitzpatrick feared for his safety. He could hear Chambers yelling at him, "You're dead, wait till we stop. I'm going to chop you." Mr Fitzpatrick kicked at the inside of the boot. He was trying to get out; he was yelling. The car drove around for a period before someone in the car opened the middle parcel shelf dividing the rear seats from the boot. One of the offenders, it is not known who, put a weapon that resembled a machete through the shelf into the boot of the car. That weapon made contact with Mr Fitzpatrick. His fingers were cut as he attempted to defend himself.
7. The car continued to drive around with Mr Fitzpatrick locked in the boot. It stopped. Mr Fitzpatrick attempted to climb through the parcel shelf into the back seat. He was screaming for help. He saw that Chambers was in the driver's seat, Taylor was on his left in the rear and the other woman had moved into the rear seat. She and Taylor then assaulted Mr Fitzpatrick. They were encouraged by Chambers.
8. The car was still moving. Mr Fitzpatrick managed to open the rear passenger door and jumped from the moving car. He fell onto the road. Someone in the street called Triple‑0. This call was logged at 9.10pm. Nearby residents rendered first aid as Mr Fitzpatrick was bleeding from his head and hands. He had lost his shirt and jumper during the melee. The Commodore drove off but then returned several times while Mr Fitzpatrick was being attended to, before eventually leaving.
9. Mr Fitzpatrick was taken to Wollongong Hospital. He was treated for lacerations to the fingers on his right hand; steristrips were applied. He was also treated for grazes and bruising to his head, face, chest and ribs. Luckily he escaped serious injury but what was inflicted on him, it is accepted, caused him actual bodily harm.
10. The agreed facts then indicate that some calls took place between Chambers and others. A text was sent by Earnshaw to Chambers at 4.24am on 27 April saying, "Get rid of the wheels, they know it was a white Commy."
11. In the early hours of 27 April 2018, the Commodore was set on fire in a park in Berkeley. That park is within 200 metres of where Chambers was living at the time. The car belonged to Chambers' mother. It was, I understand, totally destroyed.

Objective seriousness

1. There was some debate during submissions about whether the offence was planned. There is only one inference I could draw beyond reasonable doubt; what occurred was not a coincidence. Taylor picked up Mr Fitzpatrick driving Chambers' mother's car. Only a short distance down the road was Chambers. Earnshaw was nearby. Taylor stopped where Chambers was. Chambers had a perceived, if groundless, grievance against Mr Fitzpatrick. Earnshaw joined in the crime. These facts indicate a degree of planning, but it is clear nothing was well thought out and no one offender considered the potential consequences either to their victim or themselves.
2. Courts are enjoined by the legislature and the appellate courts to consider the principle of general deterrence in matters such as this. That is by the severity of the sentences imposed others in the community will learn the consequences of crimes such as this. Crimes which carry a maximum penalty of 25 years almost inevitably end up with the participants being sent to gaol if caught, but general deterrence principles did not stop this offence occurring as I suspect no one thought at all about the consequences either to their victim or themselves. While planning is an aggravating factor, this level of planning here was at the very bottom of the range.
3. A serious assault by Chambers started the incident and it continued in the presence of Earnshaw. Choking is a particularly dangerous thing to do to any other human. Earnshaw participated in assisting Chambers in getting the victim into the boot of the car. The later use of the weapon could not be attributed to Mr Earnshaw. His further participation by suggesting the burning of the car while relevant is not a significant factor.
4. The further detention of Mr Fitzpatrick continued for approximately half an hour. That detention and whatever was intended to be done was foiled by his escape. There was no suggestion that Chambers and the others allowed this escape to happen. Mr Fitzpatrick's desperate measures prevented a more serious level of offending occurring but in order to do so he had to jump from a moving vehicle.
5. While there is, as it is clear, room for distinguishing between each of the offenders when it came to their role on any measure so far as each offender is concerned, each participated in a serious offence not just against the victim but against the community. The offending calls for a measure of retributive punishment.

Mark Chambers

1. Mark Chambers was born in January 1991. He has appeared before the Local Courts for many matters associated with driving, drugs and damage to property. He spent periods in custody between 2000 and 2017. All material before me indicates that that period in custody did more harm than good.
2. The offence was committed while he was subject to a s 12 suspended sentence, a matter that aggravates the sentence I must impose. The bond associated with that suspended sentence was breached but not by the commission of this offence. An Intensive Corrections Order was then imposed upon Chambers. He was arrested for this matter on 6 February 2019.
3. It would appear that a combination of that Intensive Corrections Order and more importantly the influence of his now partner had caused him to reflect and at least start a process towards rehabilitation. The Intensive Corrections Order was breached because its conditions could not be met while he was in custody.
4. As I have taken into account the commission of this offence while subject to conditional liberty as a factor aggravating the sentence, not the objective seriousness of the offence, to avoid double counting I will commence Chambers' sentence from 6 February 2019.
5. There is material before me that indicates that he was seeking help from the Illawarra Drug and Alcohol Service and that in the past he had sought psychological assistance through his GP, and a psychologist known to the Court, for anger, depression and dealing with matters arising from his childhood.
6. Chambers did not give evidence but he wrote in his own hand a letter to the Court making promises to change and deal with his offending behaviour. He asked for the leniency of the Court. He explained how at the relevant time due to his associates and drug use he was in a bad place mentally. He wrote of his desire to continue with the relationship he is presently in and to restore himself to his son's life and be a good father to his son. They are important sentiments because all of the material before me indicates that his childhood was disrupted and blighted by violence. At an early age he was conditioned to accept violence, and illicit drug use. He had fewer of the advantages that children in our community deserve and expect.
7. Chambers wrote a letter to Mr Fitzpatrick, saying he regretted the hurt and trauma that he had caused. He spoke of his "stupidity one dum night out with people." It may have been stupid but it was also a seriously criminal offence. He expressed what one would expect from any rational human; a deep apology for what he had done. Mr Fitzpatrick could not be expected to accept that apology. It is sometimes said that when apologies such as this are written out judges should be sceptical about accepting material that was not on oath. With great respect to those who hold that opinion if crocodile tears are being shed it makes little difference if what is said is on oath or written in a letter. Whether genuine or not, they are appropriate sentiments. The real test will be whether Chambers lives up to what he said, not what he said. That is for the future. I will take into account the expressions of remorse and regret when I come to synthesise all relevant matters.
8. I am assisted, as always, by a comprehensive report from Ms Godbee, psychologist: exhibit Chambers 1 Tab 1. Again, what is reported is not supported by evidence on oath, but any reading of the report would show that it is a professional, dispassionate and objective assessment. It does not parrot matters going to the circumstances of the offence. It sets out a history that is uncontroversial. It puts forward matters which, in a warts and all way, assess the prospects of the offender and allow me to have some understanding of the man for sentence.
9. The report sets out a family history that was blighted by not just violence but attitudes to violence, which have taken hold in Chambers. It sets out a history of learning difficulties and pushing back against bullying. Although he has worked in the community, Chambers' life has never been stable. Since his release from custody in 2017, after the long sentence, he has struggled to find work. It is a sad but tragic fact that a gaol record makes securing employment very difficult.
10. Chambers has been an abuser of a number of illicit drugs since a young teenager. He has succumbed at various times in his life to the use of methylamphetamine or ice. He says, and I am prepared to accept, that he was using that drug at the time of the commission of the offence. Drug use does not, and cannot, mitigate an offence but it is, particularly where drug use is taken up early, before a person is old enough to form and make rational choices, a matter that I can take into account when I come to synthesise all relevant matters, particularly the disposition of the matter.
11. It is clear from all the material before me that Chambers has some insight into the fact that he has a number of significant problems to deal with; anger, drug use and what Ms Godbee described as "distorted perception that violence is normal."
12. Ms Godbee puts forward recommendations, which, if followed through, might assist Chambers to deal with the damage done by the childhood characterised by exposure to violence and physical abuse and ongoing trauma. While in custody and in the community it is critical that he abstain from the use and abuse of drugs and alcohol. It is critical that, if at all possible, he engage in the Violent Offenders Treatment Program (VOTP).
13. Not for the first time I have received a recommendation that an offender for sentence in this Court would benefit from the Compulsory Drug Treatment Program. Not for the first time I say that the residents of the Illawarra are discriminated against because that program is not available if crimes are committed in this area. Sadly, the most appropriate place for Chambers to serve his sentence is not available to him.
14. On release Chambers will need to engage in drug and alcohol treatment, anger management, EQUIPS programs and individual psychological treatment. He will need to be supervised and assisted for as long as practicable. Those matters, together with the empirical evidence that the longer people are supervised and the closer they are supervised on parole, the less likely they are of reoffending, provide strong reasons for a finding of special circumstances.
15. There is a lot of work that needs to be done by Chambers. He still blames others for his predicament. It is heartening to see that, in his letter and in his comments to Ms Godbee, he is at least beginning to realise that the solution to the problem starts with him, not others. It is again sad and tragic that he will have to spend longer in custody with people who are expressing similar attitudes to violence and are similarly self‑centred and think not of others. If he had thought of himself, of his son and of his victim before committing the offences he would not be in this position. He needs to learn and understand how to stop and think before he acts; otherwise he could spend the rest of his life in custody.

Raynor Earnshaw

1. Raynor Earnshaw also has a background that indicates that he did not have the advantages most in the community expect. Like Chambers, those disadvantages as a child meant that his capacity to form moral judgments was impeded. As the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 that can extend throughout a person's life.
2. It is also clear however that he does have some capacity to lead a normal life in the community. Despite many problems as a young man he was able to stay away from the courts until 2015 and while since that date he has rarely been in the community for any length of time, nothing in his offending record is as serious or as violent as the offence he participated in this night.
3. Although he did not give evidence on oath, he has told Ms Van De Velde psychologist, how much drugs he had taken during the relevant period. When I look at his history it does not appear to have been an exaggeration. He was significantly affected by a number of substances on this evening. Again, that does not mitigate or reduce the seriousness of what he did. To the contrary while his background can help explain why he was using a multitude of drugs, the fact that he was not in control of himself and was significantly affected by illicit drugs, made him a much more dangerous person this night.
4. Earnshaw chose to participate in bundling a stranger into the boot of a car knowing that that person would be taken away and detained. He was liable for the injuries inflicted upon Mr Fitzpatrick until that point and he participated in the activity that led to some of the actual bodily harm being inflicted on Mr Fitzpatrick.
5. He too has a criminal record and while, like Chambers, it does not put him into the category of offenders referred to in Veen v The Queen (No 2) (1988) 164 CLR 465, he does not get the leniency often given to first offenders. To the contrary, the period from 2015 to the time he came into custody on 14 April 2019, reflect a man who had given up on himself and given up on the community.
6. His record indicates that he has been given opportunity after opportunity to deal with his significant drug problem; a problem that was exacerbated by a mental illness, schizophrenia, and attention deficit hyperactivity disorder, and what are described as forms of personality disorder. At the moment he is able to express regret for what he did but I could detect no particular remorse for his victim in the material before me. Entirely understandable, I do not think he knew very much about what he was doing or who he was harming this night.
7. Earnshaw had only just been released from gaol. He was engaged in the Drug Court program, a matter which involves both leniency and strictures on a person's behaviour and is a form of conditional liberty. He abused the trust shown in him by the Drug Court. The Drug Court program returned him to custody but not because of this offence.
8. His custodial history is complicated by breaches of suspended sentences and breaches of parole, which appear to be unconnected with this matter. He went into custody for his arrest for this matter on 14 April 2019. His parole expired on 12 October 2019. A Local Court sentence was also made concurrent with that parole period. I could date the sentence from 12 October 2019, but the custody since the 14 April 2019 and the fact that he has effectively been in custody since 2015 means that to simply add one sentence upon the other could lead to an overall period in gaol disproportionate to his criminality this day. I intend to backdate the sentence by some months to give effect to what is commonly called the principle of totality. His sentence will commence on 14 August 2019.
9. Returning briefly to Ms Van De Velde's comprehensive report: exhibit Earnshaw 1. I will not repeat and set out his problems as a child but it is clear that he, after school he was able to work and have a family life. It is also clear that problems in his life, which he was ill equipped to deal with, led to his rapid deterioration once he stared using illicit drugs. The material indicates that he has been offered and engaged for short periods in programs provided by Corrective Services and the Drug Court program but he has as yet benefited little from them. He has seen and been assessed by a psychologist on prior occasions. Ms Van De Velde noted a degree of openness and honesty when it came to acknowledging his drug use and offending behaviour, but there are also indications that his mental illness has with it other mental and psychological conditions, including elements of paranoia and elevated symptoms associated with schizophrenia.
10. The use and abuse of illicit drugs in conjunction with those problems increases his risk of reoffending. The assessment Ms Van De Velde makes is that he is at "moderate risk for committing general offences relative to other general offenders." I suppose it depends on whether you look at the last five years or you look at his life history, but over the last five years his progress has been a downward spiral. He has spent too much of his young life in custody.
11. Ms Van De Velde puts forward a plan, which might manage and decrease his risk of recidivism. It includes motivational interviewing, monitoring risk for self‑harm and suicidality, drug and alcohol treatment, psychiatric assessment and targeted pharmacological treatment if appropriate particularly for his ADHD, cognitive behaviour therapy to increase his understanding of his mental illness problems and increase his skills and strategy for dealing with them and if in a custodial situation, engaging in programs such as Real Understanding of Self Help (RUSH). It is notorious that if he is to receive psychological treatment for his drug abuse, antisocial behaviour, impulsivity and symptoms of mental illness that that treatment could better be provided to him in the community.

Submissions

1. In oral and written submissions Mr Booker, for Earnshaw, urged that given that history, and given the more limited role in the offence, a sentence of less than two years could be imposed, taking into account the early plea of guilty and that it would be in the community interest that sentence be served by intensive correction in the community. Both Mr Booker and the Crown took me to authorities in the Court of Criminal Appeal that dealt with Intensive Corrections Orders. I referred by Mr Booker to authorities relating to s 86 of the Crimes Act where suspended sentences had been considered by the Court of Criminal Appeal as unwarranted.
2. It is submitted that Earnshaw is at a significant point in his life where he could continue the downward spiral evident in his history since 2015 or stop, and, with assistance, reflect and rebuild, so as to lead the sort of life he was leading prior to 2015.
3. I do note that an Intensive Corrections Order is meant to be a real punishment and that it can afford a more structured and targeted intervention in the community than simple release to parole with conditions. I am also aware that the community's safety is an important consideration but so too is the need for community protection and while a community can be protected by someone being removed from the community, Earnshaw must be returned to it and if he is more prone to the commission of offences, particularly violent offences, after release, the community will suffer.
4. In response Madam Crown says a close examination of the reports before the Court indicate that he has not shown the insight necessary, yet at least, or the motivation to help himself; this means that he could actively engage in an Intensive Corrections Order. In any event she submits that the objective seriousness of the offence require a full time custodial sentence.
5. Mr Fraser, for Earnshaw, like Mr Booker, provided the Court with extensive written submissions. They address matters of objective seriousness and the relevant authorities. He submits that the facts are silent on the question of planning and I have indicated my findings in relation to that point. He said that while Chamber's prospects are guarded particularly given his long standing drug issues and the long standing problems with violence that go back to a lack of moral guidance when he was very young, this means he needs significant intervention both in custody and in the community. He says that Chambers is currently motivated and has the support of his partner and his mother who have stood by them despite everything. He notes the positive aspects in Ms Godbee's report. He asks the Court to synthesise all these matters and impose a sentence that properly reflects the objective circumstances of the offences but also recognises that the sooner Chambers is released to the community the sooner he can start building a life with the supports that are available to him which might enable him to be the father to his son that his father was not to him.
6. Ms Brown, solicitor for the Director of Public Prosecutions, also provided written submissions. I trust these submissions have done justice to them.

Synthesis

1. A judge has to synthesise many important factors. Ultimately the sentence must reflect both the purposes of sentencing and those purposes point in different directions. There must be appropriate punishment. In matters such as this there is a need for a degree of retribution. Sometimes the terms retribution and general deterrence are used interchangeably. There has been considerable criticism of the principle of general deterrence, particularly for crimes like these which were not thought out. In such cases as the High Court said in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, heavy sentences are likely to be of little utility in reducing the general incidence of crimes.
2. The risk of heavy gaol sentences did not prevent this crime and the subsequent harm to Mr Fitzpatrick. No offender here thought about to the consequences for themselves, let alone the consequences for their victim. While a Court cannot mitigate a sentence because of drug use it is abundantly clear to me that no one was thinking clearly, making the risk to Mr Fitzpatrick perhaps even greater.
3. Mitigating factors must be given appropriate weight but they cannot be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence and the offender's role in it. Like offenders should be treated alike. Equal justice requires appropriate differentiation where differentiation is called for and equal penalties where no such differentiation can be made. There are reasons here, particularly in the different role played by the offenders, for significant difference in the penalty; that is only just.
4. Returning to Munda, the High Court made it clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence sentences. Sentencing courts have an obligation to vindicate the dignity of the victims of crimes of violence and this was a serious crime of violence. Sentencing courts also have an obligation to express the community's disapproval of that offending, In cases such as this where the motivation is obscure but goes back to some past grievance, courts have to recognise that one of the historical functions of the criminal law has been to discourage people and their friends and associates from resorting to self‑help. All such self-help does is harm people, including the offenders themselves, and lead to the escalation of violence in the community. As, ultimately, sentences are about community protection, courts must by the severity of sentences imposed do what they can to prevent further crime and attempt to afford some protection to the vulnerable.

Raynor Earnshaw

1. I have given anxious consideration to the submissions made by Mr Booker. The sentence I impose will be less than two years. I am aware that that sentence could be served by intensive correction in the community but I am not at all confident that Earnshaw is at this stage ready or willingly to engage in such a program. The sentence will be structured to give him an opportunity to engage in programs on release to parole. A finding of special circumstances is justified because of those matters and because of the accumulation of the sentences, but there still must be a period in custody that reflects the objective seriousness of what he did and the other purposes of sentencing as they too apply to the non‑parole period.
2. In relation to the matter before the Court, you are convicted. Had it not been for your plea of guilty there would have been a sentence of two years and six months imprisonment imposed. I have taken the view that EAPG matters do not require a judge to parse a discount on sentence into weeks and days. Until I am told I am wrong in that I have approximated the 25% reduction as best I can the sentence.
3. The term of the sentence is one year and ten months. The sentence will commence on 14 August 2019. There will be a non‑parole period of one year and one month making you eligible for release to parole on 13 September 2020. The balance of the term of nine months will expire on 14 June 2021.

Mark Chambers

1. There are two matters for sentence. There will be a finding of special circumstances.
2. In relation to both matters I note your plea of guilty and your convictions. There will be an aggregate sentence. The indicated sentences, take into account the utilitarian value of the plea of guilty. I have taken care not to erode that benefit by the process of accumulation. The destruction of his mother's car was a serious offence. Its destruction in a public place to cover up his commission of the crime means that a custodial sentence is required. The fact the car was linked to and involved in the commission of the offence means that there should be only a modest accumulation. I indicate a sentence of five months imprisonment for the damage property offence.
3. Taking into account your plea of guilty for the kidnapping s 86(3) offence, I indicate, a sentence of three years and nine months imprisonment.
4. The aggregate sentence will be one for four years. There will be a non‑parole period of two years and six months. That sentence will date from 6 February 2019. You will be eligible for consideration for release to parole on 5 August 2021. The balance of the sentence of one year and six months will expire on 5 February 2023.

Amendments 07 August 2020 - Reference to a forthcoming matter removed. 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: 07 August 2020