HIS HONOUR: Mr Nichols if you could stand up please I will tell you what orders I propose to make. Taking into account the discounts that I propose to give you for your pleas of guilty and the co-operation which I have calculated as a combined discount of 45% I propose to sentence you to 23 months imprisonment. That's one year 11 months imprisonment, the starting point of the sentence taking into account the objective facts and the subjective matters or the mitigating factors and the like before the discount was three and a half years, three years six months. I propose not to at this stage impose a term of full-time custody. I propose to have you assessed for your suitability for an intensive correction order but I just want to make it abundantly clear to you that if you're unsuitable, or ineligible, I do not propose to suspend the term of imprisonment. So you will be sentenced to a term of imprisonment in relation to this matter of the full-time custody as the Crown has submitted and I don't want to misrepresent the Crown's submission was within the appropriate sentencing discretion of the court. I use those expressions in the context of the High Court judgment of Barbaro. You can take a seat.
The prisoner appeared before me in the February sittings of the Wagga Wagga District Court in relation to an offence to which he pleaded guilty at what was, for want of a better description, a "super" callover of matters listed for disposal within the District Court sittings within the Riverina district, that is at Wagga Wagga, Griffith and Albury. Apparently the judge conducting that callover had a large number of matters, some matters he disposed of, some matters were fixed to be dealt with at subsequent sittings of the Wagga Wagga District Court or elsewhere.
I say from the outset it has been a very difficult sentencing exercise for reasons I'll dilate upon in a moment. When the matter last left me at Wagga I had evidence from the prisoner, his mother and a family friend. I have got no transcript of what occurred at Wagga, the fault may well be with me rather than the transcription service, although I do have extensive notes. When the matter came on before me, if my memory serves me correctly, heard in the period before 10 o'clock when a judge is sitting in regional sittings conduct sentence and appeal matters before attending to trial obligations, learned counsel for the prisoner, Mr Walsh, led the evidence to which I referred. But then at some point he indicated that there was a need for some assessment to be made of the co-operation the prisoner would wish to extend to the prosecuting authority. Thus the matter was adjourned till today's date to enable the relevant inquiries to be undertaken and those inquiries have been undertaken.
R v Nichols [2016] NSWDC 91 | Case summary | Zoe
The consequence is that this morning, before again I started the further hearing of another criminal trial, I heard, or received evidence in relation to these additional matters and then helpful submissions of course from Mr Walsh and from the learned Crown Prosecutor. The learned Crown Prosecutor's oral submissions supplemented written submissions prepared by the solicitor who had the carriage of the matter at Wagga. It must be fairly said that there was some departure from the written submissions in the oral submissions of the learned Crown which I will deal with very briefly.
It turned out that amongst the material that was tendered this morning there was reference to other material including extensive interviews conducted with the prisoner, which were not annexed to the statement that was tendered as part of the material relating to his undertaking to co-operative with the prosecution. I obviously needed to see that material. My time has been extremely limited and it is unfortunate that I have not had more time to reflect upon the material that has been prepared, although I had reflected upon what had been done before this point last night and this morning.
The crime that the prisoner has pleaded guilty to in the District Court, having been committed for trial, is a crime contrary to s 86(3) Crimes Act 1900. The specifics of the offence are that on 26 April 2014 at Young in the State of New South Wales the prisoner while in the company of Eissa Attalah detained Robert Bradstock without his consent and with the intention of obtaining an advantage namely the return of a sum of money and an amount of prohibited drugs, and at the time of such detaining did occasion actual bodily harm to Robert Bradstock. This is an offence that carries the maximum penalty of 25 years imprisonment, and naturally I am very mindful of the scheme of s 86. That is that for an offence contrary to s 86(1), described as "basic offence", the maximum penalty is 14 years imprisonment.
For an "aggravated" offence, that is an offence containing one or other of the aggravations that both have to be established in respect of s 86(3), the maximum penalty is 20 years imprisonment. The aggravations in the "specially aggravated" form of the offence being, in company of another person or persons, and at the time of or immediately before or after the commission of the offence actual bodily harm was occasioned to the alleged victim. Obviously by the plea and by the material within the statement of facts the prisoner was at relevant times in company of the man who I will refer to as the "co-accused" and at relevant times actual bodily harm was inflicted upon the victim.
The victim, I hasten to say, was 17 years of age. The prisoner was born on 1 September 1987. On my quick calculation he would have been 26 years of age at the time. This offence as I said been committed the day after Anzac Day.
The sentencing of the prisoner was a difficult exercise in this sense, although all sentencing exercises now are increasingly difficult particularly with the complexity of the legislation with which we have to deal. A first reading of the facts left one quite, if not shocked as very little shocks a judge who has been a judge for some period of time, but certainly recoiling from aspects of the treatment of the victim, the detention of a person, the infliction of harm upon him for the purposes of pursuing the advantage pleaded. There would normally fill the ordinary person with feelings of considerable distaste.
But when one analyses the facts and further material that has been provided today, in the context of assessing both the objective seriousness and the moral culpability of the prisoner, in the context I hasten to say of the authorities to which I will refer in a moment, there was assessed on my part at least a somewhat different complexion then was my initial reaction particularly when I was in Wagga and the material was first presented to me.
It is to be pointed out in relation to the matter by reference to matters that are clearly relevant to sentencing of this prisoner that, firstly, the plea of guilty was entered after committal for trial but in the context of being indicated before the "super callover", held in Wagga Wagga in November last year, and then entered in the "super callover", without a trial date actually having been fixed or if fixed some months away. Although I am not bound by any "agreement" between the parties, it was generally agreed in the circumstances of the matter, it was appropriate to assess a discount of 20% to represent the utilitarian benefit of the plea of guilty.
I had not understood fully, but now fully understand, that in fact although the plea of guilty was entered after committal for trial the prisoner had, almost from the outset of the matter being reported to the police by the victim, co-operated with the investigating authorities in a range of ways. He surrendered himself as I understood his mother's evidence on her advice to the police. He made full admissions in an extensive interview that was conducted on 26 April and I have managed to read that transcript today. He then participated in a video recorded "walk through" in which he made a number of other admissions and was further interviewed again on 2 May and made further or more expansive admissions to those that had already been made. Why he was actually committed for trial in all these circumstances is a little unclear.
His confessional material was enough to prove his guilt one would have thought. Perhaps in the scheme of things it may have been hoped subsequently on committal for trial a lesser charge may have been preferred. But these matters do not detract ultimately from the assessment of the utilitarian benefit of the plea of guilty. The prisoner I point out in passing has had no time in custody in relation to the current matter save for some short time I assume under arrest on 26 April.
Since the prisoner gave evidence before me and indicated his continued willingness to cooperate with the authorities, I have now material in the form of a statement which annexes the interviews which I have already referred to and in the form of confidential material that demonstrates on the part of the prisoner timely, and in my view complete, cooperation in the context of the particular matter with which I am concerned. The context of the cooperation is a matter that I discussed, at least with the learned Crown Prosecutor, today.
The Crown Prosecutor very helpfully alerted me, or drew my attention to some recent authorities in respect of the assessment of a discrete discount for cooperation with the investigating authorities or the prosecution in the context of the terms of s 23 Crimes (Sentencing Procedure) Act 1999. The two authorities to which the learned Crown took me were SL v R [2015] NSWCCA 30, and Z v R [2014] NSWCCA 323. In fact the Crown very helpfully highlighted for me the relevant passages from those judgments.
It is clear from those judgments, to pick up something that was referred to by the learned Crown, what was determined by the Court of Criminal Appeal in the 2006 decision of Sukkar ([2006] NSWCCA 92) still largely applies. I was the sentencing judge in Sukkar and I was held, quite properly, by the Court of Criminal Appeal to be in error. There was an adjustment made of a discount that I gave to Mr Sukkar for his cooperation with the prosecuting authorities. That is an adjustment downward. In that judgment, Howie and Latham JJ, Latham J at greater length, discussed changes that were approved by that decision to the way in which cooperation may be assessed. It may be said that one of the consequences of Sukkar was to in effect reduce what might be thought to be an acceptable level of discount for cooperation.
To come back for example the decision of Z, at [27], the Court in that judgment reaffirmed the view, as I would understand first expressed in Sukkar, that a single combined discount should be given for both the plea of guilty and assistance, and that such a discount should not normally exceed 50%. This was a view shared in the subsequent judgment of SL, and certainly it was the view of their Honours in the decision of Sukkar.
Of course these matters are to be assessed in the context of the terms of s 23 of the Act and also in terms of the guideline judgment of Thomson and Houlton [2000] NSWCCA 309 as it relates to the utilitarian benefit of the plea of guilty. By reference to s 23 of the Act it is clear that the cooperation was entirely timely. In fact it was as timely as it could possibly be, and it was complete from the outset. It has continued and is now evidenced in the 'undertaking' signed by the prisoner now in evidence.
The evidence of the offender will be needed in the prosecution of the co-accused Mr Attalah who still awaits his trial. I am appreciative of the fact that there will be degrees of burden upon an offender in providing cooperation. The person may be required to give evidence at multiple trials and the like, or against multiple accused. But I can only deal with this matter in the context of what the prisoner could possibly do and he is prepared to do all that can be possibly expected of him.
Thus, I have determined that he should receive a discount, as I earlier said, of 25% in addition to the discount for the utilitarian benefit of the plea of guilty, noting those relevant factors arising under s 23.
The prisoner at the time of the commission of the offence had no prior criminal convictions. Interestingly, this aspect of the matter, apart from being a relevant mitigating factor both at common law and under s 21A(3), is a matter that is discussed in the context of the appropriate principles in sentencing for offences of this type, particularly when considering what the superior courts have described as the "motive" of the particular offender, a matter which I will address shortly.
The facts of the matter are, without having to regurgitate the very detailed facts in the Crown bundle, that the prisoner knew it would seem largely through common use the prohibited drugs the man I have described as the co accused. These men, in various ways, knew other people including the victim Robert Bradstock. He was a friend of person called Jordan Braham who lived in Young where the prisoner then lived. Apparently on 26 April in the early morning they got together, they went back to the prisoner's residence, then located at 149 Chums Lane, Young, consumed some drugs, which I understand from the facts largely belonged to Attalah, hence explaining his motive for the involvement in this matter. The prisoner during this period of time sold his motor vehicle for $5,000 for cash. It is clear the victim became aware of both the existence or presence of the drugs and the cash in the house. He was actually present when drugs were consumed and the cash was handed over. He consumed prohibited drugs himself.
Eventually the victim and Braham and another man drove around the Young area and went back to Braham's residence in Young. About 4.30am the victim stated to Braham that he could not sleep and he was going to go for a walk. The victim subsequently informed police, after he raised the alarm, that he actually walked to the prisoner's house at Chums Lane, took the cash that belonged to the prisoner, that was legitimately obtained by him I hasten to say, and the drugs that were in the premises that he had seen earlier in the morning.
The prisoner came around to what I understand to be Braham's residence, obviously smoke coming out of his ears, seeking to find out what had happened to the money and the drugs. It is clear, although not expressly stated in the facts, he had already spoken to Attalah, and Attalah's awareness of what was happening is demonstrated by his subsequent involvement in the matter. The prisoner addressed the victim and Braham, not knowing precisely which of them he should properly suspect for the theft of his money and the drugs. He drove them to his home. He said to the victim, "Fingers are going to be coming off shortly if we don't figure this out." But the victim, rather foolishly although I do not criticise him, denied knowledge of his now known theft of the money and the drugs.
On arriving at the prisoner's home, the prisoner told the victim and Braham to go "to the shed". The prisoner appeared at the shed where the two young men were waiting in possession of a hunting knife. He approached the victim and punched him twice to the left side of his face causing the victim pain. He told the victim to sit down and he sat on a camping chair inside the shed. It was shortly after that Attalah arrived. Attalah directed the prisoner to tie the victim up and the prisoner tied the victim's hands and feed, and the man Attalah grabbed a grey coloured roll of duct tape, being CT tape, and wrapped it around the victim's mouth.
Eventually that tape was taken off the victim's mouth, a rag was picked up from the floor and that stuffed inside the victim's mouth and the victim was interrogated for a period of time.
Mr Atallah left the shed, it would appear, for some period of time and returned with what I now understand to be some type of small baseball bat. It is said in the facts that Mr Atallah became angry and struck the knee of the victim. The victim felt pain and then he assaulted the victim with the bat striking him in both his feet and stomach area.
Throughout the assault Braham was waiting outside the shed but he did hear the victim screaming. The prisoner in his interview with the police refers to the victim crying at one stage which one would expect he must have been very fearful for his safety and no doubt suffered some pain.
Eventually the victim said he knew where the "stuff" was and Atallah said that he would take the victim for a drive. He left the prisoner behind. The victim was taken to an oval or a sporting ground in Young and made good his escape, eventually telling is mother what happened and eventually the police were alerted.
As a result of the assault or assaults upon the victim he received injuries to the end of his middle and ring finger on his right hand, soreness and bruising to the outside of his left knee which I take to be from the striking with the baseball bat, soreness on the bottom of both feet and soreness to the left side of his neck. No medical evidence is available, no hospitalisation was required. No victim impact statement exists. It is a little difficult, apart from the injury to the knee, to ascribe a particular cause of some of those injuries. Clearly they constitute actual bodily harm, but in the scale of injuries that constitute actual bodily harm it would appear they're at a lower end of seriousness. It appears to be no permanent disability and certainly there are no fractures or permanent scarring involved.
The prisoner surrendered himself to the police in the early afternoon of the same day. These events that I have described constituting the offence, I hasten to say, commenced shortly after 10.30am. I was at a loss to understand how long the relevant events have taken, but the Crown assures me that the period of time was about an hour, perhaps slightly less between the time the prisoner picked up the victim to the time that he made good his escape. The cash has not been recovered. The victim has not been charged for the alleged theft.
There is another feature of the objective facts to bear in mind. I think quite fairly conceded by the Crown and, if not expressly stated in the facts, are certainly to be implied, that is the striking of the victim with a bat may well be viewed as at least reasonably possible as an act outside any "joint criminal enterprise". It is correct the prisoner bears responsibility for the conduct of the co accused, amongst other reasons, and in a moral sense he did not try to stop him, but reading the interviews the prisoner gave to the police I note he said in the very first interview he gave to police,
"I didn't actually think he'd do it and then he hit him across the knee caps and I actually felt sick and I couldn't, I couldn't be there. I had to - I walked away."
He then said,
"And I went in there" (I take that to be the shed) "and tried to help him out and told him if he just, just told him" (that is Atallah) "where it all was, nothing like - I promised that he'd be able to leave, like, and he didn't. Eissa just keep, I don't know, where he like where he hit and that after that because I couldn't watch it."
He then went on to say the victim came "clean".
That series of representations by the prisoner did not find their way into the facts, but that series of representations by the prisoner will be part of the evidence I expect the Crown will be relying upon if the matter of co-accused goes to trial in proof of the guilt of the co-accused.
I have no reason to doubt that what the prisoner said in those representations was true. Thus, I also take into account, again in fairness to the helpful submissions of the learned Crown Prosecutor, the concession, although it was not expressed as a concession, that whilst the prisoner bore some responsibility for what the co-accused did he was not the person who introduced that particular weapon, although he did threaten the victim with the hunting knife. He did not expressly direct that it be used and his own version of events in fact he did not want it to be used although, again, he did not try to stop the other offender from striking the victim.
There is just one other feature that is worthy of note from the representations made by the prisoner. It is an answer to question 28, it may appear elsewhere in the other interviews, in the interview of 26 April 2014. The prisoner was talking about the $5,000 that was taken. In fact, I would have to say, stolen by the victim. He explained,
"and because I quit my job in Western Australia trying to fix my family life but it didn't work so I sold the car to keep feeding my kids and paying the mortgage so that when it was gone I shit. It's like I got no money so I went and picked the young bloke up...".
Those representations by the prisoner in my view are true as well.
When the prisoner gave oral evidence before me he talked about the fact that he had been in a relationship with a woman who was the mother of a child who I believe is aged now five years. He has another child from another relationship and the mother of that child provided a character reference in these proceedings which I take into account.
The prisoner gave evidence before me that he had purchased a house for the mother of his second child, that is Jessica, if I may call her by her first name. My note says that he paid $330,000 for that house and he was required, amongst other things, after the separation to pay some form of allowance or maintenance to her for their child and for the care of the child who is now aged nine.
He also gave evidence that his relationship with Jessica, which had been going on for seven or eight years, had broken down and he was in a bit of a "mess" as a result of that breakdown. It caused him a great deal of distress. He had been working away from Young to support his family. None of this evidence was challenged.
It is clear on the evidence available to me from his mother, from Mr Cooper and from the written references that the prisoner, having some trade qualifications, is an industrious young man and has continued to try to find employment when he can since being charged in relation to the current matters.
It is clear too that in the context of his then financial circumstances the money that was taken, legitimately acquired I hasten to say again, was very vital for a range of reasons. Not for the purposes of buying drugs or buying a new car but to meet financial commitments in circumstances where he had no employment. I accept that evidence to be true and in my view it is a matter that is to be borne in mind in assessing some features of this offending.
Firstly, it is clearly offending without planning. It is clear the prisoner obviously lost his temper and in his own mind well knew who must be the suspects. In fact he was quite right that one of the two young men he picked up was in fact the person who took his money. As the guardian of the other drugs which he had used that morning he no doubt felt some responsibility for that. I accept that he was not just looking for the money he was looking for the drugs but apparently they did belong substantially to Mr Atallah.
It is in this context that he picked up the victim. He said in his interviews with police, again not a matter that found its way into the facts, that he had no intention of chopping off fingers and I accept that to be true. He did threaten the young man with a knife, as I have said, and that would have been a frightening experience, but I accept that he had no intention of using the knife although he did strike blows to the victim's head, albeit not causing any substantial injury.
He was committing an offence that could fairly be described as impulsive and in my view driven by the genuine and legitimate need he had for the cash legitimately acquired.
Also, it is quite clear in the context of earlier ingesting drugs and his fragile emotional state that he was not - for want of a better word - in the best of mental condition to be making reasoned judgments about how he should go about recovering the money. I accept as a sort of background matter - not really the subject of any submission - that one of the difficulties he had with taking his complaint to the police, for example, was that whilst the cash was legitimate he would have to reveal to the police the existence of the prohibited drugs, or he knew that they would find out about those, which compounded his conduct.
Having said all that, and taking those matters into account in the context of assessing his moral culpability and also so far as the impulsiveness of the offending, in assessing the objective seriousness it has to be clearly pointed out that this offence can be rightly categorised as a "vigilante" type crime the way in which a number of the different types of detention of persons contrary to s 86 may be categorised. The decision of Newell, to which I earlier referred, set out some basic propositions in relation to sentencing in this area of the law. There had been a decision of Roden J back in the 1980s, early 1990s in a case of Collett and Robson in which his Honour set out some basic propositions in relation to the repealed s 90A offence.
The character of s 86 offences, which are the statutory descendants of s 90A, is somewhat different than that provision. It has been properly pointed out in Newell and then again in the decision of Speechley ([2012] NSWCCA 130) that s 86 offences are have a wider ambit than the former "kidnapping" crime. S 90A in its terms was a direct product of the abduction and murder of the young Graeme Thorne in 1961. In the decision of Speechley, in his usual erudite way Johnson J surveyed the relevant law in relation to sentencing pursuant to s 86. In particular I refer to [47]-[64] and other observations about the approach to sentencing in this area, particularly in relation to the assessment of the objective gravity of the offending at [81]-[87] and his analysis of the case at bar by reference to the general authorities at [105]-[119].
A number of things emerge from this very careful analysis of the law. For example at [52] he refers to one category of a s 86 offence, amongst other categories elsewhere cited, that he describes as "vigilante conduct" and he cites decisions such as Williams (2006); Barlow (2008); and Rayment (2010), to which I earlier referred.
I have taken the trouble today to re-read those judgments and refresh my memory. It was observed by Howie J in Newell offences under s 86 he doubted would be "sufficiently homogenous that a reference to statistics alone would be of much assistance" and for that reason I take it the parties have not bothered to provide me with any statistics.
His Honour, in the context of dealing with the authorities relating to vigilante type offences are noted. Some of the observations in those cases that I have just cited, such as made by McClellan J, then CJ at CL, include the following:
"The offence committed by the applicant was serious, motivated by the wrong she believed was previously done to her...she took the law into her own hands."
"...the rule of law requires that offenders be tried by the appropriate authorities and if convicted punished in accordance with accepted principle. In our society crime is dealt with by the Courts."
Hall J had pointed out that vigilante conduct was,
"The antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms."
However, in that regard Hall J, with the approval of Johnson J, also observed by reference to authorities I have already cited,
"The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning it or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect."
But as was pointed out in Swan [2006] NSWCCA 47,
"The existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence."
In my view, that is the case here.
His Honour went on to say,
"It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence."
I take it his Honour there is referring to "general deterrence." To my mind here it some degree mitigates the objective seriousness of the offence. Amongst other things it informs the impulsiveness of the conduct and the lack of planning, although the element of general deterrence will remain present.
In relation to the categorisation of the seriousness of the offending in the decision of Speechley which, whilst it was concerned with a different motivation, has a number of similar characteristics here. His Honour, rejecting a submission on behalf of the respondent in the Crown appeal that the offence was towards the "lower end of the scale of objective gravity" - this is in respect of a s 86(2) offence I appreciate - said "It was an offence of significant objective gravity, well above the lower end of the scale."
With that analysis of the objective seriousness of this matter I agree, but as I said earlier, the objective seriousness of the offending is to be seen in the context of other matters including the moral culpability issue to which I referred and of course any relevant other mitigating factors, as well as other matters that militate against the otherwise appropriate sentence such as discounts for pleas of guilty and the like.
I appreciate comparative sentencing exercises are fraught with danger, and I appreciate that nobody has actually submitted to me that any of the authorities to which I have referred - that I have researched of my own undertaking in detail - reflect any true comparative sentencing exercise.
But I note in relation to, for example, the matter of Speechley, that the Crown appeal was against an order of imprisonment of one year and 11 months that was suspended pursuant to s 12, where ultimately the Court imposed a term of imprisonment fixing a non-parole period of 12 months and a balance of term of 11 months. In other words, did not interfere with the sentence but confirmed that it be converted to full time imprisonment. It is the case that some of the other vigilante type appeals involved similar sentences that were sometimes not interfered with. One case involved in fact a s 11 remand which the Court decided not to interfere with, albeit that it was recognised that a term of imprisonment would eventually be imposed.
Here of course there are features present that are not present in the matters to which I have referred as vigilante cases including, for example, the case of Speechley. The respondent in Speechley of course had pleaded guilty. She was a young woman I hasten to say, 19 years of age. She had no prior convictions. But on the other hand the grievance that gave rise to the detention of the victim, the reason for the vigilante action, was a claim by a friend of hers that she had been sexually assaulted by the victim, who was threatened with guns and struck on the head with a rifle.
Thus, in assessing the objective criminality of that matter by reference to motive, her motive was to support a friend, not to reflect upon any grievance that she had. It would be clear from the facts of that case there was considerably more planning, if not sophisticated planning, in the commission of the offence than here. The victim there of course was detained for up to two hours and was threatened with death by the three offenders when the detention occurred. With regard to that matter however, there was no issue of cooperation to be assessed as it related to contrition, or in the assessment of any further discount, and I noted for what it is worth, that the prisoner was essentially unrepentant, at least when interviewed by police, because she said she was simply helping her friend.
This prisoner in the course of his evidence and in the course of his interviews with police at a much more timely occasion, expressed disgust and regret for his conduct and has done so to his mother in the evidence that she gave of that and in the evidence of Mr Cooper. He referred to the prisoner's regret and the fact that he was truly contrite. In fact Mr Cooper made the point, seeing him on the day of his arrest, that the prisoner said to him that he had "stuffed up big time" and he described him when he saw him - as I understand it that day - as "an emotional mess".
That having been said of course, the starting point of any sentence that I believe is appropriate in this matter, noting the greater maximum penalty is higher, in fact substantially higher than the sentence that was imposed, for example, on Ms Speechley. But this prisoner of course gets the additional discount for the cooperation. It goes without saying in the assessment of this matter I have had regard to what was said in Newell, particularly in respect of the factors to be taken into account, approved again in Speechley. These include the period of the detention which was here for about an hour; the circumstances of the offence in which I have summarised; the person being detained - I note a 17 year old who had stolen the prisoner's money was no ingénue - and the purpose of the detention, which I have reflected upon.
It is clear by reference to the evidence available to me both orally and in the documents tendered by the prisoner that the prisoner is an industrious person, as I earlier pointed out. He is greatly devoted to his children and he is a good provider for them. He has obtained employment since his arrest in Young and has moved away from the Young area. There is no suggestion whatsoever of continued threat to the victim. In fact the prisoner ceased to be a danger to the victim when he went to the police and confessed his wrong doing.
The Court obviously has regards to s 3A of the Act. I have already reflected upon some of those for the purposes of sentencing, the significance or relevance of general deterrence; the absence of any need for personal deterrence; there is a need to adequately punish the prisoner and make him accountable for his conduct and denounce it. But on the other hand, there is a need also, as the purposes of sentencing made clear, to promote his rehabilitation.
I have taken into account the evidence of the comparative circumstances of the co-accused, who I hasten to say remains unconvicted. He is a person of similar age to the prisoner, and like the prisoner at the time of the commission of this offence - assuming that he was involved - had no prior criminal convictions, although I note that he has some findings of guilt that have arisen subsequently which has not happened in the case of the prisoner. I accept the prisoner, since the commission of this offence, has taken a different path. He has moved away from the district; he has maintained his employment; he is working in an enterprise where he is subject to daily drug testing, so he has overcome his use of prohibited drugs and he can continues to support his family.
The Crown Prosecutor who appeared at the Wagga Wagga sittings, as I said, prepared written submissions. The learned Crown Prosecutor appearing for me today does not adopt some of the written submissions made. Particularly so far as those submissions are concerned, I have already reflected upon the objective facts and the use of the baton, or the bat, as being something for which the prisoner, if legally responsible, is not morally responsible. The Crown also, as does the defence, nominates as the relevant aggravating factor to be found pursuant to s 21A(2) of the Act, that the offence involved both actual and threatened use of a weapon. The prisoner threatened the use of the knife, and there was the actual use of the baton in the presence of the prisoner in the circumstances I have outlined.
The earlier Crown Prosecutor had submitted the offence was part of planned or organised criminal activity. That is just not open on the facts. In fact, I find as a mitigating factor that it was not planned activity. I mean no disrespect at all to the previous Crown Prosecutor, he is a very abled young lawyer and was most helpful in the sittings in Wagga. But if the Crown is to prepare a set of written submissions and is to put to the Court what it says are the relevant, for example, mitigating factors that arise under s 21A(3), one would hope in a spirit of open mindedness and fairness the counsel in question - not the Crown who appears before me now - would be honest enough, or at least open enough, to acknowledge all relevant mitigating factors.
The learned Crown Prosecutor who prepared the written submissions identified remorse as a mitigating factor but sought to qualify by it by reference to authority and the plea of guilty as mitigating factors under s 21A(3). It is quite clear by reference to the section that there are a number of mitigating factors under that provision in addition that are to be taken into account, as was submitted by learned counsel for the prisoner. Those mitigating factors include the fact - apart from what I have already identified - that ultimately, even though there was actual bodily harm, the injuries suffered by the victim was not "substantial"; the prisoner was "provoked" by the victim in the manner I have described; the prisoner did not have any record of previous convictions; the prisoner, notwithstanding some drug use, was a person of good character. I accept the prisoner is unlikely to reoffend.
I accept the prisoner has good prospects of rehabilitation, whether by reason of his age or because of his prior good character or because of his capacity to find employment and his support for his family. I find not only that there is remorse but in my view it is very powerful evidence of remorse, evidenced by the prisoner within hours of the commission of the offence, not something delivered to this Court at the heel of the hunt. It may be genuine remorse in that instance but is of little mitigating effect. Of course the plea of guilty is a mitigating factor to be taken into account.
Clearly the threshold, if I can call it that, identified in s 5 of the Act, has been crossed and a term of imprisonment must be imposed. I have already indicated what is the starting point in the context of the maximum penalty, the assessment of the objective seriousness, the identification of the moral culpability of the prisoner and factoring in, as best I can in accordance with "Markarian" principles, the relevant mitigating factors that arise, both under the Act and at common law.
With regard to the purposes of sentencing I am reminded of what the High Court said about the four purposes of sentencing, the majority identified in Veen (No. 2) v R (1988) 165 CLR 465.
"However sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from the unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society; deterrence and of the offender and of others who might be tempted to offend; retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
There is one other matter of general principle I believe arises in this particular case, taking all matters into account and taking into account all that has been put on behalf of the Crown and the defence. These are the observations made by then Wood CJ at CL in Blackman and Walters ([2001] NSWCCA 121) where his Honour reflected upon principles deriving from South Australia that even in matters where general deterrence may loom large in fixing an appropriate sentence there was:
"still a need to consider all aspects of the matter and to consider the interests of society and the offender and the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency."
As King CJ said in Yardley v Betts (1979) 22 SASR 108 at 112-3:
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life the protection of the community is to that extent impaired. If the sentence induces or assists an order (sic) to avoid offending in future the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm."
Of course, that general observation is to be seen in the context of the particular offence with which one is particularly dealing. In that regard I also am mindful of what was approved by Spigelman CJ in the guideline judgment of Henry where his Honour referred, in the context of laying down the guideline judgment for armed robbery matters, acknowledged that what Acting Chief Justice Mahoney had said in Lattouf v R was entirely correct, that justice was individual and if individual justice was not given in a particular case it is "nothing".
So I come back to where I started. This was a troubling sentencing exercise. My initial reaction was, on my first reading of the facts, this is a man who had to go to gaol for a substantial period of time, in context, giving due weight to what I understood was the fact he had no prior criminal convictions. However, when one scratches into the matter and sees all the material or as much of the material as has been revealed to me, one can see the delicate balance that is involved here. I have taken into account of course the fact the prisoner receives a discrete discount for his cooperation but there is another aspect of that, and that is I accept, as was put by his learned counsel, that if he was to be sentenced to fulltime custody, whatever period of time that would be, he would almost certainly, in the context of giving evidence from custody against a co accused which would become well known around Junee gaol from where he would have to come to give evidence at Wagga and throughout the system, serve his sentence in protective custody. In the context, I hasten to say, of being a person who is not an experienced criminal and not a person who has previously served any time in custody.
Of course, there is always a first time to go into gaol. I have already indicated to the prisoner it may inevitably end up that way. But I have concluded in the circumstances of the matter, doing my best on short time to reflect, I have determined that I should foreshadow a term of imprisonment of less than two years and consider and in fact order that the prisoner be assessed for his suitability for the serving of an Intensive Correction Order. I am very mindful of the fact, even though it might not have been fully appreciated in the particular submission made by learned counsel for the prisoner about this matter, that given his employment commitments he either may not be eligible for an Intensive Correction Order or, if he is to become eligible for an Intensive Correction Order, he may have to give up his employment for the period of time that I will order. That period, if ultimately to be served by Intensive Correction Order, will require the performance of Community Service, attendance upon Community Corrections and a range of requirements that are not necessarily compatible with the employment arrangements that the prisoner has. It is a more stringent restraint than a suspended sentence.
If I have not already pointed it out I must confess, in the context of the evidence that was given, I was very impressed with the evidence of the prisoner as to what clearly were positive steps taken by him to address his offending behaviour to the extent that he could address it in the way in which it arose and take steps to avoid finding himself in the situation in which he now finds himself on this occasion.
Thus, in the circumstances of the matter, noting everything that has been put by the learned Crown Prosecutor and giving full respect to the position that he properly and honourably has taken I have concluded at this point I should not impose a term of fulltime custody but adjourn the matter for the assessment that I foreshadow.
So that brings us back, Mr Crown and Mr Walsh, to an adjournment so an Intensive Correction Order can be assessed. I want to make it abundantly clear I am not contemplating a suspended sentence. That would have an inherent degree of leniency in the circumstances of the matter and inconsistent with my assessment of the objective seriousness of the offending and I want to make it abundantly clear I have come to that conclusion in full recognition of the principles that are reflected upon in Speechley on this very matter and also discussed for example in the 2002 decision of Howie J in Zamagias.
Now we would need at least six weeks for an assessment. When is six weeks' time? I hasten to say, Mr Crown and Mr Walsh, I'm sitting in Queanbeyan the first two weeks of June. That's probably eight weeks away but if it was of greater convenience to the parties to send the matter to Queanbeyan, and subject to the convenience of the prisoner although he must fit in with us to some extent, I would be prepared to stand the matter over to Queanbeyan. I don't know, I don't know what's--
WALSH: I have some difficulties in that period of time your Honour but certainly any time after the middle of May I'm free to the end of May.
HIS HONOUR: I was supposed to take two weeks' leave in the beginning of May and because of the Commonwealth trials I've got at the moment that is going to impact upon my leave and I may be presiding over the second of the two trials I've got concerning the one accused until the middle of May but I have a matter listed on Friday 27 May and even if was taking that leave that I'm losing, even if I was on leave up until that date I'd come into court on that day anyway because I've got to prepare to go to Queanbeyan.
WALSH: I'm free on that day, your Honour.
HIS HONOUR: 27 May Mr Crown?
PINCOTT: I think I'm free on that day your Honour, yes.
HIS HONOUR: Well I'm prepared to grant the prisoner bail. I suppose I've got an option, haven't I, to remand him in custody but in the context of the reasoning I've reached I'm prepared to continue his bail.
PINCOTT: I think it's proper to continue his bail.
HIS HONOUR: It will facilitate the preparation of the report.
PINCOTT: Yes.
HIS HONOUR: I am mindful I can remand him in custody, notwithstanding what I've said but what I'll do is I'll list the matter--
WALSH: Whatever time your Honour.
HIS HONOUR: You tell me. You gentlemen are travelling down from the country. Is in the afternoon better or 9.30 in the morning okay?
PINCOTT: Afternoon is better for me but I'm in Mr Walsh's hands.
WALSH: Yes, I think it's better probably for me too, your Honour.
HIS HONOUR: I'll list it not before 2pm on Friday 27 May. I just have to make a formal order.
Mr Nichols, do you understand what is happening? I am adjourning your matter now for about seven or eight weeks to enable a report to be prepared. You will be required to report to the nearest office of the Community Corrections Service. Are you living at Port Macquarie at the moment?
OFFENDER: I am in Port Macquarie, yes.
HIS HONOUR: Well there's an office at Port Macquarie. I will continue your bail with the additional condition that you are to report to the officer in charge of what is now called the Community Corrections Service at Port Macquarie within seven days. Do you understand that?
But you will also be required to go to Wagga to give evidence in the trial of the co accused. Now just something I should tell you, you had better bear this in mind. You've got rights of appeal. The Crown has got rights of appeal. The Crown can appeal against this order I have made and the Court of Criminal Appeal could impose a greater sentence. But one thing that can happen is this.
I just make it very clear to the accused, if you fail to cooperate with the Crown at the trial of Mr Atallah on 18 April, even before I get to see you on 27 May, the Crown might appeal what I have done anyway. That is the Crown's right. It is perfectly proper, but that is what our system thrives on, the right of the parties to redress what they regard as injustices or errors on the part of a judicial officer. But if you fail to cooperate with the authorities the Crown can go straight to the Court of Criminal Appeal and the discount I have given you will disappear and I can tell you one thing for certain, if the discount I foreshadow disappears that's 25% for your cooperation, then the sentence I must impose must involve a term of full time custody because it will be bigger than two years. If you add 25%, in the appropriate mathematical way, onto what I calculate to be 23 months that adds at least another eight or nine months to that period which means you will go to gaol and I will be required then to consider the fixing of a non-parole period.
But the orders I make in the meantime, having made that very clear to you, are these:
You are convicted. I have considered s 5 Crimes (Sentencing Procedure) Act. I am satisfied for the reasons given that no penalty other than imprisonment is appropriate and the sentence of imprisonment will be for a period of no more than two years. You are referred for assessment as to your suitability for an Intensive Correction Order as a means of serving the sentence. Bail is to continue but you are to attend the Community Corrections Service at Port Macquarie within seven days of today and obey all reasonable directions of the officers of that service. You can take a seat.
Otherwise the matter is adjourned, as I said, until Friday 27 May 2016 not before 2pm. You are excused from the dock, Mr Nichols. You can take a seat behind your learned counsel and solicitor.
[2]
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Decision last updated: 27 May 2016