R v Pagett; R v Williamson

Agreed Facts

1. As the group approached the complainant at the station Pagett said to the complainant, "Come here … don't run cunt". The complainant did run. She ran from North Wollongong Railway Station to a nearby service station. She was chased by Pagett and Williamson. When they caught up to her, she said to Williamson, "You're not going to bash me or anything are ya". He said, "No, come over here, Mataja [Pagett] just wants to talk to ya". Pagett caught up and said, "What did you do to Chris", referring to one of the other young people.
2. The complainant gave a version of what occurred. Pagett then punched her in the face, spat on her, pulled her hair and forced her to walk, at times pulling her hair, to a unit about a kilometre away. The area is well known to me as a long-term residence of this town.
3. During the walk Pagett demanded the complainant walk faster and pulled her hair, hurting her neck. She was joined by Williamson and others in the group. They went to a unit overlooking the harbour.
4. Pagett directed the victim to apologise to the person who everyone believed she had wronged.
5. Williamson directed another young person to leave the unit and get some zip ties. When she returned Williamson used the zip ties to tie the complainant's hands behind her back. He also used some shoelaces to tie her.
6. While she was tied Williamson made her eat cat faeces. He told her, "If you don't eat it, you'll get bashed". The complainant was also threatened that her penis would be burnt if she did not eat the faeces.
7. A hair straightener capable of inflicting that burning was turned on. Her hands were cut, and photographs were taken of her. Pagett then directed another person there to get a pair of scissors. Pagett and the other person cut the victim's long hair; eventually cutting it very short.
8. The complainant, who was sitting on the ground, was kicked by another, hit with a vacuum cleaner pole, and had a frying pan held to her head. These assaults occurred over about half an hour.
9. During the incident the person who had the initial grievance was apparently sitting on the lounge laughing.
10. The complainant was made to clean up her hair and put it in a bin. Pagett and Williamson then took her to the bathroom where Pagett used a showerhead to spray warm water over her torso. In the bathroom Williamson tied the complainant's legs tighter.
11. Four of the young people, including Pagett and Williamson, then left the unit. One of the people involved remained. That person expressed some sorrow for what had happened to the complainant and allowed her to leave, returning to her or giving her, it is not clear, her bankcard. Anyway, that is not relevant to this matter. She said she was sorry.
12. The complainant ran out of the unit. She went to a nearby café where she sought assistance. The police were called. Immediate complaint was made. Police then attended the unit and declared it a crime scene. They found material which corroborated the complainant's account.
13. Hospital notes indicate that she was suffering pain to her orbit, that is the area of the eye with mid / mild swelling to the right lateral orbit with bruising. Her wrists showed redness but there were no obvious lacerations or marking. She was discharged and advised to take analgesics.
14. On 4 September 2023, Williamson and Pagett were both arrested and charged. Both have been in custody ever since.

Objective seriousness

1. When imposing a sentence, a judge must identify all the factors relevant to the sentence, discuss their significance and then make value judgments about an appropriate sentence having regard to all the factors in the case. The sentence must be proportionate to what was done, that requires an assessment of the objective seriousness of the offence, it is one essential part of the process: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51].
2. Here, a minor grievance and a desire for an apology led to retribution. Things more than got out of hand - a serious crime committed. The detention was for just under three hours. The advantage sought was psychological. That is, vengeance for a perceived slight and a desire to humiliate. The actual bodily harm, an element of the offence, here was, given what could be encompassed by this element, at the very bottom of the range; slight, but it is not the physical harm that is the most important thing here.
3. There was continual threat that violence would be inflicted. There was violence throughout in the way Pagett forced the complainant to walk to the flat. The victim was also assaulted in the flat. These assaults took over half an hour.
4. She was subject to anguish and discomfort. Her liberty was taken from her. There were threats of violence and what was done to her was designed, and did, humiliate her. As she said in her Victim Impact Statement, her hair, something very precious to her, was cut. She was subject to the force of numbers, not just what these two offenders did directly.
5. Whilst Williamson may not have inflicted actual violence on her, he was there and present and lending support to the violence that was done as she was marched back to the unit. Both offenders were present when things were done to her in the unit. Williamson was responsible for the cat faeces episode, and both were present when the threats were made to ensure that compliance. All of those matters make this, objectively, a particularly serious offence.

Victim impact

1. The impact of the offending was set out in the Victim Impact Statement which I read to the Court today. In it the complainant spoke about how she now has trouble being in, or visiting, Illawarra where her family live. She says: "I used to be independent, and I used to hang out with lots of different people by myself without fear." But since the commission of this crime, her life, she says, "looks very different".
2. She no longer lives locally. She is always scared when she goes out in public. She is frightened that the offenders, being released from custody, may repeat what they have done to her. She has trouble sleeping. Existing anxiety has been made worse and she is restricted in her use of social media. She says: "Honestly, what impacted me the most about what they did to me was cutting my hair." She said how devastated she was as her long hair made her "feel feminine and beautiful", and that was taken from her. She also wanted "the Court to understand that there are positives after the crime". She is now getting the support she needs. But she says she "lives with the effects" of what was done to her "every single day".
3. The statement serves a very practical purpose. It drew to the offenders', the Court's and the community's attention the personal, and particularly the psychological, harm caused by this crime.

Case for the offender Pagett

1. Ms Pagett appeared today and gave evidence. It is clear from her evidence that she has reflected upon what she did and how she came to be in the position that she was in when she committed this crime.
2. She has solid plans for her future. She is now engaged with culturally specific counsellors from the CRC, the Community Restorative Centre, who have put in significant work to gain her trust.
3. She expressed a public apology noting what she did was wrong and inappropriate, how she treated the complainant was not fair, it was not her place to do what she did, and she said she would do what she could to help the complainant recover. It is clear from all the material before me that the insight shown by that apology, which I accept is genuine, required help to develop. She credited Victim Services with their assistance. I have a report from Victim Services before me.
4. She has no criminal history, and she is entitled to leniency often given to first offenders.
5. There is material before me in the comprehensive report of Clinical Psychologist Ms Murray‑Roach, that Pagett's history leaves her at high risk of future violent offending. There are matters in the evidence and the reports which can, and do, mitigate that risk.
6. Importantly, as her counsel, Ms McGee, notes, the risk was there before this offence occurred but there is no prior history of violence. While that risk is obviously a matter to be synthesised, it is important to how matters are planned for her future, it is not a matter that aggravates in any way the sentence I must impose. This is not a Veen No 2 [1988] HCA 14; (1988) 164 CLR 465 situation.
7. The sentence assessment report indicates she has limited insight. It is clear from all the material before me that her time in custody has not been easy. She has had to focus first on herself, but there has been some documented improvement.
8. She has been sexually and physically assaulted in gaol, that is a relevant factor on sentence. Courts do not ignore the lived experience of gaol. Support for the impact of this lived experience is well documented in the material before me. Those who have been assaulted in custody will inevitably suffer anxiety and have other concerns if they were not able to be protected prior to sentence. Returning to the same environment where they have no control over their immediate safety exacerbates this.
9. The history given to Ms Murray‑Roach is sad but uncontroversial. Ms Pagett is an Aboriginal Australian by her paternal family. She has a strong connection to her culture and identifies as Yuin. Her history, which I will not go through in any detail, reveals that in her short life she has been exposed to significant violence, neglect, sexual abuse, substance abuse.
10. As a child, she was removed by Child Protection. At various times relatives have been able to provide some assistance to her and she has had a few periods in her life when she was able to be stable and live in relative safety. But when she was a still a teenager, she was abusing illicit drugs and was moved into, and received the support of, the Southern Youth and Family Services and resided at a refuge where she met some of the people associated with this offence.
11. Her development was marked by chronic instability, abuse and neglect. She rarely had safe spaces, one was school, but she did not stay long in school. She is obviously intelligent, but she has had a pattern of avoiding medical care despite suffering a number of medical incidents.
12. She is hyper‑sensitive to rejection. She has experienced in her young life heavy drug use, a maladaptive coping mechanism for her history that I have recounted.
13. At the time of offending, she was a regular methylamphetamine user. That drug must have had some impact on her mental capacity to behave and think rationally. She gave an explanation as to why she got involved and did what she did. It is not an excuse. Nor could her drug use be an excuse. The fact that she was, she said at the time, withdrawing and unstable made her more prone to committing an offence such as this; without thinking about the consequences to others or herself.
14. Ms Murray-Roach is of the opinion, at par [63] of her report, that Paggett is at a "high risk of future violence", but she also notes that protective measures are being put in place and can be put in place.
15. Ms Murray-Roach recommends, at par [74], that she be referred to Justice Health for psychiatric review and she recommends that prior to Pagett's release "consultation occur with a psychiatrist to obtain a referral to a community-based psychiatric care to promote continuity of care". She will need to be referred to a GP and, I presume, have a mental health care plan put in place.
16. Pagett took pro‑active steps to attempt to get bail so she could attend the Glen, a culturally appropriate rehabilitation centre. She was obviously disappointed not to be able to take up that bed but there are, as I am sure the judge who refused bail took into account, important countervailing considerations. The most of important of which is that she was pleading guilty to a very serious offence. She had not yet served the minimum period in custody that the law requires for her offending. There is sometimes a danger that after being bailed to a rehabilitation facility the return to custody can cause more harm than that initial disappointment of being bail refused. I do not have the judge's remarks, but they are comments I sometimes make myself.
17. Paggett's own vulnerabilities, her own trauma, led her inflicting harm on another. She will have many social challenges when she returns to the community. There will be many temptations to return to drug use. She will need stability. She will need culturally appropriate assistance.
18. The various reports from the CRC indicate that they have made a commitment to her which I hope continues.
19. Her complex psychological profile, the stresses of the custodial environment, her chronic exposure to trauma, have all impacted on her. It means that her moral culpability is less than a person who did not have childhood depravation, trauma, sexual assault and / or mental health issues.
20. All these matters are inter‑related as the plurality of the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. These matters can, and often do, mean that a person does not develop pro‑social values that impacts on the acquisition of a moral compass and interferes with their capacity to make behavioural decisions and consequential thinking. It will, and must be, taken into account in reduction of sentence. It means that custody will be harder for her, and it means that, particularly by reference to the maximum penalties available to the Court, that principles relating to general deterrence, that is by the retribution inflicted on particular offenders, sending a message to others who might be tempted to do as they did can be reduced: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

Case for the offender Williamson

1. Williamson has a criminal history, but it is minor and involved nothing like this matter. While he is not entitled to the leniency often given to first offenders, it is apparent that this incident was not thought through and did not match the character of the person who had that prior history.
2. He gave evidence today. He was doing reasonably well at Clarence Gaol, but he has presently been moved to the Long Bay Hospital on bed placement, which I presume relates to over-crowding in our gaols. That move has interfered with his rehabilitation because his plans for the future are focused on obtaining work, obtaining an apprenticeship, and utilising, what he now appreciates, and did not when he was younger, the strong support and pro‑social support from his family.
3. He suffers from, epilepsy and has had a seizure in custody. His capacity to see appropriate specialists have been interfered with by his term in custody. But Justice Health, I am sure, will be committed to providing assistance to him.
4. He spoke to Dr Klamer, and I am indebted to her for her report which is before me as an exhibit: Exhibit 1.
5. Williamson had strong support from his family while growing up, but as a teenager, in his own words, he "rebelled". He thought he knew better, as many teenagers do. He left home and lost the pro‑social support that had been given to him. He took up the use of drugs when he was still too immature to make rational decisions.
6. Dr Klamer notes at pars [37]-[38] that: "This offence appears to have occurred on the background of developmental and educational challenges that have led to significant limitations to Mr Williamson's employment skills and ability to self‑regulate himself … As a result of Mr Williamson's behavioural dysregulation, a tendency towards a lack of respect … [he] left home … early … Early exposure to maladaptive coping and problem solving, and anti‑social peers, led Mr Williamson to experimentation with illicit substance abuse. Such behaviour developed into an entrenched coping pattern, with [him] likely … relying on such behaviour to cope … [particularly after] the death of his son [to SIDS]."
7. She recommends drug and alcohol rehabilitation programs, criminogenic treatment programs and psychological treatment. She notes that he had ADHD as a child, and that his use of substances to deal with underlying problems means that there is, although not to the extent extended to Pagett, a need to reduce the sentence to take into account his diminished moral culpability and the consequent reduction in the need to denounce the crime.
8. As Madam Crown pointed out, substance use cannot, and does not mitigate, but it is relevant to determining his future prospects.
9. He shows some empathy and insight into what he did to the complainant. He shows some remorse. He wants to apologise in person but obviously cannot. He has taken positive steps to do what he can to show that his behaviour on this day does not reflect the person he wants to be.

Other principles

1. There are some general principles that apply to both young people. One of them is the impact of drugs does not excuse criminal behaviour. But their drug use and their drug history, does allow me to understand why they did what they did and helps me understand their state of mind and lack of capacity to exercise sound judgment. It also explains the impulsivity of the offence which does not appear to have been planned at all. It also assists their subjective cases so far as both, the origin of the drug problem and the attempts that are being, and will need to be taken, to overcome it.
2. Both are very young. Both are immature. There is a general practice that sentences can be moderated, for youthful offenders, if immaturity is a contributing factor to the crime; which I find it was here: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.
3. The law recognises the potential for the cognitive, emotional, and psychological immaturity of young people to contribute to their breach of the law. It also recognises that emotional maturity and impulse control develop progressively: Clarke-Jeffries v R.
4. Both offenders in their evidence today have shown more maturity than they displayed when they committed this offence.

Other cases

1. I have had regard to the statistics provided by Ms McGee and the cases, including Bugmy, referred to in the written and oral submissions of counsel.
2. The consistent application of principle must be considered. The guidance offered by appellate courts and other decisions of this Court, including my own, is always welcome, however, every case and every offender is individual. Sentencing is a discretionary judgment, which means that the mix of factors to be weighed are different when it comes to this case and different when it comes to each offender.

Parity

1. Each sentence must be determined having regard to the circumstances of the offender and the co‑offender. Both are equally culpable although both did different things during the crime. One has a criminal history, one does not. They have quite different personal backgrounds. A person's personal background can justify a difference in the time a person will serve in prison: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.
2. The principle of parity applies. It is a classic example of the need, so far as possible, to ensure equal justice but sentences between co‑offenders should be proportionate: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51]; Postiglione; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246.
3. Here there are differences and reasons for some differentiation in the sentence between both offenders. The parity principle, or the proportionality principle, also encompasses the structure of the sentence and its non‑parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.
4. Here greater weight must be given to Pagett's background, her mental health conditions, and the impact of those matters on her moral culpability. At the same time, she was the initiator of the initial action; she marched the complainant back to the flat and her potential risk is greater.
5. I am indebted to Ms McGee, Mr Kwan, and Ms Keay, Deputy Senior Crown Prosecutor, for their written submissions and succinct oral submissions. I have sought in this judgment to address any differences between them. I do not believe that I should take into account s 21A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) matters to further aggravate the sentence because I have sought in my judgment to make an assessment of the objective circumstances of what was done and its consequences. There are, of course, differences of emphasis to which I have referred.

Synthesis

1. A proper sentence is required, there are matters here that aggravate, some mitigate. There are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65]. The sentence must reflect the seriousness of the crime committed; it should let others know they cannot behave as these offenders did. At the same time there are reasons to mitigate this sentence and that general deterrence principle can be moderated. But sentencing courts have an obligation to vindicate the dignity of the victim, here the complainant, and to express the community's disapproval of that offending.
2. Further, an historic of the law function has been to discourage people, their friends and family, people who think they have been wronged, from resorting to self‑help. All that does is escalate tension and violence in the community, and all that does is cause additional harm, as the Victim Impact Statement makes clear, and results in people, who would otherwise not be in gaol, wasting significant portions of their lives.
3. Given their youth, it is also important to note the protection of the community can be contributed to by the successful rehabilitation of young offenders. That purpose of sentencing should not be lost sight of: Blackman & Walters [2001] NSW CCA 121 (Wood CJ) at CL referring to, with approval, Yardley v Betts (1979) 22 SASR 108 at [112]-[113].
4. Both offenders must be sentenced to terms of imprisonment. Both offenders must spend longer in gaol. I have sought to reduce the minimum they must spend in gaol to that which reflects the gravity of the offences committed and the other purposes of sentencing. There will be significant findings of special circumstances here.
5. So far as Mr Williamson is concerned, he has demonstrated a desire to build a life for the future, to take up the support his family has offered, and I will give him an opportunity to fulfil that promise.
6. So far as Ms Pagett is concerned - there is a lot of work to be done. She will need to engage with psychological treatment and drug rehabilitation. It is not going to be easy, but she has expressed the desire not to return to custody. She will need time to build the support in terms of accommodation and other supports that are necessary. She will need to engage with a psychologist.
7. Ultimately, I have to express all these matters in terms of time and custody and time on parole. Each offender's release to parole will be subject to a determination by the State Parole Authority. They will only allow someone to be released to parole if community safety concerns can be met. That will mean post release plans have to be put in place as soon as practicable.

Orders

1. For Pagett, the sentence I indicate will reflect my finding of special circumstances and the discount of 25% for her early plea of guilty. In her case there will be a sentence of 3 years and 4 months imprisonment. That sentence will commence on 4 September 2023. There will be a non‑parole period of 1 year and 8 months which will commence on that date meaning she is eligible for consideration for release to parole on 3 May 2025. The balance of the term of 1 year and 8 months will commence on 4 May 2025 and expire on 3 January 2027.
2. Mr Williamson too has the benefit of a significant finding of special circumstances and a reduction of the otherwise appropriate sentence of 25%. His sentence will be 3 years and 9 months. The non‑parole period of that sentence will be 1 year and 11 months. It will commence on 4 September 2023 making him eligible for consideration for release to parole on 3 August 2025. There will be a parole period of 1 year and 10 months. That total sentence will expire on 3 June 2027.
3. Release date for Ms Pagett 3 May 2025. Release date for Mr Williamson 3 August 2025.
4. The two s 166 Criminal Procedure Act 1986 (NSW) backup matters will be withdrawn and dismissed.
5. The report of Dr Klamer and the report of Ms Murray‑Roach will be sent with the warrant to Corrections.

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