R v Peter James DAY

District Court of NSW|2010-02-02

CITATION: R v Peter James DAY [2010] NSWDC 40

HEARING DATE(S): 1 -2 February 2010 5 February 2010

DECISION: The offender is sentenced to imprisonment. It is to date from 20 November 2010. I set a non-parole period of five months with a period of eligibility for parole of sixteen months making a total sentence of twenty-one months. The offender is to be released to parole on 19 April 2011.

CATCHWORDS: CRIMINAL LAW - Sentence - Recruit a child to carry out criminal activity

Crimes Act 1900 LEGISLATION CITED: Crimes Amendment (Gang and Vehicle Related Offences) Bill Crimes (Sentencing Procedure) Act 1999

PARTIES: The Crown Peter James Day

COUNSEL: Mr E Balodis - Crown Mr W Flynn - Offender

SOLICITORS: Director of Public Prosecution Matouk Joyner Lawyers - Offender

1 HIS HONOUR: Peter James Day appears for sentence today after having pleaded guilty, only a few days ago, to an offence that between 1 May 2004 and 15 August 2004 he recruited a man by the name of AC to carry out criminal activity. The indictment alleges that AC was then a child. That is accurate because he was at the time only seventeen years of age.

2 The circumstances of that offence are very closely related to the circumstances of another offence committed by Mr Day some time after the offence for which he is to be sentenced today. That later offence was the subject of a trial before me earlier last year. Mr Day was convicted of an offence of breaking and entering in company with intent to commit a serious indictable offence; namely to intimidate a man by the name of SA. It was the intended terrorising and assault of SA which led to Mr Day recruiting Mr AC.

3 When sentencing Mr Day for the other matter, I made a number of findings of fact both as to Mr Day's subjective circumstances and the role of various people in the later offence. It is agreed by the Crown and Mr Flynn who now appears for the accused that there is before me no material to indicate that I should not make similar findings of fact today. Thus it is not necessary for me to repeat my conclusions and the reasons for them. But anyone reading these remarks on sentence will need to read my earlier remarks on sentence in order to understand the reasons for the sentence I am about to impose. Those earlier remarks on sentence are to be found on the Internet on the Caselaw website at R v Day [2009] NSWDC 359.

4 With these preliminary matters out of the way let me turn to the facts of the present matter. The offender met a woman by the name of RM. She was a person who was prepared to manipulate the offender for her own purposes. The offender believed that he was RM's boyfriend at one stage and was in love with her. RM took advantage of the feelings that the offender had for her and took advantage of the offender's need for social contact with her in various ways. For example, she enlisted the offender's assistance in leaving her family after she complained of the way she was treated by them. She also obtained the offender's assistance when she decided to leave Australia to marry SA in Jordan without her family's knowledge.

5 Upon her return to Australia, in February 2004, there was some tension between RM and her husband on the one hand and her family on the other. The offender assisted RM and SA to obtain accommodation and visited their flat on one or two occasions. He also employed RM at a mobile telephone store which he operated. At this stage RM began complaining about domestic violence at the hands of her husband. I am satisfied from the evidence that what RM complained of was genuine. But that does not really matter. What is perhaps more important was that the offender believed what RM was saying to him.

6 He, as a person still in love with RM, wanted to protect her. To this end he spoke to a person who he knew by the name of AC. The offender had met AC some years earlier when they worked at an electronics store together. Although the offender did not know it, AC was far from an innocent child. In December 2003 he had committed an armed robbery in company, during the course of which his accomplice stabbed and killed the attendant. This later led to AC being sentenced for murder. Although the offender did not know precisely this, he did know that AC was a violent person. In fact he thought he was the most violent person that he knew.

7 It was the offender's plan that AC would stand over or threaten SA in order that he would leave the marriage, and indeed leave Australia, thus removing the threat of domestic violence from RM. The offender had much contact with AC from May 2004 to August 2004 in which he recruited AC to do what he wanted. In fact AC never had any intention of doing what Mr Day wanted him to. He pretended otherwise however in order to obtain money from the offender. Eventually the offender paid a total of $14,000 to AC; which indicates the seriousness with which the offender took the plan.

8 The basis of the plan was this, AC was to go to the flat where SA lived with RM while the latter was not there. He was to be armed with a pistol and threaten SA with dire consequences, using the pistol, in order to have SA leave RM and leave Australia. The plan included AC hitting SA with the pistol to his head in order to back up the threats that he was making.

9 In the months leading up to August 2004 There was much contact between AC and offender. AC was fobbing off the offender and advancing reasons why he had not yet carried out the plan and also, when he could, getting further money from the offender. Eventually the offender realised that AC had no intention of carrying out the plan.

10 I gather that this offence came to light when police were investigating the murder for which AC was later sentenced. Intercepted telephone calls revealed the discussions between Mr Day and AC in which although a code was used, it was apparent that the offender and AC were planning the commission of some offence of violence.

11 As I began these remarks on sentence the offender pleaded guilty to an offence of recruiting a child to carry out criminal activity. That is a comparatively new offence inserted into the Crimes Act only relatively recently. It was inserted by the Crimes Amendment (Gang and Vehicle Related Offences) Bill. The second reading speech explains the purpose of the section. It is incorporated in Hansard and I will read three paragraphs: "Item [15] inserts section 351A in the Crimes Act containing a new offence of recruiting children to engage in criminal activity. The offence will carry a maximum penalty of 10 years imprisonment.

As the Premier has stated previously, one of the most insidious organised gang activities reported in the media has been the targeting of children to commit serious crimes. The use of children as drug couriers is just one example. This type of activity may well be the start of a career in crime and gang membership.

The new offence of recruiting children for the purposes of committing a criminal act clearly targets those adult offenders who prey upon children and initiate them into gang culture at an early age."

12 A comparison of the circumstances which parliament considered this offence was targeted at and the present offence reveals some disparity between the two. For example, Mr Day is not a gang nor a member of a gang. AC was not recruited by Mr Day in such a way that it was the start of a career in crime and gang membership. He had, as I have said more than once already committed a murder, albeit unknown to the offender, at the time he was recruited. Although AC was recruited in terms of the section, he never planned to do what the offender asked him to. AC was only barely a child as that term is used in the section.

13 The maximum penalty for the offence is imprisonment for ten years and of course that is reserved for the worst case of such an offence. In assessing the appropriate penalty for this matter I of course look at the maximum penalty as a benchmark. At the risk of repeating myself, the following circumstances suggest that the present offence is very much at the lower end of the scale of such offences.

14 AC was not an innocent child. He never intended to carry out any criminal activity. On the other hand the activity which the offender intended to be carried out was of serious kind. The plan involved both terror and actual violence being inflicted on SA.

15 In assessing the appropriate penalty for the present matter, I have to bear in mind that this offence was committed in 2004 and it is now 2010. The offender was a much younger person in 2004; he was twenty-one; not hugely different from the age AC was. This is not a case of the offender performing a Fagin-like role which is perhaps what the section was intended to cover, primarily at least. Indeed it is almost an irrelevant accident that AC was only seventeen at the time.

16 The delay in the matters being dealt with to finality were at least partially due to delay in charging. Police became aware that something was up, as I have mentioned, when they came across conversations between the offender and AC many years ago. However another part of the delay is due to the fact that until recently this was to be a defended matter, the offender being charged with an offence of soliciting the murder of Mr SA; a charge he has consistently denied. On Monday he pleaded not guilty to such an offence but guilty to the alternative, that plea being accepted in full satisfaction of the indictment by the Crown. That gives rise to the question of the appropriate discount to the plea of guilty. It is not an easy discount to quantify.

17 The Court of Criminal Appeal requires that I take into account that the outcome in which the offender pleaded guilty to the offence for which he is to be sentenced was achieved through negotiations with the Crown. On the other hand Monday was the first opportunity that the offender did have to plead guilty to something he admits doing. I gather that the only charge advanced by the Crown up until very recently was the charge of soliciting Mr AC to murder SA.

18 I have to also take into account that as part of the offender's defence and at his request I held a Basha inquiry in relation to this matter and there was some argument involved in some subpoenas which had to be resolved. These of course were legitimate tactics given the seriousness of the charge that the offender faced. As I said it is not easy to quantify the discount for the plea of guilty in this case given the various circumstances. Doing the best I can I intend to impose a sentence which is approximately fifteen per cent less than it would otherwise have been.

19 The offender has been in continuous custody since 20 May 2009, firstly in relation to some fraud matters, then in relation to the matter for which I sentenced him last year. If the offender is to receive a custodial sentence for this matter, then the circumstance that he has been in custody from 20 May is very relevant both to the issue of totality and the issue of special circumstances.

20 However it was Mr Flynn's submission that the offender should not be dealt with by way of a custodial penalty at all; instead I should release him under a bond either under s 10 or s 9 of the Crimes (Sentencing Procedure) Act. In my view the objective criminality of the offender's conduct is such that a bond would fail to reflect what the offender did. Even given the circumstances of this offence that I have referred to earlier, the offender's intention was that Mr SA would be both terrorised by a person armed with a pistol and struck in the head with that weapon.

21 The offender did not make simply one approach which he then immediately regretted but was in almost constant contact with AC over the months between May and August 2004, attempting to get AC to do what the offender wanted him to. The offender was very serious about this too, as is evidenced not only by the payment of money but perhaps also by the fact that after this attempt to intimidate SA failed the offender later engaged others to carry out the offence for which I sentenced him last year.

22 I should also mention that, as is referred to in my earlier remarks on sentence, the offender has assisted the authorities. I will not quantify the discount that I will apply because of that in the present case but will say that I have kept it in mind, taking into account on the other hand that he has already got something of a discount for that assistance already. It is not the law that a person only gets a discount for assistance once but nor is it the law that having assisted the authorities an offender can, into the future commit offences and expect to get the same discount for that assistance.

23 The offender says that he is remorseful for what he did. I accept that there are prospects of rehabilitation. Indeed it is to be hoped that the fact that the offender has served gaol sentences for his various offences will play a significant part in persuading the offender to think carefully about his future conduct upon his release from gaol.

24 I am unable to find that those prospects are good. The offender has displayed in the past some worrying and disturbing behaviour bordering on the obsessional. Only time will tell whether he is able to look at matters in a different light in the future. Having decided that a custodial sentence must be imposed for this matter, having looked at the objective criminality and the subjective circumstances in the present case and having considered the principle of totality, I have decided to impose the following sentence.

25 The offender is sentenced to imprisonment. It is to date from 20 November 2010. I set a non-parole period of five months with a period of eligibility for parole of sixteen months making a total sentence of twenty-one months. The offender is to be released to parole on 19 April 2011.

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