168 A Crim R 41
Imbornone v R [2017] NSWCCA 144
R v Fidow [2004] NSWCCA 172
R v Jacobs (2004) 151 A Crim R 452
[2004] NSWCCA 462
R v Mills (unreported decision of the NSWCCA of 3 April 1995 per Cole JA)
R v Qutami (2001)127 A Crim R 369
[2001] NSWCCA 353
The Queen v Olbrich [1999] HCA 54
Source
Original judgment source is linked above.
Catchwords
168 A Crim R 41
Imbornone v R [2017] NSWCCA 144
R v Fidow [2004] NSWCCA 172
R v Jacobs (2004) 151 A Crim R 452[2004] NSWCCA 462
R v Mills (unreported decision of the NSWCCA of 3 April 1995 per Cole JA)
R v Qutami (2001)127 A Crim R 369[2001] NSWCCA 353
The Queen v Olbrich [1999] HCA 54
Judgment (9 paragraphs)
[1]
Background and Psychological Assessment
The offender did not give evidence, and his case on sentence was very limited.
As a consequence, what follows is largely derived from the report of Anne Lucas, Forensic Psychologist, who consulted with the offender on 12 December 2017 at the request of his legal representatives, and prepared a report for use on sentence (Ex. P1). Ms Lucas had access to medical records concerning the offender held by the Hunter and New England Local Area Health District, and a psychiatric report from Dr Sharon Reutens of 11 August 2017, neither of which are in evidence.
The offender grew up in the Newcastle area, living with his family and siblings in Housing Commission accommodation in circumstances of social and economic disadvantage. He complained of experiencing frequent assaults at the hands of his father, who was an alcoholic, and witnessing instances of domestic violence directed towards his mother. The family was not a close one and the offender felt unsupported.
He was frequently detained during childhood in juvenile detention facilities, and was perceived as a "trouble maker" at school. He fell in with a group of anti-social youths, including Jesse Nikolovski.
The offender told Ms Lucas that he had been diagnosed as a child with Attention Deficit Disorder, and later an Oppositional Defiance Disorder and learning difficulties. His intelligence was assessed as Low Average. Intervention was required during the offender's schooling to deal with problematic behaviour, including assaults.
The offender reported having used cannabis as a teenager, and alcohol to excess from about age 15. He began using methylamphetamine from age 21, continuing to use that drug for about 2 years, with a significant daily habit in that period, reported as between 1 to 2 grams. There is a suggestion that he has also used heroin.
At age 17 the offender left home, taking up residence with Amber Stewart. The couple remained together until the offender was incarcerated in 2015. They have two children, now aged 4 and 3 years of age respectively. Ms Stewart retains the care of the children. There is no evidence as to what if any contact the offender has with his children.
In 2014 the offender was involved in a motorcycle collision, fracturing his right leg. Surgical repair was necessary and there is said to be ongoing pain and mild impairment in function, although there is no medical evidence of that.
The offender has been treated in the past for depression.
On assessment, Ms Lucas thought that the offender displayed appropriate attention to personal grooming, and his communication and interpersonal interaction was also appropriate. The offender answered questions logically, gave a clear chronology of events, and was fully oriented.
He became distressed when discussing his incarceration and Ms Lucas considered that the offender's presentation was consistent with depression. He has some mild insomnia. Having administered tests designed to measure personality and psychopathology, Ms Lucas concluded that,
"45. Overall the clinical profile suggested that Mr Petryk experiences embittered pessimism. He tends to attribute negative circumstances occurring in his life to the shortcomings of others. It was noted that the considerable anger and resentment he reported in the PAI appears to be directed as much to himself as it is to others.
….
47. Mr Petryk endorsed items on depression subscales indicating difficulties consistent with a significant depressive experience. The quality of his depression seemed primarily marked by cognitive features such as negative expectancies and low self-esteem. He endorsed items indicating frequent feelings of worthlessness, hopelessness and personal failure. Mr Petryk did not report any distress from thoughts associated with the presence of suicide or self harm at this time.
48. He endorsed a number of problematic personality traits with his responses suggesting that a major problem for him are his interpersonal relationships. He appears to have had a history of involvement in intense and volatile relationships and indicated that he is preoccupied with consistent fears of being abandoned or rejected by those around him.
49. His personality style also involves a degree of adventurousness and risk-taking. A number of responses indicated that he has a history of antisocial behaviour which manifested as conduct disorder during adolescence."
The offender's use of illicit substances and alcohol was regarded as problematic.
Ms Lucas "suggested" diagnoses of Anti-Social Personality Disorder / Borderline Personality Disorder, Multi-Substance Misuse Disorder, and a Major Depressive Disorder.
The offender's cognitive function was measured as falling below 92% of his peers when considered overall, although verbal skills were slightly lower, and perceptual reasoning skills rather better. His General Ability Index Score placed him in the low average band. He is not intellectually or developmentally disabled.
Ms Lucas concluded,
"85. Psychologically Mr Petryk appeared to be an individual who has difficulties in his relationships with others, but who craves close relationships. He provided an account in which he maintains much of his criminal behaviour has been a consequence of wanting to please others (criminal associates) so they will like him. He presents with low self esteem and an externalising predisposition where he believes his fortunes are dependant [sic] on the behaviour of others. His failure to take responsibility, a theme throughout this assessment, appears to be an extension of these factors."
Since Ms Lucas' opinion is dependent to a considerable extent upon the untested self-report of the offender a degree of circumspection concerning it is necessary: R v Qutami (2001)127 A Crim R 369; [2001] NSWCCA 353 at [58] - [59]; Imbornone v R [2017] NSWCCA 144 at [57]. However, there is nothing particularly controversial in what the offender told Ms Lucas; indeed, it is much as might be expected for an individual with a criminal record like that of the offender. In the circumstances here, there is no real reason not to accept Ms Lucas' opinion.
Ms Lucas does not suggest that anything in the offender's psychological makeup is of direct relevance to the commission of these offences, or that anything in his current situation will have a material impact on his immediate future. As a general proposition it is reasonable to conclude that the dysfunctional nature of the offender's earlier lifestyle, and his abuse of alcohol and illicit drugs, contributed to the choices he made in March 2015.
[2]
Remorse
As is acknowledged by the offender in submissions, he entered pleas of not guilty to each charge and maintains that he is not responsible for Mr Parry's murder. He told Ms Lucas that he obtained a gun, but only at the insistence of a friend. In those circumstances there is no remorse.
[3]
The Prospects of Rehabilitation
The offender's history is one of failing to take advantage of opportunities for assistance offered to him by sentencing courts, and continuing in a criminal lifestyle.
Ms Lucas observed that the offender blamed his criminal past on his wish to please others. She noted that his failure to take responsibility for his life was a "theme" during her assessment of him. The offender's only comment about his crimes was to displace responsibility for obtaining a firearm on 7 March 2015 onto his friend.
He has incurred relatively recent institutional penalties, suggesting that his current situation has not motivated him to change his behaviour.
Ms Lucas considers that the offender would benefit from rehabilitative programmes directed to substance abuse, mood dysregulation, and anti-social cognitions, and I do not doubt that that is so. What the offender may make of such programmes, however, will be a matter for him. I am unable to draw any conclusions as to his interest or willingness to participate in rehabilitative activity, or to reach any concluded view as to his prospects of rehabilitation. They must be considered guarded at best, particularly in circumstances where there has been no acknowledgement of wrongdoing.
[4]
Deterrence
Offences of armed robbery are not uncommon offences, but the danger associated with such crimes, particularly where a loaded firearm is the weapon of choice, cannot be understated. There is a strong need for the sentences imposed on offenders by this Court for offences involving the killing of an individual by a robber using a gun to constitute an appreciable deterrent, to the offender, but also to others.
In R v Mills (unreported decision of the NSWCCA of 3 April 1995) Cole JA said:
As the trial judge made clear, taking a loaded firearm and using it as a threat whilst in the course of committing a serious felony is a most serious matter. It is to be greatly discouraged by sentences of this Court.
There is nothing in the offender's subjective case which would make that principle any less applicable to him.
Specific deterrence is also an issue, although not one of great significance in the absence of a history of the commission of violent offences or offences of robbery.
[5]
Special Circumstances
Although acknowledging that the ordinary statutory ratio of the sentence imposed upon the offender will allow for a lengthy period of parole, the offender submits that there is a basis for a finding of special circumstances pursuant to s 44(2) or (2B) of the Crimes (Sentencing Procedure) Act. I accept that there is a basis for such a finding, but do not accept that the finding should be made.
Ms Lucas is of the view that the offender would benefit from assistance with rehabilitation and therapy directed to the disorders she has suggested the offender may suffer from. However, there is no basis in the evidence for a conclusion that the offender would take positive advantage of a longer than usual parole period to rehabilitate himself. The circumstances overall are not in my view particularly special such as to justify the finding: R v Fidow [2004] NSWCCA 172 at [22]. In any event, the ordinarily applicable parole period will provide a sufficient time to facilitate the offender's reintegration into the community.
[6]
The Structure of Sentence
As the Crown properly conceded, whilst the foundational offence of robbery whilst armed with a dangerous weapon was separately charged to the offence of murder, it is appropriate for there to be complete concurrence between the sentences imposed for each offence.
The criminality of the offence of murder wholly subsumes that of the foundational offence, and the sentence imposed for it is capable of wholly reflecting the s 97(2) offence: Cayhadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].
I consider an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act to be appropriate.
[7]
Commencement Date
The Crown argues that there is no reason to commence the sentences for these matters any earlier than 3 April 2016, since until that date the offender was serving the non-parole period of a sentence imposed upon him for unrelated offences. The offender argues that his sentences should have at least a degree of concurrence with the earlier sentence.
Only the principle of totality could require any degree of concurrence between the sentences to be imposed for these matters, and the sentence the offender was serving between his arrest in July 2015 and the expiration of the non-parole period in 2016. There is no commonality between the offences, and the fact that the offender was subject to conditional liberty for some of them at the time of Mr Parry's murder would tend to suggest concurrency is inappropriate.
Of most significance is that the earlier sentence was very modest. My concern is that to backdate the sentence for these offences to a date prior to 3 April 2016 is to effectively reduce an already lenient sentence to one that would completely fail to reflect the gravity of the crimes. The length of the earlier sentence is so short that there can be no real concern about the totality of sentence being excessive to the totality of criminality. I propose to commence the present sentences on 3 April 2016.
[8]
Sentence
The offender is convicted of the offences of murder, and robbery whilst armed with a dangerous weapon.
For those offences the offender is sentenced to an aggregate term of imprisonment of 26 years to date from 3 April 2016 and expiring on 2 April 2042. I specify a non-parole period of 19 years and 6 months, expiring on 2 October 2035.
The sentences that would have been imposed had separate sentences been fixed are:
1. Murder: 26 years imprisonment;
2. Robbery whilst armed with a dangerous weapon: 8 years imprisonment.
The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.
[9]
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: 19 February 2018
HER HONOUR: By all accounts Robert Parry, one of a large family, was a much loved man. He lived with his father in Wickham, and much of his time was spent in caring for his father, who in 2015 was very ill.
In the early hours of 7 March 2015 Mr Parry disturbed three intruders who had entered his home intending to take drugs or money. He was shot at close range by the offender, Daniel Petryk. The offender stands before the Court today to be sentenced for Mr Parry's murder, together with the related offence of robbery whilst armed with a dangerous weapon.
When arraigned upon indictment for these offences on 18 September 2017 the offender entered pleas of not guilty. He was found guilty by the jury of each charge on 23 October 2017.
Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum sentence of life imprisonment, together with a standard non-parole period of, relevantly, 20 years imprisonment. Armed robbery with a dangerous weapon is an offence contrary to s 97(2) of the same Act, and carries a maximum penalty of 25 years imprisonment. No standard non-parole period is applicable to it.
The facts of the offender's crimes must be determined by the Court, consistent with the verdict of the jury. In so doing, any fact adverse to the offender must be proved beyond a reasonable doubt: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at [27].
The Crown's case for murder was advanced before the jury on two alternative bases, either of which was capable of sustaining the verdict that was returned. The first was that of principal liability, requiring the jury to be satisfied to the criminal standard that the offender deliberately discharged the rifle he was armed with, that his act caused Mr Parry's death, and that the offender intended to do him at least grievous bodily harm. The second basis was that of constructive murder, requiring the jury to accept to the criminal standard that the offender committed the offence of armed robbery with a dangerous weapon and, at the time of its commission, voluntarily discharged the rifle, causing Mr Parry's death.
Since the Crown's case relied to a significant extent upon the evidence of Phoebe Bronner and Jeremy Gorman, both of whom were criminally involved in the relevant events, the evidence of each must be subjected to careful scrutiny before it can be accepted, particularly bearing in mind that each received a benefit in exchange for testimony at trial. The benefit that accrued to Ms Bronner - an indemnity against prosecution - was a very significant one. In addition, Ms Bronner was, until some months after the shooting, in a relationship with Jesse Nikolovski and, it might be supposed, may have had some lingering loyalty to him both when she spoke with police and even when she gave her evidence; she had no reason for any loyalty to the offender. This may have affected the reliability of the evidence she gave.
Having very carefully considered her evidence, I accept that Ms Bronner may have sought to minimise the force of some aspects of the evidence that could have been particularly adverse to Jesse Nikolovski. Where that was or may have been an issue I have concluded that she did so by asserting memory loss, or by attributing a greater role to herself than to her then partner. There is no real basis to conclude that she exaggerated the role of the offender. Her evidence about him has been generally consistent over time, and it sits with other evidence independent of her, including that of Jeremy Gorman.
The Court has found the facts of the offences to be as follows.
The Gravity of the Crimes
The gravity of the offence of murder, and the reason the legislature has specified a maximum penalty of life imprisonment for it, is in the taking of a human life.
Liability for murder can arise in many different ways. It is necessary in this case to consider the basis of the offender's liability for the crime.
There is strong evidence upon which to conclude that the offender deliberately shot Robert Parry, intending at the time to do him really serious bodily injury, probably with the object of ensuring that he could both take the property he had come to steal, and escape unimpeded.
Having regard to the jury's verdict, its members accepted that the offender acquired the gun, had it in his possession during the early hours of 7 March 2015, replaced the bolt and loaded the weapon, carried it into Mr Parry's house and, when confronted, raised it, pointed it in Mr Parry's direction and discharged it.
The likely consequences of such an act are so obvious that it could readily be concluded that the offender must have intended to do really serious bodily injury. I do not accept the offender's submission that there was a degree of inadvertence in his actions. On the contrary, the deliberation required in carrying out the steps preparatory to discharging the gun, and then discharging it, coupled with his comments about shooting in the belly so as not to kill, could bespeak an intended consequence.
The offender's comments to Ms Bronner and Jesse Nikolovski in this regard are of particular relevance, as is the way in which, on the evidence of Ms Bronner, the comment was made. In recounting his assurance that the occupant of the Dickson Street house would not die, this evidence was given.
Q: Any discussion about the health or otherwise of the man that had been shot?
A: Yeah.
Q: What was said about that?
A: Daniel said that he wouldn't die.
Q: Daniel said, that's Mr Petryk said that he wouldn't die?
A: Yep.
Q: Did he give any reason as to why this man was not going to die?
A: He said he shot him in the belly so he wouldn't die.
Q: Shot him in the belly so he wouldn't die?
A: Yep.
The almost irresistible conclusion on that evidence, its syntax and the emphasis given in the spoken word, was that the offender had chosen to shoot Mr Parry in the stomach, believing that a bullet to the abdomen would not kill him. That may be a naïve view, but it is open to accept that the offender genuinely held it.
The intention of the offender in carrying a loaded firearm into the premises is relevant: he told Ms Bronner and Jesse Nikolovski that he meant to use the gun only to scare. Whilst intentions can alter, soon after the shooting the offender assured the others that he had shot the man in the belly and he would not die. Finally, later on the morning of 7 March 2015 when the offender saw the news story about the shooting when he was at the Kennedy / Osmund home, he asserted that the man had been injured and not killed.
All of that evidence - some of which is independent of Ms Bronner - supports the conclusion that, in shooting Mr Parry, the offender discharged the gun with the intention of seriously harming him so that he could complete the robbery and escape.
However, the Crown does not ask the Court to draw that conclusion, submitting that the basis of liability for murder established by the evidence is constructive murder. In light of that submission, I propose to sentence the offender on that basis.
That is not to conclude however that the offender's crime is thereby less serious. In R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 at [332] Wood CJ at CL said:
Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender's conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.
In the circumstances of this offending there could be no real distinction drawn between the seriousness of the crime on the basis of constructive murder or its seriousness on the basis of shooting with an intention to inflict grievous bodily harm.
The offender conceived of the plan to steal property from the Dickson Street house, robbing any occupant by threat of arms and numbers.
Notwithstanding the evidence of Ashley McKeown (which I regard as false) I am satisfied that, through the association between Mr Parry and Ms McKeown and Luke Enderby, the offender was aware that a man lived at and sometimes sold cannabis from 12 Dickson Street. He targeted that premises because of that knowledge.
He sought out and obtained a firearm which he knew or believed to be in working order. Having obtained the gun in circumstances where the bolt was separate, he replaced the bolt and loaded the gun, such that the gun was able to be immediately fired.
The offender sought instructions from Jeremy Gorman as to the use of the gun, suggesting that he contemplated its possible use.
He suggested the robbery to Phoebe Bronner and Jesse Nikolovski, and enlisted their participation in it. The foundational offence was committed in company with them.
Having obtained a gun with which to arm himself, the offender also passed an axe to a co-offender for use in the robbery, such that two potentially lethal weapons were used.
The offender was aware that the targeted premises at Dickson Street was a domestic residence. He knew as much from his sister and former brother-in-law, and the house additionally was in what is plainly a residential street. Together with Bronner and Nikolovski the offender invaded what should have been the peace and security of the Parry residence to commit the robbery.
The foundational offence was a premeditated one.
Although the armed robbery was planned, the act of shooting Mr Parry was a spontaneous response to the situation that arose when Mr Parry confronted the offender.
It nevertheless involved the intentional acts of producing the gun from its place of concealment (probably within the offender's clothing), raising it to a broadly horizontal position, aiming it towards Mr Parry at relatively close range, and discharging it.
Whilst there is no evidence that the offender was aware of this, Robert Parry was more vulnerable than a non-hearing impaired person because of his hearing disability. Bearing in mind that he walked into his lounge room still carrying a drink, it is entirely possible, if not probable, that he had not heard the entry of the intruders, and was unaware of their presence until confronted by the gun wielding offender.
During the course of the commission of the offences, the offender threatened Alan Parry, an elderly and vulnerable man.
The property of which Robert Parry was robbed was of limited value, consisting of a small quantity of cigarettes and a small amount of cannabis. Based upon the text message Mr Parry sent to a friend at 1:28am on 7 March 2015, and the later discovery of one bag of cannabis leaf near Mr Parry's body, the stolen cannabis was worth, at most, $50.00. The cigarettes were probably worth considerably less than that. That a man could be killed for such property is deeply shocking.
The crime of murder can occur in an incalculable number of ways, with liability advanced on differing bases within that species of offence. Here, a young man who has lived a drug addicted life armed himself with a gun, which he deliberately assembled and loaded, for the purpose of entering a home and, if necessary, threatening the resident to hand over cannabis. In pursuit of that aim a man was killed, in his own lounge room, in circumstances where the victim's elderly father was both threatened, and confronted with the horror of his son's murder. There is no real distinction to be drawn between these circumstances and that which pertains to a shooting with intent to cause at least grievous bodily harm.
Insofar as it is necessary to express it in this way, I have concluded that this instance of murder falls in the middle of the range of objective gravity applicable to all offences of murder.