R v Savage [2020] NSWDC 398 | Case summary

District Court of NSW|2020-04-07

SENTENCE

HIS HONOUR: The offender is to be sentenced having pleaded guilty to the following two offences; that on 29 May 2019, at South Windsor, while in the company of another person, he detained Allan Nibbs, without his consent and with the intention of committing a serious indictable offence, namely intimidation and at the time of the detaining actual bodily harm was occasioned to Allan Nibbs.
That is an offence under s 86(3) of the Crimes Act and there is a maximum penalty of 25 years imprisonment. There is no applicable standard non-parole period.
The second offence is that on the same date, at the same place as the detaining offence, he drove a conveyance, namely a Mitsubishi sedan with a specified registration number, knowing that it was taken without the consent of the owner, Allan Nibbs.
That is an offence under s 154A(1)(b) of the Crimes Act. It has a maximum penalty of five years imprisonment and there is no applicable standard non-parole period.
The offender acknowledges his guilt in relation to a robbery offence which is on a Form 1 and asks that I take that offence into account when I sentence him on the detaining offence. The robbery arose out of the same incident the subject of the detaining offence.
There is also before me a sentence appeal concerning the offender. The offender appeals a sentence of 23 months imprisonment with a non-parole period of 15 months imposed in the Local Court for an offence of between 15 and 17 May 2019 he broke into and entered and stole from premises at 4 Zambesi Road, Seven Hills. There were various items of property stolen and in total they were said to have a value of $2,050. The Local Court imposed the sentence to commence on 24 July 2019. It currently expires on 23 June 2021. The non-parole period currently expires on 23 October 2020.

The Facts

The facts in relation to both the appeal and the sentence proceedings are agreed and the following is taken from those facts. I will deal with the appeal facts first.
The property that was broken into was the residence at 4 Zambesi Road, Seven Hills. The victim was the owner of that residence and they had been the owner for several months. The residence at the time was being renovated by the victim and his partner. It was largely left unattended, besides when work on the renovations were being done at the location.
At about 4.30pm on Tuesday, 14 May 2019, the victim attended the residence to put the bins out. During this time he locked and secured the house by ensuring each of the windows were closed and each of the doors were deadlocked.
At about 4.30pm on 15 May he attended the residence to pull the bins in and the residence appeared to be undisturbed at that time and he left a short time later.
Some time between 4.30pm on 15 May and 5pm on 17 May last year, the appellant moved a spare door to next to the hot water heater. He used some combination of the door and the hot water heater to access the bathroom window. He has removed the flyscreen from the bathroom window before forcing open the window itself. In doing so, he left a fingerprint on the exterior glass surface of the window. He entered the residence and, in doing so, left a palm print and fingerprint on the top surface of the bathroom basin.
He stole a number of items from those premises, including a Pavilion brand laptop, said to be worth $1,600; gold plated stud style earrings worth $80; a torch worth $30; and some other items particularised in the facts. The total value of the property stolen was estimated to be $2,050.
About 5pm on 17 May last year, the victim returned home to find the master bedroom at the front of the residence was open. The victim, on further inspection, found the removed flyscreen at the side of the residence and the door propped against the hot water heater. I have already indicated the appellant's fingerprint impressions were found at the premises when examined by forensic police.
In terms of the facts of the two offences for which he stands to be sentenced today, the victim in the matter is Allan Nibbs. The daughter of the co‑accused, a Brittany Fotheringham, and the victim knew each other and the victim regarded her as a friend. Ms Fotheringham had booked and paid for a room at the Windsor Motel from 28 May to 29 May 2019. The victim dropped a friend off in Wentworthville before driving to the Windsor Motel. The victim and Ms Fotheringham, in the early hours of 29 May last year, exchanged some text messages. The victim told Ms Fotheringham that he had arrived and she gave him directions towards the room and told him she was going to take a shower and that the key would be on the window sill, up the stairs and to the right.
As the victim entered the relevant room in the motel, he was grabbed by the front of his jumper by the co-accused who dragged the victim into the room and said that he was Ms Fotheringham's father, before hitting the victim in the head and on the back of his head. The victim was hit three to four times on the head before being thrown on the bed. He felt pain and was in shock.
The victim then saw this offender, Mr Savage, standing in the motel room, on the other side. The victim asked the offenders; "What have you got to do that for?" and in reply one of the offenders said, "Where's the drugs? Where's your money?" The victim said, "I don't have any money or drugs" and one of the offenders said, "Brittany", a reference to Ms Fotheringham, "said you were going to bring a ball", which the victim took to mean an eight ball of the drug ice, methylamphetamine. The victim responded that he did not have any and he was not going to be bringing Ms Fotheringham a ball of ice.
Both offenders then began hitting the victim and asking, "Where is it?" The co-accused struck the victim with a chrome coloured metal bar in the ribs, to the mouth and to the side of his head. The victim felt blood coming out from his head and dripping down his face. He tried to protect his head by covering it with his arms. The co-accused and this offender continued to hit him. The victim was in fear and felt pain and responded, "All right, all right, it's in my cigarette packet".
The co-accused reached into the victim's jacket pocket and removed his packet of cigarettes. He shook the packet upside down and a small satchel bag containing the drug "ice" fell out. The victim had apparently brought the drugs for himself and Ms Fotheringham to use. The co-accused picked up the small satchel bag and said, "There's not even three points" before kicking the victim on the right side of his head and face. The co-accused questioned the victim, about saying he would bring a ball for Ms Fotheringham and the victim denied ever saying he would.
At one point the co-accused took possession of the victim's car keys, house keys and bank cards.
Whilst they were in the motel room, the two offenders continued to attack the victim by hitting him on the head and body. He started to fear for his life. The co-accused said, "I should kill you", which naturally enough placed the victim in even greater fear.
The co-accused said to the victim at one point, "Come on, we're going back to your place now to get the rest of the cash and drugs", to which the victim replied, "I don't have any." The co-accused stood the victim up and picked up the victim's phone and said, "I'm keeping this. This is now my phone."
The victim was then walked out of the room by the two offenders. As he was walking out he saw Ms Fotheringham standing at a doorway to another room in the apartment, with two children standing behind her.
The victim was walked to his car which was parked outside and was told by the co-accused to get into the rear passenger seat. This offender then drove the victim's car with the co-accused sitting in the front passenger's seat and the victim sitting in the rear passenger seat. They drove a couple of streets away before stopping out the front of a Commonwealth Bank, where the co-accused tried to withdraw some money.
The victim believes he lost consciousness and the next thing he recalls was waking up in his car and they were in Penrith. He recognised the Commonwealth Bank on High Street and the co-accused got out of the car and attempted to withdraw money again before getting back into the car.
This offender then drove the co-accused Blair and the victim to Werrington and pulled up outside a double storey townhouse. Blair got out of the car and went inside, returning about five to 10 minutes later.
At one point in the night they also stopped at Kingswood, outside a block of flats. The co-accused left the car before returning and then this offender got out and went somewhere before returning to the car. The victim was too afraid to try and escape while he was alone in the car thinking that it might be a trap.
A person approached the car to speak to the co-accused and, seeing the victim in the car, asked, "What the fuck happened to you?" and the co-accused said "He's been feeding Brittany drugs."
Following this, the offender then drove the three of them along Northern Road, near Orchard Hills. They went to a 7-Eleven station where they parked and asked the victim again where his money and drugs were and whether there was any hidden in the car. He told them that there was not. Both the co-accused and this offender searched the vehicle thoroughly.
This offender returned to the car and they continued driving on the Northern Road, onto the M4 and headed towards the victim's house. When they got to the victim's house, they got out of the car. The victim asked for his keycard, licence and house keys back and they were passed to him.
The co-accused said, "Make sure you come and pay $1,000 a day for the next 15 days at Riverstone Pub at 7.30 at night. Don't be stupid and call the coppers or I'll just come back and kill you. You have kids in there too." The victim went up to the house, opened the door and went in with this offender. He told this offender to follow him to his room. This offender asked, "Where's all your money?" The victim said, "I don't have any. I don't have what you guys are looking for." The victim then remembered he had a bag of what is referred to as "jump" in the facts, apparently it is a substance you mix with "ice" to water it down and said, "What you are looking for is in there", whilst opening a drawer to his dresser. This offender put his hand into the drawer and removed a bag of cash and coins together with the bag of so-called jump.
There was $250 in notes and $15 in change and some cigarettes plus the "jump", which was then taken by this offender, who walked back out to the car where the co-accused was. The victim waited for a short while before going outside and waking a neighbour to call the police and the police were called around 5.34 in the morning.
The facts set out the total amount of property that was taken, the car was also taken which was worth about $2,000. The police attended the victim's house in the early hours of 29 May last year and they observed that he had a number of injuries to the face and upper left side of his head.
At around 7.05am that morning the police received a report of a vehicle fire at the intersection of Hobart Street and Hamilton Street, Riverstone. And when they attended at 7.30am they found the victim's Mitsubishi Magna in a burnt state.
As a result of the incident, the victim suffered cuts and grazes on his head that were painful, swelling and bruising to the eyes, loose and painful teeth and cuts and bleeding on the ear. He experienced pains in his back and rib areas. He was treated by an ambulance at his home that evening.
This offender was arrested on 4 June 2019 and the co-accused on 6 June 2019.
In so far as the detaining offence is concerned, there is a victim impact statement before me which details the impact the offending has had upon the victim, which was considerable and understandable, given the level of violence and the amount of time that was involved in the offences.

Assessment of Objective Seriousness

I turn then to my assessment of the objective seriousness of each of the offences.
In so far as the break, enter and steal offence, the subject of a sentence appeal, is concerned, I have had regard to the objective factors discussed in the guideline judgment of R v Ponfield (1999) 48 NSWLR 327, noting that the status of that decision has been questioned in TL v R [2017] NSWCCA 308 at [73].
Here there was little planning and little by way of damage to the property that was broken into. There is no suggestion that it was ransacked in some way. The items taken had some value and some would appear to have sentimental value to the occupants. There is no suggestion that the items stolen were recovered.
I assess the level of the objective seriousness of the break, enter and steal offence the subject of the sentence appeal to be below a notional mid-range level of offence but not at the very bottom of the range.
In terms of the detaining offence, there was clearly a joint criminal enterprise between this offender and the co-accused Blair. Whilst each participant in a joint criminal enterprise is equally responsible for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, a particular participant's level of culpability is to be assessed by reference to the conduct of that particular participant.
The agreed facts before me suggest that the co-accused Blair was more involved in the offence than this offender. It would appear that there was some planning by the co-accused Blair and that this offender's involvement was somewhat opportunistic. It was the co-offender who struck the victim with a chrome coloured metal bar, although this offender did strike the victim, but not with a metal bar.
The period of detention involved was around three and a half hours. The purpose of the detention appears to have been to steal drugs from the victim, in the main. The level of actual bodily harm was significant, in that the victim suffered cuts and grazes, bruising and loosened painful teeth, but not at the upper end of seriousness of actual bodily harm. The detention came to an end once the drugs were effectively stolen.
I assess the objective seriousness of the offender's detaining offence as being a little below the mid-range level of objective seriousness.
The vehicle that was stolen was a Mitsubishi Magna. It was eventually recovered but, of course, in a burnt out state, although I note there is no suggestion that this offender was involved in burning the vehicle. I assess the objective seriousness of that offence as a little below the mid-range of objective seriousness.

The Offender's Subjective Case

I turn then to the offender's subjective case. I have had regard to the following matters concerning the offender's subjective case in determining the outcome of the sentence appeal and the sentence proceedings.
The offender's date of birth is 5 July 1991, so he is currently 28 years of age. As an adult, the offender has had a significant criminal history, which disentitles him to leniency here.
In 2016 he received an aggregate fulltime custodial sentence for a number of offences, which included offences of larceny, stealing a motor vehicle and dishonestly obtaining property by deception. On 29 May 2018, in this Court sitting at Parramatta, he was sentenced to a term of imprisonment of two years and three months for an aggravated break and enter offence. That sentence commenced on 7 November 2017 and was to expire on 6 February 2020. The non-parole period was one of 12 months, which expired on 6 November 2018.
He was released to parole on 6 November 2018 but returned to custody on 22 May 2019, but was bailed the same day. It appears he was arrested for a goods in custody offence. He subsequently returned to custody on 4 June 2019.
The current offences were committed while on parole and on bail and that is an aggravating factor.
On 12 June 2019, his parole was revoked and he was sentenced to a balance of parole of eight months and nine days to date from 4 June 2019 and that balance or parole expired on 12 February 2020.
He has effectively been in custody solely in relation to the current matters since 12 February 2020. I will return to that issue when I impose sentence.
There is a sentencing assessment report and a report dated 31 March 2020 by Huda El Hassan, a provisional psychologist, the report also having been signed by Dr Peter Ashkar, a confirmed psychologist. In terms of the offender's family background, the reports describe him growing up with his parents and four siblings in the Baulkham Hills area. The psychologist's report records that he lived a very structured and pro-social lifestyle while growing up and he reported no history of domestic violence or abuse.
He is said to have had a close relationship with his family members and he is still supported by his parents. He has had one significant relationship which produced three children, with whom he is said to have a good relationship.
In terms of his education, he left school in Year 9 to complete an apprenticeship in floor covering and worked in that industry for some 10 years, until around 2015 when he first went into custody.
In terms of his use of prohibited drugs, he appears to have commenced using alcohol and cannabis around 15 years of age and began to smoke methylamphetamine in his early twenties, it would seem. He claimed to the report writers that he was under the influence of prohibited drugs as at the time of the offences and claimed to have little recollection of them.
The sentencing assessment report records his mother advising the author of that report that as a child the offender was diagnosed with a mild intellectual disability and was placed in specialised classes in his school years. Somewhat inconsistent with that report is the psychological report, which states that he appeared to be of average intelligence. The offender was not aware of any difficulties in reaching significant developmental milestones.
There is no formal evidence of an intellectual disability diagnosis before me and the offender said in evidence he did not know if he had been diagnosed as such when he was young.
The psychological report and the sentencing assessment report record that when he was 24 years of age he was kidnapped and struck with a wooden chair a number of times. He was hospitalised and brain scans, one of which is before me, showed damage to the frontal lobe of his brain and he was said to have difficulties with his memory and concentration. He confirmed those events when he gave evidence before me.
The psychological report does not provide a basis for concluding that, in some way, however, his brain injury was a causative factor in the commission of the offences.
The sentencing assessment report records that his initial response to supervision on parole in 2018 was satisfactory. There was then a steady decline in his response to supervision, no doubt as a result of his drug use, ultimately resulting in his parole being revoked.
The sentencing assessment report records him expressing empathy for the victim and remorse. He described his involvement in the offences that he is to be sentenced for as an attempt to impress his co-offender. That report assesses the offender as having a medium to high risk of re-offending.
The offender gave evidence before me and confirmed the contents of the sentencing assessment report and the psychological report, to the extent to which those reports contain background to the offender. I consider that the offender was an acceptable witness and, overall, I accept his evidence. Imposition of Sentence
The offender's pleas of guilty were entered in the Local Court and I will allow a 25 per cent discount of his sentence for the utilitarian value of his plea.
The offender expressed his remorse to the authors of both the sentencing assessment report and the psychology report. He also gave evidence before me about his remorse and his insight into the effect of his offences on his victims. I consider that the offender is genuinely remorseful in relation to his offences.
The offender also gave evidence as to how he has applied himself in custody, to working within the gaol system and to engaging with programs and courses that have been made available to him while in custody. I found his evidence to be very straight forward and I accept it.
At the present time he clearly appears to be motivated to turn his life around when he is next in the community. The test will be, when he is next in the community, can he leave his drug taking past behind him. Given his criminal history and the fact that the offences were committed while on parole and bail and the assessed risk of re-offending, the offender's prospects for rehabilitation are no better than guarded. Much will depend upon his ability to be rehabilitated from his addiction to prohibited drugs.
His difficulties with prohibited drugs suggest that he will need significant assistance with his rehabilitation when he is next released into the community. In these circumstances, I consider it is appropriate to make a finding of special circumstances in fixing the non-parole period. I also note that the sentence will be partially accumulated on the balance of his parole that he has served.
I noted earlier, he has been in custody since 4 June 2019 and that the balance of parole was served up until 12 February 2020. I note that the Local Court commenced the sentence the subject of the appeal from 20 July 2019, providing for partial accumulation upon the balance of parole.
I consider the Local Court was correct in providing some accumulation of the sentence imposed for the break and enter offence and the balance of parole sentence the offender has served. There should be some level of accumulation between the sentences imposed in relation to the sentence appeal and the sentences for the offences that occurred on 29 May 2019. There should be limited accumulation internally of the sentences for the offences on 29 May 2019. All of the offences that occurred that day arose out of the one incident and involved the one victim.
I do not consider the offence on the Form 1 has a significant impact on the sentence to be imposed on the detaining offence, as the robbery forms part and parcel of the detaining offence, in my view.
I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.
Break, enter and steal offences are, regrettably, very prevalent in our community and general deterrence must always be a factor when sentencing for such an offence. People ought to feel safe to leave their premises without the risk of the premises being the subject of a break and enter offence.
Similarly, detaining offences are prevalent, as are offences of stealing a motor vehicle. The community looks to the courts to impose sentences which are a real deterrent to the commission of such offences.
The offender's record is such that there is a need to have a component of personal deterrence reflected in the sentences.
The maximum penalty has been taken into account as a legislative guide post.
I will announce the result of the appeal first. I consider that an appropriate starting point for the break and enter offence, prior to the discount for a plea of guilty, is one of two years imprisonment. After the discount for the plea of guilty, there is a sentence of 18 months imprisonment and I fix a non-parole period of 11 months in relation to that offence.
That sentence and the non-parole period are to commence on 4 August 2019. The sentence expires on 3 February 2021 and the non-parole period expires on 3 July 2020.
The sentence appeal is therefore allowed and I vary the sentence imposed in the Local Court to be the sentence I just announced.
In relation to the drive conveyance taken without the consent of the owner offence, I consider that a starting point for the sentence, prior to a discount for the plea of guilty, is one of 18 months imprisonment. After application of the discount, there is a sentence of one year and one month. There is a non-parole period of eight months.
That sentence commences on 4 November 2019, the sentence expires on 3 December 2020. The non-parole period expires on 3 July 2020.
In relation to the detaining offence, having regard to the offence on the Form 1, I consider the appropriate starting point, prior to the discount for the plea of guilty, to be one of five years imprisonment. After application of the discount, there is a sentence of four years imprisonment.
I impose a sentence consisting of a non-parole period of two years and six months with a balance of term of 18 months. That is a total term of 4 years imprisonment. It commences on 4 January 2020 and expires on 3 January 2024. The non-parole period expires on 3 July 2022.
There is therefore, overall, including the appeal sentence, a total sentence of four years and five months and a total non-parole period of two years and 11 months.
The overall sentence commences on 4 August 2019 and expires on 3 January 2024. The non-parole period expires on 3 July 2022.
The earliest date Mr Savage will be eligible to be released to parole is the date of the expiry of the non-parole period, which is 3 July 2022. Whether he is in fact released on that date is a matter for the State Parole Authority which will no doubt take account of his behaviour in prison, in determining whether he should be released then or on another date.
So, in relation to the appeal then, I have allowed the appeal. The sentence has been varied to be one of 18 months with a non-parole period of 11 months. It is to commence on 4 August 2019. The sentence in relation to the appeal expires on 3 February 2021 and the non-parole period on 3 July 2020.
In relation to the drive conveyance offence then, there is a sentence of one year and one month with a non-parole period of eight months, commencing on 4 November 2019. The sentence expires on 3 December 2020. The non-parole period expires on 3 July 2020.
And in relation to the detaining offence, there is a sentence of four years imprisonment with a non-parole period of two years and six months, commencing on 4 January 2020, expiring on 3 January 2024. The non-parole period expires on 3 July 2022.
Sequences 6 and 7 are withdrawn and dismissed; they are on the 166 certificate.

Amendments 30 July 2020 - Case name amended to only reflect offender's last name. 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: 30 July 2020

R v Savage

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