The offender relied upon a report of Dr Richard Furst, a forensic psychiatrist.
The offender is an indigenous Australian, with three siblings. He was previously involved in a de facto relationship of 4-5 years duration; which ended in 2016 or 2017. He has a 5-year old daughter from that relationship.
The offender grew up in Woodberry, experienced learning difficulties and manifested behavioural issues from an early age; which further hindered his education. He also had a difficult family upbringing: he informed Dr Furst that he was subject to physical abuse from his stepfather until he was 8 years old. He was unaware at the time that the step-father was not his biological father and records suggest that his real father left the family when the offender was young. The disrupted nature of his school attendance and education meant that he was placed in juvenile detention centres during his teenage years. He reported to Dr Furst that he was sexually abused whilst in juvenile detention. This, he says, had a significant effect on him in fostering a level of distrust in authority figures and people generally. This last assertion is supported by the circumstance that he has developed an interest in and has worked on a magazine, titled 'The Voice of a Survivor', which is a publication that serves the purpose of assisting people who have been sexually abused in their childhood. He has been incarcerated for various offences since the age of 12 and exhibited a pattern of recidivism.
Diagnoses of Attention Deficit Hyperactivity Disorder ('ADHD') and Oppositional Defiant Disorder ('ODD') were made in his childhood. He has been prescribed various medications since his childhood and is currently taking antidepressant medication.
He has also a lengthy history of drug use, taking cannabis from an early age and continuing throughout his teenage years. He has taken amphetamines from his early teens and taken ecstasy. The drug taking has continued through his 20s, with a level of addiction which included intravenous use of drugs and precipitated his engagement in drug-motivated offences such as robbery, breaking and entering and stealing.
There has also been a history of deliberate self-harm dating back to his later childhood and continuing through to January 2019, when he swallowed razor blades whilst in custody. He has also contracted Hepatitis C from sharing needles when using drugs intravenously in custody; for which he will require anti-viral medication.
As a result of all this, his employment history has been extremely limited.
On a brighter note, the offender told his psychiatrist that he has started a new relationship, having a current girlfriend. He has been working in custody as a sweeper in his wing and paints indigenous art.
[2]
Culpability
Dr Furst extensively reviewed documentation relating to the offender's days in juvenile centres and medical records from Justice Health regarding his mental health and medications in correctional centres.
In addition to the diagnoses of ADHD and ODD, Dr Furst considered that his pattern of offending and recidivism throughout the offender's teenage years suggested that he met the diagnoses of Conduct Disorder, Substance Use Disorder (relating to opiates, cannabis and methylamphetamines) and also a Personality disorder (with antisocial and borderline features).
Dr Furst identified that the offender's background from early childhood, through his teenage years and beyond led to deficits in his brain pathways caused by periodic traumas, abuse and neglect. Those deficits, coupled with poor role-models and criminal influences explain what he called a 'dysfunctional' lifestyle, impulsivity, interpersonal difficulties and persistent dependence upon drugs, and the current offending.
Counsel for the offender submitted that the principles in Bugmy v The Queen (2013) 249 CLR 571 are engaged. That is, the offender's deprived upbringing, which did not diminish materially over time, contributed to the offending and therefore reduced his moral culpability; and therefore the seriousness of the offending. Such a causal connection was established here having regard to Dr Furst's evidence of the variety of source events which generated childhood trauma which itself led to the exercise of poor judgment affecting the offender's conduct.
The Crown accepts that there is evidence from which the Court could conclude that the offender came from a background of childhood deprivation and neglect. But it points out that the offender agreed to involve himself in a civil dispute about property that had nothing to do with him; so that any reduction in his culpability because of that deprivation and neglect is limited in the circumstances.
I find that Bugmy principles are engaged here. These serve to moderate general and specific deterrence and lead the Court to accept that the offender's background contributed to his conduct. However, these principles do not all point in the offender's behaviour. As will shortly be remarked upon, the offender has an extensive criminal history in his past. Where that occurs, the mitigatory effect of childhood deprivation may be reduced in the sense that the offender's history reveals that he has not previously benefitted from earlier attempts at rehabilitation (and sentences affected by that particular consideration).Indeed, that past history may increase the significance of community protection as a matter to be taken into account: Bugmy at [44].
Also, it is passing strange, as the Crown observed, why the offender would insert himself in a dispute about someone else's property. There was nothing in the material furnished on the offender's behalf to explain the extent of the association or friendship with Ms Balcombe which might serve to indicate why he became involved in the first place. In the circumstances, I agree that any reduction in his culpability, through the application of Bugmy principles, is limited in the circumstances. I am also satisfied, as to probabilities, of a causal connection between the offender's background, drug use (and other ailments) and offending.
[3]
Antecedents
The offender has an extensive criminal history, involving relevantly property offences, breaking and entering, personal violence offences (including assault and intimidation) and damage to or destruction of property. The history does not elevate the objective gravity of the offending, but it does serve to diminish other mitigating factors and elevates considerations regarding retribution, personal deterrence and protection of the community.
The offender's Counsel accepts that his record does not entitle leniency, whilst noting that there was no prior history involving possession or use of a firearm. I accept that submission.
[4]
Guilty pleas
The offender is entitled to the 25% discount in light of his pleas to each of the Weapon Use and Property Damage threat offences.
No such deduction is available in relation to the conviction for the Firearm offence.
[5]
Remorse/contrition
In the sentencing hearing, the offender's Counsel placed before the Court an extensive (albeit unsigned) memorandum of instruction said to have been prepared by the offender. But none of it provided insight into the offending; as distinct from his demonstrable insight into, and empathy with victims of child sexual abuse.
The offender did, however, express to Dr Furst, remorse about the Weapon Use and Property Damage threat offences and told his psychiatrist that he did not go to the premises intending to hurt the victim. Again, in this hearing, he adopted as correct the information he passed to Dr Furst. He was not challenged on that evidence in the brief cross-examination. In the circumstances therefore, notwithstanding the care that a sentencing judge should exercise when evaluating out of court statements by an offender to a professional, the offender gave evidence that what he told Dr Furst was true. I accept that he is remorseful for the Weapon Use and Property Damage threat offences.
Notwithstanding his conviction for the Firearm Charge, the offender maintained his innocence, as was his right. As his Counsel conceded, there is no remorse or contrition in relation to this particular offence.
[6]
Likelihood of re-offending
Dr Furst set out in his report recommendations regarding the offender's future treatment. He also noted that he offender was taking the opioid 'Buvidal', which he noted had a demonstrable evidence-base of reductions in recidivism rates. He was not, however, asked about, and did not volunteer any opinion about, the offender's prospects of re-offending.
I take into account that, at least to some, albeit, limited degree, the offender has accepted responsibility for his conduct and regret for causing distress. That provides some basis for hope that he will not likely re-offend. But given the offender's background and extensive criminal history it cannot be said that the prospect of the offender not re-offending is anything higher than reasonable.
[7]
Prospects of rehabilitation
Some references were supplied to the Court. One was from a Director of 'the Voice of a Survivor', which confirmed the offender's involvement in the business affairs of that company which are directed to institutional responses to child sexual abuse. A similar reference was provided by the Director of Liberty Justice Group Pty Ltd.
In his memorandum of instructions, the offender referred (at paragraphs 179-181) to his desire to reunite with his daughter and referred to a job offer by an inmate whose father owned an asbestos company upon his release. In his oral evidence, he indicated an intention to start afresh, when he leaves custody. He spoke in positive terms of how his work has facilitated a sense of perspective in his past, which has assisted his general mental health.
Counsel for the offender pointed to the offender's encouraging progress whilst incarcerated, the offender's demonstrated capacity to address his opiate use and avoid further Hepatitis C viral infections. He further noted his purposeful art activities, and work as a sweeper. He suggested that his prospects of rehabilitation were 'good'.
I am somewhat less sanguine, in view of the offender's antecedents and background. They cannot be classified any higher than being reasonable.
[8]
Onerous conditions in custody
Counsel for the offender tendered evidence concerning the current effects of the Pandemic as they apply to persons under detention. The Crown did not dispute that the Pandemic has: (a) increased an inmate's risk of exposure (apparently more so in comparison to someone not incarcerated); (b) through the ban on personal visits, reduced one of the most important privileges to inmates; and (c) generated suspense and uncertainty. All of these things, individually, or in combination, were detrimental to an inmate's mental health. The point was to establish that a sentence of imprisonment would be more onerous than some other 'normal' sentence.
The Crown does not dispute, and I so find, that the offender will have suffered from the more onerous conditions imposed on prisoners as a consequence of the pandemic.
[9]
Time in custody
The offender has been in custody since 9 August 2019. As at 3 May 2021, the period of 1 year, 3 months and 21 days has been served in custody. However, with the balance of parole, there should be, it was submitted, a deduction of 22 days (9 August 2021 to 31 August 2021) to determine the period of pre-sentence custody solely referable to the offending conduct. The offender's Counsel submits that the period of pre-sentence custody solely referable to the conduct should be 1 year, 5 months and 21 days. This was what was submitted in written submissions.
The Crown submits that the Court should find that the offender has been in custody, solely referable to the matters currently before the Court, since 20 October 2019.
I prefer and accept the Crown's submission.
[10]
SYNTHESIS
I have had regard to general sentencing principles, identified in s 3A of the Crimes Sentencing Procedure Act 1999 (NSW) (the 'CSP Act').
I also have had regard to the maximum penalties for each of the offences, which provide legislative guideposts to the appropriate punishment, in the light of the objective gravity of the offending and the offender's circumstances.
Counsel for the offender correctly acknowledged the significance to be given to general deterrence, to recognise the harm done to the victim, to denounce the offending conduct and to punish the offender. That said, the significance of general and personal deterrence is moderated, to a limited degree, by the offender's background; which serves to diminish his culpability. Personal deterrence should be moderated somewhat further given his remorse (for two of the three offences), progress in custody and the need to avoid a crushing sentence.
It is common ground that the s 5 threshold has been crossed. As much has been acknowledged by the offender when he gave evidence.
The offender submitted that in the event that a sentence of imprisonment was imposed, special circumstances existed which warranted a variation of the ratio for the non-parole period. His Counsel identified a need to assist him to maintain abstinence from drugs and facilitate his transition to the community; imprisonment will weigh more heavily upon the offender, especially having regard to his various mental health concerns.
The Crown did not oppose that submission.
I accept and find that special circumstances exist principally on the basis of the signs that his rehabilitation would be assisted by a longer period on parole and the related circumstance that incarceration weighs more heavily on this offender. I accept also that close supervision under parole will be to his ultimate benefit; and to the community.
In one sense, the offending conduct here occurred as part of a single episode, directed against the same victim and on that account, there should be some not insubstantial notional concurrency. It was the offender's possession of the firearm that (partly) enabled the Weapon Use offence. There is further overlap between the use of the jerry can both to intimidate and also to threaten to destroy the property. All offences were each directed to achieving the singular result of forcing the victim to relinquish property which the victim genuinely claimed was his. But it is also the case that the nature of the threats were different, the offences were distinct (with separate elements) so that the aggregate sentence should also reflect some small notional accumulation to properly reflect the overall criminality. Finally, after taking into account notional concurrency and accumulation, the overall sentence will be assessed by reference to the totality principle; in order to avoid a "crushing" effect.
I agree with the offender's submission that the s 166W back up offences duplicate the offending in the offences on the indictment. The Crown did not take issue with the suggested approach. In the circumstances, those charges should be dismissed.
The indicative sentences (taking into account the pleas on counts 1 & 3) are:
Count 1 (seq 4) 3 years' imprisonment
Count 2 (seq 3) 1 year and 6 months' imprisonment
Count 3 (seq 5) 1 year's imprisonment
Mr Wilson, please stand. You are convicted on counts 1 & 3 on the indictment. I note for the record that on 18 September 2020 you were also convicted on count 2.
I sentence you to a term of imprisonment of 3 years and 6 months, commencing on 20 October 2019 and expiring on 19 April 2023. The non-parole period is 2 years and 1 month, which expires on 19 November 2021; after which you will be first eligible for release.
I further direct that these remarks and the report of Dr Furst dated 22 April 2021, be forwarded to Justice Health and those involved, within Corrective Services, for the supervision of the offender.
[11]
Endnote
The reasons for my finding are published as R v Wilson (No.2) [2020] NSWDC 549.
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: 13 May 2021
The Weapon Use offence is one that falls within the genus of personal violence offences under the Crimes Act 1900 (NSW). The offence in s 33B(1)(a) is one of a range of specific offences in a spectrum concerning the use of offensive weapons. In R v Perez (unrep, 11/12/91, NSWCCA), a case involving the driving of a vehicle towards police officers, Kirby P (with whom Gleeson CJ and Campbell J agreed) said at pp 20-21:
"The provision of the specific offence found in s 33B of the Crimes Act was obviously intended by Parliament to keep our community free of just the kind of conduct of which the jury convicted the appellant in this case …. Nothing else will mark society's disapproval of the objective features of such offences … Only by imposing severe punishment will courts reflect the seriousness which Parliament has attached to such offences by the specific provisions of s 33B of the Crimes Act. Only in that way may the message of deterrence be sent from the courts to people who are tempted to act as the appellant did.
This case plainly does not involve threats to use a weapon against police officers, or like persons in authority, on duty, but the general sentiments are in my view also applicable to the offending conduct here. By prescribing the maximum penalty, Parliament has indicated that the use of offensive weapons in civilised society is intolerable; no matter how much the offender who deploys the weapon may think it is justified to some justified end; in this case, helping a friend to resolve a civil dispute. The message is that 'might does not equal right'.
The brandishing of a firearm constitutes a serious form of the offence, even if the firearm is incapable of being discharged: R v Mostyn (2004) 145 A Crim R 304 at [187]. The jerry can was utilised opportunistically. In relation to that particular weapon, it could not be said that the offending involved pre-meditation.
A relevant consideration to objective gravity for this offence is whether the firearm was loaded (see Dean v R [2020] NSWCCA 317 at [37]). Consistent with my finding that the offender had a pistol in his possession, I find beyond reasonable doubt that he disposed with or discarded it; which meant that these details could not be ascertained. Whether or not the pistol was loaded and whether or not the offender had ammunition with him at the time of offending is a more vexing question. Whilst it is fundamental that sentencing proceedings are no less accusatorial in nature than trials (Strbak v The Queen [2020] HCA 10 at [32]-[33]), the possibility that the pistol was loaded would, heighten the objective seriousness of the offence just as much as the possibility that it was not loaded would reduce the seriousness of the offending. In my view, where a factual matter which would assist the offender needs to be established on the balance of probabilities (being the civil standard of proof), if the offender has put it out of his or her reach to establish proof, then the offender may fall short of establishing proof. I consider that this is the position here. This means that whilst the Crown cannot establish beyond reasonable doubt that it was loaded, it is also the position that the offender cannot establish, on the probabilities, that it was not. Ultimately the Court does not know whether or not the firearm was loaded or whether the offender had ammunition. (Filippou v R (2015) 256 CLR 47 at [64]-[70]), so that matter is neutral.
The least that can be said, however, was that the offender used the gun, and also the jerry can, to menace the victim. Further, as the Crown submitted, there was some element of planning, by bringing the firearm to the place in the first place.
The offender's counsel submitted that the offending conduct fell at slightly below the mid-range. The Crown submitted that it fell towards the middle-end of the range. I do not see any marked difference in the parties' positions. I find that the conduct fell at slightly below the mid-range for offending of this kind.
The Firearm offence (count 2, seq 3)
The circumstances of this particular offence are sufficiently indicated.
The objective gravity of the Firearms offence must be assessed by reference to the statutory objects in s 3 of the Firearms Act 1996 (NSW). In particular, s 3(1)(b)(i) of the legislation stipulates the object to improve public safety by imposing "strict controls" on the possession and use of firearms. This statutory objective has been violated here.
In R v Najem [2008] NSWCCA 32, RS Hulme J said, by reference specifically to s 7 of the Firearms Act, but in terms equally applicable to s 7A, at [40]:
"That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others [sic] rights."
The reference to prospective use of the firearm by RS Hulme J had been adverted to by Gleeson CJ in Thurgar v R (1990) 51 A Crim R 109, a decision which pre-dated the enactment of s 7A of the legislation but which nevertheless remains a guide for determining or assessing to determine the objective gravity of offending, since there are a range of circumstances in which a person might fall into possession of an unlicensed pistol. In Thurgar, Gleeson CJ said (at 113) that where the possession of the pistol is in connection with proposed criminal activity, this is "likely to be the kind of thing that would lead to the imposition of a penalty close to the maximum".
However, I agree with the offender's submission that the use of the firearm, including the threat, has already been factored into consideration of the Weapon Use count. I also accept that it was in his possession for a relatively short period (a mitigating circumstance) even if it was carried in a public place (a factor which is not mitigatory). Necessarily, there was some planning. The Crown submits that the offending fell below the mid-range and Counsel for the offender agrees; so do I.
A court dealing with the Firearms charge on indictment may have regard to the fact that the offence could have been dealt with summarily but only in the circumstances outlined in Zreika v R (2012) 223 A Crim R 460 at [107]-[109].
I find that this offending was below the mid-range of objectively serious offending for this category.
The threat to damage property offence (count 3, seq 5)
This offence was made out by the offender's threat to burn the house down, through the use of the jerry can containing fuel. The threat was partly verbal - the offender's declaration of his intent - and partly by conduct, by his picking up the jerry can and his approach to the front door, in the view of the victim and Corey Futcher.
There was no planning for this offence. The offender came upon the jerry can by happenstance. The offending was opportunistic.
The offending is aggravated by the circumstance that the threat concerned the victim's home and his apprehension that chattels belonging to him were likely to be in there.
Counsel for the offender submitted that the conduct fell below the mid-range of objective gravity. The Crown agreed. So do I.
I find that this conduct was slightly below the mid-range of objective seriousness for offending of this kind.
Generally, all of the offences were aggravated because of the circumstance that they occurred whilst the offender was the subject of a parole arrest warrant. He had had his parole order for an offence of robbery revoked as at 20 June 2019 by reason of his on-going failure to comply with a condition of reporting to a community corrections officer and inquiries of his nominated place of address indicated that he did not reside there. The Crown referred the Court to the decision of Turnbull v R [2019] NSWCCA 97 where observations were made (at [22] and [122]) that offences committed whilst an offender is at liberty following a revocation of parole are more serious than when committed when the offender is on parole. The Crown pointed out that the offender was on notice of the revocation of his parole; a matter he acknowledged in his police interview after arrest.
I accept that this circumstance aggravates the offending for each offence.