R v Achurch

[2020] NSWDC 312

District Court

New South Wales

Medium Neutral Citation:	R v Achurch [2020] NSWDC 312
Hearing dates:	10 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 8 years with a non-parole period of 6 years.
Catchwords:	CRIME - SENTENCE - robbery armed with a dangerous weapon - firing a firearm in a manner likely to injure persons - assault with intent to rob, armed with a dangerous weapon - use an offensive weapon with intent to commit and indictable offence, in company
Legislation Cited:	Crimes Act 1900 (NSW): ss97(2) and s93G(1)(c)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; Bugmy v The Queen (2013) 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Dean Achurch (Offender)
Representation:	Mr Carnell (ODPP Campbelltown) Mr Shridhar (Counsel for the offender)
File Number(s):	2019/31264
Publication restriction:	Nil

Judgment

1. Dean Achurch, you appear for sentence today in relation to two principal offences.

2. First, an offence of robbery armed with a dangerous weapon (sequence 1). This involves a contravention of s97(2) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is no standard non-parole period. Although there is no standard non-parole period, there is a relevant guideline judgment of R v Henry (1999) 46 NSWLR 346.

3. Secondly, an offence of firing a firearm in a manner likely to injure persons (sequence 2). This involves a contravention of s93G(1)(c) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.

4. In relation to each of these principal offences, you have asked me to take into account a matter on a relevant Form 1 which I have certified.

5. In relation to sequence 1, the relevant matter is assault with intent to rob, armed with a dangerous weapon (sequence 4). And in relation to sequence 2, the matter is use an offensive weapon with intent to commit an indictable offence, in company (sequence 5).

6. The facts relevant to the two principal offences and the two matters on the relevant Form 1 are contained in a document entitled “Statement of Agreed Facts”. Slightly recast by me as to style, but not substance, those facts are as follows.

7. As at January 2019, you were 28 years old and serving an aggregate term of imprisonment by way of an intensive correction order. You were also on a s9 bond.

8. On 29 January 2019, whilst serving that term of imprisonment in the community and whilst on that bond, you were the driver of a motor vehicle which was travelling along St Johns Road, Bradbury.

9. In the front passenger seat of your motor vehicle was Mr Bradley Wiles. Mr Jackson George was sitting in one of the back seats.

10. You were driving erratically - trying to catch up with another motor vehicle in which Mr Stanojevic was the driver, and Ms Hite and Ms Rose passengers.

11. You and your passengers were pursuing the vehicle driven by Mr Stanojevic because the three of you had formed a joint agreement to use the motor vehicle you were driving as an offensive weapon to make the vehicle driven by Mr Stanojevic to pull over, with the intention of robbing the occupants of that car at gun point. The three of you were criminally responsible for the offence in sequence 1 and the matter in sequence 4 by virtue of that joint criminal enterprise.

12. Moreover, you and Mr Wiles knew that Mr George was armed with a firearm, and you and Mr Wiles contemplated the possibility that Mr George might use that firearm in the course of the robbery. As I shall later describe, the three of you all participated in such a robbery. Therefore, all three of you were criminally responsible for the principal offence sequence 2 and the matter in sequence 5 by virtue of that joint criminal enterprise.

13. As I said, you drove your vehicle quite erratically. At one point, you drove extremely close to the Stanojevic vehicle, and then you backed away for a while. You repeated this several times.

14. As this was occurring, Ms Hite saw that there was a firearm visible in your vehicle. Mr Stanojevic started to panic and kept driving.

15. At one point, you drove your car onto the oncoming traffic lane and overtook the Stanojevic vehicle before pulling up in front of it, which blocked its entry into a roundabout.

16. You then yelled at the occupants of the Stanojevic vehicle to get out of that vehicle.

17. You and Mr Wiles got out of your vehicle. Mr George remained in it, but he was holding a shortened .22 single shot bold action rifle out of the rear window. This firearm was in working order. All three of you were yelling, and Mr George actually pointed that firearm towards the bonnet of the Stanojevic vehicle.

18. Ms Hite saw that firearm and, unsurprisingly, she panicked. Mr Stanojevic put his car in reverse and tried to drive away; however, his vehicle hit the gutter.

19. You and Mr Wiles then got back into your motor vehicle, but not before Mr Stanojevic drove his car around yours, across a traffic island, and proceeded through the roundabout on the right hand side towards ongoing traffic, i.e. going the wrong way, in order to get away from you.

20. Your vehicle pursued the Stanojevic vehicle. As that vehicle approached another roundabout, you drove your motor vehicle around the roundabout on the incorrect side and you crashed into the Stanojevic vehicle, causing it to spin and come to a stop. You then brought your vehicle to a stop adjacent to the Stanojevic vehicle.

21. Shortly after that, Mr Stanojevic again tried to drive away.

22. You continued to pursue them.

23. In his efforts to get away from you, Mr Stanojevic drove through an intersection controlled by orange traffic lights and, in doing so, he had to swerve to avoid coming into collision with a truck that had started to enter that intersection.

24. About 50 meters past that intersection, the Stanojevic vehicle broke down and came to a complete stop. Shortly after that, you drove up and parked in front of the Stanojevic vehicle, blocking it in.

25. It is this driving by you in these circumstances that constitutes the Form 1 matter of using an offensive weapon with intent to commit indictable offence (sequence 5) which is to be taken into account with the principal offence of firing a firearm in a manner likely to injure persons (sequence 2). Because of the nature of that matter, it will result in a meaningful increase for the relevant principal offence.

26. After these two vehicles came to a halt, Ms Rose could see that Mr George was holding the firearm which he pointed at her.

27. You got out of the driver’s seat and approached the Stanojevic vehicle. Ms Rose got out of that vehicle and confronted you. You screamed at her, demanding money. Ms Rose asserted she did not have any money. You did not believe her and continued to demand money from her. You became increasingly frustrated and, during this process, Mr Wiles patted Ms Rose down demanding to know where her bag was.

28. It is these facts which constitutes the matter of assault with intent to rob, armed with a dangerous weapon (sequence 4) which is to be taken into account with the principal offence of robbery armed with a dangerous weapon (sequence 1). Because of the nature of that matter and its intimate connection with the principal offence, it will result in only a modest increase in the sentence for the principal offence.

29. You then reached into the Stanojevic vehicle and took Ms Hite’s bag and wallet. You started to rummage through that bag. And you put her purse in a bag you had. You were continuing to demand money.

30. Mr George was still holding the firearm and you continued to demand money from Ms Hite.

31. You then “nudged past” Ms Rose in order to get to Mr Stanojevic who was still seated in the driver’s seat of his vehicle. Mr Stanojevic was asserting that he had no money on him. Ms Rose tried to pull you away from him, however, you brushed her off.

32. It was at this point that Mr Wiles asked Mr George for the firearm. Mr George handed the firearm to Mr Wiles. This was seen by Mr Stanojevic who, unsurprisingly, was afraid.

33. You saw two bags within the vehicle, and you started to roughly go through them, throwing their contents everywhere in the car. You also searched the glovebox. You were continuing to demand money.

34. You approached Ms Rose and pushed your hands into her chest to see if she had any money actually on her person.

35. It was at this point that Mr Wiles raised the firearm, put it on his shoulder, and pointed it towards Ms Rose through the back window of the Stanojevic vehicle.

36. It is these facts which constitute the (first) principal offence of aggravated armed robbery (sequence 1).

37. Mr Wiles then pointed the firearm towards Mr Stanojevic, who was still seated in the driver’s seat, and fired that firearm. Fortunately for everybody, the bullet missed Mr Stanojevic and went into the bonnet of the motor vehicle. Mr Wiles then pointed the gun again at Mr Stanojevic but did not fire a second round.

38. It is these facts which constitute the (second) principal offence of firing a firearm in a manner likely to injure persons (sequence 2).

39. You approached Mr Wiles who was still holding the firearm. Both of you got back into the vehicle you had been driving and, ultimately, you and your two co-offenders drove off.

40. At some point shortly thereafter, you got out of that motor vehicle and walked off. Mr Wiles then became the driver and the vehicle drove off with Mr George still a passenger. After they did so, they discarded the firearm.

41. All three of you were shortly thereafter arrested in different locations.

42. For offences of their kind: the robbery armed with a dangerous weapon offence is a mid-range offence; and the fire firearm in a manner likely to injure persons is also a mid-range offence.

43. Each offence is additionally aggravated by the fact that you were on conditional liberty.

44. All three of you are equally criminally culpable for both of the principal offences. And in relation to the first principal offence, although each of you played a different role, your moral culpability is also equal. However, in relation to the second principal offence, your moral culpability is less than that of Mr Wiles.

45. There is no victim impact statement from any of the three victims of your offending conduct. Undoubtedly, the experience would have been a terrifying one for them. But there is no evidence that any emotional harm sustained by them was greater than might be anticipated.

46. As I have already indicated, you were 28 years of age at the time of these two principal offences and the two matters on the relevant Form 1.

47. You did not give direct evidence in the sentence hearing. Rather, your subjective circumstances were advanced through an expert psychologist’s report and a sentencing assessment report obtained for the sentence proceedings which resulted in the intensive correction order.

48. You had an unfortunate upbringing in that you had little positive input from your father. For most of your life, your father has been in prison.

49. You were not a good student at school. You had difficulties with reading and writing, and you were a socially isolated and angry child.

50. You left school at the end of Year 8 and then, for a few years, worked in a container warehouse. But there has not been a good history of employment.

51. Most of your time since a child has been taken up with the abuse of illegal drugs.

52. You commenced using cannabis when you were 13 years of age. You started using amphetamines and methylamphetamines at 14 years of age. You have also used heroin and abused Xanax.

53. You have sought some assistance in the past to address your long-term drug issues but that has been of a very limited – and unsuccessful - kind.

54. When you were 16 or 17 years of age you were sexually abused, although the details of that abuse are not revealed in the psychologist’s report.

55. Clearly, your childhood was a dysfunctional one, and with that comes the reduced moral culpability which the High Court in Bugmy v The Queen (2013) 249 CLR 571 has directed sentencing Judges to take into account.

56. You suffer from a range of psychological issues including stimulant use disorder, cannabis use disorder, opioid use disorder, sedative use disorder, and complex Post-Traumatic Stress Disorder.

57. In the sentencing assessment report, which was obtained for the sentence which you were serving by means of an intensive correction order (and which was prepared on 21 January 2020), you told the author of that report that you had two young children aged 4 and 6 years, and that your future role as a parent was a motivator for you to seek to rehabilitate yourself. However, your involvement in the current offending indicates that that was not a sufficient motivator for you to properly engage with Community Corrections whilst the subject of the intensive correction order and the s9 bond to address your underlying drug abuse issues.

58. I further note that, in that sentencing assessment report, the author noted that your response to supervision could only be described as superficial, and that you were at a medium risk of reoffending. Regrettably, that Officer’s predictions have come to pass. The psychologist that prepared the expert report also considers you to be “in the moderate range for risk of recidivism”.

59. You have a number of prior offences which have resulted in terms of imprisonment, but, until now, those terms of imprisonment have been served other than by full-time imprisonment.

60. Your criminal history is such that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender. However, it is not one which is an additional aggravating factor.

61. You entered a plea of guilty at the first available opportunity and, accordingly, you are entitled to an effective discount of 25 per cent. As I shall be imposing an aggregate sentence, the discount will be taken into account in determining the indicative sentences underpinning the ultimate aggregate sentence.

62. As I have said, you did not give direct evidence in the sentence proceedings and, therefore, you have not directly expressed remorse for your offending. Although you apparently expressed remorse to the author of the psychologist's report, I look with scepticism on that second-hand (and minimalistic) expression of remorse.

63. I note that your mother has been present at all Court appearances and that she remains a strong source of support for you in the community. There does not seem to be any other source of such support.

64. In these circumstances, I regard your prospects for rehabilitation as being guarded.

65. Your prospects for rehabilitation would not be enhanced by a longer period on parole and, in any event, the parole period I intend to fix will be sufficient for that purpose.

66. In relation to the robbery armed with a dangerous weapon offence, and taking into account the matter on the relevant Form 1, except for your plea of guilty, the indicative sentence is 8 years imprisonment minus 25 per cent, that is 6 years.

67. In relation to firing a firearm in a manner likely to injure persons and taking into account the matter on the relevant Form 1, the indicative sentence is 7 years imprisonment minus 25 per cent, that is 5 years 3 months.

68. Dean Achurch, for the offences of robbery armed with a dangerous weapon and firing a firearm in a manner likely to injure persons, I sentence you to an aggregate term of imprisonment of 8 years.

69. As a deliberate act of leniency, I shall fix the start date from the date of your arrest.

70. I fix a non-parole period of 6 years to date from 29 January 2019 and which will expire on 28 January 2025.

71. I fix a balance of 2 years to date from 29 January 2025 and which will expire on 28 January 2027.

Decision last updated: 19 June 2020