R v Bayliss

[2020] NSWDC 769

District Court

New South Wales

Medium Neutral Citation:

R v Bayliss [2020] NSWDC 769

Hearing dates:

13 November 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate sentence of 8 years and 4 months imprisonment with a non-parole period of 5 years.

Catchwords:

SENTENCING — Relevant factors on sentence — Moral culpability — Multiple offences — Aggregate sentences

— Accumulation, concurrency and totality

SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances – Bugmy factors

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v R (2013) 249 CLR 571; HCA 37

Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1

Category:

Sentence

Parties:

Regina (Crown)
Jacob Bayliss (Offender)

Representation:

Counsel:
Mr D Stewart (Offender)
Mr D Henschell (Crown

Solicitors:
Mr J Murray, ODPP (Crown)
Mr A Miller, Ross Hill & Associates (Offender)

File Number(s):

2019/00033596

Judgment

1. Jacob Bayliss, 34 years of age, appears for sentence having been found guilty on 3 August 2020 after a judge alone trial at Gosford District Court of the following offences:

1. Count 2 - Specially aggravated enter dwelling house with intent to commit a serious indictable offence namely robbery in circumstances of aggravation namely knowing there were persons inside and in circumstances of special aggravation namely armed with a dangerous weapon, namely a firearm, an offence pursuant to s 111 (3), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 20 years imprisonment. There is no prescribed standard non-parole period.

2. Count 3 - Reckless wounding (victim Jake McDonald), an offence pursuant to s 35 (4), Crimes Act. The maximum prescribed penalty for that offence is 7 years imprisonment. There is a prescribed standard non-parole period of 3 years.

3. Count 4 - Reckless wounding (victim Paul Johnson), an offence pursuant to s 35 (4), Crimes Act. The maximum prescribed penalty for that offence is 7 years imprisonment. There is a prescribed standard non-parole period of 3 years.

2. The offender was found not guilty in relation to count 1, an offence of specially aggravated break enter and commit serious indictable offence, an offence pursuant to s 112(3), Crimes Act.

3. The offender has been in custody bail refused in relation to the offences since 31 January 2019. I will say more later in my remarks in relation to the date upon which the current sentences will commence.

The facts for sentence

4. For the purposes of sentencing, I find the following facts proved beyond reasonable doubt.

5. Shortly before 2 am on 8 June 2014, the offender entered the unit of Jake McDonald and Paul Johnson at 2/15 Bogan Road, Booker Bay. Mr McDonald’s girlfriend, Tania Bain, was also staying at the unit at that time. The offender was wearing a balaclava and had a pistol and a knife in his possession.

6. At the time that the offender entered the unit, Mr Johnson was asleep in the lounge room. Ms Bain was asleep in Mr Johnson’s room and Mr McDonald was in his bedroom watching television.

7. The offender went to Mr McDonald’s bedroom and stood at the doorway holding a pistol in his hand. He pointed the pistol at Mr McDonald. Mr McDonald grabbed and held the pistol and wrestled with the offender. At some stage, Mr McDonald hit the offender in the head three times with the pistol. He thought he had thrown the pistol. He did not see it again.

8. Whilst Mr McDonald was struggling with the offender, a number of bullets fell out of the magazine of the pistol. A struggle then proceeded from Mr McDonald’s bedroom down the hallway. At some stage, Mr McDonald was on his back on the floor and was telling the offender, “Get off, go away, you’ve got the wrong person, just get out of here”.

9. The offender was, at this stage, trying to stab Mr McDonald with a knife. Mr Johnson was awoken by Mr McDonald calling out to him. He walked up the hallway and was confronted by the offender. The offender then stabbed Mr Johnson three times with a knife, once to his abdomen and twice to his back.

10. When Mr Johnson realised he was being stabbed, he tackled the offender round his ankles. After a couple of minutes, he let the offender up. The offender then approached Mr McDonald who was in the lounge room by this stage. Mr McDonald started kicking into the offender to get him away from him. The offender then stabbed Mr McDonald with the knife three times, once to his shin and once to both his right and left shoulder.

11. The offender then got on top of Mr McDonald and was stabbing towards his chest whilst Mr McDonald was holding him, trying to push him away. The offender then got up and ran from the house and left in a vehicle that had been parked a short distance from the unit. At some stage, Mr McDonald heard the offender say, “Give me your money”. Mr McDonald thought he replied, “I’ve got nothing”.

12. Ms Bain had been awoken by Mr McDonald saying, “What do you want, who the fuck are you?” She got out of bed and saw the offender wrestling with Mr McDonald in his bedroom. She went into the bedroom and removed the balaclava from the offender’s head. She tried to drag the offender down the hallway out of the unit. She saw the offender stab both Mr McDonald and Mr Johnson. She then left the unit and ran to the next door neighbour’s house and the neighbour contacted triple-0.

Injuries to Mr McDonald and Mr Johnson

13. On 8 June 2014, Mr McDonald was taken by ambulance to Gosford Hospital. Hospital medical staff observed the follow injuries to Mr McDonald:

1. A wound to Mr McDonald’s left shoulder piercing the groove between the deltoid and pectoral muscles;

2. A wound to Mr McDonald’s right shoulder piercing the deltoid muscle;

3. A wound to Mr McDonald’s left leg causing a laceration to the tendon at the front of the chin.

14. Medical staff operated on the above three wounds and repaired each of them.

15. On that same day, Mr Johnson was taken by ambulance to Gosford Hospital. Hospital staff observed the following injuries to Mr Johnson:

1. A 2.5 centimetre penetrating stab wound to Mr Johnson’s abdomen. The injury was such that Mr John’s liver was injured as was his traverse colon. The injury also caused a cut to the wall of the stomach;

2. Two stab wounds to Mr Johnson’s right arm and right index finger.

16. Medical staff also operated on the above wounds to repair them.

17. Upon attendance by police at the unit, they located a black balaclava that had been worn by the offender in Mr McDonald’s bedroom. During a gaol call made on 26 May 2020, the offender admitted that the balaclava belonged to him. Police also located five .32 calibre ammunition rounds in the unit. The offender was arrested and charged on 19 January 2019.

18. Those facts clearly disclose very serious objective criminality. The victims were confronted by the offender in their home late at night. The offender was armed with both a knife and also a firearm. The conduct is properly described as a violent home invasion. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

Specially aggravated enter with intent, robbery armed with a dangerous weapon (Count 2)

19. In assessing the objective seriousness of the offence of specially aggravated enter with intent, robbery armed with a dangerous weapon, I have taken into account the following factors:

1. The serious indictable offence the offender intended to commit was robbery which has a maximum prescribed penalty of 14 years recognising that the offence is established if a serious indictable offence is intended. A serious indictable offence is any offence carrying a maximum penalty of 5 years or more;

2. The dangerous weapon was a firearm recognising that non-lethal and less lethal weapons fall within the definition of dangerous weapons, specifically, imitation firearms, prohibited weapons and spear guns. In circumstances where I am satisfied that ammunition fell from the firearm during commission of the offence and, whilst the evidence does not go so far to prove that the weapon was loaded, that is, that there was a bullet in the firing chamber, I am satisfied that there were bullets in the magazine inside the pistol;

3. The nature and extent of the violence used within the house by the offender excluding that which is relevant to counts 3 and 4 on the indictment. Specifically, the offender, after confronting Mr McDonald in his bedroom, also wrestled with Mr McDonald. He also wrestled with Ms Bain; and

4. There was planning involved in the commission of the offence in circumstances where the offender entered the house wearing a balaclava to disguise his identity and was also carrying two weapons namely a knife and a firearm.

20. It was submitted on behalf of the Crown that the offending falls towards the upper range of objective seriousness. It was submitted on behalf of the offender that the offending was in the middle of the range.

21. I assess the objective seriousness, taking into account the above factors, as being above the middle of the range. An important factor in that assessment, is the nature of the dangerous weapon that the offender used during the commission of the offence.

Reckless wounding (Counts 3 and 4)

22. In assessing the objective seriousness of each of the offences of reckless wounding, I have taken into account the following factors:

1. The circumstances in which each wounding occurred. Both Mr Johnson and Mr McDonald were involved in a violent struggle with the offender whilst the offender was armed with a knife at the time of or immediately after each wounding;

2. The injuries caused to Mr McDonald and Mr Johnson. Mr McDonald suffered three wounds being to his right and left shoulder and also his left leg. Mr Johnson suffered more serious wounds in circumstances where there was a penetrating wound to his abdomen which injured his internal organs, namely his liver, his colon and also his stomach.

23. It was submitted on behalf of the Crown that in relation to count 3 relating to Mr McDonald that the objective seriousness falls at or about the mid-range and, in relation to count 4 relating to Mr Johnson, that the objective seriousness falls above the mid-range.

24. It was submitted on behalf of the offender that the Crown’s assessment is open to the Court.

25. Having regard to the factors identified, I assess the objective seriousness of count 3 as being in the middle of the range. I assess the objective seriousness of count 4 as being just above the middle of the range. I am satisfied that the offence with respect to Mr Johnson, does demonstrate greater objective criminality in circumstances where the injury sustained was more serious.

26. The Crown relied upon two aggravating factors. Firstly, in relation to each offence, that the offences were committed in the home of the victims, Mr McDonald and Mr Johnson. Secondly, in relation to count 4 concerning Mr Johnson, that there was a grave risk of death to the victim in circumstances where the offending involved wounds to the stomach of Mr Johnson with a knife.

27. I have not taken into account either of those aggravating features in circumstances where, firstly, I have taken into account that the offending was in the home of the victims, Mr McDonald and Mr Johnson when assessing the objective seriousness and, secondly, I am not satisfied there is any medical evidence before the Court to establish that there was a grave risk of death to Mr Johnson having regard to the injuries sustained.

Victim impact statement

28. Mr Johnson prepared a victim impact statement. I note that at the time of the offending Mr Johnson was 57 years of age. Mr Johnson’s victim impact statement described both the immediate impact upon him of the offending and also the ongoing impact. He described that he had to move out of his home as he feared the offender may return. He also states, “Because of this, my life changed from being an outgoing person to a withdrawn person”.

29. Mr McDonald was 41 years of age at the time of the offending. Whilst there was no victim impact statement from Mr McDonald, I have no doubt that the offending would have been very emotional and distressing for him, particularly when he was confronted in his bedroom with the offender pointing a firearm at him.

30. One of the purposes of sentencing is to recognise the harm done to each of the victims (see s 3A (g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

31. The offender is now 34 years of age.

32. He has a New South Wales criminal history commencing in 2005 when he was 19 years old. He was dealt with for offences of obtain benefit by deception, use false instrument and goods in custody.

33. In respect of each of those offences, he was placed on a bond.

34. In 2008, he was dealt with for offences of larceny; having a forged instrument with intent to use and possess prohibited weapon without a permit. In respect of each of those offences, he was also placed on a s 9 bond.

35. In 2014 when the offender was 28 years of age, he was sentenced in relation to the following offences:

1. Possess shortened firearm - 18 months imprisonment with a non-parole period of 9 months;

2. Possess housebreaking implements - A fixed term of 9 months;

3. Drive whilst disqualified, goods in custody and carry cutting weapon - In respect of each of those offences, 3 months imprisonment; and

4. Possess ammunition, custody of a knife in a public place and possess prohibited drug - s 10A convictions with no penalty.

36. In that same year he was dealt with for two offences of drive whilst disqualified and sentenced to 3 months imprisonment.

37. In 2016, he was dealt with for the following offences:

1. Police pursuit - Total term 12 months with a non-parole period of 6 months;

2. Drive whilst disqualified - 9 months imprisonment with a non-parole period of 4 months;

3. Carry cutting weapon - 3 months imprisonment;

4. Possess ammunition and possess prohibited drugs (two counts) - s 10A convictions with no other penalty.

38. In 2017, he was dealt with for the following offences:

1. Possess unauthorised pistol - 2 years imprisonment with a non-parole period of 16 months;

2. Possess unauthorised firearm relating to a double‑barrel shotgun and a single barrel-loaded shotgun (two counts) - 14 months imprisonment with a non-parole period of 10 months;

3. Possess prohibited drug - 2 months imprisonment; and

4. Destroy or damage property - 6 months imprisonment.

39. The non-parole period of the offender’s most recent sentence expired on 13 August 2018. He has remained in custody since that date in circumstances where on 24 October 2017 he was bail refused in relation to firearms charges that are currently before the Supreme Court.

40. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence that would otherwise be available to a person of good character.

41. The offender did not give evidence during the sentence proceedings.

42. The following material was tendered on behalf of the offender:

1. Exhibit 1 - Report of John Machlin, psychologist, dated 3 November 2020.

43. The offender’s background is outlined in the report of Mr Machlin (Exhibit 1). Mr Machlin assessed the offender on 30 October 2020.

44. The offender was born in Gosford. He was the only child born to his parents’ union which dissolved when he was 3 and a half years old. The offender mainly resided with his mother who relocated frequently in order to avoid his father. He described that he grew up “everywhere” between Sydney and Bundaberg. He stated that he spent time with his father sporadically. The offender reported that he did not have a good relationship with his stepfather in circumstances where there was physical abuse. He also reported being sexually assaulted by his uncle at age 6.

45. The offender described a poor adjustment at home and school as a child and that he began living on the streets of Brisbane at age 14 years. Since that age, he described his relationships and social interactions as revolving around drug use. The offender stated that he maintains some contact with his mother and has minimal contact with his father who lives in New Zealand. He described that his mother is on a disability support pension and has physical and stress-related problems.

Education and employment

46. The offender reported attending many schools due to recurrent relocation. He stated that he was in a lot of fights and used to steal because he “had nothing”. He stopped attending school at the age of 14 and subsequently attended TAFE to the equivalent of Year 10 level.

47. The offender reported having various jobs, primarily in forklift driving and warehousing. His longest period of employment was at Woolworths for one and a half to two years. He stated that he has been unemployed in recent years and, in the future, would likely work as his mother’s carer.

48. The offender has six children, three biological children and three step‑children. The offender’s first child was born when he was 17 years of age. With his next partner, the offender has one son now aged 11 and raised a stepson now aged 13. The offender has one child now aged four with his third partner who is currently in custody. She has two children from a previous relationship with whom the offender reported that he maintains contact whilst in custody. He reported that he is currently single.

Substance use history

49. The offender acknowledged a longstanding stimulant addiction problem. He reported that he began using drugs at 14 or 15 whilst living on the streets or in shelters. He reported using “all kinds of drugs” including heroin which stopped after a girlfriend died of a heroin overdose. He continued using stimulants including ice and mixing these with alcohol on occasion. Mr Machlin noted that the offender “portrayed his drug use as a dominant and unremitting feature of his life”.

50. Whilst in custody, the offender reported that he has used buprenorphine without being prescribed the drug. He also stated that he has never attended a rehabilitation program.

Medical history

51. The offender generally reported an unremarkable medical history other than a pain condition due to bursitis in his shoulder.

Mental health history

52. The offender reported a history of self-harm and was once admitted to hospital after cutting his arms. He also described a history of drug induced psychosis due to stimulant use. The offender stated that he was diagnosed with ADHD and bipolar disorder by his GP. He has previously been prescribed Xanax and is currently prescribed Seroquel, an anti-psychotic drug which he has in custody.

53. In the opinion of Mr Machlin, the offender suffers from chronic stimulant use disorder “against a complex background of clinical problems associated with family dysfunction, personality disturbance, attentional problems and mood disturbance requiring further assessment”.

54. Mr Machlin was of the opinion that it is unlikely that the offender has ever suffered from a major form of mental illness. Mr Machlin also noted that the offender’s emotional detachment “is probably a personality feature but might also be a function of distraction or fatigue under the many stresses affecting him presently”.

55. In relation to the future treatment of the offender, Mr Machlin stated as follows:

“Upon release, he will require an extended period of parole with rehabilitive measures in the form of medication and rehabilitation options. He would best be served in preparing for release by a services and programs officer to link in with a prescribing clinic and local drug and alcohol counselling services. In the meantime, he is advised to participate in the programs available to him in custody including the EQUIPS program for addiction and aggression, if deemed suitable by program facilitators”.

Submissions of the parties

56. The Crown relied upon comprehensive written submissions supplemented by further oral submissions.

56. Mr Stewart, on behalf of the offender, also relied upon comprehensive written submissions also supplemented by further oral submissions.

57. I have taken into account those submissions in determining the appropriate sentences.

Relevance of the offender’s background

59. It was submitted on behalf of the offender that the Court would be satisfied that the offender had a childhood categorised by deprivation and dysfunction warranting a reduction in his moral culpability on the basis of the principles enunciated in Bugmy v R (2013) 249 CLR 571; HCA 37.

60. Having regard to the offender’s background outlined in the report of Mr Machlin which I accept, I am satisfied that the offender has had a childhood during which he was deprived of the nurturing and support that is ordinarily provided by parents which allows for proper social and emotional development. Having regard to his background and in circumstances where he described living on the streets at 14 years of age, it is not surprising that he began using substances which has continued into adulthood.

61. I am satisfied that such circumstances warrant a reduction in his moral culpability in accordance with the principles enunciated in Bugmy v R. Accordingly, I propose to moderate the otherwise appropriate sentences.

Prospects of rehabilitation

62. At this stage, I am satisfied that the offender’s prospects of rehabilitation must necessarily be assessed as poor having regard to his criminal history and long-standing drug issues that remain untreated.

63. The Court is hopeful that upon release to parole, the offender is provided with significant support and assistance to give him the best prospect of remaining drug free in the community and also remaining offence free.

64. At this stage, I am unable to find that the offender is unlikely to re-offend.

Totality

65. In circumstances where the offender is being dealt with for three offences, I am required to consider the principle of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but, if not, there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1).

66. I am satisfied that some partial accumulation is warranted. That partial accumulation will be notional in circumstances where I propose to impose an aggregate sentence. I am satisfied that the offending is separate and distinct, notwithstanding that the offending can properly be described as one episode of criminality.

Special circumstances

67. It was submitted on behalf of the offender that the Court would make a finding of special circumstances and vary the statutory ratio between the non‑parole period and the parole period in circumstances where the offender would be assisted by a lengthy period of supervision on parole to strengthen his capacity to overcome his drug use issues.

68. I accept that submission and I propose to vary the statutory ratio between the non-parole period and the parole period pursuant to s 44(2B), Crimes (Sentencing Procedure) Act.

69. I am further satisfied that special circumstances is warranted having regard to the sentence imposed today being wholly cumulative upon the sentences that the offender was serving between 14 February 2017 and 13 August 2018. I have given consideration to the overall effective ratio taking into account that non-parole period that was served between those dates.

Commencement date of the sentence

70. As I have previously indicated, the offender was serving a non-parole period as set out on page 7 of his criminal history until 13 August 2018. Since that time, he has remained in continuous custody having been bail refused for Supreme Court charges since 24 October 2017 and also having been bail refused in relation to the current charges since his date of arrest being 31 January 2019. It is agreed between the parties that it is appropriate to backdate the sentence to 14 August 2018. Accordingly, all the time in custody since that date will form part of this sentence.

Determination

71. In determining the appropriate sentence, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. I am satisfied that both general deterrence and specific deterrence are important considerations on sentence.

72. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate (see s 5(1), Crimes (Sentencing Procedure) Act).

73. I have taken into account the maximum prescribed penalty for each offence and the standard non-parole period of 3 years in relation to each offence of reckless wounding in accordance with s 54B(2), Crimes (Sentencing Procedure) Act. I have also taken into account the offender’s subjective circumstances.

74. I have further taken into account that the trial was conducted during the COVID-19 court arrangements and that the offender agreed to a trial by judge alone which facilitated the administration of justice.

75. I am also satisfied that, in circumstances where the offender signed an Agreed Statement of Facts during the course of the trial which resulted in a number of Crown witnesses not being required to be called in the trial, he also assisted in the administration of justice.

76. I have also taken into account that the offender’s time in custody has been more onerous since March 2020 in circumstances where New South Wales correctional facilities have implemented procedures to address the COVID-19 pandemic including that there have been no personal visits at New South Wales correctional facilities.

77. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

78. In accordance with s 53A(2)(b),Crimes (Sentencing Procedure) Act, the indicative terms are as follows:

1. Count 2, specially aggravated enter with intent, robbery armed with a dangerous weapon - Total term of 5 years;

2. Count 3, reckless wounding (Jake McDonald) - Total term of 3 years with a non-parole period of 1 year and 10 months; and

3. Count 4, reckless wounding (Paul Johnson) - Total term of 3 years and 6 months with a non-parole period of 2 years and 1 month.

79. Mr Bayliss, in relation to each offence, you are convicted.

80. I sentence you to a total aggregate sentence of 8 years and 4 months to date from 14 August 2018 and expire on 13 December 2026.

81. I fix a non-parole period of 5 years to date from 14 August 2018 and expire on 13 August 2023.

82. The offender will be first eligible for parole on 13 August 2023.

83. I have made a finding of special circumstances so I have varied the non‑parole period so that the offender will serve a longer period on parole.

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Decision last updated: 18 December 2020