R v Black

[2022] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:

R v Black [2022] NSWDC 236

Hearing dates:

11 March 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years with a non-parole period of 1 year 6 months

Catchwords:

CRIME – Robbery armed with offensive weapon - Reckless wounding in company

SENTENCING - Relevant factors on sentence – early guilty - two separate offences - assessing objective seriousness - relevance of maximum penalties – parity- custodial sentences required - strong subjective case - short period of criminality - sentencing young offenders – detrimental consequences of imprisonment considered.

Legislation Cited:

Crimes Act 1900

Cases Cited:

BP v R [2010] NSWCCA 159

Clarke-Jeffries v R [2019] NSWCCA 56

Howard v R [2019] NSWCCA 109

KT v R [2008] NSWCCA 51

Muldrock v The Queen (2011) 244 CLR 120

Munda v Western Australia [2013] HCA 38

Power v The Queen (1974) 131 CLR 623

R v AEM [2002] NSWCCA 58

R v Henry (1999) 46 NSWLR 346

R v Herring (1956) 73 WN (NSW) 203

R v Loveridge [2014] NSWCCA 120

R v Naqelevuki [2021] NSWDC 748

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Texts Cited:

Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

Rethinking sentencing for young adult offenders, Victorian Sentencing Advisory Council, December 2019

Category:

Sentence

Parties:

Luke Paul Black (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr E Anderson (for the offender)

Solicitors:
Morrisons Law (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s):

2020/00231194; 2021/00091799

SENTENCE – EX TEMPORE REVISED

Introduction

1. In the middle of 2020 Luke Black involved himself in two serious offences. On 25 July 2020 he was involved in an armed robbery as the driver. On 7 August 2020 he attended a man’s premises and wounded him in a reckless manner while in company of two others. Armed robbery s 97(1) Crimes Act 1900 carries a maximum penalty of 20 years imprisonment. Reckless wounding s 35(3) Crimes Act carries a maximum penalty of ten years imprisonment and Parliament has said that for an offence which falls, taking into account only objective features, in the middle of the range there is a minimum period of four years imprisonment.

2. Those maximums and that standard non‑parole period are important guides to the exercise of my sentencing discretion but they are guides, they do not prescribe the sentence to be imposed, or the minimum to be imposed. I do not start with the maximum or the standard non-parole period and make proportional deductions from it, but content has to be given to the standard non‑parole period.

3. I am indebted to Mr McGonigal, solicitor for the Director of Public Prosecutions, for his careful written submissions, the cases to which he has referred me to, and his summary of those cases. Every offence and every offender is individual but here there are a number of matters that clearly distinguish Mr Black from other cases. But that said, judges should take guidance from other cases as consistency in sentencing is important.

Guilty plea

4. After his arrest Mr Black took a sensible course and accepted his responsibility for the offences. He indicated he would plead guilty for both matters when they were before the Local Court. The sentences as indicated for each matter will be reduced by 25% because of the utilitarian value of those early pleas. I will take care in the process of accumulation of those two matters and in the formulation of the aggregate sentence that the benefit of those pleas not be lost.

Agreed facts

5. There are agreed facts in relation to both matters before the Court.

Armed robbery

6. Iokimi Naqelevuki and a young person were at home in Fairy Meadow on 25 July 2020. They formulated a plan to commit an armed robbery. Black then arrived at their home. Naqelevuki asked Black to drive them to the service station at Balgownie so he could rob it. He agreed and they proceeded to the Metro Service Station. It was also agreed that they would share in the proceeds of the robbery.

7. I have sentenced Mr Naqelevuki: R v Naqelevuki [2021] NSWDC 748. In short summary he, disguised in a rudimentary fashion and armed with a claw hammer, entered the petrol station. The attendant saw him and made her escape. The CCTV which is summarised in the agreed facts shows the distress of the attendant and two patrons of the service station. It also shows that Naqelevuki failed to achieve much from his crime, except for stealing some packets of cigarettes. He then ran off, chased by bystanders. He then hopped into the car. The three drove away and they later shared the cigarettes.

Reckless wounding

8. The reckless wounding occurred on 7 August 2020. Two people, a male and a female, were at their home in Mangerton, a flat on the third floor. The female victim was in bed watching TV. The male victim heard a knock at the door. When he opened the front door he saw a young Islander male. That man asked is the female victim here and the male victim said “She’s in bed man.” At this point Black jumped out from the side. He had a machete in his right hand and his other hand held the hood over his face. Despite this the male victim got a good look at him. A third male, also of Islander appearance, joined Black. At this point Black swung the machete he was carrying. The victim tried to close the door however the machete connected with the top of his head. At the same time the two other men were trying to get the door open. The male victim almost had the door closed when it burst open. The victim felt a wet spray coming from his head. He was threatened by one of the other two men and hit with a bat held by the first of them. He saw that blood was sprayed on his TV screen. He understandably, in the circumstances, called Black a “fuckwit.” At this point the female victim came out screaming “Are you serious?” She recognised Black. The offender and one of the males retreated. The third male was still wrestling with the male victim. He yelled out “Don’t leave me here brother.” The male victim was able to force the door shut and the three men retreated.

9. An ambulance was called. The male victim suffered an incised wound ten centimetres in length to his scalp. The wound breached the skin, the fibrous membrane that covers the skull, and went into the skull bone causing a crack in the skull about 7 centimetres long and 3 millimetres wide. At Wollongong Hospital he was treated as the wound was bleeding actively and required suturing with fine line sutures.

Objective seriousness

10. A judge must consider what occurred objectively. A judge must also consider the offender’s moral culpability and blameworthiness for the offence. So far as objective seriousness of the armed robbery is concerned, this offender had minimal involvement but without him, without his car, without him agreeing to drive there and take the principal offender away there would have been no robbery.

11. As the robbery could not or may not have occurred unless he played his part it may be unfair to treat one offender who happens have a lesser role assigned to them, any differently from all those who entered the premises. But there can be reasons why an offender is less objectively culpable than others involved. In this case Naqelevuki planned the incident and took the most active role. He used the hammer inside the premises to achieve their aims, small though they were. The guideline in R v Henry (1999) 46 NSWLR 346 is a good starting point for matters such as this. And, as Mr Anderson, who appears for Black, indicates most of the favourable aspects of Henry apply. As will be clear when I recount the offender’s subjective circumstances.

12. As Henry pointed out the guideline was introduced because of the perceived leniency of judges of this Court. Had that matter stood alone, while a custodial penalty would have been warranted, alternative options may have been available. Although the armed robbery carries the higher maximum penalty this sentencing exercise is a good indicator of why judges use maximums only as guides. It is obvious and accepted that although the armed robbery carries a greater maximum penalty the reckless wounding is objectively a much more serious offence. In saying so I do not underestimate the impact of the armed robbery on members of the public and those who provide essential services, such as service station attendants. We rely upon people being prepared to work alone, often at night, to provide a valuable community service. It is entirely understandable that their vulnerability has to be respected. If people breach or abuse that vulnerability and abuse the service that they provide then harsh penalties are expected by the community. One should never underestimate the impact of a robbery on a person. Something that this offender is perhaps now beginning to understand.

13. So far as the reckless wounding is concerned it is an element of the offence, that the offences occurred in company. There were three participants and all three appeared to be armed. It seems to have been planned because they went at night to a specific flat at the top level of a block. There is no indication whatsoever in the facts before me what might have motivated the offence.

14. Black told his psychologist that he had been drinking and was not thinking clearly but the fact that he was intoxicated does not and cannot mitigate an offence such as this. In fact, it makes his crime worse because he was not in control of whatever faculties he had while sober, making the risk to his victims even greater by making his actions more unpredictable.

15. There were two victims at the home. He had armed himself with an edged weapon, a machete. and that weapon was used to the head of the principal victim. It is of particular importance in matters such as this that one looks at what was done but also the consequences of actions and luckily or “miraculously”, to quote the Crown, the victim suffered a wound and a nasty one but no significant injury, consequential injury, apart from what I suspect will be a large scar.

16. Those factors require a custodial sentence of some length and a sentence that could only be served by full time custody.

17. There is no Victim Impact Statement but its absence does not mitigate.

Subjective case

18. How did it come to this? The material before me indicates that prior to these incidents, or since, Mr Black had not had any criminal convictions or any contact with the criminal justice system apart from, for a short period of time, with these associates.

19. He comes from a stable and prosocial family. He was 19 at the time and is 20 now. He went to school to Year 10. Since then then he has worked and is presently in his second year of an apprenticeship as a bricklayer. He has a supportive employer and I presume that he will be able, on release, to resume his apprenticeship and resume his work. He is in a long-term relationship. It is obvious from the people who have come to court today that he had, and has, considerable family and community support. It appears that at about the time of the commission of this offence he was unemployed because of the pandemic and idle. And under the influence of friends, who he has now abandoned, he chose to ignore what he must have been taught by his family He has been on strict bail, including almost house arrest for two months.

20. The Sentence Assessment Report before the Court confirms the matters to which I have just referred. It concludes that he is of low risk of reoffending and has apparently got over a very low point in his life. There are no recommendations for supervision. As far as Community Corrections are concerned he is a low priority because he has already demonstrated progress to rehabilitation. It would appear they take the view, which I share, and is justified by a comprehensive report from Ms North, psychologist, that his past life, absent this aberrant period of months, is a very good indication of his future.

21. Ms North in her comprehensive report says that he is of low risk of reoffending. She identifies no mental health issues but she notes a history of impulsive behaviour and association with antisocial peers. She sets out in his prosocial history. Of relevance she says, in paragraph 19, are what she classifies as risk and protective factors. The risk factors are the offences he has committed, his level of education, his antisocial acquaintances and his alcohol use. All of which appear to have been addressed. His protective factors are :

• no prior offence history,

• stable employment,

• stable and supportive family,

• stable accommodation,

• distance from antisocial peers,

• no history of substance abuse,

• nil indication of mental health issues and

• expressed remorse and acceptance of responsibility.

22. She mentions his remorse. There is no evidence of any particular empathy with or consideration for his victims in the evidence before me. There is certainly evidence of regret and understanding of what he did. He was able to express this to the Community Corrections Officer but saying that that the victims would have been impacted on mentally and may now be left with trauma. He also understands the impact that this offence has had on his family and partner.

23. He accepts responsibility, which is perhaps more important than mouthing some platitude. He says that he was stupid and did not consider the consequences. He has shown considerable maturity in his comment to Ms North that he accepts he must live with his actions. His alcohol use perhaps explains why he did what he did but as I said it does not mitigate.

24. A judge must consider along with objective serious of an offence a person’s moral culpability, that is their blameworthiness. That involves a consideration of subjective factors, background, age, state of maturity and mental state at the time: Muldrock v The Queen (2011) 244 CLR 120.

25. The law recognises that young people can reform and learn to conform to society’s norms. It also accepted that cognitive, emotional a psychological immaturity can contribute to their offending: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.

26. When sentencing young offenders, considerations of general deterrence and principles of retribution can be of less significance than they would when sentencing a mature adult of the same offence. Allowance should be made for an offender’s youth and immaturity not just his or her biological age: KT v R [2008] NSWCCA 51.

27. This is clear from all the material I have read over many years of a judge and advocate many of which have been helpfully compiled by the Sentencing Advisory Council of Victoria in their publication from 2011 Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011 and their factsheet, Rethinking sentencing for young adult offenders first published in December 2019. More often, far from improving a person’s chance of rehabilitation gaoling young immature offenders has very little specific deterrent effect and, so far as the young cohort are concerned, very little general deterrent effect. Incarcerated young people when sent to gaol are placed with others who have antisocial attitudes and here would have significantly more antisocial attitudes than this present offender. There is always a risk that after their release young people may be likely to associate with other adolescents they have met in custody. Custody can have a long-term effect on a person’s employment prospects and future.

28. Sentences should, as far as possible, operate not just to punish a person but to protect the community. Removal of a person from the community by gaoling them can only achieve short term protection and in this case will be unlikely to helping Black’s rehabilitation. And, rehabilitation does assume particular importance for first offenders and those that have not developed settled habits.

29. I have to consider the sentence that I imposed on Naqelevuki and there is also a juvenile who was sentenced. This is not a matter where there is any need to consider the sentence imposed on the juvenile whose factual circumstances are quite different. Naqelevuki for the robbery in company received an indicative sentence of three years and four months taking into account the plea of guilty. So far as Naqelevuki is concerned like must be compared with like. There is considerable difference here in their personal and criminal histories, which justifies a real difference in the term each would serve in prison. This is one of those matters where the difference in the role played in the joint criminal enterprise justifies a difference in penalty.

Submissions

30. Mr McGonigal in his written submissions has comprehensively addressed all appropriate matters.

31. In his oral submissions Mr Anderson accepted those principles but understandably drew my attention to those matters which mitigate the objective seriousness of the offences. He frankly acknowledged that there was no issue that a custodial sentence had to be imposed but he urged upon me the imposition of a sentence that is minimum term, which while meeting the purposes of sentencing, but one that would, so far as practicable reduce the risk that this offender would lose contact with prosocial members of the community and also reduce the risk of associations with antisocial elements in the community.

32. He noted, key risk factors should be reduced to the absolute minimum. He also noted that Black will be going into custody during the pandemic. He will be subjected to quarantine on his entry into gaol. I have heard evidence that in many cases that there are regular lockdowns with prisoners spending significantly longer in their cells than otherwise. Sometimes there are red zones within gaols which reduce almost all contact with other prisoners and the outside. While the pandemic continues personal visits from prosocial family members will be constrained, although he may, if he is lucky, get access to more audio-visual contacts. Work and programs are restricted. All matters that can and will be taken into account in reduction of penalty.

33. Mr Anderson also drew my attention to Black’s youth, his psychosocial immaturity and his progress on remand.

Synthesis

34. There are two distinct offences here although I indicated that one might have been served by an Intensive Corrections Order it did not stand alone and we have a retributive system of justice. A system based on the requirement that there be punishment where wrongs are committed against others, particularly those providing services to the community who are vulnerable because of their job and also those who are confronted in their homes by intruders with weapons.

35. I must impose sentences for two distinct offences which had different consequences. I have to structure the sentences so that the overall or aggregate is just and appropriate to the totality of the offender’s crimes. There must be some accumulation here.

36. The evidence relating to his young, immaturity, growing maturity, his prosocial ties, excellent prospects for rehabilitation and the matters where there is a risk that gaol may set back his progress to rehabilitation, all provide a basis for a significant finding of special circumstances. Nevertheless, the purposes of sentencing apply to both the minimum sentence that must be served in custody and the total sentence. The minimum period should properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623.

37. Synthesizing all these matters. There were two serious offences committed during a short period of problematic behaviour. It is unlikely that Black will reoffend. Nevertheless, the crimes he committed carry with them a community expectation that those who do commit such crimes will suffer punishment and a proper sentence marks the Court’s view of the seriousness of the crime. It should let others know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205.

34. There are a significant number of mitigating factors here and they will be given significant weight, but they cannot be allowed to lead to the imposition of a sentence which is disproportionate to the objective seriousness of what he did. Although in quite a different context, the New South Wales Court of Criminal Appeal has emphasised that violence by men, often young, in company and under the influence of drugs, is too common. The Court there said that such crimes need to be addressed by sentences that carry a very significant degree of general deterrence as as a means of protection of the community. That mater was R v Loveridge [2014] NSWCCA 120 also R v AEM [2002] NSWCCA 58 at [92].

35. The majority in the High Court in Munda v Western Australia [2013] HCA 38 at [52] to [58] noted however the countervailing position where it was said it may be argued that general deterrence has little rational claim on the discretion on relation to crimes which are not premeditated. And, although these crimes were premeditated, they were committed by immature young men who acted impulsively. Whenever the debate is upon general deterrence retribution is called for. Further, has the High Court said in Munda, the role of the criminal law is not limited to the utilitarian value of general deterrence. In all sentencing matters involving violence against other citizens courts have an obligation to vindicate the dignity of the victims, to express the community’s disapproval of the offending and to avoid protection against the vulnerable against repetition.

Orders

40. The formal orders of the Court are these. I take into account the utilitarian value of the plea an reduce the indicted sentences by 25%

41. For the armed robbery I indicate a sentence of one year, ten months.

42. For the reckless wounding, as it carries a standard non-parole period, I indicate a sentence of two years and seven months with a non-parole period of one year and four months.

43. There will be an aggregate sentence in this matter for three years. The non‑parole period will comprise 50% of that sentence that is one year and six months. There is no time in custody Mr Anderson?

44. ANDERSON: No time in custody your Honour.

45. HIS HONOUR: The sentence will commence today, 11 March 2022. There will be a non‑parole period of one year, six months and expiring 10 September 2023 on which date Black will be released to parole. The balance of the sentence of 1 year 6 months is to commence upon the expiration of the non-parole period on 11 September 2023 and expiring on 10 March 2025. The total sentence of three years will expire on 10 March 2025. Corrections if Mr Black could stay in the dock, hand over any property and say goodbye to his family while he stays in the dock. He can then be taken down.

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Decision last updated: 28 June 2022