R v Brayden Stephens

[2022] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:

R v Brayden Stephens [2022] NSWDC 213

Hearing dates:

23, 24 and 25 March 2022

Date of orders:

10 June 2022

Decision date:

10 June 2022

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

See [45]

Catchwords:

CRIMINAL LAW –– Robbery while armed with dangerous weapon – Organised meet to purchase drugs – Unidentified male emerged from bushes with firearm – Offender and unidentified male pursued person supplying drugs on foot but were unsuccessful – Offender approached the victim armed and robbed him of his mobile phone

SENTENCE –– Consideration of the impact of offender’s drug addiction following previous trauma – offending aggravated pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) –Offender’s prior antecedents did not justify leniency – Offending committed whilst on conditional liberty – Remorse not established – Reasonable prospects of rehabilitation found subject to the offender continuing to embrace treatment – Medium risk of re-offending – Features of this case fall outside the R v Henry guideline – Special circumstances found

Legislation Cited:

Crimes Act 1900 (NSW) s 97

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A

Cases Cited:

R v Henry (1999) 46 NSWLR 346

Category:

Sentence

Parties:

Regina (the Crown)
Brayden Stephens (the Offender)

Representation:

Mr D. Coulton (Counsel for the Crown)
Ms E. Parkes (Solicitor for the Offender)

Solicitors:
Director of Public Prosecutions (the Crown)
Legal Aid NSW (the Offender)

File Number(s):

2021/00009012

Publication restriction:

Nil

Judgment

1. On 25 March 2022 following a 3-day trial, a jury returned a verdict finding the offender guilty of one count of robbery while armed with dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW) (the 1900 Act). This is an offence which carries a maximum penalty of 25 years imprisonment with no standard non-parole period.

2. Consistent with the parties’ acknowledgment, the facts on sentence are as follows:

3. The offender and Alec Labanowski (the victim) are acquainted through their respective families. At the time the offence was committed, the offender and the victim had met on approximately five occasions across a period of two years.

4. At around 11:00pm on 6 January 2021, the victim received a text message from the offender, asking about obtaining drugs. Communications occurred which resulted in a plan that an associate of the victim, Mark Dutton would be able to supply 1 ounce (28 grams) of methylamphetamine for $7000. Mark Dutton did not personally know the offender.

5. Shortly after, the victim drove to an address in Berkeley to pick up Mark Dutton. The victim was driving a black Holden Captiva registered to his then partner, Tallish Maloney. Upon arriving in Berkeley, Mark Dutton entered the passenger seat and the pair drove directly to the Dapto McDonald’s.

6. The victim and Mark Dutton waited for the offender in the car park at the Dapto McDonald’s for about an hour to an hour and a half before there was further communication and arrangements made to meet near the skate park in West Dapto.

7. About 1:00am on 7 January 2021, the victim and Mark Dutton drove to the car park area of the skate park, located on Bong Bong Road in West Dapto.

8. The victim and Mark Dutton observed a white Toyota Corolla with a smashed rear window and a red P-plate parked in the third row of the car park. The victim parked the black Holden Captiva to the left-hand side of the white Toyota Corolla.

9. The offender exited the white Toyota Corolla and spoke to the victim and Mark Dutton. The offender introduced himself to Mark Dutton as ‘Brayden’. The offender was wearing a moonboot.

10. The offender and Mark Dutton discussed weighing the methylamphetamine using scales. Mark Dutton kept the methylamphetamine in a brown paper bag that was stored around his waistband.

11. A short time later, an unidentified male wearing a black face covering and holding a firearm emerged from bushes to the right-hand side of the victim’s vehicle. The offender then pulled a handgun from the front of his pants and pointed it towards the victim.

12. The unidentified male approached Mark Dutton and said, “give me the money and the drugs”. Mark Dutton threw the brown paper bag on the ground, retreated behind the white Toyota Corolla and then ran in the direction of the skate park. The offender and the unidentified male attempted to chase Mark Dutton but were unable to keep up with him. The offender was unable to run due to the moonboot he was wearing. The offender shouted at Mark Dutton, “I’m going to kill you.”

13. Mark Dutton continued to run towards the skate park and then fled the scene via a nearby drainage area. From there, Mark Dutton went directly to his aunt’s home in Dapto.

14. Following Mark Dutton’s departure, the offender approached the victim and pointed the handgun at him. The offender said to the victim “give me your phone and everything you’ve got”. The victim took out his red Samsung Galaxy S10 mobile phone and handed it to the offender. After receiving the mobile phone, the offender looked in the victim’s eyes and said, “I’m sorry”. The offender then returned to the white Corolla and drove from the scene.

15. The unidentified male with the firearm got into the victim’s vehicle. A second unidentified male wearing a black face covering and holding a firearm emerged from the bushes and got into the victim’s vehicle. The unidentified males then drove away from the scene in the victim’s vehicle.

16. The victim stayed at the scene for approximately ten minutes, before walking to his cousin’s home in Mount Brown. After arriving, the victim spoke to Tallisha Maloney and told her about the events in the car park. The victim asked Tallisha Maloney to report the matter to police.

17. The victim was then driven back to his residence in Windang. Police then attended the victim’s residence, where he formally reported the matter. The victim initially lied about the location and the circumstances surrounding the meeting with the offender. However, the following day, the victim admitted to arranging the drug supply and clarified the location of the car park.

18. On 12 January 2021, police attended the offender’s residence in Unanderra and the offender was placed under arrest in relation to the events of 7 January 2021.

Objective Seriousness

19. It is accepted that the offending was aggravated pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act) in that the offence was committed whilst in company. This was a joint criminal enterprise involving the offender and two unidentified males.

20. Whilst the offending did not require extensive planning; it did involve a changing of locations to a place with limited lighting consistent with enabling the ambush of the victim. There was also a period between Dapto McDonalds and the skate park to enable the offender and his co-offenders to get into position, cover their faces, be armed and wait for the victim to arrive.

21. Although there was no actual use of force, firearms were produced and pointed with accompanied threats.

22. It is accepted that the victim could not be labelled as vulnerable as described in the guideline judgment of R v Henry (1999) 46 NSWLR 346. The item taken was a mobile phone which the Crown concedes was not of a significant monetary amount.

23. Of the three assailants the only one identified was the offender. He clearly knew the victim and played a critical role in communications with him and in the execution of the events that followed. However, in circumstances where the identity of the other two and their relationship (if any) to the victim and Mr Dutton are not known, it is not open to determine the extent of offender’s role in initiating what occurred.

24. The Defence argued that the offender’s moral culpability was reduced considering the report date 26 May 2022 of Ms Julie Dombrowski (psychologist), where she noted a history that the offender lost his father at the age of three and experienced childhood sexual abuse at the age of six by a member of the clergy during a school excursion. Ms Dombrowski recorded that these experiences gave rise to behavioural disturbance and conduct difficulties at school which led to a disruption of his educational and vocational progress and led to the development of a man with a longstanding emotional and psychiatric difficulties (predominantly trauma-related anxiety and depression). Ms Dombrowski recorded that the offender used substances (primarily heroin, methylamphetamine and non-prescribed benzodiazepines) to manage negative thoughts and feelings and to conform with his peers. This has led to a five-year long history of heavy polysubstance use which closely mirrors his offending history. She noted that the subject offending had been driven by substance abuse (underpinned by his experiences of trauma and abuse and loss) and his associated involvement with antisocial and criminal peers.

25. To the extent that the offender’s participation in this offence was brought about by his addiction, this is not an excuse to commit any crime. The fact that the offence however was motivated in part by such a need may be considered as a factor relevant to sentence. It allows an understanding as to why the offender acted as he did and to understand his state of mind and his capacity to exercise judgment: cf R v Henry (supra).

26. Overall, I will accept some reduction in moral culpability on this account

Subjective Factors

Prior antecedents

27. The offender’s antecedents comprised of offences in 2017 involving use etc offensive weapon with intent to commit indictable, stalk/intimidate and common assault. In 2019, the offender was convicted of three offences committed in 2017 being armed with intent to commit indictable offence, assault occasioning actual bodily harm in company and demand property in company with menaces with intent to steal. He was sentenced to an aggregate of 4 years imprisonment with a non-parole period of 2 years and 6 months commencing 26 February 2018. He had other offences in 2017 being possess prohibited drug, possess or use a prohibited weapon without permit and 2 driving charges.

28. It is accepted that his antecedents do not entitle him to any leniency.

Conditional Liberty

29. The offender had been on parole for the offences above indicated since 25 August 2020. Accordingly, the offending was committed whilst he was on conditional liberty being an aggravating factor pursuant to s 21A(2)(j) of the 1999 Act. The nature of the offences for which he was on conditional liberty is above described. In taking the aggravating matter into account, I am mindful not to double count bearing in mind the fact that the offender’s parole was revoked resulting in him returning to custody on 12 January 2021.

Remorse

30. The report of Ms Dombrowski records that the offender expressed regret for his involvement in the subject offence stating “I’m sorry for what happened… No one deserves to get robbed at gun point… I wouldn’t like it to be done to me”. The Sentence Assessment Report (SAR) which postdates Ms Dombrowski’s report records that the offender admitted to purchasing drugs at the scene of the current offence but denied having a firearm or committing the robbery. He stated that he had no reason to rob the victim and could not identify any reason why the victim would make a false statement.

31. The offender did not plead guilty. Nor does it appear that he has accepted responsibility or acknowledged the impact of his actions. On the balance of probabilities, I am not satisfied that remorse has been established pursuant to s 21A(3)(i) of the 1999 Act.

Background

32. The offender is aged 23.

33. Ms Dombrowski obtained a history that he grew up in the Wollongong area with his mother, stepfather and three younger siblings. His father died in December 2001 from a heroin overdose. He was aged three at the time and therefore holds little memory of his father. He denied any abuse or neglect in his family home. There was the earlier mentioned report of sexual abuse. The offender denied any familial criminality. He described his relationship with his mother and siblings as being loving and supportive. However, during his mid-adolescence he became increasingly rebellious and experienced a period of increased conflict with his stepfather. He moved out of the family home to live with his maternal grandmother to avoid ongoing conflict with his stepfather. He reported that he has since repaired his relationship with his stepfather, maintained regular contact with his mother, stepfather and siblings and remained supportive.

34. The offender attended school until he was expelled at age 14 and was generally disruptive. He is described as illiterate. He worked as a roofer, builder’s labourer and mechanic’s apprentice. However, his employment history has been disrupted by periods of incarceration and he has struggled to locate employment in the community because of his criminal history. He completed two years of an apprenticeship in mechanics and expressed hopes to complete his apprenticeship upon his return to the community.

35. At the time of the offending, the SAR reports that the offender was unemployed and in receipt of Centrelink benefits.

Substance abuse

36. Ms Dombrowski obtained a history that the offender started using heroin, methylamphetamine and non-prescribed benzodiazepines at age 18. He also reported a history of alcohol and cannabis use during adolescence. He started using these substances to conform with peers but quickly became dependent upon them and used them to manage negative thoughts and feelings. He reported that all of his offending was either whilst substance affected or for the purpose of obtaining substances. He ceased heroin use upon commencing pharmacological treatment for opioid use in 2020 and stopped using methylamphetamine and benzodiazepine use whilst in prison. He returned to regular methylamphetamine, and benzodiazepine use while on parole in December 2020. He has not used either substance since his arrest for the subject offence in January 2021.

37. The offender did attempt residential drug rehabilitation at Oolong House in 2018 before he was expelled for having a mobile phone in his possession. He is described as having recently completed the EQUIPS Foundation program at Parklea Correctional Centre and was hoping to complete an intensive therapeutic drug rehabilitation program. The SAR records that he completed the EQUIPS Aggressions program in November 2021 at Lithgow Correctional Centre.

38. In any event, Ms Dombrowski recorded that the offender expressed a desire to complete an intensive therapeutic drug rehabilitation program. The offender continues to participate in buprenorphine program to manage his opioid dependency. The SAR also records a willingness to undertake intervention to assess substance abuse and negative companions.

Mental Health

39. The offender reported to Ms Dombrowski that at the Oolong House he had been diagnosed with depression because he was experiencing episodes of low mood and feeling like a failure. He took medication (including the antidepressant escitalopram and antipsychotic Seroquel) to manage his episodes of low mood for two and a half years whilst he was in prison. He denied any ongoing difficulties with depressed mood since ceasing his medication use, although he continues to feel like a failure because of his substance use and offending history.

40. The SAR records that the offender reported symptoms of Post-Traumatic Stress Disorder (PTSD) but a formal diagnosis has not yet been confirmed. It noted that he commenced counselling with a psychologist during his last parole period and expressed a desire to resume counselling post release as he linked his unresolved mental health issues to his ongoing substance abuse.

Likelihood of Reoffending and Prospects of Rehabilitation

41. So far as the offender’s prospects of rehabilitation and likelihood of re-offending are concerned, Ms Dombrowski reports that the offender’s primary criminogenic treatment relates to his substance use and requires intensive therapeutic drug rehabilitation and community-based program where he can practice relapse prevention strategies and avoiding negative peers in the community. He will also benefit from psychological treatment to address his experience of childhood sexual abuse and unresolved grief associated with the loss of his father. Beyond that, he will require management of psychosocial factors such as suitable housing, vocational training/employment, access to positive supports and avoidance of antisocial and criminal peers and a period of professional supervision and monitoring (such as that offered by Community Corrections NSW) with regular drug testing is recommended to support his engagement with treatment, maintain substance abstinence and achieve stable functioning in the community upon his release from custody.

42. The SAR records that the offender’s first contact with Community Corrections was in 2018 for the purpose of sentencing and pre-release reports, with subsequent supervision commencing in 2020. His engagement at the time was noted as positive although the current offences constituted a breach of his parole order. It noted that the offender described a willingness to undertake intervention to address his substance abuse, mental health and negative companions and that he is currently receiving Buvidal injections to assist with management of cravings and reported positive results in custody.

43. The SAR recommended implementing the following supervision plan:

• Direction to re-engage with the Illawarra Drug and Alcohol Service to address his substance abuse issues,

• Direction to re-engage with Bungora clinic for continued pharmacotherapy,

• Referral to his General Practitioner for an updated Mental Health Care Plan and additional counselling as required,

• Referral to EQUIPS Foundations to further explore factors that underpin his offending behaviour,

• Regular contact with his family to monitor his progress and for any concerns,

• Regular contact with service providers to monitor his engagement and progress,

• Regular home visits to monitor his stability in the community,

• Behavioural change modules with a focus on maintaining abstinence from drugs, managing his stress levels appropriately and making pro-social choices regarding his social circle.

44. The offender appears to have good pro-social family. He requires and is willing to undertake the interventions. The SAR records that he has been offered an apprenticeship in hairdressing and it was confirmed that this could commence at any time post release. It also records that he has insight into his underlying issues and their impact. Subject to the offender continuing to embrace treatment for his issues, I would accept that the offender has reasonable prospects of rehabilitation, and he is at medium risk of reoffending.

SENTENCE

45. The offender came into custody on 12 January 2021. With parole having been revoked; his earlier head sentence expired on 25 February 2022. I propose to commence the sentence on 12 July 2021 allowing some concurrency with his previous sentence but also allowing for some accumulation.

46. In sentencing the offender, I bear in mind the guidepost of the maximum sentence.

47. This is a serious instance of offending.

48. I am mindful of the R v Henry guideline criteria. Features in this case fall outside that criterion. The criminal history does not provide for leniency. The offending was committed in company of 2 others with firearms, the offender himself used a firearm and the planning cannot be described as limited. The use of a firearm as a dangerous weapon is a component of the offence. Whilst there was no actual force used the intensity of the threat was significant. There was no plea of guilty and the offender was on conditional liberty.

49. The offender needs to be punished, made accountable, his actions need to be denounced and the sentence needs to provide for general and specific deterrence. Community protection however will also be fostered by the offender’s rehabilitation. With an offender so young and with a significant life span ahead, the community has a real interest in seeing him return as a contributing citizen.

45. The fact that the sentence accumulates on a previous sentence, it needs to avoid the risk of institutionalisation as well as take into account the offender’s youth, reasonable prospects of rehabilitation as mentioned and the need for extended period of parole which all support a finding of special circumstances.

46. Taking all matters into account, I would sentence the offender to a term of imprisonment as follows:

1. A non-parole period of 3 years and 4 months from 12 July 2021 to 11 November 2024.

2. An additional term of 2 years and 2 months from 12 November 2024 to 11 January 2027 during which he shall be eligible to be released to parole.

3. The offender’s earliest possible release date shall be 11 November 2024.

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Decision last updated: 16 June 2022