R v Brown; R v Dungay

[2020] NSWDC 921

District Court

New South Wales

Medium Neutral Citation:

R v Brown; R v Dungay [2020] NSWDC 921

Hearing dates:

23 November 2020

Decision date:

25 November 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Brown: Convicted.

Form 1 matter taken into account on sentence.

Special circumstances found –to have longer period of supervision within the community to assist him to rehabilitate within the community & to assist him to overcome his use of illegal drugs.

The offender is sentenced to a term of imprisonment of 4 years comprising a NPP of 2 years and 6 months to commence on 28 November 2019 and to expire on 27 May 2022 and a balance of term of 1 year and 6 months commencing on 28 May 2022 and expiring on 27 November 2023.

Dungay: Convicted.

Form 1 matter taken into account.

Special circumstances found – longer period of supervision within the community to assist in drug rehabilitation – residential drug rehab program recommended & I note the psychologist’s recommendation that he be housed in minimum security. (Copy psych rpt to be taken into custody with the offender).

The offender is sentenced to a term of imprisonment for 3 years and 6 months comprising a NPP of 2 years to commence on 28 February 2020 and to expire on 27 February 2022, and a balance of term of 1 year and 6 months to commence on 28 February 2022 and to expire on 27 August 2023.

Catchwords:

CRIMINAL – sentence - specially aggravated break, enter and steal armed with a dangerous weapon – Form 1 matter in re each offender of conspiracy to commit robbery armed with a dangerous weapon – joint criminal enterprise involving two (other) offenders – objective seriousness - circumstances of aggravation –- subjective matters

Legislation Cited:

CrimesAct1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmyv The Queen (2013) 249 CLR 571

RvFernando (1992) 76 A Crim R 58

RvMillwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Regina
Brown, Gregory Andrew Michael
Dungay, Wayne

Representation:

Counsel:
Dungay: Mr R Hussey
Solicitors:
Crown: Ms L Hill ODPP
Brown: Mr J McKenzie
Dungay: Ms B Drinkwater

File Number(s):

Brown: 2019/00375015
Dungay: 2019/00374786

Judgment

1. HIS HONOUR: Each of the offenders appears for sentence in respect of the same charge; that being an offence of specially aggravated break, enter and steal armed with a dangerous weapon, contrary to s 112(3) of the Crimes Act 1900. The maximum penalty provided is 25 years’ imprisonment and there is a relevant standard non-parole period of seven years’ imprisonment.

2. In addition, each of the offenders asks that the Court take into account when sentencing them for that offence a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The additional matter is an offence of conspiracy to commit robbery armed with a dangerous weapon, it being a common law offence in relation to which the penalty is at large, although if it was a completed offence rather than a conspiracy, it would be contrary to s 97(2) of the Crimes Act, which has a maximum penalty of 25 years.

3. Each offender was committed for sentence on 23 September 2020 from the Kempsey Local Court and each is accordingly entitled to a 25% discount pursuant to s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

4. In short, although I will deal with the agreed facts in full, the two offenders were part of a joint criminal enterprise involving themselves and two other persons, Chris Dungay and Timothy White, to break into and steal from the Macksville Ex-Services Club. Although they broke in, they obtained nothing other than a tin, and there is no evidence of it containing anything, let alone money.

5. Having been frustrated in their attempt, they were subsequently recorded as Chris Dungay drove them around, determining and discussing how they would commit a robbery at the Nambucca Sports and Recreation Club. Although in accordance with the conspiracy they attended in the area of the Nambucca Sports and Recreation Club, it was closed for the evening and they abandoned their plan. The agreed facts are as follows.

1. Strike Force Yengo is a robbery and serious crime squad investigation which targeted armed robberies being committed in the Mid North Coast region. One of the targets was the co-offender, Chris Dungay, and the older brother of the offender, Wayne Dungay.

2. In the course of that investigation, a warrant was granted permitting a tracking device and listening device to be placed in a Holden Rodeo driven by Chris Dungay. A mobile phone in the use of Chris Dungay was also lawfully intercepted.

MACKSVILLE EX-SERVICES CLUB

Sequence 3 in respect of Brown, Sequence 4 in respect of Dungay, specially aggravated break, enter and steal.

3. At 9.07pm on 5 October 2019, Chris Dungay, Wayne Dungay and Timothy White were in the Holden Rodeo driven by Chris Dungay. They had a rifle and other weapons in the car.

4. While driving through Kempsey, they discussed going to Nambucca Heads and Macksville and meeting Greg Brown. They further discussed changing clothes and shoes, having the gun in the car, and the danger of detection and taking backroads to avoid cameras.

5. After stopping at Chris Dungay’s residence, where he collected his shoes, they stopped at the Caltex service station at South Kempsey at 10.10pm. Wayne Dungay is recorded on CCTV entering the store to pay for fuel and returning to the vehicle.

6. They collected Greg Brown at Bellwood Road, Nambucca Heads, at 11.01pm. As he entered the car, Brown said, “Got a fucking gun here, fuck you”. They spoke of getting petrol and agreed to do it at Nambucca Heads to avoid the car being seen at Macksville.

7. At about 11.05pm, they arrived at the BP service station at Nambucca Heads. Brown filled up the car and went in to pay for it. White took over the driving.

8. At about 11.10pm, they stopped near Macksville Railway Station. They prepared themselves while inside the vehicle and are recorded saying, “… where’s the bag …”, “… throw some shoes on …” and “… there’s a steel pole there with a hammer on it …” White asked Chris Dungay if he had a spare jumper in the car.

9. They continued discussing which roads to take to avoid the cameras and avoid being seen in town. As they entered Macksville, Brown directed White as to which roads to take to avoid cameras. They also discussed the best escape routes to drive out of Macksville afterwards.

10. At 11.25pm, they stopped at West Street, a couple of blocks from the Macksville Ex-Services Club. They discussed where to park and which road to take out. Brown pointed out the train station and told White to park on the other side, adding, “It’s a bit of a run I reckon”. They re-parked and stopped at Brunsdon Lane, a block further, at the train station. Brown said, “It’s a perfect spot”. Chris Dungay told them that Brown would be driving once they were finished because he knew the road.

11. At about 11.30am, they exited the car. Chris Dungay put his shoes on and asked Brown, “You know the way from here, hey, Greg?” Brown confirmed that he did. Chris Dungay said, “Bin bags and that in there, grab the bin bags and that…let’s bash some motherfucker”. He added, “There’s a bag there for you”. Brown said, “I’ll run in with a butterknife”. White said, “There’s a steel pole there with a hammer on it”. Chris Dungay said, “That’ll do”.

12. The four men arrived in the car park of the Macksville Ex‑Services Club at 12.10am. CCTV captured them walking around the car park and the nearby alley until 12.26am. At 12.27am, they walked up the ramp to the main door of the club and broke in by smashing through the bottom of the glass entry doors. They were armed with a longarm firearm, two machetes and a hammer attached to a long pole. They all wore facial disguises and had their hands covered.

13. Chris Dungay and Wayne Dungay were armed with machetes. Timothy White carried a duffle bag and a long-handled hammer. Greg Brown had the gun. At some stage, White and Brown swapped weapons and as they approached the bar area, White pointed the gun towards the bar.

14. The offenders searched the office at various areas of the club. Chris Dungay took a tin from the office area. The men ran out of the club at 12.30am.

15. A cleaner was present inside the club. However, he and the offenders were unaware of each other’s presence.

16. At about 12.40am, the men returned to the car where they discussed getting nothing from the club. They commenced driving back onto the highway. Whilst travelling, they discussed how big the safe was inside the Ex‑Services Club. Chris Dungay said, “…I had the key to the safe in the envelope…” Wayne Dungay said, “I swear to god, lucky there was no-one in that office…I would’ve fucken [indecipherable] some motherfucker”. White asked, “You got the ungae (pig Latin for gun) cuz?”

The conspiracy contained on the Form 1 - Sequence 2 in respect of Brown and Sequence 3 in respect of Dungay, “Conspiracy to commit robbery armed with a dangerous weapon”.

17. As they left the Macksville Ex-Services Club, the four men discussed going to “Bucca”. Wayne Dungay said, “There was still a lot of people in the RSL…big cunt.” Chris Dungay asked, “Grego, what time does it shut over there…the fucking RSL?”

18. At 12.49am, Chris Dungay said, “Even if there’s a couple of people in there, we’re still going in”. The tracking device indicates that at the time they were on the freeway, not far from Nambucca. Chris Dungay asked Brown if he reckons “The big ones” are shut.

19. Brown directed the way. He said, “Go right. This brings you down to the, um…bowling club”. Chris Dungay asked, “There it is, there, isn’t she…straight in”. Brown said, “The bowling club”. White said, “Where, uh, are we going, where, Greg?” Brown asked, “You wanna have a look to see if there are people and that down there first?” Chris Dungay confirms that he did and Brown then directed him to take a route which would enable them to see.

20. At this point, at 1.00am, the tracking device records the car as being in Nelson Street, Nambucca, behind the Nambucca Heads Bowling and Recreation Club. They discussed whether the fact that lights were on meant that the club was still open or whether the lights are left on overnight. Wayne Dungay said, “No, that cunt’s open cuz, look…fuckin’ oath”. White added, “Yeah, that’s open, ain’t it Grego? They never leave them lights on, cuz”.

21. They discussed where to park and drove around the block to West Street, parking near the end of Bank Street on which the club is located. Chris Dungay said, “What the fuck are we doing?” White responded, “Well let’s go and check this place…come on…where’s the ungae (gun)?” Movement and muffled voices can be heard as they exited the car.

22. After confirming the Nambucca Sports and Recreation Club was closed for the evening, their plan was abandoned.

23. Later in the evening around 2am, the car returned to the BP service station at Nambucca Heads. CCTV recorded Chris Dungay and Greg Brown exiting the vehicle. Chris Dungay was wearing the same pants captured in the Macksville footage. Brown paid for the fuel using his Commonwealth card.

24. Brown was arrested on 28 November 2019 at premises in Gunbayngirry Road, Bowraville.

25. Wayne Dungay was arrested on 28 November 2019 at premises in Yarravel Street. He was arrested for these offences and an outstanding warrant that was already in place. He refused to participate in an interview as was his right.

26. During the search of these premises, police seized a pair of Ecko brand pants as worn by Chris Dungay in the Macksville offence. They also located three bags of various calibre ammunition and projectiles, as well as a maroon pillow case.

6. The offending clearly commenced as a joint criminal enterprise with the four persons concerned, in each other’s company, recorded in the motor vehicle discussing and determining how they would go about committing the offence. The rifle, which was taken to the premises as part of the joint criminal enterprise, classifies as a dangerous weapon. In order to arrive at the Ex‑Services Club, they travelled on a number of backroads to avoid cameras, choosing specific locations to purchase petrol, planning escape routes, and when attending, they were wearing facial disguises and covering their hands. There was clearly at least planning from the time they came together in relation to all four of them, and in relation to Chris Dungay, Wayne Dungay and Timothy White, they were already in the motor vehicle together with weapons and disguises before picking up the offender, Brown.

7. There is no evidence of planning prior to that time, although it is at least likely that there had been some discussion. I accept that there was an element of planning relevant to the offence, although as expressed by the Crown, it was unsophisticated. The offence intended to be committed at the Services Club was that of larceny, and I accept that it then falls at the bottom of the range of serious indictable offences relevant to s 112(3) of the Crimes Act when considering the objective seriousness of the offence.

8. Also relevant, however, to the objective seriousness of the offence is not only the fact that they had a dangerous weapon, which is the specially aggravating feature, but that there were other circumstances of aggravation, being that, as previously referred to, they were in company, and a number of other weapons, being two machetes and a hammer attached to a pole, were taken with them.

9. While there was damage to the property of breaking the lower glass panel of the entry door, there is no evidence of any other damage. In respect of the firearm, there is no evidence that it was loaded, or if loaded, capable of discharging a cartridge. It was entirely fortuitous in the circumstances that although then present in the club when they entered was a single cleaner in some other part of the club, that there was no interaction between the four offenders and the employed cleaner.

10. However, it is clear from the items that were taken into the club that whatever observations they had made of the club from outside, they anticipated that there may be someone present in the club. Otherwise, there was no utility in taking the two machetes or the rifle. There is no evidence as to how the glass door was broken, but presumably, the hammer attached to a pole was used for that purpose, or perhaps the butt of the rifle.

11. In respect of s 105A, being the definitions relevant to s 112 and the circumstances of aggravation, subs 2A provides:

“For the purposes of paragraph (f) of the definition of “circumstances of aggravation" , if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place.”

12. Subparagraph (1)(f) of 105A provides, as a circumstance of aggravation,

“The alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.”

13. In any event, putting aside the statutory presumption, it can be inferred beyond reasonable doubt that when they entered the club, they anticipated the presence of persons that they would be able to intimidate at least, by use of the rifle and/or machetes and/or hammer on a pole for the purpose of gaining access to any cash takings then remaining at the club.

14. It has been submitted by each of the parties that the offending in those circumstances can be regarded as falling below the mid-range of offending for like offences. I accept that as an appropriate assessment by the parties.

15. As I have previously indicated, it was entirely fortuitous that there was no person present who they interacted with when they entered the club, and also entirely fortuitous that there was no cash to steal, and I presume that the tin taken was one which was identified as possibly containing cash, although there is no evidence that it did.

16. As for the conspiracy count on the Form 1, it is, in my view, clear that it falls effectively into the same category of objective seriousness, that is, below the mid-level of objective seriousness, taking into account that they went from the Macksville Ex-Services Club discussing on the way the next venue or target, taking with them, of course, the rifle, machetes and hammer on a pole as had already been utilised.

17. It is also clear from the recorded discussions that they believed that the club would be open when they arrived. In my view, it is appropriate to infer beyond reasonable doubt that if it had been, they would have again utilised the dangerous weapon and the offensive weapons for the purpose of endeavouring to intimidate staff into supplying them with what they wanted, which in my view, was cash.

18. Of course, that offence is taken into account on a Form 1 and does not attract a separate sentence. It must be taken into account in relation to giving greater relevance to personal deterrence and retribution.

SUBJECTIVE MATTERS: GREGORY BROWN

19. In respect of subject matters before the Court is the offender’s criminal history, a Conviction, Sentence and Appeals Report from the New South Wales Department of Corrective Services, a Sentencing Assessment Report dated 29 November 2020, under the hand of Skye Munroe, Community Corrections Officer, a letter from St Mary’s Primary School, Bowraville, dated 21 July 2020 under the hand of Warren Niethe, being the principal, and in addition, the offender gave evidence on sentence. Subjective matters are drawn from that material.

20. The offender was 26 years of age at the time and is now 28 years of age. He is not married but has four children whose ages range from six years to nine years. At the time of his arrest, all four children were living with him in Bowraville, he then being the sole parent. His children have now been taken in by a number of separate relatives in different households. He was not employed at the time of the offending and has never held a job.

21. He reports a close and supportive relationship with his siblings and parents, and at the time of the offending, he was in receipt of the single parenting benefit.

22. The letter from the principal of the St Mary’s Primary School, Bowraville, is dated 21 July 2020. There is no indication contained in the letter that the author is aware at all of the purpose for which the letter might be provided. He attests to having known the offender for three and a half years, as he is the father of each of the children who have attended the kindergarten and when they did, met the offender on numerous occasions.

23. He refers to him as being positive and caring regarding his children, that they appear to be fond of him and that he was interested in their school progress and that they appear to be well cared for and attending school on a regular basis. The offender is described as having always been polite and respectful when interacting with the principal or staff and that school fees were always paid on time. He refers to having a positive relationship with the offender, and the offender actively supporting his children at school.

24. Apart from the fact that the letter does not disclose that the author was providing it for the purposes of these proceedings or indeed for any other purpose, it is dated 21 July 2020. The offender has, in fact, been in custody since 28 November 1919. So at least for that period preceding the date of the letter, the offender could not have been demonstrating his happy and caring relationship with his children to the observation of the principal. Nonetheless, I accept that the principal has given an honest opinion, for whatever purpose it may have been given, of his observations of the offender and his children in the period preceding the offender’s arrest.

25. The offender’s anti-social behaviour commenced as a juvenile in 2009. He has a number of convictions in the Children’s Court for offences such as affray, aggravated break and enter and commit serious, indictable offence in company, resist officer in execution of duty, be carried in conveyance taken without consent of the owner, assault occasioning actual bodily harm and accessory before the fact to steal from the person.

19. In relation to a number of offences I have referred to there is more than one entry. In relation to a number of the penalties imposed in the Children’s Court, despite having been dealt with him in a totally reasonable way within the parameters of Children’s Court sentencing, he has, however, been called up for breaching the orders made.

20. His history indicates that he ran off the rails as a juvenile, particularly after he returned from attending school in Sydney and while in the Bowraville community. To his benefit is the fact that since becoming an adult, his offending has been of a significantly less serious nature, such as special category driver, driver with special range PCA, learner not accompanied by a driver, police officer or tester, driving with child under six months, not restrained, drive while disqualified, drive with child age of four and under seven, not restrained, and child over six and under four, not restrained. Having been in custody at the Mid North Coast Correctional Centre since 28 November 2019, it is of note that he has not been detected as being in breach of any prison regulation.

21. The offender was the recipient of a indigenous football scholarship from Scots College, Sydney, and attended high school there until Year 9 when he returned to Bowraville, as I understand it, during the course of that year. He has in the intervening period, managed to completed Year 11 while in juvenile detention. In his evidence, he referred to growing up with his biological parents and brothers in the absence of any domestic violence or any significant alcohol abuse. His mother might occasionally have become intoxicated but not frequently; his father, every now and then.

22. He commenced drinking at the age of 14 and consumed marijuana when he was younger, starting at about 16, as I understand his evidence, giving up within approximately a year. He commenced using illegal drugs approximately eight months before being arrested for these offences and was, during that period, using methamphetamine or “ice”. He indicated that he has not used while in custody, and as I have noted, he has a clean record in terms of breaching custodial regulations.

23. While in custody, he has completed Certificates 1 and 2 in the Foundational Skills Program and also a Certificate in IT, each of those courses taking approximately ten weeks. He has also completed what is referred to as the Addictions Program, apparently also taking approximately ten weeks. He advised the Sentencing Assessment Officer he related his offending behaviour as stemming from his substance misuse: that at the time, he was not thinking of the consequences or the impact of his actions because he was then “heavily substance-affected”.

24. He was at the time leading up to the offence abusing both alcohol and ice on a daily basis and attributes his offending behaviour to his association with negative peers. He indicated that in his life there has been little prosocial influence apart from family members. As to any insight into the impact of his offending, he:

25. “…minimised his involvement in the offence. He justified his behaviour by attributing the blame to his co-offenders, victim and his heavily intoxicated state. While he verbalised the impact his behaviour has had on his family, he was unable to acknowledge the seriousness of the offence”.

26. I note that he has previously been supervised by way of Community Service Work and an Intensive Correction Order and that he is recorded as completing his supervision with a satisfactory effort and at the time, addressing alcohol and drug issues as well as issues relating to his negative companions. However, once again, he has fallen into league with negative companions. Ms Munroe assessed him as being a medium risk of re-offending and I accept that that is an appropriate assessment.

27. In his evidence, he was asked how he now felt about what he had done in relation to the Macksville offence and said words to the effect, “Very sorry for what I did”. However, when asked as to how it affected others, he said it affected the people close to him “a lot”, referring obviously to his children, parents and brothers.

28. The offender is an indigenous person who grew up in the Kempsey area, and as I understand it, particularly at Bowraville. There was little arising from his evidence which indicates that the principles as referred to in Bugmy v The Queen (2013) 249 CLR 571 or R v Fernando (1992) 76 A Crim R 58 or by her Honour, Simpson J, as her Honour was then, at 69 in R v Millwood [2012] NSWCCA 2; apply. He did not have a “tragic and dysfunctional” upbringing. Indeed, his family life was supportive and he had the benefit of attending a private school on a scholarship, which for at least the period when he was attending the school, would have taken him away from the local area except during holiday times.

29. However, I note Bowraville itself has long been recognised as a significantly disadvantaged area with high crime rates, a significant degree of social dysfunction, low income levels and high unemployment.

30. The 2016 census indicates that the indigenous population of Bowraville represents some 14.8% of the local population. I accept the offender having attended Scots College and then returning to Bowraville after or during Year 9 would have exposed him to the general dysfunctional society in Bowraville at that time, and to many others who had not had his advantage of attending a private school. I have no doubt this has had some adverse effect on him.

31. I will take that into account, even though I have said that his personal circumstances do not disclose that the principles in Bugmy and Fernando apply to him. I also note that he continues to have support from his family, even though because of COVID 19 it has been difficult for him to have contact with his children. At least during these sentence proceedings on Monday and today, his father and mother have apparently been present.

32. I forgot completely to refer to Mr Brown’s actual participation in the offence at Macksville Ex-Services Club, but I note that he was collected by the other offenders and was present in the vehicle when various matters were discussed in relation to changing clothing and the danger of detection and the presence of a number of weapons. His own comments indicate he had sighted the rifle when he entered the vehicle and was present when they agreed to get petrol at Nambucca Heads to avoid the car being seen at Macksville. It was, in fact, the offender who filled up the car and paid for the petrol. It was the offender who later directed White in driving the car as to which roads to take to avoid the cameras and was party to a discussion involving the best escape routes. It was the offender who pointed out the train station as a place to park and described it as a perfect spot. When it was being pointed out that there were bags, he volunteered that he would run in with a butter knife, which I take it to be really a sarcastic comment, being a reference to something which would be inadequate for the purpose of intimidating anyone.

33. Again, in relation to travelling to the Nambucca Sports and Recreation Club, the offender again took an active role in relation to particularly directing the route by which they would travel and where they would be able to observe the premises before entering. After abandoning the proposed robbery of the Nambucca Sports and Recreation Club, it was again the offender, Brown, who paid for the fuel at the BP service station at Nambucca Heads.

Subjective Matters: Wayne Dungay

41. Before the Court is the offender’s criminal history; a Convictions, Sentences and Appeals Report from the New South Wales Department of Corrective Services; a report from Mr Borkowski, a psychologist with Psychwest Psychology and Consulting Group, dated 11 November 2010; a Juvenile Justice report, being in relation to an application for Juvenile Justice NSW to retain supervision of a person aged 18 plus, dated by the signatories, being various officers, between 7 March 2019 and 12 March 2019. In addition, a report under the hand of Mark Johnson, a consultant paediatrician, dated 17 December 2010; and a report under the hand of Michelle Bowden, a school counsellor with the Kempsey South Public School, dated 18 April 2010. The offender did not give evidence on sentence and the subjective matters are drawn from the material I have just referred to.

42. He was born and grew up in Kempsey, being raised by his biological parents with four older biological siblings from his parents’ union. He described his father as a ”good bloke” who worked “on and off”, although he was unable to identify any particular vocation of his father’s. His father apparently drank alcohol excessively, as well as using cannabis. His father has a criminal history and has previously been incarcerated. He has, however, remained in contact with his father throughout his life. He describes his mum as “the best”; however she has never been employed and stayed at home, being a cannabis user and abusing alcohol, but apparently with no criminal history.

43. As to his parents’ relationship, he reported witnessing frequent verbal abuse and physical violence between them to the extent that he would, on occasion, simply take off to avoid the violence. He was also the subject of some violence and abuse from his parents when they were intoxicated. When he took off to avoid the violence, he would stay on the streets or hang out in a shack in the bush. Since his mid-adolescence, he started being placed in juvenile detention but would return home in between juvenile detention periods. At the time of the current offending he was residing with his brother, who, although it is not referred to in the material, I take to be his co-offender, Chris Dungay.

44. In his formative years he was provided with basic necessities such as food and clothing, and he indicated that his parents tried their best, but there was an absence of anything other than necessities. He has said to have had a good relationship with his siblings, feeling that they always tried to look after him. Unfortunately all of his siblings have criminal histories and substance abuse concerns.

45. In his adolescence, he associated with peers who were a “bad crowd”, and they “got into a lot of trouble together”. He does not consider that he has any close friends or prosocial acquaintances. He has no history of any serious or long term relationships and he does not have any children. He attended the South Kempsey Primary School, which he reflected on positively, but he often incurred behavioural sanctions, mostly for fighting. He was academically not good and was put in special classes and needed a special teacher. He is apparently still unable to read or write.

46. His Year 5 primary school report indicates that he presented with a range of dysfunctional behaviours, including failure to comply with instructions, interrupting, leaving the classroom, swearing, threatening other students, assaults and aggression and refusing to attend class, and as a result of his behaviour incurred a number of suspensions. He later attended Melville High School, where he continued to struggle academically and was using illicit substances and engaging in antisocial behaviour, and rarely attended school. He is unable to recall even how far he progressed in high school. He was the subject of some bullying at school.

47. While in juvenile detention he engaged in some educational programs but continues to struggle with numeracy and literacy. He has never been employed. The material indicates that within the first few months of his life he was identified as suffering from craniosynostosis, which required a craniotomy at the age of four months to relieve the pressure on his brain caused by its growth in the absence of his skull expanding, as is normal. He only ever required the one operation.

48. The report of the consultant paediatrician from December 2010 indicates that he was then found to have a marked intellectual impairment with an IQ of less than 70. He was diagnosed as potentially suffering from ADHD and prescribed a trial course of Ritalin. There is nothing before the Court that indicates that, having been provided with the trial course, that it was continued after the trial. Mr Johnson opined that when he examined him, the likely diagnoses were an intellectual impairment, ADHD and oppositional defiance disorder. He was due to see him again in February of 2011. There is no indication before me that that occurred.

49. The school counsellor’s report of 18 April 2010 from the Kempsey South Public School lists the problems I previously referred to in relation to his conduct, which included him bullying other children. Tests were administered, being the Wechsler Intelligence Scale for Children, Adaptive Behaviour Assessment System, the Peabody Picture Vocabulary Test, the Conners Rating Scale Parent and Teacher Form, and Behaviour Assessment System for Children Parent and Teacher Form.

50. I will simply refer to part of the results, being from the Wechsler Intelligence Scale for Children. His verbal comprehension is described as borderline, his perceptual reasoning as extremely low, his working memory as low-average, and his processing speed as borderline. His full scale IQ was found to be extremely low. The offender had a bad start to life, and it seemingly never improved. He was raised in a dysfunctional family, exposed to violence and at least alcohol and cannabis.

51. I am of the view that the principles referred to in Bugmy and Fernando clearly apply in relation to this offender so as to reduce his moral culpability, even though it is accepted that his problems were not causative of the offending, as submitted by his representative, Mr Hussey,. I accept, in view of his intellectual ability and relationship with his brother that there is an element of malleability relevant to him as suggested by Mr Hussey, but that, as I have said, was not causative of the offending.

52. An aggravating circumstance relevant to this offender is that at the time of the offending he was on parole in respect of three offences of assault occasioning actual bodily harm in company. He had received a sentence of two years with a 15 month non-parole period at the Port Macquarie Children’s Court on 5 February 2018. The non-parole period was due to expire on 4 May 2019. It was in relation to that sentence that Juvenile Justice made the application for him to continue in Juvenile custody although he had reached the adult age.

53. This offending constituted a breach of the parole, and as a result he was ordered to serve the balance of parole, being a period of four months and 21 days from the date of his arrest on 28 November 2019 until 17 April 2020. Since 17 April 2020 he has been in custody solely in respect of these matters.

54. As I understand it, when released either on 4 or 14 May 2019, being unable to discern that from the paperwork, the offender was released to reside with a pastor in Lismore, where he resided for some time before then moving in with his older brother, which is the point at which he apparently relapsed back into the use of alcohol and drugs prior to this offending.

55. I accept, as referred to in the report of Mr Borkowski, that the offender is likely to be more vulnerable than others in the prison environment. The Department of Corrective Services report indicates that since being arrested in respect of this matter there have been two breaches of prison discipline; one being on 13 March 2020, fight or other physical combat, and the second being on 5 June 2020, again fight or other physical combat.

56. His criminal history indicates that as a juvenile he has been dealt with for offences such as aggravated break, enter and commit serious indictable offence in company, resist officer in the execution of duty, assault occasioning actual bodily harm in company for three counts as previously referred to, enter enclosed lands not prescribed premises without lawful excuse, aggravated break and enter and commit serious indictable offence in company, in relation to which he was subsequently called up for being in breach of a control order, and a number of other offences of like nature such as break and enter house as well as behave in an offensive manner in or near a public place or school, and affray. He also had one offence in the Children’s Court of possess prohibited drug, which was dismissed with a caution. I regard it as being irrelevant.

57. The offender was 19 years of age at the time of the offending and is now 20. He was clearly younger, on the material before me, than Mr Brown and his brother Chris Dungay. There is no information before me as to the age of the co-alleged offender White.

58. As an adult, considering his age at the time of the offending, being 19, there is very little recorded, being simply, “use unregistered registerable class A motor vehicle on road and let unlicensed person drive vehicle on road”, in 2019. In respect of each of those he was fined $500. There is a further offence committed two days after the driving offences on 7 August 2019 of possess equipment for administering prohibited drugs, in respect of which he was fined $300.

59. I note that this is his first period of custody as an adult. It has long been recognised that committing offences while on parole is a significant aggravating feature, as referred to by Greg James J in Huynh [2003] NSWCCA 239.

60. The sentence to be imposed for the s 112(3) offence must take into account the offence of conspiracy contained on the Form 1.

61. I have had regard to all of the matters referred to in relation to the objective seriousness of the offending in each case and the subjective matters relevant to each of the offenders before determining in each case what I regard as the appropriate sentence. Offending of this nature must be regarded as serious, taking into account that the maximum penalty provided is 25 years, and the provision of a standard non-parole period of seven years, although not strictly relevant to this matter, as in each case they were pleas of guilty.

62. In addition, of course, the conspiracy charge itself, if the offence had been committed, would have attracted a maximum penalty of 25 years’ imprisonment. It was fortunate that it never got past the point of agreement and surveillance.

63. I have had regard to the principles of sentencing as contained in s 3A of the Crimes (Sentencing Procedure) Act. I have taken account of the maximum penalties and the standard non-parole periods applicable as guidelines rather than tram tracks. I have applied, as indicated, a 25% utility discount in respect of each of the offenders and the offence for sentence.

64. Any sentence imposed must, of course, reflect the need for both specific and general deterrence, although I accept that in respect of Wayne Dungay there is some diminution in significance. I repeat that in the circumstances of his upbringing I regard his moral culpability as less than would otherwise be the case. On the other hand in respect of Wayne Dungay, there is the aggravating feature which does not apply to the co-offender: that is that Wayne Dungay was on parole at the time.

65. Taking all of those matters into account, I have determined that the offending in each case clearly passes the s 5 threshold and requires the imposition in each case of a term of imprisonment. I will deal with them in the same order that I have previously dealt with them.

66. First of all, Mr Brown, would you please stand. You are convicted in relation to the offence of break and enter and commit serious indictable offence armed with a dangerous weapon, contrary to s 112(3) of the Crimes Act. I take into account in sentencing you for that matter the conspiracy charge contained on the Form 1. As you were arrested on 28 November 2019 and have been in custody only in relation to this matter since that time, your sentence will commence on 28 November 2019.

41. I sentence you to a non-parole period of two years, six months, with a balance of term of one year, six months, meaning a total sentence of four years. The total sentence of four years will expire on 27 November 2023. You will be first eligible for parole, as I have indicated, on 27 May 2022, that is at the expiry of two years at six months.

42. Whether you are released on that date or not will depend on how you go in custody. If you are found breaching prison regulations, it is unlikely that you will be released on that date. If, however, you make every endeavour in the meantime to comply with prison regulations and not commit any breaches of prison regulations while in custody, and take the opportunity to do such courses as might benefit you, whether that be in relation to drugs or alcohol or obtaining further qualifications for work, that will assist you in being released at the earliest possible time.

43. I note that I cannot on the evidence say that you have a good prospect of rehabilitation, but I do believe that you have a reasonable prospect of rehabilitation. Considering your relative lack of adult offending and providing you deal with your drug problems while in custody or while on parole, I would accept that there would be a low to medium risk of reoffending. Thank you. Please take a seat.

44. Mr Dungay, would you please stand. You are convicted in relation to the offence of especially aggravated break, enter and steal, being armed with a dangerous weapon contrary to s 112(3) of the Crimes Act. In sentencing you in respect of that offence I take into account the conspiracy charge contained on the Form 1.

45. I will return in a moment to dealing with the special circumstances for your client, Mr McKenzie. I failed to mention that.

46. I note that while you had been in custody from 28 November 2019 up until 17 April 2020, you were serving the balance of a parole which had been revoked. As referred to by Simpson J (as she then was) in Callaghan, I accept that it is within the sentencing discretion to make the sentence imposed for this matter entirely cumulative on the period of revoked parole or entirely concurrent with that period or partly concurrent with that period.

47. In my view it would be inappropriate to make the sentence to be imposed in relation to this matter entirely concurrent with the period served as a result of the breach of parole. Otherwise it would mean that there were no consequences for breaching parole. However, I will take into account that you have served that period, and I will commence the sentence partway through so that it is to some extent concurrent with the revoked parole from 28 February 2020, that is, some three months after the commencement of the revoked parole period and your arrest in this matter.

48. The period of imprisonment will be a non-parole period of two years commencing on 28 February 2020. That expires on 27 February 2022 when you will first become eligible for parole. The balance of term is one year and six months, giving a total sentence of three years, six months. The total term will expire on 27 August 2023.

49. You have been present while I have explained the effect of your eligibility for parole and the extent to which you can expect the authorities might release you on that date to Mr Brown. I do not intend to repeat what I have said. It is, in effect, up to you to make sure you make every endeavour to get out at the earliest time.

50. In relation to Mr Brown, I have found special circumstances to reduce the non-parole period from the statutory relationship to the term of sentence in order to assist him in having a longer period of supervision in the community, in particular to assist him to reintegrate and cease the abuse of prohibited drugs. I have also taken into account, without quantifying it, the fact that he was the sole carer of his children, who have now been deprived of their father and, unfortunately, broken up between other family members. In my view, one year and six months as a parole period is an appropriate period to assist Mr Brown in dealing with his problems.

51. In relation to Mr Dungay, I have also varied the statutory relationship between the non-parole period and the term of sentence or parole period. I have done so in part to take account of the fact of the additional three months in custody he spent prior to the start date for the sentence I have imposed. I also note in respect of him that I accept that he will need a longer period of supervision to assist him to maintain absence from prohibited drugs. I accept that it would be advisable if during the period of parole he could enter into a residential drug rehabilitation program.

52. I note Mr Borkowski’s opinion that it would be appropriate for the offender to be housed in a minimum security setting due to his comparatively young age and his presenting psychological conditions. As I have previously referred to, I accept that he should be considered as vulnerable in a custodial setting.

Madam Crown, do you have an unmarked copy of the report of Mr Borkowski?

CROWN PROSECUTOR: I don’t, your Honour, but I can easily get one and provide on to your Honour’s associate. My copy is marked significantly.

HIS HONOUR: Mine is marked but only in yellow, which won’t show up in copying.

CROWN PROSECUTOR: That’s correct.

HIS HONOUR: I’ll provide my copy to you, Madam Crown, so that you can photocopy it, and I’d ask that a copy of that be taken into custody with him for the benefit of Corrective Services. For that purpose I see no problem with the other reports also being provided, even if they are antique. I’ll hand down that bundle to you, Madam Crown, if you’d be kind enough to photocopy it, and we’ll give that to Corrective Services.

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: Sorry, Mr Dungay, you can sit down. Is there any matter I’ve overlooked?

CROWN PROSECUTOR: Not for the Crown.

HUSSEY: Your Honour, I believe that completes the matter insofar as it concerns Mr Wayne Dungay.

HIS HONOUR: That concludes that matter.

SHORT ADJOURNMENT

79. HIS HONOUR: Mr Hussey, I’m sorry. There were a couple of matters that I omitted to refer to in relation to your client, to which I should refer. Those are the relevant matters of remorse, contrition, rehabilitation and reoffending. Although I referred to them in relation to Mr Brown, I failed to refer to them in respect of your client, from memory. It is a little difficult when you’re doing it all off the top of your head.

80. In relation to remorse and contrition there was, effectively, nothing before the Court that indicated that your client was remorseful or contrite, with the exception it might be inferred from the fact that he pleaded guilty, although that does not necessarily follow. I suspect that as a result of your client’s low level of intellectual functioning, that he may lack some ability to perceive those matters. However, I will take the fact that he pleaded guilty as some indication.

81. In relation to rehabilitation, and reoffending I can only say in respect of both of those matters that the prospect is guarded. Your client has a history of offending, of breaching orders that have been made in the past, and indeed on this occasion, of being in breach of his parole conditions, including resuming the use of prohibited drugs while on parole. I can only say that the prospects are guarded at best.

82. I apologise for having omitted that and having to get you back. Mr Dungay, that makes no difference to sentence that I’ve imposed. It was just something that I should have said when I dealt with your matter. That completes it. Madam Crown, I understand there’s a problem with the photocopier?

CROWN PROSECUTOR: Yes. I apologise, your Honour. My photocopier has run out of ink and the Court’s has jammed. Mr Hussey has offered to email a copy to Corrective Services to follow Mr Dungay.

HIS HONOUR: Thank you, Mr Hussey.

CROWN PROSECUTOR: I will return this to your Honour, the court file.

HIS HONOUR: I would have said they could have had those copies, Madam Crown; the only problem is I need them for when the reasons come back and I have to correct them.

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Decision last updated: 27 August 2021