R v Campbell

[2018] NSWDC 500

District Court

New South Wales

Medium Neutral Citation:	R v Campbell [2018] NSWDC 500
Hearing dates:	02 March 2018, 09 March 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 2 years and 4 months with a non-parole period of 16 months: at [39].
Catchwords:	SENTENCING – Robbery with an offensive weapon – guilty verdict – non-exculpatory duress – questions of parity – special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Tiknius v R [2011] NSWCCA 215
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown)   Stephen Campbell (Offender)
Representation:	Ms Hurley (Crown)   Mr Hancock (Counsel for the offender)
File Number(s):	2016/197980

Judgment

1. Two factors impose a level of complexity in the sentencing process for Stephen Campbell today. First the evidence which emerged at his trial and, secondly, questions of parity arising from the recent sentence of his co-offender, Washington Alegre.

2. The offence for which Mr Campbell appears for sentence is assault with intent to rob while being armed with an offensive weapon under s 97(1) of the Crimes Act1900 which carries a maximum penalty of 20 years imprisonment with no standard non-parole period. The maximum penalty, of course, is a yardstick to be used in the sentencing process and must be considered in association with the purposes of sentencing set out s 3A of the Crimes (Sentencing Procedure) Act 1999.

3. He was found guilty by a jury after a very short trial in which the only issue was whether he was acting under duress. The circumstances under which that issue arose, the way in which the jury dealt with it and the consequences for the sentencing process are matters to which I will refer.

4. Following a number of adjournments of the matter, the parties have very helpfully agreed on a set of facts which arise from the evidence at the trial and that four page document will be marked MFI 1.

5. The incident which led to the trial occurred at about 6pm on 29 June 2016. Two cousins, Gareth Walton and Anthony Azzato, went shopping at Westpoint in Blacktown. They left via the Patrick Street exit at about 6pm. They were walking near the Police Station and they saw Washington Alegre and Stephen Campbell standing next to a car parked on the side of the road. They appeared to be having an argument. Walton and Azzato sat down on the public bench seat and observed what was going on.

6. The offenders, and I will use that term to describe Alegre and Campbell, walked past Walton and Azzato, and I refer to them as the victims although not strictly accurate, they followed the victims and Campbell walked up beside Walton and said, “Are you guys cops?” and Walton said, “No”. He said, “Do you think I can beat you in a fight?” and Walton said, “I’m not sure”. Campbell said, “I can beat you in a fight”. He said he was black belt and he knew Taekwondo and Muay Thai and that he knew pressure points. Campbell then said, “Do you want to poke?” Walton replied, “What do you mean?” He said, “A shank”. Campbell asked Walton if he had any money. Then he said, “I want your money” and he started swinging punches at Walton with a few connecting to his chest area. Campbell then attempted to tackle Walton. Walton saw something shiny in Campbell’s hand which turned out to be knife.

7. Azzato got in between Alegre and Walton and Azzato started to hit Campbell in the face to get him to let go of the knife. Alegre walked towards the victims and Azzato tried to stop Alegre from attacking Walton. Two off duty police officers saw what was happening and they came onto the scene and saw that there was a knife in Campbell’s hand. One of the police officers took control of the knife and threw it over the fence.

8. Both offenders were arrested. Alegre had been carrying a bag which contained two medium size knives in sheaths, two straight razors, a camouflaged balaclava, a black beanie and a pair of gloves in it and this is the foundation of the duress defence.

9. In a recorded interview that occurred that day, Campbell said that Alegre had told him that if Campbell did not do what Alegre wanted, then Alegre would kill him. He said Alegre had given him a knife and told him that if Campbell did not rob enough people to get a thousand dollars Alegre was going to slit his throat with the knife and he also told Campbell that if he yelled out to the Police as he was going past the Police Station then Alegre would stab him.

10. At his trial Campbell gave evidence that he was not a willing participant in the incident during which Alegre had remained near to Campbell throughout. He was aware that Alegre was in possession of knives and razors as a means to carry out his threat. The evidence at the trial did not establish that Campbell had struck Walton with the knife that was in Campbell’s possession at any time during the incident.

11. Campbell was born in 1997 and has a number of matters on his record which do not entitle him to leniency in the sentencing process. Common assaults were dealt with in the Children’s Court in June 2012 and September 2012. An assault occasioning in November 2012 lead to a control order. There were further assaults leading to a probation order in August 2013 and September 2013, another assault in November 2014 dealt with under a control order. In 2015 a control order was imposed following assaults, and intimidation and further matters of shoplifting and destroy or damage property and assault police officer in were in May 2015 .

12. In the case for the offender, Mr Hancock of counsel tendered a report of the psychiatrist, Dr Richard Furst, which sets out a very disturbed upbringing. He was living in a supervised group home at the time of the offence in question when he was 20 years of age. He was in a relationship of about 12 months duration. He has no dependents. He was reluctant to provide a full history to Dr Furst and told him to contact DOCS to get his history. He had been admitted to psychiatric units on a couple of occasions. He has a history of ADHD with prescription drugs being utilised, has a history of mood instability and bi-polar disorder, a long history of drinking and drug use starting at 11 and 13 years of age, extending to methylamphetamines and abuse of Buprenorphine in custody. He said that on the day of the offence he was coming down from ice and had taken ecstasy. He affirmed to Dr Furst the history that Alegre had put a knife to his throat and demanded that he give him $1,000 after robbing the victims. Dr Furst described a combination of severe developmental trauma, major disruption in terms of relationship with attachment figures, lack of trust in authorities, antisocial attitudes and maladaptive means of coping under stress which make it more like than not that he will remain severely impaired in his psychosocial functioning for the foreseeable future. Dr Furst prescribed a number of treatment options either in custody or in the community which involve intensive therapy and medication which should clearly be pursued. He said that his mental condition was likely to have accounted for his poor decision making, lack of consequential thinking and his offending behaviour generally at the time of the offence.

13. In summary, he has a long history of offending including previous violent offending, an addiction to drugs dating back to his early teens, antisocial attitudes, immaturity, impulsivity, poor self-control, lack of engagement with treating agencies and poor insight and evidence of substance abuse in custody. He is likely to continue offending unless his attitudes change and he shows more commitment to rehabilitation.

14. Mr Campbell has been fortunate to have the support of Mr Yamamoto, who was in Court on the last occasion and is here today. He also gave evidence before me. He is a senior case manager with the Benevolent Society and has had extensive contact with Mr Campbell as set out in his report of 27 September 2017. He believes that Pacific Health and Wellness, the relevant organisation, while being under no illusions that there are challenges, has developed a process of care that has proven dependable to develop pathways for supported persons to feel a sense of safety, trust and belonging.

15. Mr Yamamoto had also been asked about the report of Dr Chenoworth, a consultant developmental psychiatrist, who accurately described Stephen Campbell as at the time of his report in July 2017 as:

“a 19 year old man with an absolutely horrendous history of depravation, abuse, neglect, failed attachments, failed placements, and somewhat forensically challenged. There had been 44 notifications to Family and Community Services before he was finally taken into care at the age of 12yrs.”

16. But he presented to Dr Chenowith as being: “cheerful, engaged, voluble, enthusiastic, and above all had a great facility with the English language, coupled with subtlety, humour and irony”. It was clear to Dr Chenowith that,

“he was performing to give him what he thought he needed to know and was able to manipulate his environment to his advantage in complex ways … any intellectual disability that he may have is, reflective of deficits which were environmentally or situationally determined”.

17. He noted he was caught in a difficult circumstance given that his NDIS funding had been reduced, but he remained in need of strong, confident and trauma informed support. That is fortunately the type of support which Mr Yamamoto was able to offer him with the assistance of his organisation.

18. Mr Yamamoto said that his relationship with Campbell has extended over a period of two and a half years as his case manager. He said he was always polite to him, nice, and told him the truth. He had given him a note in court last time which said, “Please don’t give up me, make sure you come and see me as soon as possible”. He is worried that he may lose support from Mr Yamamoto, but he has been told that his support is like a guarantee, according to his evidence on the last occasion.

19. He proposed on his release to provide intensive support, probably every day, until he is settled into the right environment, and once he has got support in accommodation then he will have a support worker visiting him and taking him to community centres, doctors’ appointments, Centrelink, and assistance like that. Mr Yamamoto’s role is basically to organise and co-ordinate so that everyone is on the same page and providing consistent support to Mr Campbell.

20. There is no contest from Mr Hancock that full time custody is required by the objective and subjective circumstances of this case, but the duration of the term is bedevilled by a number of factors, not least of which are the personal circumstances of Mr Campbell to which I have referred, and the question of parity with the sentence imposed by Gartelmann DCJ on Mr Alegre. It is therefore unnecessary for me to consider any alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999.

21. The Crown’s initial written submissions point correctly to aggravating factors being the actual threatened use of violence, the use of a weapon, and his previous record, but note the need to consider specific and general deterrence and denunciation in the sentencing exercise.

22. The Crown’s supplementary submissions set out a number of the principles in relation to the significance of an offender’s mental health condition which should be taken into account. I accept that the offender has discharged the onus of establishing the contribution of his mental condition in a material way to the offending, as set out in the psychiatric reports to which I have referred.

23. The issue of duress can be approached this way. As I said the sole issue at trial was whether he was acting under duress. He made contemporaneous statements to the police as soon as he was arrested, which were consistent with the evidence given before the jury about him being threatened by Alegre. As the Crown points out the jury must have answered “No” to at least one of the three questions arising. That is, was he driven by the alleged threats to act as he did because he genuinely believed that he would be killed or seriously injured? Secondly, would the threats have driven a reasonable person to act has he did? Thirdly, could he have escaped from the threats?

24. The Crown concedes that it appears that although the defence of duress failed, it may be open to find as a fact, that it is more likely than not the offender would be more vulnerable to the influence of older persons such as Alegre.

25. That is close to conceding the point made by Mr Hancock in his submissions, that the jury’s verdict was consistent with the rejection of one of these propositions and presumably that the jury rejected duress on the basis of not being satisfied of the third question, namely that he could have escaped. That is the jury could have been satisfied in favour of the accused on questions 1 and 2, but not satisfied on question 3.

26. In support of that point, Mr Hancock took me to the extensive discussion on non-exculpatory duress as a factor in sentencing. Johnson J said in Tiknius v R [2011] NSWCCA 215 and, as his Honour said, at [40]:

“Whether an offender is able to discharge the onus on the civil standard of establishing mitigating facts involving non-exculpatory duress will, of course, depend upon the particular case.”

27. I am prepared to accept on the basis of the evidence to which I have referred, particularly given that it was founded on a contemporaneous assertion to Police immediately after his arrest, that on the civil standard, the offender has established non-exculpatory duress, notwithstanding the jury’s verdict and such a finding is consistent with the jury verdict.

28. Mr Campbell has never denied his involvement in the incident. He expressed remorse at the trial and he said that he was sorry for his actions towards the two gentlemen, and if he could take it back and do it any differently he would.

29. I accept that his moral culpability is reduced because of the non‑exculpatory duress.

30. He has been in custody on this matter alone since 29 June 2016 for 89 days and then has been in custody on another matter, which I am told is to be dealt with by way of sentence after a plea of guilty in the Local Court in the very near future. It is common ground that the term of imprisonment to be imposed should commence on 6 December 2016, taking into account some periods of liberty since his arrest on 29 June 2016 and that it was conceded by the Crown, is a practical way to deal with the matter. Thus if the sentencing Magistrate on the next matter is minded to impose a term of imprisonment then his Honour will know that all the periods in custody since 29 June 2016 have been taken into account in the sentence in this matter.

31. Mr Hancock points to mitigating factors, namely, that the offence was not planned or organised, the harm was not substantial, and as I have said the question of duress and the expression of remorse is evidence which I accept.

32. The statistics are of limited use or value given the peculiarities of the subjective and objective case to which I have referred.

33. Mr Hancock’s supplementary written submissions refer to the psychiatric history to which reference has already been made, leading to a diminution in moral culpability and the diminution of this as a suitable vehicle for general deterrence, by reason of the intellectual disability and the associated mental conditions.

34. Turning briefly to the sentence imposed on the gentleman, who may loosely, but not entirely accurately be described as a co-offender, Washington Alegre. He faced an indictment of three counts. First, under s 59(2) of the Crimes Act 1900, of assault in company occasioning actual bodily harm. Secondly, a similar count under s 59(2) in relation to Gareth Walton, the first count being the assault on Anthony Azzato. Thirdly, assaulting Constable Mark Davies in the execution of his duty. He was an older man and a much larger man on the evidence, and the agreed facts upon which Gartelmann DCJ proceeded to sentence have been provided to me, although the remarks on sentence of his Honour are not available. They contain a similar introduction to the episode, but I note that Alegre was attacking Azzato with his fists and punching him on the right side of the face. He then punched Walton as well in the face. After the police officers arrived and took control of the knife Alegre continued to try and attack Azzato. Alegre was bleeding from the mouth after a punch that he had received, and Alegre then stood up and shaped-up in a boxing stance to the police officer and they took him off to a caged vehicle. He was struggling with the Police and lunging around. At one stage he tried to head-butt Constable Davies and spat in his face, spitting blood and saliva into his face. As I have said the agreed facts here also show that Alegre had been carrying a bag with a number of knives, razors and camouflage equipment. He said in his interview that he was so drunk that he had a limited recollection of it, and he said his only intention was to protect Campbell, who was being punched by a bigger man. He said that he had taken the knives and the razors with him that day to be sharpened by Terry the knife guy.

35. I have not seen anything to suggest that Alegre gave evidence, but in the light of the evidence that Mr Campbell gave, I accept that Campbell’s evidence is a proper basis on which to proceed.

36. The Crown’s written submissions in relation to Alegre put that the offending should be considered as below the mid-range of objective seriousness, if not towards the bottom of the range. It pointed to a number of factors indicating the need for general deterrence to be taken into account. Amongst the mitigating factors were the plea of guilty, the lack of any significant record, the harm was not substantial, and the matter could have been dealt with in the Local Court. Notwithstanding that, the Crown submitted that no penalty other than imprisonment was appropriate for the offending for a man who did not have the benefit of youth on his side and had only alcohol issues to rely upon. It seems that Gartelmann DCJ imposed a s 9 bond, and as I said, that raises real questions of parity which may lead to a legitimate sense of grievance on the part of this offender. Notwithstanding that, the charges were different and the maximum penalties were different. As the Crown correctly points out, recent authorities on parity demonstrate that matters of form are less important than matters of substance

37. There is a clear basis for a finding of special circumstances to be made given the fact that this is the first time in adult custody and that there is a clearly demonstrated basis for significant supervision, counselling and support to be provided by Mr Yamamoto and others in coordination with him. For those reasons the orders that I make are:

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 2 years, 4 months to commence on 6 December 2016 and expiring on 5 April 2019.

3. I impose a non-parole period of 16 months, expiring on 5 April 2018. The offender is eligible for release to parole on that date.

4. I find special circumstances.

Note – This extempore judgment was revised without access to the court file

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Decision last updated: 14 May 2019