R v Chapman

[2019] NSWDC 902

District Court

New South Wales

Medium Neutral Citation:	R v Chapman [2019] NSWDC 902
Hearing dates:	9 May 2019; 30 May 2019; 19 July 2019
Date of orders:	19 July 2019
Decision date:	19 July 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence. Decision at [62] – [65]
Catchwords:	CRIME – sentencing – robbery in company
Legislation Cited:	Crimes Act 1900 ss97, 154A, 192E Crimes (Sentencing Procedure) Act 1999 21A
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 R v Henry (1999) 46 NSWLR 346
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Hayden Chapman (Offender)
Representation:	Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2018/202067
Publication restriction:	None

Judgment

1. The Offender, Hayden Leigh Chapman, was born on 13 March 1995 and appears before the Court today for sentencing in relation to two principal charges and two matters on a s166 certificate.

2. The principal charges relate to robbery in company, said to have occurred on 15 April 2017, in breach of s97(1) of the Crimes Act and carries the maximum penalty of 20 years imprisonment which of course is a guideline as to the seriousness with which the parliament considers the offending. The second charge is take and drive conveyance, also on 15 April 2017, in breach of s154A(1)(a) of the Crimes Act. The maximum penalty for that offence is five years. Those two charges are sequences 2 and 4 in H number ending 874.

3. As I mentioned, I have also been asked to sentence the Offender for related offences, being sequences 5 and 6, they being the same charge, namely dishonestly obtain financial advantage by deception, in breach of s192E(1)(b) of the Crimes Act. The maximum penalty of each of those two offences is 10 years imprisonment, which again provides a guideline as to the seriousness with which the Parliament views such offending.

4. The Offender was committed for sentence from the Local Court on 3 May 2019, and having pleaded guilty at an early stage, is entitled to a reduction in sentence for this plea.

5. The offending occurred on 15 April 2017. The Offender was arrested on 25 July 2018 and has been in custody since that time, being a period of 360 days. He was, at the time of the offending, the subject of parole for other offences, namely possessing an unauthorised firearm and also dishonestly obtaining financial advantage by deception. Parole was revoked, but later the revocation was rescinded and the Offender was not arrested for this matter until the parole period had expired in any event. As the co-offender remains unidentified, there are no issues of parity which arise in relation to the sentencing of the Offender.

6. The Agreed Facts provide as follows:

7. At about 11.20pm on 14 April 2017 the victim, Alexander Stephens, returned from work to his home at Wyoming. Nobody else was present when he arrived. The victim went to his bedroom and was watching television. The victim saw the sliding door to his bedroom open and two males walked in carrying golf clubs. One of those males was the Offender. Both men were wearing hats and hoodies with the drawstring pulled tight so that most of their faces were covered. One of the men was Caucasian, around 17 to 18 years of age and between 5 foot 8 and 5 foot 10. The other man was described as Middle Eastern, the same age and a bit taller.

8. One male said, “Where are the drugs? Where have you hidden them? We know who you are?” The victim responded “I have no idea what you’re talking about. I don’t do drugs, I don’t sell drugs”. The male said “Don’t move or we’ll bash you, we’ll beat you up. Cover your face”. The victim pulled his dressing gown over his head.

9. One of the males walked near the victim and picked up his keys, wallet and phone. He said:

“Don’t move a muscle or I’ll beat you to a pulp. When we go, you wait 30 minutes to an hour before you even stick your head out from under the fucking blanket. Don’t call the police, don’t do anything.”

10. The man began to ask the victim questions, before again asking about the drugs. The victim responded that he didn’t have drugs but had some alcohol. The man asked what the victim’s keys were for, before asking him for his PIN. The victim recited his PIN and the man said, “Don’t lie to me, don’t make me have to hit you”.

11. The male walked onto the balcony and said, “I’m going now, my friend is going to be here watching you. Don’t move or he’ll beat the shit out of you”. The victim could hear one person walking around the room and the golf club dragging on the floor. After a few minutes the victim heard the man in his room talking on the phone. The man once again asked for his PIN, which the victim recited. The victim was asked what his key was for and he told the man it was for work.

12. About five minutes later the other man returned. The man demanded to know the code to the safe at the victim’s work. The victim said he did not know. The males began to go through the victim’s drawers, and then asked the victim where the other occupants of the house kept their valuables. The victim then heard one man say to the other, “Stuff whatever you can in here”. The first male asked the victim “Do you remember what to do?”. The victim repeated that he would stay in his room for half an hour and then go to bed and was not to call anyone including the police. The man said that if the victim disobeyed the rules, he would “come back and I’ll kill all your family”.

13. Around ten minutes later the victim took his dressing gown off his head and locked all the doors of the house. The victim noticed drawers and cupboards open in the main part of the house. The victim also noticed that his Samsung Galaxy S6 phone, Microsoft Surface Pro 3 Laptop and wallet were missing. The victim noticed his car was missing. The victim’s car was a green Ford Laser Hatchback, with the registration number referred to in the Agreed Facts. At or around 2.30am, the victim went to his next door neighbour’s house. The victim said that the house had been broken into by two men, his car had been stolen and asked them to call the police. One neighbour called the victim’s mother, who put a stop on his internet bank transactions and cancelled his debit card.

14. The following facts relate to the matters on the s166 certificate. At around 2.20am, prior to being cancelled, the victim’s debit card was used at an ATM at Westpac North Gosford. One withdrawal of $300 was made, and a second withdrawal of $200 was made immediately after. These withdrawals were captured on CCTV which showed an individual with a grey jumper wrapped around his face using the ATM.

15. In the early hours of 15 April 2017, police saw the victim’s car parked on Range Road, North Gosford. The victim participated in a photo-board line-up and identified the Offender as one of the males who broke in. Police conducted a forensic examination of the house and the car. The Offender’s DNA was located on the door handle in the kitchen of the house. The Offender’s DNA was found on a grey Jag long-sleeved shirt located in the victim’s car. The Offender’s DNA was also located on a Sprite can found in the centre console of the victim’s car.

16. The Offender was arrested 25 July 2018, and offered the opportunity to participate in an interview. He said that around the time of the offence he was hanging around with the wrong people. He recalled being picked up by a mate in the early hours of the morning in a green Ford Laser Hatchback. The Offender told him he had left a black long-sleeved jumper in the car. Those are the facts agreed and signed by the parties.

17. I note that the Offender has a criminal history which appears to date back to around 2012 with an offence occurring in Queensland, being stealing from a shop. There are a number of shoplifting offences, a number of offences of dishonestly obtaining financial advantage by deception, as well as goods in personal custody suspected of being stolen. In addition, there are at least three drug possession offences. There is a previous aggravated break and enter of dwelling in company, for which the Offender was imprisoned, as well as two firearm related offences. It was submitted by Mr Gibbons on behalf of the Offender that his criminal history is not such as to aggravate the offending.

18. I also have been provided with the conviction sentence and appeals documents produced by the New South Wales Department of Corrective Services, which indicates that as recently as 6 May 2019 the Offender in prison was found in possession of a drug implement, suggesting in the absence of any explanation that he was using drugs whilst in prison.

19. The other evidence that has been provided to the Court for purpose of sentencing the Offender is a report by Dianna Jrujoska, Psychologist, dated 9 July 2019. She interviewed the Offender for the purposes of this sentence at the John Morony Correctional Centre on 21 June 2019. She would have had access to the Agreed Facts and the Offender’s criminal record.

20. She provided a detailed history of the Offender’s background. It seems indisputable and accepted that he had a deprived upbringing. Following the early death of his mother, the Offender was cared for by his grandparents after being in foster care. In one such placement he was assaulted at the age of 11 or 12 and suffered a black eye, causing him to steal the family’s car to get away. He then crashed the vehicle, resulting in a broken arm and leg. In 2011 he went to Sydney to live with his grandparents, which apparently he enjoyed, staying with them for a period of three years. I note that both grandparents have since passed away.

21. A history of his education is set out commencing at page 3 of the report. Whilst he appears to have completed Year 12 at school, I do not expect, given the assessment of his intellectual capacity, the result would have been particularly outstanding. No further education was undertaken by the Offender. After school he reported that he did work as an apprentice mechanic for about 18 months, but was dismissed after being involved in a fight with a colleague.

22. He has a partner of two and a half years and they have a one year old daughter. He told the Psychologist that he’s always hung around the wrong crowd, particularly after losing his apprenticeship. He began to sell illicit substances and engage in break and enters. He turned to crime after he moved out of his grandparents’ home and began residing with friends.

23. Although the Offender apparently does not consume alcohol, he informed the Psychologist that he commenced taking illicit substances such as cannabis, ice and cocaine with friends at about the age of 18 years. He stated that he used drugs every second day “to deal with pain”. When further questioned, the pain he was referring to were the emotional difficulties arising from negative past events.

24. He told the Psychologist that he had been using substances up until his recent incarceration. The custody records, however, tend to suggest otherwise, implying that he has continued using drugs in prison.

25. On the date of the incident, according to the report, the Offender had used the substance ice (about a half a gram) and Xanax (about 6 tablets). He had difficulty remembering the events of the incident and could only remember going for a walk and identifying a house. He explained that after seeing a house on his walk he can briefly recall being in a police chase with his friends. He expressed regret for the incident stating, “I wish I had never gone out that day”, and acknowledged that what he had done was a poor decision.

26. Despite giving evidence that upon release he intended to live with his spouse in Gosford, he told the psychologist that he has plans to move to Queensland with his family to start afresh, and has goals of obtaining employment.

27. The assessment by the Psychologist failed to identify any current symptoms relating to depression, anxiety or stress, although she did note an extremely high psychological dependence on ice. An assessment of his intelligence was performed using the Wechsler Abbreviated Scale of Intelligence 2nd Edition. It assesses overall cognitive functioning by obtaining estimate scores of an individual’s verbal comprehension and perceptual reasoning abilities.

28. The Offender’s verbal comprehension skills were in the borderline range and better than 5% of his peers, to suggest that he is performing at a level significantly below that of which is expected for others of his age. He performed well in basic vocabulary skills requiring him to define certain words. His perceptual reasoning skills were in the extremely low range. He demonstrated severe challenges in his ability to analyse and synthesise abstract visual stimuli. The Psychologist concluded that the results revealed a statistically significant discrepancy of 20 points, which is equivalent to just 2% of people in his age group.

29. He is of overall low cognitive ability, and further testing has been suggested. The author of the report recommended participation in the EQUIPS program in custody, which plainly would be in the interests of the Offender.

30. The Offender also gave evidence before the Court. Without being disrespectful to him, I must say that my impression of his intelligence is consistent with the test results obtained by the psychologist. He told the Court that he lived with his grandparents from about 2011, and that prior to that he lived in foster care after the passing of his mother. He said he had a partner, and together they had a child of seven or eight months of age. He speaks with his partner daily but the child does not attend the prison. He also said that upon release he intends to live in Gosford.

31. Submissions have helpfully been provided by both the Crown and solicitor for the Offender. The Crown Submissions (MFI 1) compare the offending to the offending referred to in the guideline judgment of R v Henry (1999) 46 NSWLR 346, although noting that in in this case the Offenders were also armed. The following features were identified by the Crown in the guideline judgment as being present in the present matter:

1. the Offender is young. I note that he was just 22 years of age at the time of the offending and he is now 24 years of age;

2. he did have a criminal history, including seven prior convictions in New South Wales and a prior conviction in Queensland;

3. he was charged with an in-company offence, however, the Offender was also armed with a golf club;

4. given the Offender’s drug taking on the night of the offence, it is open to the Court to find there was a limited degree of planning and I so find;

5. there was a limited degree of actual violence, but certainly a real threat thereof;

6. the items taken included the phone, the tablet, laptop, the car keys and the victim’s wallet; and

7. a plea of guilty was entered in the face of a very strong Crown case.

32. The Crown submitted this was an objectively serious offence, with the offending occurring after midnight whilst the victim was alone in his home. This was not a brief offence, with one Offender leaving for a period during which the victim could hear that the other Offender remained in the room, before the co-Offender returned. It was submitted by the Crown that the offending is more serious than the typical case contemplated by the guideline judgment in Henry.

33. In relation to take and drive conveyance, the Crown submitted that the objective seriousness of that offending falls below the mid-range. In relation to the dishonestly obtain financial advantage, similarly it was submitted that it falls at the low end of the range of objective seriousness. There was virtually no sophistication involved in the offending, and the amount taken was relatively small.

34. As for aggravating features of the offending the Crown relies upon the threatened use of a weapon and the fact that the offending took place in the victim’s home. I find both of those matters exist and do aggravate the seriousness of the offending.

35. The offending also took place at a time when the Offender was on conditional liberty, namely parole, which is an aggravating factor pursuant to s21A(2)(j). In relation to the Offender’s criminal record the Crown does not submit the offence is aggravated by the Offender’s history of previous offending, however, the Crown submitted that his criminal record disentitles him to any particular leniency. I find that the Offender’s criminal record supports a finding that he is not a person of prior good character, and disentitles him to any leniency, although I do not find it to be an aggravating factor.

36. In terms of mitigating features, the plea, albeit in the face of a strong Crown case, is a matter which mitigates against sentence.

37. The Crown submitted that it was open to the Court to find the Offender’s moral culpability reduced by reason of his deprived upbringing and in those circumstances the weight to be distributed to general deterrence may be reduced. I find that the Offender did suffer a deprived upbringing and, as a result, his moral culpability for the offending is reduced, placing less weight on the need for general deterrence in terms of the sentence.

38. Submissions were made by the Crown concerning the cognitive limitations of the Offender, noting that the submissions on behalf of the Offender were to the effect that leniency should be afforded to him on the basis of his cognitive deficits. The Crown submitted that that would not be an appropriate finding in the circumstances. The Crown referred to the report of the Psychologist, which recorded the overall low cognitive ability, warranting further investigation. In contrast, in the matter of Muldrock v The Queen (2011) 244 CLR 120, where a similar issue arose, it was a case involving a mentally retarded Offender, with the Court finding that mental retardation is defined by reference to both significantly sub-average general intellectual functioning and significant limitations in adaptive functioning. Further, in Muldrock, the court explained a causal link between the mental state of the Offender and the offending. The Crown ultimately submitted on this topic that a court would not further reduce the need for general deterrence on the basis of his low cognitive capacity.

39. As for rehabilitation, the Crown submitted that the Court would not be able to find on the evidence currently available that the Offender has good prospects of rehabilitation. Reference is made to the report by the Psychologist and the history of drug taking, together with the Offender’s criminal history.

40. The Crown submitted that the evidence of ongoing disobedience since these offences, combined with the lack of evidence of pro-social influences pose a difficulty for the court in finding the Offender has good prospects of rehabilitation.

41. I find myself unable to make any specific finding concerning his prospects of rehabilitation and I conclude that they are guarded. Similarly the risk of re-offending can only be considered as guarded consistent with the finding concerning rehabilitation.

42. The Crown submitted the s5 threshold had been crossed and that a custodial sentence was warranted. The Crown appears to be neutral in its submissions as to the finding of special circumstances, but reminds the Court that any factor to take into account to reduce the head sentence ought not also be a factor relied upon as a special circumstances and warranting an adjustment of the statutory ratio.

43. Submissions have been provided on behalf of the Offender (MFI 2). It was conceded that objectively the matter is more serious than the typical case in Henry due to the offence occurring over some time and in the complainant’s home. It was submitted however that the subjective features, particularly deprived upbringing and low intellect reduce his culpability to some degree.

44. In relation to the take and drive conveyance, Mr Gibbons submitted that the offence was a little less than the middle of the range of matters, and that it would normally be dealt with summarily. Similarly, he submitted that concerning the obtain benefit, it is unclear which of the Offenders withdrew the money, but clear that the crime was committed pursuant to common purpose and that it was the low range of offences typically dealt with.

32. In relation to the Offender’s objective features the submissions relied upon by the Offender are generally consistent with the observations of the Psychologist. I have already found that the Offender suffered from a deprived upbringing and is suffering from low intelligence.

33. A submission was made concerning a delay of 15 months between the offending and the charging of the Offender, resulting in the sentence now being over two years after the offending took place. I do not consider that to be a material delay for the purposes of sentencing.

34. The Offender has conceded the two aggravating features, namely his criminal record, although I note the Crown does not rely upon that as being an aggravating factor pursuant to s21A. Consistent with the Crown submission on that topic, I do not find it to be an aggravating feature, despite the submission to the contrary by Mr Gibbons. He further agreed that the fact that the Offender was on conditional liberty, that is parole, at the time of the offence is an aggravating factor, and I accept that submission.

35. As for mitigating factors, Mr Gibbons has pointed to the prospects of rehabilitation and relies upon the fact that the Psychologist formed the view that the Offender seemed genuine in his wish to address his drug addiction. Mr Gibbons submitted that the Court should hold hope for his rehabilitation and allow some support for this upon his release. The Court certainly does hold hope for his rehabilitation both for the sake of the community, himself and his family.

36. Imprisonment was conceded in the submissions on behalf of the Offender. In terms of special circumstances, the submissions were to the effect that the Offender’s cognitive deficits, prospects of rehabilitation and accompanying need for supervision would be appropriate reasons to allow a finding of special circumstances with regard to this offence.

37. There is no doubt that the Offender requires rehabilitation. Often a custodial sentence can hamper that occurring and services which are directed towards rehabilitation are more easily and readily accessed within the community. On that basis I find special circumstances.

38. Mr Gibbons also provided the court with statistics (MFI 3) in relation to the primary or more serious offence of robbery, being armed or in company. It would appear that the head sentence for such an offence sits around three to four years or thereabouts, with a non-parole period appearing to be just over two years.

39. If I have not already stated, I do accept the submission of deprived upbringing and, as a consequence, find that the moral culpability of the Offender is reduced compared to a person who was not exposed to the same upbringing as the Offender.

40. I am mindful of the purposes for sentencing set out in the Crimes (Sentencing Procedure) Act. Namely punishment, there is no doubt that this offending calls for stern punishment as is reflected in the guideline judgment of Henry. Secondly, to deter both the Offender and others from committing like offences. The purpose of specific deterrence is to some extent tempered by the fact that the Offender has had a deprived upbringing and suffers from a low intellectual capacity.

41. The next purpose is to protect the community from the Offender. In view of his history of offending, although not terribly extensive, there is a need for protection.

42. Rehabilitation does loom large, and given the history of drug taking it is a purpose for sentencing which bears heavily upon the Court in this matter. The Offender will be sentenced and found accountable for his actions. His conduct has been denounced and I openly recognise the harm done to the victim of the crime, who was subjected to the offending after returning home from work and in his own home.

43. Pursuant to s5, I find that, having considered all possible alternatives, no penalty other imprisonment is appropriate. Further, I find that a fulltime custodial sentence is appropriate.

44. Given the contemporaneity of the offending, it seems to me that it’s appropriate that the sentence be an aggregate sentence. Before announcing an aggregate sentence, I am first required to provide indicative sentences. I note that none of the offences contain any standard non parole period and therefore it is not necessary for me to provide indicative non parole periods.

45. In relation to sequence 2, I provide an indicative sentence of four years imprisonment, which after a discount of 25% represents an indicative sentence of three years.

46. In relation to sequence 4, that is the take and drive offence, I provide an indicative sentence of twelve months, which after discount of 25% is an indicative sentence of nine months.

47. In relation to sequence 5, the first dishonestly obtaining financial advantage offence, I provide an indicative sentence of eight months which after discount is six months.

48. In relation to sequence 6, the second dishonestly obtaining financial advantage offence, I provide the same indicative sentence, being eight months reduced by 25% to six months.

49. Mr Chapman, you are convicted of the offences for which you have pleaded guilty, namely robbery in company, a breach of s97(1) of the Crimes Act. You are further convicted of take and drive a conveyance in breach of s154A(1)(a) of the Crimes Act. You are also convicted of the two offences which you have asked the Court to have regard to and sentence you for, namely sequence 5 (dishonestly obtain a financial advantage by deception) and sequence 6 (dishonestly obtain financial advantage by deception).

50. Before announcing the sentence, I find that the objective seriousness of the robbery in company offence falls at about the mid-range. I find that the take and drive conveyance offence falls below the mid-range and I find that the two dishonestly obtain financial advantage by deception fall at the low range of objective criminality.

51. For those convictions I impose a head sentence of three years and six months with a non-parole period of two years. The sentence will date form 25 July 2018 and you will eligible for release on 24 July 2020. The balance of term will expire on 24 January 2022.

52. I also order that upon release on parole the Offender be the subject of supervision by Community Corrections and that he participate in any programs recommended by Community Corrections directed towards rehabilitation.

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NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 65 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

Associate

James Bailey

Decision last updated: 09 June 2020