R v Coy Gary Saunders

[2007] NSWDC 59

CITATION:	R v Coy Gary Saunders [2007] NSWDC 59
JUDGMENT DATE:	9 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	PURSUANT TO S12 OF C(SP) ACT ALL SENTENCES ARE SUSPENDED; CONDITIONAL UPON ACCUSED ENTERING GOOD BEHAVIOUR FOR 6 MONTHS AND ANOTHER BOND TO BE OF GOOD BEHAVIOUR FOR 11 MONTHS SUSPENDED; IN LIEU:-; FURTHER CONDITIONS:; ACCEPT SUPERVISED BY P&P; FOLLOW ALL REASONABLE DIRECTIONS OF P&P; IF P&P WANT ACCUSED TO BE RELEASED – SHOULD CONTACT JUDGE WITH REPORT.; LEAVE IS GIVEN TO WITHDRAW BACK UP CHARGE.
CATCHWORDS:	Criminal Law - sentencing - attempt robbery in company - AOABH (x2) - disguise face with intent - impulsive act determined upon whilst affected by alcohol - suspended sentence after successful completeion s11bail.
LEGISLATION CITED:	s12 Crimes (Sentencing Procedure) Act 1989
CASES CITED:	Griffiths v The Queen (1977) 137 CLR 293
PARTIES:	Regina Coy Gary Saunders
FILE NUMBER(S):	06/31/0095
SOLICITORS:	Ms R Sharma - Office of Director of Public Prosecution Def: Ms V Taylor - Nicolas Moir & Associate (Accused)

SENTENCE

1 HIS HONOUR: About 12.30am on Sunday 26 November 2005, Coy Gary Saunders and another man went to the Taree Leagues Sports Club in company with a third male who has not been identified. At 12.30 the club had ceased trading, the doors were closed, twelve patrons inside the premises were finishing their final drinks. There were four duty staff members cleaning up after the night's trading. An entertainer was also present, in the process of packing up equipment.

2 It may be worth noting that at least two of the persons whose identity is known, this offender and the co-offender with whom I am also dealing, are young men. This offender was aged twenty at the time of the offence and his co-offender aged eighteen. The age of the unidentified male is unknown.

3 They loitered in the vicinity of the front door of the club. When someone left the front locked door to exit the premises, the offender and the co-accused pushed past her and ran into the club. The lower half of their faces were covered by clothing pulled up. They ran to the main area of the bar. The woman leaving was alarmed and yelled. She ran back into the club and tried to alert the others to the presence of the intruders.

4 One offender ran to the front of the TAB cashiers cage. The other offender, Saunders ran to the bar, jumped over the bar and moved towards the cash register.

5 A staff member moved towards this offender took hold of him, pulled him away from the TAB area and held him against a wall. He struggled violently, elbowed the staff member in the mouth cutting his bottom lip and causing it to bleed. The staff member fell to the ground. Another staff member came to his assistance and both took hold of the accused in an attempt to detain him. He struggled violently against these two and all fell to the floor. A male patron then came to the assistance of the two staff members and together all three attempted to arrest the offender. He continued to struggle violently and in the course of that struggle bit the second staff member deep on his bicep. He bit the patron on the left thigh.

6 As a result of the fracas a number of patrons used their mobiles to call for police assistance. Police arrived within minutes, handcuffed the offenders and placed them under police arrest. When Saunders was arrested he called upon his co-offenders to stop struggling and surrender. He was placed in a cage vehicle and conveyed to Taree.

7 During the incident, particularly the struggle, he threatened to assault the staff members, stated he knew he was going to gaol and when he came out he would come back to the club and assault them. It was observed by the police at the time of his arrest that he was moderately to well affected by alcohol or a drug. He claimed to have a knife in his shirt that he would use on the three men if they did not let him up. They were fearful that they may be stabbed if they let go him. When searched though, he was not in possession of any weapons.

8 As a consequence of his involvement he was committed for sentence on a number of charges. These are the charges: assault occasioning actual bodily harm x2, attempt robbery in company, and having face blackened, disguised, with intent to commit indictable offence.

Objective Criminality

9 In assessing the objective criminality of the offence, the first thing to note is that the attempted robbery itself was not successful. The offender attempted to rob the Taree Sports Club of the money in the till whilst being in the company of Michael Marr and another male.

10 As I say the objective seriousness of this offence is significant because of the number of people who were present and put in some danger by the escapades of these three men particularly once the arrests had been attempted.

11 The offences of robbery in company carries a maximum of twenty years imprisonment. As such, it is one of the more serious offences on the criminal calendar. I am satisfied it was not planned or to put it another way, was a spontaneous offence although clearly there was an intent to commit a robbery prior to them entering into the premises. I am satisfied that the plan, if that is the correct word, was hatched but moments before in the course of drinking somewhere else. As this offender said in evidence to me, it is not an offence he would have done if he had not been drinking. I am satisfied that is probably so. In other words, I am prepared to accept that the alcohol impacted upon his capacity and willingness to make sensible judgments and he was more disinhibited than he otherwise would have been had he not been drinking.

12 The probation and parole report for the Court in Taree where he initially pleaded - described him as being the eldest of four children, his parents separating when he was about eight years of age.

13 However, because of the family dynamics, as often happens with Indigenous children, he was raised by his grandparents. He had lived, till about the age of ten with his dad. His father treated him violently on occasions and he returned to live with his grandparents. He gave evidence of experiencing and drinking alcohol at aged 11 and smoking cannabis aged 13, certainly while he was still barely pubescent. As often happens with Indigenous children, because they do their drinking and smoking of cannabis with other teenage lads and sometimes those older than teenagers, he came under the influence of more sophisticated offenders in Taree and became involved in more serious criminal offending.

14 Hopefully when he is now joining those in the park and the younger kids there he is trying to say something more sensible to them about the way in which they behave rather than have them walk in the same footsteps he walked in. He has been the subject of several juvenile control orders. He has spent several periods in Juvenile Justice detention.

15 Approximately in September 2005, a child was born to him and his girlfriend. That child is already having a bit of a tough run because initially his partner was in juvenile detention and was not released until April of last year when the child was seven months old. He too was in custody for those early months of the child’s life. I think he had been with the child for a couple of months and then went into custody.

16 A year ago when he came before me in Taree I indicated to him that I would give him an opportunity to demonstrate that he could rehabilitate; that I particularly wanted the cannabis and the alcohol issues addressed. I received reports from Bennalong Haven where he was admitted.

17 The report from Bennalong Haven of 30 November says this, that the offender commenced using alcohol at the age of fourteen and marijuana at the age of nine. I think the evidence before me was slightly different.

“Has shown a determined attitude to getting sober. He appears to be motivated to change his life because he wants to establish a family with his children and wife. He has genuine remorse about his behaviour and his past. His Taree larger family have given him good standards if he remains sober. His family stand to assist his development of personal goals and initiate an initiative. The offender is respectful and keen to do his best during his time in treatment. He expressed a wish and intention to write an apology for his recent actions. This should assist his current feelings of guilt and assist his process of treatment. He has attended group meetings and has been an active listener. He appreciates being able to talk to staff and clients and feels any stress is released as a result of discussion. He appears to be positively acting to treatment, urine screens have been negative. He recognises marijuana as his number one problem followed by alcohol.”

18 He had gone to that program as a consequence of telling Mr McGrath of his willingness to enter the residential drug program. Mr McGrath being the author of the pre-sentence report on 22 March. He has expressed to Mr McGrath that he is ashamed of his behaviour on the night. He has, so far as Mr McGrath can tell, genuine remorse. He claimed he wanted an opportunity to personally apologise to the victim of his offences and Mr McGrath picked that up in a recommendation to him that once his sentencing had been completed he could pursue a restorative justice initiative to apologise. That would require a Department Restorative Justice Victim Conference and all of that can only be arranged post his sentence.

19 He has written to me as perhaps was suggested by the Bennalong Haven psychologist with whom he had been dealing, this letter:

“I am writing this letter in a last ditch effort because the last six months there has been a real change in my thoughts and actions. I’ve realised that I don’t want this life in gaol and I don’t want to spend the rest of my life in and out of gaol. I’ve tried to better myself so that when I'm released I can adapt back into the community to do something useful with my life. In the last six months things have happened, I am sorry for the people I have hurt and if I could take it back I would. Since my daughter has come into my life I have realised I am no longer a boy I’m a man and have to accept my responsibilities or my daughter will never know her father. I’ve already missed six months of her life and I want to be able to bond with her so I don’t miss her first words, first steps. I want her to know who her father is as I didn’t have the opportunity to know my father as good as I wanted to. It’s something I would regret for the rest of my life. If I didn’t get that opportunity to be there for my daughter, I would also like to continue my schooling to better my future.”

20 I am satisfied that the offender has made a genuine effort to rehabilitate. If he is able in the environment in which he lives to come to grips with his abuse of marijuana and his abuse of alcohol, if he can find himself employment (he expressed an interest in brick laying and in landscaping), he is likely to be making a useful contribution to the community in which he lives and likely to be an example for other Indigenous people.

21 It is a fact that a greater percentage of Indigenous people do not drink at all by comparison to the white population. It is a fact that Indigenous people are participating actively in this community in the fields of sport, in the fields of tourism, in the fields of agriculture, in the field of art, that is painting, in the theatre. Those who drag the Indigenous community down are those who take away from the achievements of the other Indigenous people.

22 What I would have proposed to do in this case is to have imposed an overall sentence of eighteen months imprisonment. I come to the figure of eighteen months by discounting the figure that initially had in mind which was two years by twenty five percent for the plea of guilty and for the contrition exhibited by the offender. I also now embrace within that figure the progress made in rehabilitation. In picking that figure I also have in mind that he has been under supervision of what Chief Justice Garfield Barwick spoke of as “compulsory rehabilitation” for the past twelve months (see Griffiths v The Queen (1977) 137 CLR 293.

23 I now have in mind an overall sentence of eighteen months imprisonment. From that figure must be subtracted the period he did in full time custody.

24 From the eighteen months comes seven months leaving eleven months. I do not intend to set a parole period. Hopefully I will not have to. The formal order I make are these - they do not appear to have committed him for the larceny or the attempted larceny.

Formal Orders

25 Would you stand up please Mr Saunders. For the offence that you on 26 November 2005 at Taree assaulted Barry Richards thereby occasioning to him actual bodily harm, I sentence you to six months imprisonment, fixed term.

26 In respect of the assault on Gary Chapman at the same time and place, occasioning to him actual bodily harm, six months imprisonment. Assuming they were the two that were committed. There is a third one there.

27 In respect of the offence that you attempt to rob the Taree Leagues Sports Club of certain property whilst being in the company of Michael Marr I convict you. On that offence I sentence you to eleven months imprisonment. On the offence that you had your face disguised, that is with the clothing pulled up over it, with intent to commit an indictable offence, namely robbery I convict you of that offence and I sentence you for that offence to six months imprisonment.

28 Pursuant to s 12 of the Crimes (Sentencing Procedure) Act conditional upon you entering into a bond to be of good behaviour for six months and conditional upon you entering into a bond to be of good behaviour for eleven months, I will suspend the six months sentences and the eleven months sentence. The conditions of the bond are that you will continue to be supervised by Probation and Parole. It is a matter of whether you are prepared to accept that condition or would you sooner go to gaol. It is not a hard choice to make is it?

29 It may not be a hard choice to make here, but it becomes a harder choice out in the community, because if you do not accept the supervision what happens? You are in breach of your bond and you come back here. There is not a lot I can do about it then because the prison sentence already exists. Do you understand?

OFFENDER: Yeah.

HIS HONOUR: The other reason to accept supervision is they are there to help you and you seem to have been making progress.

30 I order he enter into a bond to be of good behaviour for a period of six months. I order he enter into a bond to be of good behaviour for eleven months pursuant to s 12 in each case. The condition of each bond is that he accept the supervision of probation and parole and to follow all reasonable directions of the Probation and Parole Service. If probation and parole want him to be released they should write to me and inform me of his progress.

HIS HONOUR: So the back up charge, what do you want me to do with that?

SHARMA: The back up charge your Honour that’s sequence 1.

HIS HONOUR: Do you want to withdraw it?

SHARMA: I do.

HIS HONOUR: Leave is given to withdraw.

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