R v Crawley

[2021] NSWDC 354

District Court

New South Wales

Medium Neutral Citation:

R v Crawley [2021] NSWDC 354

Hearing dates:

27 July 2021

Decision date:

27 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 3 months with a non- parole period of 2 years.

Catchwords:

CRIME - Dishonestly obtain property by deception - Possess unregistered unauthorised pistol - Break, enter & commit serious indictable offence - carried in conveyance taken without consent of owner - Knowingly drive stolen conveyance - Aid/abet assault occasioning actual bodily harm while in custody

SENTENCING - Relevant factors on sentence - multiple offences - short period of offending- breach of bail- long custodial history - unable to live a normal life in community - unable to adapt to the custodial environment- incarceration has not proved an effective deterrent – aided an assault in prison - deprived background - early plea - structure of sentence

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Attorney General’s Application No. 1: [2002] NSWCCA 518 (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Kinzett v R [2021] NSWDC 339

Markarian v The Queen (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

Ponfield v R [199] NSWCCA 435; (1999) 48 NSWLR 327

R v Herring (1956) 73 WN (NSW) 203

R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Windle [2012] NSWCCA 222

Ryan v The Queen (2001) 206 CLR 267

Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Joshua Anthony Crawley (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr B Hart (for the offender)

Solicitors:
Justine Hall (for the offender)
Ms N Verghese (for Director of Public Prosecutions)

File Number(s):

2020/72303; 2020/144880; 2020/108716; 2020/322566; 2020/230716

SENTENCE

Introduction

1. Joshua Crawley is now 31 years old. He has spent over 10 of the last 11 years in custody. He also spent most of his teens in juvenile detention. He has never lived a normal life in the community. He does not know how to live a normal life in the community. His time in gaol has not been comfortable either. He has trouble coping with prison discipline and routine. Gaol has not made him a better person. In the community he takes what he wants and does what he wants. It is the only life he knows. Since 2010 the longest period he has stayed out of gaol is 2 months!

2. On the 19 February 2020 he was released from Junee gaol as his sentence had expired. His offending commenced on 23 February 2020. He was back in custody on 5 March 2020. He was bailed on 17 March but arrested again on 10 April 2020. He has been on remand ever since.

3. Crawley is for sentence today for 7 indictable matters, two others matters have been placed on two Criminal Procedure Act 1986 Form 1’s. Guilty pleas were entered in the Local Court; requiring each sentence be reduced by 25% to reflect the utilitarian value of those pleas.

Matters for sentence

Dishonestly obtain property by deception: s 192E(1)(a) Crimes Act 1900 and Form matter

4. On Saturday 22^nd February 2020, the victim parked his car outside his home in Woonona. It was left unlocked overnight. His left his wallet in the centre console. At about 1.00pm the next day the victim noticed that the centre console in his vehicle had been opened and his wallet was gone.

5. At about 5.14am on 23 February 2020 the victim’s credit card was used to make an unauthorised transaction at a Service Station in Bellambi, in the amount of $49.95. The offender is captured on CCTV purchasing two energy drinks and a packet of cigarettes: Form 1.

6. At 6.13am that morning the offender made another unauthorised transaction at a Service Station in West Wollongong, in the amount of $79.40. The offender is captured on CCTV purchasing a packet of cigarettes, two $20 vouchers and a packet of strawberry and cream lollies.

Possess unregistered unauthorised pistol in public place: s.93I (2) Crimes Act 1900

7. At about 10.00pm on Thursday 5^th March 2020, police were conducting patrols of the Koonawarra area. They saw a parked black Holden Cruze. The offender was seen seated in the rear passenger seat. Two other people were seated in the driver’s and front passenger seat respectively. All three were searched. Nothing of interest was located.

8. Police then searched the vehicle where a gel capsule pistol, modelled on a Smith and Wesson revolver, was located under the passenger seat. The offender denied any knowledge of the firearm.

9. The firearm was subsequently examined by the Forensic and Analytical Science Service. The offender’s DNA was located on the trigger and grip of the firearm.

10. On 2 July 2020, the offender was offered the opportunity to participate in an electronically recorded interview, where he provided the following version:

1. He told police “it’s a gun, and like it’s not, it’s not a gun as a firearm”. He described it as a “little gel blasting gun” and said “yeah, we, I was fucken around with it all the time, and not doing crime or not doing nothing like that”. The offender described the firearm to “shoot little, like little balls like this and you have fun with them”. He said “they’re real soft. Like they’re little”.

2. The offender said to police that his DNA would be on the firearm and admitted to touching it, however he said that it wasn’t his. He said it belonged to the son of the owner of the vehicle. He said that it was in his possession from when he got into the Holden Cruze and he and his friends were shooting around with the kids.

Break, enter & commit serious indictable offence (larceny): s.112(1)(a) Crimes Act 1900; Be carried in conveyance taken w/​o consent of owner : s.154A(1)(b) Crimes Act 1900

11. At about 10.00pm on 25^th March 2020, the victim arrived at his home in Cordeaux Heights. He parked his Audi S5 out the front on the road, locked it and went inside. He put his set of keys on the dining room table. The family went to bed soon after. The next morning he couldn’t find his keys. He noticed his Audi was missing.

12. He saw a glass panel was missing from the garage window. He found his set of keys sitting on the roof of his daughter’s car, which had also been parked in the street but his Audi car key was missing. His daughter’s school bag was also missing. It contained her schoolwork and a school jacket. His black work duffle bag was missing. It contained a laptop, two mobile phones, a USB and two pairs of glasses.

13. A fingerprint that matched the offender was found on the left bottom edge of the south side garage window frame. The Audi was found in Dapto on the 7^th April 2020; the vehicle’s wheels had been changed during the time it was stolen. A solicitor’s file notepads were found in it.

Knowingly drive stolen conveyance: s.154A(1)(b) Crimes Act 1900

14. On 31 March 2020 at about 6.00pm, the victim (a local Solicitor) parked his Toyota RAV4 outside his home in Corrimal. The next day the victim noticed that his vehicle was missing. Before being stolen the vehicle contained the following items:

• A brief case containing a four (4) volume brief;

• Two (2) suit jackets;

• Work brief case containing legal notepads, numerous handwritten notes and an iPad;

• A hooded jumper with his firms name embroidered on it;

• Approximately $50.00 cash

15. The value of items stolen was approximately $3000.

16. The RAV4 was located in Avondale on the 7^th April 2020. A fingerprint matching that of the offender was located on the front steering wheel. Every panel on the car had been damaged. The front bumper had been screwed on and a different number plate had been wired into place. The interior of the vehicle had been damaged. There was a strong smell of cigarettes and McDonald’s wrappers were strewn throughout it.

Break & enter with intent to commit serious indictable offence (larceny): s.113(1) Crimes Act 1900

17. At about 1.20am on Friday 10^th April 2020, Police received a call regarding lights and loud banging noises coming from inside a house in New Dapto Road, Wollongong. The house was unoccupied and used for storage of the owner’s possessions. Police heard loud noises coming from inside the roof cavity. They noticed a broken window panel located next to the rear door. There was also a hole in the fibro board under the window. They entered, and announced themselves. The offender and a co-offender, Noel Takiari were in the roof cavity. They were asked to exit and told they were under arrest. They didn’t answer. Senior Constable Zahra opened the manhole door. The offender and his co-offender began throwing things at him to stop him from gaining access. Senior Constable Zahra stood down but as he did a motorbike muffler was thrown out of the man hole. It struck him in the leg causing him pain.

18. Police spent about 45 minutes trying to talk the offender and co-offender into leaving the roof cavity. They were ignored. Eventually Police Rescue attended and gained access to the roof cavity.

19. Crawley engaged in a short wrestle with police before he was handcuffed. This matter was remitted to the Local Court and I do not sentence him for this offence.

20. The offender was on conditional bail at the time of these offences. One of his bail conditions were: “Not to leave home except in compliance with COVID-19 restriction – only essential purposes.” This offence has also been remitted to the Local Court and I do not sentence him for it.

21. The offender was arrested on 10 April 2020 and has been in custody ever since.

Unlawfully deliver/attempt to deliver anything to inmate: s.253G(2)(a) Crimes (Administration of Sentences) Act 1999 on Form 1

22. On Friday 24^th July 2020 the offender, his co-accused, Tyson Mitchell, and the victim were in custody at Long Bay Prison. Crawley was on remand. At about 1.00pm, the victim and co-accused were in the same prison exercise yard. The offender was in the exercise yard adjacent to the victim and co-accused. The co-accused and victim were seen to have a brief conversation.

23. The co-accused then walked away from the victim towards the rear of the exercise yard. He shouted out to the offender in the neighbouring yard and told the offender to “go get the thing from the roof space at the toilet block section and send it over.”

24. The offender was then captured on CCTV removing a prison made “shiv” from between the wall and roof cavity of the yard’s toilet block. The shiv was made from a 10cm bolt with its end filed down and a handle of bedding fabric. He placed it in his pocket. Soon after he put it inside a milk carton he took from a rubbish bin. He then walked out into the exercise yard and threw the milk carton with the shiv in it over the fence into the yard occupied by the co-accused: Form 1.

Aid/abet assault occasioning actual bodily harm; s 59(1) Crimes Act 1900

25. The co-accused rushed over and removed the shiv from the milk container. He then went to the victim and hit him in the face with the shiv. The victim punched back but the co-accused continued to hit the victim several times. Corrective Services guards entered the exercise yard and isolated the co-accused and victim.

26. The victim was transferred to Prince of Wales Hospital where he was assessed and treated by medical staff. He sustained lacerations/punctures to his face and extensive swelling and bruising above his left eye.

Objective Seriousness

27. Dishonestly obtain property by deception: s 192E(1)(a) Crimes Act 1900; carries a maximum penalty of 10 years imprisonment. While Crawley cannot be sentenced for taking the credit card his use of it cost the community much more than the value of the property obtained. Considerable resources must be expended to prevent credit card fraud and victims are put to the time and trouble of cancelling and replacing their cards. They also lose trust in others.

28. Possess unregistered unauthorised pistol in a public place: s93I(2) Crimes Act 1900; carries a maximum penalty of 14 years imprisonment. Parliament has said that any firearm offence is treated seriously, as the maximum penalty makes clear. Firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no legal justification here for the possession of the gel pistol. It is not enough to say it is a toy or available online. At law there is no distinction between replica and real, or capacity to fire a pellet or hard ammunition. This pistol could have been mistaken for a real weapon. The consequences of producing such items in public do not need too much amplification. In the modern world that someone is carrying a firearm can provoke a reaction both in members of the public and law enforcement officers that could have quite disastrous consequences. That said, here the period Crawley was in possession could not be proved to have been more than fleeting and the pistol was not produced to anyone.

29. Break, enter & commit serious indictable offence (larceny): s.112(1)(a) Crimes Act 1900; carries a maximum penalty of 14 years imprisonment. The guideline judgment Ponfield v R [199] NSWCCA 435; (1999) 48 NSWLR 327 assists in evaluating the seriousness of the offence, however any assessment of objective gravity must be made by reference to the particular facts of the case. Here, a residential property was entered. Only minor damage was done. Only a small amount of property was taken but the key was used to commit a further offence against the victim. The seriousness of the criminality involved in breaking into another’s home should not be underrated. To wake and learn that while you and your family slept there was a stranger in the dark can leave a victim with sense of violation and unease.

30. The monetary value of the property taken is one measure of seriousness but courts also take into account that some property taken can also have sentimental value and accordingly be irreplaceable. Even if property is replaceable; replacement generally causes considerable inconvenience. Not all property is insured but where it is, it is a notorious fact that householders face increased premiums, as well as the expense of making their homes secure.

31. Be carried in conveyance taken without consent of owner: s.154A(1)(b) Crimes Act 1900; carries a maximum penalty of 5 years imprisonment. Knowingly drive stolen conveyance: s.154A(1)(b) Crimes Act 1900; carries a maximum penalty of 5 years imprisonment. Unless you are lucky enough to own a home a car is most peoples’ most valuable possession. In the modern world we depend on our cars. To have someone help themselves to your car or drive it and either trash it or leave it to be trashed is, like break and enter, another offence that causes grave disquiet in our community.

32. Break & enter with intent to commit serious indictable offence (larceny): s.113(1) Crimes Act 1900; carries a maximum penalty of 10 years imprisonment. Here a vacant home was entered and damaged. The offender had not right to be there.

33. Unlawfully deliver/attempt to deliver anything to inmate: s.253G(2)(a) Crimes (Administration of Sentences) Act 1999; carries a maximum penalty of 2 years imprisonment. Aid/abet assault occasioning actual bodily harm; s.59(1) Crimes Act 1900; carries a maximum penalty of 5 years imprisonment.

34. Prisons are a place where a person is sent as punishment. They should not be a place where an inmate is punished by other prisoners and injured. Tragically however, our prisons are violent environments. Where a person is involved in a serious assault on another prison they must be punished. That penalty must take into account the fact a weapon was used. The penalty must also be proportionate to the actual harm suffered, here lacerations and extensive swelling and bruising around the eye. The court must also take into account the impact on prison discipline and order such offences cause. This offender by aiding the assault is just as culpable as the actual assailant.

Maximum penalties and Form 1

35. Careful attention to the maximum penalty fixed by Parliament is always required. It is a sentencing measure to be balanced with all other relevant factors. It also invites a comparison between the instant case and other cases. That said, it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].

36. The matters on the Form 1 operate to increase the sentence that would otherwise be appropriate. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1: [2002] NSWCCA 518 (2002) 56 NSWLR 146 at [39] – [42].

Other relevant matters

Multiple offences

37. Crawley’s crimes hurt or harmed a large number of people in our community. It is not just that they lost property or had it trashed and damaged. There is also a loss of trust that harms us all. If we lose trust in others we lose part of what makes us a community. A sentence must recognise the impact of offending on both individuals and the community as a whole. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205. Retribution is a notion that reflects the community's expectation that the offender will suffer appropriate punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.

Criminal record

38. The offender’s criminal history is relevant to determining the proper sentence. It indicates that each offence was not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offence, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

On conditional liberty

39. Some of the offences were committed after Crawley was admitted to bail on 17 February 2021. Bail carries with it a fundamental promise to be of good behavior and not offend. Crawley broke that promise.

Structure

40. I will impose an aggregate sentence. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164-165, at [18] .

41. I am not confident Crawley is a good candidate for rehabilitation. I am far from confident that he will even get parole. But if he is ready for release the longer he is monitored and supervised in the community the better. If at all possible there should be a staged release to the community and time in a residential rehabilitation centre. I will structure the sentence to allow the State Parole Authority to determine when and on what conditions he is to be released. I will make a finding of special circumstances to allow them as much flexibility as practicable, consistent with the need for the minimum period in custody to properly reflect the gravity of his offending and the other purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59]. I will take care not to erode the benefits given for the plea in the process of fixing the aggregate sentence

Subjective case

42. Crawley gave evidence today. He expressed appropriate remorse. He told me that after a short period when he had trouble settling into gaol routine he was off drugs. He told me he was ready to learn how to live in the community. He said he was ready to engage in programs and not run away from responsibility, as he had done so many times before. In the past, he said, he had taken the easy road and that road involved drug use. His ex has told him he can resume contact with his twin daughters but only if he remains drug free. Another pro-social friend has said he will assist him but on the same condition.

42. Crawley acknowledged how many times he had failed before. He said he was sick of making excuses and that his first step must be to prove to himself that he can live as an adult and stay on track.

43. I have the advantage of a comprehensive Sentence Assessment Report (SAR) and a report from Ms North a forensic psychologist. The SAR indicates that at long last Crawley is showing some insight into his offending and its impact on individuals and the community. Unlike some leaders in our community he is capable of saying “sorry.” Both reports highlight a background blighted by his parent’s drug use, violence and crime.

44. Crawley has never had a stable home life. He has never had responsible role models. He has been traumatised by his experience at home and in juvenile detention. His only associates are other criminals. He has used and abused illicit drugs since well before he was old enough to make rational choices.

45. Many of his crimes appear impulsive and occur without thought of consequence. His background has left a mark and compromised his capacity to mature and learn from experience. His moral culpability is likely to be less than the culpability of an offender whose formative years had not been marred as his were: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

46. His attempts at rehabilitation have failed before they event started. Gaol has not proved an effective deterrent. He has not taken advantage of prison programs. His relationship with Community Corrections while on parole was characterized by his “poor compliance.”

47. The SAR concludes that Crawley is a high risk of re-offending but notes that that risk can be moderated if he is given, and just as importantly takes up, the opportunity to engage in a structured program in custody and on release. It would include, drug rehabilitation, EQUIPs courses and engagement with the Practice Guide for Intervention module designed to assist in managing pro-social goals and minimising associations with anti-social peers. While these suggestions may to some sound ‘pie in the sky’ they can work if an offender is suitably motivated: see for example Kinzett v R [2021] NSWDC 339.

48. Ms North’s detailed report confirms the history set out in summary in the SAR. She details his dysfunctional childhood; how he has been caught in a cycle drug use and criminal behaviors since he was a child. This, she said, has been further impacted on by a number of traumas (which she describes in her report). She notes his inability and present incapacity to live a normal community life. She too recommends referral to drug rehabilitation, counselling and also psychological treatment to address his difficulties in managing emotions and address his trauma history.

Submissions

50. Mr Hart, for the offender, asked that the total sentence not crush the offender’s prospects for rehabilitation. He said Crawley is not yet a lost cause. If every effort is made to take up the treatment and supervision plans set out the SAR and Ms North’s report Crawley may one day be able to take his place in the community and be a proper father to his children.

51. Ms Verghese, Solicitor for the Director of Public Prosecutions, stressed the number of matters and victims offending. She took me through the objective seriousness of each offence. She carefully delineated aggravating features noted in s 21A(2) Crimes (Sentencing Procedure) Act 1999 from elements of the offences. She acknowledged Crawley had shown some remorse and insight but submitted that community protection, specific deterrence and retribution required a sentence of some length.

Synthesis

52. Joshua Crawley had none of the advantages children in our community have a right to expect. He grew up in juvenile detention. He matured as an adult in gaol. He is now 31. He has never lived a normal life in our community. He has few personal resources. He has not coped well in gaol, although more recently he appears to have shown some improvement. Continued punishment has not deterred him from offending against the community. As he grows older he may learn. He may learn enough to know the life he has led is no life at all. But he will need help. He cannot do it on his own. Given he has offended against so many there may be some in the community who say, “well he deserves to be removed from it.” But, and it is an important ‘but,” Crawley cannot be sentenced to longer than the objective circumstances of his offences require. He must be returned to the community. If possible he must be released better able to cope with life in community than he was the other 6 times he was released over the last decade.

53. Plans can be put in place to reduce his risk of re-offending. If they are not his prospects will be bleak and he will offend again. If they are, he may build on the insights shown and break the cycle he is enmeshed in. His release to parole will be subject to a decision of the State Parole Authority. That release must be earned. And, it can only be allowed if it is in the interests of the safety of the community: s135(1) Crimes (Administration of Sentences) Act 1999

Orders

54. I indicate the following sentences, which each take into account the 25% reduction for the early guilty plea:

1. H76383777, Seq 4 Break & Enter house etc steal value <= $60,000, I indicate a sentence of 2 years 3 months.

2. H76383777, Seq 5 Be carried in conveyance taken without consent of owner, I indicate a sentence of 1 year 1 month.

3. H76383777, Seq 6 Drive conveyance taken without consent of owner, I indicate a sentence of 1 years 1 month.

4. H74141032 Seq 6 Break and enter dwelling-house etc w/i (steal), I indicate a sentence of 1year 6 months.

5. H74371342 Seq 10 Dishonestly obtain property by deception, taking into account the matter on the Form 1 I indicate a sentence of 1 year.

6. H74959144 Seq 2 Aid and/or abet an offence – AOABH, taking into account the matter on the Form 1, 2 years 3 months.

7. H74999520 Seq 1 Possess unregistered unauthorised pistol in public place, I indicate a sentence of 1 year 1 month.

55. The total aggregate sentence is 3 years 3 months.

56. There will be a non-parole period of 2 years commencing 30 March 2020 and expiring 29 March 2022. The balance of the sentence of 1 year 3 months to commence upon the expiration of the non-parole period and expiring on 29 June 2023.

57. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 29 March 2022.

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Decision last updated: 27 July 2021