R v Daley & McDonald

[2018] NSWDC 344

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Daley & McDonald [2018] NSWDC 344
Hearing dates:	1 - 2 November 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender Daley is sentenced to an aggregate term of imprisonment consisting of a head sentence of 5 years and 3 months with a non-parole period of 2½ years. The offender McDonald is sentenced to an aggregate term of imprisonment consisting of a head sentence of 5½ years with a non-parole period of 3 years
Catchwords:	CRIMINAL LAW – Sentence – Forms 1 – Offenders on parole at time of offence - Armed robbery – Knowingly be carried in a stolen conveyance – Assault officer in the execution of duty – Dishonestly obtain financial benefit by deception – Parity – Institutionalised offenders – Robbery of people who had helped the offenders.
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fernando (1992) 76 ACrimR 58 R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149
Category:	Sentence
Parties:	The Crown Florence Daley Lee McDonald
Representation:	Counsel: C Dobraszczylc – Crown R Khalilizadeh – Offender Daley P Doyle – Offender McDonald   Solicitors: Director of Public Prosecutions – The Crown Mark Rumore – Offender McDonald
File Number(s):	2017/112646 & 2017/87155

SENTENCE

1. HIS HONOUR: These sentence proceedings started with three offenders but now there are only two, one of them Mr Lynch having failed to attend today, to deal with. The two offenders who are present in Court Mr Lee McDonald and Ms Florence Daley. If Mr Lynch turns up then I will deal with this matter separately. He was present yesterday when all the evidence was given.

2. The offences I am about to describe are particularly nasty as will be seen when I describe the offences.

3. The victims were acting in a kind and helpful way to the offenders who responded to such kindness by committing three serious offences, one upon each of the victims, offences which no doubt, (and this is confirmed in the case of a victim impact statement presented by one victim) caused harm of a psychological nature to them.

4. There is a place in Enmore where backpackers congregate apparently. They park their campervans there and so it was that the three victims in this matter found themselves on Friday 3 March 2017 at about 10.15pm socialising in that location.

5. One of the offenders approached them, it was Ms Daley, she asked for a cigarette lighter and for assistance starting a vehicle parked about 20 metres away. She wanted some jumper leads. The three victims were, as I said, kind and helpful. Ms Daley was provided with a cigarette lighter and one of the victims offered to help her with jumper leads after he had finished his cigarette. Ms Daley walked away but then returned a short time later in the company of her co‑offenders Mr McDonald and Mr Lynch.

6. The victim who had offered to assist with the jumper leads, Mr Dietrich, then got his jumper leads and walked with Mr McDonald and Mr Lynch to a blue BMW sedan about 20 metres away. This was in fact a stolen car but of course Mr Dietrich did not know that. The offenders of course did. Ms Daley remained behind talking to the other two victims. One of them said to Ms Daley “You look stressed” to which Ms Daley replied “Yeah they are giving me shit because I’m the only female”. In response the kindness continued. Another victim said “It looks like you need a hug” and when Ms Daley responded in the affirmative, that is what happened, one of the victims hugged Ms Daley.

7. Back at the BMW Mr Dietrich saw that a battery cable was disconnected on the BMW. He assisted Mr Lynch to reconnect the battery. Whilst this was happening Mr McDonald walked back to where Ms Daley was with the remaining victims. Then things turned for the worse.

8. It was Mr McDonald who initiated the offences when he asked one of the victims for $5. Both victims said they did not have any money and one of them said “Why are you asking for $5”. He said “I’m going through a tough time at the moment”. Then things got worse. He said “I’ve got a knife, give me your wallet” and indeed he pulled out a knife with a 20 centimetre serrated blade. He was standing one metre away from one of the victims pointing the knife at him and demanded his wallet and phone.

9. Sensibly this victim handed over his wallet which contained a driver’s licence, a relatively small amount of cash, and some cards. He also handed over his iPhone. While this occurred, Ms Daley approached the other victim, the young woman. She raised her right fist above her head and said “Don’t scream or call the police”. She swung her right arm around the back of this victim’s neck, pulled her head forward into a headlock and began walking forward. She pulled her down to the ground where she landed on her back. Mr McDonald decided to get involved. He said “I’m going to stab you, give me your bag” and to emphasise the point Ms Daley punched this victim twice to the left side of her face and once to her right side. While she was doing this she was trying to drag the bag away. Eventually she succeeded when one of the straps ripped. This bag contained a wallet with various cards in it as well as her personal diary where she had recorded her online usernames and passwords for her various bank accounts as well as PayPal, eBay and other online services. There were other things too in the bag.

10. While this was all happening, especially whilst the violence was being inflicted, two of the victims, not unnaturally, began to question why this was all happening, saying “Why are you doing this? We’re co‑operating”. Indeed they were and the violence that Ms Daley inflicted was thus entirely gratuitous. Back at the BMW Mr Dietrich had finished helping attaching the battery cables. He walked back. He saw what looked like an argument and he saw Mr McDonald holding the knife.

11. Again not unnaturally, Mr Dietrich was puzzled, saying “Why are you doing this, I helped you with your car”. McDonald then turned and pointed the knife at Mr Dietrich and demanded that he too hand his wallet over. Mr Dietrich said he did not have his wallet but Mr McDonald obviously did not believe him because he reached out and felt Mr Dietrich’s pockets.

12. What he felt was a mobile phone, which Mr Dietrich handed over. After this, having robbed all three of the victims, the two offenders, Mr McDonald and Ms Daley, ran back to the BMW where Mr Lynch was. They got into the stolen conveyance - I have described it that way because of an offence on the Form 1 for Ms Daley and Ms McDonald - which was driven by Mr Lynch.    

13. Ms Daley used one of the victims’ credit union card to buy two pairs of headphones, no doubt using the passwords that were in the notebook which was taken from one of the victims.

14. Someone accessed her PayPal account. Fortunately there was an automatically generated email sent to that victim. Details were provided to police and determined that the mobile phone service belonged to Mr McDonald.

15. Ms Daley was arrested on 13 April 2017. Mr McDonald was seen on 10 March 2017 in Chippendale and started running away when he saw police. He got away.

16. He was relocated on 21 March when he was found in Summer Hill. Police eventually found him hiding behind a closed toilet door. They got him out and told him to take his shoes off. Mr McDonald said that he would not. One of the police officers then helped Mr McDonald stand up but he got angry and said in an angry voice, “No, I’m not taking it off. If I take it off you won’t fucking give me back my shoes”.

17. The police officer took a step back but Mr McDonald lunged forward with his forehead and struck the police officer’s chest causing pain, causing him to slightly lose his balance. Mr McDonald later participated in an interview in which he falsely denied involvement in these offences.

18. As a result of what I have described Mr McDonald faces sentence for three armed robbery offences taking into account on the first of those, two Form 1 matters; knowingly being carried in a stolen conveyance and assaulting an officer in the execution of his duty.

19. Ms Daley is also to be sentenced for three armed robbery matters. She too has a Form 1 attached to the first of those; being carried in a stolen conveyance, and two offences of dishonestly obtaining financial advantage by deception.

20. Both offenders pleaded guilty to these matters at a late stage. To reflect the utilitarian values of the pleas the sentences I impose will be 10% less than they would otherwise have been.

21. I began by describing these offences as nasty, and they were. The assistance which the three victims gave to the offenders, and the kindness that was shown to Ms Daley, was rewarded with violence, threats with a knife, and the theft of their property. It may be that there was not a great deal of planning. It may even be that it was a spur of the moment decision to respond to the victim’s kindness in the way the three offenders did.

22. There were three separate robberies all occurring about the same time but, and no-one has suggested otherwise, that does not mean that entirely concurrent sentences should be imposed. There needs to be a degree of concurrence to reflect that there were three separate victims, each of whom was no doubt affected by the offence committed upon him or her.

23. The principles of parity clearly apply. No offender should have any justifiable sense of grievance when he or she compares the sentence imposed upon his or her co-offender. As far as Mr McDonald and Ms Daley are concerned, they are broadly equally culpable. It was Mr McDonald who produced the knife but it was Ms Daley who inflicted actual violence.

24. I do note that Mr McDonald’s Form 1 matter of assaulting a police officer is something which justifies a small amount of disparity between the ultimate sentences imposed upon these two offenders. As well, whilst neither offender can be said to have good prospects of rehabilitation, Ms Daley’s prospects are better than those of Mr McDonald, which is another factor explaining the difference in sentences I will ultimately announce.

25. Of course, the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 guideline is of application here. There are some differences from the standard offence postulated in that decision. Neither offender was young with little or no criminal history. As far as count 1 is concerned, there was actual violence inflicted.

26. I will go through the subjective features of both of the offenders in a little while but I should note by way of introduction that the Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58 considerations are of particular application in the case of the two offenders I am sentencing at present. Indeed also in the case of Mr Lynch, should he ever turn up.

27. The circumstances in which each of the three offenders first used drugs are also mitigating factors. Each was introduced to drugs well before the age where they could make a mature decision as to whether they should take them.

28. In determining the appropriate sentence, general deterrence is of course of importance. As far as personal deterrence is concerned their lengthy criminal histories would suggest a significant need to personally deter Mr McDonald and Ms Daley by the imposition of harsh sentences but there is a complicating factor, both are institutionalised and so in many respects sending them to gaol is not as effective a deterrent as might otherwise be the case.

29. Mr McDonald has a lengthy criminal history beginning in the Children’s Court. He has committed in the past some serious offences such as an offence of sexual intercourse without consent and armed robbery. His lengthy record justifies a finding that he has demonstrated continuing attitude of disobedience towards the law. He was on parole at the time of these offences for an offence of armed robbery. That parole was revoked because of the commission of these offences.

30. It is within my discretion as to when I commence the sentence I will impose. I have decided to backdate the commencement of the sentence to the day on which he was arrested, whilst taking into account that the commission of the offences represented a breach of conditional liberty. I have done things that way in order to avoid double counting.

31. Mr McDonald has spent most of the last 14 years in custody with a cycle of him committing drug related offences within a few months of his release from custody. His background was a sad one. His parents separated when he was relatively young. He has not seen his father for over 20 years. Although he receives no visits from his mother, or anyone else for that matter, he has contact with his mother and stepfather when he is out of gaol and receives telephone calls whilst in custody.

32. Mr McDonald says that he was sexually abused as a child, something which not unnaturally continues to haunt him. It is possible, or perhaps even likely, that that terrible experience has contributed to his drug use and his problems accepting authority. He demonstrated behavioural problems from a young age, he has never been employed and has little idea how to live outside gaol. He does not have the skills which those of us who have not spent most of the past 14 years in gaol take for granted. He does not know how to get a job, he does not know how to go about getting Centrelink payments and so he has no income on his release. He has few skills which would enable him to live outside gaol in a way which does not involve further offending.

33. In custody he has received no counselling and done no courses. He is one of those prisoners it would seem who, being on remand, is unable to easily access courses and counselling. He is on medication for his depression. He gave evidence in which he expressed his remorse and accepted responsibility for his actions. He has the desire to be given the skills to live outside gaol, something he clearly does not have at present. Mr McDonald said that he had never asked for help before but he was asking for it now.

34. Mr McDonald gave evidence that he is suffering from some form of cancer in his neck. There was no medical evidence to that effect and I can only assume that the cancer is not a serious matter or I would have been told more about it. He says that once he moves gaols he will be able to have the cancer cut out. The fact that it has not been cut out yet is a factor which tends to suggest that the cancer must not be serious but nevertheless he will do his time in custody harder having to await treatment for that condition.

35. As Mr Doyle accepted, Mr McDonald’s prospects of rehabilitation are very guarded. I accept what is said in the psychological report tendered on his behalf and, as Mr Doyle reminded me, what Mr McDonald needs is not so much rehabilitation but habilitation as he has never had the skills to live crime free in the world outside prison.

36. The Crown says, and one can understand this submission, that while it is not a case of giving up on Mr McDonald I should take into account that his history suggests that letting Mr McDonald out earlier rather than later will simply lead to him committing offences earlier rather than later and that I should bear the protection of the community in mind when I determine what sentence to impose upon Mr McDonald and how the ratio of non-parole period to head sentence should be set.

37. Clearly the protection of the community is a very important matter. But that does not mean that a finding of special circumstances should not be made. It is my recommendation that Mr McDonald only be released on parole if he enters some intensive form of rehabilitation such as a residential rehabilitation facility. This is something he clearly desperately needs and something he gave evidence he would accept, but not only will Mr McDonald benefit if this is successful, so will the community. If through an extended period of supervision on parole Mr McDonald is able to change his ways so that he does not commit offences of this kind in the future, then not only does Mr McDonald benefit but so does the community. I will therefore make a finding of special circumstances in Mr McDonald’s favour.

38. I turn now to Ms Daley. Her criminal record also commences in the Children’s Court with many offences committed as a juvenile, most easily seen in an attachment to written submissions prepared on her behalf by Ms Khalilizadeh. On her record are offences of robbery, demanding money with menaces, break, enter and steal, aggravated robbery and armed robbery. She too has demonstrated a continuing attitude of disobedience to the law.

39. Also in common with Mr McDonald was the circumstance that she too was on parole at the time of her offending. For reasons I have explained, I will back date her sentence to the date of her arrest but still take into account the fact that she was on parole in determining the length of the sentence to impose upon her.

40. She was raised in a large household where violence at the hands of her father was commonplace. Her parents separated. She has had limited contact with her father but retains the support of her mother who cares for her 15 year old son. Her mother was in Court yesterday when she gave evidence on her daughter’s behalf, and is in Court again today.

41. She left school in year eight and then was introduced to heroin by, and this is remarkable, a family member. Her drug use continued for a number of years after that. Ms Daley now says that she is clean whilst in custody. She has never worked outside gaol but has worked well while in gaol. She has done courses and has expressed a desire to be a traffic controller, something she is now qualified to do on her release from custody.

42. She was in an on and off relationship with Mr Lynch her co-offender but has no plans to resume that relationship on release, nor it would seem has Mr Lynch any desire to resume the relationship. She has had periods of depression and recently whilst in custody she has had panic attacks. She has decided, so she says, that she wants to put her life of offending behind her and wants to continue to avoid the use of drugs upon release. She expressed her remorse and is proud of what she has achieved in custody. She too accepts the need to go to rehabilitation upon release from gaol

43. The Bugmy and Fernando factors are well summarised in a letter of support from Thea McMahon, a Case Worker with the Community Restorative Centre. I quote a small passage from that report:

“Living through domestic violence as a child caused Florence both physical and emotional harm. She began to engage in risk taking behaviours and experimenting with drugs and alcohol. Florence has disclosed that she began using cocaine and heroin at the age of 13 and it became her only strategy for coping with the trauma she experienced at home. She had regular contact with the criminal justice system and is not able to recall the number of times she was detained as a child. As a result, her education was significantly disrupted and she was unable to complete high school, self‑medicating with illicit substances has continued into adulthood and her offending behaviour has stemmed directly from her AOD use and difficulty in finding pro social coping strategies.”

44. One factor not mentioned there is one in common with Mr McDonald. Ms Daley was sexually assaulted as a child. This was something which her mother had no idea about, only finding out this unfortunate circumstance when a documentary was being made.

45. Ms Daley has shown significant progress in custody. She was articulate in the witness box. She, I am satisfied, accepts that it is only she who can bring about the change that needs to be brought about if she is to avoid spending further lengthy periods in gaol.

46. Of course, that is only part of the story. She too, because of her institutionalisation and because of the pattern of behaviour she has demonstrated in the past, will also need assistance when released from custody, assistance of a substantial kind.

44. I will impose an aggregate sentence in each case. For Mr McDonald, were I not to have done so, I would have imposed sentences as follows. For count 1, five years imprisonment, for counts 2 and 3, four and a half years imprisonment. Instead I impose an aggregate sentence of five and a half years imprisonment with a non-parole period of three years to have commenced on 10 March 2017. The non-parole period will expire on 9 March 2020 which is the first day on which Mr McDonald is eligible to be released to parole.

45. In Ms Daley’s case, were I not to impose an aggregate sentence, I would have imposed a sentence of four years nine months on count 1 and four years three months on counts 2 and 3. Instead I impose an aggregate sentence of five years and three months with a non-parole period of two and a half years to have commenced on 13 April 2017. The non-parole period will expire on 12 October 2019 which is the first day on which Ms Daley can be released to parole.

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Amendments

28 November 2018 - Correction to paragraph numbering

Decision last updated: 28 November 2018