R v Everett

[2019] NSWDC 895

District Court

New South Wales

Medium Neutral Citation:	R v Everett [2019] NSWDC 895
Hearing dates:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. 1. Pursuant to section 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a conditional release order for a period of 12 months commencing today. 2. The conditions to apply during the term of the order are as follows: STANDARD CONDITIONS a. You must not commit any offence. b. Appear before court if called upon to do so at any time. 3. Failure to comply with the conditions of the order may result in further action being taken against you. This may require you to return to court to be re-sentenced. 4. The offender is to attend the Registry for finalisation of the conditional release order.
Catchwords:	CRIMINAL – Sentence - conceal serious indictable offence from another person – co-offenders - significant issue of parity – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Thomson v Houlton (2000) NSWLR 383
Category:	Sentence
Parties:	Regina Kevin Everett
Representation:	Counsel: Mr A Metcalfe   Solicitors: Ms E Brown Mr R Harrison
File Number(s):	2018/00353639

Judgment

1. Kevin Everett appears for sentence in respect of a single offence, being conceal serious indictable offence from another person contrary to s 316(1) of the Crimes Act 1900. The maximum penalty provided is two years’ imprisonment. He was committed for sentence on 26 June 2019 from Griffith Local Court and is entitled to a discount for the utility alone of the plea of guilty of 25%, it having been entered at the earliest opportunity, as referred to in Thomson v Houlton (2000) NSWLR 383. Such a discount will be provided.

2. The facts are agreed and are as follows.

3. The victim of the offence the offender concealed was Michael Hughes. He resided in Kook Street, Darlington Point, New South Wales. At the rear of the residence there is a levee bank and a running track which is used for vehicles to drive on. On 18 August 2018, the victim Hughes was absent from the premises with a number of his friends. In the evening, at approximately 8.20pm, the offender and two co-accused persons drove to the victim’s home.

4. A Ms McRae was driving the vehicle and in the passenger seat was Mr Hesketh. The offender was seated in the back seat. The vehicle, a Toyota Corolla, was registered to Ms McRae. Ms McRae was the partner of Mr Hesketh. She drove the car under the carport of the victim’s home.

5. The co-accused Hesketh got out of the car and went to the front door of the victim’s residence where he spoke to the victim’s partner. The victim was not at home at the time. Hesketh returned to the vehicle and McRae reversed the car out of the carport and drove along the driveway towards the levee bank. During that time, the victim’s partner rang him and informed him that Hesketh was looking for him. At approximately 9pm the victim returned home. The victim and one of his friends, Mr Carter, were standing at the rear gate of 23 Kook Street, Darlington Point. McRae drove the vehicle and stopped it close to where the victim and Carter were standing. The victim walked up to the front passenger window of the car where Hesketh was seated. Hesketh and the victim then became involved in an argument that concerned the victim and the victim’s brother, and money. Both parties then began exchanging taunts.

6. At one point, the victim leaned onto the front passenger seat window of the vehicle. Hesketh reached under the passenger seat and revealed a sawn‑off .22 calibre rifle and pointed it at the victim. The victim grabbed the gun and tried to take it away from Hesketh. The victim and Hesketh fought over the gun. McRae said to the offender in the back of the car, “Kev, do something”. The offender attempted to get out of the car but the victim was holding the door closed with one foot. The offender then went to the other side of the car, being the driver’s side, and got out. The victim let go of the gun and decided to attempt to run away. In doing so, he ran behind the vehicle and knocked into the offender and the offender then ran and hid behind a tree. The victim heard the gun cock whilst he was running past the driver’s side door towards his home to take cover. He heard a loud bang and felt pain to his leg. Hesketh had shot the victim in the right buttock from a distance of at least 5 metres. The bullet penetrated the victim’s right buttock and stopped at his right hipbone. Hesketh and the offender got back into the vehicle. McRae was still driving the vehicle and she started it and they sped away from the victim’s residence.

7. I note that there is no further reference to the offender in the facts. The balance of material is relevant to both Hesketh and McRae, and in particular the sentencing proceedings in respect of McRae which have already been completed; the sentencing proceedings in relation to Hesketh still being outstanding.

8. I continue the facts.

9. Hesketh contacted a female called Suffield and asked her to book a hotel in his name at Deniliquin. She did so via the internet. Hesketh asked Suffield to attend the hotel, which she did later that evening. McRae drove Hesketh to Deniliquin, which is approximately two hours and 20 minutes from Darlington Point, and paid for herself and Hesketh to stay at the Deniliquin Motel. Suffield arrived at the hotel and met with McRae and Hesketh. McRae spoke with Suffield and Hesketh asked Suffield to swap vehicles. Suffield agreed and McRae gave Suffield her car keys, and Hesketh then used Suffield’s car.

10. About a week later McRae contacted Suffield and asked to have her car back. McRae met the witness near Collingullie. Just before the witness arrived at the location, she struck a kangaroo at speed and it severely damaged the Corolla. They then swapped cars. McRae drove the Corolla a short distance away and then left the vehicle off the roadway due to the damage which had been caused by the collision with the kangaroo.

11. New South Wales Police had conducted an extensive search of the Griffith and Hay local areas for the offending vehicle. On Saturday, 14 November 2018, the offender was arrested at premises in Lander Street, Darlington Point, and was taken to Griffith Police Station. He was informed of his rights and declined to participate in an ERISP, as he was entitled to do. He had, however, in the intervening period, not reported the offence to New South Wales Police, hence the charge that he is now to be sentenced in respect of.

12. Before the Court are the reasons of his Honour Judge Marien SC who sentenced Ms McRae on 29 July 2019. Unlike this offender, she was charged with an offence under s 33A(1)(a) of the Crimes Act 1900. That is a significantly more serious offence carrying a maximum penalty pursuant to s 350 of the Crimes Act of imprisonment for five years. The facts make it plain that Ms McRae’s offence, as the driver and owner of the vehicle that was used, and of her continued participation on leaving from the area of the victim’s premises, was far more significant than this offender’s offence of simply failing to report what he had observed as criminal offending. The charge against Ms McRae was one of being an accessory after the fact to the offence of discharging the firearm with intent to cause grievous bodily harm to the victim Michael Hughes, that offence having been committed by her partner Dylan Hesketh.

13. She had spent approximately three months in custody prior to being sentenced. She had been pregnant and at the time of sentencing was then looking after a young baby. She was unfortunately a drug addict and user who had been using drugs on the day in question, but she had taken steps in the intervening period between the commission of the offence and sentence to deal with her drug addiction. I will not repeat all of his Honour’s findings. However, she received a 25% discount for the utility of the plea of guilty. His Honour found that she had very favourable prospects of rehabilitation and had no concerns that she would ever offend similarly again, particularly if she dealt appropriately with her drug addiction and continued to cease her association with Mr Hesketh. He found that she had very favourable prospects of rehabilitation. In those circumstances, and taking into account the period of time that she had already spent in custody and her efforts to rehabilitate herself in relation to drugs, his Honour dealt with the matter by way of a Community Corrections Order. I note that she had already been assessed by Community Corrections in addition to the matters I referred to before as a medium to low risk of re-offending.

14. There is clearly a significant issue in relation to parity between this offender and Ms McRae, particularly considering her greater offending, being as an accessory after the fact and the fact that she was dealt with for a much more significant offence that Mr Everett. I note that Mr Everett, having been arrested on 18 November 2018, was granted bail on 27 March 2019 and released. The conditions of his bail were that he abide by a curfew which included him not being absent from his residence unless in the company of his mother, who was then suffering from breast cancer which had reached a serious stage, and indeed she has in the interim period passed away.

15. Before the Court in respect of subjective matters is the offender’s criminal history which demonstrates that he had one offence in 2004 of break, enter a building and steal, in respect of which he received a bond pursuant to s 33(1)(B) of six months, he being a juvenile at the time, although for some reason his criminal history does not refer to it being dealt with in the Children’s Court, it appears to have been dealt with in the Local Court. He has one further offence which was committed in December 2015 of drive vehicle with illicit drug present in his blood. That was dealt with at the Wagga Local Court on 27 April 2016 and he received a fine of $300 and a disqualification from driving for six months. I do not regard that offence as having any adverse significance in relation to the sentence to be imposed in respect of this offence.

16. Also before the Court are a number of references from Lyndell Pursehouse, Bridget McNeilly, Aaron Stewart and Kelvin Shatson. It is evident that each of those persons regards the offender highly and have noted his efforts since his mother died to raise his children, Tori and Hayley, and also his younger half-sister, who is still at school and who he has become the guardian of. I accept that he continues the support of those persons and I note that Mr Shatson has indicated that he believes he will have a job available for the offender in the near future. The offender has been unemployed for some years and recieving government benefits. Clearly he would be better off if he was able to obtain work, whether it be with Mr Shatson or someone else, to better provide for those he supports.

17. He was born in Queensland and resided there until he was approximately 12 years of age when his parents moved to Griffith, who raised him until that age. When they separated, he remained living with his mother and a younger biological sister as well as the half-sister from his mother’s subsequent relationship that I have referred to. After the separation of his parents, he had minimal contact with his father until he was about 17 years of age. His father died several years ago after suffering a heart attack. He had a good relationship with his mother, although not with the partner that she subsequently had for a period of time resulting in the birth of his half‑sister. His mother’s new partner was physically abusive of the offender but his mother separated from him after the birth of the child. He maintains a close relationship with his biological sister. He remained living with his mother until he was approximately 17 years of age. He was apparently active in his formative years, enjoying pro-social leisure activities including sports, and he had a stable friendship group.

18. His first notable relationship was at the age of 18. That had lasted for approximately two years. He then commenced a further relationship at the age of 21 which lasted for almost eight years, although he and his partner grew apart, and they then separated amicably but have remained friends. The two daughters that he cares for from time to time as part of that amicable relationship are seven and four years of age. He sees them approximately four to five times each week. He has no significant physical disabilities, he has no mental health issues, and according to the report on the information provided by him to the psychologist, he has no difficulties in relation to alcohol or prohibited drugs. I would personally put a question mark over the issue of no difficulty with prohibited drugs, considering the 2015 offence. However, that is not a matter that I regard as significant. He was assessed by the psychologist, and a report was obtained by the defence, as having a low risk of reoffending.

19. I accept that he is a low risk of reoffending. I accept that there is a good prospect of rehabilitation, and taking into account the time already spent in custody I am of the view that this matter does cross the s 5 threshold and that it is appropriate to give the offender the benefit of a Conditional Release Order.

20. So the offender is convicted in respect of the offence of conceal serious indictable offence of another person. Pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 I order the offender to comply with a Conditional Release Order for a period of 12 months, commencing today. The conditions to apply during the term of the order are as follows:

21. The standard conditions are:

1. You must not commit any offence

2. You must appear before the Court if called upon to do so at any time.

Now I can’t remember, Madam Crown. Am I required to impose any additional condition?

BROWN: No, your Honour, not that I can see from my reading of the section.

HIS HONOUR: All right. You will still, however, have to report to the officer in charge of--

BROWN: Your Honour, I’m not sure if you do, because it’s essentially like the old s 9 bond, and because your Honour hasn’t imposed any supervision or any work--

22. HIS HONOUR: All right then. I will simply note, Mr Everett that if you fail to comply with the conditions of the order it may result in further action being taken against you. That may require you to return to court to be resentenced. Do you understand that?

OFFENDER: Yeah.

METCALFE: Can I just clarify with your Honour the length of the--

HIS HONOUR: 12 months.

METCALFE: Thank you your Honour.

HIS HONOUR: And he will need to attend the registry for finalisation of the Conditional Release Order. I think that’s everything, Madam Crown?

BROWN: Yes, your Honour.

23. HIS HONOUR: All right. Mr Everett, please don’t break that order because then I’ll have to get you back before me and take a different course. As I have indicated, although I have not taken it into account in sentencing you, I have some concern that you are in fact a user of prohibited drugs. If you are indeed one, you really need to attend to it and get some help, because as you have found out, those who use prohibited drugs and drive motor vehicles are frequently detected.

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Decision last updated: 15 May 2020