R v Faiva Peckham

[2010] NSWDC 163

CITATION:	R v Faiva PECKHAM [2010] NSWDC 163
JUDGMENT DATE:	29 March 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the robbery offence, non-parole period of 18 months, balance of term of 12 months. For the demand money offence, non-parole period of 15 months, balance of term of 5 months. Referred to Drug Court to determine whether Mr Peckham should be the subject of a Compulsory Drug Treatment Order.
CATCHWORDS:	CRIMINAL LAW - sentence - robbery - demanding money with menaces - s 166 offence taken into account - offence committed on public transport - threat of use of a knife - prior criminal record - offence committed while on parole - drug and alcohol problems - spontaneous nature of crimes - plea of guilty at earliest opportunity - referral to Drug Court to determine suitability for a Compulsory Drug Treatment Order
LEGISLATION CITED:	Crimes Act 1900 s 94, s 99(1) Crimes (Sentencing Procedure) Act 1999 s 50 Criminal Procedure Act 1986 s 166 Drug Court Act 1998 s 50
CASES CITED:	R v Fernando (1992) 76 A Crim R 58
PARTIES:	Regina Faiva Peckham
FILE NUMBER(S):	2009/41858
SOLICITORS:	Ms Duncalfe for the Office of the Director of Public Prosecutions NSW Mr Bogan for Mr Peckham

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JUDGMENT

SENTENCE

1. I am sentencing Faiva Peckham for two crimes. One is the crime of robbery and the other is the crime of demanding money with menaces. The first is made into a crime by s 94 of the Crimes Act 1900 and carries a maximum of fourteen years imprisonment. The second is contained in s 99(1) of the same Act and it carries a maximum of ten years imprisonment.

2. Briefly, what Mr Peckham did which brings him before me for sentencing is this. It was a Saturday night on 2 May 2009. Mr Peckham was in a train on its way to Seven Hills. Mr Peckham asked a man for a cigarette, which was refused because the man did not smoke. Mr Peckham became aggressive. The man left and went into another carriage. Mr Peckham went into the vestibule area of a carriage and stood next to a Mr Zilioli and asked him for a cigarette. Mr Peckham then said “Have you got a wallet. Do you want a punch in the head?”. Mr Zilioli sensibly said that he did not want any trouble, but Mr Peckham’s response was “Let’s fight.” This behaviour resulted in the charge of demanding money with menaces.

3. Sensibly, Mr Zilioli got out of the way. He saw two Transit Police and let them know what was going on, but at the same time Mr Peckham bent over another man named Kurt Barnes in an intimidating manner. He put his hands down the front of his pants and said that he had a knife. He demanded that Mr Barnes produce his wallet, mobile phone and everything else and then he said “If you don’t give me your money, I’m going to pull out my knife and cut you.” Although he did not produce a knife, Mr Barnes sensibly handed over his wallet and mobile phone and a set of keys. This behaviour by Mr Peckham resulted in the charge of robbery.

4. Just then the Transit Police arrived and in time to see Mr Peckham put some property back into the hands of Mr Barnes. He turned to face the police. He was put under arrest and told to sit down. At one stage when the train was stopped he stood up and charged at one of the police, who stumbled forwards, losing his balance. Luckily, he did not fall into the gap between the train and the platform. Mr Peckham ran away from the train on to the tracks and away from the scene. As a result of this action he was dealt with for escaping from police custody. That charge I am asked to deal with at a later stage.

5. Mr Zilioli felt real concern for his safety and welfare and was extremely intimidated by Mr Peckham’s actions. Mr Barnes felt the same fears and was frightened of being assaulted or stabbed by Mr Peckham.

6. Mr Peckham was arrested six days later on 8 May 2009 in Wellington.

7. Mr Peckham has a criminal record. Although he is now twenty-three, there are no recorded offences before he became an adult in 2005. He has convictions for assaults and breaching Apprehended Violence Orders and has twice served prison sentences. He has no prior convictions for robbery or demanding money with menaces.

8. I should have pointed out when I was explaining what had happened giving rise to Mr Peckham being charged is that at the time of committing this offence he was on parole. Part of the conditions of parole included dealing with an alcohol problem.

9. There was tendered by the prosecutor a Pre Sentence Report dated 11 February 2010. It noted that Mr Peckham had some history with the Probation and Parole Service. It noted that he was raised in the Mount Druitt area of Sydney, as well as on an Aboriginal mission in the western New South Wales town of Wellington. He told the Service that his parents separated when he was about five and both had problems with alcohol abuse during his childhood. An aunt informed the Service that Mr Peckham’s childhood “was marred by violence, drugs and alcohol”. Mr Peckham added that his mother had gambling issues as well.

10. He completed his HSC in 2004 and got good results. However, he noted that he was often suspended from school because of bad behaviour. He has worked for only about six months after he left school and then a few days a week as part of an Aboriginal youth programme in Wellington. He acknowledged to the Service his problems with alcohol and drugs, saying that he had been drinking since about the age of fourteen and heavily by the time he was eighteen. He also reported that he was using cannabis as well as amphetamines and the drug commonly known as ice on a daily basis.

11. He showed some victim empathy when he talked about the offences with the probation officer and displayed some remorse as well. He has no misconduct reports so far as whilst he has been in custody.

12. He referred himself to the Roy Thorne Substance Misuse Rehabilitation Centre in Moree. They apparently have confirmed that he is on their waiting list and that a bed is available. He said that he did not recall the events which gave rise to the charge. He is regarded as unsuitable for a Community Service Order and ineligible for a Periodic Detention Order.

13. There was tendered by Mr Bogan, who appeared for Mr Peckham, a psychological assessment by the forensic psychologist Mr John Taylor, who noted much of the same history as the Probation and Parole officer had noted. Mr Taylor thought that he had a moderate risk of recidivism, as well as a moderate risk of violent recidivism. He thought, however, that the risk of recidivism would be significantly lower if Mr Peckham were able to resolve his substance abuse and successfully engage in anger management counselling. Mr Peckham expressed interest in undertaking Mr Taylor’s ex-inmate programme, the details of which Mr Taylor included as an appendix to his report. He would clearly, in Mr Taylor’s opinion, benefit from a drug rehabilitation programme and Mr Taylor thought he would gain benefit “if he could be placed in the Compulsory Drug Treatment Correctional Centre at Parklea as this would not only assist him with drug rehabilitation but would also be able to prepare him for entry into the community.”

14. Mr Bogan called his client to give evidence. He confirmed his alcohol and drug problems and acknowledged that he had been stupid on the night that he committed these offences. He said that he did not even need the money because he had funds with him. He recalls running away after being challenged. He once again expressed his remorse and desire to apologise to the two victims of his criminal behaviour. He acknowledged his background as part of the Aboriginal mission at Wellington and the difficulties in growing up in that environment, where he was exposed to a lot of activity involving drugs and alcohol. He spent part of his time in Sydney and he is interested in playing rugby league football. He was also exposed to domestic violence in his household. He has two children and wishes to remain or at least to increase his contact with them when he is released from prison. He is using the time in prison to rehabilitate himself physically and to stay fit. He has undertaken a couple of courses whilst he is in custody.

15. Mr Bogan pointed to the spontaneous nature of the crimes committed by his client, saying how he was affected by alcohol and drugs at the time so that he was exercising limited judgment. I think these observations are true. They do not excuse his offending behaviour but it shows that his behaviour can be contrasted with somebody who soberly and carefully plans the robbery of another person.

16. Mr Bogan drew my attention to the factors referred to by the Supreme Court in R v Fernando and Ms Duncalf, who appeared for the prosecution, acknowledged their significance but indicated they would probably not provide much more relevance than the general personal information that we already have about Mr Peckham. Mr Bogan said that his client was motivated to improve himself. He wants to increase his relationship with his children. He is interested in sport and he wants to get some employment and stay in employment. Mr Peckham had pleaded guilty to both offences at what Ms Duncalf agreed was the earliest available opportunity.

17. Mr Bogan drew my attention to the possibility of his client being referred to the Compulsory Drug Treatment Correctional Centre.

18. Particularly with regard to the fact that these offences were committed on parole, I would regard an appropriate sentence for the robbery offence as three and a half years. However, Mr Peckham has pleaded guilty and should be given a twenty-five per cent discount off that sentence. I propose to do that because by pleading guilty he has made the administration of justice in the State more manageable. I would therefore, strictly speaking, reduce his sentence to thirty-one and a half months but I would round it off to two and a half years. I would fix a non parole period at seventy-five per cent in accordance with the Crimes (Sentencing Procedure) Act 1999 of that head sentence, being twenty-two and a half months. Once again I would round it down by a few months to eighteen months. There are some special circumstances warranting a longer than normal period on parole.

19. I would regard an appropriate sentence for the demand money with menaces as two and a half years imprisonment. Once again Mr Bogan has pleaded guilty, so I would discount that sentence by twenty-five per cent and reduce it to twenty-two and a half months. His non parole period should represent about seventy-five per cent of that sentence, which would be approaching seventeen months, but I would round it down to fifteen months as a non parole period.

20. Accordingly, I will impose the following sentences on Mr Peckham. For the robbery offence I set a non parole period of eighteen months, to commence on 20 November 2009 and to expire on 19 May 2011. The balance of the term will be one year from 20 May 2011 to 19 May 2012. The overall term is two and a half years imprisonment.

21. For the demand money with menaces I set a non parole period for the sentence of fifteen months. That will commence on 20 April 2010 and will expire on 19 July 2011. The balance of the term will be five months, commencing on 20 July 2011 and expiring on 19 December 2011.

22. Just have a seat, Mr Peckham, whilst I check. Mr Hallak, Mr Kernick - first whether I have made any factual errors in what I have said or not said and, secondly, whether the mathematics are correct.

HALLAK: Your Honour, the only issue I can bring up - actually I’ll withdraw that, your Honour, I’ve just recalculated it myself.

HIS HONOUR: All right.

HALLAK: Thank you, your Honour.

HIS HONOUR: So Mr Peckham will have a sentence of two and a half years with a non parole period of twenty months overall, that is my calculation. Does that coincide with yours, Mr Hallak and Mr Kernick?

KERNICK: Yes, your Honour.

HALLAK: Yes, your Honour.

HIS HONOUR: All right.

23. I have ascertained that there are grounds on which the Drug Court might find Mr Peckham to be an eligible convicted offender and I refer Mr Peckham to the Drug Court to determine whether he should be the subject of a Compulsory Drug Treatment Order. I make that referral under s 18B of the Drug Court Act 1998.

HIS HONOUR: Now I think I have to proceed to direct his release on parole, is that what I do, and fix parole conditions?

HALLAK: Yes, your Honour.

24. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing the release of Mr Peckham on parole on 19 July 2007. The conditions of his parole--

KERNICK: Excuse me, your Honour.

HIS HONOUR: Did I say “2007”?

KERNICK: Yes, you did, your Honour.

25. Sorry - on 19 July 2011. The conditions of his parole are that he be of good behaviour, that he notify the Registrar of this Court of any change of address and that he be supervised by the Probation and Parole Service and accept any reasonable recommendations and directions an officer of that Service may make regarding drug and alcohol rehabilitation.

HIS HONOUR: Now are there any other conditions of parole that either of you would suggest?

HALLAK: No, your Honour.

KERNICK: No, your Honour.

HIS HONOUR: Okay, thank you.

26. Now, Mr Peckham, you have got two sentences - one for the robbery, which is two and a half years. I have backdated them to 20 November, which is when your custody on these cases started. You were not on balance of parole any more, your custody on these sentences started, do you understand, so from 20 November 2009, last year, and I fixed a non parole period of eighteen months, so that expires on 19 May next year. And then the demand money with menaces I fixed that sentence, that is twenty months, and it starts during the first sentence and the non parole period finishes on 19 July 2011. So your overall non parole period is twenty months, dating from 20 November 2009, and I have directed your release on parole on 19 July next year, okay, so you are partway through serving that, and the overall balance of parole, you will be on parole for ten months from 20 July, after you are released on parole, until 19 May the following year. Now whilst you are on parole you have got to behave yourself, you know that, because on previous occasions you have not, you have got to tell the Registrar of this Court if you change your address, and I have recommended that you be supervised by the Probation and Parole Service, who will help you. You have had dealings with them before.

27. But, more significantly, I have referred you to the Drug Court to see if they can help you. They may not be able to, but one of the things, of course, is where you live or where you are going to live and you will have to talk to Mr Bogan about that. If they find that you are eligible then they might make a Compulsory Drug Treatment Order. That is out of my hands. It would be a good thing if you could go down that track because you obviously need to sort out this drug and alcohol problem that has been dogging you for most of your adult life - well most of your life as a child but now getting into an adult, and you are twenty-three now, otherwise you will just keep coming back to these Courts and, as you say, you want to provide a good role model for your children. If you start sorting yourself out now you will do just that.

HIS HONOUR: I will just check if there is anything else. Yes, I am reminded by my associate. Mr Kernick, there is a Section 166 Certificate.

KERNICK: Yes, the escape lawful custody.

HIS HONOUR: What am I asked to do with that?

KERNICK: I think the sentence, your Honour, of the other two is more than adequate to cover that as well.

HIS HONOUR: And so what should I do with it - do I dismiss it, what do I do? 166 of the Criminal Procedure Act?

KERNICK: Yes, Criminal Procedure Act.

HIS HONOUR: Or the Crimes (Sentencing Procedure)--

KERNICK: Crimes (Sentencing Procedure) Act, your Honour.

HIS HONOUR: That runs out at section--

KERNICK: My apologies, your Honour.

HIS HONOUR: Yes, now is this a - let us look at the certificate. It is a related offence, it is escape from police custody.

KERNICK: From memory, your Honour, it’s a guide to use when sentencing on the other two matters.

HIS HONOUR: No, I think that might be if it’s a Form 1.

KERNICK: Form 1, yes.

HIS HONOUR: Under s 167 it says:

“ If following a plea of guilty to an indictable offence the Court finds the accused person guilty of a related offence, the Court is, unless it considers it inappropriate in the circumstances to do so, to order that the charge in relation to each back-up offence be dismissed.”

Yes, it is to deal with any back-up offence. This is not a back-up offence.

KERNICK: Your Honour, if you like if I could have five minutes to get some further information--

HIS HONOUR: Yes, perhaps you had better check on that. It looks as though what you need to look at is div 7 of some part of the Criminal Procedure Act from 165 through to 169 and this is said to be, according to the Section 166 Certificate, a related offence rather than a back-up offence, so perhaps you had better have a look, and if you would let the court officer know. We have just got to sort out this escape charge, Mr Peckham. And if you let her know, she will bring Mr Peckham up and then I will come back on to the Bench or I might be here doing something else anyway and we will deal with it then, Mr Kernick and Mr Hallak.

KERNICK: Yes, your Honour.

HALLAK: Yes, your Honour.

SHORT ADJOURNMENT

HIS HONOUR: Yes, how did you go, Mr Kernick?

KERNICK: I made those enquiries for you. I’ve spoken to my friend. Apparently his client has already pleaded to that matter. The options are, your Honour, is that you can finalise the matter now, that is sentence him, or refer the matter back to the Local Court.

HALLAK: And I have spoken with my client in regards to those options. He’d like the matter to be dealt with today, your Honour.

HIS HONOUR: Yes, I can understand that. What do you say, Mr Kernick, is an appropriate--

KERNICK: Yes, the Crown’s position’s the same, your Honour, that the sentences imposed on the previous two matters are more than adequate for this one, your Honour. You do have the option - sorry, your Honour - you do have the option as well of dismissing the charge, but that’s obviously another totally--

28. In addition I am sentencing Mr Peckham for a related offence, which is the subject of a certificate under s 166 of the Criminal Procedure Act1986. It is escape from police custody. The circumstances of that I have set out already when detailing the robbery and the demand money with menaces offences. It put one of the police officers in a dangerous predicament. Escaping from police in circumstances involving train stations or trains can be fraught with danger. I regard an appropriate penalty as six months imprisonment. I will make that six months imprisonment concurrent with the sentences which I have just imposed.

29. Accordingly, for the offence of escape custody I sentence you to six months imprisonment, to commence on 20 November 2009 and to expire on 19 May 2010.

Do I need to do anything else?

KERNICK: No, your Honour.

HALLAK: No, your Honour.

30. All right, you have got six months for that escape. You are serving that now, and that expires on 19 May and then you finish off your other sentences, do you understand?

OFFENDER: Yes, your Honour.

HIS HONOUR: So that is dispensed with now, it is over and done with.

OFFENDER: Thank you.

HIS HONOUR: All right, Mr Peckham, good luck.

OFFENDER: Yeah, thanks for that.

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