R v Fellowes

[2024] NSWDC 311

District Court

New South Wales

Medium Neutral Citation:

R v Fellowes [2024] NSWDC 311

Hearing dates:

31 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 4 years with a non-parole period of two years four months

Catchwords:

CRIME — Violent offences — Assault with intent to rob in company— Intimidation

SENTENCING — Aggravating factors — Breach of conditional liberty — Breach of ICO

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Late plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Co-offenders — Parity — Form 1 offences — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis— Special circumstances

SENTENCING — Subjective considerations on sentence — Functionally illiterate — Risk of institutionalisation

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Craig (District Court (NSW), 1 November 2023 unrep)

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Category:

Sentence

Parties:

Blake Fellowes (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
B Hart (for the offender)
C Todd (for the Crown)

Solicitors:
Justine Hall Lawyer (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2022/323913

JUDGMENT – ex tempore revised

Introduction

1. Blake Fellowes was born in 1998, he is now 26. He first went to gaol when he was 19. Since August 2018, he has only been in the community for less than six months.

2. On 21 October 2022, he was sentenced to a term of imprisonment but was subject to an Intensive Correction Order. On 29 October 2022 there was the incident at Werri Beach which led to four serious charges. He was arrested for those matters on 30 October 2022. On 22 June 2023 he was granted bail. The Intensive Correction Order (‘ICO’) was restored, but something happened in January 2024. There were 5 days in custody in that intervening period. On 4 February 2024 he was returned to custody where he remains.

3. In the Local Court and when arraigned on the four serious charges in this Court, he said he was not guilty. A trial commenced this week before a jury of 12. When he was first arraigned in front of the jury panel he hesitated at one point, but then he said he was not guilty of each count. After the Crown opening and after the principal complainant in the first count had completed his evidence-in-chief, an adjournment request was made through Fellowes’ counsel, Mr Hart. I granted that request. Fellowes took the time to consult with his barrister and solicitor.

4. I am told, and accept, that Mr Fellowes left school when he was in Year 9. He was and remains functionally illiterate. I am acutely aware of the problems that defence counsel have in obtaining instructions from people in custody generally. I put on the record that problems with staffing meant that it was very difficult for his lawyers to have access to him at this Court on the morning of the trial.

5. When the matter returned to Court on the Tuesday morning, Fellowes asked that he be rearraigned. He pleaded guilty to Counts 2 and 3 on the original indictment. The Director of Public Prosecutions directed there be no further proceedings on Count 1, a robbery in company charge, and that Count 4, an intimidation charge, be discontinued so that the offender could acknowledge his guilt in relation to that matter and have it taken into account on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1 when I sentence him for Count 3.

6. Everyone agreed with that course. It occurred in front of the jury panel, and they were discharged.

Guilty pleas

7. Although late, the guilty pleas had utilitarian value. I am required to reduce the otherwise appropriate sentences by 5%, and I will do so. I’ll round down if necessary and to the offender’s advantage. I will take care that the process of accumulation because there must be some accumulation as between the sentences to be indicted do not erode that advantage.

8. It also needs to be stated that although he was present when his co-offender, Craig committed the offence, the subject of the now discontinued Count 1 of the indictment, Fellowes is not to be sentenced for that offence. To the extent that it occurred whilst he was present, and thus has some role to play in giving context to my assessment of the facts of the matters for sentence, he is not held to be responsible for that crime in any way.

Victim impact

9. The absence of a Victim Impact Statement does not give rise to any inference that an offence had little or no impact on a victim: Crimes (Sentencing Procedure) Act 1986 (NSW), s 30.

10. The witness who gave evidence expressed what one would expect to be understandable emotions to being confronted as he was. Although there is no Victim Impact Statement, I can readily understand how the victims of the offences for sentence would have felt similar emotions, as would anyone in their situation.

Matters for sentence

11. I sentence Fellowes for two offences of Assault with Intent to Rob while in Company: Crimes Act, s 97(1) 1900 (NSW). They carry maximum penalties of 20 years imprisonment.

12. When I sentence for Count 2, I note that Fellowes did not directly confront the victim of that crime. His plea was entered on the basis that he was engaged in a joint criminal enterprise with the person who did.

13. While each person engaged in a criminal enterprise is liable for the offences committed by others, the extent of their involvement can justify a different penalty than that imposed upon the person who was the principal offender for that matter. Where matters occur in company, that fact is an element of the offence which leads to the higher maximum penalty. It is not an additional aggravating circumstance, but the force exerted on the victims by the weight of numbers is a matter that is relevant to the assessment of objective seriousness.

14. So far as Count 3 is concerned, Fellowes was the person who directly confronted the victim.

15. When I sentence for Count 3, I will also take into account on a Form 1 the intimidation of the front seat passenger. I do not sentence for that offence, but according to the guideline judgment of the Court of Criminal Appeal, Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42], this requires greater weight be given to personal deterrence and community protection so far as the matter for sentence is concerned.

Agreed Facts

16. There are now Agreed Facts before the Court. In October 2022 three men drove to a beach on the South Coast of New South Wales, where they parked and sat and watched the ocean. A fourth man arrived in a separate car. He joined them in their car. The four men noticed a group of other people in the car park near a shower block, with a brown Pitbull on a lead. Those other men included Fellowes, Jessie Craig and Fellowes’ young son.

17. Craig was the first in that group to act. He went to the driver’s car window and intimidated, assaulted and robbed the driver. I repeat, Fellowes is not for sentence for that matter. But while this was occurring, Fellowes approached the rear driver’s door. He joined in Craig’s later acts. He became involved with the three passengers in the vehicle.

18. Fellowes went to the rear driver’s side door. While he was there, Craig opened it and attempted to grab a phone from a passenger who said, “I’ll call the cops”. Fellowes then opened another door. He harassed another passenger, trying to get money off him and attempting to grab his phone. That young man kept hold of his phone. The offender said to him, “Empty your pockets” and then grabbed him with both hands on his forearm and on his leg. He also grabbed at the man’s phone.

19. The front seat passenger experienced fear throughout the ordeal. The Agreed Facts note that the offender acknowledges his actions would have caused fear to him.

20. Fellowes, Craig, and another man left the car park. Their victim’s recorded its registration number.

Objective seriousness

21. I have the benefit of written submissions from the Crown and oral submissions from Mr Hart. There is little difference in their submissions, including their submissions about my assessment of objective seriousness. I also have the benefit of Judge Baker SC’s decision and his assessments of the relevant seriousness of the matters that he sentenced Craig for: R v Craig (District Court (NSW), 1 November 2023, unrep).

22. It is accepted, that in the scheme of matters that fall within s 97(1) Crimes Act this was a low-level assault with intent to rob. While there was violence, it was not at a high level. It was a spontaneous action which would have been frightening for anyone involved. The offence involved three men at the car, but it is missing some of the factors which commonly make these matters particularly serious.

23. That said, while it is at a lower level than many others, it is accepted that only a custodial sentence could properly reflect how serious this offence was. In making that assessment, I can have regard to the general principles set out in the guideline judgement; as I must: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; Crimes (Sentencing Procedure) Act, s 42B.

Other matters

24. The maximum penalty is another important guide to the exercise of my sentencing discretion.

25. I also have to consider the sentence imposed on Jessie Craig by Judge Baker SC in November 2023, noting that Craig faced the more serious charge which was originally Count 1 in this matter. Craig had the advantage of an early plea of guilty and a reduction of 25% in the otherwise appropriate sentences to be indicated. The evidence called established matters which led to a reduction of his moral culpability including, childhood trauma. His Honour found Craig had expressed remorse and shown insight. He took into account his institutionalisation. Craig had spent similar time in custody to this offender, but the matters on his record included more matters of serious violence.

26. When I come to formulate a sentence, I also have to take into account that Fellowes was subject to an ICO. He had only just been released to that order. His actions were in breach of his promise to be of good behaviour. The fact he was on conditional liberty is a matter that aggravates the sentence. I accept that he had not had long, really no time whatsoever, to engage in that program. But that said, when he was later released to that ICO, he still did not engage in the program. This reflects a long history of breaches of court orders.

27. There is a real risk that Fellowes has become, or will, if he spends too long in gaol, become institutionalised.

28. Sentences ultimately have a purpose – to protect the community. The community can be protected while someone is in custody, but no one should be in prison for longer than the objective seriousness of their offence demands, and the community can be protected if, as they age and realise the futility of drug abuse and committing crimes, offenders take advantage of programs while in custody.

29. At the same time, as is evident by the material before me, when in gaol they also meet and associate with people who think a criminal lifestyle is somehow the only option that they have. And if they continue with that lifestyle they can, as I fear may happen in this case, spend the rest of their life in custody.

30. I have calculated there were 241 days of pre-trial custody before he went into custody on 4 February 2024. Although I note that some of that time was also parallel to time spent in custody following the breach of the ICO. I will give Fellowes full credit for it. I propose to backdate those 241 days from 4 February 2024. My start date will be 8 June 2023.

Parity

31. The principle of parity is applied in an attempt to ensure there is equal justice: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. No one who was party to similar crimes should be left with a justifiable sense of grievance that they were sentenced differently to another offender in the same enterprise.

32. So far as Jessie Craig is concerned there is a real difference in the charges here, as Count 1 is not before me. The records of the offenders are similar, although Craig has more serious matters on his record. There was a significant difference in their subjective cases, Craig was able to establish by evidence remorse, insight and factors leading to a reduction of his moral culpability. There are differences between the two men, and I will take those differences into account, as I will take into account the careful remarks of his Honour Judge Baker SC.

Subjective case

33. I have received submissions from the bar table. They were not controversial. I have a reference from the offender’s sister which, as she is speaking as a sister, perhaps underestimates matters. She asks that her brother be given a second chance. She tells me that people believe in him. However, I cannot accept her comments about remorse and insight. If there had been remorse and insight there would have been guilty pleas at a much earlier time.

34. Fellowes has children. He has some motivation to lead a normal life in the community. But as the Crown point out, that motivation was present during the remand period and that motivation was present when this offence occurred.

35. It is clear that he has had few of the advantages that those in the community who did not have his upbringing expect. He has spent too long of his life in custody, and he must spend further time in custody.

36. A submission is made that a finding of special circumstances should be made. The Crown cautioned against that finding because of his repeated breaches of conditional release conditions, including during his current remand period.

Synthesis

37. As I said earlier, the community can be protected from the offender while he is in custody, and he has to be released, but every time he has been released to date he has failed.

38. Courts should not give up on people because that would lead to even greater institutionalisation. Courts can afford someone the chance to prove that they are not a risk to community safety. I will make a finding of special circumstances and give him an opportunity for earlier release to parole. But given the length of this aggregate sentence he will have to earn that right by convincing the State Parole Authority that he is not such a risk. He will have to do what he can to prove himself to them before he gets released. That means, as the Sentence Assessment Report indicates, he must engage in programs in custody, and be prepared to engage in programs on release. Only then will he be a person who could be a proper father to his children.

39. It would appear from the history before me that Fellowes has never really had a chance to lead a normal life in the community. It is possible that if he continues on this current trajectory he never will because he will spend most of his life in custody. Despite all the problems in his life, which are reflected in his record and the limited material before me, ultimately, that choice will be his. Much will depend on; who he associates with, whether he turns his back on crime and does not engage in drug use. He will need help doing that, and the longer he is helped, supervised, the better for the community.

40. Synthesising all those matters. I note there were two crimes against two individuals and the intimidation of a third is taken into account. They are all crimes against the community. People should be entitled just to go and watch the surf without being threatened with robbery or intimidated. We should all feel safe when we go out.

41. I am not optimistic of Fellowes’ chances, given his history. But his limited resources need to be bolstered. While in custody, a first step would be giving him literacy assistance. The second, would be his engaging in drug and alcohol programs and the various EQUIPS programs. He must be removed from the community, but I will to the extent I am able, give full weight to the subjective material put before me. I must also weigh the sentences appropriately imposed on his co-offender by Judge Baker SC. And I note again, that the sentence here can only be reduced by 5% because the guilty pleas came late.

Orders

42. In relation to both counts you are convicted. I take into account the matter on the Form 1 when I sentence for Count 3:

• In relation to Count 2: I indicate a sentence of 3 years and 4 months.

• In relation to Count 3: I indicate a sentence of 3 years and 9 months.

43. The aggregate sentence in this matter will be 4 years imprisonment. The minimum period will be 2 years and 4 months reflecting a finding of special circumstances. The sentence will commence on 8 June 2023. You will be eligible for consideration by the State Parole Authority for release to parole on 7 October 2025. There will be a parole period of 1 year and 8 months which will commence on 8 October 2025 and expire on 7 June 2027.

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Decision last updated: 25 July 2024