R v Ford

[2020] NSWDC 917

District Court

New South Wales

Medium Neutral Citation:

R v Ford [2020] NSWDC 917

Hearing dates:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 9 months with a non- parole period of 2 years 3 months.

Catchwords:

CRIME – Possess or use a prohibited weapon without permit – Affray - Reckless wounding - breach of bond

SENTENCING - Relevant factors on sentence – offences committed while subject to a bond - early plea - nature of weapon used - background of disadvantage - some progress toward rehabilitation – is community protection best served by removal or rehabilitation

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Weapons Prohibition Act 1998

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

Category:

Sentence

Parties:

Dylan Ford (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr M Ainsworth (for the offender)

Solicitors:
Oxford Lawyers Service (for the offender)
Ms T Collison (for Director of Public Prosecutions)

File Number(s):

2020/00026545

sentence – ex tempore revised

Introduction

1. On Australia Day this year what started out as a friendly interaction between two groups celebrating the day had tragic results. Thankfully they were not more tragic.

2. The offender for sentence, Dylan Ford, well knew the consequences of taking illicit drugs, carrying knives and drinking to excess. He had, for a period, sought to put that part of his life behind him. He had found work and was, until this day, utilising some of the lessons learnt while on parole and from the various EQUIPS programs he had done. All of that good work was put to nought this day. To use his own words; he “blew it.” And, he is now back in gaol.

3. Pleas of guilty were entered to three charges:

1. Possession of a prohibited weapon (knuckledusters): s 7(1) Weapons Prohibition Act 1998; maximum penalty 14 years’ imprisonment, standard non-parole period five years.

2. Affray: s 93(1) Crimes Act 1900; maximum penalty ten years’ imprisonment.

3. Reckless wounding: s 35(4) Crimes Act; maximum penalty seven years’ imprisonment, standard non-parole period three years.

4. I am also asked when I sentence for the weapons charge to take into account two further matters on the Form 1. I will do so. They are - resist arrest and possession of a quantity of MDMA.

5. In some cases Form 1 matters can lead to a significant increase in the otherwise appropriate sentence. Ford has past convictions on his criminal record for drug possession and resisting police. Here however, the circumstances surrounding each Form 1 matter are such that, had they stood alone, it is unlikely that the s 5 Crimes (Sentencing Procedure) Act 1999 threshold would have been crossed. Nevertheless, I take them into account in accordance with the directions given by the Court of Criminal Appeal in the guideline judgement from 2002: Attorney General’s Application No. 1: [2002] NSWCCA 518 (2002) 56 NSWLR 146 at [39] – [42]. Guideline judgements must be given effect.

Facts for sentence

6. Judges have to focus on the offender for sentence and what was done by him. It is important that the seriousness of the offences for sentence not be underestimated. Of the three charges, is accepted that the most serious is the wounding, even though it carries the lowest maximum penalty. It is serious because another citizen was hurt and put at significant risk. It is serious because of the nature of the weapon used and the circumstances surrounding the reckless infliction of that wound.

7. The matters for sentence arose after the offender, who was partying in a residential hotel with a group of friends, yelled across to another group in an adjoining property. Celebratory remarks were exchanged. The offender eventually met up with people from the other group and joined them at their home. Some of his friends also attended those premises. It would appear from all the material before me that one of them decided to help himself to a mobile phone belonging to someone at the party.

8. When the offender realised that one of his ostensible friends may have taken the phone, he took steps to recover it. He took a knife from the premises with him. It is a sad but tragic fact that he was not thinking clearly. It appears that when affected by drugs and alcohol - as he was – he thought that possession of a weapon was somehow justified. It also appears that he had knuckledusters with him, although he never used them.

9. Ford’s original aim was to confront his friends and recover the stolen phone. It is not clear to me why that original intention was not carried out. It is not clear why the two groups turned on each other. But they did. The two groups engaged in what is properly characterised as an affray. It occurred outside a hotel in a street in Wollongong, where there must have been many people gathering and moving about.

10. The incident started with yelling and the offender kicking a young woman. He then pulled out the knife. Some of the young women involved jumped on him yelling, “He's got a knife, he's got a knife.” The knife was taken from his hand and thrown away. The offender punched another man and ran to the front of the hotel. There he picked up a glass beer bottle and holding it by its neck smashed it.

11. One of the young women ran at him and pushed him. At this point, the offender lunged towards a young man who had come from the premises and was running from the offender. The bottle went into that man's abdomen. He began to bleed and fell to the ground. The young women then ran and jumped on the offender's back. He fell to the ground and was held in a headlock. In the course of attempting to get her off him, he flung his head back, hitting her in the face. Another woman also jumped on top of him and he was held down. Another young woman rendered aid to the man who had been stabbed.

12. After the police arrived, the offender ran. He was chased. He jumped a fence but was pursued and ultimately subdued by police and arrested. He was found to have a small quantity of MDMA and the knuckledusters on him.

Objective Seriousness

13. The offence of affray occurred in a public street. A number of people were involved. Ford was an active participant. He was the one wielding the weapons. He showed no concern for anyone involved in the incident or members of the public, who, given the time of day and the place, would have been around. It would have been a significantly disturbing incident for anyone who witnessed it.

14. Ford then escalated the matter. Having been disarmed of the knife he smashed the bottle so it could be used as a weapon. He struck a young man who was running away from him. Ford was at no imminent risk from that young man, to the contrary. The weapon that he armed himself with was a particularly nasty one. The wounding, though reckless, was directed as a result of an act directed at the young man concerned.

15. The young man’s wound was treated in hospital by suturing and cleaning. He spent the next day in hospital. Although there is no Victim Impact Statement before the Court, that fact does not mitigate: s 30E(5) Crimes (Sentencing Procedure) Act. Courts are entitled to take into account that injuries such as this can have both a physical and psychological impact on their victims.

16. The use of such a weapon, in such circumstances, could only require a custodial sentence of some length. The only moderating factor is that the injuries were not as serious as they could have been.

17. Community protection is one of the principal reasons why we have a Weapons Prohibition Act. If weapons are possessed, they may well be used. Ford is in fact lucky, given his state of intoxication that he chose not to use the knuckledusters. And that the knife was taken from him. He could have been in gaol for far more serious offences but I must only sentence him for the offences presently before me.

Other factors

18. In assessing the sentence I must impose, I am also required to take into account the fact that the offender was subject to a community corrections order at the time; one of those offences involved the possession of a weapon, a Stanley knife which he said was a work tool.

19. I must also take into account that the offender has a criminal record including offences of violence and adult convictions for possession of knives. His record disentitles him to the leniency often given to first offenders. It also means greater weight has to be given to considerations of deterrence and community protection.

20. Ford had been released to parole in May 2019. He previously breached that parole. The sentencing remarks of Judge Robison are before me. The subjective material that was before Judge Robison is essentially repeated before me.

Subjective case

21. I have the benefit of; a comprehensive report of Mr Borenstein, a psychologist, a letter from the offender and references from a number of people who know him well. There is also a Sentence Assessment Report. All the material before me indicates Ford is a young man with a background of some disadvantage. His parents, his mother in particular, had a number of significant personal problems. He had a difficult relationship with a stepfather. His background gave rise to what is commonly described as a history of disadvantage that mitigates the sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [40].

22. From a young age he was diagnosed with and treated with Attention Deficit Disorder. Ford’s behavioural problems and poor attention span and distractibility led to a defiant attitude. It is unsurprising given his history and family background that drugs seemed to take over his life. It is a factor that, despite his criminal history, has to be given full weight. His moral culpability should not be regarded as being the same as those whose early life was not so blighted: Bugmy v The Queen.

23. Mr Borenstein, in his report, notes that Ford took up the use and abuse of illicit drugs and alcohol when very young; far too young to be able to make any rational choice about his future. While his use and resort to illicit drugs can be understood, it cannot and does not excuse what he did this day; as he well knows.

24. Returning briefly to the facts of these matters. That Ford was intoxicated by alcohol and illicit drugs meant that, as occurred here, he was more likely to lash out and do something unpredictable and dangerous. That he chose to arm himself with weapons would concern anyone in the community. That Ford continually offends in this way indicates that he has failed to have learnt the lesson that previous custody was meant to teach. It also indicates a failure to take full advantage of the good behaviour bonds and the leniency shown him by the magistrate.

25. I am heartened by the references that members of the community have provided to him. There are obviously people in his background and his family who see the good in him. The work he did prior to the commission of this offence was recognised. Work is available to him in the community. That pro-social support in the community indicates that, if given opportunities, he may well be able to turn his life around.

26. The offender wrote a letter to me. It was not on oath. But as I indicated in discussion, it is sometimes difficult for any judge to assess such evidence, whether it is in writing or on oath. It would appear that Ford knows what he has to do. It is also clear that despite his mindset at present, as expressed in the letter, he is aware that he has to prove himself to himself and those who support him in the community. He has goals that he can work towards. He has expressed apology and a degree of regret. I am prepared to find he has therefore remorse for what he did to his victim. But it has taken him a long time to get to this point.

27. His prosocial contacts in the community have all said there is something in this young man that was not apparent to the author of the Sentence Assessment Report but the Report does indicates that a plan could be put in place in an attempt to put him on, and keep him on, the right path.

Submissions

28. I am indebted to Mr Ainsworth and Ms Collison, who appears for the Director, for their oral submissions. There are also comprehensive written submissions provided by the Director.

29. Mr Ainsworth, counsel of considerable experience, notes that it is not unusual that at a certain point people with a background such as Ford eventually learn the lessons that gaol and repeated punishment is meant to teach. Many with similar backgrounds and history of offending as they eventually mature can adopt lawful life in our community.

30. Mr Ainsworth makes the point that Ford is still young. He is still immature. To date, he has never really lived a normal community life. He cannot be treated the same as a person who is able to make the sort of rational choices that those without that background make every day. Mr Ainsworth asks that proper allowance be made for the fact that Ford will need help and assistance in leading a normal community life on release.

31. However here, as Ms Collison points out, a degree of scepticism is called for. That scepticism was shown by the author of the Sentence Assessment Report. Scepticism is justified because this offender has done EQUIPS and other EQUIPS programs, he has been supervised in the community by Community Corrections but he failed to learn and respond appropriately.

32. Ms Collison submits there remains a need to deter this offender and others and to protect the community. She notes that for most of his life Ford has never taken responsibility for himself or his actions. He might have goals, he might have intentions, but as soon as he starts using illicit drugs those gaols go. And if he does use illicit drugs, his record indicates that he’s a danger to others in the community.

Synthesis

33. In matters such as this community protection is foremost. It is one of the primary matters that the court has to consider.

34. Ford was on a bond, which had at its heart a promise to be of good behaviour; he broke that promise. This is not the first time he has broken promises; to himself, to the courts, to the Parole Authority, to his family and those who support him. If that is to be the pattern of his life - and it has been the pattern to date - the Court could have absolutely no confidence that, if placed under stress, he would not revert to the use and abuse of illicit drugs.

35. There is a dilemma here. The community will be protected from Ford the longer he is kept in jail. But, as Mr Ainsworth points out, he will have to be released. The longer he spends in gaol the less access he will have to the programs available in the community that are designed to break the cycle he is in. And the more time he spends in gaol the more he will have access to the people he has hung out with in the past. Those people have formed his views about violence and the use of violence.

36. Sentences, even for events that occur reasonably spontaneously, have to by their severity, exact a degree of retribution. They have to punish and attempt so far as is possible to vindicate the dignity of the victim of the reckless wounding offence. They have to express the community's concern that people affected by drugs and alcohol go about armed.

37. With great respect, Mr Ford, given your history, you should never ever go out armed, no matter what you might think the justification.

38. I will structure the sentence to give Ford one last chance of proving himself in the community but the prognosis has to be a guarded one.

39. I have to attempt to synthesise and in a sense balance the competing purposes of sentencing here. I have to impose the sentences that properly punish this young man and reflect the harm he did.

40. I have to take guidance from the maximum penalty and where applicable the standard non-parole period. Neither the weapons nor the wounding charge is a case where the standard non-parole period should be applied but they are matters that should properly be taken into account.

41. Balancing all those matters there has to be, as is recognised, custodial sentences. Each of the indicated sentences in my aggregate sentence will be reduced by 25% to reflect the early plea of guilty and the utilitarian value of that plea. I will seek, when accumulating the sentences, not to erode the benefit of the guilty plea.

42. I will, so far as the Weapons Prohibition Act matter, take into account the matters on the Form 1.

43. There will have to be some accumulation of penalties but the process of accumulation can be moderated by a principle known as totality. That is; the aggregate sentence should properly reflect everything that was done, the purposes of sentencing, the case for the offender and the case against him.

Breach of the bond

44. There is also a breach of the bond matter before me. Although an aggravating feature on the sentence, it is my view that there should be some independent punishment for Ford’s breach of a promise made to the court to be of good behaviour. That promise was breached the moment Mr Ford put that knuckleduster in his pocket.

45. To carry a weapon when he knew he was going to go out drinking and celebrating is both a factor relevant to the offences for sentence but is also a calculated breach of his bond and there must be some independent punishment for that breach. I've sought not to double count that feature. The independent punishment will be as modest as I believe is necessary to avoid any hint or suggestion I have double counted what is also a factor of aggravation of the sentences.

Orders

Breach matters

46. In relation to the breach matters, the breach is proved. In relation to both matters there will be a sentence of one-month imprisonment. That sentence will date from the 26 January 2020 and expire on 25 February 2020.

Aggregate sentence

47. All indicated sentences take into account the 25% reduction.

1. For the affray, I indicate a sentence of 1 year 6 months.

2. For the Possess or use a prohibited weapon without permit, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 1 year 1 month with a non-parole period of 8 months.

3. For the reckless wounding, as it carries a standard non-parole period I indicate a sentence of 3 years with a non-parole period of 2 years.

48. The total aggregate sentence is 3 years 9 months. To reflect my finding of special circumstances there will be a non-parole period of 2 years 3 months commencing 26 February 2020 and expiring 25 May 2022. The balance of the sentence of 1 year 6 months is to commence upon the expiration of the non-parole period on 26 May 2022 and expiring on 25 November 2023.

49. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 25 May 2022 - and that will depend on the State Parole Authority and how well you do in custody.

50. The backup offences sequences 7, 8 and 9 are withdrawn and dismissed. I note that that two other matters, sequences 3 and 4, were taken into account on the Form 1.

HIS HONOUR: Thank you, Mr Ainsworth. Mr Ford, if you could tell them to terminate the link, please?

OFFENDER: Yeah, thank you, your Honour. I appreciate it, thank you.

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Decision last updated: 13 July 2021