R v Gowans

[2024] NSWDC 482

District Court

New South Wales

Medium Neutral Citation:

R v Gowans [2024] NSWDC 482

Hearing dates:

29 August 2024

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 5 years 2 months with a non-parole period of 3 years

Catchwords:

CRIME — Property offences — Break, enter, in company, steal — Circumstances of aggravation — Take and drive a conveyance — Larceny

CRIME — Violent offences — Robbery in company

SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences — Moral culpability — Multiple offences — Accumulation, concurrency and totality — What is a crushing sentence — Objective seriousness — Purposes of sentencing

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Intoxication — Mental illness and disorders — Risk of institutionalisation — Traumatic and abusive childhood — Disadvantaged childhood

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

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

Grube v R [2005] NSWCCA 140

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

Texts Cited:

“Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project

Category:

Sentence

Parties:

Nathaniel Gowans (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
R McMahon (for the accused)

Solicitors:
Legal Aid (NSW) (for the offender)
N Verghese solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/94147

JUDGMENT – ex tempore revised

Introduction

1. Nathaniel Gowans is no longer a young man. He was born in 1983. He has committed a number of offences against members of the community. He has been to gaol for some of those crimes.

2. On 18 March 2023 he committed a series of serious offences. They represent an escalation in his criminal activity. He told report writers that he had been drinking alcohol to excess that day. Drinking alcohol might, in part, explain why he did what he did, but it does not, and cannot, excuse what he did. In fact, it made him more dangerous, as he became more reckless under the influence of alcohol.

3. So serious were the offences individually and cumulatively that an aggregate sentence of some years imprisonment must be imposed upon him. That sentence must properly reflect the harm he did to the community and his individual victims. That sentence must also properly reflect the person for sentence. There are a significant number of mitigating features that have to be taken into account, but as the prosecution rightly submit, mitigating factors can go only so far. The aggregate sentence must be proportionate to all of what was done. Each indicated sentence must also be proportionate to the harm done and the seriousness of the offence.

Agreed Facts

4. The events of 18 March 2023 began for Gowans when he and two others brazenly stole two electric scooters from a commercial premises in Wollongong. The fact that the store and the shopping centre had excellent CCTV did not deter him.

5. He then went only a few blocks from the store where shortly thereafter he and another person attempted to steal a motorcycle. They could not get it started but they pushed it from where it had been parked. That crime was also captured by CCTV. A local resident was so disturbed by what he saw that he contacted triple-0 and provided a running commentary on what was occurring.

6. Shortly after Gowans and another man walked to a nearby service station where a lady was pumping petrol into her Mercedes Wagon. The co-offender opened the driver’s door and entered the unoccupied driver’s seat. Soon after Gowans went to the front passenger’s seat and opened the passenger door. The driver’s mother was seated in that seat. She said, “What are you doing?” Gowans grabbed the lady in the seat and pulled her out of the car. He then sat in the then unoccupied front passenger’s seat.

7. The driver stopped pumping petrol and said, “What are you doing? What are you doing? Get the fuck out of my car”. The front passenger’s side door was still open. The driver grabbed Gowans and attempted to get him out of her car. Her mother joined her in that effort. Gowans resisted by putting his feet against the footwell of the door. He then lifted one foot up and kicked out at both victims. He said, “I’m going to fucking hit you”. The driver said again, “You need to get out of the car. You can’t do this. Please get out of the car”. At the same time the co-offender was seated in the driver’s seat trying to start the car.

8. An attempt was then made by the driver to grab the keys that had been left in the car. That is the robbery matter for sentence.

9. There were also related matters to that offence which will be taken into account on a Form 1. During the altercation at and in the vehicle, one of the offenders made a demand for money. The mother removed her handbag so things could not be stolen from it. The co-offender then produced a large machete or knife. He left the vehicle shortly with that knife and demanded the keys so he could start the vehicle.

10. It was at this point that the daughter called her mother away and they retreated. The vehicle was then driven away with Gowans in the front passenger’s seat. Inside the vehicle were not just the car keys but other important items – other keys, a mobile phone and paperwork. The victims were particularly concerned that details of their address were left in the vehicle.

11. During the incident the driver’s mother suffered a scratch on her arm; another matter on the Form 1.

12. When arrested Gowans told police I “just seen a … lady … filling up the car … [I] thought, ‘cause it was a press button ignition, that we could just jump in and press it and drive away … but little did we realise there was a passenger sitting in the car”. He said the delay was because his co-offender “didn’t know how to put [it] into gear”.

13. The Mercedes was driven from Central Wollongong to the town of Robertson. There they drove to a property and forced open a shed. From that property the two men stole a 2017 Toyota Landcruiser. It had a large number of toolboxes fitted to it. They contained professional equipment. The victims had just started a tree care business. Presumably they are arborists. Various tools from the shed were loaded also on to the tray of the Landcruiser. The co-offender drove away in the Landcruiser. Gowans left driving the Mercedes.

14. The Landcruiser was driven back to the Illawarra through road works on Macquarie pass. The Mercedes was also driven back to Wollongong. The Landcruiser and the Mercedes were later found in the Port Kembla area. The Landcruiser had been destroyed. An attempt had been made to set the Mercedes alight, but the attempt did not succeed.

15. The offender was arrested on 22 March 2023. He spoke to police. What he said was recorded. He said that he went to Robertson as a passenger in the Mercedes but that he had driven it back. He admitted to consuming a large quantity of drugs and alcohol that day. He said that the tools had been “hocked” by the co offender.

Objective seriousness

16. CCTV, good though it was, did not prevent these crimes. Drug taking and intoxication with alcohol is no excuse, as I have said. Each of the offences had an impact on the community and individuals. Each of these offences caused disquiet in the community, not just to the individuals impacted on. A just and appropriate punishment is required. That requires a proper assessment of how serious these offences were.

The larceny offence

17. Sequence 1 (H9350242) is charged pursuant to s 117 Crimes Act 1900 (NSW). Maximum penalty, 5 years imprisonment.

18. A larceny offence was committed against a commercial property. I am sure businesses have built into their business models the risk of theft, but those risks are passed on to the community. In some cases, larcenies such as these might not attract a custodial sentence but there was persistence in the offender’s behaviour. It was a blatant offence. The fact it occurred in company, allowed more property to be taken. It was a serious example of a shoplifting offence, and a gaol sentence is required.

Motor vehicle offence

19. Sequence 2 (H9350242) is charged pursuant to s 154A(1)(a) Crimes Act. Maximum penalty 5 years imprisonment.

20. For most people, unless they are lucky enough to have a home, their motor vehicle is the most expensive possession. Even if it is an old and worn motor bike it may still be the most valuable asset a person owns.

21. This was a short, mean, opportunistic offence, but thankfully the possession of the motor vehicle was not for a lengthy period of time. But it was still left in a secluded area where hopefully it was recovered. Again, if it had occurred as a one-off offence by a person of prior good character, a custodial sentence could be avoided. But here, some custodial penalty is required to reflect the seriousness of what was a very short-lived offence.

The robbery in company offence

22. Sequence 3 (H9350242) is charged pursuant to s 97(1) Crimes Act. Maximum penalty, 20 years imprisonment.

23. The fact that two men did what was done, means each are equally responsible for their roles, whatever their role was. Valuable property was taken. I accept it was an opportunistic crime and, at least initially, the offender did not expect someone to be in the passenger’s seat. But what makes a robbery serious is that it is an offence against people, not just property, for there was a person in that seat and the driver was there to watch what occurred as she was standing by the bowser.

24. The offender persisted in his crime once he knew someone was in the car. There was a violent physical interaction with the woman in the car. She later had an injury, but I do not take that into account at this point. There was a threat made by this offender and he bluntly refused the entreating of the owner to stop him doing what he did and took off in the car. The car was later recovered.

25. This was a serious example of its type. The objective features set out in the Henry guideline must be taken into account: Crimes (Sentencing Procedure) Act 1999 (NSW), s 42B; R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. That guideline is one important guide to the exercise of my sentencing discretion. There are matters here which exceed the Henry guideline.

Aggravated break and enter in company offence

26. Sequence 1 (H94302466) is charged pursuant to s 112(1) Crimes Act. Maximum penalty, 20 years imprisonment. Standard non-parole period 5 years imprisonment.

27. The break and enter was aggravated because it was in committed in company. A rural business was impacted upon by the theft. Considerable property was taken and property that was obviously important to a new business. People set up businesses. They make investments and the loss of property such as this can have a real and negative impact.

28. It is a crime against people, and it is a crime against their property. I am sure that the owners of this business had worked hard to get the equipment and this offence must have had an impact on them. Even if property is replaceable the replacement causes considerable inconvenience. Not all property is insured but where it is, it is a notorious fact, that as a consequence of thefts business’ face large insurance premiums, the cost of which are then either adsorbed or more generally passed on to everyone in the community.

29. Crimes such as this, make owners and workers feel they are unsafe. It makes them less likely to continue to provide their services. If crimes like this are not appropriately punished people lose confidence in public institutions, although this principle applies to all of the offences. They feel that police cannot protect them, they feel that the courts cannot protect them. They learn to fear others, they lose trust in others. When people are fearful, the entire community suffers.

30. For the reasons I have outlined, this too is a very serious example of its type. The impact on the community and the victims must also be considered. I note that the property was not recovered, and the vehicle was ultimately destroyed. The offender is not for sentence for destroying the property, but his actions led to the owners being permanently deprived of it.

Form 1

31. There are matters on the Forms 1. I will take them into account when I determine the appropriate penalty for the offence to which they relate. I apply the guideline judgment :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. I apply what fell from the Court of Criminal Appeal in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22] (Bathurst CJ). I do not in any sense impose the sentence for these matters. The matters on the Form 1 here however, do operate to increase the sentence that would otherwise be appropriate. I do so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [52]. The increase recognises the need for general deterrence and retribution for the crime for sentence.

32. Sometimes, as here, that increase must be more than notional: Attorney General's Application at [18]; Grube v R [2005] NSWCCA 140.

Other matters

33. The offender’s criminal record does him no credit. He cannot be extended the leniency often given to first offenders. He was on a Community Corrections Order at the time. He made a promise to the Court, and I assume himself, to be of good behaviour. He breached that promise.

Subjective case for the offender

34. There are, however, matters in his subjective background that require me to moderate the otherwise appropriate sentences. That material is sad. It reveals a history of trauma that should be given full and significant weight. The fact that he has committed offences in the past does not mean that the impact of that trauma and other matters in his background diminishes over time.

35. I have the benefit of a psycho-social report of Ms Lazos and a comprehensive, and professional report from Ms Edwidge, a psychologist. Gowans has read and had the reports explained to him. He adheres to what he told the report writers.

36. The offender wrote a letter to the Court. He has accepted suggestions that he go into full-time rehabilitation and that he spends time focussing on the future. He says that he has cut ties with people he was spending time with before he went into gaol.

37. Gowans is on special management area protection, a matter I take into account. He speaks of the regular “lockdowns” in his cell. The community has to understand what a “lockdown” means. Prisoners are kept in their cells sometimes for days. They are fed in their cells, which they have to share with others and where they have to go to the toilet.

38. He has a respected job in the gaol. He is obviously trusted by the authorities. He says in his letter:

“I am really sorry about what I have done. I am sober and thinking clearly and I feel ashamed of my offences. I know the women in the car would have been scared and I feel sad and sorry about that.”

39. He also expressed appropriate remorse for the robbery offence to the writers of the reports.

40. As Ms Verghese, solicitor for the Director, points out it is all very well for him to make promises while he is in custody. He has made such promises before repeatedly. As his sister told Ms Lazos, when “Mr Gowans is drug free, he is a great person. He has a clear mind and can work and live independently. However, when something bad happens in his life he cannot cope, and he … just does not care”.

41. Gowans has demonstrated he can be drug free. In custody he gains motivation and makes promises to get help and remain in recovery. He does not keep those promises.

42. There are, in the reports, matters that help me understand why that is so. Those matters point in different directions. If there are stressors in his life which he cannot cope with, he uses drugs and alcohol as a maladaptive coping mechanism. This means that if Gowans relapses into drug use he is more of a risk to the community. That risk may be exacerbated because of the impact of this sentence on him.

43. They also indicate a positive path for his future. He requires residential rehabilitation. He requires stable accommodation. He requires the opportunity to work, and he requires a culturally appropriate plan to help him move forwards as part of his community.

44. I have to be guarded; a past history is a good indication of future history. At the same time there are reasons here to give him an opportunity, particularly by the way I structure the sentence. That opportunity will be subject first to the requirement, that he cannot be released to parole unless issues of community safety are first addressed: Crimes (Administration of Sentences) Act 1999 (NSW), s 135. That decision will be made by the State Parole Authority. I am confident the decision will be dependent upon appropriate support being available to him on release.

45. I will not go through all the material before me in the two comprehensive reports. In summary; as I young man he had the support of both parents, who are both sadly deceased. His father had physical and mental health problems but devoted a considerable amount of time to his son. With that support, Gowans was able to become a child representative soccer player.

46. A number of things occurred when he was a young teenager that fall under the generic heading of ‘childhood trauma’. They occurred outside the home. He came under the influence of older boys who had no pro-social values, and he was introduced to drugs and aberrant behaviour while still very young.

47. He soon turned away from the example shown by other members of his family and moved to an area where there were young people taking drugs and engaged in anti-social behaviour. He eventually became part of that group. He took up the use and abuse of drugs when too young to make rational choices. By his twenties he was addicted to methylamphetamine. His relationships were poorly chosen. He spent time in gaol. He spent time homeless, couch surfing.

48. On release from gaol in 2021 he did get housing, but he did not abandon his associates. By then he had been effectively estranged from his family, although his sister is here today and offers support. That support is qualified. She will not tolerate his drug use; because she knows the person he becomes when he uses drugs. It would appear that whenever there is a setback in his life, rather than turn to others, rather than take support that might be offered from family and agencies, he reverts to drug use, and then crime, and then returns to gaol.

49. There are, in Ms Edwidge’s report, diagnosis of, or symptoms of, which she says are consistent with, Post-Traumatic Stress Disorder, Major Depressive Disorder and Substance Abuse Disorders. Those conclusions are well supported in the material before me and are not controversial. They mean Gowans is less a vehicle for general deterrence than many in the community.

50. The question of specific deterrence still looms large. Gowans needs to understand, and he should have understood before now, that he has to take all help offered to stop him reverting to drug use.

39. The various traumas that he has suffered as a child, which I will not go into at his request, mean in Ms Edwige’s view, that his capacity for “rational thinking and decision-making, can be overwhelmed” and his judgment impaired leading to reckless and risky behaviour; all of which is indicated in the material of what occurred on 18 March 2023. His moral culpability is not that of someone who did not have the traumas demonstrated in the material before me.

40. That background does not give him a licence to prey on others in the community. It means that he is more vulnerable to repetition of offending; a point the Crown makes. At the same time, it illustrates what has to be addressed if he is to use his time in custody and his time on parole to change, because if he does not, he could spend the rest of his life in gaol and become institutionalised.

41. Gaol itself causes trauma. The community should understand that the longer people are locked in gaol the worse that they can become. As Ms Edwige at page [9] points out:

“The experience of incarceration may have subtle, long-term effects on some prisoners … and the number so affected is likely to increase in harsher, more extreme or psychological taxing prison environments. Imprisonment imposes a rigid routine on an offender but removes the potential for individual decision-making in many aspects of daily life … In removing opportunities to exercise [these] skills, imprisonment can lead to institutionalisation, in which a prisoner becomes decreasingly able to live independently and may lose a sense of personal responsibility.”

54. She quotes from the Bugmy Book: “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project.

55. Sentencing Judges face a dilemma; community safety requires a person to be removed from the community. At the same time, by removing a person and keeping them in gaol can make them worse. This is particularly so for someone like Gowans who has underlying psychological, and trauma induced symptoms, as they have impaired judgment and are not rational decision makers.

56. The material before me shows that Gowans has demonstrated some insight. There is a plan, a culturally informed plan, and a more straight forward residential rehabilitation plan through an indigenous centre. He has conditional family support, he has motivations to keep that support and prove himself to his family, including his son.

57. Too long a period in gaol can cause him to lose motivation and to adjust to gaol and not plan and work for the future. At the same time, he has to understand that he cannot behave as he did and that further behaviour in that nature will inevitably lead to further and lengthier gaol sentences.

58. There is also a community expectation that these crimes, particularly the robbery and, to a lesser but still significant extent, the break and enter, and the taking of property from Robertson, require appropriate punishment. The fact that a person’s moral culpability is reduced does not mean they bear no moral responsibility for their crime. Mitigating factors can only go so far, they cannot lead to a sentence which is disproportionate to the offence for sentence.

Synthesis

59. There must be a just and appropriate sentence indicated for each matter. The aggregate sentence must reflect what was done, and the case made for the offender. It has to reflect the fact there were multiple victims. The severity of the combined sentence should not operate to destroy prospects for rehabilitation and reform; so far as is possible.

60. A finding of special circumstances will enable him the opportunity to engage in culturally appropriate rehabilitation programs. He has to be provided with some ownership of his own sentencing outcome. He has to become, not just a problem, but part of the solution. He has to actively participate in his rehabilitation.

Orders

61. Taking all those matters into account; I have to reduce what occurred in each of those matters to bland figures – time in custody. I must then formulate the appropriate overall sentence.

62. In relation to each matter there are convictions. Each matter takes into account a reduction of 25% for the utilitarian value of the guilty plea. His plea had other values and can be taken into account when I come to assess that there is some, at least, insight and an inkling of remorse.

63. I indicate the following sentences:

• In relation to the larceny: A sentence of 9 months imprisonment.

• In relation to the take and drive the motorcycle: A sentence of 9 months imprisonment.

• In relation to the robbery in company: Taking into account the matter on the Form 1, a sentence of 3 years and 9 months imprisonment.

• In relation to the aggravated break and enter and the matters on the Form 1: 2 years and 4 months imprisonment.

64. The aggregate sentence will be 5 years and 2 months. It will commence on 22 March 2023. There will be a non-parole period of 3 years reflecting a finding of special circumstances. That sentence will commence on 22 March 2023. The offender will be eligible for consideration for release to parole on 21 March 2026. There will be a parole period of 2 years and 2 months which will commence on 22 March 2026 and expire on 21 May 2028.

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Decision last updated: 16 October 2024