R v Guinness (a pseudonym)

[2021] NSWDC 57

District Court

New South Wales

Medium Neutral Citation:

R v Guinness (a pseudonym) [2021] NSWDC 57

Hearing dates:

27 January 2021

Decision date:

27 January 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 4 years 1 month. Non parole period of 2 years 2 months.

Catchwords:

CRIME – Sentencing - aggravated detain with intent to obtain an advantage

SENTENCING — Relevant factors on sentence — objectively serious offence committed in custody - offender responsible for use of knife and wounding victim - young offender - early guilty plea - victim harm- parity - history of significant disadvantage – no empathy for victim- no capacity to feel empathy - need for intensive intervention in custody and in the community - some prospects shown by response to targeted intervention - application of principle for sentencing young immature offenders - special circumstances require sentence be served in juvenile detention - need for long term supervision in the community

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Henry v R 1999) 46 NSWLR 346; (1999) 106 A Crim R 149

R v Owen [2020] NSWDC 791

Texts Cited:

Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

Category:

Sentence

Parties:

John Guinness (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms K Stares (for the offender)

Solicitors:
Mr M Rollestone (for the Director of Public Prosecutions)

File Number(s):

2019/00314532

Publication restriction:

The Offender will be referred to by a pseudonym: s.15A Children (Criminal Proceedings) Act 1987

SENTENCE – EX TEMPORE REVISED

1. John Guinness was born in May 2002. He is still young, he is still immature. The evidence before me establishes that effectively since birth, Guinness has had none of the advantages that most children in our community expect and deserve. As a consequence of the matter now for sentence Guinness has been in custody in Juvenile Detention centres since 9 October 2019.

2. On 8 October 2019 he participated actively in the detaining of his victim, at a residence in Lake Illawarra. On arrest he was charged with the offence of aggravated detain with intent to obtain an advantage s 86(3) Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment. That maximum is one of many guides to the exercise of my sentencing discretion. As he was at the relevant time a juvenile no standard non‑parole period attaches to that offence.

3. Others were arrested and charged. Two, Ms Lister and Mr Green, are still before the courts for sentence. On 20 November 2020 I sentenced another young person, given the pseudonym Owen: R v Owen [2020] NSWDC 791. Owen entered an early guilty plea to the same offence. He was older than Guinness, although still a juvenile. He had only one prior court appearance, before the Children’s Court. Taking into account his early plea I sentenced him to a term of three years and nine months with a non‑parole period of two years. I made special circumstances findings, pursuant to both the Crimes (Sentencing Procedure) Act 1999 requiring more than the standard period on parole, and also the Children (Criminal Proceedings) Act 1987, directing that he serve his sentence in a juvenile detention facility.

4. There are agreed facts about the matter that brings Guinness to Court. In brief summary, the victim of this matter was staying with Ms Lister. She had allowed him to spend time in her spare room. The situation in the household was dire. Ms Lister had no money, food was running low. The victim was told that he needed to make a financial contribution as soon as possible. He made an effort to get some money from the bank, but it was closed the day he went to it and he did not have access to ATM facilities. Having made the attempt he promised that he would assist with food and rent as soon as possible. He said he would do this first thing in the morning.

5. At about 12.30am on the 8^th October 2019 he and Ms Lister were at the home. There was a knock at the door and Guinness came in. Soon after the other young person, Owen, came in. Owen locked the door behind him. The victim had known both Guinness and Owen for a short period of time. Another man, an adult, Mr Green, then entered the room through a rear door. He locked that door. At this time Ms Lister was in her bedroom.

6. There were now three people in the room with the victim. Owen and Green then began to assault him. Green kneed him to the left side of the head and Owen threw many punches and kicks at him. Despite his attempts to protect himself their victim was repeatedly struck to the head.

7. While this was happening Guinness took out a mobile phone and filmed the assault. I have seen that footage. It shows how ferocious the violence inflicted, predominantly to the head of the victim, was.

8. Green threatened the victim. He was told he could not leave until he gave Lister $150 and some money to the men in the room. The victim knew he was being detained. His plan was to go to the bank in the morning and alert security.

9. At some stage the three attackers left the room. When they returned Guinness was carrying a knife that he had taken from the victim’s bag. He jabbed that knife towards the victim. Then he put the knife against the victim’s cheek and cut it. That cut subsequently required suturing and has left a notable scar.

10. Over the next few hours the victim was subject to verbal abuse from Guinness, Owen and Green. At one stage all of those people present used methylamphetamine. At one stage the victim was made to get on all fours and call himself a dog. The threats continued. He was told numerous times that he could not leave.

11. Guinness left at some stage, but it was not until 3.30pm that the victim was able to change, leave and make his way to a friend’s home and then seek assistance. He was taken to hospital and received treatment.

12. Police soon attended and their inquiries led to Guinness’s arrest the following day.

13. In his Victim Impact Statement, which was provided to the Court, and read to the court by me, the victim spoke of his injuries, and importantly of his continuing fears and loss of trust. His facial scarring still has, and will continue to have, a profound impact on him. He has tried to get on with his life but he says, and I accept, the psychological and physical scars will remain with him for some time.

14. I note that each of the offenders, Guinness included, has pleaded guilty. I hope that those pleas will facilitate the process of recovery for the victim.

15. Although he had only been staying there a short time, the victim was detained in his own home. His freedom to leave was taken from him. He was subject to what could only be described as a terrifying incident, which took many hours. He was continually assaulted both physically and mentally. He was injured. He was not to know what his fate was to be. A weapon was used against him. The assault with the knife has left him with scarring. The initial assault was recorded. He was not to know where that recording would end up.

16. The purpose of the detention and the assaults appeared to be to get him to hand over money; money which he had already agreed to provide as soon as he could. The assailants failed to appreciate the simple fact that because the bank had closed he was not in a position, at that time and place, to get any money or give it to Ms Lister or them.

17. As I said when sentencing Owen, there is a vigilante aspect to this offence. Courts must do what they can to signal that such actions; attempts to obtain repayment of a debt, attempts to coerce others, the use of violence against a person in their home and detaining them for such purposes, must be condemned. This offender took an active role both in the detention and the assault.

18. It is accepted by Guinness that so serious was his offence and so important his role that despite his youth, his immaturity and background only a custodial sentence of some length would meet the purposes of sentencing. The offender’s youth and background do however allow for some moderation of the sentence both in length and structure.

19. The material before me consists of evidence, both written and oral, from Mr Eric Brown who is Aboriginal Practice Officer for Youth Justice, Northern Directorate. I have an updated Juvenile Justice Report, dated 21 January 2021, and an affidavit as to his subjective circumstances and background from the offender. The affidavit was accepted by the prosecution and the young person was not required for cross-examination.

20. Members of Guinness’s family are in Court today. I have read and re‑read the material set out in the affidavit. I will not go into all of the details set out in it, suffice to say that Guinness’s background indicates a sad history involving; early violence against himself and his mother and within the family household, early exposure to illicit drugs and the abuse of alcohol and early take up by him of alcohol and illicit drugs, including methylamphetamine. His drug use began well before he was a teenager, and well before he was able to exercise any rational choice as to the use of such drugs. He said, para 21:

“I know I am still angry about everything that has happened, and sometimes I find it really hard to stop being angry. I know I need to deal with my anger.”

21. He accepts he was aggressive to his family, he thinks he lashed out because he was angry and took it out on people close to him. He said, “I still love my family no matter what happens”.

22. He has plans for the future. He told me of his time in juvenile detention and how he is attempting to learn from it. He acknowledges that he will need to talk to people about what has happened.

23. There is no evidence before me that at present he has any remorse or even understanding, let alone empathy, for his victim. Given the material before me this is not surprising because it is clear from all the evidence that Guinness is still learning how to have respect for himself; let alone others.

24. The Juvenile Justice report is comprehensive. It indicates that his custodial behaviour, attitudes and actions have varied, predominantly depending on whom he is associating with and the custodial unit he is housed in. He has spent time on segregation for the safety of other detainees, particularly at the end of last year and the beginning of this year, as the sentencing proceedings were coming up.

25. The report notes his family background and his juvenile criminal history and the early intervention of Family and Community Services. He went into their care. The Report notes a long history of trauma and exposure to violence. It notes that he has benefited from the assistance being given and that Guinness is learning to deal with the significant risk factors such as; peer associations and a history long term of antisocial and offending behaviour and daily substance use.

26. Guinness is not presently thought to have a mental illness, but his long history of drug use and impulsive and thoughtless behaviour without regard to others, has characterised his life. He still struggles with his emotions and he still has problems engaging with support services. He is receiving, and will need, assistance helping him to re‑evaluate his life in a positive way. One aspect of that assistance was touched on by Mr Eric Brown in his evidence today and his letter to me.

27. Although Mr Brown has only been working with Guinness since January 2020, he notes that when Guinness has been participating in cultural healing groups run by him he has been respectful and caring, and has shown spirit which is not reflected in the other material before me. Mr Brown’s letter also notes the significant trauma and adversity Guinness has suffered throughout his childhood and adolescence. Mr Brown says Guinness has shown maturity in discussing some topics; maturity that he has not displayed to others who have spoken to him while in juvenile detention.

28. Mr Brown concluded that with the right cultural supports and programs Guinness has the capacity to make positive decisions and live in a prosocial way.

29. Obviously any such prognosis has to be guarded. Obviously much will depend on any commitment made by Guinness during the remainder of his time in custody, and particularly after he has been released.

30. Because of the maximum penalty Guinness must be sentenced at law. The evidence before me, and evidence in the Owen matter, indicates that if Guinness was sentenced to an adult institution there is a real risk that the negative peer associations that he would inevitably have in adult custody, and the influence of others in custody, could put to naught the efforts made by Juvenile Justice and Mr Brown in helping this young man learn some prosocial ways of living his life and deal with his own long term trauma.

31. The absence of such programs in adult gaols and their current availability in juvenile detention requires a finding of special circumstance and an order that Guinness serve his sentence in juvenile detention. That order is conditional of course, on his behaviour in custody. Were he to be committing an offence that took him to an adult gaol he would never return to juvenile detention. It is the experience of the Court and the experience of those who appear now before me, and the evidence I received when I sentenced Owen, that compels this order. Every effort must be made to provide this young man with help that he did not to receive in the community despite his being placed in care. This must be done, not just for his own benefit but in the interests of the community. If Guinness is released the same angry young man that went into custody his chance of reoffending in a serious way is great. And, if that occurs, not only will someone be hurt but he risks spending the rest of his life in custody; a pattern tragically shown in many matters that come before this Court, and one that every effort should be made to avoid.

32. Those findings are not made because Guinness is an Aboriginal Australian; they are made because of his background. They are made because empirical evidence indicates that sentencing those who are still young and immature requires a nuanced and sympathetic approach, an approach which shows institutional respect for the problems faced by young people with such a background. It also requires a degree of understanding and sympathy; understanding and sympathy that Guinness did not show his victim.

33. This sentencing exercise, even though at law, is still governed by common law principles relating to the sentencing of children. They are well recognised. Some are set out in s 6 of the Children’s (Criminal Proceedings) Act. This Court and the Court of Criminal Appeal recognises and generally emphasises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. It is well recognised that emotional maturity and impulse control develop progressively during childhood and continue when a person is a young adult. It has also been recognised by the High Court of Australia that those with a background such as this young man’s, which has as I find in this case, compromised their capacity to feel empathy for themselves and others can reduces their moral culpability: Bugmy v The Queen (2013) 249 CLR 571

34. It is clear that this offence was committed while the offender was subject to the influences of illicit drugs such as methylamphetamine. The law is equally clear - drug use does not mitigate offending behaviour. Drug use provides no excuse. But the fact of Guinness’s drug use and its consequences, how it came about and what needs to be done about it, remain factors relevant to the sentencing exercise: Henry v R 1999) 46 NSWLR 346; (1999) 106 A Crim R 149.

35. The Victorian Sentencing Advisory Council has recognised the dangers in harsh dealing with young people such as Guinness. Their study, “Does Imprisonment Deter a Review of the Evidence” from 2010, indicates that heavy sentences and harsh punishment rarely deter young offenders. To the contrary and paradoxically, the risk of commission of further offences was enhanced because gaol, and in particular included juvenile detention, had a crime producing effect. Detention, by providing a criminal learning environment by labelling and stigmatising offenders was found to be an ineffective way of addressing the underlying cause of their crime. Young offenders were more likely to make negative associations in custody and continue those associations out of custody, as opposed to those who on release had an opportunity for long term accommodation, job security and the provision of services such as drug and alcohol: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

36. All that said, a judge has to go back to what the offender did. A judge has to compare, and if necessary contrast, the offending behaviour with that of co‑offenders. Like must be compared with like. Different personal or criminal histories can justify differences in penalty, as can an assessment of what was actually done by the offender. This principle, known as parity, is a classic example of the need so far as possible to ensure equal justice, and in like cases that principle can also encompass the structure of a sentence and its non‑parole period.

37. Both Guinness and Owen were active participants in this crime. Guinness did not join in the initial assault, but he filmed it, making him just as culpable. He was the one who wielded the knife. The injuries resulting from the knife attack had the greatest impact on the victim. Although he was younger than Owen, he had a much more extensive involvement with courts and criminal offending, reflecting an even more deprived background and history of disadvantage. Guinness has made significantly less progress than that demonstrated by Owen while in custody. But it must be acknowledged he started from a much lower base.

38. I have had the advantage of comprehensive oral and written submissions from a number of solicitors from the Director of Public Prosecutions Office. Ms Stares, for Guinness, provided comprehensive oral and written submissions. So far as matters of principal are concerned there is no significant disagreement between the parties.

39. Ms Stares emphasised in her oral and written submissions the background of the offender and the evidence that establishes he had been, despite his youth, desensitised to violence. She acknowledged that there was a long road ahead for him. If he wants to change he will have to move on from everything that had been occurring in his life to date. She said, and I accept, Guinness requires considerable intervention, which must be delivered both in custody and in the community.

40. I will so far as practical take all those matters into account. I must, however, return to what was done and the harm inflicted upon the victim.

41. While I recognise the need for a sentence with rehabilitative aspects as that may, and hopefully will, contribute to the protection of the community by the rehabilitation of this offender, I acknowledge that that will be a difficult task. Generally a person is released to parole so that they can resume a normal life in the community. Guinness has never lived a normal life in the community. He will need to learn how to do so. But I also have to recognise, and by the severity of the sentence, attempt to recognise the harm done and vindicate the dignity of the victim of violence in this matter.

42. Had it not been for the early plea of guilty a sentence of five years and six months would have been imposed. I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that plea of guilty. I make a finding of special circumstances, Crime (Sentencing Procedure) Act; I make finding of special circumstances pursuant to s 19 of the Children’s Criminal Procedure Act. The sentence is to be served in juvenile detention up until the offender turns 21.

21. The term of the sentence is four years and one month imprisonment. The formal orders are; you are convicted; there will be a non-parole period of two years and two months which will commence on 9 October 2019. He will be eligible for consideration for release to parole on 8 December 2021. The balance of the term of one year and 11 months will commence the following day and expire on 8 November 2023.

22. Mr Guinness, your earliest date for possible release is 8 December this year. You will not be released if you are not ready for release, do you understand that?

23. CHILD: Yep.

24. HIS HONOUR: If you do not act in your own interests you may not get parole. If you turn 21 while you are on parole and offend again or breach parole, you will end up in an adult gaol. If you offend against the law while in custody you could end up in an adult gaol. If you think that that is the best course for you, think again. If you want to spend the rest of your life in custody, and you may say “he’s just an old white bloke, what would I know?” But I started doing Ms Stares’ job probably before your mother was born, and I have seen people who have turned their lives around and done really good things. I have also had the misfortunate of seeing people who end up spending the rest of their lives in gaol. People I knew when they were young then are old men now and they are still in gaol. No one wants to see you go down that path, for two reasons, one is it is no life for anyone to lead, and the second is if you were going to lead a life like that you will have hurt someone else. You have already hurt someone very badly, and Mr Holly will carry those scars for the rest of his life. You will serve your term of imprisonment because of what you did. You have been given an opportunity now to turn your life around. Whether you take that opportunity or not is now a matter for you I am afraid. But you have got assistance, use it.

25. AUDIO VISUAL LINK CONCLUDED AT 2.44PM

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Decision last updated: 09 March 2021