R v Jackson; R v Cox

[2021] NSWDC 497

District Court

New South Wales

Medium Neutral Citation:

R v Jackson; R v Cox [2021] NSWDC 497

Hearing dates:

01 October 2021

Date of orders:

01 October 2021

Decision date:

01 October 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Jackson: A term of imprisonment of two years, with a non-parole period of 12 months: at [53].

Cox: An aggregate sentence of two years and three months with a non-parole period of 13 months: at [53].

Catchwords:

CRIME — Violent offences — Aggravated robbery — In company

CRIME — Property offences — Receiving

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Use of violence

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Form 1 offences — Maximum penalty — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Bugmy v The Queen [2013] HCA 37

R v Henry (1999) 46 NSWLR 346

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Reegan Jackson (Offender)

Jacob Cox (Offender)

Representation:

Ms Collins (Solicitor for the Office of the Director of Public Prosecutions)

Ms Suters (Counsel for Mr Jackson)

Ms Rostron (Solicitor for Mr Cox)

File Number(s):

2020/264793; 2020/286571; 2020/335027

Judgment

1. The two offenders Reegan Jackson, born in January 1996, and Jacob Cox, born in September 2001, appear for sentence today, both of having pleaded guilty to one count (sequence 1) of robbery in company on 5 September 2020, contrary to s 97(1) of the Crimes Act 1900.The offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period.

2. The pleas of guilty were entered in circumstances justifying a 25% discount on a term of imprisonment.

3. The purposes of sentencing, outlined in s 3A of the Crimes (Sentencing Procedure) Act 1999, must be taken into account. It is acknowledged by the parties that a period of full-time custody is required in each case.

4. Mr Jackson also asks for an offence of dishonestly obtain property by deception (sequence 3) to be taken into account on a Form 1 The offence carries a maximum penalty of 10 years imprisonment.

5. Mr Cox is also to be sentenced for a second principal count of receiving, an offence contrary to s 188 of the Crimes Act1900 (sequence 7). This offence carries a maximum penalty of 12 years imprisonment. To be taken into account on that second principal count are three matters on a Form 1, namely,

1. Drive conveyance taken without consent of owner (sequence 3)

2. Dishonestly obtain property by deception (sequence 4)

3. Dishonestly obtain property by deception (sequence 5)

6. There is also a s 166 related offence to be dealt with of drive while unlicensed (sequence 6), which will be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

7. Both Mr Cox and Mr Jackson are young Aboriginal men with very lengthy criminal records.

8. In the case of Mr Jackson, he has been in custody since his arrest on 5 September 2020. He was on an ICO at the time, which has since been revoked, and he is going to be in custody until 30 January 2022 until the expiration of that ICO. It is common ground that in the exercise of my discretion an appropriate starting date for his term of imprisonment should be 12 May 2021.

9. Mr Cox has been in custody since his arrest on 5 October 2020. He has served four short periods of custody during that period, the last expiring on15 April 2021 this year. He has been in custody solely on these matters since that date. It is also common ground that in the exercise of my discretion the sentence of imprisonment should commence on 5 January 2021.

10. The agreed facts in relation to the first offence are common. Just after lunch on 5 September a man drove his BMW car to Merewether to have his McDonald's lunch. He got out of his car and put his car keys, his wallet containing $400 cash and personal cards, and his iPhone on the bench next to him. This was recorded on CCTV.

11. At about 3 o’clock Cox, Jackson and another man Ebsworth, who is to be sentenced next week, drove up in a stolen car. They approached the victim on the bench and walked away. Ebsworth then approached the victim again and punched him a number of times to the head, causing him to fall to the ground. Ebsworth continued to assault him while he was on the ground.

12. One of them grabbed the keys, the wallet and iPhone from the bench and then they ran to the car and they got in. Ebsworth got in the driver’s seat and drove up the grass edge of the road at the victim, who jumped out of the way. The three offenders then drove away down Lloyd Street.

13. Police attended and an ambulance attended to the victim, who had significant bruising on his left upper arm and swelling to the left side of his jaw.

14. Police seized the car at some unknown time, that is the stolen car. An examination of that car showed Ebsworth’s fingerprints and the DNA of Jackson and Cox.

15. Sometime later Ebsworth and Cox were seen going into The Exchange Hotel at Hamilton, followed by Jackson shortly after. At a bottle shop at Hamilton South they were seen purchasing alcohol using the victim’s credit card, which is the subject of the Form 1 matters.

16. The BMW was recovered at Maryland West and the DNA of Ebsworth and Jackson was found on it.

17. On 12 September, Police went to a house where they heard a noise, Jackson ran out the back door. He was chased and he stumbled. He was arrested and declined to be interviewed.

18. The agreed facts for Mr Cox in relation to the other matters show that on 3 October 2020 a lady went to sleep in a house at Bar Beach and left her car there. The next morning the car was gone, and her house had been ransacked. Her credit cards, speakers and the keys to the car were gone.

19. Cox and another accused, Whelan, came into possession of the credit cards and the car. The car is seen arriving at a BP service station at Rutherford where $58.10 was spent on the card. They are seen driving into another service station at Rutherford and there was $50, $24 and $46 spent on the cards.

20. There was a police pursuit went on over some time on the evening of 4 October. The car that they were driving, a stolen white BMW, which was stolen by Ebsworth from Castle Hill. which was followed and travelling in convoy with the Outlander.

21. The number plate of the Outlander had been altered by marker pen. The pursuit went on until the early hours of the next morning and eventually it stopped on the motorway and Whelan and Cox were arrested.

22. Cox was interviewed on 25 November but he denied any involvement in the incidents.

23. Mr Jackson’s criminal record extends over 23 pages including periods of imprisonment of three months from September last year for shoplifting, three months from March 2019 for larceny, 20 months with a non-parole period of 14 months from September 2017 for affray and offensive behaviour, the balance of parole served back in 2016. A breach of an ICO leading to a fixed sentence of one year and almost one month in 2017, and earlier sentences of two months, four months and 18 months for dangerous driving, police pursuits, goods in custody.

24. Mr Cox’s record extends over 39 pages. His first period in adult custody, was a sentence of 12 months commencing in October 2019 for destroy or damage property, assault officers, stealing, stalking and harassing. Then there were the four short sentences to which I have referred earlier of three months, four months, three months and four months served while he has been in custody since 4 October 2020.

25. Against that sorry objective case there is a very powerful subjective case involving, unfortunately, an all too familiar history of young Aboriginal men with a severely deprived and disadvantaged background which must be taken into account in the sentencing process.

26. For Mr Jackson, there is a history set out in a lengthy report of a psychiatrist in which he refers to the circumstances of the offending as he mentioned briefly in evidence today. I accept the history set out in the report and affirmed by him in evidence today.

27. He says that two weeks before the offence he had been to a cousin’s birthday party. His ex-partner had got into an argument with him and attempted to stab him with a knife. He managed to take the knife from her and placate her. A few days later his ex-partner had checked some of his text messages on a phone and accused him of being unfaithful, she got angry with him and threatened to send him back to gaol and she left the house. He tried to get her to come back home. So he decided to leave home and arranged for a friend to pick him up.

28. In the two weeks prior to the offence, he had been drinking two bottles of spirits daily and smoking a gram of crystal methamphetamine daily and also smoking heroin. He said the drug use made him quite paranoid and he decided to travel out of the Sydney region. He recalled walking for hours from one hotel to another, trying to find somewhere to stay.

29. Reflecting on his offending behaviour which had occurred around Father’s day, because he had been disappointed with his plan for spending time with his children had not come to fruition, he thought of suicide.

30. He said he hated himself for what he had done. “The bloke is an innocent man. I feel sorry for him.”

31. He first consumed alcohol at a very young age and started drinking regularly at age 10 and then progressed to cannabis, MDMA, crystal methamphetamine and has been using buprenorphine while in custody. He had done a rehabilitation programme in 2017 and engaged in the Marrin Weejali rehabilitation programme prior to his arrest, and I have a favourable letter from Mr Brian Hunter of that service who says he is confident that Reegan is capable of turning his life away from chains of addiction. He had been drug free, talking openly about his childhood trauma and triggers.

32. Dr Dilan diagnosed post-traumatic stress disorder, alcohol and cannabis and stimulant use disorders. He noted that he appears to function better in a correctional environment and he struggles in the community. Placement in a correctional centre appears to have had a stabilising effect on his mental state.

33. Mr Jackson wrote a lengthy letter to the Court expressing his sincere apologies to the Court and the victim, expressions which I accept. He says he is going to complete the intensive drug and alcohol treatment programme at Windsor which runs for nine months and incorporates frequent urinalysis.

34. He says his kids often ask where he is because prison visits have been suspended due to the COVID pandemic and he has done everything he can to rehabilitate himself while in custody and he now realises there is no coming back.

35. He has a partner Stevie Lee Freeman who also writes in support of him. She points to the care that he had been providing to his grandmother who raised him and has become a double amputee. His grandfather also recently passed away while he was in custody.

36. His mother Sheree Jackson also writes in support of him, pointing out that his grandparents had also struggled with drug addiction since she was a child and she was exposed to the effects of drug addiction. She thought what she did was best for him at the time because his grandparents were providing care for Reegan and although their lives were fractured from drugs and domestic violence, they are still there to support each other and love each other. She noticed his lack of mental development and the effects of drugs and violence and an absent father figure during his teen years. She says once he was in gaol he never got the care, love, support and mental health treatment he has really needed.

37. Mr Cox has provided an affidavit, which was unchallenged, in which he sets out his unfortunate background. His father was a big drinker and was violent towards his mother. He started to smoke cannabis after his grandfather died when he was 13. He did not get to complete uninterrupted schooling. He went to Waratah High School from year 7 to 8 but he was getting into a lot of trouble. He ultimately finished year 10 while he was in custody at Frank Baxter correctional centre. He was often suspended and his behaviour was bad.

38. He was sexually abused in a correctional centre in 2016 when he was about 14 years of age, and that had a big impact upon him. I have a letter from Shine Lawyers who confirm that a claim in relation to sexual abuse and the consequent trauma is being pursued by that firm.

39. He started smoking pot when he was 13 and moved on to ice when he was 14 and injecting ice when he was 17. He was taking drugs, hanging out with older mates and getting into trouble. He attempted suicide when he was 15 about 12 months after the abuse. He currently takes Mirtazapine and Olanzapine and he has nightmares about the abuse and panic attacks. He says in the six months leading up to the offences he was using a lot of drugs, more than usual, and he was finding it hard to cope.

40. He says he is very sorry for what he did to the victim, a man who was just having lunch by himself and minding his own business. He accurately describes what they did as being “low”.

41. He says his time in custody is different now, having been in custody on and off since he was 14 and spending most of his teenage years in custody. He likes the structure and routine but in an adult facility it is different. It is intimidating. He has been working in ground maintenance. He has put his name down for the EQUIPS course and he wants to do the IDAAT programme. He has only had one visit from his mother due to COVID restrictions. He wants to deal with his PTSD and connect with his Aboriginal culture and past and go to residential rehabilitation on his release and live with his mum and work with his brother Jerome, who writes in support of him and points out that his support will be conditional on Jacob remaining drug free and participating in counselling and support.

42. His history is set out in greater detail in a report of a psychologist Vanessa Edwige and she diagnoses, not surprisingly, post-traumatic stress disorder and stimulant use disorder.

43. There is little in contest between the very helpful and comprehensive written submissions prepared by Ms Rostron for Mr Cox and by Ms Suters for Mr Jackson and by the Crown Prosecutor.

44. The Form 1 offences will of course be taken into account in the way suggested by the guideline judgment on those matters (Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).

45. For Mr Jackson, he was on conditional liberty at the time of the offences which is conceded to be an aggravating factor. The robbery in company in both cases falls broadly within the guideline judgment in R v Henry (1999) 46 NSWLR 346 other than the absence of a weapon. The Crown notes the young offender with a significant record of criminal convictions, violence, some degree of planning, the victim was alone but not vulnerable in the sense considered in the guideline judgment, the property taken was significant and the plea of guilty is early.

46. The Crown has helpfully attached to both sets of submissions a schedule summarising the time that each offender has spent in custody.

47. Both submissions for the offenders appropriately focus on Bugmy (Bugmy v The Queen [2013] HCA 37) considerations, given the significant disadvantage and the background of each offender.

48. Ms Suters, counsel for Mr Jackson, submits there should be some parity between both offenders in terms of the sentence to be imposed for the robbery in company on 5 September 2020. In both cases, a finding of special circumstances should be made due to the accumulation of sentences on existing terms of custody and the clear need for a significant period of intensive supervision on release.

49. As Ms Rostron, solicitor for Mr Cox, puts, and this applies to both offenders, there is a complex interplay between the disadvantaged upbringing of the offenders, any trauma suffered in the case of Mr Cox, psychological conditions and stimulant disorder leading to a reduction in moral culpability.

50. I accept that general deterrence is of lesser significance given the subjective cases to which I have referred, and that specific deterrence may be moderated in relation to both offenders due to the risk of institutionalisation and the youth of the offenders, in particular Mr Cox who has spent some 49% of his life in a combination of juvenile and adult custody.

51. I accept that both offenders have prospects of rehabilitation which are interwoven with the need for intensive supervision to address the disadvantage arising from their backgrounds. Questions of totality require the Court in the exercise of its discretion and in the process of instinctive synthesis to impose an overall sentence appropriate to the criminality for the two sentences and the Form 1 matters to be taken into account.

52. I also take into account in each case the impact of the COVID-19 pandemic on those in custody, including the suspension of in-person visits, the reduced access to educational courses and the generally more onerous conditions in custody during the pandemic.

53. For those reasons, the orders that I make are as follows:

Reegan Jackson

1. He is convicted.

2. Taking into account a 25% discount for the plea of guilty and the Form 1 matter, I impose a sentence of two years commencing 12 May 2021.

3. I impose a non-parole period of 12 months expiring 11 May 2022.

4. I find special circumstances.

Jacob Cox

1. He is convicted of each offence.

2. Taking into account a 25% discount for the plea of guilty, the indicative sentences are:

1. Sequence 1 - two years; and

2. Sequence 7, taking into account the Form 1 matters - eight months.

3. I impose an aggregate sentence of two years and three months commencing 5 January 2021.

4. I impose a non-parole period of 13 months expiring 4 February 2022.

5. I find special circumstances.

6. In relation to sequence 6, the offender is convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 and I impose no further penalty.

Note – These extempore remarks were revised without access to the court file.

**********

Decision last updated: 05 July 2022