R v Kenneth Neville DICKSON

[2007] NSWDC 186

CITATION:	R v Kenneth Neville DICKSON [2007] NSWDC 186
HEARING DATE(S):	31st August 2007
JUDGMENT DATE:	6 September 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
CATCHWORDS:	Criminal Law - Sentence - Detaining for advantage - Assault - Malicious wounding - Aggravated sexual assault - Use offensive weapon - Larceny
LEGISLATION CITED:	Criminal Appeal Act Crimes Act (Cth)
PARTIES:	Crown Kenneth Neville Dickson
FILE NUMBER(S):	06/21/1089; 06/21/1141
COUNSEL:	R. Cooley (Offender)
SOLICITORS:	NSW DPP Bell Lawyers

SENTENCE

1 HIS HONOUR: Sometimes judges come across crimes of such heinousness that they are accurately described as chilling. Some of the crimes for which this offender is to be sentenced easily fall into that category. They involve the systematic abuse and even torture of a young man by this offender and other callous individuals.

2 I will describe those offences later in these remarks but before I do, it is important to note that the offender stands to be sentenced in relation to a number of completely separate episodes of criminality.

3 On 20 July 2005 the offender committed the offence of receiving in circumstances where his associates robbed a young man whilst he was at the Mt Druitt Railway Station. The offender saw this occur and afterwards received the victim’s wallet and mobile telephone. This offence appears on a Form 1 to be taken into account when sentencing the offender for one of a group of offences he later committed on 13 September 2005.

4 However in between the offence of 20 July 2005 and the offences of 13 September 2005 the offender committed a number of atrocious crimes on a young man by the name of DS. As I said when sentencing one of the offender’s co-offenders “the relevant events all occurred in the one episode of criminality. It was a period of disgraceful criminality. It involved the abuse of a young man for nothing more than the malicious, gratuitous and cruel enjoyment of a number of people. The young man was abused and treated as inhuman with no thought being given to his welfare by those involved.”

5 As I describe what happened that evening it will become clear why I said what I said.

6 On the evening of 2 August 2005 DS, then aged sixteen, met up with a number of young people including this offender, who was the oldest of the group. Things appear to have begun amicably and DS was invited to go with the group of young people in order to drink some alcohol. They bought some beer and went back to a home unit in Mt Druitt. After a while there, without any explanation at all, this offender turned what was an amicable occasion into something quite different.

7 DS was sitting on a kitchen chair in the lounge room area. Without any warning at all the offender became aggressive, got up, approached the complainant, and punched him to the face with a closed fist. The complainant fell to the floor. He got up but was pushed down again. The offender continued to physically assault the complainant by kicking and punching into him. These events form the basis of Count 1 on the first indictment - an offence of malicious wounding.

8 Not surprisingly this turn of events upset the complainant. A youth whom I will call LK, then aged fourteen, joined in the assault, punching and kicking the complainant while he was on the ground - an offence of malicious wounding whilst in company.

9 It is clear that the complainant suffered serious injuries. Tendered to me were a series of photographs of the complainant revealing lacerations to his face which required stitches, a cut to his eyebrow which required medical glue, two black eyes, a swollen nose, a swollen face and many other smaller lacerations.

10 A little while later the complainant sat back on the chair. He was told to keep his mouth shut, but far from things calming down, they escalated. The offender said to the complainant “I am going to kill you” and LK told him to move to the lounge chair. The complainant asked to leave but the offender, and others, would not allow this to happen. This is the beginning of a period of detention, that period forming the basis of Count 3 on the indictment, a very serious offence of detaining DS without his consent with intent to gain an advantage, namely sexual gratification and immediately before detaining him causing him actual bodily harm.

11 An older woman, Ms Shirley Dyer, who was present in the home unit also asked that the complainant be allowed to leave but the offender was one of those who refused to allow that to happen.

12 LK then went and got a knife and fork from the kitchen. He began to stab the complainant to various parts of his body. The offender then decided to join in as well but he was armed with a pair of scissors. He stabbed the complainant to his head, the leg and his hand. He also, to add insult to injury, spat on the complainant who, in an effort to defend himself, put his hands up. As a result he was stabbed in the palm and webbing of his hands by the offender. This forms the basis of Count 2 on the indictment namely an offence of maliciously wounding DS.

13 Physical trauma was not the only injury suffered by the complainant that evening, because at this time the offender and LK said again that they were going to kill the complainant. Not surprisingly the statement of facts records that at this stage “the complainant became paralysed with fear, too scared to move”.

14 The complainant then began to beg to be set free. Rather than feeling any compassion towards this terrified and injured young man, the offender said “Suck my penis and then we will let you go”. DS was then made to kiss the exposed penis of the offender, - this forming the basis of Count 4 on the indictment, an offence of inciting DS to commit an act of indecency at the time DS being sixteen years of age. He was also forced to perform acts of indecency on Gavin and Jessica McGaw, two offenders whom I earlier sentenced. Those offences appear on the Form 1.

15 Could matters get any worse? - Unfortunately they could and they did. The complainant was made to take down his pants and underpants and bend over a two-seater lounge. LK got a wooden rolling pin and some cream, he squirted the cream into the hands of the complainant telling him to rub it between the cheeks of his bottom. The complainant did what he was told, LK then hit the complainant about three times to the head with the rolling pin before forcing it into the complainant’s anus. Indeed he used the sole of his shoed foot to force the rolling pin further into the complainant’s anus. This caused the complainant great pain. He was screaming out and begging LK to stop. These events form the basis of Count 5 on the indictment, an offence that the offender whilst in the company of others had sexual intercourse with DS without his consent knowing that he was not consenting and immediately before the sexual intercourse maliciously inflicted actual bodily harm upon him.

16 The offender then took over from LK and he began forcing the rolling pin into the complainant’s anus. The offender’s use of the rolling pin forms the basis of Count 6 on the indictment, it being the count on the indictment that has the matters on the Form 1 attached to it. It is an offence of whilst in the company of another having sexual intercourse with DS without his consent knowing that he was not consenting and immediately before that maliciously inflicting actual bodily harm upon him.

17 Throughout these events DS was asking to be allowed to leave and for the assaults to stop. Eventually the offender and LK stopped abusing him with the rolling pin. DS turned around and saw it on the ground covered in blood. The group began to discuss what to do with the complainant. Gavin McGaw wanted to let him go but the offender told Mr McGaw that if they let him go the complainant would go to the police. This led to a fight between the offender and Mr McGaw over whether the complainant should be allowed to leave.

18 At about 2am LK took the complainant to the rear yard of the premises. The complainant thought that he was going to die but took advantage of LK’s decision to urinate to leap over the back fence. He came across a resident who contacted police. He was taken by ambulance to Nepean Hospital where his injuries were observed and treated. Those injuries are set out in a statement of facts. It is apparent that he was injured to many parts of his body.

19 The offender told a friend of his what he had done a few weeks later and was arrested on 13 September after committing the further offences which I will now describe.

20 At about 11.45pm on 13 September 2005 a man by the name of Agacan Surmeli returned home. He had some compact discs and money inside a clear plastic bag. He was collecting groceries from his car when he saw a group of young men walking towards him. The offender approached Mr Surmeli and said “Give us your money you cunt” and adopted a fighting stance. Other members of the offender’s group were nearby. Mr Surmeli removed a baton from his car and waved it around to protect himself. The offender and another person then assaulted Mr Surmali - these events forming the basis of Count 1 on the second indictment. Mr Surmeli lunged at the group with his baton and they ran away. Mr Surmeli tried to throw the bag that he was holding to a location where the offender and his friends could not get to it but he failed to do so.

21 He chased the four men, one fell over and another stood with his hands up saying “Cool down”. Mr Surmeli said “Take your mates and go” but at this stage the offender’s brother yelled “Let’s get him” so the offender pulled out a “For Sale” sign out of the ground and removed the sign. He then ran at Mr Surmeli brandishing the pole. This forms the basis of Count 2 on the second indictment - an offence of using an offensive weapon to assault Mr Surmeli.

22 Mr Surmeli ran to his block of units, got inside and locked the front door. He was able to observe what happened after that from his balcony. The offender walked over to where Mr Surmeli’s bag containing the CDs and money had fallen. The offender placed those items under his t-shirt and walked away. That is the offence of larceny, the third Count on the indictment. As a parting gesture the offender shouted at Mr Surmeli not to call the police or he would kill him, but the offender was arrested soon afterwards.

23 The crimes committed by the offender on 13 September 2005 were not admitted by the offender. He stood trial before his Honour the late Judge Viney and a jury and was convicted. The factual basis on which I am to sentence the offender was agreed and was contained in a document headed “Crown Summary of Case on Sentence” from which I have extracted some of the information above.

24 To summarise the offences which the offender is to be sentenced today.

25 There is one count of malicious wounding with a maximum penalty of seven years imprisonment; one count of malicious wounding in company with a maximum penalty of ten years imprisonment; one count of specially aggravated kidnapping with a maximum penalty of twenty-five years imprisonment; two counts of aggravated sexual assault in company for which the maximum penalty is life imprisonment with a standard non-parole period of fifteen years imprisonment (one of those offences carrying matters on a Form 1); one count of assault with intent to rob whilst in company carrying a maximum penalty of twenty years imprisonment (this offence also carrying a matter on a Form 1); one count of using an offensive weapon to commit a serious indictable offence in company, carrying a maximum term of imprisonment of fifteen years; and finally there is an offence of larceny for which the maximum penalty is five years imprisonment.

26 The seriousness of the offences as described by me, the maximum penalties, the fact that there is a very lengthy standard non-parole period attached to two of the offences for which the offender is to be sentenced, and the fact that all of these offences were committed whilst the offender was on parole, all suggest that it is inevitable that the offender will serve a very lengthy period of imprisonment.

27 He is now twenty-three years of age. He is of Aboriginal background being the youngest of ten siblings. His parents separated when he was about twelve years of age after which he began associating with the wrong crowd, truanting from school and using alcohol. Initially the offender lived with his father after his parents divorced but then essentially became a street kid between the ages of thirteen and sixteen. His mother had a severe drug and alcohol problem which got worse after she divorced the offender’s father. At the age of sixteen the offender was incarcerated. During that time he completed his School Certificate and did other courses. After release from custody he came under the influence of his old friends and started to consume alcohol to excess.

28 His criminal history includes serious earlier offending. He was released from juvenile detention in August 2004. He committed other offences apart from these whilst on parole and was put on a good behaviour bond. He failed to report to the Probation & Parole Service for supervision but before breach action could be taken against him he was arrested for the matters for which he is to be sentenced today.

29 The offender was drinking heavily at the time of these offences. On 2 August he said that he had drunk half a bottle of vodka and fifteen beers and that around this time was drinking on a daily basis. He expressed his remorse by saying that he was sorry for DS and ashamed of what he did and that he now recognises his need to get counselling for his alcohol abuse. He says that he has not commenced counselling whilst in custody because of Court matters.

30 I mentioned before that the offences of aggravated sexual assault in company have a maximum penalty of life imprisonment with standard non-parole periods of fifteen years. Of course the standard non-parole period does not have direct application in this case, because of the pleas of guilty to those offences, but it remains as a guide post in assessing the appropriate sentences.

31 It is important that I assess the level of objective criminality and decide where in relation to the mid range these particular offences fall. I am satisfied that the circumstances of these offences are such that they are objectively worse than the mid range, indeed this was conceded by counsel who appeared for the offender, particularly so in the case of Count 6: the complainant’s anus was forcefully and persistently penetrated with a rolling pin, causing him physical injuries as well as great pain in circumstances where he had already been assaulted and believed he was going to die. Indeed these circumstances suggest that, objectively, the offences are approaching the worst case.

32 It is correct to say that the offences committed by the offender, particularly those involving the sexual assault of the complainant, involved gratuitous cruelty. And it is a matter of serious aggravation also that all the offences for which the offender is to be dealt were committed whilst he was on parole and also on a bond for an offence of violence.

33 It was submitted on behalf of the offender that whilst he was more culpable than two others whom I earlier sentenced, Gavin McGaw and Jessica McGaw, he was less culpable than LK, he being the person who obtained the rolling pin for use in the sexual assault of DS.

34 I reject the submission that this offender was less culpable than LK. It has to be remembered that it was this offender who took the decision to commence acting violently towards the complainant, turning what appears to have been a friendly experience to the complainant into a terrifying one. I regard LK and this offender as equally culpable upon the material before me.

35 It will be noted that I have thus far concentrated on the events of 2 August 2005 and have barely mentioned the other offences the offender committed about six weeks later. Those later offences were also serious involving violence, the use of weapons, and the unlawful taking of another’s property. It should not be thought that I have overlooked these offences at all, but serious as they are, their criminality pales in comparison to the awful offences committed on the young man six weeks later.

36 Perhaps the most significant mitigating factors which counsel for the offender relied on concerned his youth and his offer of assistance to the authorities.

37 The offender was born in August 1984 and so these offences were committed either side of his 21st birthday. Counsel for the offender suggested that I should not sentence him as though he were a fully-grown adult. I recognise that the offender was still an immature man, but I do have to say that it does not take much maturity to know how morally repugnant it is to treat a young man the way the complainant was treated on 2 August 2005 and it does not take much maturity to know that it is wrong to rob someone and attack them with a wooden pole.

38 Perhaps the most significant aspects of the offender’s youth concerns its relationship with his excessive drinking. As counsel submitted, the offender has been off the rails since he was sixteen in circumstances where he drank enormous quantities of alcohol. The offender suggested that he had indeed consumed a lot of alcohol before committing the offences of 2 August 2005. Perhaps therefore the most importance of the offender’s youth is because of its indirect relationship to the offences, in the sense that the offender’s immaturity was a factor in leading to his heavy drinking and there is the possibility that this in turn may have led him to act in ways he would not have acted if sober.

39 The offender has undertaken to assist the authorities. I note that that assistance includes an undertaking to give evidence for the prosecution. The authorities assessed the information provided by the offender, and the evidence he is prepared to give, as being accurate, although it could not be said that it was provided early.

40 I will not quantify the discount for assistance separately from the discount for pleading guilty to the offences of 2 August 2005, but will indicate that because of the late plea of guilty to those offences and the assistance the sentences for those offences are about one-third less than they otherwise would have been. I have also taken the assistance into account in deciding on the sentences for the offences to which pleas of guilty were not entered.

41 I note that I am encouraged by decisions of the Court of Criminal Appeal to quantify the discount for future assistance, encouragement which is consistent with s 21A of the Commonwealth Crimes Act which applies in Commonwealth matters. I myself doubt the utility of such quantification given the large number of cases where undertakings to give evidence are given and the comparatively small number of appeals under s 5DA of the Criminal Appeal Act. It seems to me that unnecessarily splitting up the discount between on the one hand future assistance and the other hand the plea of guilty and past assistance can only lead to a pretence of precision in sentencing which is wholly unwarranted. But in the light of the Court of Criminal Appeal authorities I will indicate that the discount for future assistance is fifteen percent.

42 The question of totality is clearly important here. I have to give the offender an overall sentence which is appropriate to his overall situation. For this reason there will need to be a significant component of concurrence in the sentences I impose.

43 It was submitted to me that I would find special circumstances, these mainly relating to the youth of the offender. Of course I have to be careful not to double count here. I have already decided to impose a lower sentence on the offender because of his youth and it would be double counting to then automatically reduce the non-parole period because of the same factor. The length of the overall sentence is such that there must necessarily be a lengthy period of eligibility for parole even in the absence of a finding of special circumstances. Although the individual sentences will not reflect the statutory ratio, in the circumstances as I have explained them, the overall sentence will.

44 Before I impose sentence I remind those present that there should be no publication of either DS’s name or any information tending to identify him. I impose the following sentences:

45 For the offences of 13 September 2005 -

On Count 1 taking into account the matter on the Form 1, I impose a fixed term of imprisonment for three years commencing 13 September 2005.

On Count 2 I impose a fixed term of imprisonment for two years commencing 13 September 2005; and

On Count 3 I impose a fixed term of imprisonment of six months commencing 13 September 2005.

46 Now dealing with the offences of 2 August 2005 -

On Count 1 I impose a fixed term of imprisonment of two years commencing 13 September 2007;

On Count 2 I impose a fixed term of imprisonment of three years commencing 13 September 2007;

On Count 3 I impose a fixed term of imprisonment of four years commencing 13 September 2007;

On Count 4 I impose a fixed term of one year commencing 13 September 2007.

47 All of the sentences I have thus far mentioned are fixed terms because of the next two sentences I will impose -

On Count 5 I set a non-parole period of six years and head sentence of nine years commencing 13 September 2007; and

On Count 6 taking into account the matters on the Form 1, I set a non-parole period of eight and a half years with a total sentence of twelve years commencing 13 September 2007.

48 Thus the overall sentence will be one of fourteen years with an affective non-parole period of ten and a half years expiring on 12 March 2016 on which day the offender is eligible to be released to parole.

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