R v King

[2019] NSWDC 865

District Court

New South Wales

Medium Neutral Citation:	R v King [2019] NSWDC 865
Hearing dates:	27 November 2019, 6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Sentenced to a non‑parole period of two years to date from 2 February 2019 and expire on 1 February 2021. The balance of the term is one year and four months to expire on 1 June 2022. The total term of imprisonment is three years and four months
Catchwords:	SENTENCE – Assault with intent to rob
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Bugmy v R [2013] HCA 37
Category:	Sentence
Parties:	Regina (Crown) James Stephen King (Offender)
Representation:	Solicitors: Mr D Hoitink for the Crown Mr D Gibbons for the Offender
File Number(s):	2019/00035792
Publication restriction:	Nil

SENTENCE

1. James Stephen King, 38 years of age, appears for sentence in relation to one offence of assault with intent to rob, an offence pursuant to s 95(1) Crimes Act. The maximum prescribed penalty for that offence is 20 years imprisonment. There is no prescribed standard non‑parole period.

2. The offender pleaded guilty on 13 September 2019 at the Gosford Local Court. Having regard to the timing of the plea, I propose to allow discount on sentence of 25%.

3. The offender has been in custody bail refused since the date of his arrest on 2 February 2019. Accordingly, the sentence imposed today will be backdated to that date.

The Agreed Facts

4. The agreed facts are as follows: Around 5.30pm on 2 February 2019 the victim Meaghan Buddeke attended the Sunken Monkey Hotel in Erina with her friend Erika Dart. Upon arriving at the hotel the victim and Dark began drinking alcohol and playing the poker machines.

5. At approximately 6.30pm the victim and Dark won a poker machine jackpot of $11,909,46. The victim and Dark immediately celebrated by high fiving each other, cheering and clapping and yelling a number of things including, “We’ve won $12,000”.

6. A short time later the victim and Dark went to the main bar at the hotel and collected their jackpot winnings. They received $5,000 in cash which was counted out onto the bar by the hotel duty manager, Timothy Slater, and the remainder in the form of a cheque. The victim and Dart then purchased more drinks and continued to play the poker machines.

7. The offender, James King, was drinking at the Sunken Monkey Hotel on the evening. He attended the hotel alone. He was dressed in a dark T-shirt with a floral pattern on the back, shorts and thongs. From around 6pm the offender drank beer in the main bar and poker machine areas of the hotel. During this time the offender walked up and down behind a number of patrons who were playing the poker machines, observing their games. The offender said to one patron, “Bloody horses, I’ve lost all my money on the horses”. The offender was present in the poker machine area while the victim and Dart were loudly celebrating their jackpot win. The offender was present in the main bar area approximately five metres away from the victim and Dart when they collected their cash winnings.

8. At approximately 7pm the victim left Dart to use the female bathrooms. She walked from the poker machine area through the main bar into an adjoining corridor and then into the bathrooms.

9. At this time the offender was drinking beer in the main bar. He observed the victim walk past him and enter the corridor to the bathrooms. Seconds later he placed his beer down on a table and followed the victim down the corridor leading to the bathrooms.

10. The victim observed that there was nobody else in the female bathrooms, she entered a cubicle and began to use the toilet. Upon finishing she stood up holding her pursue under her left armpit and unlocked the cubicle door. As the door was unlocked the offender forcefully pushed it open. He then placed his left hand over the victim’s mouth and pushed her back into the cubicle and up against the toilet. He said, “You are going to give my your wallet”. He then held the victim’s face with his left hand and punched her repeatedly to the left side of her face with his right fist. The offender then dragged the victim out of the cubicle by her clothing and threw her against a sink. The victim attempted to escape, managing to open a door that adjoined the bathrooms to a vestibule area. The offender followed her into the vestibule area and grabbed her by the face. He then hit her head into a wall a number of times. The offender then used his right elbow to strike the victim to the head several times. During this incident the victim was screaming for help.

11. At this time a number of people including patron Taylor Ellis and hotel staff Grace Fowles and Christen D’Agostino heard the screams of a distressed female coming from the bathrooms. All three rushed into the adjoining corridor and attempted to enter the female bathroom. However, the offender initially leaned on the door between the corridor and the vestibule to the bathroom preventing it from opening. Eventually the offender released the door allowing it to open. D’Agostino and Fowles then entered the vestibule to the bathroom and observed the victim slouched against a wall while the offender stood over her and punched her a number of times to the face and neck.

12. The offender then ran past D’Agostino and Fowles, exiting the bathroom. He did not have the victim’s wallet with him at this time. A patron, Michael Scicluna approached the offender and said, “What are you doing in the ladies toilets mate”. The offender pushed past the patron and walked away through the bistro area of the hotel and towards the front door.

13. The patron chased after the offender and attempted to restrain him, grabbing his shirt and causing it to rip. The two men wrestled briefly before the offender freed himself and exited the building through the front door that led to the car park.

14. The duty manager, Timothy Slater, had been alerted to the disturbance and ran out the front door of the premises, at which point he saw the offender walking through the car park, the offender ran away crossing a number of nearby streets in an attempt to escape. The duty manager chased after him on foot maintaining continuous sight of him while speaking to emergency operators on his phone.

15. The offender and the duty manager were intercepted by police at the Platinum Plaza Erina, less than a kilometre away from the Sunken Monkey Hotel. The offender was placed under arrest. He declined to participate in a record of interview.

16. The victim was taken by ambulance to Gosford Hospital for treatment. As a result of the assault by the offender she suffered bruising to her face, the back of her head and her right arm, whiplash to her neck, a four centimetre cut above her left eye and a small cut to the back of her right leg.

17. The victim’s wallet was later discovered on the floor of the female bathrooms where the assault had occurred with its contents, including the cash winnings from the poker machine jackpots strewn nearby.

18. At the time of his arrest the offender was photographed by police. These photographs show him as a man of large build wearing a dark T-shirt with a floral pattern on the back, light coloured shorts and thongs. These features were consistent with the description given by various persons who saw the offender.

19. Police later obtained CCTV footage from the Sunken Monkey Hotel which showed the offender placing his beer on the table and following the victim down the corridor leading to the female bathroom seconds before the alleged assault.

Assessment of objective seriousness

20. Those facts clearly disclose very serious objective criminality. The victim was subjected to a sustained and vicious attack. I have no doubt that the whole ordeal was for her extremely terrifying.

21. In assessing the objective seriousness of the offence, I have taken into account the following factors:

1. The degree of violence used during the commission of the offence was significant and included the offender placing his hand over the victim’s mouth, punching her repeatedly to the face with his fist, hitting her head into a wall a number of times and using his elbow to strike the victim’s head several times.

2. The offender was physically a large and powerful man, which no doubt increased the fear of the victim.

3. The location where the offence occurred, namely in a bathroom, where there was no reasonable prospect of the victim being able to escape.

4. The actual bodily harm suffered by the victim was as follows: bruising to her face, the back of her head and her right arm, whiplash to her neck, a four centimetre cut above her eye and a small cut to the back of her right leg.

5. I am satisfied that the actual bodily harm was intentionally inflicted.

6. I am satisfied that the offending was not spontaneous, in circumstances where I am satisfied that the offender was aware of the victim’s winnings and that they had been collected.

22. Having regard to those factors, I am satisfied that the objective seriousness is in the upper end of the middle of the range, this is particularly so given the sustained use of violence against the victim.

Victim impact statement

23. The victim prepared a victim impact statement outlining how she felt during the events and also the impact of the offending upon her. She stated as follows, and I note at the outset that the victim impact statement is addressed to Mr King:

“I had never met you, but your face has been etched into my memory for life. The way it looked as you barged into my bathroom stall as if it was your given right. I cannot seem to get this image out of my head. You cornered me in the stall. I had not even finished putting on my overalls and you pushed me back until I was basically standing in the toilet. I thought I was going to be raped. It was only when you asked for my wallet that I had any idea what was going on. But you never gave me a chance. I have never been punched before. I had no idea how to react, and I was cornered in such a small stall I couldn’t move anywhere. I was vulnerable and you violated me. You took away all of the control I thought I had, and all of my confidence in myself. It wasn’t until the third or fourth punch that I remembered to scream. When I screamed you hit me harder as if I were the one doing something wrong.”

24. In relation to the ongoing emotional impact the victim stated as follows:

“I have become anxious and scared of even sitting in my house alone. You have made me scared in my own home. I cannot walk through a car park without feeling you are there. My anxiety and stress levels relating to this feeling have cause my psoriasis to flare and I am covered in itchy red spots. These spots are another constant reminder of what you have done and cause low self-esteem and severe pain every day”.

25. The victim further stated as follows:

“…I find myself crying or having panic attacks for no reason other than an image of that day popping into my head. I was never like this, you have made me weak, I am constantly battling the thoughts in my head because of what you have done”.

26. The victim also described the impact upon her employment and studies including difficulties concentrating and lack of motivation. The victim indicates she has now been diagnosed with severe depression and anxiety and is now medicated. She observed as follows:

“I miss the person I used to be, the person you took from me”.

27. Having regard to the victim impact statement I accept that the offending has had a devastating effect upon Ms Bedeke. One of the purposes of sentencing is to recognise the harm done to the victim of the crime.

Subjective circumstances

28. The offender is now 38 years of age.

29. He has four matters on his criminal history commencing in 1998 when he was dealt with for a mid-range PCA and fined.

30. In 2011 he was dealt with for a further mid-range PCA and fined.

31. In 2013 he was dealt with for an affray and sentenced to a community service order for 30 hours.

32. In 2017 he was dealt with for a high range PCA and also fined.

33. Whilst the offender’s criminal history is limited, I am satisfied that it disentitles him to the leniency on sentence that would otherwise be available to a person of prior good character.

34. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1 a letter of Chris Davidson, 8 April 2019;

• Exhibit 2 a report of Emma Hubner, psychologist, 18 November 2019;

• Exhibit 3 a letter from Don Sweetman, 22 November 2019;

• Exhibit 4 a letter from Ian Barclay, undated;

• Exhibit 5 a letter from Joe Coyte, 17 April 2019;

• Exhibit 6 a letter from Ray Neal, 16 October 2019;

• Exhibit 7 a letter from Joe Stephens, 26 October 2019;

• Exhibit 8 a letter from Nathan Stig, 2 October 2019;

• Exhibit 9 certificates of courses completed;

• Exhibit 10 Corrective Services case notes;

• Exhibit 11 defence written submissions; and

• Exhibit 12 sentencing statistics.

35. The offender’s background is outlined in the letter prepared by Chris Davidson, Exhibit 1 and also the report of Emma Hubner (Exhibit 2).

36. The offender was born in Penrith, he is the eldest of five children. He described his father as a heavy drinker as well as being abusive and neglectful. Whilst he had stronger bonds with his mother, he reported she also failed to meet his emotional needs. He said, “I was always in fear, I never felt love or affection”. The offender described to Mr Davidson that he had been the subject of severe physical verbal and emotional abuse at the hands of his father, which included beatings that started “before he can remember”. He recounted an occasion when he was eight years of age and he was repeatedly punched in the face by his father. He reported that some of the beatings he endured rendered him unconscious.

37. In the opinion of Mr Davidson the offender’s “upbringing involved violent trauma, verbal shaming and physical and emotional abandonment”. The offender also reported that both his parents had a history of alcohol abuse.

38. The offender reported that his parents separated when he was 13 years old. After the separation he reported that his mother began to drink heavily and became involved with other violent men. At the age of 15 years the offender had been scouted by the North Sydney Bears rugby league team and he began to live with a family in Terrigal.

39. The offender reported that at the age of 16 he had his first anxiety attack in the context of his concern about his future as a rugby league player. Mr Davidson noted as follows:

“This anxiety increasingly progressed into a panic disorder along with a chronic phobia of open spaces”.

40. At 17 years of age the offender began to live in a house with other rugby league players and he began to gamble each weekend.

41. At 21 years of age he travelled to the UK to continue his sporting career. He reported that his gambling escalated and he began to consume alcohol because of “mood dysregulation”. Specifically, during his professional sporting career he reported that he continued to battle with “compulsive and intrusive thoughts of self-loathing, shame and ridicule”.

42. At 26 years of age the offender reported that he sustained an injury to his knee and he returned to Australia. For the next five years he struggled to maintain employment as a semi-professional rugby league player. He ultimately retired at 31 years of age.

43. After his retirement he reported that he struggled with chronic pain and his drinking and gambling increased to a level of dependency. After retirement he worked in scaffolding and as a supervisor in the mines. He also ultimately gained employment at Bunnings as a store assistant and was promoted into a supervisory and management role.

44. The offender reported that at 34 years of age he completed a six month drug and alcohol residential program at WHOS. After that program was completed he was abstinent for a period of approximately five months before relapsing.

45. At 36 years of age he spent six months at The Glen, Drug and Alcohol Rehabilitation Centre. At that time he had continued ongoing chronic pain and mood dysregulation.

46. At 37 years of age he completed an alcohol detox at Gorman House and he began weekly counselling with Mr Davidson (see Exhibit 1).

47. At the time of the offending he had been abstinent from alcohol and gambling for a period of 13 months before relapsing shortly before the offending.

Mental health history

48. The offender reported that at 22 years of age he was diagnosed with post-traumatic stress disorder relating to childhood abuse and he was medicated for a period of three months.

49. At 30 years of age he was diagnosed with depression and panic disorders and also alcohol dependency disorder and gambling addiction. It was at that stage that he was referred to The Glen.

50. The offender had reported that within the weeks before the offending he had symptoms of depression and panic disorder.

51. Mr Davidson indicated in his report that as he understood it approximately three days before the offending the offender called him several times to tell him that he was not dealing with his psychological state and that he was in fear of breaking his abstinence. Mr Davidson indicated that he did talk to the offender on two occasions, but unfortunately when he called a third time he was unavailable to speak with him.

Circumstances of the offending

52. In relation to the offender’s circumstances at the time of the offending Ms Hubner noted that the offender reported heightened levels of stress which were work related and also at the same time he was working through his childhood trauma with Mr Davidson. Ms Hubner noted that the offender said that he had no memory of the offending. Ms Hubner was of the view that was plausible in circumstances where alcohol is known to affect memory and, in particular, it can also affect judgment and cause disinhibition.

53. Further, she noted that the offender could not identify a motive for his offending behaviour. She noted that it was possible he was attempting to recoup the money he had lost by purchasing alcohol and gambling.

54. In relation to the offender’s attitude to his offending, Ms Hubner noted as follows:

“When given the opportunity to reflect upon his involvement in the offence, Mr King said, ‘I’m completely devastated’. ‘I’ve had endless nights trying to accept that I could do something like that.’ And, ‘It’s broken me as a man’.”

55. Regarding the victim he said: “I want her to recover mentally and physically” and “I don’t want her to suffer any more”.

56. Ms Hubner conducted a psychological assessment. She indicated there were no symptoms of psychosis. She stated as follows:

“The results of the current testing revealed the presence of depressive, avoidant passive aggressive and self-defeating personality traits. It also identified symptoms of post-traumatic stress disorder, major depression, anxiety and alcohol dependence”.

57. Ms Hubner made a number of recommendations in relation to the offender’s treatment including ongoing management by a GP or a psychiatrist in relation to his mental health issues and ongoing intervention in relation to alcohol and gambling. She also recommended ongoing support within the community to assist him maintain his overall stability and provide access to relevant support services.

The evidence of the offender

58. The offender gave evidence during the sentence proceedings. His evidence can be summarised as follows.

59. In relation to his background he recounted an occasion when he was eight years of age when his father was extremely intoxicated. He was laying on his bed, his father told him to “shut up”, he was crying and his father punched him with a closed fist to the face until he was rendered unconscious.

60. He also described that after his mother and father separated that his mother developed a significant drinking problem and her condition deteriorated over the years.

58. He outlined his long battle with both alcohol and gambling and identified the steps he has taken over many years to try and address those problems. He said at the time he went to WHOS in Cessnock (which was four or five years ago when he was working in the mines) he could no longer work due to his alcohol dependency. He ended up going to the WHOS program for six months.

59. He said subsequent to his entry into the WHOS program he maintained his abstinence for a short period of time but ultimately was unable to work again due to his addiction to alcohol and on that occasion he went to The Glen at Chittaway Bay.

60. He said in the 13 months leading up to the offending he had been regularly attending Alcoholics Anonymous meetings and he was heavily involved in Alcoholics Anonymous. In the weeks leading up to the incident he had recently been promoted to the position of a supervisor at Bunnings. He found his time at work very stressful, particularly in relation to managing staff. He said at the same time he was having hypnosis treatment in relation to his childhood issues. A combination of those factors he described as being “too much pressure” and he ended up relapsing into alcohol use.

61. He indicated he began drinking three days before the offending. In relation to his offending he said he accepted full responsibility for his conduct. He said he was “completely shocked and ashamed.” He said he has now lost his job, his career and he has struggled to understand how he could do what he did to an innocent person. He said to the Court, “I can’t put into words how remorseful I am”.

62. Upon release from custody he said he hopes to relocate to Newcastle where he has the support of his sisters. He wants to study so he can work with other alcoholics to prevent them making the same mistakes he has made.

63. In cross-examination he acknowledged that this offending happened whilst he was under treatment. He was asked how would he avoid similar offending in the future. He told the Court that since the offending he has had no thoughts or compulsion to drink, and he described his mindset as being in “totally different place”.

Other material tendered on behalf of the offender

67. The following additional material was tendered on behalf of the offender. Exhibit 3 was a letter from Don Sweetman. Mr Sweetman had known the offender since mid-2016. He met the offender at The Glen and he was a sponsor of the offender at Alcoholics Anonymous. He described the offender as an enthusiastic member of the program and that he was progressing well before his recent relapse at the time of the offending. Mr Sweetman said he was shocked by the facts of the offending and the offender had expressed remorse to him with respect to his conduct. Mr Sweetman remains supportive of the offender.

68. Exhibit 4 was a letter prepared by Ian Barclay. He knew the offender through his professional footballing career. He was a football coach. He also employed the offender during that time. He described that he was impressed by the offender’s “integrity, trustworthiness, pleasant mood and self-motivated nature to succeed”. He was surprised by the offender’s addiction issues later in life. He also noted that the offender had expressed remorse in relation to his offending.

69. Exhibit 5 was a letter under the hand of Joe Coyte from The Glen. Mr Coyte had met the offender in 2016 when the offender had completed a 12 week program at The Glen, he then commenced the transition program which the offender completed on 9 April 2017. Mr Coyte described the offender as an “excellent client, polite and courteous” who was well engaged with the program.

70. Exhibit 6 is a letter under the hand of Ray Neal. Mr Neal was a work colleague of the offender at Bunnings. He described the offender as “honest, caring and hardworking”. He said he was involved at Bunnings in leadership and supervisory roles in the building department. He was also aware that the offender had assisted in local rugby league clubs. He described himself as shocked by the offending and indicated it was entirely out of character for the offender. He also indicated the offender had expressed regret and remorse to him.

71. Exhibit 7 was a letter under the hand of Joe Stevens. He had been a friend of the offender’s for 11 years. He met the offender whilst they were playing rugby league together at Newcastle. Mr Stevens confirmed the offender’s childhood background and his struggles as an adult with both alcohol and other addiction. He described himself as shocked at the offending. He continues to remain supportive of the offender.

72. Exhibit 8 is a letter under the hand of Nathan Stig. He is an employee of WHOS, who met the offender through the WHOS program in early 2015. Mr Stig confirmed that the offender completed a six month program at WHOS and described him as well engaged in the program. He outlined that he maintained contact with the offender after he left the program. He described himself as shocked when he heard of the offending. He indicated it was totally out of character and in his opinion alcohol must have been a major factor. He also noted that the offender had expressed remorse for his offending.

73. Exhibit 9 were two certificates in relation to courses that the offender has completed whilst in custody.

74. Exhibit 10 was case notes from custody. Those case notes on review indicate that the offender has been described as compliant, co-operative, courteous, as working to a high standard, as motivated to engage in any relevant programs offered whilst in custody. It was noted that he is very well regarded by persons who have interacted with him whilst in custody and he was described as a model inmate. He was further described as a good influence on other inmates.

Submissions of the parties

75. In determining the appropriate sentence I have taken into account both submissions made on behalf of the Crown and submissions made on behalf of the offender.

Relevance of the offender’s childhood

76. I am satisfied that the offender has experienced a childhood that has been characterised by trauma and also neglect. I am satisfied that those experiences do warrant a reduction in his moral culpability for the reasons set out in Bugmy v R [2013] HCA 37 at [42] to [44]. In those circumstances, I do propose to moderate to some extent the otherwise appropriate sentence.

Relevance of mental health

77. I am satisfied that at the time of the offending the offender was suffering from long standing mental health issues, namely major depression, post-traumatic stress disorder, anxiety, and alcohol dependence. I note however that self-induced intoxication cannot be taken into account as a matter in mitigation (s 21A(5)(AA) Crimes (Sentencing Procedure) Act).

78. Whilst I accept the mental heal issues were existing at the time of the offending, I am not satisfied they are directly causally connected to the offending. In my view the abhorrent behaviour from someone who is otherwise described as well-adjusted is likely to be attributable to alcohol consumption.

Prospects of rehabilitation

79. I am satisfied that the offender has very good prospects of rehabilitation in circumstances where he has a very limited criminal history and he is motivated towards his own rehabilitation. He has been well engaged in the community with respect to his rehabilitation in the past. He was also previously employed. There are no entrenched negative social attitudes and the offender has also indicated that he no longer has any compulsion to drink alcohol. For those reasons I also find the offender is unlikely to re-offend. I note that the Sentencing Assessment Report risk assessment indicated that the offender was a low to medium risk of re-offending.

Remorse

80. I am satisfied the offender is genuinely remorseful having regard to his evidence before the Court and also his expressions of remorse and regret to both his friends, associates and professionals with whom he has consulted. I am further satisfied that he has accepted full responsibility for his offending.

Special circumstances

81. I am satisfied that special circumstances are established that warrant an adjustment in the normal statutory ratio between the non‑parole period and the parole period having regard to the following:

1. It is the offender’s first time in custody, and

2. He will need a lengthy period of supervision upon release to address his mental health issues and also to undertake alcohol and gambling relapse prevention treatment.

Determination

82. In determining the appropriate sentence I have had regard to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act.

83. In my view general deterrence is a very important consideration on sentence with respect to the nature of this offending.

84. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5 (1) of the Crimes (Sentencing Procedure) Act.

85. I have had regard to the maximum prescribed penalty of 20 years imprisonment. I have also had regard to the objective gravity of the offence and the offender’s subjective circumstances.

86. Mr King in relation to one offence of assault with intent to rob pursuant to s 95(1) of the Crimes Act, you are convicted.

87. I sentence you to a non‑parole period of two years to date from 2 February 2019 and expire on 1 February 2021. The balance of the term is one year and four months to expire on 1 June 2022.

88. The total term of imprisonment is three years and four months.

89. The starting term was four and a half years which I have discounted by 25% for your plea of guilty.

90. I have also found special circumstances and varied the statutory ratio between the non‑parole period and the parole period. In those circumstances you will spend less time in custody and more time on parole which will hopefully assist you in continuing your treatment.

91. I will just note that the earliest date upon which the offender can be considered for parole is 1 February 2021.

92. So Mr King that completes the matter.

93. AUDIO VISUAL LINK CONCLUDED AT 3.38PM

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Decision last updated: 02 April 2020