R v King

[2019] NSWDC 362

District Court

New South Wales

Medium Neutral Citation:	R v King [2019] NSWDC 362
Hearing dates:	22 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [30]-[34]
Catchwords:	CRIME – steal from the person – deprived upbringing – significant criminal history – turning point
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Matthew James King (Offender)
Representation:	Counsel: Mr D Brack (Crown) Mr T Thorpe (Offender)   Solicitors: ODPP (Crown) Mark Rumore Solicitor & Attorney (Offender)
File Number(s):	2017/139702
Publication restriction:	None

Judgment

1. Matthew James King appears before the Court today for sentence in relation to a single charge to which he pleaded guilty prior to the commencement of his trial this week. He is currently 45 years of age and the subject offending occurred when he was 43 years of age. He has had an unfortunate life and has spent a considerable period of his adult life in prison. I will return to considering the question of institutionalisation in due course. I note that the charge to which the Offender pleaded guilty was steal from the person, in breach of s94 of the Crimes Act 1900. I have had regard to the applicable maximum penalty as a guidepost.

2. The facts pertaining to that matter are that Elliott Hayes, aged 19, purchased $50 worth of drugs from a unit at 5/19 Sinclair Street, Gosford sometime after 6:30pm on 8 May 2017. At the time Matthew King, aged 43, hereinafter referred to as “the Offender” was also present at the unit. Hayes had met the Offender on one prior occasion and had entered the Offender’s phone number into his phone. After purchasing the drugs Mr Hayes left the unit; it was dark. As he walked along Ward Street Mr Hayes heard a person running up behind him; turning to look he saw the Offender.

3. Mr Hayes was knocked to the ground and the Offender said, “You don’t know who I am, get the drugs out, you’re losing them”. Hayes gave the drugs to the Offender. The Offender then said, “If you tell anyone about this, anyone at all, I’ll find you and kill you”. The Offender told Mr Hayes that he was taking the drugs as punishment because he believed Mr Hayes had told someone that Steve, that is the supplier of the drugs, was selling drugs.

4. After the Offender left, Mr Hayes used the torch on his phone to look for a distinctive baseball cap which he had been wearing prior to him being pushed to the ground; he did not find it. He telephoned Sergeant Formston, his grandmother’s stepbrother. On being told what happened the sergeant told Mr Hayes to call triple‑0. He rang triple‑0 and recounted the incident. He told the operator that he would go directly to Gosford Police Station and report the matter to Police, which is what he did.

5. At the Police Station he described what the Offender had been wearing, which was corroborated by CCTV footage showing the Offender at a shopping centre earlier that day. He showed the Police the Offender’s telephone number which he had saved to his phone under “Harry” on the Offender’s instructions. The telephone number was incorrect by one digit. Mr Hayes described the person involved as having a tattoo on his left leg. The Offender has a large tattoo covering most of his left calf and shin. He also picked the Offender out of a line‑up parade. Mr Hayes told Police that he was missing his baseball cap. The Police went to the scene of the incident to inspect the scene and in the course of doing so found Mr Hayes’ baseball cap. Those are the facts as agreed between the parties.

6. The Offender was arrested on 10 May 2017 and has remained in custody since that time. At the time of the offending he was serving parole in respect of earlier offences. As a consequence of this offending his parole was revoked and the parole period would otherwise have expired on 31 March 2021. It would be regrettable if the Offender were to remain in prison serving the balance of the parole revoked by reason of this offending.

7. The subjective evidence in this matter is compelling. The Offender has an extensive criminal history. I have been provided with a number of documents including a report by Phil Gorrell, an associate psychologist, dated 21 May 2015. That related to sentencing proceedings before his Honour Judge Woods QC, resulting in a sentence which was handed down on 25 May 2015. The offending at that time involved break, enter, steal, larceny, common assault and a second larceny charge on a Form 1, together with take and drive conveyance, robbery armed with an offensive weapon and Police pursuit, those three being the primary offences.

8. Mr Gorrell had access to a report from a Mr Gurney, Services and Programs Officer at Corrective Services, which I also have as an exhibit. It is undated but refers to interviews with the Offender on 8 May, it says 2014 but I am not sure that is a typographical error, and 21 May 2015. It may be that it was 8 May 2015 and 21 May 2015.

9. In any event, the report by Mr Gorrell was informed not only by access to the report by Mr Gurney but also an interview with the Offender on 19 May 2015. He also interviewed the mother of the Offender, Carol Hardiman, on 20 May 2015. The background information provided was such as to give rise to a finding of deprived upbringing in the manner considered in Bugmy v The Queen (2013) 249 CLR 571.

10. I note that the Offender has spent most of his life in custody. He told the author of the report that he had spent less than two years out of custody since he was 21 years of age, which was the year he first entered adult custody. When he was aged 15 he was in juvenile custody. The Offender told the psychologist that he has never spent a full year out of custody since his first adult incarceration and stated that he “does gaol easily”. The Offender told Mr Gorrell that he does not know how to live outside gaol and it is plain from the history provided that his various incarcerations are related to an addiction to illicit substances.

11. Notwithstanding his periods of incarceration and addiction to drugs he seems well supported by his mother and stepfather, Mr Hardiman, as well as his younger brother, Jamie King. The Offender is unaware of his father’s whereabouts, or at least that was the situation as at 2015. His father is referred to as being an abusive, violent alcoholic and that led to his parents’ separation. His mother is a nurse and stepfather a plumber; his brother Jamie, aged 35 years, is a plumber living in Tuggerah. According to the history provided back in 2015, they spoke every day.

12. His childhood was further marred by his relationship with his sister, who was five years older than he. It is recorded that she continually sexually molested him, causing him to feel abnormal and confused. Apparently, his sister has also spent some time in custody. At the age of 14, his sister ran away to Kings Cross and became a drug-using prostitute. At the age of 13 the Offender was introduced to cannabis and then to speed and LSD but by the age of 17 he was addicted to heroin. It is stated that the illicit substances removed his feeling of abnormality, I infer, arising by reason of the sexual abuse and the drugs helped him to block out his worries. They helped him to think of nothing.

13. Since the age of 17 he has used whatever illicit substances to which he can access. It was observed by Mr Gorrell that the criminal offences have occurred in the context of his drug addiction and that the Offender has never attempted to cease using illicit substances. He also appears to have not been provided with any useful rehabilitation, which is plainly something which he needs.

14. The following statement appears in the report by Mr Gorrell at page 4:

“Mr King stated that if he does not change his life, a change that he does not know how to make, he will most likely spend many more years in custody and probably die in a gaol cell. Mr King told me that he does not want that; he wants to rehabilitation (sic). He wants a normal life.”

15. The comments made by the Offender to the psychologist are alarming. For example, he said that, although he feels he has had enough of gaol, he does not think that he could live outside of gaol. The author of the report suggested that the Offender should admit himself to a comprehensive and intensive drug rehabilitation program which would address his past, including the sexual abuse, his drug vulnerability and reintegration into society with support. Suggestions were made of attendance at either Odyssey House or Dooralong, being a Salvation Army Drug Rehabilitation Centre.

16. Notwithstanding those desires, during the period out of custody it seems that the Offender has not had the benefit of any rehabilitation. Contact made between Mr Gorrell and the mother of the Offender confirmed the history provided by the Offender to the psychologist.

17. It was instructive that at the time of the assessment in 2015 the psychologist who assessed the Offender found that he appeared to have gained insight into what he needs to live a reasonably normal life outside of custody. That was the first occasion upon which he pleaded guilty to many years of offences and the first occasion on which he has admitted that he requires drug rehabilitation. This is now the second time in respect of which he has pleaded guilty to a criminal charge and in circumstances where the Crown case, although prima facie strong, was troubled by the fact that the complainant resided outside of this country. The complainant was difficult and, of late, impossible to contact. Notwithstanding those circumstances, the Offender pleaded guilty to a lesser charge.

18. I note that Mr Gorrell recorded that the Offender mentioned on three or four occasions that he does not know how to live on the outside; that is obviously troubling. The author of the report found that the Offender has been institutionalised and that his behaviours are habitual for that is all that he knows. It was suggested that he needs to start learning differently otherwise he will remain in custody for the rest of his life. He needs to learn, with support, how to deal with a normal life.

19. I have also read and had regard to the report by Mr Gurney of the Department of Corrective Services. He reported that the Offender attended Asquith Boys’ High School before the family moved to the Central Coast, at which time he commenced at Berkeley Vale High School, attaining his Year 10 certificate. Upon completion of that he acquired an apprenticeship in plumbing for three years four months but unfortunately the company went bankrupt and he was unable to complete the last seven months of his trade qualifications. One can only speculate as to what may have occurred had the company remained solvent.

20. In any event, the Offender continued to work as a concreter, labourer, bricklayer, tiler, scaffolding and in roof plumbing over a period of 20 years. At the time of the report prepared by Mr Gurney the Offender was not in a relationship. He recorded that the Offender had stated that he had used recreational drugs since 12 years of age, identifying marijuana, LSD, methamphetamine and heroin as some of the drugs that he had used.

21. Mr Gurney recorded that the Offender appeared to have a good insight into his drug use and the impacts it has had on his life. He states that every problem he has experienced throughout his life stems from an abusive childhood. He said he feels remorseful for the crimes that he has committed to obtain money for drugs and that he would like assistance with his addiction. Other than being placed upon methadone whilst at Long Bay Hospital it appears that the Offender has not been provided with any assistance through the prison system to deal with the addiction that results in his reoffending.

22. I have also read and had regard to the observations made by his Honour Judge Woods QC in sentencing the Offender for unrelated matters on 25 May 2015. Many of the matters referred to by his Honour have already been identified by me by direct reference to the reports by Mr Gorrell and Mr Gurney.

23. In submissions which were advanced on behalf of the Offender on Monday of this week it was submitted that the Offender had a deprived upbringing. I accept that submission and I make that finding. The result of that finding of course is that the Offender’s moral culpability for his offending is reduced but it also raises questions of the need for rehabilitation which plainly exist.

24. The need for rehabilitation and the fact that the evidence as to institutionalisation which comes from Mr Gorrell, to the effect that he has become institutionalised, warrant a departure from the statutory ratio of parole to non‑parole by the finding of special circumstances. I find that the principles enunciated in the matter of Bugmy apply squarely here and ought to be given their full weight.

25. Although the guilty plea was entered on Monday, being the first day of this trial, I note that this is the third time the matter has been to trial. On the first occasion there was a hung jury; on the second occasion there were difficulties arising in the Crown case which caused a blowout in the estimate of the trial such that the Court could not, at that time, accommodate the trial. Notwithstanding those matters, Monday was the first day upon which the Crown had agreed to the lesser charge to which the Offender pleaded guilty. I find that the utilitarian value of the guilty plea ought to be recognised by a reduction in sentence of 15%.

26. In terms of the seriousness of the offending I find it to be below the mid-range of offending of that type. I have already found special circumstances and deprived upbringing. I also find that the Offender is institutionalised and that ought to be addressed by way of rehabilitation. He needs to spend a considerably greater period in the community on parole, with the assistance of Community Corrections and rehabilitation services.

27. Of course, in determining the seriousness of the offending I have had regard to the fact that it occurred whilst the Offender was in fact on parole for the earlier offending and that it involved the threatened use of violence, namely, the threat to kill the Offender in the event that he told anyone of what occurred. The offending is mitigated, as I have observed, by the guilty plea for which a discount is to be applied.

28. In terms of the offending being caused by addiction to drugs I am mindful of the comments made by the Court of Criminal Appeal in the matter of R v Henry (1999) 46 NSWLR 346 that drug taking is itself a matter of personal choice. However, in the circumstances which exist here it would appear to me that the addiction to drugs has come about as a consequence of a very unsatisfactory childhood, particularly abuse from his father and sexual abuse at the hands of his sister. It may be that those circumstances deprived the Offender of the opportunity of making a rational choice as to his drug addiction and I consider it to be a matter which warrants a finding of special circumstances in that, as I have already stated, he requires time in the community for rehabilitation to avoid recidivism. Regrettably, by reason of the prior offending, the Offender is not entitled to a finding of good character and any leniency which might flow from that.

29. I am mindful of the purposes for sentencing set out in the Crimes (Sentencing Procedure) Act. Apart from the need for adequate punishment and the recognition of harm done to the victim of the crime, the purpose of sentencing which, in my view, looms largest is to promote the rehabilitation of the Offender. Plainly that has not occurred in custody and it is probably unlikely to occur in custody. Nevertheless, I find that after considering all possible sentence alternatives that no penalty other than imprisonment by way of full‑time custody is appropriate.

30. Mr King, you are convicted of the offence to which you have pleaded guilty, namely, steal from the person, in breach of s94 of the Crimes Act 1900. In respect of that conviction I impose a non-parole period of 12 months commencing on 10 May 2018 and expiring on 9 May 2019. For the balance of sentence I commenced with a head sentence of 28 months, reduced by 15% on account of your guilty plea to 24 months. The head sentence will expire on 9 May 2020.

31. It is of concern to the Court that by reason of this offending, for which the Offender has pleaded guilty and is now being sentenced, he is still the subject of revoked parole, that is in custody, until 31 March 2021 unless a successful application for parole is made. In my view such an application ought to be made and granted.

32. It seems to me, having regard to the history of this Offender, that spending further time in prison would be counterproductive and only result in continued institutionalisation and, no doubt, continued offending. I recommend that the Parole Authority accede to any application for parole made by the Offender and that they ensure that he is supervised by Community Corrections in such a fashion as to achieve rehabilitation by way of a residential program.

33. The Offender has served his non-parole period for the current offending. In addition, he served 12 months solely referrable to the revocation of parole.

34. I direct the Registrar of this Court to provide a copy of these reasons to the Parole Authority for consideration upon any application for parole being made by the Offender.

**********

Decision last updated: 26 July 2019