R v Lawrence

[2021] NSWDC 445

District Court

New South Wales

Medium Neutral Citation:

R v Lawrence [2021] NSWDC 445

Hearing dates:

11 June 2021

Decision date:

11 June 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 6 years 3 months. Non parole period of 3 years 7 months.

Catchwords:

CRIME - Robbery in company causing grievous bodily harm - bag snatch – victim dragged by vehicle

SENTENCING - Relevant factors on sentence – late guilty plea - substantial harm to victim – deprived background of offender - institutionalised offender - unable to lead a normal community life after long periods in gaol - special circumstances - need for supervised and structured return to the community

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346

Tepania v R [2018] NSWCC 247

Category:

Sentence

Parties:

Gregory Lawrence (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms C Doosey (for the offender)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s):

2019/00031341

sentence – ex tempore revised

Introduction

1. Gregory Lawrence was born in 1983. He was raised by his mother and maternal grandparents; Kamilaroi people from northern New South Wales. While he received love, attention and support from them, there are matters in his background which made him more prone to take up an abuse of illicit drugs. He was in some trouble as a young man and was sent to gaol in 2011.

2. Not long after his release, he committed more serious offences and a six year gaol sentence was imposed. The judge fixed a three year non‑parole period. The material before me indicates that after his release to parole he had trouble adjusting to normal community life. He was in and out of gaol. His parole was due to expire in April 2019 but on 26 August 2018 he committed the offence which brings him before this Court.

3. All the material before me indicates that he was not keeping to his promise to be of good behaviour. He had again relapsed into the abuse of illicit drugs. The present offence was committed so he could obtain funds for drugs. The offence was committed despite the efforts that he had made to put his life in order. Tragically, the crime he committed led to serious injuries being inflicted upon his victim.

4. Not long after he committed this offence he was arrested for other matters. He has been in and out of custody ever since. He last returned to custody on 10 April 2021 and this sentence should start from that date.

5. I must take into account his custodial history. It shows a continuing disobedience to the law but it also indicates, tragically, that since he first went to gaol in 2011, he has, as a consequence of that custody and other matters to which I will refer, never really had an opportunity to live a normal community life. Tragically for his victim and himself, that opportunity will have to be postponed for some time.

Maximum penalty

6. The offence that brings him before the Court today is robbery in company and causing grievous bodily harm. It occurred on 26 August 2018 at the Nan Tien Temple in Berkeley. The offence carries a maximum penalty of 25 years imprisonment: s 98 Crimes Act 1900. Parliament has said that for an offence, taking into account only objective factors, is within the middle of the range of seriousness there is a standard non‑parole period of seven years’ imprisonment. Those penalties indicate the seriousness with which such offences are regarded. It is the highest maximum penalty prescribed by the legislature, short of life imprisonment. The maximum and the standard non‑parole periods are important guides to the exercise of my sentencing discretion but I do not start with the standard non‑parole period or the maximum and simply make proportional deductions from them. Content has to be given to the standard non‑parole period but I am not required, to compare this matter with some other notional offence: Tepania v R [2018] NSWCC 247.

Facts for sentence

7. At 10am on Sunday 26 August 2018 Lawrence drove a black sedan to the Nan Tien Temple in southern Wollongong. He was with his co-offender, Nicole Green. The complainant, a woman then aged 62, and her son drove into the grounds of the temple. Lawrence was parked directly behind that car with his car’s engine running. As the complaint got out of her vehicle she was approached by Green who grabbed and pulled at her handbag. The bag contained an iPhone and personal belongings with a total value of about $3,000. The complainant did not let go of her bag. They were both still holding it as Green got into the front passenger seat of the offender’s vehicle. Lawrence accelerated the vehicle harshly. This caused the victim to fall onto the roadway. She was dragged several metres along the side of the vehicle. She hit her head on the road. Lawrence and Green then drove away with the bag.

8. The complainant was rendered unconscious. Police and ambulance were called and she was taken to the Wollongong Hospital. A number of medical reports detail those injuries: Exhibit A. CT scans indicated intercranial haematomas and a substantial fracture of the skull. Those haematomas took some time to resolve. There were also a number of lacerations.

9. The medical reports detail the significant impact the offence has had on the victim’s life. While some of the neuropsychological assessments need to be interpreted with caution (as a specialist, Dr Morgan, points out at p 10 of her report) the complainant may meet the criteria for major neurocognitive disorder due to traumatic brain injury.

10. There is evidence of cognitive decline that interferes with her independence and everyday activities. There are also lasting sequelae including; both physical and psychological. She has post-traumatic stress disorder. She has problems with her tear ducts; “crocodile tears” where, because of nerve damage, her eyes water when she would otherwise be salivating. She has a palsy rated four of six on the applicable scale. Her detailed Victim Impact Statement sets out the impact upon her of her injuries, not merely the immediate superficial injuries but the long‑lasting impacts of the brain injury that she suffered and the nerve damage.

Objective seriousness

11. It was not intended by either the offender or Green that the victim be hurt but anyone who thought about it for even a second must have realised the real risk of serious injury to a victim in such circumstances.

12. Two people committed the crime, an element of the offence. The fact that the offence occurred in company and the way that motor vehicle was used heightened the risk to the victim. Grievous bodily harm includes any permanent or serious disfiguring of a person. The offence here occasioned substantial grievous bodily harm to the complainant.

13. I accept that it was not intended by either the offender or Green that the victim be hurt but anyone who thought about it for even a second must have realised the real risk of serious injury to a victim in such circumstances. The role and intention with which an offender inflicts harm is an important consideration. Here, as I have said, I am sure neither offender intended serious harm. They were focused only on getting access to funds so they could buy drugs.

14. It is not suggested that like their victim the two went to the Nan Tien Buddhist Temple to pray. There must have been some level of planning but there is no evidence of extensive planning. No one person was targeted. It seems clear that the offenders wanted a handbag and that they opportunistically chose someone such as the complainant, who they presumed, would not offer the resistance that she did. It appears to have been a relatively opportunistic crime. The offender’s role was to be the getaway driver but, in doing so, he joined in and completed the criminal enterprise.

15. The location, a Buddhist temple, is a place where any person who attended there would presume such an attack to be unlikely. The target they selected was an innocent and unlucky victim. It was an attack upon a fellow citizen going about her ordinary business and, as such, was a crime of seriousness. The crime resulted in grievous bodily harm and the material before me indicates that that harm was substantial, a further aggravating factor.

16. The nerve injury is, four on the House-Brackmann Grading Scale of six. There have been some improvements but she has continued to see specialists ever since to deal with a number of problems to which I have referred.

Victim Impact Statement

17. In her Victim Impact Statement (VIS) the complainant said that, as a result of what occurred to her, she feels powerless, helpless, even desperate. She told me about the effect of the injuries. She told me of the headaches and dizziness she suffers. She has trouble with her memory and she finds it very difficult focusing. She is emotionally more labile and subject to a number of problems. Because of her facial palsy, her issues with memory, she is no longer able to assist her husband in the running of their business. She does not feel like doing many of the domestic things that she used to enjoy. While she is grateful that she survived this incident and grateful to those who have helped her, it is clear that this robbery and its physical and psychological effects will linger and stay with her for the rest of her life. I have to take into account personal harm, including actual bodily harm and psychological or psychiatric harm and emotional distress. I have to take into account economic loss.

18. There are some aspects of the victim impact statement where she expresses medical opinions and I will prefer, of course, the medical opinions put before me. While I will not go beyond what is allowed for in s 26 of the Crimes (Sentencing Procedure) Act 1999, I will take into account the undoubted harm that this offence has caused her.

Other relevant factors

19. I am dealing objectively with a serious offence which caused serious harm. It was committed by a person with a criminal record, which does not entitle him to leniency and requires greater attention to community protection. It is offence which calls for just and appropriate punishment.

20. It is a sentence which the prosecution says should carry some deterrent element. Importantly, they submit it should operate to protect the community from the offender by removing him from the community for a lengthy period.

21. The problem that arises in all such matters is that the longer he is removed from the community, the less, it would appear from his history, his chances of adjusting to normal community life are. Accordingly, there is a real danger, given his gaol history, of him being institutionalised and, therefore, becoming unable to live a normal life in the community.

22. I must respects the guidance offered by the Court of Criminal, as this matter is subject to the guideline judgment of R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346; s 42A Crimes (Sentencing Procedure) Act. I have to balance the need for a retributive sentence which properly vindicates the dignity of the victim of violence and that reflects the community’s abhorrence of crimes such as this, while at the same time taking into account this simple fact; community protection cannot be achieved by simply locking Lawrence up forever. He must be released after serving the minimum period his crime demands.

The guilty plea

23. Lawrence was not arrested immediately he was the subject of a future Court Attendance Notice (CAN). He was committed to this Court for trial but just over two weeks from the date fixed for his trial he finally formally accepted responsibility for the commission of the offence. Some responsibility was offered in the Local Court. That offer was not accepted by the Director of Public Prosecutions.

24. Green died after her guilty plea while on the extended bail given to her to complete a rehabilitation program.

Subjective case

25. Lawrence is still a young man. He still has a life ahead of him. He has family support. I have received considerable assistance from a report of Mr Jones, a psychologist, from reviewing his gaol record and from a frank and heartfelt affidavit from his mother. In her affidavit his mother sets out in detail the family history and details of the offender’s children. They are being raised by their mother but he still wants to play a part in their lives.

26. When he was a young man his mother had a number of significant problems in her own life. She now frankly admits she spent more time caring about herself, her drug use and the men she was involved with than her children. The offender was taken from his mother by welfare for a short period. For quite a period he was raised and disciplined by his grandparents, His grandfather was the only father figure in his life and his death in 1999 had a significant impact on the entire family. They moved from house to house. Lawrence did not seem to spend much time at much school. He was exposed to domestic violence and drug use in the family home. As a young child he had, particularly after his grandfather died, little support. His mother was not able to provide it and he mixed with children who, like himself, were getting into trouble.

27. His mother appears to have put her life back on track. She now offers him as much support as a mother can give. I am told he has a new partner with another child on the way. He has other children. Sadly, he will not be in a position to play a significant part in his children’s lives. Given the COVID restrictions, he will be unable to have direct contact visits with his family until the pandemic subsides.

28. In his comprehensive report Mr Jones provides a family history and a history of the uptake of illicit drugs while still a teenager, well before he had an opportunity to make rational decisions. Although he carried out no testing for intellectual disability, he concludes from his review that his estimated level of cognitive functioning is in the below average range, and that Lawrence has a limited range of insight and judgment.

29. The Corrective Services documents before me do indicate that the offender suffers from an intellectual disability. I have no more detail than that but generally Correctives Services NSW will not make such a finding without some solid evidence to support it.

30. Given Lawrence’s long history of illicit drug use and his family background, Mr Jones concludes that he is a moderate risk of reoffending. His main problem is relapse into substance abuse; were he to return to the community without employment, without support and still continue to mix with antisocial peers. Mr Jones says that it is essential that he participate in drug detoxification program and psychotherapy. He will require considerable supervision on release.

31. Mr Jones concludes that, in his opinion, Mr Lawrence’s expose to and the family’s acceptance of substance abuse is directly link to his early substance use. That drug use has continued into his adulthood. That conclusion is supported by his mother’s affidavit.

Structure

32. I will adjust the sentence by making a finding of special circumstances so that Lawrence’s transition into the community can be structured. This is to his and the community’s benefit, but the minimum term he is to serve in custody must still reflect what he did and the harm he caused and reflect the other purposes of sentencing.

Synthesis

33. Not every Aboriginal offender comes from a background characterised by abuse of drugs and/or violence but, where someone has been surrounded since a young child by drug use and domestic violence, a court can mitigate the sentence because the offender’s moral culpability is likely to be less than the culpability of an offender whose formative years have not been so marred.

34. A prosecution submission was made that Lawrence’s history does not fulfil the criteria for “profound deprivation.” I have certainly dealt with cases where evidence relating to family deprivation has been worse, but in my opinion it certainly falls on the scale as envisaged by the Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. His background, as that detailed in the reports and his mother’s affidavit, has obviously left a mark him that will continue throughout his life and compromised his capacity to learn from experience. That background remains relevant, despite his history of offending. But that said, giving full weight to such factors does not suggest that it has the same mitigatory relevance for all the purposes of punishment.

35. A court must recognise there are countervailing factors and, here, the criminal history and the failures on parole mean that any conclusion about his prospects has to be guarded. But, for the reasons I have outlined, it is in both Lawrence’s and the community’s interest that the effort be made. His record alone indicates that the longer he spends in gaol, the less his chances of leading a normal life in the community are. Whilst he must be punished, and punished significantly, for this matter, I will, as I have said, make a finding of special circumstances, taking all of those matters into account.

36. How then to resolve these matters? Regard must be had to the objective seriousness of the crime and the maximum penalty and standard non‑parole period. While I can extend some leniency and moderate the sentence, mitigating factors can only go so far. I have fixed what I regard to the minimum term called for. Unfortunately for you Mr Lawrence, it is a number of years. There will be a long period of parole to allow for rehabilitation and supervision in the community.

37. The starting point for my sentence would have been a sentence of seven years. There must be a reduction of 10% for the utilitarian value of the plea, which gives a sentence of six years and three months. I have rounded down slightly to the offender’s advantage. The sentence should date from 10 April 2021.

Orders

38. You are convicted. Taking into account a finding of special circumstances, you are sentenced to a term of imprisonment of 6 years 3 months consisting of a non parole period of 3 years 7 months to commence on 10 April 2021 and expire on 9 November 2024. You will be eligible for consideration for release to parole on 9 June 2025 to serve the balance of term of 2 years 8 months to commence on 10 November 2024 and expire on 9 July 2027

39. There was an order for compensation.

40. ROLLESTONE: Yes, your Honour.

41. HIS HONOUR: I am not going to make it. It could be of no utility to saddle him with a debt. I am afraid the victim will have to get whatever she can from the Victims Compensation Tribunal. I just think to saddle him with a civil debt on his release would have no utility.

42. ROLLESTONE: I hear what your Honour says on that.

Offender’s mother BEAL: Your Honour, can I just apologise to the victim’s family from me and my son for what he’s done? And I’m sorry for what he’s done but I do want to apologise to your family.

HIS HONOUR: Thank you, ma’am, I’m sure --

Offender’s mother BEAL: I’m sorry.

HIS HONOUR: No, she’s not here but she is on line somewhere. It’s a tragedy all round. I’m sorry for everyone.

OFFENDER: Sorry, mum.

HIS HONOUR: Thank you, [complainant,] for listening. We can’t turn back the clock. I’m sure everyone would like to.

AUDIO VISUAL LINKS CONCLUDED AT 3.23PM

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Decision last updated: 30 August 2021