R v Lawrence; R v Murray

[2022] NSWDC 727

District Court

New South Wales

Medium Neutral Citation:

R v Lawrence; R v Murray [2022] NSWDC 727

Hearing dates:

23 November 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Lawrence - four years and three months with a

non-parole period of two years and seven months.

Murray - four years and six months with a non-parole period of two years and eight months

Catchwords:

CRIME – Detain for advantage

SENTENCING - Relevant factors on sentence - detain for advantage two offenders - guilty pleas - in company - joint criminal enterprise – victim impact - deprived background (Murray) - background of disadvantage (Lawrence) – parity - some differences in criminal records and backgrounds – reliance on reports – no evidence of remorse - special circumstances – attempts must be made to break the cycle of crime gaol and crime

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act1999

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 [2013] NSWCCA 115; (2002) 56 NSWLR 146

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

Hoskins v R [2021] NSWCCA 169

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Paterson v R [2021] NSWCCA 273

R v Millwood [2012] NSWCCA 2

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, S Poynton, G van Doorn and D Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497

Category:

Sentence

Parties:

Carl Lawrence (the offender)
Luke Ronald Murray (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr Ashby (for Murray)
Ms Skinner (for Lawrence)
Ms Walshe (for Director of Public Prosecutions)

File Number(s):

2021/00365618 - Luke Ronald Murray
2021/00365617 - Carl Lawrence

SENTENCE – EX TEMPORE REVISED

Introduction

1. Carl Lawrence and Luke Murray appear for sentence today in Wollongong District Court having pleaded guilty to committing a particularly serious criminal offence: That they, between 20 December 2021 and 21 December 2021, while in the company of the other, detained their victim without his consent and with intent to obtain an advantage ‑ namely, a financial advantage: s 86 (2)(a) Crimes Act 1900. 

2. One measure of the seriousness of the offence is its maximum penalty of 20 years imprisonment.  That maximum is one important guide to the exercise of my sentencing discretion.

3. Both Lawrence and Murray accepted their guilt in the Local Court and.  Today, both adhered to the pleas entered earlier.  The fact that they accepted responsibility will be taken into account.  The utilitarian value of their guilty pleas requires I reduce the otherwise‑appropriate sentence by 25%: s 25D Crimes (Sentencing Procedure) Act 1999.

Form 1 matters

4. Mr Lawrence asked that when I sentence him, I also take into account, on a Crimes (Sentencing Procedure) Act 1999, Form 1, an offence of being carried in a conveyance taken without the consent of the owner.

5. Mr Murray asked that I take into account two offences on a Form 1:  Drive conveyance taken without consent of the owner, and knowingly deal with the proceeds of crime. 

6. The take conveyance matters for both men relate to the vehicle that was used in the commission of the principal offence. It was one of the products of that offence and was used by them both during and immediately after the offence.  The knowingly deal with proceeds relates to Mr Murray using the credit card and information obtained during the detention to extract $890 from the account of the victim. 

7. I do not sentence for the matters on the Form, but they must be taken into account.  I do so, applying the principles set out in the guideline judgment from 2002: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146. There must be some increase to recognise the need for personal deterrence and retribution for the crime for sentence. But care is required here. So far as both offenders are concerned, the matters on the Form 1 played some part in my assessment of the objective seriousness of the matter for sentence. That should not be double‑counted. The additional impact on the sentence, in all of the circumstances, will be extremely modest.

Agreed Facts

8. Each of the offences are subject to agreed facts. They are the same for both offenders.

9. The victim lives in country New South Wales.  I know nothing about him other than that he is in his mid‑thirties.  On 21 December 2021 he was due to fly out from Sydney for a two-month trip overseas. To fill in time he hired a car, intending to sight see and do some shopping before he left.  All his belongings were in that car.  On Facebook Marketplace he located a watch he wanted to purchase. He drove to Wollongong to do so. 

10. The arrangements made with the person on Facebook Marketplace led to him to a street in Mangerton late in the evening of 20 December 2021. It is not suggested that the two offenders had anything to do with that transaction, but sadly, the victim was ‘ripped off:’ the watch he paid for was not delivered. 

11. While the victim was waiting in the hire car in the hope the watch would be delivered, he was approached by Lawrence and Murray. They spoke to him. 

12. The victim then continued with his futile attempt to get the watch that had been promised him.  He returned to his car. The two offenders were standing by it.  They looked in the window and asked him for a lift. 

13. At this point, the victim started to feel scared. Both offenders are big men. Lawrence is described in his police criminal record report as being 180-185 centimetres tall and of “solid build.” Murray is described as a similar height and his build is noted as "obese".

14. The victim decided to run off, but eventually he went back to his car.  The two men, aware that he may have been ripped off, offered to go and bash the other man.  The victim said “no”.  He decided to leave. Again, he was asked for a lift.  He refused.  Murray then said, "No, you're going to take us", and motioned with his hands in the pocket of his hoodie. 

15. The victim thought he was holding something, and felt threatened.  At that stage, he felt he had no option but to let them in the car, as he thought he might have been attacked.

16. He got into the driver's seat. Murray got into the passenger seat; Lawrence hopped in behind them.  By this stage, the victim was extremely scared.  The pair directed the victim to drive off. The victim had no idea where he was going.  A few minutes later, he was told to pull over.

17. Murray said, "We are going to rob you".  Murray told him to get out of the driver's seat and into the passenger seat. The victim convinced them that they could have the car if they got him back to Sydney.  He was then made to drive in what he thought was a northerly direction.

18. At one point, the victim noticed a police car behind them and tried to drive more recklessly; in order to attract attention. Both men yelled at him and made him pull over.  He was then forced out of the driver's seat and into the passenger seat.  Murray then got into the driver's seat and Lawrence moved over to sit beside the victim in the rear passenger seat.  It is at this point the facts indicate that take drive or being carried in conveyance offences on the Form 1s began.

19. The victim was talking to the offenders and trying to calm them.  Lawrence, who was in the rear seat, told him, "Shut up or I'll stab you and fuck your face up".

20. After what to the victim “felt like an hour,” Murray pulled over in a quiet, secluded area ‑ in fact, they were in the town of Appin. 

21. Murray said to the victim, "This is going to happen." He instructed him to unlock his phone, remove all the locks and passcode so they had full access to it.  At this point they were both aggressive and they threatened to stab him.  The victim felt he had no choice.  They demanded his wallet and went through his cards.  They demanded the PIN for his Visa card. He tried to bluff them and said he could not remember it.  At this stage, they got “quite super‑aggressive” and threatened to hurt him.  They took photos of his identification and threatened him that they would track him down and "fuck him up" if he went to the police.

22. They got his online banking applications and tried unsuccessfully to change his PIN.  They even made him call the bank line to change it.  They made him use his thumb to gain access and once they had it, they started transferring money.  They also removed $600 from his wallet, and his Amex card.  They went through his bags and took electronic equipment. 

23. They allowed him to keep his passport and cards except for the Amex card. They then drove off, leaving him in the dark. In all, two laptops, a mobile phone, credit cards and $600 in cash were taken; at this point.

24. The victim walked to a nearby hotel.  The police were contacted

25. Murray had forced the victim to unlock his phone and give him and Lawrence access to his bank account.  About half an hour after the victim was left in Appin CCTV captured the men at the Corrimal Hotel.  The men were seen at an ATM, where Murray withdrew $890 in cash from the victim’s account; the subject of the other matter on the Form 1.

26. The victim was not physically injured during the incident, however he feared he would be stabbed or harmed if he did not comply with the offenders’ demands.  He said he felt intimidated by both men.

27. The hire car was located by police.  The offenders had left their fingerprints impressions in it.  Arrest warrants were issued within days. It did not take the police long to track them down.

28. Lawrence was arrested and taken into custody on 4 January 2022. Murray was arrested and taken into custody on 21 January 2022.  Both men have been in custody since that time.

Objective seriousness

29. A judge must; identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate given all the factors of the case:  Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. One of those factors is an assessment of the objective seriousness or gravity of the offending. It has been described as a critical component of the sentencing process. It has also been noted that attempts to locate seriousness on some hypothetical range of seriousness can be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33].

30. When assessing the objective seriousness of matters such as this, one looks to; the period of detention; the nature of the advantage sought; the circumstances of the detention; the motive; whether there was a real threat of violence; the nature of that threat; the presence of a weapon or otherwise; any anguish, discomfiture, violence, or harm inflicted. And, in matters where "in company" is an element and the aggravating circumstance, the force of numbers deployed against the victim.

31. Where the basis of an offender's liability is joint criminal enterprise, it is often difficult to draw a distinction between them. A Court may draw a distinction between roles ‑ for example, between the person who inflicts violence and the person who is present and at least, implicitly approves of it or between those who were part of the planning and preparation and those who were not: see [83] below.

32. Here, I accept, that the offence was random and opportunistic.  Two large men stood over an innocent.  The threats they made appeared real to him.  The threats were present throughout the whole of the incident, and the men reinforced what they said by their own behaviour.  As far as he was concerned, the threats could have been carried out.

33. The victim was a single male unfamiliar with the location. He was kept in his car and then, kept in a location he did not know while his property was taken, and successful efforts made to compromise his electronic security.  He was not able to seek help. 

34. No time period is specified in the agreed facts, but I can take judicial notice of the fact that it takes 30 minutes to drive from Wollongong to Appin ‑ I have lived in this town long enough to know that ‑ so the incident took between 30 minutes to an hour.

35. I do not accept the defence submission that the property taken was “insubstantial” ‑ to the contrary:  The loss of electronic devices, the compromising of credit cards and codes, the transfer of money while under detention all caused not‑insubstantial financial harm.

36. I accept the submission that there was absent some common aggravating features, including physical assault and that no weapon was produced. And the event appears to be spontaneous.

37. Offences pursuant to s 86(2) cover a very wide range of human behaviour. The prosecution submits this matter fell “within the middle of the range.” Murray accepted that assessment; Ms Skinner, for Lawrence said, “just below mid‑range.” To resolve the controversy, I accept and find that it fell objectively in the middle of what is a very broad range.

38. Many factors commonly found in such matters were absent. But there was emotional injury, as could be expected. And as the Victim Impact Statement makes clear, the harm is continuing.  The financial and practical loss involving time to replace cards, dealing with the fact that the offenders found his address and the threats that were made, and the infringement of his financial security, something we all hold precious, indicate how serious these matters should be regarded. 

39. Additionally, it should not be ignored that a person's freedom to do what they want was significantly compromised.  He was detained.  Each of the offenders know what it means to be detained because they have been arrested on many occasions.  They have been detained by lawful authority but here, there were no protections afforded the victim.  He was effectively helpless.

40. Those matters indicate how seriously I, on behalf of the community, view such offences.  All of those matters require that each of the offenders be removed from the community for a period; and that period must be measured in years.

Victim Impact

41. The Victim Impact Statement that I read to the Court only moments ago attests to the harm suffered by the victim as a direct result of the offence, including his psychological harm and economic loss.  I had no difficulty accepting what the victim set out in that statement.  The statement serves the very practical purpose of drawing to the offenders', the Court’s, and the community's attention the personal and economic harm caused by this crime. 

42. A person who describes himself as "happy" and "positive" now struggles at work; has had to move because of how uncomfortable he feels; was subject to an emotionally hard and scary experience, and that has led to continuing distrust of others.  Maturely, he hopes that the impact will fade over the years.

COVID

43. Each of the offenders will, and has during their remand periods, served their sentences, subject to COVID restrictions necessary to prevent the spread of the virus in gaols.  Those restrictions are relevant to sentence 

44. In her submissions, Ms Skinner, succinctly summarised the relevant factors:

1. Family and social visits are suspended, making conditions of incarceration more onerous;

2. There has been a cancellation of many rehabilitation programs;

3. Measures taken to deal with the pandemic add to hardship; and,

4. Gaol work is limited to essential tasks and the opportunity to engage in meaningful work in prison is reduced.

45. Not all of those factors apply equally to every prisoner and every gaol, and I have heard no specific evidence from either prisoner in this case.  In some gaols, work is available.  I have previously heard evidence from prisoners with very lengthy records that their time in gaol is harder now that it has never been before.  Judges do not ignore the lived experience of prisoners.  Judges should not ignore and do not ignore the additional hardship caused by pandemic measures.

Remorse

46. Each of the offenders professed to their report writers some remorse for what occurred.  Neither gave evidence.  I am sure, sober‑minded and looking at their future, including their future time in custody brought about because of what they did, they are sorry that these events occurred, and they may have some feelings for their victim. But they did not show those feelings at the relevant time.  In the absence of sworn evidence, I could not give any weight to second hand protestations of remorse.

Drug Use

47. Lawrence told his psychologist that at the time, he was affected by the drug, “ice.”  Drug use cannot and does not excuse the commission of the offence.  Given his longstanding substance abuse problem, it would not surprise me if Murray too were affected by a drug.  Drug use cannot excuse, and it cannot mitigate.  In fact, the fact that people were ‑ in Lawrence's case or in Murray's, might ‑ have been affected by an illicit drug makes them more unpredictable, more dangerous. 

48. Drug use so far as both offenders is concerned is however relevant to their history and my formulation of an appropriate sentence and it goes some way to explaining the impulsivity of what was done.

Criminal history

49. Both offenders have criminal histories of some length.  Both have spent most of their adult life going in and out of gaol.  Both have a variety of offences on their record.  Murray's is longer and he is older.  Obviously, they do not get the leniency generally afforded first offenders. Here, so far as both are concerned, their criminal history is relevant to determining the proper sentence.  In both cases, it indicates the offence was not an uncharacteristic aberration. 

50. Although they have never committed an offence of this nature before, the offending demonstrates continuing disobedience to the law.  Their criminal history cannot result in a sentence which is disproportionate to the gravity of what they did, but here, a more severe penalty is warranted; with additional focus on retribution, deterrence and protection being applied; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477.

Reliance of reports

51. Neither offender gave evidence.  Although one or two matters were put in dispute, as with many sentencing proceedings in this Court, there was no general joinder of issue between prosecution and offender.  In fact, the written submissions were almost in one when it came to relevant principles and the application of those principles.  I will refer to any disagreements shortly. 

52. There is no suggestion that asserted facts in the reports were controverted or would be subject to extensive cross‑examination if the report writer was called to give evidence.  In many cases ‑ in fact, most cases that come before the Court - calling and testing of background evidence is not required.  Reasonable minds can disagree about assessing weight from such reports, but the Evidence Act does not apply to these proceedings.  That does not mean that general principles for assessing evidence, both firsthand and second hand, are not relevant.

53. Here, with a couple of matters to which I will refer, I can find no reason to lessen the effect of the opinions given by the professional, psychologist, social workers and psychiatrist, who gave opinions based on history and their testing and experience. I will take into account that the reports were prepared by experts with clinical experience in their respective fields.  I must however, as the Director's submissions make clear, take care; if a conclusion is not soundly based on known facts or appears speculative, I cannot give it weight.  I will refer briefly to some of the aspects of Lawrence's psychologists report.

54. Turning now to the individual offenders:

The case for Murray

55. Born in 1981, Murray has an extensive criminal record.  He appeared in the Children's Court in 2000. He spent time in gaol in, 2002, 2003, 2004 to 2006, 2006 to 2009, 2010 to 2011, and for a period in 2014.  There was a period in custody in 2016, but the charges appear to have been dismissed.  He was back in gaol in 2017, 2019 and 2020. 

55. His offending covers a wide variety of offences including violence, driving and drugs.  He appeared before Judge O'Brien in 2020; there was a successful appeal, and his sentence was reduced.  He was released to parole on 24 November 2021.

56. One essential aspect of a grant of parole is a promise to be of good behaviour.  He broke that promise.  He did not actively engage with parole, and within exactly a month, he had committed this offence.  He was back in custody following his arrest on 21 January 2022. His balance of parole continues until April 2023.  The commission of an offence in breach of a promise to be of good behaviour while on conditional liberty is an aggravating feature.

57. Evidence about Murray from a psychosocial report of Ms Assaf from Legal Aid NSW and a report of a forensic psychiatrist, Dr Stephen Allnutt. 

58. Ms Assaf sets out a background that is uncontroversial and sad. As a young child, he was raised in a home where domestic violence, alcohol abuse and parental mental illness blighted his childhood.  His parenting was more characterised by their absence than anything else.  He was looked after by a loving but sadly ineffectual grandmother who, it would appear, had far too much on her plate to care properly for young Murray and many other children. 

59. As a child, and throughout his adult life, Murray has had to experience too many deaths of friends and close relatives.  With little control exercised over him and, it appears, a learning difficulty, he did not take to school. As the report details, he effectively “ran amuck.”

60. He took up the use and abuse of illicit drugs, methylamphetamine or ice in particular, when he was too young to make rational choices.  He has never been able to sustain a rehabilitation program. Although there have been periods of abstinence, he has continued to use drugs throughout his childhood and adult life.  There was a period around 2010 when family life and work enabled him to have some normalcy in his life, but that period was too brief. And even during that period, there were periods in custody and, as he admits, drug use.

61. In the preparation for these proceedings, he disclosed that he had been assaulted and sexually assaulted while in juvenile detention.  He reacted with anger at the detention system; as juvenile justice had failed to protect him.  Dr Allnutt sets out in some detail the impact of that offending on him. 

62. He told Ms Assaf he has "done gaol" all his life and he is used to it.  He has completed some courses, most recently the EQUIPS aggression course.  Ms Assaf notes:

"Mr Murray presented as co‑operative, reflective, accountable, coherent and insightful.  Mr Murray has repeatedly experienced powerlessness within his body, his relationships, his home environment, community and institutions of education and correction.  He has lived a lifetime of trauma and loss which has gradually eroded his semblance of self and his overall functioning.  Intergenerational trauma manifested in his parents' behaviour, an intimate relationship that saw Mr Murray and his siblings witness the horror of domestic violence.  His parents' alcohol and drug abuse, abandonment, absence and separation from his parents and the devastation of loss and the mental breakdown of his mother."

64. She goes on to expand on the impact of childhood trauma, suffering and neglect and how a person so affected could be desensitised as a child, making it easier for them to engage in a lifestyle of crime and addiction.  Those matters were exacerbated here by Murray’s early institutionalisation and lack of any real opportunity, including the failure of juvenile detention to protect him. Detention failed to break a cycle that has continued until today.  He has been institutionalised and given his age, record, and that history, is at high risk of recidivism, particularly soon after he returns to this community.  She believes he would benefit from trauma‑informed counselling, help with engaging in employment, engaging in a sense of community to help him regain his dignity.

65. Dr Allnutt’s report details the two incidents of abuse in juvenile detention.to which I have referred.  He says prior to that abuse, Murray’s childhood had been impacted on by; his dysfunctional family environment, separation, death, alcoholism, lack of contact, and exposure to violence.  Murray adopted a criminal lifestyle which, in turn, brings exposure to multiple violent episodes; time in gaol does that.  Dr Allnut notes recurrent incarcerations, relationship and marital difficulties, and the family deaths.  He notes the history of anti‑social lifestyle and anti‑social behaviour. 

66. While Murray can, while in gaol, engage in self‑care, he has long‑term difficulties with concentration and a learning disability that has persisted since he was a child. This has had an impact on his capacity to gain employment.  His anti‑social personality traits and history of offending mean that his prognosis is relatively poor.  He will need to engage in significant psychiatric and psychological treatment and engage in programs while in custody and in the community.  He requires regular psychological consultations and would benefit from consultation with a psychiatrist.  He needs treatment and assistance. He needs this help before he can start learning to lead a normal life in the community.

67. A sexual assault can have a profound and highly detrimental impact on a child.  Such impacts are relevant by way of mitigation in any sentencing proceedings.  The Court does not devalue the impact of the particular traumatic events detailed in the reports.  They help explain why; he engaged in anti‑social behaviour, was forever angry and took up the use and abuse of illicit drugs.  It might be said that such claims can be easily made, I am prepared to accept, on balance, the factual basis for the conclusions reached by Ms Assaf and Dr Allnutt. 

68. An offender who has the start in life that Murray did cannot be expected to bear equal moral responsibility with a person who had what might be termed a normal or advantaged upbringing.  Murray's background has left a mark and compromised his capacity to mature and learn from experience. Those effects do not diminish over time and should be given full weight.  Common humanity dictates that a person with the backgrounds and the problem with learning has fewer emotional resources to guide their behavioural decisions.  That does not mean that Murray is not responsible for what he did or bears no moral responsibility, but his background must be taken into account. He should not be treated in the same was as someone whose formative years were not so marred: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; R v Millwood [2012] NSWCCA 2 at [69].

69. The general response of the criminal law in matters such as this involves extending, as I will, a measure of leniency, but that leniency must be tempered by the need in any sentencing exercise for community protection. Unless an entrenched cycle of recidivism is broken Murray will be a danger to the community by the commission of further offences.

The case for Lawrence

70. Turning now to Lawrence. His mother wrote a letter to the Court. She says that while he has been in custody, she has been speaking to him every day on the phone. She noted that he has expressed his sorrow and he is having trouble dealing with his time in custody. She said that although he has used drugs in custody, very recently he has got onto the buprenorphine program and that, she says, is helping him because he is not looking for drugs on the inside and he is able to fight his cravings.

71. When he gets out of custody, she would love him to come home. His son's two-year-old lives with her. She promises to give him support. She has nine children in her home; and she will keep him busy. She will provide family and support to him.

72. Lawrence’s family history and background is set out in the report of Ms Edwige, a forensic psychologist. Lawrence is a Kamilaroi man, but he knows little about his father. He was born in 1992. He was raised by his mother and stepfather, to whom he is very close. He reports a happy family life without violence. He always had enough food, clothes, and support, but it would appear that when he was too young to make rational choices he would spend his time partying, going out and mixing with antisocial elements in the community in which he was raised.

73. Rather than accept the direction of his mother and stepfather, he would hang out with his mates, and it was not long before he was in juvenile detention. He spent time in juvenile detention in 2015, 2017. Once he started going into adult gaols, his time in the community has been limited. He has committed a number of serious criminal offences and custodial sentences were imposed upon him in 2015, 2017, 2019, 2020. He can get no comfort from this criminal record and the Veen principles also apply to him.

74. In her report Ms Edwige notes a number of adverse childhood experiences, which have impacted on his social and emotional wellbeing. They too attract the principles that I have referred to in relation to Murray. As Ms Skinner points out and as the Court of Criminal Appeal has pointed noted, disadvantage does not have to be “profound” to be taken into account: Hoskins v R [2021] NSWCCA 169 at [57]. It is not for me to grade matters of disadvantage on any scale. I simply take into account the subjective matters put before me and give them appropriate weight.

75. Here, his home life was not the disadvantage. It was the disadvantage in the environment he grew up in, which included juvenile detention, which helped form the man and set a pattern, which has continued. It means that he too has less moral culpability than the person whose background was not so formed.

76. Lawrence’s principal problem has been that, since he was too young to make ration choice, he has been using methylamphetamine. A combination of environment, criminal associates, illicit drug use, going in and out of goal has formed and transformed a shy and anxious young man, with little cultural connection, into a person who has few resources with which to cope in the community.

77. I do not undervalue the prosocial impact of his family, but sadly their influence has not prevented the commission of crimes on a regular basis. While I am sure that that his mother will provide a home for him and support for him, it is clear from the material before me that he needs more than that. He has a substance abuse disorder and Ms Edwige makes the very practical suggestion that he requires residential drug and alcohol rehabilitation.

78. She reports his willingness to engage with such rehabilitation. And, if he does engage, then he could meet his own personal goals; to look after his social and emotional wellbeing, get employment, get his daughter back, get a driver's licence and find a job. She proposes a treatment plan involving referral to residential drug and alcohol rehabilitation, continuing counselling, drug treatment, which he has thankfully commenced, intervention through Aboriginal men's groups and a mental health care plan and, hopefully, housing.

79. Where there is a difference between the prosecution and the defence is not about those matters, but about Ms Edwige's conclusions based upon a diagnosis of major depression. The evidence in relation to depression relates to primarily what I regard as reactive features to his being in custody once again.

80. Obviously, his background has had an impact on him, but I could not draw, from all the material before me, a conclusion that he has a depressive illness that had a significant impact on his offending or would have any significant impact upon his time in custody. I can give recognition to the fact that he is suffering depression while in custody. Who would not, given the conditions of custody that he has to suffer. And I reiterate, the background that he comes from has impacted on his life.

81. It is impossible from the report itself to go into or to postulate what the cause of his substance abuse disorder is. It appears, whatever the cause, that it has had a significant clinical impact on his behavioural state and his offending. And, for the reasons I have outlined, that does mitigate his sentence, as does his background.

Parity

82. That there are two offenders for sentence raises the issue of parity between them.  Each sentence must be determined having regard to the circumstances of each of the co‑offenders and their respective degrees of culpability.  Like should be compared with like.  Different personal and criminal histories may justify a difference in the time each will serve in prison.  This principle is known as "parity".  Is a classic example of the need, so far as possible, to ensure equal justice.  The offenders were party to the same joint criminal enterprise, and each is equally liable.  That does not mean that each offender is sentenced on exactly the same basis, or that their individual actions had the same objective criminality.  As I indicated earlier, there can be reasons why one offender is less or more culpable than the others, but sentences must be proportionate.

83. I am prepared to find that here, there was some limited significance in Murray taking a more aggressive role and appearing to be the leader.  However, this finding does not significantly diminish the criminality of Lawrence, because he was prepared to and continued to act with Murray, and independently. 

84. Each offender was on parole, although at different stages.

85. Murray is older; he has been in gaol for longer; he has more matters on his record. 

86. Lawrence had a better and more stable family and did not suffer the same level of childhood deprivation or the specific sexual trauma noted In Murray’s reports, but deprivation was still present ‑ if not in the home, in the community environment he grew up, including juvenile detention.  These similarities and differences must be taken into account and in many ways, even each other out. But I agree with the Ms Skinner’s submission that a marginally lesser sentence should be imposed on Lawrence.

Submissions

87. Ms Walshe for the Director of Public Prosecutions, Mr Ashby, for Murray, and Ms Skinner for Lawrence provided helpful written submissions to the Court.  They do not differ significantly on matters of principle.

88. There were some points of difference between Lawrence and the prosecution.  I have determined that this matter is mid‑range rather than just below; so far as any judge can speculate as to a range. I have rejected the submission that no substantial harm was caused by the property loss, because of the breach of financial security and the value of the nature of the goods taken.  I have made a finding so far as the application of Veen (no 2) is concerned. I have dealt with, I hope, the particular problems raised by the Crown in relation to some of Ms Edgewise conclusions regarding Lawrence.

89. It is submitted and accepted, although for different reasons, that the longer each offender is supervised and assisted in the community, the safer the community will be.  Both offenders have been institutionalised. If possible, the cycle needs to be broken. 

90. So far as both men are concerned, their current trajectory is downward.  Murray is at high risk of recidivism no matter what occurs.  He needs to break his connection with the Illawarra.  He has a home in Western Sydney available to him, but considerable work will need to be done by him both in custody in preparation for release and when he is released if he is to avoid re‑offending.

91. Lawrence has indicated that he will take up opportunities, particularly long‑term drug rehabilitation but if he does not get those opportunities, his prognosis is not good. 

92. I note that studies from the Bureau of Crime Statistics have shown that people who get supervised parole are less likely to offend and are less likely to offend more seriously: Parole Supervision and Re-offending: Wai-Yin Wan, S Poynton, G van Doorn and D Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.

93. I will make findings of special circumstances and increase the period of time each could be supervised in the community.  My finding of special circumstances also takes into account the partial accumulation of this sentence on the balance of parole; which will be longer in Murray’s case.

94. I still am mindful of the requirement that the minimum period each man must spend in prison must properly reflect the purposes of sentencing and the gravity of their offending. 

95. Each offender will need to earn his release and for both, plans must be put in place.  I will have the reports sent with the warrants. 

96. It needs to be understood that not only must programs be put in place, but each of the offenders must demonstrate during their time in custody that they will comply with those requirements.  Each has previously breached the trust that this Court showed in them, and past behaviour is an indication of future behaviour.  When they are released to parole, if they breach that trust again, the Courts will be even more reluctant to extend leniency to them. 

97. The community and the offenders should understand that the State Parole Authority will not make a parole order unless it is satisfied it is in the interests of the safety of the community; s135 Crimes (Administration of Sentences) Act 1999.

Synthesis

98. Both men committed a serious offence against an individual who was doing them no harm.  Both took away his liberty and took away his property.  They left him emotionally scarred and financially disadvantaged.  They did so spontaneously, without thought for him or thought about the consequences for themselves.  If they had thought, it would have been obvious they were going to get caught; and they were going to go back to gaol.  The threat of future gaol did not even occur to them. Each offender has spent too long in custody. Each has spent both their teenage years and their adult lives coming in and out of gaol.  Gaol has not deterred them ‑ at best, it has removed them from the community for periods. 

99. Murray is getting to be an old man and he could spend the rest of his life in custody.  That future could be Lawrence's unless he takes opportunities; and he will have to make his own opportunities. 

100. The seriousness of what each did is reflected in the facts and the matters that I have outlined.  It requires they be removed from the community again, and for a period of years. But both must be returned to the community and if the cycle can be broken then we will all be better off.

Orders - Murray

101. I will deal with Mr Murray first.  The orders that I make reflect a finding of special circumstances and a reduction in the otherwise appropriate sentence of 25% for the utilitarian value of the guilty pela. The sentence takes into account the Form 1 matters.

102. Mr Murray was given an opportunity by this Court by his release to parole.  He did not take it.  He offended before any programs could be put in place; as he had done before so often in his past.  There must be some additional time in custody for the breach of parole. I propose to start his sentence four months after he was arrested. The sentence will start on 21 May 2022.

103. The term of the sentence is four years and six months. The formal orders are:

There will be a non‑parole period of two years and eight months. It will commence on 22 May 2022, making you eligible for consideration for parole on 20 January 2025.  The parole date:  20 January 2025.  The balance of term of one year, ten months starts on 21 January 2025 to 20 November 2026. 

Orders - Lawrence

104. Mr Lawrence, you too breached your parole. I propose to start your sentence one month into that balance of parole period, which is 4 February 2021.

105. The term of your sentence is four years and three months.

106. The formal orders are:

There will be a non-parole period of two years and eight months. It will commence on 4 February 2022 making you eligible for consideration for release to parole on 3 October 2024. The balance of the term of one year and seven months commences on 4 October 2024 and expires 3 May 2026.

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Decision last updated: 28 March 2023