R v Lettice, David

[2007] NSWDC 373

CITATION:	R v Lettice, David [2007] NSWDC 373
JUDGMENT DATE:	17 August 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted - sentenced 9 months imprisonment - suspended conditional upon entering good behaviour bond.
CATCHWORDS:	Criminal Law - Sentencing - Steal from person - compelling victim to withdraw money via ATM - return of some proceeds to victim - taking victim to safe house - breach of several good behaviour bonds - 26 year old Aboriginal offender - limited skills and personal resources - suspended sentence.
PARTIES:	Regina David Lettice
FILE NUMBER(S):	2007/31/0040

JUDGMENT

1. On 26 April 2007 David Lettice was arraigned at the Moree District Court on two charges. The first being that on 27 October 2006 at Narrabri and being in company with persons unknown he robbed Aaron Newton of his property, namely a sum of money. In the alternate he was charged that on 27 October 2006 at Narrabri he stole a sum of money from the person of Aaron Newton. These were two different events. He pleaded not guilty to the first matter and in the alternate guilty to the second. The Crown accepted that plea in full satisfaction of the indictment. The stealing amounted to sixty dollars from one Aaron Newton. The Crown’s acceptance of that plea in full satisfaction of the indictment means that David Lettice must be presumed to be innocent of the charge of robbery in company. Certainly these sentencing proceedings proceed upon that assumption.

2. The task of the Court is to resolve a number of competing tensions to determine the appropriate sentence for this offender for this offence in the community in which he lives. The task of a sentencing judge requires him to determine the objective criminality of the offence before the Court and to assess matters personal to the offender, which may impact upon the sentencing outcome. Once one has the facts of the matter before the Court, it is appropriate to assess what is called the objective criminality, and in that way this offence can be gauged against other offences of a similar kind.

3. The starting point really is to determine the facts. In this case an agreed statement of facts has been tendered and that has been supplemented by some evidence given by the offender. The agreed statement of facts then is not the only source of material that the judge has for the making of findings of fact. I am entitled to rely on other material before me to make the findings of fact that I will make. However, the agreed statement of facts usefully sets out the circumstances of the offence.

4. Aaron Newton is a twenty-one year old person suffering from an intellectual disability. The seriousness or significance of that intellectual disability is not ventilated in evidence before me, but it is of significance that it is noticeable. On the evening of 26 October 2006 Aaron Newton was at the Tourist Hotel in Narrabri where he consumed six or seven beers and watched karaoke. In the early hours of the following morning, that is at 2.40 am, he left the hotel with a view to walking to a friend’s place. As he walked over one of the local bridges, a male who is described by the name “Bob”, approached him asking him for a cigarette.

5. When Aaron Newton turned around he saw about five males standing around him. David Lettice was nearby. An unknown white male, punched Aaron to the head, justifying that because he had called the man Bob “a black cunt”. That is to say, on the basis he had earlier made a racist comment. The man Bob and another described as “George” demanded his wallet and took five dollars and fifty cents and some cigarettes from him. That is the robbery that was the first charge in the indictment, to which David Lettice pleaded not guilty. The two men Bob and George together with David Lettice walked with Aaron Newton in the direction of the credit union. They stopped at the Club House Hotel and Lettice told Newton to wash the blood from his face. He did so.

6. I have omitted to mention how that exercise began. After the wallet had been taken Bob and George asked if he had money in the bank. Newton said he did. Those two men then said, “We are going to get your money or we’re going to take you down the river and keep bashing you.” It was at this point that the offender appears to join the group. As I say, one of the first acts of the offender in joining the group was to invite Newton to wash the blood from his face.

7. The offender walked with Newton to the credit union to “get money out for the boys”. The agreed facts say that others may have been following along behind. Given that they are later nearby, I am satisfied they were following along behind. When Lettice and Newton arrived at the credit union, Lettice told the other to get a balance check. Newton did so. That balance was seventy-five dollars. The offender told Newton to take out sixty from his account. This he did and gave the money to the offender, who, at that time, was waiting around the corner from the credit union. That act constitutes the crime with which I am dealing, that is the stealing from the person.

8. David Lettice then walked the victim to a friend’s place, that is a friend of his, and during so he introduced himself to the victim as “John”. Other youths or young men were still following. Lettice woke up another man, whose name is simply described as “Wal”, went into his house, told Wal that Aaron Newton had got himself into a bit of trouble and needed help. Wal observed that the victim was injured, bleeding and very quiet. It was thought that he was in shock. They stayed at Wal’s place for three quarters of an hour. During that time the offender gave twenty dollars of the original sixty back to the victim. There was noise outside made by the “boys”. The offender offered to walk Newton to his (Newton’s) friend’s place, but Wal said that he would drive Newton there. That is what eventually happened.

9. When he arrived at his friend’s place Newton complained and the police were notified. They spoke to Aaron Newton. He was taken to Narrabri Hospital. Police observed swelling to the left side of his jaw and a split lip. There was blood on his shirt. It is, as I say, not suggested that Lettice was in any way responsible for any of these injuries.

10. On 30 October 2006 as a result of police receiving information, from Wal it would seem, lettice attended the police station and participated in an interview. He was entered into custody, although curiously he was not arrested - I have some difficulty understanding that concept - but was released after the ERISP.

11. On 9 November police attended 16 Hind Street and spoke to someone in respect of this matter, and the offender, who was there, was asked to wait and finish his coffee. He was then arrested and charged.

12. The agreed facts make it clear that David Lettice was not violent towards the victim, took no part in the initial assault and no suggestion that he ever directly threatened the victim.

13. Lettice’s account is that he passed the forty dollars onto the co-offenders making no profit for himself. He says he intervened because he saw Aaron Newton was bleeding as a result of injuries inflicted by other men and decided “to do their dirty work for them” so that he (Lettice) would not be assaulted. My view is that this account seeks to minimise the offender’s involvement. I am satisfied he asserted himself to take Aaron Newton to the credit union. In what circumstances that occurred I am unable to say. As I say, it does not appear the Crown can prove he was in company with those who assaulted Aaron Newton and robbed Newton on the night.

14. I note that once Aaron Newton was being “managed” by David Lettice no further injury came to him. David Lettice appears to have remained with him and took him to someone who was able to assist him. I am satisfied that the placing of Aaron Newton with the man Wal effectively ended the criminal conduct towards Newton. I am satisfied that that was David Lettice’s purpose in bringing Aaron Newton to the man Wal.

15. I am satisfied the selection of sixty dollars against a seventy-five dollar total account and the return of twenty dollars to Aaron Newton was done by the offender with a view to minimising the victim’s loss. It was put by Mr Crown in cross-examination that it was done in the hope that Newton would not complain. That certainly cannot be ruled out, although Lettice seemed to say that was not so. It cannot be ruled out as a motive, but one can have more than one motive for doing an act.

16. I am satisfied that at the time of the offending David Lettice was affected, probably reasonably well affected, by alcohol. At the time of the offending David Lettice was on several s 9 bonds of twelve months and two years. They have been itemised for me today and I think I counted eight. The fact that offences of this kind were committed in circumstances where this offender had given an undertaking to a court to be of good behaviour and then did not keep his undertaking aggravates the criminality of these offences. I stress that because it would be known now as a result of earlier discussion that I intend to impose a sentence but to suspend it on the condition that the offender be of good behaviour. He must understand that the law allows me very little latitude in the event that he breaches a s 12 bond as distinct from a s 9 bond. So that what will happen today in respect of the s 9 bonds will not happen in respect of the s 12 bond I am about to give if there is any offending in the following nine months.

The objective criminality

17. There are some features of this steal from the person that put it in a very unusual category. True, the starting point is to recognise stealing as a crime against the property rights of another person. It constitutes an illegal transference of possession - in this case sixty dollars - against the will of its owner without anything being given in exchange and without the taker having any right to the property of the victim.

18. In this case it is agreed the victim was intellectually disabled. Humanity is nothing if we do not look after our weaker brethren. But from a lawyer’s point of view, criminality is greater when we commit crimes against our more vulnerable fellow man. Aaron Newton was a vulnerable victim because of his intellectual disability. Also, because of the quantity of alcohol he had consumed that night he was doubly vulnerable.

19. Another unusual feature of this offence is the selection of sixty dollars when more was available and a subsequent return of twenty dollars after the stealing had been completed. It seems unusual that once in David Lettice’s company Aaron Newton is kept away from the other males who had earlier robbed him, even though they maintained an ongoing interest in Aaron Newton, until after he had arrived at Wal’s house. The sum taken was sixty dollars. As I say, subsequently twenty dollars was returned. As larcenies go the amount of sixty dollars is to be regarded as small. The offence was not planned. I cannot even be satisfied that the concept or idea came from David Lettice. I am satisfied he was present or nearby when the money was delivered by the ATM machine. This steal from the person, standing in isolation from the robbery that occurred earlier, must be regarded as at the low end of criminality for offences of this kind.

Subjective features

20. Aaron Newton was born on 6 January 1982. He was twenty-four years old at the time of the offence and has recently turned twenty-five.

Family and social background

21. The offender lives with his mother in Narrabri. Arrangements are, his maternal grandfather also lives in Narrabri and arrangements are being made for him to become the full-time live-in carer for his grandfather. Evidence has been placed before me today of him receiving carer payments ranging from $525 less debt repayments of $73.60 to, as I understand it, the State Debt Recovery Office and another payment of $42.21. The next-door neighbour to John Condran (David Lettice’s grandfather), has written to the court. He tells me that Mr Condran suffered a stroke losing use of his right arm, memory loss and recovering from a major operation of prostate cancer. Mr Kerr tells me that Condran has not been well. I am told that housing suitable for Mr Condran is in the process of being organised in Narrabri.

22. The offender has a daughter who is aged three who lives with her mother at Mount Druitt. He told me in evidence that he frequently comes to Mount Druitt to see his daughter and I accept that he is a loving and caring father. As I say, he lives with his mother in Narrabri, as I understand it. I note that there are support persons for him in court today.

Education skills and employment

23. I do not appear to have much information about the offender’s education. He was educated to Year 10 at Narrabri High School and left there at the age of sixteen years. He would appear to me to be either of average or just below average intelligence. He does not appear to have any working skills but has worked as a labourer and in semi-skilled work. At the time of the hearing he had been doing part-time work as a farm hand. I am told now he has been doing some work with, I guess it would be the CDEP, and some volunteer work for his grandfather’s neighbour. Mr Kerr, whose reference I referred to earlier, says that he has been approached by Lettice to do voluntary work within the units where Mr Kerr lives, that is Kilarnary Pensioners’ Units at Narrabri, and as a demonstration of his apparent good faith he had assisted Mr Kerr moving around some large items, such as a fridge, for the purposes of cleaning and had cleaned a number of windows. The Probation and Parole report remarks that since his release last year he has actively sought employment, but without a current driver’s licence that had been limited. Now it would appear that he has, through regular repayments to the State Debt Recovery Office, reached a point, that is six payments, where he is able to make an application to the RTA to have his licence reissued to him. He has attended a driver’s licence recovery course. He has obtained a certificate in conservation and land management through TAFE in December 2006. Significantly those are important things he has done to advance his rehabilitation.

24. The other thing that has impressed me is he has participated through the football season for one of the local football teams known as the Narrabri Blues. I have a letter, which has been handed up to me today, from the coach of that team indicating that he has played in both first grade and reserve. The vice president of the club writes:

“David has been an active team member who has helped out whenever required”.

25. His commitment can be illustrated by the fact that he was the third first grade player to register. In the six- month period that Mr Russ has known and had contact with the offender, Mr Russ has found the offender to be courteous and a willing member and committed to the team. Significantly he has been regular at training and at games.

General Health

26. As far as I can tell from physical appearances and of course from the fact that he is playing football, I have accepted that he is in good physical health. There is nothing before me in respect of his mental health and I can only assume that there are no mental health issues that are facing him.

Attitude to the Offence

27. I am satisfied that he is contrite. He gave evidence of having apologised to the victim when he saw him in the street after the offences. I am satisfied that his return of the twenty dollars was also motivated in part by his regret for his actions. His plea of guilty indicates that he accepts responsibility for his actions and I think he is also motivated by contrition.

Character and Antecedents

28. This is an area where these sentencing proceedings have some difficulty because Mr Lettice is continually before the courts. In the normal course of events that would not add to the penalty but what it would do is deprive him of any leniency. The measure of his offending is, as I say, that there are eight bonds to be of good behaviour. Many of the offences are driving offences. There are some domestic violence type offences but that relationship in which it occurred has now finished, and I suspect that a number of the property damage offences were related to a burst of domestic violence. There are alcohol related offences, such as resist police, offensive language and quite possibly the malicious damage to property, both in the domestic violence setting, and perhaps out of it, are also related to alcohol.

29. So far as I can tell, and I stand to be corrected, none of his offending has been dealt with initially in the District Court before this one. He has, of course, been to the District Court on Local Court appeals; but so far as I can tell this is his first time in the District Court.

30. One of the reasons that I have determined upon the sentencing outcome that I have come to is, firstly, that he did spend a little time in custody, that is a month, but, secondly, since his release from custody he appears to have made special efforts to rehabilitate. I am going to, as I say, put him on a suspended sentence for nine months. If his rehabilitation continues he really has nothing to fear from a suspended sentence. If, on the other hand, his rehabilitation does not continue he will end up going to gaol for the nine months of the suspended sentence.

31. In other words, the suspended sentence has an aura of personal deterrence attached to it. He really is at risk of going to gaol in the event that he does not rehabilitate. He should understand that drinking is a huge risk taking, in terms of whether he will offend or not. This offence occurred at a time when he was under the influence of alcohol. I have pointed to other offences in his record that have occurred when he was impacted by alcohol. He should take very careful consideration as to whether he wants to continue drinking and if so in what quantities during the next nine months.

32. Another factor that has caused me to suspend the sentence is his plea of guilty. In other words, there is no other discount other than the benefit, which accrues to him, taking into account those other matters, by virtue of the plea.

Formal Orders

33. Mr Lettice for the offence that you on 27 October 2006 at Narrabri stole sixty dollars from Aaron Newton you are convicted. For that offence I sentence you to nine months imprisonment. However, pursuant to s 12 of the Crimes (Sentencing Procedure) Act I suspend the sentence upon condition that you (1) be of good behaviour, (2) give your address to the Registry here, (3) if you do any criminal act in the next nine months you will come back before me or some other judge, most likely me, for sentence on this matter, and (4) accept supervision by Probation and Parole so that they can just keep an oversight on you and help you. It is a resource meant to help you. You may not like it but it is a resource that is designed to assist you.

Do you agree to those four conditions?

OFFENDER: I agree, your Honour.

HIS HONOUR: I sentence you to nine months imprisonment pursuant to s 12 of the Crimes (Sentencing Procedure) Act conditional upon you entering a bond to be of good behaviour with the conditions I have just described. The sentence will be suspended. The bond that you are required to enter into is a nine-month bond, which will commence today, 17 August 2007, and will expire on 16 May 2009.

34. I do not at this point in time propose to turn my mind to what the

non-parole period for that sentence should be. I reserve the right to myself or any other judge to do so in the event that you come before us at a later point in time.

You might explain that to him, Mr Johnston.

JOHNSON: I will.

HIS HONOUR: In respect of the nine bonds that you have breached, do you agree that you have breached them by this conduct?

OFFENDER: Yes, your Honour.

HIS HONOUR: In respect of those nine bonds, bearing in mind the nature and the circumstances in which they were given and the progress you have made in your rehabilitation since your release from prison, I will take no action on them. I order no action to be taken. That means the bonds will continue to run and any further offending within the timeframe of the bond will also count against you in respect of those matters.

Mr Crown?

HARDMAN: Your Honour said the term of the s 12 bond would expire on 16 May 2009, it should be 2008.

HIS HONOUR: 2008, thank you.

HARDMAN: Would your Honour consider making an order for compensation in the sum of $40 payable to Aaron Newton?

JOHNSON: We consent to that order.

HIS HONOUR: I will.

35. Mr Lettice, your return of twenty dollars was an honourable action but, of course, Mr Newton is still forty dollars out. I know your case is you gave that money to somebody else, but nonetheless you were the vehicle by which Mr Newton, the intellectually handicapped man, lost his forty dollars. So you must bear the responsibility of returning it to him. I am going to make sure that is done. I will not make it a condition of the bond, but I am empowered to make an order and I do that, that you compensate Mr Aaron Newton in the sum of forty dollars. I will give you twenty-eight days in which that is to be done. That is to say, by 15 September next you will have to have paid him. If you need more time you will need to approach the court.

I understand you have got other debts as well.

OFFENDER: Yes, your Honour.