R v M W

[2010] NSWDC 13

CITATION:	R v M W [2010] NSWDC 13
HEARING DATE(S):	15/01/2010
EX TEMPORE JUDGMENT DATE:	15 January 2010
JUDGMENT OF:	Williams DCJ
DECISION:	The orders that I make are that he is convicted. He is sentenced to three years and three months imprisonment with a one year and nine month minimum term. That is to date from 17 November 2009 and he is eligible for release on parole on 16 August 2011. The total term will expire on 16 February 2013. I certainly recommend that he be subject to guidance and direction by the Probation and Parole Service on his release and that he would be allowed to participate in an appropriate pre-release program.
CATCHWORDS:	SENTENCE-aggravated robbery with wounding-deprived aboriginal background-young offender-parity with co-offender.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
PARTIES:	Regina M W
FILE NUMBER(S):	2007/11/0304
SOLICITORS:	Mr O'Connor (Crown) Ms Davies (Offender)

HIS HONOUR: In this matter MW has pleaded guilty to an offence contrary to s 96 of the Crimes Act of aggravated robbery with wounding, the maximum penalty for which is twenty-five years imprisonment.

2. M W was born on 16 June 1988 and he was thus aged seventeen at the date of the offence and a juvenile. There is an agreed statement of facts, together with some photographic material. There is a medical report and photographs of the victim. There is a custodial history and an up to date criminal history. There is remarks on sentencing of Her Honour Judge Ainslie-Wallace in respect of a co-offender called McHughes, although he was charged with a different offence and I will come to that in a moment. There is a victim impact statement, a report from Juvenile Justice, although regrettably, whilst it is undated, appears to have been provided for September 2007 and whilst an updated report has been requested, for inexplicable reasons, it is not available today. I also have a very detailed report from Dr Seidler a psychologist as part of exhibit 1 and a handwritten letter from M W who has also given evidence before me and is supported by his partner and their young child of four months, his case worker and his auntie. His mum was not able to attend court today as she lives a fairly long way away.

3. The circumstances of the offence are set out in the agreed statement of facts. The relevant considerations are that on 8 February 2006, the victim was going to work in the early hours of the morning at Stanmore Railway Station. He went onto the platform where his train was due to depart at five minutes past five am. While he was waiting there a group of males had also come onto the platform. One of them approached him and asked could he spare a cigarette. The facts say that he replied “No, I do not smoke” although it has been said today by M W in evidence that other expletives were used as well as racial language.

4. That male walked away and then came back asking for two dollars to buy a drink to which the victim said “No.” The male walked away again and joined up with M W and another four males. A short time later M W and another young person approached the victim. The young person said “You better give me your wallet now.” The victim said “You are kidding, no way.” At that point the other male struck the victim with a rock. M W punched the victim in the head and then M W and the other male continued to physically assault the victim. The other three males from the group joined in the attack, striking the victim to the head and body. The offender picked up a rock and threatened to strike the victim with it. His mobile phone and wallet were taken and then they decamped.

5. Police attended. The victim was taken to RPAH where he sustained a laceration to the right forehead requiring stitches, bruising and swelling to the left hand cheek, a laceration to the left hand side of the mouth requiring stitches, bruising of the left hand shoulder collar bone and pain to the neck area. On 11 November M W was arrested. He participated in an interview and provided information which led to the arrest another offender who has been dealt with. The Crown has indicated that without his information that person would not have been arrested. The names of the other persons involved were also given to the police but they have not been pursued any further.

6. The victim impact statement is quite a detailed one. I again do not propose to go into it but it simply indicates that as a result of this violent assault the victim’s life was significantly changed. Apart from the injuries that he sustained he has had problems going out by himself in the dark, a relationship that he was in has ended because of his mood changes and he had to leave the place where he and his partner were renting because she moved out and he could not afford the cost alone. I have not doubt that the experience must have been a very frightening one for him.

7. As I said, there is a Juvenile Justice report, it is two years old or more. In any event, M W advised that the facts were accurate although he also said that he did not hit the victim. He reports on the night of the offence he had been drinking with friends, consumed about three or four bottles of bourbon between five people and smoked cannabis as well. He said that he had been well prior to having a drink with his friends and expressed remorse for his behaviour and the impact his actions had on the victim, both emotionally and physically. I might indicate that as the date of his offending he had only a very minor criminal record, I think it was a matter of goods in custody, whereas the co-offender who has been sentenced had a significantly more serious record.

8. He lived with his mother, stepfather and younger brother in Goodooga for most of his life. He has extended family members there. His mother had a nervous breakdown in 2005 and they came to Sydney. He broke up with his then girlfriend and joining his family in Sydney and residing in different crisis accommodation. Eventually, due to limited problems with housing they returned to Goodooga or the family did and he remained in Sydney. He resided in MacSilva House for twelve months in 2006 but went back in January 2007 to Goodooga to be with the family. There are no issues with his stay at MacSilva House and at least in 2007 they were willing to have him back.

9. He told the Juvenile Justice officer that his long term goal was to move to Alice Springs and learn traditional Aboriginal dance. He has an auntie and cousin living in the area. He was working prior to going into custody in 2007. He was working full time for a demolition company. He attempted Year 9 at Goodooga Central School but left before completing the year. He said that prior to committing the offence he had been attempting to distance himself from negative peers and alcohol. He had a keen interest in rugby league and had been playing for Moore Park Rugby League Club and training twice a week. Although he apparently has or may have a heart condition from when he was much younger, he is not getting any ongoing medical attention. He also reported suffering from episodes of depression.

10. The Juvenile Justice report says he received an eighteen month good behaviour bond on 23 May 2007 for a malicious damage matter, although that certainly does not appear in his record but it was also said that he was compliant with supervision and engaged well with the process.

11. He also self referred to the South Sydney Youth Services and staff there report that he engaged well with counselling and there were no behavioural issues with him. They are also willing to re-engage with him on his release. He was assessed as being a quiet and shy young person, displaying appropriate manners and respect for those in authority. His mother’s mental health and instability have had a significant impact on him. Together with his own issues of depression, drug and alcohol issues have affected his development through adolescence. He has made progress in securing employment, entering sporting activities and has co-operated with the Department.

12. I might indicate that there was not a plea at the first available opportunity in this matter but eventually there was, I am been told, at the third mention date after arraignment. When the matter was listed for sentence in 2007 he failed to appear and he has given evidence as to why that occurred today. I do not think anything particular turns on that except of course that it has delayed his sentencing in this matter for that period of time and there have been some intervening offences. Prior to this matter he had a very minor offence of goods in custody. In June 2007 there was an assault occasioning actual bodily harm for which a warrant was issued and that was dealt in January this year and he was sentenced to twelve months imprisonment with a non parole period of four months to date from 17 October 2009.

13. It appears from the material that I have been provided with that he probably was in custody, bail refused on that matter, between 22 June 2007 and 14 September 2007 although that is not completely certain. As I said, he has written a letter to the Court in which he has expressed many of the things that he has also given evidence about and I see no reasons not to accept what he has said to me.

14. Dr Seidler has provided a very detailed report and it is not going to be very productive to go through all the details of that. But again, her report is dated 2007, so it has to be read bearing in mind that it is now 2010. When she saw him though he was in custody as was M W’s father except that he was in protective custody. When MW went into custody, he asked if he could be in the same centre with his father, failing to understand this would necessitate him also being classified as a protection inmate thus seriously impacting on his time in custody. She confirms his interest in rugby, the various jobs he has held and the diagnosis at seven or eight, of a weak heart which although he does not take any particular medication for, he gets breathless when exercising. He has also suffered from some injuries at football.

15. He told her that he first began to use alcohol at around age sixteen, recognising his consumption as being problematic. He used cannabis at age thirteen and that escalated to a significant daily amount. He smoked heroin for a short period but discontinued that and he told her that his main problem in terms of substance abuse was cannabis. As to the offence he said he was under the influence of alcohol and cannabis. He was also in the company of delinquent peers and he felt an expressed need to fit in. He described his offending behaviour as being in retaliation for a perceived racist comment and he expressed some, albeit superficial, empathy for the victim in this matter. It is noted however, that M W’s ability to “perspective take”, whatever that means, a skill necessary in the development of empathy would be compromised both by his developmental history and limited cognitive functioning as will be discussed later in the report.

16. Well I think that situation has changed somewhat and as I said, I accept his expressed sorrow and empathy for the victim today. He has never had any mental health counselling, although, recently he saw a psychologist at the gaol with a view to dealing with his drug and alcohol problems. He also has applied for various educated courses but after his application went in they went on the presumably summer vacation.

17. She undertook a number of or asked him to undertake a number of psychological tests. His general intelligence was assessed at borderline, his literacy only just above the level generally accepted as necessary for community survival and literacy. As a result of a number of other tests she felt that he was someone who finds it hard to plan and reason and that he was probably reactive and impulsive a lot of the time.

18. At page 7 she says,

“M W is a low functioning person cognitively with a history of academic failure. Further to this, he has led an unstable and an itinerant lifestyle at least in recent years to which he has been exposed to negative and antisocial peer influence as well as illicit drug use. While M W enjoys the ongoing support of his family his community routine and social connections would have facilitated his personal instability and involvement in antisocial activity. As such, M W’s offending behaviour is best understood as a function of the impulsive and poor decision making of a low functioning and under socialised person who was under the influence of both illicit drugs and alcohol and susceptible to negative peer influence.”

19. She felt that he would benefit from intervention and support in order to address his needs and ameliorate his risk to the community, particularly in regard to problematic alcohol and cannabis use and dependence which so far was untreated. He also has considerable social needs with respect to education, training and support, in addition to social support in the community.

20. She said it is in the community that he will require most assistance and support, especially as his social and family network in some ways are likely to be a negative influence on him. In summary, she says, he is a young man who has faced significant adversity. He has had little experience of positive community living and a few resources to draw on in order to achieve a stable and pro-social community routine. He requires intensive programming and support, most particularly, as he transitions back to the community where he will be most at risk.

21. In that regard, the birth of his child four months ago and his relationship with his partner has effected a significant change on him. He has reduced his alcohol and marijuana intake, first because he wants to spend the money previously spent on marijuana on his child and his partner and second because again he wants to be with his partner who does not want him behaving in that way. He said that since he has been in custody and drug and alcohol free, his head is a lot clearer and he is not planning to go back to drinking and using marijuana. He wants to try and get his Year 10 certificate and see if he can find reasonable work.

22. There is no doubt that this is a serious offence that has been recognised by Ms Davids for M W and the Crown. The offence was committed in company. The injuries sustained by the victim, whilst not severe, were certainly not minor. I accept that it does not appear to have been planned and there was some degree of provocation, although, he has agreed that if something similar to that occurs again he would not react in that way. I guess unfortunately, some members of our society are always going to react in that way or speak in that derogative way, of Aboriginal people and that unfortunately is not going to change significantly.

23. He has reasonable prospects of rehabilitation. He seems to be well motivated, particularly now that he has a family. He has provided assistance to the police and he co-operated with the police when he was arrested. I accept that he is remorseful. I accept that given his background and lack of intellectual skills together with the amount of alcohol and marijuana that he was consuming, he was not fully aware of the consequences of his behaviour, although he must have realised that it was quite inappropriate given the injuries sustained.

24. I accept that he was not the instigator of the event nor was the person who I am presuming was the person who has been sentenced by her Honour. The Crown does not object to me finding special circumstances, having regard to the fact that he was a juvenile when the offence was committed. It is his first time in custody and in addition, it is apparent from the two reports that I have read from that he needs a great deal of assistance to help him back into the community over a relatively long period of time. Whilst parity strictly does not apply between M W and his co-offender the co-offender’s sentence is a starting point at least in this matter.

25. As I said, the co-offender had in my view more significant criminal history of break and enters and was on a s12 bond of the Crimes (Sentencing Procedure) Act 1999 (NSW), that is, a suspended sentence at the time of the offence. Their backgrounds appear to be similar, in as far as they were both brought up substantially in Aboriginal communities (the co-offender from at Brewarrina) but whereas the co-offender was brought up in a relatively stable family life, that was not the situation as far as M W was concerned.

26. There is also a significant difference in that the offence that the co-offender Mr McHughes was charged with was malicious wounding in company which carries a maximum penalty of ten years imprisonment and the factual distinction that was made in his matter was that it was not suggested that he knew or was aware of the fact that the victim was going to be and was in fact robbed.

27. Some of the things that her Honour referred to in her judgment are probably worth repeating. As her Honour said the assault on the victim was very serious and it took place early in the morning when the victim was on his way to work. It was unprovoked and must have been very frightening. The victim had significant injuries which required attention in hospital. One of the offenders carried a rock which he used to hit the victim. However, her Honour said in regard to Mr McHughes that he was not an appropriate vehicle for general deterrence as other more able offenders. He was young and issues of rehabilitation were important. The issue of rehabilitation was difficult given his mental illness, drug use and developmental delay which appear to be intertwined and which means that he needed as much help as could be got together for him.

28. “This young man who was born and lived in Brewarrina, a community with a small population where drink and drug taking is ripe is relevant to explain his resort to drugs and alcohol and that the Courts have recognised the endemic nature of drugs and alcohol in Aboriginal communities.” Her Honour imposed a non parole period of fifteen months and a parole period of one year and nine months.

29. As the Crown has pointed out this is a more serious offence and a more serious penalty will have to be applied to M W. I am prepared to make a discount for his assistance and together with the plea of guilty and the assistance I am going to discount the appropriate penalty by thirty-five percent. The Crown suggested a fifteen percent discount for a plea of guilty and special circumstances are not disputed.

30. The orders that I make are that he is convicted. He is sentenced to three years and three months imprisonment with a one year and nine month minimum term. That is to date from 17 November 2009 and he is eligible for release on parole on 16 August 2011. The total term will expire on 16 February 2013. I certainly recommend that he be subject to guidance and direction by the Probation and Parole Service on his release and that he would be allowed to participate in an appropriate pre-release program.

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