R v McMaster

[2020] NSWDC 673

District Court

New South Wales

Medium Neutral Citation:

R v McMaster [2020] NSWDC 673

Hearing dates:

22 October 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 9 months

Catchwords:

CRIME — Violent offences — Armed robbery — Dangerous weapon

SENTENCING — Relevant factors on sentence — Form 1 offences

SENTENCING — Relevant factors on sentence — Maximum penalty

SENTENCING — Relevant factors on sentence — Multiple offences

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Relevant factors on sentence — Parole period

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Firearms Act 1996

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Markarian v R [2005] HCA 25

Muldrock v R [2011] HCA 39

R v Henry [1999] NSWCCA 107

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina (Crown)

Jordan McMaster (Offender)

Representation:

Shaun Croner (Crown)

Lynda Davids (counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Chandler Legal (Offender)

File Number(s):

2020/00029838

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Jordan McMaster appears today for sentence in respect of two offences.

2. The first of those is of being armed with a dangerous weapon, namely an airgun pistol, he assaulted with intent to rob, MLO. The offence is contrary to s 97(2) Crimes Act 1900 with a maximum penalty of imprisonment for 25 years. There is no standard non-parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

3. The second offence is of possessing the weapon used in the first offence. This item was an unauthorised pistol and therefore possessed in contravention of s 7(1) Firearms Act 1996 for which the maximum penalty is imprisonment of 14 years with a standard non-parole period of four years.

The Standard Non-Parole Period

4. The standard non‑parole period is a matter that must be brought to account when determining the appropriate sentence for the second of the offences. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 in their present form following the decision of the High Court of Australia in Muldrock v R [2011] HCA 39.

5. Section 54A(1) provides that the standard non-parole period for an offence as that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table, taking into account only the objective factors affecting the relative seriousness of the offence, that falls within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non‑parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.

6. Section 54B(3) requires the court to record its reasons for setting a non‑parole period that is longer or shorter, identifying factors taken into account.

7. The objective gravity of the offence will be assessed upon consideration of the objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing to account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics of the offence.

8. The fixing of the non-parole period is but part of the task whereby this Court determines what is the appropriate sentence for that offence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences.

9. The Court must not embark upon an arithmetical, staged, or tiered process of reasoning when assessing the appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed, for example, by McHugh J in Markarian v R [2005] HCA 25.

10. In the determination of a sentence for an offence for which there is a specified standard non‑parole period it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A, and 22 of the Act.

11. The provisions were considered by Johnson J in Tepania v R [2018] NSWCCA 247. The relevant part of his Honour's judgement is found beginning at para [110] where he summarised the provisions to which I have alluded, and then in para [111] dealt with the explanation given by the Attorney General at the time for the amendment to the provisions following the decision in the High Court. His Honour continued in para [112]:

“In sentencing for an offence (whether or not a standard non‑parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: …”.

12. His Honour went on to discuss the concept of moral culpability, the subject of discussion in various decisions to which his Honour referred, and then expanded further with reference to decisions dealing with offenders who suffered deprivation through their formative years. Such is not pertinent to the matter at hand, however the comments his Honour made with regard to emotional stress have some significance in this matter.

13. I accept that the circumstances of this offending arose consequential upon emotional stress that was afflicting the offender in the months preceding this conduct as I shall explain.

Form One Offences

14. He asks that I take into account, when I impose sentence for the firearms offence, additional offences. These are possession of 1.1 grams of cannabis leaf contrary to s 10(1) Drug Misuse and Trafficking Act 1985 for which the maximum penalty is two years imprisonment and a fine represented by 20 penalty units. There is an additional offence of not keep firearm safely brought in respect of the same weapon contrary to s 39(1)(a) Firearms Act 1996 for which the maximum penalty is imprisonment for two years and a fine represented by 50 penalty units, and there is a further offence of possessing means of disguising his face with intent to commit an indictable offence contrary to s 114(1)(c) Crimes Act 1900 for which the maximum penalty for a first offence, which this is, is imprisonment for seven years.

15. There is a question to my mind regarding that offence and the merits of the admission of guilt by the offender in relation to it. It is the fact that he had possession of this item, a balaclava; it is the fact that it could be used with intent to commit an indictable offence. I have heard what he has had to say about it. If it was a matter upon which he should be prosecuted and dealt with, notwithstanding, at worst the offence falls right at the bottom end of the range of objective seriousness in light of the purpose for which he had the item, as he explained in evidence and which I accept. Be that as it may, and notwithstanding my question regarding his liability for this offence, he said he was guilty of it, he asks that it be taken into account, and I intend to do so.

16. The Form 1 offences must impact upon the determination of sentence for the principal offence requiring a modest increase to the sentence that would otherwise have been imposed had the principal offence been left standing by itself.

17. I am familiar with the guideline judgement provided by Spigelman CJ and the principles there enunciated: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The significance of the additional offences is the extent to which they inform the need for consideration to be given to specific deterrence, how they reflect the offender’s entire misconduct, and the community’s entitlement to retribution for all of it.

18. This course has the advantage of avoiding separate punishment for those further offences but at the same time, he has provided utility in the course he took and he must be given benefit for that.

The Utility of the Pleas of Guilty

19. He pleaded guilty to these principal offences at an early point in the proceedings and in accordance with s 25D Crimes (Sentencing Procedure) Act 1999, he is entitled to a discount of 25% to the sentences that would otherwise have been imposed reflecting utility, to be applied to the indicative sentences reached on the synthesis of objective and subjective matters including what I find to be clear and compelling evidence of contrition, remorse, and at least good prospects for rehabilitation.

20. There is a qualification to that though. I agree in this regard with the submissions made by the Crown that the sincere representation by the offender that he will not return to his present predicament must be weighed against the unfortunate burden he has to carry through his bipolarity and the ease with which he fell under this spell of prohibited drugs in the form of cannabis and methylamphetamine.

21. Although I find him to be sincere in his expressions of desired rehabilitation, I am of the view that he will need more than his own efforts in pursuing that course if he is to achieve it entirely. I accept he is well motivated, and I accept that the reasons for his motivation are sound, but he does need at least some assistance to ensure that he does remain clear of the criminal justice system.

Pre-Sentence Custody

22. He has been in custody since he was arrested on 29 January 2020. The sentence I impose today, which will be an aggregate sentence, will commence on that date. The aggregate sentence will be arrived at upon an appropriate level of accumulation and concurrence between the indicative sentences which I shall announce in due course.

The Facts

23. This is an unusual case. Although it is a charge of assault with intent to rob whilst armed with a dangerous weapon, it is not the style of such offence with which the Court is often concerned.

24. He was born in 1995 and he is now 25 years of age.

25. On 25 January 2020, the victim and his daughter had been out in their boat, fishing. They returned home to Deepwater Road, Castle Cove about 5.30pm that day. After his daughter went inside, the victim connected the necessary apparatus to the leg on the boat (a picture of which I have been given in the Crown bundle, exhibit A) for the essential task of flushing saltwater from within the engine structure. It is, I say, an essential task. I had a boat of similar configuration myself at one point in my earlier life, and not to do so would ultimately cause extensive damage.

26. Whilst the victim was so engaged in what is clearly a lawful activity, the offender came upon him. He said something about water use to the victim as he stood on the footpath on the other side of the road from the victim. He then walked away in an easterly direction towards shops.

27. The victim continued with his work. He turned off the tap and was disconnecting the equipment from the motor when the offender returned, again on the other side of the road. He again said something about the victim and his water usage. The victim started to explain what he was doing and why he needed to flush the boat’s engine after having had it in salt water.

28. The offender crossed the road and walked toward the victim until he was about 3 metres away. The victim stepped back, but the offender continued toward him. The offender referred to a gold chain that was around the victim’s neck and said, “I like your chain; give it to me.” The victim replied, “I’m not going to give it to you.” The victim reached into a bag he was wearing around his waist and took out his phone to call the police. The offender gestured toward the phone and said, “Give me your phone.” The victim responded, “I’m not giving you my phone.”

29. The offender came toward the victim and reached into the front of his shorts and with his right hand took out a black pistol. The victim described this as being very similar to the appearance of guns issued to the police. The offender raised the weapon and pointed it at the victim and said, “One more time, give me your chain and your phone.” The victim was in shock and felt immediate fear, unsurprisingly, but repeated what he had earlier said; that he was not going to give this property over to him. This is the offence of assault with intent to rob being armed with a dangerous weapon.

30. During this exchange, the offender was positioned with his back against the boat and facing the home, and in that place, the gun held by him was not visible to anyone who might have been out on the road.

31. He suddenly turned around, crossed Deepwater Road, and walked in an easterly direction toward the shops and in the direction of Holly Street. As he walked away, the offender returned the pistol to the waist area of his shorts. There is an image of him doing so included in the facts. It is in black and white but behind that, there are two coloured photos showing the offender walking away dressed in baggy shorts, some sort of blue tank top, a baseball cap, and long hair extending down his back.

32. The second photo has him continuing to walk, and there is an arrow pointing to him using his right hand to place the weapon into the band of his shorts.

33. There is a third photograph with the offender seated on a wall adjacent to some birds - apparently feeding them it would seem - looking directly at the lens of the camera. He does look entirely different to his presentation here on the screen from where he is presently being held in custody.

34. The photographs include an image of the pistol. It is black with an orange trigger and it does compare with the Glock pistols that are on issue to police.

35. There is also an image of the balaclava with which he has been charged, to be taken into account in the third of the additional offences.

36. The victim’s wife came out of the home as the offender walked away and asked what was happening. The victim yelled at her to call the police and then began running after the offender. He followed him up Holly Street and right into Kendall Road. He was trying to ring the police as he did so. The offender continued to walk away from the victim until he reached Kendall Road. At this point he turned around and started to walk toward the victim reaching under his shirt as he got closer. Once again the victim became fearful and ran into a neighbouring front yard and sought assistance from a resident who provided the police operator with the address where these events were unfolding. The offender ran away from the area.

37. Police attended the location and spoke with the victim and his wife and obtained a description of the offender. They spoke with neighbours including two employees of a restaurant located in Deepwater Road, Castle Cove who reported having interacted with the offender about 4.30pm, one hour prior to the incident.

38. There was a photograph provided taken of Rainbow Lorikeets at the front of the restaurant which appears to be the third of the photographs to which I earlier referred depicting the offender. By means of that image the police were able to identify him.

39. The police also spoke to another witness walking his dog along Deepwater Road, he had observed the offender and the victim communicating. He described what he had seen and heard, limited though he was by the placement of the boat between the offender and the victim and where the witness was walking.

40. On 29 January 2020 the police stopped the offender as he was approaching his grandmother’s home in Boundary Street in Castle Cove about 400 metres from the scene of the incident. He was arrested, cautioned and searched. They found items which are there described in the facts; some of these items compared with what was captured on the images taken by the victim. Also within the back pack there was a small red foil bag containing 1.1 grams of green vegetable matter, one of the additional offences. About this time the offender’s grandmother arrived at the location with the offender’s younger sister. She told the police that she had seen the offender with a fake black and orange gun in the previous few days. His grandmother allowed the police to enter the home and look into the study which the offender was using as a bedroom. The police saw a cap which matched the appearance of the cap worn by the offender at the time of the incident. A search warrant was sought and issued and thereupon executed. The police learned that he had been living with his grandmother for about a week at that time and in the study they found the Gel Blaster air gun the subject of the possess firearm charge and the item used in the robbery offence. They also found the beanie with the eye and mouth holes cut into it so that it was in the configuration of a balaclava.

41. The weapon was the subject of a forensic ballistics report. It is a Gel Ball air pistol and therefore an air gun and a firearm as defined in s 4(1) Firearms Act 1996. It is also a pistol capable of propelling projectiles in rapid succession during one pressure of the trigger and therefore a prohibited firearm as defined in schedule 1 of the Act.

42. He was taken to Chatswood police station. He agreed to participate in an interview. He agreed that he was present at the location at the time of the offence, that he had interacted with the victim, and that there had been an altercation. He ran away from the victim he said following the altercation. He heard police sirens following the incident and assumed it was in relation to what had occurred. He agreed he was the male depicted in the photographs taken by the victim and he embraced the ownership of the cannabis found in the bag, it was intended for his own use.

43. The weapon was fingerprinted and analysed for DNA; one of his fingerprints was located on it and DNA recovered from the trigger of the pistol matched the profile of the offender.

The Offender

44. The offender gave evidence before me and thus I was given the opportunity to assess his sworn or affirmed evidence and the cross-examination administered by the Crown. I found him to be a credible witness. I accept the explanations he gave in response to the questions put to him including with regard to the weapon. It was not obtained for any ongoing purpose of conduct with which he is presently charged; he and friends he said engaged in what he said was sport, shooting at cans and engaging in some sort of war games with each other in the course of which they would wear protection in the form of glasses and the beanie in the form of the balaclava. It would seem to me to be fairly credible that one would do so to avoid the risk of injury to one’s eyes.

45. He said he had the weapon for about a year. He was on his way to his friend’s place at the time this interaction evolved. He said he bought the weapon for $150 online.

46. I accept his evidence regarding the acquisition and the use of the weapon and that it has not been held for any other nefarious purpose.

44. His circumstances are that without any record of criminal antecedents, he comes before the Court faced with a sentence of imprisonment for what is serious criminal misconduct. The background to this is described in the psychologist’s report provided by Timothy Watson-Munro. It includes that he was diagnosed with bipolar disorder. He was prescribed medication for that but it was not effective and he ceased using it. He was in a relationship with a partner of some two years. To this union a daughter was born. He was her primary carer but at some point, about October in 2019, his partner decided that she wanted a more liberal lifestyle and to see other people and decided to exclude him from the relationship. She at the same time excluded him from access to his daughter.

45. This had a deleterious effect upon him and his condition that should have been managed effectively with medication; he ultimately drifted into the use of methylamphetamine which continued up until the time of the commission of the offence.

46. He was a modest user, spending no more than $150 for the methylamphetamine he was using at its peak level of use. He was living with his grandmother at the time. He was using up to half a gram a week. This must have had a further deleterious effect upon his state of mental health.

47. Since he has been in custody he has progressed. He has been abstinent from illicit drugs. He presents as such on the screen before me today. He should accept that he will need professional help to continue in his progress. It was when he was using the methylamphetamine that he committed these crimes.

48. He provided a letter included in the bundle tendered in his case. He writes of having recently split up from his partner with whom he has the child, leading to relapse of his mental condition, bipolar disorder. He wrongly turned to drugs and was under the influence of them at the time he went to his friend’s house in possession of the gel blaster, a non-lethal gel soft toy that he used for sport to shoot cans in his friend’s backyard. On the way he engaged in the pointless argument which led to the decision he made to attempt this robbery. He is apologetic to the victim and to his family for any impact his misconduct has had upon them.

49. Since the incident in his controlled environment, his medication has been realigned and he is now in good mental health. With time given to reflect upon his actions, he would like, he said in his letter, a second chance.

50. Timothy Watson-Munro, psychologist, provided a report on 18 October 2020 after an examination on 8 September 2020 which must have been by way of an AVL facility because of the current difficulties with the COVID‑19 virus and the limitations upon people attending inmates in the custodial setting.

51. There is a history of longstanding symptoms of depression and anxiety and low self-esteem exacerbated by his overarching substance use disorder. His mood has stabilised with medication, including Zyprexa, Epilim, after his previous regime of Seroquel and Effexor with which he was non‑compliant in the lead-up to the offending behaviour.

52. His social history is discussed. He was born in Wagga Wagga. He has a half maternal brother, two half paternal sisters. He had limited contact with his siblings during the formative years because they were all in foster care and the family was split up. He was placed in foster care at the age of 12 and remained there for about five years.

53. His mother, 52 years of age, lives on the Central Coast and his stepfather is aged 50. He has no knowledge of his natural father. He had a strained relationship with his mother and stepfather but that has now improved. He has not had physical visits because of the COVID-19 restrictions, but he has been having video visits available to inmates. He has a close relationship with his maternal grandmother with whom he was living at the time of the offence and he tells me that he will move in to live with his aunt once he is admitted to parole.

54. He wants to take the opportunity for whatever work that will be available to him and wants to undertake some study to provide for his future. His mother suffers from bipolar disorder which limited her capacity to cope with the children when they were younger, no doubt contributing to the foster care arrangements.

55. There is reference to his attendance at performing arts schools in his high school years. He worked in panel beating for a while and as a mechanic but did not complete any formal qualifications in either area. He has worked in real estate and then remained as a stay at home dad as a primary carer for his daughter who is now aged two, an arrangement that continued until he was excluded from the relationship. It appears there is some hope that the relationship can be restored because prior to the imposed limitations there were two visits by his former partner. He has not seen his daughter since the separation last year.

56. His drug, alcohol and psychological history are discussed and the commission of this offence under the influence of the drugs is summarised, and that included the absence of proper medication to control his bipolar disorder.

57. He underwent psychometric assessment and the results of that are discussed in the report, after which the psychologist provides his opinion recommending dialectical behaviour therapy to assist with mood and substance use disorder.

Submissions and Consideration

61. It is conceded on behalf of the offender that the line, so-called in s 5 Crimes (Sentencing Procedure) Act 1999, had been crossed, a concession with which I must agree in the circumstances, but the assessment has to be made within the context of his emotional stressors and the bipolar disorder with which he was afflicted.

62. The use of ice, methylamphetamine, is explained with regard to the breakup of his relationship and the loss of access to his daughter. Within the context of his mental health I would take the view that his resort to the drug in the circumstances of this case does not fall within the category of lifestyle choice and is more resonant with what was said by Wood CJ at CL and Simpson J in their respective judgements in the Henry guideline judgement: [1999] NSWCCA 107.

63. I am reminded by Ms Davids of the Henry criteria. He answers many of the points advanced in that decision. He is a young offender, he has no criminal history. His weapon, although not capable of killing, I would find is capable of inflicting a serious injury if it was used to strike the eyes of the victim with a projectile. There was clearly a limited degree of planning; indeed it was a spontaneous offence that arose upon the preliminary interaction over the offender’s perception that the victim was misusing water. There was a very real threat of violence. The victim was not within the scope of situational vulnerability as contemplated in the guideline. There was nothing taken of course. The plea of guilty was of limited significance in light of what is clearly a strong Crown case with regard to the assault with intent to rob.

64. The circumstances of this offence in my view fall below the Henry guideline. I find it is below the mid-range for this type of offence. A gel blaster pistol is objectively a much less serious weapon than other types of firearms that are covered by these provisions in the legislation.

65. Mitigating factors are advanced on his behalf in the written submissions which I accept and I am reminded there are special circumstances. This is his first time in gaol. That of itself is not necessarily a special circumstance but bearing in mind the need for longer supervision upon his return to the community as advanced by Mr Watson-Munro in para 6, p 2 of the report, in light of the diagnosed bipolar disorder and his depressive disorder, which I accept, there are ample special circumstances that require a lesser period in custody and a longer period on parole.

66. The Crown submissions remind me of the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999, and that they are all engaged. There must be some punishment; there must be specific and general deterrence. Though protection of the community and specific deterrence do not attract significant weight in this case I make that observation upon the submission made by the Crown that there must be some weight attributed to those considerations in light of perhaps the delayed recognition by the offender that he needs assistance from appropriate professional carers to ensure that he does not fall under the spell of prohibited drugs once again and continues his proper regime of medication.

67. The sentences that I adopt and their structure must promote rehabilitation; he must be made accountable for what he has done; his conduct must be denounced, and the harm to the community and to the victim must be recognised.

68. The Crown summarises the points upon which objective seriousness of the intended robbery is to be assessed. It is said that this falls within the mid-range of objective seriousness; I would suggest it falls below mid-range of objective seriousness in the circumstances.

69. I should make reference to the sentencing assessment report which is far more concise than the psychologist’s report. He is attributed with an appropriate attitude to the offending behaviour, acknowledgement that what he did was wrong, and his concern for the victim.

70. His education to Year 10 is noted, so too his employment history. His preferred activity is the production of music which he would like to develop into a career. His substance misuse is discussed. There is no history of resort to violence or aggression against other persons prior to this misconduct, there is reference to his bipolarity and the medication that is required for it. He has insight into the impact of his offences, he is willing to undertake whatever supervision will be required of him and undertake community service work if imposed upon him as part of his parole conditions.

71. The indicative sentences will be expressed with an aggregate sentence with a significant measure of concurrence because of the connection between the firearm in his possession and the use of that weapon in the commission of the robbery.

Sentence

72. The offender is convicted of the offence of assault with intent to rob whilst armed with a dangerous weapon. I identify as appropriate an indicative sentence of 3 years and 3 months.

73. The offender is convicted of the possess an unauthorised pistol; taking into account the additional offences I specify a term of imprisonment of 2 years as appropriate with a non-parole period of 1 year. I impose an aggregate sentence of 3 years and 6 months including a non‑parole period of 1 year and 9 months commencing on 29 January 2020; the non-parole period shall expire on 28 October 2021 and upon his release to parole he will be subject to parole for a further period of 1 year and 9 months to expire on 28 July 2023.

74. Thus the overall sentence is one of 3 years and 6 months including a non-parole period of 1 year and 9 months, 29 January 2020 to 28 October 2021 to 28 July 2023.

75. I will certify the Form 1 to confirm I have taken the additional offences into account. I will leave the exhibits on file.

76. Mr McMaster your overall sentence is 3 years and 6 months including the non-parole period of 1 year and 9 months starting on 29 January 2020. You will be eligible for parole on 28 October 2021 and if you obtain parole at that time you will be subject to parole until 29 July 2023. It will be up to the parole authorities to identify what your needs will be at that time, do you understand that.

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Decision last updated: 06 November 2020