R v Naylor

[2019] NSWDC 414

District Court

New South Wales

Medium Neutral Citation:	R v Naylor [2019] NSWDC 414
Hearing dates:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years 2 months, with a non-parole period of 1 year 7 months.
Catchwords:	CRIME - SENTENCE - aggravated robbery
Legislation Cited:	Crimes Act 1900 (NSW) s.95(1)
Cases Cited:	R v HENRY (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Shane Michael Naylor (Offender)
Representation:	Ms Bhat (ODPP Parramatta) Mr Barber (for the offender)
File Number(s):	2017/371157
Publication restriction:	Nil

​JUDGMENT

1. Shane Michael Naylor, you appear for sentence today in relation to one offence - that is, an offence of aggravated robbery and, at the time of that robbery, intentionally inflicting actual bodily harm. 

2. This involves a contravention of s 95(1) of the Crimes Act.  The maximum penalty for that offence is 20 years imprisonment.  There is no standard non-parole period.  There is, however, a relevant guideline judgment of R v Henry (1999) 46 NSWLR 346.

3. The facts surrounding the offence for which you are to be sentenced today are contained in a document entitled “Statement of Agreed Facts”.  Slightly recast by me, as to style but not substance, they are as follows.

4. As at December 2017 you were 41 years old and you had known Mr Kevin Lindores for about 20 years.  You had grown up in the same area.

5. On 7 December 2017, at about 10am, you and Mr Lindores had an argument not far from here - in Church Street in the mall. 

6. When the argument finished, Mr Lindores walked away and went to the Greenway Plaza.  You followed him, and then you followed him to the Horwood Place Parking Station, which was nearby. 

7. Once both of you were inside the undercover of that car park, you grabbed Mr Lindores’s bag and pushed him against a wall.  You punched Mr Lindores to the head, which caused him to fall to the ground. 

8. When Mr Lindores was in that vulnerable position, you continued to kick and punch him. 

9. Ultimately, you took his bag from him and you left the area. 

10. At some point, you took Mr Lindores’s mobile phone from that bag and you left the bag behind.

11. Mr Lindores went to the police and then he was taken to hospital. Fortunately for Mr Lindores, and indeed fortunately for you, the injuries sustained by him in that punching and kicking were relatively minor.  I have concluded from this that, amongst other things, you did not kick him to the head because, if you had, the sentence today would be substantially different.  Mr Lindores’s injuries were minor. They were regarded by the hospital staff as superficial, and he was not required to remain in hospital after he had been treated.

12. After you had taken Mr Lindores’s mobile phone, you tried to sell it.  The police, however, swiftly found you still in the Church Street area of Parramatta at a 7-Eleven trying to sell that phone and, fortunately for you and for Mr Lindores, his mobile phone was returned to him.

13. There was a time when some sentencing judges did not regard the stealing of a mobile phone as particularly significant, but those days are past because, for so many people in our community, Mr Naylor, a mobile phone contains a great deal of important and sensitive information and it causes enormous inconvenience to a person to lose his/her phone, which contains all of that information.

14. In terms of the objective seriousness of this offence for an offence of its kind, in my opinion, it is towards but not at the bottom of the range of objective seriousness.

15. The offending is additionally aggravated by the fact that you were subject to three section 9 bonds at the time you committed the offence and, furthermore, you were on parole.  You had been admitted to parole two months before you committed the offence and, following your arrest on 7 December 2017, your parole was revoked and you served the balance of that sentence.

16. You are now 42 years old. 

17. You grew up in a large family.  Your mother had 13 children with your father - you were down the bottom of the pecking order, towards the end.  When you were five years' old your father left your mother with all those children.  She did a tremendous job, on welfare, raising you and your brothers and sisters.  She never re-partnered and it would seem that she spent all of her time, all of her life, looking after the children.  You have had nothing to do with your father since he walked out on your mother.  He has been too busy having other children with another woman - another 12 or 13 to his credit, if that be the correct term.

18. It is submitted on your behalf that you grew up in a dysfunctional family.  I do not accept that.  It was not dysfunctional in the sense the High Court  meant in the case of Bugmy.  You had a loving mother and, although you did not have a dominant adult male, you had the love and support of your many brothers and sisters. I am not persuaded, as was submitted on behalf of your counsel, that it was a "dysfunctional" upbringing.

19. You left school when you were in Year 7. You have had only limited work since that time because a lot of your adult life has been spent in gaol. When you have not been in gaol, you have either been on Centrelink payments or working as a labourer. 

20. There is no evidence before me that, of all the many times you have been in gaol, you have acquired any work skills, which is unfortunate, because often in custody those courses are available.

21. I have mentioned your criminal history.  It started as a juvenile. That cannot be held against you. Your adult criminal history started as long ago as 1996, mostly for offences of dishonesty.  There are some previous minor offences of violence.  In saying that they are "minor", I noted that one of them involved the offence of affray.  I do not have any particulars about it but you were fined $700, which suggests that the offence was of a minor kind.

22. It is, of course, difficult to come to terms with your criminal trajectory because, yet again, the criminal history presented before the Court is far from helpful.  It is not in a chronological order and, as I have said on more than one occasion, it resembles a deck of cards which has been shuffled randomly. But, like St John the Baptist, the judges who complain of this are just voices crying in the wilderness. No-one pays any attention.  The impression I got, though, is that most of your offending has been of a minor kind.  This would seem to be the most serious offence that you have committed.

23. You have got a long-term problem with drugs. That is at the heart of your criminal offending.  It started off, as it often does, with marijuana; then proceeded to amphetamines; and, in more recent times, you have been in the grips of the modern scourge of ice - and indeed you were on ice when you assaulted your victim. Perhaps you stole his phone to get money for more drugs. 

24. You have shown a capacity to deal with your drug addiction, however, Mr Naylor.  There have been times when you have successfully completed rehabilitation courses; and indeed in the two months that you were on parole you did not used drugs until the night before you committed this offence.

25. Hand-in-hand with your long-term drug issues, you have some mental health issues. It seems to me to be highly significant that when you are in custody you take the medication because of the regime and you are mentally well.  When you came out of custody on the last occasion, you stopped taking your lawfully prescribed drugs - and you unravelled and you came to use ice again. 

26. It should be pretty clear to you now, Mr Naylor, that if you want any chance of rehabilitation, not only have you got to address the illicit drugs, but hand-in-hand, you have to take the lawful drugs the doctors prescribe for you.  You have had a pretty nasty experience now of what happens when you do not.

27. When you were interviewed for the Sentencing Assessment Report that was prepared on 20 March 2019, you were not really doing yourself any favours by seeking to minimise your offending behaviour. 

28. You also entered a very late plea.  It is difficult to understand why you did not plead early, Mr Naylor.  It was a strong Crown case. You pleaded guilty on the first day of your trial.  Those matters tend to suggest that you are not remorseful for what you did.

29. On the other hand, you were interviewed by a psychologist, in which you did express to him genuine remorse, as he understood it. And you expressed it today in the witness box. I accept your evidence today, Mr Naylor, that you are genuinely remorseful. 

30. More than that, I accept your evidence that you have insight about how you have been living for the last 30 years.  You told me that you are getting a bit too old for being in gaol - and you are right. 

31. You have a 14 year old son, to whom you have responsibilities.  You have let him down so far in your life because you have not been there for much of it. And you have let your partner down - your partner of 20 years who has stood by you. 

32. You are at an age now, Mr Naylor, where this is probably for you the last throw of the dice.

33. Because of the lateness of the plea, you are going to get a 10% discount. 

34. I am satisfied that no sentence other than a period of imprisonment is appropriate. 

35. Except for your plea of guilty, the term of the imprisonment would have been 3 years and 6 months. But, because of the plea of guilty, the term of imprisonment is 3 years and 2 months.  That term of imprisonment will date from the date of the expiration of your parole, namely 6 January 2018.

36. I have formed the view, Mr Naylor, that your prospects of rehabilitation would be enhanced by a longer period on parole, even though you have served many terms of imprisonment.  I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.  If you continue to take your medication, and if you continue to accept the supervision of Community Corrections, I think your prospects of rehabilitation are reasonable.

37. The non-parole period that I fix for you is a period of 1 year and 7 months to date from 6 January 2018 and which will expire (in a few weeks’ time) on 5 August 2019.  I fix a balance of also one year and seven months, to commence 6 August 2019 and expire on 5 March 2021.  

38. You will now go with the officers, thank you.

Decision last updated: 13 August 2019