R v Nowland

[2015] NSWDC 386

District Court

New South Wales

Medium Neutral Citation:	R v Nowland [2015] NSWDC 386
Hearing dates:	5 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Taking into account the matter on the Form 1, the offender is sentenced to imprisonment for a period of 18 moths. The execution of that sentence is suspended under s12 Crimes (Sentencing Procedure) Act upon the offender entering into a bond to be of good behaviour.
Catchwords:	CRIMINAL LAW – Sentence – From 1 – attempted armed robbery – Conceal serious offence
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149
Category:	Sentence
Parties:	The Crown Dean Nowland
Representation:	Counsel: Ms E McLaughlin - Offender   Solicitors: Director of Public Prosecutions – Crown Brae Cragg Solicitors - Offender
File Number(s):	2014/68766

SENTENCE

1. HIS HONOUR: Often enough in these courts a submission is made that a young person has committed an offence after being influenced by the wrong crowd and, on analysis, it turns out that the offender appearing for sentence is the person who has influenced others and that he was "the wrong crowd". But in this case I am satisfied that Dean Charles Nowland has committed the offences for which I must sentence him, one of them being on a Form 1, after coming under the influence, in quite sad circumstances, of former friends and now that he is no longer under their influence he has good prospects of living, from this day forward, a law abiding life.

2. I have to sentence Mr Nowland for an offence of attempted armed robbery. When I sentence him I am to take into account an offence of concealing a serious offence.

3. The attempted armed robbery arose in the following circumstances: Staff at a sports club in Summerland Point, south of Newcastle, closed the premises one evening. There were three staff members left inside dealing with the night’s takings. There were CCTV cameras around the premises and at one stage one of the staff members noticed a man standing at the front entrance with what appeared to be a crowbar in his hands.

4. Staff quite quickly realised that that man was up to no good. They secured the cash in the safe and phoned police. They remained inside the office and tried to remain quiet. They could not see anything on the CCTV monitors for about 20 minutes, until they saw three men appear on the CCTV cameras on the rear entrance to the club. They were crouching down, trying to remain out of view. They saw one of the men cover one of the CCTV cameras with something, then on the remaining cameras they were able to see two men make their way onto the back deck of the club and peer through the glass door. They were seen to leave, the object covering the other CCTV camera was removed and the three men disappeared.

5. Police, alerted by the staff members, headed towards the club. They went past a particular car, a Ford Falcon. One of the police officers stopped to check on the car. He noticed that the bonnet was warm, suggesting the car had recently been driven, but could not see anyone inside. Enquiries revealed a hole in a fence at the back of the club and a police dog detected a scent going from the hole in the fence to the area where the car had been observed.

6. It seems that police had been intercepting the telephone call of one of the men involved. Those calls revealed that this offender was also involved. Some considerable time after this offence, indeed about 14 months later, Mr Nowland was arrested. He made admissions to his role in the attempted armed robbery.

7. It is important to understand what his role was. It turns out that at the time the police officer looked in the car the offender was actually inside, crouching down out of view. He went with three others to the area where the club was, knowing full well that there was to be an armed robbery, seeing that at least one of them was armed and that they were equipped with cable ties, with which they could restrain the staff members.

8. The offender’s role was to remain in the car and look after it. He was not one of those who approached the club and he was not one of those seen on the CCTV cameras. His role was more minor compared to the others.

9. I hinted at something before when I mentioned the sad circumstances which led to the offender mixing with the wrong crowd. Mr Nowland’s father died of a heart attack when he was quite young. He lived with his mother for a while but left home whilst still at school and ended up living with a friend of his named Cecil Dungay. Cecil Dungay was one of the three men who were seen on the CCTV footage. The other two were his brother, Benjamin and another man by the name of Luke Talbot.

10. For a while this offender was under their influence. He committed two offences of break, enter and steal with them. He was dealt with for those offences and received a suspended sentence and a community service order. However, since being charged with this offence, Mr Nowland has ceased contact with them, except in one particular instance which I will refer to in due course.

11. Mr Nowland’s break with the Dungays has been such that he is now prepared to give evidence against any of the three men, should that be necessary. Only one, Benjamin Dungay, has thus far been charged. His matter is listed for mention in this Court tomorrow, following committal for trial.

12. At court one day the offender was threatened. There was obviously a fear that he would assist the authorities. That is the only contact he has had with the Dungays of recent times.

13. There has been a significant change in Mr Nowland since the commission of the offences. He is living with his mother and sister; he has a casual job with a labour hire company and has been working on average five days a week for some considerable period of time; he has been on a curfew under his bail conditions and has never breached it; he has made new friends through his sister and so the prospects for Mr Nowland are good. What makes them even better is his undertaking to give assistance for the prosecution, should that be necessary. It is hard to imagine a cleaner break from poor influences than that.

14. The offender pleaded guilty at an early opportunity, consistent with the early admissions he made to police when he was approached by them some 14 months after the offence. I will reflect both the plea of guilty and the offender’s assistance, both past and promised, by imposing upon him a sentence which will be 45 per cent less than it would otherwise have been.

15. I should also indicate it has been part of a number of factors which have led to me imposing a different form of sentence on Mr Nowland from that I would otherwise have imposed. I can say that the discount for future assistance is 10 per cent and, in the event that Mr Nowland fails to comply with his undertaking, his sentence should therefore be increased.

16. Of course, the Crown made reference to the R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 guideline judgment. It is to be noted that there are, as is almost invariably the case, factors in this matter which are different from the commonplace situation postulated in that guideline judgment.

17. Most importantly, of course, this was an attempt. The commission of the offence was thwarted by what appears to have been a decision taken by the three men who approached the club that they could not commit the offence because they could not gain access. Another factor which has to be borne in mind when comparing the Henry guideline is that this offence was committed in company. Working the other way, in the offender’s favour, is the circumstance that the offender’s plea of guilty was early, not of limited utilitarian benefit and, of course, there is the assistance to the authorities on top of that.

18. Ms McLaughlin who appears for the offender submitted that an appropriate sentence in this case would be the imposition of a sentence of imprisonment which was suspended under s 12 of the Crimes (Sentencing Procedure) Act. In discussions with Ms McLaughlin, I raised with her the problem that in the offender’s case a s 12 bond would involve little or no punishment, and may be thought to not reflect the fact that the offender was involved in a very serious offence involving, if it had been successful, terror and perhaps violence committed upon three innocent people.

19. However, Ms McLaughlin submitted and this is a submission I accept, that in the present case there has been a significant component of punishment already. I mentioned the curfew. Allied to that is the circumstance that the offender has had to report three times a week to police for a considerable period. He has been subject to a threat and, as is apparent from his presentation in court, the very process of appearing for sentence has been stressful for him.

20. He must have understood that it was a very real possibility that he would go to gaol, fulltime, where he would be exposed to the possibility of the threat made against him being carried out. In a real sense, he has been punished already because of the commission of this offence.

21. It is for those reasons that, having determined what length of sentence I should impose, I propose to suspend it.

22. Taking into account the matter on the Form 1, the offender is sentenced to imprisonment for a period of 18 months. I suspend the execution of that sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act, conditioned that the offender enter into a bond to be of good behaviour for the term of that sentence.

23. The conditions of the bond are as follows:

• He is to be of good behaviour. He is to continue working in paid employment and should, through no fault of his own, his employment be terminated, he is to make constant, active and enthusiastic efforts to obtain new paid employment.

• He is to continue receiving psychological counselling from Mr Paul Constable for the duration of the bond, unless Mr Constable decides that treatment is no longer necessary or Mr Constable refers him for treatment by someone else.

24. Mr Nowland, I was persuaded today that you are different man from the person you were when you committed this offence, right? I could be wrong, I could have made a mistake. If you come back before me, having committed another offence, I am going to be very disappointed to learn that you have misled me. And the consequences for you are going to be quite significant.

25. What I have done is I have sentenced you to imprisonment but if you stay out of trouble for 18 months you will not have to serve that in prison. If, however, you commit an offence, then I have already sentenced you to imprisonment. So, let me make things very clear to you, Mr Nowland. If you are back before me I will send you to gaol. I will have no hesitation in doing that whatsoever.

26. OFFENDER: I understand.

27. HIS HONOUR: You have got one chance to stay out of gaol. Take it because if you stuff this up you will be in gaol for 18 months; that is the decision I have already made. Do you understand?

28. OFFENDER: Yeah, I understand.

29. HIS HONOUR: Thank you.

30. OFFENDER: Yes, your Honour.

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Decision last updated: 23 March 2016