R v Orrock
[2013] NSWDC 160
•31 January 2013
District Court
New South Wales
Medium Neutral Citation: R v Orrock [2013] NSWDC 160 Hearing dates: 16/01/2013 - 29/01/2013 Decision date: 31 January 2013 Jurisdiction: Criminal Before: Tupman DCJ Decision: 1. Sentenced to imprisonment for 3 years, non-parole period of 18 months.
2. Compensation orders made.
Catchwords: CRIMINAL LAW - Sentence - Guilty Plea - offence Intentionally Destroy Property by Fire - S195 (1)(b) Crimes Act - Newtown police truck destroyed by fire - offender relied on non-exculpatory necessity - to avoid public perception that he or his tattoo parlour connected with police - outlaw motorcycle gang connection during spate of drive-by shootings in Sydney - evidence accepted and thus moral culpability and objective criminality reduced - general and specific deterrence nonetheless important - spontaneous offence, no planning - good prospects of rehabilitation - special circumstances found - first time in prison, pre-trial custody served in two blocks after DPP appealed against Local Court decision to grant bail. Legislation Cited: Crimes Act 1900 - s195 (1) (b)
Crimes (Sentencing Procedure) Act 1999 - 21A (3) (d)
Suitors Fund Act 1951Cases Cited: R v Tiknius [2011] NSWCCA
R v Thomson & Houlton (2000) 49 NSWLR 383Category: Sentence Parties: The Crown
Scott Allen Orrock (Offender)Representation: Mr. C. Patrick (Crown)
Mr. D. Provera (Offender)
Ms. E. Sercombe (DPP)
Mr. M. Heffernan (Offender)
File Number(s): 2012/127175
SENTENCE Judgment
HER HONOUR: This is the judgment on sentence in the matter of Scott Allen Orrock. The offender is before me for sentence following his plea of guilty on 29 January 2013 to count 1 in an indictment dated that date, that on 20 April 2013 at Newtown he intentionally destroyed property by fire, that property being a police truck marked Newtown 16. That is an offence contrary to s195 (1)(b) of the Crimes Act and as such carries a maximum penalty of 10 years imprisonment.
I note, and in due course, will take into account the fact that this is a Table 1 offence under the Criminal Procedure Act capable of being dealt with in the Local Court where the maximum penalty available would have been 2 years imprisonment. There was presumably an election made by the prosecution to have the matter dealt with on indictment. The fact that it might have been dealt with however in the Local Court is a matter I am obliged to take into account, although I do note that neither party has actually referred to that in their submissions.
Following that election he was committed for trial to this court on this count, together with a charge of intimidating a named police officer in the execution of her duty. The trial of those matters started before me with a jury on Wednesday 16 January 2013. At the end of the Crown case I directed the jury to acquit the accused in relation to the intimidation charge. The reasons for that are to be found in a separate judgment. In summary that course was taken because, whilst there was clear evidence of the accused behaving in a manner which the jury would have been entitled to accept as intimidation, there was no evidence from the named officer nor anyone else in the Crown case that the officer in fact was intimidated by his actions. That is, no evidence that she felt personally frightened, scared, or under personal threat of violence. That is an essential part of the charge and in the absence of that evidence; I was obliged to direct an acquittal of the accused.
Following that, the trial proceeded on the matter now before me for sentence, with the accused giving evidence in chief on Tuesday 22 January and being about halfway through cross-examination overnight. On Wednesday morning, 23 January, the Crown advised that they had come into possession of images from the closed-circuit television hard drive seized by police from the accused's tattoo parlour premises on 21 April, the day after the offence. For reasons that were explored in a further judgment of 23 April 2013, the investigating authorities had neither completed an analysis of that hard drive nor sought to adjourn or postpone the trial until that was completed and it would appear that the analysis was only completed after the trial had started and after the accused had finished his evidence in chief and was halfway through cross-examination.
In the circumstances, I granted the accused's application to vacate the trial and discharged the jury on the basis of fairness. The Crown not only agreed with that course but submitted that a costs order would be appropriate. I ultimately made an order under the Suitors Fund Act for the accused to have his costs of the aborted trial in the circumstances. The trial was then re-listed to commence before me on Tuesday this week, 29 January. The accused was re-arraigned and pleaded guilty to count 1 as I have already stated. At the earlier trial the accused foreshadowed and then gave evidence admitting having set fire to the police truck but claimed that he did so out of necessity. Thus he was attempting to rely on a defence of necessity as a complete defence to both substantive charges.
It was never necessary to explore the logic of that position in relation to the intimidation charge because he was acquitted by direction before the evidence was complete. There had been no final determination by the time the trial was vacated about whether or not that defence would be left to the jury on the damage by fire charge. The Crown had foreshadowed an argument that it should not, but the final decision awaited the end of the accused's evidence. Again that final determination was never necessary because the trial was vacated and the accused has now pleaded guilty.
I have before me on sentence all of the evidence called at trial, together with the fact of the plea and some additional statements tendered by the Crown on sentence, including the fingerprint record. I accept from the combination of evidence that the accused now admits the elements of the offence but relies for an assessment of the objective circumstances of the offence on what is, in essence, non-exculpatory necessity. He relies on that, as I understand it, to mitigate the factual or objective seriousness of his offending behaviour. It seems to me that this is in a similar vein to circumstances in which an offender might rely on non-exculpatory duress to mitigate his offending behaviour in the way envisaged by s 21A (3)(d) of the Crimes (Sentencing Procedure) Act which is applied, followed and referred to by the Court of Criminal Appeal favourably in R v Tiknius [2011] NSWCCA at 215 in relation to Commonwealth offences.
Whilst there is no reference in the State statute to necessity as a mitigating factor on sentence, it seems to me that it is comparable to the concept of duress and by logical extension, that if evidence amounting to non-exculpatory necessity is accepted, then that is a factor to be taken into account as a mitigating factor by a sentencing judge because, if accepted, it impacts on an assessment of objective criminality and the moral culpability of the offender. This latter issue is in essence the only real issue for determination on this sentence and is a matter on which I must make a finding.
As to the other facts, I accept without any dispute, from the evidence before me on trial that on 20 April 2012 at about 3.11am, the offender took a baseball bat from under the counter of his tattoo parlour in King Street, Newtown and smashed the passenger window of an unattended marked police truck parked outside the premises immediately next door to that business. He poured some isopropyl into the window, which is an alcohol-based substance that he used in his tattoo business, and then set fire to the truck, which caught alight almost immediately. He then went back inside the tattoo parlour and shortly afterwards left in a taxi from the rear of the premises. The fire was extinguished by the Fire Brigade, which arrived very shortly afterwards, but the truck was extensively damaged by fire. The front of the outside awning of the adjoining café was also damaged by the fire in the vehicle and suffered damage.
The police truck had already had much of its usual contents removed but the damage to the body and interior of the truck was nonetheless extensive. It was effectively destroyed by the fire. I accept from the evidence before me on sentence, that the total cost occasioned by the damage to the truck was $58,138.71. From other evidence on sentence I accept that the damage to the front awning section of the adjoining café was $2,530, of which an amount was paid by the insurer and the balance by the owner. There are claims for compensation in these amounts which I will address at the end of this sentence.
None of these facts is in dispute. Also not in dispute is the fact that police then kept the vehicle under guard and established a crime scene in the area until they searched the premises the following morning.
Notwithstanding that, the offender came back to the premises about 8am on 21 April and disabled the closed-circuit television system which had been monitoring his tattoo parlour premises. However he did not remove the hard drive. When police searched the premises on the morning of 21 April, they recovered various items including the hard drive of the closed-circuit television system. For reasons that it seems to me cannot be understood, however, they did not conduct an analysis of that hard drive until some time in early 2013 after this trial had started, without advising the Crown Prosecutor that such analysis was imminent and in fact underway and without therefore advising the court. It would appear on its face to have been potentially of great value in prosecuting the case against the accused, especially as until 16 January there had been no admission by the accused of having in fact caused the damage to the vehicle. It is unfortunate that such a basic investigatory step was not undertaken much earlier so that a great deal of public money and court time might have been saved.
On Saturday 21 April by arrangement, the offender attended the police station and was arrested and charged with this offence. He exercised his right to silence. None of that is in dispute. What is in dispute, however, is the accused's motive for committing the offence. Much of the background of the accused's evidence in relation to that motive, however, is also not in dispute. I accept from the evidence at trial, that the accused had been a member of the Nomads Motorcycle Club since he was twenty-one, rising to the rank of National President in Australia for the five years leading up to December 2009. It is a Club which I accept on the evidence is properly referred to as an outlaw motorcycle club, in that it has an acknowledged component of it which engages in criminal activity. The accused himself acknowledged that in his evidence. He left that Club in December 2009. That is also confirmed by evidence called in the Crown case at trial from an expert in these matters, Detective Sergeant Groenewegen.
I accept the evidence of the accused at trial that he did so at the time for family reasons. He had earlier been awarded custody of his twin daughters together with a former partner, not the mother of those children. He had subsequently married another woman and they were together caring for those daughters who continued to have contact with their former stepmother. I accept that he left the Nomads in December 2009 because he wanted to lead a more family oriented life following his marriage. At the time he was targeted, and I accept more probably than not, because he had left the Club. This took the form of someone setting fire to his personal vehicle at the rear of the tattoo parlour in December 2009. On the evidence I accept that not long after he left the Nomads in December 2009, he had some involvement with the Hells Angels Motorcycle Club, a Club also properly described as an outlaw motorcycle club. He became what is known as a prospect of that Club, something like a probationary member. I accept this did not last for long and he relinquished that position in early 2010. Between then and late 2011, on the evidence, he was not either a full member or prospect member of any motorcycle club but he did not ever sever ties with members of such clubs. He continued to have association with them and I accept he had not completely given up the codes and general mindset of such organisations.
In early 2012 he again contemplated becoming a member of the Hells Angels Motorcycle Club to the extent that by March 2012 he had again become a prospect member of that club. I accept from other evidence that by the time he committed this offence, albeit perhaps only shortly beforehand, he had decided not to proceed to full membership. Thus, at the time of this offence on the evidence before me, he was neither a full member nor a prospect member of any outlaw motorcycle club. Again, however, he still associated with such people, including it would appear, only about thirty minutes before committing this offence. There is no evidence, however, on which I could make any finding that this meeting played a role in his committing the offence.
The Crown called evidence from two officers involving specific knowledge both of outlaw motorcycle gangs or clubs and also of the events which were occurring in Sydney, involving those gangs, at the time of this offence. I accept from that evidence that in early 2012 there were a number of drive-by shootings at houses and tattoo parlours in Sydney connected with outlaw motorcycle gangs. I accept that by the time this offence was committed, police had formed the view that there existed what was referred to as a turf war between the Nomads and the Hells Angels motorcycle gangs. That belief of the police was in fact broadcast to the media by a senior police officer at around the time this offence was committed. I also accept from this evidence called in the Crown case, that leaving such groups is regarded poorly by those who remain members but even worse is to leave one group to join another which is what this offender was contemplating at the time of this offence. I accept the offender's evidence that this is regarded within such circles as the behaviour of a turncoat and viewed extremely unfavourably.
Shortly before this offence there were media reports that two houses and some tattoo parlours in western Sydney had been the subject of drive-by shootings. The offender, I accept, knew the people who either lived in those premises or owned them and believed that the events were connected with the activities of what he describes as bikies. This occurred at the same time as police were broadcasting their beliefs that there was a turf war in Sydney between the two outlaw motorcycle gangs with which the offender was connected. These events received extensive media publicity at the time in Sydney. I accept from all of the evidence before me at trial that these sorts of events, that is drive-by shootings and the like, were not unusual for these sorts of bikie gangs. In fact the offender had himself been the victim of that or similar events, at least three times. He was shot himself in 2006 and subsequently charged with concealing a crime because he refused to name his attacker. His tattoo parlour was the subject of a drive-by shooting in April 2007 and as I have already said, his car was burnt at the rear of those premises in December 2009. All of those, I accept, were connected with his involvement in or association with, outlaw motorcycle gangs. I accept that by early 2012 this sort of violence, which was not unusual, had changed a little in that it was now involving wider targets including the families of group members and that this was known to both police and to this offender.
Around 17 April 2012 police obtained some intelligence that the offender's tattoo shop was going to be targeted as part of this spate of escalating violence. The police have subsequently concluded that that intelligence was not accurate but believed it to be the case at the time.
A decision was made to place a marked police truck in the vicinity of, or outside those premises, in an effort to deter any such attack, to protect the offender and also to protect adjacent business owners and residents, and any members of the public who might have been caught in any such attack. That decision was not initially conveyed to the offender but Newtown 16 was parked in the vicinity overnight on 17 April 2012. Police by that stage had taken steps to remove from that vehicle any items that might have been the subject of particular dangers such as firearms, ammunition and also the police radio.
The adjoining café owner noticed the truck, as did the offender, but it was not a matter of great moment at the time. The truck was there again the following night in the general vicinity and the offender and others, I accept, started to notice it a little more. I accept that the police moved it from place to place, always however either outside, opposite or adjacent to the offender's tattoo parlour. I accept that by the second night, given the publicity surrounding other attacks on tattoo parlours in Sydney at the time, it would have been clear to most people that the truck was there connected in some way with the offender's tattoo parlour.
The offender, I accept, saw one of the officers moving the truck at one stage and spoke to him. That officer told him that it had been placed there to deter an attack on his tattoo parlour. He said he did not feel the need for that personal protection. The truck was placed there again on the evening of 19 April. The accused gave evidence that by that stage he was beginning to have some concern about it and the impact it might have on him. His evidence was that his staff had been receiving comments by passers-by asking about the presence of the truck. Some of those comments queried whether he was either working with the police or getting police protection and that he was getting similar queries from local business people and that he had started to receive some telephone calls along the same lines.
He said that in his mind these events came to a head overnight on 19 and 20 April. He claimed that by that stage he had received a few threats by phone, although he said he was not sure that they were serious or just pranks or people who did not genuinely mean the threats. His evidence was that on the evening of 19 April, however, sometime around about seven, which I infer was around about the time that the truck was parked in the vicinity, he saw four or five people sitting in the café opposite his tattoo parlour who he believed were watching him and his premises. He said he did not know them and thought they looked suspicious. He said he believed that two of them followed him down King Street about 8 o'clock that night because he saw them sitting in a café where he was having dinner, again watching him. He said he thought that they had followed him back to the tattoo parlour because he saw them again in the café opposite.
In his evidence he said he shut the business early that night and sent the staff home because he had started to become concerned that the tattoo parlour might in fact be the target of a drive-by shooting and increasingly became concerned that he was to become the target of a shooting. He said that by that stage he formed the view that the presence of the marked police truck outside his tattoo parlour had increased his risk of attack because he thought it sent a message that he was somehow connected with the police and was obtaining protection from them.
He claimed, and I accept this to be the case, that cooperation with police is not regarded highly within outdoor motorcycle gangs or those who associate with them. That it is not a desirable feature, but it is a reality. Even more so, I accept that if members of such an organisation were to form the view that their members or associates were cooperating with police, or even had become police informants into the activities of the gangs, that that would put that individual at great risk. Again I say that this is not behaviour or views which ought be condoned, but I accept that it is a reality, and a matter which was well known to the offender at the time.
So by the evening of the 19 April I accept he had formed the view that the truck was putting him at risk to the extent that later in the evening he went to the hotel and asked some tow truck drivers who he knew if they would move the truck away from the café next to his tattoo parlour. Not surprisingly they declined, given that it was a marked police truck parked lawfully in King Street, Newtown. I accept he went back to the tattoo parlour and then started to think about his situation. He went home at one stage and took his daughters somewhere else. He started to become more anxious I accept and more focused on the police truck.
He gave evidence that the unknown people came back to the café opposite and were watching him. He said that by 3am or shortly beforehand he had formed the view that he was at imminent risk of being shot at and in his own mind the focus of that risk was the presence of the police truck. He claimed to have considered other options. He also gave evidence, which I accept was logical, that the option of approaching the police was to his mind a last resort. Again it is not a view, which ought to be condoned, but I accept it was a view that he held.
So at about 3am, and this much is not in dispute, he walked the short distance of about 200 metres between his tattoo parlour and Newtown Police Station and spoke to the officer on the desk. I accept that by that stage he was a little agitated and more so than his normal self, but not significantly so. He asked to see the supervising officer, and that occurred. He made demands for police to move the police truck. Whether or not he used a swear word immediately when speaking to that officer or did so later in conversation with her is in dispute, but it seems to me it does not make any real difference. I accept from the evidence given by the first officer to whom he spoke that he did not initially swear when he saw her, but that he became increasingly agitated as he spoke to the supervising officer. That officer and all of the officers at Newtown Police knew him and agreed that his behaviour was different than his normal demeanour and that he became increasingly agitated and demanding. What he said to the officer on more than one occasion was,
"Move that fucking car right now".
She declined and made it clear from the outset that this was not going to happen. She also made it clear that it was a decision from those higher up that the truck was placed there and that whilst it might be moved around slightly it would be staying in the area. The police had every right to take that course at the time.
She told him he could take it up with the duty officer in the morning if he wished. His voice became louder, he became more agitated and pointed a finger at her and continued to demand that the truck be moved. Ultimately he said,
"You fucking move it right away or I will burn it down".
The officer told him that he should not make such a threat. He became more agitated as the officer continued to inform him that the truck would not be moved and that he could take it up with the duty manager later. At one stage the accused said to her, and this is not in dispute,
"You don't know what you're fucking doing. Everybody is going to think I'm working for the police."
She replied,
"Anyone who reads the newspapers will know why the car is parked there."
He then said,
"I don't fucking care. Do you know what you're doing, you are making me a target, you are making my family a target."
All of this interaction was captured by a closed-circuit television, that is, the visual images.
The conversation did not last for a very long time. At one stage he moved towards the door and then came back and continued to speak to the supervising officer. I accept that at this stage he said, after having made another demand for the truck to be moved,
"I will give you ten minutes to move the car or I'm going to burn it to the ground."
I accept that the officer replied,
"If you do that there will be hell to pay." His reply to that was, "I don't give a fuck. You've got ten minutes to move it or it's going to burn."
He also said words to the effect that they could come around in fifteen minutes to arrest him. He left the police station shortly after 3am following these conversations and returned to the tattoo parlour, went in, took the baseball bat from under the counter, got the Isopropyl and then behaved in the way that I have already outlined, committing the offence as charged.
The Crown submits that I would not accept from this evidence the accused's asserted motive for committing the offence. The Crown argues that the offender is a person who should not be accepted as a witness of truth and that his commission of the offence should be viewed simply as his performing a deliberate intentional and planned act without reason otherwise on the evidence. It seems to me that this submission ignores the surrounding circumstances, much of which in fact comes from the Crown's own case at trial.
There can be no doubt that the accused said the words he did at the police station and behaved in the way he did. There can be no dispute that he became increasingly agitated as he was left with the police, perfectly appropriately, refusing to agree to his demand to move the car. There can be no dispute about the general circumstances surrounding the offence, namely, the increasing violence on the streets involving outlaw motorcycle gangs, his close connection with such groups in the past and his ongoing association with members of that group. There can be no dispute about the fact that even the police at the time thought his premises were a likely target. There can be no dispute on the facts that the police truck was there attracting some attention. All of that comes from the Crown's own case at trial. If his reason for committing this offence was simply because he wanted to rid himself of some nuisance or obstacle to his business, or simply because he wanted to have a go at the police, it is unlikely in the extreme, it seems to me, that he would have gone to the local police station where he was known, said what he did, made the threats he did and then immediately go back and within minutes actually carry out the threat.
The reason he gave for holding the belief he did, namely, that the presence of the truck was making him and his family a target, needs to be viewed from his own background and in the circumstances that were then occurring in Sydney. I accept on the balance of probabilities from his evidence that he at the very least believed he was being watched and believed that there was a high level of threat to him personally and also to his family at the time. He went to the police as a last resort. The demand he made of them was completely inappropriate and unreasonable and the police at the time had good reason to do what they did with the truck. There is no suggestion, and can be none, that they themselves expected that the presence of the truck would increase his risk of attack. But viewed through the offender's eyes I accept on balance that this was his belief. I accept that there were other avenues available to him and that his demands to move the truck were unreasonable. No doubt these sorts of considerations form part of the reason why he ultimately pleaded guilty and did not press these facts as constituting a defence of necessity.
As to the Crown's proposition, I accept the offence was deliberate and intentional. The accused himself has agreed to that by pleading guilty. I do not accept, however that it is open to characterise the offending as being planned. The accused gave evidence, which I accept, that when he went to the police station it was not then his intention to burn the police truck. He just wanted it moved. The decision to do so I accept was formed as he was talking to the officer and he acted on that decision within minutes after returning to the tattoo parlour. What he used to do so were items immediately on hand in the tattoo parlour and did not involve great planning.
What is more, he did not even think about the fact that his actions were being recorded by his own closed circuit television equipment. Thus, there was vision of him taking the baseball bat and the Isopropyl out to the truck. Even though he thought about coming back the next day to disable the closed circuit television, he did not think about removing the hard-drive which would have extinguished the evidence altogether. All of this taken together gives this offending the hallmarks of almost spontaneous behaviour, brought about in a state of heightened anxiety, not planned offending in the way that is understood to amount to an aggravating feature. It is also consistent with the offender's assertion about his reason for committing this offence.
It would not be open, it seems to me, to reject the offender's evidence as to his motive given all of the other surrounding evidence which was in fact called in the Crown's case which supports that proposition. On balance therefore I accept his evidence about motive. I accept that by the time he went to the police station around 3am he had in his own mind formed a view that the police truck was making him and his family a greater target for drive-by shooting or direct shooting of him because it sent a message that in some way he was cooperating with the police. He behaved quite unreasonably in demanding that it be removed and then, of course, criminally in taking the action he did to burn it.
On these facts it is a serious offence because it involved the burning of a police vehicle. The damage caused to it and the surrounding shop was extensive. The value is significant, albeit not huge. The fact that it was a police truck that he burnt it seems to me increases the objective seriousness and calls for real general and specific deterrence. There is an element of the offender's taking the law into his own hands, something which of course the authorities were trying to deter amongst outlaw motorcycle gangs. There is no room for any view within any section of the community that any individual is entitled to take the law into his or her own hands, and where people do so and commit a criminal offence, then the appropriate sentence should be one which deters this behaviour both at large and for the individual.
That having been said, however, there are aspects of this offence which mitigate the objective seriousness and reduce the offender's moral culpability. It was not planned. Whilst the whole event is caught up in the disputes or activities then occurring involving outlaw motorcycle gangs in Sydney, this particular offence on the evidence was not committed as part of an organised criminal activity. More significantly, however, it was committed in circumstances where the offender, wrong and unreasonably, but nonetheless I accept in fact, believed that he needed to remove the truck to reduce what he thought was an imminent risk to him and some risk to his family at the time. He chose an extreme course by burning the truck and it was a course which paid no regard for public safety at the time but, I accept on balance, he did so because of this belief he had. That finding necessarily reduces the objective seriousness of this particular offending behaviour.
As I have said the offender pleaded guilty to this offence when the re-trial was about to commence on Tuesday this week. That is thus not an early plea of guilty. There is, however, utilitarian value in that plea. I reject the Crown's specific submission that there is no utilitarian value represented by that plea. The fact is that the need for a re-trial was avoided by this plea. Much if not most of the evidence in the earlier trial went to the first count in the indictment on which he was acquitted by direction because of a gap in the Crown's evidence. The only reason there needed to be a re-trial at all was because the police had not analysed the hard-drive quickly enough, although apparently they had managed to analyse other electronic equipment seized from the offender.
This plea, it seems to me, would have been entered even earlier had that evidence been made available earlier. In fact, the earlier trial should not have commenced in the absence of that evidence but, as I have already said, unfortunately neither the Crown nor the Court was informed that the analysis was imminent. The trial should have been delayed until it had been undertaken and possibly Court time could have been saved. There is a utilitarian value, at the very least, in the avoiding of a second trial by this plea of guilty. Because of its timing, however, it is not at the top of the range. What is more, the accused's position of relying on a defence of necessity and making it unnecessary, in large part, for the Crown to call much of its circumstantial case to prove that he committed the offence, was only made known on the first day of the first trial.
It is also the case that the Court was only advised of the plea when the matter came on for re-trial on Tuesday this week. But I do not in the circumstances accept that this reduces to nil the actual utilitarian value of the plea in actually avoiding the trial. I accept that the accused's legal representatives advised the Crown twice last week of the possibility that the accused would plead guilty but would not able to confirm it until Tuesday, the first day of the trial, for practical reasons in large part because the accused is in custody, bail refused, and there was a long weekend intervening. Almost any plea of guilty reflects in some utilitarian value. This one is no different. The re-trial would have lasted about five days. That has been avoided and it has been unnecessary for all of the officers and others to come back to court to give their evidence again.
In accordance with the dicta of the Court of Criminal Appeal in R v Thomson and Houlton there should be a discount, albeit towards the bottom of the range around about ten per cent or a little more.
The plea of guilty is some evidence of contrition and remorse, but there is little other evidence in that category. The Crown has argued on sentence that there is no evidence of contrition and remorse. I do not accept that argument. When giving evidence at trial the accused did express some degree of remorse for having committed the offence.
In answer to cross-examination by the Crown he was exploring his thought processes at the time he set fire to the truck and, in particular, whether he had given any thought to the risk that his actions posed to surrounding businesses and people, he said this at p 296:
"Not at the time. At the time I was saving my own life and that's how I felt, that is where my mind was."
He went on to say this in answer to a further question in cross-examination:
"I wasn't thinking. The last thing I wanted to do was torch that car. I wanted to get it moved and I lit it and I am sorry I lit it."
So there is some, albeit scant, evidence of remorse in addition to his plea of guilty.
He also gave evidence, which, I accept, that not long after having committed the offence he went home and later before attending the police station told his children that he was probably going to prison, thereby a recognition of his own offending behaviour. Of course this happened around the same time as he disconnected the closed-circuit television in an attempt to distance himself from the event which, itself, would have always been a futile effort given he did not remove the hard-drive but, also significantly, that he had been at the police station making threats to do the very thing he did just minutes before it happened. Nonetheless there is some evidence of contrition and remorse in the way that I have just outlined.
I now turn to the subjective circumstances. Some of that background I have addressed in the factual findings. The offender is now forty-eight. He is married. He has several children, but significantly and perhaps relevantly they include twin girls who are now teenagers. As I have said he has the custody of those children as a result of the court orders and was providing care for them with his wife at the time he committed this offence. I accept that his wife and children and former partner and others remain available to support him and in due course he will return to the community to live with his wife and his children. He has had a number of people present in court supporting, who, so far as I can tell, appear to be members of his family.
As I have said, he is now nearly forty-eight. He has a criminal record, a matter he acknowledged to the jury in his evidence at the first trial. It is a relatively limited criminal history in the circumstances. It commences with an entry in the Children's Court, but for the first two pages, apart from this one juvenile matter, is comprised almost entirely of motor vehicle or licence offences dealt with by way of a fine. He also has a minor drug offence in 1993. There are no offences of violence on his adult record, although there are three convictions for possessing or using an unlicensed or prohibited firearm. There is no record of offending between 1991 and 1996. There then follows some more minor drug offences and traffic offences, all dealt with in the Local Court by way of fines or bonds up to 2004.
In 2006 he committed three offences, including the most serious one of concealing a serious indictable offence and also possessing or using a prohibited weapon and possessing a prescribed restricted substance. The most serious of those occurred in about August 2006 and I accept in circumstances where he had himself been shot, more probably than not as a result of his involvement at that stage as national president of the Nomads motorcycle club, and refused to disclose the identity of his attacker. For that he was sentenced in the Local Court to eighteen months imprisonment, but on appeal to this Court in November 2008 that was converted to two years imprisonment to be served by way of periodic detention as to twelve months non-parole.
He has not come to the attention of authorities for any offending behaviour since then and there is no record of his having been charged with any criminal offence since these offences which occurred in August 2006 until he committed this offence in April 2012. That is in circumstances where he was for some of that period still a member of the Nomads, known to the police as such, and for all of that period operating a tattoo parlour close to Newtown Police Station with all the notoriety and notice that operating such a business attracts.
In the circumstances it seems to me that this is not a significant criminal record. Further, the term of imprisonment he has been serving bail refused for this matter is, in fact, the first full time term of imprisonment he has ever been required to serve. Of course, he is not a stranger to prison, having spent some time in prison from time to time bail refused before ultimate sentencing for other matters. He has been in custody bail refused for this matter in two separate blocks. He was refused bail on his arrest on 21 April 2012 and granted bail by the Local Court on 27 April, thus spending seven days in custody for this offence. The DPP appealed that decision to the Supreme Court, which on 8 May revoked his bail and he has remained in custody bail refused ever since, that is eight months and twenty-four days to today. Therefore, he has been in custody bail refused in two blocks for a total of nine months before sentence. That time I accept has been on remand awaiting trial as an unclassified prisoner. I will backdate his sentence to 30 April 2012 to reflect those nine months in custody bail refused.
I now turn to assess his prospects of rehabilitation, that is, how likely it is that he will commit criminal offences again of this type or any other type. The Crown has argued that there is no evidence from which I could make any finding that he has good prospects of rehabilitation. I reject that submission. There is evidence that he has a relatively limited criminal record. Evidence that he has never committed anything that ultimately gave rise to full-time imprisonment. No evidence that the periodic detention sentence that he was ordered to serve was served in any way that brought him to the notice of authorities. Nothing that, except for one appeal, was ever serious enough to be dealt with in the District Court before and nothing in the past as serious as this offence. This offence was a one-off set of circumstances and he is unlikely, on my finding, to behave in that way ever again. On the record he has not committed any criminal offence since 2006 and even that was an offence of concealing an offence where he himself was the one who had been shot. He has not committed any offences since going into custody on this occasion, according to his custodial record. He is now almost forty-eight and has ultimately pleaded guilty and expressed some remorse. All of that is evidence from which his prospects of rehabilitation can be assessed.
It is also the case, I accept on the evidence, that he will probably always have an ongoing association, at the very least, with people in motorcycle clubs, even though it is referred to as outlaw motorcycle gangs. I infer he will continue to operate a tattoo parlour with all of the activities that often surround such businesses. That evidence too can be taken into account in assessing his prospects of rehabilitation.
On balance, however, I accept that his prospects of rehabilitation are good. That he will serve his prison term, get released on parole, serve his parole without incident and probably will not be charged with any further offences in the foreseeable future. That, of course, can only ever be a prediction based on the evidence which I have outlined.
He will also have his family available to him, which assists his prospects of rehabilitation. It does not seem to me that he will require any ongoing supervision from Probation and Parole when he is released to parole to assist with those prospects of rehabilitation. But in any event, as I understand it, he will go back into the Newtown community and continue to operate his tattoo parlour there, very close to the Newtown Police Station, which of itself provides a significant degree of ongoing scrutiny.
So I take all of that into account to determine the appropriate sentence, together with paying regard to the maximum penalty of ten years, and as I have said, bearing in mind the fact it is a table 1 offence, this is an offence that was capable of being dealt with in the Local Court where the maximum penalty would have been only two years.
I have also had access to the statistics produced by the Judicial Commission for offences dealt with in the District Court under this section. The highest sentence on those statistics ever imposed was six years overall, but that was in circumstances where the matter had gone to trial with a plea of not guilty. On those statistics only sixty-nine per cent of those sentenced in this Court for this offence received terms of full-time imprisonment after entering pleas of guilty, but I accept that given the objective circumstances surrounding this offence full-time imprisonment is the only available sentence.
In the circumstances of the offence that I have found and taking into account the circumstances of the offender himself and the fact of the plea of guilty, I have concluded that an overall term of imprisonment of three years is appropriate.
I accept, again, contrary to the Crown's submissions, that there are some special circumstances, which would reduce the appropriate non-parole below the statutory ratio. The first is that this is his first full-time period of imprisonment. The second is that a significant portion of his non-parole period has been served in custody on remand as an unclassified prisoner, and for that a matter in two blocks after a release to the community for ten days.
I further take into account his age and the fact that he has custody of his two daughters and needs to return to them as soon as possible, and has generally good prospects of rehabilitation. For that reason I am setting a non-parole period of eighteen months, backdated to 30 April 2012. In doing so I thus reject the submission made on his behalf that time served would be sufficient. But, further, I do not accept the Crown's submission that there are no grounds on which I would find special circumstances to reduce the non-parole period below the statutory ratio.
In the circumstances of this matter, as I have found them, taking into account also the circumstances of the offender, it seems to me that a period of imprisonment of eighteen months non-parole with eighteen months thereafter on parole is appropriate.
As I said earlier, there is a claim for compensation both made by the Police Service and by either the café owner or his insurer for the damage suffered to the premises and to the police truck. It has been argued on the offender's behalf that I would not make the order for compensation to the Police Service. As I understand the argument that is in large part because of the costs that he has incurred in the trial which was vacated because of the late analysis of the CCTV hard drive. In those proceedings I made an order under the Suitors Fund Act for a certificate of payment of the offender's costs of that vacated trial. Hopefully, those responsible for making such orders in the Attorney General's Department will act on that order sooner rather than later. I have already signed the certificate and it is available for action immediately. I am conscious of the maximum available under such a certificate is $10,000. and also accept the submission that the accused has outlaid significantly more than that for the conduct of the trial that was vacated last week.
The grounds are made out under the relevant legislation for a compensation order, both to the Police Service and in relation to the damage to the café. There is not argument with the latter. There is discretion, however, whether or not to order it. The grounds on which I am sought to exercise my discretion is that the offender will always be significantly out-of-pocket even after any Suitors Fund order is made for the trial that was vacated. It seems to me that that is not an appropriate basis on which to exercise a discretion not to order the compensation. The Police Service is out-of-pocket for the cost of the damage to the police truck purely and simply because the offender burnt it down. The quantum is probably proved. I will be making the order as sought. There is no objection on the offender's behalf to the orders for compensation made by or on behalf of the café owner. I will also make that order.
In those circumstances then I make the following formal orders. The offender is convicted. He is sentenced to a non-parole period of eighteen months imprisonment commencing on 30 April 2012 expiring on 29 October 2013 with parole thereafter of eighteen months, commencing on 30 October 2013 and expiring on 29 April 2015, giving rise to an overall term of imprisonment of three years commencing 30 April 2012, expiring 29 April 2015. I direct that he be released to parole at the expiration of the non-parole period.
I make orders for compensation as follows. The sum of $58,138.71 to the New South Wales Police Force. The sum of $2,300 to GIO Insurance AND the sum of $230 to RY Trading Pty Limited.
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Decision last updated: 28 August 2013
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