R v Peyroux-Dean

[2020] NSWDC 84

District Court

New South Wales

Medium Neutral Citation:	R v Peyroux-Dean [2020] NSWDC 84
Hearing dates:	13 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 6 years, 3 months with a non-parole period of 3 years, 9 months: at [17].
Catchwords:	CRIME — Violent offences — Aggravated robbery — With corporal violence SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Deterrence — Factual basis for sentencee — Parole period SENTENCING — Sentencing procedure — Pre-sentence reports SENTENCING — Subjective considerations on sentence — Special circumstances— Purposes of sentencing
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Imbornone v R [2017] NSWCCA 144 R v Qutami (2001) 127 A Crim R 369
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Robert Peyroux-Dean (Offender)
Representation:	Ms Keay (Crown Prosceutor)   Mr Doig (Counsel for the offender)
File Number(s):	2018/295859

Judgment

1. Robert Peyroux‑Dean, aged 29, appears for sentence having pleaded guilty at a relatively late stage to a charge under s 96 of the Crimes Act 1900 of aggravated robbery inflicting grievous bodily harm. The offence carries a maximum penalty of 25 years imprisonment with no standard non‑parole period. The plea entered in the circumstances where it is agreed that there should be a discount of 10% applied for the utilitarian value of that plea.

2. The maximum penalty of course represents the legislature’s assessment of the serious nature of this type of offending, and it is yardstick in the sentencing process which must be carried out in accordance with the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999, bearing in mind the purposes of sentencing.

3. The co‑offender, Kirsty Whitney, was sentenced by Noman DCJ, following an early plea of guilty, to a term of two years and four months imprisonment with a non‑parole period of 18 months. That sentence was imposed at after applying a total discount of 40%; namely 25% for the plea of guilty and 15% for assistance under s 23 of the Crime (Sentencing Procedure) Act 1999. A significant difference is that she pleaded guilty to robbery in company contrary to s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment.

4. The offence involved a victim named Denis Stepanovic. He had known Whitney and Peyroux-Dean for about four years and he had. They met through acquaintances in the Queanbeyan area.

5. On the afternoon of 8 August 2018, Whitney contacted Mr Stepanovic to arrange a meeting for a drug transaction to take place. Mr Stepancovic later told police the arrangement was that he was going to buy $500 worth of methamphetamine, while Whitney said she was going to meet the victim and he was going to supply amphetamine to her. Before contacting the victim, Whitney and Peyroux‑Dean had already agreed to arrange a meeting so they could rob the victim. She said she arranged the meeting in a secluded location on the pretence of a drug transaction where Peyroux‑Dean would be waiting to remove items from the victim. The victim contacted her by telephone later that day to tell her that he was ready and they would meet in a cul‑de‑sac in Surveyor Place at Queanbeyan. He said he would ride his bike there. He was riding a bike with a wallet containing $500 and bank cards and personal ID, a mobile phone, and other equipment.

6. He saw Whitney alone in her car when he arrived and he approached the car and she appeared to be asleep. He tapped on the window waking her up and she opened the door and they began to speak. Then he saw Peyroux‑Dean walking in front of nearby houses and he was expecting that he would pass by and the next thing he felt was a strong impact on the side of his face, coming from behind his right shoulder. He fell to the ground because he had been punched in the face by Peyroux‑Dean and he looked up to see Peyroux‑Dean standing over him. He attempted to get to his feet and he was punched in the face again with a clenched fist and again he tried to get up and he was punched in the face three or four times and Peyroux‑Dean said, "Stay there or I'll stab you". Whitney's car remained at the scene while he was being assaulted. Peyroux‑Dean used one hand to hold him on the ground as he searched his pockets and he kept saying, "Stay there or I'll stab you" and the offender was feeling around his belt when he said this. Fearing for his safety, the victim remained on the ground beside the car. He tried to remove the back pack from the victim's back but the victim became unconscious. His next memory was waking up in Canberra Hospital and some photographs show the graphic and serious injuries to his head occasioned by this assault.

7. His wallet, phone, bicycle and back pack were all taken during the assault. Ms Whitney left in her vehicle, went to see her partner and they returned in a four wheel drive and took the victim to Queanbeyan Hospital for medical attention. The injuries included shattered and fractured bones in his face, cheeks and jaw. He underwent surgery and had eight steel plates inserted and secured in his face with screws and his jaw was fractured and out of alignment and he couldn't eat solid food for a lengthy period of time.

8. Whitney was spoken to by police on 21 September 2018, and a mobile phone was seized which led police to identify phone communications between Whitney and Peyroux‑Dean, and in particular on the day of the assault and immediately after the assault and further communication between the two in the ensuing days.

9. She was arrested on 24 October 2018 and she ultimately admitted that she had arranged with Peyroux‑Dean for him to attending the meeting and to take possessions from him. She said the plan was to take drugs from the victim. She said, "The plan was to take amphetamines off Dennis so he could go and swap it for heroin" and that she and Peter, that is her partner, were going to get amphetamines as a result. She denied knowing that Peyroux‑Dean was going to inflict the violence; "We only thought we were taking there to get stuff off him we didn't know he was going to bash him". She said that Peyroux‑Dean had provided her with $500 a couple of weeks later, and she admitted that some of the items taken from the victim had been at her house and she denied being in agreement for the victim to be injured or foreseeing the possibility of a really serious injury.

10. On 26 September 2018, police went to a unit at Queanbeyan where Peyroux‑Dean lived from time to time. The back pack taken from the victim as seen there. He was arrested on 27 September 2018 and declined to participate in an interview.

11. His record includes a number of offences for which he has served terms in custody; six months imprisonment for driving offences in November 2008; 12 months imprisonment with a non‑parole period of six months; a two year sentence with a non‑parole period of six months for robbery in company in 2014; a sentence of five years and six months with a non‑parole period of three years and six months between January 2010, expiring July 2013; and a nine month term of imprisonment with a five month non‑parole period in 2016 for contravening an AVO, which appears to be have served largely concurrently with a term of imprisonment of of nine months, with a non-parole period of five month for contravening an AVO and using a carriage service to harass. Parole was revoked, and he served a balance of parole between 21 March and 11 June 2017.

12. No evidence was led by Mr Doig of counsel for the offender.Tthe subjective case is confined to a history set out in a Sentence Assessment Report which is not adopted or tested and is therefore treated with a significant degree of caution in the light of authorities such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144 , though the author did speak to his father at Burwood Community Corrections and had access to the police facts and corrective services records by way of corroborating some of the history.

13. It is said that he has two children who both live with their mothers, so, presumably two children born to different mothers and he plans on living with his mother when he is released. He was unemployed at the time of the offending and he has some qualifications. He has a steady history of domestic violence, driving and drug related offending. He accepts responsibility for his offending and said that he does not support crime. He said that he was living with a person who encouraged him to commit the offence and said that he was under the influence of opiates at the time of the offending and he would use $150 worth of opiates each day and that he committed the offence to support his drug addiction. He justified his use of violence against the victim, secondary to the victim allegedly being an ice dealer.

14. He had some insight, he was able to identify the impact that his use of violence had on the victim and he understands that violence has consequences. He said would like to attend a residential rehabilitation program to address his drug addiction. He was assessed as being a medium to high risk of reoffending. I have had regard to the agreed facts in the matter of Whitney and the sentencing remarks of Noman DCJ. It is clear that although there was a joint criminal enterprise, this offender has to be sentenced by reference to his role and culpability and in light of the fact that he pleaded guilty to an offence carrying a significantly greater maximum term and noting that Noman DCJ, did not sentence Whitney for the violence and the injuries sustained. Her Honour assessed Whitney's offending as being slightly below the mid-range and the objective facts to which I have referred indicate that this is a very serious offence of aggravated robbery and serious injuries with some lasting effects were occasioned to Mr Steponovich.

15. As the Crown said in written submissions, although the offender stated that he wanted to change his life, there was no evidence of any steps taken by him to address his long standing drug addiction issues. The Crown helpfully set out in a table the differences between Whitney and Peyroux‑Dean which are matters that I have taken into account and have referred to. In particular, Whitney had no history of similar offences, whereas I have mentioned that Peyroux‑Dean has convictions for armed robbery and robbery in company. The offence did involve limited planning. Both of the offenders planned the offence the afternoon that it occurred, and both offenders were drug addicts and committed the offence in order to obtain a list of drugs. There is no challenge by Mr Doig to the submission that the sentence to be imposed should reflect Peyroux‑Dean's greater role in the joint criminal enterprise and the fact that he has pleaded to a much more serious offence. He has been in custody in custody since his arrest on 27 September 2018 and a term of imprisonment should of course commence on that date.

16. Mr Doig submits that it would be in the community's interest if the offender was able to successfully rehabilitate himself and that is no doubt true. His criminal history and custodial record confirms a long involvement with illicit substances and even though he has had the benefit of engagement with the Drug Court, his addiction has been such that he struggled to comply. He is at an age now where if he does not successfully rehabilitate himself, his future is indeed bleak.

17. It is acknowledged that his record disentitles him to leniency, and it is also acknowledged that general and specific deterrence and denunciation are very important factors in the sentencing process. Mr Doig submits that the sentence should not be one which is crushing, and should involve some element of encouragement towards rehabilitation and reintegration in society, with an expectation that at his age, he can eventually become a prosocial member of society, but it is clear that he will need significant supervision, direction and counselling which forms the basis for a finding of special circumstances.

18. The orders that I make are:

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 6 years, 3 months, to commence on 27 September 2018.

3. I impose a non-parole period of 3 years, 9 months, expiring on 26 June 2022.

4. I find special circumstances.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 03 April 2020