R v Phelan

[2020] NSWDC 219

District Court

New South Wales

Medium Neutral Citation:	R v Phelan [2020] NSWDC 219
Hearing dates:	20 March 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 3 months: at [37].
Catchwords:	CRIME — Violent offences — Demanding property with menaces — Detain for advantage SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Factual basis for sentence — Form 1 offences — Multiple offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Drug addiction — Special circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 BP v The Queen [2010] NSWCCA 159 Imbornone v R [2017] NSWCCA 144 R v Qutami (2001) 127 A Crim R 369 R v Shankley [2003] NSWCCA 253
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Tate Phelan (Offender)
Representation:	Mr J Mehta (Crown)   Mr P Johnson (Counsel for the offender)
File Number(s):	2018/139900

Judgment

1. Tate Phelan, now aged 21, appears for a sentence in relation to a number of offences in 2018 involving a young man named Lucas who was 22 years of age at the time of the offences.

2. First, an offence of demanding property in company with menaces with intent to steal contrary to s 99(2) of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment (sequence 001). Secondly, an offence of take and detain a person in company with intent to obtain an advantage contrary to s 86(2)(a) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment (sequence 002). Thirdly and finally an offence contrary to s 86(3) of the Crimes Act 1900, of aggravated take or detain a person in company with intent to obtain an advantage, occasioning actual bodily harm which carries a maximum penalty of 25 years imprisonment (sequence 004). There are no standard non-parole periods for any of these offences.

3. There is a matter to be dealt with on a Form 1 (sequence 003) of demand property in company with menaces with intent to steal contrary to s 99(2) of the Crimes Act 1900 which is attached to the first count on the indictment (sequence 001), and that will be dealt with in the way suggested by the Chief Justice in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

4. Pleas of guilty were entered at the time the matter was listed for trial, in circumstances which justify a 5% discount on the term of imprisonment which Mr Johnson of counsel acknowledges is the only appropriate outcome of the proceedings.

5. Mr Phelan spent about 18 months in juvenile custody until late 2017, and he has been in custody on these matters since his arrest on 3 May 2018.

Facts on Sentence

6. The facts show that the victim Lucas was aged about 15 when he started a relationship with the sister of a man named Jarryd Dixon. The relationship lasted about three years and it ended over a disagreement. Lucas did not strike the girl. A few days after the break-up, Jarryd Dixon punched Lucas.

7. About five years later, on 13 January 2018, Lucas was at the Newmarket Hotel with friends. He saw Jarryd Dixon, who was with Tate Phelan and another male at the bar. Lucas said to Dixon “I’m sorry about that happened before”, expecting that their history was in the past. Dixon said to him “Well say sorry to this guy”, pointing to the offender.

8. The offender was about ten inches taller and of larger build than Lucas. Shortly after that, Phelan, Dixon and the other man approached Lucas and asked him to go outside. He initially declined but they insisted so he did so reluctantly. Phelan said that as far as he was concerned Lucas had hit Dixon’s sister and he said “I want five grand I’m giving you a week, a nimble loan, ask a friend but you have to settle a debt for what you’ve done. If you don’t get it, I’ll kill you, I’ll slaughter your family”. He made him produce his wallet and ID card and Dixon took a photo of it and he gave him his phone number, and over the next several days, he received several missed calls from Dixon’s number.

9. Some days later, on 23 January, Lucas was at McDonald’s at Maroubra and Phelan walked in with two males and he said “Where do you think you’re going, you owe me five grand, what happened, you’re being dodgy, you changed your number and you gave me a false address”. He took him into a disabled toilet and locked him in there and asked him if he had any money. One of the other men said “Fuck him, let’s take all his money” and Phelan said “Just take 500 for now”. They made him do a cardless transaction for third party collection and he got $500 from an ATM.

10. Phelan was still in the disabled toilet with Lucas and he intimidated him there. He was in a state of fear for his safety and the safety of his family. The other male came back with the $500 and Phelan said to him “This is his last chance to get the money” and he had two weeks to get the 5,000.

11. The third count relates to events on 27 April when Lucas was travelling on a bus to La Perouse when Phelan and Luca Piesco boarded the bus. Phelan made a stranger sitting next to Lucas move so that he could sit down next to him. Piesco stood beside Phelan. Phelan said to him “You’ve been dodging me - you’ve been dodging, so I’ve given you more than enough chances, I want my 5,000, where is it?” Lucas was really scared. He told the Phelan he did not have any money. They made him get off the bus and they went to a park near Malabar Road. Phelan said to him to get the money because “Your life is on the line, we’re not leaving till you get it, we’ll get our five grand, I’ll shoot you here and now”. The offender told him not to call his dad as he feared he would call the Police so he called a friend to plead for the $5,000 and he told him “My life is really at risk here”.

12. Phelan then contacted Reese Macey and he said “I found the guy we’re looking for, he’s going to get the money, meet us at Malabar Road”. Macey arrived shortly after in a tradesman’s van. They told Lucas to get in the van. Phelan got in the passenger’s seat and they drove to a park near Matraville near the offender’s address. Macey and Phelan threatened Lucas, saying he had a couple of minutes to get this sorted. He made some phone calls, and about 15 minutes later, another man (unnamed male) arrived. The unnamed male made Lucas remove all of his clothes apart from his underwear. He punched the victim to his face causing him to fall and then kicked him while he was on the ground in his stomach and sides. Lucas suffered grazing to his back and his left elbow as a result. The unnamed male and Phelan said that Lucas was going to be taken to his home address, but they expected $5,000 the next day.

13. The agreed facts conclude without any indication as to what happened until his arrest, presumably on the 3rd of May 2018.

Co-offenders and Parity

14. The co-offenders have been dealt with by different courts. Firstly Piesco was dealt with by a Local Court Magistrate and given a two year Community Corrections Order. He was sentenced for what was in effect count 3 here, but he left well before others arrived and other things happened.

15. Macey was sentenced by me to a term of two years and five months to be served by way of intensive corrections order for his involvement in count 3. He had no prior record. He arrived sometime after the commencement of the offence. Mr Johnson’s submissions note that the presumed starting point for the indicative sentence for that offence for Macey was two years and he concedes that the starting point for this offender would be somewhat higher.

16. Dixon was sentenced by his Honour Judge Armitage in July last year to three years imprisonment with a non-parole period of one year and one month for what was count 1 in this case. The judge applied a 25% discount to the indicative sentences of two years, and two years and six months respectively. He had drug and psychological issues; a juvenile record and he received an extremely generous allowance for special circumstances.

17. It can be seen that although questions of parity must be borne in mind, each of the three other men who have been sentenced for their involvement in various parts of this lengthy episode of offending, were each were dealt with on the basis of significantly different charges and with different objective and subjective circumstances.

Subjective material on sentence

18. I have a very lengthy handwritten letter of apology from Mr Phelan, which points out the very difficult circumstances under which he was held in juvenile custody until he was about 18. It says he was diagnosed with post-traumatic stress disorder, depression, paranoia, anxiety and schizophrenia and he was on multiple medications. He acknowledges that being arrested on this occasion was what had saved him, because it has enabled him to get away from all the bad influences around him. He has worked hard to address his anger management and mental health issues while in custody and he has engaged with psychiatrists, counsellors, nurses and doctors while in custody. He says he has made real progress towards becoming a good man and he wants to positively contribute to his community. While he understands that his criminal history is not favourable, he does not seek to excuse his behaviour. He provides an insight into his life as a child which involved him having a beautiful, loving family. He was raised in a good environment. He says that he was abused when he was about 11 years of age. He notes the support that he has from his family. He has work available for him on his release and he assures me that he will never reoffend or appear in court. He says he has taken all the necessary steps that he can to lead a happy and healthy life. He was hoping to read this letter out which contains an apology to Lucas and he hopes that one day he can be forgiven for what he did.

19. That history is summarised and expanded in a report of a consultant forensic psychiatrist, Dr Richard Furst who had also prepared an earlier report on 14 November 2018. It sets out his family circumstances. His mother is a university lecturer; his two older brothers and his sister are in regular work or study. He describes his history of Xanax use from age 12 to 13, ice from age 14, MDMA on occasions and cocaine from the age of 15, progressing to a regular habit. There were some serious traumatic events around age 14 or 15 including an assault in Hyde Park when he was stabbed in the groin in May 2015. Had a further assault in Hyde Park in October 2014.

20. He did some work in the construction industry after leaving school and before going into juvenile custody. He was ultimately placed in segregation during that period of incarceration.

21. After his release, he stopped taking his medication and experienced ongoing symptoms of depression, anxiety and paranoid thoughts and ended up using drugs on a daily basis again. He said that he was using cocaine daily, drinking heavily and smoking cannabis and using ice at the time of the offending.

22. Phelan asserted to Dr Furst that the motivation for the offending was that Lucas apparently owed his drug dealer one ounce of cocaine, worth about $5,000 and that Phelan agreed to get this money back for his dealer. The Crown has pointed to a significant quantity of evidence which tells against that assertion, and given that the assertion is not tested or adopted in evidence and therefore, treated with caution such as set out in cases like R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, I am not in a position to make a finding one way or the other that the profit motivation asserted to Dr Furst has any validity.

23. Dr Furst says that he was experiencing depression, anxiety and paranoid thoughts around the time of the offending. He has accepted his responsibility for his offending and the impact on the victim. He is experiencing ongoing symptoms of anxiety and PTSD, and he recommends continued care through Justice Health Psychiatric Services along with medication and the number of other comprehensive programs.

24. The offender has been held in segregation in custody while at Long Bay and there have been some entries on his custodial record for possess drug, disobey direction, assault, possess drug and possess tobacco.

25. As Mr Phelan said in his letter to the court that he does have significant family and community support as evidenced by the letter from his mother and stepfather. They visit him regularly and provides him with unconditional support; they miss him and want him back home. He has plans for the future, involving education, employment and sport and he has a dedicated extended network of family and friends who are prepared to support him.

26. I also have a lengthy reference from Ms Suzanne Leal, senior member of the New South Wales Civil and Administrative Tribunal and formerly a criminal lawyer who has been supporting him and visiting him in custody and encouraging his creative writing. She has made efforts to engage him with the co-ordinators of the St. Leonards TAFE in relation to further education on his release. She expresses a view that he has a commitment to his writing studies and the discipline to be successful. She has offered to mentor him as he continues his studies.

27. Mr Craig Bell, a solicitor, also speaks highly of him; and knows the offender from the period when he was playing under Mr Bell’s coaching in a football team.

28. Mr Robert Smythe, a former employer, says that he has work for him on his release.

Objective seriousness and other matters to be taken into account

29. Turning to the objective seriousness of each matter, there is not a great deal in contest between the helpful written submissions of the Crown and Mr Johnson. As to count 1 (sequence 001), he chose to involve himself in a dispute between Dixon and Lucas, and he escalated the matter by threatening to kill the victim and making a demand for $5,000 and getting his phone number. I accept the Crown’s characterisation of this as below mid-range, as acknowledged by Mr Johnson.

30. Count 2 (sequence 002), together with the Form 1 matter (sequence 003), followed a spontaneous meeting between Phelan and Lucas. He immediately demanded money and confronted him, locking him in a toilet. This was a more prolonged detention and I accept that it is slightly below the mid-range of objective seriousness. The Form 1 matter is well below the mid-range for s 99(2) offences.

31. Count 3 (sequence 004), is the most serious matter, carrying the longest maximum penalty. Again, Lucas had the misfortune to be in close proximity to the offender and Piesco on the bus. He immediately confronted him and demanded $5,000. He took him off the bus and threatened to shoot him. He then called Macey and got him involved and they took him away from the initial scene and then summoned another man to physically assault him. Mr Johnson concedes that it is a serious matter involving three other co-offenders at various times. In my view the offending is around mid-range.

32. I accept that his prior record, as Howie J said in R v Shankley [2003] NSWCCA 253, indicates that a more severe sentence may be warranted for the purposes of “retribution, deterrence and protection of society”.

33. General and specific deterrence are significant matters to take into account, both in setting the sentence and the non-parole period.

34. I accept his expressions of remorse and regret and note the plea of guilty as I have indicated. His youth at the time of the offending is a matter to be taken into account. As Hodgson JA said in BP v The Queen [2010] NSWCCA 159,

“emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-20s”.

35. As Mr Johnson submits, the offences demonstrate a level of immaturity. There was not significant planning, reflection or evidence of any mature decision-making. Mr Johnson’s submissions highlight the subjective circumstances which are already summarised. He concedes there should be some degree of accumulation when one considers questions of totality, given that there were separate offences albeit with the same victim, at different times.

36. In my view, there is a significant basis for a finding of special circumstances, given that he would benefit from an extended period of supervision upon his ultimate release and he is undergoing his first period in adult custody in difficult circumstances.

37. The orders that I make are:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. 001, taking into account the Form 1 matter (003): 30 months;

2. 002: 22 months;

3. 004: 34 months.

3. I impose an aggregate sentence of imprisonment of 4 years, to commence on 3 May 2018.

4. I impose a non-parole period of 2 years 3 months, expiring on 2 August 2020.

5. I find special circumstances.

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

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Decision last updated: 20 May 2020