R v Ryan John West

[2015] NSWDC 140

District Court

New South Wales

Medium Neutral Citation:	R v Ryan John West [2015] NSWDC 140
Hearing dates:	29 July 2015
Decision date:	31 July 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For orders see [40]
Catchwords:	Specially aggravated break, enter and steal; reckless wounding
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cahadi v R (2007) 168 A Crim R 41 Pearce v R (1998) 194 CLR 610
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Ryan John West (Offender)
Representation:	Counsel: K Mulley (Crown) J Fitzgerald (Offender)   Solicitors:
File Number(s):	14/230377
Publication restriction:	Nil

remarks on sentence

1. The offender has pleaded guilty to the following charges:

1. Specially aggravated break and enter with intent to commit grievous bodily harm pursuant to s 113(3) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment.

2. Reckless wounding pursuant to s 35(3) of the Crimes Act 1900. For this offence there is a maximum penalty of 10 years imprisonment, with a standard non-parole period of 4 years.

2. The sentence hearing took place at Newcastle District Court on 29 July 2015.

Circumstances of the Offending

3. The agreed Statement of Facts reveal that on 2 August 2014, a co-offender, Brian Magus, drove past premises in Fingal Bay and observed two men standing in the front yard. The co-offender stopped his vehicle and had a conversation with those two men. A short time later, the co‑offender again drove past the same premises and an argument ensued in which the various participants threatened each other.

4. Later that morning, the co-offender drove to the premises with the offender and two other persons. Two of the four men were wearing balaclavas and after they alighted from their vehicle, all four were armed with either baseball bats or pieces of wood.

5. The two male residents locked the front door to the premises and exited via the back door. The co-offenders forced entry into the premises, following which, they observed the two male residents to be at the front of the premises. The four offenders ran out and surrounded the two males. The co‑offender threw a scooter at the older male, who was hit also with an iron bar across his back and shoulder. He fell to the ground and was hit by a co‑offender around his head and ankles with both a lump of wood and a metal bar.

6. Whilst this was occurring, the offender had moved away onto the roadway and spoke to a witness. Another co-offender was attacking the younger of the two males. The attackers then left the scene.

7. The older male victim suffered the following injuries:

1. 1cm wound to the left eyebrow which required two sutures

2. Two large wounds to his head over the scalp, each approximately 8cm in length. One required 11 staples and the other 7.

3. Large boggy swelling and bruising to the right scalp parietal region, approximately 8cm in length.

4. Moderate bruising and swelling to the left elbow with an epidermal wound and a fracture. The fracture required operative repair and fixation. There was injury to the nerves in the left arm, the prognosis of which is guarded.

5. Bruising and abrasions to the left upper abdomen and tenderness and bruising to the left chest wall

6. Bruising and swelling to the left lower leg

7. Bruising and pain on movement of left mid foot region

8. Mild bruising over the left wrist

8. On 5 August 2014 the offender was arrested. He agreed to participate in an electronically recorded interview in which he told the police that he had “smoked a lot of cannabis that weekend and couldn’t remember much”, and he otherwise denied being present when the break-in and assault occurred.

The Sentence Hearing

9. The Crown Bundle (exhibit A) included a Statement of Agreed Facts, together with a pre-sentence report from Ms N Beveridge of Newcastle Community Corrections office. That report revealed that the offender had grown up with the advantage of a close and caring family environment. He reported low to moderate social use of alcohol and nil use of cannabis and no history of violence.

10. Under the heading “Attitude to Offending”, the author reported:

“According to Mr West, the offence took place without pre‑meditation, claiming he had been invited by a co-offender to urgently help out with a situation. Whilst Mr West was unable to demonstrate reasonable insight into his actions, he stated that following the offence, he had been sickened by the scene, and, unable to face his family, and had sought solace at a friend’s house for a few days. He attested that during the commission of the offence he held concerns for onlookers nearby who were witnessing the melee. He alleged that he did not believe that he could have stopped the conflict and maintained that while he had a weapon in his possession, he had not used it.”

11. The report noted that the offender expressed “suitable remorse” for the distress caused to his victims and wished them a speedy recovery. He was assessed as a low risk of re‑offending.

12. The offender had taken steps to develop some insight into his actions by engaging with a psychologist. He was assessed as being unlikely to benefit from a period of supervision by Community Services and as being suitable for a Community Service Order.

Evidence for the Offender

13. The offender tendered a bundle of testimonials that spoke highly of the close and caring family from which he had come, and of the conduct involved in the offending as being entirely out of character for him. Most of those testimonials were from family members, but not all. All the authors were told of the circumstances of the offending and all expressed confidence in the offender being deeply remorseful for his actions, as having learnt from this experience, and being an unlikely re-offender.

14. The offender’s mother, Mrs Susan West, gave evidence that the offender was very upset with his involvement in the offending, and that as at June 2014, he was “acting outside himself”. At that time, he had part-time work, had begun to socialise with different people and had stopped playing sport, something which had been important to him.

15. Mrs West said the offender had left school in year 11 after suffering learning difficulties and requiring speech pathology. He had excelled at football until an injury stopped him playing approximately one year before the offence. Also, prior to the offending, his relationship with his father, which had previously been close, had broken down.

16. Mrs West told the court that her son was now seeing a counsellor, that he was working full-time with his father at the firm Coast Reo, had obtained a forklift driver’s licence, and had nearly completed a welding certificate. He was also involved in a fitness instructor’s course. He had very strong family support and had returned to training for football. He understood the real possibility that he would have a custodial sentence imposed on him, due to the serious nature of the offending. The offender had, according to his mother, made “massive improvements” and was no longer using cannabis.

17. In cross-examination, Mrs West was asked why, when confronted by police, the offender had denied any involvement in the offending. She believed that he was very scared at the time. She was also asked about his statement to the police that he had “smoked a lot of cannabis that weekend”. She said that she didn’t know what he did that weekend and that he could have been smoking. She did not believe that he was using cannabis on a regular basis.

18. Mrs West denied that she was minimising the behaviour of her son’s involvement in the criminal conduct. In re-examination, she agreed with the Statement of Facts that all the offenders present were armed with baseball bats or pieces of wood and that the offender was present when the victims were beaten.

Submissions on behalf of the Offender

19. Counsel for the offender submitted that the offender was entitled to the maximum utilitarian discount in respect of his early plea of guilty, of 25%. That was conceded by the Crown. In respect of the two offences, his conduct was described as the “antithesis of his life” up until that time. It was submitted that pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”), it was an aggravating factor that the offence occurred in the home of the victim. However, counsel submitted that the following mitigating factors should be taken into account pursuant to s 21A(3):

1. There was little or no planning involved from the offender’s point of view, pursuant to ss 3(b);

2. The offender had no prior record, ss(3)(e);

3. The offender was a person of good character, ss(3)(f);

4. The offender was unlikely to re-offend, ss(3)(g);

5. The offender had good prospects of rehabilitation, ss(3)(h);

6. The offender had shown significant remorse, ss(3)(i).

20. It was submitted that the objective seriousness of the offending did not reach the mid-range of offending for the offences.

21. Counsel submitted that the court would take into account the subjective circumstances of the offender. He was 19 years at the time of the offence and was now aged 20 years. It was his first criminal offence and his physical involvement in the offending was minimal. In the year following his arrest, he had not come under notice and had been fully employed. That in itself had been “no free ride” for him and he had been successful in obtaining his forklift driver’s licence and attending other courses, as well as returning to sport. The testimonials spoke highly of his character. Notwithstanding that they were mainly from family members, it was submitted that they were the people who knew him best. In all, it was submitted, the offender had reconstructed his life as a result of the offences.

22. Counsel submitted that it was an appropriate case, if the court was minded to impose a custodial sentence, for a suspended sentence pursuant to s 12, or alternatively, that the court consider an Intensive Correction Order pursuant to s 7 of C(SP)A.

Crown Submissions

23. The Crown submitted that the maximum penalties for the offences reflected the seriousness of the offending here. Notwithstanding that the offender had a very strong subjective case, the Crown emphasised that general deterrence had to be a factor in sentencing for this offence.

24. The Crown submitted that it was an aggravating factor pursuant to s 21A(2)(c) that there was planning involved. Notwithstanding that the planning was limited, and of short duration, the co-offender, Mr Magus, had interacted with the victims on three occasions that morning, returning twice to the scene, the last time accompanied by the offender and two other persons. Two of the men wore balaclavas and all four were armed. There was obviously some planning involved.

25. The Crown submitted that the injuries suffered by the victim, as set out above, were not insignificant. Otherwise, the Crown conceded the 25% discount for early plea of guilty, and the fact that the offender had no prior convictions, should benefit him. Finally, he had spent one day in custody following his arrest.

Determination

26. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

27. Having regard to the circumstances of the offending, I find that the role of the offender was considerably less than that of his co-offenders. Whilst he was present, and armed, he was not involved physically in the second offence pursuant to s 35(3) of the Crimes Act. In respect of both offences pursuant to s 113(3) and s 35(3), I find that the objective seriousness of the offending in respect of each offence was towards the lower range of offending under those sections, particularly having regard to the fact that the offender was not involved physically in the attacks on the victims, and his moral culpability for the offending was therefore lessened. I accept the Crown submission, however, that general deterrence is important in the sentencing process for such offences.

28. I have also had regard to the maximum penalty for the offence pursuant to s 113(3) of the Crimes Act of 20 years imprisonment, and the maximum sentence in respect of s 35(3) of the Crimes Act of 10 years imprisonment, together with the standard non-parole period of 4 years imprisonment. These are guide posts to be taken into account in the sentencing process.

29. I further accept that there are aggravating factors present pursuant to s 21A(2) of the C(SP)A, namely, that the offence involved the actual use of a weapon, (ss (2)(c)), and that the offence was part of a planned criminal activity, albeit that the planning was limited and the activity was of short duration (ss 2(n)). Further, the offence was committed in the home of the victim ((2)(eb)). I have also taken into account the fact that the injuries, as set out above, were not insignificant.

30. The offender has submitted a powerful subjective case here. His counsel has submitted, and I accept, that mitigating factors pursuant to s 21A(3) of the C(SP)A include that this was his first offence and he is of good character, with good prospects of rehabilitation.

31. Pursuant to s 21A (3)(i), the remorse shown by the offender for the offence may be taken into account as a mitigating factor, but only if:

“(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions and made reparation for such injury, loss or damage (or both).”

32. I accept the offender’s expressions of remorse expressed to Ms Beveridge, and to the various family members who have provided testimonials. His early plea of guilty also is an indication of that remorse. I find that he is entitled to a 25% utilitarian discount on sentence as a result of that plea.

33. I further accept that he has gained some insight into his offending and he has been assisted by counselling in that respect. I also accept that the offending was out of character for him, and that he has since turned his life around so that he is now in full time employment, is improving his employment skills by way of obtaining trade certificates and has returned to training.

34. I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [48] The offender is being sentenced in respect of two offences arising out of the one incident. There is no general rule as to whether sentences should be served concurrently or cumulatively and I acknowledge that the issue is one of totality – see Cahadi v R (2007) 168 A Crim R 41.

35. I take into account here, that the break and enter involved breaking through the front door of the premises to gain entry, but that the offenders immediately then left the premises. The offence pursuant to s 35(3) of the Crimes Act of reckless wounding then took place at the front of the property, and as outlined above, I have had regard to the minimal physical involvement of the offender at that point. I further note that the offender has spent one day in custody following his arrest.

36. Pursuant to s 5 of the Sentencing Act, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for these offences. In respect of each offence, I intend to sentence you to a term of 18 months imprisonment, to be served concurrently.

37. However, I intend to suspend execution of the whole of each sentence pursuant to s 12 of the Sentencing Act on condition that you enter into a bond to be of good behaviour for a term of 18 months in respect of each matter.

38. The offence pursuant to s 35(3) of the Crimes Act 1900 attracts a standard non-parole period of 4 years. I wish to make it clear that in accordance with s 54C of the Sentencing Act that my reason for imposing a non-custodial sentence by way of a suspended sentence pursuant to s 12 is based on each of the mitigating factors outlined in my remarks above, your young age, the fact that this is your first offence, the low risk which I have assessed of you ever re-offending and the steps you have taken to rehabilitate yourself.

39. I have taken into account the one day you spent in custody by backdating the sentence by one day.

Orders

40. I make the following orders:

1. In respect of the offence of specially aggravated break and enter to commit grievous bodily harm pursuant to s 113(3) of the Crimes Act1900, you are convicted.

2. I sentence you to a term of imprisonment of 18 months in respect of that offence, commencing on 30 July 2015 and terminating on 29 January 2017.

3. In respect of the offence of reckless wounding pursuant to s 35(3) of the Crimes Act 1900 you are convicted.

4. I sentence you to a period of imprisonment of 18 months in respect of that offence, commencing on 30 July 2015 and terminating on 29 January 2017.

5. Both sentences are to be served concurrently.

6. In respect of each sentence, I suspend the execution of each sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition that you enter into a bond to be of good behaviour for a period of 18 months, commencing on 30 July 2015.

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Decision last updated: 03 August 2015