R v Sharpley

[2015] NSWDC 371

District Court

New South Wales

Medium Neutral Citation:	R v Sharpley [2015] NSWDC 371
Hearing dates:	18 September 2015
Date of orders:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 15 months and a head sentence of 30 months.
Catchwords:	CRIMINAL LAW – Sentence –Robbery in company
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Fernando (1992) 76 ACrimR 58 R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149
Category:	Sentence
Parties:	The Crown Neil Sharpley
Representation:	Solicitors: Director of Public Prosecutions - Crown Phoenix Legal Consulting Pty Limited - Offender
File Number(s):	2014/209106

SENTENCE

1. HIS HONOUR: The job of a sentencing judge is to sentence according to both the offence and the offender. Let me start with the offender, Neil Sharpley. He is a man now 23 years of age who experienced some disadvantage as he was growing up and of more recent times as well. Although he had a good relationship with his parents, domestic violence was a feature of his upbringing. He left school early and is barely literate. He cannot read a book and struggles to read the sporting stories in a newspaper.

2. He commenced using drugs at a fairly early age and indeed his major pastime seems at some stage to have been the consumption of cannabis. For a period of life that was virtually all he did. He has also been exposed to other poor influences involving harder drugs which he used himself and of course there is the ever present problem of alcohol. On top of this he may well have a psychiatric illness. He displays some symptoms consistent with some form of psychotic illness. And a final matter of evidence, which clearly is of some significance to him, concerns a hearing impairment from which he suffers.

3. So Mr Sharpley is not the sort of person who should have imposed upon him a sentence where general deterrence is of prime importance. On the other hand specific deterrence is very important. Mr Sharpley has a criminal history involving offences of violence and has committed a very serious offence carrying a maximum penalty of 20 years imprisonment for which I must now sentence him.

4. His solicitor tells me that his first time in custody bail refused awaiting sentence has not been a happy one for him. I don’t wish to sound unkind but I am not at all disappointed to learn that. Mr Sharpley needs to be made very aware that if he continues to offend he will continue to go to gaol. If he wants to avoid repeating the experience of being separated from his family in an environment where violence is common place and there are threatening people all around him, then he must make the decision to avoid committing criminal offences in the future.

5. I am to sentence him for an offence of robbery in company. This was an offence which was not planned and an offence where Mr Sharpley was far from the instigator. A taxi driver picked up two young people. He drove a short distance before they came across three other people including the offender. The driver stopped the taxi and the three people got in making a total of five passengers and the driver, four of them in the back seat. The taxi driver, not surprisingly, asked what was going on and said that he couldn’t take five people. A reasonable response at this stage would have been for someone to agree with the taxi driver’s proposition but this did not happen. The passengers objected to having to get out of the car and violence began.

6. The taxi driver was hit with a plastic coke bottle. He got out of the car and said “I’m not taking you, you will have to get another cab”. He was then pushed in the chest by a woman by the name of Link-Hickey. Another of Mr Sharpley’s companions then began swearing and shouting at the taxi driver before hitting him, causing his nose to bleed. Ms Link-Hickey, who appears to have been the person primarily responsible for the commission of the offences and getting her friends into trouble, then grabbed the driver by his shirt and began shaking him. She pushed him, causing him to fall to the ground. It was at this stage that this offender Mr Sharpley joined in, punching the driver once to the right side of his face, splitting his lip and making it bleed.

7. Ms Link-Hickey wasn’t satisfied with inflicting violence, she began screaming “Rob him, rob him, rob the car”. Mr Sharpley and a friend of his called Walford did so. One of them took the coin tray containing about $20 or $30. Another took the eftpos machine. They then ran away with Ms Link-Hickey being the last to leave. These events were frankly disgraceful. The taxi driver was set upon by a number of people at 1.30 in the morning in Waterloo when he made the very reasonable suggestion that he couldn’t take five people in his taxi.

8. Mr Sharpley may not have been the instigator of these events but he doesn’t appear to have been at all reluctant to join in once Ms Link-Hickey began her disgraceful behaviour.

9. Events such as these are unfortunately commonplace. There are some people in the community who regard the obligation to obey the law as not applying to them. Ms Link-Hickey appears to be one such person. Any sensible and decent human being would have firstly attempted to persuade Ms Link-Hickey to stop what she was doing and, secondly, have not joined in with her illegal activities. Mr Sharpley clearly was not that sort of person, at least on the night he committed this offence.

10. But his decision of course has to be looked at in the context of his background. It is not correct to assume that all members of the community have the same ability to make rational decisions about their own behaviour. For this reason I will take into account Mr Sharpley’s background consistent with the principles of Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 and R v Fernando (1992) 76 ACrimR 58 in determining his moral culpability for his offending behaviour.

11. Both of Mr Sharpley’s parents have died. He lives in Bathurst and was in Waterloo visiting family when he committed this offence. Upon his release from custody he plans to live with his girlfriend back in Bathurst. She has an attitude to illegal drugs which is commendable. She will be a positive influence for him. He has plans to work and to return to TAFE. If Mr Sharpley does do what he says he will then there good prospects for his rehabilitation. The problem is knowing whether he will actually do what he says he is going to do.

12. I suppose I should mention the principle of parity. One of these five people was dealt with in the Children’s Court. She was put on a bond to be of good behaviour for 12 months. Of course Mr Sharpley should not have a justifiable sense of grievance when he compares that sentence with the sentence imposed upon him. But a number of features must be mentioned.    Firstly, the principles which go to sentencing in the Children’s Court are very different from the principles which bind me. Secondly, we do not know the factual basis on which she was dealt with in the Children’s Court. Nor do we know anything about her background or any of her other subjective features. Although of course the principle of parity applies it is very difficult to place much weight on a sentence in the Children’s Court in the absence of any knowledge as to the features such as I have mentioned.

13. Mr Sharpley’s time in custody has been harder and will continue to be harder because of a number of features, including significant depression from which he suffers, and his hearing impairment. He has hearing aids but doesn’t like wearing them because he doesn’t want to be picked on.

14. This offence occurred soon after Mr Sharpley’s mother had died. That led to an escalation in his drug use. It is to be hoped that once Mr Sharpley is released from custody he will understand the link between drug use and offending and make the decision, which is for him and him alone to make, that he will put his drug using days behind him, and that of course includes the drug cannabis. Daily use of cannabis while regarded by some as merely a pleasurable pastime will in Mr Sharpley’s case be inconsistent with his rehabilitation. He needs to do something with his life. He needs to study. He needs to work. He needs to have a reason to get up in the morning beyond simply a desire to resume smoking cannabis.

15. Mr Skidmore, who appears for Mr Sharpley, made a submission based on his client’s desire that Mr Sharpley should be released from custody having spent already a significant time bail refused. Mr Skidmore referred to the Henry guideline judgment and made some submissions as to the difference between the guideline offence postulated in R v Henry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 and his client’s case. I have had regard to the judgment and of course had regard to the various differences between the postulated situation and the present. There are a number. Mr Sharpley didn’t use a weapon and the weapon that was used was a plastic drink bottle. It was certainly not a dangerous weapon like a knife. The offence was unplanned and, as I have mentioned, Mr Sharpley was not the instigator, he followed the suggestions of others. His plea of guilty came at the earliest opportunity rather than a plea of limited utility as the Henry guideline refers to. In fact I should, at this stage, say that the sentence I am about to impose upon Mr Sharpley will be 25% less than it would have otherwise have been to reflect the utilitarian value of his plea.

16. There are special circumstances in this case. This is Mr Sharpley ‘s first time in custody. He suffers from a possible psychiatric illness involving voices and apparitions. It is in the community’s interest, including Mr Sharpley’s, that he be given as much support as possible upon his release from custody so that he can put his drug using and offending ways behind him.

17. I impose sentence as follows: I set a non parole period of 15 months and a head sentence of 30 months to date from 15 July 2014. The non parole period will thus expire on 14 October 2015, on which day the offender is to be released to parole. It is a condition of his parole that he is closely supervised by the Probation and Parole Service and obeys without question all the reasonable requests and requirements. It is a further condition of parole that Mr Sharpley use no illegal drugs whatsoever, including the drug cannabis.

18. Mr Sharpley, I am not sure whether you heard what I said, but you have got a little less than a month to do before you will be released to parole. Do you understand that? Right, 14 October you will be getting out. Once you get out you can’t use any drugs, because if you use drugs you will be back inside, as simply as that.

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Decision last updated: 24 February 2016