R v Stewart & R v Wilmot

[2015] NSWDC 378

District Court

New South Wales

Medium Neutral Citation:	R v Stewart & R v Wilmot [2015] NSWDC 378
Hearing dates:	2 December 2015
Date of orders:	02 December 2015
Decision date:	02 December 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Stewart – Sentenced to imprisonment consisting of a head sentence of 3 years with a non-parole period of 18 months. Wilmot – Sentenced to imprisonment consisting of a head sentence of 2½ years with a non-parole period of 15 months.
Catchwords:	CRIMINAL LAW – Sentence – Armed robbery – In company – Vulnerable victim – Offenders’ drug use a mitigating factor – Offenders’ childhood trauma
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R
Category:	Sentence
Parties:	The Crown Karl Stewart (aka Palmer) Leigh James Wilmot (aka Radosevich)
Representation:	Counsel: D Murray – Offender Steward   Solicitors: Director of Public Prosecutions – Crown Legal Aid Commission – Offender Wilmot
File Number(s):	2015/1170132015/150605

Sentence

1. HIS HONOUR: I know it is stating the obvious, but not all of us have the same lives as each other. Some have very sad lives. Unfortunately, often that sadness primarily results from the circumstance that many children are sexually abused by people who should look after them. Of recent times more attention has been paid to the consequences for individual children of them being sexually abused. Such consequences are serious and ongoing. One can quite understand why a person who has been sexually abused as a child might want to escape reality from time to time. A common way of doing precisely that is to use drugs, and so we often have appearing for sentence in these Courts sad adults whose drug use began in the context of sexual abuse.

2. Appearing for sentence today are two offenders with such backgrounds, Karl Stewart and Leigh Wilmot. Both of them have pleaded guilty at the earliest opportunity to an offence of armed robbery.

3. The offence was committed in the early hours of 16 April 2015. A console operate at a 7‑Eleven service station in Mayfield was working alone. The offenders went into the store after being let in by the victim, Mr Ahmad. Once inside Mr Stewart produced a knife. He lent over the counter and lunged at the victim, pointing the knife at him. He said, “Cash”, which of course caused Mr Ahmad to open the till, take out the cash and put it onto the counter. Mr Stewart began to put the cash into a bag that he had brought with him. He tipped the coins into the same bag, but he wanted more. He said to Mr Ahmad, “Smokes”. Mr Ahmad then began to give cigarettes to Mr Stewart. It appears that during this time Mr Wilmot was not really doing much at all apart from standing there perhaps ready to assist. He did help Mr Stewart open the bag that the cigarettes went into, but did not say anything at all to Mr Ahmad.

4. Having obviously terrified Mr Ahmad, the offenders left the store. All they got was $305 in cash and $150 worth of cigarettes. That they were prepared to do what they did for such a small return is testament to one of the problems that judges have to deal with on a regular basis. Vulnerable victims such as Mr Ahmad are regarded as soft targets and drug users such as Mr Wilmot and Mr Stewart often at times think nothing of terrifying such vulnerable people for very small returns indeed.

5. Fortunately, these offenders were identified when a person whom they knew reported matters to police. The offender Stewart told her what he had done and, she told police what she had been told. The offenders were arrested. Both of them made immediate admissions to police. As I have mentioned, they pleaded guilty at the earliest opportunity and they are thus entitled to a discount of 25 per cent from the sentence that would otherwise have been imposed.

6. Of course, during submissions attention was focused on the R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline judgment. The common offence postulated in that judgment is quite appropriate to these offenders before me today, with some differences; these pleas were early, not the late pleas contemplated in Henry, Mr Wilmot cannot be described as young and it is an aggravating feature beyond the Henry guideline that the offence was committed in company.

7. I will return now to the sad backgrounds of both of the offenders. Mr Wilmot was placed into foster care at a very young age due to his parents’ inability to care for him. In fact he has only ever met his mother once. There are many foster carers in society who are kind and do an admirable job bringing up children in their care, but Mr Wilmot’s experience with foster care was not one of those. He was moved from place to place and was physically abused on some occasions as well as being sexually abused on around 20 occasions by one of his male foster carers. Some of his other foster carers treated him very badly. He recalled one placement where he was put into an underground cellar in a foster carer’s house for up to a week and fed only bread and water as a means of punishment. On top of that some of his foster carers introduced drugs to him at the age of only about nine.

8. Not surprisingly given those circumstances, Mr Wilmot began to abscond from foster care placements and began to live on the streets. He told the author of a psychological report tendered today that, “The streets were always there for me. They never let me down.” At one stage he did manage to locate his biological mother, but that did not go well either. Mr Wilmot found it very confronting to contemplate why it was that he had been given up for foster care whereas his siblings had not been.

9. The psychological report notes that Mr Wilmot has been a chronic poly-substance user since he was nine years of age, reporting that his chronic use of substances has been a means of self-medication to deal with his difficult and traumatic childhood.

10. As I began these remarks on sentence, when a life is as unhappy as Mr Wilmot’s early life was one can more easily forgive a desire to blank it out and escape reality through drug use. In fact given Mr Wilmot’s background one might have expected him to have a more significant criminal history than he does. There is an offence of larceny in 2001 and then a significant gap until there were offences of common assault, possessing a prohibited drug and some driving offences in 2012 to 2015.

11. The decision of the Court of Criminal Appeal in Henry not only deals with a guideline judgment for armed robbery, but also deals with the circumstances in which drug use can be a mitigating factor. Usually the use of drugs is not a mitigating factor. After all, every time a person uses drugs that is ordinarily a matter of personal choice, but some exceptions to that general rule were contemplated, where it could not really be said that a person exercised a personal choice to begin to use drugs, such as when such drug use began at an early age. I am thus satisfied that in Mr Wilmot’s case, and indeed in Mr Stewart’s case which I will explain when I get to it, it is a mitigating factor that this offence was committed whilst under the influence of drugs, such drug abuse being a long-standing issue for Mr Wilmot arising from his background as I have explained it.

12. Mr Wilmot has a history of having worked in the past and indeed has been a volunteer for the State Emergency Service. He has been able to abstain from at least the harder drugs at times and indeed this offence came after what was for him a significant period of abstinence from methylamphetamine, although he did admit that he continued to use cannabis. He does have reasonable prospects for rehabilitation although, given that his drug addiction is long-standing, no-one would suggest that the prospect of Mr Wilmot giving up drugs easily is a likely one.

13. Mr Wilmot expressed his remorse. I am satisfied that it was genuine. Perhaps the best indication of the hope for Mr Wilmot’s future is that this offence is very much out of character for him.

14. He is now 38 years of age and this is his first time in custody. It is to be hoped that this more serious breach of the criminal law is very much a one off.

15. I make a finding of special circumstances in his favour. They relate to the circumstance that his drug use is related to his childhood trauma and that this is his first time in custody. On the other hand, offences such as these are distressingly prevalent. As I mentioned before, people such as Mr Ahmad are easy targets and general deterrence requires that a substantial custodial sentence be imposed.

16. Of course the principle of parity applies to these two offenders. Neither of them should have a justifiable sense of grievance when he compares the sentence I impose upon him with the sentence that I impose upon the other. In that regard it is important to remember the various roles played by the offenders.

17. The statement of facts tendered in each case tends to suggest that Mr Stewart was the leader and Mr Wilmot was the follower and indeed Mr Wilmot gave evidence along those lines in court today. He was not challenged on his evidence by counsel for Mr Stewart. In addition there is nothing to suggest that I should not accept Mr Wilmot’s evidence that since going into gaol for about seven months now he has not used drugs at all, this being the longest period of his life when he has not used drugs.

18. On the other hand, Mr Stewart does have some misconduct charges on his custodial history including one for possession of drugs. There is another one for administration of drugs, but Mr Stewart said he had not actually got around to using the drugs. Although I do have to note that at least one of the misconduct charges arose in circumstances where Mr Stewart damaged a towel because he intended to hang himself with it.

19. In Mr Stewart’s case, he was sexually abused by his step-father. His step-father came into his life after his father and his mother separated. He said, and I accept, that he was sexually abused by his step-father from the age of six to the age of 13 when, in response to his complaints of such sexual abuse not being believed, he left home. Since then he too has lived on the streets, keeping in touch with his mother from time to time. He would sleep on park benches, trains and the like and fended for himself from a very young age. Apart from six months living with an uncle, he has been effectively by himself since he was 13. His drug use also began at an early age; 13 years in his case.

20. He has plans for the future. He is father to four young children and wants to get cleaned up so he can play the role of a father to his children. He has made enquiries about residential rehabilitation at Bennelong’s Haven. He has been accepted, but understands that he will not be in a position to take up that placement until he is released from custody.

21. He too expressed his remorse and I again accept that it was genuine. In common with Mr Wilmot, he was using drugs to escape reality. He had built up a drug debt. His decision to deal with that development by committing an armed robbery is of course a serious criminal one, but once again this was a departure from what his criminal history suggests is how he otherwise would act.

22. I make a finding of special circumstances in his favour as well, for the same reasons as I did in Mr Wilmot’s case. The link between this offence and his childhood trauma is obvious and again this will be his first time in custody.

23. Overriding everything I have said is the need to impose a sentence which reflects the objective gravity of each of the offender’s conduct. That does require significant periods in gaol.

24. In Mr Stewart’s case I impose a sentence of imprisonment. I set a non-parole period of 18 months and a head sentence of three years to date from 20 April 2015, thus the non-parole period will expire on 19 October 2016 on which day the offender is to be released to parole. It is a condition of his release to parole that he enter into a residential rehabilitation facility. His further conditions of parole are that he accept the supervision of the Probation and Parole Service and obey all their reasonable directions as regards drug rehabilitation, courses, counselling and the like.

25. In Mr Wilmot’s case I sentence him to imprisonment. I set a non-parole period of 15 months and a head sentence of two and a half years to date from 20 May 2015. His non-parole period will expire on 19 August 2016 on which day he is to be released to parole. It is a condition of his parole that he be supervised by the Probation and Parole Service and obey all their reasonable directions regarding drug rehabilitation, courses, counselling and the like.

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Decision last updated: 03 March 2016