R v Sturgess

[2024] NSWDC 208

District Court

New South Wales

Medium Neutral Citation:

R v Sturgess [2024] NSWDC 208

Hearing dates:

4 April 2024

Date of orders:

4 April 2024

Decision date:

04 April 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment - 4 years with a non-parole period of 2 years and 6 months

Catchwords:

CRIME — Violent offences — Detain person for advantage

CRIME — Violent offences — Robbery in company

SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Objective seriousness — Purposes of sentencing — Multiple offences — Totality

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental illness — Deprived childhood — Institutionalised — Childhood sexual abuse in juvenile detention — Mental illness

Legislation Cited:

CrimesAct1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

R v Girdler [2023] NSWDC 616

R v Nyrhinen [2023] NSWDC 615

Category:

Sentence

Parties:

Tristan Sturgess (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
K MacKinnon solicitor for Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2023/116831

JUDGMENT – Ex tempore revised

Introduction

1. Tristan Sturgess is for sentence today for two very serious offences:

1. Take and Detain another Person with Intent to Obtain an Advantage: Crimes Act1900 (NSW), s 86(2)(b); and

2. Robbery in Company: Crimes Act1900, s 97(1).

2. The offences occurred on 30 September 2002. The victim was a person known to one of the other participants in Sturgess’ crime.

3. Sturgess gave evidence today. He confirmed what he said to his social worker, Mr Bembrick – he did not really think it was a particularly serious crime and he did not think about the impact on his victim. Why he held those thoughts is revealed in the material to which I will shortly refer.

4. Sturgess has been in custody for some time, and he must stay in custody for some further time. He is presently medicated for a number of underlying mental health conditions. Having taken up the use and abuse of illicit drugs when very young, he is currently stabilised on the buprenorphine program.

5. His evidence today shows that, perhaps for the first time in his young life, he has had a chance to think in clear headed way about what he did and the consequences to himself and others. At the time he did not think. I do not believe he is yet capable of feeling true remorse for his victim, but I accept he regrets what he did.

Early pleas and maximum penalties

6. Sturgess entered pleas of guilty to the two charges in the Local Court. I will reduce, by 25%, each of the starting point sentences I have come to, to allow for the utilitarian value of that plea. I will take care the process of accumulation does not erode that benefit. I have to consider the seriousness of what he did. When I do so, I take into account as guides to the exercise of my discretion, the fact that the take and detain offence and the robbery in company offence, both offences, have maximum penalties of 20 years.

7. A judge must analysis the facts, take into account the objective seriousness of the crime and give proper weight to the case made for the offender. Ultimately, I must formulate a sentence which, here, must be expressed in the time Sturgess should be removed from the community; making allowance for release to supervised parole.

8. I have had the benefit of comprehensive written submissions. Both parties have spoken to them. I have had a chance to discuss those submissions with the parties. There is no real difference between them.

Agreed Facts

9. Tristan Sturgess was born in 1996. In September 2022, he was living in Wollongong. He had been admitted to parole in January of 2022. He had initially made progress, but it appears he stopped taking his medication. He had fallen out with his then partner and had moved to the Illawarra. He had lost contact with his parole officer. He was back using drugs and he was back associating with people with similar criminal backgrounds to himself.

10. I have previously sentenced his co-offenders, Remy Girdler and Joshua Nyrhinen (aka McPhee): R v Girdler [2023] NSWDC 616; R v Nyrhinen [2023] NSWDC 615. For reasons that are still not clear to me, on Friday 30 September 2022 Girdler contacted the complainant in the matter and arranged to meet him. He went to her home, and they agreed to drive to a nearby lookout at Mt Kembla.

11. They were followed to that location by a Subaru, driven by Sturgess, with Nyrhinen as his passenger. When Girdler and the complainant parked at Mr Kembla, Sturgess parked near them and went to the driver’s door. He knocked on the window. The complainant wound down the window. At that point Girdler said, “Don’t hurt him, don’t hurt him.”

12. Sturgess said, “Remove the key from the vehicle and give me your mobile phone.” The complainant, who had seen Nyrhinen behind Sturgess and, aware of his current location, an isolated lookout, was very scared. He was uncertain about what might happen to him, but he said, “No.” In response, Sturgess punched him to the right side of the face and repeated his demand.

13. The complainant gave him the keys and his mobile phone. Girdler got out of the car and Nyrhinen hopped into it. Nyrhinen held a knife to the complainant, made him move over and Nyrhinen drove off with the complainant in the car, They were followed by Sturgess and Girdler in the Subaru.

14. They drove to Berkley where the occupants of the Subaru hopped into the complainant’s car. They then drove to a park nearby. There, Nyrhinen demanded the complainant unlock his phone to enable money to be transferred. It is important to note that Sturgess is not charged with that particular offence.

15. Sturgess then drove the complainant’s car back to Girdler’s address in Warrawong. The complainant was let out and the car was driven away. The police were called soon after.

16. As a result, of the assault the complainant suffered soreness and bruising to the right side of his face. The car was ultimately recovered the following day.

17. Girdler and Nyrhinen were arrested in October 2022. Sturgess was arrested on 12 October 2022 but for breach of parole matters. Although he was spoken to by police he was not formally charged with these offences until 12 April 2023 while still in custody serving balance of parole.

Objective seriousness

18. The complainant was lured to an isolated location. There, he was assaulted during the course of an incident that took obviously some hours and involved driving around parts of Wollongong. He was detained, that is had no liberty and no real choice other than to submit to the demands made of him by Sturgess and Nyrhinen.

19. Both Sturgess, Nyrhinen and Girdler were involved in what the law calls a ‘joint criminal enterprise’. Each played different roles.

20. In some respects, such as the production by Nyrhinen of the weapon, and the taking of the money from the account, this is his responsibility alone. But the present offender started the process of intimidation by his initial approach and his punch in order to get compliance from the complainant. At a later stage, he was the driver of the complainant’s vehicle, while he was taken to and detained at Fred Finch Park.

21. I look to; the amount of time the victim was subject to during the detention, the fear and the distress he was under, and the fact that, as was intended, his property was taken. These were each very serious offences. It is accepted that each require significant custodial sentences, because of the need to ensure community protection by discouraging this offender and others from doing what he did.

Parity

22. When I come to consider an appropriate sentence, I must also take into account the sentences that I imposed on Girdler and Nyrhinen.

23. Both were before the Court with slightly different formulations of the offences. Nyrhinen pleaded guilty to a charge of armed robbery and the obtain offence was placed on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. Therefore, I did not sentence him for the detain but took it into account in accordance with the guideline of the Court of Criminal Appeal in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

24. For the armed robbery with the matter on the Form 1, taking into account his early plea of guilty and his strong subjective case, I imposed a sentence of 3 years and 9 months.

25. A different approach was taken during the Early Plea Process (‘EAPG’), to the charges placed on Sturgess. He must be sentenced for two offences.

26. There must be, so far is practical, given the nature of the charges, the nature of the enterprise engaged in by each of the offenders, and their respective subjective cases, some degree of proportionality between them. None of the offenders should feel any sense of grievance that they have been treated harsher than the others. But there must be different formulations to the sentences and there should be, so far as possible, equal justice between them.

Totality

27. When coming to an appropriate sentence here, I take into account s 21A Crimes (Sentencing Procedure) Act, but I must be careful not to double count matters. As I will be indicating two sentences and imposing an aggregate, I have to take into account the principle of totality.

28. No one should be double punished where facts in relation to one matter are inextricably linked with the other. Nor should someone be double punished where the purposes of sentencing are inextricably linked. But there must be some accumulation of sentences between the two matters to take into account the total criminality of what occurred.

Criminal history

29. The offender has a criminal record. He draws, and can draw, no comfort from that record. It means that greater weight has to be given to particularly the questions of specific deterrence and community protection.

30. He appeared before the Children’s Court, but although those matters really help me to understand his history, I do not take into account his criminal antecedents in the Children’s Court in aggravation of sentence. As soon after he became an adult in 2015, he committed offences that led to him being gaoled.

31. He first went to gaol in 2015. He has been in and out of gaol ever since. His periods of time in the community since 2015 can be measured in months. In fact, his time on parole in 2022 was the longest period he had spent in the community since 2015. It is clear from his record alone that he has become institutionalised and is at risk, if he spends too long in gaol, of custody becoming the default position for the remainder of his life. There is a danger that he will become institutionalised and lose any capacity to lead a normal life in the community. This is a matter of some importance, given his youth, and the signs he is showing of progress towards rehabilitation.

32. He served a balance of parole from an earlier sentence from his arrest on 12 October 2022 until October last year. I will start this sentence from 12 April 2023, the date he was charged. When I come to consider the structure of the sentence, I will take that earlier period of custody into account as one of the reasons for a finding of special circumstances.

Subjective case

33. Sturgess gave evidence today. He was not challenged. What he said was sad but not controversial. He adopted the history given to the social worker, Mr Bembrick, and to a psychiatrist, who has prepared a report for civil proceedings following on from his report of sexual abuse while in juvenile detention.

34. He, so far as is possible, offered a statement of regret to the complainant in the matter. He told me that he is motivated to charge his life, because he has resumed contact with his two eldest children. He now has a forklift licence and a white card, and experience from working while in custody. He wants to learn from this experience, keep taking his medication and his buprenorphine, use the job experience and skills he has obtained to try and change the pattern of his life to date. That pattern was set from when he was very young and is set out in detail in the reports before me.

35. He identifies as Indigenous Australian on his father’s side, but he had little contact with his father and was raised by his mother and stepparents. His mother has a long-standing mental illness and an alcohol problem. A stepfather was violent and involved in drug use. Not for the first time I have had evidence of someone who, as a child, in a house where drugs was used, witnessed a violent home invasion of that home, and suffering as a consequence. It is one of the reasons why heavy sentences are imposed by judges on those who offend against others by robbing them. It is sad, but true, that a child exposed to such a crime, and as the evidence reveals, exposed to domestic violence, other violence, drug and alcohol use, and the mental illness of a parent has less resources than a person who was not so exposed.

36. He was able to do reasonably well at primary school but by high school, many matters combined to disrupt that schooling and he left school at Year 9.

37. He spent some time in juvenile detention. The evidence before me, on balance, establishes that during one short period in juvenile detention, he suffered a sexual assault at the hands of a worker there. That period coincides with him, while still too young to make rational choices, taking up the use and abuse of illicit drugs. Those drugs have blighted his life ever since.

38. The material before me shows a history of disadvantage and exposure to violence, drugs, alcohol, and mental illness. He suffered a number of traumatic incidents including sexual abuse. Those traumas have had long term impacts on him. Not surprisingly, he suffers underlying mental illnesses, which Dr Rastogi says include; Post-traumatic Distress Disorder, Complex Depressive Disorder and Drug Use Disorder.

39. I could not parse the impact of each of those matters. They are inextricably linked. They mean that his moral culpability for these crimes is less than that of a person who did not have those disadvantages or suffer those traumas. It has meant that his time in custody has not been easy. But has also meant that he had fewer resources when released from custody to prevent reoffending and returning to custody.

40. Sturgess is not to be regarded in the same way, as someone who did not have those disadvantages. But paradoxically, that history has meant that both Mr Bembrick and Dr Rastogi have concluded that his prospects are guarded. Because of that that history and the length of time he has spent in custody, he has never had much opportunity to live a normal life in the community. He has few social skills. To date, he has been unable to demonstrate that he can lead a normal life in the community. He is, however, capable while sober and medicated, to have some insight into why he failed to comply with parole on the last occasion and the impact of his offending on others, but more importantly on himself.

41. That history requires a reduction in the otherwise appropriate sentence. But it does not mean that the other purposes of sentences don’t apply to him. He and the community have to understand that it is a very serious crime to detain and rob another person and do so while accompanied by others. The courts also have to impose an adequate and proper punishment that reflects the harm done to the victim of the crime.

Victim impact

42. Although I have no Victim Impact Statement that does not mean that the crime did not have an impact on him. Once could presume it did. He lost his car for a period and his car was probably the most expensive thing he’d ever owned. He lost his liberty for a period. He was placed in fear, and he was left scared, carless, and injured as a result of the punch thrown by Sturgess.

Synthesis

43. I will, in the structure of the sentence, allow for a lengthy period of parole. But the minimum term he must serve must properly reflect all the purposes of sentencing, particularly those matters so far as the victim and the seriousness of the crime which I have enunciated. His release to parole will be subject to a decision by the State Parole Authority. They will only release him to parole if it is in the interest of community safety.

44. If he continues the way he is going he should expect release to parole, but he must be monitored, supervised and, as Mr Bembrick indicates, a Mental Health Care Plan should be put in place. If he is released with; support, help maintaining his buprenorphine, appropriate Mental Health Care Plan, help getting accommodation and work, he may be able to change the trajectory of his life. He cannot do this alone. He will need support in doing so.

45. I will have copies of the two reports sent to Corrections so that an appropriate plan can be put in place prior to his parole date.

46. There are a number of complex and competing factors here but there still, as is accepted, must be a custodial sentence of some length. There will be an aggregate sentence. The indicated sentence reflects the reduction for the guilty plea. There will be a finding of special circumstances.

Orders

47. In relation to:

• The robbery offence, which I regard as the more serious given his role, there will be a sentence indicated of 3 years and 4 months.

• For the detain, a sentence of 3 years imprisonment.

48. There will be an aggregate sentence of 4 years imprisonment. It will commence on 12 April 2023 and expire on 11 April 2027. There will be a non-parole period of 2 years and 6 months which will date from 12 October 2025. He will become eligible for release to parole on 12 October 2025.

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Decision last updated: 05 June 2024