R v Tylan Brown

[2018] NSWDC 265

District Court

New South Wales

Medium Neutral Citation:	R v Tylan Brown [2018] NSWDC 265
Hearing dates:	18 May 2018
Date of orders:	18 May 2018
Decision date:	18 May 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence: Aggregate sentence 4 years 3 months. Non parole period 2 years 9 months
Catchwords:	CRIMINAL LAW SENTENCING – an unexplained shooting – benefit of acquittal – parity principles – impact on community – victim impact – personal harm – need for circumspection – totality – custody has not deterred – intellectual disability – special circumstances – community interest in rehabilitation – circumspection when considering victim impact statements -
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BP v R (2010) 201 A CRIM R 379 DPP v De Le Rosa [2010] NSWCCA 194 Engert v R (1995) 84 A Crim R 67 Johnson v R [2010] NSWCCA 124 KT [2008] NSWCCA 51; 182 A CRIM R 571 Mill v The Queen (1988) 166 CLR 59 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Victorian Sentencing Advisory Council in 2011: Does Imprisonment Deter? A Review of the Evidence
Category:	Sentence
Parties:	Jesse John Rose (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr D Pace, Trial advocate (for the offender)   Solicitors: Ms E Parkes (for the offender) Ms J Walshe (for the Director of Public Prosecutions)
File Number(s):	2017/00039674

Judgment

1. On 20 February 2018 Tylan Brown came before a jury of 12 for trial on four counts. On 27 February guilty verdicts were returned on two counts; drive conveyance without the consent of the owner; s 154A(1)(b) Crimes Act 1900, maximum penalty five years imprisonment and fire a firearm in a public place; s 93G(1)(b) Crimes Act, maximum penalty ten years imprisonment.

2. Brown must have the full benefit of his acquittals. Given the way cases were presented at trial the verdicts can be reconciled.

3. He appears today for sentence for two antisocial criminal acts, one of which put the southern Wollongong community at considerable risk. His offences have had an immediate impact on their victims including those who witnessed the offence, and these offences have had important consequences for his own family and himself. His offences, and offences of this nature, cause considerable disquiet in the community.

4. I have received comprehensive submissions from Mr Pace who appeared at trial and before me today in relation to the fact finding exercise I have to undertake. I have heard a response from Ms Walshe, solicitor for the Director of Public Prosecutions, who did not appear at trial but has had an opportunity to speak to the prosecutor who did.

5. I have to be particularly careful in this matter because I cannot go behind the acquittals. I also have to be careful because I sentenced Matthew McGarrigle, his co‑offender in these matters, but the factual basis of McGarrigle's sentencing exercise was not exactly the same as this one. That is a common occurrence when sentencing co‑offenders.

6. The material before me at trial indicates that on 3 February 2017 Matthew McGarrigle stole Mr Kennedy's Land Cruiser from his home in Dapto. He then picked up Tylan Brown from Brown's house in Koonawarra. Given the evidence I heard at trial I have no doubt that Brown well knew the vehicle had been stolen when he entered it that afternoon. At around 9 o'clock that night the Land Cruiser arrived around the Penrose home of Peter Carter and Jacqueline Roberts. Their property is one of a block of two units. The Land Cruiser, driven by McGarrigle, pulled up. Someone leant out of the front passenger window and fired three shots. Those shots hit Mr Carter's Mitsubishi Utility that was parked in the driveway. The Land Cruiser drove off.

7. The jury by its verdict accepted as a possibility that Brown did not at that stage know the shots were to be fired.

8. Mr Carter called his son Peter and told him that the car had been shot at. He told him that a blue four‑wheel drive was involved. At the time Peter Carter and his partner Clarissa Edwards were at the home of a relative, Stacey Roberts, in Wyndarra Way, Koonawarra. The couple were babysitting five children. At the time he was speaking to his father Peter Carter Junior was on the veranda. He saw a blue 4x4 pull up across the road. Concerned it was the same vehicle mentioned by his father he went inside and took the children to relative safety. They and Ms Edwards hid in the laundry, the safest room in the premises, with pillows around them.

9. Ms Edwards remained with the children while Peter Carter went to the lounge room. He looked out a window and saw the 4x4 drive off and then return. He said he heard two gunshots and then the car drove off. Physical evidence of only one shot was found. There was considerable discussion this morning about whether I should find one or two shots were fired. To my mind this matters only very little. I am prepared to give the benefit of the doubt to this offender and find that only one shot was fired.

10. Police were contacted and were soon at the scene. A Snapchat photograph was sent by Brown to his then girlfriend between 10.30 and 11pm, shortly before the incident. It showed McGarrigle driving the vehicle and a woman, who has never been arrested, also in the car. Brown was in the rear seat. The text of the message was important. In it he said he “had his brother's back”.

11. In order to reconcile the verdicts I must find that Brown only became aware of the crime for which he was convicted after shots were fired at the Penrose property. Therefore he was only involved in the principal offence, that is, the firing the firearm, for a period of maybe ten minutes at most. It also appears that he was in the rear of the vehicle. I could not find beyond reasonable doubt he was actually the shooter. I was asked by Mr Pace to find on balance of probabilities that he was not the shooter. The evidence at trial and now before me does not enable that finding on balance of probabilities. I sentence on the basis of the known facts that someone in the vehicle fired a shot in the air outside the Koonawarra home where Peter Carter was that night.

12. It would have been difficult, but not impossible, for someone to leave the vehicle between the suburbs of Penrose and Koonawarra. There is no evidence before me that Brown in any way sought to do so, rather the evidence in the Snapchat video indicates that for whatever reason he chose to participate in this joint criminal enterprise and celebrated his doing so. That makes this offence as equally inexplicable as the sentencing exercise for McGarrigle. There was no evidence that McGarrigle even knew the Carters. There is evidence at the trial that Brown knew the Carters and they had supported him when he was younger. No possible motive for him engaging in this behaviour has ever been advanced.

13. The Land Cruiser was discovered by police, on fire, in Calderwood Road, Calderwood. That location is within easy walking distance of the farm that was then occupied by McGarrigle. The jury by its verdict accepted as a possibility that Brown had been dropped off near his home before this crime occurred and was therefore not a party to that additional offence. Again, he must have the full benefit of his acquittal.

14. McGarrigle was charged with, and ultimately entered early pleas of guilty to, five offences. He is a young and very immature man, now in gaol for the first time. He was on bail for a drug offence that was then before the Children's Court. He had only had one relatively minor matter on his record as an adult.

15. On 20 April 2018 I sentenced him to an aggregate term of five years, six months imprisonment with a non-parole period of three years. When I indicated a sentence for the take and drive conveyance, my starting point was a sentence of one year and six months before taking into account the early guilty plea. For the 93G Crimes Act offence at Koonawarra my indicated sentence was three years, nine months taking into account the reduction for the early guilty plea; a starting point of 5 years.

Parity

16. Where judges sentence offenders who are parties to the same joint criminal enterprise the judge should begin with and not lose sight of the fact that they were all participants in the commission of the same crime. A sentence must be determined by having regard to the circumstances of the co‑offenders and their respective degrees of culpability. Like must be compared with like but different personal and criminal histories may justify a difference in the time each will serve in custody.

17. This parity principle does not require each person to be sentenced the same or as having the same objective criminality: see Johnson v R [2010] NSWCCA 124. There can be reasons why one offender is less objectively culpable than the others involved. I am prepared to find here that there is some significance in the differing roles. To give effect to the jury verdicts if Brown was not aware of the first offence there must have been some additional preparation for the offending by McGarrigle, which could not be sheeted home to Brown, because his involvement in the second shooting lasted only a matter of ten minutes.

18. Further, different objective circumstances apply because of the offenders’ different roles. Here, Brown was prepared with others to carry on when he knew a gun was to be used at the second premises. On that point I note that in sentencing McGarrigle I held that both offences were of equal criminality, I do not resile from that view despite the strenuous submissions of Mr Pace.

19. The first offence involved a targeted shooting at a car and the second offence for which I must sentence Brown involved the random firing of a bullet into the air. The first offence’s target was the car but here the element of reckless indifference to the community of firing a bullet into the air must be recognised.

20. I also have to recognise that Brown was older than McGarrigle. He has a number of crimes of violence on his criminal record. He has been to gaol twice before. I take into account the material tendered in his subjective case. It helps explain why he has continued to offend and continued to end up in gaol. I also have to take into account, on the other side of the ledger, that his continued disobedience towards the law requires a more severe penalty which focuses on retribution, personal deterrence and the protection of the community: see Veen v The Queen (No 2) (1988) 164 CLR 465.

21. That does not of course mean, as the High Court made clear in Veen, that he should be locked up simply to protect the community. I have to sentence in accordance with all of the relevant matters, both objective and subjective. One of those matters is the requirement that the Court give careful attention to maximum penalties. Here they provide sentencing measures to be balanced with all other relevant factors. They invite a comparison between this case and other cases but it is not appropriate to look first at the maximum penalty and then proceed by way of proportional deductions from it.

22. Turning to the objective seriousness of the offence. To drive in a vehicle that has been taken without the consent of the owner is a crime of some prevalence in the community. It is a crime that hits hard at individuals because most of us depend upon our vehicles; many of us put a considerable part of our income into our vehicles. To have someone steal it has a personal effect. When, as in this case, the stolen vehicle was used in the way it was, that too causes considerable disquiet both to the individual who lost their vehicle and also the community.

23. To fire a firearm in a public place, a quiet suburban street near residential homes and near the home occupied by adults and children is a very serious offence. The shot was fired near a house where this offender knew the residents who would be there, at least as far as the adults were concerned. This compounds the offence. It was not random, it was designed to have some impact upon, if no one else, Peter Carter.

24. It takes no imagination to understand the potential consequences. To fire a weapon in the air creates a risk because the law of gravity means that the bullet has to come down somewhere. It was a fundamentally antisocial act committed without any regard for the safety of others and without any regard for the peace and wellbeing of our community. It illustrates why, very sensibly, our community treats firearm possession and the use of firearms as a privilege, restricted to those who can be trusted to use them and satisfy very stringent registration and public safety requirements.

25. There is a victim impact statement before the Court from Ms Roberts on behalf of her children. Ms Roberts was in the first house her children were in the other house. A victim impact statement may be received and considered by a court in any case. In the case of a primary victim that statement must relate to "any personal harm suffered by the victims as a direct result of the offence": s 26 of the Crimes (Sentencing Procedure) Act 1999. I can readily understand why and how these reports came to be prepared. All the community, particularly the residents of the house, could be regarded as victims of the shooting.

26. I can understand they may have been traumatised by this offence, it would be hard to imagine anyone who would not be traumatised. The children have all had to attend counselling. It is understandable those children will be fearful and have trouble sleeping. The comprehensive reports, particularly in relation to the children have to be read sympathetically but with some circumspection.

27. Most of the information that they would have had to base their concerns on was not the fact of the shooting or their experience of it but what they were later told. There are other matters in the reports which could not be fitted into the definition of victim impact statement as defined in s26 Crimes (Sentencing Procedure) Act 1999. Little in the statement falls within the strict definition in s26. What is set out attracts the sympathy of the Court but I have to be careful to delineate between matters that are properly the subject of victim impact statement as they could relate to the offence and matters that do not.

28. It would appear that the children have suffered a number of other traumas in their lives. Brown and McGarrigle's actions do not help these children. Obviously the incident had an impact on them and set back their road to recovery.

29. There are two matters for sentence here. There will be some modest accumulation as the sentence for one could not comprehend the criminality involved in the other. They were distinct offences and had different consequences but as they occurred as part of a single episode, sentencing purposes, particularly the impact on the community, overlap. I will indicate an appropriate sentence for each offence. I will structure the aggregate sentence so it is just and appropriate to the totality of Brown's offending behaviour: Mill v The Queen (1988) 166 CLR 59.

Subjective Considerations

30. When I sentenced McGarrigle I drew attention to a study conducted by the Victorian Sentencing Advisory Council in 2011: Does Imprisonment Deter? A Review of the Evidence. It bears out the history now before me. The report noted that there is a high rate of offending among young offenders who had previously been imprisoned. It noted that young offenders are particularly vulnerable to the impact of prison on them.

31. Paradoxically the report states that harsh prison sentences and long prison sentences can exert a criminogenic effect, in other words a crime producing effect, by providing a criminal learning environment, by labelling and stigmatising offenders as criminals and by allowing them to associate with others who inculpate in their co‑prisoners antisocial attitudes. The report concluded "that harsh and long prison sentences so far as young offenders are concerned is an ineffective way of addressing the underlying causes of crime and that being in custody may have a negative effect on long‑term prospects and may hence contribute to reoffending.” When I sentenced McGarrigle and used those words I was not then aware of the subjective material that was before me in relation to Brown.

32. The material now before me as part of exhibit 1 is but another illustration of what the Victorian Sentencing Advisory Council report referred to. What is set out by the psychologist and others, who provided references and in other reports, is instructive. They indicate that Brown was raised in a loving and supporting family. His family and others are here. He has a partner, who is the mother of his two children. His incarceration has had an impact on them all. His children are being raised without the benefits of a father.

33. As a young boy Brown was diagnosed with ADHD, an impulse control disorder. His parents did everything they could by referring him to appropriate treatment from psychologists Mr Wenzel and Ms Grainger, and paediatricians Dr Brereton, Dr Selikowitz and Dr Kristidis. There is also material which indicates that in 2002 he was diagnosed, after testing, as falling into the borderline category of intellectual disability. That categorisation indicates that he has some substantial limitations in terms of intellectual functioning and will has trouble with adaptive skills. The ADHD compounds this, so far as his ability to learn. He did not get much schooling.

34. He has never worked, except in gaol. However, a job opportunity was made to him in 2016. He did not have an opportunity to take it up but is still available to him.

35. He has a family waiting for him. He has children waiting for him. He has a job waiting for him. It is urged that he be released as soon as practicable to enable him to resume ordinary community life. The reports also point out that he took up the use and abuse of alcohol and cannabis when he was very young. There are mentions, sometimes contradictory, of the extent of his methyl amphetamine use in 2016.

36. It is clear that as a boy there was a fair bit of psychiatric intervention. Given his history of dysfunctional behaviour there was a lot of focus on impulsivity and anger management.

37. Until his gaoling for this offence it is clear that all that work, while not for nothing, had failed to sink in and have any immediate effect. It is clear that Brown, 22 at the time and now 23, is still young and immature. It is clear from the material before me that his time in custody has enabled him to gain some maturity but it is also clear from the problems that he has in custody that he is still subject to impulsive behaviours.

38. Mr Jones concludes that he will require, both in custody and in the community, assistance with dealing with impulsivity and anger management. Importantly on release he will need psychiatric help focused on relapse prevention counselling, cognitive behaviour therapy and vocational education. He will require significant monitoring. If all of those things are put in place there is some prospect that he can avoid returning to gaol.

39. It is a concern to his family and should be a concern to the community that if he is not given opportunities and does not take those opportunities and continues to offend and ends up back in gaol he could become institutionalised. What that means is he could spend most of his life in gaol. That will also mean is he has continued to offend against the community. Every effort should be made to break that cycle.

40. There is a statement made to Mr Jones which indicates what could be characterised as some remorse. I do not categorise it that way. There is no evidence of remorse before me. The offender was entitled to plead not guilty and he received the benefit of not guilty verdicts. But there was no practical demonstration of remorse by way of an early guilty plea. It has not been shown by any evidence that he really understands the impact of his offending upon the community and others. I, for myself, am unable to comprehend how anyone, no matter whether they are young, drug affected or immature, could think that what they were doing had anything but the potential for disastrous and dangerous consequences, as I said when I sentenced McGarrigle.

Synthesis

41. When sentencing someone who has psychological problems and or an intellectual disability, Courts have to be particularly careful. There are a number of important principles that apply. They were carefully summarised by, so far as young people are concerned, in KT [2008] NSWCCA 51; 182 A Crim R 571 and BP v R (2010) 201 A Crim R 379, to which I was referred. In sentencing people with an intellectual disability at the borderline level the principles spelled out by McClellan CJ CL in DPP v De Le Rosa [2010] NSWCCA 194, also apply.

42. When someone has offended and keeps on offending, even if they are immature and have psychological and intellectual problems, Courts have to balance against those mitigating principles the protection of the community: see Engert v R (1995) 84 A Crim R 67. There is no one correct sentence. Protection of the community here requires that this offender be removed from the community, but he will be returned to it; the sentence should not make him worse nor encourage the risk of further offending.

43. As a matter of principle I have to take into account the need to ensure that offences involving the public use of firearms need to be addressed by sentences that carry a significant degree of general deterrence and denunciation. That requirement applies even where, as here, it can be moderated because of the offender’s intellectual deficits, his ADHD and his personal history. The public also will benefit from this offender's successful rehabilitation. One of the matters I have to consider is that as young men such as Brown mature they gradually come to understand that this sort of behaviour is simply not worth it for them and that the pain they inflict on their family and their children is not worth it. A choice has to be made by Brown.

44. Subjective factors can only go so far. The Courts have an obligation by the severity of the sentence imposed to vindicate the dignity of who were immediately affected by the offence. I also have to recognise the harm to the owner of the car and those in the vicinity of the offence and the community of Southern Wollongong.

45. I have to structure a sentence which enables Brown to be supervised in the community for as long as possible.

46. I hope that these submissions do justice to what was said by Ms Walshe for the Director and Mr Pace for the offender. It was submitted that a penalty with the long bond for the motor vehicle offence and the sentence which allowed for Brown to be released very shortly into the community would meet all the purposes of sentencing.

47. While I do take into account that there was some assistance with the course of justice in the way the trial was run when I considered all relevant principles, the only way that that object could have been met, was if there had have been an early acceptance of responsibility. As I have said Brown is not to be punished for going to trial but he receives no benefit for the significant utilitarian assistance often afforded a guilty plea.

Orders

48. Mr Brown, I have to indicate sentences for each offence. In relation to the carried in conveyance offence I indicate a sentence of one year and three months. In relation to the firearm offence I indicate a sentence of four years. The aggregate total sentence in this matter will be one of four years and three months. It will date from 7 February 2017 and expire on 6 May 2021.

49. There will be a non‑parole period of two years nine months, commencing on 7 February 2017. Earliest release date 6 November 2019. Balance of term one year, six months.

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Decision last updated: 21 September 2018