R v Webb

[2025] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:

R v Webb [2025] NSWDC 112

Hearing dates:

7 February 2025

Date of orders:

7 February 2025

Decision date:

07 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 1 year 10 months with a non-parole period of 1 year 2 months

Catchwords:

CRIME — Public order offences — Affray

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

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Moral culpability— Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Drug addiction — Depraved and disrupted childhood — Antisocial lifestyle

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

R v Eleter [2003] NSWDC 130

R v Lawrence [2024] NSWDC 485

Usaia v R [2023] NSWCCA 57

Category:

Sentence

Parties:

Jamie Micheal Webb (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
B Hart (for the offender)
C Triscari (for the Crown)

Solicitors:
Justine Hall Lawyer (for the accused)
Public Prosecutions (NSW) (Crown)

File Number(s):

2023/134935

JUDGMENT – ex tempore revised

Introduction

1. When he was before the Local Court Jamie Webb said he would plead guilty to an offence of affray: Crimes Act 1900 (NSW), s 93C(1). Because he pleaded guilty in the Local Court, I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that plea.

2. He has spent time in custody solely in relation to this matter. He must be credited with all that time: Crimes (Sentencing Procedure) Act 1999 (NSW), s 24. The dates were discussed with the parties. The sentence will commence on 15 April 2024.

3. A custodial sentence of some length is required. Although Webb was initially provoked as he, along with others, was the victim of a robbery, his reaction to that robbery was excessive, unnecessary and involved gratuitous violence to the two people who committed the initial robbery.

4. Another person with Webb, Lawrence, went significantly further, he stabbed fatally one of the robbers. He has been dealt with for the crime of manslaughter: R v Lawrence [2024] NSWDC 485 (Judge Fitzsimmons SC). Webb is not to be sentenced for that offence, while he was involved in the events that led to the death of Mr Brown, he played no role in any way in the death. But he did, in the course of the affray, assault both Williams and the deceased, Mr Brown.

5. The incident occurred on 24 April 2023 in the suburb of Wollongong. There are Agreed Facts before the Court.

Agreed Facts

6. In brief summary, at about 1pm Brown and Williams entered premises attempting to either extort or rob the occupants of money and / or drugs. A number of people were present. After the attempted robbery the offenders ran. Lawrence said to Webb, “Let’s go get these cunts”.

7. Lawrence had a knife. Webb is said to have had a knife, but he did not use it outside the unit. Whether he picked up a knife initially or not, it is not a matter I need to decide; it is of no consequence.

8. Williams and Brown split up. Webb chased Williams. Williams slipped and fell. Webb who had armed himself with a chair leg hit Williams a number of times, at least once to the head, while he was on the ground. At that point Williams had a screwdriver taken from him by another person.

9. Lawrence caught up with Brown. Webb then arrived and joined Lawrence in his attack on Mr Brown. Both Webb and Lawrence kicked Mr Brown. While Lawrence was kicking Mr Brown, Webb walked away, but then he returned.

10. Witnesses tried to step in between Webb and Brown, but Webb got to Brown. A word is missing from the “Agreed Facts,” I think it must be “kicked” “…the deceased to the upper torso [and] head area”. Webb was not aware Brown had been stabbed and was dying.

11. As appears from the CCTV. Webb then walked away.

12. Williams received a fractured distal radius, minor head injuries and other injuries, including a dislocated shoulder. The material before me focuses on the fatal injuries to Brown which were not occasioned by Webb.

Objective seriousness

13. On any way of looking at it; this was a serious affray.

14. The offence of affray is committed by conduct of a person that would cause a person of reasonable firmness present at the scene to fear for their personal safety. In determining an appropriate sentence for an offence of affray, I have to consider the offender’s conduct in context, and that includes the context of what was done by any co‑offender so far as the affray is concerned.

15. Relevant factors include:

1. The nature and extent of the physical level of the violence used.

2. The scale of the affray.

3. The conduct of the group, noting that there can be differences in the level of involvement of various participants. But that does not always lead to a differentiation of penalty: R v Eleter [2003] NSWDC 130 at [15].

4. If sufficient is known about the participation of each offender, comparison can be made of their relative moral culpability.

5. The significance of the effect of the attack upon persons at the scene. That goes beyond the direct impact on the victims of unlawful violence.

6. That there were two victims of unlawful violence.

7. Premeditated affrays are generally treated more seriously than what occurred here, which was a spontaneous response to what was an unforeseen event.

16. An offender may only be sentenced for that part of his conduct and the conduct of the co-offenders which gave rise to the offence of affray, not that conduct which resulted in some other offence being committed by the co‑offender.

17. There was some provocation here: Crimes (Sentencing Procedure) Act, s 21A(2)(c). But it is clear to me that he went far beyond what was required to apprehend the people who had robbed him. What he did was unnecessary and involved gratuitous violence.

18. In assessing the seriousness of the affray on an objective basis I cannot, and do not, ignore the fact that a young man died during this affray, but I reiterate, Webb is not to be sentenced for causing Mr Brown’s death.

19. When one takes those relevant factors and the facts before me, that I briefly summarised, I confirm – this was a serious example of its type. It is accepted that a custodial sentence of some length should be imposed.

Other matters

20. The offender has a criminal record. It means he is not entitled to the leniency often given first offenders. An aggravating feature on sentence is that he was subject to an Intensive Correction Order (‘ICO’) at the time. That order was subsequently revoked. His past requires a nuanced approach.

21. When he received the ICO he made a promise to himself and others to be of good behaviour and to engage in programs. It is clear from the material before me that he was not keeping to the conditions of that ICO. It was revoked because of his non‑compliance. Accordingly, it would be wrong, given that he served the balance of the ICO in custody, to significantly increase this sentence because it was in breach of that earlier order. It is one of the many matters I have to synthesise, but it is not a significant one.

22. I have the sentencing remarks of Judge Fitzsimmons SC who sentenced Lawrence. Considerable leniency was given to Lawrence because of his background. There is no question of parity here, but it is important that the community understand what happened before the death of Mr Brown.

Subjective material

23. I have the benefit of a comprehensive Sentence Assessment Report, a reference from a pastor at the gaol and a very detailed report of Dr Sidhu, a psychologist.

24. Webb was born in 1985. He is a parent. He was not living with his children when arrested. Their mother died while he was in custody and they are caring for themselves in the community, as far as I am aware. He would like to play a parental role in their lives. But as I said during the course of the proceedings, he will not be much of a parent if he does not deal with the many underlying problems that have beset him since he was a child.

25. Webb’s father was involved in criminal activity, his mother was a drug addict. He was neglected as a child. His mother died young. He was taken into care when young and did not have any of the advantages that most in the community expect. His schooling was disrupted. His life as a child and teenager is described by adjectives such as “disrupted”, “chaotic”, and “neglected”. A number of important people in his life have died, his grandmother, his mother, and now the mother of his child.

26. He was involved in crime from a young age, he succinctly describes what he did as “dumb shit”. However, he still minimises his criminal activity, including this matter. As the parole report makes clear, he either blames others, negative associates, for his actions, or blames his drug use.

27. Drug use is not an excuse. It is one of the matters that has caused him to come before the Court. His continual drug use led to an assessment by Community Corrections that his risk of recidivism, that is, committing further offences, is “high”. It will remain high unless he does something about his drug problem.

28. A supervision plan can be put in place for his release to parole. It will require him to co‑operate with Community Corrections. He failed to co-operate when he was placed on the ICO, and he is back in gaol as a consequence.

29. Webb has some capacity to learn from experience. But that capacity has clearly been impacted on by his childhood experiences and neglect, attracting the principles set out by the High Court of Australia in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

30. The report of Dr Sidhu is useful. It sets out Webb’s personal history which is uncontroversial. It concludes at pars [38]-[39]:

“The combination of these factors [which are summarised in detail] impacted Mr Webb’s ability to lead a healthy, prosocial life. He views his lifestyle as normal, resulting in the minimising of his offending, continued drug use and other anti-social norms, which only serves to entrench these problematic aspects of his life. It is in this context of reliance on antisocial norms and drug-using peers that the current offending occurred.

Positively, Mr Webb has some protective factors available to him, albeit limited …. His current partner does not use or condone the use of drugs and this has been a driver for Mr Webb wanting to abstain in the long-term.”

31. Dr Sidhu goes on to say, “Mr Webb requires targeted substance use treatment”. He recommends that he engage in the RUSH treatment program and then EQUIPS addiction. He notes at par [44] that “Mr Webb’s offending and anti-sociality is persistent in nature”. Then he notes that the recent changes, particularly the death of the mother of his children, “may serve as important motivators for him to lead a pro-social life and desist from offending”. He says there is now “an opportunity to provide effective intervention”.

Synthesis

32. Mr Hart, who appears for Webb, said that immediate release from custody is warranted. I cannot accept that submission.

33. When I come to consider the seriousness of the offence, I will fix the minimum term that I believe necessary to meet the purposes of sentencing. I will make a finding of special circumstances so that Webb can be supervised for as long as possible in the community. I will take into account that his moral culpability is not that of a person who did not have his disadvantages. But the public and the specific victims in this matter suffered in response to his criminal activity.

34. Motivation to rehabilitate is particularly important, particularly for someone with a criminal record and longstanding history of criminal behaviour evident in the material before me. His prospects are not good. At the same time, if he is given appropriate help and supervision and if he utilises the period of time that remains for him to spend in custody, planning for his release, he may be able to take advantage of his period on parole and start the process to rehabilitation.

35. It will not be easy; there will steps forward and there may be steps back. I have fixed the minimum term I believe necessary but also allowed time on parole to provide him with some motivation to work toward the future. Because, as I have said, if he does not his chance of returning to custody is high. My concern about him returning to custody is not personal. My principle concern as a judge is community protection. That is the principal concern in any sentencing exercise. If he returns to custody, it will be because he has committed offences against members of the community again. And that must be avoided.

36. I must synthesise all those matters and giving him the full benefit of his plea of guilty, I note I have rounded down to his benefit: Usaia v R [2023] NSWCCA 57 at [41].

Orders

37. There will be a sentence of 1 year and 10 months imprisonment. There will be a non-parole period of 1 year and 2 months, it commences on 14 April 2024. Webb will be released to parole on 13 June 2025. The balance of the term of 8 months will commence on 14 June 2025 and expire on 13 February 2026. Parole is to be supervised.

38. A copy of Dr Sidhu’s report will be sent with the warrant to Community Corrections.

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Decision last updated: 03 April 2025