R v West

[2019] NSWDC 838

District Court

New South Wales

Medium Neutral Citation:	R v West [2019] NSWDC 838
Hearing dates:	6 December 2019
Decision date:	06 December 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of five years and two months. Non-parole period of three years and two months.
Catchwords:	SENTENCING – Fire firearm – intimidation – possess firearm. SENTENCING - Relevant factors on sentence – early offer to plea accepted after arraignment – parity – first adult offence – multiple Children’s Court offences – immature offender – use of background reports – history of disadvantage – never lived a normal life in the community – lack of insight – need for assistance – protection of the community – need for assistance in custody and monitoring on release.
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing and Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1988 Firearms Act 1996 Road Transport Act 2013
Cases Cited:	Crimes (Administration of Sentences) Act 1999 DM v R [2005] NSWCCA 181 DPP v De La Rosa [2010] NSWCCA 194 Elliot and Blessington [2006] NSW CCA 305 Hearne (2001) 124 A Crim R 451 JM v R [2012] NSWCCA 83 KT v R (2008) 182 A Crim R 571 R v Engert (1995) 84 A Crim R 67 R v Oinonen (1999) NSWCCA 310 R v Williams (2019) NSWDC 804 The Queen v De Simoni (1981) 147 CLR 383 Slade v The Queen [2005] NZ CA 19 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
Category:	Sentence
Parties:	Christopher West (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender) Ms A Hughes, Solicitor Advocate, Director of Public Prosecutions   Solicitors: Legal Aid (NSW) (for the offender)
File Number(s):	2018/00113932

SENTENCE – EX TEMPORE REVISED

Introduction

1. At about 3.30am on Monday 9 April 2018, a car was stolen from a garage in Cordeaux Heights. About 12 hours later that vehicle pulled up outside a home in Northcliffe Drive, Berkeley. Christopher West was driving. With him was his friend Joshua Williams. The home was where West's former partner, Ms Poole lived with her family. A number of family members and friends were present that afternoon. Ms Poole saw the care arrive. She saw two men in the car and went over to it. It was then that she recognised West. He began to yell:

"Youse are all fucking dogs and your family is gone. You think I'm a joke? You think this is a joke? I'm going to fucking start shooting. I'm going to blow your heads off and I'll kill your whole family. I'll spray your house with bullets. I'll kill you Brooke, I'm not joking."

2. She saw that West had gloves on. He moved his hand and started unwrapping something. What he was unwrapping was a firearm. He lifted it and pointed it outside the open passenger window, past where Williams was sitting. He had his finger on the trigger. At this point Williams hit West's arm, moving the gun down. Ms Poole went to move away. The gun discharged. A round hit the inner front passenger seat door causing damage to the car. Another person nearby felt something hit her leg. West drove away.

3. The incident was partially recorded on a phone, a disc of which was played today: exhibit F. Triple-0 were called, police attended and a crime scene was established.

4. West & Williams, who were known to everyone at the house, managed to evade police. The stolen vehicle was subsequently found. It had been burnt out. Police ultimately found the firearm that had been used in the offence. It was a shortened firearm, within the definition in the Firearms Act1996.

5. West was arrested on 11 April 2018. He has been in custody since that date. When the matter was before the Local Court there were discussions between the parties but ultimately the Director of Public Prosecutions determined that certain matters should go to trial, and the matter was listed for trial.

6. However, at a special callover of all outstanding trials in the Wollongong & Nowra areas, discussions were able to be recommenced. West was re‑indicted on three counts and entered pleas of guilty. Two other matters on an s 166 Criminal Procedure Act 1988 certificate are also before the Court.

7. West stands for sentence today in relation to those five matters. It is accepted that an aggregate sentence will be imposed for four of the matters. The fifth, a drive while never licensed s 53(3) Road Transport Act 2013 matter pales into insignificance as against the other matters for sentence. It carries a fine as a maximum penalty. It will be determined by application of s 10A of the Crimes (Sentencing Procedure) Act 1999.

Matters for sentence

8. The matters for sentence are:

1. Fire firearm in a manner likely to endanger the safety of Ms Poole. Section 93G(1)(c) Crimes Act1900; a maximum penalty of ten years imprisonment.

2. Intimidation with intent to cause fear of physical or mental harm to Ms Poole. Section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007; maximum penalty of five years.

3. Possess unauthorised firearm. Section 7A(1) of the Firearms Act 1996; maximum penalty of five years.

4. Drive conveyance without the consent of the owner. Section 154A(1)(b) of the Crimes Act 1900; maximum penalty of five years, but on the s 166 certificate is subject to the jurisdictional limit of two years imprisonment.

Objective seriousness

9. Each particular offence caused harm. Each particular offence has to be assessed independently, but each in their way are related one to the other.

10. The use of a stolen car is of itself a serious offence. For most in the community a car is their most valuable possession; unless they are lucky enough to have a house. It is almost impossible in the modern world to get around without a car. To have someone unknown to you use that car and then use it for the commission of a crime causes disquiet, both to the owner of the car and of the community in general.

11. I sentence West for his use of that stolen vehicle and his driving of the stolen vehicle during times set out in this particular matter. While this offender is not charged with destroying that vehicle, it was destroyed as a consequence of some of his actions, He must bear some moral responsibility, if not legal responsibility, for his role in using that vehicle, which ultimately was never able to be returned to its owner. One can never presume that such vehicles are insured and in any event, if they are insured, the costs are passed on to the community.

12. The fire firearm and intimidate offence and the possession of the firearm matter are all related. They all form part of a course of conduct. I sentence for the totality of all of West's actions that day. But each offence is separate and discrete and each requires a separate penalty be indicated. While here there are elements in common, they are also distinct and separate elements. There is a commonality between the principal offences in that the subject of the firearms and intimidation offences was a former partner.

13. It is commonly said, and illustrated here quite markedly, that the victim of an offence arising from the breakdown of a domestic relationship can feel that they are personally targeted. The acts against them are usually part of a larger picture of physical and mental violence, in which an offender exercises coercive power and control over the victim. That conclusion is well justified here by the material relating to other offences committed against Ms Poole and directed at her family.

14. In such cases, a conclusion can be drawn that offenders think somehow what they do is justified. As a consequence of actions such as this a victim of such offences never truly feels safe and can fear that in the future they may again be targeted. So much is revealed in the Victim Impact Statement that was tendered as an exhibit today. While I must take care in taking into account only the matters which are allowed pursuant to s 29 of the Crimes (Sentencing and Procedure) Act 1999, it is clear from the statement, which I read in part to the offender, that Ms Poole has been traumatised and continues to suffer the impact of what was done to her this day.

15. Ms Poole was personally targeted. A threat was made to kill her. The threat was made knowing that the offender held a weapon. The weapon was produced in an apparent attempt to carry out the threat. He held the weapon with his finger on the trigger. The firearm discharged. From an objective observer's point of view, from the victim's point of view, and from the point of view of everyone else who was there who were similarly subject to the threat, the gun was fired with the intent of causing harm.

16. The charge has as an element “likely to endanger safety.” It is impossible for me, given all the facts before the Court, to determine whether as a matter of fact West actually intended to shoot the weapon at Ms Poole. But I have to be careful, if he had done so, a more serious offence may have been committed. The principles from The Queen v De Simoni (1981) 147 CLR 383 apply. At the most generous it could be said that he was utterly reckless in the manner in which he used the firearm.

17. I could not, in the circumstances here, find that somehow the intervention of Williams caused the firearm to discharge. Rather, there was a real risk that had Williams not intervened, the weapon would have gone off in any event. It was discharged by the offender and Williams' intervention meant that the discharge caused no injury to any person.

18. The intimidation offence commenced prior to the firing of the weapon. The firing of the weapon is related to very real threats that were made and is a matter treated seriously by the Court. Despite an order of Courts on a prior occasion, West acted, in defiance of those orders.

19. The possession of the unauthorised firearm before and after the offence is itself a separate and distinct crime. The nature of the weapon has to be considered. Weapons such as this are possessed for only one reason. That is, so that they can be used unlawfully. There is no other reason for having a shortened firearm: one reason for the maximum penalty of five years. Firearm ownership is a privilege. No one in the community need possess a shortened firearm. It was clear from his criminal record that he was well aware of that fact.

Maximum penalties and guilty plea

20. The maximum penalties are important guides to the exercise of my sentencing discretion. The offender is entitled to a reduction in the otherwise appropriate sentence, first; for his offer to plead to the 93G offence in the Local Court, an offer that was not then accepted. It would seem in fairness that so far as that matter is concerned, a reduction in the otherwise appropriate sentence of 25% equivalent to the utilitarian value of an early plea should be allowed: see R v Oinonen (1999) NSWCCA 310.

21. So far as the other matters are concerned, although there is evidence that negotiations were in place, the matter was listed for trial. However, it was fairly obvious to me, as a list judge, that this matter would not proceed to trial. As it was possible to, after the guilty plea was entered, list another trial there was still considerable utilitarian value of the plea in other matters. I would reduce the otherwise appropriate in each sentence by 20% to take into account the utilitarian benefit to the Court.

Parity and proportionality issues

22. Williams was sentenced by me on 10 October 2019: R v Williams (2019) NSWDC 804. He had the benefit of an early plea of guilty and a small reduction for s 23 Crimes (Sentencing Procedure) Act matters. He was also sentenced for other matters, which were not charged against this offender. West's sentence must be determined by having regard to the circumstances of his co-offender and their respective degrees of culpability. While like must be compared with like, different personal and criminal histories, different involvement in the offences, different charges can and here do justify a difference in the time each will serve in prison. The principle known as parity is also referred to as a principle of proportionality.

Offender’s background

23. West has maters on his record going back to when he was 11 or 12. He has had multiple appearances before the Children's Court. This was his first adult offence, as I understand it. But he has subsequently been sentenced for other crimes committed while an adult. He was on parole for Children's Court matters when he committed these offences. He has multiple domestic violence related offences against Ms Poole; the facts of which are exhibited before me. Were he a mature adult, principles often referred to under the rubric of Veen v The Queen (No 2) (1988) 164 CLR 465, would apply: but West is not a mature adult.

24. Consideration has to be given to his background, his youth and his considerable immaturity. It is clear that he has not learnt any of the lessons that juvenile detention or punishment was meant to instil in citizens. It is clear that he has, throughout his life, operated outside the law and has not been personally deterred by any penalty that has to date been imposed upon him. He is not entitled, for obvious reasons, to the leniency often given to first offenders.

25. His subjective case is put primarily by two reports; a psychosocial report from Mr Bembrick, of the Legal Aid Commission and a report from Ms Van De Velde, a respected psychologist. I caution myself that the history given to the authors is not supported by evidence on oath from West. Where reference is made to objective circumstances of the offending, I give what he reported no weight. But the focus of the material was on subjective matters and there professional assessments. Manty of these subjective matters are verifiable by reference to the offender's criminal antecedents and other material before the Court. The opinions offered must be can be given proper and due weight.

26. The material includes West’s suffering early trauma and sexual abuse as a child. It is clear that he is still suffering from damage brought about by what is euphemistically called a “disadvantaged upbringing.” He had none of the advantages that most in our community expect will be given to children.

27. The material allows me to have some understanding of how he came to commit these crimes. It is also very relevant to his prospects for the future and his risk of further offending. He told Ms Van De Velde that he “just lost his shit.” That fairly descriptive statement reflects his understanding of why he did what he did, but what he did was commit a series of very serious criminal offences.

28. Mr Bembrick’s report details a troubled young man with a lengthy history of behavioural and attention deficit disorders; a young man who is currently depressed and being medicated for depression. He notes a history of disadvantage as a child. His father, an ex-drug addict spent considerable time in gaol. His mother had to raise their children, without much support. There is evidence of sexual abuse, and other unrelated behavioural problems. There is evidence of ADHD, oppositional defiance disorder and substance abuse from when very young. West took up the use and abuse of illicit substances well before he had a capacity to make rational choices. When he attended, it appears he gained no benefits, from school.

29. West is still young. He is not a robust individual. He remains resistant to professional assistance. He needs help rebuilding his life. In fact, he needs help building his life. He has never lived a normal life in the community.

30. Substance abuse, unsurprisingly, is a real problem and will require close monitoring in custody and on release. None of the positive lessons meant to have been learnt or taught by juvenile detention have been learnt.

31. Ms Van De Velde indicates, frankly, that West has no insight of the harm he has caused Ms Poole. He began this relationship far too young. He associated with peers who also regularly appeared before the Court. Her testing indicates West has; a major depressive disorder, multiple drug use disorder, post‑traumatic stress disorder, adjustment disorder with anxiety and antisocial personality disorder. As antisocial personality disorder, she notes, indicates high levels of impulsivity, anger, hostility, aggression and violence.

32. Generally such a plethora of mental health problems shown by one so young requires some moderation of penalty and understanding by the Court. Generally, and here, the offender’s background and those problems mean that he cannot be considered as being as morally culpable as the notional offender who does not have those problems.

33. The principles to which I have obliquely referred to are set out in full in DPP v De La Rosa [2010] NSWCCA 194 and R v Engert (1995) 84 A Crim R 67. They require a Court to be particularly wary; while a sentence cannot exceed what is required by the objective gravity of the crimes individually and in total, particular need must be given here to protection of the community.

34. A risk assessment by Ms Van De Velde indicates that West is at a moderate to high risk of committing further offences, unless he gets a lot of attention in custody and on release. The focus of any help must be on; his substance abuse problems, his anger and aggression and relationship problems. Help must be directed at minimisation of domestic violence type behaviour. She proposes a plan which involves further psychological treatment and cognitive behaviour therapy, psychotherapy, engagement with the Violent Offender Program and with EQUIPS Addiction. West must be referred for ADHD assessment. West will need careful monitoring on release.

Special circumstances

35. As Mr Fraser, Public Defender, who appears for West, properly submits, the sentence I must impose will mean that he will not automatically be released to parole. His release will be subject to an assessment by the State Parole Authority. He will not be released until it is in the interests of the safety of the community that it occur: see s 135 of Crimes (Administration of Sentences) Act 1999. He has to earn his release to parole. If he continues to refuse assistance, if he continues an attitude of defiance, he will serve the whole of his sentence and then when released he will probably be at a greater risk to the community than if he is carefully monitored and supervised on parole.

36. The need to partially accumulate this sentence, to take account of the Local Court matters, and the need to ensure that he is supervised and assisted in the community for as long as possible, provides a basis for a finding of special circumstances. It is clear that he has a longstanding illicit drug problem and that allows me to have some understanding of the man for sentence, but drug use can never be an excuse for the commission of offences.

Sentencing young offenders

37. There is a general sentencing principle that young, immature offenders not be sentenced as harshly as adults: KT v R (2008) 182 A Crim R 571; DM [2005] NSW CCA 181; Hearne (2001) 124 A Crim R 451. As with many sentencing principles, they do not all point the same way. Two themes have been addressed in the submissions before me. One recognises the strong community interest in the rehabilitation of the immature. It is recognised that adolescents, and West is still in his adolescent phase, can have decision making capacities that are immature with constrained autonomy: see Elliot and Blessington [2006] NSW CCA 305; Slade v The Queen [2005] NZ CA 19. A young person’s ability to make good and rational decisions can be aggravated by stressful, unstructured settings and the influence of others. It is clear that West is a very immature man and his immaturity contributed to the offending. The second principle also has to apply here. It stresses the protective function of the Court, particularly where crimes of violence are involved. Justice Simpson discussed these themes in JM v R [2012] NSWCCA 83.

37. The tension between the themes is particularly apparent when it comes to the purposes of sentencing relating to general deterrence. Generally general deterrence has less impact when sentencing young immature offenders than the mature offenders. That said I must consider the facts and seriousness of all the matters before the Court. West was in a stolen car with a loaded gun. His actions were a continuation of long term criminal behaviour. Some of that criminal behaviour had been directed at the victim of this matter. He well knew, from having spent time in custody, even if he was incapable of fully comprehending fully their moral wrongness and the consequences of his actions, both for his victim and for himself or that his actions would put him in gaol. He did not think of himself. He did not think of Ms Poole, he did not think of the others who were present.

38. No one, child or adult, can expect that such actions will be otherwise than severely punished. The best that can be said is that had he been a more mature, more calculating offender, a greater sentence would have been expected. The offence itself demonstrates such a degree of thoughtlessness that is obvious, without the need for a degree in psychology, that he was and remains grossly immature. It is a sad but tragic fact that his growing up will take place in the adult custodial environment.

39. As Mr Fraser alluded to, there are a number of significant studies from the Bureau of Crime Statistics and Research and the Victorian Sentencing Advisory Council, which indicate that particularly for young offenders, harsher prison conditions and longer sentences do not necessarily discourage future offending: see Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011. In fact, paradoxically the experience of full-time gaol may exert criminogenic effect; a crime producing effect. It is a criminal learning environment. Offenders, on their release, are labelled and stigmatised and have greater difficulty adjusting to normal community life, finding jobs, finding accommodation, establishing relationships. There is a very high rate of recidivism among young offenders, such as West and it would appear that imprisonment per se does not have a specific deterrent effect. Being in custody reinforces negative role models and encourages association with other criminals. At the same time, by his behaviour, West has indicated in the clearest possible terms that he must be removed from the community.

40. I am indebted to Mr Fraser and Ms Hughes, Solicitor Advocate for the Director of Public Prosecutions for their comprehensive written submissions. Given the hour, I will not further detail all the matters which have been set out in them. But they have been taken into account and I trust applied in the synthesis of relevant factors.

Synthesis

42. Each of the offences has common factors. The firearm was a common element in two offences. I cannot punish West twice where areas or elements overlap. The aggregation of all sentences must ultimately be a just and appropriate measure of the total criminality involved. Because the various offences encompass the whole of his criminal conduct and each must be charged and punished individually, there must be partial accumulation. I will also structure the aggregate sentence to give West an opportunity to prove himself in the community, if he earns release to parole.

43. The purposes of sentencing require appropriate and just punishment. The purposes here point in different directions. There are reasons in the background of the offender, despite his history of criminal offending since 11 or 12, for some moderation of the impact of the law. His youth and immaturity means that principles relating to general deterrence can be moderated to a slight degree. But mitigating factors can only go so far.

44. Courts have to go back to what was done and the impact of crimes such as this on their victims and on the community. There is understandable community disquiet when a firearm is used as it was here. And, where young women are threatened and intimidated in any form. One of the reasons we have a criminal law system is to avoid vendettas between members of the community; where people take the law in their own hands and here, use firearms because they somehow think that they are the aggrieved party.

45. Courts must also attempt by the severity of the sentence to signal the community's repugnance at certain types of criminal behaviour. There are some crimes, such as this, where retributive punishment is required. Further, courts must, by the severity of the sentence, attempt to vindicate the dignity of victims of violence.

46. The maximum penalties are, as I said, one guide to the exercise of my discretion. I will reduce the otherwise appropriate sentence the for the firearms offence by 25%. In relation to the other matters, I have reduced the sentences indicated by 20% to give effect to either fairness or the utilitarian value of the pleas. When I structured the aggregate sentence, I tried not to undermine the value of that benefit by the process of accumulation.

Orders

47. So far as the unlicensed matter, the conviction is confirmed. Dealt with pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999.

48. I have to indicate a sentence for each of the other four matters.

1. For the Fire firearm offence there will be an indicated sentence of four years and one month.

2. For the Intimidation offence there will be a sentence of one year and nine months.

3. For the Possess unauthorised firearm offence there will be a sentence of one year and seven months

4. For the Drive conveyance without the consent of the owner offence there will be a sentence of one year and two months.

49. The total aggregate sentence will be one of five years and two months. There will be a non-parole period of three years and two months. The balance of sentence is two years, reflecting a finding of special circumstances.

50. The offences occurred while on parole. During the course of the remand, a number of custodial sentences were imposed. I have considered the submissions in relation to a starting date and I have considered questions of totality. There must be some discrete punishment associated with the breach of parole and for the matters dealt with in the Local Court. The sentence I impose will start on 11 August 2018, which means West will be eligible for consideration for release to parole on 10 October 2021, with the balance of term of two years and the total sentence expiring on 10 October 2023.

51. I make a firearm destruction order.

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Decision last updated: 03 March 2020