R v White

Case •

[2024] NSWDC 38

•

23 February 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v White [2024] NSWDC 38
Hearing dates: 19 February 2024
Date of orders: 23 February 2024
Decision date: 23 February 2024
Jurisdiction:Criminal
Before: Priestley SC DCJ
Decision:

See [151-153]

Catchwords:

CRIME — Violent offences — Take/detain person in company.

CRIME — Property offences — Break and enter with intent to commit serious indictable offence

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v The Queen (2011) 244 CLR 120

R v Ponfield (1999) 48 NSWLR 327

Bugmy v R (2013) 249 CLR 571

R v Millwood [2012] NSWCCA 2

Hall v The Queen [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

R v Todd [1982] 2 NSWLR 517

Stanley v DPP [2023] HCA 3

Texts Cited:

NA

Category:Principal judgment
Parties: Rex (The Crown)
Dylan White (The offender)
Representation:

Counsel:
Anderson for White
Biffin for The Director of the Office of Public Prosecutions

Solicitors:
Fuggle for White
File Number(s): 2022/00368935
Publication restriction: NA

JUDGMENT

Introduction

  1. These are the reasons for sentence following a hearing on 19 February 2024, when Dylan White appeared to be sentenced for the following three offences, all committed on the same day, 12 November 2017 when he was 26 years old, and in the company of four other men:

  1. Aggravated break and enter and commit a serious indictable offence namely armed robbery;

  2. Detaining a person in company with the intent to obtain an advantage where the victim was Shawn Gardner;

  3. Detaining a person in company with the intent to obtain an advantage where the victim was Mitch Lavelle.

  1. The maximum sentence for the break and enter charge is 20 years and there is a standard non-parole period of five years. The maximum sentence for each of detain charges, which are brought under s86(2) as aggravated offences, is 20 years with no standard non-parole period.

  2. In relation to the maximum sentences and, in respect of the section 112(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts, indicating the legislature’s view as to the seriousness of the offences so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”).

  3. There are no matters on a Form 1 to be taken into account nor are there any matters to be dealt with in a summary fashion pursuant to a section 166 certificate. The offender was not on conditional liberty at the time of the offence. There were four co-offenders, three of whom have been sentenced; a person accused of being the fourth co offender is awaiting trial.

Facts

  1. On 12 November 2017 the offenders travelled from Kempsey to Casino by motor vehicle. The scene of the crimes was Casino golf club and they parked nearby and dressed in preparation for robbery. They covered their faces, put on gloves and some turned their tops inside out.

  2. At about 8:30 PM they travelled by foot to be near the clubhouse.

  3. The two victims Shawn Gardner and Mitch Lavelle were employees of the golf club and at about 9 PM were locking the external doors. They were attending their duties to affect closing.

  4. At about 9:10 PM the offenders were looking through some of the external windows. Two of them including the offender Dylan White suggested they leave and not follow through with the offending. Those two decided to continue.

  5. The victims heard a banging which was the sound of the offenders using a broken paver to smash through one of the external glass doors. Each of the offenders except for Dylan White entered the building. Dylan White remained outside. The facts then state in the next paragraph that the victims were confronted by the offenders that had entered the clubhouse (drawing a distinction to Mr White who remained, at least at this stage, outside). The agreed fact is “those” offenders (that is, those that had at this stage entered the club) were holding various weapons including a machete, iron bars and a sword shaped object, and they confronted the victims. The plain inference from the facts is that Mr White was not one of those offenders.

  6. Mr Lavelle sought to escape and was running from the clubhouse but was confronted by Mr White who was holding a long bar. This is outside the premises. Mr White tries to bring Mr Lavelle back inside but the external door had locked. Entry was gained by Mr Lavelle using his swipe pass. Mr Lavelle and Mr White then walked to where the offenders and Gardner were.

  7. There one of the offenders yelled “get on the ground cunt or I’ll fuckin kill you”. Mr Gardner was struck to the left shoulder with a machete. One of the offenders yelled "kick his head in fucking get down don’t fucking look up kill him”.

  8. The victims were forced to the ground and their hands and feet cable tied as they lay on the ground.

  9. One offender kicked Mr Gardner in the shoulder and then stomped on the side of his head. The offenders demanded keys to the safe. One took Mr Gardner’s mobile phone and wallet from his pocket.

  10. About this time a security guard arrived, the guard having earlier been called in the usual course of business to escort the victims from the premises. He saw one of the offenders through the glass entrance door. That offender said “security, get the cunt”. One offender kicked the entrance door causing it to crack. The guard drove his car to the other side of the clubhouse and called police for assistance.

  11. At 9:14 PM, just four minutes since the offenders had looked through the external windows, the offenders fled through the broken rear door. The victims escaped their restraints. The offenders ran to their car.

  12. At 9.16 PM police arrived at the club.

  13. Mr Gardner’s partner used the find my iPhone function for Mr Gardner’s phone. The phone was recovered a three minute drive from the golf club. The wallet was also found on a search of the area. Discarded clothing was also found. The offenders’ DNA was found on some of those items.

  14. On 14 August 2020 the co-offender Mr Donohue provided an induced statement indicating Mr White was one of the people who participated in the offending.

  15. On 7 December 2022 police attended a residence in South Kempsey and conveyed Mr White to the Kempsey police station where he was charged. No explanation is given in the facts for the passing of more than 2 years between Mr Donohue’s statement and Mr White’s arrest.

  16. A feature of these facts is that they do not make clear or do not expressly identify which of the offenders was responsible for the actual conduct involving the assault of Mr Gardner and the tying up of the victims. Plainly all the offenders are jointly criminally liable for that conduct but in determining the question of objective seriousness it is necessary if possible to determine the particular conduct of the person being sentenced, in this case Mr White.

  17. Further submissions were sought from the parties on this issue. The Crown provided very helpful submissions. The Crown submission is that it is open to find Mr White was not responsible for the assault using the machete, but it cannot be said one way or the other whether he did or did not join in the other conduct of forcing the victims to the ground, cable tying them, and kicking and stomping Mr Gardener, has merit. That submission is based on the agreed fact that Mr White did not have the machete, and also on the fact that all 5 offenders were present at the time of the other conduct.

  18. The accused in his further submission made at the Court’s request accepted the position to be as put by the Crown. The sentence proceeds on that basis.

  19. The following observations can still be made as to Mr White’s conduct:

  1. At a time no earlier than 9.10pm, and when the offenders were approaching the clubhouse, and so just minutes before the assault upon Mr Gardner, Mr White suggested the offenders leave and not proceed with their plans.

  2. Mr White remained outside the club house initially when the other offenders entered it, and it is not suggested that he was performing any kind of look out role.

  3. When he had the opportunity to use his metal pole on Mr Gardner outside, he did not do so.

  4. It was the other four offenders, and not Mr White, who first confronted the victims.

  5. Mr White is plainly not a leader of this group.

Objective seriousness

  1. The Crown submits that this offending falls above the mid range of objective seriousness. That is a submission with much force in circumstances where there were five people involved in the offending; threats to kill were made; a machete was used to strike a person on the shoulder; that person’s head was then stomped on several times and he was also kicked. The victims were bound and forced to the ground and placed in the most terrifying of situations. Notably all the charges are aggravated, and in each case with more than just the one matter of aggravation necessary to make out the element of aggravation. In relation to the s112 offence, the matters of aggravation are (per s105A) being armed, being in company, deprivation of liberty, and inflicting actual bodily harm. In respect of the s86 offences it is being in company and inflicting actual bodily harm. As noted, only one is needed to make out the relevant offence; the other matters of aggravation are taken into account in assessing the objective seriousness of the offending.

  2. The offender in written submissions accepts this assessment which is in line with the decision of Judge Baly in sentencing a co-offender. The submission orally was tempered somewhat to say that it may be in the low mid range. That submission was made after there had been an exchange concerning the need to consider the particular conduct of the offender whose conduct is being assessed. The court had the benefit of Judge Baly SC’s reasons on sentence in the matter of Byrne at Tab 6 of exhibit A. Her Honour expressed the view that the offending fell above the mid range due to the victims being confronted by five disguised and armed robbers as well as other factors including the threat and assault of Mr Gardiner and the threat to Mr Lavelle, the fact they were bound.

  3. It was said by Judge Baly SC that the guideline judgment of Ponfield gave little guidance and no reference was made in the present case to Ponfield in submissions. Her Honour held the s112 offence fell above the mid range, a case where there was an unsuccessful conviction appeal but no appeal as to sentence.The same assessment was made in the cases of Donohue and Kennedy.

  4. The facts specific to Mr White however allow for a lesser assessment of objective seriousness. Yes he was party to an offence which was of that level of seriousness, however when Mr White’s particular conduct is considered it can be seen that his role was less than that of the others.

  5. In the cases of the three co offenders it was not known which of the offenders was holding the machete, so the sentencing proceeded not on the basis that a particular offender held a machete, or struck Mr Gardner with it; nor did the sentencing proceed on the basis that they did not so act. In the case of Mr White, the sentence can proceed on the basis that he did not hold or use the machete. That is a significant difference, which when taken together with the findings set out at [23] above result in an assessment lower in objective seriousness than for the co offenders.

  6. The section 112 offence has a standard non-parole period and it is necessary to determine whether it is at that point of the middle of the range of seriousness as referred to in section 54A. Ultimately that is a legislative guidepost so that whether it reaches that point or falls just short of it does not lessen the guidance to be given by those provisions. In my assessment the objective seriousness of the conduct of Mr White falls short of that point whilst being into the mid range. In frequently heard parlance, I would assess the objective seriousness as being in the low mid range.

  7. It is the same conduct of the offender that needs to be considered in determining the objective seriousness for the section 86 charges. The period of the detention is brief, albeit highly stressful. The circumstances of the offending as set out above however dictate that the assessment must be that the offending is into the mid range, though I would assess it as being of lesser objective seriousness than the s112 charge. The other sentences treated the detain of Mr Gardner as more serious because of his injuries; yet given the above findings in that regard, and given Mr White’s conduct in preventing Mr Lavelle from leaving the scene and causing him to return inside, I consider the detain of Mr Lavelle to be more serious conduct on the part of the Mr White.

Aggravating factors

  1. Consideration of some aggravating factors has been dealt with at [24] above. The Crown submits that the section 86 matters are aggravated by the threats of violence which were part and parcel of the armed robbery matter. In my view that aspect forms part of the assessment of objective seriousness and should not be double counted.

  2. The Crown quite fairly does not seek to argue that the earlier offending of a similar nature in 2009 (at the age of 18) is aggravating.

  3. There is a degree of planning self evidently present here but that too has been taken into account in assessing objective seriousness. The planning extended to considering appropriate clothing and masks, and the taking of cable ties and weapons; that said, the whole undertaking is not sophisticated.

  4. The victims were vulnerable. I accept this though it too is a matter taken into account in assessing objective seriousness.

Victim Impact Statements

  1. There were two victim impact statements one from each victim. Those statements should be given due consideration and they are taken into account. Mr Lavelle’s statement and that of Mr Gardner are both dated in June 2019. The only point made by the accused was that these statements are now some five years old so query how reliable they are as to the impact at the present time. Whilst there is some merit in that submission, the impact statements nevertheless show that some two years after the offending both victims were markedly impacted by the offending though markedly more so in the case of Mr Gardner who was the most severely assaulted victim. He talks of that having a significant impact on him leading him to abuse alcohol and to his marriage ending and suicide attempts. He says he has been diagnosed with post-traumatic stress disorder and depression. Consideration is given to these matters.

  2. The impact is not so great on Mr Lavelle who talks of it impacting on his ability to take up employment shortly after the incident and how it impacted on his job in engineering as well as the work he later did at the club

Subjective case

Guilty plea

  1. There is no dispute that Mr White has the benefit of a 25% discount on his sentence due to the early entry of his guilty plea. I also take into account that early plea as being supportive and consistent with other elements of his subjective case as to remorse and acknowledgement of wrongdoing. The evidence the Crown appears to have against Mr White is the identification of him by the co-offender Mr Donohue and DNA of Mr White on some clothing found near where Mr Gardner’s phone was found. The Crown case, had there been a trial, would have hinged on the fact finder in part, and possible a large part depending on any successful challenge to the DNA evidence, accepting Mr Donohue’s evidence which almost certainly would have been subject to section 165 warning given his involvement in the offending and the benefit to him of the further discount on his own sentence. There was real utility in this plea both in saving the state the resources that would have been invested in any trial and also in saving the victims from giving evidence which would have been particularly trying for Mr Gardner based on his victim impact statement.

Criminal History

  1. The criminal history of Mr White is such as to deny him leniency. It does not deny however favourable assessments being made of his risk of reoffending and his likelihood of rehabilitation. Mr White was born on 1 May 1991 and his criminal record starts in the Children’s Court for an offence committed on 9 October 2005 that is when he was just 14 years old. There is repeated offending from that time including numerous aggravated break and enters throughout his adolescence. It then continued as an adult with his first appearance in an adult court namely Kempsey Local Court being in respect of one count of aggravated break and enter and commit serious indictable offence in company and a second charge of attempting aggravated break and enter and commit serious indictable offence in company, both occurring on 13 October 2009 so when he was 18. Mr White was sentence to 2 years and three months with a non-parole period of one year and three months and to a fixed term of six months for those offences which were to be served wholly concurrently. The commencement date of that non-parole period was 19 October 2009 so that it expired on 18 January 2011.

  2. Since that time the extent of his offending as an adult is as follows:

  1. 28 April 2011; take and drive conveyance, sentenced to 12 months imprisonment with three months non-parole period expiring 14 November 2011.

  2. 25 April 2011; attempt to escape from lawful custody, sentenced to 12 months imprisonment with three months non-parole period expiring 14 February 2012.

  3. 21 April 2017: behave an offensive manner, penalty of $400 fine.

  4. 31 March 2018 destroy property, sentenced to 18 month community correction order.

  1. Whilst as already noted this record would deny Mr White leniency it can also be viewed in a favourable way. The background of the offender is recounted below. The circumstances of his serious juvenile offending need to be seen in the setting of the significant disadvantage in which he was raised. His record since having spent in effect 15 of his first 20 months as an adult in an adult prison shows that term of custody along with other factors has brought about behavioural change. It was only soon after his release and in fact when still only 19 that he committed the escape offence and take and drive conveyance offence. That was in 2011. The two offences that have occurred since, other than the present offending, are minor and show that there was a period of six years without any offending and subsequent to the 2018 destroy property matter there has now been a further period of six years without any offending.

  2. This evidence supports the other evidence in his case going towards a finding which I do make that his risk of reoffending is low and his prospects of rehabilitation not only high but well underway.

Testimonials

  1. A letter of a Dr Murray speaks very highly of the offender. He speaks of the offenders’ transformation and his unwavering dedication to becoming a responsible and law-abiding member of society. He talks of his commitment to his partner and four children. He speaks of his strong work ethic.

  2. There is a letter from Matthew Gaiter who I infer is in a position of responsibility over the offender in connection with his work on the Newell Highway. He talks of how the offender commenced as a labourer and has become a valued plant operator and an efficient senior labourer. He describes the offender as pleasant and diligent and punctual in his work. The offender was nominated for a New South Wales Civil Contractors Federation award in 2022 and narrowly missed winning the Aboriginal and Torres Strait Islander employee of the year award.

  1. He talks of knowing of the offender’s family of which the offender is very proud and justifiably so.

  2. The letter and reference is detracted from by the writer not knowing the exact nature of the offending. There is however a subsequent letter from this person dated 14 November 2023 from which it can easily be inferred that the charges are known to him and he stands by the high opinions he expresses of the offender.

  3. Mr McLaughlin, a work colleague, echoes the above sentiments.

  4. Another work colleague Mr Ryan again echoes the above but also gives an example of an attendance at a high school with the offender where the offender struck a chord with several of the school students telling them of his journey and of how he was afforded the opportunity to work on large infrastructure projects.

  5. Also in evidence was a series of certificates showing the offender to have gained qualifications through TAFE and other recognised trainers.

  6. Another work colleague who was a supervisor, a Mr Padgett states that the offender was trustworthy, honest and reliable. The offender consistently shows dedication and diligence. His willingness to take on additional responsibilities made him an invaluable asset to the workplace. Mr Padgett says he is aware of the current situation and states he would love to offer further employment to the offender.

  7. Luke Duggan who has known the offender for five years echoes the sentiments of the earlier referees.

  8. There was also an email from a contractor working on the Newell Highway project highly praising the offender and venturing the view that he deserves a pay rise or a promotion and that he was “an absolute asset” to the company which led to him being nominated for an award.

  9. Also in evidence is the nomination form for the Aboriginal Employee of the Year setting out matters consistent with the above.

  10. Lastly there is a letter from New South Wales Health attesting to the fact that the eldest child of the offender born on 3 May 2012 had been reviewed in September 2023. There is reference to medication of Ritalin no longer being effective and with a different medication being prescribed. I infer the difficulty is or was ADHD based on that earlier medication and it would seem that the child has some difficult behaviours.

Psychologist’s report

  1. The offender relied upon the report of Dr Dornan, a registered psychologist. There was no challenge to that report.

  2. The report records a history of the offender's maternal grandmother being part of the stolen generation. The offender said that the majority of his aboriginal identity during his developmental years was negatively influenced by the community around him. He experienced frequent racist and discriminatory behaviours from the community including at school. He said this extended to racial profiling by police and that it was normal to be stopped by police no matter what he was doing and that this was occurring before he had been in trouble. This left him embarrassed and ashamed of his cultural identity. As he aged he became angry, and wanted to do something in retaliation for this poor treatment saying he had no trust in any institutions or government officials.

  3. He said he grew up believing all aboriginal people were of lower socio-economic status and were more prone to be unemployed with little education, and were affected by domestic violence and that alcohol and drug abuse were normalised in the community. The offender suggested his own experience of witnessing many of these factors initially reinforced his negative beliefs. It has only been with age that he has been able to reconcile these negative beliefs with what he believes is the reality of a proud and strong culture.

  4. He is the youngest of five children. His mother died when he was nine. His older brother was a significant role model in his life but the brothers entry into custody has negatively impacted their relationship.

  5. He has fond memories of his mother and not surprisingly her death had a significant and negative impact on him and he felt everyone had a mum except him. Following his mother’s death his behaviour changed. I infer this is intended to mean he became more disruptive.

  6. He thought his father to be a good man but overwhelmed by the loss of his wife who began to abuse alcohol and other drugs to manage his grief. He became dependent on alcohol. Whilst his father was physically present he was psychologically absent. The older brother became the father figure but that ended with his incarceration when Mr White was in adolescence. He recalled the family was poor and struggling. The father's substance abuse issues used up limited money that they had. He said the family had few resources and there was never any food at home. He began to steal to eat which he did not consider antisocial but simply a way to survive.

  7. The psychologist notes the comments of Mr White that when his mother died in effect he also lost his father and his sense of safety and stability just vanished. He was embarrassed by his father’s alcoholism. He was never clean, had few possessions and was physically and emotionally neglected at home.

  8. Mr White says that by about 13 years old everything “just hit me”. He had become disaffected, resentful, discontent and frustrated at his situation and the fact that he had no support and was subjected to persistent racist and discriminatory behaviours in the community. He was already associating with an antisocial peer group which appears to have worsened and he increasingly used alcohol and illicit drugs both to gain acceptance to the peer group and to manage his presenting symptoms of poor mental health, which the psychologist was later to suggest is consistent with chronic depression.

  9. By 14 his antisocial behaviours had become just something everybody did. A break and enter offence saw him go into juvenile custody. He said that was actually positive and he felt loved and looked after simply by the structure custody provided and the provision of clothing and shoes. His adolescence is reflected in his criminal history of being in and out of juvenile detention and of being angry and wild with significant drug use.

  10. It was suggested by teachers he may have ADHD but that was never investigated.

  11. Whilst there was some schooling provided in juvenile detention he did not proceed past year nine as he appears to have been suspended in year eight and then spent 12 months at another college.

  12. Following school he had a limited work history with only some short-term work. However he managed to stay out of trouble from the age of 21 finding work building a road bypass which I note is work similar to what he is now doing. He has worked consistently since then which again I would note coincides with the period of minimal offending apart from the current matter. He has worked five or six years to the present working full-time on a new highway being the Newell Highway.

  13. He showed a good attitude in my view when he said to the psychologist he was determined to use the custody experience to his advantage. He is working in the furniture shop. He still struggles with anxiety and depression symptoms. He wishes to take advantage of programs in custody but was told he cannot access them until after sentence.

  14. His plans on his release are to return to his former work and he has been told by his employer that he can return to his job. I infer this employer is one of the authors of one of the favourable testimonials. Mr Wright also said he is aware of the antisocial influence of his antisocial peers and he has severed ties with them with no intention of re-engaging with them.

  15. He identified a challenge in custody as being avoiding antisocial peers but that he had worked hard to stay away from negative influences. There was some pro social peers in the community and he plans to focus on those relationships on release.

  16. He told the psychologist of the support he has from his long-term partner. He enjoys being a father and worked hard to be “the father I never had”. He has a close relationship with his children and believes he was a good influence other than for his present incarceration. He felt ashamed that they had to deal with this.

  17. In terms of his substance use history he was drinking alcohol by 12 years of age though by 21 his problem drinking had ceased but had increased since being on bail. He was confident he would not do this on release. Also at age 12 he started using cannabis which he ceased at age 18. He experimented with other drugs including MDMA and amphetamines but stopped using drugs at age 18.

  18. As to the offences he had become frustrated with not having resources for his family despite his hard work (ie, as at 2017) and he made what he considers a very bad decision and on impulse agreed to participate. He says he expressed doubts to the co-offenders about proceeding but was silenced. When at the club he began panicking and was too anxious to enter the club at first and then entered when he was confronted by victim. He had good insight into the impacts of his actions on the victims. He accepted full responsibility.

  19. An opinion is expressed by the psychologist of a diagnosis of persistent depressive disorder

  20. In putting forward a view of the matter and what might be called the offender's prospects the psychologist referred to the good insight of the offender as to factors influencing his offending, his willingness for intervention, his steady employment, his stable accommodation, and the need to address his depression. He considers Mr White to be a responsible person with good overall prospects.

  21. As to whether the background has contributed to the offending the opinion given was that the offender had been impacted by a number of experiences of disadvantages including the death of a parent in childhood, interrupted school attendance and suspensions. Early exposure to alcohol and other drug abuse, unemployment, cultural disposition, social exclusion, a low socio-economic status, childhood neglect and impacts of imprisonment. These are referred to as adverse childhood experiences which contribute to the development of a variety of antisocial attitudes and offending behaviours. This background has disrupted the development of emotional regulation skills and causes difficulties in managing emotions impulses and frustration. He has also struggled to separate from antisocial peers and has a negative self-concept.

  22. It is recommended that he be referred to a psychiatrist and if in the community access than through an Aboriginal Medical Service. The primary need however is for psychological treatment, something Mr White recognises to address his grief and loss issues, poor self-esteem, emotional coping and behaviour regulation.

  23. The view is further given and was not challenged that due to his lower needs the offender will not be prioritised to access psychological treatment in gaol, though some custody programs were identified.

  24. It was also stated by the psychologist that it is important for the rehabilitation of Mr White that he engages productively in the community that he has responsibilities and is contributing to his family as well as remaining separate from the antisocial culture. It is expressly stated as an opinion that Mr White’s treatment needs will be best and most consistently addressed in the community.

  25. There was no challenge to this report. I accept the history it sets out and the recommendations and opinions it contains. I find that the offender is from a background of significant social disadvantage. The principles of Bugmy apply.

  26. What also stands out from that report is the eloquence and insight of the offender. He has described his childhood and adolescent experiences in a way many indigenous men in similar positions do not; that is he has been far more insightful in describing firstly the conditions in which he spent his formative years and secondly with considerable insight recognising how that has impacted on his behaviour and thirdly how having now come to grips with that disadvantage in an increasing way, has resolved to conduct himself in a more constructive and prosocial way.

Sentencing assessment report

  1. In addition to the history and opinions of the psychologist, there was also before the Court a sentencing assessment report.

  2. The report is dated 5 December 2023 and it will be remembered that the offending occurred on 12 November 2017 so some six years previously.

  3. The report notes the offender's circumstances as being an indigenous man whose early family life was described as “rough” and that as a young boy he was exposed to violence and substance abuse within the home.

  4. He has been in a healthy and supportive relationship with his partner of 13 years and they have four children. He attributes the change in direction in his life to his partner.

  5. Before arrest he was living at Coonabarabran to where he had relocated from the Kempsey area. He intends to return to Coonabarabran upon his release. He has the ongoing support of his partner.

  6. For the past five years he has held full-time stable employment in the road construction industry. That employment is open to him upon his release. Enquiries were made confirming the employer had available work. The employer described the offender as a dedicated and hard-working employee.

  7. Whilst in custody he has also impressed as a hard worker.

  8. The report notes his history of antisocial behaviour as follows. From the age of 14 until 20 in the years 2005 to 2011 he offended consistently and predominantly with matters of aggravated break and enter and commit serious indictable offence in company, that is offending such as what is now being considered.

  9. There was no offending however in the period commencing in 2011 and ending with this current offence in 2017 (but for the minor offensive behaviour matter for which he was fined) and since that time just one offence in 2018 of a minor nature.

  10. This period of minimal offending albeit including the current matter which is a serious one is attributed to the relocation away from Kempsey to Coonabarabran and ending his association with antisocial people, having meaningful employment and being in relationship with his partner and children.

  11. He has been compliant with the correctional routine in custody.

  12. As to his attitude he accepted the facts provided to the court and accepted responsibility for his actions. He attributed the offending to poor decision-making and peer pressure. The offender goes so far as to say that he tried not to go through with the offending which is why he stayed outside. But nevertheless he admitted that when the victim came towards him he panicked and told him to go back inside.

  13. He described his co-offenders as people known to him since early childhood, I infer amidst the background of the community where he was exposed to violence and substance abuse. These associates supported his antisocial values at the time of his offences though it must be noted he had managed to disassociate himself from them, or at least not offend, for the previous six years.

  14. It was after committing these offences that he reflected on his criminal associations and the impact it was having on his life and he made the decision to disassociate with them and commence a prosocial lifestyle. He has had no contact with the co-offenders since the offending in question.

  15. The offender demonstrated insight and took responsibility including insight into the impact on the victims. He acknowledged the offending would have long lasting effects as is supported by the victim impact statements. The offending also impacted on him as it was this that led to his relocation.

  16. Mr White is willing for any interventions to address his criminogenic risk factors and was also willing to undertake community service work for which he is considered suitable.

  17. He was subject to supervision in 2018 which was then suspended (a positive sign) and has engaged respectfully with community corrections for this report and spoke honestly and openly.

  18. He is considered a medium/low risk of reoffending according to the level of service inventory. If a supervision order is made there will be no need for face-to-face reporting though that is subject to review it further offending occurs.

  19. A suggested condition of any supervised order is that he not communicate or associate with the co-offenders.

  20. This report is of great assistance to the offender. It shows consistency in his history and in his presentation, and of his healthy insightful pro social attitudes. I accept the history given in this report and the views it expresses, save that I consider the assessment as to his risk of reoffending to be excessive. In light of the significant pro social behaviour demonstrated by Mr White for more than 12 years, and his current work and domestic circumstances, my assessment is that his risk of re offending is low.

Special circumstances

  1. Should it be necessary to set a non-parole period I make a finding the special circumstances. This is for the reason that there has been demonstrated significant rehabilitation to date and that rehabilitation will be better progressed and served by a lengthy term in the community as described by the psychologist.

Consideration

  1. There is no argument in this case against the conclusion that no sentence is appropriate other than a term of imprisonment. The question is in all the facts of this case what that term of imprisonment should be, a result to be arrived at after considering the effect of delay and the principles of totality, parity, and proportionality.

  2. The purposes of sentencing are set out in section 3A of the Crimes (Sentencing Procedure) Act. They are:

  1. To ensure the offender is adequately punished

  2. To prevent crime by deterring the offender and others from committing similar offences

  3. To protect the community from the offender

  4. To promote the rehabilitation of the offender

  5. To make the offender accountable for his actions

  6. To denounce the conduct of the offender

  7. To recognise the harm done to the victim of the crime in the community.

  1. The parties provided both written submissions and also further oral submissions at the hearing, and the additional submission that has been referred to. The offender relied upon his disadvantaged background as well as his earlier substance abuse issues. Emphasis was placed on his remorse and acceptance of responsibility. The principles of Bugmy and Millwood were called in aid. Emphasis was understandably placed on the offender’s now demonstrated ability to be pro social, which is amply supported by the evidence and which I accept to be the case.

  2. In respect of the parity issue a point of distinction to the co offenders was made by virtue of his better record than the co-offenders, not being subject to conditional liberty as one of them had been and his now considerable work history as well as the needs of his son. To that I would add the objective difference in the offending of Mr White compared to that of the co offenders as found at [21] - [23] above.

  3. The Crown accepted that the offences are all committed in the one course of conduct so that there will be some degree of concurrency but noting also the need for some accumulation. It is plain that there is some additional degree of criminality involved with the two detain charges on top of the break and enter charge and further with the two detain charges impacting on two different victims.

  4. The Crown submitted that there can be no scope for a community based order as any term would exceed three years.

Totality

  1. The principles of totality were reviewed in the case of Hall v The Queen [2021] NSWCCA 220 by Hulme J. Hulme J referred to R v Holder [1983] 3 NSWLR 245 which makes it plan that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

  1.    Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another:

"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."

  1. The three offences being considered all emerged from the one course of conduct, or as put in Cahyadi “are of a single episode of criminality with common factors”. The sentence will be an aggregate sentence and will reflect significant concurrency.

Parity

  1. The facts of this case are that five men carried out the offence. The offender is the 4th to be sentenced with the alleged fifth offender awaiting trial next month.

  2. Exhibit A contains the reasons on sentence for the offenders Byrne, Donohue and Kennedy.

  3. The offender has provided a helpful table (though the calculated starting points were a little out in the case of Kennedy) which serves as a convenient starting point for considering these other cases. The starting point of course is that they all committed the same offence. That said based on the facts before the court for the present offender his role was objectively a lesser role than the others and in particular it is not said that he used a machete. The difference in the conduct of Mr White in contrast with that of the other offenders, as identified above when assessing objective seriousness is a significant factual difference between the cases of the various offenders, with the result, all other things being equal, that he would justifiably receive a lesser sentence. That is the first distinction that can be made between the cases, one that is heightened given that in the case of Donohue it could be affirmatively said that Mr Donohue used the cable ties to tie up one of the victims. It is further heightened by the sentencing of all three co offenders proceeding on the basis of all five offenders entering the club at the same time; on Mr White’s facts that is not the case.

  4. It assists to set out the sentences and circumstances of the co offenders.

  5. Mark Kennedy was aged 21 at the time of the offending. He was sentenced by Judge Ellis on 21 September 2020. At that time he was also sentenced in respect of 7 other counts on the indictment as well as 4 matters dealt with by way of the section 166 certificate procedure. In addition to the matters presently being considered there was an armed robbery of a newsagency, a conspiracy to rob, a drug supply offence, three firearms offences, a threat to a witness, and a proceeds of crime matter. The summary offences included using a firearm and possessing heroin. The aggregate term imposed was 12 years with a non-parole period of seven years.

  6. The indicative sentences in respect of the matters the court is now considering were arrived at after a discount of 10% and were 5 years for the aggravated break and and steal with an indicative non-parole period of three and in respect of the section 86 matters 4 ½ years and 4 years. The starting points before the discount of those sentences were just under 5 ½ years, 5 years, and about 4 years 5 months respectively.

  7. For the other armed robbery there was an indicative sentence of 3 years 9 months, for a firearm offence 2 years and 3 months, for conspiracy to rob 3 years, for the supply 2 years and 3 months, for each of the acquire stolen firearms 2 years and 3 months, for threatening a witness or potential witness 2 years and 3 months and 9 months for the proceeds of crime.

  8. The offending of Mr Kennedy occurred in the period commencing April 2017 and ending in about October 2019.

  9. His Honour has plainly allowed for a significant degree of concurrency, including in respect of the offences now being considered.

  10. The subjective case of Mr Kennedy was primarily his youth, being 21 at the time of the first of the offences. Despite that Mr Kennedy gained no benefit from his criminal history which was described as serious. Mr Kennedy, an indigenous man, did not have a case to support a “Bugmy” case. Mr Kennedy had a history of drug use, in particular ice. Special circumstances were found as it was his first time in adult custody and due to his needs for rehabilitation and a concern of institutionalisation.

  11. The sentence of Frederick Byrne followed a verdict in a judge alone trial before Judge Baly SC, so no discount was available. He was sentenced by way of indicative sentences of 6 years (with an indicative non-parole period of 3 years 7 months) for the aggravated break and enter and 5 years 3 months and 5 years for the detain matters. The aggregate sentence imposed was 7 years with a non-parole period of four years. Again and understandably so there has been a significant degree of concurrency in the imposition of the aggregate sentence.

  12. Mr Byrne was 33 at the time of the sentence and had a lengthy criminal history. He had breached by the offending a previous parole period and so was returned to custody to complete the earlier sentence. He denied committing the offences including to the author of the reports relied upon at sentence. His history on supervision was unsatisfactory. He was a high risk of reoffending.

  13. He had a chaotic childhood and experienced neglect and violence and was sleeping rough when aged six or seven. He had no employment history. He had a substance use disorder. Full weight was given to the Bugmy principles reducing his moral culpability and thus a reduction in the length of the sentences. However Judge Baly SC went on to say that other sentencing factors need to be taken into account and despite the subjective matters just referred to, general deterrence remained relevant though less weight than usual. Her honour noted the offender must be punished for the very serious offences and that the harm done to the victims needed to be recognised, resulting in the need for the sentences to be stern.

  14. Mr Donohue received an aggregate sentence of 4 years and 2 months with a non-parole period of 2 years and 1 month though that is because he received a total of a 50% reduction. The indicative starting points were 6 years and 8 months, (indicative non parole period for s112 offence of 3 years and 4 months), 5 ½ years and 5 years. Mr Donohue had a criminal record which included serious and similar offending in 2017 for which he received a six year sentence. There was a Bugmy finding in his favour. It was accepted that he had suffered sexual abuse on at least three occasions whilst in detention. He was also grieving for the death of his son which in turn led to alcohol abuse. He was a man with a general sense of hopelessness about his future and well-being.

  15. He was 27 at the time of the offending

  16. On the facts he actually tied one of the men with the cable ties. As noted at page 7 of Judge Culver’s reasons noting a remark of Judge Baly SC in her reasons the court must consider the role of the offender. This as already noted is of some significance in this case.

  17. In addition to the objective differences in the case of Mr White compared to the co offenders, their subjective cases are markedly different. This is because Mr White alone of the offenders is the one who is not at the time of the offending, or of sentencing, enmeshed with an anti social lifestyle marked by drugs or recent offending, or with a significant risk of re offending.

Delay

  1. In R v Todd [1982] 2 NSWLR 517 at 519, it was said:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

  1. That statement by Street CJ has significant application in this case. The delay is a further point of difference between the case of Mr White and the co offenders. Mr White is being sentenced more than 6 years after the offence and some 3 ½ years after Mr Kennedy, more than 4 ½ years after Mr Byrnes, and nearly 3 ½ years after Mr Donohue. There is in this case a need for flexibility to ensure fairness to Mr White. It requires a sentence that but for the delay might be considered, but is not, unduly lenient.

Determination

  1. Mr White, together with four other men, committed three very serious offences. Two victims were impacted and one clearly, Mr Gardner, significantly. Those impacts are taken into consideration.

  2. At the heart of this offending is the verbal threats to kill, the striking with a machete which Judge Baly SC notes caused a welt, and the stomping of Mr Gardner. That plainly was conduct of the offenders who entered into the clubhouse save that it was not Mr White who used a machete.

  3. The purpose of the parity principle is to avoid unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise. In the present case Mr White is being sentenced for the same common criminal enterprise as the other three offenders who have been sentenced. It is important that as the principle requires that like cases are treated alike and different cases differently.

  4. In my view the result in this case will be one of a disparity between the sentence imposed on Mr White in comparison to that imposed on the other offenders and it is a justifiable disparity. This is because both objectively and subjectively the cases for those other offenders and Mr White can be distinguished. Certainly they are being sentenced for the same criminal activity, the same common criminal enterprise. Yet objectively the role of Mr White in contrast to the other offenders was different as found above at [21] - [23].

  5. As already noted, subjectively also there are significant differences. This includes that both Mr Byrnes and Mr Donohue could call in aid Bugmy principles as does Mr White but Mr Kennedy could not. All three of Kennedy Byrnes and Donohue had extensive criminal records including in the cases of Byrnes and Donohue similar offending with the former previously being sentenced to a five year term with a non-parole period of three years and the latter to a sentence of six years. In contrast there had been no offending by Mr White prior to this offence for the previous six years (save for an occasion of offensive behaviour for which he was fined), nor with one minor exception, in the following 6 years. Further neither Mr Kennedy nor Mr Byrnes received a 25% discount with the former receiving only 10% and the latter nil.

  6. But the most significant reason why the case of Mr White is different to the cases of Messrs Kennedy Byrnes and Donohue is because Mr White has a very low likelihood of reoffending and a very high prospect of rehabilitation to the point that it can be said that he has gone a long way towards achieving it.

  7. The psychological report of Dr Dornan touches on issues such as the stolen generation, and intergenerational trauma. This court sees, certainly in Lismore, on a weekly if not more frequent basis young indigenous men appearing for sentence with a background of social dysfunction and disadvantage and the absence of a meaningful male role model in their formative years, commonly due to the fact that their father is either incarcerated or has long abandoned his responsibilities for a range of reasons, often associated with drugs and alcohol. The situation the Court is presently dealing with is one where the offender is providing to his children the very type of role model that he did not have himself; the case is a heartening example of where the cycle of abuse, neglect, crime, drugs and alcohol is being broken. It is valid, if not essential, that the Court take into account the benefit to the community of, within the bounds of sentencing principle, Mr White remaining in it, and take that into account when determining the length of the sentence.

  8. Section 3A of the Crime (Sentencing Procedure) Act sets out the purposes of sentencing. Prime amongst them is the protection of the community. It is of course also necessary to punish the offender as noted by Judge Baly SC and for conduct such as this to be deterred and also particularly in this case to recognise the harm done to the victims.

  9. In this case the sentence needs to acknowledge the need for general deterrence. There is very little need for any specific deterrence; it is quite obvious that Mr White has become a prosocial contributing member of the community. That does not mean that there is no role for promoting rehabilitation. In this case what that means is having reached the point of rehabilitation that he has, the court should take steps that ensures that that state of rehabilitation is maintained and enhanced.

  10. Mr White is a man who has had a disadvantaged upbringing and was raised in an environment where the likelihood of offending was greater than somebody who had a more fortunate upbringing, to poorly paraphrase Justice Simpson from Millwood [2012] NSWCCA 2. That upbringing based on the evidence in this case was plainly integral in his regular antisocial behaviour until the age of 20. Cases such as Bugmy and Fernando recognise that the impacts on a person of a disadvantaged upbringing do not diminish over time. It therefore shows Mr White in an even better light that he has been able to become prosocial despite that disadvantage. My view is that not only is the basis for leniency based on Bugmy still applicable but the court should also recognise the character of the man who has so successfully turned his life around as the evidence shows in this case.

  11. Put another way, and again as is considered to be the case by Dr Dornan at paragraph 72, it is in the community where Mr White’s treatment needs will be best and most consistently addressed. In that paragraph it is noted that it is important for the rehabilitation of Mr White which I take to mean the addressing of his history of depression and trauma, that he be engaged productively in the community and that he has responsibilities and is contributing to his family. What makes the case of Mr White exceptional is that, but for this offending now being considered, which occurred over 6 years ago, is that he has been doing this for more than 12 years.

  12. The sentence will be an aggregate sentence. In determining the length of the sentence for Mr White there will need to be indicative sentences in respect of the three charges. In determining what the appropriate indicative sentence for each offence should be, the range of matters canvassed above need to be taken into account. This includes that objectively whilst the matter is into the mid range of seriousness it is a less serious assessment than for the other offenders; it also needs to take account of the decreased moral culpability due to the application of Bugmy principles and somewhat unusually in a case where that applies also take into account the fact that Mr White’s likelihood of reoffending and the prospects of rehabilitation are so exceptionally good and should be taken into account in accordance with section 21A. Additionally I find, given the total acceptance of responsibility and the plea of guilty that the offender is truly remorseful for his conduct; his statements to both a sentencing assessment report writer and Dr Dornan make this plain. The indicative sentences arrived at also take into consideration the parity principle, and as noted there are significant differences both objectively and subjectively between the case of Mr White and the other offenders.

  13. The result that I come to is that prior to the discount there should be a sentence of 3 ½ years for the section 112 offence so that after the application of the 25% discount and rounding it down to the nearest month the indicative term is 31 months. The indicative non-parole period for that offence is 20 months.

  14. In respect of the two section 86 matters, Mr White was more involved in detaining Mr Lavelle. The indicative term for that offence before the application of the discount is three years so 27 months after the discount. In respect of the offence involving Mr Gardner, the assault upon him is a significant matter, however because it can be positively said Mr White did not use the machete, and because he did force Mr Lavelle to return, the sentence in respect of the offence concerning Mr Gardner, in contrast to the co offenders’ sentences, will be less, and shall be 2 ½ years before th discount, so 22 months after the discount.

  15. There will be an aggregate term of imprisonment of three years. This degree of concurrency is in line with the sentences of the co offenders. The principle of proportionality is recognised. The sentence arrived at is within the range of sentence called for given the objective seriousness of the offending, but given the exceptional subjective case of Mr White, the sentence is towards to bottom of the available range to accord with that principle. The disparity to the sentences of the co offenders is also acknowledged, and the significant differences in the case of Mr White in contrast to the co offenders has been identified above. The need for individualised justice should also be recognised.

Intensive Correction Order?

  1. On this point the parties were brief in their submissions; for the Crown it was said it would be prohibited by section 68; for the accused it was said in effect that should an ICO not be prohibited by s68, then on the subjective features of Mr White, the imposition of an ICO was appropriate.

  2. The result of the sentence arrived at is that the imposition of an intensive correction order is not prohibited by section 68. In line with Stanley v DPP [2023] HCA 3 it is therefore necessary to consider whether there should be imposed an intensive correction order or an order that sees full-time custody which in turn requires consideration of section 66.

  3. By section 66(1) community safety must be the paramount consideration when the court is deciding whether to make an ICO. As stated at [74] of Stanley for the purpose of addressing community safety section 66(2) requires an assessment of the possible impacts of an ICO or full time detention on the offender’s risk of re offending. This assessment is not determinative, given the provisions of s66(3); Stanley at [75].

  4. Based on the sentencing assessment report, the report of Dr Dornan, and my favourable findings as to the offender’s subjective case, it is clear that the likelihood of reoffending will be less if Mr White remains in the community. The likelihood of a relapse into antisocial thinking, attitudes and behaviour is far greater in my view should he return to the custodial environment as opposed to remaining amongst a pro social environment of his home and workplace where he plainly has the support of a range of people as demonstrated by the evidence in his case. Furthermore such rehabilitation that he does continue to need to address his depression and early life trauma is more readily accessible in the community.

  1. By section 66(3) the court is required to again at this stage of the process consider the other purposes of sentencing set out in section 3A. A reconsideration of those purposes is both favourable and unfavourable to the imposition of an ICO. It is favourable as it plainly promotes rehabilitation; it is unfavourable when purposes such as deterrence, and recognising the harm to the victims, denunciation and punishment are considered. Those purposes have been taken into account. The overall purpose that is enhanced by the imposition of an ICO is community safety; it will make it less likely that this offender offends again. At the same time the other purposes of sentencing are met. It is not as if Mr White is not being punished, nor his conduct, denounced, nor is the impact on the victims not recognised. Mr White was arrested on 7 December 2022 and has been pondering his fate since that time and doubtless had cause for concern in the five years preceding that as well. He has now been in custody for all but four months. Whilst that is a short period of time on one view it needs to be borne in mind that has seen him uprooted from his pro social life that he had been leading for a period of some 12 years. This offending can be seen as an aberration. Furthermore his punishment does not end with this sentence being announced; it will continue for 2 years and 8 months by way of a term of imprisonment served in the community. He is at risk should he commit any kind of offence of spending the balance of that time in custody. Whilst that may be considered a lenient result in all the circumstances it is by no means a result free of restriction on his liberty nor free of punishment.

  2. Accordingly, an ICO will be imposed.

Orders

  1. Of the offence under section 112 of the Crimes Act and the two offences under section 86 of the Crimes Act the offender is convicted.

  2. The indicative sentences including the indicative non-parole period to the section 112 matter are set out above. The offender is sentenced to a term of imprisonment of three years, though as he has been in custody since 26 October 2023, and the sentence is to be served by way of the imposition of an ICO which has effect only from the date of the order, the term will be 3 years less the time in custody which will be rounded up to 4 months. The term of the sentence is therefore 2 years and 8 months to date from today, 23 February 2024, and expiring on 22 October 2026.

  3. It is further ordered that sentence be served by way of a intensive correction order which as it must date from today will be for the period commencing 22 February 2024 and expiring on 25 October 2026 and will be on the following conditions:

  1. That the offender commit no further offence.

  2. That the offender submit to the supervision of the community corrections office and for that purpose attend at their Gunnedah office by no later than 1 March 2024.

  3. That the offender by 1 March 2024 attend on his GP for the purpose of a referral to alcohol and other drug counselling and trauma counselling and within seven days of seeing that GP contact that referral for the purposes of treatment.

  4. The offender must not contact, communicate or associate with the co offenders Frederick Byrne, Christopher Donohue, Mark Kennedy nor the alleged co offender Elwyn Roberts.

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Decision last updated: 26 February 2024

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Du Randt v R [2008] NSWCCA 121
Muldrock v The Queen [2011] HCA 39
R v King [2003] NSWCCA 352