R v Windley

[2023] NSWDC 662

District Court

New South Wales

Medium Neutral Citation:

R v Windley [2023] NSWDC 662

Hearing dates:

14 December 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment of 3 years 2 months with a non-parole period of 1 year 11 months

Catchwords:

CRIME — Violent offences — Robbery — Circumstances of aggravation — Inflict actual bodily harm

SENTENCING — Aggravating factors — Record of previous convictions — Vulnerable victim

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Acquired brain injury — Trauma in childhood

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bradley v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep)

Moodie v R [2020] NSWCCA 160

Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Marinos [2003] NSWCCA 136

Sevastopoulosv R [2011] NSWCCA 201

Thach v R [2018] NSWCCA 252

Category:

Sentence

Parties:

Shane John Windley (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
M Kwan solicitor for Legal Aid (NSW) (for the offender)
J Azad solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/80750

JUDGMENT – ex tempore revised

Introduction

1. Shane Windley, now aged 47, appears for sentence today charged with a particularly serious offence; Aggravated robbery and inflicting actual bodily harm. That offence, charged pursuant to s 91(5)(1) Crimes Act 1900 (NSW), carries a maximum penalty of 20 years imprisonment.

2. Windley pleaded guilty in the Magistrate’s Court. He admitted his guilt and expressed regret on arrest. He reinforced those sentiments after he was shown the CCTV of the robbery which was played in Court today: Exhibit B. In evidence today he apologised to the victim of his crime and promised that he would, on release, engage in programs, preferably residential programs, find a home and take up a job and NDIS support so that an offence like this would never occur again.

3. He said he would not have done it if he has not been using drugs. But he and everyone in the community should understand that drug use, even a severe addiction, can never excuse a crime, particularly a crime like this. The fact of his addiction, its consequences, how it came about, what is to be done about it, may however, be taken into account as a factor relevant to the sentencing. It allows me to understand what he did, why he did it, and what plans can be made for the future. It helps explain what was an was impulsive offence.

4. It is to that offence that I now turn as every sentencing exercise has to be based upon a proper and proportionate response to the crime and its seriousness.

Agreed facts

5. On 9 March 2023, the victim of this matter, then aged 76, was at a Woolworths Supermarket in southern Wollongong. She had completed her shopping and was pushing her trolley towards her car. The offender ran up from behind and grabbed her handbag which was the front of her trolley. She had her hand on the bag. As he grabbed it, she tried to keep hold of it. This offender, who was larger, younger and stronger, was able to pull the bag out of her hands. Both fell to the ground, but the victim fell, much harder than he did. As Windley ran away with the bag he saw her phone on the ground. He picked it up and fled.

6. Witnesses immediately went to the victim’s aid. Triple 0 were called. The victim was taken to Wollongong Hospital. She was admitted that day and discharged the following day. She sustained cuts to her eyebrow, bruises, cuts to her hands, swelling, and pain over her shoulder, forehead, hands, and bleeding on the face, hands and shoulder. She required sutures for head lacerations and her fingers and hand. Photographs taken at the hospital are before me.

7. The mobile phone had an app in it that enabled it to be tracked. Police were able to locate it and the offender the next day. He was arrested. When arrested and asked whose phone it was, he replied, “It’s her phone”. He made full admissions. He told police he used the money taken to purchase an energy drink and “ice”, methylamphetamine. He told police, “I’m pretty disgusted in myself … cause she hit the ground fuckin’ hard”. The items stolen included her wallet and cards, her iPhone, $70 in cash, and other personal belongings.

Objective seriousness

8. There are no prescribed set of descriptors that must accompany any such assessment. The prosecution in this matter submitted it is below the middle of the range. Reference was made in submissions to the Henry guideline to which I will later refer: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

9. I trust that matters critical to my assessment of the seriousness of this matter will be readily apparent from these remarks. The victim was vulnerable, given her age and size and the fact that she was totally unaware of what was about to happen. The offence was spontaneous and impulsive. There is no evidence of any planning. Relative to many such robberies a limited amount of property was taken. But I don’t underestimate the impact of losing a wallet, and more particularly all the cards in it, which need to be cancelled and replaced. While there was no intention to inflict actual bodily harm, the nature of the robbery and the nature of the fall, the age and size of the victim, meant that injuries were inflicted upon her, to which I will soon refer.

10. Such crimes are not just crimes against property of a person, they are crimes against people. Where a citizen, going about their ordinary business is robbed and injured, it can have a terrible impact on them. Where such crimes occur near places we all have to use, such as supermarkets and their car parks, it can have other serious consequences. People, particularly older people, lose confidence. They feel that their streets are not safe. They feel that they cannot be protected. They learn to fear others and lose trust in others, and where people are fearful, the entire community suffers. As a consequence, we all lose our freedom to go out and participate in community activities. The amount of cash here and personal property taken was small, but it in no way minimises the seriousness of the offence.

11. Where criminals are caught committing such offences the community can lose trust in the courts if judges do not punish such crimes severely. The need for consistency in sentencing and a fear that there was excessive leniency by judges of this Court led the highest court of New South Wales in 1999 in a decision called Henry to publish a guideline judgment designed to assist sentencing judges’ discretion in matters such as this. The Court there spoke of what they call the “ordinary case”, but Henry related to an armed robbery.

12. This was a serious robbery, but no weapon was involved. While not prescriptive, careful attention is required to guideline judgments of the Court of Appeal and they must be taken into account: Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A; Moodie v R [2020] NSWCCA 160.

13. As is obvious from the facts and the injury, this offence, taking into account its objective features, was very serious. The reasons for that conclusion I think are obvious. It would be completely intolerable if people with any drug addiction could be allowed to resort to acts of violence against elderly members of the community, or indeed anyone else, and the courts must make it plain that such conduct will not be tolerated: Henry at [222], citing Bradley v R (Court of Criminal Appeal (NSW), 26 October 1993, unrep); R v Marinos [2003] NSWCCA 136.

Victim impact

14. The victim in provided a Victim Impact Statement. I was asked to, and did, read it to the public and the offender this morning. The statement notes the impact of the injuries upon her both physically and psychologically. She suffered for weeks after the event. She could not drive. Her injuries took a while to heal and caused her considerable inconvenience, which was moderated by assistance from family and friends. She has still not fully regained use of her left hand, especially her middle finger. She has trouble gripping and her hand tends to shake. She becomes anxious if someone walks behind her. She has become very guarded and always looks around when she steps out.

15. The statement attests to the personal harm she suffered as a direct result of the offence. I have no difficulty in accepting what is set out. Her statement serves the very practical purpose of drawing to the offender’s, the Court’s, and the community’s attention to the personal harm that can be caused by such crimes.

Other matters

16. I have referred to the maximum penalty of 20 years. I have referred to the guideline judgement. Careful attention is required to both as sentencing measures. While the guideline focused on objective matters it took into account other relevant factors. One relevant factor is the offender’s criminal record.

17. When Windley was young, he had committed a number of criminal offences including three robbery offences and one matter in the ACT of aid and abet robbery. His criminal history, particularly those matters, is relevant to determining the proper sentence. They disentitle him to leniency often given first offenders.

18. Since 2008 he appeared to have matured. He took advantage of a rehabilitation program. There was effectively a ten year crime-free period where he led a normal life in the community. That period gives me some confidence that with assistance he can, after he has been appropriately punished, resume normal community life: Thach v R [2018] NSWCCA 252; Sevastopoulosv R [2011] NSWCCA 201.

Subjective case

19. Windley gave evidence today. He told me that as soon as he is released, he will attempt to engage in a residential rehabilitation program with organisations such as William Booth. He has a NDIS plan in place. He needs NDIS assistance because of seizures he suffers. He is currently medicated.

20. He gave direct apology to the victim of the crime who was in the Court. He promises to do what he can not to return to court, and he says that he recognises his crime and what he did requires punishment.

21. He has a brother, who is hardworking and industrious and has offered him a job.

22. I have the benefit of a comprehensive psychological report from Dr Klamer. It is not in contest. The report sets out Windley’s family and development history, in particular the death of his mother who was hit and killed by a train when he was six. He was placed in the care of Community Services and then with his grandparents. He had significant difficulties adjusting to his mother’s death and effectively he “went off the rails”. While he describes his grandparents as loving and supportive, given their own grief and problems caring for their grandchildren, they were not able to control him.

23. As a young boy he displayed aggression and violence. From the age of 13 he took up substance abuse to cope with underlying emotional problems. He avoided school, he avoided work, he spent some time at Triple Care Farm, but was removed from that program. As a consequence, he developed no adult-like coping strategies.

24. His background reveals problematic relationships with his family, women, and his resort to peers who, like himself, were regular drug users and criminal offenders. He spent periods in custody for serious offences until he was able, with the help of William Booth, to remain relatively crime and drug free.

25. About four years ago he collapsed and had brain surgery. He has ongoing seizures but is stable if he is compliant with his medication. This is the reason he has a NDIS plan in the community. He tells me in evidence, that he was doing well, but once he was offered and took methylamphetamine things went rapidly downhill. He said, and I accept, that before the offence he had made efforts to reconnect with William Booth, but this offence and this arrest occurred before he had an opportunity to do so.

26. Dr Klamer notes at par [31]:

“Mr Windley is a 47 year old male of Aboriginal heritage, born and raised [locally]. He described experiencing significant trauma during his developmental period ... As a way to cope with his underlying emotional states, [he] commenced excessive alcohol use at the age of 13, progressing to illicit substance use … to support his use, [he] commenced engaging in offending behaviours … [which] continued … unabated until 2012.”

27. She referred to the ten-year period until his relapse and the commission of this offence. She believes Windley requires a treatment plan which involves a comprehensive neuropsychological assessment, psychological treatment, residential rehabilitation, help establishing prosocial peer networks and vocational training. She notes that his placement in custody will, given his background, his brain injury, be more onerous than those who would not have such underlying conditions, and she notes that consideration be given to placing him in a gaol closer to prosocial friends and family to enable those connections to be maintained. A copy of her report will go with to the gaol the warrant.

28. It is clear from the report that the impact of his negative childhood experiences, early drug use and now his brain injury, have all impacted on him. These matters are interrelated. That interrelationship does not need to be parsed or separated out. While nothing excuses what he did, I do not focus at this stage of the sentencing process too narrowly on the offending itself. I note all the material before me indicates that his background has compromised his capacity to mature and learn from experience and the pervasive effects of effectively being homeless and unsupported as a young child has had an impact on him that still continues.

Submissions

29. Mr Kwan, solicitor with Legal Aid, and Ms Azard, solicitor for the Director of Public Prosecutions, provided comprehensive written submissions. They have informed this judgment. In matters of both fact and principle, there is nothing between them. Both accept a custodial sentence of some length needs to be imposed. Both accept the harm that was done to the victim in this matter. Both submit a degree of moderation in the sentence is required for the matters I have outlined because, regardless of the length of any sentence, Windley must be returned to the community. If he is returned better able to cope with his underlying conditions, still maintains prosocial supports, still able to get NDIS support, able to engage in drug rehabilitation, he may remain crime free. And, if he remains crime free everyone will benefit.

30. The material before me, particularly the need for drug rehabilitation and help adjusting to normal community life, provides a basis for a finding of special circumstances. In so finding, I am mindful of the matters I have referred to, including the guideline and the maximum penalty, and the requirement that the minimum period he spends in custody must properly reflect his crime, gravity of that crime, and the purposes of sentencing.

Synthesis

31. Synthesising all those matters, they, as is commonly the case, give rise to complex considerations. Windley has a long criminal history but also a crime free period measured in many years. He then committed a crime against a fellow citizen who was vulnerable and suffered injury. Some matters point to harsher penalties, others to moderation of penalty. The mitigating matters will be given full weight here, but I conclude by noting that judges have an obligation to vindicate the dignity of the victims of violent crime and to express the community’s disapproval of the offending: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58]. Ultimately, my duty is to translate the complexity of the human condition and human behaviour to mathematics of punishment, here expressed in time.

32. I take into account his remorse. I take into account his early acceptance of responsibility. The utilitarian value, practical value, of the plea of guilty requires that the otherwise appropriate sentence be reduced by 25%. That is a statutory provision. Had it not been for the utilitarian value of the plea of guilty a sentence of 4 years and 3 months would have been imposed. I have rounded down to the offender’s advantage, which means the term of the sentence is 3 years and 2 months. I will give effect to my finding of special circumstances to allow him longer than would ordinarily be the case in the community under supervision and monitoring of Community Corrections so that he can, as he promised, engage in a rehabilitation program on release.

Orders

33. The formal orders of the Court are that Windley is convicted. There will be a non-parole period of 1 year and 11 months. It will date from the date he went into custody on 10 March 2023, making him eligible for consideration for release to parole on 9 February 2025. His release to parole will be dependent upon a direction of the State Parole Authority who will not release him to parole unless adequate conditions can be put in place and community safety concerns are considered. The remainder of the sentence of 1 year and 3 months can, subject to Community Corrections, be spent in the community.

34. Total sentence: 3 years, 2 months. Minimum before consideration for parole 1 year, 11 months. Balance of parole to allow for rehabilitation, 1 year and 3 months.

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Decision last updated: 16 January 2025