R v Wood

[2024] NSWDC 529

District Court

New South Wales

Medium Neutral Citation:	R v Wood [2024] NSWDC 529
Hearing dates:	6 September 2024
Decision date:	08 November 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 6 years 6 months with a non parole period of 3 years 6 months - disqualification from driving for 2 years
Catchwords:	CRIME -SENTENCE - firing a firearm at a dwelling house with disregard for safety; police pursuit – not stop – drive dangerously – second plus offence; Aggravated assault w/i to take/drive m/v-armed with weapon; Drive m/v during disqualification period – 2nd offence
Legislation Cited:	Crimes Act 1900 (NSW), ss93GA(1); 51B(1); 154C(2); Road Transport Act 2013 (NSW), s54(1)(a)
Cases Cited:	Bugmy v R [2013] 249 CLR 571; DPP (C’th) v De La Rosa (2010) 79 NSWLR 1; R v Phillips [2024] NSWDC 293
Category:	Sentence
Parties:	Rex (Crown) Paul Wood (Offender)
Representation:	Ms Olender (ODPP Wollongong) Mr C. Prince (Public Defender for offender)
File Number(s):	2022/385450

judgment

1. Paul Wood, you appear for sentence today in relation to four offences.

2. The first of those offences is an offence of firing a firearm at a dwelling house with disregard for safety (H622924191/4 – “sequence 4”).

3. Sequence 4 involves a contravention of s93GA(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 5 years imprisonment.

4. The second of those offences is an offence of police pursuit – not stop – drive dangerously – second plus offence (…191/5 – “sequence 5”).

5. Sequence 5 involves a contravention of s51B(1) of the Crimes Act. The maximum penalty for that offence is 5 years imprisonment. There is no standard non-parole period. There is also an automatic licence disqualification of 5 years; and a minimum disqualification of 2 years.

6. The third of those offences is an offence of aggravated assault with intent to take or drive a motor vehicle – the circumstance of aggravation being armed with a weapon (…191/9 – “sequence 9”).

7. Sequence 9 involves a contravention of s154C(2) of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 5 years imprisonment.

8. In relation to sequence 9, you have asked me to take into account one matter on a Form 1, which I have certified; and that is a matter of driving a conveyance without the consent of the owner (…191/7 – “sequence 7”).

9.  The fourth of those offences is an offence of driving a motor vehicle during a period of disqualification, second plus offence (…191/6 – “sequence 6”).

10. Sequence 6 involves a contravention of s54(1)(a) of the Road Transport Act 2013 (NSW). The maximum penalty for that offence is 12 months imprisonment. There is also an automatic licence disqualification of 12 months; and a minimum disqualification of 6 months.

11. Ordinarily, sequence 6 would have been dealt with in the Local Court, but you have consented to this Court dealing with that offence in these proceedings.

12. The facts surrounding the four offences and the matter on the Form 1 are contained in a Statement of Agreed Facts. Recast by me as to style, but not substance, they can be stated as follows.

13. The four offences were committed in late October 2022.

14. As at the date of the offences, you were: (a) 30 years old; (b) on parole; and (c) disqualified from driving until 19 December 2025.

15. And you knew Caleb Phillips and three other men referred to in the Statement of Agreed Facts as Witness A, Eazer and Dylan.

16. At sometime, about 22 October 2022, you were with Mr Phillips and Witness A. There was discussion about two operations – one of which was to be “bigger” than the other.

17. In this discussion, Mr Phillips produced (and waved around) a .375 magnum revolver.

18. And in this discussion, and in these circumstances, you made the statement: “I want to be the driver for the shooting. I’m the best person to do it.”

19. How you obtained a motor vehicle which was ultimately made available by you and used in that shooting is sequence 9, the facts for which I shall now briefly set out.

20. As at 24 October 2022, Mr Shah owned a Mazda motor vehicle. Late on 24 October 2022, Mr Shah drove his motor vehicle from Pitt Street in Sydney CBD to the Sydney suburb of Toongabbie. For some unidentified reason, he pulled over on Fitzwilliam Street in Toongabbie at about 2:30am on 25 October 2022.

21. As he did, a man, whose identity is unknown to police, approached the driver’s side window of Mr Shah’s motor vehicle and, pretending to be a police officer, demanded that he (Mr Shah) get out of the motor vehicle. You were with the unknown man, standing nearby to Mr Shah’s motor vehicle. Mr Shah did not immediately comply. He requested that identification be produced. Instead of producing identification, the unknown man produced a taser and proceeded to taser Mr Shah between his pectoral muscles.

22. The unknown man again directed Mr Shah to get out of his motor vehicle, and when that did not immediately happen, the unknown man tasered Mr Shah for a second time.

23. The unknown man then forcibly removed Mr Shah from the motor vehicle and got into the driver’s seat; and you got into the rear of the vehicle.

24. Mr Shah was still holding onto the motor vehicle as it was being driven off by the unknown man before he eventually let go of the motor vehicle.

25. You are morally and criminally liable for the aggravated assault on Mr Shah (the circumstance of aggravation being that the unknown man was armed with an offensive weapon), done with the intent of taking the motor vehicle, on the basis of a joint criminal enterprise.

26. As I have said, it is these facts which constitute sequence 9.

27. Sometime soon after the unknown man drove off in Mr Shah’s motor vehicle (with you as a passenger), you had become the driver of that motor vehicle – and, specifically, you were the driver at 2:45am and 10:16am on 25 October 2022; and between midnight and 1:30am on 26 October 2022. In that second period, you drove that motor vehicle from Richmond Road to Quakers Hill, Lane Cove, Strathfield, and then to Merrylands. During this journey, Mr Phillips was a passenger in the motor vehicle. The purpose of that journey is not disclosed in the Statement of Agreed Facts. 

28. It is these facts which constitute part of sequence 7.

29. However, at the conclusion of that journey, the shooting, which is sequence 4, and which was the subject of the discussions between you, Mr Phillips and Witness A four days before, took place in the circumstances I shall now describe.

30. As at October 2022, Mr Vesikula lived in residential premises on Bristol Street, Merrylands.

31. In the early hours of 26 October 2022, Mr Vesikula was awake and in the bathroom of his home. His daughter-in-law and her baby (who had been born only four days beforehand) were sleeping in the loungeroom of those premises.

32. At sometime between 1:30am and 1:40am, two shots were fired in the direction of those premises from a motor vehicle which sped off immediately thereafter. That motor vehicle was the one which you had stolen from Mr Shah on 25 October 2022; and it was you who drove that motor vehicle to and from the shooting. But you were not the person who fired the relevant firearm. The shot was fired from the front passenger window of the motor vehicle. Mr Phillips was a passenger. I pause to observe that, in the Statement of Agreed Facts in these proceedings, it is agreed between you and the Crown that Mr Phillips was “the shooter”. However, and importantly for the purposes of parity to which I shall return, it was not agreed in Mr Phillips’s sentencing proceedings that he was the shooter.

33. Immediately after the shooting, Mr Vesikula called 000 and the police were swiftly involved. Later police forensic investigations revealed that, of the two shots fired, one had sent a projectile through a front window of the house into the loungeroom wall (that is, the room in which the young mother and her baby were sleeping), which projectile then became embedded in the wall of the kitchen which was directly behind the loungeroom.

34. It is these facts which constitute sequence 4. You, again, are both criminally and morally liable for that offence on the basis of a joint criminal enterprise.

35. Why Mr Vesikula was targeted in this way (if, in fact, he were the intended target); who “masterminded” the “operation” – clearly (to me) it was not you or Mr Phillips; and why you (and, for that matter, Mr Phillips) were “recruited” to participate in the “operation” is not revealed in any of the material before me. But I have not speculated about any of those matters adversely to your interests (or, for that matter, those of Mr Phillips). (For completeness, I have noted that, on 21 October 2022, at least Mr Phillips conducted a reconnoitre of Bristol Street; but you were not part of that activity.)

36. After you sped away from the scene of the shooting, and after the police had been called, the motor vehicle which you were driving was sighted by police at about 1:51am on the Great Western Highway at Wentworthville. A police pursuit then followed until the motor vehicle was abandoned by you and Mr Phillips in Hartog Street, Willmot.

37. The circumstances of the police pursuit are set out in some detail in [20] to [29] in the Statement of Agreed Facts. Suffice to say, the manner in which you drove that motor vehicle during that pursuit was highly dangerous to other members of the public.

38. It is these facts which constitute the remaining part of sequence 7 as well as sequences 5 and 6.

39. You were, ultimately, arrested in relation to all of these offences on 21 December 2022 and refused bail. You have been held in custody continuously since that time to date. But that period of custody has not been entirely referrable to these current matters. During that time, you have served two periods of imprisonment: one of 18 months starting 21 December 2022 with a non-parole period of 9 months (referable to H75802213); and another of 2 years starting 21 September 2023 with a non-parole period of 12 months (referrable to H77622555). It might be noted that the parole that you were on at the time of the offences for which you are to be sentenced today (referrable to H81223348) was not revoked following your arrest on 21 December 2022 because it expired on 19 December 2022.

40. It is necessary for the Court to make a finding of the objective seriousness of each of the four offences for offences of their kind. In my opinion, each of those offences is a mid-range offence.

41. All four offences are additionally aggravated by the fact that you were on parole at the time of the offences.

42. Sequence 9 is further additionally aggravated by the actual use of violence.

43. Insofar as sequence 7 is concerned (the matter on the Form 1), it will result in a very slight increase in the sentence for sequence 9.

44. You did not give sworn evidence in the sentence proceedings. Rather, your subjective circumstances were placed before the Court through a number of documents, particularly: the expert report of Dr Brann, psychiatrist, dated 1 June 2022; and the two neuropsychological reports by Dr McSwiggan dated 22 April 2024 and 21 August 2024. I note that the very comprehensive report of Dr Brann (which extends to 43 pages) was not prepared for the purpose of these sentence proceedings but, rather, was a medico-legal report prepared for civil proceedings which you have brought against the State of New South Wales for damages for sexual abuse you sustained whilst in custody at Reiby Juvenile Justice Centre and Cobham Juvenile Justice Centre.

45. As might be expected from a report with that purpose, Dr Brann’s report goes into a level of detail not immediately required for the purposes of this sentencing exercise. However, I have particularly noted the following.

46. Your parents were indigenous Australians.

47. You were the third of four children born to your parents. Sadly, the last of those children died as an infant as a result of cot death.

48. Your father died when you were only 3 or 4 years old. Your mother was left to raise you and your two older siblings on her own in the Mount Druitt area.

49. Although you felt loved by your mother, she had her issues with illegal drugs.

50. As a baby, you (and your brother) were sexually abused by one of your uncles; and you were subject to physical (non-sexual) abuse by a person referred to in Dr Brann’s report as “Pop”.

51. At about age 7, you were diagnosed with ADHD.

52. By 9 years of age, you were “roaming the streets with [your] cousins.”

53. You encountered the criminal justice system at a very young age – you were 13 years old when you first were sent to a Juvenile Justice Centre.

54. You were incarcerated in such centres on a number of occasions and, whilst at them, you were sexually abused by officers whose job it was to protect you.

55. You started abusing alcohol and cannabis when you were 13 years old. You started using ice when you were 15 and heroin when you were 23. The abuse of alcohol and illicit drugs was a direct result of your sexual abuse whilst in Juvenile Justice Centres.

56. You were first incarcerated as an adult at 18 years of age, and you have spent some part (at least) of every year since in custody. The longest time you have not been in adult gaol was one period of 4 to 5 months in the community.

57. When you were first incarcerated as an adult, you tried to hang yourself.

58. You have had no meaningful education – in part because of a learning disorder and a mild intellectual disability which has resulted in you being on the Disability Support Pension.

59. You have had no meaningful employment in the community.

60. At the time of Dr Brann’s report, you were in a committed relationship with Jacinta with whom you have had three children. Your family with Jacinta was a blended one, as she had a daughter from a previous relationship and whom you have helped Jacinta to raise in your family.

61. Ultimately, Dr Brann arrived at the following “formulation”:

“268    [You were] born to Indigenous parents and was the third of four full biological siblings. Aspects of [your] life over which [you] had no control and which clearly left [you] at risk with a prejudicial background and multiple factors leading to a severe vulnerability to developing significant psychological problems, were [your] intellectual disability, [your] early childhood attention/hyperactivity symptoms, the death of [your] father, mother’s history of substance abuse and incarceration, and multiple changes of living circumstances.

269    By [your] own self-report [you were] roaming the streets with cousins by age nine, there were obvious repeated struggles with [your] learning at school and with [your] behavioural problems, and despite the diagnosis of the Attention-Deficit/Hyperactivity Disorder, treatment was not adhered to and[your] life continued on a very at risk and rollercoaster trajectory, with [you] repeating grades in primary school, and being illiterate when [you] left, and already being involved in criminal behaviours and substance abuse at an early age.

270    By the time [you were] sent to Juvenile Justice Centres, [you were] very much at risk and [your] continued substance abuse and criminal behaviours became a repeating pattern from an early age, with little if any influence of mature adult supervision. In this context, the sexual abuse in particular had a devasting impact on [you], who because of [your] vulnerabilities and no ongoing supports, [were] really reliant on the minimal intervention of a few counselling sessions in [your] mid-teens and antidepressant medication by age nineteen or twenty to assist [you] with some of the symptoms that presumably were entrenched by then.

271   With a combination of the symptoms and behaviours of the pre-existing issues, [you] had no personal resources or capacities to understand what was happening to [you], much less to problem solve and work out solutions, and so [your] trajectory continued with repeated substance use, minimal response to programs offered, repeated offending, repeated incarceration, unstable relationships and a life characterised by being part of a subculture of drug use and crime.

272    Despite being involved whilst incarcerated with education about the risks and consequences of substance use and crime, [your] trajectory remained unaltered and [your] expressed wishes to change have not been sustained by evidence of change in [your] behaviour.

273    So already at age twenty-nine, [you have] very limited capacity for change, serious and complex psychiatric disorders and no supports that are likely to assist [you] in making changes once released into the community.” 

62. Dr McSwiggan’s two reports were specifically prepared for these sentence proceedings.

63. In her first (and primary) report, Dr McSwiggan generally recorded a history and diagnoses consistent with those taken and made by Dr Brann. The following further information has been particularly noted by me.

64. You are now 31 years old.

65. Whilst on remand (and unlike your time in the community), you have been working – assembling furniture.

66. Your partner (Jacinta) and your wider family remain supportive.

67. Over the 7 months preceding Dr McSwiggan’s interview with you on 8 April 2024, you were on the buprenorphine injection program, which has been extremely helpful in dealing with your opioid drug issues.

68. Dr McSwiggan made a diagnosis of borderline intellectual functioning which was above a mild intellectual disability but below that of low average.

69. Dr McSwiggan also made diagnoses of severe substance use disorder, chronic PTSD, and major depressive disorder. She noted, however, that you did not present with current symptoms consistent with experiencing a major mental illness.

70. Dr McSwiggan noted that your “…unremitting substance use, on a background of low intellect, has presented the greatest barrier to [your] maturation.”

71. Dr McSwiggan noted that you had some, but limited, insight into your offending; and that you, therefore, made limited expressions of remorse. However, she attributed this to your intellect level rather than any deliberate attempt by you to minimise your offending.

72. And finally (for my purposes today), Dr McSwiggan noted that, the longer that you could be in the community, “…the greater the likelihood of reinforcement of those prosocial choices [you] will need to make early on during [your] parole / release.”

73. Clearly, your background and current psychological condition give rise to both Bugmy and De La Rosa considerations – thereby reducing, to an extent, the full application of the principle of general deterrence.

74. However, specific deterrence and the need to protect the community are considerations which are fully engaged.

75. Encouraging your rehabilitation is also an important sentencing consideration. I regard those prospects, on balance, as being guarded. But they would be enhanced by a longer period on parole.

76. Another important sentencing consideration in relation to sequence 4 is parity – something I have earlier referred to. In this context, I sentenced Mr Phillips for his role in that offence (for him, sequence 4) (and 10 others) on 22 July 2024 (see R v Phillips [2024] NSWDC 293). I sentenced him to an aggregate sentence for those 11 offences. The indicative sentence for (his) sequence 4, except for a discount of 25 per cent for Mr Phillips’s early plea, was imprisonment for 7 years; after the discount, the indicative sentence for that offence was imprisonment for 5 years 3 months.

77. As I indicated during your sentence hearing on 6 September 2024, I am of the opinion that you should effectively receive the same sentence for that offence as Mr Phillips.

78. As with Mr Phillips, I intend imposing an aggregate sentence on you for the four offences for which you appear for sentence today.

63. It is necessary for me to state that four indicative sentences underpinning that ultimate aggregate sentence.

64. You entered early pleas of guilty in relation to all four offences and there will be a discount of 25 per cent applied to each of the indicative sentences.

65. In relation to sequence 4, the indicative sentence (after the discount of 25 per cent) is imprisonment for 5 years 3 months, and the indicative non-parole period is 2 years 10 months.

66. In relation to sequence 5, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 2 years 6 months; after the discount, the indicative sentence is imprisonment for 1 year 10 months.

67. In relation to sequence 9 (and taking into account the matter on the Form 1), except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years; after the discount, the indicative sentence is imprisonment for 3 years, and the indicative non-parole period is 2 years 3 months.

68. In relation to sequence 6, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 6 months; after the discount, the indicative sentence is imprisonment for 4 months.

69. In the result, for the four offences to which I have earlier referred, and taking into account totality, you are sentenced to an aggregate term of imprisonment of 6 years 6 months.

70. As a deliberate act of leniency, the start date of that sentence will be the date of your arrest, 21 December 2022.

71. I make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. I do so because your prospects of rehabilitation would be enhanced by a longer period on parole; and because your psychological conditions make imprisonment more onerous for you than for others.

72. I, therefore, fix a non-parole period of 3 years 6 months to date from 21 December 2022 and which will expire on 20 June 2026.

73. I fix a balance of 3 years to date from 21 June 2026 and which will expire on 20 June 2029.

74. You are disqualified from driving insofar as sequences 5 and 6 are concerned for a period of 2 years to date from the date you are admitted to parole or, if not so admitted, from the date of your release from custody.

75. I order that the report of Dr Brann dated 1 June 2022, and the two reports of Dr McSwiggan dated 22 April and 21 August 2024 go with the warrant.

Decision last updated: 08 November 2024