Ingrey v R

HOEBEN CJ at CL:

On 16 February 2015 his Honour imposed a sentence of 10 years imprisonment to commence 13 December 2016 and expire 12 December 2026 with a 6 year non-parole period to expire 12 December 2022. His Honour found special circumstances to vary the “statutory ratio” of the overall sentence to 60 per cent.

The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him on the following ground:

At about 5:08pm on 7 August 2012 the applicant rode as a pillion passenger on a motor bike driven by an unknown person to the Sir Joseph Banks Hotel at Waratah Street, Botany. A co-offender, Trindall, and the applicant entered the hotel through the open beer garden entrance. The applicant and Trindall called out to the patrons to get down on the ground, “this is a stick up”. Trindall was armed with a sawn off shotgun.

As the applicant and Trindall approached patrons seated at a table, one of the patrons lunged at Trindall who struck him on the head with the shotgun causing a wound which bled. Other patrons came to his assistance and a struggle with Trindall took place. During that struggle the shotgun discharged but no-one was hurt.

The applicant entered the main bar of the hotel and was confronted by a patron who used a bar stool to push the applicant back to the beer garden. Once back in the beer garden, he was chased by other patrons, one of whom had a chair. The applicant left the hotel through the beer garden doors. He was seen to partially lift his mask when leaving. He mounted the motor bike outside the beer garden and was driven away on it. Trindall was detained by patrons.

Police arrived and located a single barrel shotgun.

Pursuant to the issue of a warrant, a listening device recorded conversations between the applicant and another inmate on 18 and 21 May 2013 when the applicant was in custody at Wellington. In the course of those conversations the applicant made statements indicating knowledge of the attempted robbery.

The facts as to the occurrence of the offence found by his Honour were as set out above. His Honour noted that the applicant did not give evidence on sentence. His Honour had before him a pre-sentence report of Vimmela Bendall, Community Corrections Officer; two reports from Miriam Wyzenbeek, Clinical and Forensic Psychologist; and the applicant’s criminal history.

His Honour found the effect of those reports to be as follows:

His Honour noted that the applicant was of Aboriginal background and completed school at the age of 13. As a result, he is unable to read or write. He had never been engaged in employment nor had he ever applied for social security benefits. When he was in the community he was supported financially by his family and friends. His Honour noted that Ms Wyzenbeek reported that the applicant presented as a person of low intelligence. In subsequent testing, Ms Wyzenbeek was not able to confirm the occurrence of any traumatic brain injury nor any matter which may have had an adverse effect on his cognitive ability.

His Honour noted that the applicant reported having first consumed alcohol when he was 10 years of age, drinking each weekend at that time, and between the ages of 17 and 18, drinking to the point of inebriation on most weekends. He said that he had not consumed alcohol since he was 18 because he was aware of the harmful effects that it had on his family and other members of the community.

His Honour noted that the applicant reported first smoking cannabis when he was aged 13 and smoking an ounce daily until around 17 years of age, but that he had not used that substance since then, due to its demotivating effect. He first started using amphetamines at age 17 and used it at a rate of three times weekly. His first methamphetamine use occurred when he was aged 19 and he was smoking a quarter of an ounce of that drug daily from that time until he entered custody on 18 March 2013. The applicant said that he did not use drugs while in custody and had not participated in any drug or alcohol treatment programs because he was unable to see the benefit.

His Honour observed that despite that assertion, the applicant’s custody record indicated that since March 2013 he had been found to be in breach of prison discipline by failing urine tests, possessing drug equipment and failing prescribed drug tests.

His Honour summarised the effect of Ms Wyzenbeek’s most recent report (20 November 2014) as follows:

His Honour noted that Ms Wyzenbeek said that the applicant would potentially benefit from a period of incarceration in order to complete the Violent Offenders Therapeutic Program and also such programs as Getting Smart. His Honour could find no evidence of any remorse or contrition on the part of the applicant and concluded that there was little, if any, prospect of rehabilitation. Because of the material before him, his Honour concluded that it was impossible to find that the applicant was at low risk of re-offending. On the contrary, his Honour found that the applicant had a high risk of re-offending.

His Honour did not detail all of the applicant’s past offences, but referred to categories. Those categories included being carried in a stolen conveyance, break and enter with intent to steal, failing to appear in courts with bail, shoplifting, obtaining money by deception, aggravated break enter and commit serious indictable offences, assault and resist officers in the execution of duty, being armed with intent to commit indictable offence, use offensive language in or near public places or schools, possess prohibited drugs, drive dangerously, drive conveyance taken without the consent of the owner, drive recklessly furiously or speed in a manner dangerous and having goods in custody suspected of being stolen.

His Honour noted that as an adult the applicant had been imprisoned for a period of 9 months, with a 4 month non-parole period for stealing from the person as well as receiving terms of imprisonment in respect of driving a conveyance without consent and engaging in a police pursuit. In respect of the police pursuit, the sentence imposed was one of 2 years with a non-parole period of 12 months. That sentence commenced on 13 September 2013. There were other offences with terms of imprisonment in relation to larceny.

His Honour paid particular attention to offences committed by the applicant which gave rise to sentences of imprisonment which might impact on the sentence to be imposed for this matter. His Honour noted that this offence occurred on 7 August 2012 but that the applicant was not arrested until 13 August 2013. At the time of his arrest, he was already in custody as a result of other offending. This offence was committed when the applicant was on parole in respect of offences of assault occasioning actual bodily harm in company and affray, being offences committed as a juvenile. In respect of those offences the applicant was sentenced to a term of imprisonment of 12 months commencing 27 February 2012 with a non-parole period of 3 months. He was released on parole on 26 May 2012, i.e. about two and a half months before this offence. As he was not arrested in respect of this offence until 13 August 2013, his parole had already expired on 26 February 2013.

His Honour noted that since committing this offence and while in the community, the applicant committed a number of further offences. On 4 October 2012, i.e. two months after the current offence, an offence of destroying or damaging property occurred for which the applicant received imprisonment for 2 months. Two days earlier on 2 October 2012, he committed an offence of larceny for which he received a s 9 bond of 12 months. On 25 September 2012, he committed the offence of drive a conveyance without the consent of the owner for which he received a s 9 bond of 12 months. He also received a s 9 bond of 12 months and a s 10A conviction with no other penalty in respect of a number of offences committed on 9 September 2012 being drive a conveyance taken without consent, never being a licensed person drive a vehicle on road and a police pursuit.

Importantly, subsequent to the current offence, the applicant committed two offences of wound with intent to cause grievous bodily harm, one being taken into account on a Form 1. In respect of those offences he was sentenced to a period of imprisonment of 6 years commencing 13 December 2013 with a non-parole period of 4 years to conclude on 12 December 2017.

In relation to the objective seriousness of this offending, his Honour noted that the co-offender, Trindall, was in possession of a shotgun which discharged during the course of him being over-powered by the patrons at the hotel. His Honour found that the offence was pre-planned, the three offenders all travelling to the hotel with the object of entering through the rear beer garden while disguised by wearing balaclavas. His Honour noted that they only failed in the attempted robbery because there was a significant number of patrons in the hotel not prepared to have their drinking session interrupted. His Honour considered that the features of this offending made it more serious than the offence referred to in the guideline judgment of R v Henry [1999] NSWCCA 111; 106 A Crim R 149. Those features were that he was engaged in a joint criminal enterprise where his co-offender had a loaded shotgun for which he was just as responsible. His Honour concluded that this offence was a very serious matter.

In relation to parity, his Honour noted that there were a number of distinguishing features – the applicant did not plead guilty and was on parole at the time of the offence. Although Mr Trindall also had a poor criminal record, there was little evidence of offences involving violence. There were also distinguishing features in relation to contrition, remorse and the prospects of rehabilitation and re-offending.

His Honour declined to commence the sentence in this matter from the date on which the applicant was convicted, being 23 October 2014. On that issue, his Honour referred to the judgment of Simpson J in Callaghan v R [2006] NSWCCA 58 where her Honour said that the sentencing discretion allowed him to impose a sentence which was concurrent, partially concurrent or wholly cumulative upon the sentence or sentences which the applicant was already serving.

On that issue, his Honour said:

The applicant submitted that proper consideration was not given by the sentencing judge to the notion of reduced moral culpability where an offender has suffered social disadvantage when young. In support of that proposition, the applicant relied upon the decision of the plurality in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [37]:

The applicant accepted that in his case the particular disadvantage was not the circumstances of his immediate upbringing by his mother and father, but his association with peers and extended family who were engaged in criminal activities in the small community of La Perouse. The applicant submitted that such an atmosphere where criminal activity was the norm was likely to distort the applicant’s moral compass, particularly when he was of tender years.

The applicant submitted that although the sentencing judge had set out in detail his disadvantaged background, he had not done so with a view to taking it into account by way of mitigation, but rather as a factor which counted against him in that it was not conducive to rehabilitation.

The applicant submitted that despite the fact that his counsel had made frequent reference in submissions to the application of Bugmy v The Queen and R v Fernando [1992] 76 A Crim R 58, his Honour made no reference to those cases in the sentencing judgment. The applicant submitted that his Honour neither adopted anything said in those cases nor did he give reasons why they ought not apply.

The applicant submitted that despite the fact that his Honour was sufficiently impressed by the psychological reports of Ms Wyzenbeek to quote from it at length, particularly in relation to her conclusions, he did not at any time say that the matters raised by Ms Wyzenbeek were indicative of social disadvantage and that this was a matter which ought be taken into account in his favour. He submitted that although his Honour had identified as a fact that he had been exposed to social disadvantage, he did not take the next step of taking that into account in order to provide some amelioration of his sentence. This was clear from the fact that in his reasons, his Honour said:

It is true that his Honour fully reviewed the applicant’s subjective case. Included in that review was a detailed statement of the history received and conclusions reached by Ms Wyzenbeek. That material made it clear that an important part of the applicant’s background history was that his extended family were involved in a criminal milieu and that from a young age, the applicant was exposed to that influence. Despite being aware of those matters, his Honour appears to have disregarded them when exercising the sentencing discretion.

This is clear from the observation by his Honour relied upon by the applicant that:

It follows that the complaint made by the applicant in the ground of appeal has been made out. Nevertheless, there remains the question of whether that amounts to an error such as would require this Court to re-sentence the applicant.

It is true, as the Crown submitted, that in Bugmy v The Queen the plurality said:

My understanding of that statement is that it refers to the ultimate effect of that factor. The plurality were not saying that a consideration of this factor was optional. What the plurality clearly had in mind was that even when that factor is taken into account, there may be countervailing factors (such as the protection of the community) which might reduce or eliminate its effect. In other words, this factor where it is present should be taken into account in the exercise of the sentencing discretion. That is something which his Honour did not do.

Accordingly, error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 at 505 has occurred:

Error having been established, it is necessary for this Court to re-exercise the sentencing discretion. This was made clear by the plurality in Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 where their Honours said:

As a start point in the re-exercise of the sentencing discretion, it needs to be noted that while the applicant’s background during his formative years involved exposure to persons who were active in the criminal world and that there was a general acceptance among the members of his wider family and peers that breaking the law was acceptable, neither his mother nor his father were criminally involved nor was either of them abusing alcohol or drugs. To that extent, as was made clear by Ms Wyzenbeek, the applicant was raised with a supportive family background. Most particularly, there was no evidence that the applicant was raised in an atmosphere of violence, although he did see it in the community around him.

It follows that although the applicant’s background was marked by exposure to regular criminal activity, it was not of the kind (regrettably found all too often in such cases) where the abuse of alcohol and alcohol-fuelled violence were endemic. The applicant’s background was considerably better than that described in Bugmy, Fernando and a number of similar cases which have come before the courts. Nevertheless, the applicant’s exposure to crime at an early age would still have “compromise[d] the person’s capacity to mature and learn from experience” (Bugmy at [43]).

Ms Wyzenbeek summarised the position of the applicant at para [28] of her first report as follows:

Guidance as to how to take into account social disadvantage of the kind established in this case, was provided by the plurality in Bugmy as follows:

Observations to similar effect were made by the plurality in Munda v Western Australia [2013] HCA 38; 249 CLR 600:

In Munda v Western Australia the plurality quoted with approval the following statement in the Court of Appeal by McLure P:

A statement of principle to similar effect was made by Johnson J (Hoeben JA and Beech-Jones J agreeing) in Jinnette v R [2012] NSWCCA 217:

A matter which was not raised as a ground of appeal but was referred to in argument is the issue of the applicant’s institutionalisation. It is common ground that the effect of the sentence imposed by his Honour, taken with the sentences which the applicant was already serving, will produce a result of imprisonment with a non-parole period in excess of 9 years. Given the applicant’s age (22), this has to be a relevant consideration in the exercise of the sentencing discretion.

The Court had available to it on re-sentence an affidavit of Ms Betteridge from the Office of the ODPP. Annexed to the affidavit was a record of the applicant’s offending while in custody for this offence. The applicant has continued to breach prison discipline, albeit not with the same frequency as he has in the past. There was an offence on 12 January 2015 involving the possession of a drug implement, on 6 March 2015 for refusing to supply a urine sample and on 3 September 2015 for failing a prescribed urine test. These matters have been taken into account on re-sentencing.

In the independent re-exercise of the sentencing discretion, I have taken into account by way of mitigation the applicant’s age, his exposure to criminal activity and like matters during his formative years and the potentially crushing nature of the sentence which he is currently serving. Although all assessments of his prospects of rehabilitation are negative, I have taken into account the possibility that he will attend the courses available to him while in custody and that these, together with increasing maturity, will change his attitude to life.

By way of balance, I have also taken into account the objective seriousness of the offending which is substantial, particularly the possession by the co-offender of a loaded shotgun which did in fact discharge. I have taken into account the applicant’s lack of remorse, his lengthy criminal history and poor compliance with supervision and other orders. General deterrence is an important consideration in this matter as is personal deterrence and the protection of the community. As the applicant’s criminal record makes clear, which is confirmed by the comprehensive report of Ms Wyzenbeek, there is at the moment no sign that upon release into the community, the applicant will change his behaviour and cease offending.

Taking those matters into account, the sentence which I propose is imprisonment for 9 years with a non-parole period of 5 years. In setting the commencement date for that sentence, I propose to increase the level of concurrency to 2 years. The effect of the sentence is that the applicant will be eligible for parole on 12 December 2020 and that the total term of the sentence will expire on 12 December 2024.

The orders which I propose are:

ADAMS J: I agree with Hoeben CJ at CL.

FULLERTON J: I agree with Hoeben CJ at CL.