Citation: R v Kevin Scorah; R v Carl Walton [2008] NSWDC 180
Court: District Court of New South Wales
Date: 13 August 2008
Judge(s): Goldring DCJ
Background
On 2 December 2006, two adult offenders, Kevin Scorah and Carl Walton, along with two others (including a juvenile, AW), carried out a series of offences at and near Bellambi and Corrimal railway stations in the Wollongong area. All four had been drinking heavily and were carrying bottles when the incidents occurred. Their conduct was partially captured on closed-circuit television.
The first incident involved taking a $20 note from a 15-year-old at Bellambi station, constituting steal from the person. The second involved Walton kicking a milk crate from under a woman and throwing it at her twice as she fled, constituting affray. The third, and most serious, involved the group following a young man with a bicycle from Corrimal station, placing him in a headlock, knocking him to the ground repeatedly, and stealing his bicycle, bag, watch, and iPod, constituting robbery in company.
Both Scorah and Walton were convicted by a jury on the steal from person and robbery in company counts. Walton additionally pleaded guilty to affray. The juvenile co-offender, AW, was dealt with separately in the Children's Court, and his sentence became relevant to the parity question considered at this hearing.
Legal Issues
- What sentences were appropriate for robbery in company, steal from the person, and affray, given the seriousness of the offending and the individual circumstances of each offender?
- How should the court approach parity between the adult offenders and the juvenile co-offender, AW, who received a lesser sentence in the Children's Court?
- What weight should be given to intoxication as a mitigating factor, and to the public interest in safe travel on the rail network?
- How should the principles of totality and pre-sentence custody affect the structure of Walton's sentences?
Decision
The court found no alternative to full-time imprisonment for both offenders on all counts. The robbery was described as vicious and unprovoked, aggravated by the use of gratuitous force that could have endangered the victim's life. The victim, ZG, suffered lacerations, a chipped tooth, and psychological injury. The court noted that all three victims were each confronted by a group of four, amplifying the intimidatory effect of the offending.
While the court acknowledged that alcohol played a role, it was clear that intoxication could not excuse the conduct. The public's reasonable expectation of safety on public transport on a summer Saturday afternoon was treated as an aggravating contextual consideration. The property stolen was not of great value, but the human cost to three separate innocent victims was significant.
On the question of parity with AW, the juvenile co-offender, the court accepted that the Children's Court proceedings warranted a different outcome for AW given his age and the distinct sentencing regime applicable to juveniles. This difference in outcome did not produce an unjust sense of grievance for the adult offenders because the disparity was explained by AW's youth and the Children's Court's purpose. The court found Scorah's individual role to be somewhat less prominent than Walton's, which was reflected in the structure of his sentences.
For Walton, the affray sentence incorporated a two-month discount for the guilty plea. The court backdated part of his sentences by approximately four months to account for pre-sentence custody and applied the totality principle to ensure his overall sentence was not disproportionately crushing, while still requiring him to serve a meaningful period.
Orders Made
Kevin Scorah:
- Steal from person: non-parole period of 18 months, total term of 2 years and 6 months, commencing 1 February 2008; non-parole period expires 31 July 2009, total term expires 31 July 2010.
- Robbery in company: non-parole period of 3 years, total term of 5 years, commencing 1 February 2009; non-parole period expires 31 January 2012 (earliest parole eligibility), total term expires 31 January 2014.
Carl Walton:
- Steal from person: non-parole period of 18 months, total term of 2 years and 6 months, commencing 16 March 2008; non-parole period expires 15 September 2009, total term expires 15 September 2010.
- Affray: fixed term of 8 months, commencing 16 July 2009, expiring 15 March 2010.
- Robbery in company: non-parole period of 3 years, total term of 6 years, commencing 16 August 2009; non-parole period expires 15 August 2012 (earliest parole eligibility), total term expires 15 August 2015.
Key Takeaways
- The District Court confirmed that intoxication, while a factor a sentencing court must consider, cannot operate as an excuse for serious criminal conduct and does not substantially reduce the objective gravity of offences.
- Parity between adult and juvenile co-offenders does not automatically require equivalent sentences where the disparity is attributable to the juvenile's age and the distinct sentencing framework applied in the Children's Court.
- Gratuitous physical force during a robbery, going beyond what is necessary to effect the taking of property, constitutes a seriously aggravating factor capable of pushing a sentence beyond the standard range discussed in R v Henry.
- Where multiple offences form part of a continuing course of criminal activity, sentences are to be structured as discrete terms with careful attention to the totality principle, ensuring the aggregate is proportionate to the overall criminality without being crushing.
- Offending in public spaces such as railway stations carries additional weight in sentencing, reflecting the community's legitimate expectation of safety when using public transport.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Ho (unreported, NSWCCA, 28 February 1997)