Citation: R v Sam Everingham [2017] NSWDC 200
Court: District Court of New South Wales
Date: 16 June 2017
Judge(s): Letherbarrow SC DCJ
Background
Following a four-day jury trial, the offender was convicted of three offences arising from events in Glebe, Sydney, in the early hours of 27 August 2015. The offender encountered the victim, a young adult male, on Glebe Point Road at approximately 4:30am and lured him to a nearby property under a pretext. Once inside the house, the offender became aggressive, issued serious threats of violence, and kicked the victim in the head on two occasions.
The offender then demanded money, took the victim's backpack, and compelled him to enter his phone PIN under duress. He also inspected the victim's driver's licence and threatened further harm if the victim reported the incident to police. After approximately 20 to 30 minutes inside the property, the offender accompanied the victim to a nearby ATM, where the victim withdrew $50, which the offender took.
The offender gave evidence at trial denying any criminal conduct. The jury rejected his account beyond reasonable doubt and convicted him on all three counts, though it did not find the aggravated circumstance alleged in count 2.
Legal Issues
- What sentences were appropriate for each of the three offences, having regard to the objective seriousness of the conduct and the offender's personal circumstances?
- How should sentences be structured across multiple counts to reflect totality and avoid double punishment, consistent with Pearce v R and Cahyadi v Regina?
- What weight should be given to the offender's lengthy criminal history, including prior serious offending in Western Australia, when assessing prospects of rehabilitation?
- Whether the use of threats of violence as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 was available, given those threats were also elements of some offences charged?
Decision
Letherbarrow SC DCJ accepted the victim's evidence in full as the factual basis for sentencing. The conduct was treated as serious: the offender used his significant physical size to intimidate a much smaller victim, delivered two kicks to the head, made explicit threats referencing his prior imprisonment and capacity for violence, and detained the victim for up to 30 minutes before extracting money at an ATM.
The offender's criminal history, which included serious offending in Western Australia for which he had received a substantial sentence in 2006, weighed heavily against him. His Honour considered the prospects of rehabilitation to be poor. The pre-sentence report and a character reference were received in evidence, along with the Western Australian sentencing remarks of McKechnie J, but these did not substantially alter the sentencing outcome.
His Honour applied the principles in Veen v The Queen (No 2) regarding the limits of using criminal history to increase a sentence, and Markarian v The Queen on sentencing methodology. The sentences were structured with partial accumulation across the three counts to reflect the distinct criminality of each offence while observing the totality principle from Pearce v R and the approach to accumulation confirmed in Cahyadi v Regina.
On the question of aggravation, the use of threats was noted but care was taken not to use the same conduct both as an element of an offence and as a separate aggravating circumstance under s 21A(2)(d), consistent with the statutory prohibition on double-counting.
Orders Made
- Count 3 (dishonestly obtaining property by deception): Non-parole period of 1 year and 6 months, commencing 11 February 2016, expiring 10 August 2017; head sentence of 2 years, expiring 10 February 2018.
- Count 1 (demanding property with menaces or by force with intent to steal): Non-parole period of 1 year and 10 months, commencing 11 February 2016, expiring 10 February 2018; head sentence of 2 years and 6 months, commencing 11 April 2016, expiring 10 October 2018.
- Count 2 (take and detain with intent): Non-parole period of 2 years and 2 months, commencing 11 April 2016, expiring 10 June 2018; head sentence of 3 years, commencing 11 April 2016, expiring 10 April 2019.
- Effective total: Non-parole period of 2 years and 4 months commencing 11 February 2016, expiring 10 June 2018; head sentence of 3 years and 2 months, expiring 10 April 2019.
Key Takeaways
- The District Court applied partial accumulation across three counts to ensure each distinct criminal act was reflected in the overall sentence, while the totality principle prevented the aggregate from becoming disproportionate.
- A lengthy interstate criminal history, including a prior sentence imposed by the Western Australian Supreme Court, was treated as a relevant factor bearing on the offender's prospects of rehabilitation, though consistent with Veen v The Queen (No 2), it did not operate to increase the sentence beyond what the current offending warranted.
- Under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, threats of violence may constitute an aggravating factor, but the court must not use the same threatening conduct as both an element of the offence and a separate aggravating circumstance.
- Where a jury returns a verdict on a statutory alternative to a charged offence (here, the non-aggravated form of take and detain), the sentencing court is bound by the jury's finding and sentences on the alternative only.
- Poor prospects of rehabilitation, combined with serious objective features including physical violence, prolonged detention, and targeted financial exploitation of a vulnerable victim, supported custodial sentences in the mid-range for each offence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(1), 86(2), 99(1), 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d)
Cases
- Veen v The Queen (No 2) [1988] HCA 14
- Markarian v The Queen [2005] HCA 25
- Pearce v R [1998] HCA 57
- Cahyadi v Regina [2007] NSWCCA 1