STATE OF TASMANIA v DAMON PETER KING 17 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr King, the defendant, has been found guilty by a jury of one count of robbery. I am also dealing with his plea of guilty to a summary offence of burglary. These crimes were committed at Sorell on the evening of 21 November 2019. The complainant is He Shen who was visiting from interstate with his wife and five year old son, and staying in visitor accommodation in Sorell. Both Mr Shen and his wife, Wanhui Tu, gave evidence with the aid of an interpreter.
The facts are as follows. At about 7pm, Mr Shen went fishing not far from where they were staying. He returned about an hour or so later and parked his hire car in the street across the road from the accommodation and went inside. Mr Shen found that his son was being very noisy, and feeling very tired, went back to the car to sleep. In the meantime the defendant had got into the vehicle looking for something to steal. He sat in it for a time and searched the console in vain before getting out. That is the offence of burglary. About 10 minutes later after going back to the car Mr Shen moved it to the dedicated car park behind the accommodation. He put the seat back and lay down. About ten minutes later the defendant knocked on the window. The defendant admits pretending to be the manager. Mr Shen thought he was security. The defendant spoke through the window but Mr Shen could not understand. He thought he had to justify being parked there. He called out for his wife. The defendant kept talking so Mr Shen tried to ring his wife on his mobile phone. The defendant tried to grab it. There was a struggle but Mr Shen managed to keep it. During the struggle Mr Shen realised that he was not dealing with security and instinctively put his hand on his trouser pocket where he had his wallet. He seems to have suggested in evidence that the defendant grabbed it directly from the pocket but I am more inclined to the view – consistent with what the defendant told police – that it was taken from his hand. Immediately after the defendant took the wallet he punched Mr Shen to the side of the face causing Mr Shen to become dizzy. Mr Shen said in evidence that the defendant kicked at him before running away, but the Crown case was based on the alleged punch to the head. When the defendant ran off, Mr Shen gave chase but the defendant stopped, turned and moved back towards him so Mr Shen retreated. During events at the car another man who had been with the defendant, who I will call M, came close to the car but was not directly involved in what went on. When the defendant ran, M ran with him. The two men continued to run and Mr Shen pursued them a little further, shouting out for police, but ultimately gave up. Although not seen by Mr Shen, the defendant threw the wallet on the ground shortly into the chase. It was recovered by police from a third party about two days later.
As is apparent, at the trial the defendant did not dispute that he had taken Mr Shen’s wallet; the issue was whether he used any violence to him. He admitted to police that he pretended to be the manager when he first spoke to Mr Shen, that he had taken the wallet, but denied hitting him. An issue that arises on the facts is whether the return to Mr Shen’s vehicle was premeditated to any material extent. When interviewed, the defendant told police that in the meantime he had been at M’s house drinking. The houses of the two men share a back fence. They then decided to go to another friend’s house. That person lived in the same street as where Mr Shen was staying, not far beyond the accommodation as the walk would take them. He said as walking past he noticed a light on in the car, which gave rise to the plan to approach that car with criminal intent. The defendant told police that he was not aware that the car that he decided to approach was the same car he had earlier burgled. The evidence shows that there was another car, not dissimilar in shape and colour parked next to that of Mr Shen’s. Both parties made helpful submissions on the issue. The question is whether the only inference that can be drawn from the whole of the circumstances is that the defendant formed an intention to return to Mr Shen’s vehicle at about the time he left M’s house. On the whole of the evidence, I cannot be so satisfied. However, plainly enough, as was conceded, there was some premeditation of coercion by way of pretending to be the manager.
Mr Shen had about $6,000 in the wallet when it was taken, approximately $2,500 of which has been recovered. It is agreed that the defendant took $3,100 from the wallet before discarding it, but is generally responsible for the loss of the balance. I have a victim impact statement from the complainant dated 26 May 2022. He says he has been “severely stricken and damaged psychologically, mentally and physically, and has suffered a range of actual financial and economic losses.” I note that there is no evidence of any physical injury and no evidence of any financial loss beyond that of the lost money. However, he says that he was taking medication for his heart and for hypertension, and that the incident has exacerbated his conditions. He said the family were hopeful of a happy holiday but returned in an unhappy state. The family found it very difficult to resume normal life after the incident. Both his wife and child have become anxious after the event. On the night after the police had left the child was expressing concern about his father’s wellbeing, and continues to ask about “bad people” if they visit somewhere that is not known to him.
The defendant is now 39 years old and has a recorded history of offending. The record commences in January 1999. As an adult, from 2001 to date the defendant has been a fairly regular offender although with some suggested periods of respite that I will later address. In the main his offending has been of a dishonest nature. This is not a comprehensive analysis but on my calculations there are 21 convictions for stealing, four for aggravated burglary or burglary, six for damaging property and five for assault. In February 2018 he was sentenced to a total of four months’ imprisonment with one month suspended on bail and driving offences and an offence of disorderly conduct. Since the present crimes, in August 2020 he was sentenced to was seems to be an effective total of 8 ½ months’ imprisonment with 3 months suspended. That sentence included the activated earlier suspended sentence, and was imposed mainly in respect of nine charges of stealing, two of burglary, two of damaging property and one of assault. In the main, these offences were committed in 2019 before or around the time of the present crimes. The defendant has not been of good behaviour since that last sentence. On 18 February 2022 he appeared on a charge of threatening words to provoke a breach of the peace for which a conviction was recorded and the matter adjourned for 12 months on his undertaking to be of good behaviour and comply with other conditions. It was submitted the defendant negotiated a period of about 12 months between December 2019 and December 2020 without offending, but for nearly half of that he was in prison. Ignoring the most recent charges, there is also the period from December 2021 to date, which I take into account.
As to the defendant’s personal circumstances, I have the benefit of counsel’s submissions and a comprehensive report from Community Corrections. The defendant had a most unfortunate upbringing in a scenario which, very regrettably, is not uncommon. His parents separated when he was 18 months old and he spent his childhood with his mother and a step-father. It is reported that both adults were alcoholics, did not acknowledge him, and he witnessed his step-father frequently physically abuse his mother. As a result he spent a lot of time away from home, ultimately leaving when he was about 13 to lead a nomadic lifestyle. The inevitable involvement with drugs and alcohol ensued. He managed to complete year 10 of high school despite disrupted living arrangements, but has a limited employment history, essentially being unemployed for most of his adult life. He started using alcohol at 13 and amphetamines at 14, and although he was an intravenous drug user for many years, it seems to be alcohol that has caused the greatest difficulty. In his late teens he formed a relationship with a woman with whom he has five children. The oldest three are adults. He lived with his partner’s family but it seems this led to an exacerbation of his alcohol and drug use, as his partner’s family were heavily involved in substance abuse. The relationship lasted 18 years. It was his alcohol abuse that ultimately led to the breakdown of that relationship. About six years ago he began a relationship with his current partner, with whom he has a three year old child. His partner is not a drug user, does not use alcohol to excess and disapproves of his alcohol abuse. However, Community Corrections describes the relationship as turbulent with the defendant’s alcohol use contributing to its deterioration. I was told that since the commission of these crimes he has taken significant steps to address his alcohol use. Earlier that year he had achieved some months of sobriety but relapsed early in November. At the time of these offences and in the weeks leading up to it, he was drinking heavily. In the last 12 months he has taken active steps to engage with residential detoxification and treatment programs. In particular, since December last year he has engaged with the Salvation Army Bridge Treatment & Recovery program. As at 13 May 2022 he was reported by that Program to be continuing to engage in his then treatment plan, and I was told that on 11 July he completed a seven day “detox” course and commenced a 10 week residential program, with an option of a further 10 weeks. A Bridge program specialist reported that he was showing positive involvement. One of the matters subject to assessment by Community Corrections was the defendant’s suitability for home detention. At the time of first interview the defendant reported heavy alcohol and cannabis use on a daily basis. He admitted to his history of anger management issues, and presented a poor attitude. Community Corrections held concerns about his motivation and ability to engage in meaningful supervision, and accordingly he was deemed unsuitable for such an order. On 14 July I was persuaded to adjourn sentencing so that the defendant could complete the ten week rehabilitation program. On 20 September I was told that he was in the second ten week phase and I agreed to further adjourn sentencing until today. I requested an updated community corrections report. I now have that report, dated 15 November 2022. It is noted that while the defendant has completed the programs, he has not demonstrated a prolonged period of abstinence within the community without a supported residential centre. There are concerns about his motivation to abstain from alcohol and drugs. For a number of reasons he is again as assessed as unsuitable for home detention. Those reasons included that the nominated co-resident showed little insight or understanding of the defendant’s criminal history and character, and the defendant showed a lack of basic knowledge about the co-resident. Family violence concerns were also raised.
The defendant is also deemed unsuitable for community service because of health issues and his history of substance abuse, but he is assessed as requiring a very high level of intervention, and 2 year period of community based supervision is recommended.
I need to say nothing about the burglary; the facts speak for themselves. As to the robbery, I regard this as a relatively serious example of this type of crime. The defendant must have realised that the light in the car indicated the possible presence of a person. In approaching the car he must have contemplated a confrontation with the occupant. The defendant must have at least suspected that Mr Shen was a visitor. Although not premeditated in any substantial sense, the ruse to put Mr Shen at a disadvantage is an aggravating factor. He falsely asserted some authority over Mr Shen in order to achieve his dishonest purpose. There is nothing to suggest the defendant was aware of the amount of money that he might obtain from Mr Shen but that is of no real mitigatory value. The evidence strongly suggests the defendant was heavily intoxicated at the time but of course, that does not assist him at all either. A matter that can be considered in his favour is that within a very short time after the incident, and when at home, he told his partner that he had done something stupid, admitting that he had robbed a person that was sleeping in the car by pretending he was the owner of the property. If not evidence of genuine remorse, it at least shows that he quickly gained insight into his wrong doing. I take full account of the significant rehabilitative steps he has taken in completing the Bridge Programs. He has expressed a desire to continue his treatment with after care and outpatients support. Lastly, he is not to be punished for taking the matter to trial, and I note that there was an offer at a relatively early stage to plead guilty to stealing.
Mr King, I have set out what I see to be the facts, and your relevant personal circumstances and the considerations which need to be taken into account in this case. You are not to be punished for your record but you have been a relatively persistent offender in relation to dishonesty matters. You also have some history of violence although nothing, it seems, for anything particularly serious. I am mindful of the steps you have taken to address your alcohol problem and your current desire to continue after-care within that Program. I am not persuaded that a wholly suspended sentence is appropriate, nor am I persuaded that a formal deferral of the sentence is appropriate. In my view, there is no option other than an immediate term of imprisonment, but those steps towards rehabilitation that you have taken justify the suspension of a part of that term. Hopefully that may also encourage you not to reoffend. You are convicted of the two crimes and sentenced to 15 months’ imprisonment, the execution of 6 months of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years.
In addition, I make a community correction order with an operational period of two years to commence on your release from prison. During the operational period of the order you to:
- submit to the supervision of a probation officer as required;
- attend educational and other programs as directed by a probation officer;
- undergo assessment and treatment for alcohol dependency as directed by a probation officer; and
- submit to testing for alcohol use as directed by a probation officer.
You will have to report to a probation officer at 114 Bathurst Street, Hobart within 48 hours of your release from prison. I make a compensation order in favour He Shen for an amount to be assessed and adjourn the further hearing of that application to a date to be fixed.