R v Al-Basry; R v Robinson

Facts

1. The agreed facts are common to both parties with the exception of what they said to police after their apprehension. They are summarised as follows. On 29 April 2018 Robinson sent a text message to Al-Basry containing the address of the victim Susan Highland and suggesting that they rob her. A number of text messages were sent between the offenders that day and on 10 May 2018 about the commission of the offence and use of a knife. At one stage Robinson told Al-Basry to delete their conversation. A car was organised and various dates were set. At about 7pm on 10 May 2018 Al-Basry sent Robinson a message saying "cuz I'm here what's going on?"
2. At 11pm that night the victim was watching television alone in her lounge at her home in Beverley Park when she heard a knocking on the front door. She did not answer it as she was fearful, given the time of the night. Then the doorbell rang, she assumed it was a neighbour so she got up and said "who is it?" A male voice said "I'm from the internet service", the victim opened the wooden door and spoke through the flyscreen to Robinson. She said she was not interested and told him to leave and threatened to call the Police. He told her not to do so. She moved away from the door but she had difficulty closing the door, which she left slightly ajar. She rang 00. She heard footsteps running down the side of her house and then she heard smashing at the back door which consisted of a screen door and a deadlocked wooden door. She then ran into the bedroom, still on the phone to the 00 operator. Al-Basry ran into the bedroom where he grabbed her by her left arm causing her to drop the phone. Then she realised that he was a second male because he was smaller than the male that she had spoken to at the front door. He was wearing dark gloves. The 000 call remained connected.
3. She told Al-Basry that she had been on the phone to the Police as he dragged her out of the bedroom and pushed her down a small hallway into the lounge room. He stood about a metre from her jumping up and down, and thrusting a knife into her face. He demanded money and her car keys before he pushed her over, causing her to fall over some dining chairs. She regained her footing but Al-Basry continued to demand money and the car keys. She was fearful she would be stabbed so she gave him her car keys and he grabbed her handbag containing her licence, keycard and $88 in cash and said "I'll be back". They both got into her grey Subaru parked in the driveway and Al-Basry drove away.
4. Police were alerted and they located them, travelling at speed in Kogarah, where they reversed into the front of unmarked police car and drove off again at speed. Police activated their sirens and lights and stopped the car in Shore Street, Kogarah and arrested them both. Police found a large knife on the front passenger seat and the victim's black handbag in the foot-well.
5. Robinson told police that he knew the victim and he was going to her house because he owed her money, but he did not end up going inside the house. He claimed that Al-Basry had gone into the house before running out with the car keys and telling him to get in the car.
6. When asked how his mobile phone came to be in her handbag, he said "I don't know how that happened". He had latex gloves which he said were because his wife ran a cleaning business and the torch that had been in his possession was a present from her. Al-Basry said that his involvement was under duress because he owed Robinson a $650 drug debt and Robinson had threatened that if he did not assist in the offence that he would rape the offender's mother and sister. He said he was driven to the location by Robinson's partner and an unknown male introduced him as Mickey and during the drive he said the unknown male was pointing to a silver coloured pistol at his side. That version has not been tested or adopted and is not given any weight in the sentencing process.
7. There is a victim impact statement from Susan Highland which is dealt with in the way suggest by Basten JA in R v Thomas [2007] NSWCCA 269. It describes the not unexpected sequelae of this type of home invasion and, even though it is not tested, it is a matter to be taken into account as one of the factors in of determining sentence.

Al-Basry

1. They both have extensive records. Al-Basry's starts with common assault offence in 2012 dealt with by a section 10 bond. He was called up for that and given an aggregate sentence of 16 months with a non-parole period of eight months. In 2014 there was an assault occasioning which was dealt with by the aggregate sentence and then in July 2014 there was an armed robbery with a 40 month term and 18 months non-parole period.
2. There is a lengthy history for Al-Basry set out in the report of Sam Borenstein psychologist and it is, to a large extent, consistent with letters provided by his mother and his sister, and therefore entitled to some weight.
3. His sister was cross-examined briefly by the Crown Prosecutor today but due to the apparently distressed state of the mother the Crown chose not to cross-examine her on her letter.
4. Al-Basry repeated to Mr Borenstein on the assertion of duress but I say no more about that for the reasons that I have already indicated. He said to Mr Borenstein that he had no prior history of psychiatric or psychological disturbance, except that in his most recent admission to gaol he was diagnosed with schizophrenia. There is some inconsistency between that and the contents of a Justice Health bundle of documents which have been provided since the matter was last in for hearing some weeks ago. They showed that he provided a history at the Junee gaol in July 2014 to having previously diagnosed schizophrenia and was taking Avanza and Seroquel. There was certainly a diagnosis of schizophrenia by August 2018 according to those records and the custody notes, apparently from 2014, noted diagnoses by a psychiatrist six years ago of schizophrenia, depression and bipolar. The Crown submits that the diagnosis of schizophrenia should be rejected completely, but in the light of the Justice Health medical records I am prepared to accept that diagnosis and it does, as Ms Carroll for the offender submits, warrant a very slightly in reduction of the objective criminality.
5. As Ms Carroll points out, his custodial record shows a very large number of adverse matters, but between August 2018 and April 2019 there is nothing recorded and that is consistent with the beneficial effects of the medication and his improved behaviour in custody over the last several months at least.
6. His mother says that she was absent from his life for several years while he lived in Perth with his father. She had escaped with the rest of the children, as a result of domestic violence. He came back to live with her in 2012 when he was 18, but he already had a drug problem by then that was impacted by his father's behaviour. She acknowledges that his drug use has led to a number of detrimental consequences and although she loves him, she does not support his actions and she acknowledges that he requires punishment. She has seen a significant improvement in him on her weekly visits to him in custody and he has expressed to her an acceptance of responsibility and a desire to turn his life around. He has found the will to fight drug addiction and has expressed remorse. The family view is that he is a changing man. That is supported by his sister's evidence, in which he graphically describes the loss of freedom which has shattered him and the disappointment when he realises the pain that he has caused to the victim and the family. She says a series of drug fuelled decisions combined with mental illness developed as a response to fear and resentment that were not resolved in childhood. Although that is a lay opinion, it is an understandable one. She also recognises that he needs to be accountable. She confirms that the family will support him in any way they can. I take account of the offender's letter to the Court expressing his apology and remorse and a desire to abstain from offending in the future. There is a diagnosis of ADHD and prescription Ritalin when he was 10 or 11 and it is clear that the medication that he has been prescribed while in custody does, as Mr Borenstein notes, have a beneficial effect upon him.
7. In submissions for Al-Basry, Ms Carroll acknowledges the lengthy criminal history involving robbery and other similar offences. She acknowledged that his drug use had contributed to his offending behaviour from time to time, but there were two aspects which she said would lead the Court to consider a slight reduction of culpability, the first being the mental health diagnoses, to which I have referred and the second was the assertion of duress. For the reasons that I have indicated briefly, I am not prepared to accept that duress was established to the requisite standard.
8. It is clear however, that he has family support and is improving with the assistance of the Justice Health and the mental health unit. As Ms Carroll acknowledges, one cannot say that he has good prospects of rehabilitation but they are, with extended supervision, likely to be reasonable. Ms Carroll pointed to her research on the statistics, supported by the material provided by Ms Chauvet for Mr Robinson this morning, acknowledging that there are a necessarily blunt tool and of some limited assistance.
9. It is unnecessary to place matters in some notional scale of objective seriousness, as the Court has said in cases such as McDowall v The Queen [2019] NSWCCA 29, but it is helpful to acknowledge that this is a very serious example of this type of offending and, as I have indicated, the facts in relation to each case which supports that finding of objective seriousness.
10. The Crown acknowledged a number of aggravating factors, being the previous records, it was committed in the home of the victim, and there was some level of planning. As to mitigating factors, I have noted the expression of remorse and the pleas of guilty that have been entered.
11. I find special circumstances.

Robinson

1. Turning to Mr Robinson's matter, he has a very lengthy criminal history and, as Ms Chauvet helpfully summarised in her submissions, he has been in custody for most his life, since the age of 18. At 38 years of age, he has spent about 16 years in in custody. He was only out for 14 days when he was 20, and for another four months when he was 25, for a month when he was 27 and then further 5 months when he was about 33. His last period in the community was a year and four months, which was the longest period that he has been out of custody since he was 18. It is clear that his lengthy history of incarceration has led to institutionalisation and I should focus on a sentence which allows for a sufficient period of conditional, supervised liberty to ensure protection of the community and minimise the chance of recidivism as the Court said in Jinnette v R [2012] NSWCCA 217. A finding of special circumstances should be made in this case to attempt to avoid further effects of institutionalisation.
2. Mr Robinson's record in custody is not one that does him any credit, and obviously his prior record does not entitle him to leniency. The evidence in his case commences with an affidavit by Mr Robinson who says that having spent half his life in custody, he has never been more ashamed of himself than now. He has been battling issues from a young age, because of his arrogance, pride and ego he bottled things up and had not talked to anyone about them or sought professional help, but he has finally realised that he needs that help and he is talking with psychologists.
3. He had a difficult upbringing with an alcoholic father who would bash him and his family members. He ran away from home several times, the first time at age 13 and he left school at age seven. On his last lengthy release he felt good, he completed his parole, he got a driver's licence and bought his first car. He stayed away from drugs and old peers. He had a partner and two step-children.
4. He had known the victim, having purchased cannabis from her in the past and he is ashamed of the effect that it has had upon her. He said that she does not deserve that. He now has a better understanding of his drug problem, especially the benzodiazepine habit.
5. He accepts responsibility for his actions and acknowledges that he has to deal with his issues and he expresses and apology to the Court and the community. That is supported by his partner Ms Maseulanon who is 39 years of age and has known him since 2013. She has been in a relationship with him since 2014. She expresses her continuing support of the offender and the children are also attached to him, and she says that when he is not on Xanax he is a good man and acknowledges that he needs to open up and deal with his issues.
6. As the psychologist described he has predominantly associated with a drug-using criminal peer group since adolescence and his periods in gaol have continued to bring him into contact with other offenders and drug users. He started smoking cannabis at age nine and has continued to do so and then started abusing benzodiazepine at the age of 12.
7. He a longstanding history of emotional, behavioural dis-regulation beginning in childhood, and his erratic behaviour continued into adulthood. Management of his personality dysfunction will be vitally important in his rehabilitation and for his psychological well-being.
8. In written submissions, Ms Chauvet concedes a number of aggravating factors, being the record of previous convictions, the commission of the offence in company, a planned criminal activity and the offence occurring in the victim's home. The Crown submitted that the victim was vulnerable, however as submitted by Ms Chauvet the victim was no more vulnerable than any other person of her age and gender.
9. As to mitigating factors they are no more favourable than in the case of Al-Basry, being those factors to which I have already referred.
10. Ms Chauvet distinguishes the standard list of factors in a number of ways, noting that he was not on conditional liberty. There was no planning to a professional degree, there was no vandalism or other significant damage, there was not a series of break and enters and there was no infliction of actual bodily harm to the victim, even though force was used.
11. It is clear that in terms of objective seriousness, it is not appropriate to impose a standard non-parole period.
12. As with Mr Al-Basry I think the prospects of rehabilitation are reasonable if he continues to address the underlying issues that have been identified. There is an element of Bugmy v The Queen (1990) 169 CLR 525 childhood deprivation to be taken into account, in the light of the history, that I accept.
13. As to parity, Ms Carroll acknowledges that the role of Al-Basry was perhaps more serious, notwithstanding that they are being sentenced for a joint criminal enterprise for which each party is liable. The authorities clearly show that each party's respective involvement has to be independently assessed. Ms Carroll submitted that in the ultimate wash-up of things, balancing their respective records that some real sense of parity should apply. On the other hand Ms Chauvet submits that the overall mix of factors would favour a slightly less lenient sentence for Mr Robinson. I think ultimately that is the correct position.
14. The orders that I make are:

001 Aggravated break and enter and commit serious indictable offence

003 Take and drive conveyance w/o consent of owner (Form 1) 1. The offender is convicted of the offence. 2. Taking into account the Form 1 offence (003), I impose a sentence of imprisonment of 3 years, 2 months to commence on 10 May 2018 and expiring on 9 July 2021. 3. I impose a non-parole period of 2 years, 1 month, expiring on 9 June 2020. 4. I find special circumstances.

004 Negligent driving (Section 166 certificate) 1. The offender is convicted of the offence. 2. Pursuant to s 10A of the Crime (Sentencing Procedure) Act 1999, no further penalty is imposed.

001 Aggravated break and enter and commit serious indictable offence

003 Take and drive conveyance w/o consent of owner (Form 1) 1. The offender is convicted of the offence. 2. Taking into account the Form 1 offence (003), I impose a sentence of imprisonment of 3 years to commence on 10 May 2018 and expiring on 9 May 2021. 3. I impose a non-parole period of 2 years, expiring on 9 May 2020. 4. I find special circumstances. Note - These extempore remarks have been revised without access to the court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2019