R v Alcock

Uncontested facts

1. In the early hours of the morning on 10 February 2021 there was a violent robbery at a home in southern Wollongong. Signed and agreed facts put before the Court state that four men forced entry into a home. The closed front door was pushed in as the residents attempted to keep it shut. Each intruder had their face covered by a mask. One man held a firearm, he pointed at both victims. Another man held a machete. Another man said to have blonde eyebrows ("Blonde Eyebrows"), stomped on the female victim kicking her back and ribs. He also kicked the family dog.
2. As the men entered, the male victim stumbled into the front bedroom. The door of that room was closed behind him and held shut by one of the intruders. The man with the firearm held it to the female victim's forehead. The man who had kicked her ran to an opal display in the lounge room. He started grabbing opals and putting them into a laptop bag. The man with the machete stood by the opal case.
3. The fourth man stood near the front door and front bedroom. He appeared to be timing what was going on. Less than two minutes after the forced entry he yelled out, "Time". Blonde Eyebrows scooped up the remaining opals and all four men ran from the house.
4. The opals taken were valued by their owner at approximately $500,000. No independent valuation was ever put before the Court.
5. A very thorough police investigation ensued.

Disputed facts

1. The Crown put additional material before me and called the co-offender.
2. First, that Alcock held the firearm during the home invasion and robbery. The Crown said that when I consider all the evidence, I would find proved beyond reasonable doubt that it was Alcock who wielded the gun.
3. That evidence included; what the co-offender said, the identification evidence given in the agreed facts by the male and female victims, my observations of the offenders from photographs provided and of Alcock, who appeared before me in person and on screen at various times. They also relied on mention in telephone intercepts of Alcock having access to a firearm.
4. No application was made that the Evidence Act 1995 (NSW) apply to these proceedings was made. That does not mean that a judge does not apply the general principles when it comes to evaluating evidence in that Act. It is appropriate that I give myself a warning about accepting evidence from co-offenders who have received a benefit. It is appropriate that I make my own independent assessment of the co-offender's evidence.
5. Although I have indicated he will be rewarded for his cooperation, he was not an altogether convincing witness. The Crown accepted as such. They said, however, that support for his evidence, particularly in relation to who held the gun, could be found in the evidence of the victims and the other matters to which I have referred.
6. With great respect to the female victim of the offence, her descriptions of the men do not accord in significant aspects with the photographs I have been given, particularly the stature of the fourth man who is coming before the Court shortly.
7. The co-offender sought to distance himself from the robbery and from the very facts that he agreed to be sentenced on. He could not be accepted as a witness of truth when describing the roles of the various offenders. Further, I cannot, when I look at the other material, reach a conclusion beyond reasonable doubt what role Alcock played. However ,in the circumstances of this case that matters very little. He did, on the material before me, help plan what occurred, he did use his own disguised car, he did get a share of the proceeds, and he played, as each of the four men did, an integral role in the commission of the offence.

Objective seriousness

1. There are multiple aggravating circumstances pleaded and others are present: s 105A Crimes Act. The offending here was planned and well executed. Although in company is an element of the offence, the force of numbers is a relevant factor. So too are:

• The nature of the weapons used;
• The fact that multiple weapons were used;
• The intensity with which the weapons were used;
• The fact that there was corporeal, or actual violence, to the female victim;
• The fact that for a short period only, the male victim was isolated; and
• The significant number of opals taken.

1. All indicate how serious this offence. It was a violent home invasion. It was a grave crime. A grave crime that requires significant punishment.
2. I must too consider the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; s 42A Crimes (Sentencing Procedure) Act 1999 (NSW). For those familiar with what I commonly call the Henry guidelines from what I have outlined, and, looking at objective features only, it should be clear that this matter's objective seriousness falls well above the guideline.
3. The second offence for sentence involves possession of a flick knife. Mr Stewart, counsel for Alcock, submitted that given the other sentence I must impose it would be inexpedient to impose any other sentence for this matter applying s 10A Crimes (Sentencing Procedure) Act. I disagree.
4. Although the flick knife was kept in a shed, it was kept with other weapons. Possession of such weapons had no lawful purpose. Given all the material before me, including the antecedent history of the offender, it is a serious matter and has to be dealt with in all the circumstances with a custodial sentence. In this case, a modest additional penalty.

Maximum penalties

1. In coming to an appropriate sentence, I have to take into account the maximum penalties available. I also have to take into account the standard non‑parole period, where applicable. That standard non-parole period must be given some content.

The Form 1

1. The Form 1 matters must also be considered and taken into account. I emphasise that I do not sentence for these matters, but they do mean that greater weight must be given to deterrence and community protection when I formulate the sentence for the principal matter. I take into account the guideline of the Court of Criminal Appeal; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002; (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39] - [42]
2. The offender made considerable efforts to dispose of the opals that he took or received as his share. The exact share he received and when he received it may be in some doubt. Certainly, he had words with one of his co-offenders about whether he got his fair share. Some of the opals were recovered thanks to good police work.
3. He put in considerable efforts to recruit others to help dispose of the goods on his behalf. Many of those efforts went with little reward. Multiple telephone calls were made by him. Mention was made in the telephone intercepts of $120,000 being received, but it is not clear whether that money was actually received or whether it was wishful thinking on Alcock's behalf.
4. Notably he recruited a number of people, including Gee and Munn. Both those men have been gaoled by me for significant periods because of their role in the job he recruited them into, and significant penalties were imposed upon them: R v Munn [2023] NSWDC 264; R v Gee [2023] NSWDC 327; R v Brennan (a pseudonym) [2023] NSWDC 328.
5. Form 1 matters can, and in some cases should, lead to an increase in the appropriate sentence, and sometimes that increase can be substantial. This is such a matter.
6. I have to be careful, however. As is obvious, in robberies where jewels such as opals are taken, those who take the opals will take steps to obtain a reward, I have to be careful not to double count Form 1 offences as matters in aggravation. But generally, if dealt with separately, the retaining of the proceeds of crime requires some punishment for the criminality represented by this other offence. Here, as I have said, I do not sentence for the offence, but it is as I have said, a matter I take into account.

The victim impact statement

1. I have read the victim impact statement. Care needs to be taken. It was not supported by medical evidence and the agreed facts before me are not sufficient to account for the apparently long-term physical injuries noted by the female victim. Nevertheless, what she said about the terror of the night and the impact upon her both, in terms of having to relocate, and in terms of her psychological health, are entirely understandable reactions to the robbery in home invasions such as this.
2. She sees herself as a survivor. She is to be commended for the efforts she has taken to get her life back on track after what would have been a terrifying incident. The emotional impact is what one would have expected, and one reason for harsh and retributive penalties imposed for offences of this nature.

The offender's criminal record

1. The offender has a criminal history. It goes back to when he was very young. He has been imprisoned in adult gaols since 2015. His adult record does him no credit. It mainly involves serious motor vehicle offences dealt with in the Local Court. There is nothing of this seriousness, although there is a weapons charge. His record means he is not entitled to the leniency often given to first offenders. It appears that offending has been well entrenched in his life.
2. After his arrest, he served two Local Court sentences with non‑parole periods of 6 months and 10 months respectively. They were served concurrent with his remand custody for this matter. He has been in custody for this matter only, since 30 August 2022.

Time in a rehabilitation program

1. There was also a break in his remand when he was given 3 months bail to attend the Oolong House rehabilitation facility. It appears that for most of that time until he left, he was doing well and he benefited from the program. He is not punished by me for the fact he failed to complete that course. I take into account the benefits he received. They are set out in the report of Oolong House and his psychologist's report.
2. When I come to formulate an appropriate sentence, I will give him some credit for the quasi-custodial nature of that facility. In other words, I reduce his sentence. I cannot put an exact figure on it because I have to juggle a number of matters when I backdate and fix a starting date for his sentence. Effectively half of the time in Oolong will be credited in reduction of his sentence.

Start date

1. An issue arose about the appropriate start date. This could be from today, 13 August 2023, or any date earlier than that, going back to when he was first arrested in May 2021. I have to structure the sentence to allow some accumulation between the two offences for sentence, and the Local Court matters. I must, as I have indicated, take into account quasi-custody.

Parity

1. Alcock is the first of the robbers for formal sentence. The co‑offender who gave evidence will be sentenced tomorrow morning. I have however already sentenced Mr Munn and Mr Gee. Those sentences are a measure of the seriousness of how I regard the proceeds offence. They both received sentences after pleas of guilty of 2 years and 7 months imprisonment. Each had criminal records.

Alcock's subjective case

1. Alcock's case is informed by the sentence assessment report, a report from Oolong House and a report from Ms North, psychologist, who was cross‑examined during earlier proceedings.
2. Alcock did not give evidence. It is accepted by the Crown that his background, as set out in the reports, is uncontroversial. Other matters obviously were the subject of dispute.
3. He was born in 1993. His background requires careful consideration. It is one important reason why his moral culpability, an important factor on sentencing, should not be measured in the same way as someone whose earlier life was not marred by a series of interrelated incidents. They all had a traumatic effect upon him. I will not detail them, but they are set out in the reports, which were accepted as uncontroversial. In summary: 1. He had an impoverished social background. 2. His father was in and out of gaol; a history Alcock has repeated, sadly. 3. He took up the use and abuse of illicit drugs when too young to make rational choices. 4. He has been impacted upon by multiple traumas. He was a victim of child sexual assault. He was a victim of domestic violence against him in his home. On two occasions, he was the victim of gaol violence; serious stabbings. Throughout his young life he has been impacted upon by the deaths of others. The impact of all these traumas must be taken into account. 5. He has also in addition to those matters been exposed to other violence many times during his life including while in custody. 6. Ms North's report details what she describes as complex mental health issues many of which are interrelated. She puts forward a diagnosis of Adult Deficit Hyperactivity Disorder, Bipolar or Schizophrenic Disorder and Substance Abuse Disorder. 7. He has a number of physical ailments or possible genetic ailments for which he needs assistance, given his father died young and his mother has some underlying problems.
4. Both the sentence assessment report and Ms North's report indicate he has some insight. Through them he has expressed regret for his offending behaviour and its impact upon himself and his family. But some of those self-reports are contradicted by his gaol calls; which he made, despite the fact that he knew that they were being recorded. In those calls he expressed what Mr Stewart called "bravado" or "gaol talk". This is he talked himself up, made threats to his co‑offenders' wellbeing in an oblique way and tried to paint himself to others as some sort of gaol gangster who did not care about the fact he was being kept apart from his family.
5. Ms Stewart said "bravado," Madam Crown said "not genuinely committed to rehabilitation, rather that he was committed to gaol life and continued crime." The calls were more nuanced when he was speaking with his partner. He also spoke to Ms North, a trained professional and also a trained author of the Community Corrections Sentence Assessment Report. It is hard to believe he was really expressing those views when I look at all the material before me.
6. I cannot resolve that dispute. Both attitudes can coexist concurrently even though they are diametrically opposed. To survive in gaol, particularly if you have been violently assaulted on two occasions, you have to project as tough as you possibly can be. At the same time people are vulnerable in gaol and they have to plan for their future.
7. When I come to review all of the material before me there seem two stark possibilities for Alcock's future. The first, option A - he continues his current trajectory and becomes institutionalised. That means, in simple terms, that he spends the rest of his life moving in and out of gaol, and that he will probably die in gaol or shortly after release. He could end up, sadly just like his father, unable to care for his children, unable to care for his partner, and gaoled because he commits further offences against the community as he has done many times before.
8. The second pathway Option B - is that as he matures, and he is still very immature in his behaviour no matter how old he thinks he is. This path means he must take the help that will be available to him, and that he resolves to be a property provider for his family. He must utilise the additional time he must spend in gaol to better himself in terms of certificates, courses, and treatment.
9. Community protection requires that he be removed from the community, and there must be just retribution for the crime he committed. But ultimately, all sentences are about community protection, and the ultimate aim of any sentencing exercise requires that prisoners not reoffend on release. That requires that all efforts be made to support him if he chooses option B; maturity and work for the future.
10. There are some positive signs. He did okay at Oolong House. He is on the buprenorphine maintenance program. He has been able to work in the community and for periods he has been able to abstain from use of illicit drugs. He still has family support, and he still has a supportive partner.
11. A treatment plan is available and is set out in Ms North's report at para 34. A copy of Ms North's report will accompany the warrant.
12. She indicates that a treatment plan should start in gaol and continue when he is on parole. 1. It will involve him consulting with a psychiatrist for a proper diagnosis of his underlying conditions and result in him receiving appropriate medication; 2. Secondly, she believes he should see a psychologist with skills helping him with regulation of his own mental health and impulse control; 3. Thirdly, she indicates he needs substance abuse treatment; 4. Fourthly, he must continue with his Buvidal maintenance treatment; and 5. Fifth, he needs medical assessment for potential underlying ill health and other conditions.
13. All of those matters require a finding of special circumstances to allow him, if he earns it, more time on parole in the community. It is not for me to determine if he is to be released, but clearly if the trajectory he is presently on is to be reversed he will need supervision, monitoring and all necessary assistance to avoid him reoffending.
14. There must also be some adjustment of the parole period because I will be accumulating this sentence on a portion of the sentences served from the Local Court matters. There must be some individual punishment for those other matters.

Submissions

1. I received extensive written and oral submissions from Ms Keay, Deputy Senior Crown Prosecutor, and Mr Stewart. They have informed this judgment.
2. I was taken to a number of authorities particularly R v Henry: also Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Millwood v The Queen [2012] NSWCCA 2; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and R v Goundar [2001] NSWCCA 198. They were discussed and have informed my synthesising of all of relevant matters this judgment.
3. The consistent application of principle is required. The guidance offered by appellate courts and other decisions is always welcome. However, each case and each offender are individual. Sentencing involves discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, at [47]; Hili v The Queen (2010) 242 CLR 520.

Synthesis

1. The mitigating circumstances will be given full weight, despite repeated offending. But here a grave offence was committed against two members of our community. Offences such as this cause grave disquiet in the community. The offenders, and others minded to commit crimes such as this, must understand the consequences. Violent home invasions cannot be tolerated. It has to be understood that when offenders seek substantial reward that they face substantial risks, including removal from the community, removal from their families for a period. It has to be understood that any potential reward is simply not worth the time in custody.
2. As I have indicated, Alcock will get the full benefit of his guilty plea, including for its utilitarian value. There must be some modest accumulation. I have taken into account the matter on the Form 1, and I have made a finding of special circumstances. In all the circumstances, as I indicated, I will date the sentence from 11 May 2022, that is a year after he went into custody.

Orders

1. There will be an aggregate sentence. I will indicate the individual sentences: 1. For the s 112(3) offence there will be a sentence of 6 years and 9 months, non-parole period 4 years, 2 months. That matter takes into account the Form 1. 2. For the flick knife matter there will be a sentence of 9 months.
2. There will be an aggregate sentence of 7 years imprisonment. The non‑parole period will be 4 years and 3 months. The sentence will start on 11 May 2022. Alcock will be eligible for consideration for release to parole on 10 August 2026. There will be a parole period of 2 years and 9 months reflecting my finding of special circumstances. The parole will commence on 11 August 2026 and expire on 10 May 2029.
3. To recap - this sentence starts on 11 May 2022 and 10 August 2026 is the first possible release date. I note that you are then 'eligible' for consideration. It will be up to the State Parole Authority to determine whether in the interests of community safety you are to be released. There will be a parole period of 2 years, 9 months from that date. Total sentence will expire 10 May 2029.

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: 18 August 2023