R v AMBLER

District Court of NSW|2022-12-08

Judgment

The offender appeared before a Magistrate at the Local Court at Wagga Wagga on 28 September 2022 and pleaded guilty to one charge, namely: That he on 25 March 2022 in Wagga Wagga in the State of New South Wales being armed with an offensive weapon, namely an object resembling a firearm, robbed Belinda Simpkin of $120 the property of Coles Express Service Station.
The plea of guilty was adhered to at the sentence hearing at the Wagga Wagga District Court on 8 December 2022 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. There is another matter which entitles the offender to a further numerical discount which I will address later in these remarks.
In addition to the one substantive charge the offender asks that in sentencing in respect of the charge of Armed Robbery I take into account one matter on a Form 1 document, namely a charge of Possess Knife in a Public Place, contrary to s 11C(1) of the Summary Offences Act 1988. I will need to apply the principles enunciated in the The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 in dealing with the Form 1 matter. However, in isolation the matter would ordinarily be dealt with by way of fine in the Local Court and accordingly will have very little impact on the sentence to be imposed.
The maximum penalty for the offence of Armed Robbery is 20 years imprisonment. No standard non-parole period has been specified but the court will need to assess the matter in the context of the Guideline Judgment in R v Henry & Ors (1999) 46 NSWLR 346.
Ordinarily this is a matter that would have been dealt with by way of ex tempore remarks on sentence. However, there is considerable divergence in the attitude of the parties on a number of issues, principally Ms Mendes for the offender submits that the appropriate disposition would be a sentence to be served by way of Intensive Correction Order.

Facts

The facts are before the court by way of agreed facts, about which there was no issue taken at the sentence hearing.
The offender was born on 1 March 1999 and accordingly was 23 at the time of the offending. The victim was an employee of the Coles Express Service Station on Edward Street, Wagga Wagga, which is also the Sturt Highway, the major east-west thoroughfare through the city of Wagga Wagga.
The victim commenced work at midnight, taking over from another employee. The cash register had approximately $200 in it when she commenced her shift. At about 2.40am on 25 March 2022, the victim was stacking drinks into the fridges. She noticed a male, the offender standing outside the sliding entrance door. The victim thought she recognised the offender as a regular customer so she "buzzed" the offender into the store as the door did not automatically open at that time of the day. The offender was wearing a light coloured cream loose-fitting tracksuit pants with a dark coloured long sleeve hoodie. He was also wearing a black fitted beanie and wearing disposable mask with the blue coloured front. With the mask and the beanie the victim could only see a small gap showing the offender's eyes. He was Caucasian and thin build, around 5'7" or 5'8" and appeared to be mid-twenties. He was wearing gloves.
The offender entered the shop carrying a red and white Coles plastic bag. As he entered the store he lifted up the front of his jumper and the victim saw the handle and trigger of what looked like a handgun down the inside of the waist band of his pants. The offender said something to the effect of, "This is a robbery, I've got a gun, give me your money". He walked to the counter, indicated the shopping bag he was holding and said, "put the money there". The offender was calm and did not scream. The victim opened the till and grabbed some notes totalling about $120 and put them in the bag. She asked the offender if he wanted the coins to which he declined. The facts then recite that the victim was in the store for less than 27 seconds.
As soon as the offender left the store the victim immediately pressed the duress button and called triple-0. The incident was caught on CCTV. The victim was unaware whether the gun was a toy or a real or replica firearm. The facts recite that it cannot be established beyond reasonable doubt that the gun was either a firearm or an imitation firearm.
At about 11.45 pm on 25 March 2022 police were speaking to the offender regarding an unrelated issue. They drove him to Romano's Hotel where he was staying. The offender told police he had a knife down the front of his pants. The knife was taken by police. The knife was 33cm in length with a blade of 20 cm. It is this matter that is on the Form 1 document.
Around 1.12 am on 26 March 2022 the offender went to the police station. Police were concerned about the offender's mental health and called an ambulance. The offender said to police, "I've got to admit something to you. I am handing myself in". When asked what for the offender replied, "Armed Robbery". The officer asked, "last night?" and the offender replied, "Yes, I think so". The offender asked to speak to a lawyer. The offender told police the gun was a fake. The offender was placed under arrest and was cautioned but did not participate in a record of interview.
The facts recite, and I accept for the purpose of proceeding to sentence, that although police were aware of the commission of the armed robbery they were not aware of the identity of the perpetrator at the time the offender voluntarily confessed to police.

Assessment

It is submitted on behalf of the offender that the matter is "below" the "Henry Guideline". As much is accepted by the Crown, but with the caveat that "not significantly below the Guideline".
The offender is young and has a very limited criminal history. There was an implement used that the offender intended the victim to perceive was a handgun. The fact that it was in fact a toy is of no comfort to the victim. There was a limited degree of planning. There was no actual violence, and the threat was limited to the offender saying, "I've got a gun". The victim was in a vulnerable position and the amount of money taken was small. There was an early plea of guilty.
Those factors taken by themselves indicate that the Crown's submission is correct, that is that the matter is not "significantly below" an offence contemplated by the Guideline Judgment.
However, to be factored into the issue of the assessment of the seriousness of the matter is the issue of a mental illness under which the offender was suffering at the time of the offending and in respect of which there is psychiatric opinion to the effect that there was a causal connection between the mental illness and the offending. I will deal with the report of Dr Calvin, (exhibit 1 on sentence) in more detail when dealing with the subjective case. However, for the purposes of assessing the seriousness of the matter the following appears at paragraphs 11, 12 and 13 of the report (p. 8): "Mr Ambler has significant vulnerabilities that have led to dysfunctional behaviours. Adverse childhood experiences have resulted in long term issues with mood instability, impulsivity and self-destructive patterns. He stopped taking his medication after supervision was lessened. The criminal conduct appears to be caused by a combination of circumstances including severe substance misuse, untreated mental illness, deteriorating social situation and anti social attitudes."
In Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
His Honour went on to say at [119]: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
In the absence of anything within the Guideline sentencing courts must proceed on the basis that the offender at the time of the offending did not suffer from either a mental illness or intellectual impairment. The presence of the mental illness in the matter presently under consideration operates in a number of way, one of which is to reduce the objective seriousness of the matter.
Once the mental illness is factored into the mix, I am of the opinion that the seriousness of the matter under consideration is below what is contemplated by the "Henry Guideline" to a meaningful degree. If required to put the matter on the "usual" scale I assess the matter as being well below mid-range.
There is a line of authority going back at least to Engert v R (1995) 84 A Crim R 67 to the effect that mental illness can be a mitigating factor. In DPP (Cth) v De La Rosa (2010) NSWLR 1 at [177] McClellan CJ at CL sets out the principles where an offender suffers from a mental illness. Those principles include:

The moral culpability may be reduced;
The need to denounce the crime may be reduced with a reduction in the sentence;
The offender is in in appropriate vehicle for general deterrence;
Custody may be more onerous;
Reduce or eliminate specific or general deterrence;
Conversely because of a person's mental illness they present more of a danger to the community.

It is clear from the authorities that mental illness is able to be taken into account in determining the appropriate sentence for a matter in a number of ways. It seems therefore that to also take mental illness into account in determining the seriousness of the matter in accordance with Tepania as well as the ways set out by McClellan CJ at CL in De la Rosa is not double (or multiple) counting.

Criminal History

The offender has two matters on his record, namely convictions for Contravene Apprehended Violence Order and Stalk/Intimidate that were recorded at the Wagga Wagga Local Court on 14 August 2018. These matters arise out of the one incident which involved family members.
The offender should receive substantial credit for his lack of record.

Subjective Case

Ms Mendes read an affidavit sworn or affirmed by the offender. The Crown did not require the offender for cross-examination and accordingly, the evidence within the affidavit can be taken as unchallenged. The offender's father gave evidence. There is also the report of Dr Calvin, to which reference has already been made. I will go initially to the offender's affidavit.
At paragraphs 2 and 4 the offender says that he accepts responsibility for having committed the offence and that he is deeply sorry for his actions. He also accepts that the victim would have been very scared and that there may be long term effects on the victim. A little later in the affidavit the offender speaks of going to police to surrender himself and that he had been feeling awful about what he had done. Undoubtedly the offender is entitled to a finding that he is remorseful. Further, in this regard there is the voluntary admission to police.
The offender then goes on to say that at the time of the commission of the offence he had just broken up with his girlfriend, he was using ice (methamphetamine) and he had been "kicked out" of his parent's home as they could no longer cope with him taking drugs. This was expanded upon by the offender's father. He maintains that he was hearing voices. This is confirmed in Dr Calvin's report.
The offender has two older brothers. His father was in the Army for many years and now works in rehabilitation with injured soldiers. The offender's older brother was very aggressive when younger and was violent to others in the house including his parents. His older brother spent time in juvenile detention. The police would call to the house about his brother. The offender says in the affidavit that his brother's behaviour had a big impact on him and that he tried to follow his path.
As Ms Mendes submitted in oral submissions at the sentence hearing the issue of the violent behaviour of the offender's older brother enlivens at least to an extent the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. Whilst I accept that those principles are enlivened, they do not achieve the same weight as in other circumstances dealt with by this court particularly in western New South Wales.
The mental health issues suffered by the offender commenced when he was about 13. He experienced suicidal ideation when he was 15 and overdosed on drugs when 16. He engaged in self-harm. He was introduced to illicit substances when he was 14. He had his first psychiatric admission when he was 17 in 2016. He was diagnosed with schizophrenia in 2018 after another admission. He was admitted to the psychiatric unit at the Wagga Wagga Base Hospital from 1 March to 14 March 2022, i.e. about two weeks before the commission of the robbery.
The offender says that he now accepts that his mental illness will not go away and he has learnt that he can manage the illness if he does not take drugs. Before the offence the offender was prescribed a depot injection of Paliperidone every four weeks but he was not always compliant. He has been compliant in custody. The offender has been abstinent from substances while in custody. He has consulted a Dr Matthew Jones while in custody through whom the offender was able to be assigned a single cell.
After he left school the offender commenced but did not complete an apprenticeship. Just before the commission of the offence he was working for another brother. He wishes to return to the work force upon release and there is apparently work available for him with the brother for whom he was working before the offence.
This is the offender's first time in custody. He has witnessed much violence in custody. He was assaulted by other inmates when it was learnt that he had confessed to a robbery. He is now in SMAP or "Protection". About a week after being placed in SMAP he was not sleeping, was terrified and "felt so bad that I tried to cut my ear off". He nearly succeeded and was taken to hospital. This is confirmed by medical records.
The offender is working mowing lawns in custody and receives a nominal payment for that. He telephones his parents on a regular basis.
The offender is able to return to his parents' home. This was confirmed by the offender's father. He accepts that "this is my only chance at getting back on my two feet. I know I can't stuff up". He accepts he needs ongoing counselling for his mental health issues and substance issues. He wants to engage in that counselling. He undertakes to comply with directions from Community Corrections.
I now turn to the evidence of the offender's father. I observe that Mr Craig Ambler was a particularly impressive witness. There is simply no reason not to accept his evidence. Mr Ambler is aware of the facts, has read his son's affidavit and the report of Dr Calvin.
Craig Ambler works as an Exercise Physiologist and in particular in rehabilitating injured soldiers at 1 Recruit Training Battalion, Kapooka. He also works part time doing the same work at the Glenrock Medical Centre in Wagga Wagga. In one capacity or another he has been working for or contracted with the Department of Defence for 40 years.
The evidence continued concerning the offender being asked to leave the family home. The offender had been to the Calvary Rehabilitation Centre but stayed for only one day and returned home of the view that he did not need rehabilitation. Mr Ambler told his son that if he saw him using drugs he would ask him to leave the house. He caught his son smoking "ice" with a glass pipe and told him to leave.
During the eight and a half months the offender has been in custody he calls his parents several times per day. Mr Craig Ambler sees this as positive. He is of the opinion that being in custody has given his son insight into the mental illness that he suffers and further insight into how it affects his personality. He is aware that his son was assaulted while in custody and that his son is now in protective custody.
In answer to a question by me Mr Craig Ambler said that he has been to see his son once in custody. He finds it difficult to go to that environment. On the one occasion he did see his son they had a frank and honest conversation. For the first time his son hugged him.
Mr Craig Ambler said that he will welcome his son back into the family home. However, his son will need to be abstinent from alcohol and drugs. He accepts as does his son that a complex multi-disciplinary approach is required for the rehabilitation. His wife has attended the family doctor to initiate the offender's participation in the NDIS. So far as counselling is concerned Mr Ambler was clearly of the view that one on one counselling was more appropriate for his son, given the failure of group sessions in the past.
Further, Mr Ambler spoke of the issues with his eldest son and the violence when he was younger. His eldest son has now "turned himself around" and is successful with his own business and partner in Melbourne. His other son has his own business in Wagga Wagga and he too has been successful.
Again, in answer to questions by me, Mr Ambler said that he would inform Community Corrections if he found his son using illicit substances. In this instance I accept that this would indeed be the case.
Under cross-examination by the Crown Mr Ambler said he was aware that his son while in the community had been non-compliant with Community Treatment Orders. He accepted that his son has been compliant with prescribed medication while in custody. The domestic violence matters on the offender's record relate to an incident with the offender's parents.
Upon his release the offender has the opportunity to return to a stable, nurturing and supporting environment in the family home. Clearly, the offender's parents can do no more than what they have already done. The offender clearly enjoys the support of his parents and it would seem the rest of his family. This speaks well for the offender's long term rehabilitation.
I go now to the report of Dr Calvin. I have already set out when dealing with the seriousness of the matter some aspects of that report. The doctor set out that the offender maintained that his psychosis was under control and although he occasionally experienced paranoid thoughts his mental state had improved since he began taking a depot anti-psychotic. I note Dr Calvin consulted the discharge summaries prepared in respect of the offender's admission to the psychiatric unit at the Wagga Wagga Base Hospital.
At p 7 of the report Dr Calvin sets out that the offender has a complex psychiatric history with problems suggestive of early developmental pathology, multiple substance addictions and a psychotic illness. The doctor opines that the offender suffers from schizophrenia. He observed that initially that was attributed to substances but it seems that the issue is most likely underlying schizophrenia rather than a drug induced psychosis.
Further, there is a long history of alcohol and drug addiction. The offender meets the criteria for Stimulant Use Disorder. There is also a clear history of developmental pathology with features of Attention Deficit Hyperactivity Disorder. Given the history of self-destructive behaviours, intense anger, low self-esteem, chronic low mood and feelings of emptiness, identity disturbances with persistently unstable self-image, impulsive behaviours and relationship dysfunction point to a personality disorder, but that diagnosis should be confirmed in therapy (see p 7 report).
So far as the risk of re-offending is concerned Dr Calvin points to several static risk factors for future violence which put his at risk for future violence. However, the doctor goes on to say that fortunately there are fewer dynamic factors in that the psychosis is in remission, he has responded well to treatment and his insight has improved.
Dr Calvin also maintains that it is essential that there are adequate professional plans in place including stable accommodation, ensuring personal support and he is reconnected with mental health and alcohol and drug services. Those interventions, the doctor maintains, will mitigate the risks.
A number of recommendations are made. The offender will require long term psychiatric care to address his substance additional and mental health challenges, he must engage with community mental health services and he should engage in drug and alcohol counselling. The work his parents have done means that those issues have been attended to as best as they can at this point in time.
A finding as to the likelihood of re-offending is a predictive finding that can only be made on the material available. In this regard I am reminded of the words of Deane J in Jago v District Court (1989) 168 CLR 23 at 57 where in discussing the concept of fair trial his Honour said, "Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment." In particular, I refer to the words "…undesirably, but unavoidably, large content of essentially intuitive judgment".
The offender has family support. That family support includes making all of necessary inquiries so far as the relevant agencies are concerned. The offender on the material available has developed insight into both the mental health and substance abuse issues. The criminal history is very limited. The offender has expressed a desire to undertake further rehabilitation. In all of the circumstances, doing the best I can on the available evidence, I am prepared to make a finding on balance that the offender is unlikely to re-offend.
A finding as to prospects of rehabilitation is also a predictive finding. Essentially for the reasons as to the finding as to the likelihood of re-offending I am prepared with a minor hesitation to find that the offender has good prospects of rehabilitation. The hesitation is that it all depends on the offender appropriate engaging upon his release.

Assistance

I now go to the other matter that entitles the offender to a further numerical discount, i.e. assistance. The authorities were aware of the commission of the robbery but there was nothing to suggest that this offender was responsible for the robbery until he voluntarily went to the police and confessed. Ms Mendes maintains relying on the authority of McKinley v R [2022] NSWCCA 14 that the offender is entitled to a combined discount of 55%. I understood the Crown to submit in oral submissions that the combined discount would be less than that submitted by counsel for the offender.
Since the decision in Panetta v R [2016] NSWCCA 85 assistance in the form of voluntary disclosure of guilt leading to consideration in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603 is required to be numerically quantified. See also the decision of R v AA [2017] NSWCCA 84.
Section 23 of the Crimes (Sentencing Procedure) Act 1999 provides: "(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. (5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."
Counsel for the offender submits relying on the authority of McKinley v R [2022] NSWCCA 14 that the appropriate combined discount for the plea of guilty and the "Ellis" type assistance is 55%. I understood the Crown to submit that the combined discount should be no more than 50% but in any event the court needed to remain aware of s 23(3) of the Sentencing Act and not impose a sentence that was unreasonably disproportionate noting the offending and the "Henry Guideline". I have already noted the Crown's submission that although this matter is below the Henry Guideline, it is not significantly below the guideline.
During the course of the sentence hearing, noting the rather unusual aspects of the case, I indicated to the parties my preliminary view of the appropriate starting point, namely 3 years 9 months. The Crown indicated within the limitations of R v Barbaro & Zirrili [2014] HCA 2 that given the offending and the Henry Guideline that indicated starting point was inadequate. I understood the Crown to submit, although not put directly in those words that such a starting point would be manifestly inadequate. I accept the Crown was doing its best to ensure I did not fall into appellable error.
I accept that in other circumstances the Crown's submission would have real merit. However,r I have found on the material that there is a causal connection between the offender's mental illness and the offending. Indeed, on the report of Dr Calvin such a finding was bordering on the inevitable. I am aware of the decisions of Aslan v R [2014] NSWCCA 114 and Ngati v R [2018] NSWCCA 32, which are to the effect that such a finding does not always lead to a reduction in sentence. This is why I went through the exercise earlier in these reasons in dealing with the impact that mental illness can have in multiple aspects of a sentencing exercise. Given the decision in Tepania to which I have referred, the mental illness impacts on the finding as to objective seriousness. But for the issue of the mental illness and the causal connection between the mental illness and the offending I would uphold the Crown's submission that the matter presently under consideration is not significantly below the "Henry Guideline".
In all of the circumstances I maintain that the starting point indicated in the course of the sentence hearing is appropriate. When the discount for the plea of guilty and the "Ellis" consideration is deducted from that point the difference between the 55% submitted by counsel for the offender and 50% (as I understood the submission, this would be the upper end of the range of the appropriate discount) the difference is measured in a few weeks.
Ultimately, although at first appearances the 55% combined discount as submitted by counsel for the offender might appear to be very generous, that is precisely the discount allowed by the Court of Criminal Appeal in McKinley. That is the discount I allow for assistance.

Submissions

The primary submission by Ms Mendes, counsel for the offender, is that given the ultimate sentence would be two years or less noting the very strong subjective case and in particular the mental illness it would be appropriate to order that any sentence be served by way of Intensive Correction Order. It was submitted that the matter has some extraordinary features and the evidence if Mr Craig Ambler was compelling. I have already dealt with the evidence of the offender's father.
The Crown maintained that given the nature of the offending only a sentence of full time imprisonment would be appropriate.
Section 66 of the Crimes (Sentencing Procedure) Act provides: "66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant."
There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these remarks) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court - see [2020] HCASL 12 and [2020] HCASL 56 respectively - with both applications separately being dealt with "on the papers" with Gordon and Edelman JJ concluding in Fangaloka that "…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…". In Karout Gordon and Edelman JJ concluded that "…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave".
The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout.
Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]: "The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration."
Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]: "Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed."
Her Honour went on to say at [94]: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
Since that decision was handed down there have been the decisions of Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCCA 294 and Thurlow v R [2022] NSWCCA 20. The effect of Quinn is that Wany v DPP has been disapproved. Bellew J (Johnson & Davies JJ agreeing) in Thurlow said at [32]-[33]: "The sentencing judge concluded, having regard to (inter alia) the purposes of sentencing in s 3A of the Sentencing Act, the objective seriousness of the offending, and what was described as a "serious assault on the justice system", that the applicant should serve a period of full-time custody, and that no other sentence (including an ICO) was appropriate. So much is clear from the penultimate paragraph of her Honour's reasons set out at [21] above. [33] Once her Honour reached that conclusion, any consideration of s 66(1) and (2) of the Sentencing Act became entirely unnecessary. So much is clear from the judgment of Simpson AJA (with whom Johnson J agreed) in Quinn v Commonwealth Director of Public Prosecutions where her Honour said the following: '[186] The flaw in the applicant's argument is that it assumes, wrongly, that the criteria stated in sub ss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the sub ss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, sub ss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them. [187] In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is "deciding whether to make an intensive correction order". Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.'"
Subsections (1) and (2) of s 66 of the Sentencing Act are neutral in the matter presently under consideration. That leads to subsection (3) and general sentencing principles. Despite my findings, from which I do not resile, that the matter presently under consideration is below the Henry Guideline and is well below mid-range, the matter nevertheless involves an armed robbery at a service station in the early hours of the morning. As such, the matter in my opinion is too serious to be dealt with by Intensive Correction Order.
Further, following the decision of Mandranis v R (2021) 298 A Crim R 260; [2021] NSWCCA 97 the period of time the offender has spent in custody bail refused must be deducted from the sentence once determined after allowing the combined discount. One of the many differences between Intensive Correction Orders and Suspended Sentences pursuant to what was s 12 of the Sentencing Act was that the court dealt with breaches of the suspended sentences whereas the Parole Board deals with breaches of ICOs.
Another difference is that with suspended sentences there was at least one authority namely Pullitano v R [2010] NSWCCA 85 for the proposition that a sentencing court when passing sentence and ordering that it be suspended could take into account as a reason for suspending a sentence the fact that the offender had spent time in custody, without deducting the time spent in custody from the sentence.
Apart from the offending conduct being too serious in this matter, the end result of the sentence to be served why way of ICO would be totally distort the sentence.
It was accepted by counsel for the offender that there must be a sentence of imprisonment imposed in this matter, which is why I was able to deal with this aspect of the submissions at this point in the reasons rather than after determining the appropriate sentence.
The secondary submission or "fall back position" as it was put in submissions was that the court release the offender immediately on parole. That submission has much greater appeal than counsel's primary submission. Ms Mendes submitted that there is a difference between being supervised on parole and being supervised on an Intensive Correction Order. With respect, the practical difference escapes me with perhaps the exception that any breach of parole is more likely to lead to breach action by the Parole Board.
I understood Ms Mendes to submit that the offender should receive some consideration for his youth. The offender is now 23 and although young is getting to the age where youth is not a great consideration. In any event, the fact that he is a young offender is one of the factors taken into account in considering the "Henry Guideline" and determining the seriousness of the matter.
The Covid-19 pandemic continues to impact the community but the impact on the prison population is significant. Lockdowns are more frequent and of longer duration, face-to-face visits are all but eliminated and prisoners have to isolate when moved from one correctional centre to another. All of this means that custody is more onerous and goes to the issue of special circumstances.
Another aspect that makes the custody more onerous for the offender is that he is now in protective custody after having been assaulted in custody because of the issue of assistance and his voluntary disclosure of his guilt. The offender has seriously self-harmed while in custody. Tendered at the sentence hearing were Justice Health Records establishing that the offender was admitted to hospital after severely lacerating and nearly severing an ear.
I have dealt with a number of submissions made by the Crown already in dealing with aspects of the matter. The seriousness of the conduct involved in an armed robbery was appropriately emphasised by the Crown. In particular in this matter the Crown reminded the court that the victim was working as a service station attendant at shortly after 2am and that the offender was armed with an object that was intended to have the victim think was a real firearm. Further, the Crown put that implicit in the offender showing the victim the object that he had was a real threat.
The issue of assistance has been dealt with but for more abundant caution I note the Crown's submission that the combined discount of 55% would result in a sentence that was disproportionate to the offending.
It was put by the Crown that it is simply too early to make a prediction that there are good prospects of rehabilitation. The submission continued that the prospects are contingent on the offender being compliant with medication and engaging with the appropriate agencies. The Crown cannot be criticised for making that submission given the history of non-compliance by the offender with medication. However, as I indicated earlier the finding is predictive based on the material to hand at the time of the decision.
Further, it was put by the Crown that other factors that go to full time custody being more appropriate than an ICO is that the offender has been compliant with medication while in custody. I understood the submission to be that upon release the offender will have the same opportunities that he had just before he committed the offence. While that is a valid submission the fact remains that the offender has spent the better part of 9 months in actual custody where he has been assaulted. One would hope that that period in actual custody has been a salutary lesson for the offender. On the evidence of the offender's father, it seems as though it has.

General Remarks

In passing sentence I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. To ensure that the offender is adequately punished for the offence, 2. To prevent crime by deterring the offender and other persons from committing similar offences 3. To protect the community from the offender 4. To promote the rehabilitation of the offender 5. The make the offender accountable for his actions 6. To denounce the conduct of the offender; and 7. To recognise the harm done to the victim of the crime and the community
As has been observed many times there is a very real tension between the competing purposes of punishment and many of the factors pull in different directions. This tension is generally always more pronounced where the offender suffers from a mental illness.
Section 5(1) of the Sentencing Act provides in effect that a court should not impose a sentence of imprisonment unless it first comes to the conclusion that no other sentence is appropriate. Given the nature of the offending, the maximum penalty and the "Henry" Guideline, clearly there must be a sentence of custody imposed in this matter. Counsel for the offender accepted as much. The primary submission of counsel for the offender was that any sentence be served by way of Intensive Correction Order.
Having made the determination that there must be a sentence of imprisonment the next issue is the length of that sentence. In all the circumstances in this case the appropriate starting point is 3 years 9 months with a 55% combined discount for plea of guilty and assistance, producing a total sentence in round figures of 1 year 10 months. For reasons already given, that sentence must be by way of full time imprisonment.
However, in this matter noting the mental health issues, the age of the offender, what has been put in place so far as his long term rehabilitation is concerned, the issues that go to making custody more onerous and that this is his first time in custody, there should be a very generous finding of special circumstances. In fact, the ratio will be less and 50:50. In arriving at this conclusion I am very much aware of what was said by RS Hulme J in R v Boney [2008] NSWCCA 313 at 49 about reducing the ratio to even 50:50 would usually inspire inspection. However, in this case that reduction in the ratio for the reasons given is in my opinion, justified.
I will date the sentence from the date of the offence given the practical issues for release at this time of the year. Supervision particularly as to compliance with medication will need to be put in place before the offender is released.

Orders

In respect of the matter to which the offender has pleaded guilty he is convicted.
Taking into account the matter on the Form 1 document the offender is sentenced to a non-parole period of 9 months to date from 24 March 2022 which will expire on 23 December 2022. There after there will be a period on parole of 13 months to commence on 24 December 2022 and which will expire on 23 January 2024.
The offender is to be released to statutory parole at the expiration of the non-parole period.
I recommend in the strongest of terms that any parole be conditioned that the offender accept the supervision of the Department of Community Corrections and further that he obey all reasonable directions of officers of that Department relating to ongoing treatment and counselling, including medication, for mental health issues.
I direct a copy of the report of Dr Calvin, exhibit 1 on sentence be forwarded to the Department of Community Corrections.

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: 14 April 2023

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