R v Artiel

Objective Seriousness

1. The Defence drew some attention to the fact that, although a knife was used, no explicit attempts were made to stab, cut or harm the victim, and the knife was simply produced and not directed aggressively nor held out to the victim. Whilst it acknowledged the seriousness of the fact that a knife was used as an offensive weapon, in this instance there was no surrounding violence. Although there was a threat of violence, this was not accompanied by explicit threatening words or actual physical violence. It conceded that there was planning to a limited degree, in that the Offender was armed with a knife prior to the commission of the offence, but otherwise it was argued that this was a brazen, opportunistic and desperate character of offence. It conceded the victim's vulnerability, and submitted that when all factors relevant to the offending were considered, the offending fell below the mid-range of objective seriousness for offences of this type. The Defence further submitted that I could not be satisfied that the relevant phone calls to the Metro station prior to the robbery were made by the Offender.
2. The Crown acknowledged that the Court could not be satisfied that the calls to the Metro station prior to the robbery were made by the Offender. Nevertheless, it noted that the Offender was wearing a hooded jacket, wore a glove on his right hand, carried a plastic bag on his left arm, and approached the counter drawing the knife from the front of his pants using his right hand, then transferred it to his left hand and held the knife in front of himself between him and the victim with the blade pointing at the victim, demanding the property in question. Overall the Crown accepted that there was limited planning involved.
3. The Offender for his part gave evidence before me. He stated that in 2016 he resided in Carlton with his mother and two brothers, and a conflict at the home between his brother and his mother, resulted in a deteriorated relationship including physical fights. He stated that when he was aged 16 in 2018, he left home and went to the Exodus Foundation where they provided him with a place to stay, and he got a job as a labourer. Thereafter, he went to Roselands, where he rented a home with other parties, the rental for which he which he contributed to with the income he received. He stated that this went on for approximately one and a half years until the start of 2019.
4. In early 2019, he said he was working and living at Bexley, which was a share house. In March 2019 he ceased work. At that time, he was using marijuana and Xanax. Cannabis was consumed every few days, and Xanax was consumed every week or so. He stated that at the beginning of 2019, he was hanging around the wrong people who were a new circle of friends, and he started to use illicit substances more frequently. In around May 2019, he was using marijuana every day and Xanax was increased to every few days. He found it hard to find another job, but as he had some money saved up he did not stress. He survived on the basis of his savings and his Centrelink benefits.
5. He came to be charged on 13 April 2019 with another aggravated robbery. On 20 April 2019, he stated that he was living at Bexley when he was informed by police that he could not stay at this address anymore. At that time he was on bail and on a curfew. He had no address to stay at. He was living off his savings and Centrelink benefits. He stated that at the time of the armed robbery (the subject of the matter before this court) he was living out of his car. He stated he had nowhere else to go, found it hard to obtain a place to stay whilst he was on bail, and did not feel he could return home. He stated that the property that was used in the armed robbery, including the knife, were items which he had in his possession from the time he had left the house at Bexley.
6. Upon cross-examination, he stated that at the time of the robbery he was under the influence of Xanax, and consumed a lot more than usual and was not in a good state of mind. He stated that he was upset, running low on cash and was getting frustrated and described himself as having a snap moment. He reiterated that he did not feel that he could return home at that time.
7. In the Defence case, a report was submitted by Dr George Liangas, Child and Adolescent Psychiatrist, dated 14 January 2020. In that report, Dr Liangas refers to the fact that the Offender's development was shaped by parental alienation. His father had suddenly and without warning left the family and travelled overseas, with very little subsequent trace as to his whereabouts. The Offender's mother needed to bring up her three sons, leaving an effect on the emotional wellbeing of the remaining family, and this being a "likely predisposing factor" to the Offender's more recent difficulties. [1]
8. He noted that the Offender's brother has diagnoses of Attention-Deficit/Hyperactivity Disorder, Social Anxiety Disorder and Body Dysmorphic Disorder. As a teenager, he also attracted a diagnosis of Oppositional Defiant Disorder. He noted he has had a history of verbal, and at times, physical aggression, and that the Offender chose to manage this by leaving the house entirely, choosing to be homeless rather than to be at home and exposed to the conflict.
9. He later stated that whilst he was living away from home, the Offender was exposed to trauma, being violence on the street, which gave rise to his Post-Traumatic Stress Disorder. He noted that while he initially assessed the Offender, he complained of frequent flashbacks of traumatic things, including violence episodes, which he witnessed when homeless. He noted he had nightmares of someone getting sliced/stabbed with a knife. When homeless, he began to abuse prescription medications, especially Xanax and Seroquel, and also Cannabis. When assessed, he noted that the Offender's sleep was poor and required assistance with improving his sleep hygiene, and that he was on medication, desvenlafaxine, an antidepressant that can treat anxiety.
10. Dr Liangas ultimately found that paternal alienation, the Offender's brother's mental health difficulties and subsequent home environment unrest, as well as the Offender's own mental health difficulties contributed to him committing the crime he was charged with. He stated that the Offender's stress overwhelmed his coping abilities, and this in turn affected his judgment, in that he associated with deviant peers that further affected his judgment. This was said to have contributed to the offending behaviour and his impaired ability to appreciate the seriousness and consequences of his actions.
11. I accept that in the circumstances, the offending showed limited planning with the items used being retrieved from the car out of which the Offender was living at the time. I accept the submission of the parties that the call made prior to the robbery could not be attributed to the Offender. I accept the Defence description of it as brazen, opportunistic and desperate arising in the circumstances. Whilst a knife was used it was not accompanied by explicit threatening words or actual physical violence although it was clearly exhibited in the robbery.
12. I have borne in mind the difficult circumstances of the Offender's upbringing outlined in the evidence including the Offender's abandonment by his father, the conflict which arose at home as a consequence of his brother's mental health issues, his leaving home at an early age and subsequent experiences of homelessness and isolation which led him to be associated with a criminal milieu. I accept that these factors compromised the Offender's capacity to mature and learn from experience and amounted to social disadvantage my view do engage the principles in R v Bugmy. [2]
13. I am also satisfied on the evidence of Dr Liangas and Mr Spiers that the Offender's circumstances as outlined in their respective reports including associated anxiety, affected the Offender's judgment, and reduced his moral culpability in relation to the offending in question.
14. No submission was advanced that the offender's drug use was a mitigating factor in the circumstances.
15. Overall I am satisfied that the offending fell below the mid-range of objective seriousness for offending of this kind.

The plea of guilty

1. The offender pleaded guilty at the earliest opportunity, and it was accepted that he is entitled to a 25% discount. [3]

Offender's criminal history

1. At the time of the offending, the Offender had one conviction recorded on his record being that of driving a vehicle while license was suspended which was dealt with under s 10A of the 1999 Act. In the circumstances I am satisfied that the Offender does not have a significant record of previous convictions. [4]
2. The Offender was, however, on bail for an offence ultimately dealt with in the Children's Court of aggravated robbery. The Defence accepted that this was an aggravating factor on sentence. [5]

Remorse

1. The Offender stated in evidence before me that he had made a big mistake, admitted that what he did was wrong, and apologised to his victim. He stated that he would like to do so personally, and repay the money. He stated it was definitely the wrong thing to do. The Offender was not cross-examined on this evidence.
2. Father Michael Fanous from St Mark's Coptic Church in Arncliffe also gave evidence. He stated that he had known the Offender for some 3 years, and the Offender was spending time with him since the offence in question. He stated that he asked the Offender if he was sorry for what he did; the Offender reiterated that he had made a mistake, and was looking forward to going on to a good life. The Offender's mother, with whom he currently resides, also noted that the Offender was regretful for his mistakes, has taken responsibility for those mistakes and was determined to make a change.
3. Since having all of these structures in place, the Offender's insight into his offending behaviour has improved. Dr Liangas noted that the Offender has recognised the gravity of his actions and shows genuine remorse.
4. In all the circumstances, I am satisfied that remorse has been established within the terms of s 21A(3)(i) of the 1999 Act.

Prospects of rehabilitation and likelihood of reoffending

1. Since the offence in question, the Offender has returned to reside with his family. Dr Liangas notes in his report that since returning home, the Offender has made important changes in his life. He is a lot more engaging and connected in family life. His brother's condition is under much better control, which means that the home environment is significantly more stable. The Offender is attending psychiatric and psychological appointments, and his own psychiatric morbidity is under much better control. His mother is a health professional who has shown strong commitment to support the Offender in his rehabilitation, and to assist with the management of any difficulties that he may encounter. The Offender is receiving appropriate mentoring through his church, and is also doing community service through his church. He is complying in all aspects of this management plan. He has cut himself off from his deviant peers. He denies abusing illicit or prescription drugs.
2. Since returning home, the Offender has completed a Diploma in Real Estate at TAFE and has just accepted a university offer from the Australian Catholic University to study business management, commencing classes in February 2020.
3. The fact that the Offender has completed TAFE studies in Real Estate is acknowledged in Exhibit 2. It is also acknowledged that he has obtained entry into the Australian Catholic University. [6] The Court also has before it drug test results from the 16 August 2019 to 13 September 2019, and 16 January 2020 which reveal that the Offender has not been taking illicit substances. [7]
4. The Offender's mother has provided a letter in which she has indicated that the changes that the Offender has made to his life following the offence in question. These are: [8] 1. Showing of remorse and regret for the choice he has made; 2. Disconnecting all relationships with bad peers; 3. Cancelling his old telephone number that was known by many circles prior to the offence; 4. Dealing with drug cravings, and seeking help for past drug exposure symptoms, including undertaking random and weekly drug tests; 5. Undertaking treatment with Dr George Liangas to target his PTSD; 6. Undertaking 14 sessions of cognitive behavioural therapy and drug and alcohol counselling with psychologists Ms Anne Antonios and Mr Troy Speirs. He will continue to be seen by the latter on a weekly or fortnightly basis for ongoing psychological treatment as recommended by Dr Liangas and Mr Speirs; 7. Completing a Certificate IV in Property Services (Real Estate) with a further Diploma in the field, fulfilling the criteria for eligibility to apply for a Real Estate Licence through the Department of Fair Trading; 8. Applying for a Bachelor of Business Administration at the Australian Catholic University, and successfully obtaining a place to commence his studies in February 2020 to study full time; 9. Shadowing the Parish Priest Father Michael Fanous, and undertaking community volunteering on two days a week under his guidance; 10. Complying with bail conditions, including curfew and reporting, noting that he was put through over 100 bail checks at the home address, with more frequent visits in the first few weeks of being granted bail. On occasions it was noted that police conducted up to three checks in one night, and random checks in the night or very early morning; 11. Quitting smoking and focusing on health and fitness to improve his overall emotional and mental health, and to better regulate his disturbed sleep that manifested during his PTSD traumatic episodes; 12. Actively looking a for a part-time or weekend job to support himself; and 13. Rebuilding his relationship with his brother.
5. The Offender's mother's friend, Dr Raina Sayegh, stated that she is familiar with the family and since 2012 resides in the St George area close to where the Offender now lives. She observed that the Offender has distanced himself from the wrong crowd he was associating with around the time of the offence, sought professional help and support to deal with drugs of addiction that he was introduced to before and filled his time with more positive influences such as committing to a church community. Ms Sayegh observed that the Offender has also shown a transformation and redirection of path in a relatively short period of time.
6. Father Fanous stated that he approached the Offender following his release on bail, and that the Offender was happy to attend church for liturgy. He stated that the Offender comes with him to various nursing home, hospital visits and pastoral visits which he undertakes. This has occurred roughly two days a week since May of last year. In that time he has noted that the Offender has stopped smoking, stopped drinking, and in particular, stopped using drugs. He said he has made it a priority to have the Offender associate with good persons, and a new social group has developed with 3-4 persons of 26-27 years of age, who have taken him under their wing, inviting him to lunches and dinners and other social events. He states that he has been shown a lot of love in this environment. He has referred to the fact that the Offender's transition has been remarkable, and that he is determined to finish his course and attend university. Father Fanous' evidence was unchallenged.
7. Mr Spiers psychologist has opined that the Offender would benefit from ongoing psychological treatment with the support of his family in the short to medium term. He outlined this as: 1. Skill development for anxiety-related symptom management in the context of a provisional diagnosis of Post-Traumatic Stress Disorder; 2. Emotional and interpersonal skill development to support adaptive behaviours and responses to family strain and escalation of this strain in its various forms; 3. Family counselling to promote shared responsibilities for conflict resolution, adaptive behaviours and connectedness with his mother and siblings; and 4. Goal setting and problem solving skill development to strengthen the Offender's identity formation to include meaningful and productive ways of contributing to society and build a desired future.
8. Dr Liangos opined that the Offender's prospects of rehabilitation were good, especially when he feels connected to community and family. He noted that continuing structures and support will be key to reducing the risk of further offending behaviours. He recommended: 1. Continuing psychiatric review every two months. Continuing taking medications as prescribed by himself; 2. Continue psychological interventions with Mr Troy Spiers, Theraprist (eg every 2 weeks) to strengthen copping skills, avoid improper use of substances, treating anxiety symptoms and strengthening interpersonal skills; 3. Support through university studies; 4. Continue the mentoring and community programme through the Offender's church with Father Michael Fanous
9. The Sentence Assessment report records that the Offender is at Medium to Low Risk of reoffending. That assessment was not undertaken with the benefit of Father Fanous's input. I found him to be an impressive witness who was candid and recounted a remarkable journey that the Offender had undertaken.
10. Overall whilst I accept that the Offender is at low to medium risk of re-offending I regard his prospects of rehabilitation as good.

Sentence

1. On sentence, the Crown replied upon R v Henry, [9] where Spiegelman CJ stated in respect of offences under s 97(1): 162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history (ii) Weapon like a knife, capable of killing or inflicting serious injury (iii) Limited degree of planning (iv) Limited, if any, actual violence but a real threat thereof (v) Victim in a vulnerable position such as a shopkeeper or taxi driver (vi) Small amount taken (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. 164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). 165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court. [10]
2. The Crown submitted that the present offence falls within the R v Henry guidelines, and it was important to keep in mind the approach is one of instinctive synthesis and would be an error to add or subtract the range in R v Henry to distinguish some features without considering all of the factors together when using R v Henry as a guide or a check. [11] The Crown acknowledged one variation from the decision in R v Henry was the fact that the plea in the instant case involved a 25% discount, having been entered at the earliest opportunity.
3. The Defence accepted that having considered all other alternatives no other penalty than one of imprisonment was appropriate. However it contended that it was open to the Court to consider that the imprisonment be served by way of intensive correction in the community pursuant to s 7 of the 1999 Act. [12]
4. In determining the sentence in these circumstances I am satisfied that that having considered all other alternatives no other penalty other than imprisonment is appropriate in accordance with s 5(1) of the 1999 Act.
5. Having determined that the threshold in s 5(1) of the 1999 Act had been crossed the Court is next required to determine the length of the sentence without regard to how it is to be served. [13]
6. Implicit in the Defence submission is that it would be open to impose a sentence of less than two years.
7. The Defence drew attention to sentencing statistics [14] which showed that for offenders between 18 to 20 years of age, spanning for offending between January 2008 and 23 September 2018, that 69.9% of offenders received a prison term (full-time custody) and remainder did not. It drew attention to the fact that that statistics from 23 September 2018 to June 2019 showed that 59.1% received a prison term (full-time custody), 36.4% received an ICO, 2.3% received a Community Corrections Order and 2.3% received a Conditional Release Order with conviction. Those statistics did not distinguish between offenders charged with armed robbery and robbery in company.
8. The Defence also drew the Court's attention to the sentencing remarks from the District Court in R v Papuni, [15] and R v Gersbach [16] where the Court in both cases, for robbery in company, ordered the imposition of a custodial sentence to be served by way of Intensive Corrective Order.
9. The decision in R v Papuni involved a robbery in company offence where no weapon where was used and the Offender had served almost nine months in custody before the sentence. The Crown was noted not to have cavilled with a suggestion that a term of imprisonment by way of Intensive Correction Order and ultimately a term of 18 months was imposed. In my view that case is distinguishable from the present circumstance.
10. The decision in R v Gersbach involved a serious assault on an innocent victim leading to a loss of consciousness and robbery. The Offender was aged 18 and three months at the time of the offence and had been placed on a s 10 bond the day previous to the offending. His subjective case for rehabilitation was strong and there was a 15% utilitarian discount for the plea. The Offender had complied with strict bail conditions for two years prior to sentence said by the Court to amount to quasi custody. Ultimately the sentence was one of 20 months imprisonment to be served by way of Intensive Correction. The case however did not appear to discuss the guideline in R v Henry.
11. I am conscious of the guideline in R v Henry. In R v SDM, [17] the general applicability of the R v Henry guideline was held to extend to include juvenile offenders. However Wood CJ at CL (Giles JA agreeing) referenced Spigelman CJ's comments in R v Henry: [169] Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point. [170] In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s). [18]
12. The relevance of relative youth and subjective circumstances as mitigating factors has been reiterated in other cases. [19]
13. In Gardiner v R [20] the Court of Criminal Appeal in a somewhat analogous case resentenced the Offender to a term of 2 years and four months imprisonment. Simpson JA at [60] stated that: The applicant did have very significant mitigating factors. His somewhat disadvantaged childhood was one: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. More significantly, to my mind, is the very substantial effort he has made, and the progress achieved, towards rehabilitation. In my opinion that warrants a significant downward departure from the Henry guideline.
14. The offending Gardiner v R however is distinguishable as it involved more than one offender, each used a weapon and more planning was involved. The Offender was aged 20. Although the appeal in Gardiner v R was allowed by reference to a failure to (inter alia) account for a period of quasi custody this did not affect the length of the re-determined sentence but rather when it commenced.
15. The subjective case in the matter before me appears somewhat stronger than in Gardiner v R.
16. Overall I am satisfied that the Offender's young age, deprived upbringing, emotional immaturity at the time, remorse, early plea and remarkable rehabilitation including as to his drug use, as well as the circumstances of the offending, call for a significant departure from the R v Henry guideline.
17. In this case I have borne in mind that the Offender has served 5 days in custody. He has been subject to stringent bail conditions including reporting and curfews. It was not submitted that these amounted to quasi custody. Nevertheless it is something I have taken into account particularly as to his progress as to rehabilitation
18. Overall, but for the plea of guilty, I would have imposed a sentence of 2 years and six months imprisonment. In light of the plea I would impose a sentence of 22 months imprisonment.
19. The sentence being less than 2 years I am required to consider how it is to be served. In this case I consider that the case for rehabilitation and long term protection of the community are to be given relatively greater weight. In the circumstances in which the offending occurred, the case for general deterrence and denouncement are lessened. Punishment and accountability are matters to be addressed in the context of an overall proportionate sentence. I accept that the Offender has been largely specifically deterred. The sentence, however, needs to acknowledge the harm to the victim caused by the offending. I note that both parties have accepted that the victim was vulnerable; however, it was not submitted by the Crown that s 21A (l) of the 1999 Act be taken into consideration. Having considered the factors in s 3A in this way, I do not consider that the Offender's risk of reoffending is more likely to be addressed by full time custody and community safety will best be addressed by enabling the sentence to be served in the community.
20. For these reasons; 1. The offender is convicted 2. Having regard to his plea of guilty the offender is sentenced to a term of 22 months imprisonment. 3. Pursuant to s 7(1) of the 1999 Act the sentence is to be served by way of Intensive Correction in the community subject to the following conditions: 1. He must not commit any offence: 2. He is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service (Sutherland) deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service whilst under supervision and guidance. The Offender is to report to Community Corrections within 7 days. 3. The offender is subject to treatment condition requiring him to continue to attend upon Dr Liangos and Mr Troy Spiers psychologist as recommended by them. 4. The Offender is to abstain from the consumption of illicit drugs.

Endnotes

1. Exhibit 1, tab 1.
2. (2013) 249 CLR 571.
3. S 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), hereinafter referred to as the "1999 Act"; R v Thomson and Houlton (2000) 49 NSWLR 383; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102.
4. S 21A(3)(e) of the 1999 Act.
5. S 21A(2)(j) of the 1999 Act.
6. Exhibit 1, tab 3.
7. Exhibit 1, tabs 4 and 5.
8. Exhibit 1, tab 6.
9. (1999) 46 NSWLR 346.
10. R v Henry (1999) 46 NSWLR 346
11. Murray v R [2013] NSWCCA 12.
12. Defence submissions 22 January 2020 at [43]-[47]
13. R v Douer (2005) 159 A Crim R 154 at [71]; R v Zamagias [2002] NSWCCA 17 at [26].
14. Exhibit 3.
15. [2019] NSWDC 269.
16. [2018] NSWDC 341.
17. (2001) 51 NSWLR 530; [2001] NSWCCA 158.
18. R v Henry (1999) 46 NSWLR 346
19. R v Blackman and Walters [2001] NSWCCA 121; R v Phillipe [2004] NSWCCA 2; Legge v R [2007] NSWCCA 244; MW v R [2010] NSWCCA 324 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [35]-[37].
20. [2018] NSWCCA 27.

Amendments 22 April 2020 - Amended typographical errors - 22 April 2020 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: 22 April 2020