R v BARTHOLOMEW

Assessment

1. The Guideline in Henry & Ors sets out a number of common features of offences of aggravated robbery, namely: 1. Young offender with no or little criminal history; 2. Weapon like a knife, capable of killing or inflicting serious injury; 3. Limited degree of planning; 4. Limited, if any, actual violence but a real threat thereof; 5. Victim in a vulnerable position such as a shopkeeper or taxi driver; 6. Small amount taken; and 7. Plea of guilty, the significance of which is limited by a strong Crown case.
2. However, Spigelman CJ went on to say at [162]: "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." 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). In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term."
3. The offender is 24 years of age so still relatively young. However, it could not be said that the offender has a limited criminal history. Of particular significance is that on 28 June 2018 he was sentenced at the Wagga Wagga District Court for Armed Robbery. At the sentence hearing of the matters presently under consideration I was advised by the parties that the 2018 matter involved the offender being in company and while armed robbing a service station. A total sentence of 4 years 3 months with a non-parole period of 2 years 9 months was imposed. The offender was released at the earliest possible date, i.e. 2 September 2020. The first offence was committed 5 days after his release and the second offence 7 days after his release to parole. The factor of statutory aggravation provided for by s. 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is made out.
4. A knife, i.e. a weapon capable of inflicting serious injury, was used in both matters. In the offence of 9th September 2020 the knife was held towards the abdomen of the victim. There was some limited degree of planning in both matters. There was no actual violence but there was a very real threat of violence with the production of the knife. The victim was vulnerable in that he was a taxi driver. Similar amounts of money and property were taken in both matters and amount to something between $200 and $300. The plea was an early plea.
5. Ms Mendes in her written and oral submissions refers to the decision of the Court of Criminal Appeal in Qoro v R [2020] NSWCCA 276. That matter involved an armed robbery of a taxi driver in a regional city in rural New South Wales. The facts in Qoro so far as the threats to the driver are concerned are markedly more serious in that the knife which was 25 cm long was held to the victim's throat and the cord of the microphone for radio communication was cut. The victim was threatened with being stabbed if she touched the alarm button. Rothman J (Simpson AJA, Bellew J agreeing) said in Qoro at [70]: "The objective seriousness of the offence is below the mid-range of offending for an offence of this kind. The foregoing comment does not denigrate the seriousness of the offence from the point of view of the victim, but assesses the offence relative to other offences under s 97(1) of the Crimes Act. It is, in terms of objective seriousness, on a par with the examples to which the Court referred in Henry."
6. A sentence of 3 years 9 months with a non-parole period of 2 years 6 months was imposed. There was no issue about the actual sentence but rather the appeal was directed towards the effect of accumulation on other sentences that were imposed in the Local Court. The appeal was upheld on that basis. Although the offender in Qoro had "a significant criminal history" (see [39]), the offender in that matter was not on parole for identical offences at the time of the commission of the offence.
7. I am of the opinion that both matters on which I am passing sentence are within the guideline contemplated in R v Henry & Ors. However, noting what was said in Qoro both matters are below mid-range. The Crown submitted that both offences were within the mid-range. But for the decision in Qoro it is likely that I would have agreed with that assessment. However the second offence i.e. the offence of 9 September 2020 is slightly more serious than the earlier offence. The threats were more prolonged and the knife was pointed at the victim's abdomen.

Criminal History

1. The offender has a substantial criminal history beginning as a juvenile in 2013. I cannot be certain that s 15 of the Children (Criminal Proceedings) Act 1987 does not apply. In this regard I note the effect of Dungay v R [2020] NSWCCA 209 at [86]ff. Accordingly, I will ignore the juvenile criminal history.
2. The offender's adult criminal record commences with appearances before the Local Court in early 2017 in respect of offences committed in 2016. The offending includes common assault, shoplifting, break enter and steal, dishonestly obtain property by deception, possession of housebreaking implements as well as the aggravated robbery matter to which I have already referred.
3. The Crown in written submissions (understandably) made a submission to the effect that the principles enunciated by the High Court of Australia in Veen v The Queen (No 2) (1988) 164 CLR 465 were enlivened. I understood the submission was in the context of the re-offending so soon after release to parole in respect of the robbery matter. However in oral submissions the Crown put that the record was one that did not entitle the offender to any particular leniency. I understood that that was also the submission of counsel for the offender.
4. The offender is too young for the principles in Veen v The Queen (No. 2) to be applied against him. However, he should be aware that if he were to reoffend after release to parole and while on parole again his record may well be taken into account as an aggravating factor. Be that as it may, although his record is not an aggravating factor, nevertheless there must be some element of specific deterrence factored into the sentence in the matters presently under consideration. His record is certainly one that does not entitle him to any particular leniency.
5. Parole was revoked and the balance of 1 year 5 months and 24 days commenced on 9 September 2020 and will expire on 4 March 2022.

Subjective Case

1. A volume of written material including an affidavit sworn by the offender was made available before the sentence hearing. The offender was called to give oral evidence which by and large made the affidavit redundant.
2. The offender said in evidence that he was a sentenced prisoner serving a balance of parole that was revoked. He is working as a baker at the bakery at the Junee Correctional Centre which is a position of considerable trust and he earns $70 per week. I was given to understand that the position of a baker is considered to be at the top of the hierarchy of jobs in prison as the offender said that there was no better paying job in the prison. He is one of five or six men working at the bakery. The offender said and I accept that he enjoys the work at the bakery.
3. Counsel for the offender then took him to the offending. Firstly he was asked about how Mr Kelly, the victim of the first robbery, would feel. He said the victim would definitely have been scared and would have been in fear for his life. He went on to say that he felt terrible about the offending and accepted that the taxi driver was just trying to work to earn a living. He also said that the taxi driver did not deserve what occurred. The offender was then taken to the second offence and his responses were very similar. I accept that the offender is remorseful in respect of both offences.
4. The offender was then asked to recall 1 September 2020, the day before he was released to parole. He understood that the release to parole was not automatic. When he went before the Parole Board he was hopeful of securing employment and as I understood his evidence in the building or construction area as he had done a course in concreting and bricklaying. He had completed a first aid and building safety course while in adult custody.
5. Upon release to parole the offender was hoping to live with his brother in suburban Wagga Wagga and that address had been approved by the parole authorities. He planned to attend drug and alcohol courses.
6. He was released from custody at the Lithgow Correctional Centre on 2 September 2020 and when released there was no one there to meet him. He had $100 from his gaol account. This was the extent of the funds available to the offender. A taxi was called but never arrived but he was given a lift to the Lithgow Railway Station where he purchased a ticket and travelled to Sydney. He did not have a mobile phone and for that reason had not spoken to his Nan, with whom he intended to stay the first night. He knew where she lived and stayed with her that night. The following day he travelled by train to Wagga Wagga, arriving in the early hours of the morning of 4 September 2020.
7. The offender's evidence continued that he went to his brother's home and his brother answered the door. His brother told him he could not stay there because he and his partner had just had a baby. The offender was therefore homeless. His father was not an option as his life with his father when younger was "pretty awful". I will deal with that after summarising the offender's evidence.
8. The offender went on to say that he went to Community Corrections. He confirmed the contents of the affidavit that they offered emergency accommodation but it was a motel some 5 km from central Wagga Wagga. The offender thought he would end up back in gaol and "gave up then and there". It seems that the system failed this offender. While giving evidence the offender was asked by his counsel whether he wanted to go back to gaol and he replied, "a little bit".
9. So far as the future is concerned, the offender said that he wants to go back to his mother and not return to Wagga Wagga. He has had no visits while in custody. He said he is prepared to undergo drug and alcohol rehabilitation. He is receiving regular injections to deal with his "ice" (methyl amphetamine) addiction. He is now prescribed anti-depressants. He does not want to return to gaol but understood he had said that before. Without nominating a particular occupation or trade he said he would like to get a trade or an apprenticeship. Curiously despite the offender working as a baker at the bakery at Junee Correctional Centre and his evidence that he enjoyed that work the offender did not mention that he might pursue that as a career once released.
10. The offender has had no visits while in custody. As with any sentenced prisoner the COVID-19 pandemic means it is difficult if not impossible for there to be any face to face visits. Accordingly I take into account the principles enunciated by the Court of Criminal Appeal in Valentine v R [2020] NSWCCA 116.
11. I now return to the offender's affidavit and in particular to the issue of the offender's upbringing. The offender had no memories of his natural father as a child. The offender's mother re-partnered and the offender describes his step-father as a "nice man". However when he was about 14 years of age the offender began mixing with what he describes as "a rough crowd" and began drinking alcohol. He refused to stop this behaviour when his mother asked him to do so and was sent to live with his father in Wagga Wagga. His father would regularly drink to excess and be physically violent to the offender and his brother. When he was 15 the offender was asked by his father to leave the house and he became homeless and lived on the streets where he met others engaged in drug taking. He began to steal food to survive. He started using methyl amphetamine to which he became addicted. He has struggled with an addiction to methyl amphetamine since he was 15.
12. The offender has spent a considerable time in juvenile and adult custody and at paragraph 32 of his affidavit sets out that the longest he has been out of custody as an adult is a few months. The offender is obviously in danger of becoming institutionalised if he is not already, noting what was said in his oral evidence. I am fortified in this given the contents of paragraph 33 of the affidavit namely: "In gaol no-one gives me shit because no one expects anything of you. When I am out everything is too hard and I feel like I don't have any support to stay out. It makes me anxious and I use drugs to cope because when I am high I feel like I don't have any problems…"
13. The offender will need intensive and extensive supervision upon his eventual release from custody which goes to justifying a finding of special circumstances. There will need to be some partial accumulation of sentence on the balance of parole being served and that too goes to a finding of special circumstances.
14. Further, given the experiences of the offender in his formative years, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the moral culpability of the offender.
15. Exhibit 2 is a Psychological report prepared by Ms Fleur Taylor of Lennings Seidler Collins dated 27 June 2018, which I presume was prepared for the previous robbery matter. That report at paragraphs 7 to 9 largely repeats the material so far as the offender's formative years is concerned.
16. At paragraph 12 of the report the author notes that the offender seemingly gravitated towards similarly disenfranchised peers during his adolescence. Indeed the report writer observed (also at paragraph 12) that the offender "will require support to develop a pro-social network of peers in the community in order to gain a sense of belonging…" As at the time of the preparation of that report the offender expressed a high level of motivation to remain abstinent from substances.
17. At paragraph 18 of the report Ms Taylor says that the offender's account of his mental health was consistent with a diagnosis of Persistent Depressive Disorder. She goes on to opine that it was likely that the offender's poor mental health and increasing substance use impacted on his decision making and contributed to the then offending, which occurred in 2017.
18. The report writer recommended that the offender participate in drug and alcohol counselling. There is no reason to presume that a similar recommendation would not now also be appropriate.
19. Document 3 in the defence tender bundle is the Breach of Parole Report. It records that the offender reported to Wagga Wagga Community Corrections on 4 September 2020 and presented as polite and engaged in the interview and that the offender was focussed on his lack of accommodation. The report then goes on to record that the offender was offered emergency accommodation but that was declined. In oral evidence at the sentence hearing the offender said that the temporary accommodation was a motel some 5 kms from Wagga Wagga. He had no means of transport and limited funds.
20. The Breach of Parole Report also notes that if the offender is released from custody case management will focus on addressing his criminogenic behaviours and that he will be encouraged to engaged in intervention with appropriate services. I observe that it would be appropriate for more significant planning to put into the offender's eventual release.

Submissions

1. Ms Mendes with her usual thoroughness and attention to the issues provided comprehensive written submissions which were amplified during her comprehensive oral submissions at the sentence hearing. The plight of the offender on his release was appropriately emphasised.
2. It was put and I accept that the offender has some prospects of rehabilitation. The offender is now 23 and 24 in November 2021. He has been working on a regular basis at the bakery at the Junee Correctional Centre. However given the offender's record and the breach of parole involving very similar offending so soon after his release I could not find that he has good prospects of rehabilitation. Much will depend upon the manner in which the offender engages upon his eventual release. Again, given the record and the breach of parole I could not find on balance that the offender is unlikely to re-offend.
3. Ms Mendes submitted that the offender is still entitled to some consideration for youth conformably with decisions such as Locke v R (2010) 207 A Crim R 34. I am prepared to extend some very small amount of consideration to the offender for youth but the emphasis is on the words "very small". He is at the cusp of youth not being available to assist him.
4. Submissions were made as to the seriousness of the matters, which have already been dealt with earlier in these remarks. It was accepted that there must be some partial accumulation on the balance of parole. I recall at the sentence hearing suggesting a possible commencement date of the sentence for the present matters. Ms Mendes however submitted that the appropriate commencement date would be 10 March 2021 which was the date on which the pleas of guilty were entered in the Local Court. I have no note or memory of any submission made by the Crown as to a commencement date. There may have been a submission but I have no note or memory of such a submission.
5. Initially my reaction to Ms Mendes' submission to date the sentence for the present matters from March 2021 would have had the effect of extending too much concurrency to the offender. However on closer consideration noting the requirements of the principle of totality I will date the sentence for the present matters from 10 March 2021, as submitted by counsel for the offender. Ms Mendes referred me to the decision of White v R [2016] NSWCCA 190 on the interpretation of s 47(5) of the Crimes (Sentencing Procedure) Act. It was in part the consideration of the additional comments of Bathurst CJ at [7] and the judgment of Simpson JA at [116]ff that led me to the conclusion that I should commence the sentence on 10 March 2021.
6. I note also that the finding of special circumstances will be more generous than would otherwise be appropriate because of the issue of the partial accumulation of the sentence for the present matters on the balance of parole. I note the Crown submitted to the effect that the partial accumulation of sentence was all that would justify a finding of special circumstances.
7. The Crown also made the appropriate submission that the offender was on conditional liberty when he committed the offending for which he was sentenced in 2018 and he was on conditional liberty at the time of the commission of the present offences. I have already indicated that I could not find on balance that the offender was unlikely to re-offend.

General Remarks

1. In passing sentence I will need to give regard to and proper 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. to make the offender accountable for his or her 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.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided for, the Guideline Judgment of R v Henry & Ors and the offending I am firmly of the opinion than no other sentence other than a sentence of imprisonment is appropriate. No contrary submission was advanced on behalf of the offender.
3. I am of the opinion that this is an appropriate matter for the imposition of an aggregate sentence. It will be necessary to indicate the sentences that would have been imposed had separate sentences been imposed.
4. In respect of both matters I am of the opinion that the appropriate starting point is 5 years 6 months which after the 25% discount for the utilitarian value of the plea produces a total sentence of 4 years with some minor rounding down in favour of the offender.
5. If separate sentences were imposed there would need to be some meaningful partial accumulation to recognise the two offences and the two victims even though the offences were committed only two days apart.
6. For reasons already given I am of the opinion that the appropriate commencement date for the sentence is 10 March 2021.

Orders

1. In respect of the offences to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 4 months.
3. The non-parole period will commence on 10 March 2021 and will expire on 9 July 2024. The balance of term will commence on 10 July 2024 and will expire on 9 June 2026.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is approximately 63% of the total sentence imposed in respect of the present matters. I have already given reasons for the finding of special circumstances but they include the partial accumulation of sentences.
6. The effect of these orders is that the offender's total effective sentence including the balance of parole is from 9 September 2020 to 9 June 2026 (5 years 9 months) and the period in actual custody is from 9 September 2020 to 9 July 2024 (3 years 10 months). The actual period in custody is two thirds (66.6%) of the total effective sentence.
7. I direct that a copy of the report of Ms Fleur Taylor, exhibit 2 on sentence be annexed to the warrant that is forwarded to the Department of Corrective Services.

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: 09 July 2021