HIS HONOUR: Just stand up please, Mr Blundell. I always tell the prisoners in advance what sentence is to be imposed but I have to give my reasons which will take some little time. In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period for a period of one year eight months imprisonment. That will date from 7 November 2013 and expire on 6 July 2015. The balance of the sentence will be one year eight months expiring on 6 March 2017. Just take a seat, thanks very much.
So the total sentence imposed is three years four months imprisonment. I have discounted the starting point of four and a half years, four years six months by 25 per cent.
Nathan John Blundell appears for sentence in relation to an offence committed by him on 20 August 2013 of robbery whilst armed contrary to s 97(1) Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment. There is no standard non-parole period.
The prisoner was arrested on 7 November 2013 and has been in custody since that date. The sentence I impose will be backdated to commence on that date. The offender pleaded guilty at the Local Court and continued his plea of guilty in this Court. He, thus, is entitled to a discount of 25 per cent upon the otherwise appropriate sentence to represent the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of the Court of Criminal Appeal of Thomson and Houlton.
The particulars of the offence are that the prisoner at Young did rob Phillip Weyers of certain property, to wit, numerous packets of cigarettes and $500 cash, the property of Southwest Fuels whilst being armed with an offensive weapon, to wit, a crowbar. In fact, the bar in question is more of a pinch bar, but it matters nought for the purposes of the assessment of the objective facts in this matter.
The prisoner gave evidence on sentence and I found him a straightforward witness for a young man with little experience in giving evidence. He came to the Court presenting himself as a matter of fact person and I generally accepted the evidence he gave to this Court. He was pressed in cross-examination about matters particularly concerning the timing of the planning of the offence, but ultimately I accept the evidence he has given. I certainly cannot make an adverse finding beyond reasonable doubt on the totality of the evidence in relation to the matters about which he spoke.
R v Blundell [2014] NSWDC 365 | Case summary | Zoe
The prisoner and a younger co-offender who, as I understand it, was three years younger, in company went to a service station in Young, the Caltex service station. The prisoner gave evidence, which I accept, that he met up with his co-offender about midday at a mutual acquaintance's home and there he and the co-offender drank a quantity of alcohol until they ran out of money. They discussed doing a breaking and entering offence somewhere in the Young township and, as I understand the matter, left the premises where they had been drinking at about 8.30pm. The purpose of the crime was to obtain the means either to purchase more alcohol or to purchase prohibited drugs.
The prisoner was armed with a tyre lever. The co-accused was armed with a knife although my understanding of the prisoner's evidence is that he was not aware that his co-offender had a knife until some time later in the evening. They walked around the township of Young, looked at various places to break into including, as I understand it, the Big W store. Then just before 10 o'clock they came across the Caltex service station at Young with which they were apparently both familiar.
The co-accused said to the prisoner words to the effect, "Why don't we just rob the servo?" The prisoner said, "Why not". They thus entered the service station, the prisoner armed with the pinch bar, the co-offender armed with the knife. I not only have a statement of agreed facts, but there is a video recording from closed circuit television tendered in disk form that I have viewed at least twice, so I have a very good idea of the way in which events unfolded.
The co-accused was the first person into the premises but the prisoner can be clearly seen standing outside an open door which apparently led to a storeroom at the back of the service station. The public area of the service station, the service area, so to speak, was empty at the relevant time. The prisoner stood at the open doorway with the pinch bar over his shoulder in a threatening manner awaiting the arrival of the staff member who was closing up at the time. When he entered the service area from the storage area he was confronted by the prisoner.
The prisoner and his co-offender were dressed in hooded jumpers with some distinctive markings on them. The prisoner and the co-offender wearing distinctive gloves as well which ultimately aided in their detection. They had their faces partially covered and thus could be described as disguised to the extent that their clothing permitted their faces to be covered and the rest of their body to be shielded from camera view.
The prisoner waited for the victim to come out of the storage area whilst the co-offender, Fuller, walked behind into the console area of the store and attempted, apparently, to operate the cash register. It was a little hard to see what he was doing but he was unable to open the cash register.
When the victim did walk into the shop area from the rear he was immediately confronted, as the facts state, by the prisoner. The prisoner threatened the victim with the tyre lever over his shoulder. Fuller also approached the victim and threatened the victim.
The facts state that the co-offender said to the victim, "This is a hold‑up", and the prisoner yelled out, "Open the till and give us the cash". It is quite clear from both the film and the agreed facts that the prisoner and the co‑offender were enthusiastic participants in a joint criminal enterprise to commit an armed robbery and each played an equal role in the commission of the crime.
The victim went behind the counter into the console area and opened the cash register and apparently from what I could see he handed over, largely by throwing, a number of $50 notes towards the prisoner. The prisoner continued to threaten the victim with the tyre lever and the prisoner took the $50 notes that were thrown on the counter area, placing them in his pockets.
The prisoner also yelled out to the co-offender to get some cigarettes and it turns out that the co-offender picked up an empty cardboard box and put numerous packets of cigarettes into that box which ultimately was carried from the store.
The victim took a bundle of $20 notes from the cash register and placed them on the counter area. The prisoner tried to pick up the notes, however dropped some on the floor. He leaned down to pick them up. The victim was still complying with the demands being made of him, however the prisoner in his evidence before me, particularly in cross-examination, conceded that ultimately just before he left the store smashed the display stand on the counter of the service console. He did so because he thought the victim had not given him all the money that he could.
The smashing of the display stand was a totally unnecessary display of force and a very intimidatory act. Although I do accept the evidence of the prisoner that he did not intend to actually strike the victim. This is small consolation for the victim who I accept must have been quite terrified by the presence of two armed men, alone with them, threatening him in the way that the facts reveal.
The prisoner and the co-offender finally left the premises with the property that has been particularised in the charge and the victim obviously throughout the commission of the offence had considerable fears for his safety.
The prisoner attended premises nearby, as I understand it. After the robbery he was carrying a plastic bag full of cigarettes and he told the occupants of an address supplied in the facts that he and Mr Fuller had just "done the service station and got dollars and heaps of cigarettes". The prisoner then commenced to sell packets of cigarettes to occupants in the house for ten dollars a packet. The prisoner told the occupants how the robbery was committed and the weapons that they had upon them.
The prisoner and the co-offender over the days following continued disposing of the stolen cigarettes and made admissions about their involvement in the robbery and the way in which the facts reveal to a number of people.
The prisoner was interviewed, assuming that this information had found its way back to the police, on 30 October 2013. At that point he denied any involvement in the armed robbery. Ultimately there was a search warrant executed, various property was found linking the prisoner and/or the co‑offender to the crime from what was displayed in the closed-circuit television footage.
At 2.50pm on Thursday, 7 November 2013 the prisoner was arrested at Quandialla and taken into custody here he remained, as I said earlier, until the present time. Again, he was not entirely frank. In fact, whilst he claimed that he was aware the robbery offence had been committed by the co‑offender Fuller and that he had assisted in selling stolen cigarettes in the days following, he denied any involvement in the armed robbery.
The co-offender Fuller, as I pointed out, was three years younger than the prisoner. The prisoner's account, although they both had agreed to go out and commit some crime jointly approximately an hour and a half before, claimed that Fuller had suggested the robbery of the service station. Bearing in mind they both left other premises armed in their respective ways it was not much of a leap forward or backward as the case may be for them to decide upon a robbery with the weapons they used rather than a breaking, entering and stealing offence that the prisoner says they had initially ventured into the night to commit.
I accept, however, the evidence of the prisoner that it was ultimately his co‑offender that suggested the ultimate crime they committed, although the prisoner immediately and enthusiastically on his own account embraced the suggestion.
The reason I accept his account, albeit that Mr Fuller is not here to defend himself and has no chance to test the prisoner's account, arises from the co‑accused's criminal history by comparison to that of this prisoner and events that have occurred since the commission of the crime with which I am concerned.
First of all I am informed that Mr Fuller is a suspect in a murder that was committed in the Young district, as I understand it, approximately eight or nine days after this crime. A warrant has been issued for his arrest. He, unfortunately, is not immediately amenable to justice because on 9 May 2014 he appeared in the Queensland District Court where he had pleaded guilty to one count of armed robbery in company, one count of attempting to enter premises with intent to commit an indictable offence and one count of attempted armed robbery in company. He was sentenced to a total of three years imprisonment with a parole release date of 16 months in total for the three offences, although some of the sentences for specific offences were less than the sentence of three years which was imposed for the armed robbery in company offence.
I have been provided with his criminal history and I doubt that I have seen a worse criminal history, at least a more extensive criminal history, of one so young. The number of pages of a criminal history sometimes do not mean very much but it merely needs to be said that his appearances in the Children's Court amount to 50 pages of criminal history. True it is, many of the offences are for crimes of dishonesty such as breaking, entering and stealings, aggravated breaking, entering and stealings and the like. But there are a number of offences of violence and destruction of property or damaging of property.
I note that on 16 April 2013 he was convicted in the Young Local Court of assault occasioning actual bodily harm and sentenced to 12 months imprisonment with a non-parole period of four months. Those sentences backdated to December thus, as I would understand it, he was almost immediately released to parole. I would expect, from my assessment of that sentence, that he was on parole when he committed the crime with the prisoner before me today on 20 August 2013.
In any event, he has a very, very extensive criminal history which shows that despite his tender years and his greater youth than the offender, he was a very experienced criminal which this prisoner is not. This prisoner has a relatively negligible criminal history. He appeared at Young Children's Court in relation to a number of driving offence for which he was variously placed on good behaviour bonds and/or disqualified for a period of time or fined. Those appearances, I hasten to say, were in August 2010, three years before the current offending.
He also has no convictions for dishonesty as such and he has certainly no convictions for violence. The background to his offending on this occasion and the circumstances in which he found himself in company with the very, very experienced young criminal were set out in his evidence, which I earlier said I accept. He had an apprenticeship after he left school but when he lost his licence in 2010 he lost that apprenticeship as one would expect.
His father lived in Grenfell at the time caring for a younger brother who was severely disabled with cerebral palsy. The prisoner got a job concreting and worked in that line of occupation for approximately 15 months but apparently lost that work several months before his involvement in the armed robbery.
He found himself living in Young some distance from his father, although Grenfell is within an hour's drive away. He was moving from house to house 'couch surfing', as I would understand it, and using drugs and drinking alcohol with so much free time on his hands.
After the commission of the robbery he stayed in Young for about a month and then he went back to Grenfell to his father's home and came off his dependence to prohibited drugs, particularly amphetamines 'cold turkey', a fact confirmed by his father.
He was in fact three or four weeks into abstinence from drugs when he was arrested in relation to the current matter. I note his father's evidence that since he has been in custody, although the prisoner has told us that he has found that very difficult, everything has been what he described as a "struggle", his father said his physical presentation has much improved.
The Probation and Parole Service has prepared a helpful report setting out the background of some family dysfunction, separation of his parents when he was quite young and difficulties with his relationship with his mother leading to a somewhat unusual situation, where his father became his primary carer and the carer of this severely disabled young man that I have earlier referred to.
The report confirms the employment history that I have identified. It notes that in the 12 months prior to his arrest he was drinking excessive amounts of alcohol and using cannabis and methylamphetamines and confirms his withdrawal from his dependence on these substances. It notes that when he was drinking and using amphetamines he had lost a considerable amount of weight and he also acknowledged the need for him to avoid use of prohibited drugs and alcohol excessively to progress his rehabilitation.
He said that he was not wholly dependent upon Centrelink benefits because he became very unreliable in attending upon Centrelink to confirm payments that may have otherwise been due to him. He said in relation to the offending with which I am concerned that he was, "messed up because of the drugs", and the Probation and Parole Service acknowledges that he is at medium risk of re‑offending with a need for issues such as alcohol and drug dependency, 'relationships' and his financial situation to be addressed on his release to parole. He also needs assistance in relation to creative ways and appropriate ways to use his leisure time and his recreation time as well as in the areas of education and employment.
There are some references to community based sentencing but, for the reasons that are self-evident from the Crown's very helpful written submissions, at the moment the prisoner is not entitled to be released back into parole.
The assessment of the prisoner by the Probation and Parole Service noted that although Mr Blundell presented with no prior criminal history he was fully aware that unless he took steps to address his substance abuse he may well continue to proceed down the path of offending. The report said that his report of both alcohol and illicit drugs has resulted in his loss of employment, his estrangement from his father for a period of time, unstable accommodation and ultimately involvement in criminal activity. It noted his self-withdrawal from substance abuse prior to his remand in custody and it said that the prisoner appeared to have some insight into the factors that contributed to his offending and took responsibility for his behaviour. It recommended a period of supervision with a number of case management strategies such as I have already identified.
In his evidence before me he apologised for his conduct towards the victim. He said that he understood the impact upon the victim or certainly said that he would understand how the victim would be terrified. He said in his evidence that he was anxious to return to Grenfell on his release from custody and wished to re-establish himself in that township away from the township of Young.
He appreciated the matters that have led to his decline as summarised by the Probation and Parole Service. He gave evidence of having undertaken at least one course in custody which had assisted him and he indicated that being in custody had been a salutary experience.
His father, as I said, had given evidence confirming a number of matters about which the prisoner spoke: the withdrawal from drugs; the improvement in his presentation whilst in custody. He also gave evidence about the circumstances of the prisoner's brother, the care that he is required to provide that person and the support that the prisoner does provide for his brother when living at Grenfell.
As I said, the prisoner in his evidence was a straightforward witness and I accept that he has taken responsibility for his conduct but, of course, he could have taken responsibility for his conduct at an earlier time by admitting his guilt when he was first interviewed by police.
Counsel for the prisoner in his submissions noted the need for the discount for the utilitarian benefit of the plea and the connection of the offending to the prisoner's drug usage. He conceded that the victim was a vulnerable person as both the authorities and the facts make clear. He noted the prisoner's contrition and he also noted that the offence itself had been "suggested" by the co-offender, although I have already noted, by the prisoner's own admission, his enthusiastic adoption of the plan.
Counsel for the prisoner said that the crime was a 'wakeup call' and that the prisoner had taken some steps in his rehabilitation with his withdrawal from substance abuse before his arrest. He submitted that the prisoner's short employment history showed that he was a hard worker but his loss of licence and drug usage had compounded his difficulties. He noted the absence of any prior convictions for offences of violence or dishonesty.
He noted the support of the father and he said in this matter rehabilitation "loomed large". The Court ought make a finding of 'special circumstances'. He noted the criminal history of the co-accused and said that the criminal background of the co-accused supported the prisoner's version of events so far as it reflected upon the co-accused's role. He noted the prisoner's relative youth and that the Court should accept his evidence.
The Crown's submissions were largely in writing. There was no need really for the Crown to supplement anything that it had written apart from dealing with some of the matters that had arisen in the oral submissions of the defence. In the context of noting the maximum penalty and the character of the offending the Crown submitted in consideration of s 3A Crimes (Sentencing Procedure) Act 1999, that matters of deterrence, both personal and general, and retribution loom large in sentencing for this offence.
The Crown noted the purposes of sentencing and the commentary that has existed in relation to the 'purposes of sentencing' going back before the Crimes (Sentencing Procedure) Act and the decision of the High Court in Veen (No 2) as well as subsequent to the introduction of s 3A in the decision cited by the Crown, such as The Queen v MA (2004) 145 A Crim R 434. The only matter that I would add to the Crown's very helpful submissions is the observation of the majority of the High Court in Veen (No 2) that the purposes of sentencing, only four in that judgment now expanded to seven or eight, were like 'guideposts' and sometimes in particular sentencing exercises they point in different directions.
The other matter to be observed which I believe is at least implicit in the Crown's written submissions is that all these matters really have been taken into account to a large extent in the guideline judgment of The Queen v Henry to which reference is made in the written submissions of the Crown which, of course, predates the legislation that now contains s 3A. In Henry ((1999) 45 NSWLR 346) the Court of Criminal Appeal adopted a guideline for the sentencing of offenders for the crime of armed robbery. It has been said subsequently, of course, that a guideline is not a 'tramline' and the Court itself in Henry acknowledged the existing discretion still prevail but regard must be had to the guideline in sentencing for offenders of this type.
In fact, it is worth noting, at para [10] the learned Chief Justice adopted what had been said by Acting Chief Justice Mahoney in the decision of Lattouf, an unreported decision of the Court of Criminal Appeal. General principles of sentencing must, of their nature:
"be adjusted to the individual case if justice is to be achieved. For this reason it is ... important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing Judge. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it but there are other interests to which the sentencing process must have regard. These are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case".
I might also refer just in passing to observations of Chief Judge at Common Law, Justice Wood, in decisions such as Blackman and Walters and a later decision of Tran where his Honour noted the public interest in the Courts adopting an approach to sentencing that permitted the protection of the public to be recognised not just by necessarily punitive sentences but by fashioning orders to assist in the rehabilitation of offenders. The promotion of the rehabilitation of offenders is, of course, one of the purposes of sentencing in s 3A.
The Crown very properly went through those, if I may call them, criteria for a case that fell within the rubric of the guideline that the Court settled upon of four to five years imprisonment for a particular category of armed robbery in which this particular armed robbery does fit: young offender with little or no criminal history; a weapon like a knife capable of killing or inflicting grievous bodily harm. In this case, of course, there is a joint criminal enterprise where one offender had a knife. This prisoner had a pinch bar but it certainly was capable of inflicting serious injury if it struck the victim; limited degree of planning which was present here; limited, if any, actual violence but a real threat thereof which is self-evident from the facts I have outlined; the victim being in a vulnerable position such as the case here; a relatively small amount taken; $500 and a large quantity of cigarettes is not an altogether modest taking from an armed robbery. It is in the scheme of things to be seen at the lower end of property that may have been stolen. The plea of guilty, the significance of which is limited by a strong Crown case.
The Chief Justice said after setting out those matters at [162] that also aggravating and mitigating factors will justify a sentence below or above the range as the Courts' decisions indicate. The narrow range is a starting point and his Honour went on to identify a number of aspects of the matter that might intensify the circumstances of the offending and set out those matters at [170].
Here, to my mind, the most identifiable aggravating factor by reference to the Henry guideline is the intensity of the threat posed by the prisoner when he smashed the display case. As I said, it was a totally unnecessary act of intimidation, although I accept the prisoner was not trying to hit the victim otherwise I would have imposed a greater sentence. The reason the prisoner gave, simply that the victim he thought was not handing over all the money he could, does the prisoner no credit whatsoever. I am also mindful of the effect on the victim as well. I have already dealt with that matter.
In this matter one also has to, in addition to the guideline judgment, consider the operation of s 21A Crimes (Sentencing Procedure) Act. As I have pointed out that legislation, which came into effect in 2001 but was initially passed in 1999, postdates the various criteria identified in Henry v The Queen. On reading Ponfield v The Queen, the 1999 guideline judgment on breaking, entering and stealing offences, one would see that many of the aggravating and mitigating factors identified in that judgment by Justice Grove were adopted by the legislature in the subsequent legislation that was enacted and is now in force.
By reference to s 21A(2) I accept what the Crown has put in its submissions that there are two particular aggravating factors: firstly, the offence was committed in company as is self-evident from the facts I have outlined; and also the victim was vulnerable, but this is a matter also that is considered in the guideline judgment.
The prisoner, whilst he was abusing prohibited drugs, was not affected by prohibited drug at the time of the commission of the offence. On his evidence he was "charged up", if I could use that expression. That was an expression adopted by him in the questioning of him by myself from the use of alcohol but was not heavily intoxicated. That is clear enough from the vision that one has seen on the film. He also said that he was coming down from the use of drugs the day before. This was the equivalent of, in effect, having a hangover from too much alcohol. He was a person, however, on his own version, that had been abusing drugs for some period of time.
The matters identified by Justice Wood at [273] of the guideline judgment need to be considered as the Crown has identified in its helpful written submissions. His Honour made clear, as the majority of the Court of Criminal Appeal accepted in the guideline judgment, that the need to acquire drugs to support a drug habit, even a severe habit which is not the case here, is not an excuse to commit an armed robbery or any similar offence and of itself is not a matter in mitigation.
He pointed out, however, the fact that an offence is motivated by such a need - and I do accept for the time being that the prisoner did commit the crime in order to obtain money amongst other reasons to purchase drugs - that may be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light on matters such as the impulsivity of the offence and the extent of planning for it, the existence or non‑existence of an alternative reason that might operate in aggravation, which does not exist here, and the state of mind of the prisoner at the time of the commission of the offence.
It is of particular relevance here because of the impulsivity of the offence and the limited planning that was involved. The Crown submitted that one could conclude that it was a planned offence. Certainly the prisoner and his co‑accused were planning to commit some crime but the commission of this particular crime was specifically unplanned in my view or had very, very limited planning indeed. I must point out the state of mind of the prisoner was not such as to suggest that he was unable to exercise judgment.
Justice Wood also said that a person's dependence upon prohibited drugs may be relevant to subjective circumstances such as the impact upon the prospects of recidivism and rehabilitation in which case it may prove to be what he described as a "two edged sword". The circumstances in which dependency of drugs arose through no fault of the prisoner, which is not the case here, and justified consideration of a prisoner being judged to be at "the crossroads".
I am prepared to accept that the prisoner's capacity to avoid drugs for a period of weeks before he was arrested, in fact he tried to detoxify himself, represents some indication of rehabilitation on his part and I also accept to some extent the prisoner is "at the crossroads" largely because this serious offending with which I am concerned is the first such offending of its type for a person now aged 22 who, if he was disposed to antisocial acts, one would have thought would have displayed those acts sometime earlier than on this particular occasion.
Thus, my reference to s 21A(3) Crimes (Sentencing Procedure) Act, the mitigating factors I conclude are that the offence was not part of planned or organised criminal activity, the prisoner did not have a significant record of previous convictions. I accept that the prisoner has good prospects of rehabilitation having regard to some steps he took before his arrest and some improvement in his circumstances whilst in custody and the support he has of his father. I also accept that the prisoner has shown remorse for the offence by providing evidence that he has accepted responsibility for his actions and acknowledged particularly the harm that he would have caused to the victim by his conduct.
He could not really fully explain the way in which he conducted himself in his evidence and I did not see that necessarily as a failing on his part. It is very difficult to explain why a person such as this prisoner should engage in this type of conduct. I can understand why his co-accused did given his subsequent conduct since, and I am putting aside the murder allegation for the moment. The subsequent proven conduct of his co-accused shows that he was well qualified to commit a crime of this type and this prisoner was not. His plea of guilty is a mitigating factor. On the other hand he gets a discrete discount for the utilitarian benefit of the plea of guilty.
Thus, having endeavoured to weigh up all the relevant matters I concluded that a term of imprisonment for this crime, given the maximum penalty is 20 years imprisonment, starting at four years six months ought be imposed subject to the discount for the utilitarian benefit of the plea.
I have made a finding of special circumstances. The special circumstances are that the prisoner requires professional assistance to adjust to community living. He will need direction from the Parole Service in relation to his associations in relation to counselling and perhaps rehabilitation programs for drug dependence. He will also need assistance in finding employment and seeking to marshal his finances to avoid a situation where he is tempted to commit other crimes in order to obtain money for the purposes he identified in his evidence.
Yes, stand up please, Mr Blundell. In relation to the offence for which you have been convicted you are sentenced to a term of imprisonment by way of non-parole period of one year eight months. That term of imprisonment will start on 7 November 2013 and expire on 6 July 2015. The balance of sentence will be one year eight months imprisonment and that balance of sentence will expire, on my calculation, on 6 March 2017. I cannot direct that you be released to parole, that will be a matter for the Parole Authority. Thus, the matter will be determined by your cooperation with the Correctional Services staff during your time in custody.
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Decision last updated: 23 November 2015