R v Clarkson

The Robbery Offence

1. That fresh charge to which the Offender pleaded guilty and for which he is now being sentenced is in the following terms: "On 10 November 2022, at Bankstown in the state of New South Wales, did rob Kevin Menechian of a Samsung mobile phone and Mitsubishi Triton ute bearing NSW registration…"
2. The maximum penalty for this offence is 14 years imprisonment. There is no prescribed standard non-parole period.
3. On 19 January 2024, the matter came before me for sentencing. Various documents were tendered, written submissions handed up, and some evidence given orally by the Offender.
4. A substantial component of the Offender's subjective case depended upon the proposition that his offending was as a direct consequence of his long-term drug addiction, that he was motivated to free himself of that addiction and was prepared to enter into a private facility to that end. It was also contended that the Offender had been the subject himself of sexual abuse as a child, as a consequence of which he had on foot a claim for damages against the State of New South Wales, which was shortly to be subject to a mediation. It was expected by the Offender that he would receive some money at that mediation that would allow him to pay for his treatment in a private drug rehabilitation facility.
5. A central question for determination was the likelihood or otherwise of the Offender receiving any money as a result of the mediation. If he was to receive some compensation then, so the argument went, his prospects of being adequately treated and becoming drug-free, and thereby rehabilitated, increased and his prospects of reoffending correspondingly reduced.
6. Upon the application of the Offender, and because on the state of the evidence I considered that it was not possible to make any sensible prediction as to the outcome of the mediation, I adjourned the matter to 24 March 2024 so as to allow better evidence to be provided.
7. On 24 March 2024, On the joint application of the parties, I again adjourned the matter, this time, because I was told that the Offender was in the process of having a separate matter committed for sentence and that it was appropriate for the sentencing for both matters to be dealt with together.
8. That offence was the 18 May Offence. It concerns acts by the Offender on 18 May 2023 at Clarence Correctional Centre, against another inmate, whilst the Offender was on remand awaiting trial for the Robbery Offence. To complicate things just a little, he is also, as at 18 May 2023, taken to be serving a fixed sentence of six months for the Dishonesty Offence, although he did not know that at the time as that sentence was imposed in September 2023 but backdated so as to commence 30 March 2023.

The charges

1. The Offender has been charged and pleaded guilty to the following offences: "Use offensive weapon with intent to commit serious indictable offence: contrary to s 33B(1)(a) of the Crimes Act".
2. There is a maximum penalty of 12 years imprisonment with no standard non-parole period.
3. The Offender is also to be sentenced, arising from the same event, on a s 166 certificate, of: "Possess an offensive weapon or instrument in place of detention: contrary to s 253E(1) of the Crimes Act".
4. There is a maximum penalty of 2 years and/or 50 penalty units.

Structure of reasons

1. After identifying the facts and making findings as to the objective seriousness of the offence, I will then consider the various aggravating and mitigating factors relied upon by the Parties, before dealing with the Offender's subjective case, a question as to what discount is available for the pleas, the question of totality and commencement date of any sentence, before identifying the indicative sentences which I think are appropriate for the individual matters. I will then consider the operation and potential impact of s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), before determining an appropriate sentence (whether it be aggregate or otherwise) for all the matters before me, taking into account the criminality of all of the activities of the Offender in recent times including the dishonesty offence. Finally, I will consider the question of what proportion of any sentence should be served in custody prior to him being eligible for parole.

The agreed facts as abridged by me

1. The victim is Mr Kevin Menechian. He was 63 years old at the time of the offence.
2. The victim arrived at an underground carpark of a unit block in Bankstown. He was driving his white Mitsubishi Triton ute registered in his name.
3. The victim exited his vehicle. The Offender then approached the victim, he was wearing a black hooded jumper with the hood over his head and a black face mask which covered most of his face. The mask was consistent in appearance with a surgical mask.
4. When the Offender was within arm's reach of the victim, the Offender demanded, "Give me the keys to your car". The victim replied, "They're in it". The Offender demanded, "Well give me your phone". The victim replied, "I can't give you my phone". The Offender demanded for a second time, "Give me your phone".
5. The victim was scared and felt he did not have a choice, so he gave his phone to the Offender.
6. The Offender then got into the driver's seat and drove out of the carpark.
7. A few days later, the Offender was arrested by police. The Offender was cautioned and placed under arrest for the robbery. Arresting police and the custody manager observed that the Offender appeared drug affected.
8. The Offender was conveyed to Bankstown Police Station. The Offender declined to participate in an electronically recorded interview.
9. On 17 November 2022, police attended the Revesby Holding Yard with the victim. The victim confirmed the vehicle was his, that is, the white Mitsubishi Triton ute. The victim's e-tag and front and rear dash cameras were no longer in the vehicle. The victim's Samsung phone and dictaphone were also returned to him. These items were located by a member of the public in the gutter of the Padstow Woolworths carpark.

Objective seriousness of the Robbery Offence

1. I find the Offender was drug affected to a significant extent during the time leading up to and whilst offending. Whilst this is the explanation for his conduct, it is not an excuse, nor a mitigating factor. It does however lend context relevant to the question of objective seriousness.
2. At the time of offending, the Offender took some steps to conceal his face, although it is fair to say that the entire episode was extremely amateurish and his attempts to avoid detection close to hopeless, all of which is consistent with his level of drug affectation. Whilst the attempt to cover his face is consistent with him knowing that he was doing the wrong thing and some planning, the overall context suggests that his actions were very much spontaneous, again consistent with him being significantly drug affected.
3. The interaction of the Offender with the victim was short, although the victim was clearly scared, and obviously thought he had no choice but to hand over his phone and vehicle. No weapon or implement was used, however, again this is not a mitigating factor.
4. There is no evidence as to the value of the vehicle or phone, however the robbery of the victim's work vehicle and phone, was clearly a robbery of forms of property that had real value.
5. The Crown contends that on those facts I should find that the objective seriousness of the robbery offence lies somewhere approaching the mid-range.
6. On behalf of the Offender, like the Crown, reference was made to the indicia identified in R v Henry [1999] NSWCCA 111 ("Henry"), emphasis is placed on the following propositions: 1. There is no evidence of any professional planning, organisation, and execution; 2. the offence can be rightly described as spontaneous; 3. the offence was short in duration; 4. the victim was not vulnerable, in that he was not elderly, sick, or disabled; 5. there was no damage to the property; 6. the property was returned within a short time of being taken; 7. there is no evidence of trauma to the victim; 8. physical force was not used or threatened; and 9. whilst the Offender did seek to try to disguise his face, it ought be remembered that during the COVID pandemic, surgical masks were mandatory.
7. I accept generally the submissions made by the Offender, with the exception that I do not accept that there is any relevance to the property being returned within a short time. This was not due to the benevolence of the Offender, or to him having seen the error of his ways. The simple fact is he was caught by police, and they located the stolen property. I also do not accept that there is no evidence of trauma to the victim. I infer that he was at least frightened, if not terrified, during the experience and I do consider that physical force was threatened. If the victim did not think that physical violence was a possibility, he would not have handed over his vehicle and phone. I do however accept that there is no suggestion of ongoing trauma to the victim. Finally, it is an agreed fact that the Offender did attempt to conceal his identity by covering his face. So, the COVID pandemic has little relevance.
8. Taking into account the submissions of both the Crown and the Offender, I have concluded that the objective seriousness, if it can be sensibly placed on a range of seriousness, falls somewhere well below the mid-range of objective seriousness for these types of offences.

The agreed facts as abridged by me

1. On 18 May 2023, the victim, who was 31 years old, and about 12 other males were loitering in the outdoor learning area of Clarence Correctional Centre.
2. The Offender entered the outdoor learning area with Brown, a co-offender, following behind him.
3. The Offender walked a few metres into the yard and removed a 15 cm metal spike, commonly called a 'shiv,' from his right shorts pocket. The Offender continued into the yard holding the shiv, concealed in his left hand. The Offender feigned to move to his left before then running directly at the victim who was standing facing him, approximately 4 metres away. The Offender transferred the shiv to his right hand as the victim put both hands out to stop the Offender's approach. The Offender swung his right hand towards the victim's right ear and stabbed the victim with the shiv, hitting the victim with full force to the side of his head. The victim then ducked his head as he ran backwards and narrowly missed a follow up strike to the head. The injury began to bleed profusely from the left side of the head. The victim jumped back several metres to get away as the Offender followed him at pace before again stabbing the victim to the left side of his head.
4. The Offender continued to chase the victim aggressively around the yard while holding the shiv in his right hand. The other inmates stood by watching what was taking place. Brown walked further into the yard, approaching the Offender and intervened. The victim was then able to leave the area and was calling out "I've been stabbed, I've been stabbed." CCTV captures the victim holding the left side of his head with blood covering the left side of his face and chest area. The Offender handed the shiv to Brown, who later hid it. The Offender then walked to the kitchen area and washed the victim's blood from his hands.
5. Directly after the incident the victim sought medical attention from Corrections staff, and he was transferred by wheelchair to the Health Clinic for medical treatment.
6. During the examination the victim began to deteriorate, and staff were concerned he was having a stroke. The victim was transferred by ambulance to the Emergency Department at Coffs Harbour Hospital.
7. On arrival at Hospital, the victim was observed to have left side facial and limb droop but with treatment he began to improve. The victim was examined and treated for the following injuries: 1. Left temporal superficial ++ nil underlying tissue visible. 2. Left external ear, entrance to EAM, between tragus and lobe. Small V‑shaped puncture wound (1cm total length) unable to see to base of wound.
8. On 24 May 2023, both the Offender and Brown were arrested in relation to the incident. They were each offered the opportunity to be interviewed but declined. Both the Offender and Brown consented to participate in a forensic procedure.
9. Forensic Analysis later returned two positive matches linking the victim's DNA to blood stain located on the shiv's handle and the prison issue shorts worn by the Offender at the time of the incident.

The CCTV footage

1. The episode was captured on CCTV footage which has been placed in evidence and played before me in open court. The Crown, relying on cases such as R v Wang (No. 1) [2020] NSWSC 1255, has submitted that the demeanour, ferocity, and purposefulness of the attack on the victim are not necessarily as visceral as they appear from the agreed facts when one looks at the CCTV footage. The Crown submits that the CCTV footage bridges the gap between the written word and the vividness of the actual offence.
2. There is no doubt from my review of the footage, that the Offender approaches the victim in a purposeful way. It is clear from his demeanour and approach that this was a planned attack, and that the victim is surprised. The footage is not consistent with the notion that there was some prearranged fight between the Offender and the victim that had been scheduled for that time.

The weapon

1. The weapon was man-made. It is obviously designed in gaol by inmates to expose victims to the maximum amount of injury. Certainly, from the weapon itself, which I have shown in the photograph earlier in these reasons, the only inference is that the Offender intended, by use of the shiv, to inflict serious injuries on the victim as is consistent with him being seen striking the victim three times to the left side of the head with the shiv.

Objective seriousness

1. I find that the attack was premeditated, violent, and the weapon used was self-evidently dangerous. The victim was unprepared for the attack and was significantly injured as a result of the attack, which undoubtedly was the intended result.
2. The Offender gave disarmingly honest and reasonably compelling evidence before me explaining his perspective as to the circumstances of his offending. His evidence is that both he and the victim had at some point when they were not in custody, been involved with the same woman romantically and sexually. This came up between them whilst in custody and, perhaps not unsurprisingly, made the Offender jealous, angry, and revengeful towards the victim.
3. He said that they had words and that the victim "called on" a fight, which is the event that can be seen on the CCTV footage. He accepts that he took the weapon to the fight and that he was aggressive in instigating the violence because it was, to use his phrase, a "kill or be killed" situation. The Offender said that he does not like the idea that he injured the victim, but that in the context of the dynamics of living in custody, he felt he had no choice at all.
4. He added that he understood that, when going to the fight, the victim would be surrounded by his group of friends and that whatever happened in the fight, unless he was significantly successful, he would end up being assaulted, not just by the victim, but by the victim's friends.
5. I have considerable sympathy for, not just the Offender, but any person in custody in the New South Wales prison system. It is unfortunately renowned that prisons in this state are violent and unpredictable worlds which, in a very real sense, seem to be governed by unwritten rules as between the prisoners which are entirely foreign to people who live in society outside the walls of gaols. The Offender's evidence before me included that he expected me not to understand his situation, that he was sorry to have injured someone, but that he felt he had no choice and that if he was confronted with the same situation in the future, he would behave the same way.
6. Accepting that NSW gaols are violent and unpredictable places where prisoners have to look out for themselves, it needs to be clearly stated that the law applies to prisoners whilst in custody. It may seem like there is another, unwritten set of laws, but that is a fiction. The same laws as apply to everyone apply to people in custody. It is not acceptable for there to be some sort of sanctioned violence between prisoners in gaols. This is the rationale behind provisions such as s 56 of the Sentencing Procedure Act. There is a need to maintain discipline within the prison system and protect other offenders from criminal assaults by fellow inmates. As has been explained in many cases such as R v Windle [2012] NSWCCA 222 at [56] and Hraichie v The Queen [2022] NSWCCA 155 ("Hraichie"), there is a real need to: "deter the commission of offences in prison" so that, in addition to inmates, "[o]fficers who administer prison communities are entitled to expect that inmates will be deterred from offending"
7. On behalf of the Offender, it is not said that the conduct of the victim inviting the Offender to a fight could amount to any sort of provocation type defence known to law. However, it is submitted that I should take into account the overall context in which the offending occurred when assessing the objective seriousness of the offending.
8. Before dealing with that submission, I should say that having reviewed the CCTV footage, I do not accept as a matter of fact that the victim was anticipating the Offender was coming to meet him to have a fight. It is clear from that footage that the victim is entirely surprised and shocked by the attack. Moreover, if the group of people who are near him at the time of the attack are his friends or "gang", then it is equally clear that they were not prepared in any way to assist him against the attack.
9. What I do accept, is that there was a falling out between the Offender and the victim over a woman and that the Offender, in the circumstances, thought it appropriate to attack the victim using a dangerous weapon, obviously with the intention of injuring him. In other words, the motivation was jealousy. That is the harsh reality of the Offender's explanation when boiled down to its essence. Looked at in that way, the explanation is plainly unacceptable.
10. I do have considerable sympathy for the Offender in that he has spent most of his adult life in custody being exposed regularly to random acts of violence, and whilst I accept that prisons have their own code and it must be terribly frightening to live in a gaol, the fact is the law applies to prisoners in custody and to justify the episode by explaining that it was a fight about a woman is, to say the least, not compelling.
11. In all the circumstances, I consider the objective seriousness of the offending to fall well above the mid-range.
12. As to the "possession" offence, it very much overlaps with the principal offence. The weapon was the shiv. The nature of the weapon is serious, and it was on the body of the Offender at the time of the attack. However, as I have said there is a significant overlapping between the facts of the two offences and I need to be careful not to double count when assessing the seriousness of either in circumstances where, for the purpose of the primary charge, I have taken into account the fact and significance of the weapon itself as a weighty matter when considering the objective seriousness of the primary charge.

The Offender's subjective case

1. The Offender is entitled, to the full extent available, to leniency because of principles found in cases like Bugmy v The Queen (2013) 249 CLR 571.
2. The Offender's background and history is as follows: 1. He is a 37-year-old Aboriginal man, who was living a transient lifestyle at the time of his arrest. 2. He has a 13-year-old child and is one of three children to his parents' union. His mother passed away from a stroke some years ago and his relationship with his extended family is in a fractured state at present. 3. The Offender's life has been marred with trauma whilst in juvenile detention where he was exposed to sexual abuse. He has recently resolved a significant claim for damages against the State and received compensation. 4. His upbringing was one in which he did not have supportive parents. His father was an alcoholic, and his mother (now deceased) was dealing with a number of mental health issues. 5. The Offender began using drugs around the time he left school in year 9 when he began socialising with an older crowd. The drug use increased after the traumatic events in custody, and he continued to turn to drugs as a coping mechanism. His criminal record is demonstrative of the type of offences which are ordinarily a byproduct of substance abuse. In particular, his record includes a number of robbery and dishonesty offences.
3. There has also been tendered a comprehensive report of Andrew Wong, psychologist, dated 2 May 2024.
4. Mr Wong sets out in detail a history consistent with the above and concludes in part: 38. Mr Stuart Clarkson is an institutionalised, chronically traumatised, and poorly socialised 37-year-old Australian male who will be sentenced for robbery and stabbing offences. He was raised in a dysfunctional family environment, where both his parents were preoccupied with their work, mental health issues, and physical health issues. As a result of their preoccupation, they were largely neglectful towards their parents, which led to Mr Clarkson being poorly socialised as he was never given adequate boundaries or guidance by his parents. His parents' emotional neglect also impaired his emotional development, where he was rarely co-regulated by his parents. Instead, he was left to witness his parents' mental health deteriorate as they abused alcohol and exhibited unhealthy behaviours toward each other. As a result, he was predisposed to emotion dysregulation and poorer social outcomes. A child with poor emotion regulation and socialisation also led to poor moral development, which is a precursor to their development of empathy. From a young age, Mr Clarkson was predisposed to personality vulnerabilities due to the emotionally neglectful, highly permissive, and abusive home environment. 39. By adolescence, Mr Clarkson had minimal trust in his family, which complicated his need for a sense of belonging with a longing for emotional safety. With minimal parental socialisation and a growing sense of frustration over his dysfunctional family, he was easily recruited into delinquent groups, which socialised him with antisocial activities and drug abuse. When he started abusing cannabis and alcohol, his mother reinforced it as appropriate by providing him with benzodiazepines. The ongoing normalisation of alcohol abuse at home had also perpetuated his reliance on substance as a valid form of emotion regulation… His mistrust in adults was further reinforced after he was sexually abused by a juvenile officer at age 16… 41. ... He had deeply ingrained antisocial core beliefs and way of life, which continued to perpetuate his maladaptive and illegal lifestyle. His ongoing violent nature was clinically driven by genuine fears for his own safety... he had only been able to remain in the community for an average of 1-2 years before being reincarcerated…Being institutionalised also contributed to his inability to independently navigate society safely and prosocially. 42. … Mr Clarkson met diagnostic criteria for the following disorder(s) based on the International Classification of Diseases, Eleventh Edition (World Health Organisation, 2019): 6B41 Complex Posttraumatic Stress Disorder with dissociative features 43. According to the Diagnostic and Statistical Manual for Mental Disorders-Fifth Edition-Text Revision (DSM-5-TR; American Psychiatric Association, 2022), Mr Clarkson met criteria for the following diagnoses: F60.2 Antisocial Personality Disorder F15.21 Amphetamine Use Disorder, severe, in sustained remission, in controlled environment F11.21 Opioid Use Disorder, severe, in sustained remission, in controlled environment F12.20 Cannabis Use Disorder, mild, in sustained remission, in controlled environment… 44. …It is important to view this personality disorder as a health issue that requires ongoing treatment and management. The metric for the severity of mental disorders is an individual's functional impairment and maladaptive behaviours. Mr Clarkson's maladaptive behaviours are in the severe end, which have led to functional impairments in that he is unable to prosocially participate in the community. Prison in NSW cannot treat inmate's trauma and they often defer trauma-work to community-based interventions. Therefore, he would unlikely receive adequate intervention while incarcerated. Instead, lengthy incarceration would further institutionalise him and perpetuate his antisocial attitudes, especially given that he was in a prison gang. I hold significant concerns for his wellbeing and lifespan should he not receive adequate mental health treatment. 45. Although Mr Clarkson's substance use disorder is deemed to be in "remission", this was because he was incarcerated in prison and hence "in controlled environment". This suggested that the moment he is given liberty, he may relapse given that he had not yet acquired the relevant skills to manage his substance dependence and mental health independently. His prognosis is fair, especially because of the complexity of his mental health issues, that he had never received standard mental health intervention, and that he was beginning to accept support from others… 47. Mr Clarkson would benefit from the following: If he is given a custodial sentence: Violent Offender Therapeutic Program (VOTP). Psychological intervention for his poor coping and drug dependence. EQUIPS Program in custody. Narcotics Anonymous. Upon his release or if he is given a non-custodial sentence: Long term, ongoing psychological intervention. He would require long-term psychological intervention to re-parent him with healthier moral reasoning and manage his trauma. He would benefit from Trauma-Informed Cognitive Behaviour Therapy along with moral-based elaborative reminiscing to enhance his perspective taking, empathy, and moral reasoning. He would also require emotion identification and regulation training to replace his need to use drugs to regulate his emotions, which can be drawn from Dialectical Behaviour Therapy approaches. Assessment of his adaptive functioning by an Occupational Therapist. NDIS funding, especially given his severe mental health diagnoses and poor adaptive functioning due to his constant re-incarceration and institutionalisation. Once he obtains NDIS, the funding should support his prosocial lifestyle for the remaining of his life. Residential alcohol rehabilitation for at least 8 weeks. Ongoing outpatient drug use counselling. Narcotics Anonymous. Supervision period of at least 3-years to ensure his compliance with this treatment plan.
5. I accept Mr Wong's recitation of the facts, his diagnosis, and recommendations. Accordingly, I find: 1. The Offender, through no fault of his own, had an extremely deprived background and childhood; 2. Again, through no fault of his own, the Offender was exposed to significant trauma throughout his childhood; 3. The Offender has spent large portions of his life in custody and is "institutionalised"; 4. The Offender was sexually abused at the age of 16 whilst in juvenile detention; 5. The Offender has had, since the age of 13 a significant alcohol, drug, and gambling abuse history, and for reasons I will come to has a significant criminal career which started around the age of 14; and 6. As a consequence of his background and upbringing, the Offender has severe mental disorders which will probably get worse if he is further incarcerated and does not receive adequate treatment.
6. When it was just the Robbery Offence that was before me, the Offender presented as a man who understood that the consequences of his drug addiction was the root cause for his committing the Robbery Offence, and indeed his long history of criminal offending, and was determined to become free of drugs and wanted the opportunity to use any compensation he received from the State as a result of the sexual abuse he suffered to be put to that end. In short, he presented as someone who, notwithstanding his long history of offending, was determined to "turn the corner" and try to turn his life around.
7. The adjournment was beneficial in one way. The mediation was successful, and the Offender has received a significant amount of money which remains available to be used to assist with his recovery from his addiction and mental issues. On the other hand, the adjournment was not beneficial for the Offender because it has brought before me evidence of the 18 May Offence, which cannot so easily be explained away by reference to the Offender's drug issues.

The Offender's criminal history (s 21A(2)(d))

1. This is not simply a case where the Offender is disentitled to leniency due to some previous criminal convictions. His long-term criminal history also becomes important when assessing his prospects of reoffending. The Offender's criminal record includes, and this is only a brief summary, prior robbery offences for which the Offender has received lengthy terms of imprisonment: 1. Robbery in company committed 1 March 2006. 2. Robbery armed with offensive weapon (2 counts) committed 5 May 2013. 3. Assault with intent to rob armed with offensive weapon (2 counts) committed 6 May 2013. 4. Robbery armed with offensive weapon committed 6 May 2013.
2. Although the Offender did not commit any robberies between 2013 and 2022, this was only because he was serving lengthy terms of full-time imprisonment during that period. He continued to commit other criminal offences upon release, including the Dishonesty Offence just one week prior to the instant Robbery Offence. Moreover, his record of conduct whilst in custody (not limited to the 18 May Offence) is again, to say the least, suboptimal.
3. The Offender has had the benefit of supervision on a number of prior occasions, which appears to have had no beneficial impact at all on him reoffending. This strongly suggests that custodial sentences have had no subjective deterrence effect at all, rather they have led to him being institutionalised. The only positive benefit from his time in custody to date is that it protects the community, although it does not stop him from offending in custody.

Pleas of guilty

1. The Offender entered pleas of guilty in the Grafton Local Court on 13 February 2024 in relation to the 18 May Offence and pleaded to fresh charges in relation to the Robbery Offence at the first possible opportunity.
2. The Offender is thus entitled to a 25% discount on sentence for the 18 May Offence. There is no issue as to this.
3. As to the Robbery matter, the question is, did the Offender plead to the charge at the first available opportunity? The Offender's position is that he did because he pleaded to the fresh charge on 17 January 2024, the moment the fresh indictment was presented. Thus, he contends he is entitled to the full 25% discount prescribed for by s 25D of the Sentencing Procedure Act.
4. The Crown submits that the first available opportunity to plead was 7 September 2023, when the Crown made what was described in submissions to me as an "offer" that the matter could be resolved if the Offender pleaded to "robbery simpliciter".
5. The actual terms of that "offer" were as follows: Dear Daniel The Crown enquires whether there are prospects in resolving this matter, by way of: Plea of guilty • Robbery simpliciter - s 94(a) Crimes Act 1900, The above is provisional, is subject to internal consultation and agreement as to facts. Regards
6. I set out the relevant portions of s 25D(4) below (my emphasis): (4) However, the discount … does not apply if - (a) the facts or evidence that establish the elements of the new count offence are substantially the same as those contained in the brief of evidence or other material served on the offender by the prosecutor in committal proceedings relating to the original indictment and the penalty for the new count offence is the same as, or less than, the offence set out in the original indictment, or (b) the offender refused an offer to plead guilty to the new count offence that was made by the prosecutor in the committal proceedings relating to the original indictment and the offer was recorded in a negotiations document…
7. It is not suggested that s 25D(4)(a) is engaged, rather, the Crown relies on s 25D(4)(b). In my view, on the most liberal interpretation, the email from the Crown to the Offender was not an offer capable of acceptance in a contractual sense. Even if some looser concept is to be applied, the email is no more than an "enquiry about whether there are prospects of resolving this matter" and is expressly "subject to internal consultation and agreement as to facts". It can therefore not sensibly be said that the Offender not responding was a refusal of an offer engaging s 25D(4)(b), which is the only basis why the Crown contends that the 25% discount does not apply.
8. When a fresh indictment ultimately was presented, the Offender did plead to it on the very day it was presented.
9. For those reasons I am satisfied that the Offender is entitled to the full 25% discount in relation to the Robbery matter.

Remorse

1. The Offender's guilty pleas are perhaps some evidence of remorse and contrition. However, I give that little weight because the Crown case in relation to both matters was to my mind overwhelmingly strong and the prospects of conviction close to inevitable.
2. The Offender has expressed some remorse about the offences which is recorded in Mr Wong's report and, in relation to the Robbery Offence, in a letter to me. He has said the same to me in his oral evidence. I accept he is remorseful as to the Robbery Offence. He is regretful as to the 18 May Offence but, as I have explained, considers it was his only sensible course in the context of a falling out between prisoners in custody. He feels that in the same circumstances, he would behave in the same way. That regret, which I accept, is not remorse or insight, as those terms are understood in this context.

Prospects of rehabilitation

1. I accept that the Offender has demonstrated some emerging insight into his mental health issues and the connection between those issues, his drug and alcohol dependency, and his offending.
2. He has shown a real willingness to seek psychological intervention to try and overcome his antisocial issues, which undoubtedly are a consequence of his deprived upbringing and the sexual assault he suffered as a teenager.
3. Mr Wong has recommended that future risk management factors include the need for professional services, stable living situation, personal support, treatment or supervision response, and stress coping. Mr Wong has also said that the Offender requires a high level of monitoring and care, including specialised psychiatric and psychological treatment to manage his risk of recidivism.
4. Unfortunately, in light of the Offender's deprived background, for which he is entitled to leniency, and his lack of any real connection with the community, I think his prospects of successfully undergoing all the therapy recommended by Mr Wong in the future in a way that is successful are at best remote. The one bright spot is that the Offender now does have the financial ability to afford private treatment upon his release from custody. I do worry, however, that by the time he is released that money will be gone. He has promised me this will not happen, and I accept that is his intention, but it is a matter of concern.
5. In light of his long history of repeat offending, his failed attempts in the past to become drug-free, together with the fact that he is institutionalised, I think the best I can say in favour of the Offender is his prospects of rehabilitation are at best guarded.
6. The 18 May Offence stands in a separate category. There is no suggestion that he was drug-affected. It obviously is however connected to his mental health issues and anti-social disorders. It is also a consequence of him already being institutionalised. I have already explained how the Offender is regretful of what happened, but he did say that in the same circumstances he would do it again. I do not think this attitude will change. Whilst I sympathise with his perspective and believe he is being honest, I must uphold the law in the custody context. To do anything else might lead to an even greater deterioration of law and order in the state prison system than already appears to exist.

Resolution

1. Section 3A of the Sentencing Procedure Act requires the court to take into account a series of well-known factors.
2. As has been observed on many occasions, and this can readily be seen in this matter, these factors often point in opposite directions.
3. I start with almost putting to one side subjective deterrence. It is an objective fact that the Offender has been sentenced to many periods of imprisonment in the past, and they do not appear to have had any impact on his continued offending.
4. In relation to robbery offences of the type before me, the Henry guideline judgment makes it clear that the community considers such offending serious and expects serious consequences to follow. The same can be said, perhaps with more emphasis, in relation to violent assaults and the carrying of prohibited weapons. Regardless of if they occur within a custodial sentence setting or not, they are serious, and the community needs to understand that they will be treated seriously by the Courts and will be met with significant punishment. I have already explained why, in a prison setting, general deterrence becomes even more important.
5. The Offender's prospects of not reoffending again are largely coextensive with his chance of becoming drug-free and having his mental health issues treated. Giving him every benefit of the doubt, and I wish him well, the best I can say in that regard is that his prospects are guarded. Accordingly, I have to conclude that reoffending remains the most likely outcome following any period of custody, and perhaps even whilst in custody.
6. There is no doubt that the Offender's moral culpability is reduced significantly because of his background of mental illness and his deprived background and upbringing. I have taken that into account in his favour.
7. Whilst I consider general deterrence and protection of the community very weighty matters, on the other hand and pointing in the other direction is that, because of his subjective circumstances, the Offender does not present as an appropriate vehicle for the full force of general deterrence: R v Hemsley [2004] NSWCCA 228 at [33] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. That being said, protection of the community remains a significant concern.
8. Finally, the Offender unfortunately is disentitled to the leniency he may otherwise be entitled to due to some of the other sentencing factors because of his sorry and long criminal history.

Totality/accumulation/proportionality/s 56

1. Notwithstanding that the Robbery Offence, the Dishonesty Offence, and the 18 May Offence are each of a different nature and occurred at different times in very different circumstances, ultimately when considering an aggregate sentence, or if there is not to be an aggregate sentence the total of consecutive sentences, that total must be "just and appropriate". As was explained in Mill v The Queen (1988) 166 CLR 59 at 63: when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'
2. Or as Street CJ explained in R v Holder [1983] 3 NSWLR 245 at 260: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
3. There is often said to be a desire by the courts to endeavour to avoid "crushing sentences", tempered by the counter balancing concern for public confidence being maintained in sentencing by not sending a message to the effect that, the more a person offends, that a discount of sentence is obtained. These concerns, together with the overarching concept of "proportionality" are all, if not wrapped up in the overall concept of totality, at least not unrelated to that concept: R v MAK [2006] NSWCCA 381 ("MAK") at [17].
4. An extremely lengthy sentence may not necessarily be characterised as crushing if it reflects the total criminality of the Offender's conduct and would not be disturbed on appeal because the Offender may feel crushed by it: Stanton v R [2017] NSWCCA 250 at [153]; ZA v R [2017] NSWCCA 132 at [76] - [85].
5. Fundamentally and at the heart of the sentencing process is the principle of proportionality, as explained by McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308: the Court … adjust[s] the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

Section 56 of the Crimes (Sentencing Procedure) Act

1. There is an added layer of complexity in this matter. Section 56 of the Sentencing Procedure Act has application to the offence committed in custody.
2. Section 56 is in the following terms (my emphasis): 56 Sentences for offences involving assault by convicted inmate (1) This section applies to - (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or… …(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender - … …(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence… …(4) A direction under this section has effect according to its terms. (5) In this section, a reference to a sentence of imprisonment is taken to be a reference to - (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set…
3. "Convicted inmate" is defined as the following (my emphasis): Crimes (Sentencing Procedure) Act 1999 3 Interpretation (1) In this Act - convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999. Crimes (Administration of Sentences) Act 1999 3 Interpretation (1) In this Act - convicted inmate means a person referred to in section 4 (1) (a), (b), (c), (c1), (d1) or (d2) 4 Application of Part (1) This Part applies to - (a) any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole, and (b) (Repealed) (c) any person the subject of a warrant under section 181 of this Act by which the Parole Authority has committed the person to a correctional centre to serve the remainder of a sentence by way of full-time detention, and (c1) any person the subject of a warrant under section 20 of the Crimes (High Risk Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order, interim detention order or emergency detention order under that Act, and (c2) any person the subject of a warrant under section 49 of the Terrorism (High Risk Offenders) Act 2017 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order, interim detention order or emergency detention order under that Act, and (c3) any person the subject of a continuing detention order or interim detention order in force under Division 105A of Part 5.3 of the Commonwealth Criminal Code who, under an arrangement with the State under section 105A.21 of that Code, is detained in a correctional centre, and (d) any person the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence committed, or alleged to have been committed, by the person, and (d1) any person the subject of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987 by which the Children's Court has committed the person to the control of the Minister administering this Act, and (d2) any person who is the subject of a warrant under section 170 (1) (a) of the Defence Force Discipline Act 1982 of the Commonwealth by which an authorised officer under that Act has committed the person to a correctional centre pursuant to a punishment of imprisonment imposed under that Act,
4. As a reminder I set out the relevant dates and events: 1. On 3 November 2022, the Offender committed the Dishonesty Offence. 2. On 10 November 2022, the Offender committed the Robbery Offence in relation to the victim Kevin Menechian. 3. On 13 November 2022, the Offender was arrested in relation to the Robbery matter. He has remained in custody since this date. 4. On 18 May 2023, whilst in custody, the Offender committed the 18 May Offence. 5. On 29 September 2023, the Offender was sentenced for the Dishonesty Offence to a period of imprisonment for six months to commence 30 March 2023 and expiring on 29 September 2023.
5. So, it can be seen that the 18 May Offence is caught by the first component of s 56(1)(a), in that it involved an assault committed by the offender whilst in a correctional centre.
6. The second component of s 56(1)(a) is that the offence be "committed by the person while a convicted inmate of a correctional centre". By reference to the definition in s 3 of the Crimes (Administration of Sentences) Act 1999, a person in a correctional facility on remand but not subject to a sentence is not a "convicted inmate". At the time of the offence, that is 18 May 2023, the Offender was in custody only because he was on remand for the Robbery Offence. However, he was later deemed to be serving the sentence for the Dishonesty Offence, which was backdated commencing on 30 March 2023 and was to expire on 29 September 2023. Therefore, so the Crown's oral submission went, the offence was committed by the Offender whilst he was a convicted inmate in a correctional centre. The Offender says this is wrong and the question must be determined by reference to the situation as it existed at the time, not as it is deemed to be with the benefit of hindsight.

The competing meanings of s 56(1)(a)

1. The Crown's oral submission was that s 56(1)(a) is engaged because, looking at matters now with the benefit of hindsight, the Offender was a "convicted inmate" at the time of the offending, because by virtue of the subsequent sentence imposed by the Local Court Magistrate, a custodial sentence was backdated so as to cover that time.
2. On the other hand, the Offender contends that the proper construction of s 56(1) is that the question of whether the Offender was a "convicted inmate" needs to be judged at the time the offence was actually committed.
3. This question was touched upon by the Court of Criminal Appeal in Hraichie from [40] - [52], but I do not think it was decided in an authoritative way. Rather the result seems to have been assumed.
4. In the absence of direct authorities, I approach it as a matter of statutory construction.

Resolution as to s 56

1. Dealing with the statute by reference to its text, purpose, and context, firstly, when I consider the text, it seems to me the phrase "committed by the Offender while a convicted inmate" as a matter of grammar more easily draws attention to the actual time of the committing of the offence and poses the question whether, at that point in time, the Offender was a convicted inmate. Secondly, in relation to context and purpose, the purpose of the section is clear and I have already referred to what the Court of Criminal Appeal said in Hraichie, it is to promote discipline and prevent violent crimes being committed by prisoners against either each other or correctional officers whilst in custody. However, that purpose is not at large, the provision is expressly limited to people who fit within the definition of "convicted inmates". In other words, one purpose which can be discerned from the words is that not every inmate in a correctional centre will be subject to the provision of s 56(1), rather only inmates who fit within the definition "convicted inmate". The same observations can be made as to the context in which the section is found.
2. The construction initially contended for by the Crown, if correct, works a surprising result, that being that s 56(1)(a) might apply to people in circumstances where the event that causes it to apply to them has not yet occurred. In other words, it leads to an outcome wherein people will not know and cannot know whether that particular provision is applicable or not. Secondly, it leads to an outcome driven perhaps by nothing more than happenstance. For example, in this case the Magistrate did not have to backdate the sentence he or she imposed to March. It would have been open to the Magistrate to craft a custodial sentence in many ways that would have produced the same substantive outcome for the Offender, one that engages s 56 and one that does not. I do not think that such randomness was intended by the Parliament when s 56 was enacted.
3. For those reasons, I conclude that the provisions of s 56(1) do not apply to the Offender and it is therefore open to me to deal with the various matters before me by way of an aggregate sentence. This is what I propose to do.
4. After I reserved my decision and had reasoned through the s 56(1) issue, the Crown sent some supplementary written submission on the s 56 issue, and stated those written submissions superseded previous submissions by the Crown on that topic.
5. The Crown referred me to R v Jeremiah [2016] NSWCCA 241 ("Jeremiah"). I was heartened to see that at paragraph [12], it was held by the Court of Criminal Appeal that s 56 of the Sentencing Procedure Act did not apply to the Offender in that case because he "was not a "convicted inmate" at the time of the assault". In the context of the facts in Jeremiah, that must have been because the offender was not a sentenced prisoner at the time of the assault, notwithstanding that a sentence was later imposed upon him where the non-parole period component overlapped with the prison assault.
6. The Crown nonetheless relies on Jeremiah because it points out that also in that case it was held that full accumulation was warranted even though s 56 did not apply because, at [11] - [12], the Court held that the same policy considerations arose. In that case at [12], the Court of Criminal Appeal said: "but the full accumulation which the court on this appeal considers appropriate is certainly not in tension with the objectives of section 56"
7. Whilst I accept and have already referred at length to the significant policy considerations concerning the protection of inmates and other people from violent crimes in custody, when I consider the matter from a totality or proportionality perspective, I am satisfied that whilst there ought to be some accumulation, there also should be a significant amount of overlap between the sentences. To do anything else will result in what I consider a disproportion between the sentence and the total criminality.

Section 5 threshold

1. There is no suggestion that in relation to both the Robbery Offence and the 18 May Offence, the s 5 threshold has been satisfied and that each on its own would require, as a minimum, a custodial sentence.

Time in custody

1. There is considerable overlap between the question of how much of the time that the Offender has been in custody since 13 November 2022 ought to be accepted as relevant to the start date for any custodial sentence I impose and the separate but related questions of totality and proportionality.
2. The Crown accepts that the proper application of the totality principle applies so that the six months sentence that has been served for the Dishonesty Offence does have relevance to the commencement date for any sentence I impose, although the Crown submits that the sentence should not be wholly backdated.
3. I think the only sensible and rational way to approach the question is to ask myself the question, by reference to a combination of the totality and proportionality principles, what impact on an overall aggregate sentence would the Dishonesty Offence have had if it was dealt with by me at the same time as the Robbery and 18 May Offences.
4. Doing the best I can, and there is no science to this, I think that the Dishonesty Offence would have impacted on an overall aggregate sentence by increasing what it otherwise would have been by about three months, and accordingly I have decided to count only three months of the period the Offender was in custody in relation to that offence as unrelated to the matters before me.
5. What all that means is that I propose that the sentence I am about to impose be backdated so as to commence three months after 13 November 2022, being 13 February 2023.

Resolution

1. I propose to impose an aggregate sentence taking into account all of the criminality involved, not just in the matters before me but also the Dishonesty Offence. I propose to wholly aggregate the two 18 May Offences because I think the s 166 offence is wholly subsumed by the primary charge. I have endeavoured to try and keep the aggregate sentence proportional to what I consider to be the overall criminality involved, especially in light of the Offender's deprived background, I have been very conscious of the need to avoid a "crushing sentence", in the sense of leaving him with no hope. The Offender is already institutionalised, but I have found that the Offender has some prospect of being rehabilitated and therefore not reoffending. I am afraid to say that I assess that prospect as something less than probable and probably towards the lower end of possible. That being said, I am not prepared to give up on him, and wish to give him another chance.
2. Having regard to the Offender's criminal history, the extreme violence involved in the 18 May Offence, and the fact that that offence occurred in custody, general deterrence and protection of the public from further offending are extremely weighty matters.
3. In relation to the Robbery Offence, I indicate that I would have imposed a sentence of four years imprisonment with a non-parole period of three years, such sentence to commence 13 February 2023.
4. In relation to the 18 May Offence in custody I indicate a sentence of 6 years for the primary charge and 1 year for the s 166 offence. I would, however, wholly accumulate those sentences to 6 years.
5. From each of those indicative sentences there needs to be deducted 25%, being 3 years for the Robbery Offence, with a non-parole period of 2.25 years and 4 years for the aggregate of the 18 May Offence with a combined non-parole period of 3 years.

Special circumstances

1. I think it is quite clear from the facts I have already found that I consider that any prospect of the Offender being rehabilitated, and thus reducing his prospects of reoffending, will be greatly enhanced by a longer period under supervision than the usual proportion. There is of course no guarantee that the Offender will be granted parole when he becomes eligible. If he continues to conduct himself in custody, as his custodial record indicates he has in the past, that prospect may in fact be illusory.
2. Nonetheless, I do want to give the offender every chance and have decided to significantly decrease the proportion of time spent in custody to 50% of the term.

Conclusion

1. I indicate the following sentences, after the 25% discount: 1. The Robbery charge - 3 Years, with a non-parole period of 2.25 years. 2. The 18 May primary charge - 4 years. 3. The 18 May s 166 charge - 9 months. 4. I indicate I would have wholly accumulated the 18 May Offences to 4 years with a non-parole period of 3 years.
2. I impose an aggregate sentence of 5 years to commence on 13 February 2023.
3. I impose a minimum non-parole period of 2.5 years commencing 13 February 2023 and expiring 12 August 2025.

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