CRIMINAL LAW - Sentence - Armed robbery - In company - Offender on parole at time of offence - Parity
Cases Cited: R v Henry [1999] NSWCCA111
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW - Sentence - Armed robbery - In company - Offender on parole at time of offence - Parity
Cases Cited: R v Henry [1999] NSWCCA111
Judgment (3 paragraphs)
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Solicitors:
Director of Public Prosecutions
File Number(s): 2013/137497
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SENTENCE
HIS HONOUR: All armed robberies are serious, but some are more serious than others. I have an example of a serious armed robbery before me at the moment as I am called to sentence Nash Steven Cobb. He was convicted by a jury of one offence of armed robbery. That trial was conducted before her Honour Judge Wilson SC as she then was. As a result of her Honour's elevation, I am to sentence Mr Cobb for what he did.
While on parole and while under the effects of drugs, the offender and two other men disguised themselves and went into a hotel in Merewether. The hotel was closing for the night, but there were still a number of patrons and bar staff there. The offender had a very frightening weapon with him. It was described as a sword or machete. One of the other offenders, a man called Lane, also had a machete and the third, a man called McGee, had a large knife. Tendered in the trial, but not before me on sentence, was CCTV footage of the relevant events.
The offenders turned up in a stolen car. The offender went into the hotel first with the others behind him. Once inside the offenders told those patrons and staff who remained in the hotel to lie on ground. One of the patrons, a man called Mr Sandoz, was not immediately compliant. This caused the offender to first poke him with the weapon he had, striking him with the weapon. Lane then hit the unfortunate Mr Sandoz with the machete to his neck and head and forced him onto the ground. Fortunately for Mr Sandoz and fortunately very much for the offenders including Mr Cobb, Mr Sandoz suffered only minor injuries. Another patron also resisted. He threw a glass at the perpetrators which caused Mr Cobb to throw two glasses and an ice bucket forcibly back at the patron.
The offender demanded money from a young lady member of the bar staff, Ms Walker. He held the weapon that he had in his hand very close to her face. He was told that the money was in the office so he ordered her to go towards the office and demand entry. Ms Rickard, another employee, was inside the office. She opened the door, Ms Walker came in and Ms Rickard closed and secured the door before the offender could enter. This did not cause Mr Cobb and his co-offenders to give up. Mr Cobb continued to bash the door and demand entry. Sensibly, in order to protect staff and patrons who were outside the locked door, Ms Rickard opened it.
The offender came in and took $30,000 from the desk and the safe. Ms Walker and Ms Rickard then went through a door from the office that leads onto the street. The offender followed them, but then went back to the main door of the hotel and told Lane and McGee to leave. They got into the car, which had been left in a nearby street, and drove away. McGee did not get much; only $1,600, but the rest was split between this offender and Lane, each getting something in the order of $14,000. Some hours after the robbery the offender used part of his proceeds of the robbery to buy a Commodore motor car.
A statement of agreed facts, prepared for me because I was not the judge who conducted the trial, indicates that this offender and Lane were the driving force to commit the offence.
Very sadly, this is not the offender's first offence of this type. He has a large number of offences on his criminal history beginning when he was a juvenile. Some of the offences are offences of great seriousness. When he was 16 he was sentenced for assault with intent to rob causing grievous bodily harm. He has been dealt with for an offence of being an accessory after the fact to armed robbery. In August 2010 he was sentenced by Judge Blackmore for offences which included robbery in company, using an offensive weapon to prevent detention and damaging property.
Other offences of violence, numerous of them, appear on the offender's criminal history as well as offences of dishonesty and driving offences. It is very said to relate that the offender has spent an enormous proportion of his life in custody. His time free in the community has been limited indeed, with perhaps the longest period of freedom being the nine months leading up to the commission of the offence for which I must sentence him.
The offender is an Aboriginal man born in Walgett. His schooling and work history has obviously been affected by the circumstance that he was detained in Juvenile Justice some months after commencing year 7. He has completed his School Certificate whilst in Juvenile Justice and has done some work, for example, as a landscaper, as a linesman and as a runner for a bookmaker, but on each occasion his period of work has been interrupted by him being sentenced to incarceration.
The offender told Dr Bench a psychiatrist, that he grew up "pretty much in custody". Despite that he has managed to form a relationship. There are two children who live with their mother in Coffs Harbour. Mr Cobb has a number of siblings. He told Dr Bench that a number of his brothers were alcoholics, both his parents have used cannabis all their lives and one of his sisters has been diagnosed with schizophrenia while one of his brothers has been diagnosed with schizophrenia with attention deficit hyperactivity disorder.
The offender has a great deal of trouble with alcohol and drugs. His alcohol consumption is such that he drinks to the extent of having alcoholic blackouts regularly. Consistent with his parental role modelling, he started using cannabis at age 11. He has used drugs such as amphetamines in the past and indeed he had last used opiates, something he only uses whilst in custody, on the morning he was evaluated by Dr Bench. Dr Bench concluded that Mr Cobb met diagnostic criteria for a number of illnesses and disorders; poly-substance dependence, psychotic disorder not otherwise specified in remission, and antisocial personality disorder. He was treated with anti-psychotic medication at the time he saw Dr Bench and not using amphetamines which Dr Bench concluded it was a reason that Mr Cobb was free from psychotic symptoms and had been for some time.
The prospects of Mr Cobb's rehabilitation are bleak, of course, given his extensive criminal history, but one glimmer is provided by his compliance with his anti-psychotic medication and another glimmer of hope is to be found in the circumstance that he has received only one charge an institutional nature whilst in custody of, that is, an offence described as "throw article" which took him 28 days off a number of otherwise enjoyable activities in gaol.
I mentioned before that the offender was on parole at the time of this offence. He had actually been doing reasonably well for a while, living with his partner and their children in Coffs Harbour, but when he was forced to move out of home as a result of an incident and came back to Newcastle he soon resorted to his old ways using drugs and mixing with people such as Mr Lane. After his arrest for this matter on 10 December 2012 his parole was of course revoked. He served the balance of the sentence imposed by Judge Blackmore until 3 July 2013. Of course, it is a seriously aggravating factor that the offender was on parole at the time of this offence, however, I have to be careful not to double count. I have decided to commence the sentence that I will announce on Mr Cobb from 3 July 2013.
I should make it clear, I suppose, that I have made a finding that the offender has a continuing attitude of disobedience towards the law. He needs to be personally deterred from doing what he has done for many years of his life. One day, and we all hope this is sooner rather than later, Mr Cobb is going to realise the futility of the life he has been leading. There are many things in the community, enjoyable, things, which simply are not available in custody. Mr Cobb will one day realise that he has missed out on a lot of those things. He only has one life to lead and if he continues as he has been, his life will be wasted.
Of course, I have to take into account the guideline judgment in R v Henry [1999] NSWCCA 111, 46 NSWLR 346, but there are many factors in this case which are significantly different from the ordinary case postulated by Spigelman CJ. This offender has far from a limited criminal history. He did not plead guilty. He was in company at the time of the offence and actual violence was inflicted. All of those factors mean that a much longer sentence than that proposed in the guideline judgment is appropriate.
I should mention two particular circumstances regarding Mr Cobb's life which I have taken into account. The first is that remarkably, and yet it would seem truthfully, he has told people that as a 13-year-old he was sexually assaulted by two Juvenile Justice workers. The consequences for Mr Cobb at having been the victim of such an offence are obvious. They were scarcely likely to assist him, a young boy with significant challenges already, in making the right decisions as a youth. The other factor concerns a physical injury that he suffered; extensive burns to a significant part of his body. I am satisfied that those two circumstances will mean that the offender's time in custody will be harder than it would otherwise have been. I have taken, as I have said, those circumstances into account.
I should also mention the principles of parity. Quite appropriately, the sentences imposed on Mr Lane and Mr McGee were made known to me, as was information concerning such things as their background and criminal history. I have to be careful to ensure that the offender does not have a justifiable sense of grievance when he compares his sentence with those imposed on Mr Lane and Mr McGee.
I note, for example, that both of them pleaded guilty and Mr McGee's sentence was further reduced by an undertaking to give evidence against this offender. I note that they were also sentenced in relation to other matters. I have certainly taken parity into account in deciding the sentence to impose upon this offender and indeed I have to say that were it not for the other sentences, I would have imposed upon this offender a significantly longer sentence.
Mr Moir made submissions to me that I would find special circumstances in the offender's favour. I will accept that submission. Quite clearly the offender will need an enormous amount of assistance if he is to avoid becoming one of those sad people we see from time to time who realise only far too late that they have wasted their lives by spending most of them in custody. However, the non-parole I am shortly to announce is the minimum that I consider properly reflects the offender's culpability.
I return to where I started. This offence was a very serious one. Three offenders armed with nasty weapons demonstrated that they were prepared to use them. The people involved must have been terrified and this was all so that Mr Cobb and his co-offenders could get a bit of money. Not for them hard work and dedication. For them, obtaining money at the expense of the wellbeing of innocent members of the community was a decision easily and lightly taken.
The sentence I will now announce reflects just how wrong the offender's conduct was. The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 3 July 2013. It will expire on 2 July 2018 on which day the offender is eligible to be released to parole. I set a head sentence of eight years.
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Decision last updated: 11 May 2015