R v Coe; R v Singh

District Court of NSW|2020-11-19

Director of Public Prosecutions (NSW) (Crown) Pinnacle Legal Group (Coe) The Shopfront Youth Legal Centre (Singh) File Number(s): 2019/00220923 (Coe) 2019/00220830 (Singh)

Introduction

These are sentence proceedings for Richard Coe and Shyarlm Singh. The offenders appeared for trial before me sitting as a judge alone presented upon an indictment which alleged four offences. The first of those, Count 1, contrary to s 87(2) Crimes Act 1900, alleged that they: "On 7 July 2019, at Canterbury in the State of New South Wales, did rob SY of certain property, namely, an iPhone 7, $25 AUD and a Commonwealth Bank card the property of SY whilst being armed with a dangerous weapon, namely, a hand gun."
Counts 2, 3 and 4 were contrary to s 192E(1)(a) Crimes Act 1900. These alleged: Count 2: "On 7 July 2019 at Canterbury in the State of New South Wales [they] did by deception, that is, by using the stolen bank card of SY, dishonestly obtained a financial advantage, namely a cab fare for $11.66." Count 3: "On 7 July 2019 at Campsie in the State of New South Wales did by deception, that is, by using the stolen bank card of SY, dishonestly obtained various food items to the value of $63.44, the property of Budget Petrol, 403 Canterbury Road, Campsie." Count 4: "On 7 July 2019 at Canterbury in the State of New South Wales did by deception, that is, by using the stolen bank card of SY dishonestly obtained various items to the value of $104.20, the property of BP Canterbury, 322 Canterbury Road, Canterbury."

Maximum Penalties

The maximum penalty specified for Counts 2, 3 and 4 is in each case imprisonment for ten years, although I note that by reason of the quantity or the value of the property obtained for those offences could have been disposed of in the Local Court where the jurisdictional limit of two years would have applied.
Upon the charge of robbery armed with a dangerous weapon, the maximum penalty is imprisonment for 25 years. There is no standard non‑parole period specified for any of these offences.
I delivered judgement at the conclusion of the trial on 3 September 2020. I found the accused Coe guilty of the first count on the indictment of robbery armed with a dangerous weapon, and found the accused Singh not guilty of that offence but him guilty in the alternative of an offence of robbery in company contrary to s 97(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. Once again there is no standard non-parole period specified for that offence for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Findings at Trial

The decision made with regard to the verdicts of guilty and not guilty respectively for Count 1 arose from the nature and circumstances of the offence of robbery. At the time it was perpetrated Coe was armed with a toy pistol which gave all the appearance of a semi-automatic perhaps 9 millimetre weapon which was in fact constructed of plastic, but to the observer, without having the opportunity to touch or assess the weight of the weapon, could be clearly misled into believing it was an actual pistol. The accused Singh, now the offender Singh, was not with Coe at the point where he confronted the victim, but was standing some little distance off performing the role of lookout.
In the investigation that followed, upon the execution of a search warrant at Singh's home, an item comparable to that which was seen by the victim, thought to be a pistol with which Coe was armed, was found in circumstances where it was within Singh's possession, and as a circumstance, taken with all the other facts and circumstances provided by direct evidence, it satisfied me beyond reasonable doubt of Singh's participation in the robbery. However, the element of being armed with a dangerous weapon was an essential element of the charge upon which he was presented, and the circumstances before me did not allow me to conclude beyond reasonable doubt that this element had been established, even taking into account all other basic facts and circumstances giving rise to the inference as the only logical and rational conclusion that he was a principal in the commission of a robbery offence.
My judgement [1] dealing with this question commences at p 16 where I wrote the following: "However, there is a question in my mind as to whether or not it can be shown that the accused Singh is guilty of that aggravated form of robbery in company. I am satisfied that he was a participant in the robbery. I have come to the decision regarding their complicity, accepting the circumstantial case for which the Crown contends, and this includes that when the bedroom of the accused Singh was searched, the plastic pistol, exhibit F, was found. But there is no direct evidence that that was the item that was used. I accept the basic fact that the weapon was found in his room for the purposes of the circumstantial case, analysis upon which I am required to embark, but it is another question whether or not I could be satisfied beyond reasonable doubt that the item was a dangerous weapon according to the law and was the item used to the knowledge of the accused Singh."
The evidence included that after the robbery both men walked to Singh's home nearby in Canterbury. There was a change of clothing before they then travelled by taxi to a petrol station on Canterbury Road, and then later to a second service station further along Canterbury Road where the bank card was used in transactions. It is open to find that the accused Coe discarded the firearm to Singh's home, which was after the commission of the robbery, but I was troubled by a finding upon the evidence available that the item located was, to Singh's knowledge used in the robbery.
The Crown pointed to the extent to which there must have been pre-planning before the commission of this offence. Mr Evers pointed to the evidence elicited in cross-examination in terms that there were children in the accused's home, and that other toy guns were found at the location that did not readily answer the description that can be attributed to the weapon admitted as exhibit F.
Ultimately, I am not persuaded beyond reasonable doubt that, in respect of the accused Singh, it can be shown that he is guilty of the offence charged contrary to s 97(2) Crimes Act 1900, but I am satisfied of his guilt in respect of the alternative upon which the Crown relies.
With regard to the accused and their respective liability, it should be noted that the evidence from the victim establishes that the person who robbed her, found to be the accused Coe, was armed with an item which, upon her evidence I am satisfied meets the description in s 4D(3) Firearms Act 1995. The evidence though does not show that the item found in the home of the accused Singh was the item that was used in the robbery as a weapon, and though I am satisfied of the presence of that item in the accused Singh's bedroom as part of the circumstantial case against him, implicating him in the commission of the robbery, I could not conclude beyond reasonable doubt that he had knowledge of the existence of that item used by Coe in the commission of the crime. I have not overlooked what the Crown has said about pre-planning.

The Pleas of Guilty to Counts 2, 3, and 4

The offences charged in Counts 2, 3 and 4 were not contested in the trial against the following history. When the matter came before me, the first application to be determined was whether or not the accused Coe should be permitted to resile from his pleas of guilty before then entered to those counts. There was discussion that followed and over a number of days counsel appearing for him sought further time to continue with her conferencing for the resolution of instructions and the preparation of an application to withdraw from the pleas of guilty entered earlier upon arraignment.
The accused Coe sought to go behind those pleas of guilty and there was a contested hearing upon whether he should be permitted to do so. I ultimately ruled that he should not be permitted to withdraw those pleas of guilty and I held him bound by them. That has an implication for the extent to which he should have the benefit of a discount for the utility of those pleas of guilty.
A submission was put to me in terms that he should receive a discount of 25% upon the application of s 25F(4) Crimes (Sentencing Procedure) Act 1999. I do not accept that submission. I shall deal with it in more detail shortly. He is entitled to a discount, but limited to one of 5% in light of the course taken as the preliminary dispute before the commencement of the trial proper before me.
In the case of Mr Singh, he pleaded guilty upon arraignment and upon the application of s 25D(2)(b) Crimes (Sentencing Procedure) Act he is entitled to a discount of 10% for the pleas of guilty he entered after committal for trial and upon arraignment 14 days before the commencement of the trial.

Facilitation of the Administration of Justice

There is another aspect that I need to bring to account and that is the extent to which the accused in the trial facilitated the conduct of the proceedings. By electing to proceed by way of a trial before a judge alone and by limiting the issues that were to be agitated in the trial, it must be accepted that both accused have, to perhaps varying degrees, facilitated the administration of justice. Section 22A Crimes (Sentencing Procedure) Act 1999 provides: 1. "A Court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). 2. A lesser penalty that is imposed under the section in relation to an offence must not be unreasonably disproportionate to the nature and the circumstances of the offence."
I have not found any authority specifically dealing with that provision, but in keeping with the jurisprudence that has evolved in respect of s 22 and s 23 Crimes (Sentencing Procedure) Act 1999 and guidance provided by the Court of Criminal Appeal, including with regard to commonwealth offences following the decision in Xiao v R [2018] NSWCCA 4, I am of the view that one of two approaches might be taken.
In the application of s 22A of the Act, one could simply synthesise a consideration of those matters for which s 22A provides, with the other objective and subjective facts and circumstances that are assembled and considered to inform the sentence to be imposed. However, that would seem to me to be inconsistent with the course that is now taken in the other contexts to which I have referred, and I believe the alternative approach ought to be adopted, namely, to apply a percentage discount to the sentence that would otherwise have otherwise been imposed in the absence of the facilitation of the administration of justice. Accordingly, in each case in respect of the robbery charge, for this I shall apply a discount of 5% to the sentence that would otherwise have been imposed.

Pre-Sentence Custody

Mr Coe has been in custody since arrest on 16 July 2019. However, he has not been in custody in relation to this matter alone. He had recently been released to parole before the commission of this robbery and, as a consequence his parole was revoked and he is now required to serve the balance of parole from that date, 16 July 2019, until 15 June 2022. But for the commission of these further offences, upon revocation as a consequence of other forms of breach I expect he would have been entitled to make application to have his parole reinstated. The probability of that is now remote in the circumstances of the commission of these further offences. Nonetheless, in accordance with the discretion available to me, as discussed by Simpson J in Callaghan v R [2006] NSWCCA 58 I should specify a starting date for his sentence to allow for appropriate concurrence and accumulation with the existing sentence to ensure, first, that the punishment he suffers today does not exceed what the totality of his misconduct requires, and also to consider the extent to which, at his age and against his background, he might suffer institutionalisation if allowed to remain in gaol for too long a period.
I have come to the view that I should start his sentence for these matters today and in due course, after I have announced what I believe to be appropriate indicative sentences, I will aggregate them with appropriate accumulation and concurrence and specify a non-parole period with an extended parole period reflecting the finding of special circumstances that I intend to make in his case.
In the case of Mr Singh, he is on bail and has continued to be on bail up until today. However, he has spent time in custody relating to this matter. The Crown cover sheet specifies seven months and 12 days. I have converted that into the number of days actually spent in custody; they come to 228, according to my calculation, from the date of his arrest on 16 July 2019 until granted bail on 28 February 2020. Thus, the sentence that would be imposed for him would have to commence on 10 April 2020 to bring to account his pre-sentence custody. I shall turn now to the facts.

The Facts

I have dealt with the findings of fact in my judgement, which has been perfected for publication. I should note that in relation to the misconduct of which the offenders were accused, they did not participate in any interview with the investigating police and they did not give evidence before me, either in the trial or in the sentence proceedings, though there have been various documents produced in their respective cases and, at least in the case of Singh, there has been an acknowledgment of wrongdoing; I refer, at the moment, to the sentence assessment report to which I shall come.
The Crown case was presented upon the basis that the accused were participants in a joint criminal enterprise.
The case presented on behalf of the accused Coe was that it could not be accepted to the requisite standard that he was one of the men who participated in the robbery. The Crown case in respect of him was that he was the person armed with a dangerous weapon and confronted the victim and took the property stolen from her. It was argued that I could not accept beyond reasonable doubt that the closed circuit television images captured of the two perpetrators between the time of the robbery and thereafter, particularly in a sequence that placed them proximate in time and geography to the crime, included the man Coe.
The victim did not identify Coe specifically. There was no identification parade, either in person or by way of a photo array. However, the offender has a unique dental structure, described by the victim, which is entirely consistent with images of Coe that were available. This was a piece of circumstantial evidence, to be accumulated with the other facts established by direct evidence, which I found led inevitably at the conclusion that he was the man with the gun.
The accused Singh did not cavil with the propositions advanced by the Crown against him, but drew upon his placement, somewhat remote from the place where the robbery occurred, as inconsistent with his participation in the crime, and although it was acknowledged that he was, with Coe, exploiting the use of the credit card stolen in the robbery, ultimately it was suggested that the suspicion thereby provided was not sufficient to ground proof beyond reasonable doubt.
I did not accept the arguments presented on behalf of either accused and found them guilty, as I have indicated.
The victim gave evidence on 31 August 2020 describing what occurred. I found her to be a most credible witness, who not only described what she suffered and experienced, but after the event also made other enquiries by way of social media with information regarding the weapon that she had seen and her phone case in which her phone was kept, taken from her in the robbery. A comparable phone case was found in Singh's premises.
The incident occurred late at night. She left a train at 11.25pm at Canterbury railway station and walked along Canterbury Road heading towards Campsie. CCTV from premises nearby was played depicting her as she took that path. She crossed the bridge that crosses the Cooks River; as she did so was looking for her phone. She said that she noticed something because (at page 18 commencing at line 11): "A guy in front of me, I saw his feet first and then I saw he's got a gun on his left hip and then he flicking about three times on his left, yeah, just motioned to left and then I just followed him".
She gave a description of the man and his clothing. She repeated the description of his use of the gun at p 19, commencing line 42. She said at line 46, "He - at the beginning he motioned to - motioned to the left and flicking about three times, like just point at me and asked me to go to the dark corner".
This led her from the footpath into a grassed area beneath an advertising sign where the robbery was executed. She described the advertising sign as a billboard. She said he did not say anything until he said, p 20 line 11, "Give me your phone".
She said he just waited for her to give him her phone, and then he asked about her bank card. She gave him the phone, which she described at line 20. At line 39 she said, "Could you - I don't remember the exact words, just asking me about 'Do you have cash?' and I said, 'I just get - have five - $5 notes.' And then he asked me about, 'Do you have coins?' So I find out like about $20 coins in my wallet, so I gave all the coins to him.'"
Thus is the basis of the theft of the $25 in money along with the phone and her bank card.
She went on to describe his unique dental structure at p 21. She said that he asked for the bank card and moved to the footpath. At that point she noticed there was, "another guy under - in front of the shopfront, the shopfront, under the awning."
This is at page 21 line 43.
She said this man was about 50 metres away. She then pointed to a spot in the back corner of the courtroom which, from the witness box, was somewhat less than 50 metres. She gave a description of the second man.
She prepared diagrams which she provided to the police; she took the Court through those and what she had marked on them to indicate the movement of the two offenders.
After the robbery occurred, Coe walked off and the accused Singh walked from his position. They joined up on Canterbury Road and walked off together. Thereafter, as I said, they were captured on closed circuit television.
Coe enquired of her whether he could do pay pass, meaning a transaction that would not require a pin if the transaction under a certain value. He instructed her not to call the police and not to block her card, and thus was the commission of the robbery.
Thereafter the offenders took the card to the three businesses particularised in Counts 2, 3 and 4 respectively and conducted the transactions using the card to acquire the items, obtained dishonestly and by deception.

Assessment of Seriousness

Counsel for Coe brought to my attention a decision of the Court of Criminal Appeal, Foaiaulima v R [2020] NSWCCA 270 in which Rothman J found error when the sentencing judge dealt with the question of objective seriousness and the range of sentences available in two stages, first considering the issue by reference to the Henry guideline judgement [2] [1999] NSWCCA 107, and then separately considering aggravating and mitigating circumstances over and above those which were discussed in the guideline judgement. Bathurst CJ wrote at paras [4] to [6]:
The approach adopted by the sentencing judge is, I think, open to two possible interpretations. The first is that she determined the seriousness of the offence by reference to where it fell within the Henry guidelines, and then subsequently considered additional aggravating and mitigating factors to determine to what extent she should depart from the determination made in accordance with those guidelines. If that was the approach she took, then I would respectfully agree with Rothman J that her approach was erroneous: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]-[31].
There are aspects of the remarks on sentence which support Rothman J's conclusion. First, the sentencing judge dealt with the Henry factors separately from the other aggravating and mitigating factors required to be considered under s 21A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Second, she warned herself against double counting when separate analysis was made by reference to the Henry guidelines and to the specific factors in s 21A Sentencing Procedure Act, referring to the pre-Muldrock case of R v Street [2005] NSWCCA 139. Third, and most importantly, she stated that "the appropriate head term is towards the lower end of the range that is applied in Henry".
Notwithstanding, I do not think that considering the judgment overall the sentencing judge adopted this approach, but rather treated the Henry guideline as a guidepost to which she had account in determining the sentence, in accordance with the instinctive synthesis approach referred to in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; see also Muldrock [3] at [26]-[28]...
His Honour then identified various reasons for the conclusion reached. Thus, the principal discussed and acknowledged was common to all three judgements, but Bathurst CJ and Johnson J at [48] saw that her Honour was not in error and approached the instinctive synthesis of the matter, bringing to bear in combination the Henry principles and other relevant factors.
The point of difference was that Rothman J found that the sentencing judge had taken a more arithmetical or tiered approach.
The decision is instructive upon the need to follow the High Court, which is regularly said, as it did in Markarian [2005] HCA 25, that the sentencing discretion is one that is exercised upon instinctive synthesis of all the material, and not upon an arithmetical, tiered or structured approach to the sentencing exercise.
The parties have all reminded me of what was said in the decision in Henry ibid and the points promulgated by Spigelman CJ, where the category of case sufficiently common for the purposes of determining guideline included: 1. A young offender with no or little criminal history, 2. A weapon like a knife, capable of killing or inflicting serious injury, 3. A limited degree of planning, 4. Limited if any actual violence, but a real threat thereof, 5. A victim in a vulnerable position such as a shopkeeper or a taxi driver, 6. A small amount taken, 7. A plea of guilty, the significance of which is limited by a strong Crown case.
The Court came to the view that a head sentence falling somewhere between four and five years for the full term was appropriate in such a case, which might ultimately be found to be less than adequate or more severe than necessary, depending upon further factors unique to the case to be synthesised.
In this instance, these offenders fall within the category of young offenders. The weapon was a toy pistol, but in the mind of the victim something more. There was no possibility of the item inflicting any physical harm whatsoever.
There must have been a measure of planning in this case, but I would accept that it would have been to a limited degree, the offenders having taken the opportunity presented by this hapless victim as she left the railway property to walk to Campsie. There was no violence, but clearly a threat of violence. She was not vulnerable as a shopkeeper or a taxi driver or comparable individual, but she was in a position of situational vulnerability, having left the railway station as midnight approached, walking along the footpath on Canterbury Road, albeit one that is well lit and where traffic, even at that hour, would be expected. There was a small amount taken; there was no plea of guilty.
There was discussion in Foaiaulima ibid by Johnson J dealing with sentencing for offences of violence committed against users of public transport. Although this was not on public transport, and the victim was not in those confined circumstances unable to leave either a bus or a train when confronted with the threat of violence, the commentary that appears beginning at para [64] is noteworthy.
Members of the public are entitled to go out at night, or might even be working at night and be required to travel home at the time when this robbery occurred. They ought to be allowed to do so without the fear of conduct such as this, as they follow their path home or wherever else they might be going. The protection of the members of the public, members of the community, in those circumstances, who have done nothing to attract attention or provoke the offence, other than to be present, is an important consideration when assessing the weight to be attributed to general deterrence in such a case.

The Offender Coe

The offender Coe was born in 1996 and is now 24 years of age. For one so young he has an unenviable record of antecedent offences. In March 2011 in the Children's Court he was given probation for common assault. In August 2011 in the Children's Court he was given probation for an offence of affray. In August 2013 in the Children's Court he was put on a bond for driving a conveyance taken without the consent of the owner. In July 2015 he was given the benefit of a bond pursuant to s 10 Crimes (Sentencing Procedure) Act for possessing a prohibited drug and a bond pursuant to s 9 of the same Act for possessing an unauthorised firearm. In February 2016 for common assault he was fined and put under the terms of a bond pursuant to s 9 of the same Act. The bonds required him to submit to counselling, and to assistance for educational development, to drug and alcohol rehabilitation and for anger management.
In February 2017, he was charged with offences of dishonestly obtaining financial advantage by deception taken into account on a Form 1 in other proceedings for offences of aggravated break and enter and commit a serious indictable offence for which he suffered imprisonment for five years, commencing on 7 June 2016 and concluding on 6 June 2021, with a non-parole period of two years and six months concluding on 6 December 2018.
There was a second offence contrary to the same provision for which he was sentenced to a concurrent period of four years' imprisonment, and for a robbery in company he was sentenced to a current period of four years' imprisonment. Further offences taken into account were larceny, dishonestly obtaining financial advantage by deception, being carried in a conveyance taken without the consent of the owner, and then finally a robbery charge for which he was sentenced to imprisonment for five years, concurrent with the other sentences, with a non-parole period of two years to expire on 6 June 2019.
Out of sequence are other offences upon which he appeared in June 2010 for damaging property, in the Children's Court, for resisting a police officer and intimidating a police officer, in June 2010 for assault occasioning actual bodily harm, in March 2011 for having custody of a knife in a public place, and in March 2013 for entering vehicle without the consent of the owner.
The Crown provided me with material relevant to his past offending to which I should refer. He was one of three offenders who committed a robbery between 1 and 2 February 2016. A vehicle was stolen in preparation for it. They entered the car park of the Public House Hotel in Petersham. The offender and two others left the vehicle while the drive remained in it. Coe was armed with a small silver hatchet, with clothing to disguise his appearance. Another co-offender was armed with a machete, also wearing clothing to disguise his appearance.
The offender and one of the co-offenders first confronted a female employee working behind the bar. The co-offender removed about $1,000 from the cash register. The offender took hold of the woman by the back of her shirt and forced her to walk upstairs to an office with the second of the co‑offenders. There the duty manager was confronted and told to open the safe. $17,699 was taken. The offenders returned to the motor vehicle which sped off from the crime scene. The investigation is described, including evidence implicating the offender Coe. He was arrested in custody in June 2016. He participated in an ERISP and made certain admissions, but would not comment further with regard to the armed robbery. His parole was revoked, as I noted earlier. He was at liberty only until 16 July 2019 when he was released to parole for a period of about a month.
His antecedent record and his conditional liberty are matters in aggravation, but not so as to increase what would otherwise be a proportionate sentence, nor to aggravate the objective seriousness of the offence with which I am concerned, but are relevant to the assessment of the need for specific deterrence and, importantly, what the Court might do to protect the community from the offender's propensity for these crimes. I have not overlooked that the protection of the community includes, to the extent that the Court might be able to achieve it, rehabilitation and a sentence that is not crushing, but which recognises what prospects there might be.
It is also necessary to bring to account what are patent challenges the offender has suffered in life and, as with Singh, although no evidence was led from them or from anyone else speaking to the matters that I have before me, the content of the documents tendered is consistent across the spectrum, and I make clear that I accept the findings and opinions that have been offered in respect of each of them.
Insofar as Coe is concerned, according to adult gaol records he first came into custody for offending on 13 February 2016. He was released to parole on 6 June 2019 after two and a half years. Then he came back into custody on 17 July 2019 where he has remained since. Effectively, his adult life has been in gaol, apart from the one month or thereabouts that he was on parole.
There is an array of misconduct in custody extending over two pages in the custodial record. The offences are for damaging property, possessing a drug implement, refusing or failing a drug sample, possessing prohibited goods, disobeying directions, possessing/administering drugs, possessing drug implements, failing a prescribed drug test, fighting with others, and intimidation of an officer which led to him being placed in a segregated context. These episodes of misconduct were repeated on multiple occasions between April 2016 and August of this year.
His classification history is described. He is an inmate who requires close supervision.
The revocation of parole reports are before me. The sentence assessment report written for these proceedings on 2 November refers to his various instances of institutional misconduct, with multiple episodes of intimidation and failure to comply with centre routine and disobeying directions.
There is reference to his mother which must be an error, as will be exposed when I go to the subjective material. She is said to be pro social which appears to be inconsistent with what I have before me elsewhere.
He is long term unemployed, relying upon Centrelink benefits. His offences extend back to his childhood, including the array that I described when dealing with the antecedent report. He declined to discuss the offences upon the basis that he was disputing his participation in them. He declined to discuss the offence within the context of the offence happening in company. He said he had been using methamphetamine and alcohol from his early teens. He claims to have been free from illicit substances for four years, but in that period he declined to provide samples to allow that to be verified.
He denied being under the influence of alcohol or any drugs at the time of the events charged. He was essentially non-responsive with regard to attempts to have him expose his insight into the misconduct, his willingness to undertake intervention or community service work. His supervision could not really be assessed because he only had a month before he committed this further misconduct and found himself back in gaol. He is assessed as a medium to high risk of reoffending and then there are recommendations.
Material tendered in his case includes a report from a psychologist, M. Breit, who also assessed him in 2017. On this occasion she had documents relating to the matters before the Court, school records, a speech pathology assessment report and a letter from the Aboriginal Legal Service. The psychologist helpfully provides an analysis of what the term "criminogenic need" implies. Criminogenic needs are those characteristics, traits, problems or issues impacting upon an individual, that relate to his or her likelihood to re-offend and to commit another crime. The "needs" principle, so-called, requires the targeting for intervention of factors relating to the offending, which will be unique to the person in consideration.
Successful intervention in this context is associated with a significant decrease in recidivism. Considerations would include treatment in which the offender needs to be involved and he needs to be ready and able to engage in co‑operation with correctional facility staff armed with knowledge of the inmate's needs and particular difficulties.
Mr Coe has been in the system for a long time, even at the age of 24, and the courts, and the people responsible for his supervision and custody have, I would expect, taken the steps available to them to facilitate his rehabilitation, but without much success. The psychologist is of the belief that his current criminogenic needs have changed little since her assessment in 2017. He twice completed an addiction program, but continues to require comprehensive assessment of intellectual and functioning ability, of his speech and language ability and his level of competence in literacy and numeracy. He is also in need of an anger management program to assist in outbursts of anger which are apparent in his record of antecedents and in his custodial offences, briefly stated on his custodial record.
The psychologist refers to the long history of Court appearances, his history of not complying with Court orders and of breaching bail. There has been a series of moves to different correctional facilities since he began serving his sentence in 2017, the most recent in this current period of incarceration in September 2020 when he was moved to the Macquarie Correctional Facility and placed in segregation.
The psychologist interviewed him on 8 October 2020 by way of video link to the facility where he was held. This was a difficult process. There was limited time. Covid-19 was attributed as the reason for this. The AVL facilities are in demand because that is the only way in which inmates are able to be in touch with their family members in this current climate, although I am aware that circumstances have changed as of yesterday, 23 November 2020, when there was some relaxation to allow some face‑to‑face contact with the family of some of the inmates in custody.
There are implicit difficulties with audio-visual psychological assessments anyway because the opportunity for testing is not as ready. The offender could not, in those circumstances, be given assessment forms to complete; they have to be carried out with questions by the psychologist and answers by the subject to be recorded by the psychologist. Moreover, he, in the course of this interview, disengaged to some extent. He spoke of his difficulties in segregation, of being restricted to a small room, out of which he would be handcuffed. After 45 minutes of the interview he was unable to continue, but continued for a further 15 minutes with apparent difficulty, and at that point the psychologist curtailed the interview.
His background is indigenous. He is single. He has a son who is seven, born with a heart defect, in need of continuing medical intervention. The offender was born in Sydney. He is the youngest of four siblings. He has two sisters and a brother who are older. His father's family comes from the Lismore/Grafton area and his mother's family from the Orange/Cowra area. All children were born to these parents, and his father did not appear to have been around for much of his life and his contact with him was rare, but I note that there is a document provided by his father to which I shall come.
His mother was the main caregiver and disciplinarian. He is attributed with representations in terms that his mother was caring and loving, and tended to spoil him. He therefore was able to do whatever he wanted and he became inclined to be unreasonable if he did not get his way. He has a good relationship with his siblings. He is also close to his Aunt June from whom I have a document, and I believe that is the person to whom the author of the sentencing assessment report might have been referring when he spoke of the offender's mother.
The offender was extremely close to his mother. He relied upon her emotionally and she relied upon for the physical assistance he provided for her. She had been in very poor health for many years. He was her main carer. She was seriously ill until her death at Christmas of 2011 when he was aged 15. She suffered from diabetes and required dialysis with which the offender would assist her. He assisted with other needs as well as dialysis each day. He suffered grief at her loss and experienced what he described as depression for about 18 months. She was his entire world and he blamed himself for her death because he was not at home at the time of the heart attack which took her life. It was after her death that he began to use drugs more often.
The mother of his child is no longer in a relationship with the offender. He spoke of a new partner, but would not provide that person's name. He has effectively no education. In 2007 at age 11 he was assessed by a clinical psychologist at the Sydney Children's Hospital. He had a number of psychological disorders including mild mental retardation, separation and anxiety disorder and oppositional defiant disorder. In 2010 there was a further assessment by a school counsellor which confirmed the diagnosis of mild mental retardation as well as a significant impairment in adaptive behaviour, especially with respect to impulsiveness and hyperactivity in excess for someone of his age with his affliction.
Speech and language assessments were significantly below the expected range for his age. He is classified as having a low IQ within a cohort of 2% of the population. He has some average communication skills, but would have difficulty using and understanding what was said to him. He is challenged in abstract thinking and perceptual reasoning, which would affect his ability to manage impulses and make well-thought-out life choices. He is someone more susceptible to following the actions of others rather than thinking things through and making his own decisions.
His recollection through his years of schooling was of being angry, always misbehaving, damaging school property, truanting and being suspended. When he left school his reading and writing skills were effectively non‑existent. He attended schools that were provided for specific purposes. He has no recollection of being happy at either one of those establishments. He acknowledges his ongoing difficulties with literacy and numeracy.
He began using cannabis at the age of 14; surreptitiously because he knew his mother would be upset if she found out about it. But after her death and when disregarding his self-care he began to experiment with other drugs, including methamphetamine. He attributes peer pressure as a reason for his misuse of those drugs. He stopped using drugs in custody, he said. He said he did not go back to using drugs during his parole period. As I noted, though in the sentencing assessment report, he would not submit to the opportunity for analysis to verify any such representation, and I note that in one of the custodial offences there is recorded a failed drug test, whatever that might mean.
His employment history is non-existent because of his limitations. His health is good, though he is an insulin-dependent, type 2 diabetic. He is medicated and I note that during the course of the hearing before me on the last occasion it was necessary to administer his insulin as the proceedings as they were continuing.
He is moved from one correctional facility to another. This is causing him difficulty. He was challenged in Goulburn Gaol because of the nature of the clientele there. He was happier in Wellington where he knew some of the inmates. He was recently placed in segregation because he intimidated an officer. He has participated in two courses in the past three years which he thinks have helped him. He said he was doing well on parole when he was re-arrested. He had no success gaining work when on parole, though.
The psychologist spoke to his aunt, June Christian. The offender calls her as often as he can from gaol and speaks about how he is feeling. He is said to have told her he was stressed, scared and anxious. She confirmed his ongoing positive relationship with his siblings. She said that he was a happy child, much loved and spoilt by his mother, but that after her death he appeared depressed for 18 months or thereabouts, and she is of the view that he continues to grieve. Because of his mother's frail health, according to his aunt, he was left to his own devices and began using drugs and truanting. She offers the opinion that because of his disability his age is approximately that of a 14-year old or 15-year old, leaving him susceptible to being easily misled and persuaded into foolish actions.
The clinical findings include the previous diagnoses to which I referred and the risk of being susceptible to other offenders and their wants. He was significantly delayed in all areas, other than understanding spoken paragraphs of comprehension. His intellectual result placed him in the lowest 2% of the population.
The psychologist recognises the limitation of the opportunity to assess him and recommends that he would be assisted by a further comprehensive assessment of his current intellectual, linguistic and functioning abilities. She writes of the difficulty with the assessment over AVL once again, especially with regard to the assessments undertaken in the questionnaires, particularly one that was offered to obtain a measure of his level of distress. This notwithstanding, there is a description of his presentation, according to his report, of sometimes crying, tension, anger, nervousness, feeling overwhelmed, a sense of despair and hopelessness, with unwanted memories. There is no instance of self-harm.
In the section dealing with conclusions and recommendations, the psychologist refers to her previous assessment with regard to his disadvantage from birth. He was born six weeks prematurely. His father was mostly absent and he had the intellectual disability above summarised which, in the opinion of the psychologist, remains and continues. Recommendations previously made do not seem to have been implemented.
Further assessments are required because those that were completed are now ten years old, and he would benefit from anger management programs and strategies to appropriately deal with feelings of anger.
There is a summary of the risk of recidivism that follows, all of which must be considered against the need for a close and detailed psychological assessment in a one-to-one setting with anger management therapy and remedial literacy and numeracy skills. The opinion offered by the psychologist is that little has been done to assess his criminogenic needs in the past and that is a matter is that needs to be addressed.
The next document I have is the document by June Christian, his auntie. She speaks of the passing of her sister, the offender's mother, from heart disease, afflicted with that from birth, and diabetes. She speaks of the trauma suffered by the offender as a consequence. Although the offender knew his father, they did not have a relationship. He did not have a positive role model through the important formative years.
There is reference to his little boy, with whom he has a strong relationship when he is not in gaol, which has been a very limited period so far. He has his own needs for ongoing care. He was born prematurely with heart disease that required open heart surgery.
She speaks of the offender's learning difficulties and challenges in school, his association with the wrong sorts of people; his inability to control his impulses, his placement in segregation and loss of privileges because of his so‑called childish behaviour, which she said could easily be misconstrued. She refers to his type 2 diabetes and high blood pressure. She offers the view that he is at the crossroads and she writes in the following terms: "Your Honour, Richard, I believe, is at a turning point where he will not reoffend again. He is ready to engage in supports and turn his life around. His father…, who manages Yaegl Native Title programs in Maclean on the mid north coast of New South Wales, was reconnecting with Richard and offering him the opportunity to stay with him and connect with his culture. Weave Youth the Community Justice program are waiting to support Richard once he is released. And most vitally his son, Thomas, now seven years of age, is needing his father, whom he loves very much, for his own health and wellbeing."
The document concludes with a plea that I give him the opportunity to take advantage of the supports that are available to him and asks for leniency.
I have brought all of what has been said on his behalf to account, but I am bound by the law. No doubt it is hoped that he could be released imminently to take the path that his aunt, I accept, genuinely believes he is ready to follow. Regrettably, history does not support that opinion or conclusion, including his time in gaol when he has engaged upon institutional misconduct.
That said, this is a case replete with special circumstances that will result in a shorter period of custody and a period of parole which will be extended, and if he earns parole upon the expiration of the non-parole period, one hopes that he will have the assistance he requires and that he will take advantage of what will be there for him by way of his aunt and also by way of his father, who has provided a document that he wrote on 13 November. He acknowledges the lack of connection with the offender during his earlier life. They reconnected in teenage years and developed a bond. He is aware of the challenges the offender suffered at school. He is not aware of any remedial opportunities that might have been provided or availed of. He refers to the little boy born to the offender and the loving bond which he has observed between them. He speaks of the offender being a conscientious father. He refers to the passing of the offender's mother at a critical stage of his development.
Finally I have a document from Weave Youth and Community Services which tells me of the good work that they do to assist such as this offender. He has been known to the service since 2015. They are aware of his history and his current charges. Their contact with him has included his representation to them that he is willing to engage with the service and return to the community where they can assist him with housing, alcohol and drug counselling and connection to his culture, employment, education and training, community‑based order compliance, living skills, work development, identification, driving licence and strategies to address his behaviour and to assist with the healing of his trauma in life.

Submissions Relevant to Coe

Ms Swift provided submissions to assist me in the determination of the sentence in this case and acknowledges the accuracy of those that were provided by the Crown. She acknowledged the aggravating factor that these offences were committed when he was subject to conditional liberty, provided in s 21(2)(j) Crimes (Sentencing Procedure) Act and that the offence was committed in company, s 21A(2)(e). She urges the Court to apply a discount of 25%, arguing that s 25F(4) does not apply to the traversal of plea application once the application is refused. I have looked at those provisions; I do not accept that submission.
The other point made was that there were some five days spent in awaiting the determination of the application to traverse the plea. The time taken in that regard was because it was needed for counsel and those instructing her to crystallise her instructions in relation to the proceedings.
It is asked that the sentence be backdated substantially to mitigate the significant possibility of institutionalisation and to increase his rehabilitation potential. I have already indicated I intend to begin the sentence today. I am reminded of the statements of principle of McNaughton v R [2006] NSWCCA 242 and the relevance of the criminal record. I am reminded of the need not to double count with consideration of the Henry guideline judgement and other factors. Specifically, I am asked not to bring to account as an aggravating factor that the offence involved violence or the risk thereof, contemplated in s 21A(2)(b) because of the nature of the charged robbery. I have already dealt with that question when discussing the application of the Henry guideline ibid.
I accept that he is a young man. I accept that the sentence has to be identified and structure so as not to increase his risk of institutionalisation and to provide the best opportunity for him to rehabilitate. I cannot come to the view, though, that there is no risk of recidivism. I cannot come to the view that his prospects of rehabilitation could be described as good.
I accept that moral culpability has been reduced by reason of the matters described in the psychologist's report and upon the application of Bugmy v R [2013] HCA 37. He has suffered disadvantage almost from birth, not as a consequence of living in a domestic circumstance replete with drunkenness, gambling and drug misuse, but because of the challenges that he suffered, the absence of his father in his formative years and the limited capacity of his mother with her afflictions to provide the care that would otherwise have been given to him. Thus, those principles apply in this case.
It is now beyond question that the so‑called Bugmy principles apply in circumstances such as this and continue to be relevant regardless of the number of occasions when an offender appears in Court to answer criminal charges.
I am reminded of the need for totality considerations, appropriate concurrence and accumulation. I accept there are special circumstances. Submissions are made with regard to Covid-19 factors. I accept that up until the present time it has been more punishing for people in gaol because they are not given access to their family and close associates other than by way of AVL on limited occasions or telephone.
Things have changed, though, as of yesterday, according to publications given to the Court by the Commissioner for Corrective Services, and although things might not yet be to the standard that they once were, the extraordinary success generally in Australia, and particularly within the Corrective Services context, whereby there has been, as I understand it, but one infection which has not extended into the general population is to be applauded.
There will be further restrictions no doubt, even with some visits being now undertaken. Upon my assessment, the risk of infection from the disease, by reason of the steps taken in Corrective Services, is less within the correctional facilities than in the community generally, but it is still relevant to the decision that the offender has a greater punishment without access to his loved ones on a face‑to‑face basis.
The Crown's submissions remind me of the Henry guideline judgement. The Crown's submission is that this is a more serious case than the example in Henry because the level of planning which the Crown suggests was more than limited, the significant criminal record and the absence of a plea of guilty. The Crown submitted that with regard to Counts 2 to 4 a discount ought not to be extended to 25%, with which I agree. I have applied a discount of 5% to those offences.
The Crown summarises the essence of the psychologist's report covering drug use, mental challenges and negative peer associations. I accept the Crown's submission that there is no evidence of remorse. I have already commented upon prospects of rehabilitation which the Crown describes as "not good". I am reminded of the discretion discussed in Callaghan ibid and I accept that I should not impose a sentence that would crush the offender, although there must be some accumulation.

The Sentence for Coe

That brings me to the imposition of the sentence in the case of Mr Coe.
He is convicted of each of the offences.
For the offence of robbery armed with a dangerous weapon, I indicate as appropriate a sentence of 4 years and 9 months' imprisonment reduced by 5% for the extent to which the administration of justice was facilitated.
For each of the offences charged in Counts 2, 3 and 4, I indicate a sentence of 8 months, rounded down from the starting point to abandon days that resulted upon the application of 5% to each of those.
I specify an aggregate sentence of 5 years and 3 months commencing on 24 November 2020. I specify a non-parole period of 2 years and 6 months which will expire on 23 May 2023. The overall sentence will expire on 23 May 2026.
There is a finding of special circumstances. These include the need for supervision for an extended period of time in the community, to address the various opportunities that should be made available to the offender, to assist him to cope with the next stage of his life. Moreover, he has already spent a significant period of time in custody and was at large for little more than a month before he was rearrested. Although there was thus a break in the custodial component, I bring to account the previous custody as part of the overall custodial component to which he is subject before he is now eligible for parole. He should, I would recommend, be released to parole at the expiration of this non-parole period, subject to his behaviour in custody and his demonstration to the parole authorities that he should be permitted to be at large at that stage.

The Offender Singh

As with the offender, Richard Coe, the conduct in which Shyarlm Singh engaged led them both across the mark set by s 5 Crimes (Sentencing Procedure) Act 1999 such that a sentence of imprisonment is the only option that should be undertaken in the circumstances.
There is a question, in my mind though in this case as to how to implement the sentence of imprisonment that I shall identify for this offender. As with the offender Richard Coe, in this case all of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged, including general deterrence to which I have already referred, the need for specific deterrence, recognising the harm that has been caused ,and the denunciation of the conduct upon which they engaged.
Mr Singh, though, is before the Court with only a modest juvenile record. There is a limited record of antecedents.
He was born in 1999 and at the present time is 21 years of age. He is a young man.
Past offending began in May 2016 when he committed an offence of shoplifting dealt with in August 2016 in the Children's Court. The charge was dismissed with a caution. He was next in Court in February 2018 charged with assault occasioning actual bodily harm. That was proved against him in his absence and was brought before the Court for ultimate determination in the Children's Court in June 2018 when he was given probation for nine months. His embarkation upon the current episode of misconduct has extended his offending career significantly.
The sentence assessment report prepared in the matter notes that he currently resides with his parents in their residence with his siblings and his partner, all of whom are supportive of him. He is also engaged with the Weave Youth and Community Services, who have provided material for me to assist in the decision I must make. He is currently unemployed, according to the report, engaged with that organisation for employment support and surviving on welfare payments. He has no formal qualifications. He said he was working part‑time at the Lands Council in Narrandera, but this was not confirmed.
His juvenile history is described as extensive, involving domestic violence and other violent offences. That cannot be correct; it does not sit at all comfortably with what I have before me. It is also said that his index offence is of a similar nature to his pattern of offending as a juvenile. Once again, that cannot be correct. He attempted to minimise his involvement, suggesting that the offence came about because he was bored with not much to do, and he claimed that he was not in control of the situation, but followed his co‑offender's lead.
He spoke of feeling sorry for the victim, upon reflection, who he recognises must have been frightened, and he wished the offence never to have occurred. He asserts that he would not have committed the offence if he was not with "his mate". He said that he did not realise that the offence was occurring until he saw the co-offender talking to the victim. I found, as the trial judge, sitting without a jury, that he was a participant in the joint criminal enterprise of robbery which involved at least a limited degree of planning for its execution.
There is then a reference to this offence being of a violent nature, which involved the use of intimidation and fear to achieve the desired outcome. He said that he identified with having a problem with anger and aggression and that he needed help to address these problems.
I am of the view that paragraph overstates the offence as described by the victim.
He is attributed with insight in terms that the offence would have been traumatic for the victim, with potential lasting effects. He said he needed assistance to address his anger and aggression and he was willing to undertake community service. He was not known for prior offending and he is assessed as having a medium risk of reoffending.
This report was written at Wagga Wagga on 27 October 2020. In contrast to the other material I have had before me, the report ultimately does not provide me with very much assistance.
Tendered in his case are documents first from Weave Youth and Community Services written on 13 November 2020. The author is a case worker on the Creating Futures Justice program. The nature of the organisation is discussed and the good work that it performs is there summarised. The offender was referred to the program in May 2018. The author is aware of the charges before the Court. He has been working with the offender since then and continues to maintain contact with him. This included whilst he was in custody and whilst on bail.
They worked together to develop a case plan, which included lodgement of a housing application, obtaining identification, paying down fines through a work development order, obtaining his learner's licence, accessing financial debt assistance, enrolling in vocational training, accessing mental health support and exploring employment opportunities. When the offender was in custody, the contact continued through AVL arrangements. These were also in place when the offender was admitted to bail. There has been some success in the assistance provided to the offender as described.
There is a reference to his paternal family history of mental illness. He was granted access to the offender's records from the Narrandera Medical Centre, which included the prescription for medication for bipolar affective disorder. He represented bouts of suicidal ideation at the thought of entering custody once again. He was attributed with representations to the effect that his return to his current home has been beneficial for his overall wellbeing, including family and connection to culture, as two constraints providing adequate support for him now that he is at large.
He has a significant social, economic and historical disadvantage that is not further described here. He is willing to continue with whatever plans are in place and to be arranged for him. It is apparent that there was access to the facility provided by this organisation, before he went into custody after the commission of these offences.
It is not clear what the motivation was for that, although I note that he was sentenced for assault occasioning bodily harm in June 2018, with conditions including supervision and guidance, and referrals for mental health treatment. It might be - and I do not express a concluded view - that there was some connection between those arrangements and his involvement with that organisation before he went into custody for the present offence.
My next document to bring to account is the report by Susan Hayes, forensic psychologist. The offender attended her rooms at the University of Sydney to participate in the assessment, which lasted for one and a half hours. He had with him his girlfriend and his case worker from Weave, the author of the earlier document. They were not present in the assessment process. He was aged 20 at the time. He gave sparse details about his life. His thought processes appeared to be rational and lucid, with no evidence of thought disorder, and there was no apparent anxiety during the assessment.
He was born in Narrandera, the eldest of six children. He was raised with his siblings by his mother and father, with close involvement from both his grandmothers. The report by Dr Olav Nielssen is noted to infer involvement with his paternal grandmother. According to the Juvenile Justice report in 2016, which I do not have before me, the paternal grandmother had died in about 2013. I accept that Professor Hayes has found that from the material with which she was provided.
He spoke of "a pretty rough growing up" because of his parents' strictness and because both of them suffered from mental illness. His father is of Indian heritage and his mother is of Aboriginal heritage. His father worked in an abattoir. The family lived in Narrandera for two years and then moved to Grong Grong about 20 kilometres away. Again there is a contrast between this information and a Juvenile Justice report in 2016 that specifies 2013 as the time the family moved. Until recently all the siblings had lived at home, but the second eldest sister recently came to Sydney.
He attended school in Narrandera, both at primary school level and high school. He found it difficult because he was bullied through being overweight. He said he was a good student, but the bullying got to him and he began to do bad things. He repeated two years of school. He moved to Sydney after school where he lived for four to five years, initially with an uncle because he had been bailed to the care of his uncle. He then moved to live with his ex‑girlfriend with whom he had a relationship for about four years.
He was in custody for seven months after the arrest for this offence. He found the experience "horrible" and he had a great deal of difficulty coping. He "slashed up" while he was in custody and attempted suicide on a couple of occasions, and was at Long Bay Hospital in the mental health. His medication, olanzapine, was increased to 40 mg per day in those circumstances. He is now in another relationship and he spends a lot of time with her. They have been together for about six months. She is supportive and is said to be a good influence.
He labours within the local Aboriginal council, subject to the availability of work. He receives the youth allowance. He has been well-behaved since his release from custody. He stays at home mainly. He has acquired his learner's licence. He does not see many friends. Most of his former friends live in Sydney and he finds his present circumstances more peaceful and with less anxiety. He reports daily to the police. He acknowledges what he did, that it was pretty stupid, and that he was hanging out with the wrong people.
His physical health was good. He had been stabbed in the head at one point, but did not report any symptoms consistent with traumatic brain injury. He said that he had three seizures, but that there was no follow-up to those. There was no report of treatment or medication. Professor Hayes had a medical discharge summary indicating that, in addition to psychiatric medication, he was prescribed Ventolin as required.
The Juvenile Justice report that was available to Professor Hayes, written in 2016, included a reference to a hospital admission due to a purposeful overdose with pills, 60 Panadol tablets. He recognised the need to change his attitude to substance use because of the impact of his drug use upon his mental health. He drank heavily in Sydney but rarely now. He smoked cannabis a couple of years ago and had previously injected methamphetamine and smoked it, but did not do so for very long.
At the time of this assessment he was taking fluoxetine 20 mg in the morning and olanzapine 20 mg at night, both for schizophrenia. He was taking mirtazapine 50 mg for anxiety at night. He produced his medication to Professor Hayes to confirm its prescriptions. The medication for schizophrenia helped, though he continued to hear voices, sometimes intrusive to the extent that he feels like crying. He said the voices tell him to do things or engage in self-talk about his worthlessness and hopelessness. He suffered visual hallucinations, seeing things on television that were not there. He had ideas and delusions of reference, such as the television speaking to him and he said that sometimes words turned into numbers and he sometimes lost his sense of reality. He would hear the words "run" and "get down" and would see something glowing in his peripheral vision on occasion.
He believed people were out to get him. He had been experiencing symptoms of schizophrenia from age 12 and was first prescribed medication for it in 2016. There is a strong family history, with both his parents and his paternal grandmother diagnosed with schizophrenia. He described symptoms consistent with a severe anxiety disorder and panic attacks. He said the medication prescribed for that helped to reduce his anxiety. That panic attacks occurred randomly.
Professor Hayes had access to Dr Nielssen's report of 29 December 2019 to which I shall come. She had access to the mental health progress notes, revealing his connection with Marrickville Health Centre between 26 June 2017 and 5 July 2017, where he attended after hearing voices of different people telling him to kill himself or to hurt people. He engaged in some aggressive behaviour. There was a period in custody of one month in 2017 for malicious damage, assault and breach of bail. There is nothing before me regarding that in his antecedent report.
He described his experience arranging for social security. On 14 and 15 January 2019 he was brought to an intensive psychiatric care unit but discharged without evidence of psychosis or mood symptoms. This was followed up with a centre visit on 21 January 2019 when it was suggested that he follow up with drug health services. There is then reference to the author of the Weave Youth and Community Services report, with the assistance there provided. There is a discharge summary from Concord Repatriation General Hospital Mental Health Unit dated 14 January 2019, to which Professor Hayes had access. He was discharged with a referral to Canterbury Community Mental Health Services. There is reference to a Juvenile Justice report in December 2016 when he was on remand for juvenile offences. This referred to his removal of himself from negative peers. He was then depressed and anxious and needed medication.
There is a report from a psychologist, John Shepherd, to which Professor Hayes had access, describing ongoing emotional issues including grief and loss and a major depressive disorder in relation to the death of his maternal grandmother about three years before. He had lived with her for some three years before her death.
There is reference to perceptual disturbances/hallucinations that had persisted over a number of years. There was a treatment plan dated 21 December 2016, there described. He underwent psychometric testing. A Kaufman Brief Intelligence Test, Second Edition (KBIT-2) was performed. He functions in the range of borderline intellectual disability at a level lower than 92% of his age peers, but there was a significant difference between his verbal score at the bottom of the range of borderline intellectual disability and his non‑verbal score at the lower end of the average range of ability. This difference is said to be significant.
The Vineland Adaptive Behaviour Scales - ii was administered. These indicated that he functioned in the range of borderline intellectual disability for skills of adaptive behaviour. His best area of functioning was socialisation in the borderline range.
The summary and opinion section provides a brief statement of his personal background and family and social history, his psychological/psychiatric history, with the medication. An opinion is offered upon whether he has an intellectual disability or other type of cognitive impairment. Professor Hayes suggests that he has a cognitive impairment, namely, borderline intellectual disability, for both cognitive reasoning and skills adaptive behaviour.
A discussion and diagnosis of any mental illness or condition is sought in this request for this report. He is said to be currently suffering from a major depressive disorder and anxiety disorder and substance use disorder currently in remission. He is also suffering schizophrenia, with visual and auditory hallucinations, ongoing for at least four years.
With regard to the substance misuse issues, they appear to have arisen as a result of negative peer group involvement, his mental health condition and unresolved grief issues related to the death of his grandmother. He is attributed with representations by Professor Hayes that the offences were linked to his substance misuse. A similar conclusion was found in the 2016 Juvenile Justice report. He is likely to be vulnerable if he is sentenced to time in custody because of cognitive impairment, mental conditions and young age. Difficulties identified were the extent to which he is easily influenced by others, particularly in the more serious environment of an adult correctional centre. Recommendations are made by Professor Hayes.
Dr Olav Nielssen wrote his report on 29 December 2019 with a history consistent with what was drawn by Professor Hayes, including his psychiatric history and the family history of mental illness. The substance use history is discussed, his social history is discussed. Dr Nielssen also had material from the police documents, the Weave services author, and the discharge summary from Concord Hospital and progress notes from the Marrickville Community Health Centre.
His mental state examination included the observation that there were no obvious signs of neurological disorder or side effects of antipsychotic medication, no abnormality of emotional responses or communication. He reported experiencing auditory hallucinations, but no delusional beliefs were elicited, including any delusional explanation of his symptoms. His overall intelligence was estimated by the doctor as being in the normal range, relying upon observations of vocabulary, command of detail and his reasoning ability.
The diagnosis made by Dr Nielssen is probable schizophrenia and substance use disorder, made upon the basis of symptoms reported and information contained in the various medical documents to which he had access; so too with the diagnosis of substance use disorder. It is observed that he would appear to need consistent treatment with antipsychotic medication under the supervision by a mental health service team and that he should participate in substance-related counselling and supervision services, supervising his abstinence, because, as would be expected, his misuse of substances is likely to exacerbate his underlying mental health issues.
He has been successful in obtaining a position and there is an email from People Hub Operations, congratulating him on his successful application for work. There is a document here provided by his mother, speaking of the progress he has made since his release on bail and for the contribution he makes to the family. The material that she provides suggests that he is at a crossroads in his life and, if one accepts all that is written on his behalf, will take a direction away from the circumstances which have brought him before the Court.
I am provided with his bail conditions, which I shall bring to account. He is subject to bail requiring him to report daily between 8am and 8pm. There is a residential requirement. There is a curfew for the hours 8pm to 8am unless in the company of his parents. He is to present himself to police if requested, at any time during the curfew. He is not to approach any Crown witness or the co‑accused. He was to comply with requirements that he remain in custody until 28 February 2020 and then, immediately upon release, to travel directly to Central railway station and then from there directly to Grong Grong via Wagga Wagga. He was to attend the nearest Community Mental Health Centre upon his arrival at Grong Grong, to consult with Weave Youth and Community Services for counselling and guidance, and not to enter Sydney other than to attend Court. He is not to consume illicit drugs.
I accept that he has been compliant with that bail. Indeed, as this matter was unfolding, when he was required to come to Sydney for assessment, I was called upon to make orders in chambers to allow him to leave home to travel to Sydney and not report to the local police station in those periods so that work could be performed.
His case is different in significant respects to the case that was presented for Richard Coe. Whereas Richard Coe clearly had intellectual limitations, I am satisfied that this offender is burdened by mental illness for the reasons articulated by Professor Hayes and Dr Nielssen. Although I do not have the documents speaking of the history of his psychiatric issues, I accept the representations by Professor Hayes as reliable, and to the extent that Dr Nielssen had access to some of those documents, I accept his representations and regard them to be reliable.
Thus, I find that his moral culpability in the commission of this offence is reduced and I am reminded of the judgement by Johnson J in the decision of Tepania v R [2018] NSWCCA 247 at pp 112 to 115. I accept the history of mental illness extends well back into his childhood. No other finding is available, in my view, when I consider what is in the reports tendered and the history of mental illness that, unfortunately, afflicts his family.
The objective gravity of the robbery offence, and indeed the other three offences, must be assessed as below the mid-range. That applies for both of these offenders. In determining objective gravity in accordance with what Johnson J offered, mental abnormality should be brought to account. He does not suffer a criminal history such as to illuminate moral culpability to be other than moderated and thus, in this case, retribution and denunciation do not requirement significant emphasis.
Although he does not have profound childhood deprivation such as was considered in Bugmy v R ibid and in Munda v State of Western Australia [2013] HCA 38 yet he has his challenges and they are of such moment that they would always be relevant to the determination of punishment whenever he would come before a Court.
There is another consideration. It could not be found in this case whether Coe or this offender was the organiser or the leader in the commission of this crime. Both are attributed with their representations and assessments in terms that they are easily led. It is equally possible that they were participants with equal responsibility for the planning and the decision to implement the robbery, but the role played by this offender was far more passive than the role played by Coe.
I have already indicated in my judgement upon the question of guilt that I could not be satisfied beyond reasonable doubt that he was guilty of the offence of robbery armed with a dangerous weapon, but he is guilty of robbery in company as a lookout some little distance from where the actual taking occurred. I believe it is appropriate that he should be seen to be at a lower level of participation for the purposes of the determination of sentence.
The decision of the Court of Criminal Appeal in Er v R [2018] NSWCCA 286 was a case concerned with a group of people involved in a break, enter and steal in which the roles were distributed. They were charged as participants in a joint criminal enterprise. I took the view at first instance that the offender should be sentenced on the basis of his conduct in the course of the event and in sharing the proceeds, and should attract a sentence comparable with the others who were more active in the entry to the subject premises. They were charged with break, enter and steal in a scenario that resonates with the standard direction one gives to juries upon the concept of joint criminal enterprise. Hoeben J CJ at CL wrote at para [59], "While it is true that all three offenders were engaged in a joint criminal enterprise, and to that extent their culpability was equal, the functions which they performed were somewhat different. The CCTV cameras showed that Huynh and Aslett were in or at the house for over an hour. While it is not known who actually forced open the door, nor whether both or only one of them entered the house and ransacked it, I find it difficult to accept that only one of either Huynh or Aslett would have entered the house and the other would have remained outside for over an hour. Accordingly, there is a strong likelihood that they both entered the house and engaged in the ransacking process. That being so, their participation in the break, enter and steal offence should be regard as somewhat greater than that of the applicant, whose participation was somewhat more passive."
Although that paragraph deals with the specific facts before the Court in that matter, the principle that one would draw is that where a passive participant or perhaps a less active participant in the crime is to be sentenced, the level of punishment they face must be generally below that than to be suffered by the more active participant, subject of course to the synthesis of other objective and subjective facts that must be brought to account.
In this case they include the mental illness, diminished moral culpability which I find is greater than that burdening the offender Coe, there are the much more limited criminal antecedents of this offender in contrast to those of Coe, in respect of whom I have the benefit of the description of the past robbery offence with which he was charged and upon which he was sentenced.
Another consideration I bring to account is that the offender has already spent a period of time in custody and if the aggregate sentence I have settled upon today is determined accurately it must, in my view, bring to account not only the individual sentences indicated for each offence, but also the past period of custody which he has served.
If I were to backdate the sentence that I would impose, I would not expect him to be in custody for any significant period of time after today. I can see no benefit to the community or to the offender in having him return to custody for a period of months before he would be released upon a finding of special circumstances when eligible for parole. Rather, the approach I intend to take is to bring to account his past custody. I shall identify as appropriate a sentence of imprisonment in aggregate after the announcement of the indicative sentences in each case, and I am going to order that he serve the sentence by way of an intensive corrections order in the community, subject to conditions which I shall announce.

The Sentence for Singh

The offender is convicted of each of the offences.
He has a discount of 5% to be applied to the sentence that would have been otherwise imposed for the robbery offence, to reflect the extent to which he has facilitated the administration of justice in the way the trial was conducted. In respect of that matter, I specify as an indicative sentence, imprisonment for 2 years and 10 months.
For the offences of dishonestly obtain a financial advantage by deception in each case he has a discount of 10%, having pleaded guilty upon arraignment in the District Court, in accordance with s 25B(2)(b) Crimes (Sentencing Procedure) Act 1999. I specify a term of imprisonment in each case of 7 months, rounded down to that period upon the application of the discount to the starting point.
I impose an aggregate sentence of imprisonment for 3 years, to be served by way of an intensive corrections order in the community.
I do not have an assessment report, but I am satisified that I have ample material before me to enable me to come to the view that this is an appropriate course in this case. I have brought to account that community safety is of paramount consideration when determining whether to make an intensive corrections order, and I find that making an order that the sentence is to be served by way of an intensive corrections order is more likely to address his risk of reoffending. I bring those considerations pursuant to s 66 Crimes (Sentencing Procedure) Act 1999.
The conditions of the order include a curfew between the hours presently specified for the purposes of his bail. That shall continue for a period of eight months. I will not require that he perform community service for I would see it as more appropriate that he continue with rehabilitation and treatment to manage the mental health issues that are described by Professor Hayes and by Dr Nielssen, evidence of which is also found in the documents to which they have referred from his treatment history.
He is to abstain from the use of prohibited drugs and he is to abstain from the use of medication that is not a prohibited drug, unless it is medication which has been prescribed for him.
The intensive corrections order shall commence today. I note that these offences, including the robbery offence, do not fall within s 67(1) Crimes (Sentencing Procedure) Act 1999 which proscribes the availability of an intensive corrections order.
Returning to the curfew conditions - the curfew is from 8pm to 8am. He may be absent from those premises if he is in the company of his parent or if he is required to be absent from those premises in the course of his employment and for the purposes of travelling to and from his work if he obtains it.
I will require him to attend upon Community Corrections at Narrandera or such other centre that services the offender's address, and they can identify, in conjunction with the Weave organisation, what is best required for him for his supervision and guidance.
The terms of the sentence were explained to the offender.

Endnotes

R v Coe; R v Singh [2020] NSWDC 567 at [63]
R v Henry (1999) 46 NSWLR 346
Muldrock v The Queen (2011) 244 CLR 120 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2021

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Legislation Cited (1)

Cases Cited (16)