R v EDEN

Assessment

1. Although this matter involves a charge of Armed Robbery With Wounding it is still instructive to go to the Guideline Judgment of R v Henry & Ors (1999) 46 NSWLR 346. A number of "common features" to robberies was set out, namely: 1. Young offender with no or little criminal history 2. Weapon like a knife, capable of killing or inflicting serious injury 3. Limited degree of planning 4. Limited, if any, actual violence but a real threat thereof 5. Victim in a vulnerable position such as a shopkeeper or taxi driver 6. Small amount taken 7. Plea of guilty, the significance of which is limited by a strong Crown case.
2. However, Spigelman CJ went on to say at [162]: "Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term."
3. In the matter presently under consideration the offender was young. His criminal history is limited. A substantial weapon was used by the offender and there was actual violence inflicted in the form of the wound. Wounding however is an essential element of the offence. Clearly there was some degree of planning but it could not be said to amount to substantial planning. The victim was not a vulnerable victim although the circumstance of him being in the car with limited means of escape is a relevant factor. There was a limited amount of property taken.
4. The wound was treated with sutures under local anaesthetic. The facts do not indicate the number of sutures required but Ms Warwick for the offender in submissions put that it was between 5 and 7. It is not a particularly serious example of a wound but given that sutures were required it could not be described as a minor wound. The photograph reproduced in the facts clearly shows the extent of the wound before medical treatment. The offender admitted under cross examination that the wound was intentional. The victim in the Victim Impact Statement maintains he has ongoing difficulties but there is no medical material to confirm that. In the absence of medical material I am not prepared to find beyond reasonable doubt that the victim does suffer ongoing sequelae.
5. Ms Warwick on behalf of the offender in her written and oral submissions put that the matter falls at the lower end of the range of seriousness for offences of this type. I note in the written submissions on behalf of the offender it was put that the wound was reckless. Clearly that is not the case given the cross-examination of the offender. In oral submissions it was put the matter was significantly below mid-range. The Crown submits that the matter falls marginally below mid-range. In all of the circumstances I am of the opinion that the matter is moderately below mid-range.

Criminal History

1. The offender was born on 29 April 1997 and accordingly was just under 21 years of age at the time of the offending. In 2017 he was convicted in the Local Court of Possession of a Prohibited Drug and Custody of a Knife in a Public Place. Fines were imposed. In 2019 he was convicted and released on a Community Corrections Order for Possess or Use a Prohibited Weapon. He was also fined for Custody of a Knife in a Public Place and Possess Prohibited Drug. In 2020 he was convicted and fined for Being Carried in a Stolen Conveyance.
2. There is a matter recorded against him in the Children's Court jurisdiction in the ACT in 2012. However given the decision of Dungay v R [2020] NSWCCA 209 and ss 14 and 15 of the Children (Criminal Proceedings) Act, 1987 I ignore that entry for the purpose of proceeding to sentence.
3. The Crown submits that the record is one that does not entitle the offender to any particular leniency. I am of the opinion that given the age of the offender he is still entitled to some minor consideration for his relatively limited record.

Victim Impact Statement

1. I have already referred to the Victim Impact Statement when dealing with the assessment of the seriousness of the matter. I accept that the victim has concerns about meeting new people and that he has experienced nightmares. I accept that he has a scar where the wound was inflicted.
2. The victim maintains that the injury affected his work and that he had ongoing sequelae. As indicated above and noting in particular the decision of R v Tuala [2015] NSWCCA 8 at [77]-[84] I am not prepared to find beyond reasonable doubt that those matters are in fact the case.
3. Be that as it may, nevertheless the experience would have been extremely frightening for the victim. The effect of the crime on the victim is taken into account in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act, 1999.

Sentence Assessment Report (SAR)

1. The SAR sets out that the offender was under the influence of heroin and methyl amphetamine (ice) at the time of the offending. Self-induced intoxication cannot be a matter in mitigation: s 21A(5AA) of the Crimes (Sentencing Procedure) Act, 1999.
2. However, the SAR goes on to report that the offender accepts responsibility for the offending and expressed regret. He also expressed empathy for the victim.
3. The offender is assessed as being a medium risk of re-offending.

Subjective Case

1. It must be observed that the offender has a particularly strong subjective case. Indeed I commented at the sentence hearing to the effect that what has become known in shorthand as the "Bugmy factors" are enlivened to a very considerable extent in this matter.
2. The offender gave evidence that initially he lived with his parents in Narrandera and further that his parents were both addicted to illicit substances and in particular methamphetamine or ice. He went to four or five primary schools but consistently got into trouble and was suspended or expelled. He was involved in an incident at school which resulted in the police attending. He attended three or four secondary schools but "dropped out" a few months into Year 8.
3. The evidence continued that when he was about 11 years of age his mother encouraged him to commence using methamphetamine because it would make him feel happy. His mother also encouraged him not to attend school.
4. At home he was exposed to drug use and the presence of drug paraphernalia on a regular basis. He witnessed people at the house overdosing. Drug users frequented the house.
5. The offender's father stopped using drugs and left the house. The offender's mother continued to use drugs and continued to encourage the offender to use illicit substances. Although his father brought home food there was not enough and his mother would encourage him to steal food from local shops. That occurred several times per week for a number of years. His mother also encouraged him to break into houses and cars for the purpose of stealing money.
6. The house was very unclean and had a number of broken windows. The house continued to be frequented by what the offender described as "low life drug addicts".
7. The offender went to live with his father for about 9 months or so but returned to his mother's house, which was essentially in the same condition as before. There was frequent drug use and other criminal activity. The offender was removed from the house and taken to a youth refuge.
8. The offender did not use drugs while he was living with his father but he nevertheless craved drugs and went back to his mother's place out of a sense of guilt. He resisted using ice for some little while but witnessed his mother and others at the house taking the drug and he wanted it so he again began to use that substance.
9. He had work for some time at Southern Pre-Cast, which made components for bridges out of concrete. Also, he had some work at an air-conditioning company.
10. The evidence continued that by the age of 20 he was using heroin and methamphetamine. After the offence he stayed in Wagga Wagga for about a year before moving to Canberra to be his mother's carer. His mother was still using substances and there was drug paraphernalia around the house.
11. The offender was arrested and extradited to New South Wales. The offender said that he had not used drugs since his arrest. He has moved to live with his sister in Narrandera and he has remained abstinent from substances. He assists his sister and her partner with the four children aged 14, 7, 6 and 1.
12. The offender identifies as indigenous on his mother's side. He has spent time with Ms Stella Little, who he calls "nan". Ms Little also gave evidence. He is studying for Certificate III in hospitality and has the ambition of working as a chef in his own business. At the time of the sentence hearing the offender was not vaccinated against COVID-19. He confirmed what was said in the SAR about being willing to perform community service.
13. Towards the conclusion of his evidence in chief the offender recognised that the offence for which he appears for sentence was a very serious offence. When asked how he felt about it he said that he was regretful, that he hates the person he used to be and that the offence was disgusting.
14. That part of the offender's evidence taken with the SAR entitles the offender to a finding on balance that he is remorseful.
15. Significantly, under cross-examination the offender admitted that the wounding was intentional. I have dealt with that in the facts and the assessment. While the offender's conduct was a serious aspect of this matter the admission made in evidence speaks well of the offender's honesty.
16. Ms Victoria Preston, the offender's sister, gave evidence and confirmed what the offender said about living with her and assisting around the house and in particular with the children. She also gave evidence that the offender was born an addicted baby. She also confirmed the evidence of the offender so far as the situation with the house in which they lived as children. She gave an account of the offender being sexually abused as a child by an uncle. Clearly the offender has the support of his sister.
17. The offender was not challenged on the evidence so far as the deprivations suffered in his formative years. However his sister provided powerful corroboration. I am persuaded that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a significant extent reducing the moral culpability of the offender. The weight to be given to those factors in this case is significant.
18. Ms Stella Little also gave evidence. Exhibit 4 is a hard copy of an email in which she describes herself as the offender's "non-biological grandmother". She also corroborated the offender so far as the issues of the offender's mother drug use was concerned. She is very supportive of the offender. She also gave evidence that she has spoken to the offender about the offence for which he appears for sentence. She said that the offender was "very regretful that it happened", he was very sorry and very remorseful.
19. Given the very significant steps taken by the offender, I am prepared to find on balance that he has good prospects of rehabilitation. With some little hesitation, noting those very substantial steps and the continued support of his sister and Ms Little, I am prepared to find on balance that the offender is unlikely to re-offend.
20. Exhibits 1, 2 and 3 are references from Kylie Yerbury, Debbie Butterfield and Chloe Gore. The referees speak of the offender's remorse and his efforts at rehabilitation, none of which is in doubt.

Submissions

1. I have already dealt with the submissions of the parties so far as the seriousness of the matter is concerned. The submissions included that the sections contemplates far more serious examples of a wound including gunshot wounds. There is some substance to that submission.
2. Submissions were made on the issue of the offender's use of meth-amphetamine and the fact that he commenced using that substance at the behest of his mother when he was young. That is one of the many factors that go to the issue of the "Bugmy factors", which I have already indicated are enlivened to a significant extent. To give that issue further weight would in my view be double counting.
3. It was put on behalf of the offender and I accept that the offender is entitled to consideration for his youth, noting that he was 20 at the time of the offending. I note in particular the decision of Locke v R (2010) 207 A Crim R 34 in particular at [41]-[49] per Hulme J.
4. Ms Warwick in her written submissions goes to the issue of delay. However at the sentence hearing it was indicated that the issue of delay goes to the opportunity that the offender has had to demonstrate his efforts at rehabilitation. I have found that the offender has good prospects of rehabilitation.
5. It was put and I accept that the SAR was positive. The offender is now leading a pro-social life.
6. Counsel's ultimate submission was that the total sentence would be two years or less and that the court would order the offender to serve that sentence by way of Intensive Correction Order. Counsel was reminded of the Guideline Judgment in R v Henry & Ors. Ms Warwick submitted in response that the offender had a very strong subjective case and again emphasised the deprivations experienced by the offender in his formative years.
7. On the issue of the strong subjective case it is perhaps timely for the court to remind itself of what the Court of Criminal Appeal (Gleeson CJ; Lee CJ at CL and Hunt J (as he then was)) said in R v Dodd 57 A Crim R 349 at p 354: "Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594."
8. Dodd was affirmed by the Court of Criminal Appeal in the decision of R v Carroll [2008] NSWCCA 218 - see especially at [20]-[21]. Carroll successfully appealed to the High Court but there is nothing in the decision of the High Court that impacts on the principle extracted immediately above.
9. Further as Bellew J observed in Clark-Jeffries v R [2019] NSWCCA 56 at [45]: "…Secondly, a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending".
10. Nevertheless the very strong subjective case means that the starting point for the sentence is lower than what it otherwise would have been.
11. The Crown essentially relied on the written submissions, MFI 1 on sentence. The Crown addressed the issue of the seriousness of the matter and the Guideline Judgment. At paragraph 19 of the submissions the Crown's representative submitted that the range outlined in Henry is "relevant and useful as a reference point but one which is below the appropriate range in this case…" The Crown appropriately then submitted that that was subject to the subject case led at the sentence hearing.
12. The Crown submitted, appropriately, that there is an issue of general deterrence to be addressed in the sentence.
13. Ultimately the Crown submitted that the only appropriate sentence was one of full time imprisonment.

General Remarks

1. In passing sentence I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate.
3. I have carefully considered Ms Warwick's submission that the sentence be such that it can be served by way of Intensive Correction Order. After that consideration I am firmly of the opinion that given the offending, the maximum penalty and standard non-parole period provided the sentence must exceed by some margin the two years that would permit the offender to serve the sentence by way of Intensive Correction Order.
4. I note that neither party referred me to the statistics kept by the Judicial Commission. I have however accessed those statistics. I accept that the sentence I am about to impose is towards the lower end of the range of sentences for offences contrary to s 98 of the Crimes Act. The offender has a particularly powerful subjective case.
5. I am also firmly of the opinion that there should be a generous finding of special circumstances in this matter. The factors that inform this finding include the offender's age, this is his first time in custody and moreover there will be a need for an extended period of supervision to ensure that the offender is properly reintegrated into the community and he receives the appropriate supervision to ensure that he continues the excellent steps already taken towards rehabilitation.
6. Having given the matter much consideration I am of the opinion that the appropriate starting point for the sentence in this matter is 5 years imprisonment from which is deducted the 25% discount for the utilitarian value of the plea of guilty producing a total sentence of 3 years 9 months. I have already indicated that there should be a generous finding of special circumstances.

Orders

1. In respect of the offence of Armed Robbery with Wounding to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to a non-parole period of 2 years to commence on 18 November 2021 and to expire on 17 November 2023.
3. Thereafter there will be a balance of term of 1 year 9 months to commence on 18 November 2023 and which will expire on 17 August 2025.
4. The offender will be eligible to be released upon the expiration of the non-parole period and I recommend that release.
5. The sentence indicates a finding of special circumstances the reasons for which have already been given within these reasons. The non-parole period is approximately 53% of the total sentence.

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