R v Forsythe

District Court of NSW|2020-04-03|Before: Ms J

REMARKS ON SENTENCE

The offender is to be sentenced in respect of two charges of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900 (Sequences 5 and 6). Both of the offences occurred on the same day but related to different victims. The maximum penalty proscribed for each is 20 years imprisonment and there is no Standard Non-Parole Period. The offender has asked that three additional charges be dealt with on a Form 1. They are as follows: Sequence 1 - Aggravated enter dwelling with intent to commit serious indictable offence knowing people were there. Sequence 3 - Passenger not disclose driver's other passenger's identity. Sequence 4 - Passenger not disclose driver's other passenger's identity.
The first of those three offences was an offence pursuant to s 111(2) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. Sequences 3 and 4 constituted offences pursuant to s 16(2) of the Law Enforcement (Powers and Responsibilities) Act 2002. The offender has admitted his guilt in respect of each of the three offences and has asked that they be taken into account on sentence in respect of the second aggravated robbery offence (Sequence 6), of which Mr Naeem was the victim.
The two index offences occurred on 13 April 2019 and the offender was arrested on 15 April 2019 and has been in custody since that time.

The offender's evidence

The offender gave evidence that he was born on 10 June 1980 in Samoa. He was 38 years of age at the time of the offending and will be 40 in June this year. He was 15 when he arrived in Australia and lived with an uncle in Brisbane for three to four years before moving to Sydney.
The offender had worked most of his life doing factory work or labouring and had supported his parents in Samoa. He had one son with whom he was estranged, who was aged 19 years.
The offender had been in a relationship for eight to nine years and will return to live with his partner when he is released from custody. He plans to start work as soon as possible and has had no misconduct charges whilst in custody.
The offender agreed with the facts as recorded in the Sentencing Assessment Report and adhered to his plea of guilty. He described the offence as being out of character for him and stated, "I don't know what came over me. I'm a family man. I didn't mean no harm to anyone."
The offender gave evidence that he was affected by his consumption of methamphetamine at the time of the offending. He used ice on weekends and had been in part-time work doing steel working. When asked whether it was likely he would re-offend, he said, "No it won't happen again I guarantee it." The reason for that was that he was not going to associate with the same people again. The offender suffers from Diabetes Type II but had no mental health issues. He had a sister living in Melbourne and two other siblings in Samoa.
In cross-examination, when asked why he attended with Mr Matalone, the offender said there was no reason for him to attend. Mr Matalone was a friend whom he had not known for long. He gave evidence that they needed three men to push the motorcycle off the trailer as it was heavy. He had nothing to do with the sale of the motorcycle, but was on ice, which he had consumed the day before he attended. When asked whether he was there as backup for Mr Matalone, he said, "No, I was just along for the ride."
When asked why he asked the two men in the car at Auburn, "Do you guys have the money?", he denied that it was because he was involved in the sale of the motorcycle.
He admitted the circumstances of the offence against Mr Talat, but said that he gave Mr Talat his phone back. When asked why he took Mr Talat's phone, he said that he guessed that he would call the cops, but that it was a "spur of the moment thing".
He conceded that his conduct would have been intimidating and distressing for Mr Talat, however, he said that he did not mean to be violent.
The offender could not explain why he had punched Mr Naeem in the head twice. Again, he described it as a "spur of the moment thing", and notwithstanding that it was an extremely violent thing to do, he did not mean any harm. The offender did, however, accept that he could have caused harm and was very sorry for his actions. He did not recall putting his hands around Mr Naeem's neck.
The offender admitted to returning to the property two days later. He said he was on an ice bender and had consumed ice the day before and the day of attending. He agreed with the circumstances set out in the Agreed Facts and that by entering the premises it would have been intimidating for the occupants. When asked why he went back to the property, he said, "I don't know why."
The offender denied being a drug addict. He did not have a problem with the use of ice at the time of the offending, but had used it a number of days in a row. When asked why he did not have a problem with ice use, he said he did it with friends and did not go and look for it.
In re-examination, the offender said that using ice did not agree with him. When asked why not, he said, "Look where it got me. Look where I am now." It was his first time in custody.

The Crown submissions

The Crown relied on a detailed written outline of submissions in which it conceded the offender was entitled to a 25% discount for the utilitarian value of his plea of guilty. He had spent 11 months and 20 days in custody on remand.
The Crown submitted that the two robberies were committed during a single episode of criminality, precipitated by the negotiations for the sale of the motorcycle, which did not directly involved the offender. There were, however, two separate victims, and the offending occurred on a public residential street, and in both instances was unprovoked. The offending was properly characterised as a sustained course of conduct.
The Crown submitted that the offending in each case fell at the mid-range of objective seriousness for offences pursuant to s 95(1) of the Crimes Act 1900. In respect to the first victim, the offender reacted in a threatening and violent manner to the victim trying to contact police. He grabbed the victim's collar and pushed him onto the ground and into some shrubs. He then demanded the phone from Mr Talat and told him to "Keep it low. Don't make any noise".
In respect to the second victim, Mr Naeem, the offender inflicted corporal violence by punching him twice to the face causing pain and a cut to the victim's lip. He then placed his hand around the victim's neck and took the victim's i-phone. The offender then continued to exhibit violent and intimidating behaviour, insisting that Naeem purchase the motorcycle. He left the scene with Naeem's mobile phone, and when the group of men left, one of them shouted a threat to Mr Naeem by stating, "We're going to punish you".
The Crown submitted that the R v Henry (1999) 46 NSW LR 346 guideline was applicable. As the offender was 38 years at the time of the offending, he was not youthful and therefore his age elevated the criminality of the offending. Further, the Crown submitted that whilst there was no evidence that the offender was involved in the arrangement for the sale of the motorcycle, the offending was not entirely spontaneous. Rather, it involved violence in both instances and a high degree of violence in the robbery of Mr Naeem. The amount taken was limited to the mobile phone of each of the victims, one of which was returned. Further, the plea of guilty was entered in response to a strong Crown case.
The Crown submitted that an aggravating factor here was that the two robberies were committed in the company of two other males (s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
The Crown submitted that the matters on the Form 1 also aggravated the offending. The first offence on the Form 1 represented a brazen and offensive invasion of the privacy of the premises. It represented a continuation of the criminality exhibited two days prior and showed that the offender intended to make good on the threat to punish the victim. The criminality reflected on the Form 1 offence warranted a material increase in the offender's overall sentence.
The Crown submitted there should be a degree of accumulation between the sentences imposed for each offence to reflect the distinct criminality and the harm done to each victim.
The Crown submitted the following general principles apply to aggravated robbery offences: "(1) Absent exceptional circumstances, a sentence of full-time imprisonment is to be imposed for offences of armed robbery and aggravated robbery. (2) The R v Henry guideline judgment does not mandate the outcome, it is a check/guide - and it is not prescriptive. (3) The R v Henry, guideline of a head sentence of four to five years applies where the offender is charged with a single offence - a multiplicity of offences calls for a total sentence well in excess of four to five years promulgated. (4) A multiplicity of offences calls for a total sentence well in excess of four/five years - as the offending continues, each succeeding offence calls for greater punishment. (5) It is an error for a sentencing judge to place significance on a victim not sustaining any permanent injury, since an injury would be a matter for further aggravation and may have rendered the offender to a heavier penalty for a more serious offence (authorities and citations omitted)."
In her oral submissions, the Crown rehearsed the submissions set out above relating to the assessment of the objective seriousness of the offending pursuant to s 95(1) of the Crimes Act 1900. It was submitted that the second offence concerning Mr Naeem as the victim represented an escalation of the violence and was a more serious offence than the first.
The Crown submitted that although the offender in his evidence minimised his involvement by saying that he "went along for the ride", the Agreed Facts suggested a more heightened level of involvement. The fact that three men were present and the offender approached the vehicle and asked, "Have you got the cash?", suggested it was not spontaneous or impulsive offending.
The Crown accepted that the amount of loss here was limited, namely, two mobile phones, one of which was returned to the victim.
The Crown rehearsed her submissions in respect of the statutory aggravating factor pursuant to s 21A(2)(e) of the CSPA, and the seriousness of the Form 1 offence of aggravated enter dwelling with intent to carry out serious indictable offence. This offence demonstrated an intention to make good their threat to punish the victim.
In respect of the offender's prospects of rehabilitation and risk of re‑offending, the Crown submitted that the offender had wholly minimised the offending in his evidence, together with the violence that he exhibited. This showed an extremely limited insight into his offending conduct, which should be taken into account in determining his prospects of rehabilitation. Further, his denial of being addicted to the drug ice, and his evidence that he was under the influence of ice at the time of the offending provided a limited basis for any finding of special circumstances.

The offender's submissions

The offender also relied on a written outline of submissions. Counsel submitted that the offender does not have an extensive criminal history, as his antecedents involved minor driving and drug related offences. He had never before been sentenced to a period of imprisonment.
Counsel submitted that the objective seriousness of the offending here fell in the low to mid-range for offences pursuant to s 95(1). The first offence involving Mr Talat involved the offender grabbing him around the collar of his t-shirt and pushing him to the ground whilst demanding his phone. The offending was not significantly premeditative, occurring due to an escalation of an argument regarding payment for the motorcycle.
Counsel conceded that the violence occasioned in respect of the second offence concerning Mr Naeem was of a more serious category. Mr Naeem suffered two punches to the head and the offender's hands around his neck, immediately prior to the offender taking his phone. Mr Naeem suffered a small cut to the inside of his lip. It was submitted that the offending was not significantly premeditated and it was only after the arrival at the premises in Auburn that the violence ensued. The violence in both matters was brief and whilst it was conceded that it was significantly distressing for both victims, it was not the most serious example of violence for offences of this kind. Further, the value of the property stolen was not significant.
In respect to the matters on the Form 1, Counsel submitted that guidance to the correct approach was provided in the judgment of Spigelman CJ in the guideline judgment application. It was important that the Form 1 matters should be taken into account only in relation to the principal offence. The offender admitted his guilt in respect of each of the three matters on the Form 1 and asked that they be taken into account accordingly.
Counsel submitted that no aggravating features arose pursuant to s 21A(2), however, the following mitigating factors did apply pursuant to s 21A(3): 1. "The injury and loss suffered was not substantial. 2. The offence was not part of a planned or organised criminal activity. 3. The offender does not have a significant record of previous convictions. 4. The offender was unlikely to re-offend. 5. The offender has very good prospects of rehabilitation. 6. The offender has pleaded guilty and is therefore entitled to a 25% discount.
Counsel conceded that general and specific deterrence are relevant to the sentencing process. Here, the principle of specific deterrence can be tempered for this offender given that he has minor antecedents and has not come to notice in the custodial environment. That evidence tends to suggest that his offending conduct was completely out of character.
Counsel conceded that the s 5 threshold had been crossed, but that two factors warranted a finding of special circumstances: 1. "This is the first sentence of imprisonment and the offender is in his 40th year. 2. If there was any degree of accumulation between the sentences, there could be a finding of special circumstances in order to apply the totality principle, relying on Hejazi v R (2009) 217 A Crim R 151 at [35]."
In her oral submissions, Counsel for the offender took issue with the Crown submission that the offender had wholly minimised his offending in his oral evidence. The offender, it was submitted, had expressed remorse by saying that he was sorry and his plea of guilty was an acknowledgement of his wrongdoing.
Counsel conceded that offences pursuant to s 95(1) fell within a very serious category of criminal conduct, given the maximum penalties proscribed by Parliament. However, she rehearsed her written submissions as to the assessment of the objective seriousness of the offending falling in the low to mid-range for the reasons outlined above. What occurred with Mr Talat involved spur of the moment offending and there was no premeditation. The violence escalated in respect of Mr Naeem which fell into a more serious category, however, there was no significant premeditation involved in that offending either.
In assessing the objective seriousness, the court should take into account the nature and extent of the violence involved, referring to R v Atonio (2005) 154 A Crim R 183 at [29].
Counsel submitted that whilst the offending would have been distressing and intimidating to the victims, it constituted "pathetic behaviour" by the offender which was very serious.
Similarly, the first offence on the Form 1 of aggravated enter dwelling with intent to commit serious indictable offence, would have been menacing conduct to the occupants of the premises. It was, however, of short duration.
Counsel rehearsed her submissions as to the mitigating factors involved and the offender's subjective matters, submitting that he had good prospects of rehabilitation and was unlikely to reoffend. He had been gainfully employed prior to his offending and when released from custody would return to reside with his partner. Having regard to his evidence in acknowledging his offending, the court would be confident that he will not reoffend and that he would remain abstinent from drug abuse. He had no prior convictions involving drugs and violence.
Counsel submitted that there should only be a small degree of accumulation between sentences which should be assessed in the low to mid-range of objective seriousness. There was a degree of brevity in the offending conduct and he had already served 11 months and 20 days. The offender had expressed remorse in his own way and should not be given a crushing sentence.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending in respect of each offence of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900, the whole of the circumstances have to be taken into account, including the nature and extent of the corporal violence which was the aggravating factor in each case.
In respect of the first offence involving Mr Talat as the victim, the offender approached Mr Talat when the victim was sitting in his car and asked him whether he had the money and if they lived at the address. As the victim reached into his pocket to retrieve his phone, intending to call the police, the offender told him not to touch the phone and then grabbed the collar of his t‑shirt and pushed him to the ground and into some shrubs. Whilst still holding onto Mr Talat, he demanded his phone, which was handed over.
The nature and extent of the corporal violence involved, and the brief period of time over which this offending took place, means that the objective seriousness of the offending fell at the lower end of the range for an offence pursuant to s 95(1) of the Crimes Act 1900. It lay between the lowest end and the middle of the lower range for such an offence. It was aggravated by the fact that the offender was accompanied by one other person at the time of this offence, namely, Mr Vaa.
The second offence of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900 where the victim was Mr Naeem, fell into a more serious category of objective seriousness. There was an escalation in the violence here when the offender delivered two punches to the head of the victim and then grabbed him around the neck. The offending took place over a short period of time and the victim suffered a cut to the inside of his lip which required sutures. The item stolen was the victim's mobile phone. In assessing the whole of the circumstances, the objective seriousness fell below the mid-range for an offence pursuant to s 95(1) of the Crimes Act 1900, but in the upper part of the low range for such an offence. It still constituted very serious offending.
The offending was aggravated by the fact that it was carried out in company of two other male persons (Matalone and Hytongue). The presence of those two men in the group setting had potential to further intimidate the victim.
I accept the Crown submission that in each case the offending was unprovoked. I find, however, that it was not premeditated offending, nor was it part of a planned or organised criminal activity. I accept the offender's evidence that the offending occurred "on the spur of the moment".
I find that the following mitigating factors are made out pursuant to s 21A(3): (a) The injury and loss suffered in each case was not substantial. In the case of Mr Talat, he received no injury and his mobile phone was returned. The victim Mr Naeem suffered a cut lip and his i-phone was taken. (b) The offence was not part of a planned or organised criminal activity, but rather was spontaneous after an argument between Mr Matalone and Mr Naeem. (e) The offender does not have a significant record of previous convictions. He previously had traffic and driving offences and one drug offence for which he received fines. The most recent offence was an obstruct police matter in 2009 when he was aged 28 years, for which he also received a fine. He had never previously been incarcerated and has been in custody since his arrest on 15 April 2019. He has had no misconduct charges during his time in custody. (g) I accept the offender's evidence that he does not want to end up in custody again and given his past record and his age, I find that he is unlikely to reoffend. (h) I also find that the offender has good prospects of rehabilitation, given his age and lack of antecedents. (i) and (k) I accept that the offender is remorseful for his criminal conduct and by his plea of guilty has acknowledged his guilt and accepted responsibility for his criminal conduct. He is entitled to a 25% discount for his plea of guilty.
I do not accept the Crown submission that the guideline judgment in R v Henry, supra, is applicable to the offences pursuant to s 95. The guideline judgment is a relevant reference point for such offences, however, it must be approached with some caution given that offences to which the guideline applies involve the use of a weapon. I therefore do not propose to adopt the guideline sentence of four to five years, based on a 10% discount for the plea of guilty, as a starting point here.
I have had regard to the maximum penalty proscribed of 20 years imprisonment for the offences pursuant to s 95 as a guidepost in the sentencing process. I have also had regard to the age of the offender, namely, 38, which would otherwise have elevated the criminality of the offending if the guideline judgment was to apply.
Clearly, general deterrence is important in the sentencing process for offences pursuant to s 95 in that a clear message must be sent to like-minded persons in the community that Parliament has proscribed lengthy maximum terms of imprisonment by way of sentence for such offences and the courts will impose condign punishment in appropriate cases.
Specific deterrence is also important in the sentencing process here. The offender must understand that if he was to repeat this type of offending, he would be sentenced to increasing terms of imprisonment. I find, however, that this offender, given his age, his lack of previous similar offending and his history of employment, mean that he has good prospects of rehabilitation and is at a low risk of re-offending.
The offence on the Form 1 of aggravated enter dwelling with intent to commit a serious indictable offence pursuant to s 111(2) of the Crimes Act 1900 was also serious offending, at the upper end of the low range for an offence pursuant to that section. In taking that into account on the Form 1, together with the two traffic related offences, there must be some accumulation in the sentence in respect of the second aggravated robbery offence.
I have also taken into account the subjective circumstances of the offender here. He is now 39 years of age and has limited criminal antecedents. He has been gainfully employed and intends to resume employment upon his return to the community. He also has supported family in Samoa and will reside with his partner of nine years following his release from custody.
I accept that the offender is remorseful for his offending. He has acknowledged that the threshold in s 5(1) of the CSPA has been crossed and having considered all possible alternatives, I find that no penalty other than imprisonment is appropriate.
In considering the application of the principle of totality to the sentence here, I have had regard to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Applying those principles, notwithstanding that the offending arose from the same course of criminal conduct, given that there were two victims and two separate incidents, there must be some accumulation on sentence here. Taking into account the 25% utilitarian discount on sentence, I propose to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. The indicative sentences will be as follows: Sequence 5 - aggravated robbery in respect of Mr Talat - 18 months imprisonment Sequence 6 - aggravated robbery in respect of Mr Naeem - 2 years and 6 months imprisonment
I find that there must be some accumulation in arriving at the aggregate sentence. I find there are special circumstances given this is the offender's first custodial sentence, and the fact that there has to be some accumulation in the sentences. I therefore intend to impose an aggregate sentence of 3 years to date from 15 April 2019, with a non-parole period of 2 years from 15 April 2019 until 14 April 2021. In all of the circumstances here, I find that the least period the offender is required to serve before being eligible for parole is a period of 2 years.

Orders

I make the following orders: 1. You are convicted of the offence in Sequence 5, that on 13 April 2019 at Auburn in the State of New South Wales you did rob Umair Talat of certain property, namely, a mobile phone, the property of Umair Talat, and immediately before the robbery used corporal violence on the said Umair Talat, pursuant to s 95(1) of the Crimes Act 1900. 2. You are convicted of the offence in Sequence 6, namely that on 13 April 2019 in Auburn in the State of New South Wales you did rob Mian Naeem of certain property, namely, an i-phone X mobile phone the property of Mian Naeem and immediately before used corporal violence on the said Mian Naeem, pursuant to s 95(1) of the Crimes Act 1900. 3. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA of 3 years imprisonment to commence on 15 April 2019. 4. I impose a Non-Parole Period of 2 years to commence on 15 April 2019 and to terminate on 14 April 2021. 5. I have certified that in dealing with Sequence 6, I have taken into account the offences admitted by you on the Form 1.

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: 09 April 2020

(1999) 46 NSW LR 346

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