R v Graham

Disputed facts

1. It is not in dispute that Graham committed a serious offence at a post office in southern Wollongong on 7 September 2023. Graham entered a plea of guilty in the Local Court. But in so doing he disputed three important facts that were part of the prosecution case against him. In order to resolve those three important facts, it was necessary to call evidence from the victim of the offence today about any threats of violence accompanying the proffering of a pistol during the robbery. It was necessary because those three items went to the objective seriousness of the offence and the level of actual violence used.
2. Where matters are said to increase the objective seriousness of an offence the prosecution have an obligation to prove such matters beyond reasonable doubt. Accordingly, it was necessary to hear from the complainant.
3. Where factual matters are put in dispute the otherwise applicable reduction for the utilitarian value of a plea in the Local Court, generally 25%, can be reduced. "The court may determine not to apply the sentencing discount, or to apply a reduced sentencing discount, if the court determines that the discount should not be applied or should be reduced because the utilitarian value of the plea of guilty has been eroded by the dispute as to facts that was not determined in favour of the offender.": Crimes (Sentencing Procedure) Act 1999 (NSW), 25F(4).
4. Here, for the reasons I will soon outline, two of the matters were resolved in Graham's favour and one was not. There was thus, some loss of the strictly utilitarian value of the guilty pleas, but it was not significant.
5. However, it has to be said that the calling of evidence, which took an extra hour or so of Court time, also enabled the Court to get a better appreciation of the harm done to the victim. The offender in his evidence acknowledged this harm. The extent of that harm would not have been as clear had I simply read a Victim Impact Statement. In resolving the disputed facts, even though two issues were resolved in his favour, there was obviously real distress caused to the victim. That distress reduces the utilitarian value of the plea. But that reduction will be modest. I will reduce the value of the plea so far as the principal charge to 23%, although there must be some rounding to avoid a sentence expressed in weeks and days.
6. There are also two other matters for sentence today. They came to the Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate. They would have otherwise been dealt with summarily in the Local Court. The facts of those matters were not contested. I will address them when I come to recite the facts of the matter. Graham should have the full utilitarian value of his guilty pleas.

Matters for sentence

1. The matters for sentence today are:

• Robbery while armed with a dangerous weapon. It carries a maximum penalty of 25 years imprisonment: Crimes Act, s 97(2).
• Possession of the prohibited drug, methylamphetamine: Drug Misuse and Trafficking Act 1985 (NSW), s 10(1). The drug was found on the offender when he was arrested. It is a summary matter that came to the court on a s166 certificate. The maximum penalty is 2 years imprisonment.
• Possession of an unauthorised prohibited firearm, a Glock Gel Blaster pistol, not being authorised to do so by licence or permit: Firearms Act 1996 (NSW), s 7(1). It also came to the court on a s166 certificate. It has a maximum penalty of 14 years but if dealt with in the Local Court is has a capped maximum of 2 years imprisonment.

Facts for sentence

1. About 11am on 7 September 2023, a young woman was working at a post office in southern Wollongong. She had gone to the front of the store to investigate noise from a car accident in the street just outside. When she returned, she failed to fully close the door to the secured rear counter of the premises.
2. The offender who, on his own evidence had been in a nearby telephone box "tossing up" whether to commit the crime or not, then entered the post office. He was wearing a face mask and a cap and wielding the Glock pistol. Although it was put in dispute, I accept beyond reasonable doubt the victim's evidence that he said to her, "If you want to live today do as you're told". He then gestured to her with the pistol.
3. I make that finding even though the offender told me in evidence today said he did not say those words. I accept the complainant's account. Although there is no audio on the CCTV footage her evidence and her memory of the events best fitted with what was shown on the CCTV and the way the offender used the weapon.
4. The offender told me he has been going over this matter "time and time again". He said that he does not see himself as a violent person. He says, "I don't believe I spoke those words". I accept that this is what he now believes to be the truth, but by replaying the event over and over in his head he has reinforced a version of events which minimises what he actually did and said. I reject his account.
5. Other allegations involving threats to kill or hurt the victim were also put in dispute. I cannot accept they were said as the witness gave no evidence of them being said. In fact, to the offender's benefit, she has him saying at one stage "I won't hurt you", and then later she said he told her, "You'll be okay".
6. Those words, however, have to be contrasted with what he was actually doing at the time they were said, which was brandishing the gel pistol. He was also pulling back the pistol's slide, to emphasise the threat inherent in that sort of weapon.
7. When Graham went behind the counter, his victim was terrified and froze. Her evidence today made that terror manifest. She was unable to open the till. The offender offered advice, which ultimately led to the till being opened. He then gathered up a bit under two and a half thousand dollars, picking up some other items and dropping them, before leaving saying, "You'll be okay, you'll be fine".
8. The matter was reported immediately. The police investigation soon led to the offender, and he was arrested. He had left an envelope on the counter. He told police where the pistol was. They were able to recover it. A photograph of the pistol is before me. Superficially, it looked like a real Glock pistol.
9. I am aware that some gel guns have orange marks on their barrels or other features designed to distinguish them from real pistols. Any mark or colouring that might have shown this pistol to be an imitation or a toy were non-existent or had been removed. The victim must have thought that it was a real pistol as the offender intended.

Objective seriousness

1. I have to make an assessment of objective seriousness of the offending. I accept that, while the offender did take a gel pistol with him when he left his home that morning, it was only when he was waiting outside, having tossed up one way or the other whether he would do what he did, that he committed the crime.
2. He said in evidence, "I'm not criminal mastermind. I can't plan anything". Whatever planning there was, was rudimentary. He was aware of the location for reasons I will get to. He was also aware that CCTV would record what he did. He left an item which could have been, and was, traced back to him.
3. Mr Vizintin, who appears for the offender points out that there was no physical violence in the sense that the victim was touched in any way. It is conceded that a not insubstantial amount of money was taken, $2,400, and that the victim was vulnerable.
4. There was less physical risk than many armed robberies because a gel pistol was used. It is not a weapon that fires a lethal bullet. However, the weapon used, whether or not it could be used to inflict direct harm, was designed and intended to strike fear in the victim. She was not to know that she would not be physically hurt by being shot.
5. Crimes such as these have an economic impact on businesses. But as this matter demonstrates, and has been said by courts many times, an armed robbery on a person providing valuable community service, such as a post office, has a real impact on the victim. It is a crime against a person, and for that reason is a serious example of this type of offence. The fact that there are more serious examples will be taken into account. It will require a custodial sentence of some length.
6. I have to take into account the guideline decision in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; Crimes (Sentencing Procedure) Act, s 42B. The Henry guideline has both objective and subjective features. Looking at the objective features set out in Henry, I note that this matter was more serious than it.
7. There are however subjective features which are quite different than the Henry guideline. They also have to be taken into account when I formulate an appropriate sentence.
8. The offender is also to sentenced for his possession of the gel pistol, not the use of the gel pistol where its use is in an element of the offence. He had it for some period before, and a very short period after, the robbery. To his credit he disclosed to police where that pistol was. It was recovered. It was not found by someone else, perhaps even a child.
9. The possession of any firearm is a privilege. There was no reason for his possession of it. It was not a toy. A firearms offence is treated seriously as the maximum penalty for an indictable matter makes clear. But here even if dealt with summarily a penalty of 2 years could be imposed. It is not enough to say, as the offender did in evidence, that these things can be bought online. This item was not, as far as I am aware, loaded, I would have been told if it had been found with pellets. But those projectiles still hurt if fired. The law makes no distinction between the replica and the real or the capacity to fire a pellet or hard ammunition. But as a matter of practical reality, such a distinction has to be made on sentencing.
10. This pistol could easily however be mistaken for a real weapon. It was mistaken for a real weapon. The consequence of producing such items in public were made clear on the CCTV of the robbery. In the modern world if someone produces a firearm like this could have led to disastrous consequences. The potential reaction of members of the public or law enforcement officers should be considered. Matters I have sought to reinforce in decisions such as R v Crawley [2021] NSWCCA 354 at [28] and R v Andrew (No 2) [2018] NSWDC 382 at [20]-[21]. Context is everything in matters such as this: R v Lucas [2023] NSWSC 1357.
11. This was a serious example of its type, but given it was a gel pistol, I agree with Mr Vizinton's submission is that it falls below the mid-range of objective seriousness. But that finding is of limited consequence. This was still a serious offence that calls for a custodial sentence. I have to be careful not to double count as this possession offence falls outside the period of the robbery offence and the weapon used was taken into account when I assessed seriousness of the the robbery.

Other matters

1. The maximum penalties are of course important guides to the exercise of my sentencing discretion; as is the Henry guideline.
2. The offender has a record for prior and similar offences. He was on bail, which I note is an aggravating circumstance. I sentenced him in 2017 for an offence against a worker at the same post office: R v Graham [2017] NSWDC 478. When he was before me last time, Graham made promises, which I accepted. He also made promises to himself that he would not re-offend. Given this history, I can have little confidence things will change, but the effort still has to be made.
3. Community protection can be achieved by removal of someone from the community, but that is only a temporary measure. The risk of a gaol term often deters honest people from committing offences and may cause people to change their ways. Penalties should signal to others in the community the appropriate punishment that will be metered on them should they do what Graham did; go into a post office with a pistol, replica or otherwise, and steal money. But here, constant gaoling has not deterred Graham from further offences, to the contrary.
4. Sentences should also assist community protection by vindicating the dignity of victims and recognise the harm they have suffered. There is a community expectation in matters such as this, that there will be adequate punishment.

Subjective case for the offender

1. Rehabilitation is, however, an important part of any sentencing process. Here Ms Baker has put forward a plan which involves drug rehabilitation in the community and vocational training. A copy of her report will be sent with the warrant so that Community Corrections can use it.
2. The material that was before me in 2017, and is repeated again, indicates matters in the offender's background which reduce his moral culpability. Those are matters that do not diminish over time and must always be taken into account as the High Court made clear in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
3. Graham took up the use and abuse of drugs while too young to make rational choices. He has been able to stay 'clean' in custody but in the community, he uses illicit drugs regularly. He is presently on the Buvidal program. This may assist when he is released next time, but it may also preclude entry to some post release residential programs as they require a person enter them drug-free.
4. He has shown some insight into his offending behaviour. Today he attempted to answer the question, "Why does this keep happening?" But he was incapable of answering that question. All he could say was, "I struggle in the community. I don't care if I'm in custody".
5. Ms Baker's report indicates he exhibits no psychopathy. She says he wants to be "normal", but he has never had experience of normality. As I said on the last occasion it is absolutely critical, that he be given the maximum amount of assistance. However, he has already actively engaged in vocational and drug rehabilitation programs.
6. In his evidence today, Graham expressed appropriate remorse. He said, "I own that terrible event. Listening to her made me feel small. It was horrible to hear". A consistent pattern in his life to date is regret, but not then following through in the community. He gives little thought to the consequences of his actions.

Synthesis

1. As Ms Baker recommends, a structured return to the community is essential. The plan set out at pars [56] and [58] of the report should be put in place. If it is not put in place, Graham may not be released to parole. The State Parole Authority will not grant parole without first being satisfied it is in the interests and safety of the community to do so: Crimes (Administration of Sentences) Act 1999 (NSW), s 135.
2. I can have no confidence that he will not reoffend, but the option of early parole should be made available to the State Parole Authority. This is so, even in the fact of entrenched recidivism and repeated offending. If possible, subject to any concerns about community safety, he should be released to a structured program that can provide appropriate therapeutic support and treatment: see Ms Baker's report at paras [56], [58] and [60].
3. While I will make a finding of special circumstances, that does not, given the length of the sentence, guarantee that he will be released, and as the Crown submit, only a modest finding can be made. There must also be some modest accumulation as between the offences; another matter that goes to a special circumstances finding. Another special circumstance is accumulation. Only a a modest finding of special circumstances as the period in custody must properly reflect the purposes of sentencing and seriousness of the offence.
4. Graham has been in custody since 8 September 2023. During that time, he served a 6-month non-parole period for larceny offences dealt with in the Local Court. There was a period on remand of 194 days, before he started serving that sentence. There must be some independent punishment for those offences. I must also take into account the principle of totality. He must also have the befit of time served for this offence. I will start this sentence on 8 December 2023. The accumulation of this sentence on that 3-month period is another reason for a finding of special circumstances.
5. There are matters raised in the offender's subjective case, that require he not be treated as harshly as someone who did not have the background set out in the report. But a harsh sentence is still required because it must adequately reflect what was done, including the harm suffered by the victim.

Orders

1. The possession of the methylamphetamine would not ordinarily attract a custodial penalty. I formed the view, which was accepted by the solicitors for the offender and the Director, that it is inexpedient to impose any further penalty. That matter will be dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act.
2. There will be an aggregate sentence. For transparency, I indicate that the starting point for the robbery sentence was 6 years imprisonment. There will be a reduction of 23% for plea of guilty. With rounding, I indicate a sentence of 4 years and 7 months.
3. In relation to the Gel Blaster, taking into account the reduction of 25% for the guilty plea I indicate a sentence of 11 months.
4. The aggregate sentence will 5 years imprisonment. The non-parole period will be 3 years and 3 months starting on 8 December 2023, meaning Graham will be eligible for consideration for release to parole on 7 March 2027. There will be a parole period of 1 year and 9 months. To reiterate: 3 years, 3 months starting on the 8th of the 12th. 1 year, 9 months. Consideration for release to parole on 7 March 2027.

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