Solicitors:
Legal Aid NSW (for the offender)
Ms Lasschuit (for the Director of Public Prosecutions)
File Number(s): 2018/00395685
[2]
INTRODUCTION
Born in 1991, Travis Henson is no stranger to the courts. He has committed a number of other offences and received the benefit of bonds or suspended sentences with conditions he engage in counselling and rehabilitation programmes. On 23 December 2018 he committed three offences that were so serious he must be sent to gaol for a considerable time.
[3]
THE OFFENDING FACTS
At about 9pm on 23 December 2018, Mr Simonovski and his wife arrived to work as cleaners at a medical practice in Dapto. At about 9.45pm Mrs Simonovski walked out the back to have a cigarette. Soon after she went back inside there was a knock at the door.
Mr Simonovski mistakenly thought his wife had been locked outside. He opened the door. He was confronted by a man holding a shortened rifle. The man was wearing a black balaclava and a blue and white motorcycle helmet. The man was also wearing a black jumper which was inside out, light blue jeans and black gloves.
Mr Simonovski was hit with the butt of the firearm. He was pushed into the building. The firearm was pointed at him. A demand was made for money. Mr Simonovski responded; "There is nothing here". Mrs Simonovski then came from another room and saw what was happening. She started to scream. The offender said; "We're going to the pharmacy." He pointed the firearm at Mr Simonovski and directed him to walk to the pharmacy that adjoins the medical centre. As he gave further Mr Simonovski, who indicated that the pharmacy was still open to the public.
The offender told Mrs Simonovski; "You sit there and don't move". He waited until some customers had left the pharmacy and then directed Mr Simonovski to come with him into the pharmacy. That is the first offence; assault with intent to rob while armed with a dangerous weapon.
The next offence; assault with intent to rob while armed with a dangerous weapon, occurred inside the chemist. It is depicted in the CCTV which was tendered today. The offender told Mr Simonovski to walk to the counter. He did so. There they came upon Ms Myers, a female staff member. The offender said to her; "Put your hands up. Put your hands up". He pointed the firearm at the pharmacist, Mr Schlegel, saying; "Where's the money? Give me the fucking money. It's in there. I know it's in there". He was pointing towards the safe in the back room.
The man demanded Mr Schlegel open the safe. Mr Schlegel did so. Directions were given to load money from the safe into bags. A demand was also made for methadone. A bottle of that substance was provided and put into the bag being held by Mr Simonovski. Mr Simonovski had earlier been directed to take such a bag with him.
The offender gave more directions to the staff moving them about inside the premises. He kept asking about the till. When Mr Schlegel opened the till, he pulled cash out of it. He returned to get the last $20 that had been left behind. He told those who he was directing to walk through the store to the back exit of the pharmacy asking for car keys. He then made a demand of Mr Simonovski to open the back gate. Mr Simonovski could not get it open. The offender then jumped the fence into Marshall Street, Dapto. As he did so he apologised and said he needed to do this "for Christmas."
Mr Simonovski immediately called Triple-0. A police vehicle was close by in Bong Bong Road, Dapto. The police saw the offender running along Bong Bong Road away from the pharmacy. They saw him run into an alley way behind the Dapto Hotel. Police chased him both in their car and on foot. Eventually the offender was arrested. He was seen to drop his firearm, helmet, jeans and glove and some cash.
After being apprehended it was discovered that the offender was in fact Travis Henson, who now appears before the Court. The firearm was seized, as was in excess of $3,000 in cash. The firearm was identified as a .177 calibre single shot break action air rifle. The barrel and stock had been shortened. It was in working order. Some ammunition for that air rifle and some .22 calibre rim fire cartridges were found on the offender. The firearm had not been registered and Henson was not licensed to possess it.
After his arrest Henson declined to be interviewed, although he consented to giving a sample of his DNA. On 18 March 2019, Henson did participate in an electronic interview. He admitted to committing the offence, saying he owed someone $1,000 for drugs, methylamphetamine, and that they wanted the money before Christmas. He said that he was told by the people he owed money to about this Chemist shop and what to do to rob it.
He said he had obtained and shortened the firearm on that day. He said that he told Mr Simonovski he was not there to hurt them, but was just there to get money. He said that before entering the chemist he realised he had not loaded the firearm, so he placed a 'slug' that was in his pocket into it. He said that someone else was involved in the offence. He expressed some remorse towards his victims.
The agreed facts conclude, "All of the victims were extremely scared during the commission of the alleged offence and were all fearful that someone would be injured or killed if they did not comply with the offender's demands." Given the way the offender behaved in the CCTV, those sentiments are entirely understandable.
[4]
Offences
When he was before the Local Court Henson accepted his guilt to three serious offences:
1. Robbery while armed with a dangerous weapon; maximum penalty 25 years imprisonment: section 97(2) Crimes Act 1900 - maximum penalty 25 years imprisonment.
2. Assault with intent to rob while armed with a dangerous weapon; section 97(2) Crimes Act 1900.
3. Possess shortened firearm: section 62(1)(b) Firearms Act 1996 - maximum penalty 14 years imprisonment.
Henson adhered to those guilty pleas today. He also asked that another matter be taken into account on a Form 1.
[5]
Objective Seriousness
Here, Mr and Mrs Simonovski were confronted by a disguised and armed man. They were at the medial practice, at night, going about their normal business as cleaners. They were very vulnerable. The weapon used against them was shortened. It had only one purpose, to intimidate and or cause serious harm, even death. Particularly by the way it was used against multiple victims. The victims did not know it was an air rifle. The offender appeared desperate and impatient. They were not to know what was to happen to them. The events took only minutes but I can presume it felt like a lifetime.
Mr Schlegel, the chemist and Ms Myers, his assistant were also similarly threatened and similarly vulnerable.
A considerable sum of money was taken from the chemist. There was nothing to steal from the medical practice.
The event was planned, and executed in accordance with that plan, although the offender was apparently let down by his getaway assistant. The offender had plans for the proceeds, pay off a drug debt, pay his assistant and buy Christmas presents for his children. The victims were forced to act under his direction and that direction was reinforced by the use of the weapon. They were constantly confronted by it, and reminded of its power. The weapon was loaded before the robbery offence.
Armed robbery is a crime against people. Where citizens are robbed, assaulted and threatened at gun point, it can have a terrible impact on them. Such crimes, particularly where they occur, in places we all have to use, such as chemists and medical practices, can have more serious consequences. People lose confidence in public institutions. They feel that their towns are not safe. They can learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As a consequence, we all lose our freedoms to go out and participate in community activities.
Where criminals are caught committing such offences, the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency was shown by judges led the highest court in NSW, in 1999, to issue a guideline judgment designed to guide the sentencing discretion of judges in matters such as this: Henry v R (1999) 46 NSWLR 346.
An air rifle was used. It was loaded at one stage. It was possessed by the offender prior to the robbery. It was not registered nor was Henson licensed to have it. While not as potentially deadly as other firearms, it could still have caused physical harm. It was shortened as part of the plan so it could be used to frighten and intimidate; that is, cause a risk of psychological harm. It was shortened that day so it could be used in these crimes. Henson was carrying ammunition for the weapon. The rifles possession alone was a serious crime.
[6]
Victim Impact Statements
I reviewed Victim Impact Statements, from Ms Myers and Mr Simonovski: tendered as part of Exhibit A & B. They attest to harm of the kind that might be expected from the offences here. There is no difficulty with my acceptance of their contents.
Ms Myers told me of her shock that night when she realised what was happening was not a "sick joke" and how "her life flashed before her eyes." She has struggled emotionally ever since. She is more anxious, nervous and paranoid. She has overmedicated herself. She is seeing counsellors. She is trying to move forward.
Mr Simonovski wrote about how his life had been changed and how he revisits the incident every time he goes to work cleaning at the medical practice. He has sought psychiatric help with coping.
The absence of a Victim Impact Statement from others robbed or threatened that night, does not give rise to an inference that the offence had little or no impact on the victims: Section 29(3) Crimes (Sentencing Procedure) Act 1999.
[7]
Maximum penalties and other guidance
While every offence and every offender requires individualised treatment, courts must, in the exercise of their undoubted discretion, take guidance from a number of sources. They include; the maximum penalties prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here, importantly. include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.
While not prescriptive, the Henry guideline must be considered as the two s 97 (2) offences share some common characteristics with it. But Henson was not young and there was some planning. Although he had not been in gaol full‑time before he had a criminal history of some seriousness. He was not entitled to the leniency often given the young and first offenders.
[8]
Early guilty plea
The guilty plea was entered early and a confession was made sometime after arrest. But that is hardly surprising as Henson was caught red handed. Still a 25% reduction in the otherwise appropriate sentence for each offence is required. I will take care that that reduction is not eroded by the necessary accumulation of some penalties.
The matter on the From 1 does not here operate to increase the otherwise appropriate sentence for the offence to which it relates. Matters taken into account on sentence should not be double counted and I have already taken this matter into account, as it was relevant to my assessment of objective circumstances of that crime. In any event the maximum penalty prescribed is a fine.
[9]
Subjective case
Henson wrote two letters one to his victims and one to me: exhibit 2. He also gave evidence. What he says should be given some weight. He adopted and confirmed what he set out in his letters and what he said to Mr Bembrick, a social worker with Legal Aid NSW.
Henson was born in April 1991. He is now 28. He has two sons. He comes from a large family. He was born after his mother was sexually assaulted and had no relationship with his father. He grew up in southern Wollongong. An accident at school severely damaged his front teeth. He is still made the butt of jokes as a consequence. He reports being sexually assaulted at age 9 but was not believed. He has had only sporadic counselling since for this and other trauma.
As a young man he took up the use of illicit substances, notably methylamphetamine or ice; for most of his adult life he reports being in a "dark place." In mid-2018 he was hitting the drugs hard and a brother took him interstate in an attempt to distance himself from illicit drug taking and most, although not all, of his drug using associates. On return to the Illawarra however the old habits reasserted themselves, leading ultimately to the events of 23 December 2018.
In evidence he acknowledged his family and ex- partner who had come to court to support him; some from interstate. He told me how his life had changed at 13 when he found out about how he was conceived and how for a time he turned away from his siblings and stepfather. It was at that time he took up illicit drug use; a problem that has plagued his life ever since. He has tried many times to overcome that problem and failed.
He said he had some success in 2018 remaining drug free when a brother provided work and accommodation in Queensland but despite that support he relapsed. He said his drug debt was one motivation for the crime as he feared something would have happened to himself or his family if it was not paid. He also said that he had other reasons for wanting money. He repeated his concerns for his victims. He told me of his plans for the future on release.
A psychosocial assessment report from Mr Bembrick, was tendered: exhibit 1. Mr Bembrick sets out Henson's background and makes suggestions for his future management in custody and on release.
Henson says he has solid plans for after his release. He would hope to be allowed to move interstate where work is available with an older brother. He yearns for a normal life.
Mr Bembrick recommends Henson engages with the EQUIPS programs while in custody and while strictly supervised on parole. He recommends Henson engage with individual psychological counselling and with an agency, such as Narcotics Anonymous, after his release. In his opinion Henson is well motivated but he will need help.
[10]
Motive - Drug Debt
Duress implies forcible restraint and compulsion. Duress that does not excuse the offending or exculpate the offence is capable of being a mitigating factor at sentence, s 21A(3)(d) Crimes (Sentencing Procedure) Act 1999. Such non-exculpatory duress may affect the degree of the offender's subjective or moral culpability and prospects of rehabilitation. In some cases duress can be relevant to my assessment of objective gravity if an offence is committed because of threats and fear of harm to oneself rather than financial profit or greed; this is not such a case: Tiknius v R (2011) 221 A Crim R 365, at [41]. Giang v R [2017] NSWCCA 25, at [33]; R v Z (2005) 2 AC 467 at [22].
A court is entitled to approach such claims with a significant degree of circumspection as claims may be easily made: Tiknius, at [45]. The offender must satisfy the court that the commission of the offence was affected by duress. While I accept a threat was made and seen to be genuine, when Henson was not thinking clearly due to drug use, I cannot give it much weight. There were too many alternatives open other than the commission of these crimes and he had others reasons for wanting money just before Christmas. I do not give this rationale very much weight.
The need to acquire funds to pay a drug debt, or support a drug habit, can provide no excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation. It can however explain the impulsivity of the offence and the extent of any planning for it. It is relevant here as a subjective circumstance as the origin and extent of the addiction, and any attempts to overcome it, impact on the offender's prospects of recidivism or rehabilitation Henry v R, at [273].
[11]
Remorse
Henson has apologised to his victims. He expressed his remorse in his police interview, in his letters and in evidence today. He has set out his feelings of shame and humiliation and regrets for the harm he has caused his family. His letters, exhibit 2, also expressed appropriate acceptance of responsibility. As he now realises, he cannot turn back time. He says that while in custody he has reflected on what he has done and gained some insight into his drug abuse problem. He tells me about the impact on him of having no freedom and being locked away. He promises to learn from his mistakes. These are matter I take into account; but if only he had that thought before he entered the medical practice.
[12]
Submissions
Ms Lasschuit, solicitor for the Director of Public Prosecutions, and Mr Fraser, Public Defender, in written and oral submissions both highlight many of the matters to which I have referred. Mr Fraser submits the offender's background requires recognition as his moral culpability is reduced because that background and other traumas suffered leave scars not experienced by those who grow up in a benign home environment: Bugmy v R [2013] HCA 37: (2013) 249 CLR 571. That submission is soundly based and the material supporting it will be taken into account.
Ms Lasschuit submits, and I accept, that given Henson's criminal and drug history I must be guarded in any assessment of his prospects for rehabilitation. She took me through the relevant aspects of the Henry guidelines and the purposes of sentencing, particularly those requiring a deterrent or retributive sentence that vindicated the victims. While conceding that a finding of special circumstances was warranted, she reminded me of the requirement that the minimum period the offender must be kept in detention must reflect those important considerations.
[13]
Structure of the Sentence
I must indicate an appropriate sentence for each offence and then formulate an aggregate sentence, which is just and appropriate to the totality of Henson's crimes this night: Mill v R (1988) 166 CLR 59, at [62]-[63]. There must be some concurrence of penalties. They were all part of a single episode of criminality with many common factors. The events flowed immediately from one to the other and were in many aspects related. Care must be taken not to double count matters. For example, the same shortened firearm was involved in, and a common element of, each offence: Pearce v R (1998) 194 CLR 610, at 40.
There must also be some accumulation of penalties. There must be a recognition that distinct crimes were committed and of the separate harm done to the victims of each of the s 97(2) Crimes Act 1900 offences: Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.
Release to parole must be earned. The State Parole Authority cannot make a parole order directing release unless it is satisfied that it is in the interests of the safety of the community to do so: s 135 Crimes (Administration of Sentences) Act 1999. If they do allow release, considerable efforts will have to be made if Henson is not to reoffend again. Supervised and structured parole is well known to reduce risk of re-offending and the seriousness of any re-offending. After a lengthy period in custody Henson will require as much supervision and assistance as can be provided to assist him in his adjusting to normal community life. A reason for a finding of special circumstances.
[14]
Synthesis
If Henson keeps the promise he has made to his victims, the Court and himself and gets assistance on release, he may not commit further crimes. If he keeps to the promises made to his family and his continue to support him he may, someday, be a proper father to his two boys. The protection of the community can be contributed to by the successful rehabilitation of an offender. He will have time to work toward a normal life in the community. The underlying causes of his persisting drug problem must also be addressed. If they are not his prospects are guarded, as he appears easily influenced by others who are not as pro-social as his family.
For many years judges have been sending an unequivocal message that custody will be the almost inevitable consequence of such serious criminal behaviour. Sentencing is not just about an offender. I must also ensure that he is adequately punished, not just to deter him from future crimes, but in an attempt to deter others who might commit offences such as this. Like so many others Henson was too overwhelmed by his drug addiction to hear that message. What he did must be denounced. Henson must be made accountable for his actions and the harm done to his victims and the community recognised.
[15]
Orders
On each count you are convicted. Having regard to all the purposes of punishment and taking into account your early guilty pleas, the totality principle, the matter on the Form 1 and the finding of special circumstances. I indicate for the assault with intent offence a sentence of three years and nine months. For the armed robbery offence I indicate a sentence of four years and six months. For the firearms offence I indicate a sentence of two years and three months.
There will be an aggregate sentence of six years and two months commencing 23 December 2018. There will be a non-parole period of three years 11 months. You will be eligible for consideration for release to parole on 22 November 2022. There will be a parole period two years and three months. Your sentence will expire on 22 February 2025.
I make a firearms destruction order.
[16]
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Decision last updated: 10 March 2020