[2006] NSWCCA 242
Veen v The Queen (No 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2006] NSWCCA 242
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (5 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Ryan Paten Le (Honeysett)
File Number(s): 2020/26533
[2]
EX TEMPORE Judgment (REVISED)
On 13 February 2023, before the commencement of a voir dire concerning the admissibility of an electronically recorded interview ("ERISP"), Jye Honeysett entered a plea of guilty to a count that on 11 September 2020 at Griffith, he attempted to rob Sayed Sajjed Mousawi of a Honda motor car whilst in the company of Simon Carberry and Tearna O'Hanlon.
The indictment contained another count, being an allegation of murder of Mr Mousawi, to which Mr Honeysett had previously pleaded not guilty. The Prosecutor indicated that the Director of Public Prosecutions ("DPP") accepted the plea to the second count (the attempted robbery in company), in full discharge of the indictment. I formally convicted Mr Honeysett of the attempted robbery charge and discharged him in respect of the murder charge. An agreed statement of facts was tendered, and a sentencing hearing took place the next day. Mr Honeysett now stands to be sentenced.
The offence of robbery in company, under s 97(1) of the Crimes Act 1900 (NSW), carries a maximum penalty of 20 years' imprisonment. That maximum penalty reflects the seriousness with which the legislature treats such offences and must be borne in mind throughout the sentencing process, even where, as in this case, there is evidence concerning the offender's personal circumstances that engenders sympathy in the sentencing Judge.
The facts of the offence were set out in the following statement of agreed facts:
"1. On the evening of 10-11 September 2020, the offender was in the company of his friend, co-accused Simon Carberry ('Carberry') in the township of Griffith.
2. As at 10-11 September 2020, O'Hanlon and Carberry were involved in an intimate relationship.
3. During the evening O'Hanlon was receiving messages from Sayed Sajj[e]d Mousawi ('the deceased'), an acquaintance of hers, in which he was asking her for sexual favours. She ignored these messages.
4. At approximately 01:00 on 11 September 2020, the offender and Carberry were dropped off by a friend near the bus shelter at Middleton Ave, Griffith. There they joined the company of O'Hanlon and others.
5. The offender, Carberry and O'Hanlon walked with the others to the residence of Kim Christian at 2 Snaith Place where they remained until about 01:25 on 11 September 2020.
6. The offender, O'Hanlon and Carberry then walked to 9 Middleton Ave, Griffith, a house where O'Hanlon had been staying.
7. Whilst at 9 Middleton Ave, at 01:47 O'Hanlon received a message from the deceased: 'Hey wyd. Can French Kiss your down under. I would love to.' This message was seen by Carberry.
8. After seeing the message, Carberry then directed O'Hanlon to message the deceased to tell hm to come over, thereby creating the opportunity for Carberry to steal the victim's vehicle.
9. O'Hanlon then responded to the deceased by message: 'Can I have a lift please'. A series of messages were then exchanged between O'Hanlon and the deceased whereby arrangements were made for the deceased to attend the rear yard of 11 Middleton Ave, the adjacent house to where the three were, being the house occupied by O'Hanlon's grandmother.
10. During the exchange of messages, the deceased asked O'Hanlon a number of times if she was alone and she reassured him that she was.
11. Whilst waiting for the deceased to attend, the offender, O'Hanlon and Carberry determined to rob the victim of his motor vehicle upon his attendance at the location.
12. The offender, O'Hanlon and Carberry went to the rear yard of 9 Middleton Ave, where they waited for the victim to attend.
13. The offender understood his role was to provide physical support to effect the robbery if necessary. He armed himself with a piece of metal tube.
14. Shortly after sending a message at 02:11, the deceased drove into Sams Place where he met O'Hanlon. The offender and Mr Carberry remained hidden in the rear yard of 11 Middleton Avenue.
15. Ms O'Hanlon approached the deceased's vehicle, walking around the front passenger's side. Carberry approached the driver's side of the vehicle. A struggle then took place as Carberry attempted to remove the vehicle key from the ignition.
16. The key fob broke away from the key during the struggle, leaving the key snapped off in the ignition. The driver's door of the vehicle was opened and the struggle between Carberry and the victim continued.
17. As the struggle was taking place, the offender approached the vehicle from the rear armed with the metal tube. He struck the deceased a number of times to the left lower leg and right upper arm in order to assist Carberry in carrying out the agreed robbery. Tramline bruising was occasioned to the deceased's leg and arm from the metal tube.
18. During the struggle, the deceased was stabbed by Carberry and the deceased died as a result. It is not contended that the offender was aware that Carberry was armed with a knife. It is not contended that the offender was complicit in the stabbing death of the deceased. It is not contended that the offender foresaw the possibility of a wounding in the commission of the planned robbery.
19. The offender left the scene and was arrested later at a nearby house on Middleton Avenue."
Those facts represent a serious example of the offence of attempted robbery. Two of the offenders were armed. Mr Honeysett had a metal tube which he wielded, causing injuries to the victim. Mr Mousawi was an entirely innocent victim of a brutal and calculated attack. His only offence seems to have been to express some amorous feelings toward Ms O'Hanlon and to own a car that the offenders wanted.
The offence was not spontaneous and involved some planning. In determining the appropriate penalty, several things, both legal and factual, must be considered. While the offence involved some planning and premeditation, with Mr Mousawi being lured to the premises by means of a wicked ruse perpetrated by Mr Carberry and Ms O'Hanlon, the present offender had little to do with the planning. My reading of the facts, taken in conjunction with the offender's vulnerability and cognitive impairment, suggests that the two co-offenders were largely responsible for the formulation and execution of the plan.
Having said that, Mr Honeysett armed himself with a weapon and used it in the assault that followed. He knew full well the intentions and motivations of his co-offenders. He went along with the plan and played an active role. However, as the facts make plain, he was not aware that Mr Carberry had a knife, let alone that Mr Mousawi may be wounded in the robbery. Further, as a matter of legal principle, Mr Honeysett cannot be punished for the grave and tragic consequences of the robbery.
Insofar as such relative descriptors are useful, or even required in the absence of a standard non-parole period, I would place the offence a little below the putative "mid-range" of objective seriousness for all offences prosecuted under s 97 of the Crimes Act. To understand this finding, which must be hard for the victim's loved ones to accept or comprehend, it is crucial to bear in mind that Mr Mousawi's tragic death must be disregarded and that the present offender played little or no part in the formulation of the plan to commit the robbery.
Mr Honeysett was on parole at the time of the robbery. This is a significant aggravating factor. He was released to parole on 29 or 30 January 2020. He was serving a sentence (Control Order) imposed by the Children's Court on 29 May 2018. He breached his parole in various ways by failing to report to his supervising officer, committing this and other offences and by failing to reside at agreed premises. The Parole Order was revoked on 8 July 2020 and there was a warrant in existence for his arrest. On 13 October 2020 the Parole Authority declined to rescind the revocation order. I note and accept Ms Mathur SC's submission that his performance on parole was not entirely negative and there was a period of around 6 months, in the early part of that year, where he appeared to show some positive signs by complying with what are fairly strict conditions of parole, in spite of his difficulties.
Mr Honeysett has a pretty bad criminal history, although most of his recorded offences were dealt with in the Children's Court and he seems to have stayed out of trouble between 2018 and 2020. He may have been in custody for a fair portion of that period. In April 2022 he was sentenced, as an adult, to 4 months' imprisonment for an offence of being carried in a conveyance without the consent of the owner. The Local Court took into account two other dishonesty offences in sentencing for that offence. However, as I read the record, that sentence was varied on appeal to the District Court, and he was convicted with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
While his record for violence is limited, he has been convicted of carrying weapons, which is a matter of real concern in the context of his role in the present offence. Further, he has been sentenced for serious driving offences, where he attempted to evade arrest by driving dangerously during a police pursuit. These offences demonstrate an attitude of indifference, or at least carelessness, in terms of the impact of his behaviour on others.
His criminal history disentitles him to much leniency. However, it does not amount to an aggravating factor under the relevant legislation, according to the interpretation of appellate courts. [1] Having said that and noting that I do not make a positive finding that Mr Honeysett represents a danger to the community, in what I will call "the Veen sense", [2] I consider that community safety is a relevant and potent factor. I am also satisfied that his criminal history reflects his dysfunctional and sad upbringing as well as his cognitive impairment.
As to those last two mentioned matters, I have received the reports of Dr Wearne dated 12 November 2022 and 17 January 2023. Those reports were before me on an inquiry held last week as to whether Mr Honeysett was fit to be tried. Also tendered on sentence were the transcripts of evidence given in the fitness inquiry by Dr Wearne and forensic psychologist, retained by the prosecution, Dr Susan Pulman. Dr Pulman's report, dated 6 February 2023, was tendered as part of the prosecution bundle.
As I said in my judgment which found Mr Honeysett fit to be tried, the opinions of the two experts were not greatly at odds with each other: R v Honeysett [2023] NSWSC 76 at [10]. The psychologists agreed that Mr Honeysett is cognitively impaired, although they reached slightly different opinions as to the extent of that impairment. As I said last week, I preferred Dr Wearne's opinion on that issue.
In addition to the opinions concerning the cognitive impairment, the reports also provide significant insight into Mr Honeysett's dysfunctional and difficult upbringing. Dr Wearne's report, by way of example, includes the following history:
"Developmental and Psychosocial History
Mr Honeysett was born and raised in Wagga Wagga and predominantly raised by his mother (a cleaner). He told me that his parents separated when he was age nine and that he never had a close or loving relationship with his father throughout his life. He said his father was abusive towards his mother and that he was witness to considerable domestic violence throughout his early childhood years. Mr Honeysett had a positive and loving relationship with his mother throughout his childhood and formative years. However, their relationship became strained after he began to engage in criminal activity and substance use from age 16. He nevertheless denied any issues with maternal neglect, abuse, criminality or substance use. He disclosed that his mother was a heavy alcohol drinker but was unsure whether she consumed alcohol when she was pregnant with him. Mr Honeysett is the youngest of four children (he has two brothers and one sister) and he had positive relationships with his siblings throughout his life. He told me that he and his mother moved to Sydney in 2018 to curtail the influence of negative peers at that time. He was living in Sydney prior to his arrest for the subject offences. He has never been married and has no children.
Education and Employment History
Mr Honeysett attended Ashmore Public School and Mount Austin High School and he described himself as a below average student. He struggled with basic literacy and numeracy, and he continues to struggle with his literacy today. He believes he was assessed for academic concerns, but he was unsure whether he was formally diagnosed with an intellectual or learning disability: "I remember when I was 15, I did reading and maths tests, and it came back that I was at a 4-year-old level." He denied repeating any grades but said the school recommended he be placed in a special needs class, which he declined: "They tried to put me in them, but I just didn't go to school." He was a not well-behaved student and disclosed numerous issues involving fights with other students, damaging school property, and truancy. He received numerous detentions and suspensions as a result. He ceased going to school during his early high school years due to his lack of engagement with education. Following his departure from school, Mr Honeysett has never held any consistent or regular form of employment. He was receptive about joining the workforce in the future, citing mechanics as a potential area of vocational pursuit."
I have also reviewed reports created when Mr Honeysett was struggling through high school and these reports support Dr Wearne's opinion that Mr Honeysett has an intellectual disability. His intellectual disability has been described as "mild" and "moderate". His attendance at school was poor and he resisted access to support mechanisms. He was in special classes, and I can only imagine his time at school was difficult and frustrating.
Based on the evidence about his dysfunctional background and cognitive impairment, I am satisfied that Mr Honeysett's moral culpability for the current offending is diminished to a significant degree. It is unnecessary to search for evidence to establish some causative link between his dysfunctional background and intellectual disability and his offending. It is easy to infer, and I do infer, that Mr Honeysett's impairment rendered him more vulnerable to involving himself in his confederates' planning and less capable of weighing the consequences of his actions. My finding in that regard also finds support in the eloquent testimony of his brother, Daryl Honeysett, who gave evidence today.
I am equally satisfied that general and specific deterrence have a limited role to play in the proper exercise of the sentencing discretion in this case. Even so, the sentence must reflect some aspect of deterrence, so that the community know that such offences cannot be tolerated in a civilised society and that real punishment will be visited on those who engage in such lawless and violent conduct.
This case also raises a somewhat tricky question of equal justice, parity and proportionality. Ms O'Hanlon was sentenced in the District Court for an offence of robbery in company arising out of the same circumstances. Ms O'Hanlon's role was very different to that of the current offender. In some ways, it was objectively more serious. She was more involved in the planning of the offence and played an active role in luring Mr Mousawi to the scene. In other ways, it was less serious. She played no role in the violent attack on the victim, whereas Mr Honeysett not only armed himself with the metal pipe, but he also struck the victim several times with it.
Subjectively, the cases are quite different, although both offenders have backgrounds reflecting society's scandalous neglect of young Indigenous people growing up in rural communities. Ms O'Hanlon was exposed to alcohol abuse and violence as a child and became pregnant at just 16 years of age. She was 24 at the time of the offence and had a criminal record including some assaults, driving offences, drug offences and minor dishonesty offences. Like Mr Honeysett, Ms O'Hanlon was struggling with drug addiction. The sentencing Judge, Judge Grant, accepted that Ms O'Hanlon had good prospects of rehabilitation and that she was remorseful for her role in the offending.
Ms O'Hanlon is expected to give evidence in the murder trial. That trial was to involve both Mr Honeysett and Mr Carberry, but now will only involve Mr Carberry who is expected to go to trial next week. Ms O'Hanlon is expected to give evidence in accordance with her recorded interview. She received a 25% sentencing discount and a further combined discount of 25% for assistance to police. Thus, the sentence imposed on her was reduced by a total of 50%. Judge Grant was satisfied that no sentence other than imprisonment was appropriate and implicitly commenced with a starting point of 2 years. That sentence was reduced to 1 year by virtue of the 50% accumulated discount and his Honour ordered that it be served by way of an Intensive Correction Order.
I accept Ms Mathur's submission that the fact that Ms O'Hanlon was able to serve her sentence in the community should be taken into account in considering the issue of parity. By contrast, Mr Honeysett has been in custody since his arrest. Recently, Yehia J spoke eloquently as to what this means. Her Honour said:
"It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation." [3]
Her Honour was in the minority in the outcome of that case, but her words were hardly controversial.
Noting the differences between the circumstances of each offender and the different modes with which they have served, or will serve, their sentences of imprisonment, I have concluded that the starting point for the sentence to be imposed on Mr Honeysett should be the same as that settled on by Judge Grant in Ms O'Hanlon's case.
Objectively, the most potent difference is that Mr Honeysett armed himself with a pole and perpetrated actual violence on the unsuspecting and innocent victim. I do not perceive any great differences in Mr Honeysett and Ms O'Hanlon's respective subjective cases, and any differences are essentially balanced out. While Mr Honeysett is younger and has an established cognitive impairment or intellectual disability, he also has a longer criminal history. While I find that he has some prospects for rehabilitation, particularly if he accesses appropriate support services and stays away from drugs, I could not make a positive finding, as Judge Grant did in Ms O'Hanlon's case, that his prospects of rehabilitation are good.
Having said that, I will mention again the evidence I heard today from Daryl Honeysett. He gave compelling evidence which I accept in its entirety. Daryl spoke of the kindness shown by his brother Jye, in helping a disabled friend get into town by wheeling him from a suburb some miles away and helping a homeless man. That was when Jye was in his mid to late teens. It speaks volumes of his decency as a person which runs contrary to what one sees on the pieces of paper that constitute his criminal history. Daryl also spoke of the family and community support, which is extensive, that is available to Jye on his release. Daryl is there for Jye and can put him in touch with culturally appropriate programs and activities, which will assist him when he is finally released.
I viewed the ERISP during the fitness inquiry and was satisfied then, and am satisfied now, that Mr Honeysett expressed deep and genuine remorse for the terrible consequences of this crime. He offered to plead guilty to this particular offence in the Local Court and has spent 2½ years in custody with a murder charge hanging over his head. While this delay is not unusual for cases prosecuted in this Court, it is the consequence of the prosecuting authority's reluctance to accept his early, and "appropriate", offer to plead guilty.
Again, I have borne in mind the maximum penalty of 20 years. I am conscious of the need to impose a sentence that adequately punishes the offender for his significant role in this violent and unprovoked crime, which was perpetrated on an innocent victim. This conduct must be denounced, and the offender must be held accountable for his actions. Within the confines that the law allows, the harm done to the victim must be recognised in the sentence that is imposed. While deterrence has a less significant role to play in the case of an intellectually disabled offender, it remains necessary for the sentence to communicate to society at large that such offences will not be tolerated and will be met by severe punishment.
I have also taken into account the statistics maintained by the Judicial Commission and the guideline judgment relating to armed robbery, which suggests a total sentence of 4-5 years when there is a plea of limited utilitarian value. While Mr Honeysett's case ticks many of the boxes in the so-called "typical case", the reduction of his moral culpability takes it outside, and substantially below, the appropriate sentencing range contemplated in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. Further, imposing a gaol sentence of such severity, given the requirement for the sentence to be proportionate with that imposed on Ms O'Hanlon, would be contrary to concepts of equal justice and engender a justifiable sense of grievance in Mr Honeysett.
For those reasons, and despite the lengthy period of pre-trial custody and the sad and compelling personal circumstances of this young offender, I am satisfied that no sentence other than full time imprisonment is appropriate.
While I find the operation of ss 25D and 25E of the Crimes (Sentencing Procedure) Act typically opaque and potentially unjust, I am prepared to act on the Prosecutor's concession that Mr Honeysett is entitled to a 25% discount from the otherwise appropriate sentence.
That was the subject of some discussion and debate today, and the parties ultimately took me to the case of Black v R [2022] NSWCCA 17, in particular to paragraphs [5], [26]-[31], [39]-[40], [49]-[50] and [52]. I am not completely sure that the situation in Black is entirely analogous, but to his great credit, under force of the debate, the Prosecutor stuck to his guns and maintained a view that a sentencing discount of 25% was appropriate.
It certainly is, or should be, appropriate. In the Local Court, in accordance with the scheme currently in operation, Mr Honeysett offered to plead guilty for the very charge he ultimately pleaded guilty to and which the prosecution ultimately accepted. That was years ago. However, no plea was formally entered, noting the legislation contemplates that a magistrate might "accept" such a plea (whatever that may mean). However, in circumstances where the DPP is not prepared to accept the (early and appropriate) offer to plead, it is difficult to see how the magistrate could "accept" it in any meaningful way. Mr Honeysett was then committed for trial on both counts. There was an arraignment before the list Judge and a plea of not guilty was entered not only to the murder charge but also to the robbery charge. It was because no plea of not guilty was actually entered, and the prescriptive language of the provision, that I queried the Prosecutor's concession and made something of a nuisance of myself in the course of oral submissions.
Ultimately, I have decided to act upon the Prosecutor's concession. I think the application of the section is difficult and that the legislation should be amended so that it does justice rather than simply provide a scale of prescriptive discounts, where all possible scenarios are contemplated and where, at times, the discount allowed turns on the attitude of the prosecuting authorities. [4] There are a number of cases since the introduction of the scheme, of which Black is one, that demonstrate the difficulty of the prescriptive nature of this legislation and the proper application of its language. [5]
The calculation of the period Mr Honeysett has been in custody solely by reference to the present charge is complicated by the revocation of parole and the sentence of imprisonment imposed by the Local Court, which was subsequently reduced to a conviction without penalty. The parties agreed that he has spent 2 years, 3 months and 15 days in pre-sentence custody solely referable to this offence. There remains a discretion as to when the sentence should commence. It could be anywhere between the date of arrest, which is 11 September 2020, and the date his balance of term expired on the pre-existing sentence on 31 October 2020. There is no science to this, and I propose to commence the sentence on 10 October 2020.
I would commence, as I have said, with the same starting point as that imposed on Ms O'Hanlon. That is 2 years. I note that there are objective features of Mr Honeysett's case which are more serious, but I also note as Ms Mathur urged, that she served her sentence in the community. With a starting point of 2 years, in applying the agreed sentencing discount of 25%, the sentence would be 1 year and 6 months. [6]
The sentence commenced on 10 October 2020 and expired on 9 April 2022. I would find special circumstances arising from Mr Honeysett's special needs and the family support he enjoys, to which I should add that in addition to Daryl, he has been supported throughout today by a number of family members. I acknowledge their presence here, and Mr Honeysett's need for a long period of reintegration into the community.
It might be thought that this finding is somewhat superfluous given that the sentence and non-parole period have expired. However, I was again persuaded by Ms Mathur's submission that he should not be denied a finding of special circumstances, as he has waited for so long to be sentenced for an offence to which he offered to plead years ago, and that it may have some practical relevance for future sentencing exercises in terms of the operation of totality principles and the commencement dates under relevant legislation. Applying that finding to the total sentence of 1 year and 6 months, the non-parole period would be 1 year.
Accordingly, Mr Honeysett, for the offence of robbery in company:
1. You are sentenced to a non-parole period of 1 year commencing on 10 October 2020 and expiring on 9 October 2021.
2. There is an additional term (balance of parole) of 6 months commencing 10 October 2021 and expiring 9 April 2022. [7]
3. But for bail being refused on other charges, Mr Honeysett would be entitled to immediate release.
[3]
Note: amendments made under the common law slip rule.
As per footnotes 6 and 7, the length of the total sentence in [36] and [38] and the length of the additional term and expiry date of the total sentence in [39], were adjusted under the common law slip rule to rectify a mathematical error made in reducing the 2 years starting point by the agreed sentencing discount of 25%.
[4]
Endnotes
See, for example, Regina v Darrell Terry McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242.
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Bresnahan v R [2022] NSWCCA 288 at [150].
Cf R v Cardoso [2003] NSWCCA 15 at [21].
See also Ke v R [2021] NSWCCA 177 at [340]-[342], R v Rifai [2022] NSWDC 74 at [29]-[32], R v Tailford (No 2) [2021] NSWSC 695, R v Camilleri [2021] NSWSC 221 at [62]-[70] and Green v R [2022] NSWCCA 230.
In delivering this judgment ex tempore, having indicated a starting point of 2 years and a 25% sentencing discount, I announced the total sentence as 1 year and 10 months. That error was carried through to the final sentence and expiry date. The parties agreed it was appropriate to correct the obvious mathematical error under the common law "slip rule" in order to give effect to my clear intentions. The email correspondence is on the Court file.
As per footnote 6, the length of the additional term and the expiration date of the total sentence was amended, with the consent of the parties, under the common law slip rule.
[5]
Amendments
08 March 2023 - Trial concluded - publication restricted lifted.
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Decision last updated: 08 March 2023