R v Inglis

District Court of NSW|2023-10-06|Before: Mr J

REMARKS ON SENTENCE

The offender who was born on 9 January 2001 and is now aged 22 years is to be sentenced in respect of the following three matters to which he has entered early pleas of guilty in the Local Court:- 1. H89421066/1 - Armed robbery on 21 June 2022, an offence pursuant to s 97(1) of the Crimes Act 1900. The maximum penalty proscribed for this offence is 20 years imprisonment and there is no standard non-parole period. ("The Sydney offence") 2. H91564218/1 - Accessory after the fact robbery in company on 27 October 2022, an offence pursuant to s 97(1) of the Crimes Act 1900 with added modifier for accessory after the fact pursuant to s 349(2) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is no standard non-parole period. 3. H91564218/2 - Assault occasioning actual bodily harm in company of others on 27 October 2022, an offence pursuant to s 59(2) of the Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment and there is no standard non-parole period proscribed. If dealt with summarily, the maximum penalty is 2 years imprisonment and/or 50 penalty units. ("The Newcastle offences")

The sentence hearing

The sentence hearing took place on 6 October 2023. The Crown sentence bundle became Exhibit A and it comprised no less than 354 pages of which 229 pages comprised the offender's criminal history which commenced when he was 14 years of age. Based on that deplorable history, the offender has spent most of his life since the age of 14 in custody. The longest period of time he has spent in the community is a period of three months. He is a Wiradjuri man with a background of profound deprivation and mental health and cognitive issues who at the age of 22 years is now facing a real risk of institutionalisation, having never been given the appropriate support services to rehabilitate himself.
Exhibit A included statements of agreed facts in relation to both series of offences. In relation to the armed robbery in Sydney on 21 June 2022 at around 11:39pm the offender entered a Tobacco store in Elizabeth Street Sydney with two juvenile co-offenders. What occurred was caught on CCTV which was played in court as part of Exhibit A. The offender asked the storekeeper for a carton of cigarettes and when the storekeeper turned around to access the cigarettes, which were located on the bottom of a shelf behind the counter, the offender walked around the counter and took a pair of black scissors in his right hand and held them to the victim's neck. He then pushed the victim to the ground and repeatedly said, "Show me your register". The offender held the scissors approximately 10cm away from the victim's neck and gestured the scissors toward the victim. The offender then opened the till and took money from the till, placing it in a white plastic bag. Between $700 and $800 in cash was taken from the till. The offender and a co-offender also took between 10 and 12 cartons of cigarettes. The offender and two co-offenders then decamped from the store.
Following his arrest, photographs of the offender's tattoos matched the tattoos on the person depicted in the CCTV footage and the offender's fingerprint was found on an internal panel area of the cash register.
The agreed facts in relation to the offending in Newcastle on 27 October 2022 may be summarised as follows. The offender was with a large group of teenagers comprising five or six boys and two or three girls who entered a tram at the Newcastle Interchange in Wickham. One of the male boys interacted with another passenger asking him questions to which that person said, "Just leave me alone". The offender then started talking to that person. The offender was standing over him while he was seated in a chair. What then occurred was captured on CCTV which was shown in court as part of Exhibit A. The offender was seen to punch the victim at least three times to the face while he was standing and the victim was still seated.
The victim got up and then ended up on the floor where the offender continued to kick and punch him with closed fists repeatedly whilst the victim tried to protect himself. Another co-offender kicked the victim who tried to cover his face with his hands. The victim then got up off the floor and formed his hands into fists and attempted to defend himself by punching the offender back. The offender then started punching and kicking the victim again. A co-offender then also started punching and kicking the victim.
The victim then tried to get his backpack from the co-offender but the co-offender punched him several times in quick succession, at which point the offender then joined in by punching and kicking the victim.
A passenger then intervened and was heard to ask the offender and co-offender to stop and told them that the victim had enough. The offender was seen to be punching and kicking the victim for a period of 2 minutes.
The group, including the co-offenders, got off the tram together at Civic. One of the co-offenders was carrying the victim's backpack which included a laptop, an Apple iPhone, charging cords, the victim's Chinese passport and some other personal documents.
The victim remained on the tram until it arrived at the end of the line. Police were called by the driver who took an account from the victim. The victim was taken to the Mater Hospital by an ambulance. He had suffered a small laceration on his hairline above his right eye, a swollen and bruised right eye, grazes to his right forearm/wrist area and minor grazes to his knee. These facts constituted the offending conduct in Sequence 2 of the Newcastle offences.
The tram proceeded back to the Newcastle Interchange at 12.15am. It stopped at Civic at 12.22am when the same group of young persons got back on the tram. They were the only passengers and were recognised by the driver who notified her control centre and requested police to meet the tram at the Newcastle Interchange.
At the Interchange the driver locked the doors, trapping the group of young people in the carriage. Police entered the tram carriage and spoke with the youths. They located the victim's backpack underneath a seat. A co-offender lied to police claiming the backpack belonged to him.
At some stage after the assault, the offender became aware of the contents of the backpack and took possession of the victim's mobile phone. Police observed him to take his hand out of his pants pocket and cause the phone to fall to the floor. When questioned the offender denied that the phone had been in his pocket. It was later found to belong to the victim. These facts constituted the offending conduct in Sequence 1 of the Newcastle offences.
Exhibit A, as set out above, included the offender's criminal history. I do not intend for the purpose of sentencing to summarise that history but will refer to the more recent offences for which the offender was sentenced prior to the index offences, and subsequently, for the purpose of applying principles of proportionality and totality to the eventual sentence, and to explain the exercise of my discretion in backdating the sentence to be imposed.
The offender's lengthy custodial history included numerous infractions since October 2019 for assaults, fighting, disobeying directions, possession of drugs and offensive weapons and obstruct correctional officer.
Exhibit A included a Breach of Parole Report following the offender's arrest for the Newcastle offences on 27 October 2022. The report noted that he had been in an initial six week assessment period following his release to parole however he demonstrated a complete disregard for being afforded conditional liberty by way of this serious offending. His risk factors were identified as anger/aggression, antisocial attitudes, driving and chronic drug use. The author noted there appeared to have been an escalation of seriousness in the nature of his offending indicative of a heightened risk to community safety.
Exhibit A included the facts upon which the offender had previously been sentenced and subsequently released to parole in respect of four offences of drive recklessly/furiously or speed/manner dangerous, police pursuit not stop drive dangerously, 2nd offence, drive motor vehicle during disqualification period, 2nd + offence and drive and take conveyance without consent of owner.
Exhibit A also included documents relating to a previous offence of assault law enforcement officer whilst in the execution of the officer's duty which occurred on 24 February 2022 at the South Coast Correctional Centre and an offence of affray on 15 October 2022 at Parklea Correctional Centre.
Exhibit A also included documents relevant to the sentencing of the offender's co-offenders both in respect of the Sydney and Newcastle offences in the Children's Court.

The offender's evidence

The offender relied on a bundle of evidence which became Exhibit 1.1 to 1.8. Exhibit 1.1 was a letter dated 4 October 2023 from the offender which his solicitor helped him to prepare. The letter acknowledged his long criminal history and the fact that the index offences are the most serious offences he has committed. He apologised to the victims for his criminal behaviour and set out details of his family history and upbringing. On any view it is a tragic history. The offender was born inside the Townsville Correctional Centre where his mother was incarcerated. From the age of 2 years he was placed in out of home care with numerous foster placements and from 2010 was cared for by his aunt, Amanda Inglis. In that year his mother had died in custody. He had no relationship with his father who he described as a "junkie". His older brother Charlie had also been in and out of gaol during his life.
The offender described his history of being in custody as making him really sad. Whilst in juvenile detention he had been sexually assaulted by a correctional officer and he had commenced legal proceedings in relation to that incident. He was presently at Shortland Correctional Centre and was working in the bakery which was something he enjoyed. He had however not been able to do any programs whilst on remand. He expressed an interest in doing any sort of drug program or diversion program to help him stay out of gaol in the future. Upon his release he intended to move to Nowra to make a fresh start. He noted that he had NDIS support available to him for his mental health to assist him with adjusting to a normal life.
Exhibit 1.2 was a letter from Amanda Inglis, the offender's aunt. She advised that the offender had been diagnosed with behavioural issues when he was young. He was in the care of the Department of Family Services in Queensland until he was 3 years old when he was placed with her aunt until he was 9 years old. Following her aunt's divorce the offender moved in with Ms Inglis on the Central Coast. He had struggled with his mother's death by suicide in custody. Ms Inglis had worked a lot with FACs at Gosford to help keep the offender connected to his family and when he was not in custody he remained in her care until he was 18 years of age.
Ms Inglis acknowledged that the offender needed support but had never been able to find the right support. She described him as a person with no malice who had a caring side but continued to make bad choices and was not able to control his impulses. He had expressed remorse for his actions and had told her that he realises that he is not a child anymore and that he has to change. He had also expressed a desire to take advantage of support services and any rehabilitation that was available to him. Ms Inglis expressed hope that the offender would overcome his background and mental health issues to eventually adapt to society with the right support behind him and that she would support him in any way she could.
Exhibit 1.3 was a report of Dr G Chew dated 4 October 2023. Dr Chew is a psychiatrist who assessed the offender via AVL on 3 October 2023. Dr Chew noted that the offender said he was extremely sorry for his involvement in the index offending. On both occasions in Sydney and Newcastle he had been extremely intoxicated. The offender admitted he had an intellectual disability and was known to Statewide Disability Services in custody and had NDIS support in the community. He struggled with unstable mood and irritability and was motivated to engage in treatment, including regular GP appointments, psychological appointments and drug and alcohol counselling.
Dr Chew noted the offender had been diagnosed with ADHD, ODD, CD, PTSD and an Intellectual Disability. He admitted to heavy drinking when he was in the community, together with daily methamphetamine use by way of smoking, daily cannabis use and also illicit suboxone use whilst in custody.
Dr Chew took a history of his deprived childhood. He diagnosed the offender as suffering the following:- 1. Mild Intellectual Disability (ID). 2. Complex Post-Traumatic Stress Disorder in the context of childhood trauma (CPTSD). 3. Attention Deficit Hyperactivity Disorder (ADHD). 4. Substance Use Disorder (SUD).
Dr Chew opined that there was a causal link between the offender's mental health and his offending behaviour. His ID and ADHD contribute to his overall poor reasoning and judgment with impulsivity. His behaviour and judgment were also affected by alcohol intoxication.
Dr Chew noted the offender expressed genuine remorse and was willing to engage in treatment. Access to treatment for his conditions was difficult whilst he is in custody and he is currently having difficulties obtaining psychiatric care. The COVID-19 restrictions on the prison population also made his time in custody more onerous.
Dr Chew set out a treatment plan for the offender's psychiatric conditions which included ongoing stabilisation of his mental state by way of comprehensive psychiatric treatment and abstinence from alcohol.
Exhibit 1.4 was a letter from Ms M Skelly of the Hunter Care Group. She is a specialised co-ordinator of supports and noted that the offender is a participant of the NDIS, having been diagnosed with an Intellectual Disability, Conduct Disorder, Oppositional Defiance Disorder, ADHD, Learning Disorder, Chronic Insomnia Disorder and PTSD.
The offender had been referred to the Hunter Care Group in July 2023 and had communicated his motivation to change and his desire to re-engage in the community through engaging with his NDIS supports and employment.
Ms Skelly noted that whilst in custody the offender is supported by Statewide Disability Services and Justice Health to ensure that he has access to appropriate medications. He will also be assisted with planning for release and achieving his NDIS goals to secure long term housing, employment and to develop his independent living skills.
Exhibit 1.5 was a letter from Tanya Brunette of Statewide Disability Services confirming that the offender's Intellectual Disability had been assessed on 14 March 2019. The results indicated that he is functioning within the borderline to extremely low range (second percentile), indicating he has difficulty with vocabulary, communication (verbal and written), verbal reasoning, general knowledge, planning, organising, memory, attention span, speed of processing information and learning new information. His previous diagnoses of CD, ODD, ADHD, Learning Disorder, Chronic Insomnia Disorder and PTSD were noted. The author noted that the offender's primary disability has been longstanding and is considered to be permanent.
Exhibit 1.6 was a bundle of Justice Health records and Clinical Notes. The records included a neuropsychology report dated 26 March 2019 confirming the offender's childhood diagnoses and significant trauma history. The author opined that the offender's mild ID substantially reduces his functional capacity in a number of areas including social and economic participation and he will be likely to permanently require assistance from the NDIS to manage his conditions.
Exhibit 1.7 was a letter from Melinda Griffiths Lawyers dated 5 October 2023 confirming they have instructions to act for the offender to investigate a claim arising from allegations of sexual abuse perpetrated by a corrections officer whilst he was a detainee at Reiby Juvenile Detention Centre in or about 2015 and 2016.
Exhibit 1.8 was a letter from Shine Lawyers dated 14 March 2023 who previously acted on behalf of the offender in respect of sexual abuse endured by him as a child.

The Crown submissions

The Crown relied on a thorough and detailed outline of written submissions in which it was submitted that due to the seriousness of the offending and the offender's substantial criminal history the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 ("CSPA") has been crossed and a sentence of fulltime imprisonment is warranted. In respect of the Sydney offence of armed robbery the Crown submitted that this was a serious example of this offence having regard to the features outlined in the guideline decision of R v Henry (1999) A Crim R 149; [1999] NSWCCA 111. The Crown submitted that this was more serious than the offending in the guideline judgment.
In respect of the Newcastle offence of accessory after the fact robbery in company the Crown submitted that this offending fell at the lower end of objective seriousness for an offence pursuant to s 97(1) of the Crimes Act 1900, taking into account the following matters:- 1. There was a limited degree of planning. The offender's role is contained to having the victim's phone in his possession at the time police interacted with the offender after the robbery. 2. Limited, if any, actual violence, but a real threat of it. The offender's violence was not part of the robbery but is contained in the offence of assault occasioning actual bodily harm. 3. It was noted that co-offenders took the victim's backpack containing significant personal items including the mobile phone. 4. The offender's plea of guilty was entered after case conference in the face of a strong Crown case.
In relation to the assault occasioning actual bodily harm offence, the Crown submitted that this was a serious form of this type of offence. The assault involved:- "(a) Three punches to the victims face while the victim was seated. (b) Kicks and punches to the victim as he was on the floor of the tram. (c) Punches to the victim as he tried to defend himself. (d) After a break in the assault further punches and kicks in the company of co-offenders that resulted in the victim again being on the floor of the tram."
The Crown submitted that whilst the assault did not take place over a lengthy period of time, that was of little assistance to the offender given it would have been frightening for the victim, relying on Chung v R [2017] NSWCCA 48 at [77].
The victim sustained a small laceration to his hairline, a swollen and bruised right eye and grazing to his body which were not insignificant injuries.
Having regard to the vulnerability of the victim, the sustained nature of the attack and attempts made by the victim to defend himself, the Court would find that this was a serious example of this offence.
The Crown submitted that it was an aggravating factor pursuant to s 21A(2) of the CSPA that the victim in respect of each offence was vulnerable. The shopkeeper in the Sydney offence was working late at night. The victim in the Newcastle offences was traveling on public transport late at night, which emphasised the need for substantial punishment, relying on Owens v R [2017] NSWCCA 16 at [78].
A further aggravating factor was that the offender was on conditional liberty. For the Sydney offence he was on parole and subject to an ICO and for the Newcastle offences he was on bail and on parole.
The Crown acknowledged that the offender's plea of guilty was a mitigating factor pursuant to s 21A(3)(k) of the CSPA and he was entitled to a 25% utilitarian discount on sentence.
The Crown submitted that the offender's significant criminal history for similar offending disentitled him to leniency. Further, he had continued to commit offences of violence whilst in custody and had breached numerous bonds.
Given the criminogenic risk factors identified in the various reports from Community Corrections, the Crown submitted that the offender's prospects of rehabilitation are not favourable and there is a real risk of him reoffending.
The Crown accepted that the offender's youth, being 21 at the time of the offending, could be taken into account, relying on KT v R [2008] NSWCCA 51. However, lessor weight should be placed on rehabilitation as the offender was acting as an adult when he committed the subject offences.
The Crown conceded that an order for special circumstances was open to the Court based on his subjective case and youth. However it submitted that the non-parole period must reflect the objective criminality of the offending.
With respect to the application of the principle of totality, the Crown noted that the offender had been in custody in respect of the Sydney offence from 23 June 2022 to 20 October 2022. At the time of that offence he had been on parole and he was granted Supreme Court bail on 20 October 2022 and his parole was continued. On 27 October 2022 when he committed the Newcastle offences he was bail refused and the offender's parole was revoked. That parole expired on 21 January 2023.
Since the offender has been in custody he committed two further violent offences. He was sentenced to 15 months imprisonment for an affray at Parklea Correctional Centre which commenced on 15 October 2022 and terminates on 14 January 2024. On 15 August 2022 he was charged with assault law officer and was sentenced to 8 months imprisonment commencing on 14 June 2023 and terminating 13 February 2024.
The Crown relied on Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 where the Court stipulated that when sentencing for multiple offences a court could mitigate what strict justice would otherwise indicate where the total effect of the sentences merited by the individual crimes became a crushing sentence. The Crown also relied upon Carroll v R [2015] NSWCCA 219 at [25]. The Crown submitted that any aggregate sentence imposed should be adjusted in order to achieve the appropriate balance between the totality of the sentences and the totality of the criminality. The Crown submitted that it was appropriate for there to be accumulation, whilst ensuring the total sentence is not a crushing one.
Having regard to the principle of parity with co-offenders, the Crown submitted the Court should consider the different roles the offenders played and their differing degrees of moral culpability. The Court would also have regard to the clear differences between the subjective cases of the various co-offenders and the roles they played in the offending.
Each of the co-offenders in the Sydney offence where children with no relevant criminal history and were appropriately dealt with by way of good behaviour bonds and probation orders.
Similarly the four co-offenders in the Newcastle offences were also dealt with in the Children's Court. Three of them had no relevant prior criminal history and were dealt appropriately with probation orders and community service orders. The fourth was being assessed for mental health issues.
The Crown submitted that the sentences imposed on the young persons had little bearing on the present sentencing exercise given the difference between the two jurisdictions. In respect of the Sydney offence it was the offender who played the primary role in the offence. It was the offender who initiated the offending and he held the knife to the victim.
In respect of the Newcastle offences, although the offender's role as an accessory was limited, his role in the assault occasioning actual bodily harm offence was objectively more serious and significant than his co-offenders.
The Crown submitted that emphasis should be placed on specific deterrence and punishment together with protection of the community given the criminal record of the offender and the fact that he was on conditional liberty at the time of all of the offences.
In her oral submissions the Crown rehearsed her submission that specific deterrence and protection of the community were key to this sentencing exercise. The offender had a terrible criminal history and deterrence was paramount in sentencing for such violent offences.
The Crown submitted the CCTV footage showed that in respect of the Sydney offence the victim would have been terrified, and in respect of the Newcastle assault, it demonstrated a violent, senseless and sustained attack which was entirely unprovoked on another person. This demonstrated a great need for protection of the community which meant that any increased need for rehabilitation in his sentence has to be weighed with the need for general deterrence and protection of the community.

Submissions on behalf of the offender

Counsel for the offender also relied on a detailed and thorough outline of written submissions identifying relevant differences from the guideline judgment in R v Henry. In that case the offender was young but had little or no criminal history. It was also submitted that the amount taken was not small, although it would not necessarily be considered to be substantial (namely 10-12 cartons of cigarettes and $700-$800 in cash). The following common factors were present, namely:- 1. Scissors were used as a weapon. 2. It could not be said there was more than a limited degree of planning. 3. There was direct limited physical violence (i.e. the offender pushed the victim) and a real threat of it which caused the victim to fall to the ground. 4. The victim, a shopkeeper, was in a vulnerable position. 5. The offender has entered a plea of guilty. That plea was entered however at an early stage.
Counsel submitted that the guideline is not a tramline and was more in the nature of an indicator or sounding board.
Counsel accepted that the offending was aggravated by the fact that it was committed in company, however that fact did not substantially increase the seriousness of the offending given the limited role of the co-offenders who do not appear to have subjected the victim to any additional threat of violence.
In respect of the Newcastle offences, the offender accepted that the assault involved sustained violence. There was no evidence of planning and the fact that it was committed in company is an element of the offence and therefore is not an aggravating factor. The injuries sustained clearly amounted to actual bodily harm and it was submitted that the objective seriousness of the offending fell at, or just below, the middle of the range for an offence of this type. The objective seriousness of the offending as an accessory after the fact in relation to the mobile phone was submitted to be towards the lower end of the range for an offence of its type.
Counsel summarised the significant material outlining the offender's subjective case, none of which was challenged by the Crown. That included his family history as outlined by the offender and his aunt Amanda, his mental health diagnoses confirmed by Dr Chew and his ongoing treatment confirmed by Ms Skelly and Ms Brunette as well as the various psychological reports in 2014 and 2019 no doubt prepared for various court appearances.
Counsel referred to the custodial records which demonstrated that the offender first went into custody at age 14 and had 12 separate periods of incarceration whilst a juvenile. Between age 14 and 18 he was only out of custody for 199 days, the longest period being 33 days. Since turning 18 he had been in custody 8 times and had only spent 159 days out of custody, the longest period being 64 days before his arrest for the armed robbery offence in Sydney.
Counsel submitted that the principles relating to offenders with mental health issues outlined in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were engaged here. The evidence clearly established that the offender had a deprived background which together with the sexual abuse suffered by him in juvenile custody must reduce significantly the offender's moral culpability for the offending. Similarly, his exposure at an early age to drug abuse in the context of a disadvantaged upbringing made it appropriate to place increased weight on the need to maximise opportunities for his rehabilitation and treatment.
It was accepted that the offender was subject to conditional liberty at the time of both offences which was an aggravating feature but does not aggravate the objective criminality of the offending.
Counsel submitted that there was clear evidence of remorse and contrition from the offender's letter to the Court and Dr Chew's report. It was submitted the offender takes full responsibility for his actions and now has insight into the effect of the offending on the victims.
Counsel accepted that the offender's background, criminogenic issues and lengthy prior periods of incarceration preclude a favourable finding in relation to his prospects of reoffending however that was to be balanced against the following:- "(a) It is open to the Court to accept that there is genuine remorse. (b) The offender is still a very young man and it may be that as he gets older he will be in a better position to take advantage of opportunities that will hopefully be available to him for rehabilitation and treatment of his conditions. (c) He expresses a desire to better himself and take part in "any sort of drug program or diversion program if I can so that when I get out of gaol, I can work hard to stay out of gaol". (d) He maintains the support of his aunt, who appears to be hopeful but realistic about the path ahead for him. (e) It may be that his engagement with the Hunter Care Group (as a participant of the NDIS Scheme) more effective supports are made available to him when he transitions back into the community than may have been available previously."
Counsel submitted that his relatively young age and the amount of time he has already spent in custody since 2015 gives rise to a real need to impose a sentence that is conscious of the risk that further incarceration will result in institutionalisation.
In respect of the application of the principle of parity, counsel accepted that the utility of comparison with sentences imposed upon children was limited, particularly given the differences in each child's involvement and their criminal history by comparison to this offender.
Counsel acknowledged the difficulty in application of the principle of totality given the sentences the offender was serving at the time of the offending and the sentences subsequently imposed on him for subsequent offences. For those subsequent offences his earliest release date is 13 October 2023. The sentencing exercise is further complicated by the fact that the offender has spent different periods of time in custody for each set of offences i.e. 464 days for the Sydney offence and 431 days for the Newcastle offences.
Counsel advocated an aggregate sentence which reflected substantial notional concurrency between the sentences imposed for all offences and to commence any sentence from a date much earlier than the offender's current earliest release date.
It was submitted that the offender was not an appropriate vehicle for general deterrence and it was appropriate to give reduced weight to the objects of denunciation and punishment. Further, the following factors justified a finding of special circumstances:- "(a) Any accumulation between the existing and new sentences. (b) The unfortunately large proportion of time the offender has spent in custody since he was 14 years of age. (c) The clear need for a significant period of conditional and supervised liberty in order to maximise the prospects of the offender's successful integration into the community. (d) To avoid the risk of institutionalisation, which even in the face of retrenched recidivism warrants adjustment to avoid a non-parole period that would make the prospect of a successful return more remote."
Finally counsel submitted that the offender may meet the definition of "eligible convicted offender" pursuant to s 5A of the Drug Court Act 1988 in which case pursuant to s 18B of that Act the Court must:- "(a) Ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and (b) If so refer the offender to the Drug Court to determine whether the person should be subject of a compulsory Drug Treatment Order."
In his oral submissions learned counsel for the offender accepted that the threshold in s 5 of the CSPA had been crossed and the only appropriate penalty was one of fulltime custody, given the offender's extensive criminal history. The objective seriousness of the offending for the Newcastle offence of accessory after the fact was towards the lower end of the range, however his criminal history took it across the s 5 threshold.
In response to the Crown submission that the armed robbery offence was a more serious example of an offence pursuant to s 97(1) of the Crimes Act than that in the guideline judgment of Henry, counsel submitted that there was a risk of conflating the objective seriousness with the features identified in the guideline judgment by a combination of both the objective and subjective features of the offending. Here the offending was in company but that does not aggravate the offending to a substantial degree, rather the offending was in line with the guideline judgment. The distinguishing features from the guideline judgment of Henry were the fact of the offender's lengthy criminal history and the timing of his early plea of guilty.
The Crown had also submitted that the plea of guilty must have been entered against the overwhelming strength of the Crown case. However counsel submitted there was limited planning and the utilitarian discount of 25% demonstrated that only some of the features identified in Henry were applicable. Here there were significant subjective factors which reduce the moral culpability of the offender's criminal conduct. He had mental health diagnoses together with an intellectual disability which led to him having difficulty avoiding situations where he was inclined to behave in antisocial patterns and to react impulsively. The context of the offending here in respect of both sequences involved him being intoxicated and coming from a background of a deprived upbringing.
In having regard to the objective seriousness of the offending for the offence of accessory after the fact, the Court would take into account that there were none of the conventional indicia of such an offence such as actions taken to assist the principal avoiding detection and arrest. Rather, there was no evidence as to when the offender became aware of the presence of the phone in the backpack and when he took possession of it. Further, the offender got back on the same tram with the co-offenders. When apprehended by police he denied knowledge of the phone when it had fallen out of his pocket.
Counsel rehearsed his submissions regarding the objective seriousness of the assault occasioning actual bodily harm count. It was accepted that this involved serious offending given it was a sustained and violent attack. However the Court should not double count the fact that it was in company as he had pleaded to the aggravated version of the offence. Only the offender and one other co-offender were involved in the assault and the objective seriousness should be assessed as at or just below mid-range. It was not hard to contemplate more serious offending or more serious injuries or offending that took place over a longer period of time under this section.
Counsel rehearsed his submissions regarding the youth of the offender and the impulsivity involved in all of the offending which was consistent with his intellectual disability and deprived background. It was submitted he had no opportunity to mature given he had spent such a large amount of his life since the age of 14 in custody.
Counsel accepted that the Court could not make a positive finding about the offender's risk of recidivism. He had complex and multiple needs to be addressed, however he had expressed genuine remorse and a desire to rehabilitate. Exhibit 1.4 demonstrated that he will have support both in custody and upon his release for his complex needs. The evidence demonstrated that he had been receiving trauma counselling from an early age and that his childhood diagnoses had been confirmed as was his mild Intellectual Disability when assessed in 2019. Counsel asked rhetorically whether life may have been different for him if these diagnoses had been made earlier and resulted in different outcomes. Positively, he now has NDIS support upon his return to the community and a continuation of the support services may result in a better outcome for him.
Counsel submitted that the clear risk of institutionalisation for this offender meant that there should be a moderation of the punitive objects of sentence so that any sentence imposed was not a crushing one but rather maximised the opportunity for rehabilitation and a productive return to the community.
Counsel rehearsed his submissions regarding eligibility of the offender to the Drug Court Program.
It was submitted the Court should exercise its discretion to back-date any sentence to be imposed so as to avoid a crushing sentence and that such a backdating may completely subsume some of the existing sentences. It was acknowledged that protection of the community is a live issue however the Crown did not rely on the offender's criminal history as aggravating his offences and the application of the Court's decision in De La Rosa meant his moral culpability was diminished so as to ameliorate the need for general deterrence, denunciation and protection of the community.

Submissions in reply

In reply the Crown submitted that there was a need to recognise, in any sentence to be imposed, the discrete offences and that whilst the Crown did not oppose a finding of special circumstances, the Court should recognise the overall criminality of the offending conduct.

Determination

S 3A of the CSPA 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".
The objective seriousness of the offending in the Sydney offence of armed robbery must be assessed by reference to what the offender did. As shown on CCTV the offender approached the storekeeper late at night and asked for a carton of cigarettes. When the storekeeper turned around to access the cigarettes the offender walked behind the counter, took a black pair of scissors and held them to the victim's neck. He then pushed the victim to the ground and repeatedly asked to be shown the cash register. The offender was shown to hold the scissors close to the victim's neck and gesture with the scissors toward the victim. As well as between 10 to 12 cartons of cigarettes, an amount of $700 to $800 in cash was stolen from the till. This was objectively serious offending just below the mid-range for an offence pursuant to s 97(1) of the Crimes Act 1900, which contemplates a very wide range of conduct amounting to armed robbery.
The following factors were common with the guideline judgment of R v Henry:- 1. A weapon (i.e. scissors) was used. 2. There was only a limited degree of planning. 3. There was direct limited physical violence occasioned to the victim when the offender pushed him to the ground but also a real threat of it. 4. The victim, a shopkeeper, was in a vulnerable position.
The present offending diverged from the guideline judgment in that the offender here has a lengthy criminal history and also had entered an early plea of guilty thereby entitling him to a 25% utilitarian discount.
The Sydney offence was aggravated by the offender being in company, although the presence of the two young people at the scene, only one of whom entered the shop and did not directly threaten the victim, did not add to the objective seriousness of the offending. A further aggravating factor was that the offender was on conditional liberty at the time of the offence given that at the time he was both on parole and subject to an ICO in respect of previous offending.
In respect of the Newcastle offences, Sequence 1, accessory after the fact robbery in company was objectively at the lower end of the range for an offence pursuant to s 97(1) of the Crimes Act and s 349(2) of the Crimes Act. There was a limited degree of planning involved and the offending conduct involved the offender having the victim's phone in his possession. There was no evidence establishing that the offender was assisting a principal offender to avoid detection and arrest, and the phone was recovered a short time later when the offender re-entered the same tram on its return journey.
Sequence 2, an offence of assault occasioning actual bodily harm in company of others was objectively serious offending in the mid-range for an offence pursuant to s 59(2) of the Crimes Act. It involved an assault on the victim by the offender who was in the company of others when he first punched the victim's face three times whilst the victim was seated in the tram, and then kicked and punched the victim as he lay on the floor of the tram. Subsequently, when the victim tried to defend himself the offender again punched the victim and then after a break in the assault, further punched and kicked the victim resulting in the victim again being on the floor of the tram. It was an unprovoked, vicious and sustained attack on a vulnerable victim who sustained a laceration to his hairline, a swollen and bruised right eye and grazing to his body.
It was an aggravating factor of the Newcastle offences that the victim was vulnerable, being alone on public transport late at night and further that the offender was on conditional liberty given that at the time of the Newcastle offences he was on bail and on parole.
I accept there was no evidence of planning in respect of the Newcastle offences and the fact that the offence in Sequence 2 was committed in company is an element of the offence and therefore not an aggravating factor.
General deterrence is important in sentencing for armed robbery and assault occasioning actual bodily harm offences of this type. A clear message must be sent to likeminded members of the community that such conduct is entirely unacceptable and the Courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must understand that if he were to repeat his criminal conduct he will be subject to increasingly severe penalties.
I have taken into account the maximum penalties proscribed by Parliament of 20 years imprisonment for armed robbery pursuant to s 97(1) (the Sydney offence), a maximum penalty of 14 years imprisonment in respect of accessory after the fact robbery in company and the maximum penalty proscribed of 7 years imprisonment for the assault occasioning actual bodily harm in company of others (the Newcastle offences).
The maximum penalties indicate the seriousness with which Parliament views such criminal conduct, and are a guideline in the sentencing process. A further guideline is the judgment in R v Henry which, for an offence with the common features outlined therein warranted the Court indicating a guideline sentence of 4 to 5 years imprisonment for an offence pursuant to s 97(1) of the Crimes Act. It does, however, remain a guideline and the particular circumstances of the offending must be evaluated together with the matters outlined below.
I accept that the offender is entitled to a 25% utilitarian discount on penalty which ameliorates the impact of the guideline judgment, but also acknowledge that he has a lamentable criminal history which disentitles him to leniency, although it is not relied on by the Crown as an aggravating factor.
I also accept that the offender has expressed remorse for his criminal conduct and has expressed a willingness to engage in treatment both to Dr Chew and to his aunt.
There are significant subjective factors to be taken into account on sentencing here. The offender is an Aboriginal man and has an established background of profound deprivation as a child during which he was exposed to domestic violence, drug and alcohol abuse and commenced drug and alcohol abuse at an early age. He was also diagnosed with a complex array of mental health diagnoses at an early age which no doubt contributed to his early engagement with the criminal justice system. Since the age of 15 he has spent the majority of his life in custody and was himself a victim of a sexual assault whilst in the care of the State in Juvenile Justice as a 15 year old. He has subsequently been diagnosed with a mild Intellectual Disability, placing him within a borderline range and limiting, if not entirely negating, his capacity to make good and reasoned decisions. To the contrary, his offending has displayed continuing impulsivity and I accept Dr Chew's opinion, which was not challenged by the Crown, that there is a causal link between the offender's mental health and his offending behaviour.
In accordance with the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and the Court of Criminal Appeal's decision in DPP (Cth) v De La Rosa, I find that the causal link between the offender's mental health and his criminal offending together with his life of profound deprivation, diminish to a large extent his moral culpability for the offending and also diminish the need for general and specific deterrence in sentencing.
Also the fact that the offender was born on 9 January 2001 and was a 21 year old, who at the time of the index offending has spent most of his life since the age of 14 in custody is a very relevant factor to be taken into account on sentence.
It is well established that in sentencing young offenders emphasis must be given to rehabilitation rather than general deterrence, denunciation and retribution - see KT v R (2008) A Crim R 112; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows: "4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. 5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. 6 Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …"
I intend to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. To ensure transparency in the sentencing process I provide the following indicative sentences for each of the offences, taking into account the objective seriousness of the offending, the subjective factors set out above, the offender's youth and the 25% utilitarian discount:- 1. Offence of armed robbery pursuant to s 97(1) of the Crimes Act - 3 years imprisonment. 2. Offence of accessory after the fact robbery in company pursuant to s 97(1) and s 349(2) of the Crimes Act - 6 months imprisonment. 3. Offence of assault occasioning actual bodily harm in company pursuant to s 59(2) of the Crimes Act - 2 years and 6 months imprisonment.
In arriving at an aggregate sentence the principle of totality applies. The principle of totality was described by of Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 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."
In this case, given the discrete offending and criminality that took place on 21 June 2022 and 27 October 2022, a substantial amount of accumulation must reflect the totality of the criminality involved in all three offences. I therefore intend to impose an aggregate sentence of 4 years and 6 months imprisonment.
I make a finding of special circumstances, as conceded by the Crown pursuant to s 44(2B) of the CSPA and intend to vary the ratio between head sentence and non-parole period. I intend to impose a non-parole period of 2 years and 6 months.
The principle of totality is also relevant to nominating a commencement date for the sentence for the index offending. There is a broad discretion with respect to the sentences imposed for the two offences subsequent to the index offending, which offences occurred whilst he was in custody. The principle of totality as stipulated in Postiglione v The Queen, supra, applies so as to avoid a crushing sentence and mandates a consideration of the following factors. First, the Sydney offence on 21 June 2022 occurred whilst the offender was on parole. He was in custody from the date of his arrest on 23 June 2022 until granted Supreme Court bail on 20 October 2022. Following the Newcastle offence on 27 October 2022 the offender went back into custody and his parole was revoked.
The offender's parole expired on 21 January 2023. However on 14 March 2023 he was sentenced in the Local Court for an offence of affray which occurred whilst he was in custody to a term of imprisonment of 15 months commencing on 15 October 2022 with a non-parole period of 8 months commencing on 15 October 2022 and concluding on 14 June 2023. On 2 June 2023 the offender was sentenced in the Local Court for an offence of assault law officer, which offence occurred on 24 February 2022 at the Southcoast Correctional Centre, to a term of imprisonment of 8 months commencing on 14 June 2023 with a non-parole period of 4 months concluding on 13 October 2023. I note that an all-grounds appeal has been lodged in respect of that sentence.
Having regard to all of the above factors, there should be a substantial concurrency with those sentences and I propose to backdate the offender's aggregate sentence to commence on 15 November 2022.
Given that the co-offenders in both the Sydney offence and the Newcastle offences were all dealt with in the Children's Court for different and less serious offences, the principle of parity does not have any relevant application in sentencing for the index offences.

Orders

I hereby order as follows:- 1. You are convicted of the following offences:- 1. Offence of robbery armed with offensive weapon pursuant to s 97(1) of the Crimes Act 1900. 2. Offence of accessory after the fact robbery in company pursuant to s 97(1) and s 349(2) of the Crimes Act 1900. 3. Offence of assault occasioning actual bodily harm in company pursuant to s 59(2) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA to a term of imprisonment of 4 years and 6 months. 2. I impose a non-parole period of 2 years and 6 months to commence on 15 November 2022 and to expire on 14 May 2025. 3. The balance of term will be a period of 2 years, terminating on 14 May 2027. 4. I further direct that you should be referred to the Drug Court pursuant to s 18B of the Drug Court Act 1988 to ascertain whether there are grounds for the Drug Court to find that you are an eligible convicted offender and if so whether you should be subject to a compulsory Drug Treatment Order. The Court file is to be endorsed "referred to Drug Court - CDTCC referral." 5. Your parole eligibility date will be 14 May 2025. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. 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: 26 October 2023

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