The offender comes before the Court having been found guilty on 14 May 2021 of the offence of robbery armed with a dangerous weapon, namely, a firearm or an imitation firearm. This is conduct contrary to the provisions of section 97(2) of the Crimes Act 1900 (NSW). It carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.
[2]
The Facts Which Should be Inferred to the Jury Verdict
There was no dispute between the parties as to the circumstances of the offending.
At about 12:10 AM on Saturday 27 September 2014, the offender and his co-offender, David Dunn, entered the Royal Hotel in Richmond. At that time, Jake Manning was working behind the bar. The hotel manager, Aaron Bean, was in the public area of the bar having a conversation with Kirk Burgess, a musician who had just finished performing at the hotel. Also working in the hotel was Christopher Brien, who was employed as a security officer. There were a number of patrons at various locations inside the hotel.
About 30 minutes prior to the arrival of the offenders, Mr Bean had prepared the bar for closing by counting the takings and preparing the floats for the next day. He had put the floats' money in till drawers, and was going to take them upstairs to lock them away in the safe when the hotel was closed later that night. In total, there were about eight cash floats behind the main bar.
At 12:11 AM, closed circuit television (CCTV) footage depicts two males (the offenders) approaching the bar, where Mr Manning was working. Both males were wearing dark clothing and headwear. The offender Jackson was also wearing a black scarf, which covered his mouth. The offender walked up to the bar and said, "you can give me all the cash." Mr Manning said words to the effect of "what do you mean?" The offender, at this point, was leaning with his elbows on the bar and his hands held together, apparently concealing something. Mr Manning then saw the offender move his left hand to reveal a black coloured pistol, which was pointed at Mr Manning. The offender said, "all of the cash, right fucking now". Mr Manning stepped back and put his hands up. Mr Manning was unsure whether the pistol was real or a replica. Understandably, he was not prepared to take the risk that the pistol was not real. He therefore complied with the demands of the offender.
The co-offender Dunn was armed with a butcher's steel, that is to say, the long, pointed, steel implement with a handle, which is traditionally used by butchers to sharpen their knives.
The offender told Mr Manning to open the tills. Mr Manning moved along the bar and opened the tills one by one. The offender followed Mr Manning as he did this.
Thereafter, the co-offender Dunn entered behind the bar area and removed cash from the tills, stuffing the cash into his pockets. Meanwhile, the offender Jackson stood guard at the entrance to the bar. It seems that neither offender was in possession of a bag into which to put the money, and, as the co-offender Dunn was having difficulty in coping with the notes which he was attempting to stuff in his pockets, the offender required the hotel staff to produce a bag for him. There was compliance, and thereafter Dunn continued to stuff money into the bag.
The CCTV footage then shows Mr Bean approaching the offender, who turned around and pointed the gun at him. Mr Bean retreated a few steps and sat on a chair. At this point, Mr Brien walked into the public bar area. The offender directed him to get onto the ground. Mr Brien complied, and put his hands on his head.
While the co-offender Dunn was taking money from the tills, the offender pointed the gun at Mr Manning and said words to the effect of "where's the safe?" Mr Manning replied, "there is no safe down here, the only safe we have is upstairs, and we don't know how to get into it."
In the meantime, the co-offender moved towards the till drawers located at the other end of the bar and removed the cash from them.
A short time thereafter, the offenders ran from the hotel. They were depicted on CCTV footage running in a north-easterly direction along East Market Street, Richmond, towards Francis Street.
After he considered it was safe to do so, Mr Manning called 000, and reported the robbery. The estimated cash stolen was between $10,000 and $15,000.
[3]
Relevant Sentencing Principles
The sentencing principles in relation to armed robbery are well-known. The Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346 determined the guidelines in respect of armed robbery offences which featured common factors, which would generally call for a sentence of four to five years imprisonment for the full term, in the context of a late guilty plea.
The common features identified by the Court were as follows:
1. A young offender with little or no criminal history;
2. A weapon, like a knife, capable of killing or inflicting serious injury;
3. A limited degree of planning;
4. Limited, if any, actual violence, but a real threat thereof;
5. A victim in a vulnerable position, such as a shop keeper or taxi driver;
6. A small amount of money taken;
7. A plea of guilty, the significance of which is limited by a strong Crown case.
[4]
Distinguishing Features of Instant Offending in Contrast to Henry
There are a number of distinguishing features in the instant case which contrast it with the guideline judgement.
First, Henry did not involve an offender with a significant background of disadvantage relevant to the assessment of moral culpability. I will come to this issue later in these reasons, though for present purposes I simply note that it is agreed that the offender here has such a background.
Next, Henry concerned a young offender, and the offender before me cannot be described as young, being as he is 48 years of age today, and 41 at the time of the offence.
Further, the amount taken in this matter was not insignificant, being between $10,000 and $15,000.
Finally, as the Crown submitted, Henry involved a late guilty plea, whereas no guilty plea is applicable to these proceedings, which went to verdict.
[5]
Planning
There was an issue between the parties as to the degree of planning involved in the offending. For the Crown it was submitted that the planning went beyond the limited planning contemplated in Henry. It was submitted that this can be seen from the following:
1. The evidence obtained in the telephone intercepts which was adduced at trial which suggested that the Offender "cased" the premises before the offence;
2. The covering of his face; and
3. The fact that the offender had obtained a firearm.
I do not see these factors as constituting anything that places the offending as being the result of other than "limited" planning.
As to the third matter, namely, the obtaining of a firearm, the obtaining of a dangerous weapon must be inherent in the offence.
The second issue, namely, the face covering, is not indicative of significant planning.
As to the first matter, it was accepted by the Crown that a finding that the offender surveilled the hotel prior to the robbery is not a fact which is necessary to be inferred to the jury verdict.
Accordingly, as the fact of surveillance is contrary to the offender's interests, if I am to make such a finding it is necessary for me to be satisfied that the fact is established beyond reasonable doubt. I do not find that fact established to that degree of satisfaction. On the contrary, I find that the statement upon which the Crown relies to establish surveillance was a false display of verbal bravado, of which there were several other clear examples to be found in the intercepts.
Finally, on the issue of planning, the failure of either offender to bring to the robbery a bag into which to put the money is suggestive of the fact that the extent of any planning was not beyond the embryonic.
[6]
Additional Factors Relevant to the Assessment of Objective Seriousness
[7]
The Use of the Weapon
In further addressing objective seriousness, the Crown submitted that it was important to consider not just the fact of the weapon per se, but rather how it was used.
In that regard, the Crown drew attention to the fact that the firearm (or replica firearm) was pointed directly at Manning, Bean, Burges, and Brien, and from a short distance. In relation to Mr Manning, this was accompanied by a threat to "blow [him] away". In respect of the victim, Mr Bean, he was threatened with being shot in the leg.
I accept the Crown's submissions in respect of the use to which the weapon was put.
[8]
Aggravating Factors
The Crown submitted that the following were aggravating factors namely:
1. That the offence was committed in company; and
2. That there were multiple victims.
I accept that these factors are present, and I will bring them to account in the sentencing synthesis. In so doing, I should make clear that I have not taken them into account in considering the Henry guidelines, so as to avoid double-counting.
Finally, the Crown did not rely on the offender's criminal antecedents as aggravating, but rather submitted that they were factors which disentitled the offender to leniency. I agree with this approach.
[9]
Conclusions on Objective Seriousness
The Crown contended that, in all the circumstances, the offending falls towards the midrange of objective seriousness. In that regard, the Crown noted that this was the assessment of the objective seriousness determined by her Honour Judge Beckett, who sentenced the co-offender Dunn.
The offender in the instant matter contended that the objective seriousness should be considered to be below the midrange. This was put on the basis that the offending lasted for a relatively short period time, and that there was, in fact, no actual violence used in the offending.
Further, the offender submitted that the gun ought to be found to be a toy gun. In the analysis of objective seriousness, the offender conceded that there was a degree of planning, but it was not of a significant degree. Finally, in relation to emotional harm, the offender contended that the emotional harm caused to the victims did not appear to be at the highest level of the scale.
As to whether there should be a finding that the handgun was real or a replica, the Crown accepted that this is a matter for me to conclude, and, being a fact adverse to the offender's interests, would require such a finding to be made beyond reasonable doubt. The evidence does not permit me to do so.
As to the offender's planning submission, I accept this submission and find that there was only a limited degree of planning, for the reasons previously mentioned.
As to the nature of the use of the dangerous weapon by the offender, I did not understand there to be any dispute that the offender used the firearm by pointing it at the victims, and at times this was coupled with verbal threats of shooting the victims.
In my view, the use of the weapon in this manner does bear on the issue of the objective seriousness of the offending, and I will take it into account in the sentence accordingly.
As to the emotional harm caused to the victims, I accept the Crown's submission that the offending caused the victims to be put in fear, which could hardly be disputed. As the Crown correctly submitted, however, the fear caused in the instant offending was consistent with the effects that can be expected to result from the commission of this type of offence. Thus, I do not consider emotional harm to be an aggravating factor.
Taking all of these matters into consideration, I have come to the conclusion that the offending ought to be adjudged to be slightly below the midrange.
[10]
The Offender's Subjective Features
That the offender has suffered an upbringing characterised by significant deprivation is a proposition which could hardly be gainsaid.
The offender was born in Darwin to an aboriginal mother and a non-aboriginal father. His father took him from his mother when he was about three years of age, and then left him in the care of his grandparents near Scone. His grandparents in turn had difficulty looking after him and sent him to Coventry Home in Armidale. This was a children's home run by the Church of England.
The offender left Coventry Home at age 13 and lived with his grandmother after his grandfather had died. Through his adolescent years, the offender spent a large amount of time in a series of juvenile detention centres, namely, Worimi Shelter (Worimi), Yasmar Shelter (Yasmar), Baxter Juvenile Justice Centre (Baxter), Mount Penang Training Centre (Mt Penang), and Minda Remand Centre (Minda). At certain of these facilities he was subjected to physical and sexual abuse.
The offender told Mr John Machlin, a clinical psychologist upon whom he attended, that he felt that his father had rejected him when he established a new family. Mr Machlin reports that the offender considered that this was because he was black, and his father's other children from his new relationship were white. The offender disclosed to Mr Machlin that his paternal grandmother, now deceased, was his only close attachment figure.
The offender's education was disrupted by frequently moving between schools. He started to experiment with cannabis and alcohol after being released from Coventry Home when he was 13. He then progressed to amphetamines, ecstasy, and heroin. He also started to get in trouble with the law for theft, and began a sad progression of stealing, being apprehended, and being incarcerated.
In 2019, the offender attended upon Professor Ian Coyle, a consultant psychologist specialising in forensic psychology. Professor Coyle remarked that the physical and psychological abuse to which the offender was exposed when at Coventry Home, and thereafter at the various juvenile detention centres to which I have referred, "makes for grim reading." The offender relayed to Professor Coyle a history of significant physical violence being the norm at Coventry. Sometimes the offender would hide out in the bush to avoid being bashed.
The offender provided Professor Coyle with a history of sexual abuse at both Coventry and certain of the juvenile detention centres to which I have referred. The offender described Worimi as very violent place where, in addition, officers would try to groom him sexually. However, he was not sexually nor physically abused while there. Nonetheless, the fear that something could easily happen to him was ever present.
Upon release from Worimi, the offender was sent to Minda. Minda was worse than Woromi. The officers there ran what the offender described as a "reverse lottery", with boys' names being drawn out to see which one the officers would bash. The offender was terrified at the sexual and physical abuse at Minda. He was then sent to Baxter on four occasions, which was a harsh place, though apparently not as violent as either Worimi or Minda.
As I have indicated, the offender started using cannabis, ecstasy, amphetamines, and alcohol in his early teenage years. By his late 20's, he had started using heroin, to which he became heavily addicted. He funded this habit by crimes, often violent crimes, such as armed robbery, and breaking and entering. He also committed violent crimes such as assault, including assault occasioning grievous bodily harm.
The offender's sad upbringing and adult life unfortunately can perhaps be best summarised by the fact that he has spent 28 years of his middle-aged life incarcerated.
[11]
The Various Diagnoses of the Offender
Professor Coyle, who, as I have indicated, saw the offender in 2019, expressed the opinion that he suffered from Post-Traumatic Stress Disorder (PTSD). He also expressed the opinion that the offender suffered from a comorbid Major Depressive Disorder with Anxious Distress, and comorbid Antisocial Personality Disorder. He also noted Opioid Use Disorder, which, at the time of the report, he opined was no longer extant.
Professor Coyle's view was that the comorbid Antisocial Personality Disorder was in remission. He expressed the view, however, that the offender's prognosis in relation to his PTSD was bleak. He said that "there are no reasonable prospects of Mr Jackson ever recovering from his PTSD". He further opined that the offender's Major Depressive Disorder with Anxious Distress may respond to aggressive pharmacological treatment with conjoint psychotherapy, but, given its chronicity, he expressed the view that he was "deeply pessimistic" about such treatment's likely success.
Professor Coyle expressed the view that the PTSD was directly attributable to the offender being sexually, physically, and psychologically abused while in various forms of care. This exposure to abuse, he said, was fundamental to the offender's drug abuse, and the criminal sequalae that proceeded from this. He opined that the offender's Major Depressive Disorder with Anxious Distress developed from the long-term effects of his PTSD. He expressed the view that the offender's Antisocial Personality Disorder proceeded from the conjoint operation of all these factors.
Returning to Mr Machlin's report, he reported that the offender informed him that he has abstained from drugs in recent years, aside from a brief relapse, and he has been stabilised on methadone. Mr Machlin reported that the offender remains on methadone, and he is aiming to reduce his use of methadone to nil.
Mr Machlin diagnosed the offender as suffering the following:
1. Opioid Use Disorder (in remission);
2. Antisocial Personality Disorder (remitting);
3. History of Post-Traumatic Stress Disorder.
He expressed the view that the current indications were that the Opioid Use Disorder remained in remission, and he agreed with the assessment of Professor Coyle that the antisocial personality features of the offender are likely to attenuate with age. He further expressed the view that the offender's PTSD was a chronic condition that is likely to fluctuate over time depending on his general circumstances, mental condition, and the presence of reminders.
[12]
Social Deprivation Legal Principles
The principles concerning the role of social disadvantage in sentencing were not in dispute between the parties, nor was their applicability to the offender.
I accept that there is a clear link between the offender's exposure to various forms of disadvantage from a young age, and his use of drugs and consequent criminally offending behaviour as set out the various psychological reports.
The following emerges from the authorities:
1. A person with a background of deprivation does not bear equal moral culpability to a person who has experienced a more advantaged upbringing. This is so because common sense and common humanity dictate that such persons will have fewer emotional resources to guide their behavioural decisions.
2. Full weight must be given to offender's deprived background in every sentencing decision. This recognises the fact that the background of disadvantage may leave a mark on a person throughout his or her life, including by compromising a person's capacity to mature, and learn from experience, thus it is a feature of a person's make up which remains relevant to the determination of an appropriate sentence.
3. Drug addiction may have the effect of lessening a sentence when that addiction can be seen to have arisen from a background of deprivation.
I shall proceed to sentence by applying their principles, and in so doing I find that his history of deprivation has the effect of substantially lowering the offender's moral culpability.
I also accept that these considerations lead to a conclusion of there being less weight which needs to be attributed to general deterrence in the sentencing process.
[13]
Delay
Mr Buckman of counsel, who appeared for the offender, made submissions on the effect of delay in respect of the period between the offending and the offender being brought to justice. He drew to my attention the decision in R v Todd (1982) 2 NSWLR 517, where Street CJ at [519] stated:
…sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offences and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
In the instant case, the offence occurred on 27 September 2014, however the offender was not arrested until 18 July 2019. He was refused bail upon arrest. Subsequently, he was found guilty by the jury on 14 May 2021. For the offender it was submitted that this delay had a twofold role to play in sentencing.
First, it was submitted that the delay led to the fact that the offender did not have the opportunity to be sentenced on this matter at the same time as he was sentenced in this Court for a robbery in company offence committed on 4 October 2014. In respect of that offence, on 24 July 2017, he received a sentence of five years and three months with a non-parole period of three years and nine months, which sentence was backdated to commence from 7 October 2014. The gravamen of the offender's submission was that there would have been some degree of concurrence with the current offending, had both matters been brought before the Court at the same time.
It was submitted that, bearing in mind the principle of totality, arguably a significant part of the sentence for which he comes before me today, would have overlapped with the custodial sentence he received for the robbery in company matter in 2014. This argument then proceeded to the conclusion that the delay unfairly operated against the interests of the offender.
It is notoriously difficult to attempt any form of mathematical calculation of the effect of the disadvantage which the offender suffers in this regard, although I do accept that, in concept, it is a matter which should be brought into account in the sentencing process, and I shall do so.
Secondly, it was suggested that the offender had shown good signs of rehabilitation. This contention was based on the proposition that, when he was in the community for the year between 9 July 2018 and his arrest on 18 July 2019, he managed well in independent living, and did not offend in that period while on parole.
Mr Buckman drew my attention to authority for the proposition that rehabilitation undertaken by the offender during the period of delay may affect the sentencing exercise by lessening the significance of general deterrence (PH v R [2009] NSWCCA 161 per Howie J at [32]). Mr Buckman's submission, however, realistically concluded with an acceptance of the fact that the offender's lengthy criminal history may lead to a conclusion that the Court might be guarded as to the offender's prospects for rehabilitation.
Again, realistically, the submission of Mr Buckman was that "he at least appears to have shown some positive signs when last on parole in the community."
I shall return to this submission in the context of my consideration of the offender's prospects for rehabilitation.
[14]
Parity
It was agreed by the parties that considerations of parity and totality were of significance in the sentencing task which confronts me. The co-offender Dunn pleaded guilty to his role in the offending, and he received a 25% discount to reflect the utilitarian value of that plea. On 4 February 2021, Dunn was sentenced to a term of imprisonment of five years and three months, with a non-parole period of three years. That sentence was to date from 4 May 2020.
The consequence of this sentence was that there was a significant overlap between that sentence, and the other sentences that the co-offender Dunn was serving at that time, the non-parole period of which, at that stage, was not due to expire until 3 November 2021.
The practical consequence of the accumulation in sentences, in broad terms, was that a non-parole period of approximately 18 months can be seen to be entirely referrable to the co-offender Dunn's participation in the armed robbery offence with which I am concerned.
Mr Buckman submitted that Dunn had committed significant offences in 2018, being an aggravated break, enter, and steal, and a further series of stealing offences, all of which were committed while on parole. This, the submission continued, led her Honour Judge Beckett, who sentenced the co-offender Dunn, to say that these factors which were such as to disentitle him to leniency. Mr Buckman pointed out however, that the co-offender Dunn also had a deprived background and traumatic upbringing, which her Honour brought to bear in sentencing the co-offender as a factor to lower his moral culpability, and in moderating the weight to be given to general deterrence.
In the instant case, it was submitted on the offender's behalf that the Court should note that the offender has served a lengthy custodial sentence for a different offence immediately after the commission of this offence, and that unlike his co-offender, he did not reoffend while on parole.
The Crown contended in relation to issues of parity that the offender should be taken to have had a more important and prominent role in the robbery. It was submitted that it was the offender who had the replica gun, and that he appeared to be dictating what was happening. It was brought to my attention that this was consistent with Judge Beckett's findings in relation to the respective roles of the two offenders.
I accept the Crown's contention in this regard, though I do not see the extent of the differentiation between the roles of the two offenders to be so marked as to play a material role in relation to the issue of parity.
[15]
Prospects of Rehabilitation and Risks of Reoffending
It is difficult to be confident about the offender's prospects for rehabilitation, and his risk of reoffending. As to the latter, the Sentencing Assessment Report obtained in relation to the offender assessed his risk of reoffending as being in the medium to high range. As I have earlier indicated, Mr Buckman realistically submitted that the Court ought to be guarded as to the offender's prospects of rehabilitation.
The Crown also said the offender's prospects for rehabilitation were to be considered as guarded based primarily on the offender's history of drug addiction.
While the Crown's contention is understandable, it seems to me, however, that it would be wrong to downplay the offender's prospects of rehabilitation unduly. It would certainly be inappropriate to disregard them.
It is in my opinion important, in that regard, to note that the offender informed Mr Machlin that, at age 16, he succeeded in locating his mother, and was about to make contact with her when she died of tuberculosis. About 12 years later, in 2000, Link-Up (NSW) Aboriginal Corporation put him in touch with his mother's side of the family. His maternal extended family live in the Barunga area, which is near Katherine in the Northern Territory. The offender described to Mr Machlin feeling connected to his people, and he expressed a strong desire to go to Barunga to be among them upon release.
As I have previously indicated, that while at present he remains on methadone treatment, he is aiming however to reduce his intake of methadone to zero in preparation for visiting his people in Barunga, where methadone treatment would not be available to him.
When last at liberty, the offender reported progressing well in his rehabilitation. In that regard he was assisted by weekly visits to the Rainbow Lodge in Glebe. Rainbow Lodge provides transitional housing and a range of community support services for men after their release from incarceration, with a specific focus on aboriginal support, and links to aboriginal services. The offender has expressed a desire to return to Rainbow Lodge upon his release.
In my view, there are accordingly some positive signs in relation to the offender's prospects for rehabilitation. The offender is now a mature man and has expressed a determination to cease his antisocial ways. As I have indicated, on the last occasion in which he was in the community he appears to have made some progress in that regard. Further, he appears to have achieved a freedom from the drug addiction, which can self-evidently be seen to be the root cause of his past offending.
The Crown, in fairness, did not put into dispute that the offender's opioid disorder was in remission, and that it was under control with methadone treatment.
I am also cognisant of the offender's desire to reconnect with his extended family in Barunga in the medium term, and I see that as a goal which may assist him in carrying his aspirations for rehabilitation into reality.
In conclusion therefore, while I too remain somewhat guarded as to the offender's prospects of rehabilitation, I do not reduce them to the point of insignificance. To the contrary, I am prepared to give the offender a substantial benefit of doubt as to that matter in the sentencing process.
As I have earlier referred, I will also bring the positive signs of rehabilitation, which were raised in relation to the issue of delay, to bear in the manner in which Mr Buckman pressed upon me.
[16]
Gaol the Only Option
There was no submission that anything other than a full-time custodial sentence was appropriate, which proposition could hardly be gainsaid, and I so find for the purposes of section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[17]
Special Circumstances
It was submitted on behalf of the offender that I should find special circumstances. This was put on the basis that the offender will undoubtedly need significant ongoing counselling to deal with his identified psychological issues, and to assist in preventing him from relapsing into a life of drugs and crime.
It was also submitted in this regard that a lengthy period of parole would further be appropriate, given the significant portion of his adult life which he has lived in custody, and as such there is every reason to believe that he would need an extended process of supported integration back into the community.
I accept these submissions, which in fairness were not put in dispute by the Crown, and I shall proceed to sentence accordingly.
[18]
Sentence
In setting forth the following sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offence. The aggravating and mitigating factors to which I have referred have also been taken into account.
In arriving at the sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51].
[19]
Appropriate Start Date for Sentence
The Crown initially sought to convince me that the sentence which I am about to impose should not backdate to the date of his arrest, which was 18 July 2019. This submission was based inter alia on a suggestion that the offender was on parole at the date of his arrest, which was later withdrawn.
In my view, the interests of justice dictate that any sentence backdate to his date of arrest.
Paul Jackson,
1. You are sentenced to a term of imprisonment of 3 years and 8 months, with a non-parole period of 2 years and 2 months.
2. I direct that such a term of imprisonment shall commence on 18 July 2019 and that the non-parole period shall expire on 17 September 2021, with the balance to expire on 17 March 2023.
[20]
Amendments
19 August 2021 - Correction to case citation
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Decision last updated: 19 August 2021