R v Jackson

[2022] NSWDC 450

District Court of NSW|2022-10-05|Before: Howie J, Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-10-05

Before

Howie J, Mr P

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Background

Between 2001 and 2005, there were a number of armed robberies in the Central Coast. A police Strikeforce 'Braithwaite' was formed to investigate the robberies. One of those burglaries occurred at a jewellery store in Erina on 25 October 2001, and it is this which gives rise to the present sentencing proceeding.
The offender is before the Court, following pleas of guilty, for sentence for two offences committed on that day and place, being that he: 1. robbed Robert Hain of $55,000 in cash and jewellery, the property of Roberts Jewellery, whilst then being armed with a dangerous weapon (a shortened rife), contrary to s 97(2) of the Crimes Act 1900 (NSW) (the 'aggravated robbery offence') and 2. maliciously discharged a loaded firearm with the intent to prevent the lawful apprehension of himself, contrary to s 33A(1) of the Crimes Act 1900 (NSW) ('the firearm discharge offence')
A report of the offender's involvement in that burglary only came to light through an ERISP of a police informant in 2018.
The charge of aggravated robbery was count 1, one of four counts, on an indictment that was due to be tried before a Jury on 4 October 2022. But at a call-over on 29 September 2022, the offender entered into a plea of guilty to that offence. The firearm discharge charge was the subject of an ex officio indictment filed on 29 September 2022 and the offender elected to plead guilty to that charge on 29 September 2022. The Crown accepted the pleas, and the admission of guilt on the Form 1, in full satisfaction of the counts on the indictment that had previously been filed.
At the date these offences were committed, the maximum penalty for the aggravated robbery offence was 25 years' imprisonment and the maximum penalty for the firearm discharge offence was 14 years' imprisonment. Neither offence carried a standard non-parole period.
The offender adhered to his pleas of guilty for these offences at this sentencing hearing. The offender also has also admitted his guilt and asked the Court to take into account for sentencing on the aggravated robbery offence, an offence on a Form 1, being that of allowing himself to be carried in a conveyance knowing that it had been taken without the consent of the owner, contrary to s 154A(2) of the Crimes Act 1900 (NSW) (the 'additional offence'). By the terms of that provision, that offence was deemed to be the offence of 'larceny' and, at the date of the offending, (by s 117 of the Crimes Act) the offence of larceny carried a maximum penalty of 5 years' imprisonment (there being no statutory non-parole period).

[4]

The additional offence

A blue Holden Commodore, with registration number XMA-889, parked in front of the shop. Two men got out of the vehicle; and a third man remained in the driver's seat of the car.
None of the men owned the car. The owner of the vehicle was Albert Cartwright. He had parked the car earlier in the day, between 11am and 1pm and had parked it outside the Munmorah Bowling Club. But when he returned to this place, he discovered that his car was not there.
Whilst working in the store, Robert Hain heard the door of the shop open loudly and saw two men running into his store, yelling out to the staff 'Don't move!'. He immediately stood up and walked backwards from the work bench. One of two men jumped the counter, whilst the other, who was armed with a short rifle, walked around the show cases, through the doors that led to the workshop. It was the offender who was the man with the rifle.
The offender's face was substantially concealed through his use of a dark-coloured balaclava and clear coloured safety glasses under the balaclava. But Mr Hain recalled that the skin under the glasses was slightly darker than olive and described the offender as having a slim build and small frame; and also as having an Australian accent.
The offender pointed the firearm at Mr Hain's stomach - no less than half a metre away - and yelled several times "Where's the cash?". Mr Hain indicated that it was "in the till". The offender moved the firearm and pointed it at all the staff. He then pointed it at Mr Hain's 15 year old son and asked him "Where's the money?". The son again told him that it was in the till.
The other male then unlocked the safe and pulled out the top drawer of the safe, containing the customer job packets which contained repaired or newly completed jewellery items; before locating two other safes in the office area. Those safes contained diamond jewellery and diamonds.
The offender was still yelling out 'Where's the cash' and the son yelled out "It's outside".
The offender and the other man then went outside the display area of the shop and opened the till, as Mr Hain and the other jewellers remained out the back of the shop (in the workshop and office area). Mr Hain then activated the panic button located near the doorway from the display area to the workshop.
The offender and the other man then left the shop together and returned to the blue Commodore. The offender got into the rear passenger seat and the other man got into the front passenger seat. One of the two jewellers in the store ran out of the store and observed the registration plates.
The offender and the other man stole cash estimated to be $1,700 and jewellery whose value was estimated to be $55,000.

[13]

Age, background

The offender was 29 years of age at the date of the offending. He is now 50 years of age. The following account of his background is largely taken from reports from two psychologists, the first being Professor Ian Coyle and from another psychologist, Mr John Machlin. Professor Coyle believed that the history he received, which principally formed the basis for his opinions, was genuine. Mr Machlin interviewed the offender, via AVL, whilst the offender was in custody. Professor Coyle's report is now over 3 years old (being dated 2 September 2019). Mr Machlin reported on 9 June 2021. I infer that Professor Coyle's report may have been prepared to assist the offender with a compensation claim; as indicated by the identity of the solicitors who instructed him, some of the questions directed for the expert's consideration and the expert's main conclusion as to the causal potency of various acts contributing to the offender's psychological injuries.
He was taken away from his mother, an indigenous Australian, by his father, who was not indigenous Australian, when he was a baby; as the parents separated. His father took him to Darwin. He received little care from his father, who had a new family to look after, was also hard working and otherwise spent much time at the local pub. He went into the care of his grandparents for a time, before he was sent to Coventry Home, a place in Armidale administered by the Church of England; owing to the difficulties that the grandparents had in looking after him. There, the offender reported, he was sexually and physically abused; the sexual abuse being mainly perpetrated by members of the church. The details which the offender supplied to Professor Coyle, as the latter chronicled in his report, certainly make for harrowing reading.
He was released from Coventry when aged 13. He went to live with his grandmother (who the offender identified as his only close attachment figure) when aged 13 (after his grandfather had died) and from about that time, he began to experiment with drugs, starting with cannabis before progressing to amphetamines and eventually heroin. He became a heroin addict by his late 20s and remained that way for a number of years. The need to feed his addiction precipitated his getting into trouble with the law, including violent crimes such as armed robbery and personal violence offences. He started to steal and received periods of incarceration in detention centres, such as Worimi Shelter (at Broadmeadow, near Newcastle), Mount Penang Training Centre (at Kariong, near Gosford) and the Minda Remand Centre (in Lidcombe). Sadly, he became subject to more psychological (though not physical or sexual) abuse; which caused him to take further refuge in drugs and alcohol.
Mr Machlin indicated that he had abstained from drugs in more recent years, aside from one relapse and stabilised on methadone.
His education was disrupted by frequent moves. He had attended three high schools before the end of year 10. With the record that he had, which saw him spend 28 years in incarceration, he has had only limited employment in unskilled jobs, such as bricklaying and earth moving.
The offender formed a relationship in his teens and fathered a son who is now aged 29. When he was last at conditional liberty, his partner was battling a drug addiction. His son is also currently in custody.
When last at liberty, he received assistance for his accommodation from the Rainbow Lodge, in Glebe. He hopes to return there when next released.

[14]

The relevance of Bugmy principles

At the forefront of the offender's submissions was his reliance upon certain psychological orders which, it was said, engaged the principles from Bugmy v R (2013) 249 CLR 571. The presence of psychological conditions was supported by reports from Professor Coyle and Mr Machlin.
Professor Coyle reported being informed by the offender that he had been physically, sexually and psychologically abused whilst a resident of Coventry Home and incarcerated at the Worimi Shelter and Minda Remand Centre. This led, in the expert's opinion, to his developing PTSD, and comorbid Major Depressive Disorder with Anxious Distress and comorbid Antisocial Personality Disorder. These conditions, in turn, directly caused his substance abuse and ensuing criminal behaviour; and the substance abuse, in turn, exacerbated his psychological factors.
A matter of some significance to the application of Bugmy principles was Professor Coyle's evidence of his challenging the offender as to why he had not sought help and the offender's response was a sense of shame, embarrassment and belief that no one would believe him. To Professor Coyle, this was a typical response of victims of institutional child sexual abuse.
Mr Machlin had the benefit of reviewing Professor Coyle's report. Essentially, Mr Machlin endorsed Professor Coyle's diagnoses, or some of them, finding that the offender suffered from PTSD, Antisocial Personality Disorder and Opioid Use Disorder; with the last two conditions being in remission or remitting. The PTSD was chronic; although Mr Machlin noted that his condition had improved through the offender's capacity to learn to manage without heroin. In contrast to Professor Coyle, Mr Machlin did not regard the offender as suffering from active depressive condition. Importantly, Mr Machlin agreed with Professor Coyle that there was a strong link between the offender's childhood background of abuse and deprivation and subsequent offending, including, presumably, the index offending.
Mr Machlin raised the question of the offending but said that the offender had made no admissions. The offender did, however, indicate an unclear memory of his drug habits at the time of offending.
The offender's Counsel submitted that on the evidence of these psychologists, the Court should apply Bugmy principles and in particular, recognise, in the offender's favour, the causal connection between the offender's exposure to various forms of disadvantage from a young age and his drug taking and consequent criminality, as impacting upon his culpability and moderating the weight to be given to general and specific deterrence in the synthesising of sentencing considerations.
The Crown did not dispute that submission, whilst noting that the weight to be placed on Bugmy principles was a matter for the sentencing judge.
I accept, unreservedly, the proposition that Bugmy principles are engaged, in the sense articulated on the offender's behalf. It is important, also, to note that they are not diluted on account of the offender's omissions to either get help or because of his past criminal history. As the High Court emphasised in Bugmy, the effects of childhood disadvantage are usually enduring and it is not inherently surprising, in the circumstances, that he did not seek out professional help to aid his rehabilitation.
However, as the plurality recognised in Bugmy at [44], the principles are not all one way, in terms of indicating a more lenient sentence then would otherwise be imposed. An inability to control a violent impulse, because of frustration, may heighten the importance of protecting the community from the offender. Moreover, the presence of a prior significant criminal history, might reduce the likelihood that effective rehabilitation can protect the community

[18]

Rehabilitation prospects and likelihood of reoffending

Professor Coyle regarded the offender's psychological conditions as being chronic. He believed that there was little or no prospect of his recovering from the Major Depressive Disorder with Anxious Distress or PTSD, respectively. His Antisocial Personality Disorder was in remission and would likely remit further as he aged. His employment prospects have, in turn been irretrievably diminished. Further, his capacity to interact with people is limited.
At the time he wrote his report, Professor Coyle thought that the offender would need weekly psychological treatment; after which he would require monthly counselling. This would need to be supplemented by psychiatric assessment for the purpose of prescription of medicines.
Somewhat at odds with Professor Coyle's views, the offender reported to Mr Machlin that he got on well with people, at least within the correctional centre that he had been in since his arrest for the index offending. As noted, Mr Machlin indicated that the offender had generally abstained from drugs and it appeared that, upon his release, he said he thought he could return to the Rainbow Lodge for his accommodation. Mr Machlin also considered that the offender had progressed significantly, in his rehabilitation, since 2014.
He has phone contact with his ex-partner and also rings his son when his son is not in custody, but otherwise the offender has little social support.
Mr Machlin believed that the offender's prognosis and vulnerability to relapse was difficult to estimate and depended upon his progress in the community. He required the assistance of state housing and needed to continue his methadone treatment and reconnect with the Rainbow Lodge.
I am cognisant of the offender's demonstration of some rehabilitation in the period between his release from gaol after a sentence expired on 9 July 2018 until his re-arrest for the index offending on 20 July 2019; particularly in his management of his drug disorder and capacity to enlist the assistance of the Rainbow Lodge in helping him with his accommodation. His conduct in this narrow period indicates that his position is not hopeless. Further, his conduct in this period aids the offender in the length of the appropriate non-parole period.
Further, I place some greater weight upon the views of Mr Machlin in relation to his current conditions, relative to Professor Coyle. Notwithstanding the very learned exposition from Professor Coyle, which I have found very useful, Mr Machlin's views, in this particular respect, are more current. I have noted that Professor Coyle's views appeared to be sought in relation to a compensation claim whilst Mr Machlin's views more focused on his rehabilitation prospects and likelihood of reoffending. There was, a risk, at least, of unconscious bias in elevating the extent of the offender's psychological disability, in Professor Coyle's report.
The offender's Counsel submitted that when last out on parole, the offender had been showing some 'positive signs'. He was in stable accommodation and visited the Rainbow Lodge regularly. He was stable on his methadone medication.
The offender's Counsel encouraged me to have regard to sentencing remarks of Weber SC DCJ on 12 August 2021 when sentencing the offender for other offences committed in 2014. One of the matters which his Honour noted (at [83]-[84]), which was relevant for the assessment of his rehabilitation, was a sense of connection which he had fostered with Barunga, near Katherine in the Northern Territory, and his hopes to go there upon his release. His Honour regarded that, as one of the positive signs for his prospects of rehabilitation. With respect, I agree.
Nevertheless, I find that his rehabilitation prospects are guarded; a finding which the offender's Counsel did not cavil with.

[19]

Delay

The offender's Counsel submitted that the sentencing is to take place in regard to offences which were 'stale'. They were committed in 2001. This, it was argued, with reference to the authority of R v Todd [1982] 2 NSWLR 517 called for a flexibility in approach. The offender's Counsel submitted two matters in particular.
First, the offender did not have the opportunity of being sentenced at the same time as he had been dealt with for other serious offences, being those committed in January 2006 and October 2014, for which he received lengthy terms of imprisonment for similar criminal conduct.
Secondly, following his release from prison on 9 July 2018, he had shown some good signs of rehabilitation until his arrest on 20 July 2019; a period of just over a year.
It is notable that the offender's Counsel did not generally cite the period of delay from the offender's arrest in July 2019 to the date of sentencing, being a period of 3 years, 2 months and 15 days which, it might have been said, was due to the exigencies of the criminal justice system. On this aspect of the offender's submissions regarding the delay, the period - just over a year - was clearly much narrower. It is also to be noted that no point was taken that delay between the commission of the offences and sentencing gave rise to some form of prejudice to the offender because of such things as any intervening changes in sentencing law or practice.
The offender's Counsel referred to the evidence of Mr Machlin which, it was said, noted that he had progressed well since he was last at liberty (which might be taken to be from July 2018), in the sense of assistance he was getting from his housing and the stabilisation of his drug addiction "in recent years"; which might be taken to have embraced the period before his release in July 2018 up to the date he was assessed by Mr Machlin in June 2021 (a period of 2 years after his arrest and re-entry into custody).
Delay may be relevant if the offender could establish, on the probabilities, that (a) he had been left in a state of uncertain suspense; and (b) had demonstrated progress towards rehabilitation. However, it is well-settled that the only relevant period of "suspense" is the period after the arrest or some other indication has been given by someone in authority that the offender is likely to be prosecuted. An offender who remains silent in the hope that offending may not be detected would not satisfy the former of these two requirements (R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]).
Relevant to this question is the context described at the outset of these remarks. The offender was arrested for the index offences in July 2019. He did not make any admissions about his offending, even to his psychologist. But for the informant's assistance to authorities, it is doubtful the offender would have been subject to the charges at all notwithstanding that this robbery was part of a number of unsolved robberies occurring in the Central Coast in a period encompassing the index offending. If he missed out on being sentenced at an earlier point in time than now, the offender has no one to blame but himself for that state of affairs.
The Crown submitted that the offender's past history disentitled him to leniency that would otherwise be extended between the offending conduct and sentence.
I consider it appropriate to make some allowance to reflect this mitigating factor between the time of the offender's release and the time of his arrest, but it is very slight. There is nothing to indicate that the offender ordered his affairs in that very narrow period in the expectation that he would not be apprehended. The length of the period is, all things considered, narrow and his demonstration of rehabilitation within this narrow period has already been taken into account in my assessment of his general prospects of rehabilitation, as explained earlier in these remarks.

[21]

The guideline judgment for the aggravated robbery offence

An offence under s 97 was the subject of a guideline judgment in R v Henry (1999) 46 NSWLR 346; though of course, as the Chief Justice had indicated, the guideline judgment served to be just that; not a 'tramline'. The Crown focussed its submissions with reference to this guideline judgment and the offender's Counsel did not suggest that it was wrong for the Crown to do so. It has been held that a sentencing judge is entitled to take into account the Henry guideline judgment as a means to assess the seriousness of an offence under s 97(2): R v Hamied [2007] NSWCCA 151 at [110] - [13].
In comparing and contrasting this case with the 'typical' features identified in Henry, the Crown submitted that: 1. the offender was not young (he was 29 years old), and he had an extensive criminal history; 2. the offender had a dangerous weapon in his possession, being a shortened rifle; 3. there was more than limited planning: the offender (and a co-offender) arrived in a car driven by the informant; which had been parked in a position so as to enable a quick getaway - there was but a short distance to another motor vehicle utilised to complete their escape; 4. there was no actual violence; but there was the real threat of violence (the Crown acknowledged that the threat of violence was inherent to robbery, but argued that the presence of this factor remained relevant to assessing the objective gravity of the offending); 5. the victim (and his staff) were vulnerable in the relevant sense; being situated in a confined area at the time of the robbery. In other words, there were multiple victims, and the sentence should acknowledge harm done to each of those victims.; 6. The amount stolen, being $55,000, in cash and jewellery was more than small; 7. The offender's guilty plea has spared witnesses from relieving their past experience. Further, although a number of the staff in the jewellery store had passed on does not derogate from the circumstance that there were multiple victims at the time.
The offender's Counsel referred to a late DNA match, which, in a sense, topped the scales between a weak or weaker case and a stronger case to which he pleaded guilty to.
Other matters relevant for a case of armed robbery under s 97(2) are: 1. nature of the weapon; 2. vulnerability of the victim; 3. position on a scale of impulsiveness/planning; 4. intensity of threat, or actual use, of force; 5. number of offenders; 6. amount taken; 7. effect on victim(s).

[26]

Consideration

As to the offender's prior criminal history, this has already been factored into evaluation of the Henry guideline criteria. In particular the circumstance that the offender did not have "no or little criminal history" makes the offender's position worse, relatively to the paradigm offender identified in the guideline and thus most susceptible to a more severe penalty. Otherwise, as indicated earlier in these remarks, I prefer to regard the criminal history as disentitling the offender from leniency for reasons there advanced.
As to the factor concerning the offending being in company, as applicable to the offence for aggravated robbery, in my view, there is a concern about whether De Simoni principles [1] and/or those of procedural fairness may be infringed. As the text makes clear, the basic robbery offence under s 97(1) could include the circumstance of the robbery "being in company with another person" as an element of the offence. The basic offence could also include, alternatively, the offender being "armed with an offensive weapon". An offensive weapon is defined broadly to include, amongst other things, a dangerous weapon. What aggravates the basic offence, under s 97(2), is the fact the offender was armed with a dangerous weapon.
The count on the indictment, to which the offender pleaded guilty, selected the latter option; but it was something of a tautology: being armed with an 'offensive weapon' - an element of the basic offence - was one and the same as being armed with the 'dangerous weapon' (s 4(1) of the Crimes Act), which aggravated the basic offence. The prosecutor could have identified, as the basic offence, a charge that the robbery occurred in company with another person, and then cited the fact of the offender being armed with a loaded firearm - a 'dangerous weapon' - as the factor which, for the purposes of s 97(2), aggravated that basic offence. If s/he did, there would be two different factors at play: the fact of the offence occurring in company (as an element of the basic offence under s 97(1)) and the fact of being armed with a dangerous weapon, as the factor aggravating the basic offence) rather than one (being armed with an 'offensive' weapon and being armed with a 'dangerous weapon') and therefore more serious. Accordingly, in my view, it could infringe De Simoni to treat the fact that the offence was committed in company as aggravating the aggravated robbery offence and I decline to do so. On the other hand, the circumstance that the offender went into the jewellery store with another (co-offender) did make his offending more objectively serious as this was apt to instil greater fear in the occupants of the jewellery store. And I have regard to the matter in that way, rather than as an aggravating factor.
I note that the circumstance that there was a co-offender, or that the offending occurred as part of a joint enterprise, has, to some extent, been taken into account in the guideline factor that addressed the nature and extent of the planning.
As to the presence of the child, again, care needs to be taken to avoid double counting. I would treat the son as being one of several 'vulnerable' people within the jewellery store. Nevertheless, it has been recognised that this aggravating factor can arise where there are, as is the case here, multiple victims, and one of them is a child (Lloyd v R [2017] NSWCCA 303 at [69]-[70]). I accept that it is inherently likely that a violent crime perpetrated primarily against a parent who operates a small business, in front of the parent's child, will be emotionally deleterious to the child and accept that this aggravating factor applies. This inference is supported by the content of Mr Gavin Hain's statement.

[28]

Parity

A co-offender, identified by the pseudonym 'John Black', made statements to police which led to the offender's apprehension. John Black was the getaway driver, who remained in the vehicle, when the offender and another co-offender entered and robbed the jewellery store and thereafter facilitated their escape from the crime scene.
On the eve of this sentencing date, the Commissioner for Police applied for an order vacating earlier orders of the Court to effectively remove the suppression of John Black's real name. That order was made by consent, but the informant's real name was never disclosed to the Court. Given that the Commissioner sought only the revocation of the pseudonym, it is for this reason that in these remarks I have referred to the informant generally as the 'informant.'
The informant was sentenced by this Court in December 2019 for several offences, including the aggravated robbery offence, to which a substantially similar additional offence (driving a conveyance without consent) was linked, arising from the same burglary which occurred on 25 October 2001. The informant was also sentenced for other offences occurring on different dates.
He received a combined discount for his guilty plea and for his assistance to authorities in the proportion of 60% (25% for guilty plea; 20% for past assistance and 15% for future assistance). The sentencing judge recognised that, although part of a joint criminal enterprise (with this offender and another co-offender), the sentencing judge identified the informant as being the 'getaway driver'. I note also that on the agreed facts in this case, it was agreed that the informant had said that he was pressured into becoming involved. The offender did not take the opportunity in this sentencing hearing to challenge the informant's assertion in this regard. These matters would support a view that, based only on a comparison in roles between the informant and the offender, the former was less culpable: R v Alameddine [2004] NSWCCA 286 at [252].
The indicative sentence for the aggravated robbery offence, for the informant, prior to the combined discount, was 8 years and after the (combined) discount, reduced to 3 years. The indicative discount for the drive conveyance offence, prior to the combined discount, was 12 months; and after the discount, reduced to 5 months.
The Crown noted that a comparison of the informant's criminal history with the offender's criminal history and background was essentially the same. Another similarity is that both the informant and the offender had heroin addictions which had contributed to their earlier criminal careers.
The offender's Counsel acknowledged that parity was an issue for the Court to consider and submitted that Bugmy principles were relevant to this offender which did not appear to be the case for the informant and emphasised the time that the offender had spent in custody over the last 20 years.
Although it is true that the offender's moral culpability has been reduced on account of Bugmy principles, for reasons already remarked upon, it is also the case that the informant's lesser role in the offending had reduced his culpability, relative to the offender (and the co-offender). Further, by reason of being only a getaway driver, with what that entailed, certain aggravating circumstances attending the offending (such as the offending involving the threat or use of a weapon and occurring in the presence of a child) were not quite so applicable to the informant as they were to the offender and the co-offender. The informant also had a finding of strong prospects of rehabilitation, which is not available to this offender. For the aggravated robbery offence, the informant also received a greater discount on his guilty plea, relative to the discount I consider is appropriate to this offender.
Another difference is that whereas, in the case of the informant, he received an indicative sentence for the driving without conveyance offence (contrary to s 154A(1)(b) of the Crimes Act) (being for 12 months, prior to the combined discount), the offender asks the equivalent offence to be taken into account on a Form 1 to be taken into account on the penalty for the aggravated robbery offence. As indicated earlier in these remarks, other things being equal, given the elevation of specific deterrence and retribution to the aggravated robbery offence by reason of the commission of this additional offence, it would be expected that the indicative sentence for the aggravated robbery offence would be inflated relative to the indicative sentence imposed against the informant.
I take all these differences into account, when applying the parity principle, which, in combination, and on balance, results in a more significant indicative sentence for the aggravated robbery offence than that which was imposed against the informant.

[29]

Instinctive synthesis

I take into account the maximum penalties for the offences, the considerations in s 3A of the CSP Act and the guideline judgment (for the aggravated robbery offence). For the aggravated robbery offence, I also take into account the additional offence, which elevates specific deterrence and retribution.
Looked at in isolation, both offences were very serious instances of offending for the relevant offences which, as indicated by the maximum penalties, themselves already were very serious. The most important consideration is one that sees the offender adequately punished, in the sense of the penalty being proportionate to the offending, overall. There were certain other aggravating circumstances at play. But, as explained, the presence of Bugmy factors serves to somewhat reduce the seriousness of the offending (on account of a reduction in his culpability) and moderates general and specific deterrence. I also take into account his prospects of rehabilitation, guarded though they are. But the sentence also reflects the significance I attribute to the need to protect the community and, notwithstanding his childhood disadvantage, still holding the offender, then of 29 years of age, to account, for his offending and thereby acknowledging the harm instilled in the victims. Further, retribution and denunciation remain relevant.
It was implicit in the offender's Counsel's submissions that the s 5 threshold has been crossed. I agree.
I find that the indicative sentences (taking into account the different discounts for the guilty pleas - 10% for the aggravated robbery offence and 25% for the firearm discharge offence - and the additional offence for the aggravated robbery offence) are: Aggravated robbery offence: 8 years' imprisonment Firearm discharge offence 4 years' imprisonment
I must apply the principal of totality. There is a basis for some concurrency, given that the firearm discharge offence occurred substantially as part of the same episode. However, the sentence should reflect some accumulation to acknowledge the different nature of the offending and the different victims. The aggregate sentence I impose is intended to reflect the offender's criminality overall.
The offender's counsel submitted that a finding should be made of special circumstances. A longer than normal period on parole is needed to provide adequate counselling for his psychological issues and to prevent his relapsing into crime. This was notwithstanding his 'entrenched recidivism' (an expression borrowed from what Fullerton J said in Jackson v R [2010] NSWCCA 162 at [25]) and the seriousness of his offending. It would at least give the offender hope to plan for his return to the community in the not too distant future. I accept those submissions.
The sentence will be backdated to account for the offender's period in custody, which commenced on 20 July 2019.

R v Jackson

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (1)