R v Lemene

Subjective Factors 54 The applicant is now thirty years of age. He is the only child of his biological father, and has two half brothers. 55 The applicant has had an unstable and insecure childhood. He stated that he was sexually assaulted as a child, and would often suffer bashings from both his non-biological father and mother. These bashings would occasionally result in the applicant having to go to hospital. As a boy, these incidents led to him having several nightmares and headaches. 56 When the applicant was about fourteen years of age, his mother informed him that the person he knew as his father was not in fact his biological father. This revelation led to the applicant leaving home, causing him to survive on the streets. 57 The applicant has unfortunately received a relatively limited education. During the latter years of primary school, and on his entry to high school, the applicant exhibited disruptive behaviour. He began to truant from school, and his grades declined, with the overall result being that he has been educated only to a year 8 level. In an interview with forensic psychiatrist, Dr Westmore, the applicant stated that he would often not go to school after there were large fights at home. 58 The applicant has spent a significant number of years institutionalised. Between 1983 and 1988, he had continually spent periods in a boys' home. In 1988, the applicant was, for the first time, admitted to an adult prison for the theft of a car. Since 1988, the applicant has reportedly spent time in prison every year, with the consequence that he has not spent a full twelve months in the community. 59 For the purposes of the appeal and for re-sentencing, two reports on the applicant, prepared by Dr Westmore, were admitted. This evidence set out a very sorry history of the life of the applicant, some of which has been set out above. Dr Westmore found that the applicant suffers from an anti-social personality disorder, arising from his early childhood development. He did not find any major depressive traumas. 60 At page five of the report of 5 June 2000, Dr Westmore said: "Your client is an extremely disadvantaged person. He is disadvantaged socially, educationally, occupationally, psychologically and probably at times in the past psychiatrically in that he suffered from depression, he suffers substance abuse and he has personality difficulties of significant magnitude."

Dr. Westmore recommended an extended rehabilitation from a psychiatric perspective, but conceded that the Department of Corrective Services can seldom provide the level of assistance that the applicant requires. Dr. Westmore found that the longer the applicant remained untreated, the more difficult his treatment would be and the more uncertain his outcome would be. 61 It was conceded by counsel for the applicant, that authorities concerning the use of a blood-filled syringe, such as R v Hodge (Unreported, NSWCCA, 2/11/1993, Hunt CJ at CL, Allen J and Loveday AJ), together with the vast number of offences, placed the applicant's criminality at a very serious level. 62 Sentences imposed for serious multiple offences range considerably, but nonetheless demonstrate that the highest level offence has generally been in situations involving the gravest aggravation, such as the injuring of a victim or the locking of victims in a safe: R v Jenkyns (Unreported, NSWCCA, 19/5/1993, Sheller JA, Wood and Sully JJ); R v Gardner (Unreported, NSWCCA, 12/4/1994, Carruthers J, Abadee and Blanch JJ). 63 There have been relevant guideline judgments published relating to some of the elements in these present offences. In particular, in R v Henry and Ors (1996) 46 NSWLR 436, the Court of Criminal Appeal established a guideline of four to five years full term for this type of offence. However, that was in relation to young offenders with little or no criminal history. It must be remembered that in the present case, as against R v Henry and Ors, the applicant had an appalling criminal record and also committed the offences whilst on conditional release for a previous offence. 64 A further guideline judgment, R v Thompson; R v Houlton [2000] NSWCCA 309, sets out discounts that should be given for a plea of guilty. This is difficult to apply in the present case, as so many of the offences have been proved solely on the admission of the applicant. 65 Taking into account and giving appropriate reduction for the pleas of guilty and the limitations on the Court's power to act leniently, arising from the applicant's long criminal record and the aggravating factor that the offences occurred whilst the applicant was on conditional release, it seems to me that the proper sentence to fix for each of the nine offences which do not have the Form 1 matters taken into account, is five years full term. This Court now has available to it, s55 of the Crimes (Sentencing Procedure) Act 1999, a provision that permits partial accumulation of sentences, in imposing a total sentence which reflects the principle of totality. The learned sentencing judge did not have that power. 66 In relation to the robbery offence that took into account the thirty-two Form 1 offences, almost all of which are of the same order of seriousness as the present offence, it seems to me that the proper full term for that offence is twelve years. This takes into account the plea of guilty and the subjective factors and the concern expressed by Dr Westmore in relation to the further institutionalising of the applicant, who has already been significantly institutionalised. I will also deal with these factors when dealing with special circumstances in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 in relation to this offence. I would impose sentences as follows: · For Counts 1 and 3 relating to robbery contrary to s95(1) of the Act, I would fix a sentence of five years to commence on the date of the applicant's imprisonment on 10 November 1998. · In respect of Counts 4 and 6-10, being the six offences of robbery whilst armed with an offensive weapon, contrary to s97(1) of the Act, I would fix in respect of each offence, a fixed term of five years, all of which will commence on 10 November 2000 and to be served partly concurrently with the previous sentences and concurrently with each other. · In respect of the break, enter and steal in circumstances of aggravation contrary to s112(2) of the Act, I would impose a sentence of five years to commence on 10 November 2001 to be served partly concurrently with the previous sentences. · In respect of count 2, robbery whilst armed with an offensive weapon, to which 18 counts of armed robbery; 10 counts of armed robbery in company; one count of possess a prohibited weapon; one count of robbery with a dangerous weapon; one count of possess prohibited weapon; one count of larceny of a motor vehicle; and an associated count of take and drive a motor vehicle; I would impose a sentence of twelve years, commencing on 10 November 2001, partially concurrently with the previous sentences, with a non-parole period of eight years to expire on 9 November 2010, from which time the applicant will be entitled to apply for parole. 67 I find in relation to the last offence, that there are special circumstances in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 and therefore fix a four year period longer than one quarter of the full term to take into account that the parole period is at the end of an accumulation of fixed and concurrent terms and to assist the rehabilitation of the applicant who has spent very little of life out of an institution. 68 The orders therefore that I propose are as follows:

1. That the application be granted;
2. That the appeal be allowed;
3. That the sentences imposed by Shillington DCJ be quashed, and in lieu thereof, the following sentences be imposed: a) In respect of counts 1 and 3, that the applicant be sentenced to fixed term of five years on each offence, to be served concurrently, to commence on 10 November 1998 and to conclude on 9 November 2003. b) In respect of counts 4 and 6-10, I fix a sentence of a fixed term of five years in respect of each offence, to be served concurrently with each other, and partly concurrent with the two previous sentences, such sentence to commence on 10 November 2000. c) In respect of count 5, I impose a fixed term sentence of five years to commence on 10 November 2001 and to conclude on 9 November 2006, to be served partly concurrently with the previous sentences. d) In respect of count 2, taking into account the thirty-two matters on the two Form Ones, a sentence of 12 years imprisonment will be imposed, commencing on 10 November 2001 concluding on 9 November 2013, partly concurrent with the previous sentences, with a non-parole period of eight years concluding on 9 November 2009, after which time the applicant will be entitled to apply for parole. oOo

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