Mr Shayden Lloyd is for sentence in relation to an offence of aggravated robbery under s 95(1) of the Crimes Act 1900, the circumstance of aggravation being the use of corporal violence. The maximum penalty for that offence is 20 years imprisonment. In sentencing him for that offence he asks that I take into account two offences which are on a Form 1 document, being an offence of disposing of property which had before then been stolen which itself ordinarily would attract a maximum penalty of ten years imprisonment, and a further offence of furnishing false information that being an offence under the Pawnbrokers and Second Hand Dealers Act 1996 which carries a fine only. The maximum penalty of course is an important guidepost in the sentencing exercise to which I have had regard.
The offender pleaded guilty at an early opportunity and I intend to allow a discount of 25% on account of the utilitarian value of that plea.
[2]
FACTS
Facts are agreed and in essence are as follows:
The victim of the robbery was a 27 year old woman who was at the time 20 weeks pregnant. She owned a 9 carat gold and diamond bracelet which was valued at about $15,000 which she had decided to sell.
On 5 September 2022 the victim advertised the bracelet on Facebook Marketplace using her father's Facebook account with an asking price of $15,000. The offender responded to the advertisement using the name Bailey Boscel saying that he was interested in buying the bracelet and the arrangement was then made for them to meet up.
On 8 September 2022 at about 5pm the victim met with the offender in a shopping complex at Claremont Meadows. She showed the bracelet, which was inside a jewellery box, to the offender. The offender then tried to snatch the item from the victim which caused it to fall to the ground. When the victim bent over to pick it up the offender pushed her such that she fell backwards and landed on the ground on the right side of her body. She then called out, "I'm pregnant, I'm pregnant", however the offender picked up the bracelet and ran from the shopping centre and entered the passenger side of a yellow Mazda 2 vehicle which drove away.
The victim attended Nepean Hospital that day. X-rays showed that she had suffered a minimally displaced radial distal radius fracture involving her right hand. She also suffered tenderness and swelling to her forearm. She was discharged from hospital that day wearing a short arm cast. Fortunately she did not suffer any complications from the fracture or any complications associated with her pregnancy.
Police examined CCTV from outside the shopping complex. It showed the offender wearing a white baseball cap, a red, black and white jacket with the Gant brand on it, red and black running shoes, and carrying a white satchel bag. The CCTV also showed the offender and the victim meeting up.
On Saturday 10 September 2022, about two days after the robbery the offender attended the Mega Cash Pawn Shop in South Windsor in possession of the stolen bracelet. There he signed an official buy contract in which he falsely stated that he was the owner of the item and he received $10,000 cash in exchange for it.
CCTV from the shop showed the offender wearing the same white baseball cap and with the same white satchel bag as was seen in CCTV from the robbery. Police recovered the bracelet from the pawn shop and it was returned to the victim. However the Mega Cash Pawn Shop is out of pocket to the amount of $10,000.
Police investigations revealed that the yellow Mazda 2 was owned by a Michael Taylor who had been living at a house in Ellsworth Drive Tregear. CCTV obtained by police showed that on the day of the robbery the offender and another person got out of the Mazda and walked into the house on Ellsworth Drive. At the time the offender was wearing the same clothing as at the time of the robbery.
Further investigations showed that the Facebook account in the name of Bailey Boscel was linked to a phone number ending in 153. That was the same phone number that was given by the offender to the manager of the Mega Cash Pawn Shop when the offender pawned the bracelet.
Telephone records also confirmed that this phone number had been used in Claremont Meadows at about 4.50pm on the day of the robbery. On 21 September 2022 police also located some photographs on an Instagram account of the offender showing him in the same clothing as at the time of the robbery.
On 26 September 2022 police patrolling in the suburb of Emerton saw the yellow Mazda and realised it was a vehicle which was associated with the offender and was currently linked to the robbery. Police tried to stop the Mazda but it failed to stop and a pursuit ensued until the Mazda crashed into another car and the offender was arrested. I note however that this police pursuit matter has already been dealt with in the Local Court and the facts of this are simply before the Court by way of background. Those are the facts upon which the offender is to be sentenced for the robbery.
[3]
OBJECTIVE SERIOUSNESS
The robbery offence in terms of its objective seriousness was a planned one and involved the offender using Facebook to engage with the victim and then arranging to meet with her. It was not an impulsive offence, although I accept that the use of violence was a spontaneous and not planned thing. The offence resulted in a fracture to the hand of the victim and was no doubt a very traumatic experience for her. Furthermore, the value of the property was quite substantial.
In my view this was a relatively serious example of this type of offence and I would describe it as being slightly below the mid-range of objective seriousness for that type of offence.
In determining the appropriate penalty I have had regard to the guideline judgment of the New South Wales Court of Criminal Appeal in R v Henry and Others [1999] 106 A Crim R 149. That guideline case was concerned with offences of armed robbery which is not the offence now before the Court. However the factors discussed in Henry remain relevant in my view.
In relation to those factors I make the following observations and findings. Firstly, the offender in this case was relatively young at 22 years of age at the time. His criminal history, however, was fairly substantial, a matter that does not assist him.
Secondly, in this case there was no weapon.
Thirdly, and in contrast to the Henry factors, there was a degree of planning. This involved the offender using a false name and engaging with the victim over Facebook Marketplace and arranging to meet up with her with the obvious intention of robbing her of the bracelet. This cannot be said therefore to have been an impulsive offence, however I do accept that the decision to use violence was not planned but was a spontaneous decision after the offender's failed attempt to snatch the item from the victim's hand.
Fourthly, while the actual violence was limited to the offender pushing the victim over, this unfortunately resulted in the victim suffering a fracture to her hand. While the offender might not have intended the victim to suffer an injury of this sort, it was, in my view, reasonably foreseeable that such an injury or something like it might have resulted. It is also the fact that the victim was pregnant at the time but this would not have been apparent to the offender and was not reasonably foreseeable.
Fifthly, this was not an offence that involved a victim who was in particularly vulnerable position.
Sixthly, the value of the property taken was substantial and was presumably very substantial to the victim. While the victim subsequently recovered the item, that was not due to any actions of the offender and the pawn shop remains out of pocket to the amount of $10,000.
Seventhly, there is of course the plea of guilty however and, similarly to the common situation considered in the Henry decision, the significance of that plea of guilty is reduced by reason that there was, in my view, a reasonably strong Crown case.
The guideline in Henry suggested that where the common factors referred to at para 162 of that judgment are present, the head sentence should generally fall between about four and five years as explained in R v Harris [2011] NSWCCA 105 at para 93. The starting point in the Henry figures, before a 10% reduction on account of a plea of guilty, is to be taken to be a range of between five years six months and four years five months for the head sentence and between four years one month and three years four months for the non-parole period.
Of course these are guides only and it is always important for the Court to make adjustments to take into account other factors either aggravating or mitigating.
In determining the appropriate sentence in this case I have had regard to not only the Henry factors but also sentencing statistics and also to a number of Court of Criminal Appeal cases of this State as well as to all of the objective and subjective factors in this case.
[4]
SUBJECTIVE MATTERS
Turning then to subjective factors. The offender is now 23 years old and he was 22 at the time of offending. His criminal history as an adult does not assist him in his claims to leniency. Although he has no prior offences for robbery, he has been before courts for a variety of offences, including drug supply, intimidation, assault, assaulting police, damaging property, contravening an AVO and engaging in a police pursuit. He has previously served terms in prison.
The psychological report of Dr Pusey sets out some of the offender's background and current circumstances. He was born in Australia and has Aboriginal heritage on his mother's side. He is the younger of two boys to his parent's relationship but reported that his parents split up before his birth. After this he lived apparently with his mother until about age nine, then with his father until he was about 14 and then moved back to live with his mother.
However, according to the offender's version, his mother at that time was using and dealing methylamphetamine and the offender himself started to wag school, use drugs, and commit offences from his mid-teens, problems that he attributed to "hanging around with the wrong crowd."
The offender left school in Year 9 and has an inconsistent history of employment since that time. He was unemployed at the time of the matters before the Court and at that time was using methylamphetamine and other drugs on a daily basis.
The offender is himself a father to a son who is now aged about five and who lives with his mother in Queensland. The offender told Dr Pusey that he hopes to build a relationship with his son after being released from custody. The report of Dr Pusey concludes that at the time of the offences the offender was likely suffering a major depressive disorder combined with substance use disorder which the psychologist concluded likely acted in combination to impair the offender's judgment and behaviour.
The offender's criminal history tends, in my view, to support the conclusion that this has been the situation for some time. Putting it in more simple terms, the offender's history suggests that he has made choices to continue abusing drugs and hanging around with other drug users and this has led him into committing offences to fund his drug habit or offences arising from his drug use. The fact that the offending occurred so as to fund a drug habit of course does not mitigate its seriousness.
Dr Pusey's report however contains some indications that the offender may be at a stage where he is beginning to gain some insight and a motivation to change. The offender acknowledged the agreed facts, not only to Dr Pusey but also in his evidence this morning and said to Dr Pusey that back then he saw himself as a drug addict constantly needing to obtain "a fix" and being prepared to commit offences to meet that need.
The offender said that since being in custody and being off drugs and having done some courses to assist him he feels "more refined" and has re established a relationship with his father who is prepared to take him in upon release. He also has employment arranged through his father and claims that he wants "to be a father and a man" as he said to Dr Pusey, and that he intends to avoid contact with previous bad influences. He essentially confirmed these thoughts and professed intentions in his evidence in court today.
It is of course common for offenders facing sentence to say these sorts of things. Sometimes I suspect in the hope of receiving a more lenient sentence. Sometimes perhaps more commonly with genuine intentions but where longstanding drug and other problems mean that the chances of real change are slim.
In this case the nature of the comments made by the offender both to Dr Pusey and in court today seem to me to reflect a level of genuine remorse and a realisation that it is time to grow up and do something more useful with his life. Of course the real test will be once the offender is released, that is, he will need to not only engage in useful work but also stay away from previous influences and avoid using illicit drugs.
Dr Pusey assessed the offender as a low to moderate risk of reoffending. Given the history and the fact that the offender has yet to face the challenge of possible exposure to drugs upon his release, I accept this assessment by Dr Pusey.
[5]
BUGMY
It was submitted on behalf of the offender that the principles in Bugmy v The Queen (2012) 249 CLR 571 are enlivened in this case and the Crown conceded that these principles do have relevance. In that case it was stated that where an offender's childhood background involved significant depravation that is a matter which may go to explain an offender's recourse to violence when frustrated such that the person's moral culpability may be substantially reduced.
The early life background in Mr Lloyd's case does not in my view amount to "profound" or "extreme" deprivation, but as Brereton JA said in Hoskins v R [2021] NSWCCA 169, there is "no magic in the word profound," and it is not necessary to characterise an offender's childhood that way before the principle is engaged. There is, in other words, no bright line to be drawn between "Bugmy cases" and "non-Bugmy cases."
In Mr Lloyd's case the robbery was not the product of recourse to violence when frustrated, given that it involved some planning with the obvious intention of taking the bracelet from the victim and potentially using force to do so.
However, I do accept the principles discussed in Bugmy and other cases such as R v Millwood [2012] NSWCCA 2, mean that the offender's childhood background is such that he is likely to have had fewer emotional resources to guide his decisions. I think this reduces his moral culpability to some degree. And, as I think I have said already, I accept that there is genuine remorse in this case as noted by Dr Pusey at para 16 of his report and as expressed by the offender in his evidence today.
As to the offender's future prospects, this will very much depend upon whether he can follow through in a sustained way on his stated intention to engage in employment, remain in stable accommodation and stay away from drugs and previous bad influences. On balance I think his prospects are reasonable but guarded.
[6]
YOUTH
I have given some weight to the fact that while the offender is not a child or youth he is still young and was only 22 at the time of offending. In BP v R [2010] NSWCCA 159 Hodgson JA said at para 4:
"...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 reducing what is suggested by considerations of retribution..."
His Honour continued at para 5 by saying:
"...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-20's..."
I note that it has been observed in other cases or at least one other case that I am aware of that this phenomenon of developing maturity into the mid 20's may tend to be more pronounced in males than females.
In my view these observations are of relevance in this case and I am of the view also that there are now some signs that the offender is maturing and beginning to realise that he needs to change old habits if he wants to remain in the community and out of gaol.
In my view the offender's moral culpability is reduced also to some degree by his relative immaturity at the time of the offence.
[7]
FORM 1
In sentencing for the aggravated robbery offence I will take into account the two offences on the Form 1. Form 1 matters may, depending on the circumstances, lead to an increase in the sentence for a substantive offence by reason of the need for personal deterrence and/or the community's entitlement to retribution, a principle that is stated in the well-known Attorney General's reference case reported at (2002) 56 NSWLR 146.
The two offences on the Form 1 in this case involved criminal conduct separated in time and circumstance from the robbery, although I do accept that they were reasonably closely linked to that robbery, being committed in the successful attempt to exchange the proceeds of the robbery for cash. In the circumstances I think the Form 1 matters, essentially the s 188 offence given that the other offence carries a fine only, should exert some but not a great upward pressure on the ultimate sentence.
[8]
DETERMINATION
In determining the outcome in this case I have had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 which in summary, not in any particular order, are the importance of ensuring that the offender is adequately punished, of preventing crime by deterring the offender and others, of protecting the community, of promoting if possible the rehabilitation of the offender, of making him accountable, denouncing his conduct and recognising the harm done to the victim and generally to the community from offences of this kind.
I am satisfied for the purposes of s 5 of that same Act that no penalty other than one of imprisonment is appropriate. I intend to make and have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole period in this case. I make that finding based upon firstly the offender's relative youth, secondly his improving prospects of rehabilitation, thirdly the need for a significant period of monitoring in the community and fourthly by having regard to the generous finding of special circumstances that was made in the Local Court when the offender was sentenced on 19 December 2022 for the offence involving the police pursuit.
I have given careful consideration also to the date upon which any sentence should commence.
The offender was arrested on 26 September 2022. However on 19 December 2022 he was sentenced in the Local Court to a fixed term of four months for driving unlicensed and more importantly to a head sentence of 18 months with a minimum term of nine months for the police pursuit offence, with each of those sentences dating from 26 September 2022. Therefore he has now been in custody for just over a year. That custody however has been in part due to those other offences and it has been only since 25 June 2023 that his current custody can be said to be totally due to the matter now before the Court. In those circumstances, totality principles are relevant to the exercise of my discretion to backdate the sentence I am about to impose.
Counsel for the offender submitted, and the Crown did not disagree, that an appropriate commencement date for the current sentence might be 25 February 2023 being an approximate mid-point in the non-parole period for the police pursuit sentence. I consider this to be appropriate and I intend to adopt that course.
Having regard to totality principles it is appropriate that I make a determination as to what the total sentence is likely to have been if the matter now before the Court and the matters dealt with in the Local Court had been dealt with at the same time: see Porter v R [2019] NSWCCA 117.
In determining the ultimate outcome, I have therefore had regard to totality principles and the overall effective head sentence and non-parole period which the offender will be required to serve, having regard also to his existing sentence.
Taking into account the Form 1 matters and after the 25% discount for the plea of guilty, I impose a head sentence of three years two months. I impose a non-parole period of one year eight months. Each of those will date from 25 February 2023. The head sentence therefore will expire on 24 April 2026. The non-parole period will expire on 24 October 2024.
So Mr Lloyd you will be eligible for parole on 24 October next year. It's obviously in your interests to continue in your efforts to rehabilitate yourself and I trust that you will do that.
OFFENDER: Yes your Honour.
[9]
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Decision last updated: 09 April 2024