R v Mafi

District Court of NSW|2019-04-17

Judgment

Mr Patrick Mafi was committed for sentence from Central Local Court on a single charge of aggravated robbery - inflict actual bodily harm pursuant to section 95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years of imprisonment. There is no standard non-parole period for this offence. The matter came before me on Wednesday 17 April 2019, when I stood the matter over. On the next occasion the matter was before the court, I ordered a Sentencing Assessment Report (SAR) and stood the matter over today for sentence. The SAR was received on 27 June 2019.
Mr Mafi was born in 1988 and is presently 29 years of age. The offence occurred on 11 July 2018. He has been in custody since his arrest on 26 July 2018, which means that he has been in custody for a total of 344 days including today and the date of his arrest, or about 49 weeks, or over 11 months.
Four exhibits have been tendered on the sentence. The first is a bundle of documents from the Crown. The second is a report of Karen Burgoyne, clinical and forensic psychologist, dated 20 February 2019. The third is a personal reference from Darren Peter Maroon dated 4 April 2019. The fourth is the SAR.
I have been assisted by the able oral and written submissions of Ms Donovan on behalf of the Crown, and Ms Mason on behalf of Mr Mafi.

The Evidence

It is fair to say that Mr Mafi has a lengthy criminal history which dates back to when he was a child and was convicted of robbery. Since that time, he has had multiple convictions for, inter alia, thefts variously described, assault, negligent driving and other motor vehicle offences and contravention of Apprehended Violence Orders.
Ms Karen Burgoyne, forensic psychologist, provided a long and detailed report dated 20 February 2019. She was asked to provide an assessment to assist the court in sentencing proceedings, and in particular to provide an opinion relating to any mitigating psychological factors. She had before her the Statement of Agreed Facts and a record of Mr Mafi's criminal history, and she conducted an interview with Mr Mafi for 3.5 hours. I set out in some detail some of the matters recorded by Ms Burgoyne, as they are important in understanding the significance of Mr Mafi's personal history, and ultimately the sentence which I will impose.
Mr Mafi apparently became teary and upset when discussing his childhood with Ms Burgoyne. He expressed surprise that he was so significantly affected, but his presentation was judged to be appropriate. Ms Burgoyne found no evidence that Mr Mafi was suffering with symptoms of psychosis or other mental health problems at the time of assessment.
Mr Mafi reported that he was born in Sydney and spent most of his life in Tempe and inner west suburbs. He is the middle of five children to his parents' union. A large number of extended family members resided in the family home throughout his developmental years.
Mr Mafi told Ms Burgoyne that he was subjected to ongoing physical and sexual abuse within the home whilst he grew up. The sexual abuse commenced when he was about four or five years old and continued until he was in his teenage years. It occurred inside the home by extended family members residing with the family. He was abused by multiple perpetrators over time, and sometimes by multiple people during the same time period. He was bribed with cigarettes and other items, and he believed that this was normal until he reached his adolescence. Mr Mafi reported feeling isolated and lonely within his home. He was unable to report to his parents what was happening to him and stated that his developmental years were characterised by keeping secrets. He was always in trouble for misbehaving at home and stated that he was angry and refused to listen to his parents or do as he was told. He received severe physical punishments which were usually delivered by his father. He told Ms Burgoyne that these physical punishments only made him harder, and he did not care about the consequences because worse things were happening to him, ie the sexual abuse. Mr Mafi remains angry with his father, as he was generally unavailable and unable to protect him from the sexual abuse. He reported that he had never discussed the abuse with his family of origin or other professionals previously.
When he was about 4 or 5 years old, Mr Mafi reported leaving his home frequently to wander the streets. On one occasion he walked toward Redfern with the goal of visiting his grandmother. From this time onwards, he regularly spent large amounts of time outside of the home with friends from his local neighbourhood, as his time on the streets was more enjoyable than the time he spent at home. Ms Burgoyne notes that leaving home at such a young age to spend time around the neighbourhood is developmentally unusual, and indicative of the lack of supervision and safety Mr Mafi experienced in his home.
Mr Mafi's education history was interrupted by frequent moves between schools. He attended three different primary schools and three high schools. He experienced regular and intense anger during his childhood as a result of his abuse experiences. He took his anger out on everybody around him, and was highly reactive and often aggressive. He also engaged in some early sexualised behaviours with other students, a result of which was that he was suspended and expelled multiple times throughout primary and high school.
Mr Mafi was academically assessed in about year 4 and subsequently sent to a special needs class at Marrickville Primary School for years 5 and 6. He continued into an IM (mild intellectual disability) class at Marrickville High School in year 7, which indicates to Ms Burgoyne that he had been assessed as having a mild intellectual disability at that time. He was then transferred to the Carinya School in Mortdale at the end of year 7. That school caters to students who have difficulty managing strong emotions and who exhibit behavioural difficulties due to either intellectual disability or mental health problems. He was apparently transferred there after he threatened to stab a pregnant teacher who had singled him out. Mr Mafi observed that he was more academically capable than most of his peers at Carinya. He then transferred to Marrickville Sports High School due to his ability as a rugby union football player. He then started getting in trouble with the law, and he moved in and out of the juvenile justice system and completed multiple brief periods of incarceration before returning to school. He obtained his School Certificate, but was expelled in year 11 due to non-attendance. Regardless of which school he attended, the offender was in trouble on a regular basis, usually for violent and aggressive behaviour, and he spent large amounts of time outside the classroom, usually in time out or safe space rooms.
Mr Mafi has a chequered employment history, and he reported that he has only held jobs for brief periods of 3 to 4 months duration. His employment has been disrupted by his illicit drug use and periods of incarceration. When in the community he has generally worked in construction or concreting roles. More recently, he was working as a garbage truck loader for United Resources Management, a job he very much enjoyed. He ceased that job due to his current incarceration but his employer apparently advised him that he would be willing to re-employ him upon his release. At present Mr Mafi is working as a sweeper in the Lithgow Correctional Centre, which is a cleaning and general duties position based in the accommodation unit he is housed. Ms Burgoyne notes that sweeper positions are usually given to inmates who demonstrate stable and trustworthy behaviour. Mr Mafi stated that he enjoys the position and reported that he has positive and respectful relationships with correctional officers.
Mr Mafi has had two significant intimate relationships. The first produced a son, now 10 years of age, and who lives with Mr Mafi's parents who have raised him. The second relationship is with his current wife Josephine. They have known each other since high school, and married two years ago. She has a five-year-old daughter from a previous relationship who Mr Mafi treats as his own daughter. Mr Mafi and his wife have one son together who is now one year of age.
Historically, the relationship with Mr Mafi's wife was negatively affected by his drug use and high levels of interpersonal conflict caused by him. He stated that their relationship has improved significantly during the current incarceration, and he expressed insight into some of the negative and co-dependent patterns in their previous communications. Although he finds it difficult, Mr Mafi has learned to express his emotions to his wife and she is aware of his childhood abuse history. In Ms Burgoyne's opinion, Mr Mafi has significantly matured in dealing with this area of his life since entering custody last year. He is now able to listen to his wife's perspective without becoming angry or defensive. He can now calmly discuss problems, reflect on his behaviour and apologises when he is in the wrong. He reported that his wife and children provide a strong motivation to change his life and abstain from future drug use.
Mr Mafi was introduced to both alcohol and cannabis when he was about 9 years old and he recalled his uncles giving him small amounts of alcohol in the home as a joke. He has never had a dependence on alcohol or a regular pattern of abuse, although he did engage in binge drinking during his teenage years which often led to the legal difficulties following fights and assaults whilst he was under the influence. He stated he that he has not consumed alcohol over the last two years, and does not consider himself to have an alcohol use problem. He also used cannabis from childhood, which he obtained through his neighbourhood friends. Initially he smoked cannabis occasionally, but he developed a daily habit during his teenage years. He has not consumed cannabis for some time and does not consider himself to have a cannabis use problem.
Mr Mafi has had a long-term history of ice abuse, and he identified ice as his most problematic substance since he first tried it when he was about 14 years old. He recalled spending time with older peers in the neighbourhood who provided him with access to the drug. His initial use was infrequent, but over time the amounts and frequency increased. He was unable to recall the exact amounts used, but he had used it heavily for multiple days at a time before coming down and having a break and then repeating the cycle. Mr Mafi stated that ice relaxed him and helped him to avoid and suppress the memories of his childhood sexual abuse. After using ice consistently over a period of days, he would become angry and overreact to minor issues with extreme emotional responses. He experienced some transient mental health symptoms, such as paranoid thoughts and vague visual hallucinations, whilst affected by ice. These receded quickly when he ceased using ice. The development of mild psychotic symptoms when under the influence of ice, in Ms Burgoyne's opinion, is suggestive of a pattern of heavy usage of the drug. Mr Mafi also reported multiple unsuccessful attempts to cease using ice. He felt that ice had taken control of his thoughts, behaviour and his life.
Mr Mafi apparently completed the Ted Noffs Foundation Rehabilitation Centre at Coffs Harbour when he was a teenager but this was unsuccessful and he relapsed. He also completed the Violent Offender Therapeutic Program (VOTP) during his last period of adult incarceration. Mr Mafi continues to use some of the insights and strategies he learned. However, he has not been able to access treatment programs during his current incarceration, likely due to his remand status. Importantly, Mr Mafi reported that he has not used any substances while in custody this time, despite their ready availability. He stated that he was focused on rehabilitating himself and plans to remain abstinent.
Mr Mafi has apparently never been diagnosed with a formal mental health problem and neither has he ever taken psychiatric medications.
As Mr Mafi has difficulties with reading and comprehension, he was not administered a formal written mental health assessment. Instead he was administered a Psychiatric Diagnostic Screening Questionnaire (PDSQ) via a semi-structured interview to elicit any presenting symptoms which might relate to his mental health. In responding to that questionnaire, Mr Mafi reported several items that are consistent with symptoms associated with panic attacks, binge eating and historical illicit drug problems. Although a few items were consistent with depression, these were not sufficient for a diagnosis. Some of the depressive symptoms were thought to be related to ongoing effects of his drug use in the past, including difficulty sleeping and mild difficulty with concentration. Mr Mafi noted that these symptoms were improving with continued abstinence from drugs. Apparently he has experienced one panic attack prior to his incarceration which occurred in the context of using ice. Since withdrawing from ice, he has experienced less serious early warning type symptoms of panic, but he is able to prevent full panic attacks by slowing his breathing and remaining calm. Mr Mafi reported engaging in binge eating and purging (vomiting) behaviour around six or seven times, which has occurred both in and out of custody over the last few years. Ms Burgoyne believes that binge eating and purging is likely to be an emerging emotional regulation strategy for Mr Mafi, subsequent to his sexual abuse history and in the absence of using ice.
On the Verbal Comprehension Index (VCI), a measure of acquired knowledge, verbal reasoning and attention to verbal information, Mr Mafi scored in the borderline range of functioning in the area. With respect to the Perceptual Reasoning Index (PRI) which is a measure of fluid reasoning, nonverbal problem solving, spatial processing, attentiveness to detail and visual motor integration, Mr Mafi scored in the average range of functioning in this area. In Ms Burgoyne's opinion, the difference between Mr Mafi's VCI and PRI scores is statistically significant. A difference of this magnitude occurs in between 5% to 10% of people who achieve a similar full scale IQ score. However lower VCI scores are really relatively common in individuals with disrupted educational histories such as Mr Mafi's. His inability to function effectively in a classroom is more likely due to the abuse he was being subjected to at home, rather than indicating a true cognitive deficit in this area. In Ms Burgoyne's opinion, Mr Mafi does not have an intellectual disability.
Mr Mafi told Ms Burgoyne that his history is reflective of his past substance abuse problems, as well as difficulties controlling his anger and situational aggression, particularly with authority figures such as police. He said that prior to the current offences he had been using ice for three or four days and that he had not slept. He stated that he feels 'shattered' to have committed the offences, and that his motivation for taking ice had been to 'relax and escape', and that he never intended it to enable him to assault others or commit offences. He now understands in hindsight that ice was in control of him and that he had been using too much. Further, he was aware and remorseful with respect to his conduct as soon as he left the building on the day of the offence.
Mr Mafi told Ms Burgoyne that he is extremely grateful for the time that he has spent in custody since the offence, and that both he and his wife have been praying for him to change and leave the drugs behind him. He reported multiple previous attempts to cease using ice, but something would always go wrong and he would then relapse. He stated that the current period of incarceration had provided him with time to reflect on his life, including the child sexual abuse, the choices he had made and the dysfunctional patterns he developed in his adult relationships. Previously, he did not care about the consequences of his behaviour, as he did not believe he had anything to lose. He stated that he now values his wife and children, and he can see how badly he has previously treated them. He is very motivated to use his time in custody to learn, grow and become a better person who does not use drugs or engage in violent behaviour. He also reported a reduction in other problematic behaviours particularly in relation to aggression towards staff and other inmates. He noted that during his previous sentence, he was frequently placed in segregation, but he has not been placed in segregation or been in any trouble during the current sentence.
Ms Burgoyne states that Mr Mafi was raised in a chaotic family environment within which he was physically and sexually abused for many years by multiple perpetrators. He was also introduced to alcohol and tobacco within the home from the time of his late childhood. He experienced his parents as unavailable and uninvolved in his life, and unable to protect him from the abuse. From the age of 5 he felt greater safety on the street in his local area, but this brought him to be in contact with the delinquent group who introduced him to illicit drugs. Ms Burgoyne says that as a result of his sexual abuse experiences, Mr Mafi developed into an angry, aggressive and noncompliant child which interfered with his ability to learn in classroom settings. As a result, he was at times managed as a child with a mild intellectual disability and moderate to severe behavioural problems.
Although exposed to alcohol and marijuana from middle childhood, Mr Mafi no longer uses those substances. He developed a heavy dependence on ice. Mr Mafi reported that ice negatively affected every area of his life and took control of his life. In Ms Burgoyne's opinion, Mr Mafi meets the criteria for a diagnosis of Stimulant Use Disorder, Severe, in early remission and in a controlled environment. Mr Mafi has received minimal treatment targeting addiction issues. Whilst he completed the VOTP during a previous sentence, and the program addressed substance abuse patterns in relation to violence, he relapsed back into ice abuse on his release. However, in Ms Burgoyne's opinion, Mr Mafi's treatment experience in the VOTP appears to have assisted him to use the current period in custody to his benefit. His behaviour in custody has allowed him to become settled and compliant, and he is no longer involving himself in institutional violence or being placed in segregation. The disclosure of the child sexual abuse in the current assessment is clinically significant and indicative of his deep desire to successfully address all the issues that contribute to substance use and aggression.
As Mr Mafi is currently 29 years of age, Ms Burgoyne says that he is experiencing a developmentally appropriate shift in his identity from being a drug using and violent criminal to becoming a prosocial and engaged husband and parent who does not use illicit drugs and who sets a good example to his children via legitimate employment. Although he is making positive progress, Mr Mafi has several risk factors that he will need to manage well in order to successfully maintain future abstinence from drug use and crime when he returns to the community. These risk factors include the potential for relapse back into drug use, associating with criminal peers, developing a new social network, and obtaining employment post-release. However, Ms Burgoyne believes that Mr Mafi has several protective factors that are currently operating to reduce risk, and these include his willingness to engage in treatment, his currently stable relationship with his partner, his age, his discomfort with the criminal lifestyle and his strong intrinsic motivation and confidence in his ability to change. His improved behaviour in custody is also a positive sign.
Taking into account all of these factors, Ms Burgoyne's prognosis for Mr Mafi is relatively positive. She states that change in long-term lifestyle patterns is almost never a linear or straightforward process, and lapses and relapses are common. She believes that Mr Mafi presents as being on a path toward complete abstinence from drug use and crime, and if he remains motivated and can access appropriate treatment and support, it would be expected that he will continue to demonstrate a reduction in the frequency and severity of his contact with the criminal justice system.
Should Mr Mafi receive a custodial sentence, Ms Burgoyne recommends the following: 1. He may be suitable to participate in the VOTP maintenance and outreach service which usually involves individual or small group sessions with a VOTP psychologist and can be conducted via audiovisual technology from most correctional centres; 2. If he remains incarcerated, Mr Mafi may benefit from attending education to improve his literacy skills; and 3. Mr Mafi should self-refer to psychology services as required, for individual counselling to assist him to manage his panic symptoms and any further binge/purge behaviours whilst in custody. With respect to panic, he is likely to require one to two sessions focused on psychoeducation and practical coping strategies. The symptoms are likely related to ice abuse and are expected to decrease over time and with continued abstinence.
Should Mr Mafi receive a community-based sentence, Ms Burgoyne recommends the following: 1. A period of structured supervision by community corrections staff is strongly recommended. Mr Mafi is likely to respond positively to supportive supervision and clear boundaries, and supervision should focus on maintaining abstinence from illicit substances, on assisting him to obtain suitable employment and on supporting his reintegration back to the family home with his wife and children. He and his wife may benefit from a referral for short-term couples counselling and Mr Mafi should be subjected to random drug testing at home visits; 2. Mr Mafi should continue regular contact with VOTP maintenance and outreach service during the period of his community supervision. Interventions should assist him to develop an up-to-date relapse prevention plan that is appropriate to his community lifestyle with awareness of his high-risk situations and strategies to cope without returning to use ice; 3. Mr Mafi should access specialist child sexual assault counselling, either via a dedicated service or a suitably trained and experienced psychologist. Interventions will need to address the relationship between the childhood abuse, his drug abuse and his emerging binge/purge behaviours. VOTP maintenance psychologists will also be of assistance in identifying an appropriate specialist service provider in Mr Mafi's local area; and 4. Mr Mafi may benefit from engaging in a parenting program. Although there was no evidence of poor parenting skills during the current assessment, Mr Mafi did not experience secure attachments or appropriate support from his parents. His role and identity as a father is considered highly protective, and any activities that support skill in this area of his life will reduce his risk of drug relapse and associated recidivism. A suitable program is the Triple P parenting program, which is free and typically delivered via weekly group sessions for five or six weeks.
Also before me is a reference from Mr Darren Peter Maroon, who is aware that Mr Mafi has pleaded guilty to the charge before the court. He is a qualified quantity surveyor, licenced builder and a registered high- performance coach with the NRL. He observes that Mr Mafi has natural leadership qualities in team sports, was well respected and popular amongst his peers and the coaching staff, who always wanted Mr Mafi on their team. He apparently once had a promising career in the NRL.
Mr Marron has known Mr Mafi for approximately six years, and they have maintained a close relationship. He says that Mr Mafi is a devoted father and husband. Mr Mafi has worked with Mr Maroon as a labourer. He advanced onto tools and was learning basic carpentry. Mr Mafi enjoyed good relationships with clients, and had a good work ethic. Mr Maroon says that he would be happy to re-employ Mr Mafi.
Mr Mafi gave evidence before me on 17 April 2019. His wife Josephine also gave evidence before me on that date.
Mr Mafi impressed me as someone who has genuinely had a life-changing experience whilst in custody. He has been a model prisoner, and is performing duties as a sweeper. He told me, and I accept, that when he is out of custody he will do his very best to get his life on track for the benefit of himself and his family. He indicated a willingness to get treatment for his drug addiction and the sexual abuse he suffered as a child. He said that this experience in gaol has been life changing, even though he had not been able to access structured drug and alcohol rehabilitation whilst he has been incarcerated. He confirmed that he had started using drugs at a very young age, and also at a young age started hanging around the streets with older kids.
Mr Mafi generally confirmed the correctness of his personal details contained in the report of Ms Burgoyne, and told me that he would abide by any conditions of his release.
Ms Donovan cross-examined the offender. Mr Mafi confirmed that most of his prior criminal history was related to his drug use. In answer to her questions, he said that he had never before realised (ie until this period in custody) that his drug use was a problem. When asked about some drug rehabilitation 'in juvenile', Mr Mafi said that back then, the only reason he attended rehabilitation was to 'get out of juvenile'. Mr Mafi explained, and I accept, that during this period in custody, he has had the opportunity to reflect on his actions, his long-standing drug use and the issues in his childhood. He told the court that he believes that he was not yet mature enough to properly reflect on his actions and their consequences prior to this period of incarceration. He said that at the time of his arrest, drugs were 'taking over his thinking'. He expressed 'deep' remorse for the things that he has done, and said that 'if the victim was here…I would like to say sorry to him face-to-face rather than having to say sorry without him even being here', which I am satisfied shows remorse and some insight. He said that he was remorseful immediately after the offence, but did not turn himself in because he was in a state of shock. I note that he turned himself in to police about 2 weeks after the date of the offence.
Mr Mafi said in cross-examination that he has changed, that he does not wish to return to his previous lifestyle because he wants to better himself and live for his wife and children and give back to the community. He re-iterated that this time was different, essentially saying that now he is older and mindful of his responsibilities. He said he would '100%' go to a drug rehabilitation counsellor.
I found Mr Mafi to be a reserved man of few words, but he was not evasive in cross-examination. In my view, he showed some emerging self-awareness and expressed himself as someone who wishes to be totally rehabilitated. As I have said, I accept that he shows remorse for his actions.
The offender's wife, Ms Josephine McIndoe, gave evidence about how she had continued to support her husband whilst he is in custody, going to visit him on a regular basis even with the difficulties she experiences in childcare (her child having been born pre-maturely, and being susceptible to viruses). She has known the offender since they were young, when they met at school. They have been married since January 2017.
Ms McIndoe is a disability support worker by profession and holds professional qualifications in that industry. She worked for several years with children with severe disabilities, and said that she has some insight into her husband's difficulties because she has been around people who have faced significant adversity. I found her to be a frank witness. She fully understood the seriousness of her husband's drug problem, and frankly told the court about the effect of ice on him. She understood the significant difficulties her husband faced in his future rehabilitation, and the effects that it will have on her family. She is aware of his drug addiction and the sexual abuse that he suffered as a child, which had only recently been disclosed. She also was able to tell the court about the softer side of Mr Mafi, which was refreshing, as no person is one dimensional. She says that she has noticed 'immense' changes in the offender since he has been in custody. In particular, she says that that he 'reflects upon the things that he's done now - communication', and that he is introspective. She believes that he is now 'completely different', and that his mind is clear now that he is drug free. My impression was that Ms McIndoe fully appreciated the gravity of the offence before the court, and the long road ahead for her and her husband when he is ultimately released.
Ms McIndoe was not cross-examined by the Crown.
I have recently been provided with an SAR dated 18 June 2019 under the hand of Kerry-Anne Troeger, which was tendered today by the Crown.
Mr Mafi reported stable accommodation in the community, a positive relationship with his partner (who challenges his antisocial behaviours), and superficially supportive relationships with other family members. He stated that he had stable employment in the sanitation and waste industry prior to incarceration, and that if he was released he would return to that employment.
Mr Mafi's record of offending consists of similar behaviour to the index offence, being driving related offences and assaults since 2005. The history of antisocial behaviour commenced as a young child, when he commenced associating with peers who influenced him negatively. He stated that his core beliefs regarding his antisocial behaviours at the time of the offence have altered considerably for the better during his current period of incarceration. He described his actions (with respect to this offence) as 'desperate and opportunistic'. He stated that it is imperative that he seek assistance to address unresolved childhood trauma concerns, and conveyed a need for a sense of belonging as it was absent from his childhood.
As to his substance abuse, the offender stated that he commenced using illicit drugs at 9 years of age. The use fluctuated between weekend and daily use from 16 years of age. At the time of the offending behaviour, he was using methamphetamine, and he described a void that could only be filled by using and that when he was coming down he was itching for another hit. He acknowledged that his drug use is problematic and requires him to engage with alcohol and drug services. Significantly, he has remained abstinent throughout this period of incarceration. The offender said that his loss of money while gambling contributed to his opportunistic actions. He stated that he needed money to buy more drugs.
The offender identified his consistent use of aggression and violence from childhood. He stated that his behaviour had been learned from his father and other family members who had propensities to perpetrate similar behaviour. He acknowledged that he has difficulty in managing his anger and aggression, and at the time of the offence these feelings were exacerbated. He said that he would benefit from engaging in cognitive behavioural therapy to assist him in regulating his emotions.
Mr Mafi attributed his long-term substance abuse issues to his unaddressed mental health needs. His formative years were marred with severe physical and sexual abuse and he said that the abuse had shaped his antisocial behaviours and his former belief of minimal consideration given to the consequences of negative behaviour. He said that he no longer wants to be shaped by the trauma and if he is released, that he will make a concerted effort to engage with trauma-specific services.
As to his insight into the impact of his offending, Mr Mafi said that at the time of the offence, he believed that the victim deserved the violence inflicted as he was 'making deals in the open'. Upon reflection, he acknowledges that his actions were not justified, and he communicated the negative impact his behaviour had on the victim and the broader community. He further stated that he apologised to the victim, with whom he had inadvertent contact during his current period of incarceration.
The offender conveyed his willingness to engage with interventions to address his offending behaviour and identified the changes that he wants to make in his life. He stated that he is willing to undertake community service work.
Corrective Services NSW records indicate that the offender's previous response to supervision was considered borderline. When he completed the VOTP, in custody and the VOTP Maintenance Programme in the community, he failed to report as required and his substance abuse remained unresolved.
Ms Troeger assesses the offender at a medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).
If the court were to make a supervised order, Community Corrections would supervise the offender at the T3/Medium supervision level of the service delivery standards, meaning that he would be required to report to a Community Corrections officer every two weeks and receive home visits from the officer every eight weeks. A supervision plan would be implemented including referral to Oakdene House Foundation or Bankstown Drug Health Services to assess illicit drug misuse, referral to psychological services to address violence, aggression and trauma related concerns and implementation of the Corrective Services NSW Practice Guide for Intervention modules in relation to managing impulsivity and cravings, high risk environments and people, and developing communication strategies in identifying and strengthening prosocial relationships.
The offender was assessed as suitable to undertake community service work, and Community Corrections can provide the equivalent of up to 21 hours of work per month. If that order was made the offender should report to the Liverpool Community Corrections Office within 48 hours of receiving an order.

Submissions of the Crown

Ms Donovan says that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 (the Act) has been passed, and that no penalty other than imprisonment is appropriate. She appropriately conceded that the offender was entitled to a discount of up to 25% for the utilitarian value of his plea of guilty.
The Crown pointed to the guideline judgment in respect of offences of armed robbery being R v Henry [1999] NSWCCA 111. She notes that the case was affirmed by Hulme J in McDonald v R [2015] NSWCCA 280 at 94, and that it was appropriate to consider Henry as a starting point for offences of aggravated robbery. Henry details the circumstances in which the guideline judgment is generally applicable, being a young offender with no or little criminal history, weapon like a knife capable of killing or inflicting serious injury, limited degree of planning, limited (if any) actual violence but a real threat thereof, victim in a vulnerable position such as a shopkeeper or taxi driver, small amount taken, and plea of guilty, the significance of which is limited by a strong Crown case.
In McDonald, Hulme J identified some circumstantial factors that should be considered, being nature of the weapon, the vulnerability of the victim, position on a scale of impulsiveness or planning, the intensity of the threat or actual use of force, the number of offenders, the amount taken and the effect on a victim. The Crown submitted that whilst the instant offence was of short duration, that would not have reduced the fear experienced by the victim, and she relied on Chung v R [2017] NSWCCA 48 at 77.
As to objective seriousness, the Crown submits that this offence involved the offender and co-offender approaching the victim who was playing a poker machine. The offender and co-offender stood over and around the victim, surrounding him. The victim was sitting next to another friend of his at the time he was approached by the offender and co-offender. A conversation ensued between the four parties. After some time, the offender could see that the victim was winning and the offender demanded some money from him. The victim initially refused but the offender persevered and threatened the victim. At this time the co-offender was positioned so as to block the exit of the victim. The victim ultimately offered the offender one of his tickets worth $100. This did not placate the offender, and he continued to demand money from the victim. The offender then punched the victim with a closed fist to his face, causing the victim to almost fall off his chair. The victim suffered a split lip and bruising as a result of the punch. The offender and co-offender then stole the victim's poker machine tickets, cashed them in and left the venue together.
The Crown submits that the circumstances of the case are only broadly comparable to Henry and in some ways the circumstances are more aggravating. She notes that the offender was 28 years at the time of the offence, just shy of his 29th birthday, that he had a lengthy criminal history which includes similar offending behaviour including multiple convictions for robbery and assault offences, the offender did not use a weapon, there was a limited degree of planning, the offender did not know the victim prior to the encounter, the offence was opportunistic, there was violence in that the punch from the offender caused actual bodily harm, the victim was not vulnerable, a relatively small amount of money was taken (2 poker machine tickets worth $330.01 and $100.75) and the offender pleaded guilty (the Crown having a strong case as the offence was captured on CCTV). The Crown says that the offence was committed by two offenders, both of whom were significantly larger than the victim.
Ms Donovan submitted that the matter is distinguishable from Henry in that the offender was not as young, he had a lengthy criminal history, the offence was committed by two co-offenders, there was no weapon, there was actual violence inflicted, and the victim was not vulnerable. She says that but for the fact that the victim was not vulnerable, all of these distinctions increase the objective seriousness of the offending and elevate the criminality. The Crown therefore submits that this matter falls within the mid-range of objective seriousness.
As to relevant factors I must take into account under section 21A of the Act, the Crown says that the offender has a record of previous convictions and is a subject matter adverse to an offender: s21A(2)(d) of the Act. Further the Crown submits that his prior record for similar offences disentitles the offender to leniency. The Crown notes that the offence was committed in company of a co-offender and the fact that there were two offenders meant that they were able to trap the victim in his seat and prevent his escape: s21A(2)(e) of the Act.
As to mitigating factors, the Crown concedes that the offence was not part of a planned or organized criminal activity: s 21A(3)(b) of the Act, and a guilty plea was entered at an early opportunity: s21A(3)(k) of the Act.
As to subjective considerations, the Crown notes that the offender's criminal history dates back to 2007 when he appeared before Bidura Children's Court, and that he has been in and out of custody since that time for offences including robbery and assault.
Thus, the Crown submitted that due to the objective seriousness of this offence, and the subjective considerations, including the offender's prior criminal conduct of a similar nature, only a sentence entailing further full time custody would be appropriate. This submission is in response to the position put forward by Mr Mafi's solicitor that an Intensive Correction Order (ICO) would be appropriate in the circumstances.
In supplementary written submissions, Ms Donovan maintained her position with regard to full time custody being warranted in this matter based on the offender's significant criminal history and the serious nature of his offending behaviour. The Crown also relies on evidence of the offender adduced in cross-examination with respect to his long-standing substance addiction, his prior unsuccessful attempts at rehabilitation and his recidivism.

Submissions of Mr Mafi

Ms Mason, who appeared for Mr Mafi, conceded that pursuant to section 5 of the Act, no penalty other than imprisonment is appropriate, given the nature of the offence and Mr Mafi's criminal record. However, she cavilled for the imposition of an ICO in all of the circumstances.
Ms Mason noted that a plea at the earliest opportunity entitled the offender to a 25% discount: s 25D(2)(a) of the Act, that the time spent in custody on remand from 25 July 2018 to date is to be taken into account: s24(a) of the Act, and that the Henry guideline judgment is a 'relevant reference point' as per Azzi v R [2008] NSWCCA 169 at 37. However, Henry, she submitted, involved the use of a weapon, and thus caution must be used when referring to the guideline in a sentencing exercise with respect to aggravated robbery, and she submitted that it ought not to be used as a 'starting point'.
Ms Mason noted that the aggravating factors present in this case are the fact that the offence was committed in company, the prior record of convictions including convictions for serious personal violence offences, and that the offender was on conditional liberty at the date of the offence, ie that he was on a section 9 good behaviour bond for driving whilst disqualified. Mitigating factors said to be present are that the injury and loss was not substantial, that there is no evidence that the offence was part of a planned or organized criminal activity, (critically) that there are good prospects of rehabilitation (see paragraph 34 of Ms Burgoyne's report) and that Mr Mafi's demonstrated remorse, the latter two of which require insight and self-awareness.
Ms Mason submitted that objectively the offence falls within the low to mid- point on the range of objective seriousness because there was no weapon, there was only one other offender, there was one act of actual violence, the injury was relatively minor and there was a very small amount of money taken.
Ms Mason also noted the offender's drug addiction and that the offender's drug use started at an age when he was too young to exercise rational decision-making. She quotes Simpson J in Henry: Usually and certainly in relation to armed robbery, general deterrence is a very significant factor in the sentencing process. So is specific deterrence and so is punishment. The point I wish to make is that where a combination of two circumstances exists, then general deterrence, and other sentencing objectives such as retribution, may yield to rehabilitation. The two circumstances are (i) a background to the addiction that may explain the offender's decision to use drugs, and diminish his or her moral culpability for that decision; and (ii) demonstrated progress towards rehabilitation. The second is, to my mind essential before general deterrence can be seen to give way to rehabilitation. Where those two circumstances coincide, then the interests of the community may well be better served by the imposition of a penalty that leans towards furthering their rehabilitative process at the expense of the punitive and even the deterrent objects of sentencing.
Ms Mason submitted that the offender has demonstrated progress towards rehabilitation and that an ICO is available in the circumstances. She stated that I can take into account and impose up to a two-year sentence of imprisonment to be served by way of an ICO. She referred to R v Pullen [2018] NSWCCA 264 (which I have carefully considered), where Harrison J said at 89 'in cases where an offender's prospects of rehabilitation are high and where the risk of reoffending will be better managed in the community an ICO may be available, even if it may not have been under the old scheme'.
In a short further email submission, Ms Mason noted that the offender's regular general practitioner up to his incarceration in July 2018 has indicated that as a result of his present circumstances, she no longer wants him as her patient. Mr Mafi's wife is endeavouring to find a new one for the entire family. I am also informed that when the offender was working for United Resource Management as a truck loader, he would work from 5:20 am to 1:20 pm. He would leave home at 4:30 am to get to work. When concreting, he would start at 7 am and generally finish by 3 pm and would leave home about 5:30 am to get to work. It was noted that Mr Mafi could attend upon a new general practitioner and advise of his childhood sexual abuse and request a referral to an appropriate counsellor or psychologist who could provide 10 sessions per calendar year as part of a Mental Health Care Plan funded by Medicare.
Ms Mason suggests that conditions of an ICO could be to: 1. Accept the supervision of Community Corrections, including any recommendations they make as to treatment for substance abuse and childhood sexual abuse, and to participate in the VOTP Maintenance and outreach program under the guidance of Community Corrections; 2. Attend upon a general practitioner with a view to obtaining a Mental Health Care Plan in relation to counselling and treatment with respect to childhood sexual abuse and substance abuse; 3. Undertake community service work; and 4. Abstain from alcohol and illicit drugs.
Ms Mason also made submissions about the offender's deprived background. She submitted that his childhood was marred by severe physical punishments, sexual abuse by multiple family members and the general absence of his parents. He would wander the streets from the age of 4 or 5 and when older, spend large amounts of time outside his home with friends. He was introduced to alcohol and cannabis from about 9 years of age and was given alcohol by family members and cannabis through his street friendships. He progressed to ice through the same people at 14 years of age. His schooling was highly disrupted with a number of moves, and his behaviour was poor and he would get into regular fights and was non compliant with teaching staff. He went to special schools and was eventually expelled. The offender's criminal record commenced at age 15. Given his childhood experiences and deprivation which she submits is unchallenged by the Crown, Ms Mason says that it is unsurprising that the offender's education experience was poor, that he developed early substance abuse issues, and that he commenced offending whilst still a child.
Ms Mason submits that the offender's significantly deprived background is likely a direct cause of his own trajectory towards drug use and offending. In that sense she submits that his moral culpability is to be assessed as less. She further submits that the mitigating effect of his deprived background calls for a greater emphasis on encouraging rehabilitation in the sentence to be imposed. She relies on the following paragraphs from Bugmy v The Queen [2013] HCA 37, where the majority said at [43-44]: The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Amongst other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) for all the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.
I find that the offender has had a significantly deprived background, taking into account the matters set out previously in this judgment. I give it full weight in arriving at an appropriate sentence.

Sentencing approach

As conceded by Ms Mason, no penalty other than imprisonment is appropriate, taking into account the offence, its circumstances and Mr Mafi's criminal history. The real question is whether or not an ICO ought to be imposed in all of the circumstances of the case. I have given this matter serious consideration over an extended period.
As to objective seriousness, I find that it falls in the low mid-range for reasons advanced by both Ms Donovan and Ms Mason. Whilst the injury and the money taken may be viewed as minor, the offender's actions were menacing.
The purposes of sentencing are expressed in s3A of the Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As often occurs, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given that the offender's own drug addiction played a significant role in his offending behaviour.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated [in s3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law [1] . There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen [No 2] [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non parole period (if any), and the factors referred to in s21A of the Act. A sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
Matters adverse to an offender must be proved beyond reasonable doubt, whilst those favourable to an offender need only be proved on the balance of probabilities. Aggravating factors are not in dispute, and have been addressed by both Ms Donovan and Ms Mason. The mitigating matters that come into play as referred to in s21A(3) of the Act are, inter alia, as follows:

Plea of Guilty - s21A(3)(k)

The offender pleaded guilty at the earliest opportunity and accordingly I have discounted the sentence I would otherwise have imposed by 25% to reflect the utilitarian value of the plea of guilty. I will indicate the quantitative effect of that discount on the sentence later in this judgment.

Rehabilitation - s21A(3)(h)

There is a case in favour of the offender's prospects of rehabilitation. He has shown some insight into his drug use and its impact on his recidivism, although I note that he is still in the early stages of his abstinence when compared to his very long period of drug abuse. Ms Burgoyne noted that he is in early remission in a controlled environment. He has some support in the community and in particular a loving wife, and it is hoped that he ultimately will avail himself of a Mental Health Care Plan so that he can comes to terms with issues relating to sexual and substance abuse. The offender has clearly made a good start, and I satisfied that he is presently on the road to rehabilitation. I have taken into account the report of Ms Burgoyne, the SAR and the evidence of both the offender and his wife.
It is clear that Mr Mafi has been addicted to drugs for a significant period of time and, in my view, it is in the best interests of both him and the community that he addresses that problem. The court encourages him to continue down the path to rehabilitation.

Remorse - s21A(3)(i)

Mr Mafi has demonstrated some insight into his offending behaviour. He has only recently commenced doing so, and the court hopes that he will avail himself of every opportunity so that he fully understands how he comes to be before the court on this occasion, how his offending has affected his life and the lives of those he loves, and the impact that his offending has on the community.
I am satisfied that the offender has begun to appreciate the seriousness of his offending and I take that into account.

Pre-sentence custody

The offender has spent a total of 344 days in custody for this offending so far. In accordance with s24(a) and s47(3) of the Act, I have taken this into account. Ordinarily a sentence is backdated to take into account pre-sentence custody, and I do so in the present case.

sentence

I have taken into account the various purposes of sentencing under s3A of the Act that I referred to earlier in this sentence judgment.
Having had regard to s5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate.
In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is imprisonment for 20 years.
As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine whether or not I should impose a further period in custody or an ICO.
I note that the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated: We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.
Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Act). The appropriateness of imposing an ICO in this case has troubled me, and is finely balanced. However, ultimately I decline to do so, and I am minded to impose a further short period of custody for the following reasons. First, whilst the offender has become abstinent whilst in custody, he has only recently shown self-awareness about the consequences of his drug related behaviours. Second, his previous attempts at becoming abstinent, even with interventions have not been successful. He is said to be in early remission in the controlled environment of custody. He continues to have anger management and anger issues. Third, when out of remand, the offender ought to be able to access the VOTP Maintenance outreach service and psychological services to prepare himself for re-entry into the community. Finally, I note that Ms Troeger assessed the offender at a medium risk of re-offending.
Having regard to the subjective case of the offender, so eloquently put by Ms Mason, I am not satisfied that the offender's risk of reoffending, and therefore the safety of the community which is the paramount consideration, is more likely to be addressed within the community rather than in gaol (s66(2) of the Act). In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of the Act).

orders

Applying a 25% discount for an early plea of guilty, I sentence you to three years imprisonment. The sentence is to be backdated to the day you were taken into custody on 26 July 2018. I set a non-parole period of 18 months, which will expire on 25 January 2020. You will be eligible for release on that day. In setting that non-parole period, I find special circumstances, including the prospect of your rehabilitation from drugs, and the physical and sexual abuse and the disadvantage you suffered as a child.
You are convicted of the following offence: 1. aggravated robbery - inflict actual bodily harm pursuant to section 95(1) of the Crimes Act 1900;
You are sentenced to a term of imprisonment for 3 years.
The sentence will be backdated to the date you were taken into custody being 26 July 2018 and will expire on 25 July 2021.
I set a non-parole period of 18 months. You will be eligible for release on 25 January 2020.

Endnote

Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477 per Mason CJ, Brennan, Dawson and Toohey JJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2019

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)

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Judgment (13 paragraphs)

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Cases Cited (9)