R v Mason [2005] NSWCCA 403 | Case summary

The facts 7 At the sentencing hearing the prosecution and the applicant tendered an agreed statement of facts relating to the principal count and also to the two charges on the Form 1. The agreed facts disclosed that at about 6 pm on Sunday 13 April 2003 Andrew Liu was working as a taxi driver in the Pagewood area. He drove his taxi towards the rank at East Gardens Shopping Centre and saw three men standing on the curb side of Bunnerong Road, including the applicant. Mr Liu stopped his taxi and the three men got into the cab. The applicant was seated in the back seat, directly behind Mr Liu. One of the other men asked Mr Liu to wait for one of their mates who was coming. A short time later a fourth man entered the taxi and sat in the left rear passenger seat. One of the men told Mr Liu to drive to Kingsford. The applicant then directed Mr Liu to turn at various streets and one of the other men told Mr Liu to turn into a parking lot on the east side of Housten Road. Mr Liu then drove to the end of the parking lot and parked the taxi parallel to a white coloured car. All of the males, including the applicant, got out of the taxi and two of the men walked to a fence on the left side of where they had parked. One man walked to a nearby flight of stairs, followed by another of the men. Mr Liu believed the men were going to run so he got out of the taxi and walked towards the stairway. Mr Liu approached one of the men and asked that he pay the $9 for the trip. One of the men said, "Yeah, wait, we're going to Randwick." Mr Liu then walked to the driver's side of the taxi. The applicant walked towards Mr Liu and lunged at him, grabbing him by his shirt, at which time Mr Liu noticed that the applicant had a knife in his hand. The applicant said: "Give me your money or else." Mr Liu said, "Okay." One of the other men then walked behind Mr Liu and locked his arms behind his back. One of the other men then began to search Mr Liu and removed $300 from his pocket. Another searched the inside of the taxi and one of them opened the boot of the taxi. One of them yelled at Mr Liu, "Give me your mobile." 8 The applicant was still holding the knife and said to Mr Liu, "Get into the boot." Mr Liu complied and got into the boot. The boot was then shut with Mr Liu inside. Mr Liu heard noises coming from inside the taxi as if it was being searched. A short time later he heard somebody say, "No, no, no", and then it all went quiet. Mr Liu then commenced to bang on the boot and tried to release himself by pressing the internal release button. 9 With respect to the principal count on the indictment the agreed facts disclosed that at about 6.20 pm Mr Poong Nam returned to his daughter's car after shopping and noticed a taxi parked next to the car with three men standing between the taxi and his car. Mr Nam heard someone calling "help" and walked to the taxi. The applicant and two other males then confronted Mr Nam. The applicant was holding a knife and held it at face level to Mr Nam, and told him to take all the money he had. The applicant then took the mobile phone of Mr Nam from his belt and Mr Nam was forced backwards. He told the men that he had no money. He was then forced to the ground and one of the males grabbed a leather pouch from him that contained his house keys and other personal items. Mr Nam then called out, "No, no, no." This is clearly what Mr Liu heard being called out, from inside the boot of the taxi. 10 Mr Nam then felt something on his face and pain to his right ear and noticed blood on his hand. Mr Nam called for help and ran to a local grocery store and asked the owner to call triple O. He returned to his car and remembered hearing noises in the boot of the taxi. He released the boot from inside the driver's side door and Mr Liu was released. 11 The police arrived and Mr Nam was taken to the Prince of Wales hospital where he was treated and received numerous stitches to a wound to his face that extended from his right ear to his right cheek. 12 On 27 April 2003 the applicant was arrested in relation to the Hillsdale robbery, the second charge on the Form 1. On 12 June 2003 Mr Liu identified the applicant from photographs. The applicant was also identified by a fingerprint found on the taxi. On 18 June 2003 the applicant was arrested and charged. 13 With respect to the second charge on the Form 1, the agreed facts disclosed that at 9.40 pm on 15 April 2003 the police spoke to another offender Eden James Red, and two other males, Mark Bentley and James O'Brien, outside the residence of Red in Baird Avenue, Matraville. All of them appeared to be intoxicated and were drinking bottles of beer at the time. James O'Brien was arrested for offensive behaviour. 14 At about 10.26 pm Const Lewen noticed the applicant and Eden James Red with two other males walking north on the western side of Bunnerong Road. At about 10.30 pm Troy Campbell, who was 17 years of age, got off a bus on Bunnerong Road at Hillsdale and was walking north along the footpath, talking on his mobile, when he was approached by both the applicant and another male. This was a short distance from the residence of Eden Red. The applicant attempted to grab Mr Campbell's mobile phone from his hand and at the same time said, "Give me your phone or I'll stab you." Mr Campbell held onto the phone and all three males grabbed him around the neck area and pushed him. One of them hit him over the top of the head with a beer bottle, causing his head to bleed. Mr Campbell felt pain to the top of his head and he lost his balance and fell on his knee. All the males then said, "Give us your phone." Mr Campbell said, "I'll give you my phone, just let me take my SIM card." Eden Red said to Mr Campbell, "Give me your wallet." The applicant grabbed the mobile phone from Mr Campbell's hand and Mr Campbell then removed his wallet from his pocket and opened it and said, "Here, take the money, not my wallet." Eden Red snatched the money from the wallet comprising two $20 notes. Mr Campbell then put his wallet back into his pocket. The males started to walk away and Mr Campbell called out to them, "Just let me grab my SIM card please." The applicant handed the phone back to Mr Campbell. Eden Red said, "Just let me take your wallet or we'll stab you." Eden Red reached down and took his wallet from his pocket. Mr Campbell then removed his SIM card and they took the phone from him. 15 Mr Campbell managed to grab his wallet back from Red and the males. The males then left and walked a short distance from Mr Campbell and then threw a bottle of beer at him. He sustained a cut to the top of his head as a result of being struck with the beer bottle and was taken to Prince of Wales hospital that evening where he received a number of stitches to his head. The following morning Mr Campbell made a statement to police and was shown some photographs. He said he was fairly certain that the blonde male, that is the man Red, was the man who hit him on the head with a beer bottle. 16 On 17 April 2003 police executed a search warrant at the residence of Red at Baird Avenue, Matraville. Red was located at the premises and was arrested. During the search of the premises police found the phone taken from Mr Campbell and a number of items of clothing were located in the washing machine, which matched the description of clothing worn by Red at the time of the robbery. 17 The applicant was arrested on 27 April 2003 at Maroubra Junction. He was taken to Mascot police station where he declined to be interviewed or participate in a line up. 18 The sentencing judge determined that these facts disclosed "extremely serious criminal offences." His Honour found that: "in relation to the principal count on the indictment the offender threatened the victim, Mr Nam, who was sixty-one years of age, with a knife, when Mr Nam came to investigate noises coming from a taxi. He heard loud banging and he thinks that he heard someone calling for help. In fact, the pleas of help were being made by the taxi driver, Mr Liu, who had earlier been robbed by the offender and his co-offenders, and terrorised and forced into the boot of his taxi, whilst the applicant threatened him with a knife." 19 His Honour found that Mr Nam was forced to the ground and cut with a knife from his right ear to his cheek, being a laceration of approximately ten to twelve centimetres in length, and one centimetre deep. There was near complete dissection of his right lower earlobe. 20 With respect to the first charge on the Form 1, that is the robbery of the taxi driver, Mr Liu, his Honour found that he would undoubtedly have been in a state of the most extreme terror and fear, having been terrorised by the offenders and forced into the boot of his taxi, unaware as to what was to be his ultimate fate. 21 With respect to the second charge on the Form 1 the seventeen year old victim, Mr Campbell, had just alighted from a bus and was walking home, when he was threatened by the applicant to hand over his mobile or he would be stabbed. One of the co-offenders then struck Mr Campbell over the head with a beer bottle. 22 With respect to the principal count on the indictment the Crown relies upon two circumstances of aggravation, namely that the applicant was armed with an offensive weapon, namely a knife, and that he committed the offence in company. 23 In relation to the first charge on the From 1 his Honour found that the objective seriousness of the offence was aggravated by the fact that the victim, a taxi driver, was in a vulnerable position: see s 21A subs 2(1) of the Act which subsection specifically includes, in the class of persons who are protected by the subsection and classified as a vulnerable person, persons who work as taxi drivers. 24 His Honour found that a further circumstance of aggravation is that with respect to that offence there was clearly some pre-planning by the applicant and his co-offenders in directing the victim to an isolated locality, where he could be robbed: see s 21A subs 2(n) of the Act. 25 All three charges have in common that the applicant was either in possession of a knife or threatened the victim that he would use a knife. 26 The sentencing judge related the relevant subjective factors. The applicant was born on 12 January 1985 and was eighteen years of age at the time of the commission of the offences. He is Aboriginal. The applicant suffered a traumatic childhood with many disruptions. His father was a violent alcoholic and the applicant was required to move from refuge to refuge, often moving with his mother and four sisters. The applicant spent most of his childhood at Mission Aboriginal Reserve and was subsequently exposed to drug influences, criminality, alcoholism and violence. The applicant struggled in primary school and failed to complete his High School Certificate due to severe behavioural problems and conduct disorder. He has never been employed. The applicant has a girlfriend, Jade Shaw, and they have a three year old daughter. 27 The applicant reported to Mr Clarke-Saunders, a consultant psychologist that he was severely under the influence of cannabis and alcohol prior to committing the offences. Mr Clarke-Saunders states that he found evidence of post-traumatic stress disorder caused by the applicant being a victim of his father's ongoing violence. It is apparent that the applicant suffers from a poly-substance disorder. He has suffered severe paranoia while under the influence of cannabis, although there is apparently no evidence of a psychosis. Mr Clarke-Saunders found that the applicant had a delayed psycho-social development and had developed an inferiority complex. 28 The sentencing judge received evidence from Mr Kenny Foster who is the chairman of the local Aboriginal Council at La Perouse. He described in his Honour's words: "The clearest and most poignant of terms the history of endemic unemployment and alcohol abuse and deprivation at the mission. Those are matters which cannot help but greatly affect anyone who hears of such deprivation being still apparent in our community. He described the offender as a sad case and I accept, as I shall say later in these reasons, that his criminal conduct, both in the past and the conduct which brings him before the Court today for sentence is, to a large measure, a result of that deprived background." 29 The sentencing judge also related the evidence of the applicant's girlfriend in which she indicated that the attitude of the applicant had changed since he had been in custody. He was looking forward and thinking about getting an education. Evidence was also received in the form of a letter from the applicant's mother describing the applicant as a polite, well mannered, loyal and loving son. She continues to fully support him. A testimony was also received from Shane Thomas Williams who is the great-uncle of the applicant. 30 When sentencing the applicant the sentencing judge referred to the decision of this Court in R v Fernando (1992) 76 A Crim R 58 which considered the principles relevant to the sentencing of aboriginal offenders. His Honour's understanding of that decision was reflected in principles which his Honour described in the following terms: · The relevance of the aboriginality of an offender is not necessarily to mitigate punishment, but rather to explain or throw light on a particular offence and the circumstances of the offender. · It is proper for the Court to recognise that the problems of alcohol abuse and violence, which to a very significant degree go hand in hand within aboriginal communities, are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. · While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socioeconomic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity, and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. · In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt, yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. · In sentencing an Aboriginal offender who has come from a deprived background or is otherwise disadvantaged by reason social or economic factors, or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him or her and which is dominated by inmates and prison officers of European background with little understanding of his culture and society, or his or her own personality. · In every sentencing exercise, while it is important to ensure that the punishment fits the crime, and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest in the rehabilitation of the offender and the avoidance of recidivism on his part. 31 When sentencing the applicant the sentencing judge indicated that he had had regard to these principles and confirmed that he found that the applicant's criminal behaviour is related to his alcohol abuse being reflective of his deprived socio-economic circumstances and environment when growing up. His Honour indicated that these factors called for some measure of mitigation but he did not consider that great weight could be placed on them. His Honour said that he took this view "primarily because of the offender's record of criminal convictions which discloses that he is clearly not unfamiliar with the criminal justice system." In this respect his Honour correctly identified that the applicant first came into contact with the system in September 2001 when he was sixteen years of age and was convicted in the Children's Court of break, enter and steal for which he was placed on probation and supervision by Juvenile Justice. 32 He was later convicted of assault occasioning actual bodily him, common assault and having custody of an offensive weapon. Again he was placed on probation with a regime of intensive supervision imposed. In December 2002 he was convicted in the Children's Court of malicious wounding and was placed on an eight month control order, suspended on condition he accept further supervision by Juvenile Justice with respect to drug and alcohol counselling and rehabilitation. On that date he was also convicted of further offences, including resist officer in execution of duty, maliciously destroy or damage property and assault officer in the execution of his duty. 33 Again, he was placed on probation for twelve months on condition that he accept the supervision of Juvenile Justice. He was also convicted on that day of break, enter and steal and steal property from a dwelling. He was ordered to complete 100 hours of community service. 34 On 25 January 2002 he was convicted in the Sydney District Court of armed robbery and was ordered to complete 100 hours of community service. In January 2004 he was convicted in the Local Court of common assault, escape police custody and assault police officer in execution of duty. Those offences were committed on 25 January 2003, that is, prior, to the commission of the offences for which he was being sentenced in this matter. With respect to those convictions he was sentenced to imprisonment for twelve months with a non-parole period of nine months. 35 Faced with this record the sentencing judge concluded that although the applicant had a deprived background relating to his endemic alcohol abuse and violence with the aboriginal community that "cannot forever be called in aid by him as a matter of mitigation of his continuing serious criminal behaviour. Further, it is clear that the offender's criminal behaviour in the past has related to his drug and alcohol abuse, and so it cannot be said that with respect to the offence for which he is now to be sentenced that that offence was an aberration committed at a time when he was uncharacteristically under the influence of drugs and alcohol." 36 The sentencing judge also identified as an aggravating factor that when the offences were committed the applicant was subject to a twelve month probation order imposed in the Children's Court on 10 December 2002. He was also on bail for the offences for which he was ultimately convicted and sentenced in the Local Court on 28 January 2004. 37 His Honour referred to the matters on the Form 1 and in doing so referred to the judgment of the Chief Justice in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518. In particular his Honour referred to the observations of the Chief Justice at [18]: "A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence or to alter the nature of the sentence than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial." 38 The sentencing judge gave attention to the fact that the applicant was young. He correctly identified that considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the rehabilitation of the offender. However, he also recognised that a significant factor was the closeness of the age of the offender to eighteen years. Furthermore, when young offenders conduct themselves like adults and commit serious crimes they may attract less leniency in sentencing than their age might otherwise demand (see Tran [1999] NSWCCA 109 per Wood CJ at CL). 39 His Honour also referred to the fact that having recognised the youth of an offender it was important to correctly evaluate the criminality of the offence. The criminality may be mitigated where the offence can be described as an impetuous act or an act arising from the immaturity of the offender. However, it will be otherwise when an offence has been planned and cannot be described as impetuous (see Hearn [2001] NSWCCA 37). 40 Applying these principles his Honour found that the first charge on the Form 1 involved some pre-planning. However, the principal count was less planned and was committed when the victim happened upon the scene of the earlier robbery. In these circumstances his Honour concluded that the youth of the offender was of some significance although not high as may sometimes be the case. His Honour was mindful of the fact that the offences were of a "very serious nature" and the element of pre-planning with respect to one of them and the applicant's long criminal history made his youth of lesser significance. His Honour ultimately assessed the objective seriousness of the offence as falling within the middle of the range. 41 His Honour also had regard to the fact that the offender pleaded guilty but found that it could not be said that the plea of guilty was entered at the first reasonable opportunity. He pleaded guilty to the principal count on 5 July 2004 although he had previously been committed for trial on all charges. His Honour found that an opportunity had been available to the applicant to plead guilty at an earlier date. 42 His Honour reduced the sentence he would otherwise have imposed finding a utilitarian value in the order of fifteen percent. His Honour also had regard to the expression of remorse and contrition which the applicant had expressed to Mr Clarke-Saunders. His Honour found special circumstances warranting a variation of the statutory period in relation to the period of non-parole. His Honour found that the applicant's youth and the fact that this will be his first extended prison sentence in an adult gaol constituted special reasons warranting the variation. 43 The application before this Court raises two grounds of appeal being:

R v Mason

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