Lucas McLaws appears for sentence today in relation to an offence he pleaded guilty to on indictment when arraigned on 26 March 2019.
That charge alleged that he, on 17 October 2017 in the State of New South Wales, did rob Resham Singh of certain property, namely, $350 in Australian currency, 30 packets of cigarettes, a backpack containing an Apple MacBook computer and personal items, the property of the said Resham Singh, at 7‑Eleven Glebe, whilst in the company of Antonio Funagavaka, Rhys Pouga and Rocky Paugh.
There is a matter on a Form 1 to be taken into account, and that is an offence committed on the same day, of being carried in a conveyance, taken without the consent of the owner. The offence occurring at Bidwell. That Form 1 matter will be referred to in a moment, in the context of the facts of the case.
There is a Statement of Agreed Facts, but before I turn to that, there is some contextual history that is relevant for two reasons. One, to put into context the offender's criminality with the conduct of his co‑accused, and also to identify the issue of what discount is available for the utilitarian benefit of the plea of guilty.
The history of the matter is set out very helpfully by the Crown in the Crown's Sentence Summary. I will cite parts of that detailed material.
The prisoner was committed for trial from the Local Court in relation to five charges of robbery whilst armed with an offensive weapon and one charge of robbery in company, causing either wounding or grievous bodily harm. The precise particulars of those charges I do not know and it does not matter for my purposes.
The 'being carried in a conveyance" charge, contrary to s 154A(1)(b), Crimes Act 1900, was referred to the Court as a related offence under a s 166 certificate. The trial was listed for 25 March 2019. On 27 July 2018, the Crown indicated before the District Court, that there would be no further proceedings in relation to five of the charges brought against the prisoner and that only one charge would be proceeded against. That was an offence contrary to s 97(1), Crimes Act 1900, the section under which the prisoner is currently charged, which carries a maximum penalty of 20 years' imprisonment and has no standard non‑parole period.
R v McLaws [2019] NSWDC 933 | Case summary | Zoe
Thus, a fresh indictment was filed, pleading robbery in company, in lieu of the original offence committed for trial which was a robbery whilst armed with an offensive weapon. The matter was indicated as being ready to proceed to trial on 14 March. On 25 March there was some delay and then on 26 March 2019 a further amended indictment was presented and the prisoner entered a plea of guilty to this charge which was said to be in identical terms to the indictment filed and served on 27 July 2018.
I should point out that in respect of a number of the charges with which the prisoner was originally committed for trial, the co‑accused, I understand, are required to appear for sentence at a later time this year. They have each pleaded guilty to five charges of robbery whilst armed with offensive weapons, and one charge of robbery in company, to cause wounding or grievous bodily harm. The use of a conveyance taken without the consent of the owner will be dealt with on a Form 1 in relation to each co‑offender.
One of the co‑accused has another charge of common assault. Another co‑accused has three charges of dishonestly obtain property by deception. Each of those charges again, being placed on a Form 1 in respect of the relevant offender. They are to appear before his Honour Judge Townsden, on 25 October 2019. The precise particulars of the matters to which they have pleaded guilty, are not known to me but they would include the events with which I am now concerned. They would also show, in the instance of the co‑accused, a course of conduct of which the criminality of this prisoner was just one aspect and reflects the leading role the other offenders took in the commission of the offence with which I am concerned, involving this offender. This is shown in the Agreed Statement of Facts.
The prisoner was arrested on 10 November 2017. The Crown informs me the prisoner has been in custody 332 days, from 10 November 2017 to 12 June 2018, and then from 11 March 2019 until the present. There is available to me information that the prisoner was at Orana Haven at a Drug Rehabilitation Program where he spent 44 days within that facility. It is submitted that I should recognise that as quasi‑custody and that I should give him credit for that time at Orana Haven. I am prepared to give him 50% of those 44 days, which amounts to 22 days. That means the prisoner will get credit for 354 days which will require backdating any sentence I impose.
The facts in relation to the matter are these. The prisoner at the time of the offence was 18 years of age, being born in January 1999. Antonio Funagavaka was born in December 1999 and was 17 years of age. Rocky Pouga was born in May 2000 and was also 17 years of age. Rhys Pauga, whom I assume is a brother or a cousin, was born in June 2001 and was 16 years of age. Despite the fact that they are younger than this prisoner I would not differentiate between them on the basis of age. As I said earlier, the objective material and the factual circumstances of the offending reveal the prisoner did not have a leading role in the commission of the offences. The co‑offenders were clearly, either at the time, or from past experience, well capable of performing the crimes with which they are charged without the help of this particular prisoner.
The victim of the 'taking of the vehicle', had his car taken from West Pennant Hills. It was used in the course of the commission of the offence with which I am concerned. At 3.25am on 17 October, the three co‑accused and this prisoner were captured on CCTV footage, entering the 7‑eleven on Glebe Point Road, Glebe. Funagavaka was armed with a golf club. Rhys Pouga was armed with a hammer and Rocky Pouga was armed with a machete and wearing a black cap with a white logo, a black and white face covering, and various items of clothing described in the facts, which apparently distinctly identify each of the three men.
Money and cigarettes were demanded from the staff member, Mr Singh; 30 packets of cigarettes were taken with an estimated value of $1,000. Pouga entered a rear storeroom and stole a backpack that contained the personal property of Singh which included the Apple MacBook and study material and when the men left the store the prisoner was seen outside clearly visible on the CCTV footage available. The prisoner was also wearing distinctive clothing which is described in detail in the facts.
The relevant motor vehicle that had been taken was captured on CCTV footage parked at Bidwell at 4.40am that day. Also captured on that CCTV coverage were five males including the four offenders walking from the vehicle with Funagavaka still carrying a golf club.
As to their other activities and the dates of those other activities I have no information whatsoever. It is clear by reference to the Agreed Facts and in the context of his plea of guilty, that the offender's role in the joint criminal enterprise was a person operating as a "cockatoo" or a lookout. But it is also clear to my mind in the way in which the robbery was executed that such planning that was undertaken for the robbery would have largely fallen to those who had chosen to arm themselves in order to confront a member of the store. What the prisoner gained from the robbery is not known and there is no evidence of any damage to the motor vehicle.
In relation to the matter on the Form 1, I have had regard to the guideline judgment of the Court of Criminal Appeal, Attorney General's Application No 1 (2002) 56 NSWLR 147. I referred to some of the details in the judgment I delivered earlier today which I do not think I need repeat, other than noting what the Court said, particularly at [18]-[44]. Acknowledging what the learned Crown put to me that, whilst it is additional criminality insofar as the offender was conveyed in the vehicle, the criminality is a minor extension of the criminality involved in the armed robbery. Bearing in mind the car was used for that purpose and that there are no matters of aggravation drawn to my attention such as the vandalising of the car to the detriment of the owner although he was, of course, denied access to his car for some period of time.
The prisoner's criminal history reveals that he has a finding of guilt for a similar offence in the Children's Court on 27 August 2015 for which he was placed on probation. Having appealed this finding of guilt to the District Court, that appeal was dismissed and the probation was confirmed.
He has a finding of guilt at an earlier time for being carried in a conveyance at the Children's Court when he would have been approximately 13 years of age. There is also a finding of guilt in the Children's Court for common assault which was dismissed with a caution, thus, was a relatively minor matter. His record reveals no other convictions as an adult.
The prisoner's custody I have already referred to. The submissions of his learned counsel were that I should consider an order involving the making of an Intensive Correction Order pursuant to s 7 Crimes (Sentencing Procedure) Act 1999. The difficulty with that as far as I was concerned, even though it was submitted from the bar table that I had power to make such an order without a 'Sentencing Assessment Report' is, that I would not make an order under s 7 unless I had an assessment report. There seemed to be an assumption at the bar table that I might, without the benefit of an assessment report, consider an ICO and then dispense with the requirement of community service on the basis that it was not required. Thus, I did not need Community Corrections to tell me whether the accused was suitable or eligible to perform community service. The issue of whether someone should serve community service consequent upon the making of an Intensive Correction Order, I would have thought, was a matter that it was partially informed by whatever information could be made available to the Court by the Community Corrections Service in a 'Sentencing Assessment Report'.
In any event I would not be inclined to make such an order without an assessment report unless I had some material that reflected upon the suitability and eligibility of a person to perform community service and in most Intensive Correction Orders one would have thought the performance of community service was a bare minimum requirement for a person to avoid having to serve full-time custody.
I have a psychological assessment report and a reference from 'Infinite Hope' which is an organisation I have not heard of before. This is a 'not for profit' organisation to divert Aboriginal youth from the criminal justice system, a very worthy cause that deserves encouragement. I will come back to that report shortly.
It was the case Mr Rees for the accused was proposing to call his client to give some "short evidence". I gave an indication, having read all the material, as to what likely outcome may occur in this matter in the context of forming the view that I could not at this stage order an ICO. Of course, I could adjourn the matter for another six weeks to get a report from the Community Corrections office. But I do not think it is in the interests of justice for a further delay to occur in the matter particularly in circumstances where such a report could have been asked for back in March of 2019.
The psychological assessment report is a very thorough report. It sets out a great deal of history about the prisoner's background. I do not propose to delve into the detail of that beyond making these observations. Firstly, the prisoner is an Aboriginal person. The prisoner has been, on his account, greatly neglected by both of his parents in a range of ways over an extended period of time. Although I am not favoured with his father's criminal history the report notes that the prisoner was subject, while being under his father's care for an extended period of time, to unnecessary physical discipline and that he was exposed to his father's "criminality, drug use and housing instability".
The prisoner complained to the psychologist that whilst his father generally had the care of him, as a child he would be "dumped" on his mother - or his grandmother, that is the father's mother, when the father was "incarcerated or socialising". Thus it can be seen that the prisoner really has not had mentors or persons that could provide some yardstick or standard of behaviour that might assist him to avoid offending. Hence the role of 'Infinite Hope' in providing some mentorship to the prisoner is very important.
The prisoner lived with his mother for a period of time but she had her own problems, including problems with alcohol and the prisoner was largely left to his own devices. He did get on very well, however, with his paternal grandmother who, during the times that he stayed with her, offered him the "love, care and affection" that he did not receive from his parents. However as the psychologist notes from the history given to the psychologist that appears to have been "intermittent".
The prisoner has had a number of diagnoses of conditions that would have contributed to misconduct and antisocial behaviour including what is described as "Oppositional Defiance Disorder" (ODD), that is an unwillingness to comply with rules and instruction, and Attention Deficit Hyperactivity Disorder (ADHD) for which he has been medicated but with "limited success".
He has had an interrupted education and discontinued his education before Year 10. He has had very brief employment experience. Although he did obtain one job described as a "pick-packer," but he found himself being dismissed in circumstances that, the prisoner complained, were "unfair" because they "didn't give me a chance."
It was noted that the prisoner in his presentation and history highlighted "a propensity to be self-sabotaging as well as having a sense of hopelessness about his future." He has had one stable domestic relationship with a woman who is seven years his senior who has a number of children. That relationship is something that may be available to him on his release from custody, though none of the children are his own. He does not have any children.
He has a history of a substance and alcohol abuse, particularly drug abuse having started using cannabis at the age of 12. He has regularly used MDMA and has had some association with amphetamines. He was admitted to the Orana Haven Drug and Rehabilitation Program in 2018 after being arrested in relation to current matter. But his involvement in that program was prematurely terminated for having in his possession a knife. His possession of the knife he said was "quite innocent," (to use my words) because he was expecting to go "pigging" with his uncle. He thought he was approved to have the knife in his possession; it turns out he was not. The prisoner has acknowledged the fact that he "stuffed up" in his involvement in this particular offending.
He had one fearful experience as a child that has had some continuing impact upon him. It would seem to be the matter in 2013, that I referred to, of being carried in a stolen motor vehicle. Apparently he was 12 years of age. The car was in the Kings Cross area and police discharged a firearm, injuring one of his friends. This incident has had a recurring effect upon him and the psychologist opines that there are some symptoms described by the prisoner, consistent with post-traumatic stress disorder.
The prisoner has also had episodes of self-harm at the age of 11 and again at the age of 18. He has had counselling from time to time and is willing to participate in counselling in the future. There is no psychometric made of him because of the time constraints.
So far as the formulation of his circumstances is concerned, noting the history which I have summarised, the psychologist is of the view that the offender has a history of emotional and behavioural problems, exemplified by diagnoses of ADHD and ODD. He has also experienced social anxiety and symptoms of trauma since his adolescence and this has had a big impact upon his social functioning. He is easily influenced by his peers who display the same behavioural and emotional challenges that he has had, engaging in anti‑social conduct and drug use. He concedes being easily led by what I have described as quite "delinquent and anti-social peers." He has a propensity towards risk taking.
In relation to the facts of this matter, of course, there can be no doubt that his association with these three younger people, with far greater involvement in the serious criminality of the type with which I am now concerned, has contributed to his offending on this occasion without the benefit of any psychological explanation.
The psychologist expressed a view that his "social anxiety" rendered him, as I said earlier, more susceptible to outside influence. The prisoner has struggled with self-control and is a person who has not received "sufficient treatment or guidance on how to regulate himself," acting time and again on impulse.
However, the prisoner has insight as to the character of his wrongdoing. He is a person who lacks maturity both by reason of his age and of his social development and immaturity has been a contributing factor to his offending.
His prospects of rehabilitation, however, are said by the psychologist to be viewed as good in the context of him being at a transitional stage of his life. If given the right support, he may be able to disconnect himself from the social context in which this offending has occurred.
There are various recommendations made about the offender being available to undertake programs within the gaol system. I have noted that. What I am proposing is an order that, if implemented, would permit his earlier release to parole. In which case, upon his release there would be a need for him to not only have psychological intervention, but also have treatment through his GP under a Mental Health Care Plan and possibly engage with groups such as 'Tribal Warrior' or 'Infinite Hope' to assist him.
With regard to 'Infinite Hope', it sets out its aims. The author of the report has known the prisoner for some years now and has seen some growth in his maturity. The prisoner has assisted the organisation with some events for younger kids in the Mount Druitt area to provide some pro‑social opportunities for him.
Reference is made to the First Nations National Constitutional Convention, the Uluru Statement from the Heart, and its aims and objectives in relation to diverting Aboriginal people from incarceration. The report author notes mentoring of young people is an important matter that assists both general mentoring and cultural mentoring. This can be done both with people in custody and out of custody, and the organisation is prepared to play a role in that respect.
I have always been a great supporter of active mentoring of people in a range of ways, not just within the criminal justice system. It is amazing just how much people are assisted by having an opportunity to get an insight into other ways of doing things that may be beyond their social experience. Setting examples for young people is a positive way of drawing them away from conduct that might lead to offending, and thus imprisonment.
Counsel for the prisoner has provided very helpful written submissions. I will deal with some aspects in the context of the Crown's submissions, bearing in mind the Crown is concerned that my remarks will be considered by the sentencing Judge who deals with the other offenders. That sentencing Judge will need to weigh up some countervailing considerations that I am not concerned with here. That is, the totality of the criminality of the offenders and the course of conduct showing their proclivity to act in that particular way. Whereas this particular conduct of the prisoner occurred only on one occasion.
The written submissions of counsel for the prisoner note the guideline decision by the Chief Justice of R v Henry [1999] NSWCCA 111; 46 NSWLR 346, which reflected upon characteristics of what were regarded as common features of the offence of armed robbery.
In relation to the particular matters identified by his Honour in his judgment leading to the "guideline" that was settled by the Court in the majority, included a consideration of the character of the weapon used, the fact that the offender would usually be a young offender, that the financial gain may be limited, where there was no actual violence but the threat of violence, where there was limited planning, where there was a plea of guilty of 'limited utilitarian benefit' as it was described in the judgment, bearing in mind that the R v Henry [1999] NSWCCA 111; 46 NSWLR 346 judgment predates the later guideline judgment on the utilitarian benefit to be given to a plea of guilty be recognised by a discrete discount, reflected in the decision of Thompson and Houlton v R [2000] NSWCCA 309.
The offending of the other offenders may be said to fall within a number of the criteria that are identified by Spigelman CJ. But I accept what the Crown has pointed out, that the victim was vulnerable, it being early morning in an isolated situation in a shop. I note of course that the personal property of the victim was taken in addition to that of the owner of the business.
However, those matters being noted, in conjunction with the other matters that I have pointed out, it is vital to understand, bearing in mind the context of the guideline judgment is concerned with the actions of the actual offender who is for sentence, that this prisoner is liable for sentence in relation to an offence involving a common criminal purpose where this prisoner's role was a very limited one indeed. There is no evidence that the prisoner gave approval to any particular conduct that is reflected in the facts. He admits by his plea of guilty, to participating in a robbery with an offensive weapon. But the taking of the personal property of the victim, the choice of a weapon and the like, would clearly fall to other people.
The Crown submitted, and I accept, that there must have been some degree of planning. Because the offenders armed themselves with objects or weapons; a golf club, for example, clearly being used as a "weapon" or a threatening object to the victim. However, it seems also that the place where the robbery occurred was randomly chosen. Clearly, the four men, particularly those armed with the respective "weapons" were looking for somewhere to rob.
Whilst the offence is not a sophisticated offence, it is to be borne in mind the effect upon the victim of being confronted by three young, fit men, variously armed, in circumstances where the victim was vulnerable.
So far as his moral culpability is concerned, there is correctly identified by reference to the decision of Kentwell v R (No 2) [2015] NSWCCA 96, in the judgment of Rothman J, proved by Bathurst CJ, a degree of "reduction" of "moral culpability", the prisoner being, in the context of the history available to me, desensitised to a large extent to antisocial behaviour. The prisoner has had really no opportunity to be shown an example by anyone other than his grandmother, and any examples that have been shown to him, have been examples of how to behave badly.
With regard to aggravating factors arising under s 21A(2) in addition to the facts of the case as considered pursuant to s 21A(1) of the Act, the only aggravating factor that I can identify from the material available to me is that the prisoner was subject to conditional liberty at the time of the offending. That having been said, I'm informed that whilst he was on bail and was in breach of conditional liberty at the relevant time, the matters for which he was on bail were subsequently "terminated". Thus we have a breach of conditional liberty in circumstances where ultimately the reason for him being on conditional liberty evaporated.
So far as mitigating factors arising under s 21A(3) the plea of guilty is a mitigating factor. The prisoner in my view did not have a "significant criminal history". I am prepared to accept that he has, if properly assisted, some prospects of rehabilitation for the reasons identified by the psychologist. As to whether he is likely to reoffend, that is a matter, given his still relative youth, about which one could not make a safe prediction.
The subjective matters that are identified by his counsel are largely citing details that are provided by the prisoner in the report of the psychologist. I have largely identified childhood neglect, poor examples being set particularly by his father, and a degree of social anxiety, as it is described in the report. It is described somewhat differently in Kentwell. There is some evidence of the prisoner being affected by alcohol or drugs at the time of the commission of the offence, although that of course is not an excuse for this conduct.
So far as his mental health is concerned, I am not persuaded per se that such matters that are capable of diagnosis to warrant consideration of matters that arise under the decisions of Helmsley and R v Engert (1995) 84 A Crim R and DPP(Cth) v De La Rosa [2010] NSWCCA 194 (at [177]-[178]) and the like. It seems to me the matters of his social circumstances are more significant.
I understand of course that there are diagnosed conditions in his childhood that may explain his conduct. But they are matters which if given full weight might lead one to the conclusion that there should be perhaps greater weight given to personal deterrence if there be any lessening of the weight given to general deterrence. But ultimately the evidence is not altogether complete, or of such a character as to allow one to reach any conclusion that would weigh against the prisoner.
The non-prosaic way to understand this offending is to see it in the context of a young man hanging out with, or being associated with, other people of similar social backgrounds and being drawn into criminal endeavours. Albeit not as extensively as might have been the case given the other offences that these young people have committed, demonstrating their leading role in the offence with which I am concerned.
I have taken into account his Aboriginality in the context of the way those matters have been discussed by the High Court by majority in Bugmy v R [2013] HCA 37, particularly at [41]-[44]. So far as his role is concerned, I acknowledge what Latham J has said in the decision of KR v R [2012] NSWCCA 32 particularly at [19]. That is, there is a need, even when people are jointly charged with the same offence to identify the level of culpability, both legally and morally.
There is no evidence available to me of the prisoner entering the shop at the time of the commission of the crime. Then there is the prisoner's youth and the issue of his immaturity, which is the subject of discussion by the psychologist.
Hodgson JA, as identified in the written submissions of learned counsel for the prisoner, reflected upon the science relating to the development of maturity in the decision of R v BP [2010] NSWCCA 159. He noted that when a person turns 18, whilst they assume legal responsibility as an adult, their maturity; emotional, psychological and the like, does not immediately increase or become that of a person of more mature years. There is a great deal of science reflecting upon the very lengthy period of maturation within brain function over a period of time well beyond the age of 18 years.
I have taken into account the pre-sentence custody and the quasi custody involved at the Orana establishment. I see no purpose in sentencing the prisoner to a term of imprisonment that warrants an Intensive Correction Order.
Now to be fair to that submission, if the prisoner had appeared before me having, for example, having completed his time at Orana Haven, appearing off bail, had very little pre-sentence custody and with the benefit of a Sentencing Assessment Report indicating what he would be suitable to do under the supervision of Community Corrections, I obviously may have had to turn my mind very seriously to the issue of whether first of all, I should impose a term of imprisonment of two years or less and then whether that term of imprisonment could be served by way of Intensive Correction Order. But that is not the situation.
I am satisfied however that there are "special circumstances". I note this is the first term of full-time custody to be served by the prisoner. I note his still comparative youth. I accept the submission that there is a need for an extensive period of supervision and guidance. He needs specific advice from counselling in relation to drug and alcohol abuse and he is amenable, in my view, to professional assistance, having regard to what he has told the psychologist and what has been divined from him by the inquiries made of him by Mr Daylight and his organisation "Infinite Hope".
I have accorded the offender a discount of 20% upon the otherwise appropriate sentence for the utilitarian benefit of the plea of guilty. I have considered what the otherwise appropriate sentence would be without the discount and I have ultimately concluded that it should be a sentence of three years imprisonment with a discount of 20% that reduces the sentence, rounded down, to a period of two years and five months imprisonment.
In the context of finding of special circumstances, it seems to me that a period of one year and five months parole supervision is a period of time appropriate in the circumstances of the case. Thus I have concluded that I should impose a sentence of two years, five months imprisonment with a non-parole period of 12 months taking into account the matter on the Form 1, noting all that has been put before me by the parties.
Can you stand up thanks very much Mr McLaws.
In relation to the offence to which you have pleaded guilty, taking into account the matter on the Form 1 you are convicted. You are sentenced to one year of imprisonment by way of non-parole period to commence on 16 July 2018 expiring on 15 July 2019.
I fix a balance of sentence of one year five months imprisonment to expire on 15 December 2020. That means the total sentence is two years, five months imprisonment commencing on 16 July 2018 expiring on 15 December 2020 with a non-parole period expiring on 15 July 2019. So you will be eligible for release to parole on 15 July which is ten days' time.
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Decision last updated: 01 September 2020