R v Mullins; R v Watkins; R v Willcox

District Court of NSW|2022-05-20

Director of Public Prosecutions (NSW) (Crown) Sydney Criminal Lawyers (Offender Mullins) The Shopfront Youth Legal Centre (Offender Watkins) Philip Cox Solicitor (Offender Willcox) File Number(s): 2021/00162051 (Mullins); 2021/00162031 (Watkins) & 2021/00162069 (Willcox)

INTRODUCTION

On 20 May 2022 three offenders before me appeared for their proceedings on sentence. The offenders are Andrew Da Bin Mullins, Joshua Marcus Watkins, and Jeremy Willcox. They are each of them to be sentenced upon an offence of robbery in company contrary to section 97(1) Crimes Act 1900, charged in the following terms, that each of them, on 5 June 2021, at Hornsby in the State of New South Wales, being in company with each other, robbed Farshad Rajaei of property, namely a black backpack and its contents.
The cases diverge and require separate consideration once I have concluded the assessment of the facts in the matter. Individual sentences will of course be imposed on them for the entirety of the misconduct upon which they each engaged, including in the case of Watkins and Willcox other misbehaviour that I shall explain in due course.

THE FACTS

The agreed facts describing the misconduct are common to each of them and are supplemented by a video recording of what was a deplorable attack on the victim leaving him injured, which places the offending at least at mid-range of objective seriousness in each case. There must also be consideration of their moral culpability, which will depend upon the assessment of each offender independently. Looking at the misconduct alone as described in the agreed statement of facts on sentence and as seen on the recording, which I reviewed before the resumption of proceedings, I have no doubt that objectively this offence is at least at mid-range.
On the evening of Friday 4 June 2021, the three offenders were at Hornsby in the Hornsby Inn. They were in the company of four other male friends, including a person of the name William Smith.
The victim worked at Westfield Hornsby in a supermarket there and completed his duties at midnight. After work, he exited the building onto Hunter Street, opposite the Hornsby Inn. He called his girlfriend at 12.09am and spoke to her for a few minutes while standing outside the bottle shop.
After the phone call, he approached Willcox and the man Smith who were standing outside. He did not know them personally but had seen them in the area before. He asked them if they could help him get some "green", referring to cannabis. This interaction was captured on closed circuit television. The clothing worn by Willcox was depicted. They told him that they could get some cannabis from a unit in Hunter Lane, a short distance away and around the corner. They suggested that he give them some money and they would return with the cannabis, but he said he would accompany them and wait outside the unit. A few minutes later, Mullins and another man joined the trio outside the bottle shop. Mullins was captured on the closed‑circuit television, which depicts his clothing. He had distinctive long dark hair past his shoulders.
At 12.26am, the group moved out of the view of the bottle shop closed circuit television and walked towards Hunter Lane. At 12.27am, the closed‑circuit television on Hunter Lane depicted the men walking north; Willcox and Smith walked a short distance ahead of the victim who was talking to Mullins. The other man was still in the company of the group. They moved further along Hunter Lane. As they did so, Smith began calling the victim a snitch and a police informant. Smith said words like, "If you want to live in Hornsby 2077, you've got to watch yourself", and motioned towards the victim's bag. He asked the victim what he would do if he [Smith] pulled out a Glock or a knife.
This and other utterances during this attack carry the implication that this group, or at least one of them in the person of Smith, had the perception that the victim had some role in law enforcement, perhaps as an undercover operative, a matter which I raised with the parties on the last occasion the matter was before me. The Crown asserted that the matter was not presented upon the basis that this was an attack upon the victim as a suspected police informant, but points to what occurred, including the representations that fell from these offenders and Smith, as further evidence of what was nothing less than gratuitous violence against the victim.
2077 is the postcode for Hornsby. The proposition that someone could be excluded from a suburb by thuggish behaviour such as I am here concerned with, I find abhorrent.
The group crowded around the victim. One of them asked why he was being so aggressive. There is nothing in the material that would support any such proposition. Smith got close to the victim's face and said, "Do you want to go?" Clearly that is not an invitation to leave, but an offer to engage in a fight. The victim thought they were trying to provoke a fight, not an unreasonable assumption or inference in the circumstances. The victim put his hands out in a non‑threatening manner and said, "You are in my personal space." The victim walked backwards and said, "You guys are looking for trouble. I want to just leave it." The victim put his hands up and continued walking backwards. Willcox said, "You touched my boy." Again, there is nothing to support any such assertion in the material I have, apart from the representation that is attributed to Willcox, upon which reliance was placed in submissions suggesting that there had been some provocation on the part of the victim. I reject that proposition.
The victim responded, "No, he is getting in my personal space. I want nothing to do with this." All four of them were still crowding around him.
Willcox threw a punch towards the victim. The victim blocked this with his left arm, covering his face. The other men started punching the victim, and he fell into a crouching position. He was punched and kicked, struck multiple times. Someone had hold of his bag and repeatedly said, "Let go of the bag", however, the victim would not release it. The victim was struck multiple times to the head and feared that he would be killed. He screamed for help.
I watched the recording of this event. I have no difficulty accepting that the victim was fearful. The attack as depicted was sustained, it was extraordinarily violent, involving repeated punching and abuse as the victim was calling for help. He was down with one of these people over the top of him raining blows upon him.
The CCTV depicts Watkins and two other males leaving the Hornsby Inn and walking towards Hunter Lane at 12.30am. This precedes the phone recording to which I have referred. At all relevant times up until this point, Watkins had been in the Hornsby Inn. The clothing worn by Watkins is described, captured on the closed‑circuit television. Less than a minute later, the footage from the closed‑circuit television depicts Watkins sprinting down Hunter Lane towards the victim and the co‑offenders. The victim recalled someone, accepted to be Watkins, running up behind him and saying, "What's up, boys?" The victim turned to face Watkins. Someone else grabbed the victim's hair. One of the men said, "Let go of the bag." The victim suffered further blows before ultimately releasing his grip on the backpack; he felt one of the men take it from him.
The facts then describe the footage of the offence captured by Willcox on his mobile telephone. This is, I might say, a disturbing pattern that seems to be evolving; it has been conduct forming facts in other matters with which I have already been called upon to deal this year.
Willcox filmed part of what occurred. This was later recovered by the police. The recording is 59 seconds long, timed at 12.34am. As I said, this is after the arrival of Watkins, captured sprinting down the lane towards what was occurring. The footage depicts Willcox, Watkins, Mullins, and the victim. Neither Watkins nor Mullins speak during the footage. It was said to me on the last occasion that the predominate voice to be heard is that of Willcox.
The footage commences with a "selfie" view, so called, of Willcox's face, before the camera switches to front view. Mullins is depicted with his long hair and wearing his black hooded jacket, grey pants with a large dark pocket, and white sneakers. Watkins is depicted wearing his dark blue Canterbury tracksuit pants with white stripes down the side, and a blue baseball cap.
There is agreement as to what the footage depicts: 1. The footage commences with a selfie view of Willcox's face. Willcox says, "Give me the fucking bag, you fucking dog lad." The victim can be heard groaning off screen. Willcox yells, "What?" before throwing a number of punches toward the victim who is off-screen. Willcox yells, "Fucking dog. You fucking dog." 2. The video then switches to front view. The victim is pictured standing but leaning forwards with Watkins and Mullins on either side of him. The victim is still wearing his bag at this point. Watkins throws four punches at the back and side of the victim's body and at the victim's head. Mullins throws a punch but misses, then throws three punches at the victim's head. The victim is groaning in distress and trying to cover his head with his arms. As Watkins and Mullins are landing these blows, Willcox is saying, "And what? And what, you fucking dog? And what, you little shit cunt? Come give me the fucking bag, dog." The victim is turned towards the camera. The victim's mouth is bloody, and he is groaning. The victim falls to the floor as Willcox reaches for the bag. The victim screams for help. 3. The clip then skips forward. Watkins is depicted holding the victim by the shoulders from behind, both are standing. Watkins spins the victim around, forcing him into a chain wire fence. While the victim is hunched forward next to the fence, Watkins punches him twice to the body, and off screen, knees him to the upper body or face. Further blows can be heard on the footage off screen while the victim groans in pain. Willcox says, "You want to fuck around, you fucking dog?" 4. The clip skips forward again. The victim is on the ground at the foot of the same chain wire fence, with Watkins and Mullins either side of him. Mullins punches the victim four times to the back, and Watkins kicks in the direction of the victim's face, but it is not clear whether it connects. Willcox says, "You fucking stupid dog." Mullins throws six further punches connecting with the victim's head. Willcox says, "You stupid fucking mutt" and kicks the victim in the head. Willcox says, "What? What? You fucking dog. What are you going to say to the camera, you fucking stupid mutt. Get the fuck out of Hornsby, bro. You're a fucking dog. 2077 in your mouth, you fucking bitch." As he says these things, and just before the footage ends, Willcox zooms in on the victim's bloodied face.
About 12.30am, the police responded to a radio broadcast about an assault taking place in Hunter Lane in Hornsby. There were four members of the public who made a call, including people watching the event from apartments overlooking the laneway. When the police arrived there were seven males walking north of Hunter Lane, turning right onto Linda Street. They were stopped by the police on Linda Street and seated against the wall of the Hornsby Service Centre. Once stopped, the police saw the victim's backpack on the ground a short distance away from where they were seated. The backpack contained the victim's wallet, including identification cards and his work clothes. There were scratches on Watkins' knuckles and blood on his pants and hands. There was blood spatter on the clothing worn by Willcox and Mullins.
Once placed under arrest, Watkins became agitated. He was aggressive. He was taken to Hornsby Police Station, where he behaved in an extremely agitated manner and attempted to lacerate his wrists with his fingernails. He was handcuffed to prevent him injuring himself. He continued to scream threats of self‑harm while hitting his head on the floor. An ambulance was requested, and he was transferred to Hornsby Hospital under schedule.
After he was placed under arrest, the police received information that one of the group might have filmed what occurred. At the scene, the police advised the men that their phones would be seized. Upon hearing this, Willcox removed his phone and accessed the camera gallery. He was seen doing so, and the observations by the police led them to believe that he was attempting to delete videos or photographs from the gallery. The phone was seized. Footage of the incident was reviewed.
Just after 12.30am, the police were approached by the victim. They saw blood all over his head and face and his clothing. He was frantic, according to the description, and asked, "Let me in the car. Let me in the car." He was allowed into the backseat of a vehicle. He was taken to where he last saw his assailants and identified them at Hunter Lane and Linda Street.
Willcox and Watkins both participated in interviews to which I shall come. Mullins declined to participate in an electronically recorded interview. When he was checked in custody at 4.24am, he was unresponsive and limp. He was removed from the dock and administered first aid. An ambulance was requested. When he was roused, he told the police he'd taken two Xanax tablets earlier in the night. The ambulance officers cleared him as being fit to remain in custody. He was conveyed on the afternoon of 5 June 2021 to Surry Hills Corrective Services cells. There, a strip search was conducted, and the officers found two bottles of Xanax in his underwear near his genitalia. That offence is included in the material before me. He said he didn't know how the bottles got there.
The facts represent this to be a Form One offence, that is possession of the prohibited drug, but the cover sheet in the Crown sentence bundle has it as a separate matter upon which sentence is to be imposed and specifies that there are no charges to be dealt with on a Form One.
I paused to have clarified with the Crown and the offender's solicitor that a separate sentence was required on the possess prohibited drug. Both confirmed that to be so. Thus the facts were noted to be incorrect in paragraph [44] regarding the proposition that the possess prohibited drug charge is to be included on a Form One.
The victim's injuries were photographed.

The first of those is a photograph of the victim's face showing bruising around the right eye, with what appears to be abrasion above the right eyebrow extending up toward the hairline.
A second photograph shows the abrasion on the forehead above the right eyebrow from another angle.
The right side of the face is depicted in the third photograph, showing the injury to the eye and to the forehead above the right eyebrow.
There is a photograph of the left side of the victim's face. It is difficult to discern whether the left eye or the area around the left eye is bruised, although it is darkened.
The next is a photograph taken on the right profile of the victim.
Next is an image of an injury behind his right ear.
The next is an image of the injury suffered to the inside of the upper lip.
There is an injury depicted in the midline of his lower back in the next image, then slightly to the right of the midline of his neck at the back.
There is an image of injury to his skull.

The facts provide a following descriptions:

Haematoma to the left superior orbit over the eyebrow.
Abrasion to the right side of the forehead.
Grazes across both arms.
Swelling to the nasal bridge with dried blood from nosebleed.
Small anterior nasal spine fracture.
Swollen upper lip with laceration to the inner lip.
Dried blood around the mouth and upper lip.
Right temple and zygomatic arch tender to touch.
Extensive bruising across right side of face.
Swelling around eyebrows.
Tenderness on the right side of the neck.
Right wrist and hand tender to touch.
Tender abdomen and right side of the chest.

The co‑offenders are criminally responsible as principals in the first degree, parties to a joint criminal enterprise, as expressed in paragraph [47] of the agreed statement of facts.

ANDREW DA BIN MULLINS

The sentences to which the offender, Mullins, is exposed, are imprisonment for 20 years for the robbery in company offence, and imprisonment for two years and a fine for $2,200 for the possess prohibited drug offence.
The offender, Mullins, has no antecedent criminal history. He spent time in custody after arrest, a period of 45 days until he was released to bail. His bail conditions included a curfew preventing him from leaving home, except in the company of his mother.
He was prevented from being in contact with his co‑offenders, he was not to enter licensed premises, he was not to go near the complainant, and he was not to leave home unless in the company of either parent, or in the company of Mr Panta Milovanov in the course of his employment with a painting company that was conducted by that gentleman. He was to present himself at the front door when requested by police. He was to attend upon his general practitioner and seek a mental health plan, and accept reasonable treatment as recommended, including attending appointments, and he was to abstain from alcohol and drugs. He was not to be released except into the custody of his parents, and to submit to drug and alcohol testing.
I bring to account the constraints imposed upon him by reason of bail since he was released.
It, as was submitted to me, I should add that he ought to be considered as an appropriate vehicle for an intensive corrections order after I have settled upon the sentence that ought to be imposed, the limitation is of a three-year sentence because there are two offences, and this could be assessed so, bringing into account the past custody to which I have referred.
I do not agree with that proposition. The conduct in this case is of such gravity that upon consideration of the material before me, including the subjective case, upon the application of s 5 Crimes (Sentencing Procedure) Act 1999, no sentence other than a term of imprisonment is appropriate.
There is a sentence assessment report provided. It informs that Mullins currently resides with his family, with his parents. The family history has been disrupted in the recent past, as described in the material that has been tendered to me. According to the report under the heading attitudes: "Mr Mullins appeared to be shocked by his behaviour and claimed to not recall the violent episode, describing his actions as 'disappointing'. Mr Mullins claimed the events are vague only becoming aware of the events upon waking up in hospital."
The material in the Crown case, including the recording which I have observed, does not suggest that at the time of these events he was so burdened by alcohol or drugs that he could not have some awareness of what he was engaged upon with his co‑offenders.
He is attributed with the proposition that he claimed to be out with friends whom he had known a long time, with whom he would drink and use drugs on occasion. He said that the outing planned was the first time since the lockdown because COVID had come to an end. He said that he was ingesting up to five tablets of Xanax per week. He was unused to combining alcohol and Xanax and was heavily under the influence of both.
He said he is not usually violent and claimed that being under the influences of the substances impaired his judgement and most likely influenced his violent behaviour, which again he claimed that he does not recall. He said that at the time of the offence he was experiencing depression and feeling isolated. He has demonstrated in custody a willingness and ability to undertake intervention. He was an active participant in psychological intervention, had attended three sessions of smart recovery, and was referred to FYRST, aimed at assisting those 18‑to‑24‑year old to address their substance misuse. He was assessed and reported to have a medium to low level risk of re-offending.
The offender did not give evidence, and I am called upon to assess the truth and accuracy of representations attributed to him upon the written word provided in the documents tendered. I am conscious of what has been said, for example by Wilson J in Imbornone v R [2017] NSWCCA 144, requiring circumspection when dealing with such representations not given under oath or affirmation and untested. That said, there is other material in documents provided from the offender's parents which lend support for at least some of the representations attributed to him by a psychologist, to which I shall come.
There is a report by psychologist Serena Cauchi of 18 May 2022 with some variations in paragraph 5.7 and paragraph 11.1 as advised in an email that came from the offender's solicitor. The bundle tendered on behalf of the offender, exhibit 1, consists of the report by that psychologist, which follows a letter written by the offender on 10 May 2022. He writes to express his remorse, having assaulted the victim. The second sentence in this document is in the following terms, "I say sorry to him." The third sentence, "I am also aware because of my behaviour a robbery occurred. I apologise for this as well." This is a qualified representation that does not sit comfortably with the plea of guilty to the robbery in company charge and the acknowledgement in the agreed statement of facts that he was one of three engaged upon this joint criminal enterprise as principals in the first degree.
He speaks of having been under house arrest since his release to bail, of trying to improve his behaviour to be responsible. He speaks of his weekly counselling with a psychologist, Sharon Hill, to develop techniques to reduce his aggression. He has found beneficial breathing techniques and the benefit from removing himself from stressful triggers. He has been getting help from the youth drug and alcohol line, has attended a few sessions with them, and speaks of his employment with the painting company.
The psychologist writes that the offender first presented on 19 March 2022, and then on three further occasions on 2 April 2022 in person and 20 April and 3 May 2022 via video conferencing.
The offender was born in South Korea. He has little knowledge of his biological mother, although he met her when he travelled back to South Korea. According to this document though, contact with her has been minimal. He was cared for by a foster mother shortly after he was born. That person has been raising children from unwed mothers for some 20 years. He was in due course adopted by Catherine Pitts and Mark Mullins. They travelled from Sydney to Seoul to collect him when they were made aware that he was available for adoption. There was reference to him having an abnormally large head that should probably be investigated. He was assessed by a doctor at Westmead, but there were no abnormalities reported. He was not reviewed by a developmental paediatrician, nor is there anything else before me to indicate that there might have been a problem such as was communicated to the adoptive parents when they attended Seoul.
Particulars of the adoptive parents are included, including their employment. He was delayed in achieving his developmental milestones, including being slow to walk. He would hit his head repeatedly on the driveway, on brick walls, or any hard surfaces, and that persisted from when he was a baby until he went to Knox Grammar in mid-primary. That as I recall was up until year 3, or close to it. His parents tried to stop him, but this could not be controlled, and they purchased a helmet to reduce the possibility of him sustaining brain damage. He was aware of his adoptive state from an early age, and this caused him to ruminate upon where his actual parents might be and to wonder what happened to them.
He went to South Korea to meet his foster mother, with whom he spent five months. He said she was a nice lady. He has not maintained contact with her. His adopted mother has the belief that he is upset that his birthmother had given him up. He was unsuccessful in locating his birthmother in Korea.
He was raised on the upper North Shore. His parents separated when he was about five. There had been tension between them, but the family continued to spend significant time together. His mother moved to regional New South Wales with him where she obtained work. He was then about eight years of age.
In senior primary school, year 6, he often came home with a torn school shirt and mud on his trousers. The cause of that was unclear, but his mother suspects that he was being bullied or physically abused, but there's nothing contained elsewhere to confirm that fear. The offender told his father of being bullied verbally. He was taken to a facility at St Peter's where he had some freeform activity which he enjoyed. His father reported that his son is normally quiet, reserved, and respectful when he meets new people, but that is not consistent at home. He was oftentimes "a good kid", but other times was angry and was best left alone. He fluctuated in mood from being totally pleasant to being the opposite. There was a strained relationship between the father and son, but this has improved in recent times.
His behaviour at school was not optimal. The phrase used is "school refusal behaviours". I am not quite sure what that means, but it is said that his mother would often talk him down when he became agitated. There has never been any violence towards his mother, he only once verbally threatened his father, he has always been affectionate with his grandmother and mother. He claimed to have felt misunderstood by his family, distant and angry towards his father, with a closer relationship with his mother. He was distressed by the ongoing arguments and discordance between his parents. He suffered the loss of a few friends who died from accidental overdose or suicide, including a friend he named in 2011.
He lived alone in an apartment owned by his mother for one year prior to the COVID-19 pandemic, then his father purchased a larger home so the family could reunite under one roof. His son was very frightened in gaol but would not admit that because it would be an admission of weakness, according to his father.
His education is discussed. He attended a private school at Wahroonga and then a Catholic primary school at Young. The school at Wahroonga was up to kindergarten and year one. In Young he was at school for 18 months. He did not enjoy Young, describing it as a redneck community. He returned to the private school at Wahroonga from year 3. He complained of a high level of racism at that school. He was more interested in sport and was more artistic than practical, it would appear. He commenced his own business, buying in bulk USB sticks and laptop cases which he on-sold for a profit, which allowed him to have funds for his activities, and some clothes. His parents were aware of his entrepreneurial ventures.
He had attention problems and struggled with learning in mathematics particularly, but did well in art, dance, science, and sport. He was disinterested in all other subjects. He completed assignments at the last minute and was described by his mother as the class clown. He was expelled from the private school at Wahroonga for acting out behaviour. He was permitted re-enrolment after representations by his father, but within a few weeks he was again excluded. He enrolled in a public school at St Ives, where he said drugs were readily available and allowed him to sustain his cannabis addiction, so described. He did not obtain a school certificate because of a poor record of student attendance but enrolled at Phoenix House and completed his certificate 2 in vocational skills.
His employment history is discussed. He worked in a brewery for six months, which relocated to the Central Coast. He then obtained work as a painter, with a principal in the organisation with whom he has a good relationship as well as with the co‑workers. Work availability was limited because of the pandemic.
He has had a few short‑term heterosexual relationships. He had a small group of friends of Asian ethnicity when he was in years 7 and 8 at school, but they ceased in their contact when they moved to another area, and he made new friends when he and his mother moved to Hornsby. These he confirmed to be the associates with whom he committed these offences. He has been associated with them from when he was approximately 18, but he described them as not close friends. He has a trusted friendship circle, including his co‑worker and another person who manages a local pizza place and another person there named.
There is a history of self‑harm across his developmental years that continued into adulthood. He is said to have attempted to jump out of a moving vehicle when he was three or four years old without reason. When he was nine years of age he ran out in front of a car when he became agitated. Clearly he was stopped from doing so. His father reported that he burnt his right hand with an aerosol can when he was in year 8 after his then girlfriend terminated their relationship. He has been punching himself in the face and head for the last two years, according to his father. He has a scar on his forehead after smashing a plastic object he was holding into his face. He slammed his right hand through a piece of wood in December 2021, injuring it quite severely. He attended casualty, where his hand was set in a plaster cast. He took it off after two days. I recall he said he yanked it off. He did not return for further treatment.
He was involved in a motor vehicle accident about a month before the offence. He has been taking unprescribed Xanax and was doing so prior to the collision of which he had no memory. He is said to suffer from longstanding anxiety for which he was not prescribed any medication, and that since his release on bail he has found it hard to go outside, preferring to avoid crowds experiencing panic attacks when out in public and wanting to be taken home. This contrasts somewhat with his bail conditions, but ultimately there is insufficient to express a concluded view regarding that.
His psychiatric and psychological treatment history is summarised. A child psychiatrist at Hornsby, a Dr Kleinsman, assessed him when he was five years of age because of the headbanging. There was no diagnosis at either presentation, one when he was five and one when he was 10 years of age. He consulted a psychologist, a Dr Jupp, after being referred by the school at Wahroonga because of difficulties in years 9 and 10. No therapeutic relationship was established, and he did not continue with that opportunity. He was admitted to St Vincent's private mental health facility, USpace, in early 2018 for four weeks because of cannabis use. He found that distressing because of the patients there with significant psychiatric disorders.
It is said that he has been diagnosed with intermittent explosive disorder. That diagnosis was made by a psychiatrist at St Vincent's Hospital, it is said. He objected to medication that was prescribed because he said it made him lethargic. He was referred to a psychologist at the drug and alcohol unit at Hornsby Hospital. He attended weekly for six weeks. He consulted Sharon Hill, a psychologist, for 14 sessions in 2018, and since his release has re-engaged with her on a weekly basis via telephone, using the Telehealth facility. They appear to have a good therapeutic relationship.
His alcohol consumption is five beers on a Friday night. He does not normally abuse alcohol. He had consumed a significant amount of alcohol and was intoxicated on the night of the offence. Self‑induced intoxication does not mitigate by force of section 21A(5AA) Crimes (Sentencing Procedure) Act 1999.
He smoked cannabis daily since the age of 16. He first tried that when he was 12. This helped to numb his feelings and assist him with sleep. He began smoking cigarettes and vapes at the age of 16. He used cocaine on a few occasions, and acid for a month when he was 15. He has never used ice or heroin. He has been self‑medicating with unprescribed Xanax for a long time.
He provided a description of the event. He said he had been out with friends and watched a game of football, consumed a significant amount of alcohol, said to be two cases, 48 beers, with his friends, smoked cannabis and taken about half a bottle of Xanax. He said the victim approached the group of friends and asked about getting some weed. He reported that he has no recollection of the offence, but clear recollection of the police trying to wake him up when he was in the holding cells. They were trying to make sure of his breathing. He woke up then at a different location. He believes he may have taken more tablets after he was arrested and placed in the holding cell.
He submitted to the personal assessment inventory, a self‑administered objective inventory of adult personality. He failed to complete numerous items, suggesting difficulties with attention or literacy. Those which he did endorse indicated an angry young man with feelings of numbness and detachment. He was polite and assessed to be anxious with an underling low mood. He keeps reliving a bad experience, according to the report. I am not quite sure what that is. He speaks of punching himself in the head when he feels angry until he feels pain and the anger subsides. He said he last engaged in that behaviour about two weeks ago. Despite having suicidal ideation there is no current plan to act upon those thoughts. Risk assessment was performed. He is assessed at a moderate level, with identification of the factors that led to that view. I will quote paragraph 9.9: "Mr Mullins' past problematic behaviour in adulthood appears to have consistently been while he was misusing recreational drugs or unprescribed medication (Xanax). However, his history reveals long term disruptive behaviour, severe attachment disorder behaviours that in his adult years have developed into self‑harming and facile relationships, and intense anxiety. His violence in the matter that brings him before the Court was most likely fuelled by substance intoxication, but this substance abuse is, itself, a response to an underlying maladjustment of personality, pervasive anger and a sense of inadequacy, and a mood disturbance. Of concern, assessment of his lifestyle suggests poor response to stress, little self‑belief or hope for himself and problems in setting and working toward goals. Patterns of self‑harm or self‑directed aggression from childhood through to adulthood indicate difficulties with emotional regulation. As an adolescent he has displayed reactive and self‑directed aggression, he was suspected of fighting at school in response to bullying. Mr Mullins also displays poor frustration tolerance and has damaged property, limited to his home, and as a means of expressing his anger."
Risk factors and protective factors are summarised and the formulation as offered. Diagnoses suggested, bearing in mind this is a psychologist and not a psychiatrist, are substance use disorder, intermittent explosive disorder, general anxiety disorder, personality vulnerabilities, and attention deficit hyperactivity disorder. This requires further assessment, although there are consistent symptoms. It is noted that the diagnoses that the psychologist has offered, whether qualified or not, are based on symptoms described by the offender, a history from his parents, and a report from Sharon Hill, his previous admission to USpace, and his recent presentation. He has not completed a comprehensive neuropsychological and functional assessment and that may be of benefit to him.
Headbanging is often referred to as a self‑soothing behaviour associated with significant attachment disturbance. In this context, he was distressed by the conflict and discordance between his parents and being exposed to raised voices. In addition, his parents living apart for several years impacted on his feelings of security and stability. There is reference to his bullying at school. There is a discussion of the impact of Xanax and alcohol, both central nervous system depressants, which no doubt contributed to his decision not to desist but to engage upon this abhorrent behaviour against this victim. He is attributed with remorse. He is said to be psychologically immature and vulnerable and may be a target for further victimisation and trauma in custody. There are recommendations.
There is the document from Sharon Hill written on 1 April 2022 with a history like that which I have rehearsed, including his intense loyalty to friends, his status as a peacemaker in his friendship group, his ability to understand what is going on with his friends, and his ability to calm people down, wanting to help and protect them. This was not reflected in the conduct on the night, except to engage with his co‑offenders at the expense of the victim. His grief at the loss of friends is discussed, and he was sorrowful and angry that he had not been able to protect his friend who died in a knife fight. There is reference to his ADHD for which he did not take medication, his history of drug use, and the benefit that he derived from it by way of the numbing feeling that it provided. The psychologist writes: "It is my opinion that the underling agitation and impulsivity experienced by Mr Mullins due to the attention deficit hyperactive disorder has significantly contributed to his difficulties in school, and his difficulty in tolerating frustration generally. Mr Mullins experiences anxiety symptoms which impact his motivation and tolerance to changes to his routine."
There is reference to the ongoing communication problems and disharmony between his parents. He did not complete any formal assessments with Ms Hill other than general mood questionnaires and historical SCHEMA questionnaires. Treatment is suggested. There is a reference from his mother, Catherine.
The Court is sympathetic to the offender's mother and father. I could imagine little that would be more challenging than sitting in a court room listening to a judge speaking about misconduct such as this by one of their children and the consequences that will flow from it. They have the Court's sympathy for the emotion that they are going to experience because of the orders I am to make.
The letter provided by the offender's mother refers to his activity when he would bang his head leading to the provision of a small helmet, nothing significant was found upon investigation of that, issues with self‑harm since 2014, a time in St Vincent's for detoxification from marijuana use, his attempt to modify his behaviour, and his achievements in learning to cope. She and her husband will continue to provide support for him, which I am sure they will.
There is a document from his adoptive grandmother. He is one of six grandchildren this lady has. She speaks of her interaction with him. She writes of her time with him, which is always a pleasure, and she accepts his expression of remorse to her.
The employer painter has provided a document speaking to the qualities the offender has demonstrated to him and indicating that work will be available for him, and then finally, I have the document from his father, who attributes remorse and contrition, and speaks of his perception of the son whom he no doubt loves very much.

Submissions

Written submissions were provided on behalf of the offender. The proposition advanced is that a finding below midpoint for this misconduct is to be made. My view is that this is at least at mid-range objective seriousness considering the facts and circumstances surrounding the attack. That does not, of course, mean that moral culpability will not have an impact upon that assessment. Clearly, it will, in this case. The material offered in support of the offender is summarised, with reference to the decision in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, particularly the judgement of McClelland CJ at CL at paragraph [177], describing how a person's mental health will weigh upon the decision upon an appropriate sentence for criminal misconduct.
It is submitted that the weight to be attributed to general deterrence will be compromised by reason of what is provided in the reports tendered on behalf of the offender suggesting that he is not an appropriate vehicle for general deterrence. The matters that are discussed in these reports are relevant to the assessment of sentence, but there is nothing in there that indicates the extent to which they contributed to his decision to embark upon this crime.

Findings

To extend the benefit that I might to the offender, if it is to have any value in the assessment of his moral culpability, it is the extent to which his misuse of Xanax and alcohol, which can't be used as a mitigating factor, might yet be explained by his challenges and how that misuse has impacted upon his capacity to respond appropriately to whatever it was that stimulated him into this behaviour and to join in with these other young men in the attack.
He clearly cannot persist in using alcohol and prohibited drugs to self‑medicate, while ever it is possible that this will reduce his capacity for sound judgement and control of impulsivity.
I do not accept the proposition that an intensive corrections order is appropriate in this case. I've had regard to section 66 and the related provisions in the Crimes (Sentencing Procedure) Act 1999. His prospects for rehabilitation if he continues the path that is indicated in the material I have exist. The quantification of the prospects of rehabilitation, however, is dependent upon his willingness to abstain from misuse of drugs and alcohol, and his willingness to accept the punishment that he must suffer for the misconduct that he engaged upon and approach it in a constructive way, taking full advantage of opportunities that will be presented to him in the custodial setting.
I accept that this case is replete with special circumstances by reason of his age and the need for an extended period on parole to facilitate his progress. I agree with the Crown's submission that a form of custodial sentence is the only option appropriate in this case. The assessment of objective gravity is made by the Crown upon the extent of the behaviour being in company with three other men. I note that this is an element of the offence of robbery with which he is charged, but it is relevant to assess the extent to which he was in company with others, bearing in mind that there were three who rained their blows upon this hapless victim, together with the conduct in which Smith engaged in the enterprise.
The circumstances when the offence occurred had the victim as one who was vulnerable, at least situationally, where he was found in the early hours of the morning. The extent of the violence is noted, graphically depicted in what is, I believe, to be a vicious attack upon a terrified victim who was crying out in response. So significant was the presentation of this misbehaviour that four members of the public had their attention drawn to it and independently contacted the police to get help. The violence was accompanied by the most threatening and insulting language, including that, according to this group, this victim should not or was not welcome within the postcode 2077.
Both parties have referred to the Henry guideline judgement. R v Henry (1999) 46 NSWLR 346 included a young offender with no or little criminal history, a weapon like a knife, capable of killing or inflicting serious injury, limited degree of planning, limited of any actual violence but a real threat thereof, a victim in a vulnerable position, a small amount taken, a plea of guilty, the significance of which is limited by a strong Crown case. The offender was not armed, clearly. This was, I would accept, a relatively spontaneous event without any planning, but there was extensive violence upon a vulnerable victim, with a plea of guilty, against a compelling Crown case upon the material I have.

Sentence

This brings me to the point where I must impose sentence.
The offender is convicted of the offence of robbery in company. He is convicted of the offence of possess prohibited drug. The purposes of sentencing are articulated in section 3A Crimes (Sentencing Procedure) Act 1999. I have already noted that he might not be an ideal vehicle for general deterrence, bearing in mind what I said between the limited connection if any between the matters articulated in the psychologist's report and this vicious attack. There must be an appropriate level of punishment. There must be recognition of harm done to the victim, particularly in this case, as well as the community generally. The conduct must be denounced in the strongest terms by the Court. I recognise the need for rehabilitation to continue, which I accept is underway, hopefully with sufficient prospects that it will succeed at the end of the day.
For offence of robbery in company, after allowing the discount of 25% for the plea of guilty, I have settled on the sentence of 3 years and 9 months imprisonment.
For the offence of possession the prohibited drug, after a discount of 25% for the plea of guilty, I have come to a sentence of 4 months as appropriate for that offence. I note that offence is before me are by way of section 166 Criminal Procedure Act 1986.
I shall impose an aggregate sentence in accordance with section 53A Crimes (Sentencing Procedure) Act 1999. I specify a non‑parole period of 1 year and 9 months to commence on 10 May 2022 that shall expire on 9 February 2024. I specify a further period of imprisonment of 2 years to commence at the expiration of the non‑parole period that shall expire on 9 February 2026. He is to be released for parole at the expiration of the non‑parole period.
I find that there are special circumstances for the reasons I have given. It will be seen that the charge of possess prohibited drug indicated sentence of 4 months has been subsumed entirely in the indicative sentence for the robbery in company offence in the selection of the aggregate sentence I have announced.

JOSHUA WATKINS

Next, dealing with Mr Watkins.
Joshua Watkins was born in 2000 and, as with Mr Mullins, is a young man who will reach his 22nd birthday this year. He pleaded guilty in the Local Court and is entitled therefore the discount of 25% to which I earlier referred. There is only one matter for sentence and that is the charge of robbery in company which has a maximum penalty of 20 years imprisonment. There is no standard non‑parole period specified for this offence. The facts, as I indicated earlier, were common to all three offenders.
This offender participated in an electronically recorded interview with police at 8.35am on Saturday 5 June 2021 after he was arrested. He had been conveyed to Hornsby Hospital at 1.50am but was cleared to return to police custody at 3.37am. He said in the interview that he was at the Hornsby Inn but did not know anything about a robbery. He said he had watched the football at Willcox's house. "All the boys were there to watch the football, including Mullins", he said. He was drinking Carlton beer. He had a couple of Xanax tablets and smoked some cannabis. He described his clothes; a blue hat, black North Face sweater, white and navy Canterbury track pants, Nike shoes.
They went to the Hornsby Inn, won some money on the poker machines, Willcox got kicked out for being intoxicated. When Willcox left with the other boys, he, Watkins, stayed to play the poker machine. It was just him and two people named James and Ben. He was shown the footage but denied being depicted. He said he does not remember anything. He accepted that he owned a pair of tracksuit pants as depicted. He said he cannot remember what happened. He said at question 111 that he "was half a case deep and fucking four Xannies deep bro." He does not remember anything from the night before except being arrested. He said he, "come out of the pokies...and everyone's punching on."" This is at question 129 to 130. He, "may have threw a few punches" when he left the inn.
He "heard heaps of people screaming" and he "thought someone might have been in trouble." He saw his friends "punching on with that guy." He says he did not know "how it kicked off" because he was "in the pokies." He just saw punches being thrown. He does not know who was throwing punches. When asked if he saw the victim throwing punches, he says he did towards Willcox and possibly towards Mullins and Smith. He said he had a problem with Xanax and had that for some six years. He had relapsed. He said, "didn't fucking take his bag. I probably hit him a few times...I didn't fucking take none of his shit, bro." He takes, he said, a minimum of two Xanax tables every day.
I have already described the depiction of Watkins with the other offenders. The footage it is agreed shows Watkins throwing four punches at the back and side of the victim's body and at his head. As he and Mullins are engaged in that activity, Willcox is abusing the victim. Watkins spun the victim around, forcing him into the chain wire fence, where the offender punched him twice to the body, kneed him to the upper body or face, and then with Watkins and Mullins on either side of the victim Watkins kick in the direction of the victim's face.
He has an extensive record of antecedent offences beginning in August 2017 in the Children's Court for an offence of affray. Thereafter, he has been dealt with for a further offence of affray, offences of offensive language, and on 7 May 2020 he was charged with a series of offences to which I shall come. These ultimately led to the imposition of community corrections orders of two years, to which the offender was subject at the time of this robbery. He has a record of using spray paint to deface buildings and structures, with which he has been charged on a number of occasions, including the breach offences with which I must deal.
Finally, the most recent matter that resulted in imprisonment appears to have been an offence of intentionally distributing the intimate image of someone without consent, for which he was imprisoned for three months between December 2020 and March 2021. He was also on parole at the time of this misconduct for an offense of affray and one of reckless wounding. He was ordered to serve a term of imprisonment for 18 months, including a non‑parole period of six months, commenced on 6 May 2020. The non‑parole period concluded on 5 November 2020. The parole was in due course revoked because of this further offending, and he has served the balance of parole.
According to the material before me, parole was revoked on 23 January 2021, effective from 5 June 2021, when he was arrested for this matter. He has been in custody for this matter only from 5 November 2021 until the present time. Thus, there is a question as to when I should start the sentence that I am about to impose. In accordance with the discretion discussed by Simpson J in Callaghan v R [2006] NSWCCA 58, bearing in mind that had he not been in breach of the parole by reason of this further offending and the obligation to return to custody, he might well have been able to make a further release application on parole.
It would seem to me that the appropriate date to commence this sentence will be 5 September 2021.
A breach of parole report was provided. The report was prepared in respect of the offences which led to the community corrections orders to which I referred and the arrest for this offence, and his status as bail refused as a result. His response to supervision has been deemed satisfactory, though not fully compliant. He appeared to have attempted to begin to address his criminogenic factors of drug use and antisocial associates and mental health. He received a verbal warning about drug use in May 2021. His parents were supportive. Revocation of his parole was recommended, which in due course was implemented.
Unlike the other two offenders, this offender gave evidence, speaking to his affidavit filed in the proceedings. The affidavit represents that he has been in custody for the robbery since 5 Jan 2021.
His placement on remand was at the MRRC then to the mid-north coast correctional centre from where he appears via AVL today. There was difficulty in having access to programs or counselling in custody. He has had access to his case worker in Odyssey House by telephone contact occasionally. He had telephone appointments with that person in June, July, August, September, and October 2021. He has been attending school as much as he can. He has completed certificate courses and is partway through the certificate 3 level of vocational pathways. He has completed three EQUIPS programs. He wants to undertake more education, but there are not many opportunities offered when he is personally held.
He found it hard to complete his schooling because of the lockdowns that occurred at the centre. Completion of assignment work has been challenged because of that. He has been in lockdown for about 120 days according to his affidavit, and he provided as an annexure an array of dates in 2021 between 21 April and 31 December, and then in 2022 between 5 January and 25 April. These did not include half‑days where there was lockdown. These appear to be full day lockdowns for 24‑hour periods. He describes the impact of that, and I have no difficulty accepting that it is challenging and adds to the punishment all inmates must suffer because of this virus, which is affecting the entire community in various ways, including grave illness and sometimes death.
He has estimated that between two to three days each week is in complete lockdown, including Sunday. That, of course, also has an impact upon his opportunity to have family visits. His evidence dealt with that same difficulty. He has a letter provided from the Glenn rehabilitation facility on the Central Coast. That will not be available, of course, until he completes the custodial component of the sentence he is to suffer today. Proceeding through the documents that have been provided to me, he has unfortunately suffered some episodes of conduct that have attracted adverse attention.
Included in the material is a document written on 28 October 2021, described as an inmate misconduct report. This was completed by an officer who has accused the offender of damaging or destroying property. The offender had a tablet. He reported to the officer that when he was on the phone the preceding night, he dropped it and it was damaged, the screen was smashed. He was told by the officer that there would be a bill for the damage. His response to it was said was, "I don't care. I'm not going to pay it. They can get fucked." There is insufficient material there to conclude that he was responsible for the damage in some fashion other than as is described, and it might well be that his response, though inappropriate, was the product of the accusation that was made or at least implied. There is a discipline action form that followed. He pleaded guilty to that. There is a series of check lists on the document, and then ultimately a decision for compensation of $420 to be paid, which appears to have been the ultimate outcome in that matter.
There is a letter provided by his parents, Mark, and Fiona. As with the other offender, I am sympathetic to the circumstances that they face with their son in gaol awaiting sentence for this misconduct. They note that he has been in trouble with the law over the past couple of years because of mental health and drug and alcohol abuse resulting in him being in prison a number of times. They have been continuing to advise him to undergo rehabilitation for these matters and gain full-time employment. They describe him as a polite young man with an impressive sporting background, but unfortunately he fell into the wrong crowd, taking drugs and alcohol, which impacted upon his relationship with his family and contributed to his abandonment of sport.
He was someone with some talent, it appears, and was an inaugural member of one of the major AFL teams' academies and represented New South Wales at schoolboy level. They attribute him with remorse, described as extreme in their letter, and they acknowledge that help to make proper choices is a matter for him and that he must develop the capacity to be able to recognise what he needs to do. He has been accepted, as they note, into the Glenn rehabilitation centre at Chittaway Bay, but that will depend upon his ultimate release date.
There is a letter from a community programs co-ordinator at Odyssey House speaking of an initial assessment on 25 May 2021 and face‑to‑face counselling sessions in May and June 2021 and the use of the Odyssey House community programs after incarceration. There were telephone sessions in June, July, August, September, October 2021. This writes of his commitment to recovery, pursuing multiple options for residential rehabilitation, and the benefit that would attach to him should he be permitted to pursue a residential drug and rehabilitation program.
There are some progress notes included in the material tendered. The first of these refers to 21 October 2021. The offender gave the perception that he had no support from his family, and he needed coping strategies. He signed a participation form to facilitate that. There's a description of his presentation, identification of his stressors and coping, the particulars of his family, the appreciation of the magnitude of the charge he faces. A risk assessment was included with reference to his report of a historical suicide attempt in 2017 due to a relationship breakdown and substance use. His plan was apparently to jump off a bridge near his home.
There are some case notes that have been provided, running sheets, I suppose, of observations made and steps taken to monitor his progress through the custodial setting. These begin on 3 June 2021. He was challenged for having failed to report to EQUIPS, with a further appointment specified. Then on 5 June 2021 there are further charges noted. He was observed on 5 June 2021, according to this note, banging his head on the cell door and scratching at his wrists. Police officers were concerned for his safety because of threats he made consistent with self‑harm. He attended RIT for an interview. He responded politely to all questions. He said he felt good, was looking forward to a shower, and wanted to do his time.
It was noted that he had been depressed and anxious since the age of 14. There is again a reference to his attempt to harm himself by jumping off a bridge but stopped by his mother. He said he had been compliant with his medication. No immediate thoughts of self‑harm were intruding at that point.
On 21 June 2021 there was an assessment for his psychological status. This largely replicates what was contained in the earlier entry that I have already discussed. Indeed, it is a duplication of what that was, it appears, for whatever reason.
On 8 July 2021, he had concluded the first module of the EQUIPS program. This records what that involved.
On 12 July 2021 he is noted to be participating in the EQUIPS program with positive case notes therefrom.
Generally, one can see through the history of these notes, progress made, including on 9 August 2021 module 5 session 4 dealing with the practice of ways to communicate honestly with others and work on self‑management plans to assist him with the goals of abstaining from drugs and obtaining work.
On 16 August 2021 he was again assessed for his adjustment into his current location, his responsivity, and his active participation in programs that were available to him, such as they were. He has a supportive mother, father, and paternal grandmother, with whom he intends to live upon release.
On 4 November 2021, the entry refers to his continuing to work steadily through his assessments in time for his move to rehabilitation.
On 10 February 2022, he lost his grandfather, was struggling with motivation consequently out of the grief reaction.
On 13 February 2022 there is a negative case note. His medication was not collected when the call was put out for inmates to attend for their medication. He missed his medication because he was having a haircut, and he responded inappropriately to the point that he was unable to have the medication because it was too late by the time contact was made with him.
On 14 February 2022, he was given the opportunity to view his grandfather's funeral remotely by AVL.
Generally the case notes are consistent with someone who is in custody, progressing towards his rehabilitation.
There is a report from Dr Richard Furst, written on 12 May 2022. This provides his demographic details, specifically his age, without dependants, a relationship of some three years which ended in August 2020, and the home where his parents live. There were no perinatal complications or early developmental problems. He grew up in Westleigh. There is detail of his father's employment and continuing work, and of his mother's employment. He was getting on reasonably well with his parents until around year 7. He then fell out with his father. He had been playing Australian Rules Football at an elite level in a representative team. He attended the catholic college at Wahroonga in year 7. He went off the rails and began using drugs in year 8. He was expelled. He entered another catholic school in Eastwood until year 10 when he left after fighting with other students and conflict with the teachers.
His primary drug use has been cannabis, smoking that from the age of 14. He was diagnosed with depression at age 14 by his general practitioner, treated with Zoloft and then Prozac. He was later referred to local mental health and counselling services. He began using ecstasy when he was 14 years of age at weekends or at parties. He discontinued that when he was 15. He smoked up to 10 cigarettes a day. He developed a benzodiazepine habit in his mid‑teens, taking about five Xanax pills per day from around the age of 16 years. He was not a heavy drinker but would drink at times, including binge drinking. His employment history is discussed. He was admitted to the mental health unit at Hornsby for a period of three weeks in October 2019 after the episode where he jumped off the bridge on Pennant Hills Road near Thornleigh railway station. He is also said to have attempted to hang himself with a towel in September but was stopped by a friend. There is no suggestions of mania or psychosis.
He drank heavily around November 2019, coinciding with him being kicked out of home. He began smoking cannabis again. He began using Xanax again. He said that kept him calm and helped him forget about things. His family were trying to organise admission to The Hills Clinic or Gordon Private Hospital, but this did not happen; the cost was prohibitive. He was heavily intoxicated at the time of an affray offense at Eastwood railway station on 23 January 2020 after he conflicted with his then girlfriend. He was then unable to live at home and was staying with Lucy at her parents' house. Lucy is his girlfriend. He stayed at friend's places, couch surfing from time to time.
On the morning of 6 May 2020, he had apparently taken Xanax and drank half a case of beer. He was with another young person, a stranger who was stabbed in the left side of his body; those events were recorded on a mobile phone. This is part of the material I must deal with for the breach offences. In the weeks he was on parole and leading up to his arrest in June 2021, he relapsed into alcohol and benzodiazepine and cannabis. He had been using cannabis, alcohol, and Xanax prior to the robbery with which I am concerned.
Recent progress is discussed, including his application for a placement at the Glenn; there is a history of mental state examinations.
On 28 July 2020 he was seen to be alert, co-operative, no evidence to suggest anxiety or psychosis, he was not suicidal and was open to admission to a drug and alcohol rehabilitation facility.
On 4 April 2022 he was logical, without evidence of severe mood disturbance, anxiety, or psychosis, he was not suicidal, he wanted to do a drug and alcohol program in a rehabilitation facility with the support of his parents. There is a reference to a juvenile justice report from 18 June 2018 dealing with the depression that was then diagnosed and the prescription of Zoloft. He stopped attending headspace and Mission Australia for counselling due to staff changes and a lack of consistency in therapists, he said.
Hornsby Hospital medical records were available. He was placed there on 1 October 2019 under section 22 Mental Health Act 2007 after he threatened self‑harm in police custody. He was admitted as an involuntary patient into the acute mental health unit of the Hornsby Ku‑ring‑gai Hospital on 7 October 2019 after he threatened self‑harm. There is a court liaison report by Mr John Lewin on 20 July 2020. Mr Lewin is a registered nurse in consultation with Professor Greenburg, a consultant psychiatrist. The opinion was that he did not present as being mentally ill. He presented with a history of depression and substance use disorder and antisocial personality traits, with which Dr Furst agrees in this report.
He was recommended to undergo ongoing treatment in relation to his addiction issues through the MERIT program, and the diagnosis, according to this report, is one of substance use disorder (cannabis and benzodiazepine), depressive disorder, personality disorder, with antisocial and borderline features. Then Dr Furst goes forth with responses to specific questions dealing with the offender's background and family social history, his psychiatric and psychological history, and an opinion as to whether he had a mental health impairment. He did not appear to have a cognitive impairment or a major mental illness. The major clinical problems were to do with his addiction, emotional volatility, and a disturbed personality structure of the borderline antisocial variety.
He responded to questions regarding the misuse of drugs and alcohol. There is reference to the possibility of childhood trauma such as sexual abuse having taken place either undisclosed or suppressed. There is nothing before me to indicate what Dr Furst was referring to here. There is reference to the causal link between the issues discussed and the offence. The doctor refers to probable moderate to high intoxication from alcohol, Xanax, and cannabis as a contributing factor. He is immature and impulsive. The intoxication coupled with chronic underlying unstable personality and the influence of peers were the main factors contributing to his offending in June 2021. His intoxication and personality structure also contributed to the poor judgement, impulsivity, and the apparent disinhibition displayed.
He is a good candidate to participate in the Young Offenders Program at Oberon, and to continue with medication under care of the justice health mental health service. There is a reference to community options which will be a matter for parole authorities in due course.
When the offender gave evidence, he appeared to me to be forthright and accepting of his circumstances. He confirmed the content of his affidavit. He referred to the impact of lockdown whilst in custody and the impact it had upon his participation in programs that were available. Courses that he wanted to exploit or continue were cancelled. He referred to the letter from the Glenn rehabilitation centre at Chittaway Bay and noted that he was assessed as suitable, but he could not take that place because he was bail refused. He wants to take that opportunity when released. He spoke of his three months in custody last year and of when he did some courses, but notwithstanding the efforts of those providing for his supervision when he was released, he continued to offend.
He acknowledged that he needs to get drinking and drug addiction under control. He watched the images of the attack captured on the mobile phone to which I referred. He saw those before he gave evidence before me. Having seen it again, his responses were, "It made me feel sick to the stomach. I can't believe I did that. Off the drugs I'm a completely different person." He would say to the victim, he said, "I'm sorry." He acknowledged in cross‑examination his alcohol and drug issues which had been extant for some time, including when he appeared in a children's court, reflected in his record of antecedents. He noted and accepted that his bonds were supervised for drug and alcohol management, and he acknowledged that he did not attend anything for he just did not care.
He noted he was released to parole in 2020, his medication for mental health in prison, and he was referred to the report by Dr Furst and the proposition that he stopped taking medication prescribed because he was self‑medicating with prohibited drugs. He was given opportunities for counselling, but he has never had residential rehabilitation opportunities in his past. When he was released in early 2021, he had planned to stay off drugs, but by May was using drugs again and had thus relapsed. He understands it will be difficult to stop entirely drug use in the future.
I should note that the man, Smith, notwithstanding his contribution to these events, was not ever charged. The reason is not known to me.
He is a troubled young man and has clearly gone off the rails affected by drugs, with Xanax apparently his drug of choice, abuse of alcohol, and the antisocial behaviour that goes with it in the company of his friends and associates.

Submissions

Submissions on his behalf were addressed orally and provided in writing, both of which were to the same effect. The summary of the subjective material tendered was addressed. His subjective circumstances were outlined as set forth in the report by Dr Furst which I have read and to which I referred.
His age at the time of the offence was 20. There is reference to his talent as a footballer, playing AFL, his expulsions from school, that it was unusual, according to Dr Furst, opined at page 7, for someone such as this offender to go off the rails, and here the submissions refer to the possibility of a yet undisclosed or expressed serious trauma such as sexual abuse having taken place in his late childhood or early teens. There is no evidence of any of that, apart from this possibility that Dr Furst has offered. The submissions refer to his struggle with mental health and substance abuse from the age of 14, his criminal history, which is extensive, the homelessness that he experienced after his release to parole in late 2020, failing to comply with conditions, and his further incarceration.
Mitigating factors identified are that this was not planned or organised; that appears to be so, prospects for rehabilitation because of his youth and motivation towards rehabilitation; I accept that he is sincere in his desire to rehabilitate, and he has expressed himself accordingly, but his history does not provide the Court with confidence that he is at this point in his life able to address and properly exploit opportunities for rehabilitation. One hopes that he can do so, but I cannot say that the prospects are other than guarded.
I accept his expressions of remorse. I accept his youth. Any mental health and substance issues seem to be in combination with each other, significant factors in his life. The question of the extent to which the drugs have caused or exacerbated the challenges he has for his mental health is something of which I am circumspect. I note his plea of guilty and the entitlement to discount and the extent to which that provides evidence of remorse, bearing in mind though, this would seem to me to have been a compelling Crown case had it gone to trial.
Aggravating factors are conceded. The threat of violence is integral to the offence and cannot be considered as an aggravating factor, but relevant to the assessment of objective seriousness is the fact that there was considerable violence and the extent to which the victim was injured. His prior convictions are a matter of aggravation, and the fact that he was on parole and subject to conditional liberty, but as is pointed out, that does not aggravate the objective seriousness, nor does it increase what would otherwise be a proportionate sentence to this misconduct. It does, however, inform questions arising in respect of rehabilitation, the need for personal deterrence to be given appropriate weight, all in accordance with the decision in The Queen v McNaughton [2006] 66 NSWLR 566.
I am reminded of what the authorities have said regarding this type of offence, including the guideline judgement in Regina v Henry & Barber [1999] NSWCCA 107. I am reminded that the authorities identify liability for misconduct forming part of a joint criminal enterprise, but that there is a need to assess the level of participation exhibited by the offender in his commission of his offence. I am reminded of authorities which speak to the difference between objective seriousness and moral responsibility arising in the light of and illuminated by the subjective circumstances of the offender, amongst other things. The objective seriousness of the offence is conceded.
The conduct of the offender is said to have been below that of the others, that he was not an instigator, the robbery was spontaneous and followed interaction between the victim and some of the co‑offenders, no planning was exhibited on the part of the offender, he became involved in the melee that was already in progress, he did not personally demand or steal the victim's property, but he punched the victim several times while the co‑offenders were demanding and taking the property.
I am reminded of his youth and immaturity which is always a factor to be brought to account on the assessment of punishment in the balancing of the sentence, as well as all the factors that must be brought to account. Immaturity and impulsivity are exhibited, I would accept that in respect of this and the other offenders, that they were exacerbated by alcohol and drugs is advanced at least implicitly if not expressly by Dr Furst. I am reminded of what Dr Furst included with the assessment he made of the offender.
I am reminded of what was said by Wood CJ at CL Regina v Henry & Barber ibid, where drug use or addiction was not a matter of personal choice but attributable to some other event for which the offender is not primarily responsible, could be seen as a mitigating factor. His misuse of drugs began at a relatively young age, but there has been, I would suggest, strident efforts by the courts throughout his antecedent history to give him opportunities to turn away, which he has acknowledged in his evidence before me, and which did not serve to redirect his path.
I am reminded, regarding mental health impairment, of the opinion by Dr Furst, page 7 of his report, that the primary clinical problems related to addiction issues, emotional volatility, and disturbed personality structure, with reference to the depressive disorder and personality disorder diagnosed on page 6 of the report. This requires, it is said correctly, some weight.
He is said to be exposed to the risk of greater hardship in custody because of what was identified in Dr Furst's report, but when one looks at the case history and what he has said about the opportunities that he wants to exploit in gaol, it seems that he is starting to manage well, or at least satisfactorily for present purposes, and hopefully he can build upon that as time passes. I am once again reminded of the judgement of McClelland CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, and the principles that his Honour rehearsed, where he said that a mental health contributing to the commission of an offence in a material way might reduce moral culpability with a consequence that the need for denunciation might be reduced.
The inappropriateness of the offender as a vehicle for general deterrence was also noted. The impact of a custodial sentence might be greater. The significance of specific deterrence might attract closer consideration, but conversely and importantly in this case, it may be that because of these various matters, an offender might present more of a danger to the community, and that specific deterrence might require a greater sentence such as in the case where a person might have an antisocial personality disorder. I am also reminded of recent authority from Hamill J in Luke v The Queen [2017] NSWCCA 226, urging the courts not to approach such an assessment in an unduly or technically restrictive way, and that hearsay statements should not lose their value, or not impact to devalue the opinion provided by an expert in the report. This does not apply in this case because I heard from the offender, who I have accepted as a forthright witness, acknowledging the impact of what he has done.
I accept what is said about the difficulties in custody, and I have already commented upon the prospects for rehabilitation.
The Crown's submissions regarding objective severity refer to the offence being in company, the offender being with three other men, including Smith, the time of the offence when it occurred, the extent of the violence, the nature of the attack ‑ about which I have already commented ‑ the insulting and threatening language that was used, and the injuries suffered. As I have indicated, objectively, this matter is at least at mid-range. The Crown refers to the conditional liberty by way of community corrections orders that were imposed on 9 October 2020 and 10 February 2021, to which I will also come, and the fact that he was on parole for reckless wounding and affray.
The extent of violence on his antecedent record is summarised, including charges of affray, assault, and intimidation, damaging property, and the reckless wounding. Much of that is before me by way of the breach offences with which I must deal. The Henry guideline judgement ibid is noted, as I did previously, noting that this is a young offender but with an extensive criminal history, no weapon was used, there was limited planning, there was extreme violence in my assessment, upon a vulnerable victim, with a plea of guilty, assessed for the purposes of determining contrition and remorse against the strong Crown case. I agree with the Crown's submission that this should be seen as conduct falling at a more serious level than in the example given in the Henry guideline. There are no circumstances before me that would justify departure from the requirement that there be a custodial sentence.
I am reminded that Dr Furst noted there were no indications of intellectual disability. There was a history of depressive episodes, but there was no apparent cognitive impairment or major mental illness. The Crown submits that it would take very little maturity for an offender to appreciate that punching and kicking a person with two co‑offenders and taking that victim's property is a serious wrong and could occasion significant harm. The Crown acknowledges the drug use and intoxication, whilst not a mitigating factor because of section 21A(5AA) Crimes (Sentencing Procedure) Act 1999, is yet a factor relevant because it throws light on impulsivity.
There is nothing in the offender's background within his family context that would explain why he has gone off the rails as he has. The Crown notes that he had opportunities for education. He began using cannabis at the age of 14. He began mental health treatment about that time. His Xanax use did not commence until 16 years of age. There is nothing the Crown submits that would suggest that his drug use was other than a choice that he made, not prompted by some other event. I am reminded of what the authorities say about the purposes of punishment, general deterrence, and protection of the community, that is a particular factor of significance in this case. Rehabilitation is important, but it must be balanced against the other purposes for sentencing that are provided in section 3A Crimes (Sentencing Procedure) Act 1999.

The Breaches of Conditional Liberty

This brings me to the offences which are before me because of the breaches of the various community corrections orders that were extended to the offender. I have considered that he served a sentence of imprisonment for the more serious of that misconduct, when I settled upon why I am going to approach these various other offences that now must be revisited considering the conduct in breach of the conditional liberty extended to him.
The first of those I will deal with is the reference H75416854 sequence 1. This was a charge of damaging property. For this he was allowed the community corrections order for two years. This offence occurred in the following circumstances. The victim, someone of the name Tkoha Curtin, lived at an address in Normanhurst. The victim and the accused were known through the victim's son, who was friends with offender. About 12.30pm on Monday 6 April 2020, the victim's daughter was sitting in the front room when she noticed the offender at the front of the house near the front door, speaking with her son. A short time later, the offender punched the front door, smashing a pane of glass before fleeing in a car and leaving the location. This damaged the door but did not destroy it. Police attended a short time later and took the necessary particulars for the subsequent investigation and prosecution for damaging the property. The maximum penalty for an offence contrary to the provision creating it, section 195(1)(a) Crimes Act 1900 is imprisonment for 5 years.
The next series of offences present an even more dismal picture. According to the facts before the Court, there were all together 14 offences. Some of these resulted in orders pursuant to section 10A Crimes (Sentencing Procedure) Act 1999, and for all intents and purposes, those matters are complete. There was an offence of reckless wounding contrary to section 35(4) Crimes Act 1900 for which the offender was imprisoned. There was an array of offences of damage to property. There was an offence of common assault, an offence of intimidation, an offence of custody of a knife in a public place, and an offence of possession an implement with intent to contravene the Graffiti Control Act 2008. The damage was use of a spray can to tag various structures.
I should note that what I am about to deal with was not one of the offences for which he was called up to answer for the breach of a community corrections orders. There is an offence of an affray dealt with in the Burwood Local Court on 9 October 2020, charged on 6 July 2020. He was sentenced to an aggregate sentence of imprisonment of 18 months with a non‑parole period of 6 months from 6 May 2020, and for the charge of reckless wounding, which is one of the offences that is before me, at least as part of the context, charged on 7 May 2020 and dealt with on 9 October 2020 at the Local Court of Burwood, he was sentenced to imprisonment of 18 months with a non‑parole period of 6 months, concurrent with the sentence for the affray.
The facts regarding all this misconduct are quite extensive. He was with another young person. At 3.55pm on Wednesday 6 May 2020 they entered Central railway station. The offender graffiti tagged the wall within the train station, causing damage. That was captured on closed‑circuit television. At 3.57pm that afternoon they boarded a Sydney train from platform 16. In the carriage that they occupied the offender graffiti tagged the window of the upper deck. That was captured by the CCTV and by the offender, using his mobile phone. At 4.29pm at Chatswood railway station the train arrived. The offender and his companion joined a metro train on platform 3. They sat in the front carriage area, and at 4.32pm he removed a black marker pen and wrote on the floor of the train.
There was a staff member on the train. She contacted the control centre to advise them of what was occurring. She was in the same carriage. At 4.35pm the train arrived at platform 2 at North Ryde. They alighted and stayed on the platform. The accused walked to the front of the train and then spray painted the upper side of the train, causing damage to the exterior of it. That was captured on closed‑circuit television. An employee, a Mr Rusack, was the station controller at North Ryde, working alone. He received a call on the radio to conduct a welfare check on the staff member on the train. At 4.36pm the train left platform 2 as he was walking down to check on the welfare of the employee. He was unable to do so because the train left. He advised his control centre of that.
The offender then walked straight up to him and said in an aggressive tone, "What did they say about me?" Mr Rusack said, "Nothing. I don't know who you are or what's going on. I'm just checking train doors and platform doors." He then tried to move backward and away from the offender across to platform 1. The offender followed him and said, "You want to go? You want to go?" The offender then used his right hand and punched Mr Rusack in his right upper arm, causing pain. Mr Rusack tried to retreat down the platform, but the offender followed him, along with the other young person, who at this time was trying to intervene and stop the offender but was himself pushed away. This was captured on the Metro Train Sydney closed‑circuit television.
The offender reached into his pants pocket and pulled out a knife. He unfolded the knife. The blade was about 10 centimetres long with a black handle. He made a forward thrust motion towards Mr Rusack's abdomen. He was about 2 metres away from Mr Rusack when he did this. This was captured on the closed‑circuit television. The offender turned and took a few steps away from Mr Rusack and put the knife back in his bag, then reached in and removed a spray can. He ran at Mr Rusack and pointed the spray can muzzle at his face. Mr Rusack turned and moved backward to avoid being hit. This was captured on closed‑circuit television.
The offender then walked down the platform and used that spray can to graffiti the clear glass barrier on platform 1. Mr Rusack was standing a few metres away from the offender on the platform. He used his portable radio to inform the control room to contact the police. The offender had the young person use the offender's mobile phone to film the graffiti and tagging. He said to the young person to keep filming while he graffitied the glass platform barrier, and said, "Get a video of me having a go at this cunt, bro." The offender ran towards Mr Rusack and said, "Yeah, what cunt? What? Hey?" Mr Rusack retreated and fell over onto the platform. This was captured on the closed‑circuit television. The offender then used the same spray can to graffiti tag the wall on platform 1. At 4.38pm they both ran down the platform and accessed the concourse area to exit the railway station. As he was doing so on the escalator, he removed his penis and urinated onto it. This was captured on closed‑circuit television.
At 4.40pm, after they had left the railway station, they went onto Delhi Road. At 4.43pm the police arrived. The offender and his companion caught a bus to Lane Cove, and at 4.51 they used the spray can to spray a letterbox at an address in Mowbray Road. This was captured by the offender using his mobile phone. At 4.55pm they walked to another address in Mowbray Road, Lane Cove. They spray painted the fire hydrant door and walls at this location. This was captured on the offender's mobile phone, apparently proud of his work. At 5.09pm the offender and the young person walked across Epping Road to Lane Cove Valley Walk, and they spray painted a tag on the footbridge, causing damage. This bridge is about 30 metres long. It comes out at the end of Magdala Road, North Ryde.
About 4.30pm, Scott Dempster, who was their next victim, left his place of work at Apollo Place, and walked down Epping Road onto a pedestrian footbridge, which is called the Lane Cove Valley Walk. On the footbridge, he saw the offender and the young person tagging and carrying out graffiti on a piece of infrastructure described as the pipeline which runs through this area. Mr Dempster said, "Yeah, good work, dickheads." The offender and the young person replied, "You're the dickhead." The offender was currently using the can of spray paint and in possession of a green plastic bag containing further cans of paint. The young person with the offender was videoing the offender with his actions using a mobile phone.
They then approached this victim in an aggressive manner and continued calling him a dickhead. The offender then took out a knife from a satchel bag attached to his body. This was described as a folding knife with a black handle and a 4‑inch blade. The offender and the young person both pushed the victim in the chest and pushed him against the railing against the footbridge. The offender said to the victim in a menacing tone, "I'm going to cut you", while holding the knife in his right hand. He began swinging the knife towards the victim, which the victim was able to deflect. The offender said, "I'm going to get you good." The young person with him said, "It's not worth it. Let it be." This did not discourage the offender.
The victim had a folding knife in his right‑hand front pocket, with a belt cutter and glass cutter which he had for his work. He had the knife out and tucked into the right side of his body. The victim said to the offender, "You don't want to go that way." The victim said this hoping that the offender would put his knife away. The victim put his knife away in his pocket. The offender then, in an underarm swinging motion with the knife in his hand, stabbed the victim to the left side of his body. The victim felt the knife penetrate his body. The offender then attempted to swing up high at the victim's throat, however the victim grabbed the offender's arm to keep the knife away from his head. The offender hit the victim to both sides of the victim's head, causing his glasses to fall from his face. The offender grabbed the victim's glasses and threw them away.
Fearing further serious injury, the victim called emergency services and was later assisted with the injury until the police arrived. The offender and his companion were seen heading towards Magdala Road, North Ryde. The police attended the location. When they were ultimately stopped and arrested, the offender said, "It was self‑defence, he sliced me." He was found in possession of some cannabis weighing 4.15 grams. He also had eight small white tablets weighing 1.28 grams which would undergo further analysis. He declined the opportunity to be interviewed. Compensation was sought, extending to $2,400.
Although the community corrections orders were imposed in the Local Court, I have jurisdiction to deal with them if the offender consents to that course, and he has done so, so that all matters may be disposed of at one time.
The first of the matters that I dealt with was the subject of a defended hearing in the Local Court at Hornsby. Notwithstanding the efforts of the parties, the transcript of those proceedings has not been located. The offender was found guilty of the offence and the orders made for community corrections for two years with supervision. For the other offences with which I am now concerned, I do not consider the reckless wounding offence other than to provide the context in which the other offences occurred.
The conduct of the offender is of concern. There is a need for weight to be attributed to the aspect of specific deterrence considering the history of offending, and in particular the description of the conduct upon which he engaged, notwithstanding all that has been said on his behalf and as described by Dr Furst in the report he provided after his consultation with him.
It is a case that is replete with special circumstances because of his youth and because of the obvious need for him to be properly supervised in the community after he has completed the custodial component of the sentence I am about to impose. He is in a different position to the circumstances that were before me regarding Mullins. He has a far worse history, which impacts upon the extent to which he might have otherwise had leniency. All the purposes of sentencing are engaged in this case, including the need for general and specific deterrence, appropriate punishment, appropriate denunciation, and recognition of harm done to the community and to the individuals the subject of these various charges. Thus, my formal orders shall begin.

Sentence

For the offences in respect of which the offender was given the benefit of a community corrections order, the community corrections order in each case is revoked. He stands convicted of each of those offences. I intend to identify as is appropriate in my assessment of the matter, a period of imprisonment relevant to each. In each case, the sentence that might have otherwise been imposed has been reduced by 25% to reflect the plea of guilty. I will impose an aggregate sentence.
The indicative sentences that I have identified, first for the robbery in company, allowing the discount of 25%, is a sentence of imprisonment for 4 years and 6 months.
For the offence of common assault in the sequence beginning H77066389/7, I specify a sentence of 6 months, reduced by 25%. The reduction of 25% applies to all the offences which I am now to deal.
Within the same series, the offence of damage to property sequence 13, I have identified a sentence of 3 months.
For the damage to property sequence 4, I have identified a sentence of 3 months.
For the damage to property sequence 12, I have identified a sentence of 3 months.
For the damage to property sequence 10, I have identified a sentence of 3 months.
For the offence of custody of a knife in a public place sequence 9, I have identified a sentence of 6 months.
For the offence of damage to property sequence 5, I have identified a sentence of 3 months.
For the offence of damage to property sequence 3, I have identified a sentence of 3 months.
For the offence of damage to property sequence 6, I have identified a sentence of 3 months.
For the offences of intimidation sequence 8, I have identified a sentence of 6 months.
For the offence of damage to property in the series H75416854/1, I have identified a sentence of 3 months.
I have brought to account in the assessment of these matters the course of conduct in which the offender engaged in the commission of each of those individual crimes.
I order the offender's conviction for the robbery offence, bearing in mind he has already been convicted of the other offences.
The aggregate sentence I impose pursuant to section 53A Crimes (Sentencing Procedure) Act 1999 includes a non‑parole period of imprisonment of 3 years commencing from 5 September 2021. He will be eligible for parole and shall be released to parole on 4 September 2024. The overall sentence is one of 5 years and 3 months. It will expire on 4 December 2026.
The advocate appearing for the offender brings to my attention that the sentence imposed rendered the offender as an eligible convicted offender for the purposes of a referral to the compulsory drug treatment program. This is not opposed by the Crown.
Pursuant to section 18B Drug Court Act 1998, and bringing into account section 5A Drug Court Act, by force of which the offender is an eligible convicted offender, I refer the offender to the drug court for a determination upon whether he should be the subject of a compulsory drug treatment order. I am satisfied that there are grounds upon which the drug court might find him to be an eligible convicted offender in the material that has been presented.

JEREMY WILLCOX

We come to the determination of sentence for Jeremy Willcox. Once again, the facts are common, save for what occurred with the investigative process insofar as it involved Mr Willcox.
According to the facts, Willcox filmed, using a mobile phone, what was happening in these events. He participated in an electronically recorded interview with the police at 6.21am on Saturday 6 June 2021. His response to what was put before him was less than appropriate and did not reflect precisely what is contained within the agreed statement of facts.
Paragraph 29, when dealing with his responses to the police, he said: "This cunt starts chewing up on my mate. We all told him to fuck off, and he wouldn't fuck off and he kept following us around, and we said, 'Mate, look. If you don't stop following us around, we're going to have to fucking ‑ we're going to have to do something about it.'"
All he could remember was: "This cunt on the floor getting up and then walking off."
He could remember: "This cunt geeing up at us, and all of a sudden he just like ‑ I forget ‑ the rat fucking got in my face, and then I see my boys again and they backed me, and they're like, 'Don't talk shit about my mate.' Yeah, I back off a bit, and the issue was probably going to get serious."
He said there were "a couple of verbals, and then "this cunt tried to lunge towards my mate and we all just kept dodging it and saying, 'Is that all you got?' He tried to lunge toward us. One of my mates give him a good jab."
He said, he "gave him a good jab as well."
When shown the video of the incident, he agreed that he was depicted. He said he hit him once, but denied kicking the victim, and when asked about the things that he was yelling on the video, including "2077 in your mouth", he said, "Because he's a little dog and he's a snitch." He said he "drank a fair bit last night and didn't remember shit."
I repeat what I said earlier, that notwithstanding the implication in that last representation, the Crown has not advanced upon the basis that there was any attack upon this man because of whatever status these offenders might have perceived he held or had with police generally.
A sentence assessment report was prepared. This referred to his having obtained employment in custody but he was terminated from his position because of inappropriate behaviour not further described. He spoke of his work history in horticulture before coming into custody. This was confirmed by his mother. His education ceased after he obtained year 10. His prior convictions were noted. Beneath the heading attitudes, the following is recorded: "‑ Mr Willcox did not seek to minimise the offending, nor did he blame the victim. ‑ He claimed that he cannot recall his actions on the night of his offence, however on sighting a video of himself committing the offence he stated that he 'couldn't believe he did it'."
He reported that he abused Xanax for some time previously and had been abstinent for about one year before the lapse on the night of his offence. He also consumed alcohol.
Amongst this group it seems Xanax is the drug of choice.
He said he could not explain his actions on the night. He acknowledged his issues with anger and violence. He reported a complex mental health history, verified by a treating psychologist and his mother. He has been diagnosed with ADHD or oppositional defiance disorder, unipolar depression, general anxiety disorder, social skills difficulties, and learning difficulties. He did not claim to be affected by his mental state or mental health at the time of the offending.
He said he felt sorry for the victim. He had no great insight into the offending but presented as regretful. He was currently engaged with mental health intervention and accepted that he might require further interventions to address his criminogenic needs. Previous periods of supervision were deemed satisfactory. There is a medium risk of re-offending. He will need illicit substance use intervention and mental health intervention, according to the report.
The documents tendered in his case include a report from a psychologist, Susan Hawil, of 26 March 2022, and a letter of apology, one from his mother, and one from Mel Clifford. I will proceed through those as they appear in my electronic record of the material.
First is the letter from the offender, who writes expressing his deep and utter regret and accepting responsibility for what he did. The past 9 months has given him time to think about what he could have done better. He was heavily affected by Xanax and alcohol. He completed a course in pathway to healthy body and healthy mind. No other courses have been available to him. He has also been working in a kitchen for the last 5 months, but I am not quite sure whether that is the job which he lost because of the problems which I earlier referred. One way or another, he had a period of work in custody, at least for some time.
The report from the psychologist is preceded by a document from Youthblock Youth Health Services written on 24 March 2002, addressed to the presiding magistrate of the District Court. This is a multidisciplinary service which works in partnership with marginalised and at‑risk young people to support them actively managing their health and making choices to promote their health and wellbeing. The services include nursing, medical counselling, and casework appointments, as well as health education and health promotion programs. Bearing in mind the date of this offence was 5 June 2021, the offender was referred initially to this organisation for counselling in February 2018 and has been meeting with representatives there since August of that year. Frequency of contact has varied depending upon whether he has been employed. COVID-19 has had an impact. Throughout his custody he has maintained contact by way of monthly telephone appointments.
In 2017 he was diagnosed with ADHD and ODD, unipolar depression, general anxiety disorder, social skills difficulties, and learning difficulties by his paediatrician, Dr Desmond Cohen. This appears to be the source of the information contained in the sentence assessment report. He was reviewed by psychiatrist Martin Allen on 6 April 2019. He was diagnosed with a major depressive episode in the context of a likely antisocial borderline personality disorder. It was recommended that he engage with a dialectical behavioural therapy program. He completed that at Gordon Private Hospital. During his interaction with the psychologist, Mel Clifford, who writes for this organisation, the work included identifying triggers that led to feelings of being overwhelmed by emotion. He has shown an admirable willingness to challenge thought processes that lead to impulsive behaviour and offences such as one leading to his presentation at that time. The current incident occurred in the context of a relationship breakup, which though not adequately excusing his behaviour, is certainly a huge trigger for the offender. Relationship breakups have led to greater incidents of impulsive behaviour. A treatment plan is suggested.
The psychological assessment then follows. The information was by way of self‑report from the offender. There is reference to a report by Ms Ann‑Marie De Santa Brigida at Mindways Psychological Services of 24 February 2020. I do not have that. There was psychometric testing. The family background is discussed. He is of Koori and Italian background. His mother has no history of alcohol or substance abuse, no psychiatric problems, or criminality. His father is employed at Mister Minit. He had a history of alcohol abuse and depression. His father has been married four times. His mother never remarried. He is the only child from his parent's relationship. He has one older half‑sister and one younger step‑brother on his father's side.
His parents divorced when he was 18 months old, attributed to his father's infidelity. He and his mother relocated to Sydney. They resided with his maternal grandmother, maternal aunt, and maternal uncle, who reported a relatively stable upbringing with strong family values, but he referred to his uncle's abuse of alcohol and gambling. His exposure to this, though, as I understood the material overall, was limited. He spoke of one domestic violence incident at the age of 10 years when at his father's home, to which the police were called after some dispute with his father's then partner, during which it is says the police tasered his father. He said that his father was dating "a junkie".
When he had his visit with him, he was locked in his room, and he heard screaming. His father was screaming, "I'll kill you", and took out a kitchen knife. There was no contact with his father after 2018. Apparently, he is said to have said his father has shown no effort. He now has a wife and a son who have his focus.
He has been in a relationship for some 9 months. He has been living with his mother for some 18 years. Against that history, it would appear there has been some impact from negative influences, but the extent to which it has contributed to his present circumstances must be measured against what is said to be a caring relationship with his mother and the fact that he has lived with her for the last 18 years.
He was diagnosed with ADHD at school and oppositional defiant disorder by Desmond Cohen, paediatrician. He was prescribed condition specific medication. He suffered some bullying in school beginning in year 6. He spoke of being alone with no friends. He was disruptive in class, truanted, was absent frequently. He was referred to Phoenix House in year 10. He completed year 10 ultimately through TAFE. He completed the pathway to healthy mind and healthy body in custody, of which I referred. He has also done the responsible service of alcohol course. He was employed as a landscape gardener in 2021, a position he held for some four years on and off. He worked as a barista and was also employed by Bakers Delight at the age of 15. He has the capacity, it would appear, to engage in meaningful employment.
He began using cannabis at the age of 14, MDMA at the age of 16. He has experimented with LSD, magic mushrooms, cocaine, and DMT (apparently a reference to N, N-Dimethyltryptamine) between age 17 and 19. He began using non‑prescribed Xanax from the age of 17 and was initially using a 10 pack per night for three months. He overdosed at the age of 18 and was admitted to Hornsby Hospital. He stopped at the age of 20 because he reported experiencing visual and auditory hallucinations between 17 and 18 years of age. He consumed alcohol at the age of 15, it became problematic at the age of 17. He began stealing from a bottle shop when he had no money to buy a drink, which he thought he needed. He reported consuming 24 standard drinks every couple of nights up until 2020 and was using alcohol again on the day of the offence.
He is engaged in AOD counselling whilst on remand and was referred to the program for adolescent life management.
He underwent a battery of psychometric testing for the preparation of the report.
The report refers in general terms to the impact upon children from exposure to violence and abuse and misuse of alcohol and the like, and the reference to indigenous Australians who are at much higher risk of being incarcerated than non‑indigenous Australians. As general propositions those are well known to the courts these days, but one needs to look at the specifics in the matter, and whether those general comments can be said to apply to this offender requires careful consideration. Again, I refer to his relationship with his mother, which has been, upon what I have, a positive one.
Regarding the oppositional defiance disorder, he reports a pattern of angry, irritable mood and argumentative defiant behaviour. He often lost his temper, was easily annoyed and often angry. He actively defied and refused to comply with requests from authority figures, and often blamed others for his misbehaviour. This all impacted negatively upon his social, educational, occupational, and other important areas of functioning.
There is a general statement of how people with oppositional defiant disorder as children and adolescents are at increased risk for a number of problems and adjustment as adults as they progress through life. There is discussion of attention deficit hyperactivity disorder, with reference to the report completed by Ms Ann‑Marie De Santa Brigida at Mindways Psychological Services. This appears in the report beginning at 7.6 and following apparently drawing upon what was contained in the other report.
There are general discussions about the impact of ADHD. There is reference here to the offender's prescription of Ritalin, which was later adjusted to Concerta, which he ceased at the age of 17 years. People with ADHD are said to suffer impulsivity, poor comprehension of consequences, inattention, and distractibility. There is the suggestion that the part of the brain that is affected, as discussed in this report, does not reach full maturation until the age of 25. It is now, as I perceive, matters well accepted that males particularly do not achieve full maturation until that age, regardless of whether they are affected by ADHD or ODD. Because of ADHD, it is said there is a predisposition to substance abuse. There is a multiplicity of problems identified arising from his childhood diagnoses there discussed, including his learning difficulties, for which he received learning support at school.
There is a reference to the diagnosis of unipolar depression and generalised anxiety disorder. There is a discussion of intermittent explosive disorder, manifested by verbal aggression, aggressive responses grossly out of proportion to provocation, recurrent aggression not premeditated and which causes marked distress in the individual and impairment in interpersonal functioning. He reported a history consistent with impulsive aggression. He is said to have trouble controlling his impulses and does not consider the consequences of his actions when angry. He spoke of having broken his hands "heaps of times" by punching holes in doors. This assisted to dissipate tension.
There is a reference at 7.17 to him having suffered physical and sexual abuse at the age of 17 by a correctional officer at a juvenile justice centre. I have no further information regarding that or what has been pursued regarding it. There is a comment that he has received no formal treatment or support to overcome the effect of that abuse, but he has been consulting a legal representative about it. It seems to be a recurrent complaint in recent times with offenders who report that they have suffered physical or sexual abuse whilst in the custodial setting, but in this instance, there is little to support the representation or to quantify what it was and what impact it had. That said, I will take it as a representation of the fact for the purposes of assessing the offender.
There is a discussion of his cannabis use disorder said to afflict him. He is attributed with being under the influence of cannabis and alcohol at the time. He said that he did not recall the event. All that he could remember is watching a footy game, sitting on the couch, his mum asking if they were all good, then going to sleep and waking up in gaol. This does not sit comfortably with what he said in the ERISP, to which I have already referred.
Psychometric testing was undertaken. These were on self‑reporting instruments that ultimately were accepted by the psychologist. There was an assessment of his risk of re-offence, and in conclusion the report summarises that there was a disclosure of a series of adverse life events. I take that to be the event with his father being tasered, whatever occurred to him in custody when he said he was physically and sexually abused, and whatever the uncle offered by way of behaviour that might have impacted upon him.
There are diagnoses which are discussed. There were multiple attempts of deliberate self‑harm and suicide attempts for which he had previously been hospitalised, and his use of alcohol and cannabis at the time of the alleged offence which may have impaired his judgement.
Self‑induced intoxication does not mitigate, but it might illuminate the moral culpability and explain why he might not have had the impulse control that he ought not to engage with his co‑offenders to so mistreat this hapless victim.
There is reference to what treatment plan might be of assistance to him. It will be a matter, no doubt, that will inform the parole authorities when he is due for release.
There is a document provided by his mother, once again, someone for whom I have a great deal of sympathy for being called upon to speak on behalf of her son. I must say, having read this document I found this of more assistance for the offender than the psychological assessment ultimately, as she writes of the breakup of her marriage 18 months after the offender was born, that his father made no attempt or effort to spend quality time required to form a solid relationship with the offender, even though the offender adored his father and craved his attention. She writes that she luckily had the support of her parents and sister, who helped provide a family‑oriented upbringing.
He went to a catholic primary school. He made friends easily but would get upset when the circle of friendship changed, and this heightened his sense of abandonment. He was desperate to connect with and be part of a social group. His grandfather, her father, and the offender's only male role model, passed away in August 2006. This had an impact upon him. At the age of 12 he was diagnosed with ADHD and ODD with learning difficulties. His time in primary school was mixed with some happy moments, but mainly exclusion because of bullying and teachers pressuring her to medicate his son. Despite this, he completed year 6. High school was even more challenging. He began taking Ritalin at the age of 13, then Concerta. There was a stigma attached, which she identified.
At 14 he left a school to begin at another high school where his anxiety became more prevalent. He enjoyed some subjects, such as English and cooking, but began to get into trouble, truanting, smoking cannabis, and causing graffiti and damaging property. The school was supportive and worked with him with some success, but ultimately expelled him. He went to Phoenix House as with the others to finish his schooling.
There is a common thread in all these cases in the way the education system was inadequate to meet the needs of these boys, ultimately leading to them going to Phoenix House.
She developed stage 2 breast cancer, and the following year her mother developed breast cancer. This was in 2016 and 2017. Both are in remission, but this greatly affected the offender, which led him to complete his ROSA, a form of year 10 leaving certificate, at Phoenix House.
He was mixing with other troubled youths, began experimenting with alcohol and drugs, which led to some time in Cobham Youth Centre at the age of 17. Upon release he commenced TAFE courses. This led to him being offered work. He preferred landscaping to the mechanics which he had commenced studying. She speaks well of him. She has been shocked by the antisocial behaviour. She sees him as having potential. She attributes him with remorse and notes that he has remained in contact with Melissa Clifford, his psychologist at Youthblock through phone contact. This is a positive aspect I accept.
Unfortunately, Mr Willcox has also some breach matters with which I must deal. Before I go them, I will note his antecedent record which is included in the Crown bundle. I should note, first, that he was also born in 2000, comparable age to the other offenders. He was first in a children's court in June 2018 for assaulting an officer in the execution of duty. He has been before courts since then for shoplifting, for affray, for common assault, for custody of a knife in a public place, ultimately entering the adult courts in September 2020. All those earlier offences were in children's courts with conditional liberty being employed.
For the first offence in an adult court in September 2020 for contravening an apprehended violence order, bearing in mind that this offence with which I am concerned was on 5 June 2021, he was given the benefit of a community corrections order from 9 September 2020 for a period of two years. In a children's court he was also dealt with for shoplifting, and with intentionally marking premises, a graffitiing offence as I understand it. There were two of those charges and a charge of entering enclosed lands. Again, all the courts hearing those matters dealt with him by way of conditional liberty.
The important matters with which I am concerned on his history now are first the matter that was dealt with on 9 September 2020 of contravening an apprehended violence order to which I referred. That is sequence H72982238, and then sequence H72713876, another offence of contravening an apprehended violence order for which he was given a community corrections order of 18 months from 9 September 2020. Then another, reference H72892161, for contravening an apprehended violence order he was given a community corrections order of 18 months. And then for H74565718 for contravening a community corrections order for damaging property he was subject to the same form of order for 18 months from 9 September 2020. These have been provided to me and I shall deal with each one in turn.

Breach Of Conditional Liberty

First, the matter 74565718, which is a damage property charge. This occurred about 12.50pm on 11 May 2020. He had an argument with a friend in the Westfield shopping centre and walked off past a barbeque restaurant. As he did so, he turned towards vacant tables directly outside, then kicked toward a table, causing it to fall and snap one wooden leg. The leg was completely snapped off. Police attended the shopping centre for an unrelated matter. They were stopped by witnesses who reported the incident. and described the offender and his attire. CCTV was accessed and police recognised him, having known him through prior dealings. They attended the offender's home on 11 May 2020. They wore body cameras. He admitted that he was the person involved, but said, "I didn't really mean to kick it. I was a bit angry, and I bumped it with my knee." This is contradicted by the CCTV.
Conduct the subject of H72892161, contravening an apprehended violence order, occurred about 6.40pm on 16 October 2019. On 5 September 2019 he had been served with an enforceable provisional AVO with proscriptions, including that he does not approach the person in need of protection. The police attended an incident at Headon Park, Thornleigh, upon the allegation that a 20‑year‑old male had entered the toilet block with three females aged about 14. The police attended at 6.50pm and saw the victim walking from the toilet block and then saw the offender running away. They stopped him in Duffy Avenue. He produced his licence, confirming his identification. He denied being in the company of the victim. He was aware that he was not to be in her company.
They allowed him to leave, but suspicious that he might try and link up with her again, they drove toward the victim's home. About 7.10pm, only 15 minutes later, the offender was seen 200 metres from the home of the victim, walking towards her residence. She was walking along side of him, within a metre of him. When he saw the police, he ran off. He was captured. He attempted to evade them and there was a short foot pursuit, ultimately leading to his arrest. He declined the opportunity to be interviewed electronically.
The next sequence of facts I have relates to H72713876, and this describes how on 5 September 2019 he was arrested and charged with sexual touching a child over 10 and under 16. An apprehended violence order was issued for the protection of the person to whom I shall refer as GE. He had bail which included the conditions replicated in the AVO. He was served with that. On 6 October 2019 at 8.40pm they saw the offender sitting with the female person. She ran from the location. He remained. The police addressed him. He denied her presence and said it was another person. CCTV confirmed that GE was the person with whom he was there associating. He was arrested. He declined the opportunity to be interviewed.
Finally we have the facts for H72982238, describing the same predicate offence which led to the apprehended violence order and the grant of bail replicating the conditions contained in the apprehended violence order. The police applied for and obtained call charge records for the offender's phone. He obtained that on 14 September 2019. On 14 September 2019 he attempted to contact or contacted by phone call or SMS on 9 occasions. On 15 September 2019 there were 34 occasions. On 16 September 2019 there were 60 occasions. On 17 September there were 118 occasions. On 18 September there were 333 occasions. On 19 September there were 47 occasions. On 20 September 29 there were 124 occasions. On 21 September 2019 there 86 occasions. On 22 September 2019 there were 86 occasions. On 23 September 2019 there were 21 occasions. On 24 September 2019 there were 45 occasions. On 25 September 2019 there were 21 occasions. On 26 September 2019, 25 occasions. On 27 September 2019, 116 occasions. On 28 September 2019, 27 occasions. On 29 September 2019, 8 occasions. On 30 September 2019, 55 occasions. On 1 October 2019, 27 occasions. On 2 October 2019, 83 occasions. On 3 October 2019, 10 occasions. On 4 October 2019, 24 occasions. On 5 October 2019, 35 occasions. On 6 October 2019, 58 occasions. On 8 October 2019, 99 occasions. On 9 October 2019, 68 occasions. On 10 October 2019, 124 occasions. On 11 October 2019, 43 occasions.
Between 14 September 2019 and 11 October 2019, there were 350 phone calls to GE and 1436 text messages. Breach of the AVO through this conduct occurred on 1786 occasions in this fashion.
The police attended his home on 7 November 2019. Whilst speaking with his mother on the phone, which the police allowed him to do, the police saw the offender open the Snapchat application. They seized the phone from him against the risk that he was attempting to delete whatever might have been recorded there. He was taken to Hornsby Hospital for a 'police schedule'. He was released and conveyed to the police station and booked into custody. He declined the opportunity to be interviewed.
The array of conduct upon which he engaged in those offences is consistent, I might say, with the impulsivity and perhaps exercise of poor judgement that he has said to be capable of demonstrating.

Submissions

Submissions put on his behalf have been included in the defence bundle. The plea of guilty is noted, and the application of section 25D(2)(a) Crimes (Sentencing Procedure) Act 1999, leading to a 25% percent discount to the sentence to be imposed for the robbery offence. The seriousness of the offence is acknowledged. It is noted that this attack was sustained and violent, leading to the injuries that I have earlier described. The submissions continue that the offence was committed in company and violence of this type is the essence of robbery, and therefore was not aggravated. I take that submission to be in terms that the fact that the offence was in company and that there was injury is not an aggravating factor.
Insofar as the offence was in company, which is an element of the offence, one needs to also bring to account the nature or the extent to which the offence was committed in company. In this instance there were two others charged and another man who was not, and robbery does not always involve injury or indeed any battery. It is the threat of violence which is the essence of robbery, and the fact that the offender did suffer injury as described is a matter that I bring to account as part of the factual matrix upon which to assess the objective seriousness of the misconduct.
It is also said that the purpose of the offence was initially, at least, to rob the victim, and I am invited to paragraphs 20(a) and 20(b) of the agreed statement of facts. It is said that 20(a) allows this conclusion. This is a finding that I would not make.
The agreement is that the footage commences with a selfie view of Willcox's face as he says, "Give me the fucking bag you fucking dog lad", and him yelling before throwing a number of punches, and then the front view depicting the further physical attack, including punches by the offenders in the course of which this offender says, "And what? And what, you fucking dog? And what, you little shit cunt? Come, give me your fucking bag, dog."
I do not agree that the offence did not involve gratuitous cruelty. It was a gratuitous, unnecessary, infliction of violence upon this man who was demonstrably injured, with blood issuing from his face from where he had been struck, graphically depicted in the recording.
I am asked to bring to account that it was the victim who approached the offenders and insisted upon accompanying them when they went to purchase cannabis for him, and the submissions continue that it appears that Mr Willcox was provoked by the victim. I do not accept that submission. I am invited to paragraphs 12, 29 to 30, and 40.
Paragraph 12 is a reference to the representation by Willcox captured. "You touched my boy." The victim responded, "No, he is getting in my personal space. I want nothing to do with this." At paragraphs 29 and 30, are the offender's representations in the interview to which I earlier referred. Paragraph 40 is a reference to what was claimed in the Watkins interview. I do not accept that there is any basis upon which to come to the view that the victim provoked any one of these offenders.
I do not accept that this is conduct below the middle range of objective seriousness. As I have indicated earlier, it is at least at mid-range for the reasons I gave.
There is reference to the separation of his parents when he was 18 months, although it says here when he was an infant, his exposure to alcohol abuse and gambling by his uncle, which is not further quantified in the material that I have. There is reference to the sexual abuse by a correctional officer in Cobham. All that is before me in relation to that is what is attributed to the offender. I do not find that he did not suffer whatever might have occurred, but there is nothing before me to provide a description of what is alleged to have been suffered, and so it is difficult to do any more than simply note that that is the allegation he makes.
I am reminded of the Henry guideline ibid to which I have already referred. There is the need to promote rehabilitation, which I accept. The moral culpability is reduced and he is less appropriate as a vehicle for deterrence because of his diagnoses that are identified in the psychologist report. I would accept that. The offence is not below middle range of objective seriousness, and I do not accept the guidance given with the suggested starting point offered in the submissions. I do not accept that this is an appropriate case for an intensive corrections order. The Crown's submissions assert the section 5 threshold having been crossed, with which I agree. Full-time imprisonment is the only option in this case.
The objective seriousness is assessed according to the points upon which the Crown has relied for all the offenders. Three other men including this offender, early hours of the morning in a public street, the extent of the violence occasioned, the nature of the accompanying threats and language, the number of injuries that were suffered. The conditional liberty is noted. The community correction orders in place are noted, to which I have already referred. This, as I have said earlier, is governed by R v McNaughton ibid. His antecedent record and conditional liberty do not aggravate the conduct and they do not aggravate the proportionate sentence but inform the Court upon matters of specific deterrence and the extent to which he might have otherwise had leniency and the extent to which the Court can take a view that he has prospects of rehabilitation.
The Crown reminds me of the Henry guideline ibid and the differences between the example given in that decision and the case that is before me. I agree with the proposition that it is more serious than the typical case, involving the actual infliction of violence and injury, which were persistent and was sustained. I am reminded of the purposes of punishment articulated in section 3A. The Crown concedes a finding of special circumstances. I am satisfied that there are special circumstances that the offender can rely upon.
He has been in custody since he was arrested on 5 June 2021, and therefore the sentence I impose will commence on that date. He has consented to the breaches for the community corrections orders to be dealt with in this Court, and I shall do so in each case. Noting he has been convicted of those offences, they are revoked.
I intend to identify nominal periods of imprisonment for these offences because of the persistence with which he breached the apprehended violence orders and the course of conduct upon which he engaged involving this young girl, all of which arose from the prosecution for having committed the offence of sexual touching.

Sentence

Dealing first with the offence of damaging property, sequence H74565718, I will specify an indicative sentence of imprisonment for 3 months.
For the offence of breaching the apprehended violence order, sequence H72892161, I will specify an indicative sentence of imprisonment for 3 months.
For the offence charged in sequence H72713876, I specify 3 months.
For the offence H72982238, with the multiple telephone calls and text messages, I specify 4 months as an indicative sentence.
For the offence of robbery in company I specify as an indicated sentence imprisonment for 4 years and 6 months.
I specify an aggregate sentence, including a non‑parole period, of 3 years, commencing on 5 June 2021, expiring on 4 June 2024. I impose a further period of imprisonment of 1 year 8 months, which shall expire on 4 February 2026. Thus, the aggregate sentence that I impose is one of 4 years and 8 months, including a non‑parole period of 3 years from 5 June 2021 to 4 June 2024 to 4 February 2026. 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: 17 August 2022

At a glance

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Judgment (16 paragraphs)

Cases Cited (6)