R v Parsons & Poore

IN THE COURT OF CRIMINAL APPEAL 60922/01 60923/01

REGINA v AARON JOHN PARSONS REGINA v ROBERT JAMES POORE JUDGMENT

2 SULLY J: I have read in draft the judgment of Smart AJ. I agree with the orders proposed by his Honour, but with some misgivings. In my opinion there has been such a lapse of time between the passing of the original sentences and the final disposal of the present appeals that it would better serve the ends of justice not now to interfere with such progress as the two respondents have made, respectively, during that period.

3 Had it not been for that consideration, I would have thought that this Court ought to have intervened in both cases.

4 The offence committed by the present respondents was an offence of deliberate violence committed against a victim hand-picked because of his correctly perceived vulnerability. There are in the community at present a lot of people who are in difficult financial straits, and whose personal circumstances otherwise are, or have been, harsh. The majority of them do not deliberately rob their vulnerable fellows at knifepoint. It is, in my opinion, wrong from the points of view of both principle and policy for this Court to give an impression, as the present proposed orders will inevitably do, however many times the mantra "exceptional circumstances" is repeated, that there has been some watering down of the view that an offence of the present kind calls for some real custodial penalty. Had the present matters not been affected by the time lapse of which I have earlier spoken, I would have favoured an uncompromising statement of the proposition that it was an error to have imposed wholly non-custodial penalties upon the two present offenders; and a corresponding correction of the penalties imposed at first instance.

5 I respectfully agree with Smart AJ's analysis of what the law now requires in the matter of the setting of a non-parole period even in the case of a sentence ordered to be served by periodic detention. I question, however, the wisdom of such a requirement.

6 It has long been recognised in this Court that the now repealed Periodic Detention of Prisoners Act had established a regime whereby a sentence imposed regularly by an independent Judge sitting in an independent Court, could be given a wholly re-shaped practical implementation, the re-shaping being accomplished by administrative action undertaken without any kind of prior reference to the sentencing, or any other, Court. My impression, [but I can put the point no higher, as at present advised], is that what will now happen is that a Court will fix a non-parole period, and the same administrative regime will still be there to water down the practical effect of what the sentencing Court has ordered. If that impression is correct in fact, then the resulting state of affairs calls, in my respectful opinion, for some prompt legislative correction.

7 SMART AJ: The Crown appeals against the asserted manifest inadequacy of the sentence of 2 years periodic detention imposed on each of Messrs Parsons and Poore on a charge of robbery whilst being armed with an offensive weapon, namely, a miniature sword. Both had pleaded guilty.

8 There were agreed facts which were negotiated in the Local Court. Each agreed that he and his co-accused participated in the armed robbery. In their records of interview each pointed the finger at the other as the prime offender. Both men lived away from their families and with Carol Lewis in part of a duplex in Settlers Crescent, Bligh Park. Peter Lewis, her son, lived in the other part of the duplex and was the landlord.

9 In the late afternoon of Friday, 29 September 2000 Messrs Parsons and Poore agreed, while they were travelling in Lewis' car, that they would rob a driver from a home delivery store Both needed money. Mr Parsons was behind in his rental payments to Mr Lewis. About 8pm that day an employee of Pizza Haven store received an order from a male calling from a public telephone for pizza. The caller did not have a telephone number and provided the surname of Jones. He requested that the pizza be delivered to 346 Fairey Road, South Windsor, by "the kid he went to school with" and named the victim. The employee who took the order arranged for the victim to deliver the pizza between 9pm and 9.30 pm. Peter Lewis had earlier installed a compact disc player and an amplifier in the victim's car. Lewis also worked at the pizza store.

10 The victim left the pizza store about 9.10 pm and drove to a rather isolated area of Fairey Road. He could not locate 346 Fairey Road and drove along the street using his torch to highlight house numbers. Eventually he pulled into the driveway of 366 Fairey Road and stopped his car there, leaving the motor running. He sounded the horn of his car. He walked to the gate and shone his torch at the house which is about 50 metres from the roadway. He waited a short time and then heard some movement near the fence to his right. Messrs Parsons and Poore had been hiding in some long grass. The victim shone his torch in the direction of the movement and saw someone running towards him. This person was wearing a mask and dark clothing and holding a blade which was about 20 centimetres in length. He said, "Give me the bumbag". The victim said, "Are you serious?" The offender replied, "Yes, give me the bumbag, get on the ground." The victim dropped his torch and lay on the ground. As he tried to unlatch the bumbag the offender said "Just give it to me, I'm not going to kill you." The offender grabbed the bag from the victim. The two offenders got into the victim's car and drove off. The offender who drove the car was not the offender who confronted the victim and took the bumbag which contained about $200.

11 In their police interviews Mr Parsons claimed that Mr Poore was the offender who held up the victim, whereas Mr Poore said that it was Mr Parsons. Each of them asserted that he was the driver.

12 About 11am on the following day (30 September 2000) the victim's car was found on a dirt fire trail at Windsor Downs a short distance from the scene of the robbery. The compact disc player, the amplifier, the speakers, other stereo equipment and a compact disc case containing about 25 compact discs had been stolen from the vehicle.

13 On 31 October 2000 the compact disc player and the amplifier were recovered from the premises of Ryan Bonanno and he was charged with goods in custody. On the same day Peter Lewis was interviewed by the police in an electronically recorded interview. On the night of the robbery he received two calls on his mobile telephone and as a result picked up two friends from Windsor Downs. He saw the victim's car nearby. He assisted his two male friends to transfer the stereo equipment from the victim's car to his car. He declined to name his friends. It subsequently appeared that Mr Poore had made the telephone calls and that Mr Lewis had picked up Messrs Parsons and Poore. Mr Lewis was working that night at the pizza shop.

14 The police accompanied Lewis to his home. There they spoke to Mr Parsons. A miniature sword, a box containing compact discs, some compact discs and a rubber mask were recovered. Mr Parsons underwent an electronically recorded interview in which he said his friend had made the telephone call to the pizza store. He agreed that it had been their intention to have someone from the pizza store drive to Fairey Road and rob the victim. He said that when they approached the victim's car on its arrival his friend was armed with a knife which he removed from his sock. It was to be used to frighten the victim. His friend had told the victim to lie on the ground. After the victim was forced to the ground he (Parsons) got into the driver's seat of the victim's car and his friend got into the passenger's seat. Mr Parsons said that he drove to Windsor Downs. He claimed that his friend had purchased the knife the day before the robbery.

15 Mr Poore in his electronically recorded interview said that prior to the robbery he had been in some financial difficulties and he had committed the robbery with Aaron Parsons. He had decided to commit the robbery about three hours beforehand when he, Peter Lewis and Aaron Parsons were travelling in Lewis' car. Lewis had dropped them at South Windsor. After this, Mr Parsons had telephoned the Pizza Haven store and ordered a pizza to an address at Fairey Road and especially asked for the victim as they knew he had a loud stereo in his car. He and Mr Parsons walked to Fairey Road and hid in bushes until the victim arrived. After he got out of the car and went to a gate they (Poore and Parsons) ran over and told the victim to get on the ground. Mr Poore said that he had carried the knife to Fairey Road, but Mr Parsons had possession of it when the robbery occurred. Mr Parsons owned the knife.

16 Mr Poore said that the miniature knife, which had earlier been located and seized by the police, was the one used in the robbery and that Mr Parsons wore the mask. (It had been found in Mr Parsons' room). Mr Poore agreed that the victim was forced to the ground and the bumbag stolen from him. Mr Poore claimed that he was the man who drove the victim's car from the scene. He made the telephone calls to Lewis who came and picked them up. He confirmed the items stolen from the victim's car. Mr Poore said that Mr Parsons had received some of the money from the robbery and that he (Poore) had used the remainder for food and rent. In his oral evidence Mr Poore verified his version of events and he was not cross-examined as to these either by the Crown or by the legal representative for Mr Parsons.

17 At the start of the sentencing proceedings on 26 September 2001 the legal representative for Mr Poore said to the judge: "My understanding is that Mr Parsons approached with the knife and my client is the one that drove there and then it was my client and Mr Parsons that went and took the stuff out of the car."

Neither the Crown nor the legal representative of Mr Parsons indicated that this was incorrect.

18 On the resumption of the sentencing proceedings on 13 November 2001 the judge drew attention to the history given by Mr Parsons to Dr Bauer: "Upon the arrival of this service Aaron threatened the driver demanding he hand over his income. Evidently he threatened him with a decorative Samurai sword ... he had no direct intention of harming the courier."

The judge continued: " ... I don't think it matters much who was the particular man who walked over. On any version [Mr Poore] owned or took the knife; as to who handled it thereafter is not so important. Subject to hearing from the Crown I do not think that I would want to distinguish between the cases of these young men."

19 The Crown did not seek to have the judge deal with the cases on the basis that Mr Parsons was more culpable than Mr Poore. The cases proceeded on the basis that both were equally culpable. In this Court counsel for the Crown correctly took the view that the Crown should not depart from the basis on which the Crown case was conducted before the judge.

20 In his remarks on sentence the judge held that there was no point in trying to decide what Mr Parsons had done and what Mr Poore had done. On their own version they were both fully involved in the armed robbery.

21 The offences committed were serious and the judge recognised this. With such criminality care has to be exercised that undue weight is not given to the subjective features of Messrs Parsons and Poore.

22 Mr Parsons was born on 9 April 1981 and thus aged 19 at the time of the robbery. The evidence before the judge as to his prior record was that he had been arrested on 19 December 1997 and dealt with on 19 February 1998 in the Children's Court for possessing housebreaking implements, break and enter a building and commit a felony (stealing) and break and enter with intent to steal. He was placed on probation on the first offence and sentenced to 60 hours community service on each of the other charges to be served concurrently.

23 The pre-sentence report reveals that Mr Parsons was the eldest of four siblings born into a highly chaotic family system where emotional and physical violence was perpetrated by his natural father who suffered from both depression and chronic alcohol abuse. Mr Parsons lived in this environment until seven years of age when his mother finally left his natural father. The father subsequently abandoned contact with him. At the age of 13 Mr Parsons was kicked out of the home in which his mother was living. His behavioural processes were extremely damaged and the family's coping strategies severely tested. He lived on the street, in refuges and in various friends' homes until he was aged 17. His education was difficult and spasmodic. His development of symptoms of ADD/HD, most likely exacerbated by the family traumas and unresolved anger, led to his street life and to his eventually being placed in a school for adolescents with behavioural problems. He has worked intermittently performing tasks such as carpenter's assistant and shopfitter's assistant. There have been long periods of unemployment. It was whilst unemployed and without social security payments that the offences were committed.

24 Mr Parsons commenced the daily use of cannabis and amphetamines at the age of 13. He largely ceased the use of amphetamines at 19 years of age although there was occasional use afterwards. His cannabis use persisted daily to the sentencing hearing. He used ecstasy regularly between the ages of 14 and 17 years. He used heroin and other prescribed drugs for a short period. Gambling became an issue at 18 years of age. However, that habit had reduced since April 2001 to $20 per month.

25 He has suffered and suffers from major anxiety and depressive illness. The Probation and Parole officer made this assessment: "The offender presented as an emotionally numb person, with somewhat of a flat emotional responsiveness except as may be his anger which, with the assistance of cannabis, masks his true self. His early life in a violent and emotionally damaging family system, has left him destitute of healthy modelling and with psychological damage. He has been diagnosed as suffering from ADD/HD part of which was made more difficult by the violence. He was left with the emotional dilemma of needing a father and loathing his father. His mother became the symbol of both his exposure to the father and his removal from the same. Abandonment, rejection issues are high, and the offender appears to have suffered chronic depression for much of his life with one positive oasis - that of the special school. His psychological issues and his substance abuse, together with deficient schooling have made it difficult to maintain consistent employment. He has presented both the existence of mateship but a sense that one is used up by the same.(sic) During periods of anxiety and masked depression, he medicates more heavily and retreats from interactions. He has tended to operate from a survival concept which has placed him at variance with social standards. Continued psychological intervention appears warranted, together with supervision."

26 Mrs A Parsons, the mother of Mr Parsons, gave evidence confirming that her former husband and the father of Mr Parsons had engaged in severe emotional and physical violence directed at her and Mr Parsons, her eldest son. She confirmed that Mr Parsons had significant behavioural problems. He had made a number of suicide attempts. He disturbed her by talking about death and drawing dead people and by fashioning a rope in the shape of a noose when he was still in primary school. She sought medical and psychiatric advice for him. She referred to the difficulties he had at school, leading to his removal from several schools. She said that when he was about 12 or 13 his relationship with her broke down. He was placed in The Siding Refuge at Emu Plains and subsequently in the Westmead Boys Home. About 14 he was placed in a special school known as the North Harbour Unit, a school of last resort for children with very disturbed backgrounds. He was there for about one year. He next lived in a number of refuges and was also on the streets. From about the age of 15 her contact with him became very spasmodic. His father rejected Mr Parsons' request that he should go and visit him.

27 From 1999 when Mr Parsons returned to Windsor until the commission of the offence he resumed seeing his mother. She was overseas when the offence occurred. She subsequently ascertained from letters sent by Centrelink that his payments had been withdrawn. When he had previously been in financial difficulties she had helped him out. He always paid her back. Unfortunately she was overseas for about seven weeks from about the end of the first week in September 2000. She had seen quite a lot of him since the offence and assisted him. He had become part of the family. He is able to read but not at a high level.

28 Ms Kelly Palmer had known Mr Parsons since he was about nine years old. She said that after Mr Parsons was charged he had come to live with her and three of her children who were aged 12, 3 and 2. She was employed as a factory hand in Windsor and worked the afternoon shift. She is away from her home from about 2.30 pm until after midnight. Mr Parsons normally looked after her children very well, feeding them and putting them to bed. Mr Parsons had told her that he was very sorry for the young victim whom he had scared.

29 Ms Palmer said that Peter Lewis owned a duplex. He lived in one half of the duplex with her daughter. Carol Lewis, the mother of Peter Lewis, lived in the other part of the duplex with Messrs Parsons and Poore. Carol Lewis and each of the two men had to pay $80 per week. For the men it apparently covered rent and board.

30 Ms Palmer said that Carol Lewis did most of the cooking but half the time there was not much food in their part of the duplex. A lot of the time they lived on noodles. Both men came to her house on occasions and she fed them. Carol Lewis had a gambling and drinking problem.

31 Ms Palmer said that after Centrelink stopped Mr Parsons' payments he received a hard time from Carol Lewis because he was a couple of weeks behind in his rent. That worried him. He did not ask Ms Palmer for money. She was a single mother with three children at home.

32 Ms Palmer said that she had usually attended fortnightly counselling sessions with Mr Parsons. She thought that he was slowly making progress along a very long, hard road. She said that his reading and writing were not good and this made it hard for him to obtain employment. He had received Centrelink payments over the previous 12 months.

33 Ms J Devlin, consultant psychologist, provided a detailed report. She set out Mr Parsons' personal history at some length. It is a dismal story. She expressed these conclusions: "Aaron seems to have developed emotional numbing to the early violence when very young, but the emotions found their expression through physical symptoms (such as migraines) or behavioural disturbance. He has developed a sense of himself as independent and not needing anyone, but this renders him even more vulnerable to depression and substance abuse. Thus, self worth and resilience are relatively tenuous, despite his early independence, and he tends to feel insecure and exposed when things go wrong. At such times he becomes depressed, despite his assertions to the contrary, and self medicates with various substances. It seems that this is what occurred in the weeks prior to the offence to which this report refers.

Aaron seemed to be very frank in his discussion of the offence to which this report refers and didn't try to minimise or avoid responsibility for his actions. He told me that he was 'not proud of myself ... I shouldn't have done it'. With continued counselling and encouragement to use his intellect to find and maintain fulfilling employment, Aaron may be able to relabel himself as worthy in spite of his experiences and to strengthen his resilience. In so doing the potential for re-offending will be greatly minimised." Dr Chris Bauer, an experienced medical practitioner and trained medical counsellor, has known Mr Parsons and his family for the past five years. In his brief report of 2 March 2001 he has written: "This current matter largely came about as a result of actions that Aaron took because of the severe anxiety/depression that he was experiencing at the time. This anxiety/depression was largely related to ongoing economic hardships that he has had to deal with for many years."

Dr Bauer also provided a detailed report of 26 September 2001. He had provided a regular counselling service for Mr Parsons for about the previous year. The doctor noted that Mr Parsons was suffering from these problems: (i) Major anxiety and depression

(iii) Major mood disorders with inappropriate use of anger

(iv) Long term employment difficulties arising, inter alia, from inadequate schooling, economic problems as regards self management, immaturity and impulsivity

(v) Attention Deficit Hyperactivity Disorder. 34 They and associated disorders are all being treated. Dr Bauer expressed this conclusion: "It is my opinion that over the last year Aaron has finally developed some of the maturity necessarily (sic) to enable him to better understand some of the traumas that he has experienced throughout his life. At all times his mother has tried to remain supportive to Aaron, however in the earlier years, it was Aaron's belief that she was responsible for Aaron losing contact, his father was a man who Aaron appeared to have developed a strong, however highly unhealthy emotional bond. Understandably counselling and therapy work with Aaron is complex and will need to remain in place for a prolonged period. I have no doubt that Aaron has developed significant insights and adapted healthier behavioural outcomes such that he can now function more appropriately in society. Education and meaningful work are crucial to his rehabilitation. My concern is that a prolonged gaol sentence for Aaron is going to prove disruptive to his rehabilitation. He has indicated his preparedness to continue long term counselling with myself should the opportunity exist. Aaron's life has been a succession of disrupted meaningful relationships. I have indicated my preparedness to work with Aaron over a long period of time should the opportunity prevail and am prepared to furnish the courts with reports as they are requested.

In closing Aaron acknowledges the seriousness of this recent crime. It is my belief that it is highly unlikely that Aaron would commit a crime of this nature again as he has both significant insight and remorse about the grief he has caused to both the victim and his own family." 35 Robert James Poore was born on 5 May 1980 and was aged 20 at the time of the offence. He had no prior convictions. He confirmed the truth of the background material in the report of the psychologist, Ms E Kusch. In 2000 he drank quite solidly on weekends. Although he had consumed drugs in the past he has had no drug problems of consequence since March 2001.

36 He stated that he was still on anti-depression medication (Cipramil) prescribed by Dr P Sutherland. He started on that medication on 30 August 2000. The symptoms of depressive illness appeared to have been present for some months prior to that date. Mr Poore was worried over a letter he had received from Collection House Limited, acting on behalf of the ANZ Bank demanding that he pay a debt of $4458.27 prior to 7 September 2000. That sum was borrowed to purchase a car. Two and a half months after purchasing the car the engine blew up. He then lost his job at the Quakers Inn and fell behind on his loan repayments. He obtained his present position and tried to get up to date. He was in financial difficulties and succumbed to the temptation to make some quick money.

37 Mr Poore told the psychologist that his behaviour was stupid and that he regretted becoming involved. He expressed remorse for the victim. He also said "I hear [the victim] is a bit messed up and that makes me feel terrible."

38 Mr Poore expressed marked contrition and remorse in his evidence. He stated that he had heard that the victim did not leave his house at first but he had recently heard that the victim was now out and about and walking around. That was excellent. Ms Palmer described Mr Poore as very remorseful. That also appears from the report of the Probation and Parole Service.

39 Mr Poore explained that at the time of the offence he could not afford the prescribed medication and therefore was not taking it. He said that he benefited from his medication and undertook to continue with it and to continue with his counselling with Dr Bauer.

40 Mr Poore stated that when you are not living with your parents it is financially very draining. He had been in his present position as a machine operator for 2½ years. The salary was modest, namely, about $360 per week nett.

41 Ms Palmer referred to the straitened financial circumstances in which Mr Poore found himself and how he never had any money nor food and that she and his fellow workers used to help him with food. She worked at the same factory as Mr Poore and described him as generally quite good but that at times he became a little depressed. He was a very gentle person. His supervisor had attended at court to give evidence on his behalf and waited most of the day but had to leave to go back to work before his evidence could be taken. The pre-sentence report states that Mr Poore was considered to be hard working and conscientious.

42 The pre-sentence report sketches Mr Poore's background and records that he tends to be easily led by others as he craves affection but he is frequently confused and disappointed by these same people. The Probation and Parole officer concluded: "Mr Poore appears to have experienced a disturbed and at times dysfunctional upbringing the effects of which he is still attempting to address. However the offender continues to have a mix of poor and supportive social relations. To his credit the offender appears able to find and retain regular employment and he does not seem to have a major problem with substance abuse. Also Mr Poore seems to appreciate the seriousness of the offences and indicated that he expects a severe penalty."

43 Mr Poore's father was a violent and abusive man. His father and mother separated when he was about six. His father has spent a great deal of his life in prison, firstly for gravely assaulting and raping his mother and secondly for other matters. He attempted, inter alia, at knifepoint, to rape his sister. His father is still in prison and Mr Poore has no contact with him. Mr Poore said that before his mother met his stepfather she was an alcoholic. His mother told Mr Poore that he was a mistake but he remarked "she was good enough to raise me". He has never been close to his mother. He left home at the age of 15. He lived with a friend's family at South Windsor before moving in with Peter Lewis with whom he stayed until his arrest. For the past 1½ years his parents have been residing in Queensland. He keeps in regular contact with his mother but said "she stresses me out really bad". He suffered sexual abuse at the hands of an uncle when he was about 15.

44 Mr Poore obtained his Higher School Certificate but said that when he moved out of home "everything went downhill". I infer that he did not do as well as he should have done. Mr Poore has an above average IQ, that is 122, and his intellectual functioning lies in the top 7 per cent of the general population. Unfortunately, more than his studies went downhill.

45 Ms Kusch reached these conclusions: "Results on personality testing indicate he assumes a passive role and willingly submits to the wishes of others. On some level, he believes he deserves to suffer. He is experience (sic) recurring anxieties and a general mood disharmony. There is evidence of a chronic pattern of moderate depression. Preoccupied with matters of personal inadequacy, plagued with self-doubts and feeling useless much of the time, he may be bothered especially by the view that he is both socially unattractive and physically inferior. Periodically sad, empty and lonely, he is likely to have deep and frustrated yearnings for social acceptance. He evinces a pervasive social disquiet, behavioural edginess, apprehensiveness over small matters and worrisome self-doubts, the most frequent of which may relate to feelings of masculine inadequacy." ... "Robert is considered to be currently depressed and anxious. These symptoms are likely to be secondary to a Post-Traumatic Stress presentation. He is currently receiving treatment from Dr Bauer ... at Windsor in the form of counselling and anti-depressant medication." ... "It is considered essential that Robert continues seeing Dr Bauer at Windsor. He would also benefit from psychotherapy aimed at addressing issues of trauma. These needs would be best addressed in the community, as he would not receive such specialised counselling in custody.

From his presentation during the interview and the personality test results, it is likely that a period of incarceration would cause deterioration in his already fragile emotional state. He would also be vulnerable among the general prison population.

Robert needs guidance and monitoring to help him direct his energy into sound and purposeful endeavours. Placing him under the control of the Probation and Parole service would be of great assistance to this young man." 46 Dr Bauer, the treating doctor, wrote on 2 March 2001 that Mr Poore has had a very difficult past and has been suffering with a significant depression for many years. He noted that this was the first time Mr Poore had been involved in illegal activities. There were numerous contributing psychological factors in his past which were relevant to this incident. He is now receiving appropriate therapy for his anxiety and depression. Apparently a more detailed report was not obtained from Dr Bauer despite his offer to provide one if required.

47 On 21 September 2000 the judge dealt with Peter Lewis on a charge of being an accessory and ordered that Lewis perform 225 hours community service. He was, it seems, fortunate. There has been no Crown appeal against the sentence.

48 After noting that there was some divergence as to who actually accosted the victim and who drove the vehicle from the scene the judge said that it mattered little as what was done was the subject of agreement between Messrs Parsons and Poore.

49 The judge said that Mr Poore made a good impression in the witness box and it is fair to infer that the judge accepted his evidence and that includes what he told Ms Kusch.

50 The judge described Ms K Palmer as a very impressive witness with a balanced approach and obviously accepted her evidence. The judge seems to have substantially accepted all the expert evidence which was placed before him. These were cases in which there was significant evidence of the primary facts relied on by the expert witnesses.

51 The judge, who noted that all the offences of Mr Parsons had been dealt with in the Children's Court, described Mr Parsons' record as not being an extensive one and said that it did not take him beyond the description of a youthful first offender. The judge stated that it would be unfair to take a differential approach in sentencing the two men.

52 The judge was conscious of the seriousness of the offence. He paid a great deal of attention to R v Henry (1999) 46 NSWLR 346. He noted the Crown submission that the decision stood totally in the way of a sentence of periodic detention and that that was not open in the present case. There was planning, both the money and the car were taken, a knife was used and the victim was in a vulnerable position. The Crown had pointed out that financial hardship was largely irrelevant and reminded the judge of the need for general deterrence in armed robbery cases. For the judge the central question was whether the circumstances were sufficiently exceptional to render these cases ones in which full time custody was not required and periodic detention would suffice.

53 The judge said, amongst other things: "...if I sentence either of these young men to full time custody the awful problems that they have had in their lives thus far will be compounded and they will be in an absolutely hopeless situation.

... neither of them really is a good candidate for an example by way of general deterrence.

... each of them exhibited the very exceptional circumstances demanded to bypass the Henry guideline." 54 The judge referred to and appreciated what Lee CJ at CL said in R v Pham and Ly (1991) 55 A Crim R 129 at 135, namely: "… deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes."

55 The judge added, "I rather think that Mr Justice Lee, may have had something a little heavier in mind than what I am looking at here and I do not seek to play it down for a moment." Pham had been charged with two offences of robbery in company each count relating to a separate victim and Ly had been charged with armed robbery with wounding and entering the residence of the victim with intent to commit a felony, namely, to steal therefrom. There was a home invasion using a sawn-off rifle. Lee CJ at CL described the conduct of Pham and Ly as an outrage. The offences were indeed grave and more serious than the subject one, serious as it is. The judge's comment was not inappropriate. He was seeking to ensure that he placed the present cases in the correct perspective.

56 The judge said: "...Justice Wood's label in paragraph 41 of Blackman and Walters ... is appropriate. He speaks of sentencing orders 'Where the respondent is a youthful first offender for whom there are exceptionally good prospects of rehabilitation and where there is genuine remorse."

57 In R v Blackman and Walters [2001] NSWCCA 121 Blackman pleaded guilty to one count of accessory before the fact of break, enter and steal, one count of accessory after the fact of break, enter and steal and one count of armed robbery with a dangerous weapon. Blackman was ordered to enter a good behaviour bond for 4 years for counts 1 and 2 and sentenced to 2 years imprisonment (suspended) for the armed robbery.

58 Walters pleaded guilty to one count of break, enter and steal and one count of armed robbery with a dangerous weapon. He was similarly ordered to enter into a good behaviour bond for the offence of break, enter and steal and given a suspended sentence of 2 years for the armed robbery.

59 The break, enter and steal involved two visits to a house when no-one was at home and the removal of a floor safe containing a number of handguns, ammunition and personal items. Armed with some of these weapons, a softball bat and a cricket bat, Blackman, Walters and a third man entered another house in which there were five people. There was a home invasion in which demands were made and weapons were used in a threatening way. The Court (Stein JA, Wood CJ at CL and Studdert J) held that the armed robbery was a particularly aggravated form of the offence having regard to the nature and degree of violence threatened and the frightening nature of the home invasion.

60 Wood CJ at CL, who delivered the Court's judgment said: "As was reaffirmed in Henry (1999) 46 NSWLR 346 at para 113, the imposition of a non custodial sentence for such offences is justifiable only where most exceptional circumstances are shown. Moreover, that sentence might have been expected to have been one in excess of the four to five year guideline there laid down for the lesser S 97(1) offence, since there were here present circumstances of the kind which Spigelman CJ recognised, at para 170, as potentially aggravating. They related to the number of offenders, the number and nature of the weapons carried, the vulnerability of the victims who were entitled to feel secure in their home, the obvious planning involved, and the intensity of the threats. The need also for a proportionate increase in the guideline to reflect the aggravated version of the offence charged would have the support of his Honour's observations in McKinney (1999) NSWCCA 51 at para 14.

Additionally, there was the circumstance compounding the total criminality, that each offender had been involved in the serious break, enter and steal offences also charged, a matter that normally would attract some additional punishment: Wheeler (2000) NSWCCA 34 per Sully J, at paras 36 to 37." 61 A little later he pointed out that it was upon the existence of exceptional circumstances that the appeal turned. After a careful review of the circumstances Wood CJ at CL said: " His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved.

In these circumstances, I consider that while individual judges may have exercised their sentencing discretion differently, I would not be prepared to find error of law in the approach taken. " The Crown appeal against sentence in those cases was dismissed.

62 The offences in Blackman and Walters were significantly more serious than the serious offence in the present case. In Blackman and Walters there had been the considerable delay of 2½ years from the time of the offence to charging and 2 years from the police receiving information as to who had committed the offence to charging. They had, in the meantime, broken away from their criminal associates and demonstrated actual and substantial rehabilitation. They had reached a more advanced stage in their rehabilitation than Messrs Parsons and Poore. Further they had assisted the authorities in the prosecution of a co-offender at considerable personal risk. Any sentence would have to be served in protective custody. 63 The judge referred to Kovacevic 111 A Crim R 131 at139 where in the context of general deterrence it was said: "There is still a need to consider all aspects of the matter and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case there may be room for the exercise of mercy and leniency."

64 The judge while appreciating the gravity of the offences thought there were exceptional circumstances which took the case out of the Henry guideline. The issue in these appeals is whether that view was open.

65 The Crown emphasised the principles appearing in Henry (1999) 46 NSWLR 346 and submitted that they applied in the present cases. The sentence of imprisonment stipulated in Henry was one that generally fell between 4 and 5 years. The Crown referred to paras 169 and 170 of Henry and submitted that these cases had aggravating features which made it worse than the type of armed robbery envisaged in Henry and warranted sentences at the top of the range suggested in Henry.

66 It was submitted that the judge applied the principles in R v Blackman and Walters (supra) and in so doing erred as the circumstances of neither Messrs Parsons nor Poore were exceptional in the requisite sense. It was further submitted that the judge had permitted the subjective circumstances of Messrs Parsons and Poore to overwhelm his primary duty of giving due weight to the objective gravity of the offence. As evidence of this the Crown relied on the judge's observation that if he sentenced either of these young offenders to full time custody the awful problems that they had in their lives will be compounded and they would be in an absolutely hopeless situation. I do not think that that observation, in the context, evidences the error suggested. It is a comment consistent with Yardley v Betts (1979) 22 SASR 108 at 112-3 which was referred to by Wood CJ at CL in Blackman and Walters at para 44 with evident approval (para 45). It is not irrelevant to take into account the effect which a sentence is likely to have. That will not necessarily be determinative.

67 The Crown submitted that the judge erred as to the weight to be given to general deterrence when he said that there was merit in counsel's submission that neither of them really was a good candidate for general deterrence and that he erred when he sought to distinguish the case from the operation of the principles in Pham and Ly. As earlier mentioned, the offences in Pham and Ly were more serious than the serious one in the present case and the judge was doing no more than trying to maintain perspective. The judge was not suggesting that deterrence was not important. He was simply saying that with their awful and highly disadvantaged backgrounds they were not good subjects for examples by way of deterrence.

68 In Mr Poore's case the issue is whether there were exceptional circumstances which justified departure from the usual principle that for the offence in question a full time custodial sentence was required.

69 The exceptional circumstances which emerged in the case of Mr Poore were a combination of the following: (a) he came from a family in which the usual mother/son relationship did not exist. She was pre-occupied with her new partner

(b) his father was a very violent man who has spent a great deal of time in prison for some notable violence including a rape and an attempted rape in the family circle. Further there was no father/son relationship

(c) he had no family support. He found himself struggling economically; he earned a modest wage which was barely sufficient to live on and had no resources to fall back on when his car purchase turned sour; he owed the bank $4500 - and could not pay it or the arrears on his repayments

(d) he was often short of food and had to be helped out. Mrs Carol Lewis had squandered his board money in gambling and drink

(e) at the time of the offence he was depressed. It seems that he was probably not taking his medication as he could not afford to buy it

(f) despite all his difficulties he has been in regular employment. He is valued by his employer

(i) he made admissions of guilt when interviewed on arrest. These had real value in proof of the Crown case. They dispensed with the need for further police investigation

(k) he suffers from a chronic pattern of moderate depression and worrisome self-doubts. His depression and anxiety are likely to be secondary to a post traumatic stress presentation

(l) his emotional state is fragile. He would be vulnerable among the general prison population. A period of incarceration will probably cause deterioration in his emotional state

(m) he needs and is at present receiving specialised counselling. That is unlikely to be available in gaol

(n) the prospects for rehabilitation are very good. This is his first offence which came about as a result of financial pressures. He is genuinely remorseful and accepts that this conduct cannot be tolerated. He is undertaking and receiving specialised counselling. He is highly intelligent and has been in regular employment. While the road to overcoming his problems will be arduous he has set out to overcome them. 70 In combination those circumstances are capable of amounting to exceptional circumstances. The course taken by the judge was open to him in the sound exercise of his discretionary judgment. He was alive to the seriousness of the offence and acknowledged that Mr Poore should receive a sentence of full time custody unless exceptional circumstances existed. He was entitled to find that they did. Although it is not of importance I would have reached the same conclusion.

71 When sentencing the judge referred to Judicial Commission statistics for the period May 1999 to March 2000 as to armed robbery with an offensive weapon and robbery in company where there was one count, no prior convictions, a plea of guilty, the offender was at liberty and less than 21 years. There were 28 cases; 61 per cent received a full time prison sentence and 39 per cent did not. Following the hearing before this Court the Crown supplied Judicial Commission statistics for the same offence with the same features for the period May 1999 to June 2001. Of 60 cases, 50 per cent of offenders received a full time prison sentence and 50 per cent did not. Of the latter 50 per cent, 20 per cent were ordered to perform community service and 18 per cent were sentenced to periodic detention. These statistics show that in 30 cases the higher courts have not imposed a full time prison sentence.

72 Counsel for Mr Poore and the Crown contended that the judge erred in treating Messrs Poore and Parsons on the same basis, bearing in mind what Mr Parsons told Dr Bauer, namely, that he (Parsons) had threatened the victim with a decorative Samurai sword that Mr Parsons had on the wall of his home. It does seem that Mr Parsons was the leader and Mr Poore was the follower but there is not much difference in their culpability.

73 Even if I am wrong in my view that the sentence on Mr Poore should not be regarded as manifestly inadequate I would nevertheless dismiss the Crown appeal in the exercise of this Court's discretion. It is now over eight months since Mr Poore was sentenced. We were informed that he has been serving his periodic detention and remains in employment, working harder than ever. To place Mr Poore in custody now would be to place his progress at serious risk. I also bear in mind that Lewis only received 225 hours community service.

74 I would dismiss the Crown appeal against Mr Poore's sentence.

Mr Parsons 75 He lodged an application for an extension of time for leave to appeal against the sentence of 2 years periodic detention and an application for leave to appeal at the hearing of the Crown appeal. Mr Parsons stated that he had not received advice as to that sentence until that day. Mr Parsons contends that the judge erred in not fixing a non-parole period when imposing the sentence of periodic detention. The Periodic Detention Order was revoked and the applicant has been in full time custody since 24 January 2002. Mr Parsons failed to attend on five weekends. He said that he had great difficulty in reading and writing. The evidence supports that assertion. He read the pamphlet he was given in relation to periodic detention and it was his understanding that he did not have to continue attending his periodic detention until the Crown appeal was decided. He now understands that this is not correct.

76 Because of penalties he incurred for non-attendance he is not due for release until 31 January 2004: s.89 Crimes (Administration of Sentences) Act 1999. Section 163(2) of that Act required the Parole Board to revoke the offender's periodic detention order. The Parole Board is not given any power to fix a non-parole period. Section 160 allows it to make a parole order in exceptional circumstances. It does not apply in the present case.

77 As earlier mentioned Mr Parson's complaint is that the judge did not fix a non-parole period. Section 6(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention. It should be noted that under s.6 the Court should determine first what sentence should be imposed and then determine whether the sentence should be served by periodic detention. Section 44(1) provides that when sentencing an offender to imprisonment for an offence a court is required firstly to set the term of the sentence and secondly to set a non-parole period for the sentence. Section 45(1) provides that a court may decline to set a non-parole period if it appears to the Court that it is appropriate to do so. Section 45(2) provides that if a court declines to set a non-parole period it must make a record of its reasons for doing so. No such record was made.

78 The Crimes (Sentencing Procedure) Act 1999 made some changes to the law as to the periodic detention of prisoners. It repealed the Periodic Detention of Prisoners Act 1981. Under that Act the District Court had no power, when imposing a sentence of imprisonment to be served by way of periodic detention, to fix a non-parole period and did not attempt to do so. When an offender was brought before the District Court for not serving his periodic detention and that Court cancelled that order, the unexpired portion of the sentence of imprisonment to which the order applied was deemed to be a separate term of imprisonment imposed at the time of cancellation. (s.27(1)(c)). Under s.27(4) where the District Court cancelled an order for periodic detention the court in its discretion could direct that the unexpired portion of the sentence to which the order related be taken to consist of a minimum term and an additional term under Part 2 of the Sentencing Act 1989. Of course the Court could decline to do so.

79 In R v Sommerville (1995) 36 NSWLR 184 at 188 Gleeson CJ pointed out that the making of a cancellation "does not quash or expunge the original sentence which itself remains subject to appeal, or potential appeal in the usual way." There is nothing in the current Acts which changes the position.

80 In Sommerville the Chief Justice and Barr AJ held that the Court of Criminal Appeal had no jurisdiction to hear an appeal from a decision of the District Court cancelling an order for periodic detention. The Periodic Detention of Prisoners Act 1983 conferred no right of appeal and a cancellation order was not a sentence within s.5(1)(c) of the Criminal Appeal Act 1912. That did not prevent administrative review. See also Wilson v Dept of Corrective Services 93 A Crim R 301 at 309.

81 However, an appeal did lie to the Court of Criminal Appeal as to whether the judge was correct in deciding to set or not to set minimum and additional terms and the length of the terms which the judge set.

82 It was noted in Wilson at 312 that, in practice, in imposing terms of imprisonment to be served by way of periodic detention, the length of the term may sometimes have been longer than if the sentence had been one of full time custody. That is not permissible under s.6 of the current Acts.

83 Under the current Acts the Courts have no role to play in revoking an order for periodic detention where an offender does not attend to serve his sentence on at least three occasions. That function is performed by the Parole Board. (The current Acts use the word "revoking" and not cancelling).

84 The Parole Board is not empowered to set a non-parole period. It is for the judge when sentencing the offender initially and imposing a term of imprisonment to fix a non-parole period.

85 I have had regard to Discussion Paper 33 on Sentencing of the New South Wales Law Reform Commission of April 1996, Part 6 (Periodic Detention) and to Report 79 of the Commission of December 1996, Chapter 6 and the Second Reading Speech of the Minister when introducing the 1999 Acts (Hansard, 29 October 1999), Legislative Assembly pp.2324-2330. It should be noted that the 1999 Acts did not follow the Law Reform Commission Report in significant respects. It was decided to streamline the previous procedures.

86 I have found the history of periodic detention of assistance in understanding the present legislation on that subject. As the judge did not follow the procedures set out in ss.44 and 45 of the Crimes (Sentencing Procedure) Act 1999 and the setting of a non-parole period or the reasons for not so doing are important, the applicant should be given an extension of time and leave to appeal against his sentence. The changes which have been effected by the new Acts to periodic detention have not as yet been fully appreciated.

87 Counsel for Mr Parsons submitted that the sentence imposed on him fell within the range available to the sentencing judge. A prescriptive effect should not be given to Henry. Further, while there was a measure of planning in the commission of the offence that could not be attributed to Mr Parsons. Lewis was in the car when the robbery was first discussed. It was Lewis who knew about the stereo equipment in the victim's car, having installed it a few months previously. Lewis also worked at the Pizza Haven. A number of compact discs were found at Lewis' house. Lewis was Mr Parsons' landlord. Parsons was behind in his rent. Lewis collected Messrs Parsons and Poore after the robbery and not only permitted but assisted with the transfer of the stolen property to his (Lewis' car). Lewis was a little older. Lewis had knowledge of the victim and a financial interest in Mr Parsons obtaining money, the latter being unemployed. In short, Lewis was the "eminence grise" behind this offence.

88 Counsel for Mr Parsons canvassed the applicability of Henry but that is not the point. It is not in doubt that for an offence such as the present one a substantial full time custodial sentence is required, unless there are exceptional circumstances. Frequently, it is in the combination of circumstances that exceptional circumstances are found.

89 The Crown contended that the judge had not properly taken into account the criminal antecedents of Mr Parsons. The judge took into account those criminal antecedents which were in evidence before him. I have earlier summarised those three offences which were committed in 1997 when Mr Parsons was aged 16. It was open to the judge not to attach great weight to those offences in view of Mr Parsons' history. On a Crown appeal, absent blameworthy conduct on the offender's part, the Crown must be confined to the material before the judge in determining whether he erred. Of course, if this Court has to re-sentence it can take into account all relevant material available as at the date of re-sentencing.

90 Mr Parsons relied on the following: (i) he had a history of behavioural problems leading to psychiatric intervention from a very early age

(ii) his record was short and contained no adult entries

(iii) he was young at the time of the offence, being aged 19

(iv) he made full admissions and pleaded guilty in the Local Court

(v) he was suffering from severe depression and anxiety at the time of the offence and also suffers from Attention Deficit Hyperactivity Disorder

(vi) he was not In a position to find and obtain work - he was "highly unsuitable for any form of employment as his anxiety and depression was quite disabling." (Dr Bauer's report of 26/9/01)

(vii) his social security payments had been terminated; his inability to comply with the Commonwealth's requirements should be seen in the context of his illness (and his lack of ordinary skills such as competent reading and writing)

(viii) he was suffering severe financial hardship to the extent that he was short of money to buy food and owed money to Lewis. He had hit "rock bottom" about three weeks before the offence

(ix) he had previously been able to obtain financial assistance from his mother; however, she was overseas at the time

(x) he had undertaken fortnightly counselling over the 12 months preceding sentencing

(xi) he has acknowledged the seriousness of his crime and is contrite

(xii) "It is highly unlikely that he would commit a crime of this nature again as he has both significant insight and remorse about the grief he has caused to both the victim and his own family."

(xiii) Lewis received a community service order for his role. 91 I would not regard impecuniosity of itself as part of the "exceptional circumstances". It is coupled with other factors. Nor do I regard the sentence Lewis received as an exceptional circumstance. However, it is a factor which has to be taken into account in considering the overall position.

92 Counsel for Mr Parsons submitted that the judge was correct in holding that Mr Parsons was not a good candidate for an example by way of general deterrence because of his psychiatric condition including his severe depression and anxiety and ADHD. It was pointed out long ago in R v Moody, CCA (Vic) 21/6/1978: "… general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

That approach has been adopted frequently in New South Wales.

93 The real question for decision in Mr Parsons' case is whether, despite the undoubted gravity of the offence, "exceptional circumstances" existed which permitted the Court to impose a sentence of 2 years periodic detention rather than a full time custodial sentence.

94 The evidence of Mr Parsons' mother, Dr Bauer and Ms Devlin underlines the great difficulties he has experienced. Mrs Parsons confirms the domestic violence to which her son was exposed. It is probable that that had a significant impact upon him. His subsequent severe psychiatric and psychological problems and condition are well documented. As at the date of the sentencing hearing he had been undergoing sustained treatment from Dr Bauer. His work with Ms K Palmer's family was encouraging. However, his illness made it extremely difficult to obtain employment. Dr Bauer thinks that there are real prospects of rehabilitation but the road will be long and arduous. Mr Parsons is maturing and Dr Bauer has explained why he thinks that Mr Parsons will not commit a crime of the nature in question again.

95 I am persuaded that it was open to the judge on the evidence before him to find, as he did, namely that there were exceptional circumstances in the case of Mr Parsons. I therefore do not regard the judge as having erred in imposing a sentence of 2 years imprisonment to be served by way of periodic detention.

96 In case I am wrong in the view I have just expressed it is necessary to consider whether the Court should nevertheless dismiss the Crown appeal in the exercise of its discretion.

97 Mr Parsons was sentenced on 13 November 2001, that is over 8 months ago. However, he has been in custody since 24 January 2002. The respondent has had a significant period in custody uncertain as to the ultimate length of his period in gaol.

98 While Mr Parsons was the leader and wielded the sword there was relatively little difference between the two men in terms of culpability. They both participated in the robbery and shared the proceeds.

99 Mr Parsons submitted that if a full time custodial sentence had been imposed in the first place, the judge would have found special circumstances. I think that that is so. Taking the judge's sentence of imprisonment of 2 years and a finding of special circumstances, the probable length of the non-parole period would, so the argument runs, be in the order of 12 to 15 months although this was not expressly stated. It was contended that having regard to the period he has spent in custody since 24 January 2002, the position as to special circumstances, the sentences imposed upon Lewis and Mr Poore and the fact that the sentence was imposed on 13 November 2001, the Crown appeal should be dismissed in the exercise of the Court's discretion. There is much substance in that submission and I agree with it.

100 I return to Mr Parsons' appeal. The judge was incorrect in not fixing a non-parole period or not giving reasons why he was not doing so (see ss.44 and 45 of the Crimes (Sentencing Procedure) Act 1999. Accordingly the Court would be entitled to consider the applicant's complete criminal antecedents and not just those adduced in evidence before the judge. In addition to the offences earlier mentioned there were others, all of which were dealt with in the Children's Court. In November 1996 Mr Parsons was convicted of stealing and placed on a bond. In November 1997 he was convicted of eight offences including stealing, malicious damage, possess housebreaking implements, unlawful entry, possess prohibited drug, take or be carried in a conveyance. He was placed on a two year bond. In May 1998 he was fined for entering enclosed lands and in January 1999 he was fined for using offensive language. All these matters were at the lower end of the scale. Mr Parsons had no convictions as an adult. It is going too far to suggest, as the Crown seems to do, that this record evinced a settled attitude of disobedience to the law. Principally, there was a short period of crime in the latter months of 1997.

101 The objective gravity of the offence in the present case warrants a non-parole period of 2 years. However, when regard is had to Mr Parsons' subjective features and the sentences imposed on Mr Poore and Lewis a lesser non-parole period should be fixed. Mr Parsons again presses the argument as to special circumstances and there are matters capable of constituting special circumstances including his youth, this being his first time in custody, his psychiatric condition and his prospects of rehabilitation. However, having regard to the gravity of the offence a lesser non-parole period than 18 months is not warranted and should not be fixed.

102 I propose the following orders: 1. Crown appeal against the sentence imposed upon Robert James Poore dismissed. 2. Crown appeal against the sentence imposed upon Aaron John Parsons dismissed. 3. Extension of time granted in which Aaron John Parsons may appeal against the sentence imposed upon him and leave to appeal against such sentence granted. 4. Dismiss the appeal against the sentence of imprisonment for 2 years to be served by way of periodic detention commencing on 23 November 2001 and expiring on 22 November 2003 but fix a non-parole period of 18 months commencing on 23 November 2001 and ending on 22 May 2003. These dates have to be adjusted because of subsequent events. 5. Note: (a) That the order for periodic detention was revoked by the Parole Board in January 2002 and that Mr Parsons has been in custody since 24 January 2002, and

(b) Taking into account the extra period he was required to serve for non-attendance at the Periodic Detention Centre this results in his sentence expiring on 31 January 2004, and

(c) His non-parole period consequently expires on 30 July 2003 on which day he is to be released on parole. **********

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