Gordon Pash appears for sentence in respect of an offence of aggravated assault with intent to rob contrary to s 95(1) of the Crimes Act. The maximum penalty provided is 20 years' imprisonment and there is no standard non-parole period.
In addition, he is to be sentenced in respect of two offences contained on a s 166 certificate as related offences, being a common assault contrary to s 61 and a larceny contrary to s 117, which could be described accurately as shoplifting. Each of those matters would have been dealt with in the Local Court except for the temporal relationship to the more serious offence.
The offender was committed for trial on 23 April 2019 from the Downing Centre Local Court and entered a plea of guilty on 16 October 2019 at the Sydney District Court, which was some five days in advance of the listed trial date of 21 October 2019. He is entitled to a discount for the benefit of his plea, although belatedly entered, and a discount of 5% for utility is appropriate.
The facts are agreed and they are as follows:
On 9 July 2018 at 2.20pm, the offender and an unidentified male were captured by CCTV at Kogarah Railway Station, walking through a concourse ticket gate. The facts include descriptions of their clothing and still images taken from the CCTV. The offender was also depicted, as he walked through the ticket gate, holding a single black glove in his left hand.
The offender and unidentified male entered the platform elevator which took them down to Platform 2. While in the elevator, the offender produced a knife from his right short's pocket and placed it in his right hand when exiting on to the platform.
Once on the platform, the offender and unidentified male walked along to the end of the platform where they hovered around a male on a mobile phone for several moments before retreating back towards the far end of the platform.
At 2.40pm, the unidentified male was recorded walking along Platform 3 towards the platform stairs, while the offender walked along Platform 2 parallel to the unidentified male. The offender was then recorded taking his white cap off his head and running towards the platform stairs.
At 2.40pm, the complainant Mohamed Jareehaj entered onto Platform 2 via the platform stairs and walked past both the offender and the unidentified male.
Jareehaj stood on the platform looking at his mobile phone. While looking at his mobile phone, he felt someone punch him to the left side of his face.
The victim looked up and saw the offender. The offender said to him, "Give me money, or mobile phone, or wallet." The victim said, "I don't have money."
The victim described the offender as being 170 cm tall, skinny, having white skin and wearing a white cap.
The unidentified male then said to the offender, "Let him go."
The offender and unidentified male then proceeded to walk towards the platform stairs. The offender ran up the stairs with the unidentified male, however, dropped a knife described as 19 cm long with a gold blade. The offender then retrieved the knife from the ground and placed it into his shorts pocket.
The offender then proceeded to walk back down the stairs towards the victim, at which point the offender then swung a punch at the victim with his right hand. The victim put his hands up to defend himself. The victim then ran past the offender and the unidentified male and up the platform stairs to Railway Security, which is located at the concourse ticket gates.
While the victim was with Railway Security, the offender and the unidentified male were recorded walking through the concourse ticket gates, past the victim. The victim is at that time recorded pointing out the offender and the unidentified male to Railway Security. At this time, the unidentified male was seen to be wearing a black glove.
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Sequence 3:
The offender and the unidentified male proceeded towards the Kogarah BWS where they entered and walked to the rear of the store where liquor was displayed.
They were recorded by CCTV with the offender removing a 700 ml bottle of Jägermeister from the shelf and placing it under his grey hooded jumper. The unidentified male also removed a bottle of 500 ml Sambuca and placed it under his jumper.
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Sequence 2:
The offender and unidentified male proceeded to exit the BWS store. The store manager asked if they were going to pay for the alcohol, to which the unidentified male claimed he did not have anything. A Woolworths employee, Faisal Khan, was working in the adjoining Woolworths store when he heard a call for assistance from BWS. He walked to BWS and challenged the offender and unidentified male about the liquor.
Several moments later, the offender passed the bottle of Jägermeister to the unidentified male and then confronted Khan, stating that he had not stolen anything. The offender then punched Khan to the left cheek causing immediate pain and redness. The offender and the unidentified male proceeded to leave the shopping centre.
As the offender punched Khan, his white cap fell off his head and onto the ground. It was later recovered by a Woolworths employee and subsequently provided to police when they arrived
That completes the agreed facts.
I note in relation to the knife that although the offender was observed with the knife on two occasions, it played no role in any of the offending. Similarly, in relation to the black glove, it seemed to be being carried initially by the offender, and a black glove later being worn by the unidentified male, however, there is no evidence of any glove having anything to do with any of the offences.
I also note in relation to the aggravated assault with intent to rob that it is aggravated as a result of the corporal violence rather than the offender being in company.
Although on the facts it might be surmised that both the offender and the unidentified male had attended the railway station as part of a joint to find a victim who could be robbed, it is clear that in relation to the offence brought against the offender he was not then in company with the unidentified male.
I do however accept that the facts give rise to a strong inference that the offending was at least pre-planned to some extent. It is impossible to determine how long in advance any offending was planned. As I have already referred to, it seems to me on the facts that the attendance at the railway station was not for the purpose of catching a train but for the purpose of finding someone who would be in a position that they might be robbed.
The sole violence inflicted on the victim was a single punch to the left side of his face. There is no evidence before the Court as to any specific sequelae or injury resulting therefrom. The punch itself is what has become in recent times ordinarily described as a 'coward's punch'. That is, the victim was punched when he was not looking or able to discern that he was about to be punched. It was essentially a random act of violence designed to intimidate the victim into handing over any money or mobile phone.
Having accepted that the victim did not have any money and having departed from the scene there is no explanation for why the offender came back down the stairs to the platform and proceeded to try and assault the victim again. Fortunately the victim effectively defended himself on that occasion, no doubt because on the second occasion he could see that he was about to be assaulted.
Latham J in Ibrahimi [2005] NSWCCA 153 at 22-23:
"It is a well-established sentencing principle, emphasised in the decision of Ranse NSWCCA unrep 8th August 1994, that offences involving direct attacks upon the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace.
The judgment of Gleeson CJ (as he then was) in Ranse has been affirmed many times:
One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others."
Those remarks are as apposite to this matter as they were at the time they were made in an entirely different matter.
The victim was entitled to feel safe when using a public transport system from the assault of a complete stranger. He was also entitled to not be struck violently by someone who he did not anticipate had any reason to strike him.
In my view an offence such as this is a serious offence. It is of course easy to imagine or hypothesise about more serious versions of such an offence. It is nonetheless a matter of serious concern to the community that citizens cannot walk the streets or use public utilities with any degree of feeling safe.
As to the assault on Mr Khan when he tried to intervene in relation to the shoplifting, he was simply an employee of Woolworths going about his ordinary duties endeavouring to ensure that the goods of Woolworths were paid for. He did not deserve in any way to be assaulted as he was. Although, again, there is little evidence of any significant injury. The punch to his cheek by the offender caused immediate pain and redness, and there is no evidence of any sequelae. It, again, must be regarded as a serious offence even for a common assault.
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AGGRAVATING MATTERS
In relation to this matter the offender was the subject of a s 9 bond at the time, having been sentenced on 21 May 2018 in respect of an offence of resist officer in the execution of duty committed in March 2016 and in respect of which he had originally received a s 9 bond on 22 September 2016 of 18 months duration.
However, he was for that matter, he was back before the Court on 21 May 2018 because he was called up for the breach of the bond and a further s 9 12 months bond was imposed together with the requirement to attend and participate in anger management, counselling and/or programs as directed. It has long been held by the Courts that breaches of conditional liberty are serious aggravating circumstances, whether that be for breach of parole, a breach of bail or a breach of a bond.
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SUBJECTIVE MATTERS
The offender was 31 years of age at the time and is now 32. Before the Court is the evidence he gave on sentence, the evidence of his stepfather, Tom Stefancic, a letter to the Court from Mr Stefancic by way of an email dated 16 December 2019, a letter from the Salvation Army dated 9 December 2019 being under the hand of Major Paul Mulds, a letter to the Court from the offender dated 16 December 2019, a psychological report under the hand of Julie Dombrowski dated 3 December 2019 and a Sentence Assessment Report under the hand of Stacy Deller dated 9 October 2018.
I note in respect of the Sentencing Assessment Report that it was to be provided to the Sutherland Local Court for sentencing on 15 October 2018 in relation to two offences, those being an offence of larceny value less than $2,000 and an assault occasioning actual bodily harm. Those offences occurred on 9 July 2018, that is, the same day as the offences now for sentence before this Court. They occurred after the commission of the offences presently before the Court.
Initially, the offender was apparently charged with the later occurring offences which were then dealt with in the Local Court on 10 July 2018 resulting in an aggregate sentence of 20 months imprisonment with a non-parole period of six months. The sentence was to commence on 9 July 2018 and the six months non-parole period concluded on 8 January 2019.
The offender had been arrested and charged with those offences and sentenced in respect of them before he was detected as being the offender who had committed the earlier offences that same day at the Kogarah Railway Station.
He was arrested and charged in respect of the current offences on 29 October 2018, which was seven days after he was sentenced on 22 October 2018 for the earlier offences resulting in the term of imprisonment I referred to. When sentenced for those offences, they were backdated to commence on the date of the offending, that is, 9 July 2018, the offender having been in custody since then.
In relation to the offences dealt with in the Sutherland Local Court, the offender was in custody from 9 July 2018 to 8 January 2019, that is, the non-parole period when he was then released to parole on 8 January 2019. However, while on parole he failed to comply with the terms of his parole, the term being Condition 5, that he was required to report to a Community Corrections officer at times and places directed by the officer and also to comply with all reasonable directions from the Community Corrections officer about participating in programs, treatment, interventions or other related activities. As he breached those conditions, his parole was revoked on 21 August 2019 and treated as having being revoked on that date. He was, in fact, returned to custody on 11 October 2019 following that revocation and has remained in custody since then until today as a result of the revocation.
It is unfortunate for the offender that the subsequent offending on 9 July 2018 was by comparison rapidly discovered, whereas he was not identified as the offender in relation to the matters before the Court today until much later in time.
Clearly, if all of the offending had been detected at the one time or at least before he was sentenced at Sutherland Local Court, he would have had the benefit of all of the matters being dealt with on the one occasion by the one judicial officer and questions such as totality and accumulation would in my view have worked in the offender's favour.
I accept that, despite the fact that this is separate offending, that as it occurred on the same date as the subsequent offending, it is appropriate to take into account the totality of any sentence to be imposed rather than to simply treat these matters as entirely separate and impose a sentence which does not acknowledge in any way the likely effect of what would have occurred if all the matters had been discovered at the one time or at least prior to sentence.
I omitted to say in relation to the Sentencing Assessment Report that of course it is of limited utility because it is not current, having been prepared in October 2018. I note however that even at that time in relation to his past response to supervision the report states that he originally came to the attention of Community Corrections in 2006 and had been supervised on numerous occasions and multiple orders since; that his initial response to supervision had been poor, often resulting in reoffence and breach action. That comment is, of course, entirely consistent with his criminal history which is also before me. It was said that however his more recent engagement had improved considerably. I note of course that it would not be possible to say that again considering that he subsequently breached parole, as I have referred to.
It was said that case management strategies had consistently attempted to address Mr Pash's ongoing substance use and any management issues, although it would seem his participation in intervention to date is somewhat more limited, more recently in May 2018 Mr Pash received 60 hours of Community Service work whoever he has been unable to undertake these on account of his current imprisonment.
He was assessed in 2018 as being a medium-high risk of reoffending. Although there was no current Sentence Assessment Report it would seem that that assessment is still accurate considering his breach of parole and allowing that the assessment in 2018 did not take into account this offending earlier in the day.
I will not refer to his criminal history in great detail; however it dates back to 2013 when he was aged 16. His juvenile history was notable for property and drug offences. He was remanded to a youth Drug Court a number of times during his adolescence. His adult offending is notable for crimes of misconduct and drug property and violent offences. He has served multiple terms of imprisonment and he was as previously indicated on a s 9 bond at the time of the subject offending.
At the time of the offending he was residing with a peer, as I understand it 'residing' could be better described as couch surfing, and apparently struggling with grief in relation to the death of his biological father some three months previously. At the time he claims to have felt abandoned by his stepfather following an argument but I note that his stepfather has given evidence on sentence, as well as, as I have referred to written a reference to the Court. I accept that his stepfather has had ongoing contact with him despite the fact that he separated from the offender's mother when the offender was aged 13, and that he continues to provide support to the offender.
The offender claims that because of the death of his biological father who he had had almost no contact with since he had been kidnapped by him at the age of five and spent six months with him before he was returned to his mother until he was contacted and told that his biological father was suffering from cancer, was apparently terminally ill and died shortly after their telephone contact.
He has maintained regular contact with his stepfather and his half‑siblings. Although I have some difficulty in accepting that he could have been significantly affected by the death of a biological father that he had never really known I accept the evidence of Mr Stefanovic who has indicated that he observed the communication of the death of offender's biological father as having a profound effect on the offender. In those circumstances I am prepared to accept that it was a significant matter to the offender.
The offender grew up with his mother, stepfather and two younger half‑siblings. While his mother remained at home and his stepfather worked as a painter. He had an ongoing but poor relationship with his mother, who was described as being emotionally abusive and is described by Mr Stefanovic as being "affectionate to a limited degree".
When the offender was 13 years of age he was kicked out of home because of an ongoing conflict with his mother, as I understand it, it was at the time when the stepfather and mother separated. He was subsequently placed by Child Protection in a temporary foster care until he was 15 years of age and he had apparently spent much of his adolescence living with other homeless youths in shared accommodation or on the streets receiving little or no parental supervision.
He attended the local primary and secondary schools until he completed Year 9 in Western Sydney. He was suspended on multiple occasions for fighting with other students and swearing at teachers. He was ultimately expelled in Year 9 because he had brought cannabis to school. He was not academically minded although he achieved average grades. He has made three separate attempts to complete Year 10 but has been unable to focus sufficiently to do so, particularly because of his ongoing homelessness. He has worked in a variety of manual labour positions such as landscape gardening, painting, construction and demolition but has struggled to maintain long-term employment largely because of homelessness and periods of incarceration.
He was last employed in 2018 as a farmhand but his employment ended around April 2018 after approximately 12 months of employment when he became unreliable and failed to attend work because of difficulties associated with his worsening substance abuse.
Throughout his adolescence he predominantly associated with a peer group of other homeless youths. At the time of the offending he was currently single and he has no children.
Between 2014 and 2018 he had one significant four year long relationship with a partner who did not have a history of offending. However, she apparently became concerned about his increasingly volatile and erratic behaviour and eventually sought an apprehended violence order and terminated the relationship.
He commenced binge drinking and smoking cannabis and methamphetamine in his adolescence, smoking up to 7 grams of cannabis per day during adolescence and early adulthood, and using methamphetamine daily during early adulthood.
As for the four year period of abstinence he unfortunately returned to heavy cannabis and methamphetamine use in 2018, following the death of his father, and he was smoking and injecting up to 1.75 grams of methamphetamine per day until he was arrested in October 2018.
He has in the past participated in a number of a detoxification and rehabilitation programs as an adolescent at The Langton Centre in 2004 and as an adult. Most recently he has attended the William Booth rehabilitation service for five days in July-August 2018.
In his evidence on sentence, he said that he left because they would not relocate him to a different venue and he was concerned about the location of the current venue that he was attending because of its proximity to the availability of prohibited drugs.
The psychological report states that he left the program prematurely because he was unable to manage his methamphetamine cravings and relapsed. For other reasons I have found the offender to be at least a poor historian; I accept that the reason given to the psychologist is more likely to be the accurate reason.
At the age of 13 and after being kicked out of home, he made a suicide attempt by cutting his wrists and was hospitalised. He has made no further attempts. The psychological report indicates that he expressed remorse for his offending behaviour and demonstrated victim empathy. At para 6 it is said
"Mr Pash expressed remorse for his offending behaviour, "I feel awful...I want to tell the dude (i.e. the victim) I am sorry mate...I'm not really like that...I want to explain to him that I feel like shit."
As to why he had offended he said he was unaware and was shocked by his own behaviour.
Of note in relation to his criminal history is that it contains a number of similar or like offences:
In 2006, assault occasioning actual bodily harm in company.
In 2007, three offences of common assault.
In 2008, robbery armed with an offensive weapon and use intimidation to unlawfully influence a person.
In 2012, assault occasioning actual bodily harm and steal from a person.
In 2014, assault occasioning actual bodily harm in company.
In 2017, a further offence of common assault.
It can reasonably be said that he has a significant history of offences of violence against persons.
In his evidence on sentence, when asked how he felt about his commission of the current offences, it is said that "he felt awful." In cross‑examination when asked to elaborate on that he said, in effect, "Because he had hurt the victim and he felt genuinely awful."
When taken to each of the offences of violence that I have just referred to and asked as to how he had felt about each of those matters after he had committed them, in each case he said he had felt "awful". It is difficult to accept that his current expression of remorse and contrition as to feeling "awful", or "genuinely awful" about having hurt the victim can be seen as genuine remorse and contrition in circumstances where he has continued to commit similar offences on a regular basis since 2006, and how he expressed remorse and contrition to the psychologist does not, in my view, take it any further.
Perhaps the most telling evidence in relation to remorse and contrition was the evidence of his stepfather who had been present in court throughout the evidence, as he was entitled to be, and said that after the offences of 9 July he had discussed with his stepson how he felt, but he made statements to the effect that they had spoken a few times, probably not in great detail, they had discussed that things should be different and that his stepson should make changes. When he was asked in cross-examination if the offender had talked about the victim, he said, "I can't recall." He was asked if his stepson had said that he was sorry or remorseful for his conduct and Mr Stefancic said they would have spoken about it but he could not recall it.
While I accept that the offender has made some statements which might be regarded as expressing remorse and contrition, I do not regard the evidence as being so substantial or acceptable that it could be regarded as evidence of genuine remorse and contrition. In that regard, I also note that having been charged with these offences on 29 October 2018, and in the intervening period no doubt having received the brief of evidence including presumably the same stills that have been provided at least, if not the video from the CCTV coverage of the railway station and BWS, it took the offender until approximately five days before the trial was due to start before he entered a plea of guilty. In my view, such a lengthy delay in the circumstances, particularly where he had already admitted the offences committed later that night, is not consistent with any expression of remorse or contrition.
In one other respect, there were some significant difference between the offender and his stepfather. The offender in his letter to the Court essentially indicated that he had been abandoned by his stepfather when he had been taken to Jindabyne, which had necessitated him in contacting Centrelink in order to get them to forward him $200 so that he could return to Sydney, having been supposedly abandoned in minus 2 degree weather from 10am to 5pm in nothing but shirt and shorts.
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Decision last updated: 05 March 2020
According to the evidence of his stepfather, they had had an argument when the stepfather woke him up to discuss certain matters with him. He had told him that he could go back to Sydney if he was going to keep on arguing with him, that he had with him at the time his own two children of his relationship with the offender's mother, that he had given the offender funds for the bus, which he described as being $100 for the bus fare to Sydney and some $50 or $60 so that he would be able to eat and buy cigarettes for his return.
In the circumstances, and considering the evidence about the offender's youth and the difficulties experienced by him, I accept that he had a very difficult early childhood and adolescence, bereft of any significant degree of parental supervision, and that that has the effect of diminishing his moral culpability for the offending as referred to in Fernando and Bugmy and later cases such as Kennedy v R [2010] NSWCCA 260 at 50-53.
It is difficult to determine whether the offender, being, as I have referred to in my view an unreliable historian, was affected by alcohol and/or drugs on the date in question, certainly at the time that he committed the offences immediately associated with the railway station and BWS.
It may be that by the time of the latter offences dealt with by the Sutherland Court he was significantly affected, having managed to steal alcohol in the meantime, but alcohol and the use of prohibited drugs in no way diminishes the seriousness of an offence.
The offender has clearly had difficulties with prohibited drugs over the years, as is evidenced by his criminal history. I accept that he continues to have problems with prohibited drugs and/or alcohol, but as I have said, that does not excuse this offending.
I note that one of the drugs that he has had a problem with is methylamphetamine, which is otherwise known as "ice". It has become notorious in recent years for its spread throughout the community and through all levels of society. It has become notorious for the adverse effects that it has on those who consume it and those who are indirectly affected by it, that is those who are randomly assaulted or robbed by persons who are affected by it, or if not affected by it desiring to obtain funds or property to acquire it.
In the last 10 years methylamphetamine has spread throughout the community in an appalling fashion. This offender's use of prohibited drugs is of course a factor in why he has to be considered as at least a moderate to high risk of reoffending.
He is 32 years of age. He is not beyond that time when he might be able to address his problems. He appears from the records to have made little real attempt in the past to properly address his use of prohibited drugs and also his obvious tendency to aggression and violence. His criminal history seems to suggest that his offending by way of violence has become more serious.
I note that the fact that he was subject to a s 9 bond at the time of the offending, if I did not say it before, is a serious aggravating circumstance. In R v Richards [1981] 2 NSWLR 464 Street CJ at 465 said that the protection of the community from those who abuse their liberty on bail to commit further offences calls for "severely deterrent sentences" which will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed or pass for the original sentence.
It appears from the criminal history that no further action was taken in respect of the breach of the s 9 bond, it having been imposed itself as a result of a call-up for breach of a previous s 9 bond.
As to the prospect of reoffending, it cannot be said that there is a good prospect that the offender will not reoffend in view of his past history. In particular, his current (at the time of this offending) use of prohibited drugs argues against there being a good prospect of his not reoffending and also against the possibility of there being a good prospect of rehabilitation.
It is likely that the offender will become simply another statistic in the revolving door of the prison system unless he first addresses his particular problems in relation to the use of prohibited drugs and also his tendency to aggressive and violent behaviour. Should he address those matters successfully, there would be a good prospect of his not reoffending and a good prospect of rehabilitation being achieved.
I have taken into account all of the matters that I have referred to. For the purposes of sentencing, I must have regard to s 3A of the Crime (Sentencing Procedure) Act and take into account s 21A(2) and s 21A(3). I have already referred to the relevant matters.
Any sentence imposed must reflect the objective seriousness of the offence as well as, in my view, in relation to this matter, the need for reflection of both specific and general deterrence, as well as the fundamental purpose of punishment, that is the protection of society.
I am satisfied pursuant to s 5 of the Crime (Sentencing Procedure) Act, having considered the possible alternatives, that no penalty other than imprisonment is appropriate.
I intend to proceed by way of an aggregate sentence and in those circumstances I am required to provide an indicative sentence in relation to each of the offences currently before me.
Accordingly, in relation to the offence of aggravated assault with intent to rob contrary to s 95(1), the indicative sentence is a sentence of three years' imprisonment.
In relation to the two matters contained on the s 166 certificate.
In respect of the offence of common assault, contrary s 61, the indicative sentence is six months.
In respect of the offence of larceny, contrary to s 117, the indicative sentence is six months.
The aggregate sentence will be a sentence with a non-parole period of two years and a balance of term of one year and six months, giving a total sentence of three years, six months, with a non-parole period of two years.
I have given careful consideration to the date at which any such sentence should commence. Taking into account the period of six months spent in custody as a result of the offences committed later the same day, I have determined that it is appropriate to give him the benefit of two months of the six months non-parole period previously imposed, and I will also give him the benefit of, in effect, making the sentence concurrent with that portion of his balance of term that he has now served, or is now serving, as a result of the breach of parole.
Accordingly, in order to achieve that object, I have taken as the starting point the date that he was refused bail on this matter, being 11 October 2019, and I have backdated that by 60 days to account for two months of the six months non-parole period for the subsequent offending.
Accordingly, the sentence will commence from 12 August 2019, and he will be first eligible for parole two years later on 11 August 2021. The balance of term is one year and six months and the total term of three years six months will expire on 11 February 2023.
For the purposes of my associate, I note that in relation to each of the three offences I provided a 5% discount for the utility of the plea, something that is now required to be specifically referred to in JusticeLink.