On 27 April 2021, following a trial of some 6 days a jury found the Offender guilty on each of the following charges:
1. On 30 June 2019, at Blacktown in the State of New South Wales, did break and enter the dwelling-house of Patricia Laurence situate at [redacted], and therein robbed Mark Morgan of his mobile phone, money and a watch, in circumstances of aggravation, namely, being in company with [B] and others.
This is an offence contrary to section 112(2) of the Crimes Act 1900 (NSW) (the 1900 Act) and carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years imprisonment.
1. On 30 June 2019, at Blacktown in the State of New South Wales, did rob Sharon Laurence of her mobile phone and wallet, whilst being in company with [B] and others.
This is an offence contrary to section 97(1) of the 1900 Act and carries a maximum penalty of 20 years imprisonment.
1. On 30 June 2019, at Blacktown in the State of New South Wales, did rob Lois Morgan of her mobile phone, whilst being in company with [B] and others.
This is an offence contrary to section 97(1) of the 1900 Act and carries a maximum penalty of 20 years imprisonment.
The relevant facts submitted by the Crown which were not objected to by the Defence were as follows:
At around 9am on 30 June 2019, Sharon Laurence went to visit her elderly mother Patricia Laurence at her home in Blacktown. Later that morning other family members arrived namely Patricia Laurence's sister Beryl Morgan and Patricia's niece and nephew Lois Morgan and Mark Morgan. Relevantly, they were having tea and biscuits in Patricia Laurence's room.
That morning, the Offender and the Co-Offenders A B and S were participants in a Facebook group chat. Using their Facebook identities S indicated "I got a job" to which A responded that he would drive but "your show." A later asked "you want to do it now" to which S responded 11.30. A told the participants in the group chat "you better get face mask." B responded "We got one." S then stated "oi king come now." [1] A asked the Offender to "get ready and the Offender responded "Yes, I'm ready." In a separate conversation between A and S, A asked "what the job" and "Where the job at" and S replied "Dealer."
Around 10.30am on Sunday, 30 June 2019, A drove his silver Volkswagen Jetta/Bora from his house in Rooty Hill to the vicinity of the Offender's residence in Mt Druitt. A's brother, B, with whom he lived, was seated in the front passenger seat. A picked up the Offender, who sat in the backseat. A then went to pick up S and another male from the Bidwill area.
S, who was armed with a baseball bat, got into the front passenger seat while B and the other male sat with the Offender in the back. When S got into A's car, he entered the address in Blacktown, into A's phone. The Offender and Co-Offenders left Bidwell at approximately 11.08am.
The persons in the car, including the Offender, understood that they were travelling to a house in Blacktown to rob a drug dealer.
A followed his phone's GPS directions to the vicinity of the address in Blacktown. He parked near the driveway allowing his passengers - including the Offender - to get out of the car. A then drove away from the address, parking in a nearby side street. The GPS data form A's phone indicated that his phone remained stationary between 11:33am and 11.44am.
The Offender, B, S and the other male all approached the house. Each were dressed in dark clothing and some had their faces at least partially covered or obscured. One of the Offenders was armed with a baseball bat. The Crown contends that this was probably S. Another had a knife, and another had a pair of scissors.
At around 11.30am, Sharon Laurence noticed someone crouching near the car in the driveway. She went out onto the front porch to investigate and proceeded to unlock the wooden front door and the screen door before stepping out. She then observed two other males crouching near the camellia bush. The male crouching near the car approached climbing up onto the porch.
The first male rushed towards the door in an attempt to open it and Sharon Laurence resisted and tried to close the screen door, towards the front door. Her cousins Mr and Ms Morgan tried to assist. At one point, Mr and Mrs Morgan attempted to pull Sharon Laurence back so that they could close the wooden door. Two of the males were attempting to enter through the gap between the door and the door frame. Ms Beryl Morgan also came to assist, striking out at the males with a walking stick. One of the males pulled on the front screen door handle, snapping it off. The screen door subsequently flew open and all the males forced their way past through the wooden door and inside the house.
Sharon Laurence and Mark, Lois and Beryl Morgan were corralled into Patricia Laurence's bedroom to the right of the front door. Patricia Laurence was laying on her bed. One male was observed to be armed with a baseball bat, another with a large kitchen knife and another with a pair of scissors. The victims were shouted at by the male with the baseball bat to get down on their knees.
The males proceeded to yell, "where's Shay" and "where's the weed". The males were told that no person by that name lived at the house and that there were no drugs there. The males then made demands for their bags, phones and wallets.
In Patricia Laurence's bedroom one of the males, who was armed with the pair of scissors, demanded Mark Morgan to give up his wallet. The Crown submitted that this person was probably B. The male took money from Mark Morgan's wallet and then took his watch, unclasping it from his wrist, all while he lay on the floor in Patricia Laurence's bedroom. At that point, Mark Morgan and Beryl Morgan were in the bedroom with Patricia Laurence. The two victims kept their head down and could not see. In the events that followed Mark Morgan's phone was also taken, from the living room. This was Count 1 on the indictment.
The male carrying the knife told Sharon Laurence to go into the lounge room and gestured with the knife. Sharon Laurence got up and went to the lounge room and then knelt a short distance away from the males. The male with the bat and the male with the knife were in the lounge room with Sharon Laurence.
At least one of the males was in the bedroom during this time, keeping an eye on the other victims.
At least one of the other males began searching through the kitchen cupboards and remaining bedrooms.
The male with the baseball bat asked Sharon Laurence where she kept her phone and she indicated to her handbag. The male took the phone from the bag and demanded that she provided the Personal Identification Number to enable access to the phone. Sharon Laurence's mobile phone was stolen at this point. Although not asked to locate her wallet it was in her handbag and the evidence was that she had it before this event and did not have it afterwards. This was Count 2 on the indictment.
One of the males took Lois Morgan's phone from her handbag, which was also in the lounge room. This was Count 3 on the indictment.
The male with the knife was standing in the entrance to the lounge room behind a linen cupboard door which led to the kitchen.
About 10-15 minutes after being parked in the vicinity, A drove back to the Blacktown address and beeped his car horn. The Offender and other males left the house and ran back to the car. As they left the male carrying the knife yelled out that if the victims called the police they would come back and kill them.
A drove away. He stopped somewhere where S put the baseball bat into the boot. The victims' phones that were taken "pinged" off cell towers towards the Mt Druitt area. A dropped off the Offender in the vicinity of his residence in Mt Druitt and dropped off S and the other male back in the Bidwill area. He then drove himself and his brother, B, back to their house in Rooty Hill.
Meanwhile, the victims had contacted police, who attended the Blacktown address and commenced their investigation. The Offender was ultimately arrested at his home on 6 November 2019. He participated in a record of interview. Though he made admissions knowing the other participants in the Facebook chat and that he himself was a participant in the chat, he denied involvement. The jury plainly rejected his denials.
[2]
Victim Impact Statements
Sharon Laurence has provided a Victim Impact Statement describing the long lasting emotional and psychological effect of the offending on herself and others present at the time. She noted that her mother was 84 at the time of the invasion in deteriorating health suffering significant pain and requiring assistance and palliative care. The offending increased her fear and anguish and led to a decision to move her into a hospice although she ended up dying at home waiting for a bed. Following her passing the police investigation overlapped with the funeral preparations adding to the stress and anger she endured.
Ms Laurence stated that immediately following she was consumed by rage and went through anger over her opening the door and placing others at risk. The house has since been sold although she remains afraid at home and has new and extra locks where she lives, improved motion sensor lights and carries a torch in her car at all times. Ms Laurence described not sleeping or eating well, being lethargic and finding it hard to get motivated. She avoids talking about the incident to live a quieter life and to pretend that everything is ok whilst many and varied thoughts wander into her consciousness. Ms Laurence describes that she has been seeing a psychologist for nearly a year to help find a path forward.
Beryl Morgan describes that what was going to be a difficult and emotional day with her sister ended up a nightmare. In the weeks that followed she began to feel very insecure and unsafe leading to increased security precautions being taken. She stated that the incident changed her considerably and she does not venture far from home without company and that sleep has become unsettled despite being in a gated community. Her children's demeanour and assuredness has also been impacted. Ms Morgan described that the incident did not just involve being robbed of material things but also dignity, privacy and the right to feel safe and secure.
These statements bring to the Court's attention the real impact of the offending on the victims. Whilst offending of this kind is by its nature traumatic, to have it occur at what was a difficult time for Ms Patricia Laurence and her family accentuated the impact. It is important that that impact be acknowledged and the Court takes the Victim Impact Statements into account in the way the law provides. [2]
[3]
Aggravating Factors
Although, the circumstance of aggravation described in Count 1 was being in company, the Court is nevertheless able to take other circumstances of aggravation into account not specifically alleged in the indictment. [3]
The aggravating factor in s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the 1999 Act) being that each offence was committed in company constitutes an ingredient of each of the counts and hence not to be double counted. Nevertheless, I bear in mind a number of participants were "in company" for the purposes of assessing the objective seriousness.
The Crown contended that the offending in each instance was aggravated in that it involved actual and threatened use of violence pursuant to section 21A(2)(b) of the 1999 Act. That provision relates to violence against a person not violence to property. [4] There is no evidence of actual violence to any person although there was threatened violence. As threatened violence is an element of each of the offences, it is not to be double counted by engaging the aggravating factor. [5]
Both parties accepted that the offending in each case engaged the aggravating factor in section 21A(2)(c) of the 1999 Act in that the offences involved the actual or threatened use of a weapon. [6]
Both parties accepted that the aggravating factor in section 21A(2)(eb) of the 1999 Act being that the offending "was committed in the home of the victim or any other person" was established. Plainly each of the persons present were entitled to feel safe and secure in a residential dwelling yet that was violated on the occasion in question. Accordingly, this aggravating factor is established.
The Crown submitted that the offending in this case was a particularly serious example of a home invasion with associated robberies and falls above the mid-range of objective seriousness. The Crown particularly drew attention to the fact that the Offender was part of a group of four young partly disguised males who forcefully broke into the home of a sick elderly woman who was bed-ridden and being visited by her family members. Upon breaking in, the occupant and visitors at the home were terrorised. The males were armed with various weapons/offensive implements, herded the victims and demands were made for their property. Ultimately, they took mobile phones, a wallet and a watch, items described of being of significant practical utility and sentiment. Parts of the house, notably the lounge room and kitchen, were ransacked.
The Crown accepted that it was difficult to identify precisely which of the males was the Offender, however, given the jury's verdicts it is clear that the Offender was one of the males who approached and entered the house and took part in the terrorising conduct.
The Defence submitted that all of the offences fall in the mid-range of objective seriousness when one considers the culpability of the Offender and the nature of the offending. It was submitted that the jury must have found the Offender knew he was going to conduct a "job" on a drug dealer, he was wearing a face covering, there is no satisfactory evidence he was armed himself but he must have known others in the group were, he had limited involvement in the planning or the direction of movement once at the home. It was submitted that there is no evidence that the Offender had any financial benefit from his involvement nor was he found to be in possession of any of the items taken from the home. It was acknowledged that he was more involved in the offending within the home than A but otherwise less involved in the overall planning of the offending than that Co-Offender.
The Defence also submitted that there was no evidence that the Offender made any direct threats to the occupants of the home, though he was in company with those who did. Overall, it was submitted that of all those involved in the offending, he played a lessor role than others in the joint criminal enterprise. The Defence nevertheless accepted that the offending was serious although there was no actual violence used rather the threat of same and the intensity of that threat was exacerbated by the fact of some offenders were armed. It was submitted that that no one was tied up, although they were asked to stay down on the floor and they were subjected to great fear.
Whilst the Offender was a party to a joint criminal enterprise, I accept that he was not the instigator or the planner of the home invasion. Nevertheless, he agreed to play a role, attended the home and did not resile even when it would have been apparent that they were not attending the residence of "a dealer" as originally envisaged. I accept that there was one participant who appears not to have a role in the forceful entry and was not armed. There is no evidence that the Offender himself forcibly facilitated the entry or was armed. Nonetheless, the acts of others are to be ascribed to the Offender through the joint criminal enterprise of which he was a part of. Whilst I would proceed on the basis that the Offender played a role in each of the offending counts, his participation did not include actual forcible entry or being armed and further he was not the instigator or planner of the invasion.
Even so, these were senseless and appalling acts, all the more so as they occurred in the home of an elderly and sick victim (Ms Patricia Laurence) in the presence of her family members. To all present, this offending could be described as disturbing and confronting.
In respect of count 1 on the indictment, I bear in mind that section 112(2) of the 1900 Act embraces a wide range of serious indictable offences punishable by imprisonment for life or 5 years or more. In this instance, the serious indictable offence was robbery carrying a maximum penalty of 20 years imprisonment.
In each count, there is no evidence of the monetary value of the items. However, they were items of personal importance.
Overall, I would find the offending in each case as falling within the mid-range of objective seriousness.
[4]
Background
A psychological report prepared by Karl Noyeaux was tendered in the Defence case.
That report detailed a history that the Offender was Ethiopian born in Kenya due to becoming a refuge as his parents fled Ethiopia due to war conflict. Further, the Offender's father passed away from kidney failure when he was in year 6. The report recorded that the Offender felt abandoned because he lacked a male role model growing up as his two brothers were both busy working and studying for him to open up to about his drug problems as he was quite embarrassed to tell them. The Offender migrated to Australia in 2009. The report noted that he did not attend all his classes at school as he experienced bullying at school and hanged around bad people who influenced him to do destructive things.
The Offender completed year 12 in Australia. He worked casually as a concreter at the time of the offending and up until his remand in a factory whilst also in receipt of Newstart Allowance.
Mr Noyeaux's report referred to research as to the major transition involved in migration that can negatively influence mental health and lead to distress and intolerance and use of maladaptive coping mechanisms such as the use of illicit substances. Negative reinforcement motivational models of substance use provide a framework that explains how these maladaptive coping mechanisms are maintained and difficult for individuals to overcome without alternative adaptive coping strategies.
Mr Noyeaux referred to the fact that though the Offender has a wide support network of family and friends, he reported that in the past he felt that he could not confide in them as it would burden them with his stressful thoughts. Further, that research indicated that individuals experiencing major depressive episode often have difficulty making decisions and are also more prone to making suboptimal ones. The report records that research links abandonment, substance dependence disorder and major depression disorder with anxious distress to impaired decision making. Mr Noyeaux opined that given the physical, emotional and financial strain that the Offender was under at the time of the offending, he was concerned that this was a significant factor in his ill-considered decision to commit the offences.
I note the background discussed in Mr Noyeaux's report. The concept that it was a significant factor in the offending as expressed by the psychologist is postulated as a potential theory. As expressed, I am unable to accept that it has been established on the balance of probabilities. Nonetheless, I accept migrating from what would no doubt be challenging circumstances in Africa, growing up in a foreign country without a male role model and being introduced to illicit substances at an early age are matters that I should take into account such as to reduce his moral culpability somewhat. [7]
[5]
Health
The Offender told Mr Noyeaux that he started using drugs namely cannabis in year 7 and has also used the drug MDMA and cocaine. He stated that he would use illicit substances as a way to deal with his depressive symptoms. His peer group were described as friends he would use illicit substances with and that they would influence each other to engage in anti-social behaviours. The Sentence Assessment Report (SAR) notes that the Offender denied his drug use was a dependency issue stating he would use substances as a way to deal with his depressive symptoms after his relationship breakdown in 2019.
The Offender reported that at the time of the offending he was quite heavily into cannabis, cocaine and MDMA and he was using $200-$300 worth of substances a day. [8] The SAR also recorded use of LSD. His commencement of cocaine and MDMA was described as brought about due to cannabis not giving him enough relief. [9] The Offender reported that he has not been on any drugs for 8 months. [10] The correctional history records that he has not come under adverse notice in this regard.
Mr Noyeaux recorded that the Offender struggled with anxiety and depression and reported more chronic periods of negative thoughts and physical symptoms of anxiety (eg accelerated heart rate, shaking hands etc) consistently. He noted that the Offender reported that he was frequently triggered by stupid thoughts which he was unable to neither separate nor distract from. [11] Mr Noyeaux recorded that the Offender had no prior recourse to psychological support. [12]
The Offender also reported to Mr Noyeaux that he has been suicidal in the past. The SAR observed that in custody the Offender advised of thoughts of self-harm and was placed in a safe cell. As at 7 June 2021, the SAR records that he was referred to a psychologist by the risk intervention team to assist with coping strategies.
On the basis of his interview and the assessment carried out, Mr Noyeaux reported that the Offender suffered Substance Dependence Disorder and Major Depression Disorder with anxious distress. Furthermore, he opined that the Offender had a low tolerance particularly in relation to worries and negative thought and therefore engaged in maladaptive coping strategies.
The Offender reported to Mr Noyeaux that he has attended Drug and Alcohol courses at Silverwater and also participated in a program called "click" which gave him the opportunity to talk about what was going on in his life before the alleged offences. The feedback was that this course did help him with understanding his anxiety. He also expressed a desire to attend more courses to help with his illicit drug use.
[6]
Remorse
Section 21A(3)(i) of the 1999 Act enables the Court to take into account remorse only if the Offender has accepted responsibility for his actions and acknowledged any injury, loss or damage caused by his actions or made reparation for such injury, loss or damage.
In the SAR, the Offender was noted to have stated that he was under the influence of a large amount of substances at the time the offences took place, and claimed to have no recollection of the incident although he accepted responsibility for his behaviour. He attributed his offending to substance dependency and antisocial peer group. He stated that his peer group friends would use illicit substances and they would influence each other to engage in anti-social behaviours. The SAR indicates that the Offender has not taken responsibility for his actions seeking to minimise his conduct. The SAR however does record that the Offender feels "sorry" for his actions and involvement and acknowledged the long term impact his actions would have on the victims.
The Defence submitted that nonetheless there was some limited remorse that the Court would take into account.
Although I take into account the Offender's expression of sorrow and acknowledgement of the impact on the victims, remorse pursuant to section 21A(3)(i) of the 1999 Act has not been established.
[7]
Conditional Liberty
At the time of the offending, the Accused was serving three Community Correction Orders that commenced each for a period of 12 months on 24 June 2019 and were due to expire on 23 June 2020. These were for two offences of affray which occurred on 29 August 2018 and one offence of goods in personal custody suspected of being stolen and one of larceny both of which occurred on 5 April 2019. The fact that the offences for which the Offender is to be sentenced occurred at a time that the Offender was on conditional liberty is an aggravating factor pursuant to section 21A(2)(j) of the 1999 Act.
The Defence did not contend otherwise.
[8]
The Offender's Record
Apart from the matters referred to above, the Offender was the subject of a Conditional Release Order without conviction in relation to an offence of having goods in custody suspected of being stolen which occurred on 2 August 2018. He was called up for a breach of this order on 24 June 2019 and a Conditional Release Order for 12 months was imposed. That order is one of the ones that have also been violated by reason of his subject offending.
Nonetheless, the Offender's prior record cannot be described as significant and I take this into account as a mitigating factor pursuant to section 21A(3)(e) of the 1999 Act.
[9]
Likelihood of Re-offending and Prospects of Rehabilitation
The Offender was aged 19 at the time of the offence and is presently aged 21. According to the SAR, he was last supervised by Community Corrections on a Community Corrections Order in 2019. He completed this order to a satisfactory standard and there were nil compliance issues. The Community Corrections Orders expired on 23 June 2020 and I note that apart from the matters in respect of which the jury found him guilty, the Offender has been on bail after being released from custody on 7 November 2019 till bail was refused on 27 April 2021 (after being found guilty on the subject offences that he is being sentenced for). He has otherwise been compliant. There is no evidence that he has been the subject of any custodial disciplinary action.
Mr Noyeaux's report records that when the Offender's family heard about his drug taking they told him it was unacceptable behaviour but would support him in quitting and would monitor his behaviour to help prevent him from using again. The Offender described that he values his family highly and his financial and physical difficulties were a wakeup call that motivated him to stop using drugs permanently. [13] The Offender also described that his relationship with his mother has been volatile however since he has been incarcerated his relationship with his mother is improving and he talks to his mother once a week. [14] This was also recorded in the SAR.
The SAR records that prior to his remand he was residing with his immediate family. It was also reported that they recently moved to Oakhurst and the Offender was of the belief that he will continue to reside with them upon his release. The report noted that he has a supportive relationship with his family and will continue to reside with them upon his release.
The Offender's employment, however, has been comprised for only casual work in unskilled positions.
The Offender appears to have good insight into the factors that led to his offending being illicit substances and antisocial peers. He also appears motivated to address them and has family support.
The SAR indicates that the Offender has been assessed at a Medium risk of re-offending according to the Level of Service Inventory - Revised (LSI-R). In the event that he were to be supervised, Community Corrections would implement a supervision plan including:
Referral to Centre for Addictions Medicine (CAMs) for AOD assessment and Aggressions.
Referral to Drug and Alcohol Multicultural Education Centre (DAMEC) for AOD, Mental Health and Aggression.
Referral to the EQUIPS Foundation program.
The implementation of Practice Guide Intervention (PGI) modules to address managing cravings, pro-social lifestyle and managing impulsivity.
Overall, I accept that the Offender had a medium risk of re-offending and his prospects of rehabilitation are reasonable particularly with the right interventions and support.
[10]
COVID- 19
The Defence submitted that COVID-19 restrictions and effects on inmates in custody may affect the degree of hardship that the prisoner endures above and beyond the usual effects of incarceration.
Whilst there is no specific evidence in this regard, I accept that the circumstances are such that the present COVID-19 pandemic is making incarceration more onerous generally particularly in terms of visitation and the need for physical distancing. How long this situation will last cannot be known. Once COVID-19 has entered the correctional system, early parole may be available pursuant to section 276 of the Crimes (Administration of Sentences) Act 1999 (NSW).
The effects of COVID-19 have resulted in a delay in finalising this matter due to the inability of the Defence having access to the Offender for finalisation of evidence to be submitted on his behalf.
It is appropriate that the Court takes these matters into account and I do so. [15]
Beyond that, it is apparent that the Offender has struggled in custody needing psychological therapy, suffering suicidal ideation and self-harm resulting in him being placed in a safe cell. It is appropriate that the Court bear in mind the increased weight of incarceration on a person of the Offender's age and background.
[11]
SENTENCE
Both parties accept that the threshold in section 5(1) of the 1999 Act has been crossed such that having considered all possible alternatives no penalty other than imprisonment is appropriate.
[12]
Commencement of the Sentence
The Offender has been in custody since 27 April 2021. Both parties accepted that the sentence should commence from that day to account pre-sentence custody.
[13]
Parity
In determining the composition of the sentence, issues of parity arises.
A was convicted and sentenced on a plea of guilty on 26 June 2020 in Parramatta comprising of an aggregate term of 3 years imprisonment with a non-parole period of 15 months.
A's offending involved a plea of guilty to aggravated break and enter with intent to intimidate and three offences of robbery in company. A's plea of guilty was entered at the earliest opportunity and A provided assistance to law enforcement by making a sworn statement and giving evidence against the Offender that appears for sentence before me. Hanley SC DCJ applied a 40% discount on sentence comprising of 25% for his early plea and a 5% discount for past assistance and a 10% discount for future assistance.
Hanley SC DCJ found that this Offender's role was critical but in comparison to the others the objective seriousness was below the mid-range of objective seriousness. The Crown in that case submitted the other participants participation was above the mid-range. His Honour accepted that to be reasonable or "at least within the mid-range". His Honour stated that there was a need for distinction as a result of the particular role that each Offender carried out.
A was at the date of sentence 18 years of age with a minor criminal record. Remorse was found and it was noted that his early childhood exposure to significant trauma and deprivation such as to reduce his moral culpability. However, by reason of his insight, his Honour was satisfied that the Offender demonstrated reasonably good prospects of rehabilitation.
The starting point for indicative sentences (before the 40% discount) were 36 months in relation to the offence of section 113(2) of the 1900 Act and 30 months imprisonment for each of the three offences under section 97(1) of the 1900 Act. A was not charged with a standard non-parole offence although he was charged with an additional section 97(1) offence.
B and S had not been sentenced at the time that Hanley SC DCJ sentenced A.
B was convicted on a plea of guilty on 5 March 2021 at the Parramatta Children's Court of one charge of aggravated break and enter to commit a serious indictable offence and was sentenced to a 8 month control order without conviction. He had no antecedents and pleaded guilty at the earliest opportunity. He was 16 at the time of the offending.
S was convicted of one charge of aggravated break and enter to commit a serious indictable offence contrary to section 112(2) of the 1900 Act and was sentenced to a 21 month control order with 12 months non-parole and without conviction. He was aged 15 years and 10 months at the time of the offending and received a plea discount described as between 10 and 15%. The fact sheet presented to the Court limited the involvement of S in the matter. The Offender was on a parole and probation order for steal from a dwelling house which was imposed one month prior. No action was taken on the breaches. Sound prospects of rehabilitation were found noting that the young person had completed a number of custodial based courses including his HSC. The Court expressed the view that there were marked differences with the sentencing of A and "parity did not arise."
A fourth Accused was found not guilty of one charge of aggravated break and enter to commit a serious indictable offence.
The Defence submitted that the Offender was charged with one less robbery offence than A, who was charged with a break and enter with intent reflecting the fact that A did not enter the dwelling but was criminally responsible by way of joint criminal enterprise. It also noted that both the Offender and A were the only adult Offenders. It acknowledged that parity was more relevant between the adult Co-offender than between the Offender and the other young Co-Offenders and noted that a further Co-Offender remains unknown.
The Defence submitted that the Offender played a lesser role in the planning of the offending and was unable to be identified as an armed Offender. On the Crown case, he was said, on the balance of probabilities, to be one of the lessor participants in the home itself.
The Defence did not submit that the Offender will receive a "like for like" sentence with other Co-Offenders. However, it was submitted that the Court should be mindful of the findings of fact and the relevant circumstances such that any differences in sentence are "reasonably justified".
I accept that the question of parity is to be addressed principally against A. That does not mean however that I am to disregard the sentences imposed on the 2 young persons. [16] However, they not only entered pleas at differing times but were sentenced in the Children's jurisdiction. Moreover, each faced only one charge and there was no standard non-parole period applicable.
[14]
Breaches of Conditional Release Orders
The Defence submitted that no action should be taken in relation to the Community Corrections Orders, a course to which the Crown agreed. I propose to take this course.
[15]
Special Circumstances
This is the first sentence of imprisonment being served by the Offender. In addition by reason of his health, youth, the fact that a prison sentence would weight more heavily on him and the need for a longer period of supervision. I am satisfied that a finding of special circumstances should be made to vary the statutory ratio.
[16]
Purpose and Structure
In sentencing the Offender, I take into account the maximum penalties and the standard non-parole period earlier described as appropriate guideposts. Although reference was also made in the parties' submissions to the guideline decisions in R v Henry [1999] 46 NSWLR 356 and R v Ponfield (1999) 48 NSWLR 327, it was accepted that these were of limited assistance bearing in mind the nature and circumstances of the offending in question.
I have departed from the standard non-parole period for Count 1 taking into account the Offender's role, the subjective factors earlier referred to and the need for proportionality particularly in light of the principles discussed under the heading of parity above.
The Offender needs to be punished, made accountable and his conduct denounced. There is a need for general deterrence notwithstanding the Offender's background. I also acknowledge the need for specific deterrence without placing any additional emphasis on this purpose. The harm to the victims whose lives and property were violated with threats of violence, including use weapons must be acknowledged. I also must not lose sight that when sentencing one so young the community also has a particular interest in rehabilitation with a view of seeing the Offender return to community as a contributing citizen. I propose of proceed by way of aggregate sentence. The indicative sentences I would propose are as follows:
1. Count 1 - 3 years and 8 months imprisonment and a non-parole period of 1 year and 10 months imprisonment.
2. Count 2 - 2 years and 6 months imprisonment.
3. Count 3 - 2 years and 6 months imprisonment.
Having regard to the principles of accumulation, concurrency and totality, I would impose an aggregate sentence as follows:
1. 5 years imprisonment comprising:
1. A non-parole period of 2 years and six months from 27 April 2021 and expiring on 26 October 2023;
2. An additional term of 2 years and six months from 27 October 2023 to 26 April 2026 during which the Offender shall be eligible to be release to parole.
1. The Offender's earliest possible release date shall be 26 October 2023.
2. In relation to the three conditional release orders, I find the breaches are established but take no action.
[FOLLOWING DISCUSSION]
1. The Offender is referred to the Drug Court for consideration of eligibility of placement in the Compulsory Drug Treatment Centre.
[17]
Endnotes
Kingston Richgang was the Facebook identity of A.
Section 30E of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Marshall v R [2007] NSWCCA 24 at [10].
Makrynikos v R [2006] NSWCCA 170.
Hamze v R [2006] NSWCCA 36.
See Huynh v R [2006] NSWCCA 224 and Dougan v R (2006) A Crim R 135.
See Paterson v R [2021] NSWCCA 273 at [29].
Exhibit 1 at [28]-[29].
Exhibit 1 at [28].
Exhibit 1 at [30].
Exhibit 1 at [33]-[34].
Exhibit 1 at [35].
Exhibit 1 at [10]-[11].
Exhibit 1 at [43].
As per Toller v R [2021] NSWCCA 204 at [25] (Beech-Jones J as his Honour then was with Macfarlan JA and Davies J agreeing).
See R v Wong [2003] NSWCCA 247 at [35] followed in R v Duffy (2014) 297 FLR 359 at [90]; Corda v R [2014] NSWCCA 281 at [62]; Shortland v R [2013] NSWCCA 4 at [121]. See also R v Colgan [1999] NSWCCA 292.
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Decision last updated: 21 December 2021