Jonah Soli is before the court for sentence on an offence of robbery armed with an offensive instrument. The maximum penalty for that offence is 20 years imprisonment. The maximum penalty is, of course, an important guidepost to which I have had regard in the sentencing exercise. He pleaded guilty at the earliest opportunity and I will, therefore, allow a discount of 25% on account of the utilitarian value of that plea of guilty. Evidence was today tendered on the sentence proceedings on behalf of the Crown, and also for the offender, after which I heard oral submissions, supplementary to the written submissions that had earlier been filed. The offender also gave evidence today.
[2]
FACTS
The facts of the offence are agreed and are as follows. On Sunday 7 March 2021, the victim, Mr Parsons went for a drive to Newcastle. He drove to the home of a friend, Mr Brooker, at Telarah. They then drove along the M1 motorway, and along the Newcastle Link Road, and went to various addresses around Wallsend, including to a McDonalds carpark. They then decided to drive home. It was close to midnight when the victim was driving back along the Newcastle Link Road and onto the Hunter Expressway. He was planning on driving to Branxton and returning along the New England Highway. About two kilometres before the Branxton turnoff, the victim noted a car with flashing lights in his rear-view mirror. He then pulled over to the side of the road, and the car with the flashing lights pulled in behind him. The car had its high beams on. It was later identified to be a silver-grey hatchback.
The victim got out of the car and started walking towards the rear of his own car while his companion, Mr Brooker, remained in the victim's car, in the passenger seat. The offender, Mr Soli, was sitting in the passenger seat of the silver grey hatchback, which was stopped behind the victim's car. The driver of the hatchback remained in the car for the whole incident that I will, in a moment, describe. However, the driver of that vehicle apparently had a torch, or a flashlight, and was holding it out of the window, shining it in the face of the victim. The offender was holding an implement, which looked to the victim like a sawn-off double barrel shotgun. A male from the hatchback yelled at the victim "put your hands behind your head," and the victim did so. The male then yelled "stand in front of your car and put your hands on the bonnet." The victim turned and walked to the front of his car, and put his hands on the bonnet.
Mr Brooker, the victim's companion, heard the offender yell from the hatchback, "Put your fucking hands up. Who else is in the car? Put your hands up." Upon which, Mr Brooker put both his hands out of the window. The offender then said to Mr Brooker, "Get out," and he did so. The offender then yelled, "Go to the front of the fucking car," and Mr Brooker did so. Mr Brooker recognised the offender as Jonah Soli, a person he had some associations with. He saw the offender was in possession of an implement that he thought was a gun.
The offender then approached the victim, and put the implement in his face and said, "Empty your pockets, where is everything?" The victim pulled out his pockets and said, "I've got nothing, I've got nothing." The offender then got into the front driver's side of the victim's car, and closed the door. The victim then walked to the door of the car and said to the offender, "What are you doing?" Upon which, the offender pointed the implement at the victim and said, "Fuck off." The victim was scared and walked to the front of his car. The offender then drove off in the victim's car, forcing the victim to jump out of the way as he did so. In doing so, the offender stole the victim's car, his wallet, mobile phone, and various tools and items that were inside the car. The hatchback with the other unknown person in it, drove off at the same time. As I have said, the driver of the hatchback has not to date been identified.
Mr Brooker contacted triple-0 and police arrived a short time later, at which time, Mr Brooker provided police with the name of this offender. On 10 March 2021, police located the victim's car, locked and parked in bushland at Cameron Park. The car was examined and DNA consistent with the offender was located on the internal driver's side door latch, the hand brake and steering wheel, and his palm print was identified on an empty packet of cigarettes found on the floor.
On 12 March 2021, the offender was arrested and bail refused on unrelated matters. He was found to be in possession, at that time, of the victim's mobile phone, into which he had placed his own SIM card. On 16 March 2021, a silver-coloured Ford Fiesta hatchback was stopped in Lake Macquarie. Within that car, there were found items taken from the victim's car, including tools, and the owner's manual which have been identified by the victim. On 13 May 2021, the offender was arrested whilst in custody and charged with the offence now before the Court. At that time, he declined to be interviewed, but a forensic procedure was conducted, obtaining a sample of his DNA.
Those are the agreed facts.
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OBJECTIVE SERIOUSNESS
I then turn to consider the objective seriousness of the offence. Firstly, the maximum penalty of 20 years imprisonment marks this offence as a serious one, as indeed all robberies are. Anyone who commits armed robbery must ordinarily expect to receive a full-time custodial sentence of some severity. That is, in part, because robbery is an offence against persons, and not just against property. As was said by RS Hulme in R v Johnson [2004] NSWCCA 446 at para 47, "Members of the community, service station attendants and others in vulnerable occupations are entitled to go about their lives without the imposition of armed robbers."
While the offence before the Court does not involve a victim engaged in a vulnerable occupation, the comments I have quoted underscore the serious concerns of the community about robbery offences, and the importance of personal and general deterrence in sentencing for such offences. The robbery in this particular case was, as the agreed facts demonstrate, a serious one, given that the offensive instrument had the appearance to the victim of a sawn-off double barrel shotgun. Also, the offender used the offensive instrument by pointing the item, which the victim thought resembled a shotgun, directly into the face of the victim before demanding that he empty his pockets, after which, he entered the victim's vehicle. At that point, when challenged by the victim as to what the offender was doing, the offender again pointed the item, which the victim thought looked like a double barrel shotgun, at him, before telling him to, "Fuck off," and driving off in the vehicle, causing the victim to have to jump away to avoid being hit.
There is also the aggravating matter, as conceded by the offender, that the offence was committed in company with another person, who remained in the other car, apparently pointing a flashlight towards the victim. Another matter I take into account is that the robbery of the victim and the brandishing of the offensive instrument took place in the presence of the victim's companion who also thought that the implement was a gun. It was submitted on behalf of the offender that the victim and his companion were somewhat vulnerable due to the location and timing of the offence, given that it occurred late at night on a highway. While I take this into account, it is not a matter that increases the objective seriousness to any significant degree, as this case is certainly not like many others where a person is confronted alone, such as a shopkeeper or service station attendant.
There is, however, the fact that the property stolen was of considerable value, comprising the Toyota Prado, the victim's wallet, phone and assorted tools. On the other hand, I accept that the offence involved minimal, if any, planning, and that the incident was of relatively short duration. It was also a very unsophisticated offence, with no attempt by the offender to disguise himself, or to avoid leaving behind DNA or fingerprints.
In assessing objective seriousness, I am very conscious of the need to avoid error of the kind referred to in R v De Simoni (1981) 147 CLR 383, specifically the important principle that in sentencing the offender for the offence under s 97(1), I take care to ensure that I do not take into account any matter that might amount to a more serious offence, with a higher maximum penalty. In this case, the offender has pleaded guilty to an offence of robbery while armed with an offensive instrument, which carries a maximum of 20 years. Subsection 2 of s 97 of the Crimes (Sentencing Procedure) Act 1999 creates an offence of robbery while armed with a "dangerous weapon" which carries a maximum of 25 years imprisonment. as a dangerous weapon is defined in s 4 of the Crimes Act 1900 to include a firearm or imitation firearm, it is important that I not treat the instrument which the offender used in the robbery as being a firearm or imitation firearm, because to do so would amount to his being punished for an offence carrying a higher maximum penalty. I have, therefore, and with the agreement of the Crown and the offender, approached the offence on the basis that the true nature of the "offensive instrument" is not known.
However, the fact remains that the instrument was perceived by the victim and his companion, to look like a gun, and it was clearly used by the offender with the intention that it should strike fear into the victim. Nonetheless, the offender is entitled, in my assessment of objective seriousness, to have taken into account that there is no evidence that the instrument was, in fact, a gun that was capable of shooting anyone or putting his victim at risk of death or serious harm. This makes the offence less serious than, for instance, a case where an offender is armed with a real weapon, such as a knife or loaded gun.
It was argued on the offender's behalf that the offence falls below the mid-range, an assessment with which the Crown largely agreed. Having regard to all of the facts and the matters that I have noted, I assess the objective seriousness as being slightly below the mid-range.
The features of the offence before the Court bear some similarity to many of the common characteristics of an armed robbery offence set out in R v Henry & Ors [1999] 46 NSWLR 346. As to those characteristics, I make the following observations.
Firstly, while the offender was young, being 20 at the time, it cannot be said that he had no, or little, criminal history. Secondly, while there was no weapon, like a knife or real gun, capable of killing or inflicting serious injury, it is an agreed fact that the victim and his companion perceived the item to be a real gun. Thirdly, there was a limited degree of planning, although it appears that the offence was targeted to some degree, and of course, the offender had armed himself with the offensive instrument. Fourth, while there was no actual violence, there was a real threat of violence perceived by the victim, who had the offensive instrument pointed at him twice, and who had to jump out of the path of the vehicle when the offender drove off in it. Fifth, this is not a case where the victim was in a vulnerable position, like that of a shopkeeper or taxi driver, as contemplated by the Henry decision. Sixth, in this case, it was not a small amount that was taken, but rather a motor vehicle worth, presumably, some thousands of dollars, as well as a phone, tools and wallet. Seventhly, while there is a plea of guilty in this case, it is one of less significance, given the fact that the Crown case was very strong with DNA and fingerprint evidence behind left behind, as well as the fact that the victim's companion knew the offender.
In circumstances where the Henry factors are present, or largely present, a head sentence in the approximate range of four to five years is indicated as a guide. That suggested range, however, contemplated a late plea of guilty, attracting a discount at that time of about 10%, whereas in this case, the offender pleaded guilty at the earliest opportunity and is entitled to a reduction of 25%. Nonetheless, the Henry guideline is highly relevant, although of course, as a guide only, and not as a prescription.
Although not relevant to objective seriousness, the offender's overall criminality is aggravated because this offence was committed while he was subject to conditional liberty, by reason of being subject to a Community Correction Order, imposed in the Local Court on 5 November 2021, and being on bail from 25 January 2021.
[4]
SUBJECTIVE MATTERS
Turning then to subjective matters relating to the offender himself. He is currently 21 years of age. his criminal history goes back to 2019, and includes offences of carrying a knife, assault, damaging property, dishonesty, and various other offences. Clearly, he is not entitled, therefore, to the leniency that might be extended to a first offender. He was born in the USA, but his family moved to Australia when he was about five. He told the psychologist, Mr Borkowski, that his parents provided good care for him, however he was badly affected from about age 13 by his parents having taken on the care of children from the extended family, which led to an additional eight children being in the home. This, he said, led to the offender feeling disconnected from his parents, and to him starting to act out, which in turn, lead to him being kicked out of home at about age 17. After this, he had no stable accommodation and tended to "couch surf", with friends and engage with negative peers. He reported having no stable accommodation at the time of the offence before the court. Due to his acting out as a teenager, he was also asked to leave school in year 11, and then worked in a variety of jobs, and ultimately in the mines, but lost that job after an altercation with a workmate. After this, according to the offender's self-report, he went off the rails and started abusing drugs like Xanax, cannabis and ice, and by 19 years of age, he was dependent on these substances.
This history seems to be supported by the offender's criminal record, which records his first offences as being around age 19. He told the psychologist that he has been drug free whilst in custody, and feels better for it, and is willing to engage in any treatment and rehabilitation that is available. He is now engaged in studies and hopes to return to full time work on his release. He confirmed all these things in his evidence today.
In relation to the offence before the Court, he said he was affected by ice at the time, and that he believed the victim owed him money. Although the psychologist was unable to undertake any psychometric testing, he concluded based on the offender's self-report, presentation and history that he has a severe substance use disorder. According to the psychologist, the offender took responsibility for his actions and did not attempt to justify them. He expressed regret for the negative direction his life had taken, and a willingness to engage in treatment to address his drug problems. Again, the offender gave similar evidence this morning before me.
The Court has also been provided with the psychiatric report of Dr Gordon Elliot, dated 23 April 2021, which was prepared for the offender's Local Court sentencing in 2021. That report contains a similar self-reported history to that given to the psychologist. The report also concludes that while the offender has a substance use disorder, he is otherwise not affected by any mental health concerns.
While the offence was likely committed at a time when the offender was affected by drugs, that is not a matter that mitigates its seriousness in any way, and does not reduce his moral culpability. As the Courts have said many times, a person who chooses to abuse drugs or alcohol cannot expect to be treated more leniently when he or she commits offences while under the influence of such substances.
I do accept, however, that his culpability is reduced to some degree, by reason of his youth and related impulsiveness. As Hodgson JA said in BP v R [2010] NSWCCA 159, at para 4 to 5, "Where emotional immaturity or a young person's less than fully developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability." And further, "In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties." There have been observations in a number of other cases that slow development of impulse control is often even more marked in young males.
The offender accepted responsibility for his offence when speaking with the psychologist, and did not attempt to justify it. The letter from his cousin, Ms Purcell, attributes similar statements of remorse to the offender, and speaks highly of him as a worthwhile and capable young man, which I accept he is, at least when he is not taking drugs.
[5]
REMORSE AND REHABILITATION
The offender also gave evidence today, in which he expressed regret for his offending, and a wish to apologise to the victim. Having regard to all of this evidence, I accept that there is some genuine remorse in this case.
Turning then to consider the offender's prospects of rehabilitation and his future risk of reoffending. It is positive that the offender has, since being in custody, taken up studies, and completed some of the custody based EQUIPS program. It is also positive that he has the support of his family, and extended family, and can live with them on release, and has some prospect of gaining work through his cousin. I note that he is supported today by the presence of his mother and younger brother.
His prospects of rehabilitation are improved by reason of his preparedness to engage in treatment for his drug problems, and that he reports to have been drug free since being in custody, and has no disciplinary offences on his custodial record. His good conduct in custody is confirmed by his evidence, that he is a "sweeper", which is a well-known position of some trust in the prison environment. There are some glimmers of hope that the offender may be able to turn his life around. In his evidence today, he appeared to be genuinely concerned about the bad things he has seen in gaol, and to express a real desire not to become, like many of the people in prison, who this Court regularly sees, whose life involves an endless revolving door of arrest, conviction and imprisonment. The offender's prospects for the future will depend entirely on the offender, and whether he can maintain a focus on avoiding drugs, seek out and engage with drug avoidance treatment, stay away from bad influences, obtain regular work, and throw himself back into rugby league, for which he has apparently considerable talent.
However, and although there are some positive signs, there remains the fact that this offence was committed while the offender was subject to a Community Correction Order, and while on bail. There is also his relatively lengthy and serious drug use history, and the fact that he has yet to engage in sustained treatment. As I have said, while there is some room for hope, at this stage, I regard his prospects of rehabilitation as tentative or uncertain. I sincerely hope that he proves me wrong, and that he follows through on his stated intention to get his life back on track, and be a good role model to younger members of his family.
I have taken into account that the offender's custody to date has been made more difficult by reason of the restrictions and limitations imposed by the COVID pandemic. As he confirmed in his evidence, his time in custody to date has involved some very real restrictions in terms of isolation, caused by multiple lockdowns. I also take into account that his future period in custody is also likely to be impacted to some degree by the pandemic.
[6]
YOUTH
The offender is not a juvenile, but he is still very young. In sentencing young people, the Courts give greater weight to the importance of rehabilitation, and less weight to deterrence. I have taken this consideration into account to the extent that I can, having regard to the offender's age, he being 20 at the time of the offending, and now aged 21.
[7]
DETERMINATION
I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the threshold in s 5 of that act is crossed, in other words, that no penalty other than imprisonment is appropriate, and I note that this was effectively conceded in submissions on behalf of the offender.
In R v Harris [2011] NSWCCA 105, Simpson j noted at para 93 that the starting point of the Henry figures before a 10% reduction was for a head sentence IN the range of four years, five months, to five years, six months. Having regard to all these circumstances, but in particular, the fact that the offence before this Court is below the mid-range, the existence of genuine remorse and the offender's relative youth, I intend to set a head sentence that is towards the lower end of the range suggested in the Henry guideline. In coming to that view, I have, of course, taken into account all of the circumstances, including the various matters to which I have made reference already.
I adopt a starting point head sentence of four years, three months. From that, I deduct 25%. I therefore impose a head sentence of three years, two months. I make a finding of special circumstances, based on the offender's age, this being his first lengthy period in custody, the need for him to be monitored for a considerable period of time on his release, and also the impacts of the COVID pandemic.
I impose a non-parole period of one year, nine months. I have given consideration to the date on which that sentence should commence. The Crown submitted that there should be some level of accumulation involved in the sentence that I am to impose, given that the offender is already subject to a sentence imposed in the Local Court. It was submitted on behalf of the offender that an appropriate date, having regard to totality principles, and the existing Local Court sentences would be 13 May 2021, that being the date on which the offender was arrested and charged for this robbery offence. The Crown accepted that this did involve some degree of accumulation, but accepted that ultimately this is a question for my discretion.
Having considered the issue, I propose to date the sentence from 13 May 2021. The head sentence, therefore, will expire on 12 July 2024, and the non-parole period will expire on 2 February 2023. I direct that a copy of the psychological report of Jason Borkowski dated 9 March 2022, and the psychiatric report of Dr Gordon Elliot, dated 23 April 2021, be sent to Corrective Services and to Justice Health.
Mr Crown, Mr Hussey, anything to raise?
FITZHARDINGE: No thank you, your Honour.
HUSSEY: Nothing from me, your Honour.
HIS HONOUR: Alright, so Mr Soli, you understand you will be eligible for release on parole on the date that I just mentioned, which is 2 February next year.
OFFENDER: Yes.
HIS HONOUR: That will be subject to your behaviour. Hopefully, it will remain good in custody, and I hope you continue with your studies.
OFFENDER: Yes.
HIS HONOUR: Thank you. The Court will adjourn.
[8]
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Decision last updated: 11 August 2022