R v ZA

An assessment of the objective seriousness

1. In assessing the objective seriousness of the offence of robbery, I have taken into account the following factors: 1. The property taken was $100 cash and a pair of prescription glasses. 2. The demands made for the money included a threat to kill, and the derogatory remark "You guys come into this country, this is our country." 3. The incident was of relatively short duration, although, I note that this would have done little to alleviate the fears of the victim. 4. I am satisfied the offending was spontaneous.
2. Having regard to those factors, I assess the objective seriousness as below the middle of the range.
3. In relation to the offence of assault occasioning actual bodily harm, in assessing the objective seriousness I have taken into account the following factors: 1. The degree of violence used, namely, one punch to the face of the victim; and 2. The actual bodily harm occasioned, namely, a cut inside the victim's mouth.
4. Having regard to those factors, I assess the objective seriousness of this offence as well below the middle of the range.

Aggravating factors

1. I am satisfied the following aggravating factors are established: 1. That the offender was on conditional liberty at the time, namely, he was subject to an Intensive Correction Order and also two Community Correction Orders.
2. The Intensive Correction Order has now been revoked and he has served the balance of the sentence.
3. Whilst the Crown also relied upon the offender's criminal history as an aggravating factor, I do not propose to take it into account on this basis. I will say more later in my remarks.

No victim impact statement

1. The victim, Mr Khadka, has not provided a victim impact statement. Notwithstanding the absence of a victim impact statement, I have no doubt that the incident would have been wholly distressing and terrifying for him. This is particularly so because he was scared he might die.
2. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3A(g), Crimes (Sentencing Procedure) Act).

The offender's personal circumstances

1. The offender is now 21 years of age. He was 20 years old at the time of the offending.
2. He has a lengthy criminal history. His adult criminal history commenced in 2019 when he was 19 years old. In that year, he was dealt with for the offence of false representation resulting in a police investigation. He was sentenced to a term of imprisonment of 11 months and 14 days. In that same year, he was dealt with for the offence of take and drive conveyance. He was sentenced to eight months and 13 days in prison. In respect of each of those sentences, the non-parole period specified was three months.
3. In 2019 he was also dealt with for the offences of police pursuit and drive whilst disqualified. He originally received Community Correction Orders for those offences. Each of those Community Correction Orders was called up. In respect of the offence of police pursuit, he was sentenced to nine months imprisonment, and in respect of the offence of drive whilst disqualified he was sentenced to four months imprisonment. Each of those sentences have been served whilst the offender has been on his current remand.
4. In 2020 the offender was dealt with for the following offences: be carried in a conveyance (three counts), possess housebreaking implements, receive stolen property (two counts), dishonestly obtain property by deception (two counts). In respect of each of those matters he originally received a Community Correction Order. He was also dealt with for a further offence of possess prohibited drug in respect of which he was convicted and no further penalty was imposed. In respect of all those Community Correction Orders he was called up on 15 April 2021, and an aggregate sentence was imposed of two years and six months with a non-parole period of 15 months. That sentence dated from 29 January 2021, and the non-parole period is due to expire on 28 April 2022.
5. In 2020 he was dealt with for further offences as follows: larceny, destroy or damage property, and two counts of common assault, domestic violence. He received Community Correction Orders for each of those matters. He was also dealt with for a further offence of assault occasioning actual bodily harm, domestic violence. He received an Intensive Correction Order for 18 months. That is the Intensive Correction Order that has now been revoked and in respect of which he has served the remainder of the sentence.
6. In relation to the Community Correction Orders that were imposed in 2020, they were also called up and he received an aggregate term of 12 months fixed to date from 29 January 2021 and expire on 28 January 2022. Again, that sentence has been served during the current remand.
7. He was also dealt with in 2021 for fresh offences of dishonestly obtaining property by deception (two counts) and three counts of drive whilst disqualified. Those sentences form part of the aggregate sentence of two years and six months with a non-parole period of 15 months.
8. Having regard to the offender's criminal history, I am satisfied it disentitles him to the leniency on sentence that would otherwise be available to a person of good character.
9. The offender gave evidence during the sentence proceedings.
10. The following material was tendered on his behalf. Exhibit 1, the defence written submissions. Exhibit 2, an Affidavit of Rebecca Tagg sworn 15 March 2022. Exhibit 3, a report in relation to COVID-19 prepared by the Kirby Institute, University of New South Wales. Exhibits 4 to 9 extracts from the Bugmy Bar Book. Exhibit 10, a Justice Health report dated 18 July 2019 prepared by Vicki Cummins, clinical nurse consultant. Exhibit 11, a report under the hand of Ben Taylor, psychologist of 20 June 2019. Exhibit 12, an IDRS referral of 29 July 2019. Exhibit 13, a report prepared by Dr Mark Selikowitz, paediatrician, 29 August 2013. Exhibit 14, a report prepared by Meg Lewis, psychologist, 18 December 2012. Exhibit 15, a hearing and listening assessment prepared on 23 April 2009. Exhibit 16, BOCSAR statistics.
11. The offender's background is outlined in the offender's evidence, the Sentencing Assessment Report, the affidavit of his mother, and the various medical reports tendered during the sentence proceedings. It can be summarised as follows.
12. In his very early years the offender grew up in a household where he was exposed to domestic violence and also illicit drug use. The offender's mother described that the offender's father was very violent towards her and the children when they were living together. The offender told Mr Taylor, psychologist, that he had "seen bashings and been bashed". His parents separated when he was three years old. The offender's mother described that the offender's father "threw" her and her daughter out of the car at Gulgong and kept the offender and his brother in the car and drove away.
13. The offender remained living with his father. His mother outlined that the offender's father would use drugs in front of the children, including requiring them to get his syringes and spoons for illicit drug use. The offender gave evidence that the first time he ran away from home was when he was nine years of age. He said he would stay with friends and couch surf. He lived with his grandmother in the ACT for a period of time and attended school. When he was eight years old his grandmother arranged a hearing assessment. The offender was diagnosed with hearing deficits. There is no evidence before the Court as to whether the offender ever received any treatment for this. When the offender was in Year 6 and 12 years of age attending Miles Franklin Primary, a school counsellor prepared a report to assess whether he was eligible for learning support. The school counsellor assessed his full scale IQ at 71 (borderline range). Accordingly, he was found to be eligible for learning support.
14. The school counsellor noted that further investigation was needed in relation to a diagnosis of ADHD. The offender was subsequently assessed by Dr Selikowitz, a paediatrician. The offender was now 13 years old, in Year 7 and living with his grandmother in the ACT. It was noted that the offender had experienced learning difficulties since he was seven years old and had been described as argumentative, defiant, and prone to anger outbursts. In summary, Dr Selikowitz was of the opinion that the offender had global learning difficulties associated with ADHD. He recommended that he be medicated with Ritalin and continue counselling.
15. The offender described in his evidence that he did not stay living with his grandmother and ultimately was in Canberra living on the streets with "the boys". He described these people were older than him. He thought they were looking out for him because they supplied him with drugs. He gave evidence that the consumption of drugs "took my pain away" and he "forgot about everything else". He gave evidence that he would commit crimes for these older associates to, in my words, repay them for looking after him. At that time he described that he felt like no-one wanted to help him and he did not care about anyone or anything anymore. As a consequence of his association with this older peer group, he began to get into trouble with police and ultimately went into juvenile custody.
16. Whilst in custody at Frank Baxter Juvenile Justice facility he gave evidence he was physically and sexually assaulted by a nurse. This conduct continued for three months. He gave evidence that he was further physically assaulted whilst in juvenile detention as a consequence of mentioning the allegations against the nurse. He was then transferred to a Juvenile Justice facility in Grafton. The offender confirmed in evidence that there are civil proceedings progressing at the moment in relation to this physical and sexual abuse.

Drug use history

1. The offender reported a lengthy drug and alcohol use history commencing when he was nine years old. His mother recalled that he was introduced to drugs and alcohol by his father. Whilst the offender admitted using unprescribed buprenorphine when he entered custody, he gave evidence that he has now been drug free for six months.
2. In 2019 the offender lived with his mother for a short period of time. She described that the offender found it difficult because he was withdrawing from drugs at that stage, and also struggling with his mental health issues. The offender gave evidence that at this time he tried to self-harm and was admitted to hospital. He then returned to the Central Coast.
3. When the offender was 19 years old, he was supported by the IDRS, the Intellectual Disability Rights Service, to attend an assessment with Mr Ben Taylor, psychologist, for the purpose of determining eligibility for the cognitive impairment diversion program. Mr Taylor assessed the offender on 20 January 2019, that is, one day after his 19th birthday. Dr Taylor noted the following: "ZA reported that he had experienced learning difficulties all of his life; citing issues with reading, paying attention, and maintaining his motivation to complete his work. He reported having a history of what he described as 'heavy' use of drugs, cocaine and Ice. At the time of the assessment he advised he had not been using cocaine or Ice in recent weeks, but that he occasionally smoked marijuana for the purposes of relaxation. With regards to his family upbringing, ZA reported witnessing frequent violence and drug use, but could not provide a clear narrative of how stressful events within the family unfolded over time."
4. It was noted that the offender had recently left Frank Baxter Juvenile Justice Centre and reported suicidal thoughts, but that he had no intention to take his life at that stage. Mr Taylor continued: "ZA explained that he often feels lost or unmotivated in life generally, and that he has never really had the opportunity to build structure or stability in his life."
5. Mr Taylor administered a number of tests to assess functional impairment and executive functioning. The assessments disclosed significant functional impairment in nine key life domains, being, work, education, family relationships, completing of daily responsibilities, organisation and self-care. His executive functioning deficits fell within the 99 percentile when compared to the norm sample. Mr Taylor noted the following: "Further examination of ZA's profile revealed that he reported the most deficits in the domains of Self-Organisation/Problem Solving, followed by Self-Restraint and Self-Motivation. This profile was consistent with ZA's report of having difficulties with organising himself to complete daily responsibilities, as well as his report of difficulties with motivation, impulse control, and anger management."
6. In relation to the validity of the assessments, Mr Taylor observed that the speed at which the offender completed the assessments cast doubt upon their accuracy. He also observed that there was a degree of inconsistency with respect to some of the ratings. For example, he stated that: "Although ZA's impairment ratings of self-care and health maintenance fell above the 97th percentile, he presented to the assessment as well-groomed, and advised he often attended the gym, walked his dog and played sports."
7. Mr Taylor provided the following opinion: "ZA reported a history of learning difficulties, family trauma and drug use; all of which are independent risk factors for the development of cognitive impairment and associated disorders such as ADHD. He also reported pervasive difficulties with impulse control, motivation, anger management and organisation. ZA's report of his personal history as well his current difficulties, were consistent with many of his scores on objective assessments of functional impairment and executive functioning deficits."
8. He was of the opinion that the offender suffers from antisocial personality disorder. There was a provisional diagnosis of ADHD and a differential diagnosis of post-traumatic stress disorder and other specified trauma and stress-related disorders. Mr Taylor observed as follows: "Throughout his life, ZA appears to have had minimal opportunities to set and work toward meaningful life goals. Compounding this issue, he appears to have been exposed to various forms of criminality during his childhood years, and a scarcity of role model figures who could guide and support him in making important life decisions. The presence of family trauma and learning difficulties may have predisposed ZA to the heavy drug use he has reported. All of these factors lend credence to the presence of minor cognitive impairment in ZA."
9. In July 2019 the offender was referred to Justice Health Forensic Mental Health Network by Legal Aid New South Wales for a mental health assessment. The reason for the referral was noted as follows, "ZA presents with a cognitive impairment." This assessment was undertaken by Ms Cummins, clinical nurse consultant, Forensic Mental Health. The offender was assessed in the Gosford Local Court cells in circumstances where he was on remand. The offender told Ms Cummins that he had recently engaged the Intellectual Disability Rights Service. He had been referred to the Eleanor Duncan Aboriginal Health Centre in Wyong for psychological counselling. Ms Cummins noted a previous clinical assessment on 21 March 2018 by Dr Soon, a registrar in psychiatry, whilst the accused was in custody, which had documented that the offender presented with generalised anxiety disorder and depression. After obtaining background information from the offender Ms Cummins concluded that the offender presented with a cognitive impairment and alcohol abuse. I note there was no information in the report to support that opinion.

The offender's circumstances at the time of the offending

1. The offender gave evidence that at the time of the offending, he was living on the Central Coast with his partner Lucinda and his son Elias. He is now 18 months old. He continues to have regular contact with his partner and she may possibly live with him upon his release from custody.

The offender's attitude to the offending

1. The offender gave evidence that he is very disappointed with respect to his offending. He said he would tell the victim he is "very sorry" and that he is "not that type of person". He accepts that the victim would have been scared and he would like to pay back the money that has been taken. He told the author of the Sentencing Assessment Report that he was intoxicated at the time of the offending and could not provide a reason why he had targeted the victim. He said "I don't know why I did it because I had money", and further, he is "unstoppable when I'm drunk". I note that intoxication cannot be taken into account as a matter in mitigation on sentence (see s 21A(5AA), Crimes (Sentencing Procedure) Act).

The offender's future plans

1. The offender currently intends to live in Taree with his sister Amber and her fiancé Mason and his two nieces. Mason works at a meatworks and may be able to find the offender employment. He also wants to play football. His partner Lucinda and his son may also possibly move to Taree. His mother may also move from Cameron Park to Taree. He told the Court he wants to continue counselling and drug and alcohol treatment and anger management treatment. He also intends to obtain a mental health care plan and engage with a psychologist. He wants to show people he is "not a bad person". He wants to be a loving and caring father and get his "life on track". He gave the following evidence: "This is do or die for me. I can either spend the rest of my life in gaol, or go and be a father and a fiancé."
2. The offender gave evidence that he is now supported by his sister, mother and grandmother.

The submissions on behalf of the parties

1. The Crown relied upon written submissions supplemented by further oral submissions. Mr Ogilvy on behalf of the offender also relied upon written submissions supplemented by oral submissions. It was conceded on behalf of the offender that a custodial sentence was appropriate. Mr Ogilvy submitted to the Court that the sentence imposed could be served in the community as an Intensive Correction Order, having regard to the reduction in moral culpability caused by the offender's childhood, his need for rehabilitation, and the current hardship in custody caused by the COVID-19 pandemic. It was submitted that an Intensive Correction Order would maximise the offender's prospects of rehabilitation, having regard to the conditions that the Court could impose as part of an Intensive Correction Order. It was submitted that an Intensive Correction Order is more effective than parole and ensuring directed rehabilitation of an offender. Should the Court impose a full-time custodial sentence, it was submitted that the Court should take into account the principle of totality. The Crown submitted that only a full-time custodial sentence was appropriate in all the circumstances.

Remorse

1. I am satisfied that the offender is remorseful, having regard to the evidence he gave on oath. I regarded his evidence as frank and insightful. I am also satisfied that he has accepted full responsibility for his offending.

The offender's prospects of rehabilitation

1. Any view of the offender's prospects of rehabilitation must necessarily be guarded at this stage given his very long drug use history and his mental health issues, however, there are some very positive signs. He intends to live with his sister. He is hopeful of gaining employment. He retains the support of his mother, grandmother and his partner, and his intention is to be a good father. The Court is hopeful that he retains this motivation once he leaves custody. Further, that if he is tempted by drugs, rather than thinking about the next five minutes of his life and the satisfaction that he may obtain from taking drugs, instead think about the next five years of his life and the likelihood that he will be returned to custody.

The relevance of the offender's childhood

1. I am satisfied that the offender has had a childhood characterised by dysfunction, abuse and neglect. Unsurprisingly, this has in turn led to his early addiction to alcohol and drugs. I am satisfied these experiences of deprivation, trauma and neglect warrant a reduction in his moral culpability, for the reasons set out in Bugmy v R [2013] HCA 37 at [42]-[44]. There is no question in my view that the effects of his childhood deprivation have been far reaching.
2. Some of the general consequences of childhood deprivation were outlined in the material tendered on behalf of the offender (Exhibits 4 to 9 being extracts of the Bugmy Bar Book), they include the following: 1. That the effects of exposure to domestic violence on children's development can include impacts upon the child's behaviour, schooling, cognitive development and physical and mental wellbeing. Further, children who in early years are affected by exposure to domestic violence are vulnerable to developing long term mental health issues. 2. Early exposure to drug and alcohol misuse may increase the likelihood of children being substance users themselves and being involved in the juvenile justice system. 3. Interrupted schooling attendance can lead to lower educational outcomes which are a predictor of future contact with the criminal justice system. Low educational engagement has also been linked to poor health and wellbeing outcomes. 4. Hearing impairment can also impact upon an individual's language or behavioural development, leading to complex outcomes such as low education and attainment, social disruptions, and increased levels of dislocation, and increased levels of unemployment. 5. Criminal behaviour is closely associated with low socio-economic status.
3. It is for all of these reasons that the offender's moral culpability is reduced and there will be a moderation in the otherwise appropriate sentence.

The relevance of the offender's mental health

1. The principles in relation to the relevance of an offender's mental health on sentence are well established and outlined in DPP (Cth) v De La Rosa [2010] NSWCCA 194 commencing at [177]. Whilst I am not satisfied that there is sufficient evidence to establish a causal connection between the offender's mental health issues and the offending, I am satisfied that his mental health issues will make custody more onerous. In such circumstances, I also propose to moderate the otherwise appropriate sentence.

Totality

1. In circumstances where the Court is dealing with the offender for two offences, the Court is required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other, if so, the sentences should be concurrent, but if not, there should be some accumulation (see Cahyadi v R [2007] NSWCCA 1). I am satisfied that some very modest partial accumulation is warranted to reflect the additional violence in the form of the punch which was the subject of the charge of assault occasioning actual bodily harm.
2. There is also a second aspect to the application of the principle of totality in circumstances where the offender is currently serving a sentence, the non-parole period of which does not expire until 28 April 2022. Where a Court is sentencing an offender who is already serving a sentence, it is necessary for the Court to ensure that the aggregation of all the sentences is "a just and appropriate measure of the total criminality involved" (see Postiglione v R (1997) 189 CLR 295, and also Ozan v R [2021] NSWCCA 231).
3. In order to assess this second aspect of totality, the Crown has tendered on sentence the facts and charges relating to the existing sentence (see Exhibit A). The Crown has also helpfully prepared a table of all matters for which the offender has served terms of imprisonment whilst he has been on remand (see Exhibit C). Having reviewed that material, I am satisfied that the sentence imposed today upon the offender should be wholly cumulative upon the sentence that he is currently serving, in circumstances where any partial concurrency would mean that the sentence did not adequately reflect the criminality of the other offences.
4. Whilst the sentence imposed today will be wholly cumulative upon the existing sentence, there will be a finding of special circumstances resulting in a significant variation in the statutory ratio between the non-parole period and the parole period so that the total effective sentence reflects that finding of special circumstances.

The impact of COVID-19 on custodial conditions

1. There were two documents tendered on behalf of the offender outlining the impact of COVID-19 upon prisoner welfare. Firstly, a report prepared by the Kirby Institute, University of New South Wales, dated 16 April 2020, and secondly, the extract from the Bugmy Bar Book in relation to the COVID-19 risks and impacts. The information in the Bugmy Bar Book was collated as at 14 February 2022, and includes extracts from the Kirby Institute Report. The impact of COVID-19 can be summarised as follows: 1. On 7 February 2022 there were 901 locally acquired COVID cases in New South Wales correctional facilities reported in the past four weeks. 2. There is a greater likelihood of infection in New South Wales correctional facilities because of the living conditions. Custody is described as a "high risk setting" due to overcrowding, heightened vulnerability due to underlying health conditions in circumstances where the inmate population has a much poorer health profile than the general population, and also because of lack of access to public health screening and treatment. 3. There has been a number of changes in conditions in custodial institutions, including the suspension of in-person visits, the reduction in access to courses and support services, quarantine requirements on entry, which was ten days quarantine as at 27 January 2022, and also isolation of prisoners should they develop symptoms. Further, there have been "lockdowns" in order to reduce the risk of transmission of COVID-19.
2. The effect of isolation on prisoners was considered in an article by Ashley Stewart, an extract of which is included in the Bugmy Bar Book as follows at [39]: "Strategies to isolate cases from other people in prison may result in additional stressors depending on how people are isolated. Isolation practices may be similarities, or be perceived as similar, to solitary confinement, with psychological consequences especially damaging for people with pre-existing mental illness. The absence of meaningful social contact, environmental stimuli and engagement in purposeful activities through solitary confinement increases the likelihood of severe psychological distress and adverse outcomes post-release."
3. The offender gave evidence during the sentence proceedings that his time in custody has been difficult as a consequence of COVID-19 restrictions. He told the Court that in the last four months he has spent three months in lockdown at his Kempsey correctional facility due to COVID. I am satisfied that custodial conditions are now significantly more onerous and I propose to take that into account in determining the appropriate sentence.

Determination

1. In determining the appropriate sentence I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for each of the offences of robbery and assault occasioning actual bodily harm pursuant to s 5(1), Crimes (Sentencing Procedure) Act. I propose to impose a non-custodial sentence for the offence of possess prohibited drug.
2. I have had regard to the objective seriousness of the offences, the relevant prescribed maximum penalties, and the offender's subjective circumstances.
3. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.
4. Pursuant to s 53A(2)(b) the sentences that would have been imposed for each offence, had separate sentences been imposed, instead of an aggregate sentence, are as follows.
5. In relation to the offence of robbery, a starting term of two years and eight months, discounted by 25% for the plea of guilty, leaving a total term of two years.
6. In relation to the offence of assault occasioning actual bodily harm, a starting term of eight months discounted by 25% for the plea of guilty, leaving a total term of six months.
7. The total aggregate sentence will be two years and three months.
8. I have considered whether it is appropriate for that aggregate sentence to be served by way of an Intensive Correction Order. I have taken into account s 66, Crimes (Sentencing Procedure) Act. Section 66(1) provides that community safety must be the paramount consideration when a Court is deciding whether to make an Intensive Correction Order. Section 66(2) requires the Court to assess whether making the Intensive Correction Order or serving this sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Finally, s 66(3) requires the Court when deciding whether to make an Intensive Correction Order to consider the provisions of s 3A, that is, the purposes of sentencing and any other relevant sentencing principles.
9. Whilst I accept that the offender's rehabilitation is more likely to be addressed in the community by way of serving an Intensive Correction Order, I am satisfied that the other purposes of sentencing, that is, punishment, denunciation and general deterrence all require the imposition of a full-time custodial sentence. As I indicated, I propose to commence the sentence imposed today on 29 April 2022, that will mean it will be served wholly cumulatively upon the existing sentence, the non-parole period which expires on 28 April 2022. As I previously indicated, there will be a finding of special circumstances so that the total effective sentence will reflect a ratio of 50% of a non-parole period and 50% on parole.
10. My orders are as follows.
11. ZA, in relation to each offence of robbery and assault occasioning actual bodily harm, you are convicted.
12. I sentence you to a total aggregate sentence of imprisonment for two years and three months to date from 29 April 2022 and expire on 28 July 2024. I fix a non-parole period of six months to date from 29 April 2022 and to expire on 28 October 2022. I direct your release to parole on 28 October 2022.
13. The total effective sentence is three and a half years with a non-parole period of one year and nine months and a balance of term of one year and nine months.
14. There has been a very significant finding of special circumstances, given that the sentence is to be served wholly cumulatively upon the existing sentence.
15. In relation to the offence of possess prohibited drug, the offender is convicted, and no further penalty is imposed pursuant to s 10A, Crimes (Sentencing Procedure) Act.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2023