REGINA v. ROBINSON [2004] NSWSC 465

(j) the prospect of rehabilitation of the offender. 3. In addition, in determining whether a sentence under Division 2 or 3 of Part 2 is appropriate, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender under that sentence. 4. The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law. 5. This section does not apply to the determination of a sentence if proceedings (other than committal proceedings) for the offence were commenced in a court before the commencement of this section." 4 Section 21A now provides:- "1. General In determining the appropriate sentence for an offence, the court is to take into account the following matters:- (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 2. Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:- (a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence." 5 That new s.21A commenced on 1 February 2003 and is presently in force. That section provides that in determining the appropriate sentence for an offence, the court is to take into account aggravating matters referred to in subsection (2) mitigating factors referred to in subsection (3) and any other objective or subjective factor affecting the relative seriousness of the offence. The section does not exclude the court taking into account any other matters that are required or permitted to be taken into account. 6 I have had regard to each of the aggravating factors and mitigating factors as are provided in s.21A(2) and (3). 7 In particular, however, I have had regard to the matters to which Justice Barr referred and which are referred to in the mass of exhibited material provided to me, which had also been provided to Justice Barr, and which is marked Exhibit A on sentence. That material includes the offender's prior record, both in custody and out of custody and psychiatric reports referring to the offender's mental state for many years. I have also had regard to Exhibit B which refers to the offender's conduct whilst in gaol. 8 Justice Barr when sentencing the offender published an extensive judgment to which conveniently I might now refer for the circumstances of the offence. He said:- "In September 1998, the deceased, who had been convicted of sexual offences involving school children, was placed in the same pod in custody in the Junee Correctional Centre as were housed, the offender and a number of other persons. The fact of that conviction appears to have been suspected by other persons including the offender in the pod. Papers were obtained from the deceased's cell confirming the suspicion, and a discussion took place amongst a number of the prisoners as to giving the deceased a hiding with a view to getting rid of him from that part of the correctional complex. The offender volunteered to thump the deceased. He and another prisoner were seen to go to the deceased's cell and attack him violently." 9 Justice Barr concluded:- "The offender was concentrating on the deceased's head and the other inmate on the lower part of the body. The offender was wearing joggers and delivered a large number of kicks to the head." 10 The evidence before me is to the same effect as was the evidence before Justice Barr. I too am persuaded that the offender attacked the head and upper portion of the deceased. The cause of death was blunt force head injury, the damage to the deceased's head was referred to by Justice Barr in detail. It was appalling. These injuries were inflicted either wholly by the offender or at least substantially by him. He was, however at the time carrying an injury to his knee and wore an elastic bandage to support it. I do not see, despite his complaint to this effect, that he was so impeded in what he did. 11 He was born in Australia on 2nd May 1972 of Lebanese parents. He is the third eldest of nine children. His family has been described as dysfunctional. He was, himself, the subject of physical and sexual abuse at the instance of his father. He became violent at an early age. He began drinking alcohol and resorted to illegal drugs in his early teens. In September 1991, as Justice Barr relates, he was convicted of several robbery offences and sentenced to imprisonment. Thereafter he has an appalling history of criminality and confinement. 12 That history is also characterised by behaviour on his part that attracted observations, if not diagnosis, that he was suffering from schizophrenia. His history within gaol indicates that for a very long period of time he has misconducted himself aggressively and violently and particularly when under the influence of illicit drugs. He participated in programmes, which at least up until the time Justice Barr sentenced him, did not appear to have assisted his behaviour or assisted him to refrain from illicit drugs, notwithstanding that he had received intensive psychological counselling and assistance. 13 He has attempted suicide and mutilated himself on a number of occasions. He has been confined for treatment purposes, and because of the risk of self-harm, in custody more onerous than otherwise would have been the case. 14 He is a person who is described as deeply disturbed and as Justice Barr had noted, was referred to by Professor Finlay-Jones, psychiatrist "as one of the worst cases of borderline personality disorder" the Professor had encountered. He has spent all but a few months of his adult life in prison. The violence and sexual assault perpetrated on him has left him severely and emotionally disturbed, such that it lead him to make violent attacks on others, particularly those who he thought might have a sexual predisposition to other than orthodox relations. 15 His history in gaol clearly evidences that he was a person who was unable to control himself and refrain from attacking those he thought might have had some paedophilic tendency. Those attitudes on his part were euphemistically described as "association difficulties" and because of them he was unable to progress in the classification system. The psychiatric reports from Dr. Nielssen and Dr. Clarke also diagnose "severe personality disorder". 16 I also do not accept, as Justice Barr did not accept, the vague references to schizophrenia or transitory psychotic states. I accept, as Justice Barr also accepted, that up to the time of the commission of this offence and indeed for sometime afterwards, the offender suffered from sudden episodes of anger in which he acted violently and which he found difficult to control. That, I agree with Justice Barr, resulted in his developing the attitude, not only to persons other than of an orthodox sexuality, but in particular to persons thought to be homosexual, of hatred, producing real danger for those who he might come in contact with whom he believed to be homosexual. 17 Specifically I find that it was that attitude of mind which gave rise to the commission of this offence, an offence in which an entirely vulnerable man had been placed in circumstances, which, I am fully satisfied on the evidence tendered before me in this trial, left him completely at risk and without adequate security and liable to be attacked as he was. 18 All of that said, Justice Barr expressed the hope that the offender might be able to modify his behaviour and referred to a psychological report which gave some indications favourable to the offender. In particular, Justice Barr adverted to the offender, himself, objecting to his transfer to Junee, in that he might have great difficulty in dealing with persons "incarcerated for sexual assaults on children". 19 It is a matter of great wonderment, bearing in mind the offender's history, bearing in mind that objection and bearing in mind the evidence in this trial of a lack of security, in the pod, that both he and the deceased should find themselves in a pod with so little security as was provided on this occasion. 20 The offender has not given evidence before me. He did not give evidence before Justice Barr, but there has been admitted a report which I directed at the instigation of counsel for the offender, dated 26 April 2004 from Mr. Metcalf to the Governor of the Goulburn Correctional Complex. 21 Mr. Metcalf refers to his having known the inmate for a greater period of time than just that dating back to April of 2000. He refers in 2000 to the inmate not being actively involved in the case management process and having been the subject of internal disciplinary action for fighting. There were notations indicating abusive behaviour. Little had been recorded further of his behaviour up until 30 April 2001, but then it was recorded that he was apparently complying with unit routine, although there had been supplementary action for abusive behaviour and a for charge of fighting. This had apparently been out of accord with the offender's conduct, as earlier recorded at the gaol, as being more intensively violent than for any other period. 22 On 1 May he was assaulted in the showers by an unknown assailant and locked up for his own protection. At that time he was a normal protection inmate. He went on strict protection and through to the end of the year continued to get "below average" notations. However, at this point in time, unlike earlier, he was willing to make contact with welfare. Through the year 2002 his behaviour was apparently suitable whilst at work, and improved. After initial problems in the year, his attitude and behaviour in the unit, as well as at work was noted as "satisfactory". He still however failed to participate in the case management process. 23 There was a minor breach later in the year. Officer Metcalf records, however, the following for the year 2003:- "During 2003 inmate Robinson has improved his interactive skills between staff and himself and with other inmates. In particular his ability to co-exist and to communicate with inmates of minor paedophilia crimes was obvious during this period. He commenced to concentrate on his own time in gaol and where in the past was impatient to inmates convicted of paedophile related crimes as the yard delegate pro-actively delegated sought to ensure that other inmates in the yard did not take out their own justice on inmates who had committed such crimes. This is to this day, this is a definite noticeable change in the inmates behaviour." 24 He being yard delegate performed the yard duty creditably, there was no disciplinary action required of him in 2003 and his interactive approach apparently prevented the occurrence of serious incidents through his direct intervention. Officer Metcalf says:- "Overall a real turnaround on previous behaviour occurred during 2003." 25 The conclusion expressed by officer Metcalf is that there is no comparison between his behaviour now with what his behaviour had been. His ability to reason and to take direction has improved. Apparently he no longer tolerates illegal drug use and seeks to prevent it. The officer says that his behaviour bearing little resemblance to that of his behaviour in the past. 26 It seems as if Justice Barr's hopes have had for his rehabilitation have received some further support so far as is shown by the offender's conduct during the past 18 months. 27 Justice Barr records reference to submissions made to him (but not to me) that some encouragement or inciting lay at the bottom of the assault on the deceased. Justice Barr did not accept that such a thing, even if it had occurred, in any way mitigated, to any significant degree, the offender's culpability. I share that view. 28 I was concerned, however, not only because in my view, this was a most serious offences, though with Justice Barr I agree not one that fell in the worst category of murders, at Justice Barr's remarks which appeared to be borne out by the material before him at that time that:- "The offender had an apparent inability to stop himself going and attacking (persons) who had given him no personal offence." 29 Justice Barr was of the view and I share that view that the offence calls "for a strongly deterrent sentence", that no contrition or remorse has been expressed by the offender. 30 It is common ground that the sentence should date from the date fixed by Justice Barr as providing for the commencement date of the additional term of the sentence the offender has served when he murdered the deceased. I agree, and for myself find special circumstances. 31 Section 44 of the Crimes (Sentencing Procedure) Act 1999 as it stood at the time at which Justice Barr passed his sentence provided for the fixing of the term of imprisonment and thereafter the fixing of a non-parole period and that the prima facie relationship absent special circumstances of the head sentence and non-parole period should be as referred to in s.44(2). 32 That section has now been replaced by a new s.44, which requires the court to first set a non-parole period for the sentence and thereafter to turn to the head sentence, but which retains the same proportionality as the former section provided again by virtue of s.44(2). 33 It has been submitted to me, both by counsel for the offender and also the Crown that the end result would not make a material difference to the relevant sentence, particularly in the light of the submissions that have been put to me by both counsel, that except for the matter raised in Mr. Metcalf's report to which I have referred, the considerations on sentence, I would find to be, the same as Justice Barr found them to be. 34 In his written submissions on sentence, Mr. Paish has drawn my attention to the views of Street C.J. in The Queen v. Gilmore (1979-1980) 1 ACR 416 at 419 where the Chief Justice referred to the sound principle of sentencing; that on a new trial following the quashing of a conviction in the Court of Criminal Appeal, the offender should not ordinarily receive a longer sentence or non-parole period than had originally been imposed. 35 Subsequently in Regina v. Bedford (1986) 5 NSWLR 711 at 714 his Honour clarified that the principle was a rule of policy which indicated a prima facie approach. 36 Mr. Paish, counsel for the offender, submitted that I should take an approach, recognising that my discretion was independent and unfettered, but that for the sake of consistency absent any change in circumstances, of following the course taken by Justice Barr. He drew my attention to a number of matters; that there was little premeditation, no planning, the attack was of short duration and that he submitted, the intent was no more than, although it was at least as much as, an intent to inflict grievous bodily harm. He submitted that the Judicial Commission sentencing statistics supported Justice Barr's sentence and, that the events of the four years that had elapsed since the passing of that sentence indicated real hope for the applicant's future. That hope, of course, is now to some extent confirmed in Mr. Metcalf's report. 37 In the Crown's written submissions it drew attention to five particular aggravating features referred to in s.21A. The involvement of violence, the prior record, the commission of the offence in company, that it was motivated by hate or prejudice and the vulnerability of the victim. In particular the Crown referred to the physical vulnerability of the victim as being a much smaller man than the offender. 38 The Crown referred to a statutory mitigating factor, or a factor which, by statute, is characterised as mitigated, that is to say, that the offence was not part of a planned or organised criminal activity. I would have thought, for myself, that had the offence been part of a planned or organised criminal activity, that would be an aggravation of the offence rather than the absence of organised or planned criminal activity mitigating the offence. But in this case there is no suggestion that it was a planned or organised criminal activity, except to the extent there was the prior discussion and then the volunteering by the offender to "thump" the deceased. 39 The Crown submitted there is no evidence of any relevant circumstances which would require a lesser sentence and that in the absence of evidence warranting a lesser sentence or lesser non-parole period, no lesser sentence or lesser non-parole period would be imposed. That, again, is on the basis of consistency. 40 One of the principles underlying sentences is that there should not be an inconsistency of sentences, whether between co-offenders or between sentences passed for the same crime by different judges. As Sir Anthony Mason said in Lowe v. The Queen (1984) 154 CLR 606, such an inconsistency bears the "badge of unfairness", but where there is a matter which sufficiently distinguishes one offender from another, or where the circumstances in which a sentence comes to be passed sufficiently differs from such circumstances as they were at the time at which another sentence was passed, the distinction is one which requires that effect be given to it. 41 Having regard to the principles to which I referred when passing sentence in Regina v. Harrison & Georgiou (unreported, 19 December 2003) following a retrial after a successful appeal, I was minded to pass myself, particularly with reference to the principle of consistency, the same sentences as had been passed by Justice Barr with the same non-parole period. 42 Having regard however to the report provided by Mr. Metcalf and having regard particularly to the fact that a non-parole period is the minimum period an offender must serve for the crime, the full term being the period the offender is liable to serve for the crime unless released beforehand, and having particular regard to what officer Metcalf has said concerning the prospects of reform, I have determined that, although the head sentence should be the same, the non-parole period should be 12 months shorter than the period that had been provided in the sentence by Justice Barr. 43 Would you rise please, Mr Robinson. 44 Harry Robinson you are sentenced for the crime of the murder of John Thomas Kennett to imprisonment for a term of 22 years commencing on 12 December 1999 and expiring on 11 December 2021. I set a non-parole period of 14 years, having found special circumstances, not only those found by Justice Barr but also those referred to in the report of Mr. Metcalf. You will become eligible to be released on parole on 11 December 2013. **********

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Judgment (12 paragraphs)

Cases Cited (2)

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