R v Andrews

[2020] NSWDC 515

District Court

New South Wales

Medium Neutral Citation:

R v Andrews [2020] NSWDC 515

Hearing dates:

8 July 2020

Date of orders:

8 July 2020

Decision date:

08 July 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Term of imprisonment of 5 years and 7 months with a non-parole period of 3 years

Catchwords:

CRIME — Violent offences — Armed robbery — Dangerous weapon

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

R v Henry [1999] 46 NSWLR 346

Category:

Sentence

Parties:

Regina (Crown)
Blake Andrews (Offender)

Representation:

Solicitors:
Mr J MacMillan (Crown)
Mr D Gibbons (Offender)

File Number(s):

2019/00254092

Publication restriction:

Nil

Judgment

1. Blake Victor Andrews, 22 years of age, appears for sentence in relation to one offence of robbery armed with a dangerous weapon (firearm), an offence pursuant to s 97(2), Crimes Act 1900 (NSW). The maximum prescribed penalty for that offence is 25 years imprisonment.

2. The offender pleaded guilty to that offence at Wyong Local Court on 7 April 2020. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

3. The offender has been in custody bail refused since his date of arrest, 15 August 2019. Since that time, he has served a non‑parole period of six months in relation to an unrelated matter. That non‑parole period dated between 9 December 2019 and expired on 8 June 2020.

4. He is also serving a revocation of an intensive corrections order and was ordered to serve a balance of nine months, three weeks and four days. That revocation is from 15 August 2019 and also expired on 8 June 2020. Accordingly, the offender has been in custody solely in relation to this offence since 8 June 2020. I will say more later in my remarks about the appropriate commencement date for the sentence.

The Agreed Facts

5. As at the date of the offending, the offender was 21 years of age. He was living with his partner and her children in Noraville.

6. The victim is Ms Hardeep Kaur, aged 42 years. Ms Kaur is the owner with her partner of the “King of the Pack” tobacconist shop at the San Remo Supermarket.

7. About 5.30am on 3 August 2019, the victim opened the tobacconist shop. A regular customer, Mr Ivimy, arrived and assisted with putting the signs out the front prior to coming back into the shop. Shortly thereafter, two men with their faces and bodies covered arrived, each possessed a firearm and were yelling demanding that the victim place the money from the cash register into a black Nike branded bag.

8. The entire event was captured on CCTV. The CCTV shows that this offender was wearing grey coloured tracksuit pants with Everlast written in white on the left leg and a black long sleeved hooded jumper that had the word, Alessi, written across the chest and a red and white emblem above it, Alpha underwear under the tracksuit pants and a black mask over his face. The offender was not wearing any gloves.

9. The other offender was wearing a white scarf over his head and face, all black clothing and white and grey gloves. This offender, who has not been identified, was holding the black Nike branded bag. The victim described this offender as skinny and not as tall as the other man. Mr Ivimy estimated him to be 5 foot 10 inches with a slim build. Mr Ivimy observed that both males spoke in an Australian accent. The victim opened the till and pulled the notes out and gave them to the unidentified offender.

10. Whilst this was occurring, this offender reached out and grabbed the till drawer which made it fall on the ground. Both offenders then demanded cigarettes from the victim before the unidentified offender ran towards the front door. The victim then grabbed a baseball bat from behind the counter and tried to hit the offender, who then pointed the firearm at the victim and yelled at her before leaving the building.

11. Mr Ivimy went to the door to see if he could see where the offenders ran. He did not see where they went to and did not hear a vehicle leaving.

12. Police were immediately called to attend the tobacconist shop. The amount of money stolen during the commission of the offence was $1,690.

13. During the course of the investigation, police noted that charge photographs of this offender taken on 27 May 2019 showed that he was wearing the exact same Alessi branded jumper as appears in the CCTV.

14. Police applied for and were granted a search warrant which they executed at the home of the offender on 15 August 2019. The offender was arrested and taken to Wyong Police Station. He did not participate in an interview with police.

15. During the execution of the search warrant, police seized the following items believed to have been used in the robbery of the tobacconist shop:

1. An imitation firearm found in the toilet cistern in the ensuite bathroom of the master bedroom;

2. A single leg of black tights with holes cut in it to form a balaclava matching the one worn by the offender in the CCTV. This item was found in the safe in the walk-in wardrobe in the master bedroom;

3. A pair of grey Everlast trackpants matching the ones worn by the offender in the CCTV;

4. A pair of Alpha underwear matching those worn in the CCTV; and

5. A black Nike branded bag matching the one worn in the CCTV.

16. Forensic testing of these items found the offender’s DNA on the stocking converted into a balaclava and handles of the black Nike bag. The imitation firearm found at the offender’s residence was noted by police to be similar in appearance to the one seen in the CCTV.

17. Those facts clearly disclose very serious objective criminality in circumstances where the victim was confronted in the early hours of the morning whilst working by two offenders both armed with firearms. Both general and specific deterrence are important considerations on sentence.

Assessment of objective seriousness

18. In determining the objective seriousness of the offence, I have taken into account the following factors:

1. The offence was committed in company with another offender who was also armed with a firearm;

2. The amount of money taken was approximately $1,600 which, whilst not a small amount, is towards the lower end of the range;

3. The “dangerous weapon” used during the commission of the offence was an imitation firearm recognising that “dangerous weapon” is defined in s 4 of the Crimes Act to include a firearm or imitation firearm, a spear gun or a prohibited weapon pursuant to the Weapons Prohibition Act 1998 (NSW). Schedule 1 of the Weapons Prohibition Act lists a number of items, including knives and other weapons, that are more serious than an imitation firearm in circumstances where they are in fact capable of inflicting harm;

4. There was some planning in relation to the commission of the offence in circumstances where both offenders had their faces covered to avoid detection and were armed with firearms;

5. Whilst there was no actual violence, there was a threat of violence in circumstances where the firearm was pointed at the victim. Clearly, the victim would have been unaware that the firearm was an imitation firearm;

6. The victim was a retail operator.

19. The Crown submitted that the objective seriousness was in the middle of the range. Mr Gibbons on behalf of the offender submitted that the objective seriousness was below the middle of the range.

20. Having regard to the above factors identified, I am satisfied that the offending is just below the middle of the range.

The Henry guideline

21. In determining the appropriate sentence, I have taken into account the guideline judgment of R v Henry [1999] 46 NSWLR 346. Whilst the guideline relates to armed robbery with an offensive weapon which has a maximum prescribed penalty of 20 years, the guideline remains relevant as a guidepost. In R vHenry, Spigelman CJ noted that sentences for armed robbery with an offensive weapon with the characteristics identified in R vHenry should generally fall between four to five years. The guideline was on the basis of a late plea of guilty.

22. It was conceded on behalf of the offender that this offending is more serious than the typical R v Henry case in circumstances where the offending involved the use of a dangerous weapon and was also committed whilst in company.

Aggravating factors

23. I am satisfied that the offence was committed while the offender was on conditional liberty. The offender was subject to a community corrections order and an intensive corrections order at the time of the commission of the offence.

No victim impact statement

24. The Court has not received a victim impact statement from Ms Kaur. I have no doubt that the incident would have been wholly terrifying for her in circumstances where, as I previously indicated, she would have had no appreciation that the firearms being used were imitation. I say that with the caveat that there is no information about the firearm being used by the second offender.

25. One of the purposes of sentencing is to recognise the harm done to the victim (see generally s 3A(g),Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

26. The offender is now 22 years of age. He has a criminal history commencing relatively recently in 2018 when he was dealt with for an offence of larceny. He received a conditional release order for 12 months. He was called up in respect of that offence in 2019 and was placed on a community corrections order. He was again called up in 2019 and placed on an intensive corrections order for three months.

27. In that same year, he was dealt with for an offence of drive whilst suspended and drive with illicit drugs present. In respect of each of those matters he received a community corrections order and a fine.

28. In 2019, he was dealt with for drive whilst disqualified and received a fine. He was called up in respect of that matter and an intensive corrections order for nine months was imposed. In 2019, he was also dealt with for offences of police pursuit and drive whilst disqualified. In respect of each of those offences he was sentenced to an intensive corrections order for 12 months.

29. In January 2020, he was dealt with for two offences of deal with proceeds of crime. In respect of each of those matters, he was sentenced to a total term of imprisonment of nine months with a non-parole period of six months. He has been serving that sentence whilst in custody for the current offending. The non-parole period expired on 8 June 2020.

30. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence.

31. The following material was tendered on behalf of the offender:

• Exhibit 1 - Report of Ms Grujoska, psychologist dated 29 June 2020;

• Exhibit 2 - Defence written submissions.

32. The offender also gave evidence during the sentence proceedings.

33. The offender’s background is outlined in the report of Ms Grujoska. She interviewed the offender via AVL on 5 June 2020.

34. The offender reported that he was born in Blacktown. He indicated he is of Aboriginal background from his mother’s side and Australian from his father. His father died when he was three years of age. He described a good relationship with his mother who he said was supportive, caring and kind. His mother subsequently re-married and he has a 15 year old sister. He described a close relationship with his younger sister.

35. He reported that when he was around 18 years of age, he discovered that his father had died as a result of suicide. He indicated that that caused a relationship breakdown with his mother because he felt he had been lied to throughout his life. He reported that he had recently reconnected with his mother and he is focussing on building his relationship with her since being in custody.

Education and employment

36. The offender reported that he attended St Mary’s Catholic Public School from Kindergarten to Year 6. He described that this was a good school and he had many friends, however, occasionally he would get into trouble. He reported that he was accepted into a selective class at Gorokan High School. Unfortunately, he was expelled from that school in Year 8.

37. He then went on to attend Lakes Grammar Anglican School until Year 9 where, again, he was expelled. He was then sent to Wyong High School. He reported that he was expelled and finally left school in Year 11. He has not completed High School. He said he was being expelled because of fighting and he recalled feeling enraged during his years of puberty and adolescence.

38. The offender after leaving school commenced an electrical apprenticeship for three years. He reported that he had worked for two different employers, however, unfortunately, he did not complete his apprenticeship because he lost his licence. He found it difficult to get to the various work sites. He subsequently reported that he would like to complete his apprenticeship because he enjoyed working in that industry.

Circumstances leading up to the offending

39. Apart from having lost his employment, the offender reported that he separated from his long term partner approximately six or seven months before the offending. He has a one year old daughter with that partner. He described that he was deeply affected by the separation from his partner. They had been in a relationship for 18 months.

40. He said his mental health deteriorated in those circumstances. He then began spending time with people that he described as the “wrong crowd”. He reported that these people were over ten years older than him. They were drug users and overall, were a negative influence. He did note that he has ceased any association with these people.

41. In the context of the ending of his long term relationship, the offender reported that he began to smoke ice on a daily basis with the persons that he was then associating with. He described that this was a way of coping with the emotional pain at the time. Prior to these difficulties, the offender reported that he had no previous mental health issues.

42. At the time of the offending, the psychologist noted the following background:

“Mr Andrews reported he was heavily using the drug ice for several months and at the time of the offence he stated that he had been using ice daily and had been on a “bender” where he did not sleep and was constantly using the drug leading up to the offence. As a result, he stated that not much thought went into the decision making process and found that he just went along with the crime as his friend suggested it that morning”.

43. I note at this stage that self-induced intoxication from drugs is not a matter in mitigation on sentence (see s 21A(5AA), Crimes (Sentencing Procedure) Act 1999 (NSW)).

44. The psychologist noted that the offender had expressed his remorse in relation to the offending. He described that he actually lives in the neighbourhood where the offending occurred and he is ashamed of what he has done to the locals and also their business. He reported that he would like to go to the business one day and apologise for his behaviour.

45. In relation to his future plans, he indicated that he intends to remain drug free and no longer associate with those people who he regarded as a negative influence. He also wants to return to the workforce and a friend has offered him employment. He plans living with his mother upon release from custody.

46. The psychologist conducted a number of psychological tests and concluded as follows:

“Mr Andrews’ elevated scores on the borderline personality scale suggests that he would have been experiencing severe difficulties with emotional regulation. As a result, his relationship breakdown therefore would have led to his impulsivity and excessive use of the drug ice as a means of coping. Furthermore, his report of substance use on the day of the incident is expected to have impacted on his cognitive functioning such as impairment across decision making ability and judgment which are potential contributing factors to his behaviour in the offence”.

47. The offender told the psychologist that he was willing to undergo treatment to improve himself and also to prevent further offending. The psychologist recommended that the offender engage in the intensive drug and alcohol treatment program currently operated at John Morony Correctional Centre and also that he undertake the EQUIPS addiction program and also the aggression program.

48. He was also of the opinion that in relation to his psychological health, he would benefit from participating in the RUSH program, the Real Understanding of Self Help. Once in the community it was recommended that the offender engage with a psychologist to assist with addressing his personal issues relating to his relationships and his emotional issues and that he would also benefit from ongoing supervision by Community Corrections to ensure ongoing abstinence from prohibited drugs.

Submissions of the parties

49. Both the Crown and Mr Gibbons on behalf of the offender relied upon comprehensive written submissions supplemented by further oral submissions.

50. I have taken those submissions into account in determining the appropriate sentence.

Prospects of rehabilitation

51. I am satisfied the offender has reasonably good prospects of rehabilitation. He is no longer using drugs. He has vocational skills that will enable him to find employment upon release from custody which will improve his stability and he has the ongoing support of his mother. In addition, he is still young. The Court is hopeful that he maintains his current commitment to being drug free so he can look forward to a much more positive future. For those reasons, I am also satisfied he is unlikely to re-offend.

52. The offender gave evidence before me during the sentence proceedings. He told the Court that he was currently being held at the Lithgow Correctional Centre. He indicated he was sorry for traumatising the victim. He was regretful and he did not want people to think in his local area that they could not go to the shops.

53. He described that shortly before the offending he was going through a “rough patch”. He had lost his licence and his relationship had ended. His child is now 14 months old. He described his drug use at the time of the offending. He said he is no longer using drugs and has been abstinent since being in custody.

54. In relation to his situation upon release, he said the use of drugs is completely out of the question. He now appreciates that it has ruined his life. In relation to his future plans he confirmed that he does want to start work again. He would like to get full time custody of his daughter and he has a job with a concreting company at Budgewoi with a person, Mitchell West who is a family friend.

55. He also indicated that once he gets his licence back he would also like to pursue the completion of his apprenticeship. He confirmed that he is also going to live with his mother at Toukley.

56. He gave evidence in relation to the impact of the COVID-19 pandemic upon him whilst in custody. He said before the COVID-19 pandemic, he would see his daughter every week via a contact visit that his mother was organising. Since the COVID-19 pandemic which commenced in March 2020, he now has a once a fortnight visit with his daughter which is a 20 minute video conference call.

57. He indicated that he almost went two months with no contact at all. In addition to the restriction upon his access to visitors, he also has not been able to complete programs or work. He said that he does intend to do programs whilst he is in custody. He is unsure at this stage what programs are offered at the Lithgow Correctional Facility.

58. He understands that he needs to stay completely away from the anti-social influences that were part of his life prior to entering custody. In his words, he wasted two or three years of his life on drugs.

Remorse

59. Having regard to the evidence of the offender, I am satisfied that he is genuinely remorseful for his conduct and that he accepts full responsibility for his offending. I also note that he expressed remorse to the psychologist.

Special circumstances

60. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period in circumstances where this period of custody is his first time in gaol. In addition, given his issues with drug dependence and also psychological issues, he would benefit from a greater period on parole. It was submitted that he has better prospects of rehabilitation than often seen by persons before the Court who are being sentenced for this offence. I agree with that submission in circumstances where it is clear that this offender had significant potential before his demise as a consequence of drug use.

61. In circumstances where the sentence imposed will also be partially accumulated upon the sentence being served for the unrelated matter and also the revocation of the intensive corrections orders, I am also satisfied that is a basis to vary the statutory ratio and I do propose to vary the ratio pursuant to s 44 (2), Crimes (Sentencing Procedure) Act 1999 (NSW).

Totality

62. The offender, whilst in custody since his arrest for this offence as I previously indicated, has served a revocation of an intensive corrections order and an unrelated sentence, the non-parole period of which expired on 8 June 2020.

63. The revocation of the intensive corrections order also expired on 8 June 2020. I have considered the question of totality in circumstances where the reason for the breach of the intensive corrections order was the commission of this offence and also the unrelated offence. In those circumstances, I propose to partially backdate the sentence for the offence today to 15 January 2020.

The effect of COVID-19

64. Having regard to the evidence of the offender, I am satisfied that his custodial circumstances have become more onerous since the commencement of the COVID-19 pandemic. I accept that his access to visitors has been severely constrained and also his opportunities for work and participation in programs. In those circumstances, there will be some moderation of the otherwise appropriate sentence.

Determination

65. In determining the appropriate sentence, I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.

66. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

67. I have had regard to the objective gravity of the offence, the prescribed maximum penalty of 25 years imprisonment and the offender’s subjective circumstances.

68. Mr Andrews, in relation to one offence of robbery armed with a dangerous weapon being a firearm pursuant to s 97(2), Crimes Act, you are convicted.

69. I sentence you to a non-parole period of three years to date from 15 January 2020 and expire on 14 January 2023 with a balance of term of two years and seven months to expire on 14 August 2025.

70. The total term of the sentence is five years and seven months.

71. A starting term for that sentence was seven and a half years which I discounted by 25% for your plea of guilty.

72. The first date you will become eligible for parole is 14 January 2023.

73. I have found special circumstances and I have varied the ratio between your non-parole period and your parole period so you will spend less time in custody and more time on parole.

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Decision last updated: 08 September 2020