R v Benjamin John AURISCH

[2007] NSWDC 173

CITATION:	R v Benjamin John AURISCH [2007] NSWDC 173
HEARING DATE(S):	8 June 2007
JUDGMENT DATE:	8 June 2007
EX TEMPORE JUDGMENT DATE:	8 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonmen consisting of a non-parole period of eighteen months and a head sentence of two and a half years. It is a condition of the offender’s release to parole that he be supervised by the Probation and Parole Service and that during that period of supervision, he attend any drug rehabilitation programmes or alcohol rehabilitation programmes recommended by the Probation and Parole Service.
CATCHWORDS:	Criminal Law - Sentence - Robbery - "Bag Snatch" - Plea of Guilty - Admissions to Police - Violation of Personal Safety - Criminal History - Failure to Take Advantage of Leniency
PARTIES:	Crown Benjamin John Aurisch
FILE NUMBER(S):	07/11/0278
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Benjamin Aurisch appears for sentence today after having pleaded guilty at an early stage to an offence of robbery. This was the type of robbery which is conveniently described by the expression, a “bag snatch”. The victim left her home one morning, carrying her handbag. The offender was across the road. He moved quickly towards her, grabbed her handbag, which was over her left shoulder, and pulled it away from her. The victim attempted to prevent the offender taking her handbag, but the strap broke and she fell to the ground. As she did so, an Ipod fell out of the bag. The offender initially took off, but noticed that the Ipod was on the ground and so he took it as well and ran away.

2 Police came very shortly afterwards. They soon discovered the offender walking nearby. He was arrested and property taken from the victim was found in his possession. He made immediate admissions to police. The victim had been able to find the handbag, noticed that it had been torn at one end and that her mobile phone and Ipod were missing. Police handed back to the victim her mobile and Ipod, which they had taken from the offender. The offender went to the police station, where full admissions were made.

3 The offender is now twenty-four years of age. He completed his Higher School Certificate and commenced an apprenticeship as a carpenter. He however lost that job when he lost his driver’s licence. He has only seven months to go before he completes his apprenticeship. Having lost his job he seems to have fallen into an unsatisfactory lifestyle, consuming alcohol to excess and taking drugs regularly. He commenced taking drugs at about twenty years of age, but it seems that his drug use significantly escalated once he lost work. The offender said that he is not happy with himself and not happy with his lifestyle and for that reason he turned to drugs and alcohol.

4 The offender has a criminal history. Somewhat remarkably, although there are sixteen or seventeen offences on it, he has never served any period of custody up until he was refused bail on the present matter. He has been dealt with leniently on many, many occasions. He has been given s 9 bonds and s 12 bonds and on occasions fined. The offender has failed to take advantage of the leniency that was offered to him. At one stage he was on a s 11 remand and he barely completed that remand period satisfactorily, because he continued to take drugs. He has breached his s 12 remand and is due to be sentenced in the Local Court for that in a short period of time. Indeed he was on a s 9 bond and on bail at the time he committed these offences. I refer to these matters in particular, because they indicate in my view the substantial need to impose a sentence upon the offender which will personally deter him from committing similar offences in the future. The time to get tough with Mr Aurisch arrived some time ago. He has been done no favours by being dealt with leniently, giving him, no doubt, the impression that he could continue to offend, in various ways, without ever being punished. It needs to be made clear to the offender in no uncertain terms that his conduct is serious. His conduct is indeed disgraceful and punishment is required to deter him from committing similar offences in the future.

5 Offences of this kind are serious. The authorities that the crown reminded me of, speak about not only the effect on the victims, but also on the concept that these offences represent a significant breach of the peace. Citizens should be free to walk on the streets and go about their daily affairs without fear of physical violence. The victim in this case was entitled to go about her business without fear of being attacked and robbed. She no doubt has suffered as a result of this offence being committed upon her. And the community in general suffers, people walk along the street apprehensively, clutching their handbags close to them because of offences of this nature.

6 In this case there is no evidence as to the harm that was occasioned to the victim. But I am satisfied that there does not need to be specific evidence to justify the conclusion that she will have been significantly affected by the offence committed upon her. I have got no doubt that she is now more apprehensive when she walks along the road with her handbag; that she is apprehensive when she sees strangers; and that these feelings of apprehension have had a significant impact upon her daily life.

7 A significant sentence is needed in this case because of general deterrence as well. No one should have the feeling that they can commit offences such as this and receive a slap on the wrist. The maximum penalty for offences of this kind is fourteen years imprisonment, which is a good indication of the seriousness with which such offences should be viewed.

8 A submission was put to me that this offence was low in the range of objective seriousness, but when pressed the only matter that could really be identified was that there was no significant financial loss to the victim. That is a matter I will take into account, but I doubt very much that the victim is terribly concerned with her financial loss and indeed I find that she will be much more concerned about the violation of her personal safety that this offence represents.

9 There is no evidence that this offence was planned, but on the other hand, there is no evidence that it was not. The crown can not prove to me beyond reasonable doubt the aggravating factor, but the offender can not prove to me on the balance of probabilities, that the mitigating factor is present either.

10 The offender has been in custody since 5 January 2007, which is the day he was arrested for this offence. The sentence that I will impose will of course therefore start from that day.

11 The offender has shown his remorse, he made full admissions to police and indicated to me that he felt ashamed of what he had done. I will bear that in mind in formulating the appropriate sentence.

12 I am unable to find that there are good prospects of rehabilitation. Certainly there are prospects and the offender does indicate a desire to rehabilitate himself, but whether he is able to do so or not, remains to be seen. In view of the criminal history and his failure to take advantage of leniency offered to him, the offender should not think that it is going to be an easy road for him. I will discount the sentence that I would otherwise have imposed by twenty-five per cent to reflect the utilitarian value of the plea of guilty.

13 Both the crown and Mr Morris for the offender relied on sentencing statistics and decisions of the Court of Criminal Appeal, not only as to the principles which bind me, but also as to the appropriate tariff. I have considered those matters and they are helpful in guiding me to the appropriate sentence to be imposed in this case.

14 I will make a finding of special circumstances. This is the first time that the offender has spent any time in custody. He is only twenty-four and there is a clear need for the offender to be supervised and assisted upon his release from custody.

15 At one stage during the course of submissions, I raised for consideration the possibility that I would make a larger than usual adjustment in the ratio between non-parole period and head sentence, but make it a condition of his release on parole that he only be released to parole when the offender enters a residential drug rehabilitation programme. What I had in mind was a shorter period of custody, followed by a period of quasi custody. I still think that is perhaps the best thing that could happen to the offender and thus the community. But even with the assistance of Mr Morris and the crown, it was proved impossible to formulate an appropriate order which took account of the possibility that through no fault of his own the offender would be denied entry into a drug rehabilitation programme. To take an obvious example, such programmes may well be full at the time the offender completes his non-parole period and it would of course be unjust that he remain in custody because he is unable to enter a drug residential rehabilitation programme in those circumstances.

16 For that reason I have decide to proceed more traditionally. It is a fundamental rule in sentencing that the objective gravity of an offence must be reflected in the sentence for it. A related rule is that the non-parole period cannot be reduced to the extent that it to fails to reflect the objective gravity in the offender’s conduct.

17 I regard the offender’s conduct as extremely serious indeed. For those reasons, the appropriate sentence is this: The offender is sentenced to imprisonment. I set a non-parole period of eighteen months to commence on 5 January 2007, it will expire on 4 July 2008, on which the day offender is to be released to parole. I set a head sentence of two and a half years. It is a condition of the offender’s release to parole that he be supervised by the Probation and Parole Service and that during that period of supervision, he attend any drug rehabilitation programmes or alcohol rehabilitation programmes recommended by the Probation and Parole Service.

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