R v Bonnell

Case •

[2020] NSWDC 270

•

04 June 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Bonnell [2020] NSWDC 270
Hearing dates: 22 May 2020
Decision date: 04 June 2020
Jurisdiction:Criminal
Before: Mahony SC DCJ
Decision:

Full-time custodial sentence. For orders see [94]

Catchwords: Multiple offences of robbery in company, assault with intent to rob in company, armed with intent to commit indictable offence; young offender; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Summary Offences Act 1988
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Howard v R [2019] NSWCCA 109
Pearce v R (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v Salieb [2005] NSWCCA 85
Yildiz v R [2020] NSWCCA 69
Category:Sentence
Parties: Director of Public Prosecutions (Crown)
Luc Bonnell (Offender)
Representation:

Counsel:
M Johnston (Offender)

  Solicitors:
A Brown (Crown)
M Taylor (Offender)
File Number(s): 19/351195
Publication restriction: Nil

REMARKS ON SENTENCE

  1. The offender is to be sentenced in respect of the following offences to which he has entered pleas of guilty:

  1. H323326994/3 – Custody of knife in public place (first offence), pursuant to s 11C Summary Offences Act 1988.

The offence occurred on 6 November 2019 and the maximum penalty proscribed is 2 years imprisonment and/or a fine of $2,200.

  1. H323326994/6 – Robbery in company pursuant to s 97(1) of the Crimes Act 1900.

The offence occurred on 6 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

  1. H3233326994/7 – Armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900.

The offence occurred on 6 November 2019 and the maximum penalty proscribed is 7 years imprisonment.

  1. H323326994/11 – Assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900.

The offence occurred on 7 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

  1. H323326994/12 – Assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900.

This offence also occurred on 7 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

  1. There is no Standard Non-Parole Period proscribed for any of the offences.

  2. The offender has asked to have the following charges dealt with on a Form 1:

  1. H323326994/8 – stealing from person pursuant to s 94(b) of the Crimes Act 1900. This Form 1 is attached to Sequence 6 above. The offender has admitted his guilt in respect of this offence.

  2. H323326994/10 – Common assault pursuant to s 61 of the Crimes Act 1900. This Form 1 is attached to Sequence 7 above. The offender has also admitted his guilt in respect of this offence.

  1. The offender was arrested on 7 November 2019 and has been in custody since his arrest.

The sentence hearing

  1. The sentence hearing took place on 22 May 2020. The Crown Sentence Summary became Ex A. It included an Agreed Statement of Facts which may be summarised as follows.

  2. At approximately 3.25pm on 6 November 2019 the offender and his co‑offender, Asher Steele, were in a public area at what is known as the Chatswood Interchange. They approached a 14 year old boy who was wearing his school uniform and a white Nike hat and had an Apple airpod in his left ear. The offender took the boy’s hat off his head and pushed him in the left shoulder. The co-offender then grabbed at the boy’s clothing before taking the airpod from his ear. The offender then pushed the victim again causing him to fall backwards. The offender and co-offender then threatened the boy, stating:

“We’re going to bash you, we’re going to stab you, your friends and everyone at your school.”

  1. The offender and co-offender then ran away from the interchange towards Chatswood mall.

  2. The incident was partially captured on CCTV. It occurred in full view of a large number of people, mainly school children, on their way to public transport. That was the conduct comprised in Sequence 6, robbery in company and Sequence 8 (stealing from the person dealt with on the Form 1).

  3. At about 3.30pm on the same day, the offender and co-offender approached a group of three boys who were in Telstra Lane, adjacent to the Chatswood Interchange. The co-offender asked the boys for a cigarette and was told by one of them to go away. The offender then said:

“If you want to fight let’s do it around the corner. There’s cameras here. Don’t be a pussy.”

  1. The boy, who was aged 17, pushed the offender. As he did so, the co‑offender grabbed his collar, at which point the boy punched the co‑offender in the nose. The boy and offender and co-offender continued pushing and shoving, while one of the other boys tried to break up the fight.

  2. During the confrontation, the offender reminded the co-offender that the co‑offender had a knife. The co-offender then removed the knife from the front of his pants. It was described as a “flick” or “fold-out” knife. The co‑offender started waving the knife in front of the three boys, saying:

“This isn’t going to slide. I’m going to put you in a body bag; I have boys.”

  1. The incident was captured on CCTV and shortly thereafter the three boys left the laneway. The co-offender was observed to pass the knife to the offender. He then approached one of the young boys at a phone booth near the Chatswood Interchange and asked him to come around the corner, and began pushing the young person and throwing him around.

  2. CCTV footage of the offending was recorded on a USB which became Ex B on the Sentence Hearing. This was the conduct that comprised Sequence 3, custody of a knife in a public place, Sequence 7, armed with intent to commit an indictable offence, and Sequence 10, (common assault, which was attached to Sequence 7 on the Form 1).

  3. The following day, on 7 November 2019, at approximately 4pm, a young person aged 17 years was walking home from school and had just crossed the Pacific Highway, Lane Cove, when he was “blind-sided” by the offender and co‑offender. The co-offender confronted the young person and pushed him in the chest and shoulder. The co-offender indicated a bruise around his eye and blood around his nostrils, and accused the young person of knowing the person who had injured him, which the young person denied. The co‑offender then struck the young person in the torso with his knee, causing him to be winded, and continued to threaten to bash him until the offender intervened and told him to stop. The offender told the young person to empty his pockets and then searched his bag, but did not take any property.

  4. A vehicle pulled up alongside the three, and the driver told the offender and co‑offender to stop what they were doing. A passenger in the car threatened to get his pit-bull on them and showed them a dog in the back of the vehicle. The occupants of the car then took the victim home.

  5. This was the conduct comprised in Sequence 11, assault with intent to rob in company.

  6. A short time later, the offender and co-offender approached another young person aged 16 years in Lane Cove. The co-offender asked the young person what time a bus was coming, and then grabbed the young person around the neck and placed him in a headlock, forcing him across the road and against a fence. The offender and co-offender were standing over the young person when the co-offender said, “Give me your wallet”, and “why did you punch me in the eye?” The young person declined to hand over his wallet and denied punching the co-offender in the eye. The owner of the house came out and threatened to call the police, and the offender and co‑offender left.

  7. The offender and co-offender were arrested later that afternoon. The offender participated in a police interview in which he made the following admissions or statements:

“(a) He was with the co-offender at Chatswood interchange at 3.25pm on 6 November 2019.

(b) He identified both himself and the co-offender in the CCTV stills, showing the first altercation with the 14 year old boy in the Chatswood interchange.

(c) He identified himself and the co-offender in the footage showing the altercation with the three young persons in Telstra Lane.

(d) He stated neither he nor the co-offender were carrying knives.

(e) He stated he was with the co-offender at 3.30pm on 7 November 2019.

(f) He agreed they had confronted a school boy in Lane Cove on 7 November 2019, but that they were just “trying to find out who hit my mate”, and he denied robbing either of the school boys on that day.

(g) He denied any knowledge of the second incident on 7 November 2019.”

  1. Exhibit A included the criminal antecedents of the offender. On 11 December 2019, he was convicted in the Local Court of an offence of destroy or damage property. A conviction was recorded with no other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

  2. On 30 April 2020 the offender was convicted of an offence of larceny and fined $450 in the Local Court.

  3. Exhibit A also included the Department of Corrective Services’ custodial records which showed no disciplinary infringements since he had been in custody.

The offender’s evidence

  1. The offender tendered a bundle of documents which became Ex 1.1 to 1.11. Exhibit 1.1 was a report from Dr K Seidler, clinical and forensic psychologist, dated 14 April 2020. Dr Seidler interviewed the offender via AVL from Bathurst Correctional Centre on 8 April 2020 over a period of one hour and five minutes. She set out his family and developmental history. His parents separated when he was five years of age and he then spent the majority of his life in his mother’s care. Both parents had re-partnered and he was not close to either of their partners. The offender described his childhood and developmental experience in positive terms and had a good relationship with both parents. He had, however, become homeless for a period prior to his arrest on the index charges, after his mother asked him to leave home due to his “difficult, disrespectful and erratic behaviour in the context of drug abuse”.

  2. The offender gave a history of being diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and did not enjoy school. He was expelled for poor behaviour in year 9 and then suspended on three occasions before being expelled in year 10 for being in possession of unprescribed Valium tablets. He worked at MacDonalds for about a year until he was terminated approximately one month before his arrest, for being unreliable.

  3. Dr Seidler recorded a history of exposure to cannabis at about age 14. By 16 years of age the offender was smoking cannabis on a daily basis. He started using crystal methamphetamines in 2019 on a fortnightly basis. Abusing prescription medications was his most salient concern, abusing Xanax, Rivotril and Valium from age 16. He did this on a daily basis on whatever medication he could access. It resulted in him suffering with memory lapses and episodes of behavioural dyscontrol, including tending to aggression. In addition, the offender disclosed experimental use of heroin and hallucinogens, as well as the recreational abuse of ecstasy, cocaine and Ketamine.

  4. The offender had been abstinent since his arrest, but stated that he would like to engage in drug rehabilitation. He has a girlfriend who is in recovery from drug abuse, who is committed to abstinence and has been supportive of him.

  5. The offender acknowledged his involvement in the offending claiming he was under the influence of Xanax and alcohol at the time. He was motivated by a desire for money to purchase more drugs and expressed:

“Seemingly genuine and appropriate regret and remorse for his offending behaviour, including expressing remorse for the impact that his actions have likely had on the young victims.”

  1. Dr Seidler recorded that the offender was coping with the prison environment. He had been receiving regular visits, although these were suspended due to the Covid-19 pandemic. It was the opinion of Dr Seidler that the offender’s behavioural and effective dysregulation was a function of substance abuse. The offender impressed with sound insight into his offending behaviour and the impact this has likely had on his victims. She did not consider any mental health condition was relevant to his offending. The offender had expressed to her motivation for change and treatment upon his release from custody. She recommended specialist substance abuse treatment to prevent a relapse into drug abuse. Dr Seidler was of the opinion that the offender will need help in transitioning to maturity and productive living in the community.

  2. Exhibits 1.2 and 1.3 were discharge summaries concerning two occasions in August 2019 when the offender received treatment at the emergency department at Royal North Shore Hospital. On the first occasion, he was agitated following polysubstance abuse, and on the second occasion he presented unconscious because of polysubstance abuse.

  3. Exhibit 1.4 was a report from Dr O O’Connell, consultant psychiatrist and addiction specialist, who had been qualified with Dr Seidler’s report, and had organised an attempt to set up AVL therapy sessions one hour per week via video link with the offender whilst he was in custody. This was not possible because of the Covid-19 lockdown, however, he planned to start the weekly sessions once the facility became available.

  4. Exhibit 1.5 was a lengthy letter from the offender’s mother setting out the offender’s family background, his learning difficulties and the impact it had on his schooling. The letter also set out the offender’s prohibited drug use from age 14, and the spiralling effect that had on his life in 2019, when she described his behaviour as “more erratic, volatile and frightening”. She also referred to the “terrifying episodes which resulted in him ending up in the emergency ward of Royal North Hospital and in ICU”. Five weeks after leaving home, he committed the index offences.

  5. Mrs Hole recorded the sobering effects on the offender of his incarceration. He had expressed his remorse to her for his offending and stated that he never wanted to return to drugs and crime. He was in a supportive relationship.

  6. Mrs Hole also expressed her commitment to help the offender return to a productive life. He had a loving and supportive extended family, including her partner and that of her ex-husband. He would provided with as much support as possible to complete his education and find a job.

  7. Exhibit 1.6 was a letter from the offender’s father, which also set out family history and the struggles the offender had at school. Mr Bonnell set out his awareness of the offender’s use of drugs from year 9 and the steps taken to address that abuse which were unsuccessful.

  8. He had visited the offender on a number of occasions until the recent lockdown. Notwithstanding the immense strain the offender had placed on his family, they were committed to the offender and his well-being and will continue to support him in his attempts to rehabilitate and address his drug issues. Mr Bonnell stated that it was his impression that the offender had no desire to return to prison.

  9. Exhibits 1.7 and 1.8 were the letters from the offender’s de-facto step-father and his step-mother respectively. Both confirm the impact of the offender’s behaviour on the offender and extended family, and both confirm the support available to him from his extended family.

  10. Exhibit 1.9 is a letter from the offender to his mother in which he confirmed that he was “done with crime and drugs”.

  11. Exhibit 1.10 is a further letter from the offender confirming the support he obtains from his girlfriend.

  12. Exhibit 1.11 is an email from the offender’s mother setting out the restrictions imposed by New South Wales Correctional Facilities since 17 March 2020, and the impact of those restrictions on the family visits to the offender at Bathurst Correctional Centre.

The offender’s oral evidence

  1. The offender gave evidence that he accepted the Agreed Facts as set out in Ex A. He did not have a clear memory of all of the events due to his consumption of a lot of prescription drugs at the time. He did not remember, for example, his purpose in speaking to the three young persons in Telstra Lane on 6 November 2019. Further, in respect of the two assaults that took place on 7 November 2019, and the demands for property made upon the victims, there was not much “reasoning involved”, rather, he wanted money to buy illicit substances.

  2. The offender gave evidence that he had thought a lot about his offending conduct. He described it as “really childish and inappropriate behaviour”, and was very sorry for the victims who were children. He had a lot of empathy for them and understood that they would be still scared as a result of the offences.

  3. The offender gave evidence that he felt very bad for his mother because of his actions. In future, he wanted to make a positive impact, both for the community and for his family.

  4. The offender gave evidence that he had been truthful and accurate in what he had told Dr Seidler. He confirmed his polysubstance abuse, and had started taking ice three or four months before the offending. Despite offers from his family to attempt rehabilitation before this, he did not want to. Now, he did not want to use drugs at all. He had applied to do an IDAPT course and would also like to start counselling with Dr O’Connell. The offender stated he would engage in drug and alcohol rehabilitation upon his release to prevent relapse into drug abuse. He did not want to end up back in gaol which had been a very hard experience, particularly since COVID-19, which meant there were no contact visits. He had only had two video sessions with family since early March and one with his girlfriend, who remains supportive.

  5. The offender confirmed that his mother was prepared to have him reside with her upon his discharge from custody. He said this was a good opportunity for him and a second chance. Finally, the offender wished to apologise to the victims and their families. He knew what he did was morally very wrong.

  6. In cross-examination, the offender agreed that he had told the psychologist that he had wanted to live with his girlfriend on discharge, but this was no longer the case. His intentions were to complete his study and get a job, and he would like to find a trade, possibly in carpentry.

  7. He agreed that he had been socialising with the wrong people before his arrest, but he also had his own problems and addictions at the time. If the wrong people reached out to him, he would not contact them once he had returned to the community.

The Crown submissions

  1. The Crown relied on a thorough and detailed written outline of submissions which summarised the multiple offences by reference to the four incidents that occurred, i.e. two on 6 November 2019 at the Chatswood interchange and Telstra Lane, Chatswood, and two in Lane Cove involving separate victims on 7 November 2019.

  2. In respect of Sequences 6, 11 and 12, the guideline judgment in R v Henry (1999) 46 NSWLR 346 was relevant to the sentencing exercise for each of the offences, notwithstanding that there was no armed robbery offence.

  3. The guideline judgment outlined seven factors which were relevant in assessing the application of the guideline head sentence range of 4 to 5 years imprisonment, based on a late plea of guilty, namely:

  1. “Young offender with little or no criminal history.

  2. Weapon like a knife, capable of killing or inflicting serious injury.

  3. Limited degree of planning.

  4. Limited, if any actual violence, but a real threat thereof.

  5. Victim in a vulnerable position such as a shopkeeper or taxi driver.

  6. Small amount taken.

  7. Plea of guilty, the significance of which is limited by a strong Crown case.

  1. The Crown submitted that notwithstanding that no weapon was used here, each of the s 97(1) offences were committed in company and involved actual violence. The Crown submitted that each s 97(1) offence falls just outside the typical case outlined in the guideline judgment.

  1. In respect of Sequence 7, armed with intent to commit indictable offence, pursuant to s 114(1)(a) of the Crimes Act 1900, the Crown submitted that the following factors were relevant:

  1. “Armed with weapon/instrument.

  2. Indictable offence of intimidation pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007.

  3. In company.

  4. In the presence of a child.

  5. Without regard for public safety.”

  1. With respect to public safety, the Crown referred to R v Salieb [2005] NSWCCA 85 and submitted that whilst the risk to public safety was not as great in the present matter, the use of a knife to threaten school children in a public place would cause a real fear of immediate personal violence to them. It was submitted that the objective seriousness of this offence fell “at about the middle of the range”. In respect of Sequence 3, custody of a knife in a public place (first offence), the Crown submitted that this conduct required denunciation in the form of conviction to deter similar future offending. The offender had been handed the knife by his co-offender.

  2. In relation to the Form 1 offences, the Crown submitted that Sequence 8 would not substantially influence the overall sentence in respect of Sequence 6, and that Sequence 10 would not substantially influence the overall sentence for Sequence 7.

  3. The Crown conceded that the offender was entitled to a degree of leniency given his insignificant history of prior convictions. He was entitled to a 25% utilitarian discount for his plea of guilty.

  4. The Crown submitted that the offender’s risk of re-offending was clearly linked to his prospects of rehabilitation from substance abuse. The offender’s age and family support network were positive signs in favour of rehabilitation, notwithstanding that Dr Seidler was of the opinion that his prospects were guarded due to his abstinence not having been tested in the community.

  5. The Crown submitted that the consumption by the offender of illicit drugs did not reduce his moral culpability for the offending. The Crown further submitted that a finding of remorse as a mitigating factor would require evidence from the offender that he had accepted responsibility for his actions and acknowledged the harm done to his victims.

  6. The Crown made submissions as to the principle of totality as applicable to aggregate sentencing. The Crown submitted that here, a failure to at least partially accumulate sentences may not recognise the harm done to each individual and the separate criminality of each incident. The Crown submitted that the s 5 threshold had been crossed and there was no appropriate penalty other than one of full-time imprisonment. Punishment and denunciation were important considerations in the context of multiple violent and brazen attacks against unsuspecting school children.

  7. The Crown did not resist a finding of special circumstances, but submitted that the non-parole period should be the minimum period the offender must spend in gaol having regard to all of the elements of the punishment.

  8. In his oral submissions, the Crown rehearsed the following features of the offending:

  1. In respect of Sequence 6 and Sequence 8 on the Form 1, the offending took place over a very short period of time, the victim was vulnerable and easy prey for the offenders. Not great weight could be placed on the difference in age of four years between the offender and the victim.

  2. In respect of Sequence 3 and Sequence 7 on the Form 1, the Crown accepted there had been a long prelude before the knife was produced by the co-offender. The aggressors, however, were both the offender and co-offender, who approached the three young persons asking for a cigarette. The facts established that it was the offender who wanted to fight and to do it out of sight of the camera. The Crown submitted it was important that the knife was produced for a short time, which terminated the confrontation. The Crown accepted that Sequence 3 was subsumed in Sequence 7 and would be satisfied by a conviction being recorded pursuant to s 10A of the CSPA.

  3. In respect of the offence pursuant to s 114(1)(a) of the Crimes Act, it was submitted that a knife was a relatively serious weapon and that the risk to public safety was an aggravating factor in the offending here.

  4. With respect to Sequence 11 on 7 November 2019, the Crown submitted that it was significant that there was no weapon. The victim had been struck in the torso by the co-offender’s knee, which was a disabling form of violence, however, it was not the most serious offending encompassed by s 114.

  1. The Crown accepted the subjective matters put on behalf of the offender, namely, that he was genuinely remorseful and that he had ceased his drug use and had positive signs of rehabilitation.

  2. The Crown submitted that the principle of totality should be applied and that there should be some accumulation between the two sets of offences which took place on 6 and 7 November 2019.

The offender’s submissions

  1. The offender also relied on a written outline of submissions. The following submissions were made as to the objective seriousness of each of the offences:

  1. Sequence 6 – robbery in company and Sequence 8 on the Form 1 (steal from the person). It was submitted that the offence of robbery in company was at the lower end of the scale:

  1. The robbery did not involve the use of a weapon

  2. Being in company is an element of the offence

  3. There was limited or no planning or premeditation

  4. There was limited actual violence and no injury

  5. The offenders are relatively young with no criminal history

  6. A small amount was taken

  7. Although the victim was 14, and to a degree vulnerable, the age gap between the offenders and the victim was only a few years

  8. There was a plea of guilty in the Local Court.

It was submitted that the guideline judgment in R v Henry, supra, was of less utility where there was no weapon used. Further, the Form 1 offence would have no significant impact on the sentence imposed for the substantive offence in Sequence 6.

  1. Armed with intent – Sequence 6 (assault) (Sequence 10 on the Form 1) and possession of a knife

It was submitted that the offence of custody of a knife is an element of the s 114(1)(a) offence. Further, the offender was only in possession of the knife during the timeframe of the offence of armed with intent to commit an indictable offence. In those circumstances, the criminality of the summary offence was subsumed by the s 114(1)(a) offence, referring to Pearce v R (1998) 194 CLR 610. Accordingly the summary offence could be dealt with pursuant to s 10A of the CSPA.

Further, in respect of the s 114(1)(a) offence, it was submitted that the weapon was not used for actual violence. The relevant serious indictable offence was the offence of intimidation. The knife was not used to inflict any physical harm.

It was submitted that the offence was toward the lower end of the scale of objective seriousness and was relatively quick. It was not planned or premeditated. It was submitted the use of the knife was in response to physical violence by the victim towards the co-offender, and the knife was not used to initiate the offence. The offender’s possession of the knife was described as “extremely brief” and the offence was therefore towards the lower end of the scale of seriousness.

  1. The two offences of assault with intent to rob on 7 November 2019

Both occurred within a short time of each other and the victims were aged 17 and 16 respectively. There was a limited age difference between the offender and the victims.

It was submitted that the first offence was initiated by the co-offender and it was only after the co-offender had demanded the victim’s property that the offender joined in the criminal activity. There was no planning prior to this conduct and thus the offence was spontaneous and unsophisticated. No property was lost.

It was submitted that the fact that the assault was in company was an element of the offence, which was not aggravated by any actual injuries or the use of a weapon. The offending was interrupted by a person driving alongside the offenders.

It was submitted the second offence on 7 November 2019 also appeared to be relatively spontaneous and unplanned. The co-offender initiated the assault on the victim and the offender joined in the criminal enterprise by repeating the co-offender’s request that the victim hand over his wallet. There was no physical injuries to the victim and no property was lost. The fact that the offender was under the influence of drugs at the time assists in explaining the impulsivity of the offence and his poor judgment. It was submitted that both offences were at the lower end of the scale.

  1. It was submitted that the offender was entitled to a 25% utilitarian discount in respect of his plea of guilty.

  2. The offender was 18 years at the time of the offences, and his youth is a recognised mitigating factor. Rehabilitation therefore would take precedence in sentencing over deterrence and retribution. Further, the offender had no significant criminal history, just two minor matters. It was submitted that the offender had expressed genuine remorse to the court, his family and the psychologist. He acknowledged his drug and alcohol abuse and his abuse of prescription medication. It was submitted his drug abuse was a contributing factor to his offending conduct by way of impairing his judgment, but the offender nonetheless accepts responsibility for his offending conduct. It was noted he had been abstinent of all substances since his arrest on 7 November 2019 and he had expressed a willingness to participate in substance abuse treatment. He has had no opportunity to do so whilst in custody.

  3. It was also submitted the offender was motivated to participate in Dr O’Connell’s weekly session when they become available. He had the support of his parents and step-parents, and had had limited contact visits since the Covid-19 lockdown.

  4. The offender submitted that this was an appropriate matter for a finding of special circumstances, given the offender’s drug abuse and links to anti‑social peers were significant factors in the offending. It was submitted that the offender had good prospects of rehabilitation.

  5. The offender accepted that the s 5 threshold had been crossed and that an aggregate sentence was appropriate in this matter. Given the relatively short course of conduct and overlap between the offences, the overall criminality can be reflected in the sentence with a high degree of concurrency and limited partial accumulation.

  6. In his oral submissions, learned Senior Counsel for the offender rehearsed the written submissions as to the objective seriousness of the offending. The offending in Sequence 6 (and Sequence 8 on the Form 1) was at the lower end of the scale of objective seriousness for a s 97(1) offence. A distinguishing feature from the R v Henry, supra, guideline judgment here was that there was no use of a weapon, limited planning and whilst the offence was committed in company, it was very quick with a small amount of property involved. It was conceded that the victim, being age 14, was vulnerable, however, it was submitted that the offender was also young, being 18 years of age.

  7. The youth of the offender it was submitted was significant and would reduce his moral culpability. There was no planning and the offending was impetuous and opportunistic, consistent with his youth.

  8. In respect of Sequence 7 and Sequence 3 (and Sequence 10 on the Form 1), Senior Counsel rehearsed his submissions outlined above. There was a long sequence before the production of the knife, it was a short transaction and the knife was produced with the intention to intimidate. It was submitted that the production of the knife occurred only after the preceding conduct, which included the injury caused to the co-offender. Thus, there was very little preplanning and the co-offender was responding to the situation as it developed. Once the knife was produced, the offending quickly concluded. Thus, the offending was at the lower end of the scale for such offences.

  9. It was submitted that Sequence 3 was entirely subsumed in Sequence 7, and could thus be disposed of by way of a conviction pursuant to s 10A of the CSPA with no further punishment. Further, in respect of Sequence 7, it was implicit in the offence that the offender was armed with a weapon. The production of the knife therefore did not increase the objective seriousness of the offending as it was an element of the offence. The aggravating factor was that the offence occurred in company and in the presence of children, however, the age difference was not significant.

  10. It was submitted that Sequence 10 on the Form 1 did not increase the seriousness of the offending in Sequence 7.

  11. Learned Senior Counsel rehearsed his submissions in respect of the two offences of assault with intent to rob in company that occurred on 7 November 2019. Again, the offending was opportunistic and nothing was gained and no injuries suffered. The offences were at the lower end of the scale and indicated impetuous offending that was not well thought out by a young offender.

  12. Learned Senior Counsel also rehearsed the subjective features of the offender to be taken into account on sentencing. He had expressed genuine remorse to the court in his evidence and there were very positive signs for his rehabilitation expressed in his evidence and letters to his mother. His polysubstance abuse had not been addressed, however, the offender had really good prospects of rehabilitation, given his family support and his level of motivation. The Court would take into account the evidence of his insight and remorse for his offending, whilst his youth had a significant role to play. A finding of special circumstances should be made on the basis of his youth and need for rehabilitation.

  13. On the question of parity in sentencing with the co-offender, it was submitted that there were slight differences in the role of the offenders, however, overall they were involved in a joint criminal enterprise in respect of each of the offences. Notwithstanding that the co-offender had sought and been granted an adjournment pursuant to s 11 of the CSPA, to further his rehabilitation, the offender had chosen to remain in custody to finish his non‑parole period as soon as possible and be discharged under supervision so as to embark on his rehabilitation. The offender accepted that there should be some partial accumulation for the different offences, however, it all occurred within a 24 hour window of offending. Further, the offender had only known the co-offender for a period of two weeks, in what was described as a mutually self-destructive friendship. In the circumstances, there should be a greater degree of concurrency in sentencing than would otherwise be the case.

Determination

  1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

  1. I make the following findings of objective seriousness in relation to each of the offences as follows:

  1. Sequence 3 – custody of knife in public place (first offence) pursuant to s 11C Summary Offences Act 1988. This offence occurred towards the conclusion of the confrontation that took place in Telstra Lane, Chatswood, on 6 November 2019. It occurred when the offender was handed the knife by his co-offender as he approached one of the young persons after they had left Telstra Lane. The offending was of very short duration, and as submitted by the offender and agreed to by the Crown, it could be subsumed in the offending in Sequence 7. I find in all the circumstances the objective seriousness of the offending was at the lower end of the range for an offence pursuant to s 11C of the Summary Offences Act 1988.

  2. Sequence 6 – robbery in company pursuant to s 97(1) of the Crimes Act 1900. The offending in the Chatswood Interchange and took place over a very short period of time. Being in company was an element of the offence and there was little planning or premeditation involved. There was also very limited actual violence perpetrated on a vulnerable 14 year old boy and no injuries suffered by the victim. A small amount, namely, the airpod, was taken. I find that the objective seriousness of the offending conduct fell towards the lower end of an offence pursuant to s 97(1) of the Crimes Act. The application of the Henry guideline judgment is discussed below.

  3. Sequence 7 – armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900. In assessing the objective seriousness of the offending here, I note that the custody of the knife was an element of the offence pursuant to s 114(1)(a). The indictable offence was that of intimidation pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. I find that the offence was committed in company, and in the presence of a child. I also find that it occurred without regard to public safety. The use of a knife in a public place to threaten school children would obviously cause a real fear of immediate personal violence to them. I take into account, however, that the weapon was not in fact used for actual violence or to inflict any physical harm. The offending was not planned or premeditated and the offender’s possession of the knife was for an extremely brief period. I find that the objective seriousness of the offending fell towards the lower range for an offence pursuant to s 114(1)(a) of the Crimes Act 1900.

  4. Sequence 11 – assault with intent to rob in company on 7 November 2019, pursuant to s 97(1) of the Crimes Act 1900.

  5. Sequence 12 – assault with intent to rob in company on 7 November 2019, pursuant to s 97(1) of the Crimes Act 1900. The objective seriousness of each of the above offences was similar. Both were committed in company and involved actual violence. In both, the actual violence was perpetrated by the co-offender, however, the offender is equally responsible as it was a joint criminal enterprise. Both offences were opportunistic with no planning or premeditation. Further, no weapon was used and the injuries to both victims, namely, winding of the first victim, and the second victim being placed in a headlock, were relatively minor. No property was lost in either case. For offences pursuant to s 97(1) of the Crimes Act 1900 I find that the objective seriousness of offending in both offences was at the lower end of the range for offences pursuant to that section.

  1. In respect of each of Sequences 6, 11 and 12, the Crown submitted that the offending was “just outside the guideline judgment in R v Henry, supra, however, the guideline judgment was relevant to the sentencing exercise for each of the offences, notwithstanding that there was no armed robbery offence.”

  2. As outlined in [48] above, the guideline judgment outlined seven factors which were relevant to assessing its application in arriving at a range of 4-5 years imprisonment for the head sentence, based on a late plea of guilty.

  3. It is well established that the guideline judgment in R v Henry, supra, is a guideline and not a prescribed range or pattern of sentencing, nor is the guideline to be treated as a starting point from which will be deducted items that are relatively ameliorative or those which are relevantly aggravating. It has been described as “not a tram line”.

  4. Here, each of the offences pursuant to s 97(1) of the Crimes Act 1900, Sequences 6, 11 and 12, were objectively at the lower end of seriousness for such offences. Further, no weapon was used and the actual violence was limited. The offender, who was born on 26 August 2001, was 18 years and a little over two months of age, was homeless and the offences were committed in the context of him suffering mental health issues and polysubstance abuse. The courts have long recognised that emotional maturity and impulse control develop progressively during adolescence and may not fully develop until a person is in his or her mid-twenties.

  1. The principles to be applied in sentencing a young person in the context of the guideline judgment in R v Henry, supra, were recently discussed in Yildiz v R [2020] NSWCCA 69. Simpson AJA and N Adams J referred to a recent decision of the court in Howard v R [2019] NSWCCA 109, where Fullerton J (with whom Macfarlan JA agreed) said at [14]:

“I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person’s immaturity and a compromised capacity for mature decision making.”

  1. The court went on to hold that the mere fact that the guideline judgment in Henry takes into account that a sentence is being imposed on a young offender, with no or little criminal history, does not mean that youth is an irrelevant factor, nor does it mean that youth is not a factor that should be considered in the overall determination of the sentence to be imposed (see [48] per Rothman J). It is clear that the youth of the offender here may be taken into account as a mitigating factor.

  2. Clearly this was immature offending. The offender himself described it as childish and inappropriate behaviour, and thus, whilst the guideline judgment is relevant, the young age of the offender must be taken into account as a mitigating factor here. It is well settled that in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance in the sentencing.

  3. The age of the young offender is also relevant to the weight to be attributed to general deterrence in sentencing here. General deterrence is clearly important in sentencing for offences pursuant to s 97(1) generally, as demonstrated by the guideline judgment. However, it has less work to do in the case of this young offender, who had mental health issues as well as poly‑substance abuse issues.

  4. I was impressed by the oral evidence given by the offender and I accept that he is remorseful for his criminal conduct and that he has accepted responsibility for it. I also accept that he has commenced his rehabilitation by abstaining from prohibited drugs whilst in custody, and that he has positive prospects of successfully rehabilitating himself. There are significant subjective factors to be taken into account, including the support of his extended family, which will be available to him upon his release into the community.

  5. The offender is entitled to a 25% utilitarian discount on sentence for his early plea of guilty to these charges. Provided he does not relapse, he should be a small risk of reoffending and I accept that he does not wish to end up in prison again.

  6. I have taken into account the maximum penalty proscribed by Parliament for each of the offences as follows:

  1. Sequence 3 – offence pursuant to s 11C Summary Offences Act 1988 – 2 years imprisonment and/or $2,200 fine.

  2. Sequences 6, 11 and 12 – offences pursuant to s 97(1) Crimes Act 1900 – 20 years imprisonment.

  3. Sequence 7 – offence pursuant to s 114(1)(a) Crimes Act 1900 – 7 years imprisonment (first offence).

  1. The maximum penalties proscribed for each offence are guideposts in the sentencing process. I am satisfied that the s 5 threshold has been crossed, and having considered all possible alternatives, no penalty other than imprisonment is appropriate. It was not submitted otherwise.

  2. I intend to sentence the offender on Sequence 3 by finding a conviction, but no other penalty pursuant to s 10A of the CSPA. In respect of the other four offences, I intend to impose an aggregate sentence pursuant to s 53A of the CSPA. In order to provide transparency in the sentencing process, the indicative sentences for each of the remaining offences, taking into account the subjective circumstances outlined above, and a discount of 25%, are as follows:

Indicative Sentences

Sequence 6 – robbery in company – 9 months imprisonment

Sequence 7 – armed with intent to commit an indictable offence – 6 months imprisonment

Sequence 11 – assault with intent to rob in company – 18 months imprisonment

Sequence 12 – assault with intent to rob in company – 18 months imprisonment

  1. I have taken into account the charges to be dealt with on a Form 1, namely, Sequence 8, attached to Sequence 6, and Sequence 10, attached to Sequence 7. In each case, the relevant conduct is somewhat subsumed in the principal offence and therefore, whilst I take the matters into account, they do not add or accumulate to the sentences to be imposed for the principal offences.

  2. In arriving at an aggregate sentence, there is conventionally some accumulation required in sentence. Here, however, the two offences that took place on 6 November 2019, occurred within a very short time period and form part of the same course of criminal conduct. There will therefore be no accumulation for those offences in the aggregate sentence. Similarly, Sequences 11 and 12 took place within a very short period of time the following day, and comprised one course of criminal conduct. Again, there will be no accumulation for those two offences in the aggregate sentence. However, I find there should be some accumulation in the two sets of offences, namely, Sequences 6 and 7, and Sequences 11 and 12, as they were separated in time and constituted separate courses of criminal conduct.

  3. In assessing the aggregate sentence, I have regard to the principle of totality which was described in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 by Howie J at [27] in the following terms:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

  1. Applying those principles here, together with the principle of proportionality in sentencing, I intend to sentence the offender to an aggregate sentence of 2 years imprisonment. I find there are special circumstances established pursuant to s 44(2) of the CSPA based on the offender’s youth, the fact that this is his first time in custody, and his mental health and drug and alcohol issues. I therefore intend to impose a non-parole period of 12 months to commence on 7 November 2019 and to terminate on 6 November 2020.

Orders

  1. I make the following orders:

  1. You are convicted of the following offences:

H323326994/3 – Custody of knife in public place (first offence), pursuant to s 11C Summary Offences Act 1988.

H323326994/6 – Robbery in company pursuant to s 97(1) of the Crimes Act 1900.

H3233326994/7 – Armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900.

H323326994/11 – Assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900.

H323326994/12 – Assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900.

  1. In respect of Sequence 3, you are convicted without imposing any other penalty pursuant to s 10A of the CSPA.

  2. In respect of Sequences 6, 7, 11 and 12 I impose an aggregate sentence pursuant to s 53A of the CSPA.

  3. You are sentenced to a non-parole period of 12 months to commence on 7 November 2019 and to terminate on 6 November 2020.

  4. The balance of term will be a period of 12 months to date from 7 November 2020 and expire on 6 November 2021.

  5. I certify that I have taken into account the following matters on a Form 1:

H323326994/8 – stealing from person pursuant to s 94(b) of the Crimes Act 1900 attached to Sequence 6.

H323326994/10 – Common assault pursuant to s 61 of the Crimes Act 1900 attached to Sequence 7.

  1. Your parole eligibility date will be 6 November 2020.

  2. Sequences 1, 2, 4, 5 and 9 are withdrawn and dismissed.

Indicative Sentences

Sequence 6 – robbery in company – 9 months imprisonment

Sequence 7 – armed with intent to commit an indictable offence – 6 months imprisonment

Sequence 11 – assault with intent to rob in company – 18 months imprisonment

Sequence 12 – assault with intent to rob in company – 18 months imprisonment

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Decision last updated: 04 June 2020

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Hall v The Queen; Barker v The Queen [2017] ACTCA 16
Hall v The Queen; Barker v The Queen [2017] ACTCA 16
R v Salieb [2005] NSWCCA 85