R v Close

[2018] NSWDC 352

District Court

New South Wales

Medium Neutral Citation:	R v Close [2018] NSWDC 352
Hearing dates:	29 June 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Term of imprisonment of 3 years with a non-parole period of 2 years
Catchwords:	SENTENCING – robbery in company – guideline judgment factors – offender with considerable criminal history as a child
Legislation Cited:	Crimes Act 1900 Criminal (Sentencing Procedure) Act 1999
Cases Cited:	R v Henry (1999) 46 NSWLR 346 R v McNaughton (2006) 66 NSWLR 566
Texts Cited:	None
Category:	Principal judgment
Parties:	Regina (Crown) Dallas Timothy Close (Offender)
Representation:	Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2017/254785
Publication restriction:	None

Judgment

INTRODUCTION

1. The Offender appears before the Court for sentencing in relation to a single offence, set out in the Crown Sentence Summary namely, robbery in company, in contravention of s 97(1) of the Crimes Act.

GUIDEPOSTS

2. The maximum penalty applicable to that offence is 20 years imprisonment and there is no standard non parole period.

PROCEDURAL HISTORY

3. The offending occurred on 20 August 2017 at a time when the Offender was on parole in relation to earlier offending. He was arrested on 21 August 2017. He then served the balance of his parole period from 21 August 2017 to 28 January 2018 and from 29 January 2018 he has been in custody in respect of this offence only.

EVIDENCE ON SENTENCE

4. The evidence on sentence comprised:

1. the Crown Bundle (Exhibit A);

2. a Breach of Parole Report (Exhibit B);

3. the Offender’s Bundle (Exhibit 1);

4. the Crown’s submissions (MFI 1);

5. submissions for the Offender (MFI 2).

AGREED FACTS

5. The facts are fairly limited and are agreed. The agreed facts appear in a document behind tab 3 in Exhibit A.   

6. The complainant was a gentleman by the name of Mr Alam, a taxi driver. He was a person not known to the offender or to the co-offender Isaac Gordon. In respect of the co-offender, I pause to note that his matter has been listed for trial to commence 3 December 2018.

7. At around 5.50am on Sunday 20 August 2017, the complainant was waved down on Botany Road in front of the Metro Petroleum Service Station at Alexandria. The person waving him down was the co-offender. The co-offender told the complainant that he wanted to go to Marrickville and when asked whereabouts in Marrickville the co-offender said “I’ll guide you”.

8. It is agreed that suddenly a man not wearing a shirt appeared, this was the offender who appears today for sentence. The offender showed the victim his wallet and his driver’s licence indicating that he had money so the victim let him into the taxi. The offender entered the taxi and sat in the front passenger seat whilst the co-offender sat in the rear passenger seat. The offender and the co-offender talked amongst themselves during the trip.

9. Throughout that time the offender told the victim that he would guide him. When the taxi reached Enmore Road at Marrickville, the offender and the co-offender started swearing. One said “Go through the lights there are no cars.” The complainant told them he could not break the road rules. The offender directed the victim into Sydenham Road, then onto Marrickville Road and Illawarra Road. The taxi turned right onto Arthur Street from Illawarra Road.

10. At around 6.10am the offender and the co-offender instructed the complainant to stop in front of 32 Arthur Street Marrickville, which is a unit block. It was still dark however the streetlights were on. The offender and the co-offender opened the doors of the taxi and began to leave. The complainant said to the offender “You’ll not pay me?”, the offender said “Fuck you, you are not a good driver.” The offender and the co-offender walked four to five steps away from the taxi, the complainant then got out of the taxi in order to close the doors, he did not again ask the offender or the co-offender to pay. He did not chase after them as that is unsafe and he knew they would not pay.

11. Whilst the complainant was closing the rear passenger door, he felt a punch to the back of his head. He saw the offender in front of him with a raised left fist at face level. The offender using a left fist punched the victim on the right cheek causing immediate pain and bleeding. The victim said “Oh my God” before falling to the ground onto his knees and covering his face.

12. The offender and the co-offender punched the victim around the head area several times. During this time, the complainant lifted his right hand up to shield himself, his right hand was punched, which also caused immediate pain. The complainant felt blood coming down his face.

13. The complainant was disorientated and lay on the ground for about 2 to 3 minutes. There was a brief sensation of loss of consciousness. When he looked up he saw the offender entering the taxi and picking up the complainant’s brown leather wallet (containing bankcards, Medicare card, health care cards and $300 in cash), as well as a Calvin Klein brand reading glasses box containing reading glasses and a maroon coloured coin box containing about $20 worth of loose coins. The offender was holding those items with both of his hands.

14. The co-offender said to the offender “You got all the money?” The offender said “Yes I got all the money.” The complainant did not say anything to them because he was scared. The complainant saw the offender and the co-offender walk into the front entrance of the unit block at 32 Arthur Street and this was the last time that he saw them.

15. After the offenders had left the complainant got back into the taxi and locked the doors before calling triple-0. He was bleeding from the mouth and there was blood on his clothes and in the taxi. Police shortly after attended the location and spoke to the complainant who was treated by ambulance officers and taken to RPA Hospital for treatment.

16. The complainant suffered a fractured cheekbone, bruising to his hands and lacerations inside his mouth. At no time did the complainant give permission to the offender or the co-offender to assault him or to take his belongings.

17. The police investigation began with an examination of the CCTV footage which was recorded from inside and outside of the taxi. Police obtained images of the suspects depicted in that footage. Police identified the front passenger depicted in the footage as being the offender and the rear passenger as being the co-offender.

18. The offender lives at 30 Arthur Street directly next to 32 Arthur Street where they were dropped off by the complainant’s taxi. On 21 August 2017, police executed a search warrant granted by Parramatta Local Court at 30 Arthur Street. During that time the offender was present at the location. He was arrested and conveyed to Newtown Police Station where he was introduced to the custody manager and explained his rights. He was given an opportunity to speak with his solicitor. Shortly afterwards the offender agreed to participate in an electronically recorded interview, in which he told the police a number of things including the following:

1. he denied being in the Redfern or Alexandria area the morning of the offence;

2. next he said that the Metro Service Station was near his workplace;

3. next when asked what he was doing during the weekend of 19, 20 August 2017, the offender said he started work in the morning of Saturday 19 August 2017 at a construction site in Eveleigh;

4. he finished work at 2pm on 19 August 2017 and

5. returned to 30 Arthur Street, his brother had driven him home;

6. next the offender stated that he was asleep on the couch at 30 Arthur Street from 2pm 19 August 2017 until he was woken up by police at 3pm on Monday 21 August 2017. He said that he did not leave the house during that 49 hour period, and he was only awake to go to the bathroom and to eat food;

7. next when the allegations were explained to the offender the offender declined to make any comment;

8. next he was shown photographs from inside the taxi, he said the person depicted in the photo was not him and that he did not know who the person in the back seat was.

19. As a result of a search warrant at 30 Arthur Street, police seized a black and grey Calvin Klein brand glasses case with glasses on the side table of the bedroom identified as the bedroom of the offender. Also located and seized on the same side table was a maroon glasses case. These items were later identified by the complainant as his belongings and those that were stolen from the taxi on the date of the offence. The complainant later participated in a computer photographic identification line-up, during which he singled out photograph 19 as a picture of the man in the front passenger seat. That was a photograph of the offender.

OBJECTIVE SERIOUSNESS

20. In considering the seriousness of the offending, both the Crown and the offender have referred in submissions to the guideline judgment in R v Henry (1999) 46 NSWLR 346. The circumstances which existed in that case are not dissimilar, with a few exceptions, to those which exist here.

21. The first is in Henry the offender was a young offender with no or little criminal history. In this case the offender was born in 1996 and is currently 22 years of age. He is accordingly, a young offender. But unlike Henry the offender has a significant criminal history which is best summarised by the submissions provided on his behalf in this sentence hearing.

22. The second factor in Henry relevant to the assessment of the guideline judgment in that case, was the fact that a weapon such as a knife capable of killing or inflicting serious injury was used. In this case there is no such weapon like a knife or other weapon, capable of killing or inflicting serious injury. I do note, however, that perhaps counteracting that factor, is that in this particular case there was violence and harm caused to the complainant by reason of the attack by the two offenders.

23. The third factor which characterises the judgment in the matter of Henry is that there was limited degree of planning. In my opinion the same can be said of this offending.

24. The next matter was that there was limited if any actual violence but a real threat thereof. Again, in this case there was actual violence inflicted by the bashing of the complainant by the two offenders.

25. The next consideration of the Court in the matter of Henry, was the victim in a vulnerable position such as a shopkeeper or a taxi driver. The complainant in this case falls within that category, being a taxi driver.

26. The next consideration in the matter of Henry, was that a small amount of money was taken, the same applies here.

27. The final matter to which the Court had regard in the matter of Henry was the fact there was a plea of guilty. Although the Court noted that the significance of that consideration was limited by the fact that the weight to which that consideration ought to be given may be affected by the strength of the Crown case. In this particular case the Crown case based upon the CCTV footage taken from within the taxi was strong and it seems to me a conviction on the evidence as I understand the evidence was most likely inevitable.

28. In any event the plea of guilty is a matter to which the Court will have regard in sentencing and it is also a matter which enlivens the guideline judgment of Henry.

29. I note that in Henry there was a head sentence imposed between four and five years. It is submitted on behalf of the Crown and accepted by the offender that the seriousness of the offending in this case falls within that range.

30. The reasons explained by the Court in Henry were that offences of this kind are prevalent in the community and ought to be denounced and there must be an element of deterrence in any sentence applied to an offender who engages in this form of conduct. There are many vulnerable people who, by participating in employment such as shopkeepers, service station attendants or taxi drivers, expose themselves in the performance of their work to random acts of violence by third parties. Such violence often includes further acts of robbery such as in this case.

31. In my view, applying the considerations of the matters referred to by the Court of Criminal Appeal in Henry, the offending in this particular case falls within the low to mid-range. Nevertheless, I am of course assisted by the guideline judgment provided by the Court of Criminal Appeal.

AGGRAVATING AND MITIGATING FACTORS

32. As for any specific mitigating or aggravating factors, the Crown submits that an aggravating factor is that the offender was on conditional liberty at the time of the offending and was serving a period in the community on parole when this offending took place. That is a matter to which the Court can have regard as an aggravating feature under s21A(2)(j).

33. The offender’s record of previous convictions is also a matter to which the Court would have regard in considering the seriousness of this offending.

34. The fact that the offending was committed in company is of course an ingredient of the offence and not a separate aggravating feature.

35. It is plain also from what occurred that the offending took place for financial gain, albeit as in the matter of Henry, in a fairly trivial sum.

SUBJECTIVE CASE

36. In terms of the offender’s subjective case, I have been provided with a number of documents which form Exhibit 1 on the sentence hearing. First is a psychological report of Patrick Sheehan dated 29 May 2018. Mr Sheehan is a psychologist who assessed the offender by way of audio visual link on 29 May 2018. He also had access to a number of documents referred to at the base of page 1 of his report, but it seems that no contact was made by the psychologist with any other member of the offender’s family. It is also not clear from the report whether any tests were administered, noting of course that such a procedure may have been complicated by the fact that the interview took place by way of AVL.

37. In any event, the report provides a useful background to the offender’s subjective case. He was born on 19 January 1996 to Aboriginal parents in Sydney’s inner west. He is the youngest of six children, with three older brothers and two older sisters. The family unit remained intact and the offender provided the psychologist with a favourable account of his childhood. He said that neither parent had substance abuse issues and there was no history of family violence. His father worked as a labourer and traffic controller. The offender described his parents as being caring and attentive. They did their best to provide him with a good life and a pathway to personal responsibility.

38. The offender told the psychologist that his mother and two of his siblings suffer from schizophrenia and require daily medication to offset the effects of that illness. The offender however denied ever observing any psychotic behaviour in any of them and denied that any of his family had been hospitalised, which in the mind of the psychologist raised some question as to the validity of the allegation made by the offender to the psychologist.

39. This is an example of the caution which the Court must apply in approaching a psychologist’s report of this type which is not the subject of testing through questioning in cross-examination.

40. In the consultation with the psychologist, the offender traced his own anti-social behaviour to commencing when he was aged about 12. He began socialising with anti-social peers who influenced his behaviour. I will come in a moment to his criminal history which demonstrates a pattern of conduct, which has continued up until this period of offending.

41. In terms of his education, the offender did not report any particular learning problems at school, but there were problems with conduct in that he often fought with peers. He attended a number of schools to which he generally poorly adjusted. He completed his schooling it seems at the Edgeware School, being a behavioural school for conduct disorder children who cannot adapt to mainstream schooling. He completed years 9 and 10. His education was interrupted by several arrests and being detained in juvenile institutions.

42. There is a limited history of employment although as I will note in a moment the offender relies upon a reference from Ms Ingersoll dated 7 June 2018 which goes to the question of his employability.

43. The offender according to the history provided to the psychologist commenced smoking cannabis at the age of 12. He used the drug to relax and because his friends were doing it. His consumption of that drug increased throughout his teenage years. He also began using alcohol.

44. In terms of his general medical history there was no medical history of any significance provided to the psychologist. He has never for example been admitted to a psychiatric hospital.

45. The psychologist formed the opinion that the offender’s substance use history would meet the diagnostic threshold for substance use disorder having contributed to behavioural problems. The Crown cautions the weight to be given to the opinion of the psychologist in making a psychiatric diagnosis and relies upon authorities in support of that submission. In the view of the psychologist, the offender also met the diagnostic criteria for anti-social personality disorder.

46. In considering the report of the psychologist, I have regard to the fact that he is not psychiatrically qualified and is not, through his training and education, qualified to diagnose psychiatric conditions pursuant to the diagnostic manual for such diagnosis. Nevertheless I am mindful of the fact that a psychologist would be aware of such conditions and perhaps through his experience if not his training, is able to express a view as to the existence of such conditions.

47. I have also been provided with a Corrective Services Case Note dated 25 January 2018, which indicated that whilst at Lithgow Correctional Centre the offender completed a First Aid course.

48. There is also a Juvenile Justice Case Note dated 19 December 2011, indicating that he had completed his year 10 studies.

49. Also part of Exhibit 1 is a Juvenile Justice Case Note dated 15 April 2011, indicating tragically that the father of the offender had passed away at or around that time.

50. I have already made mention of the fact that there is a reference from Ms Ingersoll. It is dated 7 June 2018 and refers to the charges for which the offender is to be sentenced. The author of the reference stated that Zenith Workforce, of which she is the human resources manager, employed the offender from 26 April 2017 to 20 August 2017 as a construction worker/labourer. His main duties included manual handling, use of power tools, site cleaning and general labouring work on commercial construction sites across the Sydney metropolitan area.

51. Throughout his employment with Zenith the author of the character reference noted that the offender was found to be “reliable, punctual and hardworking employee”. He always displayed a positive attitude and is referred to as being a role model for his worker colleagues.

52. Ms Ingersoll also referred to the fact that the company had received excellent feedback from various clients on numerous occasions regarding the offender. I note that the character reference by Ms Ingersoll refers to the offender by the name of Adam, in other parts of the letter she refers to him by his correct name. That may well be a typographical error, or this could well be a letter which she generates in circumstances such as these for employees such as the offender. In any event, to the extent that it refers to the offender I have had regard to the contents of the character reference.

53. I have also been provided with a personal reference from Katoalu Fauonuka, dated 18 June 2016. It also refers to the reason for the offender being in court today. Ms Faunouka is the girlfriend of the offender and they have been together since July of last year, during which time she has known him to be generous, kind hearted and reliable.

36. In her letter she states that the offender is very remorseful and regretful for his actions. He has been very apologetic repeatedly in letters and phone conversations with her. Reference is also made to the fact that not long before the offender was arrested she, that is Ms Fauonuka, had found out that she was five weeks pregnant with their child, giving birth to the child in April 2018.

37. Ms Fauonuka works fulltime at Coles, having been employed there for some three years, although is currently on maternity leave looking after their child. She stated that the offender is very determined to turn his life around for her and for their daughter, but most importantly for himself.

38. Whilst I have taken the contents of that letter into account in sentencing the offender, it is unfortunate that his expressions of remorse and contrition have not been provided by the offender himself in the evidence before the Court.

39. Generally in terms of the subjective case, the offender’s family history appears to be quite stable and supportive. His education appears to have been disrupted and his employment has been sporadic.

CRIMINAL HISTORY

58. Given the offender’s criminal history, he is not a person who it might be said is entitled to any leniency for good character. I do note, however, that he has pleaded guilty to this charge at an early stage which will be reflected in a full discount on his sentence of 25%.

59. In the matter of R v McNaughton (2006) 66 NSWLR 566 the Court of Criminal Appeal sat a bench of five explaining how the Court is to approach a prior criminal record in sentencing an offender. I have had regard to the seven considerations referred to in that decision in considering the appropriate sentence for this offender.

60. His criminal antecedents are the subject of a document which forms part of Exhibit A. The offending commenced at an early stage of his life. On 13 March 2010, he was charged with robbery in company for which he received a community service order. Again on 12 June 2010, he was charged and convicted on the offence of robbery in company. There have been a number of breaches of bail and the like also referred to in the criminal history. On 18 June 2010, he was charged with possessing a prohibited drug, that charge was dismissed with caution. On 22 February 2011, he was charged with robbery in company. As a result of that charge he was sentenced to a control order of 10 months with a non-parole period with conditions of five months, otherwise released to be supervised by Juvenile Justice.

61. The next charge was dealt with in the District Court and the charge date was 14 June 2014, in respect of an offence allegedly committed the same day. The offence was aggravated enter dwelling with knowledge the person being there. In respect of that offence the offender was imprisoned for a period of 18 months, which was then suspended on the basis that he enter into a bond for 18 months.

62. On 15 June 2016, the offender was called-up in relation to a breach concerning the offence previously referred as having taken place on 14 June 2014. As a result of that call-up the offender was imprisoned for a period commencing 7 May 2016 concluding 6 November 2017, that is a period of 18 months with a non-parole of six months.

63. The offender’s criminal antecedents runs for some 11 pages and I do not intend to record each of the offence and each of the sentence given in respect of such offending. I do, however, note that the nature of the offending generally involved matters of assault, destruction of property and being in possession of goods suspected of being stolen.

64. In the submissions provided on behalf of the offender the following is said as to the offender’s criminal history:

“The offender found himself in a negative peer group at an extremely young and susceptible age. His record shows that he had been sentenced for 17 offences by the age of 14. He committed offences of robbery in company at the ages of 14 and 15 years and received full time juvenile detention as a result. The offender received his first sentence of detention when he was 14 years old. He has been in and out of custody since that time.”

65. Nevertheless, it was submitted on his behalf that whilst in the community he has abstained from offending during his last period in the community for a period of five months demonstrating capacity to be a “positive” member of the community.

66. Submissions were also made on the basis that the Court should take into account the fact that the offender was intoxicated at the time of the offending. I have already referred to that fact. It is relevant in that it demonstrates a lack of planning on the part of the offender which, therefore, does not further aggravate the offending.

67. The solicitor for the offender quite fairly has conceded that her client has met the threshold under s5. That is, that there is no sentence other than fulltime custody which is appropriate. It was submitted, however, that the commencement date be back-dated to 21 August 2017, being the date upon which the offender commenced serving the balance of parole following the breach for these offences.

68. I agree there should be some back-dating of the commencement of the sentence. However, I do not accept that it ought to be for the entirety of the period in custody for the prior offending. I intend to commence the sentence in respect of the current matter on 1 January 2018.

SPECIAL CIRCUMSTANCES

69. Finally, on behalf of the offender it is submitted that special circumstances exist, they being the need for support of rehabilitation, the need for supervision and by reason of his youth. There is no doubt that he is a young offender but at the same time he is also an offender who has offended repeatedly since a very young age. There is also no doubt that he requires rehabilitation and, in my view, the special circumstances exist so as to warrant a departure, albeit small, from the statutory ratio of period spent on parole.

PURPOSES OF SENTENCING

70. In considering what is an appropriate in this case I have had regard to the purposes for sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act1999. Whilst no doubt punishment is of upmost importance, deterrence in this case also has great relevance. Both specific and general deterrence are matters to which I have had regard in sentencing the offender.

71. There is also a need given his history of offending to protect the community from the offender, which will be reflected in the sentence to be imposed.

72. At the same time, I accept that he would benefit from rehabilitation and for that reason I will adjust the statutory ratio from the period on parole to allow for some rehabilitation in the community. Accountability of course is also a necessary feature of sentencing and I have arrived at a sentence which, in my view, reflects that matter.

73. There is no doubt that denunciation is required. The offender is a recidivist in that he has on many occasions committed criminal offences from a young age. Such conduct requires denunciation by this Court both directed towards the offender and people in his situation.

74. In sentencing the offender, I recognise the harm which he did to the complainant. Not only was he robbed of his property but he was beaten by two much younger men in circumstances which created fear and resulted in injury.

IMPRISONMENT

75. Before arriving at a sentence of imprisonment I must be satisfied, having considered all possible alternatives, that no sentence including non-custodial sentences other than imprisonment is appropriate. Both the Crown and the offender accept that the threshold under s5 has been met and I agree. I consider that a period of imprisonment is the only appropriate sentence in this case.

DISCOUNT ON SENTENCE

76. I have of course had regard to the guilty plea and I accept that the offender is entitled to a discount on sentence of 25%.

PARITY

77. Although there is a co-offender in relation to this offending, he has not yet been sentenced and, therefore, no issues of parity arise today. Of course such matters may arise in relation to his sentencing which may take place in the future.

STATISTICS

78. I have also had regard to the statistics provided by the solicitor for the offender which demonstrate that, in relation to offences of this type in the case of a guilty plea and an offender in this age range, 93% of offenders go to prison and that the average period of imprisonment is approximately four years.

79. It is important that the Court, in having regard to statistics, not give undue weight to them. In this particular case I am more influenced by the guideline judgment of Henry given the similarities between this case and Henry, to which I have already referred.

SENTENCE

80. In relation to the charge of robbery in company, I convict you of that offence, and I impose a non-parole period of two years commencing 1 January 2018 expiring 31 December 2019 at which time you will be released on parole.

81. I also impose a head sentence of three years which will expire on 31 December 2020.

82. I direct that a copy of the report by the psychologist accompany The Offender’s Warrant, that is the report of Patrick Sheehan of 29 May 2018.

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Decision last updated: 27 November 2018