R v DL

[2020] NSWDC 365

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DL [2020] NSWDC 365

Hearing dates:

27 March 2020 & 06 April 2020

Decision date:

06 April 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Sentence of imprisonment of 2 years to be served by way of Intensive Corrections Order

Catchwords:

CRIME — Violent offences — Armed robbery with wounding

SENTENCING — Guidelines for sentencing — Applicable to juvenile offenders

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Penalties — Intensive correction orders

Legislation Cited:

Children (Criminal Proceedings) Act1987

Crimes Act1900

Crimes (Sentencing Procedure) Act1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Henry Guideline Judgement [1999] NSWCCA 111

R v Fernando (1996) 76 A Crim R 88

Category:

Sentence

Parties:

Regina (Crown)
DL (Offender)

Representation:

Mark Hay (Crown Prosecutor)
Garry Jauncey (Counsel for the Offender)

Solicitors:
Sarah Tait (Crown)
Horst Merten (Mertens Lawyers)

File Number(s):

2018/00092004

Publication restriction:

No publication of the name of the Offender by reason of his status as a child for the purpose of the proceedings

EX TEMPORE REVISED JUDGEMENT

Introduction

1. DL was born in 2000 and will this year reach 20 years of age. He is before the Court for sentence for an offence contrary to s 96 Crimes Act 1900 expressed in the following terms, that he:

“On the tenth day of March 2018 at Narrabri in the State of New South Wales robbed GK of a handbag containing an amount of Australian currency, a mobile phone, bank cards and other personal items, the property of GK, and at the time of the robbery used corporal violence on GK, and inflicted grievous bodily harm upon GK.”

The Maximum Penalty

2. The maximum penalty specified for this offence is imprisonment for 25 years. There is no standard non‑parole period for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Pre-Sentence Custody

3. The offender has spent only three days in custody. The coversheet specifies two but from my note that he was arrested on 22 March 2018 and was not released until 24 March 2018, I calculate that as three days.

4. At the time of the offence he was subject to parole given in respect of two control orders imposed upon successful appeals to the District Court of New South Wales where in respect of those matters the Judge reduced the custodial component of the sentences imposed, and in respect of one of them, varied the head sentence down by six months. He was subject to those periods of parole at the time of the offences before this Court.

The Facts

5. When I read the statement of facts, my immediate response was that this young man should go to gaol for a significant period of time, particularly in light of the criminal antecedents that he has accumulated. However having heard Mr Jauncey speak as eloquently as he did on his behalf and in light of the very fair concessions made by the learned Crown Prosecutor, I have decided to take another course for a number of reasons to which I shall come.

6. I agree with the Crown submission that this misconduct is serious and although below midrange of objective seriousness was such that the proscription in s 5 Crimes (Sentencing Procedure) Act 1999 obviating the imposition a custodial sentence unless all other options have been considered is engaged, I am satisfied that this misconduct does require specification of a period of imprisonment but I will in due course, order that the sentence be served by way of an Intensive Corrections Order in the community.

7. The victim in this crime is a woman now in her late 80’s. At the time of the offence she was 86. The offender was aged 17. He was as I said, subject to parole under supervision from Juvenile Justice who had given him temporary permission to move from Glen Innes to reside at Narrabri between 2 March and 23 March 2018. It was within that period on 10 March 2018 at 8.30am when the victim suffered at his hands.

8. She left her home in Narrabri attempting to walk to the local shops. She had a black handbag, slung across her body containing the various items of property particularised in the charge. As she passed the intersection of Barwon Street and Lloyd Street the offender began to follow her from a short distance behind. He followed her as she continued along Barwon Street and crossed the intersection of Doyle Street.

9. She reached a point about 20 minutes from the corner of Dewhurst Street still on Barwon Street. She was at that point outside Narrabri TAFE. The offender suddenly knocked her from behind. She fell to the ground after striking the boundary fence erected around the TAFE. Her glasses were knocked from her head.

10. She suffered pain in her right shoulder and her head from the fence, and forearm and leg where she struck the ground. He then took hold of her handbag and pulled on it with enough force that at the point where the shoulder strap attached to the back of her handbag it separated, causing the bag to come free from her body. He then fled.

11. A passing motorist offered her assistance and took her to the Police Station where the investigation commenced. An ambulance was called and she was taken to the Narrabri Hospital. Closed circuit television footage was available to track the movements of the victim and the offender leading up to the attack. The offender’s face and clothing were depicted from the various cameras.

12. About 8pm on Sunday, 11 March 2018 he was seen walking in a back lane behind Barwon Street, Narrabri carrying the victim’s handbag. He was challenged by a patrolling security officer. He panicked, and threw the handbag at the security officer before escaping from the scene. The security officer contacted the police. The bag was confirmed to be that of the victim. All her property was recovered except for $300 that she had in her wallet.

13. On Tuesday, 13 March 2018, the offender boarded a train at Narrabri Railway Station where he was captured on closed circuit television footage, dressed similarly to when he committed the offence. The passenger manifest for the train showed him in the list travelling to Armidale Railway Station.

14. On 15 March 2018, he reported to Juvenile Justice at Armidale to advise that he was no longer staying in Narrabri. At 10.15am on Thursday 22 March 2018, he attended Armidale Police Station and surrendered himself and was arrested. He participated in an interview but denied the incident although he agreed that he was depicted in the various closed circuit television images.

15. Prior to this event the victim lived independently. She catered for herself. She walked with no difficulty. At the hospital on the day of the incident she was treated and admitted and stayed there for three days. She was very weak and was later able to mobilise with assistance of a wheeled walker. X‑rays were reviewed remotely by a radiologist who initially reported that there was no fracture.

16. There were follow‑up appointments with another doctor on 26 March 2018, 12 April 2018 and 19 April 2018. During those consultations, she reported that she was unable to walk without support, that she was not sleeping at night, and was no longer able to go up the street to do her hair or play bowls as she had done in the past. The doctor deemed it appropriate to refer her to a surgeon, Dr Sharpe in Tamworth.

17. An MRI showed a displaced fracture of the right sub‑capital neck of the femur. It was deemed that the victim required a right hip hemiarthroplasty. That is a replacement of half of the hip using cement. She was admitted to Tamworth Hospital. On 30 April 2018 and on 3 May 2018 the procedure was performed. It was uneventful. She made a steady and standard recovery and was discharged with no major issues on 4 May 2018, back to her general practitioner. She underwent physiotherapy and occupational therapy. She was prescribed medication, including analgesia.

18. A post‑operative X‑ray was satisfactory. She was to continue with physiotherapy in Narrabri and to be checked by her general practitioner after her procedure. There was good prognosis for recovery but there were certain activities that she had been able to perform prior to the operation that would now no longer be sensible because of the high risk they involved. If she tried to flex her leg, twist or bend, there was the possibility she would dislocate her hip.

19. She was not likely to have permanent disfigurement but there was a chance that a permanent limp might arise if the muscles did not fully recover.

20. The need for the surgery arose on 19 March 2019 when a radiologist reviewed the X‑ray from 12 March 2018. He was of the opinion that there was evidence to suggest that at the junction of the femoral head there was a slight buckle and this likely reflected a displaced fracture. The facts then proceed to provide a summary of what was found upon the review of the X‑Rays from time to time.

21. There is a victim impact statement and I bring that to account as I am required to do. It has given the victim the opportunity to expose to this offender, the consequences of his behaviour. It has given her the opportunity to put before the Court what she suffered and the changes in her life as a result of it. She described having been violently pushed and robbed, resulting in the fractured hip.

22. She has become socially withdrawn and lost her independence. She relies on her daughter to assist her with daily life activities such as shopping and attending appointments. She is unable to walk to the shops, attend medical appointments, hair appointments, engage in lawn bowls or do her own gardening, or go on bus trips or participate in Meals on Wheels which she once did. Her social life has been curtailed. She continued to suffer pain for several months following the attack. She suffers from a significant loss of balance. She needs assistance from Home Nursing for daily and weekly activities of showering, housework and gardening.

23. Her daughter arranged to have the locks changed on her house because her house keys were in the stolen handbag. She also had to cancel her cards and organise new bank accounts and Medicare and pension cards from Centrelink while she was in hospital. She now has mobility issues. She has a “wheelie walker”, as she describes it, to help with her balance especially at night.

24. She has a fall alert pendant device which she wears 24‑hours a day. She has incurred out‑of‑pocket expenses following this event which have added up to $2,000, including medical expenses, fuel for travel, home nursing, and other requirements. She has been diagnosed with post‑traumatic stress disorder anxiety and insomnia. She suffers nightmares and has in this latter part of her life been diminished from the active although elderly woman that she was.

25. Regrettably, these matters are not so extreme as to amount to exceptional circumstances that would aggravate the offending. It is what one would expect from an attack upon an 86 year old woman left with a fractured hip.

The Offender

26. The offender when interviewed by the officers from Juvenile Justice, attributed to him a lack of memory of the event no doubt because of his ingestion of prohibited drugs; his motivation in those circumstances may be accepted to be the pursuit of money so that he could continue to use illicit substances.

27. He was born in 2000 as I noted previously. He has an unenviable record of antecedents. His first entry into the Children’s Court was in September 2015 for driving never having been licensed, driving a conveyance taken without consent of the owner and engaging in a police pursuit. Conditional liberty followed and in July 2016 he was called up for the driving a conveyance taken without the consent of the owner and the pursuit offence. He was made to submit to a control order in respect of each for a period of nine months concurrent with a non‑parole period of one month in each instance with supervision. For entering enclosed lands on the same occasion, the offence was dismissed with a caution and for stealing a motor vehicle he was subject to a control order entirely concurrent with the other sentences.

28. In June 2017 for damaging property, he suffered another control order for nine months, and for the assault occasioning actual bodily harm, he suffered a control order for 18 months with a non‑parole period of nine months. He appealed to the District Court. The matter was dealt with on 24 July 2017 with variations for the damage to property, reduced from nine months to two months. For the assault occasioning actual bodily harm the sentence was reduced to 13 months with a non‑parole period of three months with conditions.

29. On 22 June 2017, for stealing from a person, he was made subject of a control order for 18 months with a non‑parole period of nine months. For stealing from a person again, a similar term concurrent. For aggravated break and enter in a dwelling he was made the subject of a control order with a non‑parole period of nine months, again entirely concurrent. For an offence of aggravated robbery using corporal violence, he suffered a control order with a non‑parole period of nine months, again entirely concurrent.

30. He appealed to the District Court in respect of those matters. They were dealt with at the same time as the earlier appeals. Again, the orders were varied. In this instance, the head sentences of 18 months remained intact but the non‑parole periods were reduced to six months in each case concurrent.

31. There are other offences. In July 2016 of stealing from a shop and resisting an officer in the execution of duty he was made subject to control orders of one month and nine months respectively with a non‑parole period of one month for the longer sentence. In June 2017, for goods in custody, there was a control order for three months. In July 2017, in the District Court in Armidale, once again he was successful; he had the order varied to one month.

32. All of these appeals were clearly available to him as a matter of right. It demonstrates his willingness to pursue opportunities to avoid the consequences of what is serious criminal misconduct deserving of incarceration.

33. I have a record of his custodial history. It is noteworthy that in respect of those matters which were successfully appealed to the District Court at Armidale, resulting in the variations of the custodial components, and in one instance variation of the head sentence, he was subject to parole upon release and was governed by that parole at the time of the misconduct before this Court. There is no action being taken to revoke his parole but the reason is not explained to me.

34. I have also the benefit of the fact sheet speaking to those four offences, including the aggravated break, enter and steal which he committed in company. They broke into a unit in Armidale, stole a large amount of property from the lounge room, kitchen and bedrooms, the particulars of which are set out in the facts. The total value of the property was $7,390.

35. In the steal from a person on 22 April 2017 the victim was a woman aged 85. She left her licensed club and walked to her car. He was captured on closed circuit television footage walking in a circle around the car park, watching the victim, following her as if she were prey. She entered her vehicle, sat in the driver’s seat, and placed her handbag containing a cheque book and other documents and $900 in cash on the front passenger seat. As she began to manoeuvre her vehicle from the parking spot he approached, opened the front passenger door, and reached in and stole her handbag. He then fled. He was captured on closed television as he engaged in that behaviour.

36. The second offence of stealing from the person was on Thursday, 27 April 2017; the victim on this occasion was aged 48. She had finished some shopping in a supermarket in Armidale. She returned to her motor vehicle, parked in the car park complex. She entered the vehicle and sat in the driver’s seat. She placed her handbag with her personal documents on the rear passenger side seat. He approached the vehicle, opened the front passenger door, and she shouted at him. He closed the door before opening the rear door to reach in and steal her handbag. He fled.

37. The fourth offence of aggravated robbery contrary to s 95 Crimes Act 1900 was upon a woman aged 28, a university student, who parked her car in the car park of her college. She began walking towards the entrance to her building. She was carrying a plastic bag in her left arm and her handbag, containing her phone, a wallet and keys, over her right shoulder. She saw the offender as she was about 10 metres from the entrance to her building. He grabbed her from behind using both arms. He then used his right arm to put her into a headlock before forcing her to the ground. She immediately began screaming. She struggled and he released her before taking a hold of her handbag. He attempted to pull that from her but the strap held and he was unsuccessful. He pulled her with such force that he dragged her across the path onto the grassed area causing bruising to her right arm. Her mobile phone fell from her handbag and he took it. She continued screaming. A number of people came to her assistance and he fled.

38. The facts are more detailed than I have described but that summary captures the essence of the abhorrent behaviour upon which he engaged on that occasion.

39. He was subject to parole in the periods from 28 April 2017 to 27 May 2018, and also from 28 April 2017 to 27 October 2018, as a result of his successful appeals to the District Court in Armidale. The offence he committed on this occasion was on 22 March 2018.

40. One might wonder what was said on his behalf before the Judge in Armidale, to persuade him to extend the leniency that was granted notwithstanding which he embarked upon the serious criminal behaviour that I am now to deal with.

41. I have Mr Jauncey’s written submissions. They are lengthy and thorough as they tend to be. He has covered all bases upon which he can hopefully mitigate the penalty to what this offender has exposed himself.

42. There is a careful and thorough analysis in a psychological assessment prepared by Laura Durkin on 18 March 2020.

43. As in so many cases, this offender chose not to give evidence in the proceedings for the determination of his future. However he called his partner, Ms Weatherall, who has known him for some six years. They have been in a relationship for some three years and have been living together for 12 months. Much of what she had to say was of limited value because it was largely hearsay representation but she could speak of his current circumstances, including his efforts to rehabilitate and to improve his position, to maintain work, obtain an apprenticeship, and his abstinence from prohibited drugs with the occasional drink of alcohol.

44. Ms Durkin in her report speaks of his current circumstances including stable accommodation, consistent work and an abstinence from problematic substance abuse. She speaks of his family and development history which has been appalling. He is the second of four children born to his parents. His siblings are aged 21, 16 and 10 years respectively. When he was six years old, his parents separated due to his mother’s abuse of illicit drugs. His father apparently re-partnered thereafter. He is not sure of his mother’s present circumstances. Neither parent had further children. He recalls little of his early life but has been advised that both were struggling with substance issues during his infancy and early childhood.

45. His parents were unable to care for him and in due course, family and Community Services became involved. This prompted his father to take stock and redirect his life so that he could in due course win custody of the children and provide care for them. Thereafter it appears he has done his best to achieve that outcome. Notwithstanding this, the offender apparently left him to return to his mother for some period of time before returning to his father and then ultimately formed his present relationship and current lifestyle.

26. There is a description of their domestic circumstances when he was under the care of his mother and father in unclean, unhygienic premises, and the contrast with the home that his father was subsequently able to provide for the offender and his siblings. There was some conflict with the appellant’s defacto stepmother, and that contributed to him avoiding home. He has for a good part of his life lived independently and not surprisingly at his age with his resources, he struggled to maintain stable housing and spent periods couch surfing.

27. His older sister was the significant person in his life. She apparently provided the care that she could notwithstanding her own limitations from her own limited maturity and the challenges she faced in that environment.

28. He completed Year 10 at TAFE. He was somewhat disreputable in school, defiant, and he terminated before the School Certificate. He sought qualification as a barista and in construction, and has had jobs at various periods of his life, demonstrating a capacity to commit himself to work.

29. His psychosocial history is discussed, with his relationship and the benefits that are attaching from it. His medical history is discussed, including having lost consciousness on three occasions, and a back injury in a motor cycle collision in which he said he fractured his spine requiring a surgical procedure to insert a screw to secure the fracture. I have no further evidence about that. It is all based upon his representation but there is nothing to gainsay that he experienced those problems.

30. He was prescribed at some point medication for ADHD but he has no other concerns for his physical health.

31. His drug and alcohol history is troubling as is so often the case. He began with cannabis at the instance of his mother it appears, who also introduced him to the benefits of methylamphetamine. He became a chronic user of cannabis. He extended into other drugs apart from methylamphetamine. He has used MDMA, cocaine, LSD, Magic Mushrooms, and at the time of this offence he described himself, “a crack head”.

32. His criminal history is analysed, so too the offence. The offending was not discussed in this assessment because he had not pleaded to the charge at that point and there was some inconsistency that was detected by the psychologist.

33. He is suggested to be suffering from ADHD and oppositional defiance disorder in the past. He was reticent about discussing his mental health. He claimed a level of anxiety, a measure of flattened mood but no other concerns for his mental health. Psychometric testing was not pursued because of the lack of time available. The report at para [42] includes the following:

“... part of DL’s life was marred by his parent’s instability. Neither appeared to have been adequately able to offer him an appropriate level of care, and although DL indicated that his father was a stable and loving care giver, it is noted that he was physically abusive and unsupportive to DL throughout much of his development. Indeed, he evicted DL from the family home when he was 13 years old, issuing a particularly early independence. DL’s sister seems to have attempted to provide him some assistance, but he reportedly resisted her and began associating with negatively influencing peers who seemed to have shaped his conduct and views in a negative way, resulting in DL participating in crime and some drug use throughout his adolescence.”

54. The report then notes significantly that he does not appear to have become enmeshed with an antisocial subculture. I am not quite sure about that but what is apparent from the evidence I have before me is that in recent years he has distanced himself from others with whom he engaged in misconduct and has formed a stable relationship with his current partner. I note that she is three years older than he is or thereabouts which is not a significant period in the modern era. She gave evidence and appeared to me to be a sensible mature young woman who might be the benchmark against which the offender can measure his behaviour and hopefully continue to engage as a worthwhile member of the community.

55. It is clear that he has had insufficient support structures in his life up until his association with this young woman, apart from efforts his sister has made on his behalf. His father doing the best he can, has been less than patient with him and his mother by all accounts, appears to have been nothing but a burden.

56. I am supported in these views and the opinion adopted by Laura Durkin when I read the confidential background report provided by Juvenile Justice. This report provides a comprehensive analysis of his past offending. It records his completion of alcohol and other drug counselling at ACMENA Youth Justice Centre, the case notes from which indicate that he engaged well. He participated in psychological counselling and presented as consistently polite and respectful when participating in counselling. He was referred by Youth Justice to the Junaa Buwa Rehabilitation, 12 weeks live‑in program at Coffs Harbour. He entered it on 27 October 2017. This provided a three month drug and alcohol program with regular counselling and therapy.

57. He participated in vocational and educational programs and participated in living skills such as cooking and budgeting, sport and recreational programs. According to the case notes, he was regarded as a leader during the final term of the program. He graduated from the program on 12 January 2018. Discussions with the Armidale Youth Justice caseworker, Mr Harvey, said that appointments had been somewhat sporadic due to his accommodation issues but when he attended, he engaged the role and participated at a high level. He is also willing to continue in whatever programs might benefit him and assist him to desist from his misbehaviour.

58. His early years were traumatic as represented by him. His movement with his siblings is described. His departure from his father in April 2015, to return to live with his mother at Raymond Terrace was discussed and then he returned to live in Glen Innes to live with his father and stepmother thereafter. This involved some instability and deterioration in the relationship with his father and stepmother and he was no longer welcome.

59. He relocated to the Tamworth Youth Refuge for a period of time and then the Armidale Refuge in September 2016. At the time of this report, he had independent accommodation in Glen Innes, living with his partner, Ms Weatherall from whom I heard, and his younger brother.

60. His father has been interviewed by these officers and he represents that the offender is a completely different person now settled and more stable. He has goals of securing an automated mechanic’s apprenticeship. He has completed Certificates I, II, III and IV, in automotive mechanics, which I find evidences his commitment to the qualification he seeks.

61. He worked on a part‑time basis in a mechanic shop at Glen Innes. He completed Certificate II in construction at TAFE and has completed and obtained certificates for a forklift licence, Burmers Powerlines, Centrelift, Confined Spaces and Bobcat Operation and Traffic Control. To earn money in winter, he cuts wood and is currently working casually as a forklift operator. These are circumstances that were extant at the time of the report written in November 2019.

62. He reports having removed himself from his negative peer associates and does not want to involve himself with them. His substance use is discussed. His successful completion of programs again is discussed. There have been a number of interviews conducted by the officer or officers to assess his leisure and recreation activities, personality and behaviours, and his attitudes and beliefs. His misconduct is clearly linked to alcohol and drug abuse, and his impulsivity and poor problem solving skills, no doubt the product of his upbringing.

Findings

63. Thus, having commenced this exercise in the clear anticipation that I was going to be incarcerating this young man, I bring to account what has been said in decisions such Bugmy [2013] HCA 37 and Fernando (1996) 76 A Crim R 88 and as well as what was said by Justice Wood, Chief Judge at Common Law in the Henry Guideline Judgement [1999] NSWCCA 111. He has made significant progress. I note his youth. He has put before the Court, sufficient material to persuade me that he should have the opportunity to stay on the narrow path and continuing his evolution toward complete rehabilitation.

64. I note that he admitted this offence from day one and that the only delay in the conduct of the matter and his ultimate plea of guilty was the extent to which it might be shown that the victim had suffered grievous bodily harm. That confusion came about through the misreading of X‑rays by a medical practitioner after which further investigation revealed the full extent of her injuries amounting to grievous bodily harm.

65. I am also conscious of the fact that he has been subject to bail for the period throughout this adjournment until the resolution of this matter, including the curfew and reporting conditions. I also bring to account that he has had his liberty curtailed in the courses and rehabilitation program of 12 weeks that he undertook. I accept that he has done a great deal toward improving his knowledge base to provide a sounder basis for his future and for him and his partner.

66. I do not agree with the submission made on behalf of the offender that I would not entertain a custodial sentence. I have heard the Crown’s submission that the line so‑called in s 5 Crimes (Sentencing Procedure) Act 1999, has been crossed. I am satisfied that there are prospects for rehabilitation. I would not hold that they are at the present moment of high order but there are prospects and it will be a matter for him to build upon them to demonstrate in his own interests that he is capable of living a lawful life. Because of his age, he should be approached as a young person. Because of the nature of the crime for which he is to be punished, he is to be dealt with according to law.

67. Were he to be going into custody today, I would have ordered that he serve a custodial component in a Juvenile Justice facility. I bring to account in the modern era of recent development, the Coronavirus and the risk that all of us face as a consequence of this disease, which is causing such tragedy across the entire globe. It is recognised by the authorities, that people in custody are at risk and where possible steps have been taken to allow people to be released early to minimise the risk of transmission and infection.

68. S 6 Children (Criminal Proceedings) Act 1987, must be considered. I have brought to account the paragraphs contained therein. I note that I am required to have regard to his rights and freedoms equal to those enjoyed by adults, and the right to be heard and participate. He must bear responsibility for his actions but I must reflect upon his immaturity and his need for guidance and assistance. I note in that regard that he has taken the opportunity to exploit those avenues toward his rehabilitation.

69. His education or employment should proceed without interruption wherever possible. He should be allowed to reside in his own home. This and indeed all of these require consideration in the light of the fact that he is living in an adult relationship and that he has passed his eighteenth birthday, but I still bring these to account because at the time of the offence he was a child under the definition of that term in this Act. He should not suffer penalty any greater than that which would be imposed upon an adult. He must be assisted with his re‑integration into the community so that he might sustain his family and community ties. He must accept responsibility for his actions and make reparation where possible and I have to give effect to this violent crime on this victim.

70. All of the purposes of sentencing in the Crimes (Sentencing Procedure) Act 1999 must be brought to account here. They are articulated in s 3A Crimes (Sentencing Procedure) Act 1999. They are to be read in conjunction with s 6 Children (Criminal Proceedings) Act 1987. There must be punishment. There must be recognition of harm. There must be denunciation. General deterrence has its role to play and so too specific deterrence. All of these considerations in their entirety apply in this case. They pull in different directions. For example, the need for punishment and general deterrence must be considered against the need for steps to facilitate rehabilitation and to encourage that course. Moreover, it must be recognised in accordance with Bugmy and Fernando ibid that he has had significant challenges in his life through his formative years. On one view one might find it hardly surprising that he should disengage from the conduct that has brought him before the Court so often. It is to be hoped that on this occasion, that the orders in this Court will facilitate what was no doubt sought to be achieved by the Judge in the Armidale District Court unsuccessfully.

Orders

71. The offender is convicted of the offence of aggravated robbery, causing grievous bodily harm and using corporal violence.

72. He is entitled to a discount of 25% to the sentence that would have otherwise been imposed, reflecting the utility of his plea of guilty, bearing in mind that although it was a plea on its face late in the day, it followed the examination of the injuries suffered by the complainant and when their nature was crystallised he pleaded upon his presentation by way of the indictment.

73. He was committed for sentence on the earlier charge which was upgraded as a consequence of the medical investigations of the victim.

74. I have decided to impose a sentence of imprisonment for 2 years.

75. I am satisfied that I have sufficient material before me to justify the course I am proposing. I have regard to s 66 Crimes ((Sentencing Procedure) Act 1999. Community safety is a paramount consideration when deciding whether to make an Intensive Corrections Order in relation to the offender and I have assessed whether making the order or serving a sentence by way of fulltime detention is more likely to address the offender’s risk of re‑offending.

76. I am satisfied in this case that the Intensive Corrections Order will best serve the offender’s future and address the risk that he might have of re‑offending.

77. There will be conditions. There are standard conditions. He must not commit any offence and he must submit to supervision by Community Corrections and to that end he is to report no later than tomorrow to Community Corrections to arrange for the supervision. Because he is an adult, he is no longer as a I understand matters, required to submit to Juvenile Justice.

78. He will have to report to Community Corrections at Glen Innes.

79. JAUNCEY: I do not think there is Community Corrections there. It is probably better that he report, given that he is at Armidale, perhaps he should report to Armidale. They are more likely to be open.

80. HIS HONOUR: Armidale should be still opened. You could make telephone contact with them.

81. JAUNCEY: Yes.

82. HIS HONOUR: I am to include a condition on this. That he abstain from prohibited drugs and I am also going to require that he participate in rehabilitation or treatment programs, identified for his benefit by Community Corrections for so long as those providing that opportunity, deem it appropriate and necessary.

83. I note the aggravated robbery back‑up charge which is sequence 1 in the series, is withdrawn.

84. DL, just come forward to the microphone. I want you hear what I am going to say to you. You have got a 2 year Intensive Corrections Order. Now I do not know what was occupying the mind of the people who did not revoke your parole but it looks like you might have gotten away with that but if you breach this Intensive Corrections Order, the Parole Authority will be the ones who will deal with you and you will go to gaol for two years and you will go to gaol in another facility at this stage of your life. Do you understand that?

85. OFFENDER: Yes, your Honour.

86. HIS HONOUR: Okay. If you have been truthful and genuine in all that has been said on your behalf, the future might be rather more attractive than your past. Hopefully that is so because you are at that stage of life where if you commit an offence like you committed against this old lady on this occasion, at your stage of life as an adult, your gaol sentence will be closer to six years. Do you understand that?

87. OFFENDER: Yes.

88. HIS HONOUR: I will adjourn.

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Amendments

15 July 2020 - Include solicitor for offender

Decision last updated: 15 July 2020