R v Drew

[2023] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:

R v Drew [2023] NSWDC 187

Hearing dates:

16 May 2023

Date of orders:

8 June 2023

Decision date:

08 June 2023

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [38 - 39]

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

Legislation Cited:

Crimes Act 1900 (NSW)

Crime (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37

DPP (Cth) v De la Rosa [2010] NSWCCA 194

R v Henry (1999) 46 NSWLR 346

Texts Cited:

N/A

Category:

Sentence

Parties:

Rex (Crown)
Drew (Offender)

Representation:

Solicitors:
Hatch / Sinclair for the offender
Webb / Edye for the NSW Director of Public Prosecutions

File Number(s):

2022/00051292

Publication restriction:

N/A

JUDGMENT

1. Tombo Drew, the offender, appears for sentence in respect of one offence being robbery armed with an offensive weapon in contravention of section 97(1) of the Crimes Act. The maximum penalty is 20 years imprisonment. There is no standard non-parole period.

2. I take the maximum sentence into account as a legislative guidepost indicating the legislature’s view of the seriousness of the offence.

3. There are no matters to be dealt with by way of the Form 1 procedure.

4. The date of the offending was 21 February 2022 and the offender was arrested on that day. At that time, he was on parole for an offence of being armed with intent to commit an indictable offence. For that he was sentenced to 12 months imprisonment commencing on 4 August 2021 with a non-parole period of 6 months expiring on 3 February 2022. The custody record which was part of the Crown bundle which was exhibit A shows that the offender was released on 3 February 2022. Thus, the offender had been on parole for just 18 days at the time of this offence.

5. The offender has been in custody since his arrest. His parole was revoked, and the earlier sentence expired on 3 August 2022. One matter to be determined is whether the sentence should be backdated to commence prior to that date and if so by what amount of time.

The facts

6. The agreed facts formed part of exhibit A. The offence occurred at about 1:30 PM on the afternoon of 21 February 2022. The victim, a male and his female friend were walking from South Grafton toward Grafton which would take them on a path across the old Grafton Bridge on the left-hand side walkway. The offender was walking in front of them. Once the victim had crossed the bridge, he saw the offender standing on the path in front of them with music playing from a portable speaker. The offender asked the victim for a cigarette and the victim said, “no sorry I don’t”. The victim and his friend continued to walk past the offender who then walked towards them. When the offender was next to the victim, he produced a 10 to 15 cm knife from the front of his pants which appeared to be a steak knife with a serrated edge and wooden handle and he said, “I want your chain just your chain nothing else”. The offender moved the knife in a stabbing motion in a threatening manner causing the victim to fear for the safety of himself and his friend and also causing him to remove his necklace which he handed to the offender.

7. The victim and his friend then walked away, and the victim called his brother and the offender asked who he was calling saying he thought he was calling the police. The offender said, when walking with the victim “sorry I don’t do this often but on drugs and need money to eat”, and the offender responded, “yeah right”. The offender offered the victim some cannabis in exchange for the necklace.

8. The victim and his friend then proceeded to the KFC just on the north side of the bridge where he was met by his brother and taken to the police station where he then saw the offender walking into the government building nearby. Prior to this the offender had been seen disposing of something at a motel on Fitzroy Street.

9. Other evidence (the Breach of Parole report) indicates that the attendance at the government building by the offender was in compliance with his parole conditions.

10. Police enquiries located the offender and he was arrested. At that time, he was wearing the necklace that had been taken from the victim. Further investigation located the knife in question near the motel where the offender had been seen to throw something.

Objective seriousness

11. The submission for the offender was that the offence falls below the mid-range of objective seriousness. The Crown did not expressly disagree with that submission. I accept the submission for the offender for a number of reasons. In my view the offending was impulsive, most likely caused by the offender having observed the necklace around the victim’s neck when he first came within viewing distance of him. There could only have been the most minimal planning. Further given the conversation between the victim and the offender where the victim replies “yeah right” the intensity of the threat was low level, something further indicated by the victim and his friend and the offender all continuing to walk in the same direction. In addition, the offending has the peculiar feature of the offer by the offender of some cannabis to the victim in exchange for the necklace.

12. The offending however could not be said to be objectively at the lowest end of the range given the weapon used and the stabbing motions with the knife made by the offender.

Subjective matters

13. It is agreed that the offender is entitled to a 25% discount on sentence due to his early plea of guilty.

14. The offender was born on 9 July 1998. As noted by the submissions for the offender, since turning 18 years of age the offender has been in custody for 5 ½ years out of the available almost 7 years. Those submissions assert, and it is reflected in exhibit A, that there was a similar pattern in his juvenile history, that is to say there was significant time in custody before turning 18. There is a real likelihood of institutionalisation having already occurred. That would be consistent with the rather odd way in which this offending occurred in that it was so brazen and there seemed to be on the facts little real concern with being apprehended.

15. The seriousness of the criminal record in terms of the need to protect the community must however also be fully appreciated. As already noted, this offence occurred 18 days after being released from custody in respect of very similar offending; before that there was an 18 month term of imprisonment with a six-month non-parole period for assaulting an officer; prior to that in 2019 there was an offence of robbery. Not only does the record not provide the offender with any assistance in terms of leniency but it demonstrates a real need when viewed in isolation at least for a sentence with a significant element of deterrence and serving the purpose of protecting the community as well as denouncing the behaviour.

16. As earlier intimated however the sentence needs to also promote rehabilitation particularly given that the offender is still a young man.

17. The offender submitted that remorse was shown by the conversation occurring immediately after the offence occurred between the offender and the victim and also referred to the psychologist’s report which records that he felt sorry for those involved. I accept that there has been remorse demonstrated by the offender tempered however by the fact that he would seem to be lacking a true appreciation of the wrongfulness and impacts of his behaviour.

18. In terms of the offender’s background there is a report relied upon by the offender of a registered psychologist, Vanessa Edwige. The Crown in its submissions expressly accepted that the psychologist’s report outlined significant exposure to disadvantage, drug use and domestic violence and that those considerations clearly impact on the assessment of the offender's moral culpability.

19. The offender’s submission succinctly summarises the environment of disadvantage which is the background of the offender as set out in the psychologist’s report. That background is one where his formative years were marred with domestic violence and drug abuse with both parents misusing cannabis and alcohol. The offender’s father was violent towards his mother to the extent that she was often left hospitalised for her injuries. The father was also violent towards the offender; the father assaulted the offender by various means including by using his hands, a jug cord and a brick. His parents did not work and relied on charity support. The father was frequently incarcerated. The family was often on the move and reliant on people they knew for accommodation. The offender was placed in foster care at the age of 11 and at 13 first entered juvenile custody.

20. The report shows that things did not improve for the offender upon entering custody as he experienced sexual abuse by a juvenile justice officer at the Reiby Juvenile Justice centre on three occasions and suffered physical abuse by another officer.

21. The offender’s submission set out an opinion of the psychologist which bears repeating, as follows “it is evident from Mr Drew’s early childhood history that he has experienced significant adverse childhood experiences. He was exposed to significant disadvantage that in my opinion significantly impacted on his social and emotional well-being. Mr Drew internalised and externalised his trauma and in my opinion used alcohol and other substances as a means to self-medicate and numb his trauma symptomatology”.

22. The psychologist expressed the view that the offender at the time of the offence was suffering from PTSD, major depressive disorder and a substance use disorder and that these were contributing factors to the offending. The accepted history was of the offender experiencing recurrent and intrusive memories from his abusive experiences in juvenile custody. This has impaired his judgment and his ability to make rational decisions as at the time of the offending.

23. In support of the substance use disorder the history was of the offender smoking cannabis and drinking alcohol when 12 years old, using methamphetamine and heroin at ages 15 and 16 respectively and that misuse of the substances has continued into adulthood.

24. None of these facts are contested by the Crown. The consequence is that in line with the decision of Bugmy the moral culpability of the offender is less than it would otherwise be. In this case the impact of this background on the offender has resulted in mental health concerns and a substance abuse condition. The opinion of the psychologist, which I accept, shows a causal link between the background and mental health condition of the offender and the offending as outlined in the passage from the psychologist. This adds weight to the reduction in the moral culpability of the offender and in line with both Bugmy, and De la Rosa a reduction in the weight that would be afforded to general deterrence

25. The offender further submits, that in line with the decision of Henry (1999) 46 NSWLR 346 at [273] that in cases such as this of significant disadvantage leading to drug addiction it is appropriate for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case. I accept that submission. That of course does not mean that the more punitive aspects of section 3A are to be disregarded.

26. Also in evidence was a breach of parole report which was prepared shortly following his arrest for the current offence. That report shows that on the day after his release from custody in February 2022 he reported by telephone and his case management was discussed. A home visit occurred on 11 February and his residence was considered appropriate. He failed to report on 18 February and a new appointment was made for 21 February which he attended and that was where he went immediately following the offending. That fact adds to the peculiarity of this offending. When he did attend on 21 February he admitted to being under the influence of cannabis. He was directed to engage with the Aboriginal Medical Service and was introduced to a facilitator of the men’s group. But of course that could not occur due to his arrest.

27. The breach report states that the offender poses a significant risk to the community due to his reoffending and illicit substance use. The report sets out the proposed supervision plan including referral to appropriate service providers with a view to entering a residential rehabilitation program and with culturally appropriate intervention. The report recommended revoking his parole and that occurred.

28. The suggestion of residential rehabilitation led to an adjournment of these proceedings on a number of occasions to see if a placement could be found. Regrettably he was found not to be suitable for admission into the Balund-a facility and no other position could be identified.

29. The failure of the offender to be considered suitable for Balund-a, and the failure to find any other residential rehab program was not fully explained. The psychologist sets out a proposed treatment program but does not venture an opinion as to the likelihood of its success other than to say that the prospects are positive if there is compliance with the treatment plan and that he presented as willing to engage in intervention (see paragraph 16 and the final page)

Sentencing considerations

30. The purposes of sentencing set out in section 3A of the Crime (Sentencing Procedure) Act and are as follows:

1. To ensure the offender is adequately punished.

2. To prevent crime by deterring the offender and others from committing similar offenses.

3. To protect the community from the offender.

4. To promote the rehabilitation of the offender.

5. To make the offender accountable for his actions.

6. To denounce the conduct of the offender.

7. To recognise the harm done to the victim of the crime and the community.

31. It was the Crown’s submission that no sentence other than of full-time custody was appropriate, a position agreed to by the offender. The offender has now been in custody for some 16 months following his arrest and 10 months of that time is solely attributable to this offending. As I understood the submission no argument was put forward for an intensive correction order on the basis that the anticipated non-parole period would likely be in the near future.

32. As both parties have recognised, the guideline judgment of Henry applies to this case. The case fits well within the seven-point guideline set out at [162] of Henry save that this offender has a significant criminal history. The guideline is expressed to be a sentence that should generally fall between four and five years for the full term. It is recognised that an early plea of guilty would see the sentence fall below that in general terms. Furthermore, it is recognised that aggravating and mitigating factors will justify a sentence below or above the range and that the narrow range is a starting point. It also needs to be recognised that the seven identified characteristics are inherently variable within themselves.

33. In this case there is the obvious aggravating factor of the offending occurring whilst the offender was on conditional liberty. The offender’s criminal history is also noted. It is also with respect obvious in this case that the variability of the identified characteristics favours the offender in the way described above in assessing objective seriousness.

34. Some of the various matters referred to in section 21A have been addressed above. As to the likelihood of reoffending the assessment must be that it is significant. As recognised by De la Rosa the very factors that contribute to a finding of lesser moral culpability may also heighten the need for the protection of the community. It must also be said that the evidence does not give a sound basis for an optimistic view of the prospects of rehabilitation. However, that must be tempered by the fact that the evidence does not disclose significant exposure to attempted rehabilitation to date.

35. For the reasons canvassed when considering the subjective situation of the offender and also taking into account the objective nature of this offence and the somewhat curious way in which it was carried out, the emphasis should be on rehabilitation, consistent with what was said in Henry. The need for deterrence is tempered by the background and mental health issues of the offender and the need to protect the community and to denounce the behaviour has in my view largely already been met by the period in custody already spent. The non-parole period should be one that sees the offender released into the community in the near future with a view to implementing the treatment plan set out in the psychologist report and also consistent with what had been proposed by community corrections as set out in the breach report at page 2 but which was unable to be progressed with due to the arrest of the offender. The prospect of this having a measure of success in my view is increased by a lengthier parole period.

36. I make a finding of special circumstances due to the youth of the offender, the concern as to worsening institutionalisation and the clear need for an extended period of supervision to facilitate successful intervention.

37. Taking all the above matters into account the appropriate term of the sentence should be three years before the discount so that the head sentence should be 27 months. The non-parole period allowing for the finding of special circumstances should be 13 months. The date of commencement of the sentence in my view should be backdated prior to the expiration of the parole period, to 21 May 2022, so that 3 months of the remaining 5 months and 10 days of the parole period relates solely to the earlier offending.

Orders

38. The offender is convicted of the offence under section 97(1) of the Crimes Act.

39. The offender is sentenced to a term of imprisonment with a non-parole period of 13 months commencing on 21 May 2022 and expiring on 20 June 2023 and with a balance of term of 14 months expiring on 20 August 2024.

**********

Decision last updated: 08 June 2023