R v Gavin James Edwards aka Gibbs
[2011] NSWDC 222
•25 May 2011
District Court
New South Wales
Medium Neutral Citation: R v Gavin James Edwards aka Gibbs [2011] NSWDC 222 Hearing dates: 25 May 2011 Decision date: 25 May 2011 Before: Judge S Norrish QC Decision: Count 1: Convicted. Sentenced to a term of imprisonment of 2 years and 3 months to commence on 07/7/11 and to expire on 06/10/13.
Count 2: Convicted. Sentenced to a term of imprisonment of 3 years and 4 months to commence on 07/07/12 and expire on 06/11/15 with a non parole period being 1 year and 7 months to commence on 07/07/12 and to expire on 06/02/14.
Appeal
H40486527 - 004 & 5
In respect of each matter (taking into account a Form 1 matter in one matter):
Conviction confirmed
Term of imprisonment (18 months) confirmed commencement date varied from 18/10/10 to 7/10/10 and to expire 6/4/12.
Non parole period quashed.
Catchwords: SENTENCING: Breaking entering and stealing, robbery in company: special reasons, Aboriginal offender. Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Thomson and Houlton (2000) 49 NSWLR 383
R v Fernando (1992) 76 A Crim R 58
Newman and Simpson [2004] NSWCCA 102
R v Henry (1999) NSWCCA 111
Blackburn & Walters [2001] NSWCCA 121
Cahyadi v Regina [2007] NSWCCA 1
R v Bloomfield (1998) 101 A Crim R 404
R v Monteiro [2011] NSWCCA 113
R v Ponfield (1999) 48 NSWLR 327Category: Sentence Parties: Regina
Gavin James Edwards aka GibbsRepresentation: Mr Simpson (Crown)
Mr Lawrence (Offender)
File Number(s): 2010/92566 2010/332243
Sentence
HIS HONOUR: Gavin James Gibbs appears today for sentence in relation to two matters on indictment and in relation to an appeal concerning three matters dealt with at the Local Court on 16 November 2010. I will deal with the matters in effective chronological order.
When the offender appeared at the Local Court on 16 November 2010 he had been in custody since 8 October 2010. He was then convicted of two counts of breaking, entering and stealing contrary to s 122(1) Crimes Act 1900 , which carry, when dealt with at the Local Court, a maximum penalty of two years imprisonment and/or a fine of $11,000.
I am informed that a matter was taken into account on a Form 1, being also, as I understand it, an offence of breaking, entering and stealing. I was unaware that matters in the Local Court could be dealt with on a Form 1. Neither the Crown, nor the defence, have disabused me of a Local Court's jurisdiction to deal with the matter that way. I have not had a chance to check this, because I have been busy with other work, and I am sentencing this offender on the same day as the evidence and the submissions to research the topic. I will accept that what happened before the Local Court was procedurally fair and legal.
In relation to the two offences for which the offender was sentenced the prisoner on a plea of guilty was sentenced to eighteen months imprisonment with a non-parole period of twelve months. For reasons unknown to me, and apparently to the people at the bar table, the learned magistrate commenced the sentences which were to be concurrent with another on 18 October 2010. The offender had been in custody since 7 October 2010 and I propose to commence the sentences that I am required to fix in relation to the appeal matters from the date that the offender effectively came into custody, although I am mindful of the fact that there are other custodial issues that need to be taken into account arising out of the circumstances of the charging of the offender.
The background of these matters dealt with in the Local Court, if I could pause for a moment, is that these were offences committed respectively on 23 October 2008, 1 November 2008 (in relation to the Form 1 matter), and 8 November 2008 (in relation to the second breaking and entering and stealing matter). These offences were committed, as I understand the matter, whilst the appellant was on parole but were not detected until almost fifteen months or longer later. When the offender was charged in relation to these matters, as my understanding has it, he was in custody in respect of a revocation of his parole, his parole having been revoked earlier in 2010, for him to serve the balance of parole. At that stage it was a matter of some months.
According to the bench sheets I am informed that the appellant was granted bail either on the day he was charged in relation to these matters committed in 2008, or the following day. He certainly entered bail on 16 April 2010. That meant that when his expired balance of parole period finished or balance of sentence serving his unexpired parole period finished, he was released to the bail granted in the Local Court and went back into custody on 8 October 2010. That is the chronology as it has been presented to this court. That means so far as the offences on the indictment which I will turn to in a moment, those offences were committed whilst the appellant/prisoner was on bail in relation to the matters dealt with in the Local Court.
As it will become apparent when I formulate the orders, I propose, in relation to the matters dealt with in the Local Court to confirm the conviction of the appellant and confirm the sentences imposed by the learned magistrate, to quash the non-parole period. The sentences that will be imposed as a result of the matters on the indictment are to commence nine months into the eighteen months sentence imposed by the magistrate and thus the non-parole period fixed by the magistrate is of no real effect. I will return to those orders and the reasons for that in a moment.
The prisoner pleaded guilty today to two charges on indictment. One an offence contrary to s 112(1)(a) Crimes Act 1900 , as were the offences dealt with in the Local Court the subject of appeal, and another offence of robbery in company contrary to s 97(1) Crimes Act 1900 . The offence of breaking and entering and committing a serious indictable offence, namely larceny, carries a maximum penalty of fourteen years imprisonment. The offence of robbery in company carries a maximum penalty of twenty years imprisonment. There is no standard non-parole period in relation to either of those offences.
To deal with the agreed facts, save for some matters arising in evidence from the prisoner casting light upon the indictable matters, the first offence in time with which I am concerned was a breaking and entering of premises that belonged to the Department of Age and Disability and Homecare on 23 October 2008 in the early hours of the morning. Inside the premises were residing four male clients, as I understand it. Although no aggravation is pleaded in the charge, the prisoner opened a built-in cupboard and removed a small steel safe that contained $300 in cash and personal items. He also stole a handbag containing about $25 in cash and personal items and then left the premises. He left behind his fingerprints. He obviously did not try to disguise himself in any way or wear gloves to prevent his fingerprints being identified.
The second offence in time, the matter as I said on the Form 1, involved an offence committed in daylight hours. The premises were locked at the front but not at the back. The owner of the premises was apparently mowing her front lawn. The owner came back and found the screen door had been forced open at the rear, as I understand it. She discovered that her handbag was missing, her gold necklace, earrings, rings and a gold watch. The estimated value of all these items was $360. Again the prisoner did not use gloves and his fingerprints were located and found to match with police records.
The third offence dealt with in the Magistrate's court was a breaking, entering and stealing at 145 Lone Pine Avenue, Orange. As I understand it the same street in which the prisoner lived. The victims were actually in bed when the crime was committed, although no matter of aggravation is pleaded. The prisoner gained entry through a window and removed a flyscreen. He stole a digital camera, a USB stick and some other items, the total value of the property was $400. Again, latent prints were located that matched his fingerprints. His detection thus was inevitable. It is clear that these crimes were not planned offences. They were committed for the purposes of obtaining cash and disposal items which the prisoner could use to obtain money to buy himself drugs.
These matters were committed, as I said, whilst on parole and I will deal with the issue of the prisoner's criminal history and parole supervision and the like shortly.
In relation to the matters on indictment the facts in relation to the breaking, entering and stealing matter are that on 18 August 2010 the prisoner entered the premises of Mr Thompson, a 64 year old pensioner. There is no evidence that the prisoner knew the details or personal circumstances of the victim. The prisoner had in fact gained entry during the night. The prisoner had apparently examined some biscuit tins and a suitcase in the lounge room and then went to one of the kitchen cupboards where he found $3,000 in cash which he took. There was also some loose change missing which had been kept in one of the back rooms of the house.
The prisoner left behind latent fingerprints which were subsequently identified as those of the prisoner. He was arrested on 7 October 2010 and admitted going into the premises in the early hours of the morning of 18 August. He falsely implicated his co-accused in the robbery matter in this crime. It turned out that the co-accused in the robbery matter was not in fact in Orange at that time. The co-accused, Mr Bannerman, being the brother of the prisoner's then partner.
The property stolen by the prisoner was not recovered. I am satisfied that he used it to purchase drugs and possibly other personal items for himself.
The robbery in company matter was committed exactly a month later. The significance of the robbery is, of course, reflected by reference to the break, enter and steal matter in one sense. It was committed at the same premises as the earlier breaking, entering and stealing matter. It is clear from the circumstances of the robbery that the prisoner entered the premises in company with Mr Bannerman in the hope of gaining more cash. He was obviously familiar with the premises and had a knowledge or belief that there would be cash in the premises. There is no evidence upon which I could conclude, however, that the prisoner was aware at the time of entering the premises on 18 September that he knew the victim was inside. There is absolutely no evidence that he and Mr Bannerman entered the premises with a purpose of "robbery" in company or simpliciter. The offenders, in my view, entered the premises with a view to stealing cash. The idea to break in the premises clearly was that of the accused Mr Gibbs. He was the person with prior knowledge of the premises. He had been inside the premises on a prior occasion and of course he has, was aware of the presence of cash on the prior occasion.
As it turned out the two men were inside the premises for a period of time. In circumstances which are not abundantly clear the prisoner and Mr Bannerman, on the account given by Mr Bannerman upon which Mr Gibbs' counsel has had an opportunity to cross-examine, somehow left the premises and then returned through a back door to confront the victim. The prisoner called out to Mr Bannerman to hold the victim down in the sense of holding the victim in a manner that he could be restrained. The prisoner removed the victim's wallet which contained $500 and his credit union card and a Centrelink card. At this point, as I understand the evidence, the victim was inside the house, the two men having entered from a rear door and confronting him in the area of the kitchen.
The prisoner and Mr Bannerman left the premises. It is not disputed by Mr Gibbs, claiming some lack of clear memory, that he kept the proceeds of the robbery. Mr Bannerman has given evidence upon which Mr Gibbs has had an opportunity to cross-examine that he and Mr Gibbs bought a packet of cigarettes or bought some cigarettes and that Mr Gibbs bought a stick of cannabis from the proceeds of the robbery. These items they shared. This is as I said, undisputed. The prisoner is in no position to dispute the assertion made by Mr Bannerman that in fact the bulk of the monies were kept by him (Gibbs) and were ultimately used by him to purchase drugs as I understood his evidence.
When the prisoner was arrested on 7 October 2010 he made admissions in relation to that robbery as well as the breaking, entering and stealing to which I earlier referred. In the course of those admissions it is clear from the evidence he has given in this court that he did not tell the entire truth. But importantly he made admissions against interests in relation to both matters and importantly, and to his credit, he identified Mr Bannerman as having been involved.
The facts available to me and the evidence of the prisoner reveal that he concedes that when he entered the premises he used a pair of scissors to open the window. He concedes an account which is not entirely consistent with the version given by Mr Bannerman, but the concessions he makes that are set out in the facts and arise from his evidence do not include a concession on his part, nor do I find, that he and Mr Bannerman planned on this day to rob the victim when they entered the premises. Their plan, such as it was, they formulated a short time before the offence was committed. This was to steal the property of the occupant.
I bear in mind, of course, that the victim, as the facts say, "was quite traumatised by this incident". He had a graze on his knees and some soreness to his left wrist but it must be fairly said that the amount of force used was only that sufficient to enable the two men to relieve the victim of his wallet. Whilst the violation of his privacy and the assault upon in his own home is a serious matter it is most unusual to have an offence of robbery in company pleaded as it is in this matter in a private home of the victim, except in circumstances of course where the victim invites the offender or offenders into his home which is not the case here. On the other hand the prisoner and Mr Bannerman, of course, being strong young men, could have caused the victim a great deal of harm which they did not do. It is quite clear the primary concern was not to hurt Mr Thompson but to obtain cash, and principally the desire the cash was that of the prisoner as evidenced by the fact that he kept the vast bulk of the proceedings.
I will deal with some of the particular matters arising from the commission of the offence when I turn to s 21A in addition to the matters I have already mentioned.
The prisoner's criminal history does him no credit. Whilst I do not conclude that his criminal history is a matter of aggravation it certainly is not something that entitled to him to any particular leniency. However, it must be understood, I appreciate as has been submitted, in the context of his unfortunate upbringing and a background of disadvantage. Much of it not of his fault.
He was born on 24 May 1984(as said), and thus as I would calculate the matter, yesterday had his 27th birthday. It is a sad thing that I have to sentence him the day after his birthday but that is the reality of the situation. He had appearances in the Children's Court in relation to various matters over a period of time, largely consistent with a history that he gave to me. He grew up in a family that had to witness incidents of domestic violence and heavy drinking, as I understood it, by both his mother and his father. He explained in his evidence, that I have no reason to doubt, that he comes from a quite large family and in his early years there was much disruption to his domestic life by the social activities of his parents. Friends regularly came to the house. There was much drinking of alcohol. There were fights and other acts of violence which obviously have had a great effect upon him, although I am pleased to report that he does not have a bad history himself for violence. However his peripatetic domestic circumstances not only meant a great dislocation to his education, he coming to Orange at the age of fourteen on the separation of his parents, but it also had the result of him being introduced at a relatively young age to the use of prohibited drugs such as cannabis and later methylamphetamine.
He obviously, as he explained, had fallen in with people who were prone to commit offences in the Bourke area. I certainly could not conclude that he was not telling the truth when he said that his early offending was as a result of influences of peers and persons older than him. He clearly, as the criminal history states, fell into a course of offending behaviour which has continued for some period of time. Whilst his Children's Court record is not all together significant, it merely adds further support for his account of his early life. It does show that he was subject to various orders, some designed to assist him in his rehabilitation, some punitive.
Ultimately he graduated to appearing in the Local Court. His first appearance in the Local Court arose out of charges brought on 18 November 2002 which is just on eight years and six months ago when he would have been eighteen years of age and his first appearance in the Local Court, I note, led to him being gaoled. He was not given the opportunity of a suspended sentence or a form of adult supervision. He was sentenced to eighteen months imprisonment with a rather absurd non-parole period of eight(?) months. No opportunity in this order for him to receive any professional assistance, as he clearly needed. He was convicted of breaking, entering and stealing and subsequently had convictions in the Orange Local Court for breaking, entering and stealing offences. This ultimately led to, on 4 March 2005, him being convicted in the Orange District Court for an offence of aggravated breaking and entering, commit serious offence to wit inflicting actual bodily harm. This sentence imposed on 4 March 2005 arose out of his charging in April 2004 and whilst the criminal history I have been given has not been prepared in chronological order I note elsewhere that on that date the court also sentenced him for another aggravated breaking, entering and committed serious indictable offence crime for which he was imprisoned for twelve months to run, as I understand, concurrently with the non-parole period imposed for the more serious charge. With another breaking, entering and stealing matter taken account on a Form 1.
The learned sentencing judge in March 2005 sentenced the prisoner to five years and six months with a non-parole period of two years and six months. These sentences were to commence, as I understand it from the record, on 16 October 2004. I did enquire of the learned Crown Prosecutor who appeared whether I could have the reasons for sentence. I have made enquiries through my associate which I must confess, because I have been doing other work in the mean time, I have not had a chance to discuss with the parties, and I have been informed that the Court Reporting Branch have the unrevised remarks of his Honour Judge Coolahan but would not release them without his Honour's permission as they were unrevised. Rather than delay the matter I have chosen to sentence the offender without the benefit of the remarks made by his Honour basing my reasoning in this case on what is evident from the criminal history.
I repeat something I said in the course of submission. It would be far better sentencing persons who have previously been sentenced in the Supreme Court and the District Court, where possible, for all judges to have provided, in addition to the criminal history, the remarks on sentence previously made in those courts in respect of indictable matters. I appreciate there are practical difficulties, but if Judge Coolahan had been told a month ago that this matter was coming on in this sittings his Honour would have had an opportunity, I would imagine, to revise the remarks. I may have been better informed, not only as to the objective facts, but as to what case was put on behalf of the prisoner in the past given the case that has been put on his behalf today.
Be that as it may, the prisoner, as I understood his evidence, was not released to parole until he had served four years in custody. In other words he spent an additional eighteen months beyond the non-parole period fixed by his Honour. The effect of his Honour's order, a reflection of special circumstances warranting an extended period of supervision, was not in reality carried out. I make no criticism of the Parole Authority. I want that clearly understood. There may have been very good reasons for not releasing the offender at the conclusion of his no-parole period. He told me and it makes sense, that he did not get released because he had not completed the courses that were required of him. Often I have heard anecdotally that these courses only become available very close to the expiry of non-parole periods and non-parole periods are in effect extended to enable the courses to be completed.
It would be far better to give effect to the spirit of a judge's order if an opportunity to complete a course which would assist the prisoner was provided in a timely fashion to enable the course to be completed before the non-parole period expires. Then the parole authority can make an informed decision as to whether it should release the offender to parole or not and I appreciate of course the parole authority bears the discretion of determining whether a person should be released, not the judge who made the original order.
Be that as it may, on the prisoner's account, he was released to parole, having served his four years. It was only shortly after that, as I understand it, on the chronology provided by the prisoner, that he committed the matters that were dealt with in the Local Court and now the subject of appeal. In circumstances I need not dwell upon, his parole was revoked on two separate occasions, once for what he described as a dirty urine consistent with his continued use of prohibited drugs on his release to parole and the other revocation arose out of him being charged in relation to further offences.
It is clear that his circumstances of supervision have been chequered over the years. Of course, there are other entries in his record which are relevant. I note, of course, that he has one finding of guilt in the Children's Court for robbery in company, albeit at a time when he would have been only sixteen years of age and he has other convictions in the Local Court including a conviction for destroying or damaging property and entering inclosed lands in February 2009. And then the sentences currently the subject of appeal.
The Probation and Parole Service report states the obvious. That the prisoner has been known to the service, it says, since 2002. He has been supervised on parole according to the report, on three occasions since that time. He has breached every order either through illicit drug use or further offending. It notes his background of which he gave evidence, growing up in Bourke and then moving to Orange with his mother with his limited education, I accept his evidence that apart from limited opportunities in Bourke with disruption to his domestic life, the move to Orange ultimately was fatal to his educational attainment and he left school shortly after coming to Orange, I would imagine very much unsettled by the change of environment and difficulties with accommodation and the like. He lived with an aunty and his mother at his auntie's home in East Orange for a period of time. It took some time for his mother to find accommodation and other problems arose.
The truth of the matter is the prisoner's had a most unfortunate and deprived upbringing. Whilst that is not an excuse for offending, it certainly provides a context and an explanation for the prisoner's abuse of drugs which have contributed very much to his offending.
I am not assisted by a psychological or psychiatric report. There is no evidence of intellectual disability or no evidence of psychiatric illness. I cannot say anything about the presentation of the prisoner other than in giving evidence he was forthright and given that giving evidence for him would be an usual experience. He may be giving evidence as far as I know for the first time. He came across as frank and did his best to inform the Court as well as he could. However, he clearly has some educational deficits and he may well have some underlying intellectual issues or cognitive issues as they are sometimes described that are not fully known to the court.
He told the Probation and Parole Service, which I accept to be the truth, as he told me, that his longstanding drug problem underpins his offending behaviour. He is currently receiving methadone treatment in custody which he says works for him. In my experience I would be much happier to see Mr Gibbs address his mind to trying to reduce methadone intake as he remains in custody. It would be far better for him to wean himself off methadone and be methadone free rather than be drug dependant. So that when he is released he has in fact weaned himself off the use of drugs, whether they be prescribed or otherwise, which might adjust his sense of consciousness. He told the Probation and Parole service that he committed offences to finance his drug habit. He indicated a willingness to attend for counselling.
The summary says that Mr Gibbs is a young man with an unenviable criminal history symptomatic of his drug habit. His previous performance when released to the community is poor and up till the present time he has been unable to address his drug dependency. He will need to make a much greater commitment to addressing this issue if afforded a further opportunity by the court. I think, in fairness to the Probation and Parole Service report he will need to address that matter clearly before he will be afforded an opportunity by the parole board to be released to parole as well.
He has, in his evidence before me, expressed good intentions in that regard and I accept that he is genuine. I am sure Mr Gibbs would understand that I see many people come before me expressing good intentions that I realise, on release, can go out the window very quickly. In fact the prisoner himself conceded in his frank ways that he had these intentions when he was last sentenced to a significant term of imprisonment and try to address his underlying problems in the past by undertaking the SMART program but within weeks was back using illicit drugs. Hopefully with material support on the outside from his family, with the new will to succeed with better educational skills acquired in custody and perhaps some intensive counselling whilst in custody he may be better able to cope on his release. I do not doubt for one moment that the prisoner faces many difficulties as his counsel submitted, many of them beyond his control. There are social environmental and economic factors which make his path difficult. This is a young man who has never had any employment experience of note, has very difficult educational attainment and for him to find a way into the ranks of the employed would be a very difficult task beyond the imagination of those of us who have come from more privileged upbringings. Although I obviously have had a far more privileged upbringing than the prisoner, I do have some understanding from my life's experience of the difficulties that he faces and the task will not be easy.
I have dealt in part with the evidence that he gave about the offences. As I said he had little real memory of the offences and disputed little and as I have said I accept his evidence relating to his disadvantaged background and his use of drugs and the like. He tells me that his father has had, if one would pardon the phrase which is not met to be sarcastic, a "Conversion on the road to Damascus" or an epiphany of some description. He has embraced his Christian faith, has chartered a new life for himself and I trust that his father's course might provide some inspiration for the prisoner when he is released.
He was living with Mr Bannerman's partner at the time of the commission of the offence. He has an extended family. However, up until the time of the commission of the current offences, he was using not only cannabis, but Oxicontin which sometimes called Hillbilly heroin, heroin itself and methylamphetamine. I do again point out however that he should not rely upon methadone as a crutch in the future because if his methadone supply on release is disrupted in any way it will not be very long before he is back using the illicit substances or the prescribed substances he is not supposed to use and that would be catastrophic.
In relation to his offending whilst in Orange, in part that has been contributed to by the various disruptions to his life. In part it has been contributed to, he explains, by his associations. However, it must be said the matters I am dealing with have little to do, if nothing, with associations. Firstly, the three matters committed by him dealt with in the Local Court were obviously committed by him alone. He committed the breaking, entering and stealing matter on indictment alone. He did commit the matter of robbery with Mr Bannerman, but it is clear, and I did not understand it to be disputed in submission or in his evidence, that he was the leading light in the affair for the reasons I have explained. Keeping the proceeds, knowing the interior of the premises and, I conclude, suggesting the entering of the premises. Although Mr Bannerman was willing participant.
I note that he said that his mother has breast cancer and I am sad to hear that and I trust her treatment will be successful but this is, no doubt, a matter of some burden for him in custody. I appreciate his mother provides constant support. He said that she rings him daily and no doubt her illness is a matter of some distress for him. I note his wish to go back to Bourke on his release. Whether he will be permitted to do that by the parole authority is another matter.
In relation to the matters that were raised in submission, if I might deal with those, although some of them I have already specifically addressed or otherwise dealt with. I accept that he, in giving evidence was frank and truthful. I accept in various ways he has expressed remorse. He does have some limited insight into his offending, although it is limited, in my view, by his social background and the sort of lifestyle that he has grown accustomed to. I accept that he would wish to rehabilitate himself and he has taken some steps towards this and he is to be commended and encouraged to improve his reading and writing skills. It must be a terrible thing not to be able to properly read and write. It denies the prisoner and those in his position of many joys in l life and many opportunities in life.
I have been assisted most helpfully by very very detailed written submissions from his learned counsel. His counsel in his oral address raised a number of matters arising out of the written submissions and I do not propose to go through all the matters that are raised. I have taken them all into account. I suppose a starting point is to deal with technical matters that arise from the submissions and arise from the material.
Firstly, in respect of the matters in the Local Court I am prepared to accept that pleas of guilty were entered at a relatively early time. However, it is to be borne in mind that the penalties imposed have to be seen in the context of what is a jurisdictional limitation on sentence and not a statutory limitation. Ultimately, in the context of the construction of the orders I have determined those offences, having been committed whilst on parole, those offences being offences for which the prisoner has been previously convicted and thus is not entitled to any special leniency, are matters that have attracted appropriate penalties. I bear in mind of course that the Magistrate in his wisdom chose not to partially accumulate the sentences. I have not seen his remarks on sentence and I am not required to review his remarks on sentence but I do not know the extent to which he took into account the Form 1 matter as is required by the guideline judgment from 2002.
Be that as it may I am proposing to revoke the non-parole period because the commencement date of the sentence for the break, enter and steal matter on indictment will be before the expiry of the non-parole period imposed by the Magistrate, to give effect to the totality of sentencing.
The next matter I consider, of course, in relation to the pleas on indictment, is that they were entered at the first reasonable opportunity. There is some confusion as to whether in fact they were entered at the Local Court or not, but the Crown conceded that if they weren't it was through no fault of the prisoner. The Crown does not dispute that the appropriate discount is one of twenty-five per cent in accordance with the guideline judgment of Thomson and Houlton , to recognise the utilitarian benefit of the pleas of guilty.
I also accept the pleas of guilty are, some evidence on the part of the prisoner of his contrition. I also note the cooperation of the prisoner with the authorities in making admissions and nominating his co-accused. I hasten to say it was not submitted to me, and no specific material was put before me to justify a discrete discount for "cooperation". There is no evidence before me that the prisoner offered himself to give evidence against his co-accused or anything of that sort. I don't believe it necessarily requires a discrete discount in any event. It will be recognised as another mitigating matter to ameliorate the otherwise appropriate sentence having regard to the objective facts in relation to each count.
The learned counsel for the prisoner has taken me, quite properly, to principles that are set out in Fernando v The Queen ((1992) 76 A Crim R 58) , in the judgment of Wood J. Certainly the principles in Fernando have been repeated in a number of authorities and are cited from the judgment of R v Newman and Simpson [2004] NSWCCA 102. The various principles as they are enunciated had varying significance depending upon the circumstances of the case. This is not a case involving a crime of violence in a state of drunkenness or in a particular social context. But I have accepted, as I have said earlier, that the prisoner has come from a deprived and disadvantaged background, that a term of imprisonment for him is a significant penalty. I appreciate of course that the Court of Criminal Appeal has been at pains to say that Fernando principles are not simply applicable to persons living in very remote parts of the state. The prisoner originally came from Bourke, but he has been living in Orange for many years and these offences were committed in Orange where he had a residence. The truth of the matter is that many of the matters adverted to by Wood J and are approved by other courts, still have pertinence here. The social circumstances of the prisoner are to be understood, and are accepted, as contributing to his offending behaviour over a lengthy period of time leading to the current situation.
I appreciate, of course, that there is no special rules for sentencing Aboriginal people. The court must avoid any hint of racism, paternalism or collective guilt. A Court should not lose sight of the objective seriousness of the relevant offences in the midst of what might be otherwise attractive subject circumstances. Full weight must be given to the competing public interests and rehabilitation and the avoidance of recidivism on his part and of course that involves consideration of s 3A Crimes (Sentencing Procedure) Act and the competing considerations or purposes of sentencing therein contained.
When the Court of Criminal Appeal in the High Court judgment of Veen (No 2) decided in 1988, identified four purposes of sentencing, they said of those four purposes of sentencing, which are included amongst the seven or eight purposes of sentencing now identified in s 3A, that they were "guideposts" that sometimes pointed in conflicting or opposing directions. This occurs in every sentencing matter. The need for general and personal deterrence will compete obviously against the need for the promotion of rehabilitation, as would the need to punish and denounce and make offender accountable. Thus it is in the particular matter. It is the balancing of those competing purposes in the context of wider sentencing principles which is the great difficulty in sentencing.
We do not have a Hammurabi code. We must apply the law and exercise sentencing discretions in an ordered and just matter which is just for both the victims of relevant crimes, the interests of the prisoner and the interests of the community and I agree with the submission that was made that the promotion of the rehabilitation of the prisoner is very much in the interests of the community as was recognised in cases such as Blackman and Walters , where Wood J adopted what had been said by King CJ in Yardley and Betts and in other judgments. In fact the judgment of Wood J in Fernando should be seen in this matter in the context of his Honour's remarks in the judgment of Henry [1999] 46 NSWLR 346, particularly at [273] where his Honour for the majority of the court discussed the relevance of drug addiction in sentencing for crimes of armed robbery.
I bear in mind, as it has been held on many occasions, that the guideline judgment in Henry is relevant in sentencing for robbery type offences including an offence of robbery in company which carries the same maximum penalty as the offence of armed robbery for which Henry is the guideline judgment. Of course there is no weapon in this matter and there are many differences from the typical case, but be that as it may, what Wood J said at [273] has relevance in this matter and in many respects it overlaps, as I said, with some of the wider social implications of his Honour's judgment in Fernando. The principles that his Honour enunciated, to repeat them, are these: that drug addiction is not a matter that mitigates the appropriate sentence but it may be relevant to the objective circumstances in the sense that the need to acquire funds to support a drug habit whilst not an excuse may be taken into account as a factor relevant to the objective criminality insofar as it may throw light on matters such as the impulsivity of the offence and the extent of planning. Here, whilst the robbery matter was not an impulsive offence, there was very little planning and I am certainly convinced that the prisoner did not consider returning to rob the victim or steal from him after he had completed the first offence. It is apparent when one has regard to the evidence of Mr Bannerman that they walked past the victim's house on the way to getting some cigarettes and I am prepared to accept that any decision made by the prisoner to go to the house to steal from it was taken after they had passed by the house and not before, so such planning has occurred was very limited. The breaking, entering and stealing matters likewise are not professional crimes. They are crimes of opportunity rather than of planning. Opportunistic might be one way to categorise them.
Further, his Honour said that the existence or non-existence of an alternative reason that may operate in aggravation of the offence could be relevant and that does not arise in this matter.
Further, his Honour said in relation to the objective circumstances that the state of mind or capacity of the offender to exercise judgment, for example, if the offender was in the grip of an extreme state of withdrawal or led to some disorder of the mind may make the act, other than a willed act, that does not arise in this case but I am quite sure that in the context of having a need for prohibited drugs that would have some impact upon the prisoner's exercise of judgment.
So far as the subjective circumstances are concerned his Honour pointed out that a drug dependency or addiction may be relevant to assessing attempts to overcome it by reference to the impact upon the prospects of rehabilitation which itself can be a two-edge sword. The fact that the addiction may not be a matter of personal choice but was attributable to some other event for which the prisoner was not primarily responsible and it is quite clear from the prisoner's evidence that his drug dependence has emerged from social circumstances and dysfunctional domestic circumstances over which he had no control. He also pointed out that the circumstances of the prisoner may justify special consideration in the case of an offender, a judge to be at the "crossroads".
It is to be fairly said, of course, the prisoner is not at the crossroads. I am not in a position to make that judgment at this particular point of time. There is insufficient evidence but the truth of the matter is that the prisoner may well be moving towards that position once he makes the decision, which only he can make, that when released from custody, he will not use prohibited drugs whichever associates he may mix with.
It must be pointed out that his Honour did say that the assertion that drug addiction was a mitigating factor was not justified in principle. It would involve an exercise in irresponsibility on the part of courts, particularly if it was understood that the message was being sent out that committing a crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.
With regard to s 21A matters, bearing in mind of course, subs (1) of that section incorporates into sentencing practice the general principles relating to the determination of aggravating and mitigating factors that previously existed.
In respect of the offences committed in 2008, although arising in an appeal situation, the principle aggravating factor is the fact that the prisoner committed the offences whilst subject to conditional liberty on parole. There is, to be fairly said, within a particular aggravating factor, a range of circumstances and the aggravation in one situation may not be as great as another. It could be fairly said that committing offences whilst on parole is a substantial aggravation, bearing in mind the character of that particular conditional liberty.
With regard to the offences committed in 2010, again a relevant aggravating factor is the fact that those offences were committed while the prisoner was on conditional liberty. Conditional liberty on this occasion was the fact that the prisoner was on bail on each occasion, that is, bailed in relation to the breaking, entering and stealing matters, which he committed whilst on parole.
It is clear in relation to the robbery matter that the fact that the robbery occurred within the home of the victim is a matter, putting aside anything within s 21A(2) of aggravation, but that aggravation is ameliorated to some extent by the fact that the robbery was not a planned robbery. The purpose of the breaking and entering of the premises, was to steal money, not necessarily in circumstances consistent with a robbery.
With regard to mitigating factors arising under s 21A(3), I accept that the offences with which I am concerned were not planned offences or part of organised criminal activity. I accept the pleas of guilty as a relevant mitigating factor but of course the prisoner receives a discrete discount for that. I accept that the prisoner has provided evidence that he has accepted responsibility for his actions and thus remorse is a relevant mitigating factor. The prisoner is in no position to make reparation to the victims. I accept that the prisoner has provided some assistance to the law enforcement authorities, particularly in identifying his co-offender in relation to the robbery matter. Of course, the other mitigating factors under subs (3) I could not find. He is not a person of good character. I could not conclude that he is unlikely to re-offend or has good prospects of rehabilitation. It is far too early for a safe prediction to be made about matters that will happen some time in the future.
It should be fairly said, bearing in mind I am relying on my notes and no transcript and in effect giving these remarks on sentence not only extempore but after very little time for consideration, that a number of the issues that have been covered in my judgment were the subject of discussion. I have made observations first of all about the relevance of Fernando principles. I made some remarks about the relevance of Henry principles or Henry principles in relation to the relevance of drug addiction. I have made remarks about mitigating factors that arise and matters relating to the assessment of aggravating and mitigating factors as well observations about the issue of totality which I embrace in this judgment.
With regard to the sentencing of the offender, of course I am required in accordance with Pearce principles, not being satisfied at the moment that s 53A directly applies. That is, I must fix an appropriate sentence for each offence and then in accordance with the obiter observations of the majority at para 45 turn to consideration of matters of the concurrency and accumulation to give full effect to the totality of the offending.
I am assisted by the submissions of learned counsel for the prisoner, particularly at pp 13 and 14 and 15 of his submissions. He cites, for example, the judgment of Howie J in Cahyadi v Regina [2007] NSWCCA 1, where his Honour discusses the principle of totality. Here it is clear that in assessing the appropriate sentences there should be some partial accumulation of some sentences upon another. If one, for example, looks at the matters on indictment the totality of the criminality of the two offences together is greater than, for example, the robbery standing alone, the totality of the criminality of those two offences taken together but standing alone is less than the totality of the criminality of those offences taken into account with the sentences imposed at the Local Court, notwithstanding the jurisdictional limit imposed on the magistrate.
I have also taken into account the statistics that have been cited. The statistics of course provide, in relation to break and enter and robbery in company matters, a range of sentences at the High Courts. They show the bulk of persons who commit these crimes and dealt with in the higher courts are imprisoned. The medium terms for sentences and non-parole periods however have to be considered in the context of the actual facts of the cases that they relate to which are unknown to the court. The non-parole periods as we discussed earlier have to be considered in the context of which sentences the non-parole periods are fixed for. Whether there are findings of special circumstances. Whether there are consecutive or non-consecutive terms. There are a whole raft of considerations in relation to the relevance of statistics which make it very clear that whilst they provide some assistance in showing the range of penalties or the proportion of penalties that involve terms of imprisonment. Medium or median figures and the like, they provide little precise assistance for a particular matter. These matters were discussed by the Chief Justice in Bloomfield . They've been recently discussed again by Simpson J in a decision of Montiero, handed down a few days ago, but they are obviously relevant, in the sense of requiring attention, albeit recognising their limitations.
I note, of course, the relevance of the maximum penalty. I was asked to categorise the offences. I accept that the breaking, entering and stealing offence is at the lower end of the scale. The robbery in company on its facts, absent the aggravation of robbing the victim inside his own home, might be seen as the lower end of the scale. It has absent elements of planning or violence which can make such offences more serious. The property taken was substantial but still one would strike many cases of more valuable property being taken but on the other hand as I said, the prisoner committed the offence without planning on a victim who should expect to have safety within his own home. The victim was not vulnerable in the sense understood by the legislation and this is conceded by the crown. I also bear in mind, or course, that the prisoner and the co-accused left the victim as soon as the crime was committed. The offenders, as I said, did not enter those premises intending to rob the victim in the manner in which it occurred.
The Crown's submissions generally adopted what was put by learned counsel for the accused. The learned crown prosecutor did suggest in relation to the severity appeal that there should be no interference with the sentence except for the backdating. The manner in dealing with that I have already explained, involves the revocation of the non-parole period fixed by the magistrate because it is otiose.
In relation to the breaking, entering and stealing matter I do hasten to say, consistent with my finding concerning it, having regard to the decision of Grove J in Ponfield , who identified a number of aggravating and mitigating factors somewhat overtaken by the subsequent enactment of s 21A, there are many features that his Honour pointed to as aggravating factors in such a crime that were absent. There was no vandalism. There was no significant damage. The prisoner's main aim was to steal money but without being disturbed and he certainly did not in any way seek to do anything other than steal money. There is no suggesting that he had knowledge of the fact that there was a substantial sum of cash there. As it turned out, in my view, the amount of property taken was purely opportunistic and a reaction to the circumstances that presented themselves to him.
I trust that I have dealt with all the relevant matters raised. I have certainly endeavoured to address them in the course of my remarks, but ultimately the matter boils down to acknowledging the fact that terms of imprisonment must be imposed notwithstanding s 5 Crimes (Sentencing Procedure) Act ameliorating to some extent the penalties to be imposed, notwithstanding the fact the prisoner is not entitled to any special leniency by reason of his record, given the character of the offending and putting the offences in their proper perspective by reference to their objective seriousness.
I have made a finding of special circumstances for two reasons. One reason encapsulated is that there is a need for some accumulation which is itself a special circumstances as well recognised through many years of the operation of "special circumstances" in sentencing and the other reason is concerned with the issues that are really relevant to the promotion of the prisoner's rehabilitation. The prisoner needs an extended period of supervision. He needs extended supervision to assist him to adjust to community living. He needs an extended period of supervision to assist him in relation to drug and alcohol counselling to be counselled in relation to undertaking proper educational programs and also to assist him in relation to employment opportunities should they arise. I do not believe that leaving him with a non-parole period that recognises only the accumulation will the prisoner have sufficient opportunity when released to the community to get the breadth and length of supervision which is necessary in his case. I realise he has previously had his parole delayed and I realise of course the Parole Authority may delay his parole again. This will be a matter for him to address whilst in custody, but I should at least provide the opportunity for the parole authority ultimately to give him the opportunity to make his way back to the community, hopefully determined not to commit more crimes.
Unfortunately for the prisoner he has to understand that if he does commit crimes on parole or subsequently he runs the risk of sentences being imposed that do not involve the fixing of non-parole periods or do not involve the finding of special circumstances made in his favour by myself and Judge Coolahan.
Thus, I turn to the orders. Just stand up please Mr Gibbs. I am sorry to hold you and everybody else.
In relation to the appeal matters I confirm the convictions imposed by the magistrate. I confirm the sentences of imprisonment of eighteen months. I quash the non-parole periods for reasons I have explained. However I vary the commencement date of the sentences to 7 October, because he was arrested on 7 October. The eighteen months imprisonment in each case which will be concurrent taking into account the Form 1 matter, commencing from 7 October 2010 and expiring on 6 April 2012.
In relation to the first matter on the indictment the offender is convicted. He is sentenced to a term of imprisonment of two years three months. This represents a discount of twenty-five per cent upon the otherwise appropriate sentence. This will date from 7 July 2011 and expire on 6 October 2013.
In relation to the robbery in company matter the offender is convicted. He is sentenced to a non-parole period of one year seven months. That will commence on 7 July 2012 and will expire, on my calculation, on 6 February 2014. In relation to that sentence I fix a balance of sentence of one year nine months making that sentence in total three years four months. That sentence will expire on 6 November 2015. Thus the effective non-parole period as I calculate it is forty months. That is three years four months. The balance of sentence is twenty-one months - one year nine months. Just take a seat.
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Decision last updated: 30 March 2012
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