R v Glover; R v Ramos-Malo

[2019] NSWDC 789

District Court

New South Wales

Medium Neutral Citation:	R v Glover; R v Ramos-Malo [2019] NSWDC 789
Hearing dates:	11 October 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Glover – term of imprisonment of 5 years 3 months with a non-parole period of 3 years Ramos-Malo – indicative sentence of 5 years (see R v Ramos-Malo [2019] NSWDC 788 for aggregate sentence)
Catchwords:	CRIME — Violent offences — Robbery in company SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Parole period SENTENCING — Relevant factors on sentence — Victim attitude to offender SENTENCING — Sentencing procedure — Expert reports SENTENCING — Subjective considerations on sentence — Aboriginal offenders SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Fernando [1992] 76 A Crim R 58 Henry [1999] 46 NSWLR 346 McNaughton [2006[ NSWCCA 242 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Tyrone Ray Glover (Offender) Dahcell Marco Charlton Ramos-Malo (Offender)
Representation:	Henry Hudson (Crown) Deone Provera (counsel) (Offender – Glover) David Pullinger (counsel) (Offender – Ramos-Malo)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00275653 (Glover); 2018/00275659 (Ramos-Malo)

EX TEMPORE REVISED JudgEment

INTRODUCTION

1. Tyrone Glover pleaded guilty in the Local Court at Penrith, from where he was committed for sentence to the District Court on 10 May 2019 for an offence of robbery, contrary to s 97(1) Crimes Act 1900. The particulars of the offence certified for this Court are set forth in the charge certificate.

2. The offence is expressed in the following terms.  On 8 September 2018 at Penrith in the State of New South Wales, being in company with Dahcell Marco Ramos‑Malo, robbed BP of certain property, namely, one Apple iPhone X mobile phone, one Sony Bluetooth speaker, one black jacket, one gold ring and assorted credit cards, the property of the said BP.

3. The offender Ramos-Malo also pleaded guilty in the Local Court at Penrith, from where, on 20 May 2019, he was committed to this Court for sentence.  The charge certificate certified for this Court particularises the offence in the same terms. 

THE PENALTIES

4. The maximum penalty specified for the offence is imprisonment for 20 years. There is no standard non‑parole period for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

PRE-SENTENCE CUSTODY

5. Glover has been in custody since the date of his arrest on 8 September 2018, but part of the time since then was spent in the discharge of the balance of parole that was revoked as a consequence of this misconduct.  The balance of the parole period expired on 4 February 2019.  A question arises as to when the sentence to be imposed on him should commence.

6. Mr Provera in his submissions put the view that the sentence to be imposed upon Mr Glover should commence on 5 December 2018, to reflect to totality of the offending upon which he engaged and to ensure that the overall sentence to which he is exposed does not exceed that which he ought to suffer for his misbehaviour.

7. There is discretion in the Court with regard to the commencement of a sentence discussed by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour wrote at para 21:

"That the matter is discretionary appears to be the prevailing view of members of this Court.  Even in Andrews and Kelly, the Court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence which the offender is then to be sentenced.

[22] I maintain the view that a discretion exists.  There is no clear rule which will govern all cases.  The circumstances that bring an offender before a Court for sentence after parole has been revoked are far too varied to permit a single absolute rule.

[23] It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period.  It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

[24] However, I am also of the view that, particularly where, as here, the reoffending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences."

8. Glover was released to parole on 4 August 2018.  The offence that returned him to custody occurred on 8 September 2018.  The balance of parole that he had to serve therefore extended from 8 September 2018 until 4 February 2019, a period of less than five months. 

9. In my view in exercise of the discretion which I have the commencement of this sentence should be on 5 February 2019, and I intend to order the commencement date accordingly.

10. The offender Ramos-Malo has been in custody since he was arrested on 8 September 2018.  The entire period is referable to this offence and accordingly the aggregate sentence that I shall impose upon him after I have turned to consider the additional offences upon which sentence is to be imposed, will commence on that date.  In his case, I will indicate what I believe to be the appropriate sentence for the robbery offence, and that shall be included in the aggregation of sentences for this and the additional misconduct, which will involve a measure of concurrence and accumulation, to reflect the totality of the range of offending upon which he engaged.

THE PLEAS OF GUILTY

11. The facts relevant to the robbery are common to each of the offenders, and I shall in a moment rehearse those.  Before I do so, though, I will note that by reason of the decision made to plead guilty to their offences in the Local Court, in accordance with the legislative scheme that is now in place, a discount of 25% shall be applied to the sentence that would have otherwise been imposed.  That discount is applied to the sentences that would have otherwise been imposed, reached upon the synthesis of the objective facts and the subjective matters in each case.

THE FACTS

12. Turning to the facts, the victim, BP, a 26 year old male at the time, was not known by the offenders.  On the evening of 7 September 2018, a Friday, he had been to the Penrith RSL Club with friends.  He left that venue about 1am.  This was confirmed with access to the closed‑circuit television system installed at that club.  He walked from the RSL club and was heading towards the Panthers Leagues Club located on Mulgoa Road at Penrith.  He was expecting to be met there by his father, who would drive him home.

13. The offenders had earlier been at the Penrith Panthers Leagues Club, but were ejected shortly before at separate times.  The victim approached the corner of Ransley Street and Station Street, which was an intersection along the way toward where he was to meet his father.  He saw Glover standing at the intersection, and as he passed spoke to him.  Glover asked the victim for a cigarette.  The victim said he did not have one.  In conversation he learned that Glover had been kicked out of the Panthers Leagues Club.  Both of them walked along Ransley Street towards the leagues club for about 5 to 10 metres.

14. About halfway along Ransley Street the victim noticed Ramos-Malo walk from the southern side of the road toward him.  Ransley Street runs in an east/west direction.  The victim noticed Ramos-Malo appeared to be intoxicated from the way he was walking and his manner of talking.  The victim saw that Ramos-Malo was shorter than Glover, with darker skin.  He asked Ramos-Malo if he was okay, when suddenly Glover said, "Give us some fucking money for a taxi".  The victim said he had no cash on him but he could get some to help them if they needed it.

15. They then began “to get in the face” of the victim ‑ whatever that term might mean precisely ‑ threatening repeatedly that they would harm him.  He handed them his mobile phone.  That was taken by Ramos-Malo so that he could make a call, but the phone was PIN locked.  The offenders attempted to unlock the phone without success before one of them threw the phone down, causing the screen to smash.  One of them said to the victim, "Fuck you, cunt".  Then all of a sudden Ramos-Malo stopped behaving as if he was intoxicated and produced a knife.  He pointed the blade and held it to the side of the victim's stomach in a stabbing motion.  Glover said, "Empty your pockets".  The victim indicated that all he had was cards.  Ramos-Malo repeated, "Empty your pockets ‑ empty your pockets".  The victim removed his wallet.  Then Glover said, "Take off your clothes".  The victim asked if he was serious, and Glover yelled, threatening to harm the victim.  Ramos-Malo was holding the knife in his right hand in the same manner at this stage.

16. The victim began removing his clothes; and while he was doing so, Glover punched him to the face, to the right side of his left eye, causing pain and causing the victim to feel dizzy.  Glover then punched the victim again to his face and head butted him once to the mouth.  Both of the offenders hit him when the victim looked toward them.  There was little if any force used by Ramos-Malo in the punch he threw using his left hand.  The victim was told to take his underwear off.  He complied and then was left completely naked.  Both again threatened to hurt him, and by this time, the victim, unsurprisingly, was in grave fear.

17. Ramos-Malo held the victim against a brick wall with the knife pointed at him, while Glover went through the clothing.  The victim's bank cards, Medicare card, mobile phone, Sony Bluetooth speaker, black jacket and gold ring were taken.  The victim was them made to cross Ransley Street and was told to jump a fence on the side of the road. They threatened him that he would get hurt if he did not do so.  The victim made out he was climbing the fence; and the offenders then walked off towards Mulgoa Road, taking with them the property consisting of the Bluetooth speaker, the mobile phone, the gold ring, credit cards, other cards and the black jacket.  The victim did not see whether they left together or separately.

18. As the offenders walked onto Mulgoa Road the victim attempted to wave down a car to assist, but because he was totally naked the car or cars did not stop.  Fortunately, shortly after, a police vehicle came into Ransley Street and found him.  He reported to the officers what had happened and gave descriptions.  These were broadcast over the radio and shortly after the offenders were seen by police walking along Mulgoa Road, not far from the intersection of Ransley Street.  Glover was seen to throw a number of cards on the ground.

19. The police stopped them, got them seated, with Ramos-Malo against a metal power pole.  Body‑worn video was activated by the police.  The cards were retrieved and found to be the property of the victim.  Glover was addressed and cautioned and advised of the video being active.  He was seen to be carrying and was depicted on the video recorded with the blue coloured Sony Bluetooth speaker belonging to the victim.

20. When questioned how he came to be in possession of the property, Glover indicated that he had come across the victim, who had offered to fight.  When he accepted, the victim ran off, leaving his bag behind.  This was patently a lie.  Glover said he picked up the bag and went through it, taking the property found by the police.  A further search of Glover located the mobile phone in his pocket.  Glover admitted that the phone belonged to the victim.  Glover denied that he or Ramos-Malo had possession of a knife.  However, shortly after that, a Kinchrome folding knife was found behind the pole where Ramos-Malo was seated.  In response to being told of that, he said, "There must have been a knife then".  When questioned about why he lied, he said, "There wasn't a knife, but now you've found it, there is one".  He said that the knife belonged to him and he threw it away.

21. Ramos-Malo remained silent during this interaction with Glover, who was apparently attempting to take the blame, saying that “his mate" was not involved and was with him. 

22. Both were arrested and taken to Penrith Police Station.  The gold ring belonging to the victim was taken from Glover whilst he was in custody.  The victim attended and provided a statement.  Both of the offenders declined the opportunity to be interviewed, and both were charged.  DNA matched to the offender Ramos-Malo as the major contributor was found on the handle of the knife.

23. The victim was emotionally traumatised by the incident.  He sustained minor bruising under both eyes and redness to his cheeks as a result of being assaulted.  He was examined at the Nepean Hospital.  He was found to have a haemorrhage beneath the left eye and in the white area of the left eye.  The injuries observed were consistent with the attack he suffered, and the injuries were photographed.

VICTIM IMPACT STATEMENT

24. There is a victim impact statement provided by the victim.  I do not intend to quote the document at length.  He writes in emotional terms of the impact of this event upon him.  He speaks of having approached his attackers in a free spirited, friendly and naive manner, unaware of the danger he would soon face, consistent with the agreed statement of facts upon which sentence is to be determined.  He found the aggression unexpected, again, consistent with the description of the attack.

25. He suggests that he suffers from post-traumatic stress disorder, for which he seeks help from a psychologist.  He writes that this manifests itself in his lack of ability to switch off from a state of heightened alertness when in public, constantly scanning for imminent threats; expecting difficulties in all situations.  He is hypervigilant, he said, toward those he describes as his loved ones; his view of the world has changed; and he frequently rises to the instinctive response of fight or flight when facing what he perceives to be a stressful or difficult situation, whatever the circumstances he might be in at the time.  He feels anger for what happened to him.

26. He extrapolates what occurred to him across to the impact such behaviour might have upon his fiancé, his sister, his mother, or other family members.  He is conscious of the impact of what he has suffered upon his family members.  He, in terms, speaks of coping with these manifestations and his intention to look for positives in life and to overcome this experience.  He is grateful for not having suffered more harm than was occasioned to him; and he speaks of his gratitude for the police having come upon him by happenstance and providing their assistance.

27. There is a report from a psychologist, Anthony Brown, written on 9 July 2019, speaking of the treatment provided for management of post-traumatic stress disorder.  The psychologist writes in terms of this as a diagnosis arising from the events I have outlined from the facts.  The information provided in the report must be upon information provided by the victim, who spoke of intrusion symptoms, distressing memories, and recurrent distressing dreams, dissociative reactions in the form of flashbacks, persistent avoidance of stimuli associated with the event, negative alterations in cognitions and mood, and his perception of the world as a dangerous place.  He experiences marked alterations in arousal and reactivity, associated with the event; and his display of irritable behaviour and angry outbursts, with little or no provocation.  These symptoms have continued for longer than six months and are said to be clinically significant.  The opinion offered is that the victim has been impacted severely by the event, and the Court is urged to take into account the opinion.

28. My first observation regarding the psychologist’s report is that there is controversy as to the qualifications a psychologist has to diagnose a mental health condition such as posttraumatic stress disorder, though there is no prescription against a psychologist recording what is reported and noting the symptoms described as being consistent with such a diagnosis that could be made by a legally qualified medical practitioner.

29. The victim impact statement unfortunately describes what one might expect from an attack of this magnitude in the circumstances described.  I would not find the sequelae in this case to be of such moment as to be an aggravating factor in the determination of sentence in this case, but I do bring it to account as an indication of what people in the position of this victim experience when attacked in the manner described in this material before me.  To be faced by two offenders armed with a knife; to be beaten and then compelled to remove entirely one's clothing can have no other effect other than to cause significant distress.  I would have no difficulty finding that the distress occasioned could extend to symptoms that have been described in the material before me.

30. Whether the psychological harm could be said to be substantial and therefore an aggravating factor to be brought to account is another question, and I am not prepared to go so far and find that as a fact, but I bring to account what has been described to me as a compelling reminder of what is suffered by victims in circumstances such as this and what follows for them after such violent and degrading misconduct.  I have not overlooked that victim impact statements such as this are presented to the Court without any cross‑examination or any test of the evidence, and that an offender is left without the opportunity to challenge those representations in any meaningful way.

THE OFFENDER GLOVER

31. Glover does not come before the Court without an antecedent history.  He has been appearing in Courts from 3 August 2015.  All of the entries on his antecedent report are in respect of proceedings commenced in Children's Courts.  It is noteworthy that he has on multiple occasions exercised his appeals as a right to the District Court, against the perceived severity of the orders made by the magistrates in the Children's Courts from time to time.  He, of course, cannot be criticised for exercising appeal rights; they are rights available to all of us, were we to be prosecuted in the Local Court and thought to have suffered a penalty that was too severe in the circumstances, But this is important in my assessment of the matter, in light of the subjective case that has been presented on his behalf pleading for leniency and understanding in the determination of the punishment that he so justly deserves.

32. The offences upon which he has appeared in the Children's Courts include larceny on two occasions, stealing from person on one occasion, assault occasioning actual bodily harm on one occasion, failing to appear on two occasions, aggravated break and enter in a dwelling on one occasion, driving without a held licence on one occasion, being a driver and not disclosing particulars of identity on one occasion, assault upon a school student on one occasion, entering prescribed premises on one occasion, damaging property on two occasions, being carried in a conveyance taken without the consent of the owner on one occasion, and aggravated break and enter on one occasion.

31. The Courts have employed various options other than custodial sentences, except in one instance, which ultimately led to the revocation of his parole.  These included probation; community service; the dismissal of charges with caution; imprisonment, which was reduced in the District Court upon his appeal; control orders varied to probation in the District Court; bonds and fines; and there have been multiples of those options adopted by the Courts, no doubt, in the hope that he will rehabilitate and not continue upon his antisocial lifestyle.

32. There is a breach of parole report recommending that his parole be revoked.  He failed to engage with interventions that were arranged for him whilst subject to parole.  He was assessed to pose a significant risk to the community.  The breach of parole was the offending upon this occasion.

33. There is a sentence assessment report prepared for him, written on 10 October 2019.  He was living with his mother prior to his arrest.  He is attributed with employment for short periods, with continuing employment in custody.  His history of offending is described as significant and he is attributed with his expressed need for money as the reason for his initial antisocial behaviour; and I continue:

"However, he came to enjoy being part of the group and felt like they were family.  Additionally, he had knowledge that he came to enjoy the thrill and party culture that crime allowed him to afford."

36. With regard to the offence, he characterised his behaviour as impulsive, attributing his actions to his escalated emotional state after a series of negative interactions before his offence ‑ whatever they might have been.  With regard to the treatment of the victim, "Mr Glover stated that he engaged in his offending against the victim to demean him following a perceived slight, and acknowledged that he thought it was funny".  There is nothing in the material that would suggest that the victim behaved in any fashion that might have offered offence or insult to either of these offenders.

37. He was found to have demonstrated limited insight into the impact of his offending, indicating that he would not have taken his clothes off if he were in the victim's place.  He acknowledged the victim would have been scared, given the presence of the knife and he agreed that it was not fair for him to take his anger out on the victim.  He acknowledged that there were multiple occasions throughout the night where he could have avoided trouble if he had made different choices.  There is reference to this conduct being in breach of his parole.  He is assessed with a medium risk of reoffending.  There are supervision recommendations included in the report.

38. A forensic psychiatrist, Dr Adam Martin, provided his report written on 2 September 2019.  This was in response to a letter of instructions it would appear from the introductory paragraphs.  A consultation took place via an audio visual link between the Legal Aid offices in Sydney and the John Morony Centre where the offender was being held.  The report acknowledges elsewhere the limitations that such arrangements have.  His demographics are discussed, including his indigenous status; that he was living with his mother and sister prior to the offending; he had been incarcerated for six months and at large for four months when he committed this offence; he said he was doing the best that he could and was trying to keep happy; he had no interpersonal conflicts in gaol; he is in a shared cell; he spends his days training; he sleeps reasonably well and his appetite is normal.

39. He had seen counsellors through Juvenile Justice for anxiety after a "rough upbringing".  He denied antidepressant or admission to a mental health unit.  There is no history of self‑harming or suicidal behaviour.  He began smoking cannabis form the age of 15, and that extended into ecstasy and cocaine from the age of 18 on occasions.  Medically, he was fit and well, but he spoke of being involved in a motor vehicle crash as a passenger in 2017 in which he suffered fractures to the femur and ankles, amongst other injuries.  He had a knee reconstruction.  Afterward, he was in a wheelchair for some six months.  There were no neurological sequelae; no head injuries.

40. His father was in and out of gaol.  His earliest memory of his father is of visiting him in gaol.  He had a stepfather who had been violent towards his mother and the children and who had used drugs and alcohol.  He acknowledged poor attendance at school, but thought that he was "reasonably smart".  There were behavioural problems at school, with fighting and anger.  He was in a five‑year relationship that broke up prior to his arrest.  He had no knowledge of any family history of mental health issues.  His appearances in the Children's Court were noted, and it was noted that he has from time to time been diverted to counselling and drug and alcohol intervention throughout the history of his offending.

41. He described his offending as having occurred when he was extremely intoxicated from alcohol.  It was the first alcohol he had consumed since his release, and it was as a consequence of his relationship breakup that he overindulged.  The attack, he described as random.  A mental state examination did not reveal any depressive pathology.  There was no acute cognitive deficit noted.  The opinion at para 16 is:

"In terms of diagnosis, he has obviously displayed previous antisocial personality traits, based on his criminal history and the history he gave me.  He can be diagnosed with substance use disorder, currently in remission in a controlled environment."

42. The offending is suggested to have taken place in the context of alcohol intoxication against the background of a general predisposition to impulsiveness and recklessness.  He has a poor coping ability as a result of his prejudicial childhood history.  There is no apparent major mental illness and the opportunities from which he would benefit are then discussed.

43. The offender did not give evidence, and I am left to assess the material before me without the opportunity to hear what he had to say under oath or affirmation, with cross‑examination to perhaps test some of his representations.  In R v Qutami [2001] NSWCCA 353 Smart AJ urged circumspection in such circumstances. The head note in the reported version of that case, 127 A Crim R 369, aptly summarises what his Honour had to say upon that point. The representations attributed to the offender in reports are clearly admissible. The relevant text is at para 58, where his Honour wrote:

"While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner.  In many cases only very limited weight can be given to such statements."

44. That said, in this case it would seem to me that the responses and representations attributed to the offender are not entirely favourable to him and reflect what I would find to be the fact in his case. He is young; he is impulsive; he has limited regard for his obligations as a member of the community.

45. In accordance with what the High Court recently offered in the decision in Bugmy, one needs to bring to account the circumstances in which he was raised that must have contributed to his attitudes and his propensity to commit offences.  I do not intend by that remark to attribute any blame to his mother for the efforts that she made in raising her son, but the impact of his father's attitudes and her mistreatment at the hands of the person with whom she is said to have re-partnered all would, no doubt, have contributed to the offender's attitudes as they were developing through his formative years; I bring that to account.  I am satisfied that there are ample grounds for a finding of special circumstances in this case as a result.

CONSIDERATION

46. I note in the course of submissions Mr Provera attributed to the Crown the proposition that he did not require the offender to enter the witness box and repeat the representations made to the psychiatrist, and that the Crown accepted them in their terms.  According to my memory of the matter, the Crown made that concession.  I note that his mother was in Court, and I understand she is in Court again today to see what is going to happen to her son.

47. Mr Provera acknowledged that there was a measure of insight, but only to a limited extent.  Mr Provera acknowledged the status as a parolee, and his antecedent record was an aggravating factor, but of course, that only is within the context of principle as expressed in the decision of McNaughton [2006[ NSWCCA 242.  It informs the aspect of personal deterrence and denies the offender of leniency they might otherwise have had were they to have come before the Court without any antecedent offences.

48. The Crown did not provide written submissions in this case. I was provided with assistance, however, by Mr Provera in a written document. The reference in those to the offender's state of intoxication provides him with a little benefit in this case, by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999, which provides:

"In determining the appropriate sentence for an offence, the self‑induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor."

49. Because he had a breakup of a relationship and decided to become intoxicated does not ameliorate the misconduct, reduce his moral culpability or reduce the sentence to which he is otherwise exposed.

50. I agree with Mr Provera's submissions in regard to the principle of totality that must be brought to account, connecting this sentence with the sentence to which he was subject before this.  I have already dealt with the commencement date.

51. I am asked to accept that he is truly sorry for his misconduct.  In the absence of evidence, it is difficult to come to that decision.  He has, however, pleaded guilty, in the face of what I perceive to be a strong Crown case.  I would allow him the benefit of a measure of contrition, qualified by the fact that this is a strong Crown case that he had to face. He did not give evidence; but his representations elsewhere reflect acknowledgement of wrongdoing, some insight into the stress that was no doubt caused to the victim, but with no true and comprehensive expression of regret for what he did.

52. I have no difficulty with the finding of special circumstances.  He does need to be supervised closely; he has demonstrated as much by committing this offence whilst subject to parole.  He should have a longer period on parole at his age, so that he might maximise the prospects of rehabilitation, which I do not find to be strong.

53. I do not agree that general deterrence has a more limited role to play in this matter.  It is said that it has a limited role to play because of his general vulnerability, but that is met, in my view, by the propensity he has for committing offences leading to this more serious example of crime in the circumstances described.

54. It is conceded that specific deterrence has a role to play, and I am reminded of the oft quoted cases of Fernando [1992] 76 A Crim R 58, Bugmy v The Queen, to which I have referred found at [2013] HCA 37, and the guideline judgement in Henry [1999] 46 NSWLR 346. This is a more serious example than the example proffered in the guideline judgement in Henry, which drew upon robbery armed with an offensive weapon such as a knife by a single offender with limited or no criminal history, with an early plea of guilty in the face of a strong Crown case.

55. In this instance, there is use of the knife in addition to the offence being committed in company. There was also the application of force by each of the offenders, which is an aggravating factor by the force of s 21A(2) (b) Crimes (Sentencing Procedure) Act.

56. There is also the deplorable behaviour of the humiliation of the victim, requiring him to strip naked on a street in Penrith not far from Mulgoa Road, where the Penrith Panthers Leagues Club is located.  I am well familiar with this area.  There are limited dwelling houses in and about where this offence occurred.  There is, from my memory, the football field nearby and the Penrith Paceway also not far and it was late at night or in the early morning, when the opportunity to call for help was limited, although, there was some traffic around, according to the facts.

57. Henry suggested a sentence within the range of four and a half years, applying the criteria that the Court had before it.  Upon the application of the discount of 25%, I have come to the view that the sentence in this case should be one of imprisonment for five years and three months, including a non‑parole period of three years.  I shall formally announce that sentence when I have finished dealing with Ramos in respect of the robbery offence.

THE OFFENDER RAMOS-MALO

58. Additional material was tendered today in the form of certificates reflecting courses that Ramos-Malo has undertaken.  I shall deal with these immediately.  There is the health survival program; the remand addictions program, with a list of attendances.  There is the certificate of acknowledgement awarded to him for demonstrating a positive attitude and willingness to participate in a polite, respectful manner.  He has completed a short course in Christian instruction.  He has undertaken some training for inmate hairdressing.  He has participated in a positive lifestyle program and the South Pacific Islander program.

59. He did not give evidence in the proceedings before me.  A number of documents were tendered in his case, to which I shall come.  Stephanie Wong gave evidence; she provided a letter in tab 5 in the bundle that was tendered in his case.  This was provided by her in her status as an AOD transition worker in the Community Restorative Centre.  The document describes the nature of the organisation that is dedicated to supporting prisoners, ex‑prisoners and their families, and is there to deal with such as this offender who might be thought to have "fallen through the gaps in terms of AOD service provision".

60. He voluntarily sought AOD support in October 2018 and was a client at the time of the preparation of the document.  She first met him on 23 October 2018.  I note that the letter erroneously records 2019, and I have corrected my copy to 2018.  She has had nine counselling sessions with him.  He is attributed with recognition that his drug use led to his offending and, had he not been using those substances, he would not have been in the position that he was.  Had he been sober, he would have been able to think, he said, and would not have ended up committing any offence.

61. He has been abstinent in the period of incarceration, notwithstanding that there have been temptations there.  His observation of others who are burdened with the misuse of alcohol and other drugs leaves him with a negative perception of those people.  He is attributed with representations that he does not want to return to that behaviour, and he is attributed with insight into the effect of the misuse of drugs.

62. In her evidence, she spoke of her experience in this role and her opportunity to assess the veracity of persons such as the offender who come forward looking for counselling.  She is of the view that his attitude was genuine.  There was no cross‑examination.  The Crown accepted the material that she had to provide.

63. The offender has a record of antecedent offences.  He was born in 1998 and now is 21.  He was first before a Court on 4 May 2017 and has thereafter been prosecuted for driving whilst suspended on two occasions; a middle range prescribed concentration of alcohol offence on one occasion; having engaged in a police pursuit on one occasion; being in possession of a spray paint can on one occasion; an offence of refusing a direction under Pt 14 of whatever Act, which is not specified, for which he was fined $100, but importantly, a robbery in company as a child in 2015, dealt with in 2016, for which he was given probation.

64. The material tendered in his case was extensive.  He wrote a letter expressing regret, representing that he is kind, fair, humble and caring; not raised to behave in the fashion described.  He expressed disgust with himself for his conduct and the shame he has brought.  The document is more focused upon the other offending with which I have to deal, and I will not continue to discuss this material in respect of that matter until I come to it, but to the extent that he is communicating to the Court his regret and a sense of shame, I would accept that the material is applicable also to the sentence to be determined in respect of the robbery charge.

65. There is a psychologist's assessment by Kerry Watson, written on 3 October 2019.  She begins with a reference to his absence of continuity, consistence and predictability in his developmental history, which needs to be qualified with the balance of the document.  It is noted, however, that he alleges his childhood was not the best; his "biological parents" separated when he was a toddler; his mother re-partnered with a man who persistently abused him, both psychologically and physically; this conduct included spitting upon the offender, bashing him, punching, jumping on his head and kicking him.  He had a dysfunctional and unstable childhood, according to the representations attributed to him in this report.

66. He had some ability as a musician in a rap group with which he was involved until he was arrested.  His schooling concluded in year 10.  He relocated to Queensland to work with his godfather as an apprentice to a painter and airbrushing tradesman.  He was to live with his godfather.  He reported that he ceased that arrangement because he was not being paid.  He returned to live with his mother; he was unemployed for 12 months and then began his apprenticeship as a roof tiler, which he continued for 12 months until he was arrested and incarcerated for the present misconduct.  He is attributed with a healthy relationship with his mother and siblings.  They have provided unwavering support, it is said.  His relationship with his father has improved since his incarceration, and there has been contact.

67. The historical account is said to be indicative of the adolescent onset of generalised anxiety and depression seemingly attributable to environmental factors, complicated by significant substance abuse.  There was a suicide attempt by hanging; a subsequent involuntary mental health admission followed, after which he was discharged, to be managed by a local area mental health team.  He undertook 15 sessions of psychological counselling, but he said they provided little assistance.  He exhibited symptoms of severe despondency, but since he has been in custody, there has been improvement in his mental health and he is attributed with recognition that substance abuse was in fact the major contributing factor.

68. The history of alcohol and drug abuse is said to be with adolescent onset.  That is another way of saying, I suppose, that he started using drugs at a young age, qualified in subsequent paragraphs confirming that he started smoking cannabis at 15, which continued up until he was aged 17.  He began using alcohol at the age of 15, which was a problem for him and at the age of 19 he began using ice, which I take to be a reference to methylamphetamine, and frequently used cocaine, ecstasy and MDMA.  Ecstasy is another way of describing MDMA.  He used drugs simultaneously with alcohol because the use of alcohol gave him the urge that he needed drugs.  He only realised the seriousness of his misuse of substances when he was incarcerated.

69. There was a mental state examination which is described.  He demonstrated average intelligence and elevated stress, anxiety and despondency.  His depressed mood is said to have been mild to moderate, complicated by his substance abuse.  He is attributed with a history regarding what he describes or what is said to be persistent anxiety, which has been reduced in recent times after his abstinence from alcohol and drugs.  He is said to have described persistent rumination pertaining to his current situation.  One can understand that in the circumstances when he is facing a gaol sentence for what he has done wrong.  He has elevated stress and worry because of the impending disposal of these proceedings.  He is attributed with expressions of regret and guilt.

58. There was some psychiatric assessment performed, in which he scored in the moderate range for depression, stress and anxiety.  The psychologist writes:

"I am of the opinion that Mr Ramos‑Malo is currently demonstrating psychological symptomatology that constitutes the diagnosis of a depressive disorder and a generalised anxiety disorder (Diagnostic and Statistical Manual of Mental Disorders ‑ V).  However, most certainly of a significantly decreased symptom severity than that prior to his incarceration.  Mr Ramos‑Malo's current presentation is characterised by mild/moderate despondency and feelings of failure; an inadequacy and persistent anxiety of a mild/moderate nature."

71. There is reference to his history of a maladaptive and compulsive pattern of substance abuse contributing to his mental health it is said and there is reference to his misconception that alcohol and drug use was a means to reduce the symptomatology that has been described.  The report continues:

"At the commission of Mr Ramos‑Malo's offending conduct, there can be no doubt that his mental illness was unregulated, and his abuse of alcohol and illicit drugs was severe and out of control.  These factors, in my opinion, would have no doubt impaired Mr Ramos‑Malo's ability to exercise appropriate judgment; impaired his ability to appreciate the consequences of his conduct; reduced his inhibitions; obscured his intent to commit the offences; and most certainly contributed to the commission of the offences."

72. There is reference to his re‑evaluation of the trajectory his life has been taking and the value that incarceration has provided to him.

73. Her report does not identify the specific misconduct of which the psychologist was aware; and it would have been of assistance to know, I would have thought, the sequence of misconduct, bearing in mind that the other offences to which I am to come had been committed and that he was on bail for those offences at the time he committed this robbery.  That I expect would have informed the opinion offered.

74. In any event, there is a range of other material tendered on his behalf.  There was a report from a teacher, Ms Montana.  She has known him personally and professionally for some 15 years.  She refers to his plea of guilty to the pub brawl, so described, and the robbery in company.  She has seen him mature into a reliable young man from a somewhat unstable home life where he was raised in a low socioeconomic area by a single mother.  He always conducted himself in a respectable manner.  He has managed to acquire a satisfactory level of education; secured paid employment.  He demonstrated an ability to be flexible and adaptable to his environment, and also to carve out a passion for music and poetry.  She believes he will not reoffend.  There is no reference in her document to the antecedents that he has accumulated in the Children's Court and the Local Court.

75. There is a reference from the director of a roof tiling company ‑ or a roofing company, more correctly ‑ confirming that the offender was employed in this business as an apprentice roof tiler; he was found to be trustworthy and reliable.

76. I have already referred to the document provided by Stephanie Wong.  There is a document from the Drug and Alcohol Multicultural Education Centre by Taufui Halaholo, speaking of the program and the offender's engagement.  He was one of the first members to participate when it was launched in June 2019.  He is said to have been forthcoming with regard to his offences and that he would do things differently when given the opportunity in the community.

77. Marco Arellano is the offender's godfather, to whom I earlier referred, confirming that he worked for him.  There is no reference here to him not paying the offender, leading the offender to depart Queensland to return to Sydney.  Again, he speaks of him in the most positive terms.

78. Thomas Malo‑Sommers provides a reference.  This specifies the offences arising out of the hotel at Rooty Hill and then the robbery offence.  He is the offender's cousin.  He speaks of him having great potential; with an immense drive to succeed; with a strong work ethic.

79. David Malo speaks of the offences and also of being aware of his criminal history.  He is the offender's uncle.  Clearly, he holds the offender in great affection and speaks of his positive characteristics.

80. Thomas Malo is his grandfather.  He attributes the offender with remorse and speaks of him as a smart boy with a broad range of interests, anticipating that he will improve his circumstances when given the opportunity to do so.

81. Matthew Pearce provides a report or a reference noting the offences and the criminal antecedents.  He has known the offender since 2015.  This association is within the context of his music, in which it is said that he has a bright future.

82. Miriam Malo is his aunt, again speaking of his qualities as she perceives them.

83. Ruth Malo has written, aware of his circumstances.  She is also an aunt.  She also speaks of his qualities, his goals, his determination and grit, his vision and his good work ethic.

84. Tammy Scheithe has known the offender for 21 years.  She is godmother to him.  She writes that although his upbringing was hard and he resorted to crime, she believes he is not a bad person and is, underneath it all, a person of good character.

85. Tina Malo is another aunt.  Again, writing of his potential and characteristics, which she sees in positive terms.

86. Jennifer Guerrero‑Ramos is a regional manager for a mental health not for profit organisation and a qualified social worker.  She is another aunt.  She speaks of the difficulties experienced by the offender coming from his broken home and his parents' separation, his limitations within that household, and the need to rely upon extended family for nurturing and support.  She speaks of his anxiety and depression due to his unstable environment; and his qualities, which are consistent with all that has been written before.  She writes of him having strayed from the path that she had hoped for him, but since his arrest, he has expressed his desire to change, reflected in his response to incarceration and his willingness to participate in programs.

87. Hau Latukefu has written of his association with the offender within the context of their mutual interest in music, and his observations of the offender's talent and progress in that context; and his development of the hip‑hop group, which has at least reached the stage of having recordings released in some streaming platform, attracting 345,000 contacts.  He is attributed with his qualities and characteristics that he has observed, and expressions of regret.

88. Helpfully, there is a list of these various writers, with their association with the offender particularised.

CONSIDERATION

89. The Crown provided written submissions in this case.  He concedes the 25% discount.  He reminds me of the characteristics in the example given in Henry, the guideline judgement, and to be complete, these are a young offender with no or little criminal history; weapon like a knife capable of killing or inflicting serious injury; limited degree of planning; limited, if any, actual violence, but a real threat; the victim in a vulnerable position, such as a shopkeeper or taxi driver.

90. I note that there is some discussion in authority with respect to the question of vulnerability, and the example given in Henry, which is not this case. Though I note that one of the aggravating factors particularised in s 21A(2)(l) Crimes (Sentencing Procedure) Act is vulnerability, discussed in terms of the age of the victim as either young or old; or suffering a disability; or because of the geographical isolation of the victim; or because of occupation.

91. There can be no question in my mind that this victim was in a vulnerable position in the circumstances where he was confronted by the offenders.  The Crown correctly identifies the comparisons and contrasts to be drawn between the guideline judgement and this event; made worse, in my view, by the level of violence that was actually inflicted.

92. The Crown concedes the victim was not vulnerable in the sense as articulated in Henry; and that must be the case, applying strictly the Henry guideline judgement.  As I said, there is authority speaking of vulnerability contemplated by virtue of the employment of the victim, such as the shopkeeper or taxi driver, and situational vulnerability, which would be the approach to be taken in this case and, as I have noted, the victim was unfortunately required to undress until he was entirely naked, and then abandoned by the offenders at the scene.

93. This offender was also subject to a conditional liberty by reason of the bail imposed for the other offending, but also because he was subject to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a driving offence. My memory of the matter is that the offender consents to the Court dealing with the breach of the bond occasioned by this offending. I shall deal with that at the appropriate time. The offence is found in the antecedent report on p 2 and p 3 of 4. The matter was dealt with in the Mount Druitt Local Court on 4 May 2017. The offence was driving whilst licence suspended, which led to a bond under that provision for a period of 18 months with supervision. The Crown provided me with the documents relevant to that, and I shall as I said deal with that at the appropriate time.

94. Mr Pullinger made submissions.  He reminded me of the bail conditions to which the offender was subject, including a curfew between the hours of 6pm and 6am, limited association, and daily reporting.  These are all the bail conditions which applied in respect of the preceding misconduct.  He had limited support in his formative years.  He has used his time in custody well.  He has demonstrated contrition and remorse.  I would accept that in this case.

95. Notwithstanding he has not given evidence, there is ample material before me that makes clear that he has taken another path ‑ including the courses he has undertaken and his abstinence from drugs ‑ consistent with the custodial record, demonstrating that he has no relevant custodial offences.  He has expressed his insight.  I am reminded of his youth.

96. The antecedent offences have a limited role to play in this case, it is said, but there has been a propensity for antisocial behaviour, I might say.  Although this misconduct and the other misconduct which I am to deal with are at a much higher level, he has persistently offended, although over a limited period of time.  I accept there are strong prospects for rehabilitation.  I accept, as I said, that his remorse is genuine.

97. In both cases it is conceded that s 5 Crimes (Sentencing Procedure) Act 1999 is addressed by this behaviour. There can be no other sentence other than one of imprisonment. As I have indicated, there are special circumstances for each of these offenders.

98. In the case of Mr Ramos-Malo, I bring to account his youth, the progress he has made in custody ‑ which I would find he is likely to continue ‑ and that he should have an opportunity to be at large for a long period of time to build upon the improvements that he has made.  As I indicated earlier, I propose to impose an aggregate sentence.

99. His history is not as serious as the offender Glover, and I accept that his attitude has evolved such that I can be confident that his prospects for rehabilitation are strong.  I am also firm in the view that he has demonstrated unqualified contrition and remorse; matters of which I am not so persuaded in the case of Glover. 

100. Their behaviour is so comparable, were all things equal they ought to suffer the same sentence. In his case, I am minded to identify as an appropriate sentence one slightly less than that which I have identified for Glover.  I propose in respect of this offence to specify as an indicative sentence a term of imprisonment of five years. 

THE ASSESSMENT OF OBJECTIVE GRAVITY

101. The objective gravity of the offending of robbery whilst armed, whilst in company, including the application of force as described and the humiliation imposed upon the victim, puts this offence toward midrange of objective seriousness.

102. I have taken into account the circumstances and what is said to have been the motivation for the participation of each of them in accordance with what Johnson J discussed in the decision of Tepania v R [2018] NSWCCA 247 beginning at para 112. The fact that they chose to become intoxicated, whether by drugs or alcohol, is not a matter that it mitigates the conduct by force of s 21A(5AA) Crimes (Sentencing Procedure) Act.

THE SENTENCES

103. All of the purposes of sentencing articulated in s 3A of that Act are engaged here.  General deterrence has a role to play for both of them; specific deterrence also.  There must be recognition of harm, and denunciation of such deplorable behaviour.  In terms of the need to protect the community, I am confident in the case of Mr Ramos-Malo that it is not so significant; although, it is a significant matter in the assessment of sentence for Glover.

104. Thus, for these reasons, I have identified their sentences. 

105. In the case of Dahcell Ramos-Malo the indicative sentence I identify for the purposes of the offence of robbery in company is one of imprisonment of 5 years.

106. In the case of Tyrone Glover, he is convicted of the offence of robbery in company.  I impose a term of imprisonment of 3 years, commencing on 5 February 2019; that shall expire on 4 February 2022.  I specify a further period of imprisonment of 2 years and 3 months, to expire on 4 May 2024.

**********

Decision last updated: 04 February 2020