R v Gomes

[2022] NSWDC 375

District Court

New South Wales

Medium Neutral Citation:	R v Gomes [2022] NSWDC 375
Hearing dates:	18 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [25]
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37, 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Gomes (Offender)
Representation:	Magni Solicitor for the Director of Public Prosecution NSW Brady Solicitor for the Legal Aid Commission of NSW
File Number(s):	2021/00177257
Publication restriction:	Unrestricted

REASONS ON SENTENCE

1. The offender appears for sentence for one offence namely aggravated robbery with the aggravation being inflicting actual bodily harm. The offence has a maximum sentence of 20 years imprisonment. There is no standard non-parole period. I take the maximum sentence into account as the legislative guidepost as to the seriousness of the offence to aid me in determining the appropriate sentence.

2. By way of the form one procedure the offender asked that two further matters be taken into account. That procedure allows for greater weight to be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences.

3. The offender was arrested and taken into custody on 21 June 2021 and on 17 November 2021 for an unrelated matter received a seven-month term of imprisonment. Thus for the approximate 14 months he has now been in custody seven is attributable to that other offending. It will be necessary for the start date of this sentence to be determined and it will need to be some date between 21 June 2021 and 20 January 2022.

Facts

4. On 19 June 2019 the victim was riding his bike shortly after 10 PM. The victim has known the offender his whole life. He saw the offender with another male. The offender took the victim’s hand but in doing so purposely punched the victim twice to the face causing a cut and graze to his right cheekbone and a cut inside his mouth. The victim fell off his bike and went through his pockets and handed a phone and wallet to the co-offender who is charged with the different offence of being an accessory after the fact which carries only a maximum of five years imprisonment and beyond taking the items had little involvement. The entire incident was captured on CCTV.

5. The victim then rang the offender and asked him why he did that. Police were contacted and two days later the offender was arrested. The mobile phone was recovered.

6. The details of the goods in custody is that he was found with a pushbike which he said he picked up thinking of belonging to his auntie. The facts do not actually say it was a stolen bicycle. When placed under arrest he pushed a policeman and ran away.

Objective seriousness

7. The parties are agreed that the objective seriousness of this offending is at the lowest level. The offending had little planning and was impulsive. Detection was almost certain; the victim was a lifelong friend and the whole affair was captured by CCTV. The injury involved is whilst enough to satisfy actual bodily harm minor. What was stolen was a key card which was discarded soon after and I infer incurred no loss and the mobile phone which was recovered the next day. Planning could be assessed as being if not nil then whatever occurred between the time the offender saw the victim and then struck him very soon after. There was no attempt to disguise and indeed the victim was able and telephoned the offender later to ask him what it was all about. I adopt the suggested assessment of this being at the lowest level of objective seriousness. I would assess the form 1 matters is in the same way.

Aggravating factors

8. There was some submission as to it being aggravated by being in company and also by reason of the criminal history of the offender. The reality is that whilst the victim may have seen two people the second of them did very little and in my view there is very little if any aggravation for that reason.  The offenders record is not a good one and there are repeated matters of breaking and entering and stealing but there is not any assault matter other than when resisting arrest. It is plain the offender has little regard for the law. It is a matter that needs to be taken into account.

Subjective case

9. The offender relies on a psychological report of 2016 under the heading legal aid and authored by Danielle Castles and also a report of a social worker Rebecca Assaf dated 12 August 2022. Those reports describe a life of significant social disadvantage, dysfunction, and family upheaval.

10. The 2016 report sets out that the offender left school in year nine, commenced cannabis at age 13, abused alcohol when young, was using ice by the age of 18. He was brought up in an environment of excessive alcohol use and which saw him removed from his family and placed in foster care.

11. The 2022 report is more detailed.  The contents of that report have been well summarised in the written submissions of the offender. The removal from his family occurred at age 7 due to his parents alcoholism neglect and violence. He had multiple foster home placements. He was often separated from his siblings. He was subjected to physical abuse by foster carers. He was sexually abused when placed into a group home for which he is now seeking to take steps for compensation. At age 14 he returned to his parents. His already disrupted education ended at that point. He has never been employed.

12. Since the age of 18 (he is now 27) he has spent seven years and two months in custody. His adult life is therefore one of institutionalisation and characterised by significant drug and alcohol abuse. This has resulted in aggression as a means to cope, something more entrenched by having grown up in an environment where substance abuse and violence were normalised. There was also a significant emotional impact of being in custody when he learned that his brother had suicided. Whilst there is no mental health issue diagnosed it would appear likely the offender is untreated in respect of unresolved grief in relation to his brother and his childhood trauma.

13. On these facts it is plain in my view that the principles set out in Bugmy have application.

14. The submission is made that the moral culpability of the offender be considered to be reduced in light of this background. I have no hesitation in accepting that submission. It is plain that the childhood deprivation experienced by the offender has diminished his capacity to guide his behavioural decisions so that there is a causal connection to his offending. Perhaps most confronting of the case of the offender is paragraph 10.5 of the report of Ms Assaf where she states that the offender has developed a self perception that he is unlovable and unworthy and responsible for and deserving of the abuse and having no sense of belonging. The paragraph also says that the offender has little motivation to engage in any systems in mainstream society and appears to sabotage his prospects, with the result he remains imprisoned and disconnected from reality, responsibility, relationships and connection. His poor motivation is rooted in his self perceived unworthiness and hopelessness. His displaced emotions have been manifested in aggression and risk-taking behaviour and substance abuse.

15. Those comments are reflected in the sentencing assessment report which notes his response to supervision in 2019 was unsatisfactory with him failing to participate in programs treatment and intervention.

16. That said, the sentencing assessment report also notes that the offender is amenable to undertake mental health and alcohol and other drug intervention to address his offending behaviour. The recommendation of Ms Assaf is that targeting these reactive responses to trauma is not the correct approach and she recommends a different therapeutic course. The point however from the point of view of the offender’s argument is that despite the apparent sense of hopelessness of the offender there is enough awareness about him that he is open for intervention.  This gives a basis for some positive view as to prospects is further enhanced when the offender acknowledged his violent behaviour to the sentence assessment report writer and recognised that he did not consider the consequences of his actions. The offender said he intends to continue medication which has been stabilising his mood.

17. It was agreed the offender is entitled to a 25% discount on sentence due to his plea of guilty.

18. The offender’s case was also supported by a letter from his mother which corroborates the version of events that the offender gave to the report writers.  The letter makes clear the offender has the support of his mother.

Sentencing considerations

19. It is accepted that the section 5 threshold has been crossed. In my view in this case there is not great need for much weight to be placed on general deterrence given the subjective background of the offender. Nor does he seem to be a particularly appropriate vehicle for specific deterrence. There is a significant need to protect the community given his violent tendencies and state of despair. There is also a need to promote rehabilitation.

20. In assessing the length of the sentence it needs to be borne in mind that the offence itself and both Form 1 offences are at the lowest level of objective seriousness. That reduces the need for weight to be on achieving the purpose of protecting the community. It allows for greater weight to be given to rehabilitation.

21. In my view, taking into account all of the above matters, the appropriate term of imprisonment before the application of the 25% discount should not be a particularly lengthy one. Whilst there has been robbery involved the reality is this was an impulsive attack causing little injury and no financial loss. I appreciate the emphasis in the submissions for the offender concerning special circumstances. There is no argument against that by the Crown. Special circumstances is justified in this case due to the need to promote rehabilitation by having an extended period of supervision and to if at all possible avoid the offender becoming institutionalised if that has not happened already. I also take account of the more onerous conditions in custody in the Covid environment including the periods of lockdown that are presently occurring in custody.  Yet on the view I take the length of the sentence that should be imposed is such that, depending on when the sentences to date from, it may not be possible to have an extended period of supervision.

22. I consider a term of 2 ½ years before the application of the discount is the appropriate sentence. It follows that the term of imprisonment should be 22 ½ months, which I will round down to 22 months. 

23. In determining the date for the sentence to commence I note that the sentence of seven months was in respect of a charge of driving a conveyance taken without consent, which has a maximum term of five years and was committed on or about 29 May 2021. Whilst it has no connection to this offending it occurred within a month of the current offending and no doubt had in its genesis much of the same factors.  On a broad view there is some work for the principle of totality between the two offences.  In my view the appropriate start date for this sentence should be 27 October 2021.

24. In my view the appropriate non-parole period should be 10 months. In that regard I note that if the statutory ratio was adhered to the non-parole period would be approximately 16 months. The additional period of supervision is therefore six months and is clearly justified if there is to be some prospect of harnessing the positive aspects of the offender’s outlook as identified above in the sentencing assessment report and to engage in the type of treatment recommended by Ms Assaf to enable those positive aspects to overcome the negative sense of worthlessness that has pervaded the offender throughout his adult life following his traumatic childhood.

Orders

25. 1. In respect of the charge under section 95 (1) of the Crimes Act the offender is convicted.

1. Taking into account the matters on the form 1 and applying the 25% discount, the offender is sentenced to a non-parole period of 10 months to date from 27 October 2021 and expiring on 26 August 2022 with a balance of term of 12 months expiring 26 August 2023.

2. I direct that the report of Ms Assaf (dated 12 August 2022 on the front cover and 1 August 2022 on the last page) be provided to the Parole authority to give some assistance as to the provision of the appropriate counselling required by the accused as recommended at paragraph 10.9 of her report.

Decision last updated: 26 August 2022