R v Hampton; R v Wright
[2020] NSWDC 725
•21 August 2020
District Court
New South Wales
Medium Neutral Citation: R v Hampton; R v Wright [2020] NSWDC 725 Hearing dates: 6 August 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Criminal Before: R. J. Weber SC DCJ Decision: Hampton:
(1) The offender is convicted of the offence of robbery in company contrary to the provisions of s 97(1) of the Crimes Act 1900.
(2) The offender is sentenced to a term of imprisonment of three years and four months with a non‑parole period of two years and six months.
(3) Pursuant to the provisions of s 47 of the Crimes (Sentencing Procedure) Act, the Court directs that such term of imprisonment shall commence on 1 August 2019, with the non‑parole period to expire on 31 January 2022, and the balance of the sentence to expire on 30 November 2022.
Wright:
(4) The offender is convicted of the offence of robbery in company contrary to the provisions of s 97(1) of the Crimes Act 1900.
(5) The offender is sentenced to a period of imprisonment of three years with a non‑parole period of two years.
(6) Pursuant to the provisions of section 97 of the Crimes (Sentencing Procedure) Act, the Court directs that such term of imprisonment shall commence on 27 February 2020 with the non‑parole period to expire on 26 February 2022, and the balance of the sentence to expire on 26 February 2023.
Catchwords: CRIME — Robbery in company – co-offenders
SENTENCING — Relevant factors on sentence — Henry guidelines – Bugmy factors – The offender’s brain injury – Institutionalisation – COVID-19 considerations not appropriate to be brought into account in the sentencing task – Appropriate sentence date to take into account time spent in custody
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1900 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 37
Markarian v The Queen (2005) 228 CLR 357
R v Henry (1999) 46 NSWLR 346
Category: Sentence Parties: Regina (Crown)
Samuel Wallace Hampton (Offender)
Daron John Wright (Offender)Representation: Counsel:
Solicitors:
Ms K Stares (Hampton)
Mr A Wilczek (ODPP)
Mr J Etkind (Legal Aid)
Ms E Parker (ALS)
File Number(s): 2019/00239126; 2019/00204814 Publication restriction: None
Judgment
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The offenders are co‑offenders who come before the Court in relation to a robbery in company. The offender, Hampton, is a principal offender. The offender, Wright, is before the Court to answer a charge that he did aid and abet in the robbery in company.
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Both offences are contrary to the provisions of s 97(1) of the Crimes Act 1900 (NSW). This offence carries a maximum sentence of 20 years’ imprisonment, and there is no non‑parole period.
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Both offenders have pleaded guilty, and have come before the Court for sentence.
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The Crown accepted that in all the circumstances, both offenders were entitled to a 25% discount on whatever sentence might otherwise be imposed to reflect the utilitarian value of those pleas. I propose to sentence accordingly.
Agreed Facts
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The facts, which were agreed between the parties, can be briefly summarised.
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At 6.56am on 5 June 2019, the victim, Minh Soan Nguyen, was behind the counter of his newsagency at Dulwich Hill. The victim was a man of 62 years of age. He had run his business with his wife for the preceding 15 years.
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The offender Wright waited outside the door of the newsagency, and allowed the sole customer who was then present in the newsagency to exit. Wright then walked to the front of the counter of the newsagency and provided to the victim a $5 Scratchie lottery product to process. The victim checked the ticket for him and informed him that he had won. Wright then entered into a debate with the victim, disputing the amount which his ticket had entitled him to win. This was a ruse.
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At 6.57am, while Wright was still engaging the victim in this confected dispute, the offender Hampton and an unknown man came into the shop through the front door. Hampton was wearing a black, hooded jumper with the hood over his head. CCTV surveillance footage taken from the shop shows the victim engaged in the debate with Wright, and not paying any attention as to who was coming into the shop.
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While the victim was explaining the Scratchie winnings to Wright, Hampton and the other male came behind the front counter. The CCTV footage captured Hampton punching the victim to the face with a closed left fist in close proximity, just as the victim turned to see him. Hampton then used his body to try and keep the victim up against the counter behind him while the unknown man tried to remove the till. After this was accomplished, Hampton moved out from behind the counter pushing past the unknown male. They exited with the contents of the till. As the victim attempted to follow him, the unknown man pushed the victim back into the counter with his arm, and ran out.
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At 6.59am, Hampton walked out of the store. During all of this the offender Wright remained where he was, watching all that was going on. Wright remained in the shop with the victim momentarily, and then walked out of the newsagency in the same direction as Hampton and the unknown male.
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The till contained between $100 to $200 in total, being comprised of $5, $10, and $20 denominations. An ambulance arrived and transported the victim to Royal Prince Alfred Hospital. The victim suffered a 1 centimetre laceration to the centre of his lower lip, and also a 1 centimetre internal laceration to his upper lip, causing a considerable gape which required a single suture. He also suffered a swollen bruise to his left eyebrow with a small, overlying, superficial, circular abrasion.
The Henry Guidelines
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The parties were in agreement that, as a broad proposition, the guideline judgment in R v Henry (1999) 46 NSWLR 346 has application to both offenders. I have qualified the proposition with the adjective “broad”, as both offenders suggested that properly understood their cases placed them below the sentence range suggested in Henry. In Henry, Spigelman CJ, with whom Wood CJ at CL, and Newman and Simpson JJ agreed, stated that:
“It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for the purposes of determining a guideline…
(i) A young offender with little or no criminal history;
(ii) A weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited if any actual violence, but the theft thereof;
(v) The victim in a vulnerable position, such as a shopkeeper or a taxi driver;
(vi) The small amount taken; and
(vii) A plea of guilty, the significance of which is limited by a strong Crown case.”
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His Honour, the Chief Justice, proceeded to say that, in his opinion, sentences for offences of this character above “should generally fall between four and five years for the full term.” His Honour continued that “aggravating and mitigating factors would justify a sentence below or above the range as this Court’s prior decisions indicate. The narrow range is a starting point.”
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His Honour stated that,
“…in addition to the factors which may arise in any case, for example, youth, the offender’s criminal record, co‑operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed while on bail, et cetera, a number of circumstances are particular to the offence of armed robbery.”
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These include:
The nature of the weapon,
The vulnerability of the victim,
The position on the scale of impulsiveness and planning,
The intensity of the threat of actual use or force,
The number of offenders,
The amount taken; and,
The effect on the victim(s).
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It was agreed between the parties that certain other factors set forth in Henry are also included in the list of aggravating factors set forth under s 21A of the Crimes (Sentencing Procedure) Act 1900 (NSW) (“Sentencing Act”).
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Accordingly, it is important in any sentencing analysis to avoid double counting of those factors. In order to avoid this possibility I have only taken into account s 21A aggravating factors where they are expressly referred to by me in these reasons.
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Similarly, separate consideration of the objective seriousness of the offending also has a tendency to involve elements of double counting if considered in conjunction with the Henry guidelines. It seems to me, therefore, that in order to avoid such a risk I should approach the sentencing task by reference to the Henry principles, and not dwell upon objective seriousness.
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In that regard I should say, however, that the parties were in agreement that the offending fell below the midrange of objective seriousness. I agree with that assessment.
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In addressing the Henry factors, and applying them to the factual situation of the offenders before me, the following emerges:
The youth of the offender. Here, Mr Hampton was aged 36, while Wright was 52 years of age. Accordingly, they could no longer be considered youthful offenders.
A weapon being a kitchen knife, et cetera, capable of killing or inflicting serious injury. There was no weapon in this case.
Degree of planning being limited. This was present in this case.
Limited if any actual violence or threat of violence. Here, violence was used by the offenders insofar as Hampton punched the face of the victim. However, Wright did not use any violence.
The victim was in a vulnerable position such as that of a shopkeeper or a taxi driver. This was present in the current circumstances.
A small amount taken. This was present as well.
A plea of guilty, the significance of which may be weakened by a strong Crown case. This was also present.
Conclusions on Henry Guidelines
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At the end of the day, this analysis that I have set out above of the Henry factors was agreed between the parties.
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Before leaving consideration of Henry factors, and before returning to the subjective circumstances of the offenders, I should also record two submissions made on their behalf, both of which in my view are correct, namely:
That in respect of Wright, he was not a principal offender, but rather an aider or an abetter, a factor which was not present in Henry; and
That in respect of both offenders, Henry contemplated a 10% reduction in sentence attributable to their early plea, whereas in this case the parties were agreed that the applicable deduction was 25%.
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The effect of the 25% discount to the Henry range is to reduce the range of head sentence to between 40 months, that is to say, three years and four months with a non‑parole period of 30 months, to 50 months with a non‑parole period of 37 months.
Aggravating Factors
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Both offenders have extensive criminal antecedents, which include personal violence offences. This is potentially an available aggravating factor pursuant to s 21A(2) of the Sentencing Act. I do not propose to take this into account as an aggravating factor, but rather I consider it to be a factor which denies the offenders any possible submission that their offending was an aberration, and further, a factor which disentitles them to leniency.
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In respect of Hampton, his offending occurred while he was on conditional liberty. I brought this matter to bear as an aggravating factor in respect of Hampton. This factor also interacts with an appropriate start date of any custodial sentence which might be imposed on Hampton. I will return to that topic later in these reasons.
Mitigating Factors
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As to mitigating factors, the offenders both put forward their early guilty pleas as a mitigating factor. I have previously dealt with this topic.
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Both offenders submitted that contrition was available to them as a mitigating factor, while Wright also put forward that he had good prospects of rehabilitation, which of course is also a mitigating factor. I shall deal with those issues later in these reasons.
Subjective Circumstances
Hampton
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Hampton gave sworn evidence as to his upbringing, and verified the history which he provided to psychologists and investigators in respect of child sexual abuse which he suffered. He also gives evidence of his contrition and thus exposed himself to cross‑examination in the sentencing hearing. He was in fact cross‑examined.
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The offender Hampton was born on 15 January 1982. He was 36 years of age at the time of offending, and he is currently 37. He is an Aboriginal man. He was incarcerated as a child. It was in this context at Juvenile Remand Centres that he was sexually abused. This abuse is something that he has had difficulty talking about for much of his life. However, it is outlined in some detail in annexure B to his affidavit as well as in paragraphs 14 to 16 of that affidavit.
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The experiences of Mr Hampton, set out in his affidavit and the accompanying statement of facts, set out an upbringing exhibiting both consistent parental neglect, early exposure to alcohol and other drug abuse, as well as to the childhood sexual abuse to which I have referred, which in turn resulted from his childhood incarceration.
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I will not further dwell on the sad details of Mr Hampton’s upbringing and youth other than to adopt his counsel’s submission that Mr Hampton has suffered an upbringing that was marred by parental neglect, drug abuse, parental incarceration, early exposure to drugs and sexual abuse.
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It was further submitted that the impact on him is likely to be lifelong. As a consequence, it further submitted that he had a need for strong community networks, significant support including mental health intervention, intensive drug and alcohol counselling to assist Mr Hampton in addressing the underlying issues relating to his drug abuse, particularly being counselling for the impact of child sexual abuse which he has experienced. I accept these submissions.
Wright
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The offender Wright is a 53 year old man. He was 52 years of age at the time of the offending which brings him before the Court. Mr Wright has also had a most difficult upbringing. Mr Wright’s background of trauma, deprivation, and disadvantage can be summarised as follows. He is an Aboriginal man who was born and raised on a mission outside of Dubbo. He was raised by his maternal aunt and uncle from infancy until 13, where he was the subject of considerable neglect, and physical and verbal abuse. He was regularly beaten with straps and jug chords, and he often went without food. He was also exposed to disadvantage, crime, drug use, and violence from a young age of admission.
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He first encountered the criminal justice system in Brewarrina at age 14. He lived with his maternal grandmother at age 15 for two years before residing with his mother in Sydney. He did not feel supported by his caregivers and he did not develop a positive relationship with his mother because of her substance abuse problems. He began drinking sporadically from age 13 with increased alcohol use when he moved to Sydney due to his mother’s influence. He started smoking cannabis from the age of 15. He described regular use until his 20’s when he began to inject with heroin.
The Offender Wright’s Brain Injury
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Mr Wright has also suffered a serious brain injury. This occurred on 9 November 2018 when he suffered a 15 metre fall onto the rocks at Mrs Macquarie’s Chair. He required surgery. Psychometric tests undertaken on him have demonstrated the following:
That his auditory-verbal attention span and working memory was in the ‘borderline’ range.
That his information processing and psychomotor tasks was in ‘extremely low’ range.
His overall level of intellectual functioning fell in the ‘extremely low’ range.
His verbal learning and memory was initially ‘limited’, however with repetition progressed to the ‘average’ stage.
His immediate delayed memory or visual memory were ‘extremely low’ or ‘low average’ respectively. He did not benefit from recognition prompts.
His higher level, that is to say, executive abilities, were variable. He performed ‘extremely low’ in planning, organisation, self‑monitoring, attention to detail, and self‑monitoring on fluency tasks.
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Dr Wearne, Mr Wright’s treating neuropsychologist, opined that the above results, as well as Wright’s significant signs of mood disturbance, are consistent with the outcomes of a severe traumatic brain injury, which he no doubt suffered as a result of his fall.
Subjective Circumstances of Both Offenders
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Both offenders submitted that the circumstances of their upbringing were such as to call into consideration the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 525. That proposition could hardly be gainsaid. Indeed it would not be unfair to say that both offenders’ upbringing have provided sad but what might be called classical examples of the type of upbringing to which the High Court referred in Bugmy.
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It was correctly submitted on behalf of the offenders that once the evidentiary foundation is made for enlivening the principles set forth in Bugmy, the Court is bound to take those matters into account.
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The Bugmy factors so established operated to lessen the moral culpability of each offender.
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In the case of Wright, the brain injury to which I have earlier referred also has the effect of lowering his moral culpability. The authorities make clear that in considering the principles in Bugmy, it is not necessary when considering the effect of deprivation on the moral culpability of the offender for there to be established a direct causal link between the deprivation suffered by the offender and the offending. I accept that this is the case, and shall proceed to sentence accordingly.
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I have thus taken into account the circumstances of the deprived upbringing in respect of both offenders, and, in addition, the brain injury to Wright, in lowering their respective moral culpability.
Remorse
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Hampton gave evidence of his remorse. He stated that while he had no actual recollection of the offending, which I presumed to be because of his ingestion of drugs at the time, he had viewed the CCTV footage on a number of occasions and greatly regretted his conduct, especially the violence visited upon the defenceless victim.
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The Crown submitted that the fact that he could not recall the incident detracted from his contrition, and suggested that the greatest regret which the offender had was as to the effect of his offending on his own circumstances. I do not accept that this is the case. I accept the offender’s remorse.
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As to Wright, there was no direct evidence of remorse on his part. It was submitted on his behalf that the early guilty plea bespoke contrition. I do not accept this is the case. I consider that the guilty plea rather than being an expression of contrition was a sensible action taken in response to an overwhelming Crown case based on CCTV footage.
Prospects of Rehabilitation
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Wright submitted that he had reasonable prospects of rehabilitation and low risk of re‑offending. This was put to me on the basis of:
His acceptance of responsibility for his offending;
That in the period from October 2016 to the day of the offending, he was offence free, this being the longest period not spent in custody since he was 18;
The fact that he made application in the National Disability Insurance Scheme, which would hopefully become available to him on his release, which would assist him in dealing with the ongoing effects of his brain injury;
His need to access treatment upon release from the Aboriginal Medical Centre and St Vincent’s Outpatient Private Clinic; and
His co‑operation and openness with psychologists.
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I accept the genuineness of these submissions, but the fact remains that the offender’s criminal history, which only can be described as lamentable, causes me to conclude that the offender’s prospects of rehabilitation must be at best described as “guarded”, and that his risk of re‑offending must unfortunately be characterised as reasonably high.
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Hampton made no submission in relation to the issue, and I would assess his prospects of rehabilitation and risk of re‑offending in the same terms.
Institutionalisation
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Both offenders made submissions about institutionalisation. Both offenders touched upon the need to ensure that any sentence which I might impose did not further the risk that the offenders would become institutionalised.
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Given the long history of incarceration, which in both cases commenced well before the offenders reached the age of 18, I believe that they are more likely than not to already have become institutionalised. Indeed, in respect of Mr Hampton, the effect of his affidavit appeared to me to establish that fact. I do not take the issue of institutionalisation into account in sentencing.
Parity
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Considerations of parity obviously loom large in the sentencing task which confronts me. Whilst there was much in common in relation to the offenders, especially in relation to their deprived upbringings, which as I have said bears on their moral culpability, there were however important differences between the two which must be brought into account.
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The first, and probably most fundamental, is that Hampton was a principal offender, whereas Wright was an aider and abetter. As such, the roles played by the two offenders were quite different. It was Hampton who punched the victim. Wright did not impose any violence on the victim. Wright’s role was more one of a distractor of the victim, so as to enable Hampton and the other unknown male to get behind the counter where the assault and the robbery then took place.
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Finally, Wright’s position in relation to moral culpability is to some extent different from Hampton’s insofar as the issue of his brain injury, which should also be brought into account.
COVID-19
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Both offenders submitted that should Covid‑19 enter into the New South Wales custodial system, they as prisoners were at high risk of contracting the virus. Both offenders pointed to the fact that face to face visits had been suspended for the time‑being as a precaution to keep the virus out of the custodial system.
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Hampton gave evidence that the fact that the effect of Covid‑19 at the institution at which he is at housed has been to cause prisoners to experience greater time in lockdown including increased reliance on frozen food. More significantly, he gave evidence that, while AVL visitation was available, his family did not have the resources to access the internet for that purpose, and accordingly he had had no visits since the imposition of measures put in place by the Commissioner to prevent the spread of Covid‑19 into the New South Wales custodial system.
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I am not without sympathy to the plight of prisoners whose visits have been curtailed. The fact is however, that it is not just these two offenders alone who are so affected. All inmates are similarly affected so that for the period that these restrictions remain in place, the incarceration of all inmates will be more onerous. Moreover, it is impossible to know how long these restrictions will remain in place. There is no suggestion on the evidence before me that Covid‑19 had entered into the general prison population.
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Indeed, the onerous procedures to which I have earlier referred, no doubt provide a substantial reason for that. As such, I do not believe that I can assume that the steps taken to date to keep Covid‑19 out of the custodial system will be unsuccessful. In the unfortunate event that the virus did enter the general prison population then, in my view, it will be a matter for the Commissioner of Corrective Services and the legislature to determine what remedial steps should be taken in relation to all inmates.
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Consequently, I do not believe that this is a matter which in the normal course is one which a sentencing judge can or should bring into account in the sentencing task.
Gaol as the Only Appropriate Punishment
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As to whether gaol is the only appropriate punishment for the offending, Hampton accepted that this was the case.
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Wright suggested that his was an appropriate case for an Intensive Corrections Order. I do not consider this to be the case.
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The nature of the offending when taken with the extensive criminal antecedents of Wright, to my mind, dictate that the only appropriate sentence in all the circumstances is one of fulltime imprisonment. I also believe that the need for personal and general deterrence, together with the need to make the offenders accountable for their actions and to denounce his conduct, are such as to lead to no other conclusion. I find therefore for the purposes of s 5 of the Sentencing Act that a fulltime term of imprisonment is the only appropriate penalty in all the circumstances of the case.
Special Circumstances
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As to special circumstances, Wright submitted that the following were appropriate to be brought to account for justifying a finding of special circumstances for the purpose of s 44 of the Sentencing Act. They were four factors:
His good prospects of rehabilitation;
He was at risk of institutionalisation;
His mental health issues; and
The hardship of his custody due to Covid‑19 requirements.
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I have previously dealt with and rejected submissions in relation to the offender’s prospects of rehabilitation, risk of institutionalisation, and Covid‑19. I do accept, however, that the serious brain injury which affects the offender Wright is appropriate to be brought into account as a special circumstance.
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Hampton put forward the following special circumstances:
The need for a lengthy period of time on parole to enable him to adequately address the childhood sexual abuse to which he was subjected;
The support and assistance of a long period of parole would reduce his risk of re‑offending and increase his prospects of rehabilitation;
The risk of institutionalisation;
Substantial assistance for the offender to overcome drug and alcohol addiction; and
Any accumulation on the balance of his parole.
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I do not believe that these circumstances of special circumstances are made out in respect of the offender Hampton.
The Appropriate Start Date of Custodial Sentences
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The relevant offence as I have indicated was committed on 15 June 2019. Hampton was arrested by police on 1 August 2019, and refused bail. However since the time of his arrest Hampton has also been in custody serving the balance of his parole for an offence of armed robbery with an offensive weapon. It can be seen therefore, that it is not clean cut as to when incarceration in respect of the offending before me should be found to have commenced. I have discretion, of course, as to when any sentence of imprisonment which I might pronounce should commence, but I am required to take into account time already spent in custody in consideration. This is as a result of s 24(a) of the Sentencing Act.
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In these circumstances, where I have taken into account the fact that the offence before me was committed by Hampton while on conditional liberty as an aggravating factor, I do not consider that it is appropriate to do other than to backdate his sentence to the date in which he entered into custody following his arrest. That is to say 1 August 2019. To do otherwise, in my view, would run the risk of double counting this factor.
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Mr Wright was arrested and charged for this offence on 2 July 2019. He remained in custody until 9 September 2019, when he was granted Supreme Court bail. However this was revoked on 7 May 2020. It was agreed that Mr Wright had been in custody for the period of five months and 23 days solely referrable to the offence. Consequently, I consider it appropriate to backdate his sentence to commence on 27 February 2020, which date has been agreed between the parties.
Sentence
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In arriving at the sentences which I am about to deliver, I have taken into account the matters set forth in these reasons in relation to the objective seriousness of the offending, the Henry principles, the aggravating and mitigating factors to which I have referred. A 25% discount has been allowed to reflect the utilitarian value of the early guilty plea.
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In arriving at the final sentence, I have attempted to carry into effect the instinctive synthesis process described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51].
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Samuel Hampton,
You are convicted of the offence of robbery in company contrary to the provisions of s 97(1) of the Crimes Act 1900.
You are sentenced to a term of imprisonment of three years and four months with a non‑parole period of two years and six months.
Pursuant to the provisions of s 47 of the Crimes (Sentencing Procedure) Act, I direct that such term of imprisonment shall commence on 1 August 2019, with the non‑parole period to expire on 31 January 2022, and the balance of the sentence to expire on 30 November 2022.
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Daron John Wright,
You are convicted of the offence of robbery in company contrary to the provisions of s 97(1) of the Crimes Act 1900.
You are sentenced to a period of imprisonment of three years with a non‑parole period of two years.
Pursuant to the provisions of section 97 of the Crimes (Sentencing Procedure) Act, I direct that such term of imprisonment shall commence on 27 February 2020 with the non‑parole period to expire on 26 February 2022, and the balance of the sentence to expire on 26 February 2023.
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Decision last updated: 16 February 2021
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