R v Hanly

[2020] NSWDC 324

District Court

New South Wales

Medium Neutral Citation:	R v Hanly [2020] NSWDC 324
Hearing dates:	19 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [36 - 38]
Catchwords:	CRIME — Violent offences — Robbery in company
Legislation Cited:	Crimes Act 1900 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ R v Henry [1999] NSWCCA 111 R v Fangaloka [2019] NSWCCA 173
Category:	Sentence
Parties:	Regina (Crown) Offender (Hanly)
Representation:	Counsel: Mr Heffernan, Solicitor advocate, for the Crown; Mr Longhurst Counsel for the offender
File Number(s):	2019/0023385
Publication restriction:	Unrestricted

Contents

Judgment

Introduction

Charge, maximum sentence

Form 1 procedure

The facts

The form one matter and related offence

Objective seriousness

Section 21A.

Subjective case

Offender’s material

Criminal history and youth

Prospects

Guilty plea

Parity

Sentencing considerations

Orders

Judgment

Introduction

1. The offender was born on 28 September 1997 and so is now 22 years old. This offending occurred on 22 December 2018 when the offender was 21 years old.

Charge, maximum sentence

2. The offender has pleaded guilty to one charge of robbery in company under section 97 (1) of the Crimes Act. The maximum sentence is 20 years imprisonment. There is no standard non-parole period. In sentencing the offender there is one matter to be taken into account by way of the form 1 procedure being a matter under section 16 (2) of the Law Enforcement (Powers and Responsibilities) Act of being a passenger and failing to disclose the driver’s identity. That offence has the maximum penalty of 12 months imprisonment and/or 50 penalty units. There is then a section 166 certificate setting out two related matters one of which appears to be the same as the form 1 matter and the other being drive motor vehicle during disqualification period, first offence which has a penalty of 6 months imprisonment and / or 30 penalty units and an automatic 6 month period of disqualification of licence with a minimum disqualification period of 3 months.

Form 1 procedure

3. In regards to the Form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts

4. On 22 December 2018 the offender was in a motor vehicle with 2 other people. Together the 3 of them robbed the victim of approximately $270. The victim had that money because he had won more than that on poker machines and made that known by Facebook. Shortly after that he contacted a man named Titmarsh to buy some marijuana for $280 and they arranged to meet for that purpose.

5. Titmarsh and the victim knew each other from school. The 3 men in the car were parked near where the victim was to walk and as he became visible Titmarsh called out to him and told him to jump in the car which he did. After that the driver got out of the vehicle and disappeared before reappearing at the victim’s rear driver’s side door and stood over him with a knife with a blade approximately 30 cm long. The driver held this knife to the neck of the victim and said “empty your pockets”. The victim looked at Titmarsh and asked “why” and Titmarsh said “sorry”.

6. After this robbery the victim went home and told his mother and it was reported to the police. The victim told Titmarsh by Facebook that the police had been told and asked for the name of the driver but Titmarsh told him he was a bikie and not to mess with them.

7. Police investigations resulted in it being established that the motor vehicle used belong to one Jamie Meakin and that the offender had control of the vehicle whilst Meakin was overseas and was supposedly obliged to sell the vehicle. Phone records show text messages between the offender and Titmarsh relating to the planning of the robbery and which also showed it was largely the idea of Titmarsh and the driver and that the offender’s phone was being used whilst he was asleep.

8. The case against the offender is that he assisted in the robbery by allowing the vehicle to be used and by being present at the time of the robbery which bolstered the threat to the victim. It is not alleged that the offender performed an active role in the robbery itself. Nor does the Crown assert that the offender was aware a knife would be used so that is not relied on as an aggravating feature.

9. On 22 January 2019 the offender was stopped by police and found to be driving whilst disqualified. This is an offence under section 54 (1) (a) of the Road Transport Act and has a maximum penalty of 12 months imprisonment and or 50 penalty units. This is the related offence to be dealt with today. This offending led to the linking of the offender to the other vehicle and to his arrest for the robbery and his refusal to identify the driver which gives rise to the Form 1 matter which has a maximum penalty of 12 months imprisonment and or 50 penalty units.

The form one matter and related offence

10. The agreed facts disclose little information as to the relationship if any between the offender and the driver. It can be inferred adverse to the offender that he permitted the driver to drive the vehicle for which he was responsible. It might also be inferred that he (the driver) would have been known to the offender by some form of name. It also seems to me likely on the facts that it was not a close relationship. Just how much assistance he could give the police is not exactly clear. In those circumstances I would assess this as being of low objective seriousness. Nevertheless it is relevant to note that this offence occurred some months after the offending and does not really give much support to the offender being sincerely remorseful. I have taken this into account when sentencing for the section 97 charge in accordance with the recognised Form 1 procedure.

11. As to the related offence this occurred on 22 January 2019. The offenders record shows that he was disqualified from driving for one year from July 2018. On 1 January 2019 he was charged and later on 11 March 2019 dealt with for driving whilst disqualified. Accordingly within a period of 6 months the offender has firstly conducted himself in a way so as to lose his license and then has twice flagrantly disobeyed an order of the court disqualifying him from driving. This offending reflects just how commonplace the use of a car is in our society and on one view how necessary having a car has become. It also reflects a totally ignorant viewpoint of the punishment being handed out. Driving a car is not a right but is something you are allowed to do when appropriately licensed in accordance with the rules. The reason for that is obvious namely public safety. Assessing the objective seriousness of offences such as this appears artificial and could simply be described in almost every case as mid range with the consequences for the offender to be determined by their subjective matters.

Objective seriousness

12. The objective seriousness of the section 97 charge must be considered low. The concessions made by the Crown in the agreed facts dictate this outcome. The aggravating feature, which is an element of the offence, as being in company and there is no further aggravating matter of being armed based on the Crown’s concession. Further the Crown concedes no active role was played by the offender in the actual robbery.

13. That said the offender did know that a robbery was going to occur before it in fact occurred and did nothing to dissuade anybody from carrying through with such a plan nor did he do anything to remove himself from the situation. Even allowing for the reputation of the driver which is said to be a somewhat intimidating one, the car was being used with the offender’s permission and there is no suggestion of him saying do not use this car for that purpose. I would also note that on the agreed facts this intimidating reputation is not said to have been known to the offender.

14. Reference was made by both parties to R v Henry [1999] NSWCCA 111 and the factors set out there for what was considered to be the guideline judgement. There were 7 factors identified. For the offender in our present case the point is made that there is no weapon which is clearly a significant feature to take into account, that not only was there a limited degree of planning but on the part of the offender in particular there is as close to zero planning as is possible. The other matters however are largely present though the victim was not a vulnerable person of the type identified in Henry.

15. It should be noted that the judgement of Spigelman CJ acknowledges that those 7 factors do not represent the full range of factors relevant to the sentencing exercise.

16. The factors also include subjective as well is objective matters. Relevantly to what was raised in submissions today Henry nominates a range of between 4 and 5 years for the full term and that includes consideration of the fact of a plea of guilty.

17. Dealing only with the question of objective seriousness my view is that this case is in the low range. I note that the conduct of the offender Titmarsh was assessed as being in the low range of objective seriousness. Given the decidedly less significant role of the current offender I would assess the objective seriousness here as less than in the case of Titmarsh so that it is in the low part of the low range.

Section 21A.

18. As aggravating features the Crown relied upon the fact this offence occurred when the offender was on probation pursuant to a Queensland order and the submission of it being planned to some degree and for financial gain. With respect I do not consider those latter 2 factors have any meaningful role to play here. There was however the threatened use of violence albeit in the way outlined above.

19. I consider the mitigating features below.

Subjective case

Offender’s material

20. There were 2 sentencing assessment reports. The first identifies that the offender was then aged 22 and lives with his parents. He was then unemployed but I gather from other material he now has a part-time position and is looking for full-time work. He has a certificate 3 in civil construction. He is described as hard-working and pleasant. Despite that pleasantness at his young age he already has a criminal history that includes contravening an AVO, and destroying property.

21. As to his attitude a recurring theme of the subjective case is to say that he was running with the wrong crowd and did not know what they were up to. It is accepted that he had very little to do with the actual robbery but I reject the idea that his wrongdoing is all the fault of others. This young man will be given an opportunity today but he needs to understand the imperative of accepting responsibility. He has endured illness in his lifetime which must have been difficult for him but so too do many other people suffer such misfortune and they do not turn to robbery and violence.

22. The offender has a history of addiction to prescription medication which appears to have ceased. He also has a history of counselling. These matters arise from his suffering from a disease which caused him significant issues as well as suffering from juvenile rheumatoid arthritis which causes great pain. He has suffered from depression

23. At the time of the first report he was required to have an assessment completed by his doctor which did not arrive in time for the first report though it was later provided. The second sentencing assessment report advises that there had been contact with the psychologist which confirmed the history of counselling. It said that community service work was not suitable because light duties which is necessary for the offender clashed with his need to remain available for casual employment. That part of the report is ambiguous but I now understand it to mean that he does actually have casual employment.

24. In addition to the sentencing assessment reports which form part of the Crown material the offender relied on a letter from his psychologist which describes heightened insight since 2018. The offender also provided a letter of remorse that he had written. An unkind reading of this letter could still detect some lack of accepting of responsibility however overall it shows that he is now moving on with his life in a more responsible way and seems to be gaining the insight that he has previously lacked. Additionally there was material from the offender’s mother, grandparents and family friend. Unsurprisingly they all speak well of him. I take this into account as showing that the offender has a degree of family support significant to encourage me to think that a community-based outcome would be supported by that family connection. In this regard I think it is also significant that the sentencing assessment report made mention of the offender being regarded as hard-working and responsible when referring to his work history. That suggests that as was submitted on his behalf it may well be that whilst he is responsible for his actions he has been influenced by antisocial friends whom he now asserts he acknowledges he should not be influenced by.

Criminal history and youth

25. The offender has a criminal record in both New South Wales and Queensland. He was in fact on probation under a Queensland order at the time of this offending in respect of supplying drugs which seem to be, based on the submissions, approximately 1 dozen MDMA pills. That was in 2018. In 2015 he possessed tainted property. I note the 2018 offences also extended to possessing weapons though no conviction was recorded. He was at that time just 18. In New South Wales there are the drive disqualified matters referred to above as well as the contravene AVO and also a burnout driving matter which led to the first disqualification order. I consider this history concerning and certainly enough to dis entitle the offender to leniency though not completely. I have taken these matters into account.

26. At the same time I am also very conscious of the young age of the offender. I have taken this into account also.

Prospects

27. Based on the above matters I find that whilst not throughout these proceedings and not always wholeheartedly that ultimately the offender has demonstrated a degree of remorse and contrition. There is the family support referred to above, and there is a history of seeking treatment when appropriate. Furthermore he does have some after-school qualification and some history of being engaged in the workforce.

Guilty plea

28. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Parity

29. I have referred to the sentence of Titmarsh above. The principal of parity requires that the sentence imposed now on this offender is not such that there is a justifiable sense of grievance to be felt by either offender. Titmarsh was markedly more involved in the committing of this offence. The subjective cases were not dissimilar but in my view the present offender’s subjective case is more favourable.

Sentencing considerations

30. I did not understand the offender’s submission to be arguing against the proposition that the section 5 threshold has been crossed. This is serious offending a fact that this young offender would do well to understand. To date he has indicated a willingness to act in an antisocial manner time and again though this is by far the most serious of the offending that he has concerned himself with. Lest he forget the maximum sentence for this kind of offence is 20 years in prison.

31. Section 3A sets out the purposes of sentencing. They are in short:

1. to ensure the offender is adequately punished;

2. both general and specific deterrence;

3. to protect the community;

4. to promote rehabilitation of the offender;

5. to make the offender accountable for his actions;

6. to denounce the conduct;

7. to recognise the harm done to the victim and community.

32. The purposes that attract the most attention in the present case in my view are to promote rehabilitation but equally to affect deterrence both general and specific, to protect the public and to denounce the conduct.

33. Section 66 applies when giving consideration as to the making of a intensive correction order. In this case taking all the above matters into account and in particular bearing in mind the matter of Titmarsh my view is that the appropriate sentence allowing for the 25% discount and taking into account the form one matter is 2 years imprisonment. I have not proceeded by way of an aggregate sentence because in my view the drive whilst disqualified matter does not justify a term of imprisonment though as a note of warning it becomes increasingly difficult for a sentencing Tribunal to reach that view if there is continued driving whilst disqualified.

34. I turn then to consider whether to proceed by way of the ICO procedure. In the Attorney Generals second reading speech introducing the amended legislation in 2018 it was noted that community safety is not just about incarceration. The Attorney General said that imprisonment under 2 years is commonly not effective at bringing about medium to long-term behaviour change that reduces offending. In my view this case well fits that description. Incarcerating this young man for 2 years could end up creating a person of much more risk to society than giving him the opportunity to continue on his path of rehabilitation.

35. That said cases such as R v Fangaloka [2019] NSWCCA 173 warn against making the assumption that an ICO will aid rehabilitation or more to the point will lead to a less risk of reoffending. In this case there is evidence of family support, work in the community and the availability of medical support. It is also clear that in the circumstances of this young man that time spent in prison may be more difficult than for others given his state of health. I am persuaded that there is less chance of this young man reoffending if I proceed by way of an ICO.

Orders

36. Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at term of imprisonment of 2 years to be served by way of an intensive correction order on certain terms.

37. As to the drive disqualified matter there will be a conviction and a fine of 2 penalty units and there will be a disqualification period of 3 months to date from 8 November 2021.

38. I make the following orders:

1. The offender is convicted of the 2 charges for which he appears on sentence namely robbery in company under section 97 (1) and the related offence of drive whilst disqualified.

2. In respect of the drive whilst disqualified I impose a fine of 2 penalty units and there will be a license disqualification for a period of 3 months to date from 8 November 2021 and expiring on 7 February 2022.

3. in respect of the section 97 matter the offender is convicted and sentenced to a term of imprisonment of 2 years to be served by way of a ICO on the following terms:

1. the term of the ICO is to commence today 19 June 2020 and expire on 18 June 2022

2. it is subject to the following conditions:

1. that the offender must not commit any offence:

2. the offender must submit to supervision by community corrections officer;

3. the offender must not use or possess any illegal drugs or any prescription drugs that are not prescribed to him;

1. a treatment condition so that in addition to following all directions of the community corrections officer he continued to pursue all counselling treatment as advised by his GP.

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Decision last updated: 24 June 2020