R v Jackson

[2022] NSWDC 450

District Court

New South Wales

Medium Neutral Citation:

R v Jackson [2022] NSWDC 450

Hearing dates:

5 October 2022

Date of orders:

5 October 2022

Decision date:

05 October 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 114

Catchwords:

CRIMINAL LAW – sentencing – aggravated (armed) robbery – malicious discharge of loaded firearm with intention to prevent lawful arrest – additional offence of allowing himself to be carried in a conveyance knowing that the conveyance was taken without the owner’s consent - applicability of R v Henry guideline judgment – applicability of Bugmy principles – offences committed in 2001 – offending brought to light through assistance to police by an informant - significance of delay - parity principle with reference to the sentence imposed on the informant

Legislation Cited:

Crimes Act 1900 (NSW) ss 4, 33A, 97, 117, 154A,

Crimes (sentencing procedure) Act1999 (NSW) ss 3A, 21A

Cases Cited:

Bugmy v R (2013) 249 CLR 571

Lloyd v R [2017] NSWCCA 303

R v Alameddine [2004] NSWCCA 286

R v Hamied [2007] NSWCCA 151

R v Hathaway [2005] NSWCCA 368

R v Henry (1999) 46 NSWLR 346

R v Shorten [2005] NSWCCA 106

R v Todd [1982] 2 NSWLR 517

R v Way (2004) 60 NSWLR 168

Taylor v R [2015] NSWCCA 12

The QueenvDe Simoni (1981) 147 CLR 383

Veen v R (No.2) (1988) 164 CLR 465

Texts Cited:

Howie J, “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr P Jackson (offender)

Representation:

Counsel:
Mr P Lowe for the ODPP
Mr K Buckman for the offender

Solicitors:
ODPP
Ross Hill & Associate Solicitors for the offender

File Number(s):

2019/00223508

Publication restriction:

Nil

EX TEMPORE REMARKS ON SENTENCE

Background

1. Between 2001 and 2005, there were a number of armed robberies in the Central Coast. A police Strikeforce ‘Braithwaite’ was formed to investigate the robberies. One of those burglaries occurred at a jewellery store in Erina on 25 October 2001, and it is this which gives rise to the present sentencing proceeding.

2. The offender is before the Court, following pleas of guilty, for sentence for two offences committed on that day and place, being that he:

1. robbed Robert Hain of $55,000 in cash and jewellery, the property of Roberts Jewellery, whilst then being armed with a dangerous weapon (a shortened rife), contrary to s 97(2) of the Crimes Act 1900 (NSW) (the ‘aggravated robbery offence’) and

2. maliciously discharged a loaded firearm with the intent to prevent the lawful apprehension of himself, contrary to s 33A(1) of the Crimes Act 1900 (NSW) (‘the firearm discharge offence’)

3. A report of the offender’s involvement in that burglary only came to light through an ERISP of a police informant in 2018.

4. The charge of aggravated robbery was count 1, one of four counts, on an indictment that was due to be tried before a Jury on 4 October 2022. But at a call-over on 29 September 2022, the offender entered into a plea of guilty to that offence. The firearm discharge charge was the subject of an ex officio indictment filed on 29 September 2022 and the offender elected to plead guilty to that charge on 29 September 2022. The Crown accepted the pleas, and the admission of guilt on the Form 1, in full satisfaction of the counts on the indictment that had previously been filed.

5. At the date these offences were committed, the maximum penalty for the aggravated robbery offence was 25 years’ imprisonment and the maximum penalty for the firearm discharge offence was 14 years’ imprisonment. Neither offence carried a standard non-parole period.

6. The offender adhered to his pleas of guilty for these offences at this sentencing hearing. The offender also has also admitted his guilt and asked the Court to take into account for sentencing on the aggravated robbery offence, an offence on a Form 1, being that of allowing himself to be carried in a conveyance knowing that it had been taken without the consent of the owner, contrary to s 154A(2) of the Crimes Act 1900 (NSW) (the ‘additional offence’). By the terms of that provision, that offence was deemed to be the offence of ‘larceny’ and, at the date of the offending, (by s 117 of the Crimes Act) the offence of larceny carried a maximum penalty of 5 years’ imprisonment (there being no statutory non-parole period).

The circumstances of the offending

7. These were reduced to a written document, titled ‘Crown Case Statement’ which the offender signed (on each page) after receiving legal advice.

The aggravated robbery offence

8. The victim, Mr Robert Hain, was the owner of Roberts Jewellery, located in Erina. He had owned the business for 30 years.

9. Shortly before 2:30pm, on 25 October 2001, Mr Hain was minding his business, sitting inside the workshop area of the store, working with his son (then aged 15 years) and two other qualified jewellers.

The additional offence

10. A blue Holden Commodore, with registration number XMA-889, parked in front of the shop. Two men got out of the vehicle; and a third man remained in the driver’s seat of the car.

11. None of the men owned the car. The owner of the vehicle was Albert Cartwright. He had parked the car earlier in the day, between 11am and 1pm and had parked it outside the Munmorah Bowling Club. But when he returned to this place, he discovered that his car was not there.

12. Whilst working in the store, Robert Hain heard the door of the shop open loudly and saw two men running into his store, yelling out to the staff ‘Don’t move!’. He immediately stood up and walked backwards from the work bench. One of two men jumped the counter, whilst the other, who was armed with a short rifle, walked around the show cases, through the doors that led to the workshop. It was the offender who was the man with the rifle.

13. The offender’s face was substantially concealed through his use of a dark-coloured balaclava and clear coloured safety glasses under the balaclava. But Mr Hain recalled that the skin under the glasses was slightly darker than olive and described the offender as having a slim build and small frame; and also as having an Australian accent.

14. The offender pointed the firearm at Mr Hain’s stomach – no less than half a metre away - and yelled several times “Where’s the cash?”. Mr Hain indicated that it was “in the till”. The offender moved the firearm and pointed it at all the staff. He then pointed it at Mr Hain’s 15 year old son and asked him “Where’s the money?”. The son again told him that it was in the till.

15. The other male then unlocked the safe and pulled out the top drawer of the safe, containing the customer job packets which contained repaired or newly completed jewellery items; before locating two other safes in the office area. Those safes contained diamond jewellery and diamonds.

16. The offender was still yelling out ‘Where’s the cash’ and the son yelled out “It’s outside”.

17. The offender and the other man then went outside the display area of the shop and opened the till, as Mr Hain and the other jewellers remained out the back of the shop (in the workshop and office area). Mr Hain then activated the panic button located near the doorway from the display area to the workshop.

18. The offender and the other man then left the shop together and returned to the blue Commodore. The offender got into the rear passenger seat and the other man got into the front passenger seat. One of the two jewellers in the store ran out of the store and observed the registration plates.

19. The offender and the other man stole cash estimated to be $1,700 and jewellery whose value was estimated to be $55,000.

The firearm discharge offence

20. At the time of the robbery, an off-duty police officer, Conrad Frediani, was sitting in the outside area of a café in Erina. He observed the offender and the other man, both wearing balaclavas, get into the blue Commodore outside of Roberts Jewellery store.

21. Officer Frediani ran towards that vehicle until he was directly behind the passenger side of the car. At a certain point he saw the offender looking back at him through the open window of the rear passenger seat. He also observed the offender holding the stock of a sawn-off rifle with his left hand.

22. The offender swung the barrel of the rifle and aimed it behind the car. At this point, the officer was about 5 metres east of the relevant intersection behind the car. The barrel of the rifle was pointed in the officer’s direction. The officer, fearing for his life, took evasive action, turning his body to the left and crouching over. The offender had fired one shot behind the vehicle to deter the officer from continuing his pursuit, on foot.

The additional offence (resumed)

23. The blue commodore vehicle referred to earlier in these remarks was recovered later that day when the offending occurred, with the engine running. A balaclava and other implements were recovered on the rear passenger seat. A re-sampling of a DNA sample taken from the forehead of the green coloured balaclava was matched to the offender.

Evidence from the police informant

24. The police informant participated in an ERISP on 26 June 2018. The informant disclosed to police that the other man, and the offender, had pressured him into involving himself in the robbery that occurred on 25 October 2001. The informant had known the offender through the co-offender, but also stated that he had been in gaol with the offender in 2002. The informant disclosed that he was the driver of the blue Commodore. The informant stated that the offender had admitted to him letting off a shot with the firearm. The informant had stated that the firearm had belonged to the other man.

25. Between October 2018 and July 2019, surveillance device warrants were granted authorising the use of listening devices recording conversations between the police informant and the offender. In one such conversation in April 2019, the offender was heard referring to “that time (at) the Jewellers” and going “boom boom” towards the “copper”.

The additional offence

26. I take into account this offence. It may not have been the worst of its kind, but it was instrumental in assisting or enabling the commission of the principal offence. It elevates the weight to be given to specific deterrence and retribution to the aggravated robbery offence.

Assessing the objective gravity of the firearm discharge offence

27. I will defer consideration of the gravity of the aggravated robbery offence until after my consideration of the offender’s subjective case. It is the subjective case that usually sets out the mitigating factors that an offender relies upon and, in “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43, Howie J expressed the extra-curial opinion, which I respectfully adopt, that s 21A(2), which sets out various aggravating matters, has limited operation where there is a guideline judgment for an offence:

“The guideline judgments are offence specific. The facts relevant to a determination of whether or not the guideline applies will generally merely be specific aspects of the aggravating and mitigating factors in s 21A. There will be few, if any, aggravating or mitigating features to take into account once the specific offence-related matters have been considered”.

28. Insofar as the firearm discharge offence was concerned, the Crown submitted that the offence fell at the upper end of the mid-range of seriousness. Although the Crown eschewed the suggestion that the offender shot at the police officer, his actions caused the police officer to take evasive action. There were also other people in the vicinity of the jewellery store and a café, as the car was being driven away.

29. The offender’s Counsel acknowledged that the offending was a serious matter, whilst emphasising that it could not be suggested that the firearm was aimed at the officer or pointed in a direction which meant that a nearby civilian may have been struck by the projectile that had been discharged.

Consideration

30. The offender’s motivation for the discharge is already an element of the offence. I accept the Crown’s submission that the offending fell within the mid-range of objective seriousness. If not actually pointed at the police officer, it was at least pointed in his direction and it occurred in a public place, at a busy time of day. It was discharged at a time when the offender had just perpetrated another offence and was likely to be in a volatile state of mind, thereby instilling greater fear in the officer and civilian on-lookers.

Aggravating factors

31. The Crown did not differentiate the aggravating factors for the firearms offence and the aggravated robbery offence. But of the factors cited by the Crown, in paragraphs 20 – 27 of the Crown’s written submissions (MFI 1), being the threat or use of violence and the offending being in the presence of a child are purely referable to the aggravated robbery offence which I examine below.

32. The other aggravating factors cited by the Crown (the offence being committed in company, the offence being committed in breach of conditional liberty and the offender’s prior criminal history) are commonly and potentially applicable to both offences. Whether they are actually applicable will be examined later in these remarks.

The subjective case of the offender (applicable to both offences)

Age, background

33. The offender was 29 years of age at the date of the offending. He is now 50 years of age. The following account of his background is largely taken from reports from two psychologists, the first being Professor Ian Coyle and from another psychologist, Mr John Machlin. Professor Coyle believed that the history he received, which principally formed the basis for his opinions, was genuine. Mr Machlin interviewed the offender, via AVL, whilst the offender was in custody. Professor Coyle’s report is now over 3 years old (being dated 2 September 2019). Mr Machlin reported on 9 June 2021. I infer that Professor Coyle’s report may have been prepared to assist the offender with a compensation claim; as indicated by the identity of the solicitors who instructed him, some of the questions directed for the expert’s consideration and the expert’s main conclusion as to the causal potency of various acts contributing to the offender’s psychological injuries.

34. He was taken away from his mother, an indigenous Australian, by his father, who was not indigenous Australian, when he was a baby; as the parents separated. His father took him to Darwin. He received little care from his father, who had a new family to look after, was also hard working and otherwise spent much time at the local pub. He went into the care of his grandparents for a time, before he was sent to Coventry Home, a place in Armidale administered by the Church of England; owing to the difficulties that the grandparents had in looking after him. There, the offender reported, he was sexually and physically abused; the sexual abuse being mainly perpetrated by members of the church. The details which the offender supplied to Professor Coyle, as the latter chronicled in his report, certainly make for harrowing reading.

35. He was released from Coventry when aged 13. He went to live with his grandmother (who the offender identified as his only close attachment figure) when aged 13 (after his grandfather had died) and from about that time, he began to experiment with drugs, starting with cannabis before progressing to amphetamines and eventually heroin. He became a heroin addict by his late 20s and remained that way for a number of years. The need to feed his addiction precipitated his getting into trouble with the law, including violent crimes such as armed robbery and personal violence offences. He started to steal and received periods of incarceration in detention centres, such as Worimi Shelter (at Broadmeadow, near Newcastle), Mount Penang Training Centre (at Kariong, near Gosford) and the Minda Remand Centre (in Lidcombe). Sadly, he became subject to more psychological (though not physical or sexual) abuse; which caused him to take further refuge in drugs and alcohol.

36. Mr Machlin indicated that he had abstained from drugs in more recent years, aside from one relapse and stabilised on methadone.

37. His education was disrupted by frequent moves. He had attended three high schools before the end of year 10. With the record that he had, which saw him spend 28 years in incarceration, he has had only limited employment in unskilled jobs, such as bricklaying and earth moving.

38. The offender formed a relationship in his teens and fathered a son who is now aged 29. When he was last at conditional liberty, his partner was battling a drug addiction. His son is also currently in custody.

39. When last at liberty, he received assistance for his accommodation from the Rainbow Lodge, in Glebe. He hopes to return there when next released.

The relevance of Bugmy principles

40. At the forefront of the offender’s submissions was his reliance upon certain psychological orders which, it was said, engaged the principles from Bugmy v R (2013) 249 CLR 571. The presence of psychological conditions was supported by reports from Professor Coyle and Mr Machlin.

41. Professor Coyle reported being informed by the offender that he had been physically, sexually and psychologically abused whilst a resident of Coventry Home and incarcerated at the Worimi Shelter and Minda Remand Centre. This led, in the expert’s opinion, to his developing PTSD, and comorbid Major Depressive Disorder with Anxious Distress and comorbid Antisocial Personality Disorder. These conditions, in turn, directly caused his substance abuse and ensuing criminal behaviour; and the substance abuse, in turn, exacerbated his psychological factors.

42. A matter of some significance to the application of Bugmy principles was Professor Coyle’s evidence of his challenging the offender as to why he had not sought help and the offender’s response was a sense of shame, embarrassment and belief that no one would believe him. To Professor Coyle, this was a typical response of victims of institutional child sexual abuse.

43. Mr Machlin had the benefit of reviewing Professor Coyle’s report. Essentially, Mr Machlin endorsed Professor Coyle’s diagnoses, or some of them, finding that the offender suffered from PTSD, Antisocial Personality Disorder and Opioid Use Disorder; with the last two conditions being in remission or remitting. The PTSD was chronic; although Mr Machlin noted that his condition had improved through the offender’s capacity to learn to manage without heroin. In contrast to Professor Coyle, Mr Machlin did not regard the offender as suffering from active depressive condition. Importantly, Mr Machlin agreed with Professor Coyle that there was a strong link between the offender’s childhood background of abuse and deprivation and subsequent offending, including, presumably, the index offending.

44. Mr Machlin raised the question of the offending but said that the offender had made no admissions. The offender did, however, indicate an unclear memory of his drug habits at the time of offending.

45. The offender’s Counsel submitted that on the evidence of these psychologists, the Court should apply Bugmy principles and in particular, recognise, in the offender’s favour, the causal connection between the offender’s exposure to various forms of disadvantage from a young age and his drug taking and consequent criminality, as impacting upon his culpability and moderating the weight to be given to general and specific deterrence in the synthesising of sentencing considerations.

46. The Crown did not dispute that submission, whilst noting that the weight to be placed on Bugmy principles was a matter for the sentencing judge.

47. I accept, unreservedly, the proposition that Bugmy principles are engaged, in the sense articulated on the offender’s behalf. It is important, also, to note that they are not diluted on account of the offender’s omissions to either get help or because of his past criminal history. As the High Court emphasised in Bugmy, the effects of childhood disadvantage are usually enduring and it is not inherently surprising, in the circumstances, that he did not seek out professional help to aid his rehabilitation.

40. However, as the plurality recognised in Bugmy at [44], the principles are not all one way, in terms of indicating a more lenient sentence then would otherwise be imposed. An inability to control a violent impulse, because of frustration, may heighten the importance of protecting the community from the offender. Moreover, the presence of a prior significant criminal history, might reduce the likelihood that effective rehabilitation can protect the community

Discounts for guilty pleas

49. Whilst the offender accepted that a 10% discount was appropriate for the aggravated robbery offence, the offender’s Counsel submitted that the firearm offence was a ‘new count offence’, for the purposes of s 25B and, accordingly, a 25% discount should apply.

50. The Crown ultimately accepted that submission. I accept it.

Antecedents

51. The offender’s criminal history is extensive and, as the Crown’s submissions record, many of his offences relate to acts of violence and theft going back to when he was a juvenile. Lamentably, they continued into adulthood, including offences post-dating the index offending, featuring robbery with an offensive weapon (January 2006), assault with an intent to rob whilst armed with an offensive weapon (January 2006) and robbery in company (October 2014).

52. The Crown calculated that since January 1990, a period approaching nearly 33 years, only a very small proportion (8 years and 8 months) had not been spent in custody by the offender.

53. This record, it was said, disentitled the offender to any leniency in sentencing. The Crown submitted that more than being at a risk, the offender is in fact, already institutionalised.

54. I am mindful of the principles of the plurality in Veen v R (No.2) (1988) 164 CLR 465 at 477, that the past criminal history should not lead to the imposition of a penalty disproportionate to the offending (as it would make the offending more serious than it would otherwise be regarded without the prior history); but rather manifests, over a very long period, disobedience to the law and, manifests a ‘dangerous propensity’; which is particularly relevant to both the considerations of his prospects of rehabilitation and the need for a sentence to adequately protect the community. The record does disentitle the offender to leniency that would extend to a first-time offender. Moreover, the circumstance that other offences in 2006 and 2014, which were so serious as to give rise to lengthy periods of imprisonment, occurred subsequent to sentencing for the index offending, also demonstrated that the index offending was not an uncharacteristic aberration, thereby diminishing the scope for leniency (Taylor v R [2015] NSWCCA 12 at [23]-[24])

Contrition, remorse

55. The offender’s Counsel did not submit that the presence of contrition or remorse should sound in a more lenient penalty. Nor did he suggest that the guilty pleas were themselves indicative of any contrition or remorse. Counsel’s position was appropriate given the lack of evidence about these matters. In particular, the guilty plea, particularly for the aggravated robbery offence, was made for utilitarian purposes. The absence of contrition or remorse is a circumstance which does not, however, aggravate the offending.

Rehabilitation prospects and likelihood of reoffending

56. Professor Coyle regarded the offender’s psychological conditions as being chronic. He believed that there was little or no prospect of his recovering from the Major Depressive Disorder with Anxious Distress or PTSD, respectively. His Antisocial Personality Disorder was in remission and would likely remit further as he aged. His employment prospects have, in turn been irretrievably diminished. Further, his capacity to interact with people is limited.

57. At the time he wrote his report, Professor Coyle thought that the offender would need weekly psychological treatment; after which he would require monthly counselling. This would need to be supplemented by psychiatric assessment for the purpose of prescription of medicines.

58. Somewhat at odds with Professor Coyle’s views, the offender reported to Mr Machlin that he got on well with people, at least within the correctional centre that he had been in since his arrest for the index offending. As noted, Mr Machlin indicated that the offender had generally abstained from drugs and it appeared that, upon his release, he said he thought he could return to the Rainbow Lodge for his accommodation. Mr Machlin also considered that the offender had progressed significantly, in his rehabilitation, since 2014.

59. He has phone contact with his ex-partner and also rings his son when his son is not in custody, but otherwise the offender has little social support.

60. Mr Machlin believed that the offender’s prognosis and vulnerability to relapse was difficult to estimate and depended upon his progress in the community. He required the assistance of state housing and needed to continue his methadone treatment and reconnect with the Rainbow Lodge.

61. I am cognisant of the offender’s demonstration of some rehabilitation in the period between his release from gaol after a sentence expired on 9 July 2018 until his re-arrest for the index offending on 20 July 2019; particularly in his management of his drug disorder and capacity to enlist the assistance of the Rainbow Lodge in helping him with his accommodation. His conduct in this narrow period indicates that his position is not hopeless. Further, his conduct in this period aids the offender in the length of the appropriate non-parole period.

62. Further, I place some greater weight upon the views of Mr Machlin in relation to his current conditions, relative to Professor Coyle. Notwithstanding the very learned exposition from Professor Coyle, which I have found very useful, Mr Machlin’s views, in this particular respect, are more current. I    have noted that Professor Coyle’s views appeared to be sought in relation to a compensation claim whilst Mr Machlin’s views more focused on his rehabilitation prospects and likelihood of reoffending. There was, a risk, at least, of unconscious bias in elevating the extent of the offender’s psychological disability, in Professor Coyle’s report.

63. The offender’s Counsel submitted that when last out on parole, the offender had been showing some ‘positive signs’. He was in stable accommodation and visited the Rainbow Lodge regularly. He was stable on his methadone medication.

64. The offender’s Counsel encouraged me to have regard to sentencing remarks of Weber SC DCJ on 12 August 2021 when sentencing the offender for other offences committed in 2014. One of the matters which his Honour noted (at [83]-[84]), which was relevant for the assessment of his rehabilitation, was a sense of connection which he had fostered with Barunga, near Katherine in the Northern Territory, and his hopes to go there upon his release. His Honour regarded that, as one of the positive signs for his prospects of rehabilitation. With respect, I agree.

65. Nevertheless, I find that his rehabilitation prospects are guarded; a finding which the offender’s Counsel did not cavil with.

Delay

66. The offender’s Counsel submitted that the sentencing is to take place in regard to offences which were ‘stale’. They were committed in 2001. This, it was argued, with reference to the authority of R v Todd [1982] 2 NSWLR 517 called for a flexibility in approach. The offender’s Counsel submitted two matters in particular.

67. First, the offender did not have the opportunity of being sentenced at the same time as he had been dealt with for other serious offences, being those committed in January 2006 and October 2014, for which he received lengthy terms of imprisonment for similar criminal conduct.

68. Secondly, following his release from prison on 9 July 2018, he had shown some good signs of rehabilitation until his arrest on 20 July 2019; a period of just over a year.

69. It is notable that the offender’s Counsel did not generally cite the period of delay from the offender’s arrest in July 2019 to the date of sentencing, being a period of 3 years, 2 months and 15 days which, it might have been said, was due to the exigencies of the criminal justice system. On this aspect of the offender’s submissions regarding the delay, the period – just over a year – was clearly much narrower. It is also to be noted that no point was taken that delay between the commission of the offences and sentencing gave rise to some form of prejudice to the offender because of such things as any intervening changes in sentencing law or practice.

70. The offender’s Counsel referred to the evidence of Mr Machlin which, it was said, noted that he had progressed well since he was last at liberty (which might be taken to be from July 2018), in the sense of assistance he was getting from his housing and the stabilisation of his drug addiction “in recent years”; which might be taken to have embraced the period before his release in July 2018 up to the date he was assessed by Mr Machlin in June 2021 (a period of 2 years after his arrest and re-entry into custody).

71. Delay may be relevant if the offender could establish, on the probabilities, that (a) he had been left in a state of uncertain suspense; and (b) had demonstrated progress towards rehabilitation. However, it is well-settled that the only relevant period of “suspense” is the period after the arrest or some other indication has been given by someone in authority that the offender is likely to be prosecuted. An offender who remains silent in the hope that offending may not be detected would not satisfy the former of these two requirements (R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]).

72. Relevant to this question is the context described at the outset of these remarks. The offender was arrested for the index offences in July 2019. He did not make any admissions about his offending, even to his psychologist. But for the informant’s assistance to authorities, it is doubtful the offender would have been subject to the charges at all notwithstanding that this robbery was part of a number of unsolved robberies occurring in the Central Coast in a period encompassing the index offending. If he missed out on being sentenced at an earlier point in time than now, the offender has no one to blame but himself for that state of affairs.

73. The Crown submitted that the offender’s past history disentitled him to leniency that would otherwise be extended between the offending conduct and sentence.

74. I consider it appropriate to make some allowance to reflect this mitigating factor between the time of the offender’s release and the time of his arrest, but it is very slight. There is nothing to indicate that the offender ordered his affairs in that very narrow period in the expectation that he would not be apprehended. The length of the period is, all things considered, narrow and his demonstration of rehabilitation within this narrow period has already been taken into account in my assessment of his general prospects of rehabilitation, as explained earlier in these remarks.

COVID-19

75. The offender relied upon a document (Exhibit 3) that indicated the number of days he had spent in lockdown. They were significant. For someone with this offender’s issues, the lockdown would have been especially onerous.

The guideline judgment for the aggravated robbery offence

76. An offence under s 97 was the subject of a guideline judgment in R v Henry (1999) 46 NSWLR 346; though of course, as the Chief Justice had indicated, the guideline judgment served to be just that; not a ‘tramline’. The Crown focussed its submissions with reference to this guideline judgment and the offender’s Counsel did not suggest that it was wrong for the Crown to do so. It has been held that a sentencing judge is entitled to take into account the Henry guideline judgment as a means to assess the seriousness of an offence under s 97(2): R v Hamied [2007] NSWCCA 151 at [110] – [13].

77. In comparing and contrasting this case with the ‘typical’ features identified in Henry, the Crown submitted that:

1. the offender was not young (he was 29 years old), and he had an extensive criminal history;

2. the offender had a dangerous weapon in his possession, being a shortened rifle;

3. there was more than limited planning: the offender (and a co-offender) arrived in a car driven by the informant; which had been parked in a position so as to enable a quick getaway – there was but a short distance to another motor vehicle utilised to complete their escape;

4. there was no actual violence; but there was the real threat of violence (the Crown acknowledged that the threat of violence was inherent to robbery, but argued that the presence of this factor remained relevant to assessing the objective gravity of the offending);

5. the victim (and his staff) were vulnerable in the relevant sense; being situated in a confined area at the time of the robbery. In other words, there were multiple victims, and the sentence should acknowledge harm done to each of those victims.;

6. The amount stolen, being $55,000, in cash and jewellery was more than small;

7. The offender’s guilty plea has spared witnesses from relieving their past experience. Further, although a number of the staff in the jewellery store had passed on does not derogate from the circumstance that there were multiple victims at the time.

78. The offender’s Counsel referred to a late DNA match, which, in a sense, topped the scales between a weak or weaker case and a stronger case to which he pleaded guilty to.

79. Other matters relevant for a case of armed robbery under s 97(2) are:

1. nature of the weapon;

2. vulnerability of the victim;

3. position on a scale of impulsiveness/planning;

4. intensity of threat, or actual use, of force;

5. number of offenders;

6. amount taken;

7. effect on victim(s).

Evaluation of the guideline factors

80. The Henry guideline, to the extent that it is applicable to the features of the index offending, indicates, as a starting point, a term of imprisonment of between four and 5 years; but of course, aggravating or mitigating factors would likely elevate or reduce the sentence.

81. The Crown and Counsel for the offender substantially joined in characterising the offending as a brazen daylight robbery committed with a loaded firearm. The Crown submitted that the offending fell at the upper end of the mid-range of objective gravity. The offender’s Counsel accepted that the nature of the offending was such that it would fall above the Henry guideline.

82. The offender’s Counsel conceded that a degree of planning was involved (including the use of a stolen vehicle), even it showed a relative lack of sophistication. He conceded, also, that the amount of jewellery that was taken was significant in value. Counsel did not otherwise dispute the Crown’s analysis of the features of the guideline and how they applied to the circumstances of this case.

83. Taking into account the guideline judgment, and any other special aggravating circumstances or mitigating circumstances not falling within those guidelines, I am inclined to consider that the circumstances of the offending would justify a longer period of imprisonment than indicated in the guideline. This reflects my view, that the offending for the aggravated robbery offence was above the mid-range of objective seriousness.

Other suggested aggravating factors for the aggravated robbery

The parties’ submissions

84. I have already indicated that once taken into account as part of the guideline judgment, often, there is little further work for matters that are treated as ‘aggravating’ factors under s 21A(2) of the Crimes (sentencing procedure) Act1999 (NSW) to do. The Crown acknowledged that care needed to be taken lest a risk of double-counting occur after the matter is taken into account in evaluation of the guideline judgment.

85. One of these matters was the threat of violence. As to that matter, the Crown also acknowledged that the threat of violence was inherent in robbery, whilst repeating its submission that the extent and nature of the threat might heighten the objective gravity of the offending. The offender did not respond to that submission. The Crown submission should be accepted: R v Way (2004) 60 NSWLR 168 at [106] – [107]. I accept that to the extent that the weapon was pointed at the victim and others in the jewellery store, the offending was aggravated.

86. Other suggested aggravating circumstances that the Crown cited were:

1. the offender’s record of prior convictions (s 21A(2)(d));

2. the circumstance that it was committed in company (s 21A(2)(e));

3. that it was committed in the presence of Robert Hain’s son, Gavin, then only 15 years old (s 21A(2)(ea)); and

4. when the offender was in breach of conditional liberty (s 21A(3)(j)), in the sense of being both on bail and subject to a recognisance order at the date of the offending.

87. The offender’s written submissions did not address these suggested aggravating factors.

Victim impact statement

88. In support of the cited aggravating factor concerning the offence occurring in the presence of a child, the Crown relied upon a statement from Gavin Hain, who was 15 years of age at the date of the offending which the Crown Prosecutor read in Court.

Consideration

89. As to the offender’s prior criminal history, this has already been factored into evaluation of the Henry guideline criteria. In particular the circumstance that the offender did not have “no or little criminal history” makes the offender’s position worse, relatively to the paradigm offender identified in the guideline and thus most susceptible to a more severe penalty. Otherwise, as indicated earlier in these remarks, I prefer to regard the criminal history as disentitling the offender from leniency for reasons there advanced.

90. As to the factor concerning the offending being in company, as applicable to the offence for aggravated robbery, in my view, there is a concern about whether De Simoni principles[1] and/or those of procedural fairness may be infringed. As the text makes clear, the basic robbery offence under s 97(1) could include the circumstance of the robbery “being in company with another person” as an element of the offence. The basic offence could also include, alternatively, the offender being “armed with an offensive weapon”. An offensive weapon is defined broadly to include, amongst other things, a dangerous weapon. What aggravates the basic offence, under s 97(2), is the fact the offender was armed with a dangerous weapon.

    1. The Queen v De Simoni (1981) 147 CLR 383

91. The count on the indictment, to which the offender pleaded guilty, selected the latter option; but it was something of a tautology: being armed with an ‘offensive weapon’ – an element of the basic offence - was one and the same as being armed with the ‘dangerous weapon’ (s 4(1) of the Crimes Act), which aggravated the basic offence. The prosecutor could have identified, as the basic offence, a charge that the robbery occurred in company with another person, and then cited the fact of the offender being armed with a loaded firearm – a ‘dangerous weapon’ - as the factor which, for the purposes of s 97(2), aggravated that basic offence. If s/he did, there would be two different factors at play: the fact of the offence occurring in company (as an element of the basic offence under s 97(1)) and the fact of being armed with a dangerous weapon, as the factor aggravating the basic offence) rather than one (being armed with an ‘offensive’ weapon and being armed with a ‘dangerous weapon’) and therefore more serious. Accordingly, in my view, it could infringe De Simoni to treat the fact that the offence was committed in company as aggravating the aggravated robbery offence and I decline to do so. On the other hand, the circumstance that the offender went into the jewellery store with another (co-offender) did make his offending more objectively serious as this was apt to instil greater fear in the occupants of the jewellery store. And I have regard to the matter in that way, rather than as an aggravating factor.

89. I note that the circumstance that there was a co-offender, or that the offending occurred as part of a joint enterprise, has, to some extent, been taken into account in the guideline factor that addressed the nature and extent of the planning.

90. As to the presence of the child, again, care needs to be taken to avoid double counting. I would treat the son as being one of several ‘vulnerable’ people within the jewellery store. Nevertheless, it has been recognised that this aggravating factor can arise where there are, as is the case here, multiple victims, and one of them is a child (Lloyd v R [2017] NSWCCA 303 at [69]-[70]). I accept that it is inherently likely that a violent crime perpetrated primarily against a parent who operates a small business, in front of the parent’s child, will be emotionally deleterious to the child and accept that this aggravating factor applies. This inference is supported by the content of Mr Gavin Hain’s statement.

Other mitigating factors

94. The matters in mitigation relating to the offender’s personal circumstances were referred to earlier in these remarks when I considered the firearms discharge offence. These also apply to the aggravated robbery offence.

Parity

95. A co-offender, identified by the pseudonym ‘John Black’, made statements to police which led to the offender’s apprehension. John Black was the getaway driver, who remained in the vehicle, when the offender and another co-offender entered and robbed the jewellery store and thereafter facilitated their escape from the crime scene.

96. On the eve of this sentencing date, the Commissioner for Police applied for an order vacating earlier orders of the Court to effectively remove the suppression of John Black’s real name. That order was made by consent, but the informant’s real name was never disclosed to the Court. Given that the Commissioner sought only the revocation of the pseudonym, it is for this reason that in these remarks I have referred to the informant generally as the ‘informant.’

97. The informant was sentenced by this Court in December 2019 for several offences, including the aggravated robbery offence, to which a substantially similar additional offence (driving a conveyance without consent) was linked, arising from the same burglary which occurred on 25 October 2001. The informant was also sentenced for other offences occurring on different dates.

98. He received a combined discount for his guilty plea and for his assistance to authorities in the proportion of 60% (25% for guilty plea; 20% for past assistance and 15% for future assistance). The sentencing judge recognised that, although part of a joint criminal enterprise (with this offender and another co-offender), the sentencing judge identified the informant as being the ‘getaway driver’. I note also that on the agreed facts in this case, it was agreed that the informant had said that he was pressured into becoming involved. The offender did not take the opportunity in this sentencing hearing to challenge the informant’s assertion in this regard. These matters would support a view that, based only on a comparison in roles between the informant and the offender, the former was less culpable: R v Alameddine [2004] NSWCCA 286 at [252].

99. The indicative sentence for the aggravated robbery offence, for the informant, prior to the combined discount, was 8 years and after the (combined) discount, reduced to 3 years. The indicative discount for the drive conveyance offence, prior to the combined discount, was 12 months; and after the discount, reduced to 5 months.

100. The Crown noted that a comparison of the informant’s criminal history with the offender’s criminal history and background was essentially the same. Another similarity is that both the informant and the offender had heroin addictions which had contributed to their earlier criminal careers.

101. The offender’s Counsel acknowledged that parity was an issue for the Court to consider and submitted that Bugmy principles were relevant to this offender which did not appear to be the case for the informant and emphasised the time that the offender had spent in custody over the last 20 years.

102. Although it is true that the offender’s moral culpability has been reduced on account of Bugmy principles, for reasons already remarked upon, it is also the case that the informant’s lesser role in the offending had reduced his culpability, relative to the offender (and the co-offender). Further, by reason of being only a getaway driver, with what that entailed, certain aggravating circumstances attending the offending (such as the offending involving the threat or use of a weapon and occurring in the presence of a child) were not quite so applicable to the informant as they were to the offender and the co-offender. The informant also had a finding of strong prospects of rehabilitation, which is not available to this offender. For the aggravated robbery offence, the informant also received a greater discount on his guilty plea, relative to the discount I consider is appropriate to this offender.

103. Another difference is that whereas, in the case of the informant, he received an indicative sentence for the driving without conveyance offence (contrary to s 154A(1)(b) of the Crimes Act) (being for 12 months, prior to the combined discount), the offender asks the equivalent offence to be taken into account on a Form 1 to be taken into account on the penalty for the aggravated robbery offence. As indicated earlier in these remarks, other things being equal, given the elevation of specific deterrence and retribution to the aggravated robbery offence by reason of the commission of this additional offence, it would be expected that the indicative sentence for the aggravated robbery offence would be inflated relative to the indicative sentence imposed against the informant.

104. I take all these differences into account, when applying the parity principle, which, in combination, and on balance, results in a more significant indicative sentence for the aggravated robbery offence than that which was imposed against the informant.

Instinctive synthesis

105. I take into account the maximum penalties for the offences, the considerations in s 3A of the CSP Act and the guideline judgment (for the aggravated robbery offence). For the aggravated robbery offence, I also take into account the additional offence, which elevates specific deterrence and retribution.

106. Looked at in isolation, both offences were very serious instances of offending for the relevant offences which, as indicated by the maximum penalties, themselves already were very serious. The most important consideration is one that sees the offender adequately punished, in the sense of the penalty being proportionate to the offending, overall. There were certain other aggravating circumstances at play. But, as explained, the presence of Bugmy factors serves to somewhat reduce the seriousness of the offending (on account of a reduction in his culpability) and moderates general and specific deterrence. I also take into account his prospects of rehabilitation, guarded though they are. But the sentence also reflects the significance I attribute to the need to protect the community and, notwithstanding his childhood disadvantage, still holding the offender, then of 29 years of age, to account, for his offending and thereby acknowledging the harm instilled in the victims. Further, retribution and denunciation remain relevant.

107. It was implicit in the offender’s Counsel’s submissions that the s 5 threshold has been crossed. I agree.

108. I find that the indicative sentences (taking into account the different discounts for the guilty pleas - 10% for the aggravated robbery offence and 25% for the firearm discharge offence - and the additional offence for the aggravated robbery offence) are:

Aggravated robbery offence: 8 years’ imprisonment

Firearm discharge offence      4 years’ imprisonment

109. I must apply the principal of totality. There is a basis for some concurrency, given that the firearm discharge offence occurred substantially as part of the same episode. However, the sentence should reflect some accumulation to acknowledge the different nature of the offending and the different victims. The aggregate sentence I impose is intended to reflect the offender’s criminality overall.

110. The offender’s counsel submitted that a finding should be made of special circumstances. A longer than normal period on parole is needed to provide adequate counselling for his psychological issues and to prevent his relapsing into crime. This was notwithstanding his ‘entrenched recidivism’ (an expression borrowed from what Fullerton J said in Jackson v R [2010] NSWCCA 162 at [25]) and the seriousness of his offending. It would at least give the offender hope to plan for his return to the community in the not too distant future. I accept those submissions.

111. The sentence will be backdated to account for the offender’s period in custody, which commenced on 20 July 2019.

Sentence

112. Mr Jackson, please stand.

113. You are convicted of the aggravated robbery offence and the firearm discharge offence.

114. Taking into account your guilty pleas and the additional offence, you are sentenced to a term of imprisonment of 10 years commencing on 20 July 2019 and expiring on 19 July 2029. The non-parole period is 6 years and 6 months expiring on 19 January 2026; after which you will be eligible for release on parole.

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Endnote

Decision last updated: 05 October 2022