R v James

[2022] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:

R v James [2022] NSWDC 66

Hearing dates:

17 March 2022

Date of orders:

17 March 2022

Decision date:

17 March 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 59 - 62

Catchwords:

CRIME – sentence – robbery in company – reference of Bugmy principles and mental impairment to culpability – relevance of R v Henry guideline judgment – whether s 5 threshold crossed – whether sentence of imprisonment should be served by intensive correction

Legislation Cited:

Crimes Act1900 (NSW) ss 95, 97

Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 66

Cases Cited:

Owens v R [2017] NSWCCA 16

R v Henry (1999) 46 NSWLR 346

R v Murchie (1999) 108 A Crim R 482

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions NSW
Ms S James (offender)

Representation:

Counsel:
Mr Burton for the offender

Solicitors:
Ms Wheatley for the Crown

File Number(s):

2021/00085301

Publication restriction:

Nil

SENTENCING REMARKS

1. The offender is before the Court for sentencing following a plea of guilty to the offence that on 2 November 2020, at Haymarket, she robbed Cooper Evans (the victim) whilst in the company of others (Antoin Tumia and LB), contrary to s 97(1) of the Crimes Act1900 (NSW). The offence carries a maximum penalty of 20 years’ imprisonment. There is no standard non-parole period.

2. By reason of her guilty plea, it is accepted that she should receive a 25% discount on sentence. What the plea says about her remorse, or lack thereof, will be addressed when I turn to the offender’s subjective circumstances.

Circumstances of offending

3. The parties agreed to a large number of facts. They are essentially as follows.

4. The offender and the victim were former partners, having been in a domestic relationship for one month, living together.

5. On 2 November 2020, at about 10:40pm, the victim was standing in Haymarket, outside Central Railway Station, with two friends. The victim saw the offender walking out of Central Railway but hoped she would not see him. He pulled his hoodie up over his head.

6. But the offender did see him. She was walking with a friend, a co-offender (LB) and approached the victim; asking him what he was doing. The victim asked her to go away and walked away himself, walking into the Grand Concourse within Central Railway station and taking a seat.

7. At about 10:45pm, the offender and LB followed the victim. The latter was carrying an orange traffic cone. They stood in front of the victim. He remained seated, with his head bowed.

8. Two minutes later, other ‘associates’ entered the Grand Concourse. The offender motioned them towards her with her hand. The offender (and LB) walked towards these people. One of them included the co-offender, Antoin Tumia. The offender and LB spoke with this group for about a minute. The offender and LB then returned to where the victim was seated.

9. They stood in front of the victim for about 4 victims. The offender told the victim that he owed her mother “twenty grand for the car”. The victim denied this and said that the car was not in his name. At about 10:53pm, the victim stood up and walked towards the exit.

10. The offender and LB followed him and walked behind him. LB raised the orange traffic cone and put it over the victim’s head. The victim managed to take it off and threw it to the side and continued to walk towards the exit.

11. The offender followed the victim who, at this stage was outside Central station. She ran towards him, striking him multiple times with her arms and fists, and she struck the victim’s head. Although he tried to get away, the offender continually ran towards him.

12. At about 10:55pm, Antoin Tumia ran in and grabbed the top of the victim’s jumper and punched him multiple times. Whilst he did so, LB removed the victim’s black Samsung Ultra-Light S20 phone from the victim’s back pocket. The phone was valued at approximately $2,000.

13. It is agreed that this occurred pursuant to a joint criminal enterprise to rob the victim, to which the offender was a party.

14. Very early the next morning (1:15am) the offender and LB were stopped by police in Haymarket. After being cautioned and informed that police were wearing body worn video, police also informed them that they were investigating an incident occurring in Central station around 11pm the night before.

15. Asked whether she knew anything about it, the offender said “I do… you wonder why it happened? Cause he ranned his mouth, he shouldn’t have ranned his mouth and he owes people, he owes my mum money so”. She asserted that the victim had hit her so she “gave it back to him”. Contrary to what she told police, however, the offender agrees that the victim did not hit her at any point that evening.

16. When speaking with police, she also issued a threat against the offender if she got “locked up”. She was arrested in March 2021.

Culpability

17. The offender relied upon the report of Mr Chafic Awit, a psychologist, dated 9 March 2022. Mr Awit consulted with the offender on two occasions and after taking a history from the offender, examined her mental health and conducted psychometric testing. Mr Awit diagnosed that she had ADHD, a diagnosis made when she was 5 years of age, a Generalised anxiety disorder and Major Depressive Disorder. He opined, further, that she suffered ‘Extremely Sensitive Anxiety’ in the lead up to the offending.

18. In that report, an explanation, of sorts, was given by the offender for why she acted as she did. She told Mr Awit that she was out with friends and randomly came across the victim, her ex-partner. She explained to Mr Awit that she had been in a relationship with the victim since she was 19 and they had been together for 5 months. But the relationship struggled. She discovered that he had been cheating on her. A few months into the relationship, the victim purchased a car on the mother’s behalf. The offender understood a significant amount of money was owing.

19. She had been attempting to get in contact with him in the belief that he owed a large sum of money to her mother, relating to the unpaid purchase price of a vehicle. She had also been hurt by what she regarded as his past infidelity during their relationship.

20. Without planning to offend, she told Mr Awit that she approached the victim and asked him when he was going to pay up. When the victim said that he would not, he also called her a slut. A friend of the offender’s boyfriend overheard this and came to the offender’s ‘defence’. She admitted feeling frustrated and struggled to contain her emotions. From there, things escalated. She felt she acted impulsively and struggled to think clearly.

21. With this history, and his own review of the agreed facts, Mr Awit opined that she was anxious and depressed prior to and during the offending. He explained that such mental condition can diminish the capacity to reflect in the decision-making process. The problem was exacerbated in sufferers of ADHD as they do not have the same capacity to think through their decisions; and their intellectual faculties were less mature in comparison to other adults of the sameage.

22. He opined that her decision-making ability had been “somewhat impacted” by her mental health impairment at the time of the offending and more generally, her mental conditions had impaired her emotional wellbeing and judgment over the years.

23. I find that there was a connection between the offending and the offender’s mental impairment in the way that Mr Awit described it. I accept that her mental impairment was the product of her deprived background as a child, in accordance with Bugmy principles. She was exposed to, and was a victim of, domestic violence perpetrated by her father; was placed, when only a very young girl, into foster care and had an unstable adolescence in the absence of the care of her mother. Further, she became involved in premature sexual activity, including a sexual assault being perpetrated upon her.

24. The Crown accepted that Bugmy principles were engaged. The offender’s Counsel submitted further, that greater leniency should also be extended as a result of the separate and independent circumstance of her mental disorders. The Crown accepted this as an additional factor reducing her culpability. I accept the joint position advanced by the parties.

25. In particular, acceptance of the offender’s account to Mr Awit, which is inherently plausible, and consistent with the agreed facts, indicates that her capacity to reason, her impulsivity and the immaturity in her intellectual functioning significantly contributed to her offending. These findings serve to lower her culpability for the offending in a way which moderates the weight ordinarily given to general and specific deterrence and retribution. It will also likely exacerbate the impact of the experience of punishment. But the relevance of the factors is not all one way. Given the prior record in the offender, and her propensity, manifested here by the offending occurring in the aggravated circumstance I have referred to, it elevates the Court’s concern about the need for community protection and, in the absence of demonstrable commitment to treatment, would cast doubt upon her prospects of rehabilitation.

Assessment of the objective gravity of the offending

26. By its written submissions, the Crown indicated that when sentencing for the index offence, the sentencing court was not precluded from considering the circumstance that violence was used which would also constitute the offence under s 95(1) of the Crimes Act. The Crown emphasised that the offender and victim were ex-partners, the offending occurred at night, in a public place where the victim was more likely to be vulnerable than if it occurred during the day; the victim was met with three persons in a joint enterprise; two of whom assaulted him and the phone that was seized from the victim had personal and financial value. Through its written submissions, the Crown noted that the guideline judgment in R v Henry (1999) 46 NSWLR 346 (“Henry”), although nominally directed to the offence of armed robbery, was equally applicable to the offence of robbery in company: R v Murchie (1999) 108 A Crim R 482 at [20]; Owens v R [2017] NSWCCA 16 at [56], [71].

27. The Crown took the Court through the factors identified in Henry. In the circumstances that occurred, the offender’s Counsel did not dispute the applicability of Henry as a guideline judgment, although emphasised that the guideline judgment had to be read in the context of the more serious circumstance of the use of a weapon. Although the offender in this case perpetrated an assault (along with the assault of a co-offender), it did not carry commensurate risks of personal injury or death then would have been the case if a weapon was used, being an important feature in Henry. Further he sought to distinguish Henry in the sense of arguing that the planning for the offending was very limited and, in particular, so he argued, the victim was not ‘targeted’ for robbery. These distinguishing matters aside, I did not understand the offender’s Counsel to dispute the other matters which the Crown relied upon.

28. They were: the offender was of a young age (as an adult) with a limited history, albeit a history marked by personal violence offences. The Crown took issue with the comparative seriousness in the sense that in the index offending, there were three people involved rather than, in the case of Henry, two people. The Crown accepted that there was a limited degree of planning; although not as limited as the offender suggested: the offender had a 10-minute interval between the time she chanced to encounter upon the victim and the time when the robbery occurred. It was, the Crown argued, opportunistic. Actual violence was used. Although the victim was not vulnerable in the sense of the statutory aggravating circumstance, he was ‘vulnerable’ in the sense that the offending occurred at night when he was alone. The phone seized had an economic value of $2,000 and had personal value. The plea of guilty in this case should receive a great discount to that which was awarded in Henry. Here, the Crown accepts it was executed at the first reasonably practicable opportunity.

29. I agree with the Crown’s submission that the case fell within the parameters of the Henry guideline. Applying that guideline, whilst according to a discount for the guilty plea might see the imposition of a sentence of imprisonment of between 3 years and 9 months to 4 years and 8 months. Nevertheless, as I understood the Crown to acknowledge, the guideline judgment is just that, a guideline. In particular, it cannot be controlling in a context where the guideline judgment did not, and could not, address an individual offender’s culpability and other subjective circumstances.

30. Aside from the submissions already summarised, the offender’s Counsel submitted that the offending fell below the mid-range, but above the low end of the range of offending for conduct of this kind.

31. Although the offending was serious in nature, particularly involving an assault upon the victim, the offending was opportunistic and did not involve significant planning (although there was opportunity for a reasonable offender to desist from going through with the offending). The seizure of a phone was not insignificant. Nevertheless, for reasons indicated, the offender’s culpability was significantly reduced in the circumstances in which the offending occurred. Whilst I have considered the guideline judgment, I acknowledge that this case did not, for that reason, and the circumstance that the offending did not involve a weapon, I find that the offence fell below the mid-range seriousness of offending for an offence of this kind.

Aggravating circumstances

32. The offending was aggravated by the circumstances that it occurred when the offender was the subject to a subsisting community corrections order (for the duration 8 January 2020 to 7 January 2021).

The offender’s subjective circumstances

33. I have already referred to the guilty plea and the discount the offender should receive on sentence because of it.

34. Much of her background is contained in Mr Awit’s report, although reference has also been made to it in the sentencing assessment report. I have touched upon aspects of her deprived background earlier when addressing her culpability for the offending.

35. The offender is only 22 years of age. She was 20 at the date of offending. She grew up in the Mount Druitt area. Aside from the family turmoil she endured through her childhood and adolescence, her schooling was interrupted, with frequent changes of school. She reported to Mr Awit suffering from poor concentration, poor decision-making, and poor impulse control.

36. She has never been employed.

37. She has a partner, with whom she has been residing for a year. She reported having no children.

38. She has a prior criminal history including multiple personal violence offences for conduct occurring, at different times, throughout 2018 when she had only just become an adult. These included use of a carriage service to menace, harass or offend others. For these offences, she had received the benefit of community supervised sentencing options. I accept the offender’s submission that there has been a not insubstantial gap between the time when the earlier offending occurred and the index offending here. But it is also true, as the Crown submitted, that the nature of the offending has escalated somewhat; and, moreover, the victims of the offending have been persons whom the offender believes has ‘wronged’ her. This itself is symptomatic of the mental issues that the offender has struggled with, especially the ADHD, where a lack of maturity in intellectual functioning can reduce the capacity of the brain to regulate impulsive behaviour and emotion.

39. Mr Awit recorded the offender expressing her remorse to him. That out of court and untested statement carries extremely limited weight. There was no other indication of remorse. I have considered a sentencing assessment report prepared by the Mount Druitt Community Corrections Officer, dated 19 November 2021. The corrections officer noted that although she ‘verbalised’ her regret, the offender appeared more concerned about the impact of offending upon herself rather than others.

40. The offender did not give evidence in Court to speak of remorse. I am unable to accept that she is remorseful. Although, as her Counsel correctly submitted, this does not aggravate the offending, the lack of demonstrable insight into and acceptance of responsibility is, as the Crown submits, relevant when assessing her prospects of rehabilitation.

41. The officer assessed the offender as being at a T3/Medium risk of reoffending.

42. Mr Awit has conscientiously set out a treatment plan in his report, involving both counselling and a psychiatrist.

43. It is a concern for the Court that the corrections officer had observed that the offender had ceased taking medication for her ADHD; although her Counsel, from the Bar table, verbally indicated that she had more recently agreed to take medication. On the other hand, she had reported to the Corrections Officer ceasing contact with the ‘anti-social’ friends who she was in company with on the date of the offending. Further, her Counsel also noted that she had developed a rapport with a counsellor. She has also apparently complied with bail in the intervening period, which is not insignificant. I find her prospects of rehabilitation to be reasonable.

Parity

44. The Crown drew to the Court’s attention that the co-offenders had been sentenced. Mr Tumia was sentenced in the Local Court for two offences, involving assault occasioning actual bodily harm whilst in company and receiving stolen property. He received a community corrections order for 2 years with 275 hours of community service work.

45. The Counsel’s offender ‘noted’ that this punishment appeared lenient set against the offender’s conduct, but did not submit, with any real vigour, that anything might follow: he recognised that Mr Tumia was sentenced in a lower court to less serious offences. The Crown responded, in effect, by justifying the more serious charge being brought against the offender.

46. The Crown also noted that the other co-offender, LB, was sentenced in the Surry Hills Children’s Court to one offence of robbery in company. LB received a penalty of 9 months’ probation. The Crown submitted that where offending otherwise falls within the range of the guideline judgment, there may be a moderate adjustment of sentence to deal with the circumstance that the co-offender was a juvenile.

47. Whilst I have considered the penalties imposed on these co-offenders, given the different circumstances, in terms of age (in the case of LB) and the nature of the offending (in the case of Mr Tumia), and the complete absence of any understanding of the co-offenders’ subjective circumstances, I did not regard them as operating as any real constraint upon my synthesising of relevant sentencing factors to this offender.

Instinctive synthesis

48. I have considered all the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as well as the maximum penalty.

49. I have already addressed most of the sentencing purposes. General and specific deterrence are most important even if, as indicated, they are moderated to a degree by her mental impairment and background of childhood deprivation. Community protection is in my view heightened by her troubling history; a matter which I will return to shortly. Notwithstanding her deprived background and mental impairments, both of which reduce the force of denunciation, these matters do not eliminate the requirement for accountability. In particular, in my view, the sentence needs to take into account harm to the victim, for which the offender has shown not the slightest contrition.

48. Having regard to the nature of the offending, in the aggravated circumstance I have alluded to, the s 5 threshold is crossed.

49. When considering the length of the term of imprisonment, as earlier indicated, I have considered the guideline judgment, although for reasons I earlier remarked upon, did not regard it as controlling, particularly in view of the reduced culpability of the offender. Put another way, in the language of the guideline judgment (at [12]), ‘exceptional circumstances’ arise. As a starting point, I would have been inclined to impose a term of imprisonment of 2 years. With the discount for the guilty plea, that would reduce to 1 year and 6 months.

50. The next question is to how the sentence of imprisonment is to be served.

51. The Crown, very fairly, concedes that it is open to the Court, when exercising its discretion, to order that the term of imprisonment be served by intensive correction; suggesting that this would provide for a treatment plan and a community services work condition.

52. The offender’s Counsel adopted that submission (if his primary submission that the s 5 threshold was not crossed was rejected, as it has been). He argued that the treatment plan identified in Mr Awit’s report was suitable.

53. In the sentencing assessment report, the corrections officer noted the offender’s willingness to undertake community services work. The officer also outlined a useful supervision plan.

54. Taking into account the matters in s 66 of the Crimes (Sentencing Procedure) Act 1999, and acknowledging the paramount consideration of community protection, I agree with the Crown that, so long as the conditions are carefully directed to meet the offender’s medium risk of re-offending, service of the sentence in this way will more likely address the risk of her re-offending. I place emphasis upon the indication from the Counsel’s offender that she has developed a good rapport with her existing counsellor. She has, as her Counsel acknowledged, ingrained issues which will take time to treat; and even then, it will be difficult for her to get over them. Although she has breached an earlier supervised sentence, a sentence of imprisonment served by intensive correction remains a strong deterrent and certainly represents an advance in penalty to earlier penalties imposed upon her in the past. It also provides the best chance to enhance her prospects of rehabilitation, which will be for the community’s ultimate benefit.

55. I agree with the Crown that a community services work condition and rehabilitation and treatment condition are appropriate. There is another condition I have in mind which I will raise with Counsel momentarily.

56. Ms James, please stand.

57. You are convicted of the offence of robbery in company. Taking into account the discount on your guilty plea, I sentence you to a term of imprisonment of 1 year and 6 months commencing on 17 March 2022 and expiring on 16 September 2023.

58. That term of imprisonment is to be served by intensive correction, subject to the following conditions:

1. You must not commit any offence;

2. You must submit to the supervision of a community corrections officer and comply with any reasonable directions of such officer;

3. A community services work condition of 200 hours;

4. A rehabilitation treatment condition requiring you to receive such treatment as is identified in the treatment plan described by Mr Chafic Awit in his report dated 9 March 2022, as modified upon the advice and recommendation of the offender’s current counsellor or other mental health practitioner;

5. A non-association condition prohibiting your association with the victim, Cooper Evans, LB and Antoin Tumia,

6. You are to make telephone contact with the Mount Druitt Community Corrections Officer within 7 days.

61. I note that no action is to be taken in regard to the Bonds.

62. Ms James, in the difficult life that you have lived, you have been granted some opportunities by sentencing magistrates to rehabilitate following violent offences committed by you against other people. This is another one. However, compared to previous sentences imposed on you, a sentence of imprisonment, even when served by intensive correction, is very serious and subject to significant constraints upon your liberty. It is a significant ‘step up’ in earlier penalties imposed upon you. You need to understand that if you fail to fulfil these conditions, you are liable to spending the remainder of your term in full-time custody.

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Decision last updated: 18 March 2022