R v Keane; R v Keane; R v Ponting

[2019] NSWDC 591

District Court

New South Wales

Medium Neutral Citation:

R v Keane; R v Keane; R v Ponting [2019] NSWDC 591

Hearing dates:

06 September 2019; 11 October 2019

Date of orders:

11 October 2019

Decision date:

11 October 2019

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

For Jodi Keane:

 

You are convicted of the following offences:

1 Robbery, contrary to section 94(a) of the Crimes Act 1900 (NSW); and
2 Assault occasioning actual bodily harm, contrary to section 59(1) of the Crimes Act 1900 (NSW).

 

You are sentenced to a term of imprisonment of 2 years.

 

Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

 

The sentence will commence today, 11 October 2019 and will expire on 10 October 2021.

 

You must report to the Sutherland Community Corrections Office as soon as practicable, but no later than 7 days from 11 October 2019. This means that you must report to the Sutherland Community Corrections Office by 18 October 2019.

 

The standard conditions of the order apply, namely:

1 You must not commit any offence; and
2 You must submit to supervision by a Community Corrections Officer.

 

The following additional conditions apply:

1 A rehabilitation or treatment condition requiring the offender to attend drug and alcohol counselling at St George Drug and Alcohol Service for 18 months;
2 Ms Keane is to attend Victim Services counselling with Enough is Enough as directed;
3 Ms Keane is to attend her general practitioner Dr Wassef within 30 days of the date of this order and enter into a Mental Health Plan so that she attends a psychologist for 10 sessions of therapy funded by Medicare; and
4 An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

 

I order you to undertake community service work of 150 hours.

 

If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

 

If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

 

You are now directed to attend the court registry where a copy of this order will be explained and given to you.

 

For Jasmine Keane:

 

You are convicted of the following offences:
1 Robbery contrary to section 94(a) of the Crimes Act 1900 (NSW); and
2 Obtain benefit by deception, contrary to section 192E(1) of the Crimes Act 1900 (NSW).
You are sentenced to a term of imprisonment of 18 months.

 

Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

 

The sentence will commence today, 11 October 2019 and will expire on 10 April 2021.

 

You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from 11 October 2019. This means that you must report to the City Community Corrections Office by 18 October 2019.

 

The standard conditions of the order apply, namely:

1 You must not commit any offence; and
2 You must submit to supervision by a Community Corrections Officer.

The following additional conditions apply:

1 A condition requiring you to enter into a Mental Health Plan with your general practitioner within 30 days so that you receive psychological therapy for 10 sessions funded by Medicare.
2 A condition that you accept the services and directions of Salvation Army SOS Case Management for 18 months.
3 An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

 

I order you to undertake community service work of 100 hours.

 

If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

 

If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

 

You are now directed to attend the court registry where a copy of this order will be explained and given to you.

 For Luke Ponting:

You are convicted of the charge of obtaining benefit by deception contrary to section 192E(1) of the Crimes Act 1900 (NSW).

 

I make a Community Correction Order with respect to Mr Ponting.

 

The order is to date from 11 October 2019 and last for 18 months, expiring on 10 April 2021.

 

I note your solicitor’s undertaking that the amount of $470 will be repaid as restitution either to the victim or the victim’s bank.

 The following conditions apply:
a) The appellant must not commit any further or other offence;
b) You must abstain from drugs other than those prescribed by a medical practitioner;
c) You must attend your general practitioner within 30 days and enter into a Mental Health Plan so that you can attend a psychologist for 10 sessions of therapy funded by Medicare; and
d) You are to undertake 100 hours of community service work, and you are to report to the Bankstown Community Corrections office within 7 days of the date of these orders or by 18 October 2019.

Catchwords:

SENTENCING – robbery – dishonestly obtain property by deception – invited victim to home – forced her to provide bank card details – special circumstances – parity – Intensive Correction Order – Community Correction Order

Legislation Cited:

Crimes Act 1900 (NSW), ss59(1), 94(a), 192E(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss3A, 5, 7(1), 21A, 53A, 66

Cases Cited:

Cahyadi v R [2007] NSWCCA 1
Casella v R [2019] NSWCCA 201
Green v R; Quinn v R (2011) 244 CLR 462
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen (2011) 244 CLR 120
R v Fangaloka [2019] NSWCCA 173
R v Jarrold [2010] NSWCCA 69
Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Regina (Crown)
Jodi Keane (Offender)
Jasmine Keane (Offender)
Luke Ponting (Offender)

Representation:

Mr Gabrial (Crown)
Ms David (Jodi Keane)
Mr Johnson (Jasmine Keane)
Mr Skinner (Luke Ponting)

File Number(s):

Jodi Keane (2017/266763)Jasmine Keane (2017/267622)Luke Ponting (2017/267637)

Publication restriction:

Nil

Judgment

JODI KEANE

1. Jodi Keane, born in 1980, is before the court for sentence for robbery, contrary to section 94(a) of the Crimes Act 1900 (NSW) (‘the Crimes Act’), the maximum penalty for which is 14 years imprisonment and for which there is no standard non-parole period, and for assault occasioning actual bodily harm, contrary to section 59(1) of the Crimes Act, the maximum penalty for which is 5 years imprisonment and for which there is also no standard non-parole period. The offender was committed for trial on 16 August 2018, and on 4 June 2019, she entered pleas of guilty on the second day of the trial to these charges. I am informed by counsel that the offender pleaded guilty to these charges upon presentation of a fresh indictment.

EVIDENCE

2. Before me are two exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A copy of the indictment to which the offender pleaded guilty on 4 June 2019;

2. A Statement of Agreed Facts signed by the offender, her co-offenders and the solicitor for the DPP;

3. A section 35A Certificate;

4. Six photographs;

5. The offender’s criminal history;

6. The offender’s custodial history; and

7. A Sentence Assessment Report (SAR) prepared by Kerryn Taylor, Community Corrections Officer, dated 3 September 2019.

3. Also before me is Exhibit 2, which is a sentence bundle prepared on behalf of the offender, which includes:

1. A report of Anita Duffy, psychologist, dated 26 August 2019;

2. A psychosocial report of Jennifer Brown, social worker, dated 3 September 2019;

3. A letter from Ms Jodi Keane's social worker, dated 3 September 2019;

4. A letter from Dr Faten Wassef dated 12 August 2019; and

5. A letter of apology from the offender to the victim.

Agreed Facts

4. There are three offenders in this matter; Jodi Keane, her daughter Jasmine Keane and Jasmine Keane's then-boyfriend, Luke Ponting. These agreed facts apply to each offender.

5. The victim, Anthoula 'Annie' Apokotos, was aged 32 at the time of the offences. She suffers an unspecified intellectual impairment and receives a disability support pension.

6. About 2pm on Wednesday 30 August 2017, the victim and her friend 'Andrew' were standing near McDonald’s Caringbah on President Avenue, Caringbah.

7. Jodi Keane approached the victim and Andrew and after a brief conversation invited the victim to her house saying, 'Come back to my place and I will shout you some cones.' Andrew drove Jodi Keane and the victim to a petrol station on the corner of the Kingsway and Kareena Road, Caringbah, where Jodi Keane and the victim got out of the car and walked to Jodi Keane's house. Jodi Keane told the victim that she didn't have keys. Jasmine Keane and Luke Ponting arrived at the house. Ponting jumped over the back fence and opened the front door from the inside.

8. The victim entered the house with the offenders and sat on the lounge for about two hours making conversation. The victim had never met any of the offenders previously and did not know them. The victim, the three offenders and Jodi Keane's partner, Kurt, smoked cannabis from a waterpipe (bong).

9. The victim asked if they would like to order pizza. She then transferred $50 from her savings account to her everyday account using her iPhone and ordered pizza from Domino's Caringbah under the name 'Jasmine' with a delivery address at Kareena Road, Miranda. Three pizzas arrived about an hour later, just before 7pm. Luke Ponting was asleep for about 30 minutes until the pizza arrived at which point Jasmine Keane nudged him and said, 'Hey wake up, the pizza's here.'

10. At a later point Jodi Keane began to scream, 'who took my fucking Serepax?' She searched the room and found an empty packet and said, 'Who downed them all, who took 'em?' Jodi Keane then opened a tablet container and put two or three tablets in her mouth. Jasmine Keane also took some tablets.

11. Jodi Keane said, 'I'm gonna find out who took my tablets' and began to search everyone's bags, saying to the victim while looking at her, 'You're next.'

AOABH – s59(1) Crimes Act: Jodi Keane

12. The victim went to the bathroom and when she returned to the lounge room saw Jodi Keane holding her bag. Jodi Keane said, 'I'm ready to go search your bag.' The items in the victim's bag fell to the floor, and when the victim started to pick things up, Jodi Keane punched her to the chin.

13. Jodi Keane then pushed the victim backwards onto the couch and said, 'Stay there cunt, I'm searching your bag whether you like it or not.' Jodi Keane said to the victim before searching her body, 'You're an informant aren't you, where are your wires?'

14. During the course of searching the victim, Jodi Keane struck the victim to the right side of her face.

15. The victim put out her hand towards Jasmine Keane to ask for help. The victim heard a male voice coming from a neighbouring property outside the kitchen window say, 'Is everything ok in there?'

Robbery – s94(a) Crimes Act: Jodi Keane

16. Jodi Keane repeatedly said, 'You're a copper aren't you. You're a copper, I can smell ya.'

17. Jodi Keane then patted down the victim. At the time the victim felt threatened and apprehended further violence. Jodi Keane took the following property from the victim:

1. A St George Bank card;

2. A NSW Proof of Age card;

3. An AMF Playtime Tenpin bowling card; and a

4. A Tradies club card.

18. She then told the victim to sit on the toilet. The victim saw a pole in the bathroom and this made her more scared. The victim remained in the bathroom.

Robbery – s94(a) Crimes Act: Jasmine Keane

19. Shortly afterwards Jasmine Keane then entered the bathroom holding the victim's mobile phone. Jasmine Keane said to the victim, 'Just put your details in, just do it.'

20. The victim felt threatened and apprehended violence. The victim then put her personal details into her phone banking application so that it was activated. Jasmine Keane then took the victim's phone.

Dishonestly obtain property by deception – s192E(1)(a) Crimes Act – Jasmine Keane and Luke Ponting

21. Jasmine Keane and Luke Ponting left the house with Jasmine holding the victim's phone. Luke Ponting was aware that the phone had not been given to Jasmine voluntarily. He was also aware that the victim had earlier been assaulted by Jodi Keane.

22. About 10:20pm on 30 August 2017, Jasmine Keane and Luke Ponting attended the St George ATM on the Kingsway, Caringbah, and used the cardless cash function to withdraw $470.00 from the victim's account. CCTV footage shows Jasmine Keane and Luke Ponting walking towards the ATM holding hands. The footage shows Jasmine Keane at the ATM and Luke Ponting walking past the ATM without stopping. Ponting provided support and encouragement for the offence. Neither Jasmine Keane nor Ponting returned to the premises of Kareena Road, Miranda.

23. After a period of time Jodi Keane said to the victim, 'Listen I wanna go to sleep, there's the front door, fuck off. When Jasmine gets home I'll get her to call you' to which the victim responded, 'With what phone? Your daughter took my phone.' Jodi Keane replied, 'Ha ha that's right, sucks to be you.'

24. The victim left the house and walked to Miranda train station to access the payphone. The victim rang 000 and told the operator that she had been ‘mugged and held hostage.’ The victim was extremely distressed. Police and an ambulance arrived and spoke to the victim. She was then conveyed to Sutherland Hospital. As a result of the assault, the victim suffered a swollen right cheekbone as well as a cut and swollen bottom lip.

25. About 12pm on Friday 1 September 2017 police executed a crime scene warrant at the Kareena Road premises. Jodi Keane denied knowing a woman named 'Annie' when Constable Styan spoke to her outside the front of her house. Sergeant Kruitt asked, 'Are there any items listed in the crime scene warrant in the house? Anything like the woman who was here: bank cards, phone or ID?' Jodi Keane answered, 'Not that I'm aware of.'

26. A short time later Jodi Keane said to Senior Constable Dallas whilst in the rear of a caged police car. 'That girl Anthropa, or whatever her name was that the detective said. Her ID is in my room on the top of the shelves. I don't know how they got there. I just know they're there.' Police subsequently searched the bedroom of Jodi Keane and located several cards in the victim's name, including her St George bank card, her NSW Proof of Age card and AMF Playtime Tenpin bowling card.

27. About 4.00pm on Sunday 3 September 2017, Ponting and Jasmine Keane were arrested in Alice Street, San Souci.

28. In her electronically recorded interview, Jasmine Keane made admissions to taking the victim's phone with the banking cardless cash code on the screen and then attending the St George Bank ATM with Ponting and withdrawing the cash. She stated that she spent some money on cigarettes at the 7/11 store and a drink at McDonald’s and that she felt guilty. She also said that she gave some of the money to Luke Ponting.

29. Luke Ponting provided an electronically recorded interview during which he stated that he was asleep on the lounge for most of the relevant periods, and that he heard arguing, but did not see any punching.

30. Jodi Keane denied the offences in her electronically recorded interview, saying that the victim asked weird questions while they were socialising which made her think she was a police officer, stated that she has paranoid schizophrenia, that the victim stole Serepax from her, and that she found the victim's belongings in the house.

31. Several weeks later the victim's phone was returned to her by a person named Vicki.

Exhibit 1

32. The photographs tendered by the Crown depict the entranceway of the Kareena Road premises, the four pieces of identification of the victim taken from her, and images of the victim’s face showing the harm caused by the assault.

33. The offender’s past criminal record shows offences going back a little more than 20 years, the most recent of which is a shoplifting offence in 2017 for which she received a fine of $200. Prior to that offence, there was a conviction for larceny of a sum less than $2000 in 2010. The offender’s custodial history is of no significance, although I note that she spent four days in custody for this offence in September 2017.

34. The SAR notes that the offender is on a Newstart Allowance and is exempt from job seeking. She has never been in employment. The offender expressed feelings of being upset and paranoid prior to the offending and acknowledged the wrongness of her actions. At the time of the offence, she said she was paranoid due to the actions of her daughter’s partner being in her home. At the time she was experiencing depression after leaving an abusive relationship and struggling to gain access to her children.

35. Ms Keane acknowledged that her behaviour towards the victim would have been upsetting and intimidating. She expressed a willingness to engage in intervention. She was engaged in counselling through Enough is Enough anti-violence and drug and alcohol counselling through St George Drug and Alcohol Service. The offender was willing to continue these engagements and to undertake community service work.

36. Ms Keane was assessed at a medium level risk of re-offending, and was assessed as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month.

Exhibit 2

37. Ms Duffy assessed the offender on 12 August 2019. On the basis of the offender’s presentation, and the clinical assessment, Ms Duffy believes that the offender has symptoms consistent with Major Depression, Anxiety Disorder and Post-Traumatic Stress Disorder (PTSD) in response to a prolonged series of abusive relationships in which she was subjected to psychological and physical abuse. Ms Duffy notes that the offender was raped at age 13 which led to a deterioration in her mental health, with rebellious behaviour and early use of drugs. She became pregnant with the co-offender Jasmine Keane at age 17.

38. The offender subsequently commenced a relationship when she was exposed to psychological abuse, was isolated from her friends and family, and when her partner exhibited controlling and intimidating behaviours. He ultimately was successful in removing her children (with him) from her care. He had abused drugs and was incarcerated for drug-related charges on several occasions. Whilst she functioned well during his incarcerations, when he returned she again became vulnerable to his abuse.

39. The offender was eventually able to leave this relationship, but became involved with an old friend who threatened and controlled her. Although she was ultimately able to leave, she remained traumatised by this experience, and during this time ‘DOCS’ removed her children from her care.

40. The index offences occurred when the offender had used cannabis and benzodiazepines to excess. Her co-offenders were staying with her at the time, and she was apparently trying not to antagonise her daughter who had punched her previously. In Ms Duffy’s opinion, at the time Ms Keane was suffering the effects of PTSD, depression and anxiety for which she self-medicated with cannabis and benzodiazepines. The offender expressed remorse over her part in the offences, noting that as a past victim of intimidation and threats, she could understand the fear the victim felt.

41. Ms Duffy notes that the offender has engaged in treatment since her arrest and has goals of recovery and restoring the custody of her children. Ms Duffy believes that the offender’s needs would be best served if she were supervised by Community Corrections, and that a return to custody would further traumatise her.

37. Ms Brown reports that the offender has made a conscious effort since being released from custody to change her life and to work to resolve her psychological issues, mend her relationships with her family and regain parental responsibility for her children.

38. The offender has moved from her residence where the incident occurred, and now lives in a two bedroom security unity at Penshurst. She told Ms Brown that the move has afforded her the opportunity to remove herself from a dysfunctional environment and to start making more appropriate friendships. She is aware of the poor choices she has made in the past. Her life is now quiet: she reads, gardens and maintains her apartment. She is now self-reflective and insightful about her past behaviour and its effect on others.

39. The offender described her time in custody as a ‘shock’ which changed her attitude and outlook on life, and gave her the strength to seek professional support. She has attended three of twenty sessions with a mental health accredited social worker, has enrolled in domestic violence programmes and plans to attend a survivor of sexual assault programme. She no longer takes Serepax, but is prescribed Valium, anti-depressants and Methadone. The offender reports that her thoughts and moods have changed for the better. She is attempting to reduce her Methadone intake with a view to complete abstinence within five years. She attends counselling with St George Drug and Alcohol Service.

40. Notwithstanding her past difficulties, the offender has supportive parents who reside in Crookwell, NSW. She also receives support through Partners in Recovery who assist the offender with referrals and linking her to services to support her mental health. She is making an application for NDIS funding.

41. Ms Brown sets out a Case Plan for the offender.

42. A social worker at Neami National, which is a mental health organisation, notes that she has been the offender’s primary mental health worker since May 2018. She says that the offender has been committed to working with her service since she referred herself in 2018. She reports that the offender has expressed her regret at her involvement in the events which are the subject of these proceedings. She says that in her opinion, if the offender were to receive a custodial sentence, her mental health would decline and that her current progress would be halted, if not undone.

43. Dr Faten Wassef says that he has been Ms Keane’s general practitioner for a number of years. He notes that she was exposed to domestic violence for years, that she no longer has contact with her eldest daughter (Jasmine), that she has engaged appropriate counselling and is motivated and focused.

44. In a letter to the victim, the offender says that she is truly sorry, that she had no right to ‘hurt you and treat you in the horrible way I did’, that she is disgusted with her behaviour, and that she is sorry for searching her personal belongings, scaring her, stealing her cards and accusing her of stealing the offender’s medication.

Crown Submissions

50. Mr Gabrial for the Crown submitted that the offender was entitled to a discount of 10% for the utilitarian value of the plea, as it was a late plea entered on the second day of trial when the Director made a decision to proceed with the charges on the present Indictment.

51. As to the offender’s history of convictions, Mr Gabrial said they disentitled her to leniency.

52. With respect to objective seriousness, Mr Gabrial said that both offences fell below the mid-range. With respect to the assault, Mr Gabrial submitted that it was unprovoked and unjustified. The fact that the violence was of a short duration did not diminish the fact that the incident would have been frightening for the victim.

53. As to parity between Jodi and Jasmine Keane, Mr Gabrial said that the robberies were dissimilar, and that there were some significant differences between the ages, backgrounds, criminal histories between the offenders. With respect to totality, Mr Gabrial submitted that a degree of accumulation was required, and that there ought not be a wholly concurrent sentence, as the sentence for one offence would not reflect the criminality of the other. He said that the assault occasioning actual bodily harm was a separate course of offending to the robbery, although he conceded that they were proximate to one another in time.

54. As to general and specific deterrence, Mr Gabrial submitted that in circumstances where there had been personal violence and an unprovoked attack, general deterrence is a factor to which I would have regard.

55. Mr Gabrial submitted that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), had been passed and that no penalty other than imprisonment was appropriate, but he conceded that I would not fall into error should an Intensive Corrections Order (ICO) be imposed.

Offender’s Submissions

56. Ms David, on behalf of the offender, provided a helpful written outline of submissions.

57. As to the objective seriousness of the robbery, Ms David says that the offence falls within the low range because the application of force was fleeting and minimal, it did not involve any actual violence or physical harm to the victim, she did not misuse the stolen property and at the time her judgment was impaired by her mental state and drug addiction. As to the assault occasioning actual bodily harm, she submitted that the offence falls towards the lower end of objective seriousness as the assault was not sustained, the degree of violence was not great and the victim did not suffer extensive injuries.

58. As to aggravating factors (section 21A(2) of the Sentencing Act), Ms David submitted that whilst the offender has a prior criminal history, it was not for serious personal violence, that she had not offended for more than two years, and that prior to that time she had not offended since 2010.

59. As to mitigating factors (section 21A(3)), Ms David submitted that the injury, emotional harm or damage caused by the offence was not substantial, the offence was not part of a planned or organised criminal activity, the offender is unlikely to re-offend, and the offender has good prospects of rehabilitation. As to remorse, Ms David notes that the offender has accepted responsibility for her actions and is genuinely remorseful.

60. With respect to her plea of guilty, Ms David submits that the plea on 4 June 2019 was to a new Indictment after the Crown abandoned a number of counts, and thus it can reasonably be said that the accused pleaded guilty at the earliest opportunity.

61. Ms David also said that the matter could have been dealt with in the Local Court and that the court should give consideration as to whether the reduced maximum penalty of two years should apply.

62. As to subjective matters, Ms David notes the content of the report of Ms Duffy referred to above. She submitted that the offender’s mental health and substance abuse history is a matter that I would take into account. In particular, she submitted that at the time of offending, drugs made her sleepy, paranoid and hyper vigilant to the threat of others. Her addiction to drugs, she says, is relevant to the objective criminality in that she had a diminished capacity to control her impulses which affected her judgment. She noted too her DSM V diagnosis set out above.

63. Ms David submitted that the offender’s engagement with counselling and drug and alcohol services demonstrates her insight into therapy and rehabilitation. She had made conscientious efforts to resolve her psychological issues, mend her relationships and regain custody of her children.

64. As to concurrency and accumulation, Ms David submits that the sentences should be wholly concurrent as they arise out of a single incident which occurred within a short space of time. Ms David submitted that community based supervision and continued participation in programs would support the offender’s ongoing rehabilitation and ultimately both the offender’s and the community’s best interests. She submitted that, in the circumstances, a Community Correction Order (CCO) would be appropriate, and would provide substantial general deterrence, particularly with appropriate conditions. Furthermore, she submitted that a CCO with appropriate conditions would satisfy the requirements of proportionality and just punishment.

65. In oral submissions, Ms David confirmed that she cavilled for a CCO in all of the circumstances, as she said that the section 5 threshold (of the Sentencing Act) had not been crossed for a number of reasons. First she submitted that with respect to objective seriousness, both offences fell well below the mid-range, and rather were in the low range (the robbery being her taking the cards from the victim when she searched the victim’s bag at which time she was paranoid and missing medications and the assault being fleeting with minimal harm). Second, she said that there were powerful subjective factors to the offender’s case which are discussed further below. Third, Ms David submitted that the matters could have been dealt with in the Local Court. Fourth, she said there was an absence of aggravating factors in Jodi Keane’s case. Fifth, Ms David said that the discount for the plea of guilty (which she conceded occurred at the 11th hour, but that there were significant issues that needed to be resolved before a plea was entered) ought to be above the 10% submitted by the Crown, and was somewhere in the range of 15% to 20%.

66. As to the subjective features, Ms David submitted that the offender has availed herself of multiple services over a long period of time since May 2018. She has moved out of the area and removed herself from harmful associations, she engages in counselling and for the first time in her life has set herself on a course of genuine rehabilitation. It was noted that the offender is a good candidate for community service, as it might assist her in a transition to paid employment and assist her at social level.

67. As to what conditions might attach to either a CCO or an ICO, Ms David pointed me to the treatment plan suggested by Ms Brown, and submitted that she be supervised by Community Corrections. As to the length of such an order, Ms David submitted that it could be up to three years (there being two offences), but that two years would be appropriate.

68. In oral submissions Ms David said that the sentences should be totally or substantially concurrent as they followed upon one another and were essentially one course of conduct.

69. In oral submissions in reply, Mr Gabrial said that a community service order, a rehabilitation or treatment condition and an abstention condition would be appropriate should an ICO be imposed. He also noted that at the time of the offence, the robbery charge was strictly indictable and so it had to be dealt with in the District Court. The only time it could have been dealt with by the Local Court was when the new indictment was filed.

Consideration

Section 21A Factors

Plea of guilty

70. The only evidence I have with respect to the timing of the plea is contained in Exhibit 1, ie that the plea of guilty was entered on the second day of trial. In those circumstances I allow a discount of 10%.

Objective Seriousness

71. The maximum penalties for the offences – 14 years for the robbery and 5 years for the assault occasioning actual bodily harm – operate as legislative guideposts and reflect the seriousness with which the legislature regards these offences.

72. With respect to the assault, I note that whilst the victim suffered minimal injury, she would have experienced real fear and apprehension. I find it to be between the low and midrange of objective seriousness. As to the robbery, the facts indicate that the offender did nothing with the four items. I find this offence to be at the low range.

Antecedents

73. I find that the offender’s prior criminal history, which is not insignificant and contains convictions for dishonesty offences, generally disentitles her to leniency.

Remorse

74. I accept that the offender has expressed remorse and that she is genuine in her expressions. I note that she has consistently expressed remorse to various persons, and I find that she has demonstrated some insight, in particular in her statement to Ms Brown that as a past victim of intimidation and threats, she can understand the fear that the victim felt.

Reports of Ms Duffy and Ms Brown and Disadvantage

75. The reports of Ms Duffy and Ms Brown outline an adult life of domestic abuse and violence which continued up until the date of the offender’s arrest for these offences. They demonstrate a cycle of drug dependence which the offender was incapable of breaking, largely due to the domestic abuse she has suffered over many years. Both Ms Duffy and Ms Brown report that the offender has made significant strides toward changing her life over the past two years.

Local Court Jurisdiction

76. I accept the Crown’s submission, that at the time the charges were laid, the robbery had to be dealt with in the District Court (although that situation has now changed).

Prospects of Rehabilitation

77. I find that the offender has made significant strides toward her rehabilitation, which is commendable, I find that she has better than reasonable prospects of eventual rehabilitation, taking into account the attempts made to date.

Specific Deterrence

78. I find that as the offender has not yet achieved total rehabilitation, specific deterrence is something I take into account on sentence. I also take into account her prior criminal history.

General Deterrence and Denunciation

79. The offences to which the offender has pleaded guilty require me to apply the principles of general deterrence and denunciation, so as to demonstrate the community’s abhorrence of the offending behaviour.

Consistency and Statistics

80. I am grateful for the material handed up to me by Ms David. In the end, I consider the comparative cases and statistics to be blunt tools which are of limited assistance.

Totality

81. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [1]

    1. Mill v The Queen (1988) 166 CLR 59 at [63].

82. In Cahyadi v R [2007] NSWCCA 1 at [27], the NSWCCA said the following regarding the principal of totality:

… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

83. Of the two offences, they do not entirely overlap and point toward some concurrency of sentence with one another, although they arguably arose out of the same ‘episode’. I note that a sentence must not be concurrent simply ‘because it may be seen as part of the one course of criminal conduct’[2] . The question for me is whether or not the offence of assault occasioning actual bodily harm can be encompassed in the sentence of the robbery offence. As will become apparent, I have determined that there should be some small accumulation between the offences in all the circumstances.

    2. R v Jarrold [2010] NSWCCA 69 at [56].

Threshold

84. The real point of difference between the Crown and the offender is whether the threshold of section 5 of the Sentencing Act has been crossed. Having considered all the possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate, due to the seriousness of the offending.

Special Circumstances

85. Having regard to the offender’s ongoing need for psychological therapy, domestic abuse counselling and drug interventions to assist in her rehabilitation, I make a finding of special circumstances. She clearly will require a lengthy period of supervision upon her release.

sentence

86. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As I have said, with respect to Jodi Keane, the facts and circumstances of the present offences and this offender highlight how the various purposes of sentencing pull in competing directions – especially given that the offender’s drug addiction and history of domestic abuse played a significant role in her offending behaviour.

87. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

88. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the Court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

89. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

90. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalties, which are imprisonment for 14 years for the robbery and 5 years for the assault occasioning actual bodily harm offence, and the fact that there are no standard non-parole periods for either offence.

91. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 2 years. This is the effective sentence after applying a 10% discount for the offender’s early guilty plea. Had this discount not been applicable, the aggregate sentence would have been imprisonment for 2 years 2 months and 12 days.

88. I take into account that the offender has served four days in custody.

89. As required by s53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences I would have imposed are as follows:

1. For the offence comprising count 1 on the indictment, namely robbery contrary to section 94(a) of the Crimes Act, I would have imposed an indicative sentence of imprisonment for 19 months. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 17 months and 2 days.

2. For the offence comprising count 2 on the indictment, namely assault occasioning actual bodily harm, contrary to section 59(1) of the Crimes Act, I would have imposed a sentence of imprisonment for 9 months. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 8 months 3 days.

94. The final matter I must consider is whether it is appropriate to impose an alternative to full-time imprisonment – namely, in these circumstances, an ICO. On this question, I note that the passing of the Sentencing Act has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

‘We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.’

95. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act: see also R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201). Having regard to the subjective case of the offender, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Sentencing Act). In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of the Sentencing Act).

Orders

96. Ms Jodi Keane, please stand.

97. You are convicted of the following offences:

1. Robbery, contrary to section 94(a) of the Crimes Act 1900 (NSW); and

2. Assault occasioning actual bodily harm, contrary to section 59(1) of the Crimes Act.

98. You are sentenced to a term of imprisonment of 2 years.

99. Pursuant to s7(1) of the Sentencing Act, the sentence imposed on you is to be served by way of an Intensive Correction Order.

100. The sentence will commence today, 11 October 2019 and will expire on 10 October 2021.

101. You must report to the Sutherland Community Corrections Office as soon as practicable, but no later than 7 days from 11 October 2019. This means that you must report to the Sutherland Community Corrections Office by 18 October 2019.

102. The standard conditions of the order apply, namely:

You must not commit any offence; and

You must submit to supervision by a Community Corrections Officer.

103. The following additional conditions apply:

A rehabilitation or treatment condition requiring the offender to attend drug and alcohol counselling at St George Drug and Alcohol Service for 18 months.

Ms Keane is to attend Victim Services counselling with Enough is Enough as directed.

Ms Keane is to attend her general practitioner Dr Wassef within 30 days of the date of this order and enter into a Mental Health Plan so that she attends a psychologist for 10 sessions of therapy funded by Medicare; and

An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

104. I order you to undertake community service work of 150 hours.

105. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

106. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

107. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

JASMINE KEANE

108. Jasmine Keane, born in 1998, is before the court for sentence for robbery contrary to section 94(a) of the Crimes Act, the maximum penalty for which is 14 years imprisonment and for which there is no standard non-parole period, and for obtain benefit by deception, contrary to section 192E(1)(a) of the Crimes Act, the maximum penalty for which is 10 years imprisonment and for which there is also no standard non-parole period. The offender was committed for trial on 16 August 2018, and she entered pleas of guilty on the second day of the trial to these charges on 4 June 2019. I am informed by counsel that the offender pleaded guilty to these charges upon presentation of a fresh indictment. I note that the offender committed the offences whilst on a section 9 bond received at Sutherland Local Court on 10 May 2017. The offender served two days in custody for this offence.

109. Tendered before me are two exhibits. The first is Exhibit 1 tendered by the Crown. It includes:

1. A copy of the Indictment to which the offender pleaded guilty on 4 June 2019;

2. A Statement of Agreed Facts (see above);

3. A section 35A Certificate;

4. Six photographs;

5. The offender’s criminal history;

6. The offender’s custodial history;

7. A Sentence Assessment Report (SAR) prepared by John Brand dated 28 August 2019; and

8. A bundle of papers relating to the section 9 bond.

110. Exhibit 2 is a bundle tendered by Mr Johnson on behalf of the offender. It consists of;

1. A report of Dr Kerri Eagle, forensic psychiatrist. dated 6 September 2018;

2. A letter to the court from Libby Kerin, SOS Case Manager at the Salvation Army, dated 6 September 2019;

3. A Statement of Attainment being a Certificate IV in Community Services dated 24 April 2019, a Statement of Completion in a training module of Traffic Controller dated 26 August 2019 and a Certificate of Appreciation for volunteering with the Salvation Army dated 25 June 2019;

4. A letter from Susan Hart, senior caseworker, and Lisa Walters, manager casework, at Family & Community Services (FACS) dated 31 May 2019; and

5. A letter of apology from the offender dated 6 September 2019.

Exhibit 1

111. The offender’s criminal record discloses an assault upon a police officer for which she received a section 9 bond in May 2017 and a conviction for common assault on 24 April 2018 for which she received a CCO which concludes on 28 May 2020.

112. The SAR notes that Ms Keane was residing in a ‘youth based resource’. She receives ongoing support from her maternal grandparents but has a limited social network. She had recently completed a traffic control course and is currently enrolled in a certificate in retail. She is unemployed and receives government assistance through a youth allowance and was noted to be motivated to increase her employable skills. Mr Brand noted that the offender took accountability for her offending behaviour although she claimed that her actions were motivated out of fear of her mother. She said that she was regularly using drugs at the time and was living in a domestically abusive relationship with her ex-partner and co-offender and her mother. The offender claimed to be using ice and other illicit substances at the time of the offence. Since then she has engaged with community-based services to address her problematic drug use.

113. The offender identified violence and aggression as key risk factors in her offending behaviour. She has commenced EQUIPS Aggression course to address this risk and has completed 11 out of 12 sessions, with eight sessions remaining until completion. She has engaged with community-based mental health services to address her mental health issues, which include a complex PTSD. Ms Keane identified her actions towards the victim as wrong and said they would have a lasting negative impact on the victim. She demonstrated a willingness and motivation to undertake interventions and has engaged in multiple different community-based interventions to address her criminogenic behaviours.

114. Mr Brand assessed the offender at a T1/Medium risk of reoffending and assessed the offender as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month.

Exhibit 2

115. Dr Kerri Eagle, forensic psychiatrist, reported on 6 September 2018. I note that this report is over one year old. Dr Eagle assessed the offender for approximately an hour. At the date of the report, the offender said that she was in receipt of youth allowance and was unemployed. The offender described her mood as changeable. She said she snapped when she was angry. She had trouble sleeping. She had lost weight over the last 12 months.

116. The offender told Dr Eagle that she smoked cannabis when she needs a release. She said she had used less methamphetamines since accessing some community support. She described passive suicidal thoughts. Apparently a worker had recently taken an extension cord from her due to concern that she would harm herself. She has deliberately cut herself in the past. She described having anxiety attacks. She showed some insight by telling Dr Eagle that she needed rehabilitation.

117. In May 2017, after being released from custody after a six-month custodial term, she was living between her ex-partner’s (and co-offender’s family’s) home and her mother’s house. She was unemployed. She was smoking cannabis daily and injecting methamphetamines daily. She volunteered to Dr Eagle that she felt extremely sorry for the victim of the index offenses. The offender had never had contact with mental health services but had engaged in deliberate self-harm and had suicidal ideation.

118. The offender said her mother was a heroin user, displayed emotional instability and was a user of benzodiazepines and heroin. The offender started smoking cannabis at the age of 14 and smoked about 15 cones daily. She started using methamphetamines at 16 years of age and was injecting the substance. Her mother (Jodi Keane) gave Jasmine Keane her first injection needle. She began to use heroin with her co-offender Mr Ponting in about 2016, which she used separately to methamphetamines. She injected buprenorphine whilst in custody.

119. With respect to the subject incident, the offender told Dr Eagle that on that day she had taken four Xanax tablets and smoked cannabis, and had no memory of the incident.

120. The offender was born in Sutherland, and was raised by her maternal grandparents. She reported that she was ‘born on Methadone’ due to her mother’s addiction. When living with her mother, she reported being bashed by her mother’s then-partner, for which she was hospitalised. The offender struggled at school where she had speech problems and was bullied. Ultimately, she returned to live with her mother in year 10 when her mother pulled knives on her and gave her black eyes. She entered into a domestic relationship with her co-offender Luke Ponting in about 2015, but there was domestic violence in the relationship. She experienced homelessness from time to time.

121. Ms Jasmine Keane’s case worker Kalira confirmed that she was now supported by the Oasis Youth Support Network, that the offender has displayed improved management of her emotions, that she was responding well to the supportive environment of Oasis accommodation and that her maternal grandparents were supportive.

122. Dr Eagle was of the view that the offender demonstrated limited insight into her emotional and substance use difficulties (in September 2018), and diagnosed a complex PTSD which developed in response to the prolonged, repeated experience of interpersonal trauma. Dr Eagle notes that as a result of the offender’s dysfunctional and traumatic childhood (which persisted into adulthood), the offender has spent time being homeless, living in refuges and that she exhibits difficulties maintaining stable relationships with partners and family. Further, she is pre-occupied with her mother as a result of the mother’s rejection and abandonment of her over her lifetime. Dr Eagle also diagnoses a Severe Substance Use Disorder involving the use of methamphetamines and cannabis. Dr Eagle believes that the offender displays features of a borderline personality structure and notes that there is significant overlap between borderline personality disorder and PTSD. She is of the opinion that the offender’s psychological difficulties can be effectively addressed with expeditious mental health intervention.

123. Dr Eagle observes that the offender appears genuinely motivated to engage in a treatment plan, although she has limited emotional control and awareness of her treatment needs. Dr Eagle provides a six point treatment plan.

124. Ms Libby Kerin, SOS Case Manager at the Salvation Army – Oasis Youth Support Network, reported on 6 September 2019. She notes that the offender first had contact with her service in April 2018, when she was assisted with crisis case management and was given accommodation at Oasis Refuge. In November 2018, the offender was referred to Oasis SOS Case Management Team.

125. At the date of Ms Kerin’s report, the offender was engaging in structured case management, and the offender was reported to have maintained all scheduled appointments focusing on Alcohol and Other Drug Misuse and assistance with referrals for Transitional Accommodation and to mental health professionals. She engages in counselling with Ms Belle Gannon, who is the Oasis Youth Support Network onsite psychologist.

126. Ms Kerin notes that the offender’s extensive history of disadvantage, including unstable living environments, family violence and exposure to parental substance abuse. After leaving her grandparents’ home, she was placed into the care of the Minister.

127. The offender has recently been engaged with WAYS youth training at the Bondi Junction campus in order to further her education and employment opportunities. She has completed a Certificate IV in Community Services (April 2019) and a Certificate III in Business. She has successfully gained a Statement of Completion in Traffic Control. (These certificates are before the court.) Ms Kerin also reports that Ms Jasmine Keane has recently secured accommodation with My Foundations Youth Housing Ltd, transitional student housing at The Addison Project in Kensington. Further, she has disassociated herself from her past peer groups.

128. In Ms Kerin’s opinion, the offender has articulated her contrition and has a mature insight into the matters that bring her before the court. She says that she has full confidence that Ms Jasmine Keane can engage in the broader community and make positive contributions to society. She says that Salvation Army SOS Case Management assures the court that they are committed to Ms Jasmine Keane’s long term support and case management.

129. Ms Michelle Hoomans, RTO Manager of WAYS Youth Training provided a letter dated 20 August 2019. She notes that the offender has been enrolled in full-time accredited vocational education and training courses with WAYS since 12 February 2019. Ms Hoomans notes that the Certificate IV in Community Services covers 350 course contact hours, ran for 11 weeks and included 25 hours face-to-face training. Her current business course has similar requirements.

130. Ms Hoomans says that in her opinion Ms Jasmine Keane is a highly engaged and motivated student who shows determination and resilience, often in the face of personal challenges. In her view, Ms Jasmine Keane demonstrates good employability skills and an aptitude for employment in the community services sector in the future.

131. Ms Susan Hart, senior caseworker and Ms Lisa Walters, manager casework, both of FACS, reported on 31 May 2019. They note that the offender was under the care of the Minister from twelve years of age after receiving numerous risk of harm reports due to her mother’s drug use and inability to managing the offender’s challenging behaviour. After living with her grandparents for several years, the offender was placed into residential care from age fifteen. During this time, she would abscond from placement, was diagnosed with depression and received medication and therapy to address her mental health issues. When the offender turned eighteen, she went to live with her mother Jodi Keane and became largely uncontactable, as she experienced intermittent homelessness. In December 2018, Jasmine Keane contacted FACS’s office seeking aftercare support. A financial plan was created to reflect the changes in the offender’s circumstances. Since January 2019, the offender acquired accommodation at a refuge which provided her with semi-independent accommodation. The next step would be for the offender to rent premises in the private market. The authors note that the offender receives the disability support pension and is attending TAFE. In their opinion, Jasmine Keane remains committed to improving her circumstances, maintaining permanent accommodation, and looking for part-time work until she completes her studies. They say that they will continue to provide aftercare support to the offender until she reaches twenty-five years of age.

132. Ms Jasmine Keane provided a letter of apology dated 6 September 2019. In that document, she apologises for her bad behaviour toward the victim, and expresses guilt and remorse for putting the victim in arrears with respect to funds and putting her in a dangerous and unsafe situation. The offender states that she accepts responsibility for her actions and has insight into the victim feeling upset, hurt, unsafe and fearful. She says that she would like to be given the opportunity to repay the $470 to the victim.

133. Further, the offender says that at the time of the offence she was under the influence of methampetamines and she acknowledges that she would have come across as very unpredictable and scary to the victim, which she regrets.

134. Ms Jasmine Keane says that she is now 21 years of age and living at the Addison Project in Kensington in a youth transitional service. She notes that she has not spoken to her mother since the time of the offence.

135. The offender states that she has tried very hard to change her life since her arrest. She has not used methamphetamines since 28 December 2018, which I find is not an insignificant period of abstinence. She notes her current studies and says that she volunteers with the Salvation Army in Surry Hills. She says that she is passionate about working in a youth refuge so that she can help other young people who are going through hard times. She states that she has severe asthma, diabetes and a fatty liver. She has engaged with counsellors since November 2018, sometimes three times per week. She is a lot happier since seeking counselling. Ms Keane says that she has found stability in life, that she has recently completed some studies (others of which are ongoing), that she plans to seek employment so that she can enter the private rental market, and that she has been granted funding to have NRMA driving lessons so that she can achieve greater independence.

136. The offender notes that she saw a drug and alcohol counsellor twice a week during the period November 2018 to April 2019, that she engaged with Karrikin Youth Mental Health from February 2019 to May 2019, that she had six one-on-one art therapy sessions in June and July 2019, that she has weekly and ongoing trauma-informed psychology sessions and that she is undertaking the EQUIPS course with Community Corrections twice weekly for two hours to address aggression and regulating her emotions.

115. The offender says that she has brought shame and embarrassment on her grandparents and extended family and is doing everything that she can to rehabilitate herself and change her life.

Crown Submissions

138. Mr Gabrial submitted that as the offender pleaded guilty on the second day of trial, she is entitled to a 10% discount.

139. As to objective seriousness, Mr Gabrial submitted that the objective seriousness of the robbery offence falls below the mid-range, and is at the low end for the offence of dishonestly obtain property by deception, in particular because of the amount that was taken.

140. Mr Gabrial noted that there are aggravating features in the sense that Ms Jasmine Keane was on two section 9 bonds at the time of the index offence, which was conceded by Mr Johnson on behalf of the offender. He also said that the offender has a history of primarily violence-related offences that disentitles the offender to leniency.

141. The Crown submitted that in relation to totality, that there should be partial accumulation to reflect the criminality of both offences. Further he submitted that both general and personal deterrence are applicable and in all the circumstances the section 5 threshold has been crossed. The Crown conceded that I would not be in error if I imposed an ICO.

142. As to parity (with the offender Ms Jodi Keane), the Crown submitted that there are differences between the offenders which would give rise to a justifiable sense of grievance in the sense that their criminal histories are different and their ages are different. He submitted that the element of violence in the offending of Ms Jodi Keane escalated her criminality vis-à-vis her and her daughter.

Offender’s Submissions

143. Mr Johnson, on behalf of the offender, said that there is no issue as to parity between Jodi and Jasmine Keane, because the principle applies only when offenders are being sentenced for the same offence, and here the robberies were discrete and different. The only parity that exists, in his submission, is between Ms Jasmine Keane and Mr Ponting who are being sentenced for the same offence. I accept this submission.

144. As to objective seriousness, Mr Johnson submitted that with respect to the robbery offence, it was at the lowest end of the range. He said that if one looks at what she actually did – she handed the victim her (the victim’s) phone and told her to put in her PIN number. There was no violence, and no threat of violence, although Mr Johnson conceded that the victim may have apprehended violence. He submitted that it was hard to conceive of a robbery at a lower end of objective seriousness. As to the second offence, Mr Johnson said it too was at the lower end, if for no other reason than the fact the amount taken was $470 in circumstances where the charge itself has no limit in value.

145. As to the obtaining a benefit by deception, Mr Johnson says that there is concurrency between it and the robbery in the sense that the criminality of the two offences overlap to a large degree.

146. As to whether or not the section 5 threshold has been crossed, Mr Johnson conceded that the aggravating feature in Ms Jasmine Keane’s case is that she was on conditional liberty at the time of the offence. As to accumulation, he submitted that they would have to be totally concurrent if I were to decide that the threshold was not passed and I imposed a CCO. If I found any accumulation I could not impose a CCO.

147. With respect to the timing of the plea, Mr Johnson fairly acknowledged that the timing of the plea would determine the discount, but he said that in all of the circumstances, I could allow 15%.

148. So far as remorse and rehabilitation are concerned, Mr Johnson submitted that the evidence suggested that his client had demonstrated significant insight with respect to the impact of her offending upon the victim and in particular the suffering (both fear and financial) visited upon the victim by her actions. Whilst he acknowledged that none of those assertions had been tested in cross-examination, there had been a continuity to people she had spoken to, ie Dr Eagle, Community Corrections and her own letter to the court. He also told me that the offender had suffered significant disadvantage throughout her life, and had to her credit since being charged for the offences before the court achieved a great deal of stability and had turned her life around. He said that she was very motivated and willing to continue with supervision and continuing interventions. With respect to her drug usage, the offender has been abstinent from serious drugs for over nine months, which Mr Johnson says is an achievement in the context of her serious abuse of substances over her short life.

149. Mr Johnson suggested that conditions which might attach to an ICO might be continuing her association with the Salvation Army Oasis Youth Support Service, that she continue her employment training, and that she remain abstinent from prohibited drugs. Mr Gabrial urged a community service component.

Consideration

Section 21A Factors

Plea of guilty

150. I find that as the plea of guilty was entered on the second day of trial, an appropriate discount is 10%.

Objective Seriousness

151. As to the objective seriousness of the robbery, I find that it is in the low range taking into account the agreed facts. With respect to the objective seriousness of the charge of obtain benefit by deception, I find that it too is in the low range, which is agreed by both parties. I take into account the maximum penalties for the offences when coming to those conclusions.

Antecedents

152. I find that the offender’s prior criminal history, which consists of two assaults whilst an adult, generally disentitles her to leniency.

Remorse

153. I accept that the offender has expressed genuine remorse for her offending, consistently over the time since her arrest. In particular, she has shown insight into how her actions affected the victim.

Report of Dr Eagle and Disadvantage

154. The report of Dr Eagle, and the other supporting documentation show that the offender has suffered significant disadvantage throughout her short life – including domestic violence, homelessness and drug addiction – which impact her moral culpability for the offences. In saying that, I do not say that it is exculpatory, but rather it mitigates the sentence which would otherwise be appropriate.

Local Court Jurisdiction

155. I accept the Crown submission that at the time the charges were laid, the robbery had to be dealt with in the District Court (although that situation has now changed).

Prospects of Rehabilitation

156. I find that the offender has made significant and commendable efforts toward her eventual rehabilitation. She is to be commended for, and encouraged in her efforts. I find that she has better than reasonable prospects of achieving a complete rehabilitation, particularly as she is of an age where rehabilitation assumes greater importance when determining her sentence.

Specific Deterrence

157. As I have found that the offender has not yet been totally rehabilitated, personal deterrence applies. This is particularly so in light of her prior criminal history.

General Deterrence and Denunciation

158. The community expects that the principles of general deterrence and denunciation will apply, so that others in the community are aware of the seriousness of those offences and to denounce the abhorrent nature of the offending. The Offender’s sentence must reflect these principles.

Totality

159. As I have said, a court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [3]

     3. Mill v The Queen (1988) 166 CLR 59 at [63].

160. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.

161. The question for me is whether or not the offence of robbery can be encompassed in the sentence for obtain benefit by deception. As to the offence of robbery, I find that whilst it is discrete from the other offence, it is closely related to it. As will become apparent, I have determined that there should be some little accumulation between the offences.

Threshold

162. As to section 5 of the Sentencing Act, having considered all the possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate due to the seriousness of the offending and the aggravating feature being the breach of the bonds.

Special Circumstances

163. There is no doubt that the offender will require extensive supervision on her release, and I make a finding of special circumstances based on her need for monitoring, therapy, counselling and drug rehabilitation. I also note her youth.

sentence

164. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act that I referred to earlier in this sentence judgment.

165. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

166. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalties, which are imprisonment for 14 years for the robbery and 10 years for the obtain benefit by deception, and the fact that there are no standard non parole period for either offence.

167. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 1 year and 6 months, or 18 months. This is the effective sentence after applying a 10% discount for the offender’s early guilty plea. Had this discount not been applicable, the aggregate sentence would have been imprisonment for 1 year and 8 months. I take into account that the offender has served two days in custody.

168. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For the offence comprising count 1 on the indictment, namely robbery contrary to s94(a) of the Crimes Act, I would have imposed an indicative sentence of imprisonment for 12 months. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 10 months and 24 days.

2. For the offence comprising count 2 on the indictment, namely obtain benefit by deception contrary to s192E(1) of the Crimes Act, I would have imposed a sentence of imprisonment for 9 months, 15 days. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 8 months, and 16 days.

169. The final matter I must consider is whether it is appropriate to impose an alternative to full-time imprisonment – namely, in these circumstances, an ICO.

170. As I have said, community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act, although I have had regard to the recent decisions of R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201). Having regard to the subjective case of the offender, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol (s66(2) of the Sentencing Act). In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of the Sentencing Act).

Orders

171. Ms Jasmine Keane, please stand.

172. You are convicted of the following offences:

Robbery contrary to section 94(a) of the Crimes Act 1900 (NSW); and

Obtain benefit by deception, contrary to section 192E(1) of the Crimes Act 1900 (NSW).

173. You are sentenced to a term of imprisonment of 18 months.

174. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

175. The sentence will commence today, 11 October 2019 and will expire on 10 April 2021.

176. You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from 11 October 2019. This means that you must report to the City Community Corrections Office by 18 October 2019.

177. The standard conditions of the order apply, namely:

You must not commit any offence; and

You must submit to supervision by a Community Corrections Officer.

178. The following additional conditions apply:

A condition requiring you to enter into a Mental Health Plan with your general practitioner within 30 days so that you receive psychological therapy for 10 sessions funded by Medicare.

A condition that you accept the services and directions of Salvation Army SOS Case Management for 18 months.

An abstention condition requiring abstention from drugs, other than those prescribed by a medical practitioner.

179. I order you to undertake community service work of 100 hours.

180. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

181. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

182. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

LUKE PONTING

183. Luke Ponting, born in 1993, is before the court for sentence for obtain benefit by deception, pursuant to section 192E(1)(a) of the Crimes Act 1900, the maximum penalty for which is 10 years imprisonment and for which there is no standard non-parole period. The offender was committed for trial on 16 August 2018, and he entered pleas of guilty on the second day of the trial to these charges on 4 June 2019. I am informed by counsel that the offender pleaded guilty to these charges upon presentation of a fresh Indictment. I note that the offender committed the offences whilst on two section 9 bonds received at Sutherland Local Court on 10 May 2017. The offender served 1 day in custody for this offence.

184. Tendered before me are two exhibits. The first is Exhibit 1 tendered by the Crown. It includes:

1. A copy of the Indictment to which the offender pleaded guilty on 4 June 2019;

2. A Statement of Agreed Facts (see above);

3. A section 35A Certificate;

4. Six photographs;

5. The offender’s criminal history;

6. The offender’s custodial history;

7. A Sentence Assessment Report (SAR) prepared by Ruth Botbol dated 27 August 2019;

8. Remarks on Sentence by his Honour Magistrate Williams dated 31 January 2019; and

9. A bundle of papers relating to the offender’s breach of the two section 9 bonds.

185. Exhibit 2 is a bundle tendered by Mr Skinner on behalf of the offender. It consists of;

1. An undated, but apparently recent letter from the offender’s partner Jazmine Ahmad;

2. A letter from Mr Con Kalls, CEO of MPS Global Security Group, dated 4 September 2019;

3. A letter from Dr K Koutsoullis of Riverwood Medical, dated 4 September 2019; and

4. A letter from Nurse Unit Manager Djordjina Trninic of the Drug Health Service at Bankstown Hospital, dated 4 September 2019.

Exhibit 1

186. I note that the offender has a lengthy criminal history which includes dishonesty offences. I note too that at the time of the offence to which he has pleaded guilty, he was on two section 9 bonds for the offences of resist and hinder police and never licenced person drive vehicle, although they arose out of the same facts and circumstances.

187. Ms Botbol, who prepared the SAR, says that the offender lives in Bankstown and has a close and supportive relationship with his mother and partner, and he identified his children as a motivating factor to remain offence free. At the time of the report, Mr Ponting was unemployed, although this is no longer the case, to which see below. She notes that the offender has an extensive adult history with Community Corrections dating back to 2012, which the offender attributed to financial difficulties, negative peer choices and drug use.

188. The offender reported to Ms Botbol that he accepts responsibility for his actions and stated to her that his offending was inappropriate. He had made efforts to address his offending behaviour by self-referring to psychological counselling. He no longer associates with negative peer groups since moving to Bankstown and has surrounded himself with pro-social peers and engages in pro-social activities.

189. Mr Ponting was able to articulate that he ought not to have accepted the victim’s money, and showed insight into how the offence impacted the victim. He expressed a willingness to continue to engage with alcohol and other drug services and mental health services in the community. He expressed a willingness to undertake community service.

190. Ms Botbol notes that the offender’s response to previous periods of supervision were unsatisfactory, but says that during the current period of supervision, Mr Ponting has engaged well with interventions and has demonstrated a willingness to continue his engagement. He is currently attending a twenty week CSNSW run behavioural change group, EQUIPS Foundation, and program facilitators describe the offender’s level of participation as high.

191. Mr Ponting was assessed at a medium risk of re-offending according to the level of service inventory – revised.

192. Mr Botbol provides a supervision plan, and notes that that offender is suitable to undertake community service work, and that Community Corrections can provide the equivalent of up to 14 hours of work per month.

Exhibit 2

193. Ms Ahmad, who is the offender’s partner, provided an undated letter to the court. In that document, she says that they have an eight month old baby and are in a long-term relationship. She says that the offender is a new and improved person who has stayed clean, who has attended his EQUIPS course which is nearly complete, and that he has been attending to being a father and re-integrating into the community.

194. Ms Ahmad reports that the offender has recently obtained employment as an apprentice electrician and will enrol to obtain qualifications in that trade in 2020, with a view to having his own business or becoming a subcontractor. The family has moved suburbs so that Mr Ponting no longer associates with his old friends. She says that he has repaired relationships in his own family, and has become family-oriented which has assisted him to strive for a better and positive future. Ms Ahmad observes that since the birth of their child, the offender has matured. The offender has told her that he knows that he has done wrong and made many mistakes, is sincerely remorseful and is making all efforts to turn his life around, and be a better person and father.

195. Mr Con Kalls, the CEO of MPS Global Security Group, provided a reference for the offender. He is aware of the matter before the court. Mr Kalls says that he has known the offender for three years, and that he has recently employed him, on a full-time basis, to work as his assistant. His duties include the installation of cable and the general set-up of installations.

196. Mr Kalls observes that the offender has matured considerably since his release from gaol, that he shows up for work earlier than required, that he works hard, that he is polite, respectful and enthusiastic and that he is willing to work at any task to which he has been assigned. He says that the offender has become a family person who is focused on providing for his young, new family.

193. Dr Koutsoullis of Riverwood Medical provided a short report dated 4 September 2019. In that document, he says that ‘This is to certify that Mr Luke Ponting is suffering from chronic anxiety disorder and is on medication [mirtazapine]. He also has a mental health plan and has been referred to Ms Mingga Anggawan, psychologist.’

194. A letter from Djordjina Trninic, Nurse Unit Manager at the Drug Health Services of the South Western Sydney Local Health District dated 4 September 2019, says that Mr Ponting has been receiving opiate dependence treatment from that service, and that his attendance for dosing and medical/case management appointments has always been regular. Unsupervised urine results for the August 2019 detected only prescription medication. He is currently dosing (Methadone) at Community Pharmacy at Discount Drug Store at Revesby. Ms Trninic says that due to the offender’s stability in treatment, he will continue to see his case manager and prescriber at the hospital.

Crown Submissions

199. Mr Gabrial submitted that the offender was entitled to a discount of 10% for his plea of guilty, as it was entered in the second day of trial. He said that the offender’s criminal history disentitled him to leniency, and submitted that the objective seriousness of the offence falls at the low range. When pressed, he appropriately conceded that it was lower than that of Ms Jasmine Keane.

200. Mr Gabrial submitted that so far as parity is concerned, although Mr Ponting’s criminal history was significantly greater than Ms Jasmine Keane but because their involvement in the offence was different, there would not be a justifiable sense of grievance if the sentences were dissimilar, ie that Ms Jasmine Keane’s sentence ought to be more severe. A counterweight to that proposition is that the offence was committed whilst he was on two section 9 bonds, which aggravates the offending. He suggested that the disparity could be reflected by the duration of any order or sentence imposed.

201. The Crown submitted that the section 5 threshold had been crossed because of the breach of the bonds. In his submission, because of the offender’s criminal history there was a need for specific deterrence, and that because of the nature of the offence there was a need for general deterrence.

202. As to any conditions that might be imposed, Mr Gabrial pointed to the SAR. He appropriately conceded that there was evidence of remorse, and accepted that the offender’s intention to repay the $470 (which I accept) ought to be taken into account as evidence proved on the balance of probabilities, in relation to mitigation.

Offender’s Submissions

203. Mr Skinner, on behalf of the offender, correctly identified the two issues between him and the Crown as parity and the section 5 threshold. As to the latter, Mr Skinner submitted that it had not been passed even though the bonds had been breached. He conceded that they were aggravating, but noted that they arose from the same court attendance notice. He said that his client’s contribution to the offending was comparatively minimal, that he did not take part in any act of violence or intimidation, and that his involvement was limited to providing support and encouragement by his mere presence and was opportunistic rather than pre-meditated. He noted that the offender had expressed sincere regret in the SAR.

204. Mr Skinner submitted that the court should impose a CCO because the subjective material before me indicates that it would allow him to continue with his recent employment and his contribution to his family and the community and that it would adequately reflect the steps he has taken to prevent recidivism and reflect the genuine steps he has taken towards rehabilitation. He suggested that a community service condition might be imposed. It would also reflect the disparity between his client and Jasmine Keane.

205. Mr Skinner noted the several important steps the offender has taken to change his life, which include moving out of the Sutherland area and ceasing his previous undesirable associations.

206. Mr Skinner submitted that the discount for the offender’s plea should be in the order of 10% to 15%. As the offender’s criminal history, he noted that it was consistent with someone who had a long term substance abuse history, and that I would be satisfied that he has taken positive steps to break that cycle, and that he has now been abstinent for one and a half years.

Consideration

S21A Factors

Plea of guilty

207. I find that the plea of guilty entered on the second day of trial, an appropriate discount is 10%.

Objective Seriousness

208. As to objective seriousness, I find that it is at the very low range taking into account the agreed facts, and the Crown’s concession that the objective seriousness in this matter is lower than that of his co-offender Jasmine Keane.

Antecedents

209. I find that Mr Ponting’s prior criminal history disentitles him to leniency.

Remorse and Prospects of Rehabilitation

210. I note that Mr Skinner attempted to tender a solicitor’s trust account cheque in the amount of $470. I refused the tender, because it was agreed between the Crown and the offender, on the offender’s solicitor’s undertaking, that restitution would be made either to the victim or the victim’s bank. I accept that the offender has expressed genuine remorse.

211. As to rehabilitation, I note that the offender has been abstinent since he was taken into custody, or one and a half years. This is very much to his credit. I find that he is well on his way to complete rehabilitation.

Specific Deterrence

212. I find that whilst there ought to be some allowance for personal deterrence, the offender’s behaviour and rehabilitation since the offending demonstrates that there is only a small role for it to play, notwithstanding his prior criminal history.

General Deterrence and Denunciation

213. There must be an element of general deterrence and denunciation, even allowing for the offender’s subordinate involvement in the offence.

Parity

214. The Crown says that the principle of parity applies in the instance and requires that there should not be such a disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. In this particular case there is an acknowledged disparity between the criminality of each offender. The offender’s role in the offending was considerably less than Ms Jasmine Keane.

215. The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different.

216. Taking into account the relativities and differences between the offending of Mr Ponting and his co-offender Ms Keane, and in particular the significantly lesser involvement of Mr Ponting and the objective seriousness which is lower in the present case, I am satisfied that the sentence I will impose is justified in light of the differences in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge.

SENTENCE

Sentencing Approach

217. The purposes of sentencing are expressed in s3A of the Sentencing Act. They include, ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

218. In making the orders I will make, I have taken into account the various purposes of sentencing under section 3A of the Sentencing Act, and I have taken into account the aggravating and mitigation factors in section 21A. I have had regard to section 5 of that Act, and I find that I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate, notwithstanding the breach of the section 9 bonds. I find that a CCO is appropriate in all of the circumstances. They include:

219. (a) The offender pleaded guilty on the second day the matter was listed for of trial in the District Court;

220. (b) There is a strong case in favour of the offender’s prospects of rehabilitation. I am satisfied that the offender is unlikely to reoffend; and

221. (c) The offender has demonstrated insight into his offending behaviour. I am satisfied that the offender appreciates the seriousness of his offending and that he is genuinely remorseful for his offending behaviour.

Orders

222. Mr Ponting, please stand.

223. I make the following orders:

1. You are convicted of the charge of obtaining benefit by deception contrary to section 192E(1) of the Crimes Act.

2. I make a Community Correction Order with respect to Mr Ponting.

3. The order is to date from 11 October 2019 and last for 18 months, expiring on 10 April 2021.

4. I note your solicitor’s undertaking that the amount of $470 will be repaid as restitution either to the victim or the victim’s bank.

5. The following conditions apply:

1. The appellant must not commit any further or other offence;

2. You must abstain from drugs other than those prescribed by a medical practitioner;

3. You must attend your general practitioner within 30 days and enter into a Mental Health Plan so that you can attend a psychologist for 10 sessions of therapy funded by Medicare; and

4. You are to undertake 100 hours of community service work, and you are to report to the Bankstown Community Corrections office within 7 days of the date of these orders or by 18 October 2019.

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Endnotes

Decision last updated: 17 December 2019