R v Kemp; R v Duncan

[2018] NSWDC 471

District Court

New South Wales

Medium Neutral Citation:	R v Kemp; R v Duncan [2018] NSWDC 471
Hearing dates:	29 – 30 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Kemp: You are convicted. I sentence you to imprisonment. I set a non-parole period of one year and eleven months commencing on 24 August 2018 and expiring on 23 July 2020. I impose a further period of imprisonment of one year and ten months to commence upon the expiration of the non-parole period and expiring on 23 May 2022. The total sentence is therefore three years and nine months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matters on the Form 1. I direct that the exhibit 5, the report of Dr Sathish Dayalan, be forwarded by my Associate to the Manager of the Wellington Correctional Centre.  Duncan: You are convicted. I sentence you to imprisonment. I set a non-parole period of one year and eleven months commencing on 27 September 2018 and expiring on 26 August 2020. I impose a further period of imprisonment of one year and ten months to commence upon the expiration of the non-parole period and expiring on 26 June 2022. The total sentence is therefore three years and nine months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matters on the Form 1.
Catchwords:	CRIME – SENTENCE – Armed Robbery in Company – Co-offenders – Joint Criminal Enterprise – Form 1 matters for each offender if other offences on the same day as principal offence. Each offender at conditional liberty at the time. Each offender had social deprivation and disadvantage. Each had a history of AOD abuse. Each had prior criminal convictions. Kemp ought to have had a longer sentence from Duncan, but Kemp’s persona circumstances called for greater leniency – PARITY – After 25% discount, sentence of 3 years 9 months NPP 1 year 11 months
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Category:	Sentence
Parties:	Regina (Crown) Harley Kevin Kemp (Offender) Ji Wanygo Duncan (Offender)
Representation:	Counsel: Mr Harper (Crown) Mr E Ozen SC (Offender KEMP) Mr S Tupou (Offender DUNCAN)   Solicitors: Solicitors for the DPP (Crown) Legal Aid NSW (Offender KEMP) Pinnacle Lawyers (Offender DUNCAN)
File Number(s):	2017/00357563 (KEMP); 2017/00367820 (DUNCAN)
Publication restriction:	Nil

sentence

1. HIS HONOUR: Each of Harley Kevin Kemp and Ji Wanygo Duncan stands for sentence before me this morning as a consequence of pleading guilty to a charge that on 25 November 2017 at Chippendale in this State, he did rob Tongliang Liu of certain property, namely $90 in cash, the property of Tongliang Liu while being armed with an offensive instrument, namely a broken glass bottle, whilst in the company of each other. That is an offence contrary to s 97(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period. Each of the offenders ask me to take into account on a Form 1, a number of other offences.

2. One of the many burdens making life for a judge of this Court difficult is the provision of “agreed facts” which contain matter extraneous to the sentencing process. This commonly occurs in Commonwealth matters. However in this case it occurs in a State matter. The agreed facts are replete with the evidence which was used to establish the facts. The Court is concerned not with the evidence but the facts. Provision of the evidentiary trail is irrelevant to the sentencing exercise.

FACTS

3. At about 8.45am on the 25 November 2017 the offenders entered Redfern Police Station and waited briefly at a counter in order to enable Kemp to report on bail on an unrelated matter. When that was completed the pair of offenders walked across the road to the Redfern Railway Station where they remained for a number of minutes. They then left the railway station and walked towards Sydney University. After about 650 metres they arrived at the intersection of Calder Road and Shepherd Street in Darlington.

4. At about 9.05am, Mr Ali Entezari, who was then about 30 years old was driving along Calder Road and stopped his vehicle at the intersection in order to turn right into Shepherd Street. Suddenly the front passenger side door of the car was opened. Mr Entezari noticed Duncan standing outside the front passenger door and that Kemp was standing nearby. Duncan entered Mr Entezari’s vehicle and sat in the front passenger seat. Mr Entezari told him to get out of the car. When Duncan refused to do that he asked Mr Entezari whether he was an Uber driver. Mr Entezari said that he was not and Mr Duncan then left the car. Duncan closed the front passenger door and spat on to the outside of the passenger side window. At the same time Mr Entezari heard noises at the back of the vehicle which he thought was a male yelling and he heard noises like banging which appeared to be somebody hitting the bumper bar of the vehicle. Fortunately no damage was done to Mr Entezari’s vehicle. Duncan asks me to take this matter into account on the Form 1 entering a vehicle without the consent of its owner.

5. The pair of offenders then continued to walk along Shepherd Street in the direction of the Broadway Shopping Centre. As they approached 79 Shepherd Street, which is about 500 metres away from the intersection of that street and Calder Road, they came upon Mr Tongliang Liu who was then 29 years old. Two calls were made to Mr Liu. At the time of the second call he was asked by one of the offender’s as to whether he knew where Pyrmont was. Mr Liu turned around to speak to the offenders who both rushed towards him. One of the offenders stood directly in front of Mr Liu grabbing hold of the front of his shirt with the offender’s right hand. The offender held in his left hand a short broken wine bottle top. The broken glass was held underneath Mr Liu’s chin less than 10 centimetres away from his flesh. The offender holding the glass said to Mr Liu “Give me your cash and your phone.” Mr Liu smelt alcohol on the breath of the offender who was holding the broken glass bottle top. Mr Liu reached for his wallet which was in one of the pockets of his trousers. He told the offender that he would give him all his cash. The other offender was standing on one side of Mr Liu and he said to Mr Liu, “Quickly”. Mr Liu told the offenders that they did not need his telephone but that he would give them all his cash. He removed $90 in bank notes from his wallet and handed them to the offender who was standing beside him. The offenders then told Mr Liu to go to the other side of the street, which he did. As he was crossing the road away from them, the two offenders ran off down Shepherd Street continuing in the direction of the Broadway Shopping Centre. That is the offence to which each of the offenders has pleaded guilty. It is robbery whilst armed with an offensive weapon and whilst they were in the company of each other.

6. A short time later, and further along Shepherd Street Mr Huan Fu, who was then 26 years old, was walking in the opposite direction along Shepherd Street towards his work place. One of the current offenders took hold of the front neck area of Mr Fu’s t-shirt whilst the other offender stood behind the offender who had taken hold of Mr Fu’s t-shirt. One of the two offenders said, “Give us cash” and Mr Fu said “Okay.” Whilst one of the offenders still had hold of Mr Fu’s t-shirt, the other offender said “Don’t be scared, we only need cash!” Mr Fu offered to give them his cash and the offender holding him let go of him. Mr Fu removed the backpack that he was wearing and opened the zip of it and started looking through it in order to find his wallet. It is undoubted that Mr Fu was extremely scared, afraid that he was about to be physically hurt if he did not hand over his cash and the contents of his wallet. However, before he did so, Kemp and Duncan, the two offenders ran away along Shepherd Street, again in the direction of the Broadway Shopping Centre. This incident occurred about 9.18am or shortly before then. This is an offence of demanding property by force in company with intent to steal which each of the offenders asks me to take into account on the Form 1.

7. Later on the same day at about 12.45pm Mr Ausama Mawas, who was then 33 years old, was working as a security guard at a Housing NSW unit block at 43 Morehead Street, Redfern. Part of his duties included patrolling the area outside the block of units. Three young males approached Mr Mawas, as he was at the front of the building. Two of those young men were the current offenders, Kemp and Duncan. At that time each of the two offenders was bare chested. Duncan said to Mr Mawas, “Go back to your country, you mother-fucker...if I see you outside, I am gonna come after you”. Mr Mawas fearing for his safety backed away behind several cars parked nearby. The two offenders moved in his direction. Kemp was holding a bottle of whiskey in one hand and Duncan had a small metallic object in one hand. Kemp threatened Mr Mawas with breaking the bottle across Mr Mawas’s head. They then moved further towards Mr Mawas who was again seeking to move away from them. Duncan then threw the small metallic object in his hand in the direction of Mr Mawas who fled into the building and took himself into the concierge office. The police arrived very shortly thereafter but all the three males had decamped. This is an offence of intimidation which each of the offenders asks me to take into account on the Form 1 applicable to him.

8. Kemp was arrested on the following day, Sunday 26 November 2017, after police had identified him on closed circuit television. He was taken to Redfern Police Station where he was placed into custody. He agreed to participate in an electronically recorded interview but did not admit his involvement in any of these offences.

9. On Wednesday 29 November 2017 police investigators attended the premises where Duncan was thought to be residing with his father. He was not present. The police told Mr Duncan’s father that they wished to speak with him. At 8.30am on 5 December 2017 Mr Duncan attended the Surry Hills Police Station and handed himself in. He admitted that he was handing himself in because he had committed a robbery. He was then arrested, cautioned and put into custody but declined to be interviewed. It is common ground that Mr Duncan did what he did on the advice of his mother.

SERIOUSNESS

10. The principal offence, robbery in company whilst armed with an offensive weapon, is an extremely serious offence. The victim was going about his lawful business, going to work on a Saturday morning, walking along a public street. He was confronted by the two offenders. A broken glass bottle top was held so close to his throat that he feared that he may have been physically injured. His money was demanded of him and he handed it over. The fear which Mr Liu had can be imagined by most members of our community. Our community is greatly disturbed when in broad daylight, in the inner city where many people are around, a person can be robbed in that fashion, in a very frightening way.

11. In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 the Court of Criminal Appeal published a guideline judgment for robbery. The guideline is said to apply to a case involving the following features: firstly, a young offender with no or little criminal history; secondly, a weapon like a knife capable of killing or inflicting serious injury; thirdly, a limited degree of planning; fourthly, limited if any actual violence but a real threat thereof; fifthly, the victim being in a vulnerable position such as a shopkeeper or taxi driver; sixthly, only a small amount of money or goods was taken; and , seventhly, a plea of guilty, the significance of which was limited by a strong Crown case. In the subsequent judgment relating to discounts to be provided for an early plea of guilty, it was pointed out that the guideline judgment in R v Henry applied to a late plea of guilty, rather than an earlier plea of guilty. The guideline laid down was a custodial sentence of between four and five years’ imprisonment.

12. In the current case each of the offenders was young. Each had a criminal history that could hardly be described as “little”. The broken top of a glass wine bottle was capable of cutting a throat, of killing or inflicting grievous injury. I accept that there was no degree of planning in this as I shall later point out. Each of the offenders was intoxicated and searching for money. The Crown has submitted that the pair of offenders was “apparently looking for trouble.” However, it is clear to me that they were clearly looking not for trouble, but for money, probably to buy more alcohol or perhaps drugs. The degree of planning is a question which goes to the significance of the offence. A well planned offence is much more serious than one which is spontaneous. There was in this case very little, if any, degree of planning. There was a limited amount of actual violence. One of the offenders took hold of the front of Mr Liu’s clothing and held the broken glass bottle top at his throat. There was a very real threat of further violence in holding the broken glass bottle top at the victim’s throat. The victim was hardly in the “vulnerable position” contemplated in the guideline judgment. A shopkeeper alone in his shop at night or a taxi driver alone in his vehicle at night. However, every member of the community is entitled to be able to walk the streets of his or her city, town or village in broad daylight without fearing for his or her personal safety.

13. In so far as the guideline judgment might be thought to be applicable to the current proceedings, the current proceedings in my view are a more grievous case of armed robbery in company. The guideline judgment also refers to a small amount taken. Here the amount taken was merely $90 in bank notes. Each of the offenders has pleaded guilty but the evidentiary chain outlined in the agreed facts indicates that the Crown case was a strong one. Whilst this offence is not one actually contemplated in the guideline judgment, there are such a number of similar facts involved that the Court must bear it in mind in sentencing these two offenders. After all, the maximum penalty for this offence is 20 years imprisonment, it is not five years imprisonment the top of the range in the guideline judgment.

14. The Court is also required to take into account the matters on the Form 1. They indicate the Court should consider imposing a heavier sentence than it might if the Form 1 matters are not taken into account. An aggravating factor in the case of each of the offenders is that the offence was committed whilst he was at conditional liberty. At the time Kemp was subject to two s 9 bonds, each imposed on the 8 June 2017. He was also on bail for three offences. Duncan was subject to a s 9 bond which was imposed on 24 April 2017 for a period of nine months. The commissions of an offence such as this whilst on conditional liberty is both at common law and under the Crimes (Sentencing Procedure) Act 1999 an aggravating factor, a matter which makes the offending worse.

PERSONAL CIRCUMSTANCES

15. I turn to consider personal circumstances. Can I preface this section of my remarks with this: that I have great sympathy for both Mr Kemp and for Mr Duncan. Both of them have not had the advantage of most members of our community in growing up in a stable loving and caring environment and being afforded a proper education. That having been said, the Court cannot use the personal circumstances of the offenders to in some way condone the offences which the offenders have committed.

KEMP

16. As far as Mr Kemp is concerned, there is a report from a case worker with the Department of Family and Community Services. It is extremely important. The substance of the report is this:

“Departmental records reflect that Harley’s early years were characterised by experiences of childhood neglect and transience. Records indicate that Harley and his brothers spent approximately six months in emergency foster care in 1997 when Harley was four years old, before returning to the care of their parents.

Harley entered care again in 1999, aged five. On this occasion Final Orders were made for Harley and his siblings, placing them under the Parental Responsibility of the Minister until they reached the age of 18 years. Between May 1999 and March 2000, Harley experienced four changes in foster care placements. Harley entered into a long term placement with his aunt Jodi in November 2000.

This early instability and experience of neglect may have impacted on Harley’s emotional development and his ability to form stable emotional attachments to his caregiver. Departmental records will reflect that in June 2007 it was assessed by Community Services as having high care needs, and his school attendance began to decline in 2007, until he officially ceased attending school in June 2008, aged 14.

Departmental records indicate that Harley continued to experience difficulties throughout his adolescence, and at some point in 2010 he returned to the home of his birth parents. The file notes from this time indicate that Harley’s drug and alcohol use escalated following his father experiencing a medical emergency related to his drug use in November 2010.”

17. Mr Kemp was examined by a forensic psychiatrist, Dr Dayalan on 24 October this year. The doctor took his history of Mr Kemp’s drug and alcohol use:

“Mr Kemp had started drinking alcohol from the age of 13 years. He had initially drunk only on the weekends. His use of alcohol had increased in his early twenties. He admitted to have been intoxicated on all occasions that he incurred criminal charges. His use of alcohol had adversely impacted on his relationship and employment. He admit to developing tolerance to the effects of alcohol and also having suffered from withdrawal symptoms.

He had started smoking cannabis at the age of 13 years and admitted to a pattern of daily use of cannabis in his teenage years. He stopped using cannabis in his late teens.

Mr Kemp had started using ‘ecstasy”’ …and Xanax on weekends following the separation from his partner. He denied having used amphetamines or heroin.”

18. Mr Kemp told the doctor that on Friday 24 November 2017 he had started drinking alcohol in the morning and had kept drinking and taking Xanax and MDA on the Friday and was under the influence of both alcohol and Xanax at the time he committed these offences.    The psychiatrist asked Mr Kemp to reflect on what he had done and the offender said this:

“It was bad. People, they don’t deserve that…no one deserves that. I should have done - I shouldn’t have done what I did.”

19. That shows that the offender has realised the effect of his offending behaviour, not only on the victim of the robbery of Mr Liu, but on the other victims of his offences, Mr Fu and Mr Mawas.

20. To flesh out a little more of the offender’s past, Mr Kemp told the psychiatrist that his mother suffered from schizophrenia and alcoholism and liver disease. He had left school in year 9. After school he had work in a pharmacy, and in the construction industry and telemarketing and as a barman, but his longest period of employment had been six months.

21. Mr Kemp has a criminal history which is very long. It commenced with offences at the age of 14 which included breaking and entering with intent to commit a serious indictable offence. At the age of 15 he committed affray, destroyed property, and intentionally threw an object at a vehicle causing a risk to the safety of the occupier of the vehicle. At the age of 16, he committed an assault occasion actual bodily harm, a common assault less than two weeks later, and was found in the following month, that is on the 1 February 2010, to possess a prescribed restricted substance, probably Xanax.

19. At the age of 19 shortly before his twentieth birthday he was found to be guilty of reckless wounding and assault occasioning actual bodily harm. In April 2016 he was in Queensland and committed some relatively minor offences in that State. On 9 April 2016 he committed a common assault which led eventually to two months imprisonment. On 29 October 2016 he destroyed or damaged property which again led to a custodial sentence but that was wholly concurrent with the custodial sentence for the common assault. On 22 July 2017 he committed an offence of stalking or intimidation with intent to cause fear of physical or mental harm. That essential is domestic violence offence which led to the offender’s imprisonment after his arrest for the current offences. On 30 September 2017 the offender committed a further common assault and destroyed or damaged property. As I have earlier indicated the offender was arrested on 26 November 2017 for this offence and has been in custody ever since. However, sentences imposed for earlier offences have kept the offender in custody until 24 August this year.

20. The psychiatrist who examined Mr Kemp on 24 October 2018 diagnosed an alcohol use disorder and a substance induced depressive disorder. In his report Dr Dayalan said this:

“Incarceration has resulted in forced abstinence from alcohol and secondary improvement in his depressive symptoms. Ongoing incarceration will probably limit his access to engaging in alcohol rehabilitation. He is currently motivated to engage in rehabilitation and he would benefit from being offered an opportunity to engage in rehabilitation. I note that he has done a program within the correction environment. Rehabilitation programs are likely to be more effective when he is in the community with easier access to alcohol.”

24. From what Dr Dayalan said upon his mental state examination of the offender it is clear that the offender has benefitted from his enforced abstinence from alcohol and drugs whilst in custody. For example, the doctor said this:

“Mr Kent presented as a young male with no overt evidence of self-neglect. He was polite and cooperative. He made good eye contact and a rapport was established. There was no evidence of agitation or irritability. His speech was of normal rate, volume and quantity.

His mood appeared to be euthymic. His affect was reactive. His responses to questions were logical and sequential and there was no disorder in his thought form. He denied any delusional beliefs or auditory hallucinations. He acknowledged that he had suffered from depressive and anxiety symptoms and alcohol use disorder. He did not believe that he was suffering from depression or anxiety at the time of assessment. He was willing to engage in rehabilitation for his alcohol abusive disorder.”

25. What that is describing is a pleasant, cooperative young man who is seeking to do the right thing, not the sort of man described in the facts of the current offending or in the criminal history which I have cited.

26. What I just said is corroborated by the offender’s aunt Jodi, in her letter, exhibit 6, she said this:

“I feel after my visit with Harley and his telephone conversations, that he has had a really big wake up call to Harley, as this has been the longest he has been away from his son, siblings, parents and myself.

Harley has used his time in custody to work to earn his own money to buy what he requires. He is currently working in the bakery at Wellington Correctional Centre. Due to the nature of his charges that he is embarrassed and feels horrible about.”

27. The offender’s custodial history confirms that he is currently employed as a sweeper with good work and performance reports. That there are no management issues and he has not misconducted himself in any way since he has been in custody. It is clear that he is working as a foreman at a bakery at Wellington gaol and that he is a sweeper, a trusted custodial position. Everything points to this offender as behaving very well and responsibly, and helping his own rehabilitation since he has been in custody.    I expect that that will continue. That is based on what I have read, rather than mere pious expectation.

28. The future for Mr Kemp will be bright, provided he stays away from drugs and alcohol when he is released into the community. In particular he must stay away from alcohol when released back into the community. He will clearly need assistance. Alcohol in our community is ubiquitous. It is readily available and part of popular culture. When released into the community Mr Kemp will need assistance from, for example, Community Corrections to ensure that he does not relapse to alcohol use. That is adverted to by the psychiatrist in a portion of his report that I have already read and in another portion Dr Dayalan says that the offender should attend a day program on alcohol rehabilitation when released into the community. Provided that he is supported on his release back into the community, and stays away from alcohol, the offender’s prospects of rehabilitation are good. I note however that Community Corrections believe that the offender is of a medium to high risk of re-offending, but they are aware that the offender must engage with AOD interventions when released back into the community. I would be a little more optimistic than Community Corrections about the offender’s future as far as re-offending is concerned.

29. Only obliquely have I referred to the fact that the offender has a child. He and the child’s mother are estranged. She was present in Court yesterday and sought to tell me something but I asked Mr Kemp’s solicitor to speak to her outside the Court in the event that she wished to give evidence. She could have been called by Mr Tupou. However, however I was told by Mr Tupou that she quit the building when he spoke to her outside. I do not know what she wished to tell me, nor does the offender. However the offender must realise that if he wishes to pay a significant part in his son’s future he needs to stay away from alcohol, commence to provide support to his son, and to prove himself to be a suitable role model for his son as his son grows to maturity.

30. Unlike Mr Duncan, Mr Kemp is not an Aboriginal Australian. However, he has had many of the difficulties that many members of the Aboriginal community face. He has had a background of deprivation and disadvantage which has led to his turning to alcohol and drugs at an age when he could hardly foresee what they might do to him and to his future. For that the community needs to give consideration to the offender and otherwise to moderate the severity of the sentence which ought be passed upon him for the offences with which I am not concerned.

DUNCAN

31. I turn now to consider the personal circumstances of Mr Duncan. At the time of the offence now in question, Mr Kemp was 24 years old. He is now 25. At the time of the offence now in question Mr Duncan was 20 years old and he has now achieved his twenty-first birthday. The offender’s mother has given evidence. The offender’s parents separated when the offender was about two years old. The offender had a fairly normal upbringing and education until he reached high school. His education level is probably not the important thing, his age would have been. He was then probably at the age of puberty, or a little advanced on that when most young men look for guidance from their fathers. That guidance appears to have been lacking and the offender lost his way.

32. He was originally in Casimir Catholic College at Marrickville but then was placed in the Newtown Performing Arts High School. I suspect that in each place the offender felt out of place and that led to his turning to a poor peer group and taking up alcohol and drugs. Like Kemp, Duncan was affected by both alcohol and Xanax at the time of the current offences. He has no memory of them whatever. It is to his credit that he took his mother’s advice and handed himself into the police and to his credit that he has pleaded guilty to offences that he cannot remember. After he was arrested he was in custody until 6 February 2018, a period of 64 days. During that brief period he was incarcerated firstly at Silverwater Prison then at Parklea Correctional Centre, and later at the Lithgow Correctional Centre. When granted bail he was required to seek counselling and assistance from case workers and he has done so.

33. The offender’s teenage years were spent sometimes living with his mother, his half siblings and his mother’s new partner, and sometimes living with his father. Living with his father has been problematical for the offender and the evidence before me indicates that his father may suffer from a psychiatric illness. It is clear from Mr Duncan’s own evidence that he has fought frequently with his father and it is clear from the evidence of the offender’s mother that the offender has spoken to her about his father’s mental problems and his father’s attempts at self-harm and the offender’s mother was most distressed when her son told her that he thought he may be heading the same way as his father.

34. Currently the offender is living with his mother and her current partner and his four half siblings. That is a supportive environment for him. He has now gotten on with his life, or to use the vernacular, “got his act together”. He is now registered for unemployment relief, he is seeking to find work and did find and perform work but that was what could be vaguely described as exploitative behaviour by the employer who was grossly underpaying the offender for 11 hours’ work each day. He has now a bank account, no doubt his unemployment relief is being paid into it, and he is seeking to obtain his own accommodation.

35. In evidence is a report from Mr Sam George of Weave Youth and Community Services which offers a program both pre custodial and post release for both Aboriginal and non Aboriginal men and women under the age of 30 in the city of Sydney Local Government Area. In that report Mr George said this:

“Mr Duncan first engaged with our program through the Walu Win Gundyari (Healthy Spirit) Cultural Health and Wellbeing Camp in Wollombi, New South Wales. The camp was run over three days and was facilitated as a partnership between Weave, Joe Williams from The NE Living and the Wakagetti Indigenous Corporation. Since then I have been providing case management to Mr Duncan, supporting him in paying of his fines through a Work Development Order, assisting him in obtaining his provisional driver’s licence, working with him to develop living skills and lodging a priority housing application.”

36. I am told and accept that Mr George attended Court yesterday and was available for cross-examination but that was not required by the Crown.

37. It is clear that the offender’s education was limited. He eventually sat for the school certificate whilst in juvenile detention. The offender has consumed alcohol, cannabis, ecstasy and Xanax over the years and was under the influence of such substances at the time of this offending.

38. Mr Duncan’s criminal history is not as extensive as that of Mr Kemp. However it commences with an assault occasioning actual bodily harm at the age of 14 and recklessly causing grievous bodily harm in company at the age of 15 as well as robbery in company at the age of 15 and robbery in company at the age of 16. As an adult he has been found guilty of destroying or damaging property on 25 February 2017 and on 29 October 2017 of resisting an officer in the execution of his duty. That led to the imposition of a s 9 bond but that bond was only imposed earlier this year. The bond that was breached by the commission of this offence was a bond for destroying or damaging property which was entered into by order of the Downing Centre Local Court on 24 April 2017.

CONSIDERATION

39. The sentence to be imposed upon Mr Kemp should be greater than that imposed upon Mr Duncan because Mr Kemp was older than Mr Duncan, Mr Kemp appears to be the leader in the offending behaviour and Mr Kemp’s criminal record was much longer than that of Mr Duncan. However parity must prevail. The two offenders essentially carried out this series of offences including the principal offence of armed robbery in company and no disagreement exists between the two other than perhaps that Mr Duncan committed the first offence against the driver of the motor vehicle which he may have been thought to be a Uber, Mr Entezari. As Mr Ozen who appeared for Mr Duncan pointed out, this is a difficult sentencing exercise. Mr Ozen argued vigorously for the imposition of an Intensive Corrections Order. However to do that, I would need to find that a custodial sentence of two years or less was appropriate for this offence. Reluctantly, I cannot so find. In light of the guideline judgment I would have thought that a more severe penalty was required than that provided for in the guideline judgment.

40. Even so bearing in mind the background of each of the offenders I have come to the view that the appropriate commencement point for this sentence is a theoretical head sentence of five years’ imprisonment. It is accepted by the Crown that each of the offenders is entitled to a 25% discount on that sentence because the utilitarian value of each of their pleas of guilty. That reduces the sentence to three years and nine months.

41. Here there are special circumstances to warrant the breaking of the statutory nexus between the head sentence and the non parole period. The statutory nexus indicates that the non parole period ought be 75% of the head sentence. However, as I have pointed out for Mr Kemp, a lengthy period on parole is necessary to ensure that he does not relapse to alcohol or other drug use when released on parole. Exactly the same consideration applies to Mr Duncan. I have come to the view that he appropriate non parole period for each offender is one year and eleven months and the period on parole is one year and ten months. The remaining question is when should the sentences commence.

42. Notwithstanding the submissions put to me on behalf of Mr Kemp, I believe the commencement date for his sentence ought be, as the Crown has submitted, 24 August this year because otherwise Mr Kemp will not be punished for a large number of offences that have kept him theoretically in custody since 25 November 2017. The papers tendered by the Crown have given me the facts for the offences of 9 April 2016, 29 October 2016, 22 July 2017, 20 September 2017 and 30 September 2017 and each of those offences was one of violence and warranted the sentences that have been imposed by the Local Court.

43. As far as Mr Duncan is concerned, the sentence ought be backdated to 64 days from today which I am told would indicate that his sentence should commence on 27 September 2018.

SENTENCES

44. Harley Kevin Kemp, on the charge that on 25 November 2017 at Chippendale in this State, you did rob Tongliang Liu of certain property, namely $90 in cash, the property of Tongliang Liu, whilst being armed with an offensive weapon, namely a broken glass bottle, whilst in the company of Ji Duncan, you are convicted. I sentence you to imprisonment. I set a non parole period of one year and eleven months commencing on 24 August 2018 and expiring on 23 July 2020. I impose a further period of imprisonment of one year and ten months to commence upon the expiration of the non parole period and expiring on 23 May 2022. The total sentence is therefore three years and nine months comprising the non parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non parole period. In passing that sentence I have taken into account the matters on the Form 1. I direct that the exhibit 5, the report of Dr Sathish Dayalan, be forwarded by my Associate to the Manager of the Wellington Correctional Centre.

45. Ji Wanygo Duncan, on the charge that on 25 November 2017 at Chippendale in this State, you did rob Tongliang Liu of certainly property namely $90 in cash, the property of the said Tongliang Liu, whilst being armed with an offensive weapon namely a broken glass bottle whilst you were in company with Harley Kevin Kemp, you are convicted. I sentence you to imprisonment. I set a non parole period of one year and eleven months commencing on 27 September 2018 and expiring on 26 August 2020. I impose a further period of imprisonment of one year and ten months to commence upon the expiration of the non parole period and expiring on 26 June 2022. The total sentence is therefore three years and nine months comprising the non parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non parole period. In passing that sentence I have taken into account the matters on the Form 1.

46. Any other orders sought?

47. HARPER: No your Honour.

48. ADJOURNED

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Decision last updated: 27 February 2019