R v Kevin Bennett
[2013] NSWDC 222
•08 October 2013
District Court
New South Wales
Medium Neutral Citation: R v Kevin BENNETT [2013] NSWDC 222 Decision date: 08 October 2013 Before: Cogswell SC DCJ Decision: For three offences of armed robbery an aggregate sentence of 5 years and 3 months imprisonment, non-parole period of 3 years.
Catchwords: CRIMINAL LAW - Particular offences - armed robbery - Sentence - relevant factors - significant criminal record including offences dealt with by Children's Court - escalating criminal behaviour - risk to community - response to charges - no plea of guilty - no remorse - nature and circumstances of offender - young Aboriginal man - consideration of recent High Court judgments on sentencing indigenous persons - deprived background - given significant weight - reduces culpability - raised in environment of drug addiction and crime - commenced drug use at an early age - never employed - special circumstances - young age - period of time already spent in custody - risk of institutionalisation - extended period on parole to address drug problems. Legislation Cited: Crimes Act 1900, s 97(1).
Crimes (Sentencing Procedure) Act 1999, s 44, s 53.Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022.
Munda v Western Australia [2013] HCA 38; (2013) 87 ALJR 1035.
R v Fernando (1992) 76 A Crim R 58.
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465.Category: Sentence Parties: Regina (Crown)
Kevin Winston Bennett (Offender)Representation: Counsel:
B Rowe (Crown)
S Hall (Offender)
File Number(s): DC 2012/313904
REMARKS ON SENTENCE
I am sentencing a young man whose mother reportedly left him in a bin at the age of two. He was found by the local police officer and spent the next five years in foster families with the Department of Family and Community Services. His mother was a heroin addict. His father was a criminal. He was probably exposed to drugs by his mother and crime by his father. The young man's deprived background reduces his culpability and can mitigate a sentence.
On the other hand, this young man has a significant criminal record for a 23 year old. He has been in trouble with the law since his early teenage years and has disturbed the peace of the communities in which he has lived by crimes involving damage to property, assaults (including on police), stealing cars, affrays and now armed robberies. He has been given suspended sentences but has breached the bonds and gone into gaol.
A judge sentencing an offender often faces this sort of dilemma. Does the judge acknowledge what is obvious - a young man whose life has been skewed in the wrong direction from the start and for whom further gaol time will point him further in that direction - and mitigate the sentence to give him another chance and less gaol? Or does the judge send the man to gaol for an extended period of time so he is kept out of the community which he threatens by his criminal behaviour? There is no one correct answer and each judge must exercise their own judgment about what to do in the particular case.
The dilemma is not new. In 1988 the High Court in a case called Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476 ([13]) said this -
"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
Much more recently in Munda v Western Australia [2013] HCA 38; (2013) 87 ALJR 1035, a majority of the High Court at [59] referred to its earlier decision in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and also to Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and said that "the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features."
I now need to consider the details of this young man's case. His name is Kevin Bennett. I will first say what the crimes are that I am sentencing him for and what happened. Then I will consider his personal circumstances. I will review the arguments for the prosecution and the defence, and then I will sentence Kevin Bennett.
Kevin Bennett was arraigned before me and a jury on 20 August 2013 charged with three armed robberies. About a week later on 26 August the jury found him guilty on all three charges. Being armed robberies, the offences are against s 97(1) of the Crimes Act 1900 and each of them carries a maximum of 20 years imprisonment.
The three armed robberies all occurred on the same day. Two of them occurred at the same place. The day was 8 October 2012. In the morning of that day, Mr Bennett and some accomplices went to a hotel in The Rocks area of Sydney. They could be seen on CCTV walking around the hotel area before the robbery. Two employees of the hotel were in a room together but before 9.00am. Mr Bennett got into the room and produced a knife and what appeared to be a pistol. He robbed one of the employees of a mobile phone and a laptop computer. From the other employee he stole an iPad. Then, still in the company of his accomplices, he went to the Haymarket end of the city and a few hours later bailed up an employee of a foreign exchange service. There were produced to that employee a Taser, a pistol, a knife and scissors. There was stolen from that employee currency, both Australian and international.
Needless to say, the three victims of these armed robberies would have been terrified by the experience of being bailed up in the way that they were. I expect that confronted by the kinds of weapons which were produced to them that they would have felt that their lives were in danger. This is one of the reasons that Parliament has fixed a maximum of 20 years imprisonment to the offence of armed robbery.
HIS HONOUR: I am going to suspend my remarks on sentence to ask Ms Hall a question. Ms Hall, that psychological report, do you have instructions for it to be sent to Corrective Services?
HALL: Yes, I do. Sorry, I should have told your Honour last week.
HIS HONOUR: No, it just occurred to me. I've got a note here in front of me, thank you. I direct my associate to this afternoon or tomorrow email or fax to Corrective Services exhibit S1. I now return to the remarks on sentence.
Kevin Bennett was arrested a couple of days later on 10 October 2012. He went into custody, bail refused, on these charges. He has been in custody ever since. However, for part of the time between then and now he served a period of 6 months, but for other offences which, according to my calculations, leaves a period of almost 6 months which are attributable to these offences alone.
I now need to say something about Kevin Bennett himself. He is 23 years of age. As I said, he has a criminal record. He appeared as a teenager regularly in the Children's Court both in Campbelltown and in regional and country courts such as Walgett and Bathurst. He was aged about 12 or 13 when he first appeared. He was given control orders, which are the equivalent of custody for young offenders. He committed offences involving property, affray and assaults against police.
Kevin Bennett turned 18 on 25 August 2008. Since then he has committed further crimes involving assaults, property damage and theft of cars. He has been given the benefit of suspended sentences but, as I have said, he breached the bonds attached to those sentences and, at the age of 19, first went into custody. It seems to me that he has never been on adult parole.
The only source of information that I have about Kevin Bennett comes from a detailed psychological report prepared by Laura Durkin dated 30 September 2013. It became exhibit S1 in the proceedings. It sets out a good deal of Kevin Bennett's background. With some reservations, I accept the account given by the psychologist from Mr Bennett, partly because it is consistent with his criminal record. The psychologist noted that Mr Bennett had never worked but "has supported himself through crime". He apparently acknowledged to Ms Durkin that "crime is the only work he has ever known." He found it easier and more profitable than working. The psychologist also noted that Mr Bennett "has never undergone detoxification, rehabilitation programming or other forms of drug and alcohol treatment." I make this observation because the history includes an account of Mr Bennett commencing with cannabis at the age of 10 and alcohol at the age of 14. He commenced hard drugs at the age of 17 including amphetamines, cocaine and heroin and crystal methamphetamine, commonly known as ice.
Ms Durkin said the following at [40] of her report -
"Mr Bennett's early development was apparently turbulent and he experienced neglect at least. His parents were reportedly dependent on heroin and his father was involved in crime also. When he was two years of age, Mr Bennett's mother abandoned him in a bin in the town and these early life experiences seem to have affected his attachment. He was placed in foster care by FaCS thereafter and apparently achieved a degree of stability. Although he moved families over the course of his five years in care, further compromising his attachment, Mr Bennett advised that the majority of his carers were good people and provided for him well. When he was seven, he was placed in his paternal grandparents' care and again he believes that he was well cared for. He advised that his grandparents provided him love and affection and made some attempt to set boundaries for him but he often defied their rules and engaged in delinquent conduct as a child. Moreover, he sought out his parents who modelled inappropriate conduct and possibly exposed him to risk."
The psychologist thought that Mr Bennett's placement in juvenile detention centres reinforced his delinquent attitudes and she observed that he "appears to have become increasingly embedded in the antisocial subculture."
During his adolescence, Mr Bennett's grandmother died and Mr Bennett told the psychologist that he "really went down hill" after she died. That removed a significant support for him and the psychologist observed that "Mr Bennett has been largely disconnected from the community since, which has further adversely affected his behaviour." The psychologist thought that Mr Bennett had little desire to extricate himself from his criminal lifestyle. He had an opportunity when he had a partner for a period of time, but the psychologist noted that Mr Bennett "terminated this relationship rather than change his behaviour and challenge his attitudes." Significantly, she observed that Mr Bennett "does not perceive his conduct as wrong; for the community, himself or others. Indeed, his account suggests he is largely operating at the periphery of society, with little responsibility or connection to others and hence little understanding of how his conduct would affect others or the community." Understandably, that lack of contact and connection to the community "renders him increasingly vulnerable to ongoing criminal involvement."
His early experiences and social isolation, together with his drug dependence and permissive attitudes "render him vulnerable to engage in offences such as those currently before the Court" observed the psychologist. She thought that he will require significant support in the community and that he would benefit from motivational enhancement therapy and should undertake some drug and alcohol courses whilst in custody and be transferred to a drug and alcohol rehabilitation centre when he has finished his period in custody.
Mr Bennett is an indigenous man. The High Court has recently had occasion to consider the principles relating to sentencing indigenous Australians which were the subject of the decision of the New South Wales Supreme Court in R v Fernando (1992) 76 A Crim R 58. The High Court considered these principles in Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022. The principal judgment was delivered by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. At [37] their Honours said that -
"An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence."
At [40] their Honours said the following -
"The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
There is no direct evidence in this case of alcohol abuse or violence, but there is evidence of Mr Bennett being raised in his early years in an environment which involved drug addiction and crime.
Their Honours pointed out at [41] that in any case where it is sought "to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background." As I have indicated, I am inclined on balance to accept the account given to the psychologist in this case because it is consistent with Mr Bennett's criminal record.
At [43] their Honours said the following -
"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending."
I regard those observations as relevant to this case, where the environment was characterised by crime and drug use at an early stage of Mr Bennett's life.
At [44] their Honours went on to say that because "the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision." Their Honours added that giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. Their Honours proceeded to say that an "offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
Once again, I feel that I can adapt those remarks to Mr Bennett's background and circumstances in this case.
I now come to consider the arguments put forward on Mr Bennett's behalf by Ms Hall, counsel who appeared for him, and Mr Rowe of counsel who appeared as the Crown Prosecutor.
Ms Hall realistically acknowledged that her client must face a full-time custodial sentence. She pointed out that to the psychologist her client had acknowledged his guilt of the offences. She argued that that showed some prospects of rehabilitation. That is in my opinion of very little value. It is a mere acknowledgement of what he had done rather than a real step towards rehabilitation but it is, as Ms Hall said, a start.
The two most important factors are probably Mr Bennett's age, which Ms Hall relied upon, and the factors which have been recently re-emphasised by the High Court in Bugmy. Ms Hall acknowledged that her client lives life on the edge of society. But of course that means that other members of the community are paying for his life on the edge as victims of his crimes. I acknowledge that there was some, but limited, planning in the first offence. I also accept Ms Hall's submission, which was also endorsed by the Crown Prosecutor, that Kevin Bennett is at some risk of institutionalisation given his age and the period of time that he has already spent in prison. That factor also amounts to a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999, which I will eventually take into account in adjusting the relationship between the non-parole period and the balance of the term.
Ms Hall realistically acknowledged that there is some risk to the community from her client. Ms Hall reminded me of the guideline judgment relating to armed robberies delivered by the Court of Criminal Appeal. That judgment was R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. Their Honours observed that a range would generally be between 4 or 5 years for certain offences, the common elements of which they listed. In this case many of those elements are present, except that Mr Bennett has a significant previous criminal history and did not plead guilty but was found guilty by a jury.
The Crown Prosecutor fairly acknowledged that the first two robberies occurred on the same occasion, but I must bear in mind that there were two victims of that robbery. Both involved threats and would have been frightening for all of the victims and I accept that submission.
There is little or no evidence of remorse; indeed I do not accept that there is evidence of remorse.
The Crown Prosecutor acknowledge Mr Bennett's own personal history. He also indicated, correctly in my opinion, that Mr Bennett's criminal record pointed to escalating criminal behaviour and that I need to bear in mind the protection of the public. He acknowledged that planning was present in the first offence but was limited. He acknowledged the need for some extended period of time on parole referring to Mr Bennett's age, his drug problems and the risk of institutionalisation. Ms Hall added to that the need for individualised treatment when he is in the community - that submission is based upon the psychologist's report. I bear in mind here that Mr Bennett does not appear to have benefited very much from a period of time, if at all, on parole.
I come now to consider the appropriate sentences. What I propose to do is to impose one sentence which will be an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act, but I need to indicate what the sentences would have been for each of the offences.
Although the range indicated by the Court of Criminal Appeal in the guideline judgment is 4 to 5 years and although in a case like this I would normally regard an appropriate sentence as being towards the top end of that range - or indeed lengthier than that range because of the criminal record and because of the absence of a plea of guilty - nevertheless I regard an appropriate sentence for each case as being one of 4 years imprisonment. The main factors which I have in mind in fixing that are Mr Bennett's age and also his background, upon which I place significant weight.
I would have accumulated the 4 year sentences for the first two offences committed at the hotel in The Rocks by a period of some 3 months, although both offences were committed on the same occasion in one episode of criminal behaviour. I regard it as significant that two individuals were put at risk and had their lives threatened so far as they were concerned. I would regard an appropriate sentence for the armed robbery committed in Haymarket as also being one of 4 years imprisonment. But it was quite a separate crime, at a separate location, with a separate victim. On the other hand, it occurred on the same day over one period of criminal behaviour. Nevertheless, I would regard an appropriate accumulation as being 1 year. The overall effect of the three sentences would be a sentence of 5 years and 3 months imprisonment for the three crimes. In due course I will fix that as the head sentence in respect of all of the crimes.
The non-parole period envisaged by the Crimes (Sentencing Procedure) Act for a sentence of 5 years and 3 months is nearly 4 years. The ratio mentioned in that Act is 75 per cent so that 75 per cent of the sentence I have suggested or propose to impose is nearly 4 years imprisonment. However, I propose to reduce that ratio from 75 per cent to 60 per cent. I propose to do that because of the factors that I have already referred to which were mentioned both by Ms Hall and by Mr Rowe which amount to special circumstances for adjusting that ratio. Sixty per cent of a sentence of 5 years and 3 months is about 3 years and 2 months, but I would round that off to a non-parole period of 3 years. That sentence should be backdated by 6 months because of the time that Mr Bennett has already spent in custody solely because of these crimes. I bear in mind again the risk of institutionalisation and I am going to adjust that favourably to him to 9 months, so that I propose to backdate the sentence by 9 months to 8 January this year. So that the sentence which I will impose in a moment will be one of 5 years and 3 months with a non-parole period of 3 years commencing 8 January 2013.
HIS HONOUR: I am going to sentence you now, Mr Bennett, if you would stand up.
I set a non-parole period of 3 years imprisonment which commenced on 8 January 2013 and which will expire on 7 January 2016. The balance of the term is 2 years and 3 months commencing 8 January 2016 and it will expire on 7 April 2018. The first date on which it appears to me that you are eligible for release is 7 January 2016. If you would have a seat now, Mr Bennett.
HIS HONOUR: It is over 3 years so I do not direct release on parole. Would you both please check the figures. Five years and 3 months, 3 years non-parole period dated from 8 January 2013 expiring 7 January 2016 for the non-parole. Overall sentence expires 7 April 2018. Just check the figures so we don't have to come back if I'm wrong. No rush, just tell me when you're ready.
HALL: My maths have never been terribly reliable, your Honour, but that looks right to me.
HIS HONOUR: Thank you.
JAMES: Seems to be right.
HIS HONOUR: Good, thank you both. Kevin Bennett, you have got a sentence of 5 years and 3 months. That's one sentence for all three crimes, do you understand? I would have set each one at 4 years but I would have accumulated them and have some of them served at the same time. Overall effect 5 years and 3 months. I've fixed a non-parole period that you have to stay in gaol as 3 years. You've already done 6 months for these crimes, but I'm giving you an extra 3 months in your favour, so your sentence started back on 8 January. Your non-parole period expires 7 January 2016 so you'll be eligible for release on 7 January 2016. It's up to the Parole Authority to decide whether you're released or not. As you've heard me say, I'm going to send that report, which is very comprehensive, to Corrective Services. That will help them in assessing you for your classification. It gives them lots of very important information about your background and things like that. It's going to be very helpful to them.
What you do now is in your hands. You've heard plenty of judges and magistrates say that to you. You've heard the things that I've said about you. You are a young man and it's entirely up to you now what you do with the rest of your life. You've got to serve your time for what you did to those three people last year, but what you do in custody with the courses that are available to you, and particularly what you do on parole - and I've given you extra time on parole, more than normal, so that you can use that time in the community to try to sort yourself out. Am I right in thinking you haven't spent time on adult parole? No, that's what I thought. So when you're released they'll try to help you change some of this pattern of behaviour. Do you understand all of that? All right, good luck.
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Decision last updated: 18 November 2013
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