R v King

[2020] NSWDC 931

District Court

New South Wales

Medium Neutral Citation:

R v King [2020] NSWDC 931

Hearing dates:

3/6/20

Date of orders:

3/6/20

Decision date:

03 June 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 4 years 3 months with a NPP of 2 years 8 months (3/12/19-2/8/22). I find special circumstances.

I direct that a copy of the psychological report of Derek Gilligan dated 26 May 2020 be provided to Corrective Services and Justice Health.

Catchwords:

Crime – Sentence – Robbery whilst armed with an offensive weapon

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Henry and Ors (1999) 46 NSWLR 346

Category:

Sentence

Parties:

NSW DPP – Crown
Kyle Mitchell - Offender

Representation:

Ms Palmer for Crown
Ms Stroinovsky for Offender

File Number(s):

2019/324022

sentence

1. The offender Mr Mitchell King, also known as Mr Kyle Mitchell, is to be sentenced for an offence of robbery while armed with an offensive weapon, that being an offence under s 97(1) of the Crimes Act 1900, which was committed on 16 October 2019. The maximum penalty for that offence is 20 years imprisonment.

2. Mr King pleaded guilty to that offence at the earliest opportunity and he is entitled to a discount of 25% on account of the utilitarian value of that plea.

FACTS

3. The facts are set out in an agreed statement of facts, which I summarise as follows. The robbery took place on the morning of 16 October 2019 at the Ice Box liquor store in West Wallsend. The victim, a Ms Albrew, who was the manager of the store, was working alone that morning. Shortly before 11am, while the victim was standing at the counter, she looked up to see the offender standing in front of her, wearing a black long-sleeve shirt and with a surgical mask covering his nose and mouth. He had a black backpack on his back and he was holding a medium-sized diving knife. The offender placed the blade of the knife on the counter in front of the victim and said, “Put all the money in the bag.” The victim replied with a question, “What?” The offender repeated, “Put all the money in the bag.” Sensibly, the victim walked to the register and opened it. The offender then used the knife he was holding to flick a brown paper bag which was on the counter bench towards the victim and said, “Use this. Don't press any buttons.” The victim then placed the contents of the cash register, being almost $270, into a paper bag. As she did this, the offender returned the knife to a sheath he was carrying and moved closer to the victim, who handed him the brown paper bag containing the money. The offender then left the shop. The entire incident, which was captured on CCTV, lasted about 45 seconds.

4. The victim then activated a duress alarm and called triple 0 and locked the doors. When police arrived, she replayed the CCTV footage from the store to them. Shortly afterwards, police who were patrolling nearby stopped the offender while he was driving his vehicle. When questioned about the robbery, he initially denied any involvement, stating that he had just come from a nearby supermarket and was going for a drive. Police indicated that they intended to search his vehicle, upon which the offender told them that he had a diving knife in the car, as he sometimes went swimming with it. A search of the car located a large knife, a brown paper bag, cash in the sum of $267.65, a black backpack, a black long-sleeved shirt matching that shown in the CCTV footage, and a surgical mask. The offender was placed under arrest for the robbery.

5. Later that day he participated in an interview in which he told the police, among other things, that he had driven his vehicle to and had parked near the liquor store, that he had walked around the block and then “just decided to go and do it”, that is, do the robbery and that he then went in and demanded the money, saying, “Just put the money in the bag. Don't trip the silent alarm.” He also told police that as the victim was emptying the cash register he moved a bag, that is a paper bag, in her direction and then stepped back because he did not want to hurt her. Also, that he had had the knife and the bag with him for legitimate purposes because it was a diving knife that he used when he went recreational diving. He told police that he had come out of custody about two years ago and had been struggling to make his way in the world since then and feels that he does not fit in as he went into custody at age 19 and still cannot even cook. Finally, he told police he had wanted to kill himself but could not and ended up in West Wallsend. He said to police that he felt really bad with regards to the victim because, “This is a normal person going about their life and, because I’m just a fucking piece of shit, I can do this to people.”

OBJECTIVE SERIOUSNESS

6. Armed robbery is a regrettably common offence which no doubt was part of the reason why the Court of Criminal Appeal provided its 1999 guideline judgment in relation to such offences in the well-known case of R v Henry and Ors (1999) 46 NSWLR 346. As the Court said in that case, armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on victims, establish armed robbery to be a serious crime which requires condign punishment. A person convicted of armed robbery must, therefore, expect to receive a fulltime custodial sentence, other than in exceptional circumstances. It has not been argued in this case that any such exceptional circumstances are made out.

7. All robberies are serious and this one is no exception. The offence carries a maximum of 20 years imprisonment, which is an important guidepost in the sentencing exercise and clearly also confirms that the offence must be regarded as objectively serious. While it is a serious example of this type of offence, it is not in the most serious category, given that there was no actual use of violence and given that the offending took place over a very short time frame.

8. The decision of the Court of Criminal Appeal in Henry provides a list of common features for this type of offence which are relevant in determining the appropriate sentence. Having regard to those matters, I note firstly that the offender can no longer be regarded as particularly young and it cannot be said that he has little criminal history, given that his history includes a number of serious matters including robberies and assaults with intent to rob. Secondly, the weapon used was a knife of substantial size, which was clearly capable of inflicting serious injury or death and significant terror in the victim. Thirdly, while I accept that there was some degree of planning and preparation in obtaining the knife and the surgical mask, this, it seems to me, is consistent with many offences of this kind and does not amount to more than a limited degree of planning. Fourthly, as postulated in the Henry guideline, the offence involved no actual violence but a very real threat of it, given the presence of the knife. Fifthly, clearly the victim was in a vulnerable position. Sixthly, the amount of money taken was relatively small. And, while there is a plea of guilty, the significance of it is reduced by the presence of a reasonably strong prosecution case, although the offender is entitled to some consideration by reason of his cooperation in making admissions in his interview with police on the day of his arrest.

9. In circumstances where the Henry factors are present, a head sentence in the approximate range of four to five years is indicated as a guide. That range, however, is applicable where there is a late plea of guilty, whereas in this case the offender pleaded guilty at the earliest opportunity. On the other hand, as I have noted already, his age is such that he has little entitlement to consideration on account of youthfulness. There is also the aggravating factor that the offence was committed while he was subject to conditional liberty, being on parole, as well as being subject to a community correction order. There is also the fact that he has a prior history of convictions, some of which are similar.

10. The Crown also initially argued that the offence is aggravated by reason that a weapon was used, however, later, appropriately, conceded that, as the use of a weapon is an element of the offence, this is not an aggravating feature. The Crown further argued that the offending is aggravated by reason that the victim was vulnerable. I accept this, although this is a feature common to many robberies and a matter which I have taken into account in applying the Henry principles. While the Crown also initially submitted that the offence is aggravated by reason of being committed for financial gain, it later conceded that this is a feature inherent in a robbery offence and not an additional aggravating feature.

SUBJECTIVE MATERIAL

11. The offender is currently aged 29 and was 28 at the time of the offence. His background, as reported to psychologist Dr Gilligan, indicates the following in summary. He was born in Maitland, the only child of his parents’ marriage. His parents separated, however, before he was three due to his father’s abuse of alcohol. He has had little to do with his father since then. When the offender was about 10 years old, his mother remarried to a man named Glen, who the offender regards as his stepfather or his real father. Although his mother and Glen separated in 2016, he still maintains contact with his stepfather, who has visited him in gaol. He hopes, he says, to live with his stepfather once he is released from prison. The offender left the family home at about age 17, after which he spent some time living on the streets and later in hostel-style accommodation. It is apparent that his relationship with his mother has been problematic at times and that his childhood was less than ideal, involving some instability and neglect.

12. The offender also reported a history of being teased and bullied at school and, significantly, of being sexually abused over a number of years by a priest, a matter he has not disclosed until fairly recently. After being expelled from high school, he enrolled at a TAFE college but left before completing year 10, apparently due to his drug use and disruptive behaviour. He has a history of employment in a variety of areas but has had difficulty in maintaining long-term employment due, apparently, to his impulsivity. At the time of the robbery, he was working in the construction industry.

13. He was introduced to cannabis during school, which became a regular habit and he also had a pattern of binge drinking and some problematic use of MDMA. He told the psychologist that he had also used hallucinogenic drugs and ketamine and told the psychologist that he has overdosed more than once and “enjoyed the feeling of going in and out of consciousness, thinking he might be about to die”. While he reported having participated in a drug and alcohol programme during his previous time in custody, the psychologist thought the offender’s response was partial at best, given that he minimised the significance of his cannabis use and denied a previous dependency on MDMA, despite his claims to having been unable to stop using that drug.

14. He told the psychologist that in the days before the offence he was not coping, was desperate, could not cease his MDMA use and was feeling suicidal. He said he was overwhelmed by hopelessness and worthlessness and decided he would either get himself into a situation where police would kill him or he would go back to gaol because he could not manage his life anymore. It is of some significance, in my view, that these overwhelming feelings coincided with or were at least reasonably proximate to his disclosures of sexual abuse.

15. In a letter provided to the Court today, he has made reference to this history of being abused and says that it was only a couple of weeks before he was arrested that a friend helped him admit for the first time that he had been abused through primary school. He says in that letter that his life became horrible and he could not stop reliving the past and suffering nightmares and insomnia and he says in that letter further that on the day of the offence he just snapped and knew he had to die or get arrested, as he could not keep going on as he was.

16. Of course, there is a limit to the degree of weight I can place upon the contents of that letter, given that the offender has not given evidence on oath. However, it is consistent with the history provided by him to the psychologist, about which I will make some comment in a moment, and so I consider that I am entitled to attach some weight to the contents of that letter.

17. In relation to the psychological report, it is necessary that I exercise caution as to the weight that I place upon it, given that the offender did not give evidence on oath to confirm the history. However, having exercised that caution, I do place some weight on the report, firstly, because it is a comprehensive report which does not contain any obvious inconsistencies but, secondly, and more importantly, the report presents a relatively unvarnished assessment of the offender’s situation, including as to his insight and future prospects, as to which the report is not entirely favourable to the offender. Of course, this cuts both ways in the sense that, while I attach some weight to the matters in the report, the psychologist’s concern about the risk of relapse points also to the need to protect the community. None of the history provided to the psychologist provides any excuse for the offence. However, it does provide context and some explanation as to why, after having largely stayed out of trouble since his release to parole on 4 November 2017, he then committed this serious robbery.

18. As already noted, the offender has a fairly significant criminal history which does not entitle him to the leniency that might be extended if that was not the case.

REMORSE AND REHABILITATION

19. The offender has, I accept, expressed some genuine remorse, both by means of his letter and by means of the history told to the psychologist. He told the psychologist, for example, that he regrets his offending behaviour and feels bad, particularly for the impact on the victim. He also said that he was concerned at the time for the potential harm to the victim but was overwhelmed by distress, hopelessness and suicidal thoughts at the time of the offence. His expression of concern to the psychologist in relation to the victim is consistent with his statements to police upon his arrest, to whom he said he felt really bad because the victim was just going about her life and that he regarded himself as, as he put it, “a piece of shit” for acting as he did towards her.

20. There is evidence before the Court which clearly demonstrates that the offender has the capacity to lead a more positive and productive lifestyle. This is demonstrated by the evidence that after his release to parole in 2017 he did some volunteer work for the Orange Sky and the Samaritans organisations, who both speak about him highly, and also the fact that he obtained fulltime work as a barman. It is also very positive that he is motivated to undertake studies in the future. As the psychologist noted, while the offender is somewhat immature and naïve, he was quite articulate and there is reason to believe that he is an intelligent young man who has the potential to lift himself out of his past behaviours if he can motivate himself to seek treatment, to obtain a job and to remain drug free.

21. The fact that he is intelligent and articulate is demonstrated also, I consider, by the letter which was tendered to me only a few moments ago and which is now part of exhibit A. It is clear, however, that the offender remains a troubled young man. He lives with a variety of unresolved psychological issues which leave him subject to anxiety, panic attacks and impulsive behaviour, of which the current offence is perhaps an example.

22. The psychologist concluded that the offender warrants the diagnoses of ADHD, dysthymia, Post Traumatic Stress Disorder and possibly Borderline Personality Disorder. As the psychologist says, he will need considerable support once released to the community to address his problems and to avoid a relapse into impulsive acts. Although he has some insight, regrettably, at the moment he has few skills available to him to manage his impulsivity.

23. I accept that the offender regrets his actions but he will, as the psychologist says, remain vulnerable to relapse. While there certainly is hope, I am unable to conclude that he has good prospects of rehabilitation. I would assess them as fair.

24. The prevalence of offences of robbery and the ease with which they can be committed are some of the reasons why general deterrence is very important in sentencing for these sorts of offences. I also accept that, while the offender genuinely regrets his actions, there remains the need for the sentence to also reflect the need for personal deterrence so as to ensure that the offender is aware that similar behaviour in the future will result in substantial further periods of imprisonment.

TOTALITY

25. The offender is currently serving the remainder of a head sentence of seven years imposed on him in this Court on 19 September 2011 for assault with intent to rob while armed with a dangerous weapon. Although he was released to parole under that sentence on 4 November 2017, that parole was revoked with effect from 16 October 2019, being the day he was arrested for the current offence. Given that he is currently subject to that existing sentence, it is necessary in determining the sentence that I must impose that I have regard to principles of totality so as to ensure, as far as I can, that the overall period of incarceration is not crushing but leaves room for the offender to address his issues and take steps towards rehabilitation. I have taken into account these principles in determining the sentence and in determining the commencement date for that sentence. Having regard to totality principles, I intend to backdate the commencement of his sentence to some degree.

26. Another factor that I have taken into account is the risk of institutionalisation. That is a concern in this case, given that the offender has spent more than seven and a half years in custody since his 19th birthday and he is currently aged 29. The reality may be that he is already institutionalised to some degree, which may partly explain his difficulties in coping in the outside world and his statement to the psychologist that he had decided to put himself in a situation where police would kill him or he would be returned to gaol.

27. Having regard to this factor, as well as the offender’s ongoing psychological issues, I intend to make a finding of special circumstances based on the importance of the offender being subject to a reasonably lengthy period of supervision once released to parole. My adjustment by reason of special circumstances, however, will not be overly large, given that he has previously had the benefit of such a finding and given that the sentence I must impose will involve a reasonable period of supervision in any event.

28. The offender is currently being held at the Shortland Correctional Centre where over the past several months, consistently with other prisons, restrictions have been put in place due to the current pandemic. I accept that for the past few months and probably for some months to come the offender’s time in custody will be rendered more onerous due to the unavailability of personal visits, both family and friends. This is not a major factor in the sentencing exercise but it is one of the matters to which I have had regard in the instinctive process that I am required to undertake in balancing various factors.

DETERMINATION

29. I am satisfied that no punishment other than fulltime imprisonment is appropriate in this case. I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The sentence I impose is as follows.

30. I impose a head sentence of four years three months imprisonment and a non-parole period of two years eight months. Each of those will date from 3 December 2019. The head sentence, therefore, will expire on 2 March 2024 and the non-parole period on 2 August 2022. It goes without saying that I have convicted the offender also.

31. Do you understand that sentence that I have announced, Mr King?

32. OFFENDER: Sorry, there was doors moving and it muted you slightly. I believe you said the head sentence was four years something?

33. HIS HONOUR: Yes, all right, I’ll say it again.

34. OFFENDER: Thank you.

35. HIS HONOUR: The head sentence is four years three months and the non-parole period is two years eight months, each of them to date from 3 December 2019. In other words, I have backdated your sentence back to December 2019.

36. OFFENDER: I understand that, thank you very much, your Honour.

37. HIS HONOUR: The non-parole period, therefore, will expire on 2 August 2022 when you will be eligible for consideration of release to parole.

38. OFFENDER: Thank you, your Honour.

39. HIS HONOUR: I direct that a copy of the psychological report of Dr Derek Gilligan be provided to Corrective Services and also to Justice Health.

40. Ms Crown, anything to raise?

41. PALMER: No, your Honour, thank you.

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Decision last updated: 30 May 2022