R v Konza

[2018] NSWDC 485

District Court

New South Wales

Medium Neutral Citation:	R v Konza [2018] NSWDC 485
Hearing dates:	26 October 2018
Date of orders:	26 October 2018
Decision date:	07 November 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [89]
Catchwords:	CRIME – sentencing – robbery armed with an offensive weapon – Henry guideline
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Barbaro v R; Zirilli v R (2014) 253 CLR 58 Conte v R [2018] NSWCCA 209 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Egan v R [2018] NSWCCA 235 Hernandez v R [2013] NSWCCA 51 Jodeh v R [2011] NSWCCA 194 Lawson v R [2018] NSWCCA 215 Muldrock v The Queen (2011) 244 CLR 120 R v Grubbe [2005] NSWCCA 140 R v Henry (1999) 46 NSWLR 346 R v N (1999) 106 A Crim R 493 R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394 R v SY [2003] NSWCCA 291 R v Valentini (1989) 46 A Crim R 23 The Queen v Pham (2015) 256 CLR 550 Toole v R [2014] NSWCCA 318 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Daniel Konza (Offender)
Representation:	Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2016/151590
Publication restriction:	None

Remarks on Sentence

Introduction

1. Mr Konza, you appear today for remarks on sentence after pleading guilty to the charge on the indictment on 24 August 2017. After two days of pre-trial argument the Offender was convicted. The sentence was pronounced on 26 October 2018. Due to the busy state of the list on that day I was unable to provide my remarks on sentence which I now do. I did, however, on the last occasion provide the essential aspects of the sentence for which I now provide reasons.

The Charges for Sentence

2. The charge for which the Offender is to be sentenced is that, on 6 May 2016 at Terrigal in the State of New South Wales, the Offender did rob Nicholas Jeffrey of certain property, namely, approximately $330 in cash, the property of Terrigal Hotel, whilst being armed with an offensive weapon, namely a machete in contravention of s97(1) of the Crimes Act. Mr Jeffrey was an employee of the hotel and worked in its drive-through bottle shop.

Guideposts

3. The maximum penalty represents the legislature’s assessment of the seriousness of the offence. In exercising its sentencing discretion the Court must always arrive at an outcome that is just in all of the circumstances. The offence of robbery armed with an offensive weapon has a maximum penalty of 20 years imprisonment and there is no applicable standard non-parole period.

Form 1 Matters

4. The Offender has requested that in sentencing on the principal charge, the Court take into account a further offence with which the Offender has been charged and in respect of which he has admitted guilt. The charge on the Form 1 is to be taken into account in the sentencing exercise with a view to increasing the penalty that would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so by giving greater weight to two elements which are always material to the sentencing process. The first is the need for personal deterrence and the second is the community’s entitlement to extract retribution for serious offences. These are both enunciated as purposes for sentencing pursuant to the Crimes (Sentencing Procedure) Act.

5. In the present matter the following additional charge appears on the Form 1, being a second robbery armed with an offensive weapon. The Offender as I say has admitted guilt in relation to that offence and I have signed the Form 1 certifying and confirming the charge has been taken into account in this sentencing exercise. I pause to note that, and it will become apparent from the Agreed Facts in a moment, the offending to which guilt is admitted on the Form 1 relates to robbery armed with an offensive weapon on 29 April 2016 at the same location as the subject of the principal charge.

Procedural History

6. The offending was committed on 6 May 2016. The Offender was arrested and charged on 17 May 2016. On 17 March 2017, the Offender was committed for trial in the District Court and arraigned on 9 June 2017. The trial was fixed for 21 August 2017. The Offender pleaded guilty to the charges on 24 August 2017 after two days of pre-trial argument. This was a relatively late stage of these proceedings which will be taken into account in assessing the utilitarian value of the guilty plea.

7. The Offender has been in custody for this offence on two occasions, for two days, being 13 - 14 December 2017, after being picked up on a bench warrant following his failure to appear in the Gosford Court, and from 2 July 2018 when the Offender was again arrested on a warrant and bail was refused. He has remained in custody up until today. The sentence has been backdated to accommodate the period spent in custody prior to the date of the conviction which was 26 October 2018.

Evidence on Sentence

8. The Crown relied upon the following material at the sentence hearing:

1. the Crown Bundle (Exhibit A), which I note included CCTV footage showing the offending conduct at the Terrigal Hotel; and

2. submissions on sentence helpfully prepared by the Crown (MFI 1).

9. The Offender relied upon the following material:

1. a report by Sarah Brann, psychologist, dated 24 September 2018 (Exhibit 1);

2. the Offender’s helpful submissions on sentence (MFI 2); and

3. JIRS statistics (MFI 3).

Agreed Facts

10. The statement of Agreed Facts provides as follows:

11. On 29 April 2016, Sharon Young was working at the bottle shop attached to the Terrigal Hotel (The Bottle Shop). At about 9:30pm she was behind the counter in the bottle shop when the Offender said, “Give me all of your money”. The following facts relate to the matter on the Form 1, that is robbery armed with an offensive weapon.

12. Ms Young noticed the Offender was holding a machete in his right hand which was about 45 centimetres long. The Offender said, “I’m serious, give me all the money out of the till”, as he waved the knife over the counter. Ms Young handed over some notes to the Offender which totalled $795. The Offender then ran away towards the back of the hotel on Havenview Road.

13. Ms Young called her manager and later spoke to the police. Ms Young remained in the bottle shop shaking and in shock. I pause to note that so much was apparent from the CCTV footage which was played in court during the sentence hearing.

14. Returning to the Agreed Facts, on 6 May 2016 Joshua Willis was working at the bottle shop with Nicholas Jeffrey at about 9pm. Mr Willis and Mr Jeffrey were standing behind the counter when the Offender appeared before them.

15. The following facts relate to the count on the indictment, namely, robbery armed with an offensive weapon. The Offender was holding a machete in his right hand which was about 12 inches in length and appeared to be rusty. The Offender was banging the blade on the counter and yelling, “Give me the money, give me the money, this is serious, I’m not joking”.

16. Mr Willis walked towards the counter to press the Hold Up Button when the Offender said “Don’t press that button” and raised the machete towards him and said, “I’m not joking”. At about this time, Mr Jeffrey opened the register and took out $330 in notes and put them on the counter. The Offender grabbed the money and ran out of the drive-through entrance. Mr Willis ran out after the Offender into the car park and lost sight of him. Mr Willis saw Ethan Poole, a security guard employed by the Terrigal Hotel and pointed out the last direction the Offender had run.

17. Police attended and following the investigation located discarded clothing and a machete in a unit block near the Hotel. Subsequent forensic analysis revealed the Offender’s fingerprint was located on the blade of the machete. Further the Offender’s DNA was located on various items of clothing located near the machete. On 17 May 2016 the Offender was arrested in relation to the allegations. The Offender participated in an interview with police where he denied any knowledge of the robberies and he indicated he was not the person depicted in the CCTV footage.

Elements of the Offence

18. Robbery is a hybrid offence containing elements of larceny and assault:

1. there must be an unlawful taking and carrying away of property with the intention of permanently depriving the owner or person in lawful possession thereof;

2. the property must be taken without the consent of the latter and consent obtained by force or by threat putting that person in fear of violence is not consent;

3. the property must be taken from another person in the presence of another person and from the immediate personal care and protection of another, and:

4. the property must be taken by actual violence or by putting the owner or person in lawful possession in fear of actual violence.

19. In this particular case, whilst the weapon was brandished and the victims were threatened, there was no contact between the victims and the weapon but there was plainly a fear of violence.

20. Section 4 of the Crimes Act defines “armed” as, in relation to a weapon or instrument or an offensive weapon or instrument but as a dangerous weapon, including bearing or having the immediate physical possession of the weapon or instrument. Further, an offensive weapon or instrument means a dangerous weapon or anything that is made or adapted for offensive purposes, or anything that in the circumstances is intended for use or threaten to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

21. Whilst there is no dispute that all the elements of the offence are made out on the facts as is reflected by the guilty plea, it is worthwhile noting the elements so as to determine the objective seriousness of the offending.

Objective Seriousness

22. A predominant factor relevant to the sentence is the objective seriousness of the offence. It is not however necessary to articulate the determination by placing the offence along a hypothetical range. It remains an essential task to undertake any value of assessment of the objective seriousness of the offence. The starting point of course is the legislative guidepost to which I have already referred. Next one has regard to the particular circumstances of the offending in assessing the overall criminality.

23. The Court was directed to the guideline judgment of R v Henry (1999) 46 NSWLR 346 which is directed at assessing what is an appropriate sentence for mid-range offending of this type following a guilty plea.

24. The Crown submitted on the last occasion that the facts pertaining to this offending either meet or exceed the offending referred to in Henry. The solicitor for the Offender conceded that the Henry guideline was applicable, although the objective gravity of the offending may have fallen slightly below that which is contemplated by the Court in the guideline judgment.

25. I note that Spigleman CJ set out the guideline at [162]:

“It appears from the cases that come to this court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

i) young Offender with no or little criminal history;

ii) weapon like a knife capable of killing or inflicting serious injury;

iii) limited degree of planning;

iv) limited if any actual violence but a real threat thereof;

v) victim in a vulnerable position, such as a shopkeeper or taxi driver;

vi) small amount of money taken;

vii) a plea of guilty, the significance of which is limited by a strong Crown case.”

26. The quote continues:

“Whilst it is possible to determine a starting point in a case of this kind, that is a sentence of X years imprisonment, I do not believe the court should do so, rather I propose the court should identify a narrow sentencing range within which this court would expect sentences in such cases to fall.

There are two principal reasons why a sentencing range is appropriate for this offence;

i) the seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise;

ii) many of the seven identified characteristics contain within themselves inherent variability, e.g. differing kinds of knives or weapons in ii), extent of the limited actual violence in iv), the degree of vulnerability in v) and the amount stolen in vi)

In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term.”

27. The Crown and the Offender both submitted that the offending fell within the mid-range although I seem to recall, without the transcript, that Mr Gibbons for the Offender submitted that it was in the lower part of the mid-range of offending. Determining the objective seriousness of the offending the court has had regard to the following:

1. a clearly visible weapon capable of killing or inflicting serious injury. The offence in fact was aggravated by the Offender raising and banging the machete on to the table, although possessing an offensive weapon is an element of the offence, the use of it in this context is a permissible aggravating factor;

2. the intensity of the threats towards the two victims;

3. the vulnerability of the two victims as shopkeepers directly identified in the Henry guideline judgment; and

4. some evidence of planning through the Offender attempting to disguise himself.

28. I agree that the offending in this case falls within the mid-range of objective seriousness and that the Henry guideline judgment is appropriate.

29. The Court may also have regard to any aggravating or mitigating circumstances particular to the Offender and the offending, without double counting any element of the offence, the former to be proved beyond reasonable doubt and the latter on the balance of probabilities.

30. There are no aggravating factors other than the one mentioned which exist outside the elements of the offence as well as the elements identified in Henry which measure the objective seriousness of the offence.

31. The mitigating factors raised in this case were:

1. the Offender was under some duress as he needed to repay a drug debt. The Crown submitted that non-exculpatory duress implies forcible restraint and compulsion, as referred to by Adams J in the case of R v N (1999) 106 A Crim R 493 at [35]. The Crown also referred to Hernandez v R [2013] NSWCCA 51 where it was found that whilst owing a debt can arise to mental duress, the Offender acting on that duress through criminal activity is still a choice and the Offender was not compelled to act in this way. Duress must be established on the balance of probabilities and I am not satisfied that the onus has been discharged in this case; and

2. the second applicable mitigating factor is the plea of guilty by the Offender which will be taken into account in reducing the sentence in due course.

The Subjective Case

32. The Offender is just 22 years of age. In his interview with Sarah Brann, psychologist, the Offender identified a number of developmental vulnerability factors that in the opinion of Ms Brann likely impacted his psychosocial and emotional trajectory. The Offender is one of four siblings born to his natural parents who split when he was three years old. He had a number of half-brothers from his father’s subsequent relationships, but he has never met them and does not know the precise number of siblings, or half-siblings.

33. The Offender reported that his earliest memory was of visiting his father at Silverwater Correctional Centre when he was aged somewhere between two and four. The Offender’s father was serving a sentence of imprisonment for armed robbery and his incarceration was the reason for his parent’s separation. The Offender reported living with his mother after his parent’s separation. He described his mother as “a really happy person, funny, good-looking, blonde, caring” who worked as a hairdresser.

34. The Offender noted that there were no rules growing up, which he attributed to his mother’s status as a single mother. The Offender’s mother struggled for money. His mother began a new live-in relationship when he was aged nine years old which resulted in a range of abuses which the Offender and his mother suffered from that person. The Offender described that person as having an alcohol problem and being paranoid, jealous and controlling, as he constantly thought that the Offender’s mother was being unfaithful. The abuse included being locked in a cupboard for three days without food or water during which time he could hear his mother being beaten, being physically beaten himself, suffering cigarette burns to his arms and being intentionally drowned on multiple occasions.

35. The Offender reported that he never attended hospital for injuries suffered in this abuse and went home from school for weeks until his injuries healed. The Offender also reported that his mother was aware that he suffered ongoing penetrative sexual abuse during this period but was unable to do anything about it. The Offender believed a report was made to police but nothing came of it. The Offender was aged ten years old when his mother packed her boyfriend’s belongings with the intention of moving him out of the house and ending the relationship when she was involved tragically in a fatal car accident.

36. After his mother’s death, the Offender lived with his aunt for about a year which was detrimental for his grief as his aunt was a psychic medium and reportedly told the Offender she was able to communicate with his deceased mother. The Offender was then homeless for a period in Terrigal before moving to Sydney to live with his maternal grandparents from the age of 12 and 13. The Offender briefly attended school in Leichhardt during this time but became homeless after verbally abusing his grandfather.

37. When the Offender was 16 years old, FACS intervened. They contacted his father and the Offender lived with his biological father for a period of time in Queensland, but the Offender characterised his father as aggressive. Startling incidents in this period include his two younger sisters being kidnapped by his father’s ex-partner and being used to extort his father. The Offender reported that he was suspended a number of times from school due to stealing, unacceptable classroom behaviour and violence towards teachers and fellow students. He completed his School Certificate in Year 10 but by this time he was living in refuges and was unable to complete his studies further. The Offender reported completing two weeks of a barber’s course at TAFE and working for a brief period of time in 2017 as a barber.

38. It is without doubt that the Offender’s caregivers role modelled substance abuse, alcohol abuse and violence towards him. He stated that when he began smoking cannabis as a teenager, he purchased cannabis from the same dealer that his mother had. The Offender reported that smoking cannabis became a daily habit. The defendant began using ice when he was just 13 years of age, becoming a daily user until the age of 20.

39. The Offender reported that the subject offending was the result of a drug related debt that he wished to pay back. He reported attending one session of the Drugs In Remission course at Parklea Correctional Centre which he plans to continue.

40. At the age of 14 the Offender was diagnosed with Crohn’s Disease which resulted in a significant surgical procedure. The Offender now has an ileostomy bag. The Offender has found attending to his hygiene in custody more difficult, but he currently has some privacy as a medical one-out cell placement has been arranged.

41. The Offender reported a history of property and drug related juvenile offending. He incurred his first conviction aged 14 for a break and enter offence. The Offender stated that he always carried a knife with him in the community because he was concerned that he would be stood-over for substances.

32. The Offender stated that he harboured a grievance towards the Terrigal Bottle Shop as his mother and her boyfriend frequented that venue often. The Offender stated that rival dealers in his area committed a home invasion on him, assaulted him and stole $1300 worth of substances. The Offender reported being under the influence of methylamphetamine at the time and acknowledging behaving in an aggressive and intimidating way towards the victims the subject of the offending. This was apparent when in the course of the sentence hearing at the conclusion of the CCTV footage, the Offender can be heard to say, “Jesus Christ”.

33. The Offender reported a history of self-harm and suicide attempts. The Offender reported that he was hospitalised in a psychiatric ward of Gosford Hospital for two days in 2017 after telling an ambulance officer that he would commit suicide. The Offender was briefly placed on an RIT in custody one month ago due to making threats to hurt himself using the “knock-up” button from inside his cell. The Offender reported experiencing symptoms consistent with PTSD including intrusive memories about being drowned as a child.

34. Apart from the psychological material, I have also had regard to the report provided by ACT Corrective Services. The Offender failed to cooperate in the process sought to be adopted by that service, failing to appear for appointments on 4 April and 18 April 2018 resulting in the ACT Corrective Services being unable to complete a Pre-Sentence Report.

35. I should pause to note that the subjective matters are generally uncorroborated; however, I accept that in providing the history as he did, the Offender was doing his best to tell the truth. There were instances though where even the psychologist expressed concerns about the genuineness and reliability of some of his statements.

Deprived Upbringing

46. The Offender’s background can be described as deprived. Just last month in Egan v R [2018] NSWCCA 235, the Court of Criminal Appeal reminded judges that Bugmy type considerations are not limited to a particular class of persons.

47. The circumstances that an Offender has been raised in a community surrounded by alcohol abuse, drugs 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. The effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every case. A background of that kind may leave a mark on the person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending. Attributing full weight in every case is not to suggest that it has the same relevance for all the purposes of punishment. Social deprivation may impact on those sentencing purposes in different ways.

48. In the present case, I accept that the Offender’s upbringing serves to reduce his moral culpability so as to diminish the significance of deterrence both general and specific in favour of the greater need for rehabilitation. The sentence to be imposed has been adapted so as to afford the Offender a greater period for rehabilitation in the community.

Remorse

49. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration. Evidence of remorse must be assessed in context. Remorse is but one feature of post offence conduct upon which an Offender may rely as a matter which has the potential to mitigate penalty. Ordinary human experience however would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.

50. Here the evidence of remorse is the guilty plea, albeit late. Additionally the Offender expressed remorse to the psychologist who interviewed him for the purpose of the psychologist’s report.

51. I note that when first interviewed by the police the Offender denied any knowledge of the offending and his involvement in it which speaks against any early demonstration of remorse. I further note that when first arraigned the Offender pleaded not guilty, which again is not indicative of remorse. Ultimately, however, a guilty plea was entered on the charge on the indictment after negotiations between the parties.

History of Addiction

52. The Offender’s history of addiction must be given some weight in the exercise of the sentencing discretion both as to the sentence but also in determining the extent to which the Offender would benefit from serving all or part of the sentence in the community.

53. The evidence established that the Offender has had an addiction since childhood to both cannabis and methylamphetamine. Additionally, the Offender reported being under the influence of methylamphetamine whilst committing the subject offence.

54. Drug addiction is not a mitigating factor. The reference is the decision of R v Valentini (1989) 46 ACR 23 at 25. The observations in the R v Henry guideline judgment as to the relevance of an Offender’s drug addiction in assessing the objective criminality of an offence and as being a relevant subjective circumstance do not appear to be directly affected by the enactment of s 21A(5AA).

55. Spigleman CJ made clear in R v Henry at 206 that an Offender’s drug addiction is not a matter in mitigation. I refer to the following quotation at [206]:

“I attach particular significance to the impact that acknowledgement of drug addiction is a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain monies to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of monies for some other legal purpose is perverse.”

56. Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice. I refer again to Spigleman CJ at [197] where he stated:

“Drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary just as it varies for individuals who are not affected by addiction.”

57. Persons who choose a course of addiction must be treated as choosing it’s consequences. The reference for that is Spigleman CJ at [198]:

“Not all persons who suffer from addiction commit crime, therefore to do so involves a choice.”

58. There is no warrant in assessing a crime that was induced by the need for funds to feed a drug addiction as being at the lower end of the scale of moral culpability or lower than other perceived requirements for money such as gambling. I refer to Spigelman CJ again at [202]. The proposition has been followed and applied repeatedly and I refer to three cases in particular, that of Toole v R [2014] NSWCCA 318, R v SY [2003] NSWCCA 291 and Jodeh v R [2011] NSWCCA 194.

59. Further, the decision to persist with an addiction rather than to seek assistance is also a matter of choice, per Spigleman CJ at [201] in R v Henry. Those who make such choices must accept the consequences, per Wood J at [257] in R v Henry, with which the Chief Justice agreed. In R v Henry Wood J set down a number of general principles in relation to the sentencing of Offenders with drug addictions at [273]. To the extent that an offence is motivated by a need to acquire funds to support a drug habit or, as here, to repay a drug debt, such a factor may be taken into account as a factor relevant to the objective criminality. This may be done insofar as it assists the court to determine:

1. the extent of planning involved in the offence and its impulsivity;

2. the existence or otherwise of an alternative reason in aggravation of the offence; and

3. the state of mind or capacity of the Offender to exercise judgment, per Wood J at [273] in R v Henry.

60. The use of alcohol or drugs by an Offender may be relevant in sentencing for one or more of a number of reasons. For example, it may be that a crime such as this has been committed in order to provide money for a drug addiction. The origin or extent of a drug addiction or any attempts to overcome it may be relevant in the sentencing process, relevant to subjective considerations where an addiction might:

1. impact upon the prospects of recidivism;

2. impact upon the prospects of rehabilitation

3. suggest that the addiction was attributable to some other event for which the Offender was not primarily responsible thereby removing personal choice; and

4. justify special consideration in the case of Offenders at the cross-roads.

61. I refer to the decision of R v Osenkowski and also the decision of R v Henry and particularly the decision of Wood J at [273] in reference to the principle referred to as (c).

62. While it can be said that the objective of rehabilitation needs to be taken into account along with the other objectives of retribution and deterrence, it is but one aspect of sentencing. Such Offenders should not be placed into a special category, per Wood J at [268-270].

Mental Health

63. It was submitted that, although diagnosed by the psychologist as suffering a major depressive episode, depression was not present at the time of the offence. The psychologist did consider post-traumatic stress to be present at the time, which would affect a person’s ability to act rationally. Whilst this could reduce moral culpability it may also conversely result in an increased sentence due to the danger posed to the community. I refer to the recent decision of the New South Wales CCA in Lawson v R [2018] NSW CCA 215. In the present case, I find that those considerations effectively cancel each other out so as to not have any bearing upon the sentence to be imposed.

64. I further note in the Offender’s psychologist’s report, the author noted that with regards to the diagnosis of PTSD the Offender’s decision to disclose his behaviour appear to be goal-directed towards seeking assistance and the relevance of this to his Court case. The Crown submitted the Offender has not explained further how the offending behaviour was caused or materially contributed to by his mental health condition. The Crown submitted that the third limb of the principle enunciated in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 has not been met and I accept that submission.

Rehabilitation

65. Having given careful consideration to the evidence which informs this matter, I find the prospects of successful rehabilitation to be guarded. That evidence includes the opinion of Ms Brann, psychologist, who recommended that the Offender complete the Drugs In Remission course which he has already begun, as well as a number of other programs within custody. Additionally, rehabilitation will be aided by additional medical treatment through Justice Health. One matter which is of concern to the court in terms of rehabilitation and particularly recidivism is the admitted use of drugs in prison and whilst on bail.

Re-Offending

66. Consistent with my finding concerning rehabilitation, I find the likelihood of re-offending is also guarded. I have also had regard for the opinion as to this matter by Ms Brann who notes the Offender has appeared to idolise and glorify criminal success, this plainly increases the need for specific deterrence.

Approach to Sentencing

General principles

67. Section 3A of the Crimes (Sentencing Procedure) Act sets out the purpose for which the court may impose a sentence on an Offender as follows:

1. punishment;

2. deterrence, both general and specific;

3. protection of the community;

4. rehabilitation of the Offender;

5. accountability by the Offender;

6. denunciation by the court of the offending; and

7. recognition of the harm done by the offending to the community.

68. In Muldrock v The Queen (2011) 244 CLR 120, the High Court considered the statutory purposes with those that had developed common law. There is nothing in the Act to indicate that the Court is to depart from the principles as explained in Veen v The Queen (No 2) (1988) 164 CLR 465. The emphasis to be placed upon the various purposes for sentencing will vary according to the circumstances of each case, including not only the objective seriousness of the offending but the subjective considerations to which I have already made reference.

Instinctive Synthesis

69. Sentencing is ultimately an exercise in instinctive synthesis as the Court of Criminal Appeal recently reminded sentencing judges in the matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes of sentencing in the context of weighing the objective gravity of the offending with the Offender’s subjective case.

70. In the present case there are considerations which work for and against the Offender. The Court in coming to the sentence to be imposed has measured the offending in light of the goalpost considerations which apply, including the guideline judgment of R v Henry against the various features in the subjective case, including the Offender’s upbringing, his addiction to illicit substances and his mental health.

Proportionality

71. The common law has long recognised that the punishment must fit the crime. A sentence should not be increased beyond what is proportionate to the crime in order to merely extend the period of protection of society from the risk of recidivism on the part of the Offender. The principle of proportionality finds its statutory expression in s3A of the Act which states that one of the purposes of punishment is to ensure that the Offender is adequately punished.

72. In sentencing there must be reasonable proportionality between the sentence and the circumstances of the crime. The relevant importance of the objective facts and the subjective features will vary in each case and due weight must be given to the objective circumstances and the court engages then in the process referred to previously of instinctive synthesis.

Imprisonment

73. I must be satisfied having considered all possible alternatives that no sentence including non-custodial sentences other than imprisonment is appropriate. Both the legal representative for the Crown and the Offender conceded that this threshold had been crossed and that is a finding which I make.

Guilty Plea

74. In accordance with s22 of the Sentencing Act, the court must also in passing sentence take into account:

1. the fact that the Offender has pleaded guilty;

2. when the Offender pleaded guilty or indicated an intention to do so, and

3. the circumstances in which the Offender indicated an intention to plead guilty.

75. After taking those matters into account, the Court may impose a lesser penalty than it would otherwise have imposed.

76. In this instance the Offender pleaded guilty on 24 August 2017 following two days of pre-trial argument which would be considered a relatively late stage in assessing the value of the guilty plea. The guilty plea was also made in the face of a strong Crown case which included not only DNA evidence but fingerprint evidence linking the Offender to the crime.

77. The solicitor for the Offender submitted a discount of between 5 to 10%. The Crown submitted 5% in the circumstances. I consider a discount of 5% would be just and reasonable and I find that such a discount will not result in a lesser penalty which is unreasonably disproportionate to the nature and circumstances of the offences.

Special Circumstances

78. It is agreed that special circumstances exist so as to justify a departure from the statutory ratio of parole. This is due to the Offender’s subjective case, this being his first sentence of imprisonment and his medical needs which will undoubtedly make custody more onerous.

79. Having regard to the addresses from both legal representatives as to this matter I find that special circumstances do exist and in the sentencing exercise I have adjusted the statutory ratio down from 75% to 60% to afford the Offender a greater period of time in the community during which he might attempt to further rehabilitate himself.

Consistency

80. The purpose of having regard to statistics is to attempt to achieve consistency in sentencing, not to ensure some mathematical or numerical equivalence. The Court should have regard to the general pattern of sentences. Statistics do no more than establish the range of sentences imposed. Sentencing statistics are indeed a blunt instrument for many offences; culpability varies over so wide a range that the statistics are of limited utility for a particular case. Undue weight must not be given to them.

81. In this case I have considered the statistics for offences of this nature and Offenders of this profile. For offences of this type with a profile of an individual between the ages of 21 and 25 with a plea of guilty, the statistical population is 572 cases. 87% resulted in fulltime custody of between two and a half years and four and a half years.

82. Removing the profile parameters relevant to the Offender from the statistical results creates a population of 2500 cases, 2054 of which resulted in fulltime custody. The range of sentence periods was similar to that referred to.

83. In Barbaro v R; Zirilli v R (2014) 253 CLR 58 the High Court stated that in seeking consistency it is appropriate for sentencing judges to have regard to what has been done in other cases and that they may establish a range. The history is not to be considered as marking the outer bounds of permissible discretion. It is more of a yardstick against which to examine the proposed sentence.

84. This was again emphasised in The Queen v Pham (2015) 256 CLR 550 where Bell J and Geigler J stated at [49]:

“Statistics have a role to play in fostering consistency in sentencing and in appellate review provided care is taken to understand the basis upon which they have been compiled and provided the limitation is explained in Barbero are observed. The value of sentencing statistics will vary between offences.”

85. I have already observed that the statistics are often referred to as a blunt instrument. The use of statistics is well understood and no reference is made in this case to any relevant comparatives or similar cases.

86. It seems to me that in the overall circumstances I need to consider this matter independently of those and consider it specifically in light of its unique and individual circumstances. Having said that however I am satisfied that the sentence to be imposed is consistent with the general sentencing trends referred to previously and also consistent with the seriousness of the offending as suggested by the guide posts including the guideline judgment.

The Sentence

Commencement Date

87. Taking into account time spent in custody prior to the date of sentence, which was as previously stated 26 October 2018, the sentence commenced from 29 June 2018.

Sentence

88. I note that in coming to the sentence in this case, I have taken into account the charge on the Form 1, being robbery armed with an offensive weapon in breach of s97(1) of the Crimes Act. Form 1 matters can justify a significant increase in penalty and reference is made to the decision of the Court of Criminal Appeal in R v Grubbe [2005] NSWCCA 140. With a serious offence on the Form 1 there is an increase in the need for specific deterrence and retribution. It is not without significance that the offending contained on the Form 1 in this particular case is the same type of offending for which the Offender is being sentenced, committed at the same venue at around the same time. I have not placed undue weight on the Form 1 matters so as to result in a sentence which is unduly crushing or harsh.

89. I impose a sentence as I announced on the last occasion consisting of a non-parole period of three years and five months commencing 29 June 2018 and expiring 28 November 2021 at which time you will be eligible for parole. I impose a head sentence of five years eight months which will expire 28 February 2024.

88. I previously directed that a copy of the report by Sarah Brann accompany your warrant of commitment. I previously ordered Justice Health to arrange specialist treatment in relation to your Crohn’s Disease condition as soon as possible and in regards to your mental condition. I endorse your warrant of commitment for treatment in respect of that condition accordingly.

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Decision last updated: 13 March 2019