R v Kuol Ngong Majok Adup

[2009] NSWDC 111

CITATION:	R v TM [2009] NSWDC 111
JUDGMENT DATE:	4 April 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Sentence of imprisonment. Non-parole period of 2 years and balance of term of 2 and 1/2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - juvenile - plea of guilty - armed robbery with a dangerous weapon - whether to deal with according to law - impact on victims of crime - prior criminal record - crime committed in company - planned - applicability of 'Henry' guideline - Juvenile Justice Report - letter of apology to victims
LEGISLATION CITED:	Crimes Act 1900 s 92(2) Crimes (Sentencing Procedure) Act 1999 s 21A(2)(g) Children (Criminal Proceedings) Act 1987 s 18
CASES CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina TM
FILE NUMBER(S):	2009/1241
COUNSEL:	Mr Singh (def)
SOLICITORS:	New South Wales Director of Public Prosecution

JUDGMENT

1 I am going to refer to you as TM because you are a juvenile and the law says that your name is not to be published outside this court. So if my sentence is published it will not identify you except by initials.

2 I am sentencing a young man for a very serious crime. TM is now eighteen but just before Christmas 2008 when he was still seventeen he participated in an armed robbery of a bottle shop at Cherrybrook. It was not an ordinary armed robbery, it was an armed robbery by three young men including TM. In addition, one of the young men was armed with a machete and another young man was armed with a pistol. Hence the kind of armed robbery which TM participated in is called armed robbery with a dangerous weapon under the Crimes Act of New South Wales 1900. Section 92(2) of that Act says that a crime of armed robbery with a dangerous weapon carries a maximum of twenty five years imprisonment. Twenty-five years imprisonment is the longest sentence which the Crimes Act provides for apart from life imprisonment. This crime, in other words, is in the same category as crimes such as manslaughter and sexual intercourse with a child under ten. It is a very serious offence.

3 I should start by describing in a little more detail what happened. It was a Saturday night at about 9.30. There was a Liquorland Bottle Shop in a shopping centre in Cherrybrook. The member of staff who worked there that night was himself just nineteen years of age. Three men came into the shop. At the time the assistant was, in fact, talking to one of his customers, a young man aged only twenty. TM was one of the young men who came in. They had dark hoods pulled over their heads and they were wearing black balaclavas which disguised their faces. One of the young men was armed with a 60 centimetre machete. The other had an 8 inch long silver pistol. The young man armed with the machete held it against the customer’s neck. One of the young men said “Do you want blood. This is for real”.

4 The facts which are agreed and are part of exhibit A say that both of the victims were in fear for their life. They thought they would be shot or stabbed. In fact, the young man who was the customer was so frightened he dropped to his knees and put his hand on his head. The robbers knocked over a display. They ordered the attendant to open the safe. One of the men then held the machete to the back of the attendant. They took some money and some cigarettes. The money was a little under nine hundred and fifty dollars. On the way out a security guard was approaching the scene but the young man armed with the pistol pointed it at the security guard who wisely stopped in his progress. Police were alerted. It was obviously regarded as a very serious crime. Anti-theft units attended, the Dog Squad and the police Air Wing were activated.

5 The young men including TM were found and arrested. A gym bag was found containing gloves, jackets, balaclavas and the proceeds to the robbery. Police cannot determine which young man had the machete and which young man had the pistol. That does not matter all that much because all three were guilty fully of the same crime and participated obviously in full knowledge of the fact that two of them were armed.

6 It is important in crimes such as this to note the impact which they have on the victims of the crime. The attendant remembered one of the young men saying when he was standing very close “Do you want some blood? This is for real!”. The young men were shouting. The attendant said that during the whole incident he was scared for his life. He was shaking and felt sick. This comes as no surprise. It will, as Mr Singh who appeared for TM correctly acknowledged, be an experience which the bottle shop attendant will never forget, nor will the customer ever forget. He said in his statement that the number one thing that was going through his head was “I’m going to be shot”. In fact, he heard one of the men say “Should I shoot him?”. He also heard “Do you want blood? Is there going to be blood?”. He described the tone of the voices as very aggressive. He said that during the whole episode he felt very unsafe. He felt like he was having an anxiety attack. He felt his life was threatened.

7 As I said none of this is surprising. It was a very confronting and violent episode. When I say “violent” I mean violence in the circumstances of the confrontation. I do not mean that actual physical violence was inflicted upon any of the victims.

8 The impact on victims of these sorts of crimes is taken into account by Parliament in fixing a maximum of twenty-five years imprisonment. This case does not fall within the category envisaged by s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 where the emotional harm was substantial. That is not to underrate the effects which the crime had on the young men who were its victims.

9 There are a number of aggravating features apart from the ones that I have mentioned about this crime. It is serious enough in itself but, in fact, it was committed by TM when he had been granted liberty by another court. On 25 July 2008 the Parramatta Children’s Court had to deal with him for an offence of aggravated entering a building within intent and in company. That too is a very serious crime. The Children’s Magistrate obviously decided to be lenient to TM. The Magistrate granted him a twelve month good behaviour bond. Instead of using that good behaviour bond to get on with the process of sorting his life out, TM committed this crime only five months or so after getting that bond. When a criminal commits a crime when the criminal is on what is called “conditional liberty” - a bond or bail are examples - that is an aggravating feature of the crime.

10 TM has a criminal record. It is short but contains at least one significant entry, that is the one I have already referred to of aggravated entering a building with intent and in company. Additionally, he has been dealt with for possessing a knife in a public place. That is not a good thing to have on his record when I am dealing with him for a crime involving the use of a machete.

11 A further aggravating factor of this crime was that it was committed not just by one person but by three. Committing a crime in company with others is regarded by Parliament as more serious because of the threat that the confrontation by a number of people presents to the victims.

12 A further aggravating feature of this crime is that it was obviously planned to some extent. The offenders had to obtain the weapons. In addition, they had clothes which I have described in order to disguise themselves and the police found gloves in the bag as well.

13 A further feature which aggravates this crime is that one of the victims, namely the bottle shop attendant, was regarded by Parliament as particularly vulnerable. Section 21A(2) of the Crimes (Sentencing Procedure) Act lists aggravating factors to be taken into account in determining an appropriate sentence. Clause (l) is a factor relevantly described as a vulnerable victim, for example, someone who was vulnerable because of the victim’s occupation. Examples are a bank teller or service station attendant. I am satisfied that the bottle shop attendant fell within that category of vulnerable persons which aggravates the offence in this case.

14 I have a good amount of material before me about TM’s personal circumstances. Because of his age he has been assessed by the Department of Juvenile Justice and a couple of very helpful reports have been prepared and supplied to me.

15 TM comes from a disrupted background in this sense. His father from whom his mother separated some time ago was a former police officer. He was discharged from the Police Force. It seems that at least one reason for the discharge that he was a heroin addict. The history taken by the Juvenile Justice officer also records that there was alcohol abuse by both parents and domestic violence. TM’s mother at least one stage had to seek refuge in a women’s refuge because of the violence going on at home. TM’s mother is in a better position in life now and is able to support him in the circumstances that he now finds himself. In addition, he has a supportive elder brother, Luke.

16 The Juvenile Justice officer noted that TM was unable to explain why he committed the robbery adequately. His explanation was that his mother was not able to “buy me stuff”. He was not able to elaborate on what he meant by “buying me stuff”.

17 The Juvenile Justice officer noted that to some degree he understood the impact of what he had done on the victims but also noted that “he demonstrated limited insight and remorse for his offending behaviour, yet indicated that it should not have occurred”.

18 TM was interested in joining the Australian Army but was not successful which had an impact on him. He has had very limited experience in employment. There are no issues concerning drug or alcohol so far as he, himself, is concerned.

19 He has been in custody since his arrest on 6 December 2008. He seems to be settling in well although once he turned eighteen in January this year he discontinued schooling in custody.

20 In assessing TM the authors of the report - which became exhibit B and was dated 5 March 2009 - noted that it would appear that his attitude to the reasons for committing the offence would need to be addressed. It acknowledged his exposure to violence, abuse of alcohol and other drugs and the obvious impact which this had on TM’s life. TM is also supported by his brother William and by an uncle, David Murchison. The authors of the report sensibly suggested some courses and programs which would be of assistance whilst TM is in custody.

21 An up to date custody report dated 3 April 2009 notes that he interacts well with his peers and responds well to staff. It observes that he is polite and respectful and displays mature behaviour complying with directions and the daily routine. He participates in activities that are offered to him and is particularly keen on physical activity.

22 He has signed a letter directed to the staff of the Liquorland which he held up at Cherrybrook, apologising for his behaviour and offering no excuses. In fact, he acknowledged that his own mother had had some experience at being held up in the course of her employment at one stage. He said that he had spent a month in custody and had time to reflect on his actions. He repeated his apology. Clearly that letter was written during January this year and Mr Singh who appears for TM informed me that the letter was delivered yesterday afternoon. The delay in the delivery was explained by uncertainty as to the appropriate persons to whom it should be delivered.

23 TM’s brother, William, has written a letter about his brother, pointing out the difficulties which both young men confronted in their family with their violent and drug addicted father. William sees his brother a couple of times per week and is encouraging him about the life choices which he now needs to make. He is obviously supportive of his brother and behind efforts which he may make to rehabilitate himself as well as any efforts to secure employment.

24 An important feature which I have not mentioned yet is that TM pleaded guilty to this offence and the prosecution accepts that his plea of guilty occurred at the earliest available opportunity.

25 One of the things which I have to decide in a case such as this is provided for by the Children (Criminal Proceedings) Act 1987. Section 18 provides that I need to decide whether to deal with TM according to law or according to the more limited and lenient options available under the Children (Criminal Proceedings) Act in the Children’s Court. What I have to take into account is the seriousness of the offence that he was charged with and how serious an example that kind of offence was committed by TM. In addition, I am able to take into account his age and maturity when he committed the offence and the seriousness and nature of any prior convictions as well as any other relevant matters.

26 Most of those factors are against TM. As I said the crime that he is charged with carries a maximum of twenty five years imprisonment. Only life imprisonment is more serious. The seriousness of the particular crime committed by TM, as I have described it, is aggravated by many features and I regard it as a particularly serious example of that kind of crime. He was nearly eighteen when he committed this crime and has at least one serious item on his criminal record. I regard, taking into account those factors, that it is appropriate that I deal with this matter according to law.

27 I need to take into account in reaching a sentence the fact that TM is a young person. The factors which influence a court in sentencing young offenders are additional to the factors which the court takes into account in sentencing an adult offender. For that reason sentences imposed on young offenders will often be significantly lower than those imposed on adults.

28 Another factor which is indirectly relevant is a guideline judgment delivered by the Court of Criminal Appeal concerning the offence of armed robbery. The guideline judgement is R v Henry (1999) 46 NSWLR 346. That is for what might be described as a straightforward armed robbery against s 97(1) of the Crimes Act. That carries a maximum of twenty years.

29 The guideline judgment lists a number of factors which judges take into account which the court described as common to many of these offences. One of those factors is that the offender is young with little or no criminal history. TM was young but had a significant item on his criminal record. Another factor is that the weapon used was like a knife or something capable of inflicting serious injury. The weapons in this case were a machete and a firearm. The firearm is regarded so seriously that it is described by the law as a dangerous weapon. Another factor which the guideline judgment in Henry refers to is the limited degree of planning. There was what I would describe as more than a limited degree of planning in this case. It was probably not planned extensively but it was far from being a spontaneous effort given the weapons which were used and the efforts to disguise the offenders. Other factors are relevant to this case such as no actual violence, a victim being vulnerable such as a shopkeeper and a plea of guilty. One of the factors is the small amount taken. It is difficult to classify this: it does not fall into the category of thousands of dollars, nevertheless it is not far short of one thousand dollars.

30 The guideline judgment in Henry’s case suggests that for sentences for offences of the kind containing the sorts of factors referred to generally fall between four and five years of imprisonment for the full term. This case is more serious than the case envisaged by the guideline in Henry. I would regard an appropriate sentence as being in the range of six years imprisonment for an offence such as this.

31 However TM has pleaded guilty. That has saved the resources of the court considerably as acknowledged by Mr Low who appears for the prosecutor. I propose to allow TM the full discount of twenty-five per-cent which the law permits for that plea of guilty. I therefore regard an appropriate sentence in this case as four and a half years which will be the sentence which I will impose shortly.

32 It is normal - and I will in this case - to set a non parole period. That is the period which an offender must remain in prison before being eligible to be released. Normally the non parole period is three-quarters of the full sentence. That ratio can be altered if special circumstances are demonstrated. Mr Singh argues that there are special circumstances in this case. He refers to his client’s age and to the fact that it is his client’s first time in custody. He argues that a longer than usual period on parole would be needed to assist with this young man’s rehabilitation. That submission is not opposed by Mr Low.

33 Mr Singh suggested an appropriate sentence would be within the range of three years with eighteen months non parole. I have already determined that three years is an insufficiently heavy sentence for the serious crime which TM committed. In addition, Mr Low argued that a sentence of three years would be erroneously low. I have determined that an appropriate non parole period would be two years which will allow a very generous two and a half years on parole for TM to use the resources which are offered to him to get his life back on to track with the support offered by his family, especially his mother, his older brother and his uncle.

34 I am going to sentence you now, if you would stand up. TM for the offence of armed robbery with a dangerous weapon I set a non parole period of two years to commence when you went into custody on 6 December 2008 and to expire on 5 December 2010. The balance of the term will be two and a half years commencing on 6 December 2010 and expiring on 5 June 2013. The overall sentence is, therefore, four and a half years from 6 December 2008 to 5 June 2013.

HIS HONOUR: Mr Singh and Mr Low, it is over three years so I do not make an order for parole, am I right? Section 50 does not apply?

LOW: Yes, your Honour.

HIS HONOUR: Section 50 does not apply?

SINGH: No.

LOW: No, it doesn’t.

HIS HONOUR: Now, what other orders do I need to make?

LOW: The only other issue would be to where he is to serve the terms of that section.

HIS HONOUR: Thank you what is that section?

LOW: Section 19 of the Criminal Practice and Procedure Act.

HIS HONOUR: The Criminal Practice and Procedure Act or is it the--

LOW: It is the Children (Criminal Proceedings) Act 1987.

HIS HONOUR: And it obviously should be served in a detention centre, do you agree Mr Low?

LOW: It is well within the period of twenty-one years and six months which he may have to have serve up to your Honour.

HIS HONOUR: Yes.

35 Under s 19 of the Children (Criminal Proceedings) Act 1987 I make an order directing that the whole of the term of the sentence of imprisonment which I have just imposed be served as a juvenile offender.

HIS HONOUR: I will explain all that to TM in a moment. Are there any other matters that I need to attend to, Mr Low?

LOW: No your Honour.

SINGH: Yes your Honour. The plea was entered in the Children’s Court. I wonder if it is on record that he has adhered to his plea in this court, your Honour, because I would say he would adhere and would have adhered if the question was asked.

HIS HONOUR: Thank you, that is now on the record that he has adhered to his plea, thank you. I should convict him too.

I formally convict him of the offence.

HIS HONOUR: Anything else gentlemen?

SINGH: That is all.

36 TM stand up again. You have four and a half years. You have heard me say why. That is because what you did was a very serious crime. You got yourself into the league of twenty-five years imprisonment, that kind of offence and you have heard me compare it with other sorts of crimes. You did a really bad thing and it was aggravated for a number of reasons, you got yourself into a very bad league. For the reasons that I have given I have decided that four and a half years is the appropriate prison sentence. You will serve that as a juvenile not as an adult. It commences when you went into juvenile detention on 6 December 2008, so the four and a half years finishes on 5 June 2013. But you have a non parole period of two years. So that you are eligible for parole - it is not something I order- you are eligible for parole on 5 December 2010 and that is the first opportunity you will have to go onto parole. Do you understand?

OFFENDER: Yes

37 Now use the time. You have been using it well by the sounds of it whilst you were in custody. This is my advice, it is not part of the order. People in juvenile detention are very experienced. They know what they are doing. They are used to helping young men such as you. You are lucky. You have a very supportive family, that is really important in your rehabilitation. Your family and the people in juvenile detention can help you get your life back on track. To your credit you do not have any drug issue. You do not have any alcohol issues, so you have the potential with all that support to get yourself back on track. Use those resources. Let everyone who is prepared to help you, help you because they know what they are doing.

Do you understand?

OFFENDER: Yes.

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