R v Kyle Churchill; R v Michael Churchill
[2018] NSWDC 63
•23 March 2018
District Court
New South Wales
Medium Neutral Citation: R v Kyle Churchill; R v Michael Churchill [2018] NSWDC 63 Hearing dates: 16 March 2018 Decision date: 23 March 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentences. For orders see [67] and [68]
Catchwords: Armed robbery; co-offenders Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: R v Goundar (2007) 127 ACrimR 331
R v Henry & Ors(1999) 46 NSWLR 346Category: Sentence Parties: Director of Public Prosecutions (Crown)
Kyle Chuchill (Offender)
Michael Churchill (Offender)Representation: Counsel:
B Queenan (Crown Prosecutor)
B Neild (Offender Kyle Churchill)
P De Dassel (Offender Michael Churchill)
File Number(s): 17/38255, 17/35998 Publication restriction: Nil
REMARKS ON SENTENCE
Introduction
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The offenders pleaded not guilty to two counts on an Indictment as follows:
That on 25 January 2017, at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Kaben Genoli of an Apple Iphone 4.
That on 25 January 2017, at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Tristan Genoli of a sum of money.
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Both counts were offences pursuant to s 97(1) of the Crimes Act 1900.
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The trial commenced on 8 February 2018 at Taree District Court, and on 16 February 2018, both offenders were found guilty on both counts on the Indictment.
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The following summary of facts may be derived from the jury’s finding. In the early hours of the morning on Boxing Day 2015, Kaben Genoli met the offender Kyle Churchill at Gloucester. They smoked the prohibited drug ice together in a car with other people, and had a conversation about “bikes, go‑carts, pocket rockets, and drugs”. In that conversation, Kyle Churchill told Kaben Genoli that he had, or could get access to go-carts for sale, and Kaben Genoli told him that he had a brother, Tristan, who was interested in buying them for his children. Kyle Churchill also offered to sell Kaben Genoli the drug ice, but told him that he would have to travel to Nabiac to obtain it. They exchanged contact details and throughout January 2016 contacted each other. On 25 January 2016, they had a telephone conversation in which Kaben Genoli agreed to purchase ice from Kyle Churchill in Nabiac. That transaction was to be done “on the sly”, because Tristan Genoli was going to drive his brother Kaben from Gloucester to Nabiac to purchase a go-cart or go-carts from Kyle Churchill.
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On that day, there were a number of text messages and phone calls between Kyle Churchill and Kaben Jenoli. Kyle Churchill knew that Kaben Genoli was driving to Nabiac with his brother, and the arrangement was that Kaben Genoli would contact him once they arrived in Nabiac.
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Kaben Genoli rang Kyle Churchill following their arrival in Nabiac, and met him at a local park, where he was with the co-offender, Michael Churchill, his uncle. The two men got into Tristan Genoli’s vehicle and Kyle Churchill directed them to a home in Nabiac. When they arrived at the house, Kaben Genoli, Tristan Genoli and Michael Churchill went to a shed at the rear of the premises where there were two children’s electric go-carts. Kyle Churchill went into the house.
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A short time later, a woman called out from the house, asking for Michael Churchill to come into the house. He left the shed and entered the house.
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The female voice was that of Tanya Sultana, who lived at the premises. Kyle Churchill had intended to obtain ice from Tanya Sultana, who had a brother who had supplied it to them in the past. On this occasion, she was unable to obtain any ice. Kyle Churchill said to Michael Churchill, in the presence of Tanya Sultana, “They owe me money, let’s roll ‘em”.
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Kyle Churchill then obtained a baseball bat from Tanya Sultana’s bedroom. Michael Churchill had a black steel pole, about half a metre in length. They left the house and went into the shed.
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Inside the shed, Kyle Churchill demanded money from Kaben Genoli. Michael Churchill threatened to “kneecap” Tristan Genoli.
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Kaben Genoli told them that he did not have the money, and Michael Churchill turned to Tristan Genoli. He took $505 from his wallet, and then took his driver’s licence out of his wallet, and when looking at it said, “If youse go to the police or youse do anything, I’m going to come – we’re going to come to this address”. He then gave the wallet and licence back to Tristan Genoli.
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Kaben Genoli had cash hidden in his sock. He was told to kneel down and asked to empty his pockets, and when he did so, Kyle Churchill took his Apple iphone 4.
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The offenders then told Kaben and Tristan Genoli to get out of the shed, and they left the premises with the two offenders walking behind them. When they were in the car, Kaben Genoli told his brother Tristan to drive around the block. They did that, and returned to the house where Kaben Genoli got out of the car and saw the offender Kyle Churchill near the front door. He said to him, “Give us me stuff back or you’re going to be sorry. Just give me that stuff back or you’ll regret it”. Kyle Churchill went inside and Kaben Genoli threw a rock at the house, hitting a window which broke. He then threw another rock which missed the house, at which stage Kyle Churchill came out of the house with the baseball bat. Kaben Genoli got into his brother’s car and they went to the Nabiac Police Station. That station was unmanned and they called the Forster Police. They were told that there would be a delay, and so they drove back to Gloucester where they were later interviewed by police at Gloucester Police Station, where they made statements.
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In his statement, Kaben Genoli made no disclosure about his purpose of going to Nabiac to purchase drugs from Kyle Churchill. He later disclosed that in a statement to police, within a week of the trial commencing.
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The offenders contended that what in fact occurred was that Kyle Churchill had exchanged not the drug ice, but rock salt in return for money, and when the Genolis discovered that fact, they returned to the house to demand their money back. That contention was not accepted by the jury by their verdicts.
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The maximum penalty proscribed for an offence pursuant to s 97(1) of the Crimes Act 1900, is 20 years imprisonment.
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The criminal antecedents of each offender were tendered and were marked as Ex A for each sentence.
The sentence hearing
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The sentence hearing took place on 19 March 2018. The Crown tendered the custodial record of each offender which became Ex B for each sentence.
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Kyle Churchill tendered a character reference from Mr Robert Ward which became Ex 1.
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Michael Churchill tendered a bundle of medical reports from Manning Base Hospital (Ex 1), together with a bundle of character references (Ex 2).
The Crown submissions
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The Crown relied on a thorough written outline of submissions on sentence which attached a copy of the Crown Case Statement summarising the allegations. That summary reflected in the jury findings of fact outlined above.
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Kyle Churchill was arrested on 6 February 2017 and has been in custody since that date. Michael Churchill was arrested on 3 February 2017 and has also been in custody since that date. The Crown set out the general principles of sentencing underlining the purposes of sentencing set out in 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). It also set out the principles relating to the offence of robbery, and the guideline judgment of R v Henry & Ors(1999) 46 NSWLR 346. The principles derived from that authority are outlined below. The Crown noted that some of the guideline factors have now been amalgamated into s 21A of the CSPA.
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In respect of the assessment of objective seriousness of the offending here, the Crown referred to the maximum penalty for an offence pursuant to s 97 as being 20 years imprisonment. The Crown submitted that the facts spoke for themselves here. The offending, in respect of each offender, fell just below the mid-range of objective seriousness. No injuries were occasioned to either of the complainants, and whilst a baseball bat and an iron bar were clearly offensive weapons, they are perhaps slightly below other weapons such as machetes and knives. It was submitted that the sentence must reflect the seriousness of the offending, and be proportional to the criminality involved in the offending. The Crown relied on the following aggravating factors pursuant to s 21A(2) of the CSPA:
(2)(b) involved the actual threatened use of violence. The Crown accepted that the threat of violence was an element in the present offence.
(2)(e) in company. The Crown noted that the offence was committed in company.
(2)(j) conditional liberty. The Crown noted that Michael Churchill was placed on a s 9 bond for a period of 12 months from 7 September 2016. The present offending occurred during the currency of that bond.
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The Crown submitted that there should be no finding of special circumstances pursuant to s 44(2) here. The Crown also provided JIRS statistics in respect of offending pursuant to s 97, but noted that such sentencing statistics should be treated with some caution.
Submissions on behalf of Kyle Churchill
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Learned Counsel on behalf of the offender Kyle Churchill provided a written outline of submissions in which it was accepted that the facts to be found by the court, consistent with the jury verdict, would be in accordance with the evidence given by Kaben and Tristan Genoli. That evidence was, for the most part, adequately summarised by the Crown allegations, however, one feature that was missing was the fact that Kaben Genoli had also arranged to purchase the drug ice from the offender. That is reflected in my findings outlined above.
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In relation to the objective seriousness of the offending, the offender relied on the following:
The weapons used were less inherently dangerous than cutting weapons such as knives or similar.
There was no inherent vulnerability of the victims
There was no evidence of professional planning or execution.
No actual force was used and there were relatively minor threats of force.
No evidence of trauma being suffered by the victims; and
Relatively minor value of property taken.
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The offender agreed that an aggravating factor pursuant to s 21A(2)(e) was that the offence was committed in company. There were no mitigating factors. It was submitted that the objective seriousness was submitted to be ultimately half way between low and mid-range for offences of this type.
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Counsel outlined the following subjective matters on behalf of Kyle Churchill, which were not challenged by the Crown:
He enjoyed an upbringing that was both good and bad.
He was raised by his mother and his brother’s father.
In approximately 2015, he learned for the first time that the person he believed to be his natural father, was not in fact his natural father, which provoked a tumultuous period in his life, including feelings of anger towards his mother for lying to him for so many years.
He began smoking marijuana when he was approximately 16 years old, with friends from school.
He is not entirely sure how he started using methylamphetamine, but it occurred shortly after he learned the truth about his father.
He attended Nabiac Primary School and Tuncurry High School.
His grades were good, approximately a B on average.
He was expelled in year 12 for fighting.
He intends to finish his Higher School Certificate at some point in the future.
After leaving school, he has worked in a number of jobs, most notably as a pilot driver with Advanced Piloting Logistics, escorting oversized trucks.
He was living in Sydney while performing this work.
He was back in Nabiac on holidays from this job at the time of the sentence offences.
He anticipates being able to return to that work on his release from custody.
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It was submitted that in regard to his young age, the court might find that the offender was unlikely to reoffend and also have good prospects of rehabilitation, although it was conceded such findings much necessarily be guarded in the fact of the offender’s maintenance of innocence of the offences for which he stands to be sentenced.
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It was conceded on behalf of the offender that no sentence other than full time custody is appropriate. It was further submitted that the court might structure the sentences for the two offences so there is minimal, if any, accumulation between them, given they arose out of the same course of criminal conduct.
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It was further submitted that the court would find special circumstances, based upon the offender’s youth, the fact that he spent only relatively short times in custody previously, and upon the need for an extended period on parole to assist him in rehabilitating himself from the use of illegal drugs.
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In oral submissions, learned Counsel submitted that the principle of parity should apply to sentencing both offenders. It was submitted there was no meaningful distinction between them. Michael Churchill had a lesser role in planning the offences, but no lesser role in the execution, and they were thus relatively equal.
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Counsel conceded that the assessment of objective seriousness of the offending was in line with the Crown submission.
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It was submitted that there were unchallenged subjective factors to be taken into account here. The offender was a young man of 22 years of age, with some promise. Whilst he had some criminal history, none of his previous offences were as serious as the current offending. An offence for which he was sentenced on 21 August 2015 of being armed with intent to commit an indictable offence, concerned him producing a knife within a house out of anger, following an argument. It was conceded that his criminal antecedents did not entitle him to leniency. Another offence of escape lawful custody concerned him leaving the Forster Police Station on foot during a lunch break.
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The offender had a supportive family and Ex 1, the reference from Mr Ward, his employer, spoke highly of his work ethic and included prospects for future employment. In custody, he had already completed one course with respect to drug abuse. A finding of special circumstances was warranted, given his need for rehabilitation, and assistance with reintegrating into the community.
Submissions on behalf of Michael Churchill
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Learned Counsel for the offender Michael Churchill also provided a written outline of submissions. It was submitted that the following mitigating factors were present pursuant to s 21A(3) of the CSPA:
(3)(b) the offence was not part of a planned or organised criminal activity. The offender’s involvement occurred “on the spot” at the time of the idea to “roll the victims”.
(3)(a) the injury, emotional harm, loss and damage caused by the offence was not substantial. There was no evidence of any significant psychological or emotional harm to the complainants. Mr Kaben Genoli had given evidence of being somewhat experienced at being ripped off during drug transactions. Further, it was submitted that the actions of the victims in damaging Ms Sultana’s home to vent their anger, showed how little emotional harm there was.
(3)(g) the offender is unlikely to reoffend. Whilst the offender had a criminal record, it was submitted that this sort of offence was out of character for him and he was therefore unlikely to offend in this way again.
(3)(h) the offender has good prospects of rehabilitation, whether by reason of his age or otherwise. The offender had good prospects of rehabilitation bearing in mind his attitude to turn his life around and the excellent family support he had to assist him with any rehabilitation.
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The following aggravating factors were conceded. Pursuant to s 21A(2)(j), in that the offence was committed while the offender was on conditional liberty, having been placed on a s 9 bond for a period of 12 months on 7 September 2016; and also pursuant to 21A(2)(e), in that the offence was committed in company.
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Learned Counsel submitted that the moral culpability and criminality with the joint criminal enterprise of the co-offenders was equal. Each had a weapon. The offender was, on any objective analysis, not the leader, but he became a willing participant when told by his co-offender about his idea of “rolling the victims”. It was submitted, however, that where the robbery proceeds according to plan, without violence beyond that contemplated and threatened by the presence of the weapon, each participant shares equal responsibility, relying on R v Goundar (2007) 127 ACrimR 331.
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In assessing the objective seriousness of the offence, Counsel submitted that the following matters be taken into account:
The weapons used were less inherently dangerous than cutting weapons such as knives.
No inherent vulnerability of victims.
No evidence of professional planning or execution.
No actual force used.
No evidence of trauma being suffered by the victims; and
Relatively minor value of property taken ($505 and an iphone 4).
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It was submitted that the objective seriousness fell below the mid-range of objective seriousness for an offence pursuant to s 97.
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Counsel also set out a number of significant subjective matters affecting the offender. At 14 years of age he had been diagnosed with HADD and in 1994 he was diagnosed with schizophrenia. He had had problems with alcohol and drugs over the years and became homeless in 2016.
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In 2002 the offender’s fiancée had died. He had never gotten over her death or received help in dealing with her death, which had affected his mental state.
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The offender had been abstinent from drugs since his incarceration on 3 February 2017. He had expressed a hope to be accepted into rehabilitation and had family support in that endeavour. He had recently stabilised on his medication to treat a mental health diagnosis of schizophrenia.
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It was submitted that the sentences should run concurrently as they arose out of the same course of criminal conduct. Having regard to the offender’s chronic mental illness, and the need for rehabilitation, a finding of special circumstances should be made pursuant to s 44 of the CSPA.
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In oral submissions, Counsel referred to the family support as evidenced by the three character references from members of his family (Ex 2). The hospital records were evidence of his mental health condition.
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It was submitted that his criminal antecedents revealed that in 2002 he had been sentenced to a period of periodic detention of 14 months. Any sentence should commence on 3 February 2017.
Determination
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Section 3A of the CSPA sets out the purposes of sentencing as follows:
“3A
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community.”
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In the guideline judgment of Henry, supra, Spigelman CJ at [162] identified the category of case upon which the guideline was based. It involved the following features:
Young offender with no or little criminal history
Weapon like a knife, capable of killing or inflicting serious injury
Limited degree of planning
Limited, if any, actual violence, but a real threat thereof
Victim in a vulnerable position such as a shopkeeper or taxi driver
Small amount taken
Plea of guilty, the significance of which is limited by a strong Crown case.
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The Court identified a range of sentences for such a case of 4-5 years for the full term, with aggravating and mitigating factors justifying a sentence above or below the range. At [170] Spigelman CJ said as follows:
“In addition to factors which may arise in any case, for example, youth, offender’s criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail et cetera, a number of circumstances are particular to the offence of armed robbery. These include:
(i) Nature of the weapon
(ii) Vulnerability of the victim
(iii) Position on a scale of impulsiveness/planning
(iv) Intensity of threat, or actual use of force
(v) Number of offenders
(vi) Amount taken
(vii) Effect on the victim(s).”
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The guideline judgment also took into account a guilty plea of limited value. That should be understood to involve a late plea of guilty for the purpose of the application of the guidelines.
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I accept the Crown submissions here that the objective seriousness of the offending was below the mid-range for an offence pursuant to s 97(1) of the Crimes Act. However, it still constituted serious offending, given that the co‑offenders armed themselves with a baseball bat and a metal bar. I have taken into account, however, that more serious weapons were not used, and unlike the guideline judgment, there was no inherent vulnerability of the victims. There was limited planning on the part of Kyle Churchill and no actual force used.
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I have also taken into account that there was relatively minor value of property taken and the aggravating factor that the offence occurred in company.
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Whilst below mid-range, the offending still constituted serious criminal conduct, the objective seriousness of which fell just below the mid-range of offences pursuant to s 97(1).
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I have taken into account the maximum penalty of 20 years imprisonment for the offence pursuant to s 97(1) as a guidepost in the sentencing process.
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General deterrence is also important in the sentencing process of Kyle Churchill here. A clear message must be sent to the community that courts will not tolerate such serious criminal offending and will impose harsh penalties in relation to it. Specific deterrence also applies, given the criminal antecedents of both offenders.
Sentencing of Kyle Churchill
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The offender was born on 20 December 1995 and was 21 years of age at the date of the offences. He is presently 22 years of age.
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The offender’s criminal antecedents were all relatively recent. In 2014 he was convicted of offences for common assault, goods in custody and possess or use a prohibited weapon without a permit. For each of those offences he was fined. In 2015 he was convicted of two offences of common assault, one of destroy or damage property and an offence of armed with intent to commit indictable offence. For the common assault offences he was sentenced to a fixed term of imprisonment of three months to be served concurrently and the destroy damage offence also incurred a term of imprisonment of one month to be served concurrently. In respect of the offence of being armed with intent to commit an indictable offence, he was sentenced to a term of imprisonment of 12 months with a non-parole period of 6 months, also to be served concurrently. Following those offences, there were three possession of prohibited drug offences, for which he was also sentenced to a term of imprisonment of one month on each to be served concurrently, and the offence of escape from lawful custody, for which he was sentenced to a term of imprisonment of two months from 20 January 2016. Other drug offences in 2015 also attracted terms of imprisonment, as did an offence of goods in personal custody suspected being stolen. It is clearly a record which disentitles him to any leniency in the sentencing process. It manifests an attitude of continuous defiance for the law.
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I have taken into account the significant matters put on behalf of the offender as to his subjective features. I am unable to find that he is unlikely to reoffend, as advocated by his Counsel, however, he may have good prospects of rehabilitation, notwithstanding him maintaining his innocence in respect of the offences for which he has been found guilty. Given the escalating nature of his offending since 2014, it is important that he be given the opportunity for rehabilitation, otherwise he will find himself having increasingly long terms of imprisonment imposed if his criminal conduct continues.
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Importantly, the offender has a good work record with Advance Piloting Logistics, and I was impressed by the reference provided by his employer, and the promise of a return to that work upon his release from custody.
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Having regard to his need for drug and alcohol rehabilitation, and anger management counselling, his young age and the fact that this is his first lengthy term of imprisonment, I find that special circumstances are established pursuant to s 44(2) of the CSPA. I therefore intend to vary the usual ratio between head sentence and his non-parole period.
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As the two offences arose from the same incident, and the same course of criminal conduct, I intend to order that the sentences be served concurrently. Clearly, I am satisfied that no sentence other than a full time custodial sentence is warranted in the circumstances pursuant to s 5 of the CSPA.
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For each offence, I intend to sentence the offender to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months, to be served concurrently. The sentence will commence on 6 February 2017.
The sentencing of Michael Churchill
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The offender was born on 12 May 1980 and is now 37 years of age. Given his diagnosis of schizophrenia, he is not an appropriate vehicle for general or specific deterrence. I accept the subjective matters put on his behalf, and that he has been abstinent from drugs for the period of 14 months during which he has been incarcerated. The offender’s criminal antecedents revealed a number of drug offences for which he received fines in the distant past. In 2002 he was sentenced to periodic detention for three months for two offences of assault occasioning actual bodily harm and contravene an apprehended violence order. Relevantly, on 21 August 2016, he was fined $500 and placed on a s 9 bond to be of good behaviour for a period of 12 months in respect of a domestic violence/common assault offence. He was therefore on conditional liberty at the time these offences took place.
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Whilst the evidence does not establish that the offender was involved in the any planning relating to the offending, he was part of the joint criminal enterprise involved in this offending. Principles of parity therefore apply in sentencing the offender. Those principles being that the co-offender should be treated by way of similar sentence, unless there are distinguishing features. Here, those distinguishing features balance each other out, for example, the co-offender Kyle Churchill, is much younger than his uncle, but has a more recent and serious criminal history. Further, the offender suffers from a mental health condition and therefore is not a suitable vehicle for general and specific deterrence.
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I find that there are special circumstances pursuant to s 44(2) of the CSPA based on the offender’s ongoing need for treatment for his schizophrenia, together with his drug and alcohol rehabilitation. I therefore intend to vary the ratio between head sentence and non-parole period.
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Having regard to the serious nature of the offending, the subjective matters outlined above, and the aggravating and mitigating factors present, I intend to sentence the offender to a term of imprisonment in respect of each offence of 4 years and 6 months, with a non-parole period of 2 years and 6 months.
Orders in respect of Kyle Churchill
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I make the following orders in respect of Kyle Churchill:
You are convicted of the following two offences:
That on 25 January 2017 at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Kaben Genoli of an apple iphone 4 pursuant to s 97(1) of the Crimes Act 1900.
That on 25 January 2017 at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Tristan Genoli of a sum of money pursuant to s 97(1) of the Crimes Act 1900.
In respect of each offence, you are sentenced to a Non-Parole Period of 2 years and 6 months to commence on 6 February 2017 and to terminate on 5 August 2019.
The balance of sentence in each case will be a term of 2 years to commence on 6 August 2019 and to terminate on 5 August 2021.
The sentences are to be served concurrently.
Orders in respect of Michael Churchill
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I make the following orders in respect of Michael Churchill:
You are convicted of the following two offences:
That on 25 January 2017 at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Kaben Genoli of an apple iphone 4 pursuant to s 97(1) of the Crimes Act 1900.
That on 25 January 2017 at Nabiac in the State of New South Wales, while armed with an offensive weapon, namely a baseball bat and an iron bar, robbed Tristan Genoli of a sum of money pursuant to s 97(1) of the Crimes Act 1900.
In respect of each offence, you are sentenced to a Non-Parole Period of 2 years and 6 months to commence on 3 February 2017 and to terminate on 2 August 2019.
The balance of sentence in each case will be a term of 2 years to commence on 3 August 2019 and to terminate on 2 August 2021.
The sentences are to be served concurrently.
Parole
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You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.
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Decision last updated: 27 March 2018
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