R v Law

[2020] NSWDC 724

District Court

New South Wales

Medium Neutral Citation:

R v Law [2020] NSWDC 724

Hearing dates:

26 October 2020

Date of orders:

26 October 2020

Decision date:

26 October 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Sentence of imprisonment of 3 years 6 months with a non-parole period of 2 years

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

SENTENCING — Penalties — Imprisonment

SENTENCING — Probation and parole — Non-parole period

Legislation Cited:

Crimes Act 1900

Crimes(SentencingProcedure) Act 1999

Cases Cited:

R v Henry [1999] NSWCCA 111

Category:

Sentence

Parties:

Regina (Crown)
Weng Seng Winson Law (Offender)

Representation:

Isabelle Youssef (Crown)
Helen Shaw (Solicitor for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Legal Aid (Offender)

File Number(s):

2019/00405119

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Weng Seng Law, who also has the name Winson, pleaded guilty in the Local Court at Central on 30 July 2020 to a charge of robbery armed with an offensive weapon, contrary to s 97(1) Crimes Act1900.

2. The particulars of the offence are that he robbed a man named DW of $270 in Australian currency at the time he was armed with a 30 centimetre black handled kitchen knife.

Penalty

3. The maximum penalty to which he is exposed is imprisonment for 20 years. There is no standard non‑parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.

The Plea

4. He pleaded guilty early in this process and therefore, upon application of s 25D Crimes (Sentencing Procedure) Act1999 the sentence that would otherwise have been imposed will be discounted by 25%.

Pre-Sentence Custody

5. He was arrested on 26 December 2019 and has been in custody ever since, and therefore, the sentence I impose will commence on that day.

The Facts

6. The facts are that about 11.45pm on Wednesday 25 December 2019 the victim left a friend’s home in Canterbury and walked to Sydenham Road. About midnight he continued to walk along Sydenham Road towards Livingstone Road. He entered Marrickville Park and in the park stopped and sat on a hill to smoke a cigarette.

7. About 12.10am, in the early morning of 26 December 2019 the offender approached the victim. He said, “Open your wallet”. The victim did not respond. The offender produced the knife. He held that near his own stomach at the victim’s shoulder height with the blade towards the ground. He was about a metre to 1½ metres away. The knife was a large kitchen knife with a black handle and silver blade, between 15 to 27 metres in length and 8 centimetres wide. The offender said, “Take out the cash from your wallet”. The victim removed his wallet from his jumper and from it took bank notes totalling $270, the entirety of the cash in his wallet. The victim said, “Just take it, I don’t want any trouble”. He felt threatened upon the production of the knife and handed over the money so he would not be hurt. The offender snatched the money from the victim and ran further into the park towards Sydenham Road. He left the victim with his mobile phone and credit card. The victim followed for a short time and called Triple-0 to report the matter and then waited at a nearby bus stop for the police to arrive.

8. About 12.15am two police officers responded to a radio call regarding the armed robbery, and as they were proceeding along Sydenham Road at Marrickville they saw the offender dressed in clothing matching the description that had been broadcast. The offender upon seeing the police began to run. The police brought their vehicle to a halt and alighted, whereupon the offender stopped running. When he was told to stop moving toward the police and put his hands in the air he complied. He produced the money and said, “I earned it, I was working before”. This lie was captured on a body worn video recorder. The knife was found about 10 metres from where the offender had walked. It matched the description given by the victim.

9. He was arrested and taken into custody. He declined to participate in an identification parade. The evidence gathered by the police included the clothing which compared with the description given by the victim, the money seized from him, and his DNA profile which was found on the handle of the knife. The victim took part in a photographic identification process, but did not select anyone from it.

The Crown Case

10. It was said on behalf of the offender that this was a weak Crown case, notwithstanding which the offender chose to plead guilty early in the process. The Crown submits that the circumstantial evidence that was assembled and available to connect him to the robbery provided a stronger case than that for which the offender’s solicitor contended. In the circumstances of the time when the events unfolded, the presence of the knife with his DNA and the comparisons to be made between the money reported stolen and that found, the clothing described and that found on the offender, and the description of the knife given by the victim which compared with that found with matching DNA, I agree with the Crown’s submission that the case was rather more compelling than as represented on behalf of the offender.

The Offender

11. The offender is 20 years of age, and was 19 at the time of this offence. He has not been in gaol on any other occasion before this. There is nothing to indicate that he has any antecedent record in his homeland of Malaysia and it appears that he is a person of otherwise good character but for the decision he made to rob this man in the middle of the night.

12. He gave evidence before me and adopted the representations attributed to him by a psychologist, Julie Dombrowski, in her report of 3 August 2020. The information provided by the offender and which he has adopted before me, includes the disruption to his home life in Malaysia when his parents divorced and re-partnered and the dysfunctional relationship that evolved between the offender and his stepmother, whom he suggested used corporal violence and verbal abuse in her management of him through his formative years. His father was absent consistently through his work; he told the psychologist that he and his brother were routinely required to complete household chores and care for their two younger half-sisters. His stepmother physically abused him when she was dissatisfied with the quality his work in the home, or was otherwise in a bad mood, which he said occurred after she had been gambling unsuccessfully.

13. When he was 17 he came to Australia with his father. His father gave him $7,000 to help him get underway with tertiary studies in this country in civil engineering. Unfortunately he was robbed of that money and his passport and left impecunious to the point where he could not afford the money to travel to the ACT to arrange for a replacement passport or travel documents so he could return home. He said he did not contact his father or any other family member in Malaysia; he said he did not want to impose upon them because of their financial constraints; thus he had limited contact with his father. He overstayed his visa in this country, working where he could to survive. He found himself in financial distress shortly before this robbery occurred, with insufficient money to pay his rent; he anticipated that his landlord would be excluding him from his rented premises; he thereupon committed this robbery.

14. He told his father about it, but did not do so immediately. He spoke of his loss of face, which I understand and accept to mean he felt ashamed of what he had done and embarrassed that his family would need to know about his crime. He said that he is very sorry for what he has done and he would say so to the victim if he was here in court today and would ask for forgiveness.

15. In custody he has been prosperous. He has a job as a cleaner in the hospital. He has not been able to undertake any courses because of his remand status.

16. Although there is no indication of any infection with COVID-19 he understands the process if it arises that the particular inmate will be confined to his cell for whatever period of time is required. He shares a cell with another inmate and if one or other of them becomes infected or develops symptoms they will both be required to remain in the cell for the appropriate time.

Consideration

17. I accept his expressions of contrition and remorse. I accept that he is unlikely to commit any further offences in this country; apart from anything else he will be deported at the first opportunity.

18. I would not hold this to be an opportunistic offence, but the amount of planning was limited. He must have been looking for a victim, because the robbery occurred after he had retrieved the knife from the car where he had it. He had earlier taken the knife from a construction site where he worked, from which he was terminated shortly before Christmas. He had obviously gained some employment with financial reward, because the loss of the $7,000 he said occurred over a year before the robbery of this victim.

19. This offence is well below mid-range of objective seriousness; there are comparisons to be made with the characteristics identified in the Henry guideline judgement, [1999] NSWCCA 111. There is his age and absent criminal history. He was armed with a knife capable of killing or inflicting serious injury. There was limited planning and a threat of violence and a small amount of money was taken. In the Henry guideline judgement there was reference to a late plea, the significance of which was ameliorated by the strength of the Crown case. In this case the plea of guilty was entered in the Local Court proceedings and, therefore, early in the process. The victim was situationally vulnerable, but not within the group of vulnerable victims that are identified in the guideline judgement. Upon that analysis I agree with the submissions on behalf of the offender that this falls below the level of seriousness in the type of case contemplated in the guideline judgement.

20. The submissions on behalf of the offender include reference to the judgement by Spigelman CJ and the proposition advanced that the starting point, which was said to be the range identified by the Chief Justice in the guideline judgement is higher than the starting point that ought to be considered in this case. My understanding of what the Chief Justice wrote was that the range identified as appropriate, of four to five years for the full term, ought to account for all of the relevant sentencing factors, including the plea of guilty. The phrase used by the Chief Justice, “the narrow range is a starting point” I understood to be the range to which one would apply aggravating and mitigating factors that would justify a sentence above or below that range. There is a further support for that view in a later judgement by the Chief Justice, who clarified that the guilty plea component in the guideline judgement referred to as a late plea of guilty.

21. Ultimately I have come to view that the sentence the offender should suffer is less than the range given in the guideline judgement.

22. I have synthesised objective and subjective material that is before me and come to a starting point which has applied a 25% discount, and which has resulted in a sentence of imprisonment of three years and six months, which will include a non-parole period of two years upon my finding special circumstances. The case is replete with special circumstances by reason of his age, first time in custody, that he has limited English with a limited number of Mandarin speaking inmates available to him with whom to interact. He has no family support in this country, and, therefore, he ought to suffer a shorter period in custody and a longer period on parole to facilitate the opportunity for him to progress towards his ultimate rehabilitation under supervision, if he is able to remain in the country, but with the minimum period in custody appropriate for this misconduct, bearing in mind the added burden he will suffer as a prisoner.

Sentence

23. I convict him of the offence of armed robbery with an offensive weapon. I specify a non-parole period of 2 years from 26 December 2019 to 25 December 2021. I impose a further period of imprisonment of 1 year and 6 months to commence at the expiration of the non-parole period, which will expire on 25 June 2023.

24. All the purposes of sentencing are engaged in this, including general deterrence, denunciation, and the need for appropriate punishment and to reflect he harm that he caused. It was clear that the line provided in s 5 Crimes (Sentencing Procedure) Act has been crossed.

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Decision last updated: 24 November 2020