R v Lewis

[2025] NSWDC 105

District Court

New South Wales

Medium Neutral Citation:

R v Lewis [2025] NSWDC 105

Hearing dates:

5 February 2025

Date of orders:

5 February 2025

Decision date:

05 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years 6 months with a non-parole period of 2 years 6 months

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness — Avoiding a crushing sentence — Accumulation —Totality — Concurrence

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental health — Traumatic childhood — Youth

Legislation Cited:

Crimes Act1900 (NSW)

Cases Cited:

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

Category:

Sentence

Parties:

Jayke Lewis (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
S Aldis solicitor for Johnston Legal (for the offender)
L McGonigal solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2024/20492

JUDGMENT – ex tempore revised

Introduction

1. Jayke Lewis, born in 2004, is still young man. He is facing a lengthy period of imprisonment because on 16 January 2024 he committed three very serious offences, involving assaulting fellow citizens with intent to rob them. Those offences charged pursuant to s 97(1) Crimes Act1900 (NSW) each carry a maximum penalty of 20 years imprisonment.

2. In response to the perceived leniency of judges of this Court many years ago in 1999 the Court of Criminal Appeal New South Wales promulgated a guideline judgment for matters that are very similar to the matters presently before the Court: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. I am required to give weight to the maximum penalties and that guideline judgment in the formulation of my sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 42B.

3. But every offender and every offence, or series of offences, is individual. Courts must; attempt to balance the many, and often contradictory, purposes of sentencing. Judges must attempt to synthesise those principles and the material before the court, into a period of time in gaol. At the same time given the youth of the offender and other matters in his background, I must give him an opportunity to be restored to the community under supervision.

Facts for sentence

4. On 15 December 2023, Jayke Lewis was released from custody to serve a sentence in the community subject to an Intensive Correction Order (‘ICO’). He had spent a short time in custody prior to that. He made promises to himself, his family, the court and his parole officer that he would abide by the conditions of that ICO. That ICO was breached.

5. A report, prepared for that earlier court proceeding, noted; his history of antisocial behaviour, a pattern of impulsive risk taking behaviour, in the context of being intoxicated with alcohol and other drugs, and a history of illicit drug use. It noted that he had failed to follow through with prior referrals to alcohol and other drug treatment, mental health referrals, and had failed to complete an EQUIPS foundation report. Nevertheless, a supervision plan was put in place as the Local Court had, given his youth and background, taken the view that the effort had to be made to enable him to avoid serious offending and a return to gaol. Sadly, the offender on release was not able to be stabilised and, by his own admission to Dr Sidhu, whose report is before the Court, was using illicit drugs.

6. On 16 January 2023, he was in Warrawong, southern Wollongong. He went to a local store and stole a shirt. He then put on that shirt and used the shirt that had been wearing as a disguise.

7. That offence of larceny is before the Court on a Form 1. Given that that offence of itself would not involve a custodial sentence, while it is relevant to the material before the Court, the Form 1 ‘clears the decks’ of that offence, it does not add anything to the sentence that I would impose.

8. What occurred then however, requires significant custodial sentences because they were offences of particular seriousness. They were grave crimes committed against other members of the community.

9. At about 4.40pm he entered a store in Warrawong. The cashier aged 25 was present and another person delivering products to the store. The cashier was a woman. A woman aged in her 50s was also present.

10. Lewis demanded money of the cashier. He said, “Give me the money, give me the money, give me the money”. As he said this, he had a knife in his hand. He repeated that demand and pointed the knife at the cashier. She responded, “Please don’t kill us, please don’t kill us. The money is there”, pointing at the cash register. Lewis picked up the cash register and attempted to run away with it, but it was still plugged in, and he failed to take it from the store. He then ran down the street.

11. Twenty minutes later Lewis entered other business premises in the same street. The owner of the premises, a man aged 57, was behind the counter working. The offender said to him, “Give me your fucking money”, and he threatened violence while holding a knife. He advanced towards the gentleman and pointed the knife at him. The man responded, “I don’t have any money”. The offender said, “Give us a look in the till’”. When he did so he saw that it was empty. He asked the man, “What’s in your pockets?” The man responded by picking up a trolley and saying, “I’ll smash you in the head, get the fuck out of here". At this, the offender ran away.

12. A police investigation commenced soon afterwards. The offender was identified by the excellent CCTV in Warrawong. He was arrested the following day and has been in custody ever since.

Guilty plea

13. Guilty pleas were entered in the Local Court. I will reduce the otherwise appropriate sentences by 25% to reflect the utilitarian value of the pleas.

Objective seriousness

14. Each offence was serious. In each offence a person was assaulted, they were confronted with a bladed weapon and the intent was to rob. By his own admission the offender was affected by illicit drugs. That is not a matter in mitigation in matters such as this. It indicates how desperate he was and that he was not thinking about the consequences to himself, let alone the consequences to others.

15. Courts do not underestimate the impact of offences such as this on the victims. They were not to know what was going to happen next. One of them said, “Please don’t kill us”, indicating that that is exactly what they feared, that the knife would be used.

16. I accept the offender was not thinking clearly and it is clear that he did not, while he took the shirt to enable him to put his t-shirt on his head as a rudimentary disguise, he had not thought through what he was doing. The only planning was his possession of a knife and his insufficient attempt to disguise himself with the t-shirt he was wearing.

Submissions

17. Both Ms Aldis, who appears for the offender, and Mr McGonigal, solicitor, who appears for the Director, have provided written submissions to the Court. Both those submissions are as one on questions of principle and the need to have regard to the matters set out in the Henry guideline.

Antecedents

18. The offender’s criminal antecedents are before me. He is not entitled to the leniency often given to first offenders. The offence was committed while subject to the ICO, a matter that aggravates the sentences I must impose.

Subjective case for the offender

19. Lewis’ gaol discipline record indicates a number of matters since he went into custody. They appear to have stopped in August 2024. This indicates two things. First, that he had difficulty adjusting to life in gaol, and secondly, that he appears to at least, so far as his behaviour is concerned, been stabilised. This later conclusion is consistent with the material before me and Ms Aldis’ submissions, that this is the longest period he has been drug and alcohol free in many, many years and that Justice Health has managed to stabilise his mental health medication.

20. Both submissions note that his prognosis is “guarded”, but if he remains drug free, if he engages in programs, if he keeps his medication stabilised then he may well be able to work towards the parole period I intend to fix and earn release at that time. If he does not cooperate with the authorities, he may not get parole; it’s as simple as that.

21. The subjective material before me is uncontroversial. When Lewis was young, he suffered a serious head injury. There is evidence to suggest an acquired brain injury. While his mother did her best, their household was subject to poverty. He was exposed to violence and other antisocial activity. As a young person he mixed with others who were engaged in antisocial activity.

22. Dr Sidhu describes Lewis’ “chronic developmental trauma”: Exhibit 1, at par [47]. At par [44] he says:

“Mr Lewis was an anxious, maladjusted and traumatised child, who experienced isolation and struggled to connect with others. He managed his distress, isolation and trauma with alcohol and poly-substances, including cannabis and crystal methylamphetamine. He developed protracted reliance on substances from his teenage years, which continued into adulthood with limited periods of abstinence or effective treatment.”

23. Dr Sidhu notes at par [51], “[He] requires healthy community integration and social interactions”. He recommends participation in the Real Understanding of Self Help (‘RUSH’) programs and also that he be offered Dialectical Behaviour Therapy. He also notes Lewis’ relative youth and that he still appears to, “minimise his offending”: at par [53].

24. A copy of Dr Sidhu’s report will be sent to Community Corrections with the warrant.

Synthesis

25. Lewis is still young. The law recognises that young people, particularly with a background such as his, may take longer than others to mature. The young brain is still developing. Sadly, some of that development will have to occur in custody.

26. There are many in custody who take an antisocial attitude that say, “well, what judges say does not really matter” and “committing offences against others in the community does not matter”. Well, it has to be brought home to them and to Lewis that judges are concerned about our sense of community, we are concerned about the damage robberies, or attempted robberies, such as this cause our community, and as a consequence people who behave and think that they can live outside the law will be removed from the community for a period.

27. At the same time there is a community interest in restoring offenders to the community. There is a community interest in people such as Lewis not being punished so severely that they lose motivation. Lewis should have a goal to work towards. His prospects and his motivation should not be ‘crushed’ by too harsh a sentence.

28. I have to balance those matters against the seriousness of the crimes he committed against the three separate individuals. I accept that because of his background, his moral culpability is less than a person who did not suffer the multiple traumas detailed in the report before me. I accept that he will need help in adjusting to normal community life because he has had, for many years, not had an opportunity, or not chosen to utilise opportunities, to live a normal community life. His motivation is critical.

29. Lewis was on an ICO. He had not served any significant punishment for that ICO. There should be some period in custody for that matter. I propose to commence this sentence on 17 April 2024.

30. I have also to consider matters of accumulation and totality in the three matters for sentence. There is reason here for a finding of special circumstances and for considerable concurrence. There is also a requirement, given his youth and background material before me, that such leniency as can be afforded to him, be reflected in the structure of the sentence. The minimum time he spends in custody must also properly reflect the many purposes of sentencing.

31. In relation to each indicated sentence, there will be a 25% reduction for the utilitarian value of the plea. I note the Form 1, but for the reasons I have indicated it does not add to the sentence. I note that the principle of totality applies and that that principle can sometimes best be met by a reduction in the otherwise appropriate sentence because the simple addition of every single matter would result in a disproportionate punishment. The non-parole period is 2 years and 6 months, reflecting my finding of special circumstances, taking into account there is some partial accumulation on the revoked ICO sentence. The sentence is meant to be an appropriate reflection of the seriousness of all the crimes committed.

Orders

32. In each matter there will be an indicated sentence of 3 years imprisonment.

33. The aggregate sentence will be 4 years and 6 months imprisonment. There will be a non-parole period of 2 years and 6 months that will commence on 17 April 2024 making Lewis eligible for release to parole on 16 October 2026. There will be a balance of the sentence a parole period of 2 years it will commence on 17 October 2026 and expire on 16 October 2028.

34. Lewis will not be released to parole on 16 October 2026 unless the State Parole Authority, having considered issues of community safety, make a release order. In other words, he will have to earn his release and there will have to be programs in place for him because, as both submissions accept, any prospect for the future is “guarded”. But as he is young, he is immature, he will be given this opportunity to grow. If he does not take the opportunity, because of negative influence of his peers in custody, he could spend the rest of his life in custody. I do not want that to happen.

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Decision last updated: 02 April 2025