R v London

[2020] NSWDC 404

District Court

New South Wales

Medium Neutral Citation:

R v London [2020] NSWDC 404

Hearing dates:

24-27 February 2020, 2 March 2020

Date of orders:

11 May 2020

Decision date:

11 May 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months.

Catchwords:

CRIME — Violent offences — Armed robbery — Dangerous weapon

Legislation Cited:

Crimes Act 1900 (NSW) s 97

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 3A

Cases Cited:

R v Henry (1999) 46 NSWLR 346

Bullock v R [2016] NSWCCA 131

BP v R [2010] NSWCCA 159

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mr Corey London (Offender)

Representation:

Counsel:
Mr P Johnson (Offender)

Solicitors:
Ms R Trinnie (Crown)
Mr R Gregory (Offender)

File Number(s):

2018/285895

SENTENCE

Introduction

1. The offender Mr London stands to be sentenced after a trial conducted before me sitting as a judge alone for two offences of armed robbery. The particular offences are as follows. Count 1, being that he on 23 May 2018 at Kemps Creek robbed Rangana Maddumahewa of Australian currency the property of the owner of the BP Service Station whilst armed with a dangerous weapon, namely a firearm or imitation firearm.

2. Count 2 on 24 May 2018 at Kemps Creek he attempted to rob Meetkumar Patel of Australian currency being the property of the United Service Station whilst armed with a dangerous weapon, namely a firearm or imitation firearm. The offender was acquitted of the third count on the indictment. Both offences are offences under s 97(2) of the Crimes Act and have a maximum penalty of 25 years imprisonment and there is no applicable standard non-parole period.

The Facts

3. Turning to the facts, these are sentence proceedings after trial and I am required to find the facts upon which the offender is to be sentenced and to the extent that I find a fact adverse to him then I must be satisfied of that fact beyond reasonable doubt. There was no real contest at the trial as to the factual circumstances of the two offences, the only issue in the trial was whether I could be satisfied beyond reasonable doubt that it was this offender that perpetrated the two offences

4. In terms of the first offence; at around 4.26am on 23 May 2018 the offender entered the service station located at 1443 Elizabeth Drive, Kemps Creek and robbed the attendant there of the currency contained in the till drawer in the service station and the currency was approximately $670. The offender at the time of the armed robbery wore a black hoodie, a black face covering and black pants, he also wore gloves and used what appeared to be a silver handgun to threaten the attendant. In terms of the handgun that was used to threaten the service station attendant, I was satisfied beyond reasonable doubt that it was an imitation firearm but could not be satisfied that it was an actual firearm. The offender left the service station at around 4.27am and was inside it for about 30 seconds.

5. In terms of the second offence; the offender at around 4.40am on 24 May 2018 entered the United Service Station at 1465 Elizabeth Drive, Kemps Creek. He again wore a dark coloured hoodie, covered his face with black material and wore gloves. He also carried a silver coloured handgun and approached Mr Patel the service attendant, pointed the gun at him and told Mr Patel to open the till and give him the money. Mr Patel told the offender that he could not open the till and the offender left without taking anything from the service station. The offender left the service station within 30 seconds of having arrived there.

Objective seriousness

6. I turn then to my assessment of the objective seriousness of the two offences. In doing so I have considered the objective factors discussed in the guideline judgment of R v Henry (1999) 46 NSWLR 346. Clearly, in relation to both offences there was a level of planning involved given the disguise of the offender, the use of gloves and the use of an imitation silver handgun. I do not consider that the level of planning was such, however, as to amount to an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act. While there was no verbal threat to either service station attendant there was a pointing of the handgun to them during the two offences.

7. The pointing of the handgun was fleeting in terms of time but no doubt it would have terrified both service station attendants. Given the shortness of the time and the lack of a verbal threat to use the firearm, I do not consider that the aggravating factor of actual threatened use of a weapon in s 21A is established beyond reasonable doubt. I do consider that within the meaning of that provision both service station attendants were vulnerable victims, being persons working alone in the early hours of the morning. The amount taken in the first offence was rather modest and no property was actually obtained in the second offence. I consider that the objective seriousness of both offences is slightly below the midrange level, noting of course, strictly speaking, as there is no applicable standard non-parole period, it is not necessary to judge the objective seriousness of the offences against a notional midrange offence.

The Offender’s Subjective Case

8. I turn then to the offender’s subjective case. His date of birth is 31 January 1999, so he was approximately 19 years and four months at the time of the two offences and is now just 21 years of age. The principles associated with sentencing a young adult offender have some application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of relevant principles in Bullock v R [2016] NSWCCA 131 referring to BP v R [2010] NSWCCA 159.

9. The offender has a criminal record both as a juvenile and as an adult. In 2015 he was dealt with in the Children’s Court for robbery in company and robbery offences which were committed when he was 15 years of age. In 2017 in the Drug Court, he was given a suspended sentence for a number of offences including break and enter offences. The current offences were committed while he was the subject of the suspended sentence and that is an aggravating factor on sentence in that the offences were committed while on conditional liberty.

10. He was released into the community on the Drug Court Program having received the suspended sentence on 22 November 2017. A warrant of apprehension was issued on 12 December 2017 by the Drug Court for his failure to comply with the program and there was evidence during the trial that he had failed to attend for urine analysis. That warrant was recalled on 11 January 2018 and replaced by a further warrant after his Drug Court Program was terminated. He was returned to custody on 1 July 2018 and he was resentenced in the Drug Court on 26 October 2018 to an aggregate sentence of two years and three months with a non-parole period of 17 months to date from 8 February 2018, the non-parole period of that sentence expired on 7 July 2019. The offender’s criminal history is such that it disentitles him to leniency on this sentence.

11. There are before me a Sentencing Assessment report dated 20 April 2020, a psychological report under the hand of Mr Chafic Awit dated 30 April 2020, he being a registered psychologist and medical reports concerning the health of the offender’s mother and grandmother. The offender also gave evidence before me consistent with the Sentencing Assessment Report and the contents of the psychological report.

12. In terms of his family background, the offender is the eldest of seven siblings and has had the support of his parents who live in fairly modest circumstances. When he was approximately 13 years of age he lost both his maternal uncle and maternal grandfather both of whom had lived with him and his family and that loss had a significant impact upon him.

13. The offender advised the psychologist throughout his upbringing his father would significantly beat him. He detailed to the psychologist that at a young age he was diagnosed with Attention Deficit Hyperactivity Disorder and his behaviour at home often got him into trouble. He described to the author of the Sentencing Assessment Report that at the time of the offending his family life was chaotic explaining that his twin sister had been shot in the leg during a home invasion, another sister had been raped at a party and his mother was diagnosed with cancer. He still retains the support of both parents and upon his eventual release from custody he proposes to reside with them. This was confirmed with the author of the Sentencing Assessment Report by his mother.

14. The offender told the psychologist that he left home after year 7 at school and essentially lived on the streets and couch served friends’ premises during a two year period. He described being assaulted and sexually abused during that period. The offender recounted that he returned home after two years and commenced working for his father as a carpet layer when 16 years of age and he did so for a period of approximately six months. In terms of his education, he attended Badgerys Creek Primary School from kindergarten to year 6 followed by Cecil Hills High School for part of year 7. He was expelled from school during the course of year 7 and that is the extent of his formal education. His only work experience has essentially been the period of time he worked with his father as a carpet layer.

15. In terms of his illicit drug use, he told the psychologist that he commenced using illicit drugs from the age of 14 after leaving home. He used cannabis, ice and cocaine and was of the opinion that he became addicted to ice quite quickly. He considered that he continued to return to illicit substances as a means to numb himself from his ongoing racing negative thoughts that he experienced due to the trauma that he had been through.

16. The psychologist administered psychometric testing to the offender and having regard to both the results of that testing and the psychologist’s examination of him, he formally diagnosed the offender as having diagnoses of Attention Deficit Hyperactivity Disorder, Generalised Anxiety Disorder, Major Depressive Disorder and Substance Use Disorder. The psychologist expressed the opinion that there is a psychological nexus between the offender’s underlying psychological condition and the offences. The psychologist considered that due to the ongoing symptoms the offender has experienced over the years as well as the substance abuse being a response to those symptoms, that it was likely the offender’s development of mature coping skills had been inhibited and that the conditions had impaired his decision making abilities.

17. The psychologist also considered that the underlying conditions were likely to have led the offender to being more susceptible to developing the substance use disorder. Given the extensive use of drugs over time, I am not able to form the opinion that the offender’s mental health conditions were substantially causative of his offending. I have had some regard to the offender’s mental health conditions, however, when imposing sentence, noting I would expect that he should receive appropriate treatment for them while in custody.

18. Generally the fact that offences are committed in order to fund an addiction or as a consequence of an addiction to illicit drugs, is not a mitigating factor on sentence. Where an offender is young, as here, has had few opportunities to engage in drug rehabilitation and turns to drugs because of traumatic events in their life some of the cases, including R v Henry, suggest that there can be some mitigation of the sentence to be imposed. I have had regard to those principles in my approach to the sentencing of this offender. I have also had some regard to his early life of relative social disadvantage in arriving at the appropriate sentence to impose here.

19. In terms of his response to supervision in the past, the Sentencing Assessment Report records that he did not complete the Drug Court Program and his compliance was considered unsatisfactory due to poor attendance and drug use. In terms of his attitude to the offences, while he pleaded not guilty at the trial, in his discussions with the report writers and in his evidence on sentence he now acknowledges his guilt in respect of both offences. His evidence was that he did not plead guilty at the trial because he was scared of the consequences of being in gaol and also concerned about his mother’s health and his grandmother’s health.

Imposition of Sentence

20. The Sentencing Assessment Report records that he appeared to show some insight into his offending and stated his regret acknowledging that his behaviour caused stress and distraught to the victims and he also expressed those sentiments when giving evidence. He was assessed in the Sentencing Assessment Report has having a medium to high risk of reoffending. Clearly unless he is prepared to take appropriate medication to deal with his mental health conditions and to engage in intensive full time drug rehabilitation and get on top of his addiction issues, his prospects of rehabilitation will be poor. I think at the moment they are guarded, having regard to his criminal history and his response to supervision in the past.

21. I mentioned that the offender gave evidence on sentence and overall I accept his evidence and found him to be an acceptable witness. Having regard to the fact he now accepts his guilt for the two offences and his expressions both in the witness box and to the report writers of his remorse, I am satisfied that there is evidence of genuine remorse by the offender. While there was no plea of guilty, the trial was conducted very efficiently and the two complainants were not required to go through the trauma of giving evidence and reliving the offences, and I have had some regard to the manner in which the trial was conducted in imposing sentence.

22. For the reasons I gave a moment ago, I consider that the offender has only guarded prospects of rehabilitation. His prospects of rehabilitation will be assisted if he has a longer period on parole. I note also that the sentence I will impose will be partially accumulated upon the non-parole period of the Drug Court Sentence, that non-parole period expiring on 7 July 2019. For both those reasons I propose to make a finding of special circumstances when fixing the non-parole period.

23. The offender will need an extensive period of intense supervision when next in the community if he is to have any hope of remaining offence free. . Having regard to the principles of totality I will commence the sentence that I impose from 7 February 2019. While the two offences occurred within a day of each other and there being two victims of the offences it is necessary that there be a degree of accumulation of the sentences.

24. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Armed robbery is a very serious offence and regrettably is a very prevalent one in our community. People such as the victims in this case should be able to engage in employment without being fearful that someone will perpetrate an armed robbery upon them. The sentence I must impose here must be one that is of sufficient severity not only to deter this offender but to deter others in our community who might be tempted to engage in an armed robbery offence.

25. The only appropriate sentence is clearly one of full time custody. The maximum penalty has been taken into account as a legislative guidepost. I have also had regard to the guideline contained in R v Henry noting that the guideline is not a starting point and is not prescriptive.

26. I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.

27. Mr London, the sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence which is the sentence and non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

28. The indicative sentence for the armed robbery offence on 23 May 2018 is one of four years and four months imprisonment. The indicative sentence for the attempted armed robbery offence on 24 May 2018 is one of four years and four months imprisonment. I impose an aggregate sentence of six years imprisonment with a non-parole period of three and a half years imprisonment. The sentence and the non-parole period commences from 7 February 2019, the sentence expires on 6 February 2025 and the non-parole period expires on 6 August 2022. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 6 August 2022. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether are released then or on another date.

29. So it’s an aggregate sentence of six years with a non-parole period of three and a half years and it commences on 7 February 2019 and expires on 6 February 2025 and the first date that he is eligible for parole is 6 August 2022. The two indicative sentences were identical in terms, four years and 4 months

Orders

1. In relation to count one, record an indicative sentence of 4 years and 4 months imprisonment.

2. In relation to count 2, record an indicative sentence of 4 years and 4 months imprisonment.

3. Impose an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months imprisonment.

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Decision last updated: 30 July 2020