R v Lovett

[2020] NSWDC 909

District Court

New South Wales

Medium Neutral Citation:

R v Lovett [2020] NSWDC 909

Hearing dates:

20 November 2020

Decision date:

22 November 2020

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Sentenced to 3 years imprisonment; non-parole period 1 year 6 months.

Catchwords:

CRIME – sentence – robbery whilst armed with offensive weapon – criminal history but no juvenile history – dysfunctional and disadvantaged upbringing – special circumstances – remorse – plans for the future – COVID-19 – need for rehabilitation once released

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act1999

Cases Cited:

Attorney General’s Application (No 1) (2002) 56 NSWLR 146

Bugmy v R [2013] HCA 37

DPP(Cth) v De La Rosa [2010] NSWCCA 194

Henry and Ors v R (1999) 46 NSWLR 346,

Munda v Western Australia [2013] HCA 38

R v Engert (1995) 84 A Crim R 67

R v Ponfield (1999) 48 NSWLR 327

Thomson & Houlton v R [2000] NSWCCA 309

Veen (No2) v R [1988] HCA 14; 164 CLR 465

Yardley v Betts (1979) 1 A Crim R

Category:

Sentence

Parties:

Regina (Crown)
Benjamin James Lovett (Offender)

Representation:

Solicitors:
Ms T Lumsden (DPP)
Ms H Shaw (Offender)

File Number(s):

2020/00058224

Publication restriction:

No

Judgment

1. Mr Lovett, my practice is to tell people in advance what sentence is to be imposed. In your case, I am imposing a sentence of three years imprisonment with a non-parole period of one year six months. Both the term of imprisonment and the non-parole period will date from the day you came into custody which I was informed last Friday was 22 February 2020. You will be eligible for release to parole on 21 August 2021. I will give my reasons.

2. Benjamin Lovett appears today for sentence in relation to an offence for which he was committed for sentence to this Court of robbery whilst armed with an offensive weapon. The committal for sentence and the circumstances of his appearance before me, require me to afford him a discount of 25% in accordance with the legislation to recognise the utilitarian benefit of the plea of guilty. The offence to which he has pleaded guilty was one alleging that he at Petersham, on 22 February 2020 whilst armed with an offensive weapon, namely, a knife, robbed Kamal Munchi of an amount of Australian currency, the property of another person.

3. There is a matter on a Form 1, an offence committed at the same time, which alleged that the prisoner, on the same date at the same place, again being armed with the knife, an offensive weapon, attempted to rob Bilkis Popy of an amount of money. In the original charge sheets there was a reference to $700 in cash being the subject of the theft but in fact the Crown in the Statement of Facts available to me, consistent with the committal charge, indicates that it cannot be proved beyond a reasonable doubt that a sum greater than $175 was stolen by him.

4. The facts are relatively short. The prisoner although wearing some sort of cap was undisguised when he went to a restaurant in Canterbury Road, Petersham as I understand it, although the evidence does not expressly say so on this point, a short distance from where he lived in Gordon Street, Petersham. The prisoner’s movements on his way to the restaurant and on his return from the restaurant, were captured by CCTV footage from which he was easily recognised. In fact, after committing the robbery, on the facts which I will get to in a moment, he went back to his residence.

5. He purchased some items, cigarettes and alcohol, with some of the cash that he had taken. He was wearing distinctive clothing, distinctive shorts and a distinctive football jumper. He attended upon the restaurant, which is called Tandoori Dhaba. He approached the victim Popy, showed her the knife he was holding and told her to “stand over there”. The knife was, as I would understand it, some sort of domestic implement that he brought to the restaurant, approximately 30cm in length. He was about a metre away from the victim, held out his hand with the knife and called out for “money, money, money”. That victim was greatly shaken by the experience and I have read the victim impact statement, which was read on her behalf by a police officer associated with the investigation.

6. The prisoner then turned to the person Munchi. Popy ran out of the store to seek assistance. The knife was about an arm’s length away from the second victim’s body towards his upper stomach and again the prisoner made a demand for money. Fearing he would be stabbed, the prisoner was given a bundle of money. The prisoner admits to stealing the sum of $175. He told the victim to “open the box and give me the money” and he was provided with a bundle of $5 notes and two $50 notes. He ran from the restaurant and then ran back to the direction of his residence.

7. This robbery, I should hasten to say, I have not indicated the time, occurred at 3:00pm. Police made various enquiries and ultimately identified the home of the prisoner at 3.25pm, that is within half an hour of the robbery occurring. There was a period of time when the place was under observation and ultimately a search warrant was obtained very late in the evening and the prisoner was arrested.

8. The police located the knife. It was 30cm from the top of the handle to the tip of the blade and in the same bedroom as the distinctive clothing seen in the CCTV footage. The prisoner, who is seen in CCTV footage coming and going from his home several times during the afternoon, purchased a bottle of alcohol and told the police that he spent his money on alcohol and tobacco. However, as far as could be worked out by the police, he did not leave his apartment after quarter to six or thereabouts that evening. He has been in custody since the date of his arrest. All the time spent in custody will be taken into account.

9. The prisoner was born in December 1986. That means as I would best calculate it that he will turn 34 this year. He was 33 at the time of the offending.

10. He has a criminal history that goes back some 15 years but interestingly, not a criminal history that involves what could be described as anti-social or criminal conduct as a teenager. There is no suggestion of what could be called by the psychiatrist, a conduct disorder. It seems that his criminal history in fact, in the early part of his adulthood was relatively minor, some street offences, alcohol related probably, and drug possession offences. He was convicted of an act of violence in 2008 when, as I would understand it, he would have been 19 years of age. That was assault occasioning actual bodily harm, and fined. He has some drink driving offences. In 2011, high range PCA and driving whilst licence suspended for which he was granted s 9 bonds. He, however, has an escalating number of offences subsequently. I should note that he also in 2009, had been convicted of larceny for which he was placed on a s 9 bond. He has convictions in 2011 for stealing from a person and damaging property for which he was granted a s 9 bond. Further convictions for possessing drugs in 2011 and 2013. He has an offence of entering a building or land with intent to commit an indictable offence, recorded in August 2011 at Campbelltown Local Court for which he was sentenced to a term of imprisonment for seven months, suspended on entering a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act1999, which has since been repealed.

11. He gave evidence before me, which I will come to in a moment, that he had never breached probation or parole. In fact that is not exactly true because he was called up in relation to that s 12 bond and the term of imprisonment was confirmed on a subsequent occasion in 2012 and he was sentenced to seven months imprisonment with a non-parole period of two months.

12. The most substantial sentences he has received, as I would see his record, in respect of offences committed in March 2017. He was convicted of assault occasioning actual bodily harm in company, common assault and intimidation or stalking a person with intent to cause physical harm. He was sentenced to a total sentence of 16 months imprisonment with a non-parole period of ten months commencing on 2 April 2017, meaning that his non‑parole period by my calculation would have expired in February 2018.

13. He also, at about the same time, received another s 9 bond in relation to contravening an apprehended domestic violence order. It is correct that those respective orders, the one involving a parole period, the other involving a period of supervision under s 9, were respected by the prisoner as he said in his evidence. His record does not entitle him to any particular leniency, but I do note in the context of all the matters that have required him to attend court, that the matter I am dealing with, is in reality the first matter for which he has been sentenced in the District Court. He did appeal the sentences of 16 months in total for the offences I just outlined in 2017. Those hearings were heard of course in the District Court but they were not initiated in that court.

14. It could be said his criminal history does not entitle him to any particular leniency, but I will come back to the significance of his criminal history by reference to the history as I understand it.

15. The prisoner gave evidence and tendered a psychiatric report from a Dr Dayalan. There was also a letter tendered from Mr Lovett’s support worker from an organisation described as NEAMI which provides psycho-social health and rehabilitation support for people in the community suffering from mental illness issues and it is correct, as the psychiatric report tells us, from material available to the doctor, that the prisoner has a longstanding mental health struggle.

16. He, the prisoner, is being supported by the NEAMI program since, as I understood it, October 2018, and had engaged regularly with it. The case worker Mr Mehdi took a history of the prisoner of his mental state at the time of the offending and in his report noted some deterioration in the prisoner’s mental health just prior to the offending, in the context of his father’s death, of which the prisoner was notified only two days before the offence was committed. His father had in fact died some weeks or, as I would understand it, perhaps a couple of months, before 20 February and had been buried without the prisoner’s knowledge. The prisoner being unaware that he had passed.

17. There is reference in the report to the prisoner seeking to move an appointment, but as he explained to the Crown Prosecutor in his cross‑examination, he was actually trying to bring forward the appointment that he had with the support worker prior to the armed robbery. Normally he would attend upon face to face meetings with the support worker once a fortnight. The report states that he will still receive support from the organisation when released from prison.

18. Whilst in custody he has lost his tenancy which had been organised for him and his personal belongings but the organisation will help him try to regain a tenancy and his personal possessions. He can receive another package which he has received before to buy furniture and other personal items. The support worker noted the prisoner’s positive progress during the course of the program, save for the period shortly before the offending when there was some marked deterioration in his presentation. And on release, if involved with the program, he will be required to see a case worker once a fortnight and speak to a support worker or case worker once a week by telephone.

19. The letter provided to the Court from NEAMI confirms some of the evidence the prisoner gave about his mental health struggles but also his attempts to address them since his last time in custody.

20. In the prisoner’s evidence he noted his dysfunctional and destructive upbringing with experience of domestic violence, drug abuse and sexual abuse. He spoke of having to leave the care of his mother to live with his grandmother for his own safety when he was about 13 and the fact that his half siblings do not support him anymore, in part, because they in some way blame him for his mother’s death. She committed suicide. It means that he has had little support in the community. His mother’s suicide occurred, as I understand the chronology, when he was in his early twenties. He said in his evidence that some of the symptoms of what he described as his post-traumatic stress disorder, which is referred to in the psychiatric report, included paranoia, depression, panic and anger attacks.

21. Whilst in custody at the present time, he has been provided with Zoloft. However, he has not been seeing a clinician on a regular basis. He has only seen a psychologist once and the only psychiatrist he has actually had contact with was the psychiatrist who provided the medico legal report for this court case. He has also been shunted around from gaol to gaol, in part it seems because he is on protection and has had difficulty gaining access to services, not an uncommon problem both for people on remand and in the context of restrictions that have been imposed on people in custody since the COVID-19 outbreak in mid-March.

22. He injured and fractured his wrist on 26 June of this year in custody but he had to wait a month for surgery. He also was stabbed in the chest on 4 August with a pen or a pen knife being unable to defend himself because of his fractured wrist. He said that in custody he was sharing a cell and there were difficulties with social distancing and access to programs and treatment. He said the waiting lists for treatment were long and although he was in line for a possible drug replacement therapy, it was taking a long time to be addressed.

23. I understood in part from his evidence, (no transcript has been provided to me and it cannot be done in this Court within the time since I saw him last Friday), that he had been receiving some treatment for his Hepatitis C.

24. I accept for the purposes of this sentencing exercise that the current COVID-19 situation creates difficulties for this particular prisoner in a range of ways and that the restrictions on access to services and treatment arising out of delays caused by, for example, restrictions upon movement and social distancing and the like, is a relevant matter to take into account in his favour in assessing the appropriate sentence. It makes the circumstances of custody more onerous.

25. The full extent of disadvantage of course in this area I do not know. The prisoner did seek to explain some of the matters that affect him personally but one would need to conduct a full inquiry of a range of people to fully understand the situation. Whilst, as I understand it, there has not been a COVID-19 outbreak within the custodial framework or the custodial setting as far as I am aware, in many matters I have dealt with since mid-March, I am familiar with a number of restrictions on movement and other matters that inhibit prisoners not only with their access to services and treatment but their access to family members and supporters outside of the gaol system.

26. The prisoner expressed plans for the future, including undertaking drug counselling, continuing to address his mental health issues and in endeavouring to get employment. He explained, and I accepted, the cause of what could be called his relapse, which I have commented upon in the context of the report from his support worker, arose out of him discovering shortly before the offending that his father had died from a drug overdose of a prescription drug. On discovering this, he was by the time of 20 February, which was his father’s birthday, in a “bad mental state”.

27. In cross-examination from the Crown he spoke about the services of NEAMI and how it helped him to engage in what he described as “stepping stones” to stability. He was asked about a history of a previous rehabilitation program at Odyssey House that he undertook in his early twenties in the context of being examined by the Crown as to his willingness to undertake rehabilitation programs, in respect of his drug use particularly. He explained that he was at Odyssey House for three months but not restrained by a court order and he did not complete the program because at the time he left he thought he was “in a good place.” He did express an enthusiasm for seeking assistance on his release again.

28. I thought the prisoner in all the circumstances with disruptions to his education and disadvantage in his upbringing was quite an articulate, insightful witness. I note in his evidence, the prisoner expressed regret for his conduct. He heard the victim impact statement read by the police officer. To my mind he relevantly expressed remorse and has taken responsibility for his conduct and this is a mitigating factor under s 21A(3) of the Act. Despite an obviously limited education he was able to express himself well in terms of where he had failed in the past and where he would go in the future.

29. Of course the prisoner should understand that many people appearing for sentence, and I have seen literally hundreds of them, maybe thousands, will express good intentions that will not be taken up on release. Predicting the future in this respect is a very difficult task. Usually the best way to predict the future is look to the past. In that regard, it should be noted as the prisoner asserted in his evidence, that he has been able to comply with parole, although not, as he said, necessarily with probation supervision. His successful negotiation with parole was no doubt aided by the people from NEAMI.

30. Turning to the psychiatric report, which needs to be understood in the context of consideration of the prisoner’s evidence, the prisoner adopted the truthfulness of the history obtained which provided material in relation to a background of alcohol and drug abuse, including abuse of amphetamines, heroin and prescription drugs, particularly in his twenties after the death of his mother. It is clear on his evidence and the history that he has given to the psychiatrist, that his mother had profound substance abuse and mental health issues.

31. The prisoner has had contact with mental health services since the age of 21. This is over 12 years. He has over a period of time been assessed at various times as being in a depressed mood with psychotic symptoms, probably related to the use of drugs. He has been admitted to psychiatric inpatient units in the context of drug induced psychotic episodes. He has continuing nightmares related to the circumstances of his mother’s death.

32. He was born in the western suburbs of Sydney. The psychiatrist noted this background of emotional, physical and other abuse and disrupted education. The psychiatrist examined health records from the South Western Sydney Health area which showed that quite a number of hospital admissions were either in relation to overdoses, psychotic presentations, panic attacks and threats of suicide.

33. In 2013 diagnoses on treatment included poly-substance use disorder, schizophrenia, bipolar effective disorder, drug induced psychosis and anti‑social personality disorder. Records from Liverpool Hospital show psychiatric assessments in 2012 and 2017, as well as in March 2018 after a drug overdose. Justice Health records reflect a diagnosis in 2011 of either schizophrenia or bipolar effective disorder and in 2012 and 2013 poly-substance abuse. The Justice Health records included a record from his general practitioner noting those diagnoses made elsewhere and repeated, it would seem, time and time again in the records of schizophrenia, bipolar effective disorder and psychosis. It is to be noted that when he was screened on 24 February 2020 after being admitted to custody, he was uncooperative with the screening process, although he had just been admitted to custody.

34. The opinion of the psychiatrist was that by reference to multiple symptoms including poor impulse control, instability, suicidal behaviour, unstable interpersonal relationships, difficulty with controlling his temper associated with a “borderline personality disorder”, which is closely related to a “anti-social personality disorder”, the symptoms of the prisoner in the context of his history are consistent with post-traumatic stress disorder and alcohol and substance abuse disorders. It was concluded that he had a predisposition to emotional behaviour arising out of his personal vulnerabilities and the effects of post-traumatic stress disorder.

1. It was thought that the recent assaults within custody would aggravate his PTSD symptoms and he remains in an environment with a high risk of being assaulted. On account of his PTSD, his incarceration would be more onerous than on an individual without the condition.

2. The psychiatrist said he would benefit on release for placement in a residential rehabilitation facility and also on a drug control maintenance program, which the prisoner would wish to undertake, as I understand it, in custody. This would include, for example, the use of buprenorphine. He would also benefit from psychological assistance in custody and out of custody.

3. The Crown and the defence provided very detailed written submissions prepared, it seems, obviously before all the evidence was before the Court. I cannot do justice to their scholarship in complete detail, but I will refer to aspects of them as they reflect upon my final decision as to the sentence to be imposed and the non-parole period to be imposed as well.

4. Both parties agree that the s 5 “threshold” has been passed. Further, I am satisfied that there are “special circumstances” pursuant to s 44 of the Act that warrant an adjustment of the relationship of the non-parole period to the balance of sentence, particularly having regard to the various matters set out in para 84 of the helpful submissions of counsel for the prisoner. These include assistance in relation to his mental health issues, his current status in prison and the stress upon him of his post-traumatic stress disorder, the need for medical assistance in relation to a number of health issues, including the issue of Hepatitis C, the positive effect upon him in the past of supervision by NEAMI in the wider community and the need for that supervision to assist him to adjust to community living and also other professional assistance in that regard to try and assist him from offending in the future.

5. Both counsel tell me I am to have regard to the guideline judgment in Henry and Ors v R (1999) 46 NSWLR 346, particularly in the guideline promulgated by the learned Chief Justice at [162]. There are of course, by reference to the basic criteria, putting aside matters of aggravation to which his Honour later referred in his judgment, similarities with this offending. There was very little planning, apart from arming himself and I would regard the lack of planning as a mitigating factor under s 21A(3). There is the similarity of the character of the weapon, the threat of violence, relatively a small amount taken, the plea of guilty which was limited as it was explained by his Honour, by a “strong Crown case”. It is interesting to note as a historical fact that Henry preceded Thomson & Houlton from 1999 where the Court of Criminal Appeal laid down a guideline judgment for granting specific discounts for the utilitarian benefit of the pleas of guilty that are now encapsulated within legislation to a somewhat different effect and of course. We know from Thomson & Houlton that the strength of the Crown case is not relevant to the assessment of the utilitarian benefit of the plea of guilty. It is to be noted however, by reference to the criteria in Henry that I have referred to, that the prisoner is not a young offender with little or no criminal history. But of course I accept that his background and his mental health issues are of significance in understanding his criminal history.

6. I have already noted by reference to his background and the experience I have of sentencing offenders, the absence of a juvenile record, which would suggest at an early age a conduct disorder or a strong anti-social otherwise intemperate attitude.

7. I accept the submission of his counsel that the principles summarised in various cases, particularly by Justice McLennan in the decision of DPP v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178] have a role to play in this sentencing exercise. The evidence to my mind is overwhelming that the prisoner has had ongoing mental health issues, in part fuelled by his drug use, but both of which need to be understood in the context of his disturbed upbringing and the effect upon him of events beyond his control.

8. In my view, the mental state of the prisoner, both at the time of the offending and in general terms, warrants less weight to be given to the weight of general deterrence, although it is still present as a factor pursuant to s 3A of the Act. In fact one could say that all the purposes of sentencing under that section are present to varying degrees. They are never present to the same degree in every sentencing exercise.

9. I am mindful of the fact, that in Veen (No2) in the High Court in 1988, the majority of the High Court when it identified four of the seven purposes of sentencing now in s 3A, have made the point that they were “guideposts” but sometimes they pointed in “different directions”. I concern myself, however, with the issue of whether greater weight should be given to personal deterrence.

10. This is a matter discussed by Chief Justice Gleeson in the decision of Engert, a decision cited with approval in De La Rosa as it has on many occasions by other judges. There are cases where the character of the mental disability or illness is such that whilst lesser weight should be given to general deterrence, the character of the condition, for example, making the offender a danger to the public may require greater weight to be given to personal deterrence. This was a fate that befell Robert Vincent Veen. I have ultimately concluded by regard to the circumstances of the offending in the particular confluence of circumstances leading to the prisoner’s mental deterioration that this is not such a case.

11. I am satisfied on the basis of the report of the psychiatrist that the circumstances of custody will weigh more heavily upon this prisoner and have been aggravated in fact during the current period of custody, particularly having been stabbed in custody, which as I understand it in part, has led to him being placed in protection. And then of course there are the current COVID-19 restrictions to access to programs which affect every prisoner.

12. I have concluded also that to some extent his moral culpability is diminished. This is both arising out of the character of his mental deterioration but also having regard to the submissions made in relation to “Bugmy principles”. In that regard I cite the High Court judgment of Bugmy v R [2013] HCA37, particularly at paras [43]-[44,] which to be frank, needs to be read sometimes in conjunction with some observations in a case handed down on the same day on 8 October 2013, that is the case of Munda from Western Australia, (Munda v Western Australia [2013] HCA 38).

13. The prisoner is an indigenous Australian. He has grown up in a highly dysfunctional and disadvantaged environment which has had an impact upon his mental health and his opportunities in life and in my view, has a direct relationship with his abuse of alcohol and drugs and is a contributing factor to his history of offending and can be seen as having some connection with the offending on this occasion.

14. This disadvantage and its effects upon the prisoner is relevant to the assessment of his moral culpability and this is a matter that will remain with him all of his life perhaps, but certainly has had an impact upon him and his behaviour until the present time. Its relevance to this sentencing exercise, as pointed out in Bugmy, is not one that diminishes with time.

15. Furthermore, there are the observations of Wood J in Henry at [273] to take into account of drug addiction or drug dependence are not mitigating factors in sentencing. They are relevant both as to the assessment of the characteristics of the offending that is, the impulsivity or spontaneity of it where drug dependency and ingestion have had a role in the offending. I note in this matter that the offending was the subject of rudimentary planning and although not “spontaneous” as such, occurred very shortly after the prisoner left his home armed with a knife. But it is also relevant to the assessment of subjective matters as pointed out by Wood J, particularly considering the character of the drug dependency, its relationship to matters beyond his control or choice, as the case may be, and of course relevant to the assessment of his prospects of his rehabilitation.

16. I must say, in relation to prospects of rehabilitation, one must approach that matter in a guarded way. I cannot find on balance that he has good prospects of rehabilitation. But in my view, consistent with one of the “purposes of sentencing” under s 3A of the Act, his rehabilitation should be encouraged. He is still a relatively young man and he deserves some opportunity that can be reflected in the non-parole period.

17. I have had regard to the victim impact statement which is a short statement but reveals the trauma to one of the victims who was threatened by the accused. I should point out in fairness to the prisoner, the prisoner did not attempt to injure that victim, but I do respect her concern at being confronted by a man with a knife demanding money. The trauma continues, which I accept.

18. I am also required amongst the purposes of sentencing to promote his rehabilitation. As has been said many times by courts of higher authority than mine, the reformation of offenders is just not for the benefit of the offender, it is for the benefit of the community, as was said by Wells J in a 1978 South Australian decision of Yardley v Betts which has been adopted on a number of occasions by the Court of Criminal in New South Wales, if a court by a particular order can set an offender on a path to rehabilitation, that is not just for the good for the offender, it is for the good of the community.

19. I accept that there is some overlap between the pre-determined guideline judgment in Henry and the terms of s 21A of the Act. It is quite obvious that is so. Section 21A in its current form was not introduced until about 2002. There was an early form of it in the Act when it was proclaimed in 2001. The current form has been amended a number of times but the essence of it, I believe, came into effect in 2002. The current s 21A in its form very much reflects in fact what Grove J, a very wise judge of the Supreme Court, identified in the guideline judgment of Ponfield three or four years before the enactment of the Crimes (Sentencing Procedure) Act. The only particular matter identified from the Henry guideline that arises for consideration as an aggravating factor, whether under s 21A(2) or by reference to those additional matters identified by Spiegelman CJ, is the issue of whether the victims were vulnerable.

20. The Crown put submissions that I could regard them as vulnerable victims. However, having regard to the time of day, the location of the offending, notwithstanding the threat of violence from the prisoner, I do not find that there is an aggravating factor of vulnerable victims to be found either by reference to the guideline or pursuant to s 21A(2) of the Act.

21. With regard to mitigating factors pursuant to s 21A(3) that I have not already mentioned, the plea of guilty is itself a mitigating factor, but the early plea as I said attracts the discount to which I have referred. I have accepted the prisoner is relevantly remorseful. And as I said, whilst I cannot find as a mitigating factor that he has good prospects of rehabilitation, there is some hope for him in the context of his past performance on parole.

22. I accept that he has tried in the past to address the issues that have affected him up to the present time. I was impressed with his understanding of and determination to pursue opportunities within custody presently denied him. I was also impressed by his understanding of what he needed to do on release from custody. As I said, however, he is not the first prisoner I have seen give evidence of good intentions on release. But he expressed himself in such a way that I need to give weight to what he said in his evidence.

23. Another mitigating factor in my view is, the loss suffered was not substantial, but I have already taken that into account in the context of the Henry criteria.

24. The Crown conceded the relevance of Bugmy principles and noted even if the circumstances of reduction of moral culpability existed, there was a need for greater emphasis upon the need for protection of the community. I have already taken that matter into account. But notwithstanding this offending, I do not see the prisoner as a threat to the community. As I said, I note this is his first armed robbery and although he has a criminal history that does not entitle him to any particular leniency, it does not have a degree of intensity or depth that warrants a conclusion that he is a threat to the community.

25. I have considered the Form 1 matter in the context to the principles laid down particularly by the guideline judgment, that is Attorney General’s Application (No 1), [2002] 56 NSWLR 146, particularly at [18]-[44]. The matter on the Form 1 is so intimately bound up with the principal offence, that whilst it does involve a further victim and additional criminal conduct, it does not in my view substantially increase the totality of the criminality involved, particularly from the perspective of the prisoner’s intention at the time of entering the premises. It was not as if he specifically went out and chose two victims, it just happened to be that two victims were there, only one of them could hand over the money in any event as it transpired. It seems to me that the totality of criminality by reference to the two charges is not increased by reference to the outcome of the offending. In this regard, bearing in mind the character of the charge for sentence in the matter on the Form 1, this cannot be said to be an offence involving “multiple victims” because one would need to find that aggravating factor in respect of one count not across a number of counts individually charged.

26. Ultimately, counsel for the prisoner submitted both in writing and in oral submissions that all factors taken into account by reference to the guideline judgment in Henry, the starting point of any sentence should be below the guideline figure. Of course, as is apparent from the evidence in this case and the detail of the very helpful submissions from both parties and perhaps my less detailed reflection upon them, there are many matters to be taken into account in sentencing. As I said, in the landmark decision of Veen (No 2), matters relating to sentencing were “guideposts” sometimes pointing in different directions. It is to be noted of course that the guideline in Henry is not a ceiling which is important to note. The ceiling for armed robbery or an offence contrary to s 97 Crimes Act 1900 with a maximum penalty of 20 years, is the maximum penalty. One fixes the appropriate penalty by relationship to where the offence fits within the range of offences contemplated by the section properly balancing both the objective facts and the subjective circumstances and/or mitigating issues that are to be taken into account. Of course, armed robbery is a serious offence but all things considered, this is an offence at the lower end of the scale of objective seriousness but still requires the imposition of a full-time term of imprisonment.

27. Ultimately, I am of the view that the starting point for the sentence to be imposed for this offender, taking into account the matter on the Form 1, is four years imprisonment. By applying the 25% discount, I propose to impose a sentence of three years. I propose to fix a non-parole period which is 50% of the total sentence to provide what I regard as the minimum period of time by which the prisoner should be on parole to assist him to adjust to community living and other matters as I pointed out earlier, and give him an opportunity to address the issues that have contributed to his offending and perhaps assist him to live in the community without danger or injury to other people.

28. In coming to this conclusion I have taken into account all that has been put before me by the parties.

29. Mr Lovett, in relation to the offence that you were committed for sentence for, the armed robbery offence, you are convicted. Taking into account the matter on the Form 1, you are sentenced to a term of one year six months imprisonment by way of non-parole period to date from 22 February 2020 expiring on 21 August 20212. The balance of sentence of one year six months imprisonment expires on 21 February 2023. The total sentence thus is three years imprisonment with a non-parole period of one year six months. Do you understand that order, Mr Lovett?

30. OFFENDER: Yes, so that’s 18 months non-parole.

31. HIS HONOUR: That’s 18 months non-parole, expires on 21 August next year.

32. OFFENDER: Yep okay, thank you very much.

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Decision last updated: 25 May 2021