R v Madar

[2020] NSWDC 185

District Court

New South Wales

Medium Neutral Citation:	R v Madar [2020] NSWDC 185
Hearing dates:	9 March 2020
Decision date:	09 March 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years and 3 months (after a combined discount of 35%) with a non parole period of 1 year 8 months.
Catchwords:	CRIME -SENTENCE - Robbery armed with an offensive weapon
Legislation Cited:	Crimes Act 1900 (NSW), s 97(1)
Cases Cited:	R v Henry (1999) 46 NSWLR 346; Bugmy v R [2013] 249 CLR 571
Category:	Sentence
Parties:	Regina (Crown) Salele Madar (Offender)
Representation:	Ms Sweeney (ODPP Campbelltown) Ms Hanh (Solicitor for the offender)
File Number(s):	2018/00315963
Publication restriction:	Nil

judgment

1. Salele Madar, you appear for sentence today in relation to one offence: that is, robbery armed with an offensive weapon. 

2. This involves a contravention of s 97(1) of the Crimes Act. The maximum penalty for the offence is 20 years' imprisonment; and there is no standard non‑parole period.

3. Although there is no standard non‑parole period, there is a relevant guideline judgment, R v Henry (1999) 46 NSWLR 346.

4. The facts surrounding your offending are principally contained in an agreed statement of facts. But, to an extent, those statements of facts were supplemented today by a statement that you made during the course of the morning (the accuracy of which you swore to in the witness box this afternoon) - and that is contained in exhibit B.

5. The facts surrounding this offence can be stated as follows. 

6. On 24 September 2018 you were subject to three orders from the Local Court.  The first was a s 9 bond for the offence of assault occasioning actual bodily harm.  The second was a suspended term of imprisonment for the offence of drive motor vehicle whilst disqualified.  The third was also a suspended sentence for the same offence. 

7. Whilst on those three bonds, and when you were 36 years of age, you and another man, Mr Chandler (with whom you shared accommodation on the night of 24 September 2018) took illegal drugs.

8. You then had the urge to obtain some cigarettes.  And so you and Mr Chandler went to a service station at Ingleburn at about 9pm, where Mr Gunasakera was going about his work as a console operator at that service station.

9. In circumstances not entirely clear to me, you and Mr Chandler were in possession of a knife whilst walking around Ingleburn; and you, in particular, had it when you went into that service station.  You went up to the counter and demanded that Mr Gunasakera give you cash and cigarettes.  He was startled by the request, and you repeated your demand. 

10. When you made this demand for the second time, Mr Gunasakera saw that you were holding a 30 centimetre knife in your right hand.

11. You walked around the counter. Apparently, the grill door that should have separated members of the public from the console operator was not shut, and so you got in behind the counter, standing beside Mr Gunasakera.

12. You then did something that shows that you were not really thinking rationally, because you put that knife down on the counter. 

13. After you, in effect, had disarmed yourself (and placed the knife possibly in a position where Mr Gunasakera could have used it on you) you then started to remove cigarettes and money. 

14. Whilst you were putting these items in a backpack that you had brought with you, Mr Chandler (who apparently, until this time, was standing outside) came in.  He went up to the counter; he saw the knife; he picked it up and he walked out.

15. Around about this time, you looked around to see where your knife had gone, and Mr Gunasakera was able to tell you that the "other guy took it". 

16. After threatening Mr Gunasakera that if he called the police you would come back for him, you then left the store; and you and Mr Chandler ran off. 

17. You took 63 packets of cigarettes (which had a value of a little under $2,500) and cash, just a little over $900. 

18. It would seem from exhibit B that neither you nor Mr Chandler sold the cigarettes but used them for your own consumption.

19. About a week after this incident, Mr Gunasakera went to the Macquarie Fields Police Station and he went through an identification process.  You were identified and you were arrested on 16 October 2018.

20. In terms of its objective seriousness for an offence of its kind, it is somewhere equidistant between the middle and the bottom of the range.  It is certainly not at the bottom of the range. 

21. It is additionally aggravated by three considerations.  First, you were on conditional liberty.  Secondly, you were in company.  Thirdly, Mr Gunasakera was a vulnerable victim. 

22. At the time of your offending, as I said, you were 36 years old.

23. A psychologist's report has been given to me, the contents of which you have told me are true.

24. The Crown has not cross‑examined you on it. 

25. In that report, I am told something about your early life, and it makes for very depressing reading. 

26. You were born in New Zealand. You came to Australia in 2000. 

27. For some reason you have lost contact with your family.

28. But it is your childhood in New Zealand that is particularly concerning because, as a child of about eight, you were not only physically beaten by your father but you were also sexually abused by him. 

29. So confronting was your family life as a child that at the age of 10 you ran away from home. 

30. I am told in the report that there were behavioural difficulties by you from about 11 years of age. 

31. You starting using cannabis when you were 10 years old; and since the age of 11, you used it regularly.  You have also used alcohol since you were 10 years old.  From 2005, until you were arrested 13 years later for this offence, you have been regularly using all sorts of drugs, including ice. 

32. Since your arrest in 2018, and whilst in custody, you have not used any illegal drug.  The Court is aware that illegal drugs are readily obtainable in the custodial setting.  The fact that you have not used them says something of the strength of character that you have.  In fact, you think the fact that you went into custody has saved your life; and it probably has, if it has given you insight into the way in which alcohol and drugs can destroy a life.

33. Whilst you have been in custody, however, you have been prescribed lawful drugs; and in particular you have been prescribed Seroquel.  You told me (and I accept your evidence) that this is because you were unable to sleep because of the nightmares you were having, now that you are no longer using illegal drugs, about what happened to you as a child. 

34. I have no doubt that your use of drugs, from when you were 10 until your arrest in 2018, was a direct result of your attempting to self‑medicate from shocking crimes that were done to you as a young boy in your own house, where you should have been safe, by your own father. 

35. You have had no treatment for the extent of your drug and alcohol problems; and you have had no treatment for the underlying cause of that - which is the sexual abuse of you as a child.

36. The Courts now know, not least because of the work of the Royal Commission but also because of changes that parliament has made to the law, that the sexual abuse of a child can have catastrophic effects for that child for his entire life. 

37. You are therefore a person who is captured by the High Court's decision in Bugmy v The Queen; that is, your dysfunctional upbringing reduces your moral culpability for your offending. Therefore you are not a proper vehicle for the full application for either general or specific deterrence, although those concepts still remain applicable.

38. You left school, unsurprisingly with that terrible background, after only six years of education. But you have worked hard as an adult. You have most particularly enjoyed working as a forklift driver. You have always been able to find work. 

39. You had a significant relationship with a lady that has collapsed because of your drug abuse.  You have two children with her.  Whether you ever see those children or not, I do not know. 

40. You have a criminal history which does not entitle you to leniency, but it certainly is not an additional aggravating factor; and what you did on this occasion is significantly more serious than anything you have ever done before.

41. You expressed remorse in the witness box today, which I accept.

42. Now that you have spent this time off drugs, you have had a chance to reflect on where they have taken you. But, of course, on your own, without the assistance of a professional person to deal with the root cause of all your problems, you will have a great deal of difficulty staying out of trouble.

43. Not only did you express remorse in the witness box, but you also wrote (of your own volition) to the man whom you confronted that night, which must have been a terrifying thing for him: to be alone at night, confronted by a man on ice with a 30 centimetre knife in his hand. You have written to apologise to the owner of the service station, not at the prompting of any lawyer, but on your own volition.  That also says something about you. 

44. Whilst you have been in custody, amongst other things, you have been working as a sweeper.  That shows the trust and confidence in you that the experienced officers must have, because not everybody is allowed to be a sweeper.

45. My assessment of your prospects of rehabilitation, Mr Madar, is that, if you get effective treatment (and it will have to be lengthy) to deal with what happened to you as a child, your prospects of rehabilitation are reasonable.

46. No sentence other than one of full-time imprisonment is appropriate and the contrary has not been submitted on your behalf. 

47. You have today made the statement that I referred to earlier, which is captured by s 23; and you pleaded guilty at your arraignment.  I shall therefore give you a 35% discount on the sentence you would otherwise have received: 10% for your plea; 10% for past assistance; and 15% for future assistance.

48. As you know, if you do not give evidence in accordance with exhibit B, you will be re-sentenced.

49. Except for the discount of 35%, I would have sentenced you to a term of imprisonment of 5 years. Because of the discount of 35%, the term of imprisonment is 3 years and 3 months. 

50. One question that has been agitated in front of me is: when should it start?  The Crown made the quite reasonable submission that it should start no earlier than 16 June 2019.  That was a proper and fair submission. But the Courts retain the capacity to show mercy; and as a direct and conscious act of leniency, I am going to backdate the start date to the date of your arrest, 16 October 2018.

51. Your prospects of rehabilitation would be enhanced by a longer period on parole.  This is your first time in custody. Therefore I make a finding of special circumstances to vary the ratio of the head sentence to the non‑parole period. 

52. I fix a non‑parole period of 1 year and 8 months, commencing 16 October 2018 and expiring on 15 June 2020. I fix a balance of 1 year and 7 months to date from 16 June 2020 and which will expire on 15 January 2022. 

53. You will now go with the officers.

Decision last updated: 11 May 2020