R v Magoin

[2019] NSWDC 268

District Court

New South Wales

Medium Neutral Citation:	R v Magoin [2019] NSWDC 268
Hearing dates:	18 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 5 years with a non-parole period of 3 years
Catchwords:	CRIME — Violent offences — Robbery in company
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes Sentencing Procedure Act 1999, No 1 of 2002 [2002] NSWCCA 518 Bugmy v The Queen [2013] HCA 37 Callaghan, [2006] NSWCCA 58 Engert (1995) 84 A Crim R 67 Henry, (1999) 46 NSWLR 346 Qutami [2001] NSWCCA 353 Veen (No 2) [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Magwan Magoin (Offender)
Representation:	Mr James (Crown) Mr Schaudin (Offender)   Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (NSW) (Offender)
File Number(s):	2018/00046703

EX TEMPORE JUDGEMENT (REVISED)

1. Magwan Magoin is now 23 years of age, and in the Local Court he pleaded guilty to a charge of robbery in company, contrary to s 97(1) Crimes Act 1900, the second sequence in the series H30465302 alleging an offence at Auburn in the following terms: that he, on the first day of December 2017 at 11.20pm at Auburn in the State of New South Wales, did rob AK of certain property, to wit, a red mobile phone, a wallet which contained $180 cash, a Medicare card, a Commonwealth Bank card, an NAB bank card, a Citizen wrist watch, and a black Targus laptop bag which contained a mobile phone charger, and an Optus ID card, the property of AK, whilst being in company with two unknown males.

2. He confirmed that he pleaded guilty to that charge in the Local Court and adhered to his plea of guilty in this Court.

3. He asks that I take into account when I sentence for that robbery offence a further robbery charge at Strathfield on 24 October 2017. This too was robbery with company, sequence 1 in the same series. It alleged that between and 3.05am and 3.10 am on 24 October 2017 at Strathfield in the State of New South Wales he robbed another of a backpack containing a Korean passport, a mobile phone, some earphones, and other personal property, and a wallet containing bank cards, a driver license, and identification document and about $400-500 cash. At the time he was in company with an unknown male. He confirmed his wish that the offence be taken into account when I determine sentence on the principal offence, and he has admitted his guilt in respect of the admission of offence.

MAXIMUM PENALTY

4. Both of these offences are contrary to s 97(1) Crimes Act, which specifies a maximum penalty of imprisonment for twenty years. There is no standard non‑parole period for the purposes of Part 4 Div 1 A Crimes Sentencing Procedure Act 1999.

PRE-SENTENCE CUSTODY

5. The offender has been in custody since his arrest on 12 February 2018. For two months of the period since that date he served concurrent sentences of two months and one month respectively from other offences for he was subject to bonds pursuant to s 9 Crimes (Sentencing Procedure) Act, current time of these offences. He was called up in respect of the breaches of the bonds by reason of this misconduct, leading to the concurrent sentences, which he served whilst awaiting a resolution of this prosecution.

6. As was pointed out to me by Mr Schaudin, who appears for the offender, I have discretion as to when I should commence the sentence for the present matter, in accordance with the discussion by Simpson, J, in Callaghan, [2006] NSWCCA 58. However, it would seem to me in this case that it is appropriate that the sentence I am about to impose should commence on a date two months after he came into custody, thereby accumulating this sentence entirely upon the concurrent sentences which he has already served.

7. The sentence therefore will commence on 12 April 2018.

THE FACTS

8. The circumstances of his misconduct are serious. Both of the victims were on their way home at night after having travelled on public transport to the suburbs where they lived.

9. The Form 1 offence was the first in time. About 2am on Tuesday 24 October 2017, the victim finished work in the city and took a bus from Town Hall to Strathfield. At 3am the victim alighted from the bus and began walking home toward Homebush, carrying a backpack containing his Korean passport and the other property to which I referred when reading the charge. He was in this country as an overseas student from Korea. He arrived in 2013. He had other items that were stolen in his pocket. He walked west along Albert Road and turned north onto Raw Square, and then west again on Leicester Avenue. About 10 to 20 metres onto Leicester Avenue the offender and his co‑offender approached the victim from behind. One of them pushed the victim from behind causing him to go into the grass and bush area along the footpath. One of the offenders put his right hand across the victim’s eyes and knocked his glasses off onto the ground. He heard male voices say, “Where’s the wallet and mobile phone?” The victim was punched to the left side of his face and ribs area about 20 times. His backpack was snatched off his back, his glasses were broken. During the robbery his eyes were covered by one of the offenders using their hand. And at the same time he felt another pressing onto his shoulder to restrict his movement.

10. When the punching caused him to fall to the ground, the offenders there began to kick him. They began to pat him down. Through his fear he took out his wallet and threw it onto the ground, and then ran to the petrol station at the corner of Raw Square and Albert Road looking for assistance. Staff there contacted the police. They, and an ambulance, attended a short time later. He was taken to Concord Hospital for assessment and then back to Burwood police station.

11. DNA was harvested from his clothing. It is said that the profile matched the offender’s DNA profile, though the certificate provided, as discussed in this document, is not entirely clear to me in that regard. That said, the offender pleaded guilty to this crime and acknowledged all of the elements of the offence for the purpose of being brought to account in the assessment of sentence on sequence 2.

12. Sequence 2 occurred about 10pm on Friday 1 December 2017. This victim finished work at Padstow and caught a train to Auburn. About 11.15pm the victim arrived at the railway station at Auburn and began to walk home. The victim was carrying a black Targus branded laptop bag with some personal belongings, and was listening to music using headphones plugged into his mobile phone. He exited at the railway station onto South Parade, and then walked west. He turned left onto Park Road and right onto Queen Street, and then crossed over Alice Street to continue onto Normanby Road.

13. The victim was walking along the northern curb of Normanby Road outside of No 1A when he was approached from behind by the offender and two others. One of the offenders placed their arm around the victim’s neck, at which point all three of them began punching the victim in the face. He felt immediate pain to his face; he was punched about 10 to 15 times. He felt his teeth being knocked out. During the attack, the offenders said, “Give me your wallet. Give me your wallet - Give me your watch, give me your wallet.” The offenders then punched the victim to the stomach and pushed him to the ground. The victim resisted handing over his mobile phone, but the offenders were able to snatch it from him. They removed his wallet from his back pocket, containing $180 in cash his Medicare card, a Commonwealth Bank card, a NAB bank card, they removed his watch worth about $500, and took his Targus laptop bag worth about $150 containing a mobile phone charger, his Indian passport, and an Optus ID card.

14. There were witnesses to this attack. The victim called out for help, at which point the offenders ran east along Normanby Street, left into Alice Street, and out of sight. The witnesses who saw this contacted emergency services. Police and ambulance attended, and the victim was taken to Hospital.

15. A witness described how three males attacked a man of Indian appearance - obviously the victim - who held onto a black backpack, which led to him being swung around by one of the offenders who attempted to pull the backpack away from him. The witness saw two of the offenders wrestling with the victim, with their arms around him. The witness described what they saw to over about 10 seconds before the victim went to the ground. The witness saw the three offenders escape.

16. As the result of this, the victim suffered three teeth knocked out. Two of those were able to be recovered. I understand that to mean they were able to be restored to his mouth.

17. He suffered soreness to his face and his head and his back. DNA from his T-shirt matched the offender’s DNA profile. The offender was arrested on 12 February 2018. He declined the opportunity to participate in a recorded interview.

THE OFFENDER

18. He has a record of antecedents in this state, extending over seven pages. These are not in chronological sequence. They include appearances in the District Court, Parramatta in May, 2016 for aggravated sexual intercourse with a person between the age of 14 years and 16 years. There were three other similar charges. He had imposed control orders aggregated to of 24 months, commencing on 13 January 2015. All of the control orders concurrent except for the last, which commenced on 13 September 2015. Thus, there was an overall period of 24 months, with concurrence for the first three, and an additional eight months by reason of the part accumulation of the sentence imposed on the fourth charge.

19. In August 2015, in the Local Court at Penrith, he was fined and put on good behaviour bonds in respect of offences of assault occasioning actual bodily harm, common assault, and steal from a person.

20. In April 2017, in the Downing Centre Local Court, he was put on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for the supply of a prohibited drug. In December 2017 he was called up in the Downing Centre Local Court for breaching the bond and was ordered to enter a further bond pursuant s 9 Crimes (Sentencing Procedure) Act for a period of two years. In June 2018, he was called up again for breaching the second bond for that same offence, and that led to the sentence of imprisonment for two months, which he served whilst awaiting the resolution of these matters before me.

21. In December 2017, for failing to comply with reporting obligations, he was sentenced to a bond pursuant with s 9 Crimes (Sentencing Procedure) Act. In June 2018, he was called up for breach of that bond and suffered one month imprisonment concurrent with the supply charge sentence.

22. In February 2018, he was convicted in his absence of affray. For that he was put on another s 9 bond for a period of two years. For failing to appear, he was convicted without penalty pursuant to s 10 A Crimes (Sentencing Procedure) Act.

23. In May 2013, in the Children’s Court for assault occasioning actual bodily harm, in his absence he was found to have committed the offence and in due course placed on probation for a period of eight months. In July 2013, for entering into inclosed lands he was cautioned with the charge dismissed.

24. In June 2018 in the Local Court for goods in custody he was convicted without penalty pursuant to s 10 A Crimes (Sentencing Procedure) Act. On the same occasion, for failing to comply with reporting obligations he was imprisoned for one month. This appears to be a different offence to the earlier offence for which he was given one month’s imprisonment. Again, this was concurrent with the other sentences.

25. There is no record of custodial misconduct.

26. He did not give evidence before me, and I am left to make an assessment of him drawing upon documents that were tendered on his behalf.

27. There are two psychologist’s reports. As indicated in the course of argument, I have found the first of those helpful, but to the second and more recent I have attributed little weight for reasons I shall explain.

28. The first document tells me that the offender came from Blacktown Boys High School. It is signed by the school counsellor, and another counsellor registered as a psychologist. This was written, it appears, on 22 March 2016 and would be relevant to the proceedings in the District Court for the sexual offences for which he was made subject to control orders.

29. This document tells me that according to the counselling file at the school his cognitive ability, academic ability, and adaptive functioning was assessed in 2008 on the Wechsler, non‑verbal scale of ability. His overall cognitive ability fell in the extremely low (mild intellectual disability) to borderline range.

30. The assessment of his level of academic ability, and adaptive functioning by the teacher checklist was consistent with the result. He had significant issues with low attendance.

31. Dr Peter John Ashkar, psychologist, provided a report on 3 May 2016. This document was for the purposes of the sexual assault offences. The psychologist saw the offender face‑to‑face at the Long Bay Correctional Centre, over two hours, after review of the agreed facts, the report by a case worker from juvenile justice, and the offender’s criminal history. There is reference to the agreed facts, to which he was pleading guilty. I need not rehearse those. He told Dr Ashkar that he was born in Sudan with four younger siblings. The family migrated to Egypt when he was five years old, then to Australia when he was nine years old.

32. His first languages were Dinka and Arabic, and he did not speak English before migrating to this country. But today, or at least at the time of this report, English was his main language. His birth and early development were normal to the best of his knowledge. He commenced his schooling in Egypt, and he entered school in Australia in year four.

33. He studied English as a first step. He was able to develop basic or fundamental literacy skills. He received no special learning assistance other than the assistance he received with his English lessons. He did not engage in learning when in secondary school level and his attendance was poor. He reported that he experienced conflict in the form of racism.

34. He suffered suspensions for fighting, and this led him to gravitate toward antisocial peers with whom he began to use alcohol and cannabis; alcohol in large amounts, cannabis in small amounts, at or near the age of 15 years. He negotiated year nine with poor results and left after he failed in year 10. He said he was not focusing, and was not serious about learning. He gained work as a labourer.

35. There was no medical or psychiatric history of note. He did see violence during the Sudanese civil war. He recalled people fighting with machetes, but he denied a history of psychological trauma. He has a history of alcohol and cannabis abuse, as described; he reported no other substance use of concern. He said he felt symptoms of anxiety and depression associated with his current legal circumstances, there was no history of self‑harming or suicidal behaviour, and he denied suicidal intent.

36. He underwent intellectual assessment using the Wechsler Adult Intelligence Scale, he was observed clinically, and his responses were found to be appropriate.

37. He reported good adjustment to his custodial setting, despite having experienced initial difficulties. He had good sleep the night before; he denied the use of alcohol or illicit substances in the days before the assessment. He was calm, cooperative, his mood was reactive and appropriate to the situation, although somewhat flat and restricted. He did not impress as clinically anxious or depressed, there was no evidence of perceptual disturbance or disordered thinking.

38. He demonstrated appropriate social communication skills. For example, eye contact, and turn taking in conversation. He was alert and fully oriented. He understood questions and instructions without difficulty. He had a limited vocabulary, but he was able to communicate effectively for the purposes of the assessment.

39. He appeared to have some difficulty focusing and sustaining attention. For example, questions had to be repeated on several occasions. His memory for recent and distant facts and events appeared to be intact. For example, he was able to detail the what, where, and when of his offences; and he was able to provide a detailed personal history, much of which was corroborated by the supplied documentation.

40. He performed within normal limits on tests of effort, which suggests that he was motivated to perform at or near the best of his ability on cognitive testing. His overall level of intellectual functioning was extremely low, at the first percentile, consistent with the 2008 assessment, to which I referred.

41. There was some variation across his different intellectual cognitive abilities. His attention, concentration, and working and memory skills were borderline impaired, third percentile, and his information processing speed was extremely low, first percentile.

42. His verbal intellectual skills, that is word knowledge, general knowledge, and verbal abstract reasoning, were extremely low, second percentile. His non‑verbal visual intellectual skills were borderline impaired, eighth percentile. His verbal intellectual skills were an area of personal weakness, consistent with English being his second language. Information processing speed was a second area of personal weakness, less likely to be explained by language and cultural factors, and more likely to reflect inherently limited cognitive ability.

43. Upon the clinical and psychometric assessment, the summary and opinion as offered by Dr Ashkar is consistent with the view that I have formed, drawing upon this document as a whole. I will quote from parts of para 9.

“A previous assessment from 2008 reported his overall level of intellectual functioning to fall in the ‘borderline’ to ‘extremely low’ range and reported corresponding impairment in his adaptive behaviour skills. The findings from this assessment appear to be broadly consistent with the result of the 2008 assessment, (as they have been reported in the supplied documentation). Mr Magoin’s overall level of intellectual functioning is ‘extremely low’ (first percentile), and his verbal intellectual skills and information processing speed are areas of particular weakness for him. These weaknesses / impairment in his intellectual functioning seriously undermine his ability to engage in effective reasoning, judgment, abstract thought, and consequential thinking, and contributes substantially to the poor decision making that underpins his offending behaviour.”

44. Dr Ashkar offers caution in the interpretation of the assessment because of language and cultural factors placing the offender at a disadvantage. The concept is amplified in the para 10 in the report. But ultimately, the results according to the doctor provide a robust testament of his true intellectual abilities, irrespective of the language and cultural factors at play.

45. Dr Ashkar is of the view that it is less clear if the weaknesses/impairments in his intellectual functioning translate into adaptive behaviour deficits; that is, how well he meets community standards of personal independence and social responsibility, in comparison to others of similar age and cultural background. This aspect, according to Dr Ashkar, was difficult to assess while he was in the controlled environment of custody, and without a knowledgeable informant to assist in the assessment.

46. In response to specific questions, Dr Ashkar expressed the view that the assessment reveals substantial impairment in Mr Magoin’s cognitive functioning. These are developmental in nature, and undermined his ability to engage in effective reasoning, judgement, abstract thought, and consequential thinking, and contributed substantially to the poor decision making that underpinned his offending behaviour.

44. He appears to have made good adjustment to the custodial environment following his initial difficulties. He would benefit from appropriate training to protect him from the negative influence of unscrupulous peers.

45. Kris, L North, from Avid Psychology, provided a report written on 26 February 2019. As indicated in the course of submissions, I have approached this report with circumspection, consistent with what was said by Smart AJ in the Court of criminal appeal in the decision Qutami [2001] NSWCCA 353.

46. The offender did not give evidence and I am left to assess the representations attributed to him without the benefit of having heard from him and not having seen him respond to question by way of examination-in-chief or cross‑examination. Moreover, the assessment was made by this psychologist on 4 February 2019 via audio visual link, when the offender was held in Bathurst Correctional Centre.

47. He reviewed the draft statement of agreed facts and the offender’s criminal history. The report attributes to the offender, for there is no other source identified for the information, a significantly different history in the sense that there is an absence of matters such as those to which Dr Ashkar referred in support of his opinion.

48. This psychologist has come to the view that he meets the criteria for post‑traumatic stress disorder, and offers the opinion that his subsequent substance use issues were directly related thereto to manage unwanted thoughts and feelings related to past trauma, which in turn led to his association with anti-social peer groups in adolescence and subsequent offending behaviours, and he was thereby caught in the cycle of substance use and antisocial behaviour since. The offender reported a vague memory of the offences.

49. Although I note the report speaks in singular terms, on this occasion he is said to have been drinking with friends and had used ecstasy prior to the offence. There is reference to his life experience in the Sudan as a child, his family’s flight to Egypt, his position within his family, and that his father was abusive which led to him asking his father to leave the family. Thereafter they have had minimal contact.

50. There is reference to his education and expulsion from school for fighting, truanting, drinking alcohol, smoking cannabis, and hanging around with the wrong people with exposure to racism, which apparently contributed to his difficulties. Notwithstanding all of the challenges that Mr North describes, he has been able to form a long‑term relationship, and with his partner has a son now aged one year. The relationship is stable, and he is in contact most days with his partner by telephone.

51. Regarding his alcohol and cannabis use he is attributed with reporting it as helping him relieve stress, and to stop him thinking about his family and the war in the Sudan. There is reference to him having seen much violence in the course of the civil war in Sudan. He saw people being killed. He lost a number of close family members, prior to the family relocating in Egypt when was aged six. He said he continued to think about these experiences and lost family members in Egypt, and when he migrated to Australia. There is reference to having suffered the loss of a close friend who died in a car collision, while he was in gaol a cousin who drowned, and another cousin who committed suicide about five years ago.

52. There is reference to risk for future self‑harm.

53. Psychometric testing was administered notwithstanding the limitations that must have been imposed by reason of the medium through which this assessment was performed. The formulation is in terms of the summary which I have provided above.

54. For the reasons I have given, I have not found that report helpful under the circumstances, but I am persuaded by the views expressed by Dr Ashkar in the report, and I accept those.

55. The offender wrote a letter apologising, expressing regret and sorrow for the victim, and asking for forgiveness. There is a statement of attainment for vocational training in certificate 1 - skills for vocational pathways, with instruction upon using simple strategies for work related learning.

SUBMISSIONS AND CONSIDERATION

59. The written submissions provided on behalf of the offender were prepared within the context of s 98 CrimesAct, not the provision under which these offences were charged, and so, as Mr Schaudin noted at the beginning of the hearing, there is some modification required in the use to be made of the submissions. That said, they are helpful; they address the facts that are relevant to the assessment of sentence.

60. I agree with the submission that the plea of guilty entered to the principal charge entitles the offender to the 25 per cent discount for utility.

61. I am reminded of the guideline judgement in Henry, (1999) 46 NSWLR 346; I am reminded of the offender’s age, and his past record for offences that do not approach the seriousness of the matters before the Court today. I am reminded of his background, and the principles for which Bugmy v The Queen [2013] HCA 37 are now authority.

62. In oral submissions it was said there that he has prospects for rehabilitation, at least from the support that is available to him by way of his mother and his partner, both of whom, with his son, are present in Court. Also, there is a cousin here to support him today.

63. I am reminded, by way of those submissions, of his difficulties in his formative years. It is noted that the offender did not give evidence, but it is said that I should be confident in the representations attributed to him. I can say that I am so in respect of the report provided by Dr Ashkar and the very brief letter from the school counsellors.

64. There was limited planning and organisation in the commission of these crimes, and when one focuses upon the individual offences, that I would accept. But when I look at the dates upon which these offences occurred, the similarity between their execution, and the opportunity that presented by these vulnerable victims coming home late at night after work, this conduct was clearly within contemplation of the offender and his companions. When I look at the circumstances and the comparable pattern adopted in each case, although in the individual offences there might have been limited planning and organisation, the overall concept was clearly well before them because they executed their plan, such as it was, as their hapless victims were proximate to them.

65. I am told that in light of his limitations that general deterrence has a lesser role to play, and that is clearly so in cases such as this. There is no need to cite or discuss authority speaking to the point it is so well established.

66. But there is a countervailing consideration, and that is the need to provide protection from the offender in the interest of the community. Simply putting him in gaol will not achieve that. What needs to be identified is an appropriate sentence reflecting denunciation, the harm to the victim, and the need for some weight to be given to general deterrence, with a sentence that will provide appropriate punishment against the subjective circumstances that are before me, synthesised with the objective seriousness of the misconduct. This will be achieved with the finding of special circumstances that I make, in light of what is contained in the report by Dr Ashkar. There is a need for this offender to be on parole for extended time to enable him to migrate back into the community, and hopefully, with the assistance of community corrections and the parole authorities, to change his direction and accept the responsibilities that he now has as a partner to the mother of his baby.

67. The Crown has accurately summarised the relevant matters for the Court’s consideration. I should note the threshold in s 5 Crimes (Sentencing Procedure) Act has been crossed. I agree with the submission that the misconduct in the offence with which I am concerned for the determination of sentence falls at least at, and probably above, the level envisaged by the judgement in Henry ibid.

68. All of the purpose of sentencing in s 3 A Crimes (Sentencing Procedure) Act are engaged. As I have already indicated, this requires adequate punishment, a measure of general deterrence, specific deterrence, protection for the community, the promotion of rehabilitation, to make the offender accountable, to denounce his misconduct, and recognise the harm that was done to the victim in this case, including the fact that he had three teeth knocked from his head.

69. These various purposes are not considered in isolation. As has made clear in Veen (No 2) [1988] HCA 14 and also Engert (1995) 84 A Crim R 67 the in which Gleeson CJ wrote the judgement, the exercise involves the synthesis of these considerations with appropriate weight attributed across to each of the various purposes.

70. Assessing the objective seriousness of the offence, I bring to account that there was no weapon involved in this, but the victims were vulnerable. There was, I would find, no impulsiveness in the commission of these offences, and in the individual cases, there was limited planning and organisation. But the concept, as I found, was before them and it was exploited once the victims came near to the offenders. The violence was of a level of intensity that requires these offences to be put above the example given in the guideline judgement. There was not the offer of violence; there was the infliction of violence and harm. There were multiple offenders. Although in objective terms, the property taken both in terms of the value of the property and the cash was relatively modest, these victims no doubt suffered significant loss subjectively, including the inconvenience occasioned by their identification and cards being taken from them. No doubt, being attacked in the middle of the night on the way home from work in vulnerable circumstances would have had an impact upon the victims, though there is nothing before me in that regard. I accept that the victims were vulnerable. I take care not to double count that factor, bearing in mind the relevance of the guideline judgement.

71. Comparison is to be made of the misconduct on each of the occasions the offences occurred. There was actual violence that I have noted; both victims were attacked from behind. There was actual harm suffered by the victim in the offence upon which sentence is to be imposed.

72. I agree with the Crown’s submission that the absence of a weapon, such as a knife, to which there is reference in the guideline judgement, is counterbalanced by the actual violence occasioned in this case and that the attacks were in company.

73. The antecedents of the offender are said to have been relative brief, which they are, but there has been frequent misconduct in a relatively short period of time, and the aggravated sexual intercourse offences were matters of significance.

74. There was no precise role identified by the offender, but in one of these crimes there were two of them. In the other there were three. The offender acknowledges by his plea of guilty that he was part of the joint criminal enterprise in the principal offence, and by his admission of guilt in respect of the Form 1 offence he was a participant in the joint criminal enterprise in that crime.

75. The guideline judgement Attorney General’s Application Under s 37 Crimes Sentencing Procedure Act 1999, No 1 of 2002 [2002] NSWCCA 518 is well known. I have brought the additional offence to account. He has gained by that significant advantage not facing separate punishment for a serious criminal offence. It will impact upon the sentence to be imposed on the principal offence, increasing it appropriately beyond that which would have been imposed were he sentenced on the principal offence standing alone.

76. The decision to take this course though must be brought to his account to his credit, because of the utility it has provided.

77. As I said I have applied a discount of 25 per cent to the sentence; in fact it is a little more than that because I have rounded the sentence down to one of the years abandoning the additional time upon strict application of 25 per cent to the starting point that I have adopted.

78. The mitigating factors addressed by the Crown include that one cannot be confident that he will not reoffend. His prospects, therefore, for rehabilitation must be assessed with caution.

79. I have no evidence by the offender of contrition and remorse, but it must be recognised that by pleading guilty and having the Form 1 offence brought to account, he has demonstrated at least a measure of regret for the misconduct upon which he has engaged, although it could equally be said that he has recognised the inevitable by reason of the strength of the Crown case, including the DNA profile that was harvested from the victims’ clothing. He has the benefit of his plea of guilty, as I have said.

80. The sentenced is back dated to bring into account the pre‑sentence custody referable to this offending.

SENTENCE

81. The offender is convicted of the offence of robbery in company. I impose a non‑parole period of imprisonment for 3 years, commencing on 12 April 2018, to expire on 11 April 2021. I impose a further period of imprisonment of 2 years to commence on the expiration of the non‑parole period; that shall expire on 11 April 2023.

82. Being a sentence of more than 3 years, he is eligible for an application for release to parole at the expiration of the non‑parole period, and as required by the legislation, the parole will be supervised according to his needs at the point of release.

83. The exhibits to remain on file for 28 days or such other period as the parties require.

84. I refer him to the Drug Court, seeing as he has more than 18 months left on the sentence that he is required to serve.

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Decision last updated: 19 June 2019