R v Manias

Case •

[2020] NSWDC 542

•

15 April 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Manias [2020] NSWDC 542
Hearing dates: 9 April 2020
Decision date: 15 April 2020
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

Indicative sentences of imprisonment:

2019/143341

001 – 6 months

002 – 6 months

003 – 6 months

004 – 6 months

2019/217865

001 – 6 months

002 – 2 months

2019/148990

002 – 1 year

2019/00279683

001 – 3 years after 25% discount

Aggregate sentence:

Convicted.

Special circumstances found – age, 1st time in custody, need for a longer period of parole to assist with reintegration into the community and treatment and/or counselling in re drug and alcohol abuse.

Sentenced to a term of imprisonment for 3 years and 6 months comprising a NPP of 2 years and 3 months to commence on 7 September 2019 and to expire on 6 December 2021, and a balance of term of 1 year and 3 months to commence on 7 December 2021 and to expire on 6 March 2023.

File to be marked “Referred to Drug Court – CDCC.”

Catchwords:

CRIME - robbery armed with an offensive weapon – breaches of Community Correction Orders – common assault, contravene AVO, larceny, goods in personal custody suspected being stolen (not m/v), destroy or damage property - subjective matters - aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912 (NSW)

Cases Cited:

BPvThe Queen [2010] 201 A Crim R 379; (2010) NSWCCA 159

KentwellvThe Queen (2014) 252 CLR 601

Rv Henry & Ors [1999] 46 NSWLR 346

Rv Thomson; R v Houlton [2000] 49 NSWLR 383

YildizvThe Queen [2020] NSWCCA 69

Category:Sentence
Parties: Regina
Isaac Manias
Representation:

Counsel:
Defence: Mr M Fokkes

Solicitors:
Crown: Mr A Wilczek; Ms A Trajkovski
Defence: Ms K Dinh
File Number(s): 2019/00279683

Judgment

  1. Isaac Manias appears for sentence in respect of a single offence, being robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900.  The maximum penalty provided is imprisonment for 20 years.  There is no relevant standard non‑parole period.  In addition to that offence, there are, however, a number of offences which have previously been dealt with in the Local Court and in respect of which Community Correction Orders were made. In respect of each of those Community Correction Orders, his commission of this offence is a breach. 

  2. This Court has been asked to deal with the breaches in lieu of the matters having been referred back to the Local Court, as they should have been, in my view, to give the magistrate who originally dealt with them the opportunity to revisit the sentences that had been imposed. There would, in those circumstances, have been an available appeal from the Local Court to the District Court for the sentence eventually imposed.  That does not apply when the matters are dealt with by this Court.  However, the nature of the charge that brings him before this Court, as has been accepted by Mr Fokkes, the barrister appearing on behalf of the offender, is such that a sentence of imprisonment must be imposed.  That, of course, significantly affects what sentence might be imposed in relation to the offences that were dealt with in the Local Court by way of Community Correction Orders.  The offender was committed for sentence on 18 February 2020 in the Central Local Court and is entitled to a 25% discount for the utility of the plea alone as referred to in R v Thomson and Houlton [2000] 49 NSWLR 383. Such a discount will be provided.

  3. I will deal firstly with the facts in relation to the robbery armed with an offensive weapon charge before returning to deal with the facts in relation to each of the seven CCO orders made in the past by the magistrate, as it is of course necessary for this Court to now try to determine an appropriate sentence in relation to the matters where there have been breaches.  However, in respect of the current robbery offence, the facts are as follows;

1.  At about 8.45pm on Saturday 7 September 2019, the complainant Faith Amper and witness Jethro Joson sat down on the north‑eastern most park bench in Belmore Park, Haymarket, near Central Train Station.  Belmore Park is on the opposite side of Eddy Avenue to Central Railway Station.  The park bench faced west into Belmore Park with the eastern path just one metre behind.  The complainant and the witness sat and spoke together for approximately 30 minutes.

2.  At about 9.10pm, the offender and a young person entered Belmore Park from the northern side of Hay Street.  They walked along the eastern footpath and stopped about 15 metres behind the complainant and the witness, who were then seated on the bench.  The offender and the young person spoke with each other while waiting on the eastern fence line at Belmore Park.

3.  The complainant and the witness heard the two males talking behind them.  They turned around and observed the offender and the young person standing against the eastern fence line of Belmore Park.  Both were wearing grey hooded jumpers that were pulled up over their heads.

4.  After about five minutes, the offender and co‑offender young person moved forward and stood directly in front of the complainant and the witness.  The offender held out a small kitchen knife with the blade pointed towards the complainant's body.  The complainant and the witness remained seated on the park bench.  The complainant described the knife as being similar to a kitchen knife with a silver blade and a brown handle about 15 centimetres in length.

5.  The offender said, "Give me your bag."  Amper said, "I am sorry but I can't." The young co‑offender said, "Do you have cash?"  Amper said, "Yeah, I do have cash."  The young co‑offender said, "How many cash do you have?"  Amper said, "I only have $100 cash.  Please, don't take my cards as I really need them."  The young co‑offender said, "Okay.  Don't worry about your cards; just give me your cash."

6.  The offender kept holding the knife pointed towards the complainant as she handed the young person one $100 Australian bank note from inside her bag.  The young co‑offender took the note and placed it into the pocket of his hooded jumper.  The young person said, "Sorry."

7.  The offender and the young co‑offender turned and walked away from the complainant and the witness, walking north out of Belmore Park towards Elizabeth Street.  As they walked away, the young co‑offender handed the offender the $100 note.

8.  The complainant was distressed and crying.  She went to purchase water at Central Railway Station when she spoke to police.  A description of the offender and the young co‑offender was circulated via police radio;

9.  At about 11pm, police located the offender and the young co‑offender walking in Belmore Park.  The offender and the young co‑offender were arrested and cautioned before being subjected to a search.  During the search the small kitchen knife and the $100 note were located in a bag.

10.  The offender was conveyed to Day Street police station where the formalities were complied with.  He participated in an electronic recorded interview, during which he denied the allegations.

  1. In respect of the young person, he was at the time a juvenile and has not yet been sentenced in respect of his participation in the offence, although I understand that that is expected to occur sometime in May this year.  I am of the view that the offence was a serious one.  It involved the offender in the company of another, himself producing a 15 centimetre knife after having spent some time obviously contemplating the offence, and each of them at some stage placing their hooded jumpers over their heads in order to effect at least a partial disguise.  The facts indicate that that was at least some premeditation of committing the offence by the offenders.  It was late at night and in a public place.  The victim robbed was herself a relatively young person.

  2. In my view, the facts evidence that the offender and his juvenile co‑offender were present in the park for the deliberate purpose of finding a victim who would be vulnerable to a robbery, and focused in those circumstances on Faith Amper.  The offender in evidence on sentence has said that he had the knife with him for protection from unspecified acquaintances.  However, when asked as to where he had obtained it from, he indicated that he had bought it at Coles, initially saying a day or so prior to the offence but giving an alternative of a few hours before.  In the circumstances, I am of the view that the offender attended at the park with the knife with the intention of using it to effect a robbery.  This was not a spontaneous event where he happened to be in the park with a knife present for other purposes that he then decided to use for the purpose of robbing the victim.

  3. However, I accept that there was a limited degree of planning.  As I have said during the submissions on sentence, I accept that this can be regarded as being a serious type of offence, as is indicated by the maximum penalty provided of 20 years, and this is a relatively typical example of such an offence or “par for the course”. 

  4. It is necessary to deal with the facts, as I have indicated, in relation to the Community Correction Orders imposed in the past in relation to earlier offending.  The relevance of those matters is not simply that this was a breach of the conditional liberty, which is an aggravating circumstance as provided by the legislation, but because this Court has been asked to deal with the breaches to determine what action should be taken as a result of the breach in each case of the seven CCOs.

  5. Those matters are as follows.  Dealing with them in the order that they appear in the criminal history: on 21 August 2019 the offender was sentenced at the Downing Centre Local Court in respect of four offences, each of which occurred on 13 July 2019.  He was dealt with on 21 August 2019 at the Downing Centre Local Court for four offences committed on 7 May 2019, those being two offences of common assault and two offences of contravening a prohibition/restriction in an AVO.  In relation to each the four offences he received a Community Correction Order of two years to date from the date of sentence, 21 August 2019, and conclude on 20 August 2021 with supervision to be provided by Community Corrections, including treatment programs during the two years, particularly in respect of alcohol and drugs as well as abstention.

  6. The Community Correction Order in each case was entirely concurrent from 21 August 2019, each concluded on 20 August 2021, and was in the same terms as well as duration.  As to the four offences, the only material before me is the facts sheet as tendered in the Local Court.  It indicates that on 7 May 2019 the offender was residing in premises with his then girlfriend, Paris Moss, in premises in Grace Campbell Crescent, Hillsdale.  He was then apparently working in a catering truck and earning $200 a week which all went to rent.  At 9.15am on Tuesday 7 May 2019 police had served a provisional Apprehended Domestic Violence Order on the offender for the protection of Ms Moss.  The conditions of the ADVO included that he was not to do a number of things in relation to Paris Moss or anyone with whom she had a domestic relationship, such as assault, threaten, stalk, harass or intimidate them, and he was required not to be in the company of Paris Moss for at least 12 hours after drinking alcohol or taking illicit drugs.

  7. The second victim was Paris Moss's mother, Ms Bowering, who was also covered by Condition 1 as I have referred to.  The fact sheet indicates that at 4pm on Tuesday 7 May 2019, the accused consumed one bottle of Corona brand beer, that is, approximately some six hours after he had been served with the provisional AVO.  One hour later, at 5pm, both his girlfriend and her mother were then present at the premises in Hillsdale.  They were packing away property owned by Paris Moss so that she could spend the night away from the offender.  At 5.15pm the accused and the protected person, Ms Moss, were in their bedroom and they became involved in a verbal argument over the Apprehended Domestic Violence Order.  As a result of hearing the argument, Bowering approached the offender and told him, "You're not welcome here anymore, get out."

  8. The offender then called Bowering a "dirty slut cunt".  His girlfriend retaliated by spitting at him.  This caused the offender to punch out towards Ms Moss, alternating between swinging his left and right arms.  The offender and Ms Moss then became engaged in a wrestle at the front door of the residence.  Ms Moss's mother then grabbed Ms Moss in order to pull her apart from the offender.  The offender then grabbed Ms Bowering with his right hand in a sideways arcing motion and grabbed Bowering around her upper torso area.  Following that incident he began to punch towards Ms Bowering, alternating between swinging his left and right arms.  When endeavouring to punch her he made contact with Ms Bowering's left and right hands, causing her to feel pain in her right index finger and left little finger.

  9. Following the incident all parties walked out of the residence.  However, the offender then grabbed Paris Moss and threw her down onto the adjacent concrete where her face made contact with the ground.  Ms Bowering then approached the offender and struck him with an extended right arm in order to protect Moss. The accused then proceeded to throw Moss to the adjacent ground a second time.  The police were called and attended.  The offender was not present at the time but was contacted by Ms Moss using her mobile phone and a short time later he returned to the vicinity, and when asked about the incident he stated, "Mate, we were having a mad argument and shit.  We just started getting in each other's faces and pushing each other.  That was it.  Maybe I, like, punched her leg or something," and he was then cautioned and, following that, stated, "I pushed my girlfriend's mum."  He was then placed under arrest and subsequently charged.

  10. When asked as to whether he had consumed any alcohol in the last 12 hours he said, "Yeah, I had a Corona."  In his evidence today he also indicated that he had been using the restricted drug Xanax at the time, which was not prescribed for him.  He was also dealt with on 21 August 2019 for two offences committed at an earlier time than the offences to which I have just referred.  Those were offences of enter inclosed lands and destroy or damage property committed between 19 April 2019 and 23 April 2019.  In respect of the enter inclosed lands, there was only a financial penalty imposed as limited by the section.  The penalty was $100 and is not obviously currently before this Court.  However, there was a further offence of destroy or damage property in relation to which he received a Community Correction Order of two years, being entirely concurrent with the previous four Community Correction Orders that I have referred to.

  11. The facts in relation to that matter are as follows.  The offender and his then partner, Paris Moss, were residing at accommodation Milton Holiday Park on the South Coast.  Two witnesses observed them to have an argument.  The offender was told to leave the park by the witnesses who watched him walk out the front gates in the direction of Milton Meats, which was about 300 metres along the road, perhaps appropriately called Slaughterhouse Road, Milton.  At 6.31pm on 19 April 2019, CCTV cameras at Milton Meats recorded the offender climbing over the front locked gates.  He was then recorded appearing to be in a very agitated state pacing up and down, jumping on trucks and machinery and then sitting and standing, rubbing his head.

  12. He was recorded getting a broom and smashing the front grille of one of the trucks.  He was further recorded walking around for a while before leaving at 9.19.03pm; that is, his conduct from entering over the locked gate before departing was over approximately a two and a half hour period.  Police on viewing the CCTV footage were able to recognise the offender, and they attended at the Milton Holiday Park and spoke to the witnesses who confirmed which cabin he had been staying in.  After conducting checks they located the phone number for his partner, Ms Moss, who was spoken to and she advised that she would get the offender to contact the police.  On 25 April 2019 he did so.  When informed of the allegation he admitted the offences but did not take part in a formal interview, as was his right.

  13. Noted in the facts is that the total amount of damage to the property at Milton Meats was $17,020.95 which indicates a substantial amount of damage to the various trucks and/or machinery that he damaged.  The facts do not disclose the offender as having any contact in any way with Milton Meats.  There is no explanation for why he would choose to take out any anger which might have arisen from his argument with his then partner on the property of Milton Meats.  In respect of the offence of enter inclosed lands he was simply fined $100 and, as indicated in respect to the offence of destroy or damage property, provided with a two year CCO concurrent with the others.

  14. The further offences occurred on 13 July 2019.  He was again sentenced in respect of these matters on 21 August 2019.  There are two offences, being an offence of larceny less than $2,000 and goods in custody.  In relation to each he received a Community Correction Order of one year to date from 21 August 2019 that expired on 20 August 2020.  Accordingly, he was still subject to the CCO at the time of committing the robbery, in each case.  The facts disclose that the larceny was in respect of stealing a basket containing approximately $400 in notes which was the property of a busker operating in Pitt Street, Sydney.  The basket had been placed in an open guitar case about 5 metres from the busker where monies from bystanders were collected.  The offender simply walked to the basket, picked it up and attempted to run away.

  15. The busker stood up from his chair and threw his guitar towards the offender, causing the offender to trip over the guitar and fall to the ground, where he was then apprehended by the victim and bystanders.  Police attended the location and, after complying with formalities, spoke with the offender.  He stated, "I took the money because I can't get a job and I need to buy food."  The police conducted a search of the offender's person and during the search located a Visa debit card in the name of Ms E R Deminquez in his wallet.  When questioned about the card he replied, "I found it on the road in Hillsdale about two days ago.  I haven't used it.  I just kept it."  The charge in respect of the Visa debit card was the goods in custody offence.  Those are all of the matters in relation to which I have expressed a view that they should have been referred back to the magistrate who dealt with them all on the one occasion.

  16. Before the Court is the offender's criminal history.  It indicates that he was never in trouble as a juvenile but his offending commenced shortly after having turned 18 years of age, the first offence being committed in October 2018, and was an offence of destroy or damage property in respect of which he received a fine of $500 and an order of compensation of $800 on 18 October 2018 at the Waverley Local Court.  The next offending on his criminal history is the four matters committed on 7 May 2019 which were dealt with on 21 August 2019 by way of two year Community Correction Orders in each case.  The next offending was the larceny and the goods in personal custody suspected of being stolen committed on 13 July 2019, and again, finally dealt with on 21 August 2019 by way of in each case 12 months Community Correction Orders concurrent with the previously referred-to orders.

  17. I am sorry, I failed to refer to one Children's Court offence committed on 5 July 2018, shortly before he turned 18, which was dealt with at the Surry Hills Children's Court on 19 February 2019, in relation to which he received a bond under s 33(1A)(2) of three months.  I will correct these reasons to remove the reference to no juvenile offending.  The next offending was a sequence of offences committed on 23 August 2018 and dealt with on 22 October 2018 at the Waverley Local Court, being possess attempt to prescribe restricted substance and possess prohibited drug.  In relation to each of those he received a Conditional Release Order of 12 months.  That order, commencing on 22 October 2018, would in the ordinary course have still been in effect at the time that he committed the robbery offence.

  1. However, on 1 April 2019, approximately six months after the commencement of the Community Release Order, he was called up, apparently for failing to comply with the conditions of attendance or reporting.  The action taken on 1 April 2019 was, apparently, from the criminal history, to simply renew the order in the same terms that it had been given before as to duration but to delete a condition that had originally applied, a condition originally applying was that he was to "link in with Headspace or appropriate youth supporting rehab" supervision for the 12 months of the order.  That condition was simply deleted from the Conditional Release Order on 1 April 2019.

  2. However, he returned again to court on 21 August 2019, again, being for a call up in respect of a breach of the 12 month CRO.  On that occasion he was simply provided with a fine of $100 in relation to each of the two offences.  Accordingly, the matter was finally disposed of on that date and he was not subject to a CRO at the time of committing the robbery, but the history of those offences is, however, still relevant to the question of the risk of reoffending and rehabilitation ‑ or, sorry, the prospect of rehabilitation.  The offences committed between 19 April and 23 April of enter inclosed lands and destroy or damage property, which I have previously referred, were also before the Court on 21 August 2019.  I have already referred to the fact that a fine was imposed of $100 in respect of the enter inclosed lands and, in respect of the destroy or damage property, a further Community Correction Order of two years, commencing on 21 August 2019 and entirely concurrent with all of the other Community Correction Orders was imposed.

  3. Each of the two year Community Correction Orders included directions that he was to be supervised by Community Corrections Service treatment programs for the duration of the Community Correction Order with rehabilitation and abstention treatment programs in respect of alcohol and drugs.  Having been arrested on 7 September 2019, he has in fact now been in custody as a result of the commission of the robbery offence to date, and only in respect of the robbery offence.  The Crown's sentence summary, unhelpful in a number of ways that I have already pointed out during the course of this hearing and inaccurate or incorrect in some particular ways, also fails to assist the Court by at least delineating what the maximum sentences were in relation to any of the offences that are now before the Court as a result of the parties asking the Court to deal with the breaches of CCO orders.

  4. In relation to each of the two common assaults, contrary to s 61, the maximum sentence provided is imprisonment for two years, which is, of course, the limitation in the Local Court. In relation to each of the contraventions of the AVO, again, the maximum sentence in respect of offences, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, is again two years. In relation to the offence of larceny, contrary to s 117, less than $2,000 the maximum in the Local Court is, of course, two years. In respect of the goods in custody offence, contrary to s 527C(1)(a) the maximum penalty provided by the legislation is six months imprisonment. In relation to the last remaining offence relevant to Community Correction Orders is the offence of destroy or damage property contrary to s 195(1A) of the Crimes Act 1900 and the maximum penalty provided is imprisonment for two years.

  5. When determining the sentence to now be imposed in this Court, as a result of a breach of each of those orders, it is relevant to take into account, not only the facts that were before the learned magistrate and the offender's age at the time, but the maximum penalties that were available in respect to the offences then before the Local Court.  In each case it appears there was a plea of guilty, another relevant factor.  As to subjective matters, before the Court is the offender's criminal history to which I have already referred in detail.  In addition, there is a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report which indicates that he has not been in breach of any prison regulations while in custody.

  6. There is, further, a Sentencing Assessment Report under the hand of Tamara Pfefferman, dated 6 April 2020.  And, tendered on behalf of the offender, is first of all a Psychological Report by Ms North, dated 25 March 2020; a letter from Sarah Morgan, being a social worker with the Early Psychosis program conducted by the Bondi Community Health Centre, dated 7 April 2020; and some admission and discharge summaries from the Prince of Wales Hospital in relation to the offender being admitted to that hospital on 15 August 2017 and discharged on 18 August 2017, apparently having presented with a drug‑induced delirium, apparently as indicated to staff at the time, having allegedly smoked THC mixed with ketamine and possibly methamphetamine.

  7. Having discharged on 18 August 2017, he was in fact discharged to the Eastern Suburbs Community Health Service with regard to his mental health.  He was apparently due to be discharged on 30 April 2017.  It refers to him having originally being taken to the emergency department at the Prince of Wales Hospital by ambulance with a drug‑induced delirium against a background of polysubstance misuse and, according to his mother, having taken ketamine mixed with THC.  The hospital notes indicate that he indicated that he had been smoking THC for a number of years without issues and that his admission was due to him having used pills for the first time.  And, although he did not intend to continue to use pills, he would continue to use THC.

  8. The summary indicates that he had indicated he was willing to attend Headspace for support with his drug issues and that his parents planned to attend with him.  He was otherwise said to have had no thoughts of self‑harm or suicide and that he was happy in his life.  His mother had apparently attempted to get him into an apprenticeship but he had been knocked back due to his drug use, although he had been interviewed for a job at Woolies in the preceding week.  He was discharged to the Bondi Junction Youth Mental Health for follow up.  There is a cardiology report from the Prince of Wales Private Hospital which indicates that there were no problems with his heart when examined on 19 September 2017.

  9. In addition to the offender giving evidence on sentence, he has tendered a letter to the Court which indicates his avowed wish to apologise to the victim.  He has claimed that he was not thinking clearly at the time because he was under the influence of Xanax and that he needed to commit the offence in order to obtain more money to pay for more drugs and stating, "I thought the best option was to commit the offence I am incarcerated for.  I know now it was the worst thing I could've possibly done."  He claims to have been free of drug use while in custody since being arrested and that that fact has made him realise, "that I need help getting clean."  He says that he has attended NA meetings while having been in gaol in order to tackle his drug problem.

  10. He also states that at the beginning of his time in gaol he thought that it was "cool being locked up, but I have realised it's horrible in here as I have lost all my freedom and can't be there for my family".  He also indicates that he would like to tackle his drug problem by going to counselling.  He further states, "I am so sincerely sorry for what I have put Faith, Jethro and the Court through.  I'm not the same person anymore."

  11. There is a further letter to the Court from the offender's mother, Carla Vivanco, written on the letterhead of the Windgap Foundation at which she is a supervisor, Windgap providing assistance to people with disabilities.  There is a further reference from the offender's biological father, Christopher Manias, and a reference from Diego Greco, being the de facto partner of the offender's mother since the offender was approximately two years of age, having then separated from his biological father.  I note in respect of Diego Greco that the offender in his evidence indicated that Mr Greco is himself a user of prohibited drugs, as I understood his evidence, both in the past and continuing.

  12. The final reference is from Denis Manias, dated 6 April 2020, being the grandfather of the offender, who states I note, "The offence is out of character and the timing is closely related to the death of his mother's parents, whom he was especially close to, and his subsequent association with some wayward young men and women."  While he has not been charged in the past with an offence of robbery, the offence is in my view not so inconsistent with his past history as to call it out of character.  It may be that his grandfather is not aware of all of the offences for which the offender has been dealt with in the past.  Similarly, the robbery offence does not seem to me to be closely related to the death of his mother's parents which occurred some years ago and before he had completed school.

  13. It also contains the following:  "Isaac has expressed remorse to both me and my wife for this unfortunate incident and wishes he had not associated those friends who urged him to participate in the obnoxious activity for which he was arrested."  I have extreme difficulty in seeing how this offence on any of the material before me was committed as the result of any urging by any of his associates.  The only associate apparently present was a juvenile.  It may be that he has expressed remorse to his grandfather, but it is not expressed as to how that was expressed.  I take account of the references provided as indicating ongoing support from his parents, including his stepfather, and that they continue to hold him in good regard and will no doubt continue to support him in the future.

  14. As to the report from Ms North, psychologist, she indicates that the offender initially attended school in Matraville.  He had some literacy problems in primary school resulting in his receiving additional support while in Year 3 and receiving below average grades throughout school, opined as being likely to be a combination of poor literacy and low motivation.  He then attended South Sydney High School where there was an onset of behavioural problems.  He was said to have been easily influenced by his peers from Year 7 but denied any serious disciplinary issues until Year 9.  It was while he was in Year 9 that he lost both his maternal grandparents, which is reported by him to have a significant impact on him.  He then also lost a close friend to suicide in the following Year 10, and he described to the psychologist a downward spiral since that time.

  15. He was asked to leave school in Year 11 as a result of his poor attendance but denied any history of suspensions or expulsions.  He did manage to obtain his Year 10 school certificate before leaving school.  After leaving school he spent a year without employment prior to finding work in carpentry for five months.  After leaving that job he obtained work in relation to mainly furniture assembly for a period of approximately a year before obtaining a casual job in warehousing in early 2019 where he was employed for up to three months.  During that period he was also living with his mother.  As to his substance use, he is said to have commenced drinking alcohol and smoking cannabis at the age of 14.  His cannabis use escalated from the age of 15 following the death of his grandparents and friend and he began smoking cannabis on a daily basis.

  16. In addition to cannabis, he commenced using ecstasy from the age of 16 and cocaine and methamphetamines from the age of 17.  He informed the psychologist that he had managed to achieve abstention from all drugs while in custody.  He has previously attended the Magistrates Early Referral into Treatment, or MERIT program in 2019 as part of a Community Correction Order.  However, I note that his evidence today indicated that he failed to complete the program except in relation to counselling, declining to take part in urinalysis because he continued to use prohibited drugs during the course of the program and believed that if he participated in urinalysis it would disclose his continuing drug use.  In my view that indicates that the program was of no utility to him and he learnt nothing from it.

  17. He is said to have experienced symptoms of depression and anxiety since Year 9 after losing his grandparents and his friend's later suicide, and, as referred to, at 17 years a psychotic episode which, from the material before the Court, appears to have been entirely drug induced.  He was assessed as to his current state of anxiety and depression by Ms North who found that he had severe depressive symptoms and severe anxiety symptoms at the time of assessment.  He was, of course, at the time in custody and awaiting sentence in relation to a serious offence.  Ms North assessed him as being a low to moderate risk of reoffending.

  18. Symptoms of depression and anxiety frequently flow from the use of prohibited drugs and it appears that the offender up until the time of entering custody on the evidence has continued the abuse of prohibited drugs and/or prescription drugs not prescribed for him.  Ms North made the diagnosis of the following disorders at the time of the assessment:  cannabis use disorder, moderate, in early remission, in a controlled environment; stimulant use disorder, ecstasy, moderate, in early remission, in a controlled environment; sedative, hypnotic, or anxiolytic use disorder, moderate, in early remission, in a controlled environment; substance‑induced psychotic disorder, with onset during intoxication; polysubstance use; and social anxiety disorder, adjustment disorder, with depressed mood.

  19. I note that Sarah Morgan had dealt with him as a result of his admission and discharge from the Prince of Wales Hospital in respect of the drug‑induced delirium.  In her letter of 7 April 2020 she states that he was referred to the service in 2017, and again in 2019, due to concerns he was developing a psychotic illness.  He was discharged from the service in late 2019 due to his being incarcerated and had not been seen since September 2019.  Between May and September 2019 he had had regular appointments with her and also attended a medical assessment with the service's psychiatry registrar.  He is said to have been an:

"...engaging and polite young man keen to improve his wellbeing and future prospects, participating well in our sessions, and was open and honest in regards to the role substance use had played in his forensic history as well as on his mental health issues.  Prior to his incarceration Isaac had initiated a referral to a drug and alcohol rehabilitation facility, recognising that community sessions were not sufficient.  A referral was made to a facility known as Triple Care Farm.  However, unfortunately the processing of referral was delayed due to collection of the relevant information, and then he was not able to attend his assessment due to his arrest."

  1. I note that the Sentence Assessment Report indicates that he had committed the offence for financial gain, as accepted by him.  And somewhere in the material before me, which I cannot locate at the moment, is that he said he committed the offence in order to obtain the money to purchase prohibited drugs and/or prescription drugs not prescribed for him in order to indulge in a drug binge before entering a rehabilitation program.  I note that, although he was referred to being affected by Xanax at the time of the robbery offence, he informed the sentencing assessment officer that at the time of this offending he was using MDMA and Xanax approximately every three days and was under the influence of Xanax while committing the offence.  The sentencing officer contacted the drug psychosis program and was advised by them that they believed that it was likely that he would have been using both Xanax and other substances on a daily basis.

  2. That is, of course, simply a belief based no doubt on their past experience but not necessarily an accurate reflection of what he was affected by at the time.  I note in relation to the facts before the Court there is no indication in relation to his conduct at any time in committing the robbery, or on arrest, that he was then noticed by anyone to be under the effect of any prohibited drug and/or alcohol.  I note the Sentence Assessment Report refers to him as having completed the MERIT program, but that does not appear to be entirely correct, as his evidence was he completed the counselling but declined to take part in urinalysis because he was in fact using prohibited drugs while participating in the program.

  3. As to his insight into the impact of his offending, the Sentence Assessment Report states, "While he recognised his wrongdoing and made some acknowledgment that the victim would've felt scared, he demonstrated little insight into the severity of his offending other than the impact his drug use had on him at the time."  The sentencing assessment officer assessed him as being a medium high risk of reoffending according to the level of service inventory as revised.  But there is, of course, a difference in the assessment with the psychologist, Ms North, who, apparently using the same inventory, assessed him as being a low moderate risk of reoffending.  I do not understand how using the same instrument each could have come to a significantly different conclusion.

  4. However, in my view the conclusion reached by the sentence assessment officer, Tamara Pfefferman, in the light of his past history of offending and failure to comply with CCOs or CROs, and of course the short period of duration during which all of these offences have occurred after he turned 18, in my view it is more likely that Ms Pfefferman's assessment is the accurate one and I intend to proceed on the basis that it is.  Part of that assessment is, of course, the information that he was committing this offence, that is, the robbery offence, in order to obtain money, in order to purchase drugs, in order to engage in a binge before he started a rehabilitation program.  In my view that is a very significant matter in relation to the question of whether he is a low, medium or high risk of reoffending.

  5. I accept that while the guideline judgment of R v Henry refers to a number of factors as being common for the purpose of determining the guideline, and that in relation to this matter all of the factors are likely to be met in factor (1), a young offender with no or little criminal history, I accept that he was a young offender although I do not regard the number of offences that he had acquired in the short period that he had been an adult as indicating a little criminal history.  In my view it indicates a contumelious disregard for the law, and indeed the contempt for the sentencing options that have been employed to try and assist him to rehabilitate himself and stop offending.  As to (2), a weapon like a knife capable of killing or inflicting serious injury, it was a 15 centimetre kitchen knife presented at the victim.  Although clearly capable of inflicting serious injury, none was inflicted.

  6. I accept that there was a limited degree of planning but, in my view, it was commenced some time before he attended Belmore Park, possibly with the purchase of the knife some hours earlier, for the purpose of finding a victim who might be vulnerable in a public place.  I accept that there was limited actual violence; however there was a real threat of violence by way of presentation of the knife.  The victim was not vulnerable in the sense of being a shopkeeper or a taxi driver but was simply a young person sitting in a park late at night, and presumably was, with the exception of the witness sitting with her, comparatively alone.  At 9pm it would not be expected that there would be many people otherwise present in Belmore Park.  As to the amount taken, I accept that it was a small amount; it was a single $100 note.

  1. As to the plea of guilty and the significance as to whether it was limited by a strong Crown case, there is no information before me as to any identification process that was engaged in, although I note that from the description provided by the victim and the witness it was not long apparently before the police were able to identify the offender and his juvenile co‑offender and arrest them when they subsequently attended Belmore Park again, still in possession of the $100 note.  The facts also disclose that he had a kitchen knife with him at the time.  So there was, in my view, a plea of guilty which was limited by a strong Crown case.  However, he is still entitled to the utility of the 25% discount, as referred to R v Thomson and Houlton, for an early plea.

  2. The classic formulation of the general policy in relation to armed robbery is that it is "to be regarded as an offence of the utmost gravity which, except in the most exceptional circumstances, must carry a fulltime custodial sentence".  That was quoted with approval in the guideline judgment of R v Henry & Ors [1999] 46 NSWLR 346. The offender at the time of committing the robbery was of course assisted by the presence of the juvenile co‑offender being physically present and making the inquiries as to whether the victim had any cash, and in fact taking delivery of the $100 note subsequently passed on to the offender, in my view an indication that the offender was the more significant partner of the two.

  3. As I have referred to previously, an aggravating factor in relation to the sentence to be imposed for the robbery armed with an offensive weapon is the fact that the offender was subject at the time to seven separate Community Correction Orders, which is, of course, a form of conditional liberty and any breach of conditional liberty, whether it be breach of bail, breach of parole, or breach of the terms of a Community Correction Order, is in my view a significant aggravating feature.  I note that the co‑offender juvenile will be dealt with, no doubt, in relation to a similar offence in the Children's Court.  There is an entirely different regime of sentencing operating in the Children's Court and I know absolutely nothing about the co‑offender other than the fact that he is a juvenile and he is yet to be dealt with.

  4. I am not prepared to assume what might happen to the co‑offender.  I have to deal with this offender on the basis of the material that is before me, including in particular the breaches of the Community Correction Orders.  I note the Crown's submission that the R v Henry guideline was provided in contemplation of a discount of around 10% for a late plea and that, when one works back from the guideline indicated to get a starting point and then applies to that starting point a discount of 25% for an early plea, the appropriate range appears to be, as defined by R v Henry, between three years, four months and four years, two months, as the head sentence.  I accept that that is an appropriate calculation.

  5. Of course, it is not necessary to refer to but if I do not someone will say that I did not take account of the fact that R v Henry is a guideline not a tram track and that the maximum sentence available of 20 years is similarly only an indication of the seriousness with which the legislature regards such offences, and there may of course be significantly more serious offences of robbery armed with an offensive weapon than this matter, which I have previously referred to as being perhaps “par for the course”.  I intend to take into account all of the matters to which I have referred and I intend to proceed by way of an aggregate sentence, in which case it will be necessary to indicate a sentence in relation to each of the matters that is before me, whether it be by way of breach of a CCO or the robbery offence.

  6. I have had particular regard to the very recent decision of Yildiz v The Queen [2020] NSWCCA 69. The judgment was delivered some five days ago on 9 April 2020. Neither of the parties appears to be aware of it, which does not surprise me since it is such a recent decision. I note in particular in relation to the joint judgment of Simpson AJA and N Adams J what they have said about the relevance of an offender's youth, particularly in the circumstances where the offender is not very much older than the adult age of 18. In that matter the offender was a female aged 18 years and five months. Reliance was made at sentence on the fact that the guideline judgment already referred to youth as being one of the factors taken into account in relation to the guideline, and while the presiding judge sentencing Ms Yildiz referred to the age of the offender, he made no finding in relation to it but simply noted the age, which the Court found was an error.

  7. At para 7 they indicated the applicant's youth was an important subjective feature in her case. Although it was not inevitable that the sentencing judge would have concluded that some allowance ought to have been made for it, the sentencing judge failed to acknowledge it in any meaningful way and the Court was then required, subject to its obligation as imposed by s 6(3) of the Criminal Appeal Act 1912 (NSW), to exercise an independent sentencing discretion, as required by Kentwell v The Queen (2014) 252 CLR 601. They also found a number of matters different in exercising that independent sentencing discretion enlivened by the error, that there was in fact evidence of remorse to the contrary of the sentencing judge's finding and that the sentencing judge had come to conclusions which were contrary to explicit concessions in the agreed statement of facts, that the applicant was unaware of the presence of a weapon and other matters.

  8. Otherwise he accepted the reasons of Rothman J in his judgment in reassessing the matter.  Rothman J said at [48]:

"... the mere fact, and it is the fact, that the guideline judgment in Henry takes into account that the sentence is being imposed on a young offender, with no or little criminal history, does not mean that youth is an irrelevant factor.  Nor does it mean that youth is not a factor that should be considered in the overall determination of the sentence to be imposed.

  1. He also goes on to refer to references in other cases, to the guideline judgment being a guideline not a tram line, and in particular at 58 to 60 he quotes at length the reasons provided by Hodgson JA in BP v The Queen [2010] 201 A Crim R 379; (2010) NSWCCA 159, dealing in particular with the development of maturity, which I might shorten to saying does not occur simply because an individual turns 18, and it has long been accepted that it is a process that is frequently not completed until the early 20s. I have taken into account all of what has been said in those matters and I intend to particularly take account of the fact that this offender was only two months into his adult term. I have also paid, while not an entirely comparable case, attention to the sentence as calculated by Rothman J, and agreed to by Simpson AJA and N Adams J. This offender is, in my view, in a significantly different position, particularly in relation to his prior offending and the large significant number of CCOs he was in breach of, as well as the failed attempts at rehabilitation in the past. I am prepared to accept that being in custody for a period now in excess of seven months, that that has been a salutary experience, and that that has brought home to him, despite what is contained in the Sentence Assessment Report, the significance of his offending conduct and that his expression of remorse and contrition, as referred to by himself and in other material, is genuine.

  2. As to the prospects of his reoffending, in my view, if it is correct that he has managed to stay off drugs while in custody for seven months. That is a good start.  But considering his past history of the abuse of prohibited drugs and/or prescription drugs prescribed for others, I am of the view that there is a significant likelihood that when released, and perhaps when associating with like‑minded youth as part of his peer group, he will be likely to return to the use of prohibited drugs, noting in the past that he has specifically said when having suffered from a drug‑induced psychosis that he would continue to use THC, and in fact demonstrating since that time that he has continued to use a number of prohibited substances despite that salutary experience of suffering from a drug‑induced psychosis.

  3. There will be no hope of rehabilitation until such time as he is genuinely free from prohibited drugs and able to restrain himself from their use. In my view rehabilitation is also a moot prospect in the circumstances of this matter. I have taken all of those matters into account, as well as the purposes of sentencing, as provided by s 3A of the Crimes (Sentencing Procedure) Act.  I have given significant weight to his age.  However, as conceded by Mr Fokkes on his behalf, there is no alternative in relation to this matter other than a term of fulltime imprisonment, particularly where he had a central role in the robbery offence, which was a similar consideration taken into account by Rothman J at para 105 in respect of that offender.

  4. In relation to the Community Correction Orders that he has been in breach of, in relation to H 138805502, Sequence 1, the indicative sentence, taking into account of course that it was a common assault, contrary to s 61 with a two year maximum in the Local Court, the indicative sentence is six months’ imprisonment.

  5. In relation to Sequence 2, contravening an AVO, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007, which had a maximum sentence available of two years, the indicative sentence is, again, six months.

  6. In relation to Sequence 3, being again common assault, contrary to s 61 with of maximum two years imprisonment available, the indicative sentence is, again, six months.

  7. In relation to the fourth of the offences committed on 7 May 2019, being contravention of an AVO, again, the relevant section and the maximum being as referred to already in respect of Sequence 2, again, the indicative sentence is six months’ imprisonment.

  8. In relation to H 71962421, Sequence 1, being larceny less than $2,000, contrary to s 117 of the Crimes Act, the indicative sentence is six months.

  9. In relation to the offence of goods in custody, contrary to s 527C(1)(a), in respect of which the maximum sentence available was six months, the indicative sentence is two months.  I note in respect of that offence that I would have proceeded with something even less than the magistrate imposed by way of the CCO if the magistrate had not imposed the CCO.  In my view to deal with it in a lesser fashion would be to ignore the fact that the magistrate had imposed a one year CCO in respect of it.

  10. As to H 71094148, being only Sequence 2, destroy or damage property, contrary to s 195(1)(a), the maximum sentence available in the Local Court was, of course, two years but I would provide an indicative sentence in respect of that matter of one year.

  11. In respect of the offence of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, I have determined a starting point of a head sentence of four years to which I have applied the 25% discount, giving a sentence of three years or 36 months, which is some four months less than the Crown's calculated lowest rung for the R v Henry guideline.

  12. As to the aggregate sentence, which takes into account all of the breaches of the CCOs as well the indicative sentence for the robbery offence, the aggregate sentence is a term of imprisonment of three years, six months.  I have made some adjustment to the statutory relationship between the non‑parole period and the balance of term to provide for a longer period of parole than would otherwise be the case to assist the offender in respect of rehabilitation, and also acknowledging the fact that this is his first time in custody.  I have reduced the non‑parole period from the statutory relationship of 75% of the overall term to slightly less than 65% of the overall term.

  13. The sentence will, of course, commence from the date of the offender's arrest, being 7 September 2019.  He will be first eligible for parole on 6 December 2021.  The balance of term is one year and three months and the total sentence will expire on 6 March 2023.  In effect that means that the period that he will serve in custody from today until he is first eligible for parole is approximately 19 months and 22 days.  I suppose that is a bit more precise than approximate but 19 months and 22 days.  I have then given consideration to that period of time that he will remain in custody before being eligible for parole.  I first of all indicate to him that, of course, he will not be paroled unless he performs to the satisfaction of the authorities.  But if he does perform to the satisfaction of the authorities, he can expect to be released on parole on the expiry of the non‑parole period, or when he first becomes eligible for parole, on about 6 December 2021.

  14. There is a Compulsory Drug Treatment Correctional Centre at Parklea which provides compulsory treatment and rehabilitation for recidivist male drug offenders.  Entry to that is achieved by referral of apparently eligible prisoners to the Drug Court for the making of a compulsory drug treatment order.  It is available to this District Court in Sydney and the Court has a duty to ascertain as soon as practicable after a person is sentenced to imprisonment as to whether there are grounds upon which the Drug Court might find the person to be eligible convicted offender, and if the Court is of that view, then, it is required, that is, it must refer the person to Drug Court, which will then determine if the prisoner is eligible and suitable for a CDTO.

  15. I have considered the various criteria and one of those criteria is that there is an unexpired non‑parole period of at least 18 months and an unexpired total sentence of not more than six years.  I have considered each of the other criteria, and in my view the offender would qualify for a CDTO.  Accordingly, I will endorse the papers as referred to Drug Court‑CDTCC referral.  In light of the offender's past history, in my view the offender needs significant ongoing close supervision to assist him to continue cessation of the use of prohibited drugs, not just while in custody but when released, and I am of the belief that that program can provide significant assistance under close supervision to achieve that object and that the period then on parole, when he would still be subject to supervision, would be effective to assist him.

Is there any matter that anyone would like to suggest I have omitted or any egregious error?

FOKKES: No, your Honour.

HIS HONOUR: Madam Crown?

TRAJKOVSKI: No, your Honour.  But to assist, the timing between the offender's 18th birthday and 7 September 2019 is 46 days, approximately two months.

HIS HONOUR: I am sorry, Madam Crown, you were cutting out then.  I could not actually hear what you were saying.

TRAJKOVSKI: I apologise.  The calculation between the offender's 18th birthday and the date of the offence is approximately two months, but specifically 46 days.

HIS HONOUR: I do not think I referred to it as being two months or any particular days, did I?

TRAJKOVSKI: Just to assist.

HIS HONOUR: I know it is referred to somewhere in the Crown's submissions.  I simply referred to his age at the time of the offending I think.

When I get the reasons, Madam Crown, if it seems to be relevant to add that in, because it was obviously something that I considered, I will put it in to make it clear.  That completes that matter and we can go off line.  Thank you for your attendance.  Thank you, Mr Fokkes, for braving the outside world and the risk of COVID‑19, which seems to have sent everyone into hysteria.

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Decision last updated: 18 September 2020

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Kentwell v The Queen [2014] HCA 37
Yildiz v R [2020] NSWCCA 69