R v Mark Edward Kipling

[2010] NSWDC 97

CITATION:	R v Mark Edward KIPLING [2010] NSWDC 97
JUDGMENT DATE:	23 March 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 2 and a half years. Balance of term of 2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - armed robbery - use of knife - plea of guilty at earliest opportunity - history of drug and alcohol addiction - extensive criminal history - objective seriousness just below middle of the range - guideline judgment - delay in dealing with offence due to offender being in custody in Queensland - no appropriate penalty other than full-time custody
LEGISLATION CITED:	Crimes Act 1900 s 97(1)
TEXTS CITED:	R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina Mark Edward Kipling
FILE NUMBER(S):	2009/129899
SOLICITORS:	Ms Pawliw (NSW Office of the Director of Public Prosecutions) Mr Vertigan (Legal Aid Commission of NSW)

JUDGMENT

1. I am sentencing Mark Edward Kipling for the crime of armed robbery. That is a crime under S 97(1) of the Crimes Act 1900. It carries a maximum of twenty years imprisonment.

2. Briefly what happened is that on 16 October 2007 Mr Kipling, armed with a twelve centimetre long stainless steel serrated-edge knife, robbed a corner shop in Burwood. Mr Kipling presented the knife to the shop-keeper and calmly asked him for money and was supplied with money by the shop-keeper. Mr Kipling made his escape but was detained the following day at Fairfield when he was said to be attempting to undertake some shop-lifting.

3. In the meantime Mr Kipling went to Queensland. The police did not have a strong case against him for the armed robbery until a year or so later when they applied for and were granted an arrest warrant. In Queensland Mr Kipling had been adding to a long record in that State of criminal offences by committing other offences for which he was sentenced by both the Magistrates’ Court and the District Court in that State.

4. In sentencing a person it is important to take into account the personal circumstances of the offender as well as the seriousness of the crime which they have committed.

5. In this case Mr Kipling pleaded guilty to the charge once he was confronted with it and Ms Pawliw who appears as prosecutor acknowledges that it was a plea made at the earliest available opportunity which Mr Kipling had available to him.

6. Mr Vertigan who appears for Mr Kipling has tendered a psychological report by a Peter Champion dated 25 February 2010. It sets out a history for Mr Kipling which does not appear to be controversial and appears to be consistent with his criminal record. It is a history which includes alcohol and drug addiction over many years. It also notes that he received a leg injury in 1992 which was a serious injury. I accept that as well because Mr Vertigan asked his client to show me the scar and deformity in his leg.

7. His employment history was reasonably good until the later 1990s when the leg injury effectively made it very difficult for him to continue to secure ready jobs. In addition, however, he had become addicted to heroin at the time of his leg injury. That was partly because he became dependent upon morphine when he was in hospital for some three months and was discharged with Panadeine forte which did not manage his pain. It is only relatively recently that he has been prescribed effective pain relief for his leg condition.

8. Mr Champion estimates, which is consistent with Mr Kipling’s criminal record, that he has spent many years in custody, much of that time in Queensland and he has been addicted to or exposed to taking various illegal drugs. When he went into prison in 2007 he decided to cease all substance abuse including cigarettes and has been, he says, drug and alcohol free since then.

9. Mr Kipling has a daughter who is eight years old and presently residing with her maternal grandmother and I have a reference from that person in which she acknowledges Mr Kipling’s desire to be reunited with his daughter and his daughter’s attitude that she would very much like to spend more time and to be reunited with her father.

10. Mr Kipling acknowledged to Mr Champion that his behaviour had been wrong and that in particular the victim should not have been put through that experience. Mr Champion sensibly acknowledged that it would not be easy for Mr Kipling to overcome his addiction over the years and would need a post-release plan which would assist him. He recommended drug and alcohol programs both in custody and outside custody. In due course, subject to Mr Vertigan’s agreement, I will direct that a copy of Mr Champion’s report accompany Mr Kipling back into custody.

11. Since he has been in custody in New South Wales he has been cooperative and worked well, having an acknowledgement of that from the Engineering Group which conducts a business and employs prisoners at the Parklea Correctional Centre.

12. Because he was in prison in Queensland he was not arrested for this offence until after his release from custody in Queensland. The release occurred on 9 June 2009 and he was arrested on 23 June 2009. At the time of his release from prison in Queensland he had been in prison for just over a year, having been arrested on 6 April 2008.

13. His criminal record is, as I have said, extensive. Significantly it includes a previous offence for an armed robbery which occurred in 1996 and also a more recent offence of stealing from the person which occurred in 2005. This means that I have to put more weight, in sentencing Mr Kipling, on the need for a sentence which will deter him from inflicting members of the community with these sorts of crimes.

14. The objective seriousness of the offence I assess at just below the middle of the range. Both Mr Vertigan and Ms Pawliw agree with that assessment. Mr Kipling, as I have observed, is entitled to a discount on a sentence which he would otherwise receive because of his plea of guilty at the earliest available opportunity.

15. He is presently aged forty-four and Mr Vertigan argues he may well be at a stage in his life where he is giving serious consideration to getting his life back on track. This seems to be consistent with his successful attempts at remaining drug and alcohol free for the last three years.

16. Mr Vertigan also asked me to take into account that there had been some delay in Mr Kipling being dealt with for the crime that I am sentencing him for because of the time that he was in custody in Queensland. I propose to take that account in due course.

17. Both Ms Pawliw and Mr Vertigan drew my attention to the guideline judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The guideline applies to this offence and the factors are all relevant with the exception that Mr Kipling could not be regarded as a young offender with little criminal history. As I have said, his criminal history is not good and increases the need for specific deterrence. It is clearly a case which both legal representatives acknowledge where there is no other appropriate penalty than full-time custody.

18. Mr Vertigan draws my attention to the statistics produced by the New South Wales Judicial Commission which I have taken into account to the extent that they are relevant. He also argues that special circumstances would warrant an adjustment in the normal ratio between the non-parole period of a sentence which I would impose on Mr Kipling and the balance of the term. He points to the risk that his client may be becoming institutionalised which is a risk which is somewhat supported by Mr Champion’s report and of the need for him to settle into normal community life outside custody. He also, of course, needs supervision for his alcohol and drug addictions.

19. Taking into account these various factors, I would regard the commencement point for an overall sentence to be six years imprisonment. But because Mr Kipling has pleaded guilty at the earliest available opportunity and made the administration of justice more efficient and available to deal with other cases, I propose to discount that by twenty-five per cent so I would regard the appropriate overall penalty in this case to be fifty-four months or four and a half years imprisonment.

20. The normal non-parole period for such a head sentence would be in the region of forty months or three years and four months representing seventy-five per cent of the head sentence. But I propose to accept Mr Vertigan’s submissions that there are special circumstances for adjusting the ratio between the non-parole and the balance of the term. And I propose to fix a non-parole period of two and one half years. I propose to take into account to some extent the delay brought about by the fact that he was in custody in Queensland when he might have been charged with this offence and dealt with. And I propose to backdate that sentence by six months so that the current sentence which I am imposing now will commence on 23 December 2008.

21. Please stand up Mr Kipling. I sentence you to four and a half years in prison. The non-parole period will commence on 23 December 2008 and expire on 22 June 2011, that is two and a half years. The balance of the term will be two years commencing 23 June 2011 and expiring on 22 June 2013. Have a seat Mr Kipling for a moment.

HIS HONOUR: So I’ll ask both Mr Vertigan and Ms Pawliw whether there are any factual errors which I have made or any omissions. And also the mathematics whether my dates coincide with what I announced the sentence to be. So there’s two things. Take your time.

VERTIGAN: I’m terrible with dates but I’m grateful my friend is making very careful notes about it. Your Honour, there was one, I think. I think I may have misspoken in relation to the year in which my client decided to shed drug use and the like. Your Honour said 1997, I think it should have been 2007. That is when he went into custody in Queensland.

HIS HONOUR: Did I say - yes. It’s 2007 that he made the decision to remain drug and alcohol free.

VERTIGAN: Yes, your Honour.

HIS HONOUR: The transcript should reflect that I direct. Yes.

VERTIGAN: Your Honour, the other matter was this: your Honour referred to the steal from person conviction in the Queensland record. I did not refer to that when I was addressing your Honour as to like offences. I don’t cavil with that except for the record I did not refer to it as such, because as your Honour would be aware, steal from person offences can occur without violence being involved. It was on that basis I had addressed your Honour so less there be any question elsewhere but I can’t really see that arising, with respect your Honour.

HIS HONOUR: No, no, thank you.

PAWLIW: Your Honour, I only referred but just for the record being it is still a robbery offence, robbery type offence.

HIS HONOUR: And now what about the mathematics.

PAWLIW: I’ve calculated that it’s correct.

HIS HONOUR: Correct?

PAWLIW: Yes.

HIS HONOUR: And Ms Pawliw do you have any submissions so far as any factual errors or omissions?

PAWLIW: Not as far as I’m aware.

HIS HONOUR: Okay. It’s not a matter where I direct parole because it’s more than three years.

VERTIGAN: Yes, your Honour.

HIS HONOUR: So I think - subject to explaining in a moment to Mr Kipling - that completes the sentence doesn’t it. There’s no other orders that I need to make?

VERTIGAN: No, your Honour, but if your Honour would give me one moment,.

HIS HONOUR: Yes. It’s a question about Mr Champion’s report.

VERTIGAN: Yes.

PAWLIW: Your Honour that is subject to supervision whilst on parole. I think there are sterner conditions in any respect.

VERTIGAN: Your Honour there’s no difficulty with attaching the report to the warrant?

HIS HONOUR: All right I will provide exhibit 1 which is unmarked to my associate, ask her to photocopy it and that should accompany Mr Kipling back into custody. And just whilst you were talking to your client `Ms Pawliw you’ve mentioned any conditions of parole which I don’t think I fix. I don’t. But I would recommend that the Parole Board give consideration to the matters raised by Mr Champion and especially alcohol and drug counselling.

VERTIGAN: Your Honour, Mr Kipling asked one more indulgence. It would not, of course, be binding but would your Honour make a recommendation he serve the balance of his non-parole period at Grafton gaol. Were the authorities to follow that it would mean he would be closer to his family and better able to re-establish ties.

HIS HONOUR: I recommend that Mr Kipling be able to serve the balance of his non-parole period at Grafton Correctional Centre for the reasons which Mr Vertigan has just mentioned.

VERTIGAN: Thank you, your Honour.

HIS HONOUR: Okay, anything else.

VERTIGAN: No.

22. Mr Kipling you have received four and a half years. You would have received six years but you got twenty-five per cent off the six years because you pleaded guilty at the earliest time. Normally with a four and half year sentence you have to serve seventy-five per cent of that so you would have been in gaol for three years and four months but I have accepted what Mr Vertigan says and I have reduced it to two and a half years because you need more time on parole. And I have backdated your sentence by six months because of the delay: you were in custody in Queensland. This matter could have been processed and it might have got on sooner. So I am going to - I have - backdated it so it commenced on 23 December 08. Your non-parole period ends 22 June 2011. That is the first date on which you are eligible to be released on parole. The system down here, which you may or may not know, I do not order parole for a sentence. The Parole Authority assesses it and if they think that you should get parole then they will direct you to get parole. Earliest date 22 June next year then you remain under that sentence for the following two years from 23 June 2011 to 22 June 2013 on parole - provided you get parole - and your sentence expires finally on 22 June 2013.

HIS HONOUR: Do you understand all that?

OFFENDER: Yes, your Honour.

HIS HONOUR: Is there anything else?

VERTIGAN: No, your Honour.

PAWLIW: No, your Honour.

HIS HONOUR: All right, good luck Mr Kipling. Mr Kipling can be taken down.

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