R v Martin

[2016] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:	R v Martin [2016] NSWDC 300
Hearing dates:	24 March 2016
Date of orders:	24 March 2016
Decision date:	24 March 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment. Set a non-parole period of 2½ years and a head sentence of 5 years
Catchwords:	CRIMINAL LAW- Sentence - Robbery in company
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R
Category:	Sentence
Parties:	The Crown Daniel Martin
Representation:	Counsel: Mr P Johnston – Offender   Solicitors: Director of Public Prosecutions Legal Aid Commission
File Number(s):	2015/40085

Judgment

1. HIS HONOUR: The offender, Daniel Martin, has a reasonably lengthy criminal history which began when he was about 12 years of age. He was brought up with poor role models. Violence was a feature of his childhood and early behavioural issues were likely the result. After a violent interaction between him and his stepfather he left home at the age of 16 and has largely led a disordered and unstable lifestyle since then. He went to gaol for offences involving drugs in 2012 and was released from custody in August 2013. He committed the offence which I must now sentence him in September 2014.    While living in the community, following his release from custody, he fell back into a fairly well established pattern of living day to day, staying in cheap hotel rooms and on friends’ couches. His Centrelink benefits would not cover his expenses and so he and a co-offender, yet to be sentenced, committed the offence I am about to describe.

2. A co-offender sold a mobile phone to a man by the name of Uzman Umer. That transaction was above board. Mr Umer paid for the phone and got it. A little while later however Mr Umer received a call from the co-offender offering to sell him two further mobile phones. A sale price of $600 each was agreed and a location where the transaction would take place was also agreed. It is clearly apparent that there was no intention to supply these phones, what the co-offender and Mr Martin, had planned was that the victim would turn up at the location with at least $1,200 in cash and they were going to rob him of it. And that is what happened.

3. Mr Umer was with a friend of his when they reached the location, there was some interaction between the four of them, but without prior warning Mr Umer’s car door was opened, he was pulled out of the vehicle and the offender and his co-offender immediately started punching him with closed fists to his face. One of them, and it does not matter who, shouted, “Where is the money?” This assault lasted about ten to 15 seconds with about six or seven punches connecting with Mr Umer’s face. Presumably the violence would have continued were it not for a fortuitous circumstance. A motor vehicle turned into the street where all this was happening, one of the offenders yelled out “run” and they headed off towards North Strathfield Railway Station. They did not actually get the money, what they did steal however was a mobile phone and the keys to the motor vehicle.

4. The offender was identified as having been involved through fingerprints. It was not until some time later, 25 February 2015, that he was arrested. He pleaded guilty at an early stage to this offence for robbery in company so the sentence I impose on him will be 25% less than it would otherwise have been.

5. Notwithstanding Mr Johnson’s attempts to minimise the significance and severity of this offence I regard it as a serious breach of the criminal law. The victim was set upon without warning, he was not given any chance to comply with any demands made by the offenders, who were in company with each other, the offence was clearly pre-meditated and planned and although only a small amount of property was taken, a mobile phone and some car keys, it is to be noted that the offenders were intent on getting more and probably taking whatever they could.

6. Of course this is an offence of robbery in company and in assessing the objective gravity of that offence I have got to be careful because there was no demand of money by the offenders. The element which converts a stealing to a robbery is the force used and so in this particular case the violence inflicted upon the victim was an element of the offence. I must be careful not to double count in regarding violence therefore as an aggravating circumstance of this crime.

7. I mentioned before that the offender has a lengthy criminal history. These were largely street type offences with short custodial sentences being imposed. There was quite a serious matter committed by the offender when he was a child which led to him serving a significant period of imprisonment. There were no offences of robbery and as Mr Johnson conceded the sentence that I must impose on Mr Martin for this offence is probably the longest sentence that he will serve. Somewhat surprisingly the offender, although an occasional drug user, was not committing this offence to fund his drug use instead, as I mentioned earlier, he was intending to pay living expenses which had arisen out of his somewhat chaotic and unstable lifestyle.

8. There are a couple of features of the criminal history which are worthy of note. One is when it started and the second is that the frequency of offending has somewhat dropped off as of recent times. That is perhaps consistent with the offender growing older. It is notorious that many people of around Mr Martin’s age reach their early thirties and begin to realise the futility of the lifestyle they have led. When assessing Mr Martin’s prospects of rehabilitation I certainly cannot say they are good but I do note that he seems to be offending less and less frequently as he grows older.

9. I mentioned before the offender’s poor upbringing. He has three siblings on his mother’s side and 11 siblings on his father’s side. As a child he had negligible contact with his father, his mother and stepfather would smoke cannabis in his presence and they responded to his misbehaviour by violence, with his punishments escalating as the years went by. Being grounded developed into smacking, whipping and then ultimately punching. The interaction which led to him leaving home occurred when his stepfather was attempting to discipline him and, as was recorded in the psychological report, Mr Martin reacted by “putting him through the wall”.

10. Although he has developed a relationship with his father he, that is Mr Martin’s father, is currently serving a significant custodial sentence. Mr Martin has had a troubled experience of education, being expelled due to misbehaviour on occasions, his schooling in the community interrupted by the sentence for the serious matter committed when he was a child and his employment history is as might be expected from someone living the lifestyle to which I have referred.

11. In between offending by participating in this robbery in company and being arrested the offender moved to Queensland where he engaged with the Boystown Indigenous Vocational Training and Education Centre program. He was obtaining vocational skills and he was doing well. That is a matter which does tend to suggest better prospects of rehabilitation than would otherwise be the case. But no one could disagree with the suggestion that if Mr Martin is to remain offence-free in the future he will need considerable assistance given the life he has led thus far.

12. Of course the R vHenry (1999) 46 NSWLR 346; (1999) 106 A Crim R guideline is, with some modifications, applicable here. Although the decision in Henry was at first confined to the offence of armed robbery, the Court of Criminal Appeal came to regard it as appropriate with modification to the offence of robbery in company. In this regard I should note that Mr Martin’s plea of guilty was early rather than a late plea of guilty postulated in Henry, but that he was certainly not a young offender with a limited criminal history. I have taken the guideline into account in assessing the appropriate sentences as I am required to do.

13. The offender is sentenced to imprisonment. I set a non-parole period of two and a half years to date from 25 February 2015, it will expire on 24 August 2017, on which day the offender is eligible to be released to parole. I set a head sentence of five years.

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Decision last updated: 14 November 2016