R v Mitchell

[2020] NSWDC 606

District Court

New South Wales

Medium Neutral Citation:	R v Mitchell [2020] NSWDC 606
Hearing dates:	4 August 2020
Decision date:	04 August 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Term of imprisonment of 5 years 3 months with a non parole period of 3 years 3 months.
Catchwords:	CRIME - SENTENCE - robbery armed with an offensive weapon.
Legislation Cited:	Crimes Act 1900 (NSW), s97(1).
Cases Cited:	R v Henry (1999) 46 NSWLR 346.
Category:	Sentence
Parties:	Regina (Crown) Tyson Mitchell (The Offender)
Representation:	Mr Smith (ODPP Solicitor) Mr Hails (Solicitor for the offender)
File Number(s):	2019/280819

judgment

1. Tyson Mitchell you appear for sentence today in relation to one offence and that is robbery armed with an offensive weapon. 

2. This involves a contravention of s 97(1) of the Crimes Act. The maximum penalty for the offence is 20 years imprisonment. There is no standard non-parole period. Although there is no standard non-parole period, there is a relevant guideline judgment from the Court of Criminal Appeal, R v Henry (1999) 46 NSWLR 346.

3. The facts surrounding your offending conduct are contained in an agreed statement of facts. Slightly recast by me as to style, but not substance, they are as follows. 

4. In May 2019 Cuban Lu was 21 years old and he was studying medical science at the Western Sydney University Campus at Campbelltown. 

5. Late in the evening of 28 May 2019, more specifically at 11.30pm, Mr Lu was hungry. He left the campus and walked to the McDonalds Store on Queen Street. 

6. Having consumed his meal, Mr Lu left that shop at a little after 1am and began walking back to the campus.  Obviously, at that hour of the morning and in that location, he was vulnerable. 

7. As he walked past the Hog’s Breath café on Kellicar Road you approached him. 

8. You told him to "act normal".  You got very close to Mr Lu and patted him down.  In doing so, you assisted in your own ultimate discovery because, by patting him down, you transmitted your DNA to his jacket. 

9. After you had done that, you searched Mr Lu’s backpack. In the process you produced a 15 to 20 centimetre long knife.  That could only have been understood - and was understood - by Mr Lu as a threatening weapon.  It certainly had no innocent intent.

10. You then demanded money from him.  You took his android phone and a wallet which contained $100. You told him to hide in the bushes; and you walked off in the direction of the Campbelltown Hospital. 

11. As you walked off, you left behind a threat.  You said to Mr Lu that he was not to tell anybody or you would stab him. 

12. Mr Lu undoubtedly was afraid and he complied with your directions and hid in the bushes. 

13. After a little while, Mr Lu came out from that hiding place and started to walk to what he thought was the safety of the campus.  But you, for some reason, had not moved off.  You saw him from the other side of the road. You walked back to him and you told him that you were going to take him to an ATM.  He accompanied you to Macarthur Square.

14. But, in the circumstances, this was no walk of friends.  It was done on Mr Lu’s part out of fear.  No doubt he remembered that 15 to 20 centimetre knife.  Although he did not see the knife again in the course of that evening, there is no reason to think that he had forgotten it.  There is no reason to think that he thought that you had got rid of it.  At all times Mr Lu, after seeing that knife on the first occasion, would reasonably have thought that you had it and that you would be prepared to use it, if necessary, because you said you would. 

15. Eventually you and he went to the Suncorp ATM (which is near the entrance to Macarthur Square) and you ordered him to take money from that machine.  As this was happening, you verbally threatened him with the knife, although you did not produce it.  Mr Lu took a total of $550 out of the ATM and you took that money from him. 

16. Ultimately you left with what you had taken, namely the $550 from the ATM, the $100 cash which you had stolen earlier in the evening, his wallet (which contained a driver’s licence, two bankcards and other useful cards) and, importantly, his mobile phone. 

17. Whilst there maybe the occasional judicial officer who has no use for a mobile phone, most members of the community use their mobile phone not just to communicate messages. They often contain a great deal of personal or otherwise important information. 

18. You told Mr Lu not to call the police. You then ordered him to change the PIN on his phone to a number that you nominated. He complied with your direction. 

19. Mr Lu and you then separated. He walked back to the main road, where apparently there were road works going on in the early hours of the morning, and he approached the workers and they called the police. 

20. When he eventually met with the police, he told them, unsurprisingly, that he had been scared for his safety. 

21. When the police took and analysed Mr Lu's jacket and other items, your DNA was found. 

22. But that was not the only slip up that you made that night.  A little after 2am you used the phone, which you had stolen, to call a taxi - and you used your own name.  An hour later, you used the phone again to call another taxi - and in doing so provided your address.  So with this information, it was not difficult for the police to find you. 

23.  In terms of its objective seriousness for an offence of its kind, Mr Mitchell, it is slightly below a midrange offence. 

24. It is additionally aggravated because of your extensive criminal history. 

25. Mr Lu has provided the Court with a victim impact statement which you have had read to you.  It is clear (and it is unsurprising) that, as a consequence of what happened to him in the early hours of that morning, he is now a very socially isolated and withdrawn young man.  But the contents of the victim impact statement are what one might expect to read from a victim of such a crime and I, therefore, do not regard the impact on the victim as being an additional aggravating factor. 

26. You are now 28 years old. 

27. The circumstances of your upbringing have come to me principally through the psychologist’s report of Dr Klemmer.  You went into the witness box and told me that what she has written is true. 

28. It is clear that your upbringing has been a very sad one, Mr Mitchell, and certainly should be described as dysfunctional in the manner in which the High Court has directed sentencing judges to take into account. 

29. Your mother was a drug addict and a prostitute; and your father was also a drug addict.  When you were only four years of age you and your immediate siblings were taken away from those two people.  (I have read somewhere that your mother had other children as well, maybe an additional nine, to other unidentified partners).  Between the ages of 4 and 16 you went to approximately 40 foster carers, some of whom treated you very badly. 

30. Unsurprisingly, Mr Mitchell, with that background, your time at school was a very unhappy one; and you undoubtedly underwent trauma anxiety as a result of the physical and emotional abuse that some of the so called "carers" inflicted on you. 

31. You started using cannabis when you were only 11 years old.  You used it regularly until you were 19.  In more recent times you have been using ice. 

32. Because of what had happened to you as a child, you have been in gaol since you were 14 years of age; and between the years of 14 and 25 you have only been in the community for 18 months. 

33. It is a truly tragic statement. 

34. Between the ages of 25 and 26 you did have some employment and your life was under some sort of control, at least at a superficial level. However, when you were 27 you lost your job as a labourer because of your criminal history.  So, just when you were getting to your feet, you suffered yet another big set back and you returned to your long term companion in life of recent years, methylamphetamine. 

35. The psychologist’s report says that you have a deeply troubling list of psychological conditions.  As a child: attention deficit hyperactivity disorder.  As an adult: paranoia; bipolar 2 disorder; complex post-traumatic stress disorder; borderline personality disorder; substance medication induced psychotic disorder; cannabis use disorder in remission; stimulate use disorder; stimulate intoxication; and opioid use disorder. 

36.  Your criminal history, as I said, started as a juvenile.  That cannot be held against you.  But, as an adult, you have been committing increasingly serious crimes.  Even within a week of committing this offence against Mr Lu, you were committing more offences.  On 5 June 2019, you were arrested and subsequently sentenced for possessing a loaded firearm in a public place, possessing ammunition without holding a permit, possessing a shortened firearm, and custody of a knife. 

37. You have said in your evidence today, and you told the psychologist, that you carry a knife with you because you are becoming increasingly paranoid - believing that people are out to get you.  Mr Mitchell, the idea of someone suffering from paranoia, walking around the streets in possession with a knife, is a terrifying prospect. 

38. In recent years you seem to have rebuilt your relationship with your father, who himself seems to have rehabilitated.  You also have some connection with at least one, if not more, of your immediate brothers.

39. And you have commenced a de-facto mother and son relationship with a lady whom you met just on the street here in Campbelltown (Ms Hussein) who runs the funeral business here.  You have known her since the end of 2018 and she writes a very impressive reference: not covering up your problems, but informing me how she is actually working closely with you - and she was a complete stranger. You came to know her because you placed your bicycle against her shop window and asked her if it was all right to do that.  From that chance meeting, you have met possibly the person who may save your life.  Because where you are heading, Mr Mitchell, without some serious changes, may mean that you may not have a long life. 

40. You have expressed remorse for what you did to Mr Lu and I accept that that expression of remorse is genuine. 

41. But you have had no real intense professional assistance for the distressingly long list of psychological conditions.  I do not know where, or when, you will ever get such intense psychological/psychiatric counselling. 

42. Although you are genuinely remorseful for what you did, forming an assessment of your prospects of rehabilitation is not easy.  I could not in all honesty say that they are reasonable, Mr Mitchell.  The best I can say is that they are guarded - and are critically dependent on a degree of intervention that I am not confident you will receive, through no fault of your own. 

43. Whatever prospects you have, would be enhanced by a longer period on parole and I shall make a finding of special circumstances to vary the ratio of the head sentence that I will impose to the non-parole period. 

44. No sentence other than one of fulltime imprisonment is appropriate and the contrary was not submitted on your behalf by Mr Hails. 

45. The sentence that I shall impose will be backdated to the date of your arrest, 9 September 2019.  In coming to that conclusion, I have noted the quite proper and reasonable submission by the Crown that it could easily have been a later date.  I fixed that date as a deliberate act of leniency - and also because it was open to the police to have charged you earlier than when you were charged.  They knew everything about you.  Why the charges were broken up in such a way I do not know.  But the start date will be 9 September 2019. 

46. You pleaded guilty at an early opportunity and therefore there will be a discount of 25%. 

47. In fixing the sentence Mr Mitchell, general deterrence, (that is, fixing a sentence that will discourage others) is of reduced significance because of your mental health issues and your dysfunctional background.  However, specific deterrence, (that is, fixing a sentence that will deter you from repeat offending) is fully engaged.  And because of your long history of imprisonment, the need to protect the community is also increased - as is the need to encourage your rehabilitation. 

48. Balancing all of those matters, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 7 years.  Because of the plea of guilty and the discount of 25%, the term of imprisonment is 5 years and 3 months. 

49. I fix a non-parole period of 3 years and 3 months to date from 9 September 2019 and which will expire on 8 December 2022. 

50. I fix a balance of 2 years to date from 9 December 2022 and which will expire on 8 December 2024. 

51. I order that Mr Mitchell be assessed as to his suitability to participate in the compulsory drug treatment programme at Parklea.

52. I order that the report of Dr Sharon Klemmer of 24 July 2020 accompany the warrant. 

Decision last updated: 13 October 2020