R v Mokomoko

[2019] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:	R v Mokomoko [2019] NSWDC 258
Hearing dates:	18 April 2019; 7 June 2019
Date of orders:	07 June 2019
Decision date:	07 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is ordered to comply with a Community Correction Order for a period of 2 years with the following conditions: a) The offender must not commit any offence; b) The offender must appear before the court if called on to do so at any time during the term of the order; c) A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive a treatment as directed; d) An abstention condition requiring abstention from illicit drugs; e) A supervision condition requiring the offender to submit to supervision by a community corrections officer.
Catchwords:	SENTENCING — Penalties — Community Correction Order CRIME — Property offences — Robbery
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	The Queen v Pullen [2018] NSWCCA 264 Yardley v Betts (1979) 1 A Crim R 329
Category:	Sentence
Parties:	Regina (Crown) Damien Mokomoko
Representation:	Solicitors: Mr Amvransis (Crown) Ms Connell (Offender)
File Number(s):	2018/00020962

Judgment

INTRODUCTION

1. Damien Mokomoko appears before me for sentence in relation to one count of robbery contrary to the Crimes Act 1900 s 94 to which he has pleaded guilty to. The maximum penalty is 14 years imprisonment. The maximum penalty is a guidepost to which a judge should steer by but not aim for. He has spent 210 days in custody referable to this offence.

THE PLEA

2. The parties agree that the plea offered was at the earliest opportunity and that there should be a discount of 25% and I so discount the sentence that I am going to impose by 25%.

THE FACTS

3. There is an agreed facts document which is at tab 2 of exhibit 1. I do not intend to repeat it verbatim but rather summarise it.

4. At about 4am on Saturday 20 January 2018, the victim finished his shift at the Warringah Mall and walked to the bus stop located just outside the mall on Pittwater Road to catch a bus home. The victim was carrying his back pack which contained his towel, lunchbox and some other small items.

5. The victim noticed the offender. The offender turned towards the victim and started talking to him and there was a great deal of conversation where the offender asked the victim for $2. He then began to show him his hands and knuckles and asked him whether or not there was any difference. His right hand was swollen compared to the left. The offender said someone was trying to take my wallet and I hit him. The offender said: “Can you give me your phone so I can call my friend”.

6. The victim declined. The victim then got up and started walking slowly away from the offender to create some distance. He was concerned that the offender might try and rob him so he continued walking away from the offender.

7. The offender said to him: “If you’re going to take this bus, I’m going to smash you”.

8. The victim then started walking towards the shopping mall and was on the telephone calling security. The offender followed him and continued to follow him and there was a conversation between the two of them. Then things went quiet. Then the offender standing at the right of the victim swung a punch with his right closed fist towards the victim’s head. The victim managed to duck with the punch connecting by brushing the victim’s right ear.

9. With his left hand the offender took hold of the victim’s backpack which was slung over his right shoulder. This caused the victim to swing around so they were facing each other. The bag came loose from the victim’s shoulder and he held it up by the strap in his right hand for a moment. The victim let go of the bag and ran towards the entrance of the mall.

10. Security guards then attended and they managed to grab hold of the offender. The offender then told them where they could find the bag. The bag was located and the victim checked the contents which had been strewn across on the ground and confirmed that nothing was missing. The offender then broke free, police attended, they located the offender. He stated to police that he had no memory of an incident as he was intoxicated at the time.

OBJECTIVE SERIOUSNESS

11. The robbery was an isolated event over a short period of time where there was no loss. Although he swung a punch, it only brushed the ear of the victim. It was not planned, it was opportunistic.

12. The Crown in his helpful submissions submitted that it fell just below the mid-range of objective seriousness. I disagree. I form the view that it is in the low range of objective seriousness.

SUBJECTIVE FEATURES

13. I have read the report of Megan Godbee, a psychologist, dated 11 March 2019. In summary it indicates that the offender grew up in New Zealand. His parents separated when he was an infant. There were times when their basic financial needs were unmet. As a child he had an early exposure to alcohol and violence in the home. He was exposed to role models of substance abuse, violence and other offending. He first consumed alcohol with his family at 12 years of age and commenced drug use at 15 and it is likely that he meets the criteria for ADHD.

14. The psychologist went through his substance abuse and said this:

“He first consumed alcohol at the age of 12. At the age of 15 he was drinking a bottle of spirits and a case of beer each night and that he was using cannabis daily for a few months at the age of 15. It is noted that since he has been in custody he has not felt the need for drugs during his seven months in custody”.

AGGRAVATING FEATURES

15. The aggravating feature in this case is that the offender was on two probation orders at the time.

PROSPECTS OF REHABILITATION

16. On 24 September 2018, the Crimes (Sentencing Procedure) Act 1999 was amended. It was amended to improve the availability and nature of community based sentencing options to protect community safety by reducing offending, reduce the number of offenders receiving short prison sentences less than two years and to get a greater number of appropriate offenders on community based supervised sentences with conditions tailored to address their offending behaviour with criminogenic needs.

17. The forefront of the amendments is to protect the community. What was legislated by the parliament reflects what King CJ said in Yardley v Betts (1979) 1 A Crim R 329 at 333:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces of assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change and the approach of judges to their task must be influenced by contemporary conditions and attitude but public concern about crime, however understandable and soundly based must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations.”

18. This offender was 18 years at the time, he is now 20 years of age. He is a youthful offender.

19. I have taken into account what the Court of Criminal Appeal said in the case of The Queen v Pullen [2018] NSWCCA 264 and in particular I have taken into account [63], [84]-[89] as to the new scheme and what is meant by community safety. I have also taken into account the Attorney General’s reading speech which is contained at [88] of that decision.

20. In my view, in taking all of the matters into account, this matter should be dealt with by way of a community correction order and I will have the offender assessed for such suitability. Subject to the suitability of that assessment, the offender will be placed on a community correction order for two years and he is to perform 150 hours of community work and there will be the two standard conditions that he not commit any offence and he must appear before Court if called upon and there will be the additional conditions of supervision, rehabilitation or treatment and abstention from illicit drugs.

21. I order a sentence assessment report.

7 JUNE 2019

22. I have a Sentencing Assessment Report before me dated 14 May 2019 which assesses the offender as unsuitable to undertake community service work.

23. I make the following orders:

1. The offender is convicted.

2. Pursuant to section 8(1) of the Crimes (Sentence Procedure) Act 1999, you are ordered to comply with a community correction order.

3. The duration of the order is 2 years, commencing 7 June 2019.

4. The following conditions of the order apply:

1. You must not commit any offence;

2. You must appear before the court if called on to do so at any time during the term of the order;

3. A rehabilitation or treatment condition requiring the offender to participate in a rehabilitation program or to receive a treatment as directed;

4. An abstention condition requiring abstention from illicit drugs;

5. A supervision condition requiring the offender to submit to supervision by a community corrections officer.

5. The offender is to report to the City Community Corrections office within 7 days of release.

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Decision last updated: 17 June 2019