R v Nasrallah

[2022] NSWDC 54

District Court

New South Wales

Medium Neutral Citation:

R v Nasrallah [2022] NSWDC 54

Hearing dates:

11 February 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [109].

Catchwords:

Aggravated (in company) assault with intent to rob and inflict actual bodily harm – joint criminal enterprise – parity – application of Bugmy principles.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Azzi v R [2008] NSWCCA 169

Barbieri v R [2016] NSWCCA 295

BP v R [2010] NSWCCA 159

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

DPP (Cth) v Saadieh [2021] NSWSC 196

Filippou v The Queen [2015] HCA 22

Georgopolous v R [2010] NSWCCA 246

Hoskins v R [2021] NSWCCA 169

Lloyd v R [2022] NSWCCA 18

Moore v R [2005] NSWCCA 407

R v Boroxam (Unreported, 28 September 1995, NSWCCA)

R v Henry & Ors (1996) 46 NSWLR 346

R v Kilic [2016] HCA 48

R v Malupo [2021] NSWDC 586

R v Sotheren [2001] NSWCCA 425

Tammer-Spence v R [2013] NSWCCA 297

The Queen v De Simoni (1981) 147 CLR 383

Williams v R [2022] NSWCCA 15

WM v R [2020] NSWCCA 96

Category:

Sentence

Parties:

Director of Public Prosecution (Crown)
Hussein Nasrallah (Offender)

Representation:

Counsel:
L. Hawke (Crown)
D. Grippi (Offender)

File Number(s):

2020/318306

Publication restriction:

Nil.

REMARKS ON SENTENCE

1. The offender is to be sentenced for an offence of aggravated (in company) assault with intent to rob and inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900. The offence occurred on 7 November 2020 and the co-offender was Siosiua Malupo, the brother-in-law of the offender. The offender was arrested on 7 November 2020 and has been in custody since that date.

2. The maximum penalty prescribed for an offence pursuant to s 95(1) of the Crimes Act 1900 is 20 years imprisonment. There is no standard non parole period.

3. At the time of the offending, the offender was subject to a Community Correction Order of 18 months commencing on 10 March 2020 for an offence of larceny, and also subject to an Intensive Correction Order for a period of 9 months, commencing on 14 April 2020 for an offence pursuant to s 114 of the Crimes Act 1900. As a result of the index offence, the Intensive Correction Order was vacated and the offender served the balance of that order in custody from 7 November 2020 until 13 January 2021.

4. The co-offender, Malupo, was sentenced by me on 29 October 2021 for the same offence, namely, aggravated (in company) assault with intent to rob and recklessly inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900. The co-offender had also asked that a further matter be taken into account on a Form 1, namely, an offence of resist arrest pursuant to s 58 of the Crimes Act, for which the maximum penalty was five years imprisonment. Having found special circumstances, and taking into account a 25% utilitarian discount on sentence for his plea of guilty, I sentenced the co-offender to a term of imprisonment of three years and six months with a non-parole period of two years to date from 10 February 2021. The co-offender was also called up for breach of four Community Correction Orders, which were revoked, and an aggregate sentence was imposed for a fixed term of six months to commence on 10 November 2020, which had expired on 9 May 2021.

The sentence hearing

5. The sentence hearing took place on 11 February 2022. The Crown Sentence Summary became Exhibit A. It included agreed facts on sentence, which may be summarised as follows.

6. The offender was born on 2 August 1997 and was 23 years old at the time of the offence. Malupo, the co-offender, was born on 4 September 1997 and was also 23 years of age.

7. The victim was born on 1 December 1985 and was 34 years at the time of the offence. At about 12:15am on 7 November 2020, the victim walked to a Commonwealth Bank ATM on Haldon Street, Lakemba, and withdrew $190 from his personal account. He then walked to Lakemba train station intending to visit a friend in Bankstown. He walked down to Platform 2 and sat on a bench to wait for the train.

8. At about 12:18am, the offender drove to Lakemba train station and parked on the northern side of the station. The co-offender got out of the car and covered his face with a black face mask. The offender also got out of the car, and at the time he was wearing disposable gloves and was armed with a steel claw hammer. The co-offender and offender walked onto the train platform and towards the victim. They stood directly in front of the victim and the offender said, “Brother, where’s the money?”

The offender said, “How much you have with you”. Both men were aggressive and demanding and the victim felt scared and told them he had no money.

9. The offender then used the steel hammer to hit the victim to the left side of his head, just above the ear, causing a laceration. The victim felt immediate pain and dizziness and yelled, “Help, help they want to kill me.” He then ran along the platform, up the stairs and onto the street. The co-offender and offender chased the victim out of the station and along Haldon Street. The victim fell over and scratched his hand. He then ran into a restaurant on Haldon Street and asked for help.

10. The offender and co-offender then got back into the co-offender’s car and drove north along Haldon Street. They were seen by the victim and the restaurant owner called 000. The victim had a large amount of blood coming from the wound on his head. He was conveyed to Canterbury Hospital where he was treated for a deep one centimetre cut to the right side of his head, causing bruising and pain. The cut was required to be glued together.

11. CCTV footage from Lakemba Railway Station captured the majority of the incident. Approximately eight minutes after the offence, at 12:28am, the offender and co-offender were captured on CCTV footage arriving back at the co-offender’s unit complex in the same vehicle.

12. On the morning of 7 November 2020, police arrested the offender. Before his arrest he was seated in the driver’s seat of the same car. When police searched the car, they found a steel claw hammer in the compartment of the driver’s side door and another steel claw hammer on the floor of the passenger side footwell. They also found items of clothing matching those the offender was wearing on the night of the incident.

13. The offender was taken to Campbelltown Police Station where he was offered the opportunity to participate in an ERISP interview, which he accepted. During the interview, he made admissions to assaulting the victim with a claw hammer and being under the influence of drugs at the time of the offending.

14. Exhibit A also included the offender’s criminal antecedents. In 2018, he was convicted for offences of custody of knife in public place – first offence, shoplifting, and of an offence of arm with intent to commit indictable offence, for which he was sentenced by way of a s 9 bond for two years to be of good behaviour. In 2019, he was called up for breach of that bond and sentenced by way of a Conditional Release Order for 12 months, commencing on 24 July 2019. On 10 March 2020, he was called up for breach of the Conditional Release Order and sentenced to a Community Correction Order of 18 months, commencing on 10 March 2020. On the same date, he was convicted of offences of larceny and sentenced to a Community Correction Order for 18 months, commencing 10 March 2020, an offence of use offensive weapon to prevent lawful detention for which, on appeal, an Intensive Correction Order for 9 months was imposed commencing on 14 April 2020, and an offence pursuant to s 114 of the Crimes Act, having previous convictions for a similar offence, for which an Intensive Correction Order was ultimately imposed for 9 months commencing on 14 April 2020.

15. In 2021, the offender was convicted of an offence of destroy or damage property, for which he was fined.

16. Other offences included possess or use a prohibited weapon without permit (2016), for which he was fined, traffic offences in 2018 for which he received fines and driving whilst licence cancelled in 2019, for which a Conditional Release Order was imposed for 12 months commencing on 24 July 2019.

17. Following the index offence, the offender was sentenced for offences that occurred in 2019 of dishonestly obtain financial advantage by deception (attempt), dispose property – theft – serious indictable offence, larceny, dishonestly obtain financial advantage by deception, furnish false information/statement to licensee, obtain or attempt – prohibited drug by false representation and possess forged prescription.

18. In 2020, he was also convicted of two offences of larceny and in December 2021, he was convicted of an offence of break and enter house with intent to commit a serious indictable offence, namely, larceny, for which a Community Correction Order was imposed for two years commencing on 3 December 2021.

19. Exhibit A also included the offender’s custodial record, which showed no less than 10 infractions, two of which in April and June of 2021 concerned possessing prohibited drugs.

20. Exhibit B was a Sentencing Assessment Report (‘SAR’) dated 26 October 2021 under the hand of Ms S Fuller. The author noted that the offender benefits from the support of his wife and mother, and that he intends to reside with his mother when discharged from custody. He reported a history of unemployment, advising that he had not held work for more than a year since leaving high school in Year 9. At the time of the offence, he had been unemployed for approximately six months.

21. The author noted a history of antisocial behaviour in which his offending occurred in the context of long-term polysubstance abuse. This offence was described as “an escalation, as it is the first use of serious violence”.

22. The offender reported that when he lost his employment, he declined to seek financial support from his family or Centrelink, due to a feeling of shame. He used drugs to cope with his negative feelings and at the time of the offence was anxious about his living situation due to unpaid rent. He acknowledged his offending was financially motivated but claimed that he could not recall the offending due to his drug intoxication. He asserted that he no longer associates with drug users or antisocial peers.

23. The author recorded the offender had a history of polysubstance abuse, which commenced in early adolescence. He had become addicted to prescription medication following a car accident in 2017. Prior to the offending, he described daily abuse of ice, heroin and Xanax for two weeks. He began receiving buprenorphine whilst in custody in September 2021 and expressed a desire to continue this treatment.

24. The offender acknowledged that he had an issue with aggression and violence, which was worsened by the abuse of prohibited drugs or feelings of anxiety. Notwithstanding that, he expressed that he was not a violent person and identified relevant intervention that he wants to engage in to avoid further violent offending.

25. Under the heading “Mental Health”, the offender reported diagnoses of anxiety, depression, Attention Deficit Disorder and Post Traumatic Stress Disorder, however these diagnoses could not be verified. Corrective Services records confirmed that he had previously been prescribed anti-depressants, anti-anxiety drugs and an opioid to manage pain from a back injury.

26. Under the heading “Insight into Impact of Offending” the offender expressed remorse for his behaviour and identified the physical and psychological impact of his offending on the victim.

27. Whilst in custody, the offender had engaged in two EQUIPS in-cell activities, due to COVID-19 lockdowns. He expressed a desire to complete EQUIPS Aggression in custody and wanted to engage with a counsellor to manage his emotions and substance abuse. The author recorded that he impressed as “more motivated to address his violent behaviour than substance use, however, was willing to engage with an Alcohol and Other Drug service.”

28. The offender was assessed as a medium-high risk of reoffending and his supervision plan would include referral to EQUIPS Aggression to help him identify his triggers for anger and manage his emotions to avoid violent behaviour, as well as referral to a GP to obtain a Mental Health Care Plan.

The offender’s evidence

29. The offender relied on a bundle of documents which became Exhibit 1. It included a report from Mr A Wong, psychologist, dated 26 October 2021. Mr Wong assessed the offender via Audio Visual Link on 18 October 2021 for one hour. He was qualified with the agreed facts on sentence together with a number of documents relating to the offender’s medical history.

30. Mr Wong recorded that the offender was exposed to severe domestic violence by his father throughout his childhood until the age of 12. When his mother attempted to defend him, she was severely beaten. His father also severely beat him in the presence of his friends, which he found humiliating. The offender described himself as an “oppositional child” who was often angry and aggressive towards his father in retaliation to the beatings.

31. The offender reported a dysfunctional relationship between his parents, who were divorced three times. At the age of 12, he and his mother were evicted from the family home and lived in refuges and temporary housing until he was 16 when his mother remarried. At the age of 18, his step-father evicted him and between the age of 18 and 21, he was homeless, reporting that he lived in several refuges in Western Sydney, in hotels, in his car and at times in parks. The author reported that in around 2018, he lived with his father in a Department of Housing property.

32. The offender reported poor performance throughout primary and high school, with a number of suspensions and being expelled in Year 6 for aggression. The author reported that he was educated up to Year 10, following which he worked as an apprentice plumber and at various construction and carpentry related jobs. He was also working towards a Certificate IV in Carpentry via TAFE until he sustained a serious car accident in November 2017, following which he was unable to work. The COVID-19 restrictions had further made it difficult for the offender to return to his carpentry and construction jobs. He resorted to stealing money and food to sustain himself.

33. The author reported that he started a relationship with the woman who became his wife in 2018. They had no children and he always concealed his drug and alcohol abuse from her.

34. Mr Wong also recorded a history that the offender began using cannabis at the age of 13 years and from age 14 he smoked cannabis daily. Between age 15 to 16, the offender reported use of ecstasy and at the age of 18 years he used cocaine recreationally.

35. Following a car accident in November 2017, the offender reported that he was prescribed with tramadol (opioid pain relief medication) and Valium, to which he became quickly addicted. His GP records from 2017 to 2020 indicate an ongoing prescription of these two medications, along with Endep (an anti-depressant) and other pain relief medications (e.g. Panadeine Forte). Also after the accident, the offender reported that he began smoking heroin whilst abusing prescription medication. He described the polysubstance abuse as
    “taking his pain away, physically and mentally”.

36. Mr Wong noted that Justice Health medical records identified that the offender also used GHB on a daily basis and drank a bottle of spirits every two to three days. He had commenced buprenorphine treatment whilst in jail and stated he was “really good…. I don’t have to touch any drug now”.

37. In terms of his mental health, the offender reported that he was diagnosed with ADHD in Year 5 by his GP, for which he was medicated with stimulant medications. At the age of 18, he was diagnosed by his GP as suffering ADHD, anxiety, depression, insomnia and PTSD. His GP records confirm the diagnosis of insomnia on 14 October 2015, and depression and anxiety related insomnia on 31 October 2017. There was no confirmation of the diagnosis of PTSD, however the offender reported this was related to his trauma caused by his father’s beatings and abuse throughout his childhood.

38. Mr Wong described the offender’s criminal offending as largely involving theft, break and enters, shoplifting, possession of weapons and dishonesty related offences. There were also some compliance-related offences, namely, traffic offences and failure to appear in accordance with bail conditions. In relation to the larceny and damage property offences, the offender reported that he needed money to survive.

39. In relation to the index offence, the offender reported that on the day of the offence his landlord advised that he was behind on his rent. To cope with the stress, the offender stated he had used a large and unknown amount of Xanax and heroin before advising his wife that he would obtain some money to pay for rent. Mr Wong noted that the offender displayed a strong sense of guilt for the offences and had spent time reflecting on his past life during his present incarceration.

40. Under the heading “Clinical Opinion”, Mr Wong stated that the offender described a disruptive and violent upbringing where violence and aggressive behaviours were normalised in the family environment. He had been diagnosed with ADHD in Year 5 and had a poor record of school attendance with frequent suspensions for aggression. Mr Wong noted that he had been diagnosed by a General Practitioner with Post-Traumatic Stress Disorder at the age of 18 and that his ongoing polysubstance abuse appeared to have managed his trauma symptoms but drove his offending pattern of behaviour. He noted that since the motor vehicle accident, there were records of the offender suffering memory difficulties.

41. Mr Wong opined that on the available information based on the offender’s self-report and observations of his behaviour, the offender presented with symptoms consistent with Post-Traumatic Stress Disorder, Severe Opioid Use Disorder and Severe Cannabis Use Disorder. He recommended a treatment plan including a brain scan to investigate any traumatic brain injury, a thorough mental health and neurocognitive assessment and individual and group therapy targeting his drug use and emotional responses.

42. Exhibit 1 also included medical records, including an emergency discharge referral after he suffered a crushing injury to his foot on 4 July 2018, a report from Dr J Bertucen, Psychiatrist, providing a diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder following a motor vehicle accident on 1 November 2017, a report from Dr A Portius dated 9 October 2018 confirming that following the same motor vehicle accident the offender suffered chronic cervical, thoracic, lumbar, shoulder and knee pain, which was musculoligamentous in origin, and clinical notes from his GP surgery recording prescriptions of various pain killing anti-depressant and anti-anxiety medications.

43. Exhibit 1 also included a letter from his personal injury lawyers setting out the areas of injury claimed by him in his personal injuries claim.

44. Exhibit 1 also included a letter from the offender’s wife. She confirmed that in 2017 he sustained serious injuries to his neck, back, knees and shoulders, following which he started taking pain killers. The offender had made several efforts to detox at home and had sought professional help on two occasions. He had expressed interest while in custody in engaging in detox programs.

45. The offender’s wife confirmed that he had had no visits whilst in gaol due to the COVID-19 pandemic. He had also been moved to six different gaols. She described the offender as being very upset about assaulting a man with a hammer, and stated she had never known him to be a person who was ever violent. She believed his addiction to drugs and his constant need to fuel that addiction had contributed to his offending.

29. The offender also relied on an affidavit sworn by his solicitor, Ms S. Black, which confirmed that since being in custody the offender had been moved to six different correctional facilities. She annexed to her affidavit a schedule of dates in which he had been locked in in those various facilities, which demonstrated the onerous nature of his incarceration.

The Crown’s submissions

47. The Crown relied on a written outline of submissions which set out well-established sentencing principles. The Crown referred to the guideline judgment in R v Henry & Ors (1996) 46 NSWLR 346, which specifically relates to an offence of armed robbery but has many characteristics common to offences contrary to s 95. In Azzi v R [2008] NSWCCA 169 at [37], the court accepted that the guideline judgment in Henry is a “relevant reference point”, however in the circumstances of this case the guideline judgment could be treated with slightly less caution due to the involvement of the offender’s weapon.

48. The Crown submitted that it was not in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 for the court to take into account that the offence was committed in company and that the offender was armed with an offensive weapon, as the specific offences containing these elements (namely s 97(1)) also carries a maximum penalty of 20 years imprisonment, referring to Moore v R [2005] NSWCCA 407 at [33].

49. The Crown referred to the seven factors identified in Henry. Here, the offender was young, namely 23 years of age, however he had prior convictions and had previously been sentenced to Community Correction Orders, Conditional Release Orders, section 9 bonds and Intensive Correction Orders. His criminal history was longer than that of the co-offender. The offender was also carrying a claw hammer, which he used to hit the victim in the head.

50. The Crown submitted that there was some planning involved in this offence having regard to the following:

“a.   The offender and co-offender changed clothes in between the time they left the offender’s apartment and when they go to the train station;

b.   The co-offender was wearing a hood or a face mask to shield his identity;

c.   The victim had only just attended a nearby ATM to withdraw cash before walking to the train station where the offence took place;

d.   The offender and co-offender followed the victim onto a train platform where there were no other people; and

e.   The offender grabbed a claw hammer from his car before walking onto the train platform where the victim was.”

51. The Crown submitted there was an available inference to be drawn from the agreed facts that the offender and co-offender saw the victim withdrawing money from the ATM and decided to follow him onto the train platform and rob him. The Crown submitted further that the offender and co-offender were out for the purpose of committing an offence.

52. The Crown submitted that the nature of the actual violence may be taken into account when assessing the seriousness of the offence, relying on Georgopolous v R [2010] NSWCCA 246 at [28]. The assault here consisted of the offender hitting the victim in the head with a steel claw hammer. However, the victim described both the offender and co-offender as being aggressive and demanding. Further, when the victim ran away, they pursued him.

53. The Crown referred to my finding in the remarks on sentence of the co-offender that the victim here was “somewhat vulnerable, in the sense that he was on a train platform late at night when there were no other people around.” The victim was able to escape the offenders before they were able to take anything from him.

54. The Crown submitted that unlike Henry, this was a matter where there was an early plea entered in the Local Court. However, there was also a strong Crown case based on the CCTV evidence.

55. The Crown submitted that consistent with my remarks in R v Malupo [2021] NSWDC 586, I would find the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 95(1) of the Crimes Act.

56. The Crown submitted the following were aggravating factors, pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (‘CSPA’).

Section 21A(2)(c) – actual or threatened use of a weapon

57. The Crown submitted that consistent with my remarks in Malupo, this factor should be taken into account in an assessment of the objective seriousness, otherwise, it could be taken into account as an aggravating factor.

Section 21A(2)(d) – criminal record

58. The Crown submitted the offender’s criminal history would disentitle him to leniency.

Section 21A(2)(e) – in company

59. The Crown submitted the offence was clearly committed in company and the plea was entered on the basis of a joint criminal enterprise with the co-offender. In Malupo, I had taken this into account as an aggravating factor.

Section 21A(2)(j) – conditional liberty

60. The offence was committed while the offender was on conditional liberty, being a Community Correction Order for 18 months and an Intensive Correction Order for 9 months.

61. The Crown submitted the following mitigating factors should be taken into account, namely, s 21A(3)(k) – plea of guilty by the offender, which entitled the offender to a statutory discount of 25%.

62. On the issue of the application of the principle of parity with the co-offender, the Crown submitted the principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, relying on WM v R [2020] NSWCCA 96 at [60]-[61]. Here, the offenders had equal culpability, having pleaded guilty on the basis of a joint criminal enterprise. The co-offender had an additional offence taken into account on a Form 1, which resulted in some accumulation on sentence. The offender here, however, had a lengthier criminal history than the co-offender.

63. The Crown submitted that there was nothing in the offender’s subjective material which would lead the court to conclude that the sentences should differ to any substantial degree. Here, principles of parity should be applied so that the offenders are sentenced in a like manner.

64. The Crown submitted that the s 5 threshold has been crossed. The offender had spent 462 days in custody since 7 November 2020.

65. Whilst there was no Victim Impact Statement tendered in the Crown case, the Crown submitted that the devastating psychological damage that can result from the trauma of being a victim of a robbery offence is a matter that should be given due weight in the sentencing process, referring to R v Boroxam (Unreported, 28 September 1995, NSWCCA) at [3]; R v Sotheren [2001] NSWCCA 425 at [44]-[46].

66. In her oral submissions, the Crown addressed the submission made on behalf of the offender in his written submissions that the objective seriousness of the offending fell just below the mid-range. This was not the finding I had made in sentencing the co-offender.

67. The Crown referred to the report of Mr Wong which was based on the self-reporting of the offender. It was submitted there was no definitive link between the mental health of the offender and the offending itself. Further, there was no evidence concerning any traumatic brain injury having been suffered by the offender in the motor vehicle accident in November 2017.

68. The Crown submitted that the offender’s childhood was similar to that of the co-offender. Both had been exposed to regular violence and abuse from a young age. Whilst the offender’s childhood may be characterised as having been “tough”, it was not one of “profound deprivation” so as to attract the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

69. The Crown agreed that special circumstances could be found here, pursuant to s 44 of the CSPA, so as to vary the statutory ratio between head sentence and non-parole period. However, the offender’s subjective case here was no more compelling than that of the co-offender so as to cause a greater variation in the statutory ratio.

70. The Crown acknowledged that the COVID-19 pandemic created more onerous conditions for custodial sentences. With respect to parity, it was submitted that given the joint criminal enterprise, the offender had held the weapon and inflicted the injury and therefore should be subjected to the same sentence as the co-offender. The offender’s prospects of rehabilitation could only be regarded as guarded and he had failed to rehabilitate when granted leniency on previous occasions. It was further submitted that the custodial infractions referred to above also impacted on the assessment of the offender’s prospects of rehabilitation.

71. Finally, the Crown submitted that the court had a discretion to not fully backdate the sentence to 7 November 2020. The offender’s Intensive Correction Order had been revoked and he had been serving a sentence for the previous offence until 13 January 2021. The Crown acknowledged this was a matter of discretion for the sentencing Judge.

The offender’s submissions

72. Counsel for the offender also relied on a detailed written outline of submissions. Counsel referred to general sentencing principles including those set out in Filippou v The Queen [2015] HCA 22. It was submitted the following factors are relevant to the assessment of the objective seriousness of the offending:

“a.   The degree of violence inflicted on the victim. In this case, he sustained a one centimetre laceration on his left temple area. It was repaired by using skin glue;

b.   The duration of the offending, which in this instance was short;

c.   The use of weapon, which in this case was a hammer;

d.   The value of items which were intended to be taken, which in this case was several hundred dollars;

e.   The fact that the offending was spontaneous.”

73. Counsel referred to the determination as to where the facts of the particular offence and the offender lie on a spectrum, extending from the least serious instances of the offence to the worst category, referring to R v Kilic [2016] HCA 48 at [19]. It was submitted that the objective seriousness of the offending here fell just below the middle range of objective seriousness.

74. Counsel referred to the following aggravating circumstances pursuant to s 21A(2) of the CSPA:

1. 21A(2)(c) – use of weapon – the offender does not concede that the offence is aggravated by the use of a weapon, being a hammer.

2. 21A(2)(e) – the offender was in company. This was conceded.

3. 21A(2)(j) – the offender was on conditional liberty at the time of the offending conduct. This was also conceded.

75. The offender submitted that in assessing his moral culpability, the court may take into account the nexus between his mental illness and the offending behaviour, relying on Barbieri v R [2016] NSWCCA 295 at [53]-[55] per Simpson J. Relying on the report of Mr Wong dated 26 October 2021, the offender submitted that the following diagnoses are relevant to the offender’s moral culpability:

“a.   Severe Opioid Use Disorder;

b.   Severe Cannabis Use Disorder;

c.   Post-Traumatic Stress Disorder.”

76. It was submitted these diagnoses lower the offender’s moral culpability due to the impact they have on his criminogenic risk factors. Mr Wong also opined that the offender may suffer from a traumatic brain injury which requires further clinical investigation.

77. The offender submitted that his long history of drug abuse is also a relevant factor in determining the length of his parole period. It was submitted that his persistent drug abuse was directly linked to his offending behaviour and rehabilitation remains a significant issue for him. It was submitted that adequate rehabilitation programs were not available in custody due to the COVID-19 pandemic. Further, the conditions in custody were otherwise more onerous than usual, including lockdowns and lack of visitors.

78. The offender submitted that the court would take into account the fact that the offender grew up in a “deprived” background and that full weight should be given to that fact, in accordance with Bugmy (supra). His upbringing was characterised as “turbulent”. He was a victim of domestic violence until the age of 12 and exposed to drug abuse from the age of 13. Between 18 and 21, he was homeless, living in refuges, hotels, his car and parks. His criminal offending began in his teens. In accordance with Bugmy, it was submitted the effects of profound childhood deprivation do not diminish over time. It was further submitted that this was a sound example of the type of childhood deprivation which serves to reduce the moral culpability of the offender.

79. The offender also relied on his youth at the time of the offending in that he was 23 years old, relying on Tammer-Spence v R [2013] NSWCCA 297 and BP v R [2010] NSWCCA 159. It was submitted the offender had a compromised capacity to mature and learn from experiences to make reasoned and mature decisions. This demonstrated a need for increased rehabilitation.

80. The offender conceded that his criminal history disentitles him to leniency in sentencing. He also conceded that he was on conditional liberty at the time of the offending, being subject to an Intensive Correction Order. That order concluded on 13 January 2021. In applying principles of totality, it was submitted any sentence should be backdated to 8 November 2020, when he was taken into custody. It was noted that whilst he was also subject, at the time of the offending, to a Community Correction Order, when that order was called up in the Local Court on 3 December 2021, no action was taken on that breach.

81. In assessing the offender’s likelihood of reoffending, it was submitted the court would take into account his remorse, acceptance of responsibility and willingness to facilitate the course of justice indicated by his plea of guilty. He was also a young offender and had the support of his wife and now had insight into his serious mental health issues and drug and alcohol addiction. A finding of special circumstances should be made. As to his remorse, the offender relied on extracts from his ERISP on 7 November 2020 (subsequently marked Exhibit 2) in which he had expressed remorse, for example:

“Q170   I would like to send my sincere apologises to him.” (i.e. the victim)

82. The offender conceded that there was no other appropriate sentence other than full-time imprisonment, pursuant to s 5 of the CSPA. In applying principles of parity, the court would find the offender has had an equal role in the joint criminal enterprise. Notwithstanding the offender was responsible for the use of the weapon, the court need not look at the differing roles in the offending conduct with precision, relying on KR v R [2012] NSWCCA 32 at [18]-[19]. Here, the offender’s subjective case was compelling, with respect to the effect it may have in reducing the imposed non-parole period.

83. In his oral submissions, counsel for the offender conceded there was no causal link between the diagnoses made by Mr Wong and the offending conduct. He referred to the custodial infractions in April and June 2021 for drug possession whilst in custody as indicating a real need for rehabilitation. Further, the court should assess the offender’s brain injury in the context of the motor vehicle accident and prescription of medications which led to his drug addiction.

84. Counsel rehearsed his submissions in relation to the application of the principle of parity. Here, the offenders had a similar upbringing and, in accordance with Bugmy, his history of profound deprivation must be given full weight. The court would rely on the family history given to Mr Wong at paragraphs [6] to [8] of his report. Further, the court would approach the matter with some caution, as every offender has a different experience of life. It was submitted this offender had no opportunity to develop because of his background of disadvantage as a child which led him to offend from an early age. It was submitted his co-offender’s upbringing was more stable and this offender had been unable to take advantage of opportunities to rehabilitate. This diminished his moral culpability, unlike the co-offender. Following the hearing, the offender’s solicitor forwarded a note citing Lloyd v R [2022] NSWCCA 18 as authority for this proposition.

85. Counsel referred to the SAR and the offender’s involvement in the EQUIPS program. It was submitted this demonstrates insight into his offending conduct. It was further noted that this was his first offence of violence.

86. The affidavit of his solicitor, Ms Black, demonstrated that his time in custody had been particularly onerous, given the considerable lock-ins imposed on him. He had no in-person visits whilst in custody over an extended period. It was submitted that the offender and co-offender did not have the same need for rehabilitation, and this offender had been unable to complete any programs whilst in custody. Counsel further rehearsed his submission in relation to backdating the sentence to his date of arrest, because of the onerous conditions of his custody.

87. Counsel sought a recommendation from the court that this offender be allocated to the Young Offenders Program at Oberon Correctional Facility.

88. When assessing parity, counsel submitted the co-offender had a Form 1 offence to be taken into account of resist arrest. Further, the co-offender had denied involvement in the offending, whereas the offender made admissions and expressed remorse in his police interview. He was entitled to a 25% utilitarian discount on sentence and a finding of special circumstances should be made.

Determination

89. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A    The purposes for which a Court may impose a sentence on an offender are as follows:

(a)    To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)   To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

90. As set out in my remarks on sentence in the related matter of Malupo (supra), I accept that the Henry guideline judgment is a relevant reference point for an offence under s 95(1) of the Crimes Act. As in Malupo, there are a number of matters relevant here to the determination of the objective seriousness of the offending. The offender was 23 years of age at the time of the offending and had an extensive criminal history. A weapon capable of killing or inflicting serious injury was used by him, namely, a claw hammer with which the victim was struck to the head. Also, some planning was involved in the offence. A rational inference to be drawn from the agreed facts was that the offender and co-offender observed the victim to withdraw cash from an ATM before walking to the train station. They then followed the victim to the train platform where there were no other people present. The offender took the claw hammer from his car and the co-offender said to the victim, “Brother, where’s the money?” I therefore reject the offender’s submission that the offending was spontaneous.

91. The nature of the violence is also relevant. The offender hit the victim in the head with the steel claw hammer, resulting in a significant injury. I accept the Crown submission that the victim was somewhat vulnerable in the sense that he was on the train platform late at night and there were no other people around. No money was taken, but only because the victim was able to escape.

92. Consistent with my findings in Malupo, the objective seriousness of the offending here fell within the mid-range for an offence pursuant to s 95(1) of the Crimes Act.

93. As I said in Malupo, general deterrence is important in sentencing for this type of offence. It is a fundamental right for any citizen to go about his or her business without fear of being attacked. A clear message must be sent to like-minded members of the community that Parliament has imposed severe maximum penalties for offences of this kind, and that courts will impose condign punishment in appropriate cases.

90. Specific deterrence is also important. Here, the offender had an extensive criminal history and he was on conditional liberty at the time of the offending, being subject to both a Community Correction Order for 18 months and an Intensive Correction Order. He must understand that whilst he had been extended leniency in sentencing for past offending, that would no longer be the case, given his failure to rehabilitate.

91. The aggravating factor to the offence was that it was committed in company and the presence of the co-offender no doubt gave weight to the demand made by the offender of the victim for money, or caused additional fear of attack to him. As I have taken into account the actual use of a weapon in assessing the objective seriousness of the offence, I do not take that factor into account as an aggravating factor on sentence. It was, however, an aggravating factor that the offender was on conditional liberty at the time of the offence.

92. The offender’s criminal history does not entitle him to any leniency in sentencing.

93. It is a mitigating factor that the offender entered an early plea of guilty in the Local Court and is entitled to a 25% utilitarian discount on sentence. I further find that the offender has expressed some remorse for his conduct and accepted responsibility for it.

94. I note that the author of the SAR assessed the offender as being a medium-high risk of reoffending. This was somewhat ameliorated in the opinion of Mr Wong, who opined that the offender exhibited symptoms of Severe Opioid Use Disorder, Severe Cannabis Use Disorder and Post-Traumatic Stress Disorder, based on the history received from the offender. The offender’s prospects of rehabilitation are no doubt closely related to his drug and alcohol rehabilitation and relapse prevention. He has failed to take the opportunity to rehabilitate on previous occasions when courts have extended leniency to him and thus his prospects of rehabilitation are guarded. Further, it is well established that reports of psychologists based on self-serving statements of offenders who do not give evidence must be approached with considerable circumspection, although I note that in Lloyd v R (supra), the Court of Criminal Appeal characterised this as a “general observation” and not a principle. Here, there was no objection to the report of Mr Wong by the Crown, and I accept the offender’s history set out therein.

95. I am unable, as I was invited, to make a comparison between the upbringing of the offender and his co-offender on the evidence before me. However, I accept that the offender was exposed to domestic violence from a very young age and to drug and alcohol abuse. He commenced to abuse prohibited drugs from age 13 and left school in Year 10. That history led to interaction with the criminal justice system in the Children’s Court and thereafter as an adult. I am also satisfied that the various diagnoses referred to are supported by the clinical records of the offender’s treating doctor.

96. The principle in Bugmy (supra) applies if the court is satisfied on the evidence before it that an offender has suffered profound deprivation as a child. If so, this has the effect of reducing the offender’s moral culpability for the offending, as well as moderating the weight to be given to personal and general deterrence (see Lloyd v R at [32]).

97. In Hoskins v R [2021] NSWCCA 169, Brereton JA said at [57]:

“There is no magic in the word ‘profound’, and it is not necessary to characterise an offender’s childhood as one of ‘profound deprivation’ before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and pre-meditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending.”

102. Here, the offender’s early introduction and continued abuse of prohibited drugs is linked to his childhood exposure to domestic violence and drug abuse, together with the injuries he received in a motor vehicle accident as a young man, and the impact those injuries had on his life including his ability to work, resulting in both Substance Use Disorders and a Post-Traumatic Stress Disorder, operating in this case to reduce his moral culpability for the offending. In Williams v R [2022] NSWCCA 15 at [131], the Court of Criminal Appeal held that “even if psychiatric conditions are not causative of the offending, they are relevant to reducing the sentence… the deprivation to which Bugmy refers does not require or necessarily involve psychiatric disorder.” Thus there is a diminished weight to be given for both general and specific deterrence in sentencing here.

103. As I said in Malupo, the offender’s young age at the time of the offending is part of the matrix that the Henry guideline judgment has taken into account.

104. I have taken into account the maximum penalty of 20 years imprisonment prescribed for an offence pursuant to s 95(1) of the Crimes Act as a guidepost in the sentencing process. Having regard to the objective seriousness of the offending, the aggravating and mitigating circumstances set out above and the offender’s subjective circumstances, I am satisfied that the threshold in s 5 of the CSPA has been crossed and that no penalty other than imprisonment is appropriate in all of the circumstances.

105. I also accept that the COVID-19 pandemic has necessitated onerous conditions for those serving custodial sentences. Corrective Services have imposed measures for the safety of the whole of the prison population which severely restrict the conditions of custody, including extensive lockdowns and limitations on access visits and educational programs. These onerous conditions also impact on the mental health of inmates and create additional hardship for young and first time offenders – see DPP (Cth) v Saadieh [2021] NSWSC 196. I am satisfied that these matters mean that the offender has suffered and will continue to suffer real hardship in custody and I intend to take this into account in mitigating his sentence.

106. I find special circumstances pursuant to s 44(2) of the CSPA based on the offender’s increased need for supervision upon his return to the community for his drug dependency, and because of the onerous conditions in custody brought about by the COVID-19 pandemic. I intend to vary the statutory ratio between head sentence and non-parole period so that he has a longer period under supervision to address his drug and alcohol issues including relapse prevention, and anger management issues.

107. I am mindful in applying principles of parity that it is a principle of equal justice and that similar offenders should be treated similarly with material differences taken into account. Here, the offender had a more extensive criminal history than his co-offender, whereas the co-offender was also sentenced on the basis that he had a matter on a Form 1 taken into account, thereby leading to some accumulation on sentence. Both offenders were liable by way of their involvement in a joint criminal enterprise, however it was this offender who struck the victim on the head with a hammer. Notwithstanding his more extensive criminal history, this offender’s moral culpability is somewhat reduced given the deprivation he suffered as a child, whereas the co-offender did not gain the benefit of that finding.

108. Taking all of those matters into consideration, and having regard to the fact that both offender and co-offender were on conditional liberty at the time of this offending, they should be subject to the same sentence of three years and six months imprisonment, with a non-parole period of two years. The offender’s sentence is to be backdated to 7 November 2020, notwithstanding the breach of his previous Intensive Correction Order. His eligibility for the Young Offender’s program is an administrative function for Corrective Services, however given this offender’s background, I recommend that he be considered for it.

Orders

109. I hereby order as follows:

1. You are convicted of the offence of aggravated assault with intent to rob and recklessly inflict actual bodily harm, pursuant to s 95(1) of the Crimes Act 1900.

2. I sentence you to a non-parole period of two years imprisonment to commence on 7 November 2020 and to expire on 6 November 2022.

3. The balance of term will be for a period of one year and six months, commencing on 7 November 2022 and expiring on 6 May 2024.

4. Your parole eligibility date will be 6 November 2022.

110. Further, I recommend the offender be considered for the Young Offender’s Program administered by Corrective Services.

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Decision last updated: 11 March 2022