R v Padua

[2019] NSWDC 787

District Court

New South Wales

Medium Neutral Citation:	R v Padua [2019] NSWDC 787
Hearing dates:	19 July 2019
Date of orders:	23 July 2019
Decision date:	23 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 6 years with a non-parole period of 3 years 6 months
Catchwords:	CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term SENTENCING — Non-parole period — Standard non-parole period SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — General principles SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v R (2013) HCA 37 Markarian v R (2005) HCA 25 Muldrock v R (2011) HCA 39 Munda v State of Western Australia [2013] HAC 38 Tepania v R (2018) NSWCCA 247 Veen v R (No 2) [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Lenard Padua (Offender)
Representation:	Ms Fargher (Crown) Ms Marsden   Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender)
File Number(s):	2018/00315882

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Lenard Padua appeared in this Court for proceedings for the determination of sentence on Friday 19 July 2019 from which date he was remanded to appear today for the sentence to be imposed and my reasons for that sentence. 

THE OFFENCE

2. He is before the Court upon one charge, contrary to s 98 Crimes Act 1900. He was charged in the Local Court by way of court attendance notice expressed in the following terms:

"That he, on the fifth day of October 2018 at Lakemba in the State of New South Wales did assault AC with intent to rob him, at the time of the assault did wound the said, AC whilst being then armed with an offensive weapon, to wit, a knife with a 5 centimetre black blade."

3. The maximum penalty specified for this offence is imprisonment for 25 years. There is a standard non‑parole period specified for the purposes of Pt 4, Div 1A Crimes (Sentencing Procedure) Act 1999. For this offence the standard non‑parole period is imprisonment for seven years.

THE STANDARD NON PAROLE PERIOD

4. The provisions introducing standard non‑parole periods are found in that part and division of the Crimes Sentencing Procedure Act amended to their present form after the decision of the High Court of Australia in Muldrock v R (2011) HCA 39. Thus, the provisions require the standard non‑parole period for an offence is that which is included in the table to the provisions. The Act provides that the standard non‑parole period represents the non‑parole period for an offence in the table that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relevant seriousness of the offence.

5. The Act also provides that the standard non‑parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The Court must record its reasons for setting a non‑parole period that is longer or shorter, identifying each factor that is taken into account. Objective gravity will be assessed upon consideration of the objective fact as affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending and bringing to account relevant factors provided in s 21A Crimes (Sentencing Procedure) Act 1999 except for those that are essential elements or iatrical characteristics of the offence.

6. The fixing of the non‑parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences.  The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence and bring that together in a process described as intuitive synthesis, discussed, for example by McHugh J in Markarian v R (2005) HCA 25.

7. When determining sentence for an offence for which there is a standard non‑parole period specified, it and the maximum penalty are legislative guideposts for the sentencing court along with other established sentencing practices and by reference to matters identified as relevant in s 3A, 21A and 22 Crimes (Sentencing Procedure) Act 1999. I have come to the view that applying these principles that the objective gravity of this offence bringing to account the matters relevant to the assessment in accordance with these principles falls a little above midrange of objective seriousness.

8. There is also authority dealing with this process of analysis in which Johnson J reviewed the provisions and their impact upon the sentencing process. I refer to Tepania v R (2018) NSWCCA 247. His Honour, in his judgement at para 110, summarised the propositions which I have just rehearsed, drawing upon the relevant sections in the Crimes (Sentencing Procedure) Act 1999 and Pt 4, Division 1A. He commented upon the amendments brought following the decision in Muldrock v R ibid and then added at para 112 the following:

"In sentencing for an offence (whether or not a standard non‑parole period offence), a court should make an assessment of the objective gravity of the offence, applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account unless excluded by statute).  Factors such as motive, provocation or non‑exculpatory duress may be taken into account in this way.  Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offence, including (if it be the case) a mental disorder or mental impairment."

9. His Honour went on to discuss the significance of emotional stress which accounted for criminal conduct and how it is applied according to common law principles.  His Honour then went on to discuss the question of moral culpability and the imprecision of that term and its use in cases such as Veen v R (No 2) [1988] HCA 14. There the High Court observed that mental abnormality may diminish moral culpability and an antecedent criminal history might also impact upon moral culpability.

10. His Honour referred to decisions such as Munda v State of Western Australia [2013] HAC 38 and Bugmy v R (2013) HCA 37 dealing with the environment in which an offender might evolve through formative years where abuse of alcohol, drug misuse and such difficulties for a young person which must be brought to account when assessing moral culpability in the commission of crime balanced against the seriousness of the offending. All of those well known statements of principle, recently expressed by his Honour, indicate that although there is a standard non‑parole period for an offence, it is not often that one sees the standard non‑parole period employed.

11. When one embarks upon the synthesis of objective and subjective matter, the standard non‑parole period becomes relevant in the sense that one brings it to account as one of the guideposts to be considered in the exercise undertaken, and thus, although an offence might be found to be at midrange or slightly above, as I have found in this case, it does not follow that the offender will suffer a custodial component in the sentence of seven years with perhaps a little more to reflect the extent to which the offence is above midrange upon an objective assessment.

12. The synthesis of the material I have will result in a custodial component below seven years. Moreover, s 44 Crimes (Sentencing Procedure) Act 1999 which requires that the parole period must be no greater than one third of the custodial component is also ameliorated upon considerations that would justify a finding of special circumstances which I have in this case. The result is, as I will announce in due course, a sentence that no doubt the offender will find to be of some significance but with an extended period on parole during which he will be given the opportunity to address the pattern that so far has evolved, hopefully to redirect his path with the assistance of community corrections and the parole system and not return to the criminal justice system for further incarceration.

THE PLEA OF GUILTY

13. The offender pleaded guilty in the Local Court, was committed for sentence, and therefore is entitled to a discount of 25% for the utility of the plea of guilty applied to the sentence that would have otherwise been imposed; the discount is applied to the starting point achieved upon the synthesis of objective and subjective facts, including the extent to which he has demonstrated contrition and remorse and prospects of rehabilitation, guarded though the Court is when it comes to that question. 

PRE SENTENCE CUSTODY

14. He has been in custody since the date of his arrest, 16 October 2018.  The sentence imposed today, therefore, will commence on that date.

THE FACTS

15. The facts describe a serious example of this offence.  He was 19 years of age at the time.  The victim, AC, lived in an apartment in Lakemba with his wife and two children aged five years and six months respectively at the time.  The apartment is on the first floor of the building.  On 23 September 2018 AC purchased an iPhone from a retail outlet for the purchase price of $2,049.  It was delivered some days later, the box in which it arrived was covered in shrink wrap in an envelope.  He removed the box from the envelope but left the phone within the shrink wrap in the form in which it was delivered to him.

16. On or about 2 or 3 October 2018 AC decided to sell the phone and posted an advertisement on Gumtree.  It is not clear why he was offering to sell the phone so soon but he did so, advertising it for the price of $1,950.  He posted his mobile number so that he might be contacted.  At 5.09pm on Friday 5 October 2018 he received a phone call from another mobile number, ending in the digits 455.  The person who spoke to him said he was interested in buying the phone and agreed to meet at AC home later that night for the purchase; AC texted his address to that mobile number.

17. At 8.52pm AC was at home with his wife and two children when he received a call from that phone number; he recognised the voice as that of the man who had called earlier.  The man said he was outside.  AC leant over the balcony; he could see a man standing in the front yard and called out to him to come up to the apartment.  Shortly after there was a knock at the door, AC five year old son opened the door to the offender and the offender entered.  AC was wearing traditional Bengali pyjamas at that point so he went to the bedroom and changed into trousers.  He called out, "I'll get the phone from my bedroom".

18. The offender was invited to sit on the lounge which he did.  AC returned with the iPhone in its sealed packaging.  He stood in front of the offender and handed him the package together with the invoice from the purchase he made of the iPhone, evidencing the transaction and the price he paid.  The offender, holding the package in his left hand, was inspecting the IMEI number on the package and in his right hand he held his own iPhone.  He typed something into his iPhone and said, "The IMEI is not matching on the site".  This was a misrepresentation.

19. The offender stood up off the lounge and walked towards AC, handing him his own iPhone and the package. An IMEI checking site was open on the screen on the offender’s phone.  There was a field on the page with the cursor on it.  AC entered the IMEI into that field and an error message appeared.  AC entered the number again and realised he had typed it into the wrong field.  He said to the offender, "Why you tell me to put the IMEI number, it is a serial number field".  He leant forward and held the offender's screen up to the offender.

20. The offender took his phone from AC and placed it quickly into his right jacket pocket.  He thereupon withdrew a knife from the same pocket.  He had the knife in his right hand; the knife was described as very small with a blade of about eight centimetres.  AC’s wife described the knife as very short, about 2.5 inches sticking out from the offender's hand.  The offender held the knife to the left side of AC’s throat and said, "Sorry, mate.  Give me the phone".  AC’s wife began screaming at this point.  The offender's arm and body were observed by AC’s wife to move in a manner she described as very small shake.  There is no explanation for that; it would be consistent, one might think, with excess adrenalin or anxiety or excitement in the course of the commission of this crime.

21. AC stepped back and pushed the offender away.  At this, the offender's right arm moved downwards, across to the right side of AC's body, cutting the left side of his neck and the right side of his torso with the knife.  AC raised both hands up and again tried to push the offender away, sustaining cuts to the palms of both of his hands.  These, upon that description, would be in the nature of defensive wounds.

22. A question arose in the course of the hearing of the matter as to how the wounds were inflicted, whether the offender purposely slashed at the victim to cause the wounds or whether his conduct might be limited to reckless behaviour with the consequence that when the victim moved in some manner to self-protect, the corresponding movement of the offender thereupon caused the wounds to the affected areas of the victim's body.

23. It would be appropriate, in my view, to deal with the matter upon the description urged involving the concept of recklessness as the cause of the wounds which the offender has acknowledged in the plea of guilty he has entered to this charge, rather than to deal with the matter on the basis that he deliberately struck the knife into the victim's body causing the wounds, intending that outcome.  Ultimately though, the offence is still objectively serious by reason of the fact that he took the knife, put it to the throat of the victim, and that in the interaction that immediately followed the wounding of some significance was occasioned.

24. The offender did not leave the event unscathed.  AC was able to disengage and collected a rolling pin from the kitchen.  The iPhone at that stage was on the floor near the front door.  The offender bent down and picked it up with his left hand.  AC approached and hit him on the head and the upper body and left arm with the rolling pin.  The upper body and left arm might have been struck in areas of soft tissue, it would appear, but the blow to the head was rather more effective, leaving him with a laceration 3 centimetres by 1 centimetre wide by 1 centimetre deep.  I have no evidence in relation to the wound and whatever was required for its treatment but there is, in the antecedent record, a photograph of the offender with what appear to be steri‑strips across is left forehead, consistent with the description of the wound given in the agreed statement of facts.

25. The offender dropped the iPhone package when he was hit, he pushed AC away.  AC's wife took her two children into the master bedroom, fearing for their safety; the offender went out to the balcony and screamed, "Help".  AC followed and tried to grab him from behind but the offender struggled to get away and was able to do so.  The offender jumped over the balcony and ran off.

26. AC's wife telephoned the triple‑0 emergency line.  The iPhone was retrieved from the floor and put into a drawer.  An ambulance arrived and conveyed AC to Royal Prince Alfred Hospital where surgery was performed to his right hand and neck with sutures inserted to his right abdomen.  What was involved in the surgery is not further described.  The injuries he suffered constituted wounds.

27. The police obtained the offender's medical records from Fairfield Hospital; these showed that he attended the Fairfield Hospital emergency department on 5 October 2018 with the wound as earlier described and with multiple superficial lacerations to his hands.  He told the triage nurse that he sustained the injury to his forehead playing soccer.  He received sutures to his forehead and left middle finger.

28. On 16 October 2018 the police attended an address in Bankstown where the offender was living with his parents and siblings.  He was arrested.  His mother gave police permission to search his room; she pointed to his bed when asked whether he had any mobile phones.  Two were located there; she acknowledged that they were his.  She told the police that the offender told her he suffered the injury during a game of indoor Oz tag.

29. The offender participated in an electronically recorded interview on 16 October 2018 but declined to answer questions in relation to the matter.  His fingerprint was identified on the iPhone packaging and there was his blood located on the victim's balcony. 

THE OFFENDER

30. Born in 1999, he is now just 20 years of age and, as I said, 19 years of age at the time of the offence.  This is his first time in adult custody; it has apparently proved to be a telling experience.

31. In the course of his evidence when I took the impression that he was, in some way, minimising the impact of what he had done and his reasons for having engaged upon this crime, I intervened in the questioning and had him face me and tell me why I should believe him when he said that he has learned his lesson and wanted to start afresh.  I found the manner of his response, and his demeanour when he spoke compelling.  He explained to me that his experiences in juvenile justice did not compare with what he has experienced in the adult system.  His evidence was in terms that it is entirely different.  Custody in the juvenile justice system was hardly stressful, easy to manage, and with that he had no difficulty coping.  His experience in gaol, however, has been otherwise.  I accept what he had to say in that regard.  I accept that as some evidence of his contrition and remorse.

32. His first offence on his antecedent record was dealt with on 18 January 2016.  This was robbery armed with an offensive weapon which led to a control order of some 10 months including a non‑parole period of five months.  I pause to note that in his antecedent record in children's courts, he has not been convicted though subject to control orders at least in respect of some of matters.  For the same offence in the District Court, apparently on appeal it would appear, the order was confirmed.

33. In January 2016 for aggravated enter a dwelling with intent and in company he was extended probation for a period of 14 months.  In June of 2016 he was called up for breaching that probation and it was extended for another 18 months.  Also in June 2016 he was before the Court for reckless wounding for which he was given a control order of 15 months including a non‑parole period of five months for an offence of assault occasioning actual bodily harm for which he was given a control order of 12 months served concurrently including a non‑parole period of five months, and for an offence of affray he was given a control order of 15 months with a non‑parole period of five months. As I said, all the sentences were concurrent. Most recently, in May 2017, for common assault he was given probation for six months.

34. He was released to parole it would appear in November 2016.  His court date for the common assault was in May 2017.  The offence with which I am concerned occurred on 23 September 2018 and thus, as was put to me in the course of submissions, he has demonstrated the capacity to at least not be detected in the commission of a crime and therefore should be accepted to have been clear of offending, subject to what I am about to say with regard to his misuse of prohibited substances.

30. He provided two letters; they were tendered in exhibit 1 and he identified the original of those documents in his evidence.  One is a letter written to the victim; it is handwritten and as presented it is one that he wrote.  The form of the document, the grammatical structure, his use of the English language demonstrates to me that he is someone with intellectual capacity and some potential.  For example, the letter written to the victim begins, "I know it may be too little and too late", significantly, he spelt the word "too" correctly.  The letter continues, "... but I feel it is necessary to reach out with an apology for both you and I to move forward with our lives.  Looking back on that night, I can see the damage I have done both physically and mentally.  A person's home should be their safe haven, their comfort zone and their place to relax.  I acknowledge that I have played a role in taking that comfort away from you".  I have trouble reading the next word; he continues later, "No one should ever have to feel unsafe in life, let alone in their own home.  I apologise greatly for this mental and emotional trauma". 

31. I do not intend to read the entire document; that is sufficient to exemplify the capacity this young man has for expression.

32. The letter to the Court begins with comparable elegance.  "If I may ask for one moment of your time to express my sincerest apologies to the Court, the victim in regards to the assault armed robbery charge and my family who are supporting me throughout this ordeal.  I would like to begin with my apologies to the ‘residing’ judge, firstly for my actions of the past which are the main reasons I am in your presence today".  Apart from the use of the word "residing" when he was clearly intending to use the term "presiding", once again, the presentation of this letter reflects someone with substantial capacity for expression when writing.

33. Taken with his evidence and the material I am about to address in the psychologist's report, I am satisfied that he has demonstrated to this Court contrition and remorse for his wrongdoing.  Prospects for rehabilitation I accept, as the Crown has submitted, offer something of a challenge.  I would accept his sincerity in his wish to change the path that he has so far taken in life but his attitude towards drugs and the history of offending upon which he has engaged does not permit me to conclude that his prospects for rehabilitation are good.  There is sufficient there, however, to justify the inclusion of these considerations as special circumstances, justifying the reduction of the custodial component that he has otherwise earned.

34. It will be a matter for him to take the opportunity presented and to demonstrate that he is worthy of parole in the community to demonstrate his willingness to build upon what I accept are characteristics of potential which should provide a sound basis for his future. 

35. The psychologist's report was written on 11 July 2019.  This contains the following representation, "Mr Padua produced a small knife with an 8 centimetre blade from his pocket.  He held the knife to the victim's throat and asked for the phone.  The victim pushed Mr Padua away and in doing so, sustained lacerations to neck, torso and hands".  To the extent that the passage might be read as suggesting that the victim was, in some way, the author of the harm that he suffered in this attack, I reject it.

36. I understand Ms Marsden not to rely upon it in such a fashion and acknowledges that the sentence is to be determined upon the structure of the agreed statement of facts.  I would not hold that the offender has represented to the psychologist that the event unfolded in that fashion.  I take that view because this passage appears beneath a subheading ‘agreed statement of facts’ and, so it would appear, the psychologist has drawn upon that document, put a gloss upon what was there recorded, and in so doing has at least to some extent, misinterpreted the description of the event at the point where the victim suffered the wounds.

37. The psychologist noted his criminal antecedents.  The offender engaged well in the interview process, he was polite, there was no mood disturbance reported, his affect was appropriate, there was no indication of intoxication or psychosis, he was alert and oriented, his intelligence impressed as normal and he demonstrated insight into his behaviour. 

38. The next passage is another aspect that has led me to the view that he should be accepted in his assertions regarding contrition and remorse because it carries or it includes, I should say, what he said to the psychologist as his motivation.

39. It also is to be noted that he adopted in evidence the representation that he made to the psychologist.  He spoke of socialising with drug using offending peers, using up to 3 grams of cocaine per week, developing a drug habit set at $2,000 in debts owed to a supplier.  He was committed to repay this debt within a certain timeframe but could not earn sufficient income to cover the outstanding amount within that period.  The report continues, "He told me he did not fear for his safety if he did not repay the drug debt.  Rather, he wanted to honour his commitment and maintain his relationship with the cocaine supplier".

40. The representation involves commendable candour, I might say.  It is something of a double‑edged sword for him because it demonstrates that, at the expense of this man, and in the presence of his wife and children, he was prepared to perpetrate this robbery armed with a knife because it was more important to him to maintain an ongoing relationship with the individual who is supplying him with cocaine.  Perhaps it is his immaturity that left him with such an attitude. His history of drug use is relevant in this context; he has been using cocaine since the age of 15, using up to 3 grams per week, costing around $900, a lot of money to find each and every week to keep his habit going.

41. This was against a history of binge drinking alcohol, smoking cannabis and using methamphetamine before the age of 15; thereafter ceasing cannabis because he grew bored with it and methamphetamine because of the weight loss he suffered as a result.  He used MDMA for social occasions and the report continues, "He used substances because he enjoyed the euphoria the substances induced".  Again, if I may say, this reflects commendable candour and perhaps immaturity because he enjoyed the use of these substances and their effect upon him, wanted to continue the relationship with his drug dealer, and was prepared to rob an innocent member of the community to be able to do so. But bringing them together, those considerations, although affecting the objective seriousness of his misconduct, also provides some support for contrition and remorse and what might be done for him to address his criminogenic needs.

42. He was educated to year 12; he was expelled from school in year 9, he engaged with negative peer associations.  He completed, at his own instance, years 11 and 12 in TAFE; again demonstrating potential in my view.  He has had some work in a warehousing position.  His social and relationship history continued after school with those with whom he engaged during school, described as antisocial peers with whom he truanted and engaged in substance use and offending.  The assault and affray episode apparently related to altercations between individuals associated with his peer groups.

43. His family history is of interest.  Having had opportunity more than most I might say to travel, it has been my experience that people from the Philippines and indeed Indonesia often leave their homeland to work in various positions around the globe on cruise ships, and in South East Asian cities in the service industries where the might earn larger sums of money than they are able to earn back home.  It has been my experience of those people that they are hardworking, they spend a lot of time away from their children for significant parts of a year, year after year, building up capital so that they might provide a better life for their children, and that seems to be what has happened here.  His parents left the Philippines; his father came to Australia, his mother worked in Hong Kong, I might have that back to front, but I understand that to have been what occurred.

44. Ultimately, the offender was brought to Australia to commence life in this country with his parents.  At this stage his father was the breadwinner and his mother stayed at home.  There was care provided for him before this as I understood it, by his grandparents and perhaps other extended family members.  However, upon returning to the care of his parents and coming to this country, he faced further struggles; perhaps the lack of parental control in those formative years up to the age eight was the catalyst that has led him to where he is today. I have heard it said by child psychologists on more than one occasion that the formative years up to the age of seven or eight are critical in the development of a child.

45. When he came to Sydney, his behaviour was poor and his parents returned him to the Philippines for six months hoping to rupture the association he had with negative influences in this country.  He then returned and unfortunately it would seem the die was cast and his pattern continued; now he is facing a significant sentence of imprisonment for a very, very serious crime. 

46. I would pause to extend my sympathy to his parents, his family.  It must be terribly distressing for people who, on the material I have, have done all that they can to provide only to see their son take the direction that he has and be facing the next five years of life in circumstances that they would rather him not be experiencing.

47. There is other material before me that I should remark upon.  There is a document from Ms Pham; she speaks well of the offender and observes qualities and characteristics which, on the material before me, tendered without any objection and without requiring the witness to be cross‑examined. The Crown would accept I expect that it is clear that she does not know all of the detail of his background leading to this misconduct upon which he is now facing sentence.  I make that observation because of the following paragraph:

"With respect to his offensive intent to rob and causing wounding, it posed a question as to how Lenard would have acted in such a violent way.  In doing so, his actions within this offence do not display his true character and behaviour as he is.  For the years I have known him, it is extremely abnormal for him to act in such an extent.  I wholeheartedly feel that the robbery conducted by Lenard is not a true representation of himself as he is generally not a violent individual at all."

53. I accept that the author of that document holds that view but it does not appear to me to be a view that has been informed upon all that is to be known of the offender.

54. There are other documents before me here from Dr Andrew Lam, written on 25 July 2015 with a questionnaire which provided a score of 24 out of 50, completed in the course of an assessment for a mental health care plan or community plan.  The material includes the observation that he has problems with anxiety and depression, written on 22 June 2018.  There is a further mental health assessment document; this includes attributions regarding his family which he thinks is disappointed with his attitude to work.  The material is offered upon the premise that it is accepted that he suffered from anxiety and depression during those periods the cause of which was to be sought and hopefully addressed.

55. There is a contrast between that material and the impression that one might take of the offender, having seen him in the witness box and as described in the psychologist's report, but ultimately it does seem to me that I have before me a young man who perhaps lost his way in that period of time up until his parents restored their association and contact with him, after their hard work overseas, but by then the die was cast and he was on the path to his imminent ruin including the prosecutions leading to his custody in the juvenile justice system and then this more serious crime that has him before this Court.

SUBMISSIONS AND FINDINGS

56. The Crown submissions I should address because I am not entirely satisfied that I should find in the Crown’s favour on all of them.  I agree with the objective seriousness falling above midrange but the proposition that it falls well above midrange I am not comfortable with.  The allocation of a crime on the scale of seriousness is always a matter of judgement and it is not an easy task; minds will often differ in my experience but, doing the best I can, I have come to the view that this is above midrange but not to the extent advanced by the Crown.  I have not overlooked that there was a weapon that was used in circumstances where it was placed against the throat of the victim.

57. There was a measure of violence involved in the offending but the violence would be, in my view, in two areas.  First of all, the violence in the threat by presenting the knife to the victim's throat and then there is what evolved thereafter when there was a measure of resistance by the victim, which could not attract any criticism so far as the victim was concerned; it is perfectly understandable that he might respond with at least some physicality in circumstances where he is in his home with his wife, with his children aged five and six months, with this offender armed with a knife trying to rob them of a phone.

58. I have not overlooked the extent of the wounding, and the areas of the body that were affected.  I have not overlooked the severity of the injuries inflicted though I have limited material upon which to come to a definitive view of that other than to note that surgery was required for some of them.  He has a significant record of prior criminal offences including violence, one of them involving a wounding.

59. I agree with the proposition that the learning of the High Court of Australia in Veen v R (No 2) [1988] 164 CLR 465 is of application. Retribution, deterrence and protection of the community do have a role to play in the assessment of sentence. The offence occurred in the victim's home in front of his two children; there was a measure of planning and organisation but not such as to aggravate the misconduct in terms of s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999, but I have taken into account the degree of planning and organisation that must have been involved in responding to this advertisement. It was an offence for financial gain; all robberies are of course, and I would note that not as an aggravating factor.

60. The line provided in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and gaol has to be the outcome in this case. His use of illicit substances provides no mitigation at all in this case. He clearly made the decision to use drugs because he enjoys them and he wanted to continue with his relationship with his drug supplier at the expense of the victim of this crime. It is not to be overlooked though that his deterioration into the drug use must find its genesis in the circumstances that were pertinent in the formative years up to the age of eight and thereafter in the years immediately after coming to this country.

61. I accept there is remorse.  I do not conclude there is a high risk of reoffending.  There are some prospects of rehabilitation but I could not conclude that they are good.  He will need to engage with appropriate programs to address underlying causes for this misconduct.  He is in need of rehabilitation and that is part of the special circumstances upon which I am going to reduce the custodial component.  The Crown concedes special circumstances but submits that it should not lead to a significant decrease in the custodial component of the sentence.

62. In comprehensive submissions made by Ms Marsden on behalf of the offender I am reminded of the Henry guideline judgement and what was said there including with regard to the background of drug use. I have already expressed a view with regard to that. There are comparable features of the guideline judgement and what I have here but there are differences also. First of all, this offender was charged with an offence contrary to s 98 Crimes Act 1900 whereas the Henry guideline judgement dealt with an offence which carried a maximum penalty of 20 years of imprisonment and no standard non‑parole period.

63. The weapon was used in the sense that it was applied to the throat of the victim in the course of the robbery.  I note that planning is conceded, although to a limited degree.  It is noted that violence was in fact used.  The vulnerability of the victim, such as it was, in the circumstances where he is in his home with his wife and with his children for whom he must have felt some obligation to protect them, is not to be described other than situational vulnerability as discussed in authorities that have distinguished the vulnerability identified in the guideline judgement by reason of particular occupations and the circumstances in which they are performed.

64. Nothing was taken in this robbery but that would be through good fortune for the victims rather than what was intended by the offender and he has the benefit of the plea of guilty, as I said, as evidence of contrition and also for utility. 

65. Objective seriousness is said to be reduced by the fact that the offence was of relatively short duration, but it was of some intensity in the period that it was perpetrated.  It was suggested the offence was unsophisticated; I do not agree with that proposition.  The proposition that the violence was precipitated by the struggle initiated by the victim I do not find persuasive.

66. The description of the surgery is described in the submissions but it is not part of the agreed statement of facts and I cannot really bring that to account as further definition of the procedures required to treat the victim.  I note the subjective features identified in the submissions provided, including the history that I have outlined with his parents working overseas.  There is reference here to his father's separation from his mother and another relationship that evolved thereafter which I have noted.

67. There is reference to domestic violence and physical abuse that he suffered from his grandmother and parents consistent with the strict regime followed in childcare within his culture which in these days is not tolerated in this country.  There is reference here to the use of belts, wooden spoons, sticks and shoes. This of course, is generally as a matter of law not accepted as appropriate lawful chastisement.  Indeed, very recently a parent in another State was charged with assault of a child when she struck that child with a wooden spoon, reflecting the change in society's attitudes in this country.

68. I note the work history to which I am taken all speaking to his prospects of rehabilitation.  There is reference to his substance misuse which I have addressed.  There is a submission focussing upon his youth and the proximity of this offence to his age of majority at 18; as I said, he was 19 at the time he committed the crime.

THE SENTENCE

69. Ultimately, but for the material I have brought together, including the plea of guilty and the discount, the offender would have suffered a significant period of imprisonment in this case, but after application of the discount of 25% I have decided that the appropriate head sentence is one of 6 years.  I will specify a non‑parole period of 3 years and 6 months which commences on 16 October 2018 and will expire on 15 April 2022 leaving him with a balance of 2 years and 6 months during which he will be eligible for parole.

70. My orders are: the offender is convicted of the offence of assault with intent to rob armed with an offensive weapon, namely the knife, causing wounding.  I specify a non‑parole period of imprisonment of 3 years and 6 months commencing on 16 October 2018.  He will be eligible upon the expiration of the non‑parole period of 3 years and 6 months on 15 April 2022.  I impose a further period of imprisonment of 2 years and 6 months to commence at the expiration of the non‑parole period. Upon the finding of special circumstances that I have made, that shall commence on 16 April 2022 and expire on 15 October 2024.  It will be a matter for the offender to apply for parole at the appropriate time and for the parole authorities to determine whether it should be granted and for them to determine what conditions of parole should attach.  I will leave he exhibits on file for such period as the parties require.

69. Mr Padua, just so that you understand I will explain to you, the sentence starts on 16 October 2018, you have to serve 3 years and 6 months; you will be eligible for parole on 15 April 2022.  Make sure you keep progressing in custody because that will guarantee your parole when you are eligible for it and then when you are on parole, take the opportunity to address your ways so that you do not find yourself back in gaol.  I will let you go with the officers now.

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Decision last updated: 04 February 2020