R v Phillip Conan Robinson, Frank John Robinson and Shane Bertram

[2007] NSWDC 344

CITATION:	R v Phillip Conan Robinson, Frank John Robinson and Shane Bertram [2007] NSWDC 344
JUDGMENT DATE:	11 December 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	In respect to Phillip Conan Robinson:; Convicted.; AOABH (Mandic) Sentenced six and a half months imprisonment (Commence 01-03-07 and to expire 30-09-07); AOABH (Dews) Sntenced to 12 months imprisonment with a Non Parole Period of 9 months (Commence 01-06-07 and to expire 29-02-08, balance of term to expire 31-05-08); In respect to Frank Robinson:; Convicted.; AOABH (Mandic) Sentenced six and a half months imprisonment (commence 10-11-06 and to expire 09-05-07) ; AOABH (Dews) Fixed term of 9 months improsonment (commence 10-02-07 and to expire 09-11-07); In respect to Shane Bertram:; Convicted.; AOABH (Mandic) Sentenced six and a half months imprisonment (commence 23-01-07 and to expire 22-07-07); AOABH (Dews) Sntenced to 12 months imprisonment with a Non Parole Period of 9 months (Commence 23-04-07 and to expire 22-01-08, balance of term to expire 24-04-08)
CATCHWORDS:	Criminal Law - Sentencing - A.O.A.B.H. in Company (x2) - upon hotel security staff - subsequent unrelated, unprovoked upon lone lmale seated in mall - strong level of violence -use of skate board to strike one victim - soft tissue injury - common substantial history of alcohol and drug abuse - indigenous male offenders - breach of bail, bond and parole - fixing appropriaate sentence when backdating - offender serving balance of parole.
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Hayes [1984] 1 NSWLR 740 R v Rushby (1977) R v Engert (1995) 84 A Crim R 67 R v Engert (1995) 84 A CrimR 67
PARTIES:	Regina Phillip Conan Robinson Frank John Robinson Shane Bertram
FILE NUMBER(S):	07/21/0117
SOLICITORS:	Ms Wong - Office of DPP Parramatta Mr A Metcalf - accused Robinsons Mr N. Vertican - accused Betram

JUDGMENT

1. The three young men sitting in the dock, each has been imprisoned now for several months. Each has a bearing and carriage suggesting he is confident, assured, manly and competent. Each has an appearance of fitness reminiscent of an elite athlete. As each sits in the dock, each could present as an advertisement of the glow of youth. As each sits in the dock one could be excused for thinking each would be the source of pride and joy to his family.

2. However the behaviour of each on the night of 10 November 2006 was such as to disgrace each. It went well beyond what was tolerable. It descended to what was criminal. It also descended to what was cowardly.

3. The Court has been told each was drunk. A moment's thought will bring a realisation that alcohol is not the cause of offending. Many, many men drink as much, perhaps more, than these young men did but still do not stoop to this behaviour exhibiting the level of violence these men displayed on 10 November last. It is easy to blame the grog. It relieves one of failing to look at himself or herself and the failure to look for the real explanation. Why did these offenders behave like this when they were drunk, when most drunk men do not behave like this?

4. Shane Bertram, Frank Robinson and Phillip Robinson have each pleaded guilty in Court to the assault occasioning actual bodily harm of Ivan Mandic aged thirty- five and to the assault of Alan Dews whilst each offender was in the company of their co-offenders. Today each is to be held accountable for his criminal conduct as reflected in each of these offences.

5. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these two offences before this court committed by these three offenders harming these two victims in this community. [ R v Gladue (1999) 1SCR 688 [80]].

6. My initial task requires an assessment of the objective criminality of the two offences before the Court. I will also need to have regard to matters personal to each offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

7. My fact-finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient if I remind the Court a judge is not party to the agreed set of facts. The tender of the agreed set of facts does not relieve the judge from his or her fact-finding task; it simply limits the material on which the facts may be found. To the extent, if it be the case, the facts as agreed do not reflect the actual events that occurred, it must be remembered the facts can only be found from the evidence before the Court.

8. Each offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found or fixed terms are to be imposed and finally the ultimate length of the term of imprisonment or other penalty to be imposed. None of this can be commenced until the primary facts are determined. What weight then needs to be given to all of these matters against the imperative that all sentencing should have as it’s primary focus the protection of the community will also need to be determined, see R v Cuthbert (1967) 2 NSWR 329, R v Hayes [1984] 1 NSWLR 740 and R v Rushby (1977) NSWLR 597.

Facts

9. At about 1.10am on Friday morning 10 November these three offenders entered the Hotel Parramatta located in Darcy Street. A security officer, Ivan Mandic, aged thirty­five, was on duty, standing in the front bar area of the hotel. He observed the offenders entering, approached them asking for identification. His request was ignored by each. They walked down the stairs to the lower level of the hotel. Mandic recognised two of the offenders as persons previously banned from the hotel. He also came to a view that all were intoxicated. Mandic approached the offenders and informed them that they were intoxicated and that they (sic) were banned from the hotel. The offenders were requested to leave the premises by him. They walked up the stairs towards the front door of the hotel. As they approached the front door, yet still inside the hotel, one of the Robinson brothers said, “You motherfucker, you stupid Russian, what’s your problem, what do you have against my cousin”. As this was said that Robinson person pointed to Bertram. The security officer replied, “Guys, just go, just go”. The offenders continued to abuse Mandic and questioned their ejection from the premises. One offender was mimicking Mandic’s accent.

10. At or about the footpath entrance of the hotel both Mandic and offenders continued to abuse each other. One of the offenders commenced to re-enter the premises and was pushed outside again. While the argument continued Miss Karen Manning, the bar manager, endeavoured to come between Mandic and the offenders saying words to the effect of, “Ivan, you walk away”. That remark was addressed to Mandic, and “You guys go”, that remark was addressed to the offenders. She then observed spittle flying towards the offenders, which had come from the direction of Mandic. One or more than one of the offenders said words to the effect of, “You fucking spat at us”. No one else was in the immediate vicinity.

11. The offenders continued to accuse Mandic of spitting at them and they re-entered the hotel. The three offenders commenced to punch Mandic on numerous occasions to the head and body. Mandic picked up a bar stool to protect himself and place distance between himself and the offenders. The offenders, now five metres away, picked up bar stools and threw them at Mandic although none struck him. Mandic dropped the stool from his hands and moved away from the offenders. Meanwhile Miss Manning called out to a female employee for the police to be contacted.

12. The three offenders then left the hotel. They stood near the entrance on a footpath. They abused and threatened the security officer but remained on the footpath for about a minute until they walked in a westerly direction along Darcy Street towards the Church Street Mall. The security officer continued to observe them from the front door of the hotel. They stood outside Hungry Jacks restaurant located on the corner of Darcy and the Church Street Mall for some five minutes.

13. They then walked along Church Street Mall and approached Alan Dews sitting on a bench opposite Christopher’s jewellery store. Bertram tapped Dews on his right shoulder asking for a cigarette. Phillip Robinson and Frank Robinson stood behind Bertram. Upon his shoulder being tapped Dews removed a set of headphones he was wearing and Bertram repeated, “You got a spare smoke buddy?” Dews replied, “Smokes don’t come in spares, champion, they come in packs”. Bertram’s response was to kick Dews to the right side of his head. Frank Robinson approached Dews and requested a cigarette. Dews handed Robinson the cigarette he was then smoking. One of the offenders then demanded more cigarettes. Dews replied he did not have any more.

14. Dews was then kicked to the right side of his face by one of the Robinson boys. Dews then placed both his hands in front of his face hoping to protect himself. Robinson picked up Dews and threw him back into the bench he had been sitting on. Dews reacted by jumping up and grabbing Bertram and pushing him to the ground. As Dews lay on top of Bertram the Robinson brothers began to kick and punch Dews to the upper body and head. Moments later Dews was able to stand. As soon as he stood he felt one of the offenders strike him in the middle of the back with his own skateboard. He fell face to the ground. He then heard his skateboard and something else drop to the ground. That something else turned out to be his backpack. Dews attempted to stand, he saw his mobile phone in the possession of one of the Robinson brothers. He requested the return of the phone and it was returned to him. The Robinsons then walked in a northerly direction along Church Street Mall.

15. Bertram approached Dews and said, “You’re lucky I’m a nice guy, I could have stomped your head in but I decided to let you live and you are lucky you are a small weak cunt”. Bertram then walked in the same direction as the Robinsons. Dews walked towards the Parramatta Hotel. On arriving at the hotel he was seen to be bleeding from his left ear. Some time later police arrived. Dews provided them with a description of the incident and a description of the offenders.

16. Shortly after police were patrolling Church Street Mall and they observed the offenders again outside Hungry Jacks. Police spoke to them and as they did so Dews approached and identified the three persons as being responsible for the assault upon him. They were arrested and conveyed to Parramatta Police Station.

17. During an electronic interview Frank Robinson admitted to being in the company of the co-offenders and involved in the incident at Hotel Parramatta. Phillip Robinson admitted being in the company of the co­offenders and involved in the incident inside the Hotel Parramatta including arming himself with a bar stool and throwing it. In his interview Phillip Robinson implicated the others as having assaulted Dews in Church Street Mall. Bertram declined to be interviewed as was his right and nothing adverse will be held against him for that. Police outlined the allegations to him. He conceded he had been at the Hotel Parramatta with the co­offenders but denied assaulting anyone.

18. As a consequence of the assault Mandic suffered soreness and swelling to the back of his head, pain to his left cheek, pain between his left ring finger and little finger, pain to the right side, hand lower back.

19. Alan Dews as a consequence of the assault suffered soreness to his back, left knee, head and ribs. He also suffered a cut or an abrasion to his left ear.

20. During the interaction with Mandic I am satisfied each offender sought with his aggression to comfort and support his co-offenders. The facts do not specify who struck Mandic where or who threw the chairs at him other than the admission I have just referred to. Each offender in comfort and supporting his co-offender in attack upon Mandic was aligned in a common purpose with the other.

21. During submission Mr Vertigan, solicitor for Bertram, sought to distinguish Bertram’s role from the other two arguing the evidence did not establish his involvement in any assault the others undertook to rescue him from Dews who had jumped upon him. Further he claimed the use of the skateboard as a weapon to strike Dews could not be sheeted home to his client’s criminality. There is no reason to think the common purpose did not encompass some forethought of at least the possibility that one of their number would at some stage be in more strife that he could handle and that the other two would have to come that offender’s rescue.

22. The earlier episode against Mandic demonstrated use of wooden weapons was well within the contemplation of the offenders. Given the closeness of the two incidents there is nothing to suggest a change of attitude by his client when the only weapon apparently available was the skateboard. I am satisfied each offender shares joint responsibility for the striking of Alan Dews with the skateboard.

Objective Criminality.

23. These assaults constitute serious breaches of the peace, which the law recognises as a fundamental entitlement of every resident and citizen. Assaults upon the integrity of a person constitute criminal trespass against the person and therefore breaches of the peace that the criminal law in particular has been harnessed to uphold.

24. The criminal law has long recognised the dangers to the peace I talk about at the hands of a mob. Long associated with lawlessness is the mob mentality. Be it a gang or be it a mob, the use of numbers to achieve unlawful ends has always been recognised by the criminal law as a circumstance of aggravation. In this case that circumstance of aggravation is to be measured by an increase in the maximum penalty for this offence of two years, thereby uplifting the maximum penalty to one of seven years.

25. There are other features of aggravation. In respect of the charges associated with the security officer at the hotel two of these offenders had previously been banned from the premises. It is a ban those two should have respected. They did not. Regrettably the evidence does not disclose the identity of the two previously banned. Thus while it be a circumstance of aggravation I am unable to sheet it home to any offender. I am satisfied indeed it is the case of all that each was well affected by alcohol. I am satisfied Mandic acted reasonably in requesting them to leave the premises on account of their intoxication. Thereafter the licence of each to enter had been terminated. It was incumbent upon all of them to leave peacefully. They apparently commenced to leave peacefully, but as they approached the door their exit was marked by offensive abuse, particularly by the use of the word “Motherfucker” and racial based taunting.

26. While I am satisfied their offending was not motivated by racism even the use of taunts such as mimicking a foreign accent or referring to one’s national identity in a derogatory way is based upon racism and as such constitutes and aggravating feature. Not all aggravating features are of equal heinousness. Where an offence is motivated by racism then that display of racism constitutes a powerful feature of aggravation.

27. I am satisfied the racial taunting played some part in Mandic’s offensive response. All defendants rely upon what they claim was a provocation that was a consequence of Mandic’s spittle being directed towards them. I am satisfied Mandic spat towards them. There is nothing in the evidence that suggests any of the spittle landed on any of them. As best I can discern the facts the offenders were outside the pub when spat at. Mandic was either just in the pub when he spat or retreated into the pub immediately after.

28. In any event the three offenders unlawfully entered into the pub chasing him. Their entry into the pub in those circumstances was an aggravating feature, they had no right to be there.

29. The assault was to the head as well as to the body. The head is a particularly vulnerable part of the body. It houses the eyes and brain, both organs susceptible to or of traumatic injury.

30. Thereafter the offenders used bar stools to assist in their assault. The use of any implement must aggravate the criminality of the offence. My own view is that throwing the bar stools is not as vicious as holding it and wielding it as a weapon but the offences criminality is none the less aggravated.

31. The offence against Mandic was an offence against a person who was tasked with maintaining the good order in the precincts of the pub. Whilst it may be true publicans use security staff to protect their property as well they also, that is security staff also fulfil an important responsibility owed by the publican of maintaining good order about the precincts of the pub. While security staff, while in performance of the public and civic responsibility are not peace officers, such as police officers, nonetheless it seems to me to attack them is an aggravating feature.

32. The second offence was against the victim Dews. It was a more serious offence than the first. Dews is described by Bertram as small, little and weak. Another offender is said to have thrown him back onto the seat. I have no reason to doubt Bertram’s description. It does not appear to have been contested by any of the defence. I have already noted each of the defendants appears as athletic. While the evidence is not specific, the cases have been run on the proposition, and I have inferred that, Dews was alone. Small, little, weak and alone, he must have presented as a vulnerable victim against three attackers. The striking of Dews by Bertram could not have been provoked by his comment. The attack was about a refusal by Dews to supply a smoke. There is nothing to suggest that Dews’ response to Bertram was other than an attempt at repartee or humour. Bertram’s loss of total tolerance is demonstrated by his kicking. While I have some difficulty picturing that scene the use of the foot is regarded generally as more obnoxious than the use of a hand or fist.

33. Frank Robinson next sought a cigarette. He was handed the cigarette Dews was smoking. The third request was made for further cigarettes. Dews replied he had none. There is no evidence to suggest he was not telling the truth and some evidence, namely his surrender of the half smoked cigarette to suggest he was truthful. In any event he was kicked to the face by one of the Robinsons. Thereafter Dews sought to protect himself. The assault that then followed has been detailed in the facts. It appears more ferocious than the earlier assault as it involved kicking as well as punching. Again the head was targeted and I repeat the comments I earlier made about the head. The taking of the phone caused unnecessary concern for Dews. Although that concern was no doubt alleviated upon its return. Bertram’s final remarks to Dews were belittling and patronising. The injuries to each victim have been recorded in the facts. Certainly they qualify as actual bodily harm. On analysis they can best be described as abrasions, pain, bruising and soft tissue injury. While they are not minimal, more severe injuries could have been inflicted that would still fall below the appellation “grievous bodily harm”. Below grievous bodily harm is only covered by the term actual bodily harm. These injuries would have been resolved fairly quickly. There is no evidence of any need for medical intervention.

34. Neither offence was planned. Each was impulsive and opportunistic. There is some close temporal relationship between the first and second offences in terms of time, place, state of inebriation of the offenders, mood and in the presence of the same co-offenders.

35. The second assault was broken off without any intervention of any third party. The first assault was broken off when Miss Manning made clear the police were being called. Again once the punching began it would appear she did not thereafter intervene other than to indicate she was calling the police.

36. The offences were committed when each offender was well affected by alcohol. It is more probable than not that the executive functions of the brain of each was compromised by quantities of alcohol consumed. Judgment, reasoning and comprehension functioning would have been impaired. Normal social inhibitions would also have been functioning poorly. The impact of alcohol however pulls the sentencing discretion in two ways. In one sense the criminality of the offending is lessening because of the compromised mental functioning. But where the presence of alcohol is part of a consistent pattern of alcohol abuse, then the rehabilitation prospects of those offenders are seriously diminished impacting adversely on the offender’s sentencing outcome, (compare R v Engert (1995) 84 A CrimR 67).

37. Each of these offences is sufficiently serious as to call for terms of imprisonment. Each offender comes before the Court bail refused. Nonetheless I am satisfied full time incarceration would have been required for the second offence and for the totality of criminality.

Subjective features.

38. I turn now to the subjective factors of each offender. I am both entitled and required to do that. Not only am I sentencing for the criminal offence but I am also sentencing each offender for it. Each offender coming before the court varies from other offenders who stand or have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of these offences by these offenders or some reason why a more or less sentencing outcome is appropriate.

39. I will start with Shane Bertram.

Background and personal relationship - Shane Bertram

40. Bertram is a nineteen- year old Aborigine. He will turn twenty in March next year. He is the fourth eldest of six children, two sisters, and three brothers. He lived in a home of weekend alcohol abuse and domestic violence. He appears to acknowledge physical violence used upon him and his siblings occasionally as a most severe form of punishment.

Education skills and employment - Bertram

41. He attended local schools in Parramatta. His primary schooling appears to have been successful. However his transition to secondary schooling was problematic. At secondary schooling level he associated with negative peers. He commended truanting, was suspended on more than one occasion and expelled in Year Eight. Thereafter he was assigned to a new school targeting, as best I can tell, children with behavioural difficulties. He left that school because he had lost interest and motivation. He has no formal education beyond Year Eight. He persisted in playing rugby league at school and club level until the age of seventeen. Remember that would only be two years ago.

42. Bertram has little employment history six months as a bricklayer, I suspect he means as a brickies labourer. Bricklaying is a recognised tradesman’s job requiring a trade certificate. I pause to say that in the hope that he may consider it as an occupation. He also worked completing container repairs, although what skills were involved in that task I do not know, but suspect perhaps, welding. Again a certificate trade course. One it seems to me also open to him.

General health - Bertram

43. As far as one can tell from appearance Shane Bertram appears to be a fit, strong, healthy, athletic nineteen- year old man. As I say he appears to have played rugby league up until two years ago. He reports having a broken jaw occasioned when struck by a baseball bat three or four years ago. He has severed tendons of his right forearm as a result of punching a window, no doubt when he was both angry and drunk. Otherwise he has no present complaints as to his physical fitness.

Mental health issues - Bertram

44. There is a personality profile compiled by Miss Emma Collins, a clinical psychologist, tendered by the defence. In the course of testing she found him to be in the bottom three per cent of intelligence but felt that was an underestimate because he rushed his responses. Miss Collins felt his intellectual abilities to be higher than the scores indicated. She felt he was borderline/low average range as being closer to the mark. Other testing disclosed he was prone to anger, may have difficulties in interpersonal relationships and some traumatic memories. Although the cause of those traumatic memories does not appear to have been disclosed in any fulsome way, regrettably in my view.

45. There were some mildly antisocial features, which she felt needed to be a focus of supervision. Elsewhere Miss Collins spoke of an escalating antisocial trajectory to date. All that being said there was however no specific diagnosed mental health condition arising from her testing.

Alcohol and drugs – Bertram

46. Bertram was experimenting with alcohol and cannabis during his first year of high school. Six months prior to his arrest his drug abuse had escalated. There was also an escalation of alcohol abuse. His drugs of choice are cannabis and amphetamine. He was consuming alcohol regularly at sixteen, drinking daily or at least every second day thereafter. His daily consumption he puts at twelve to eighteen beers. His cannabis use commenced aged thirteen and graduated to daily use by sixteen. He has used amphetamine, crystal methamphetamine, both of which regularly.

47. This pattern of drug and alcohol abuse continued until his arrest and incarceration. He appears more concerned about his alcohol abuse than his drug abuse. From my point of view his alcohol abuse and cannabis abuse are alarming and his abuse of other drugs is of great concern. I made the point, I think, during submissions that cannabis in particular can have as a side affect aggression. Emma Collins was concerned that his gambling could be heading towards an impulse disorder. Her analysis of the symptoms does not establish that condition yet.

Character and criminal history - Bertram

48. Shane Bertram is a nineteen- year old indigenous male. He is hardly old enough to have developed mature character traits. His upbringing has exposed him to violence as a male response to irritations. It would appear he has learnt that response only to apply it in criminal behaviour. He has skills in rugby league and one senses has satisfaction in playing the game. His alcohol and drug abuse distracted him from developing his skills, reputation and perhaps career in sport. He has accepted a position of responsibility whilst in custody, namely that of chapel sweeper, a position which involves a medium level of trust and requires an ability to work unsupervised. The Chaplain at the Parramatta Correctional Centre says in a reference, “He has fulfilled his duties, is polite, helpful and well mannered”.

49. His prior criminal convictions include Children and Local Court matters but no District Court matters. In November 2005 he was dealt with for enter vehicle without consent. He has goods in custody in the Lidcombe Children’s Court and in the Parramatta Local Court an assault occasion actual bodily harm for which he appears to have been imprisoned for four months. In September 2006 he was given a twelve month bond for maliciously destroy property with a condition relating to alcohol rehabilitation. At the same time there were also offences against peace officers. There is offensive behaviour.

50. An overview of his criminal antecedents reinforces the impression that his criminal conduct is related to his alcohol and drug abuse. What is not disclosed in the evidence is what are the causes of his alcohol and drug abuse. No doubt that may well be related to whatever it is that relates to the symptom of post- traumatic stress. There is a worrying trend, the gradual escalation of the seriousness of the offending and the consequential increase, custodial sentence being called for on each occasion.

51. His character assessment and criminal history are beginning to suggest that the skills and the abilities he had are beginning to be lost in a morass of alcohol and drug abuse.

Time in custody - Bertram

52. Prior to commencing these remarks it was established that he spent two days in custody on 10 and 11 November 2006, thereafter he was bailed.At some point, unclear on the evidence before me, he was rearrested and sentenced to four months imprisonment. That sentence was backdated to 21 November 2006 and expired on 22 March 2007. I must accept that the magistrate had good grounds for backdating it to 21 November. The principle of totality requires some concurrency of sentence and some accumulation. I will date the sentence I impose from 23 January 2007 making it a two-month cumulative and two-month concurrent sentence.

Attitude to the offence - Bertram

53. The offender accepted the police facts, he blamed his alcohol consumption, claiming alcohol makes him reactive and on occasion aggressive. He expressed what Emma Collins described as remorse for his conduct and described the impact his behaviour had upon his own and the victim’s family. Two points need to be made. Firstly as I said earlier, blaming the alcohol is a cop out because many people drink to excess without becoming violent. It is important that he discover and explore what it is that causes him to be violent when he drinks. It is not the alcohol but some anger or learned behaviour that floats through the alcohol to the surface, as he becomes less constrained by normal social inhibitions. Secondly, he did not give evidence. It is unclear to me how Emma Collins obtained this information. It is not from tests it is likely to have been from questions and possibly leading questions at that. At the time of this offending Bertram was on bail for a similar offence committed in July 2006. He was also on section 9 bond imposed less than two weeks before this offending. His commission of these offences therefore are aggravated by his failure to be of good behaviour in circumstances where the court had imposed such a condition as a precursor to his being released on bail and on a bond.

Prospect of rehabilitation - Bertram

· This offenders prospects of rehabilitation must be assessed as clouded.

· He appears to have little and simplistic insight into the offending conduct and it’s causes.
· At the time of his offending he was on section 9 bond that had been imposed one month before.
· And bail also a bit more than a month before.
· He has entrenched alcohol and drug problems, which are not yet addressed in custody or in the community.
· The fact that he has committed offences whilst on bail and a bond suggests court procedures have little impact upon his behaviour.
· His associates appear to have a negative influence upon him.
· There is no history of prior rehabilitation attempts.
· He appears to abandon interests such as rugby league in favour of drug and alcohol.

54. On the other hand there are some positive rehabilitation factors.

· He has used his custody time productively in obtaining a job as sweeper, focusing on courses, linking himself back in to Aboriginal culture and some vocational related courses.
· He seems to recognise the link between alcohol consumption and his offending conduct.
· He appears to have some skills in sport that may be a means of widening his social contacts and extending his capacity to enjoy himself in a healthy way.
· He enjoys good health.

55. I turn now to Phillip Robinson.

Background and Personal Relationships

56. He was born in October 1982. At the time of this offence he had turned twenty-four. He is now twenty-five. His family emigrated from New Zealand to Australia when he was thirteen. He is Maori. His father was a heavy drinker, resorted to harsh physical punishment as a tool to impose discipline. There was also domestic violence focused on his mother leading to a breakdown from the parent’s marriage. As irony would have it both he and his brother left New Zealand to be away from the impact of alcohol and drugs on the community in which they were living. This offender has had little contact with his father since 2003. He is close to his mother and siblings including the co-offender, Frank Robinson. He appears well supported by his mother who visits him regularly in prison. Other family members also appear to support him.

57. He has a six- year old son from a prior long- term relationship. He provides care for this boy in the community. His reputation within the family is as a caring considerate father. The ex-partner continues to support him.

Education skills and vocational employment – Phillip Robinson

58. The offender left school aged 14. He had completed Year Seven. He gained limited literacy skills. He has frequently truanted. His employment history is primarily as a casual unskilled worker. His past working experience includes mowing lawns and working in the demolition industry. It is said by Probation and Parole he had secured permanent employment in the demolition industry prior to his arrest.

General health Phillip Robinson

59. He is a young man tending towards a stocky build. From his general appearance he presents as being in good physical health.

Mental health - Phillip Robinson

60. He is described by Probation and Parole as having anger management problems engendered by childhood experiences. Otherwise there is no material in evidence upon which any assessment of mental health issues either favourable or unfavourable can be made.

Drug and alcohol issues - Phillip Robinson

61. The offender has a history of heavy alcohol use both as a juvenile and adult. He is a regular user of cannabis, a drug frequently associated with violent behaviour as a side effect. He claimed to Probation and Parole he had reduced his alcohol consumption to one to two nights fortnightly. Although on this occasion which was a Thursday night, Friday morning he had consumed substantial quantities of alcohol to a point of inebriation. How he was hoping to attend work the following day is a mystery.

62. In his last custody and again in this he has worked on drug and alcohol programs. He assesses himself as having improved during his last post release period. I am prepared to accept that.

Attitude to the offence - Phillip Robinson

63. He accepts police facts. He expressed regret and was said by Probation and Parole to have demonstrated a high degree of victim empathy. He claims however his role in the offending conduct has been overstated.

Character and criminal antecedents - Phillip Robinson

64. One gains a sense from the Probation and Parole report that Phillip Robinson has begun to address his rehabilitation issues. He has used his custody on two occasions to revisit alcohol and drug programs. When last on release he found full time employment. He has good qualities as a father. However his criminal antecedents disclose two serious offences of violence in his past including assault occasioning actual bodily harm and aggravated robbery with wounding. He was on parole for this offence when the two offences before the Court were committed. He had less than a month of a two and a half year parole to complete when he re-offended. It is noted his commission of the offence whilst on parole is a serious breach of the expected good behaviour that was a pre-condition of his release on liberty to serve the balance of his sentence in the community. His breach of parole aggravates his criminality in regard to each of these offences.

Rehabilitation prospects - Phillip Robinson

65. Rehabilitation prospects are dependant upon this offender’s future attitude to alcohol, drugs and whatever is driving his alcohol and drug abuse. Should he have the courage and self- discipline to deal with those matters his rehabilitation prospects would be strong. He has strong family support although whether it is targeted towards his rehabilitation is unclear and I suspect not. At the time of his offending conduct he was working in demolition, an important rehabilitation indicator. It is important he obtain employment as soon as possible upon release. Self- image, an adequate income stream and a central structure to daily life flow from regular employment. At twenty-five he is still young, hopefully he is gaining in maturity, reaching an age where he can exercise self discipline when irritated as an option to avoiding subsequent imprisonment.

Custodial history - Phillip Robinson
66. This offender was arrested on the 10 November 2007. He has been in custody since that time. His parole was revoked on 10 November 2006. That revocation was backdated to 3 October 2006. The reasons for the revocation were expressed as breach of conditions;

4(a), fail to report to supervising officer,

4(b), failed to reside at an address agreed upon and

10, fail to seek assistance in controlling his drug and/or alcohol abuse.

67. It will be seen those breaches have nothing to do with this offence. The conviction on this offence will constitute a further breach. That breach will be considered by the Probation and Parole Board on 18 January next. An issue arises as to when this offender’s sentence should date from. In my view it should date from a date on which he was prepared to accept responsibility for his criminality associated with these events. That would appear to be a date in the latter half of February this year. Exhibited before me is a letter directed to the Office of the DPP noting a refusal to accept a plea to affray (a more serious offence than these) and assault occasion actual bodily harm which I take to mean in company in full discharge of the then charges. I intend to date this sentence from 1 March 2007. That date makes some allowance for totality as well as for the fact that he accepted responsibility for his offending at about that time. I am also motivated by what I understand to be the policy implications to be found in section 47(5) of the
Crime Sentencing Procedure Act 1989.

68. I come now to the subjective features for Frank Robinson.

69. Personal circumstances and background.

70. Frank Robinson was born in New Zealand, his parents are Maori. He remains a New Zealand citizen. He emigrated to Australia at the age of eleven. As with his brother it was the family’s decision to remove themselves from heavy drinking and violence in the local community. His father was a heavy drinker. There was domestic violence in the family directed towards the mother and towards the children. Shortly after his parents came to Australia they separated, the two brothers remaining with their mother. He continues to be close to his mother and like his brother has not seen his father for a couple of years.

71. He first became a father at the age of fifteen. His daughter is now eight. He no longer has contact with that child’s mother but sees his daughter regularly through contact visits arranged by his own mother. He has a two- year old son to another lady. She is no longer in a relationship with him but continues to be friendly towards him. He sees his son regularly. He claims to have paid regular child maintenance for both children since they were born. He regrets the negative impact his offending behaviour will have upon his children.

Education skills and employment – Frank Robinson

72. He was educated to year eight level leaving school to obtain employment when he became aware he was to become a father. He has been employed for the majority of his nine years since leaving school mainly as a casual worker doing labouring jobs in the construction industry. In the eight months prior to his incarceration he too was working full time permanent employment as a warehouse assistant, again a positive rehabilitation indicator. He says he prefers to work whether in gaol or in the community.

General health - Frank Robinson

73. As with the other two he appears to be fit, strong, athletic and healthy. On my calculation he is twenty­three years old.

Mental health - Frank Robinson

74. There is no psychological or psychiatric report before the Court. There is nothing in evidence before me to suggest the presence of any psychological or psychiatric issues that would impact adversely on his sentencing.

Alcohol and drugs - Frank Robinson

75. He commenced consuming alcohol on weekends whilst still at school aged fourteen. When he began working at fifteen he increased his drinking to seven days weekly including heavy binge drinking on the weekends. In the twelve months prior to his incarceration he was again drinking seven days a week becoming extremely intoxicated on any four of them. On the day of the offence he had commenced drinking at 1pm. If he was working full time it would seem he must have been drinking at work. He consumed over forty standard drinks prior to the commission of the current offence. He perceives himself to be a problem drinker and he is correct in so perceiving. He says he cannot cease drinking once he has started. If he cannot learn strategies for that there is only one solution and that is not to drink at all.

76. In many indigenous communities including our own Aboriginal community per one thousand people there are more indigenous people who do not drink at all than white persons in one thousand whites. Aa fact not as well known in the indigenous communities as it should be; that is there are a greater number of abstainers in the indigenous community pro rata than there are in the white community.

77. This offender also has a history of drug abuse, having used cannabis, cocaine, amphetamines and ecstasy on a regular basis since fifteen. His main drug of choice yet again is cannabis, no doubt thinking it relaxes him, which it may do for the moment but adding aggression as a side effect. He has been taking two ecstasy pills twice monthly since age 16 and amphetamine on three occasions in the twelve months prior to his offending.

Character and criminal history – Frank Robinson

78. This is a young man who appears to have attempted to use his time in custody productively. I will return to this shortly. He has shown some responsibility towards his children by continuing to support them financially. Like his brother he appears to have a fairly strong work ethic. That is to his credit. He clearly has problems though with alcohol and cannabis and to a lesser extent the other drugs. His criminal history is a worry. In 2001 in Bidura Children’s Court he was before that court for offences he committed in June of that year of robbery in company. There were three of them on my count. On 16 January 2002 he was charged with larceny. On 29 June 2002 there is an offence of maliciously destroy or damage property. In February 2004 he has a mid range PCA and driving on the road whilst suspended. He has at the same time a drive a vehicle recklessly or in a speed or manner dangerous to the public. In May 2004 he was charged with making a statement, which was false or misleading and receiving stolen property. But for the earlier robberies his record would not otherwise be a bad one. To date all of his offending has been dealt with by courts having summary jurisdiction; that is Courts dealing with lesser offences than this court normally deals with.

79. I said he had used his time in custody well. He has been incarcerated in the main section of Parklea Correctional Centre. He has not incurred any institutional misconduct. He has been employed in the furniture workshop for the past eleven months. He has received positive reports of his work performance from his overseer. He has been described by his wing officer as a quiet inmate who gets on well with both other inmates and staff. Whilst he has been in custody he has taken advantage of literacy classes and attended a short drug and alcohol program. That was a four- week drug and alcohol addiction course and as a result of doing that he was awarded a certificate.

Attitude to the offence - Frank Robinson

80. He claims and it may well be right that he was intoxicated to such an extent on the night that he can remember little about the events. Once informed of what he had done he said he was ashamed, very sorry for his victims, they did not deserve what they got. Police on the other hand maintain he was not heavily intoxicated and was in control of his actions on the night. My own view is that he probably was well affected by alcohol.

81. This offender has been in continuous custody since his arrest, his sentence will be backdated to 10 November last year. I now come to dealing generally with all three again.

Plea status

82. The pleas were entered on arraignment. It would appear though that all three offenders were willing to plead to these offences prior to committal for trial. An issue of allegation of robbery however caused the prosecution to hesitate in accepting that plea. That issue was resolved in the offenders favour prior to arraignment. Their pleas are a demonstration of acceptance to their criminal responsibility and I accept in some cases evidence of contrition. Subject to my remarks earlier that one of them was a little simplistic but no doubt still regrets the way he treated these two people.

Setting the sentence/ Deterrence.

83. Theses are offences in which deterrence must play a part. It seems to me that sentences of imprisonment and the shutting of the prison gate by themselves are powerful forms of deterrence.

Discount for the pleas of guilty

84. I intend to give each of the offenders a discount in the order of twenty per cent for their pleas of guilty. Discounts are given in recognition of the utilitarian value of a plea. That utilitarian value relates to the time saved in court by virtue of the plea, to the resources freed up so that other people can have access to legal aid and the prosecution can turn it’s attention to other cases. Utilitarian value also relates to the very strong likelihood that there will be no appeal on the question of guilt in relation to matters to which offenders have pleaded guilty. It is important that the community see that those who are responsible for crime are punished for it and a plea of guilty has that utilitarian value as well.

85. Finally a plea of guilty is an endorsement of the capacity and function of the police in investigating crime and bringing those responsible for crime before the Court. As I say in the circumstances I am proposing a discount of twenty per cent. But for one issue it seems to me that all of the offenders should be treated equally. The single issue, which distinguishes two of the offenders from the third is the aggravating feature that two of them committed this offence whilst they were on conditional liberty. That being so in respect of the two offenders whose offences are more aggravated than the other an additional period of three months parole will be attached to their sentences.

86. For the offence of assault occasion actual bodily harm upon Mandic the sentence that I propose to impose was one of eight months imprisonment, twenty per cent of that becomes an impossible figure to calculate actually but it is 1.6 months which I make one and a half months, leaving a sentence of six and a half months.

87. In respect of the sentence of assault occasion actual bodily harm upon Dews the sentence I intend to impose but for the plea of guilty was one of fifteen months. Twenty per cent off that makes it a sentence of twelve months. I intend that the non-parole period for that offence will be one of nine months and the balance of term will be one of three months.

88. In respect of the offender Frank Robinson there will not be a balance of term, it will be a fixed term. I intend to accumulate the sentences and have them partly concurrent so that the overall non-parole period as it were will be one of twelve months imprisonment. Those sentences will date from the day that I have indicated.

89. Now we come to the sentencing exercise. Gentlemen of the bar table make sure that I get this right if you would please.

90. Mr Robinson, even though your sentence will have expired by the time I give it to you, you will still need to go down into custody to be signed out. My own view is that the sentence is finished and you do not have to if you do not wish to, but it will serve the administration of criminal justice so far as your custodial officers are concerned, if you go down and sign out. They have no warrant to hold you and if things become uncomfortable or you are not treated civilly you can ask to be released immediately. My experience is prisoners such as you are treated civilly and have no cause really to ask to be released other than perhaps a bit of claustrophobia. But you are not required to remain in custody but I invite you to do so to assist those officers in the execution of their duty. He is not to be put in a cell while he is downstairs.

Formal Orders

91. If each of you would stand. If I find a copy of the court attendance notices I can do this relatively quickly.

92. Phillip Conan Robinson, Frank John Robinson and Shane Bertram, each of you is convicted that you on Friday 10 November assaulted Ivan Mandic occasioning to him actual bodily harm in circumstances of aggravation in that each of you was in the company of the others. For that offence I sentence each of you to a term of six and a half months imprisonment, I will tell you in a moment each which day I will date it from .

93. You are also likewise convicted that you at about the same time and in the same place assaulted Alan Dews occasioning to him actual bodily harm in circumstances of aggravation in that each of you were still then in the company of the others. In respect of that offence I sentence you Frank Robinson to a fixed term of nine months imprisonment. As to the other two I sentence you to a non-parole period of nine months and a balance of term of three months. Those sentences will date three months after the last lot of sentences I gave you.

94. Mr Frank Robinson , your sentence will date from the date of your incarceration on 10 November 2006 and your first sentence will expire on 9 May 2007. Your second sentence will commence on 10 February 2007 and expired on 9 November last. You are entitled to be released forthwith. You may sit down.

95. Phillip Robinson , your first sentence will date from 1 March 2007 and will expire or did expire on 30 June 2007 - sorry withdraw that - expired on 30 September 2007. Your second sentence commences on 1 June 2007 and expires on 29 February 2008. Your balance of term will expire on 31 May 2008. I order your release for this offence on 29 February 2008. I will put that in simple language for you so that you understand. If the Parole Board releases you, you will otherwise be released on 29 February. If the Parole Board decide to keep you longer, I do not know whether they can or not, you will have to answer to them, not to me. But I have an order for your release on 29 February. It means the only difference is that if you commit an offence within that three- month period that you are on balance of term you are back in again.

96. Mr Bertram , your first sentence commences on 23 January 2007 and will expire on 22 July 2007. Your second sentence begins on 23 April 2007 and expires on 22 January next year. I order your release on 22 January next year. Your additional term will expire on 23 April 2008. Again you will be released on 22 January but if you commit any offence within the next three months you will be in breach of your parole and you will go back

97. Is there any other order I need to make Madam Crown.

WONG: No your Honour.