R v Raven Edwards
[2012] NSWDC 289
•30 November 2012
District Court
New South Wales
Medium Neutral Citation: R v Raven EDWARDS [2012] NSWDC 289 Decision date: 30 November 2012 Before: Cogswell SC DCJ Decision: For the offence of robbery in company sentence of 2 ½ years imprisonment, non-parole period of 1 year, balance of 1 ½ years. Compensation be paid to the victim.
Catchwords: CRIMINAL LAW - Particular offence - robbery in company - involved actual violence, minor injuries - vulnerable victim - passenger travelling alone on train at night - Sentence - relevant factors - criminal record - prior offences dealt with in Children's Court - offence committed while on probation - pre meditation - limited planning - spontaneous and dynamic incident - response to charges - plea of guilty at earliest opportunity - remorseful - letter to victim accepting full responsibility - nature and circumstances of offender -substance use disorder at time offence committed - reasonably good prospects of rehabilitation - using time in custody to study - Sentencing procedure - sentencing guidelines - many Henry factors present - special circumstances - offender just 18, first time in adult gaol, need for supervision and employment upon release - Form 1 taken into account. Legislation Cited: Crimes Act 1900 s 97(1). Cases Cited: R v Henry (1992) 28 NSWLR 348. Category: Sentence Parties: Regina (Crown)
Raven Edwards (Offender)Representation: Solicitors:
D. Paterson (Director of Public Prosecutions)
S. McLaughlin (Offender)
File Number(s): DC 2012/182241
REMARKS ON SENTENCE
This morning I am sentencing a young man named Raven Edwards. One night whilst he was very drunk and affected by drugs as well, he - with some others - attacked a man on a train and robbed him. I have to sentence him for the crime of robbery in company.
A judge in sentencing an offender has to take into account things such as how serious an example of the particular crime this offence was, as well as things personal to the offender such as his or her criminal record and personal background.
It is important to start with an appreciation of how serious the crime is, and a description of the offence.
The crime is called robbery in company. It is made into a crime by s 97(1) of the Crimes Act 1900. Parliament regards the crime as so serious that it has fixed a maximum of 20 years imprisonment to the offence.
What happened in this case is contained in a description in Exhibit A. As often happens these days, the movements of the offenders were detected by CCTV cameras before and after the crimes, so the summary which I have in front of me includes coloured photographs. One of the photographs was in fact taken by a bystander who knew that Mr Edwards had robbed the man on the train.
It all happened at about 8 o'clock on a Wednesday night 6 June earlier this year. Raven Edwards, who had just become an adult by turning 18 about 2 months earlier, went to the Kogarah Railway Station with two other young men. One of the young men was in fact under 18 and, therefore, regarded at law as a child rather than an adult. They got onto a train and found a man called Yi Zhang sitting in one of the vestibule areas. He was near the guard's compartment. The three young men stood in the middle of the vestibule area. There were no other passengers around. Raven Edwards sat down next to Mr Zhang, who was reading articles in Chinese on his mobile phone, which was an iPhone 4. The other two sat nearby. After some unsuccessful attempts at conversation Raven Edwards said "Give me your phone". Understandably, Mr Zhang said that he would not, but then what happened is that Raven Edwards became a criminal.
He grabbed the man's arm and tried to pull the phone away. The victim resisted, so Mr Edwards stood up and punched him in the head at least twice. Mr Zhang tried to get away but Mr Edwards grabbed him. The victim fell to the floor where Raven Edwards kicked him in the stomach. One of the others kicked him in the head and the neck. They grabbed his phone and his bag and ran out of the train at Hurstville. The CCTV footage shows one of them running up the stairs. Mr Edwards left the station but came back to see what was going on. He hid behind a ticket vending machine. He saw police speaking to one of the co-offenders. Someone took a photograph of him trying to hide.
He was not arrested on that day but 2 days later. Police obviously found out about his involvement and they turned up at his home and arrested him. He was interviewed by the police and frankly owned up to what he had done. There is a picture of Mr Zhang in Exhibit A which shows the grazing to his face and neck that he received from the assault. That is the crime that I am sentencing Mr Edwards for.
Mr Edwards does have a criminal record. It looks as though there are some offences which were dealt with in the Children's Court and he did not start offending until he was about 16. He has received good behaviour bonds for affray and trespass, but there are a number of serious break and enter offences on his record including aggravated break and enters. At first he got a probation order from the Children's Court, but he obviously breached that order and was called up and given a control order, which involves the young person being in custody. He has offences for shoplifting, possessing drugs and equipment needed to use or to take drugs.
Mr Edwards turned 18 on 31 March this year. He has been in an adult gaol since then. When he committed this crime he was still on a probation order which had been issued by the Children's Court. This is very relevant when a judge sentences a person because it means that they have used liberty which another court granted them instead of putting them in custody to commit a further crime.
There is a presentence report about Raven Edwards prepared by a Probation and Parole Officer with the Probation and Parole Service. The officer reviews his background. He came from New Zealand with his family when he was 4. Was suspended from school at the start of Year 9. He decided to go to TAFE to continue with Year 10 but discontinued after 6 weeks. He has had some work on and off. He started smoking cannabis on a daily basis and would drink regularly. The author of the report summarises the conclusion saying this -
"Mr Edwards has committed an act of violence against a member of the community whilst claiming to be heavily affected by alcohol. Whilst in custody he claimed he has had time to reflect on his behaviour and how it impacts on others. While it appears that his associates may be a contributing factor to his offending, it is considered that Mr Edwards must also develop greater control of his behaviour and substance use."
Ms S McLaughlin, who appeared for Raven Edwards, tendered a report from the consultant forensic psychiatrist Dr Richard Furst. He saw Mr Edwards in custody where Dr Furst works. Apparently he has been drinking regularly since he was 15 and started on cannabis at the same age. He started off on one gram a week but increased it to about three grams a week and then started using it daily. He said he was bored and had nothing else to do. He started drinking a lot more as well.
Dr Furst noted that Mr Edwards was remorseful for what he has done, which is an important factor for a judge to take into account. Dr Furst saw that he was a young man with low intellectual function, and he diagnosed him with what he called a substance use disorder related to his use of cannabis and alcohol. He thought that he possibly had a borderline intellectual functioning. He was affected by negative aspects of those he mixed with and by periods out of work. Dr Furst thought that it was likely "that his judgment was impaired to some degree by his level of intoxication and his substance dependence" when he committed the offence that I am sentencing him for. He recommended that he be referred to his local community health centre to help him work out his substance abuse issues and he also thought that a residential drug and alcohol rehabilitation centre may be able to assist and named a couple of those centres.
Ms McLaughlin also tendered a letter written by Raven Edwards to the victim of his assault in which he accepted full responsibility and expressed his sorrow for what had he done.
I should add that when I am sentencing Mr Edwards I have been asked by Mr Edwards and the prosecution to take into account in the sentence which I impose upon him for the robbery two other crimes that he has admitted committing. One is an attempted break and enter of a neighbour's house, and the other is possessing housebreaking instruments which is related to that crime. I will take those offences into account and I sign the form accordingly.
Ms McLaughlin called her client to give evidence yesterday. He had been living with his family - his parents and his mother at home. In fact his mother - the person he regards as his mother - is his aunt, but she has effectively brought him up since he was a child. He confirmed that everything he told Dr Furst was truthful and confirmed that he has been drinking since he was 15. When he drinks, he drinks a large amount of beer and was on about two or three grams of cannabis a day.
Being in an adult gaol, he said, was not a good place. It was horrible. He feels the restrictions on his movements. He is the youngest in the area where he is housed, but finds the other prisoners are good towards him. He has had no alcohol or drugs in custody and has had time to think about what he has done. He now realises that his use of alcohol and cannabis was a real problem in his life and brought about him being in gaol and committing the crime that he did against Mr Zhang.
Mr Edwards is using the time in custody to study. He is doing maths and history and science at Year 10 level. He would like to complete his School Certificate and then go back to TAFE. He is interested in studying science. He is putting a lot of effort into his studies.
His time in custody has changed his attitude and he realises he must not, as he says, "hang around people who cause trouble and dramas". He receives regular visits from his family and has also been doing some work in the metal shop in gaol.
Cross examined by Ms D Paterson for the Director of Public Prosecutions, he acknowledged the effect which drink has on his brain cells, and how dangerous it is for him physically, as well as affecting his bad behaviour. He also acknowledged the bad influence of the friends he was mixing with. He said that he needed good role models. He said now is the time for him to "grow up, mature, and look after" his family.
Ms McLaughlin provided me with some helpful written submissions. She acknowledged what the Court of Criminal Appeal has said about sentencing for cases of robbery in its guideline judgment in R v Henry (1992) 28 NSWLR 348. She pointed out that many of the factors which the Court of Criminal Appeal had in mind in Henry as representing a typical offender applied in her client's case, such as youth and no weapon and a limited degree of planning. She described the offence, in my opinion correctly, as being a spontaneous and dynamic incident. It involved actual violence and there was some minor injuries to the victim.
The victim was vulnerable, not in the sense of particular classes of victims such as those who operate service stations at night or convenience stores or taxi drivers, but he was vulnerable in the sense that he was a passenger alone in a particular part of the train travelling at night-time. The amount taken was relatively small.
Ms McLaughlin acknowledged the significance of the fact that her client was on conditional liberty under probation at the time. Her client had plead guilty at what Ms Paterson agreed was the earliest available opportunity, so that the effect of that - because of its assistance to the administration of justice - is that he will receive a discount of 25 per cent from the sentence which he would otherwise have received.
As Ms McLaughlin pointed out, his previous convictions do not involve matters of violence. She submitted that his prospects of rehabilitation were good and I would regard them as reasonably good. She provided some helpful statistics from the Judicial Commission about sentencing for these kinds of offences.
The seriousness of the break and enter and possess housebreaking implements was fairly low, and I accept that submission. Ms McLaughlin correctly conceded that there was no alternative but a full-time custodial sentence, but that there were circumstances for adjusting the normal ratio between the time spent in custody and the time spent on parole. Normally a person spends three quarters of an overall sentence in custody during what is called a non-parole period, and a quarter of the sentence on parole. Ms McLaughlin pointed out that there is reason in this case because of the client's youth and the first time that he is in an adult gaol and his needs for supervision and employment for adjusting that ratio in his favour. I agree with those submissions. She pointed out that her client has been in custody for five and a half months to date but part of that custody, if not all of it, has been bail refused, or serving of other sentences, including the control order.
Ms Paterson acknowledged the fact that the break and enter offence which I will take into account was not very serious, and that it seemed that Raven Edwards had embarked on something of a criminal spree since he was 16. All his other crimes have been dealt with by the Children's Court.
He was a young man who was vulnerable to the effects of alcohol and drugs and bad company in his life, but showed some insight into his situation. I agree with that submission. To my mind he did show some insight. She agreed that he is entitled to a discount of 25 per cent from the sentence he would otherwise receive.
Taking all these matters into account, I regard it an appropriate overall sentence of one of 4 years imprisonment this crime. One has to bear in mind that the maximum fixed by Parliament is 20 years. However because he has pleaded guilty at the earliest available opportunity and saved the justice system a lot of time and trouble, I will discount that to 3 years imprisonment.
Although I appreciate that I may be doing this calculation in the wrong order, I propose to reduce the sentence further because of his age to two and a half years in prison. That will be the sentence that I will finally impose: two and a half years imprisonment.
I regard an appropriate non-parole period as being one of 12 months. That means that the balance will be one and a half years. That is a very significant adjustment. Normally for a two and a half year sentence, the non-parole period should be about 22 months. In this case I have reduced it to 12 months. That is to allow him a lot of time on parole for the reasons that Ms McLaughlin has pointed out. It will enable him to continue his rehabilitation and to continue with his study and get employment. I also take into account that, given his age, the less time he spends in adult custody the better.
Although the sentence should really date from today, I am in fact going to date it from 6 June 2012, when he went into custody. This is another generous allowance in his favour. I should really date the sentencing back from today or at least 8 June last, because the time he has spent in custody since June has been because of other matters. But I am going to make that allowance because of his age.
HIS HONOUR: I am going to sentence you now, Raven Edwards.
I set a non-parole period for your sentence of 1 year, commencing on 8 June 2012 and expiring on 7 June 2013. The balance of the term is 18 months from 8 June 2013 to 7 December 2014. Under section 50 of the Crimes (Sentencing Procedure) Act 1999, I make an order directing your release on parole on 7 June 2013. The conditions of his parole are these:
(1) That he be of good behaviour;
(2) That he notify the Probation & Parole Service of any change in his residential address;
(3) That he attend court if summoned to do so; and
(4) That he accept supervision from the New South Wales Probation and Parole Service and comply with all their reasonable recommendations and directions, particularly regarding drug and alcohol treatment and anger management.
I direct compensation be paid to the victim of the offence by the offender in the sum of $160.
HIS HONOUR: You have got a two and a half year gaol sentence for what you did, do you understand?
OFFENDER: Yes.
HIS HONOUR: I have given the reasons. That is why judges have to give reasons for sending people to gaol. Normally if someone gets a two and a half year gaol sentence, they spend nearly 2 years of that in gaol and then they are out on parole. So normally you could expect to be in gaol for nearly another 12 months, do you understand?
OFFENDER: Yes.
HIS HONOUR: I have reduced that a lot in your case, but you are going to spend 12 months in gaol. I have dropped it by 10 months and that is to allow extra time for you to get on with your life and get some help, do you understand?
OFFENDER: Yes.
HIS HONOUR: I back-dated that to 8 June to when you were arrested and so it finally expires on 7 December 2014. That is when your sentence finishes. You will be released on 7 June, 2013. That is on parole. When you are on parole, you probably know from your probation - you have been on probation?
OFFENDER: Yes.
HIS HONOUR: You have got to stay out of the trouble. If you get into trouble any trouble again, you will be back before me, do you understand?
OFFENDER: Yes.
HIS HONOUR: If you change your residential address you have got to let Probation & Parole know and if you get a notice to attend court, you attend court. Do not get the police to be chasing you. The most important thing is to allow Probation and Parole to supervise you. Because you have been a child at law up to a few months ago and now you are a young adult, they know what they are doing. As I have said, you have got to comply with their recommendations and directions. In other words, you do as they say because they know what they are doing and particularly your drug and alcohol, and I know what you said yesterday, you are going stay away. When you get back in the community you will be tempted by that all again and you will be exposed to alcohol and drugs and you will need their help to stay away, do you understand that?
OFFENDER: Yes.
HIS HONOUR: The other thing is anger management, because it sounds as though you go off the rails when you are drinking and you get angry and go and bash people up. They have courses to help you get your life back together, so you do not have to try to do that alone. You will let them help you, do you understand that?
OFFENDER: Yes.
HIS HONOUR: It is up to you now. I think your chances are pretty good. So, finish your sentence and get on with your life.
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Decision last updated: 29 May 2013
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