R v Raymond Donley

[2008] NSWDC 82

CITATION:	R v Raymond Donley [2008] NSWDC 82
HEARING DATE(S):	27 March 2008 - 28 March 2008, 31 March 2008
EX TEMPORE JUDGMENT DATE:	31 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Imprisonment for two years, suspended and subject to supervison
CATCHWORDS:	Criminal Law - Sentencing - Attempted Robbery Whilst Armed - Offender 18 years old, of previous good character, exceptional personal circumstances - 1. Parity: co-offender sentenced to 3 years imprisonment, NPP 12 months. Held: current offender's criminality objectively less than co-offender's, and indicated the imposition of a lesser sentence - 2. Intoxication: offence committed when offender intoxicated after binge drinking. Practice of binge drinking triggered off by exceptional personal circumstances. Intoxication lowered offender's resistence to suggestions of co-offender. Held: Intoxication should be seen as a mitigating factor - Sewell v R (1981) 5 A Crim R 204 - R v Coleman (1990) 47 A Crim R 306 - 3. Custodial Sentence: as the maximum penalty for attempted armed robbery was the same as for armed robbery, the guideline judgment of R v Henry ought be considered. A question arose as to whether exceptional circumstances arose to depart from the imposition of a full-time custodial sentence. Held: exceptional circumstances existed such that a full-time custodial sentence ought not be imposed - R v Henry (1999) 46 NSWLR 346 - R v Thomson (2000) 49 NSWLR 383 - R v Govinden (1999) 106 A Crim R 314 - R v Metcalf [2000] NSWCCA 277 - 4. Alternative Sentencing Options: Held: it would be erroneous not to consider alternative sentencing options - R v Griggs (2000) 111 A Crim R 233. Held: a suspended sentence is a real punishment for an offence - R v JCE (2000) 120 A Crim R 18 - R v Foster (2001) 33 MVR 565 - R v Zamgias [2002] NSWCCA 17 - R v Laws (No. 2) (2000) 116 A Crim R 70 - 5. Sentence: imprisonment for two years, suspended and subject to supervision
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Sewell v R (1981) 5 A Crim R 204 R v Coleman (1990) 47 A Crim R 306 R v Henry (1999) 46 NSWLR 346 R v Thomson (2000) 49 NSWLR 383 R v Govinden (1999) 106 A Crim R 314 R v Metcalf [2000] NSWCCA 277 R v Griggs (2000) 111 A Crim R 233 R v JCE (2000) 120 A Crim R 18 R v Foster (2001) 33 MVR 565 R v Zamgias [2002] NSWCCA 17 R v Laws [No. 2] (2000) 116 A Crim R 70
PARTIES:	Regina Raymond Donley (Offender)
FILE NUMBER(S):	2007/12366
COUNSEL:	Mahamah for the Crown Croke for the Offender

JUDGMENT

1 HIS HONOUR: Raymond John Adam Donley appears before me for sentence as a consequence of adhering to a plea of guilty entered to a charge in the Local Court at Liverpool. The charge was that he on 7 March 2007 at Lurnea did attempt to rob Meng Sea Ly of certain property, to wit a sum of cash the property of Pizza Hut Pty Ltd whilst being armed with an offensive weapon namely a large knife or machete. The implement as far as I can glean from the photographic evidence before me was in fact a machete.

2 Not only was the Offender armed but he was also in company with Daniel Paul Wilson.

3 At approximately 3pm on Wednesday 7 March 2007 the Offender and his co-offender met each other at the co-offender’s residence in the suburb of Miller. They then went to the Miller Hotel and consumed alcoholic drinks. They then left the hotel and picked up the co-offender’s brother and drove to Campbelltown. Whilst travelling in the car, Daniel Wilson discussed the idea of committing a robbery with a knife in order to obtain money to lighten the financial hardship which he then thought himself to be suffering.

4 They arrived at Campbelltown at approximately 7pm. Wilson played a game of soccer and the Offender attended the Campbelltown Tennis Club for a poker competition. At approximately 9pm they returned to Wilson’s home unit at Miller. Whilst in the co-offender’s unit, there was a further discussion of robbing the Pizza Hut store located at Lurnea. Wilson armed himself with a machete which he kept in his bedroom and both the offenders left the unit on foot.

5 At approximately 10pm they arrived outside the Pizza Hut at Lurnea and concealed themselves in some bushes adjacent to the store waiting for members of the public to leave it. The two offenders then pulled the hoods of their jumpers over their heads to obscure their faces. Wilson removed the machete from his sleeve and carried it beside his body. Both then went towards the store. Wilson approached the counter.

6 It is clear from the photographic evidence before me that the present Offender did not enter the store by any great distance. Indeed the photographic evidence shows the present Offender as being astride the threshold of the store with one foot outside and with one foot inside, observing what was being done by Wilson. At all material times the present Offender remained at the door keeping a lookout. The only person present in the store at the relevant time was the store manager, Mr Meng Ly.

7 On seeing the co-offender and the present Offender, Mr Ly activated the hold-up alarm and ran from the store via the rear door. Wilson then jumped the counter and attempted to access the cash register to remove cash from it. Wilson was unable to open the cash drawer and both Wilson and the present Offender then ran from the store empty-handed.

8 Shortly after that police attended at the Pizza Hut at Lurnea and obviously made inquiries of the store manager and then began patrolling for suspects. The present Offender and his co-offender were sighted by police outside the Miller shops. Both the Offender and his co-offender then sought to run away but the Offender was apprehended by police and conveyed to Green Valley Police Station. The co-offender was more fleet of foot than the present Offender and managed to escape the police and run to an unknown location.

9 At the Green Valley Police Station, the Offender was introduced to the custody manager. His rights were read to and explained to him and he then participated in an electronic record of interview with a suspected person. He made full admissions to the police of his part in the present offence and told police that both he and his co-offender were in financial difficulties.

10 It is accepted that in that interview the Offender disclosed the identity of his co-offender which would have enabled the police to arrest the co-offender when they wished to. However before that was done, the co-offender presented himself to Green Valley Police Station and turned himself in and was subsequently arrested.

11 When Wilson was interviewed, he told police that he had been contemplating the idea of robbery over a number of days because of the financial hardship which he thought he was experiencing. He admitted that the machete that was used in this attempted robbery was his own. He told the police that after the attempted robbery he had thrown the machete away.

12 The first principle that I must apply is the principle of parity. The co-offender Daniel Paul Wilson has pleaded guilty to the same charge as the present Offender and has been sentenced by his Honour Judge Sides on 10 December 2007. His Honour set a head sentence of three years and a non-parole period of twelve months. In accordance with the principle of parity, I cannot sentence the present Offender to any greater term.

13 The present Offender shares, in many respects, common features with Daniel Paul Wilson.

14 Firstly, he pleaded guilty at the earliest available opportunity. Secondly, he has expressed remorse and contrition for his crime, and I accept that that contrition and remorse are genuine. It is clear from the evidence that Donley gave me that he was acutely aware of the terror which his activity may have struck in the victim of the attempted robbery and he has empathy for the plight of the victim.

15 Like Wilson, Donley also made frank admissions to the police of his part in the crime and another mitigating factor is that the early plea of guilty saved the victim the anxiety of awaiting a trial and giving evidence in it.

16 There is one further factor which applies to Donley that did not apply to Wilson. Donley cooperated with the police and identified his co-offender so that, had the co-offender not surrendered himself to police, the police could have arrested him and prosecuted him, and no doubt have turned to the Offender to give evidence against the co-offender. In other words, the present Offender, unlike his co-offender, gave assistance and cooperation to the police, which would have enabled the co-offender to be arrested had he not turned himself in.

17 All those factors indicate that a discount of nearly fifty percent should be available to the present Offender of any sentence that ought be passed upon him.

18 However, when I come to compare the criminality of the present Offender with the criminality of Wilson I find that there is a marked discrepancy and the criminality of Donley is less than that of his co-offender.

19 The idea for the armed robbery was Wilson’s. Wilson had been contemplating it for a number of days. It was Wilson who raised it with Donley. Secondly, it was Wilson who armed himself with the machete, which was the aggravating factor under s 97(1) of the Crimes Act 1900. It was Wilson, not Donley, who confronted Mr Ly, who jumped the counter and attempted the robbery. The Offender merely stood in the background and, to use the old Australian vernacular, played the cockatoo.

20 The Offender told me in his evidence on Friday that he did not wish to be there and I accept that evidence. I accept that he played a part in this attempted robbery reluctantly.

21 Looking at comparative criminality, the proper sentence to pass on Mr Donley ought be a lesser sentence than the one that has been passed upon Wilson. What comes to my mind is a head sentence of two and a half years and a non-parole period of nine months.

22 It must be remembered that the crime to which the Offender has pleaded guilty is a very serious one. That is reflected by the maximum penalty prescribed by Parliament, imprisonment for twenty years. However, the assault here is merely a putting of the victim in fear. Mr Meng Ly suffered no battery, to use the civil law expression, or to use the argot of the criminal law, did not suffer any bodily harm or wound.

23 The personal circumstances of the Offender excite sympathy. The Offender was born on 2 February 1989 and is currently nineteen years old. At the time of the offence now in question he was eighteen years and one month old. The co-offender Daniel Paul Wilson was three months older than the present Offender. Both at the time of the offence and the time of the passing of this sentence, the Offender is a young man.

24 The first part of the Probation and Parole Service pre-sentence report is in these terms:

“Mr Donley is eighteen years old and resides with his paternal aunt and uncle in the local area. Interview with the offender’s aunt indicates a warm, stable and supportive family environment.

Further discussions with Mr Donley’s aunt confirm that his childhood was marred by significant instability, characterised by violent domestic altercations perpetrated by his illicit drug-dependant mother. She further disclosed that following his parents’ separation at the age of eight, Mr Donley resided with his father before his father’s sudden decease two years later. Mr Donley reportedly lived for a short period with his mother, before residing permanently with his aunt and uncle.”

The only difference between that information and the evidence before me is that, immediately after his father’s unfortunate death, Donley went to reside with his aunt and uncle and it may be that he lived for a short period with his mother after the initial estrangement of his parents.

25 The Offender completed the Higher School Certificate in, I infer, 2006. At the time he was interviewed by the Probation and Parole Service on 17 September 2007 the Offender had sporadic employment in various positions, including as a labourer and a factory hand. When giving evidence to me the Offender said that he had only recently been retrenched from a job two weeks ago, the retrenchment being due to a downturn in work. The Offender was driving a truck delivering air conditioning units in the local area.

26 The Offender has before him two possible career paths. They are to play rugby league professionally or to obtain an apprenticeship in the building industry. According to both the Offender and his uncle, who gave sworn evidence, the Offender has a very promising career playing rugby league. However that career has been put on hold whilst the Offender awaits sentence.

27 The Offender is currently playing for a club at East Hills and seeks to try out to join the Bulldogs team playing in the Under 21 competition, the Jim Beam Cup.

28 The Offender does gym work on Mondays and Wednesdays and trains on Tuesdays and Thursdays, and obviously plays football at the weekend. Should the Offender not obtain a paid job as a rugby league player, he hopes to take up an apprenticeship.

29 There are no drug issues involved in the present matter, which is somewhat unusual. However, there is a factor of alcohol being involved in this crime.

30 The Offender’s uncle told me that he suspected that the Offender was starting to binge drink, to take alcohol whilst under age, shortly after the Offender visited his mother when his mother was seriously ill in hospital. The Offender’s uncle, Mr Edwin Connor, made the point that the Offender was then sixteen years old.

31 I in fact sentenced the Offender’s mother on 18 September 2007. There was no objection taken to my dealing with the current Offender.

32 In paragraph 31 of my reasons for judgment when passing sentence upon Kerry Ellen Donley I said this:

“As a result of her drug use, in August 2005 the offender went to hospital because, to use the words of the pre-sentence report, ‘All her organs had shut down due to extensive drug use’. The offender was in a coma for ten days but it appears that it may have been medically induced for the treatment of her various conditions. The appellant was not discharged from hospital until after three months of treatment.”

It would appear therefore that it was sometime in the three months between August and November of 2005 that the Offender visited his mother and that visit, or the effect of it upon the Offender, appears to have induced his turning to alcohol and to turn to binge drinking.

33 One does not need expert evidence to appreciate that confronting the mother, from whom he had been estranged for some time, in such difficult circumstances would have been a psychological blow to the Offender and caused him to seek solace in the bottle.

34 It was whilst having consumed excessive amount of alcohol that the Offender agreed to participate in Wilson’s proposal to attempt an armed robbery on the Pizza Hut at Lurnea.

35 This brings me to another sentencing principle. At common law, the taking of drink was an aggravating factor, both in relation to mens rea and as to penalty. The maxim of the common law was qui peccat ebrius luat sobrius: he who misbehaves when drunk will pay for it when sober. In Sewell v R (1981) 5 A Crim R 204 after quoting the common law principle Zelling J continues thus:

“We have moved away from that concept as far as mens rea is concerned, but there are still many offences in which drink is an aggravation in relation to penalty. There are others in which it is not. For example a person under the influence of liquor who is otherwise of a blameless character may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation, but in other cases it may swing the penalty towards deterrence. In crimes of violence one may have some hope of putting rational arguments to deter a sober, would be assailant. That chance is much diminished if the assailant is under the influence of drink or drugs. Certainly an assault by a person under such influence is more frightening to the average person. Bray CJ said in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117:

‘Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. Where people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens, it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated.’”

36 More recently Hunt J with whom Finlay and Allen JJ concurred in R v Coleman (1990) 47 A Crim R 306 said this:

“The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender’s breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character.”

His Honour then referred with approval to the decision of the South Australian Court of Criminal Appeal in Sewell v R.

37 Here I accept on the evidence of both Mr Connor and the Offender that this offence was out of character.

38 The Offender has no criminal antecedents whatever and is therefore to be seen as a young man of good character.

39 The Offender’s personal antecedents indicate why he turned to alcohol initially and the circumstances in which he came to use it, as a means to assuage the various vicissitudes of life.

40 The Offender, I accept, was reluctant to join in Wilson’s plan, but did so under the influence of alcohol, under “Dutch courage”.

41 In the circumstances, the acting out of character under the influence of alcohol can be seen in the special circumstances of this case to be a mitigating factor.

42 Notwithstanding the sentence passed upon the co-offender, I have been eloquently urged by the Offender’s solicitor, Mr Croke, not to sentence the current Offender to full-time imprisonment. To do so I must find exceptional circumstances.

43 I have recently had cause to consider such submissions in R v Delaney (4 September 2007). Delaney pleaded guilty to three charges of armed robbery. Delaney’s part in each armed robbery was merely to drive the get-away car. Like Donley, Delaney was a very young man, and like Donley, the circumstances in which Delaney agreed to participate in the armed robbery were completely out of character, induced by certain emotional pressures which were on him at the time. Such emotional pressures were really psychological traumata.

44 The present Offender is charged with a crime constituted by s 97(1) of the Crimes Act, which charge, as I have already stated, carries a maximum term of imprisonment of twenty years.

45 Armed robbery also carries a maximum penalty of twenty years imprisonment. In R v Henry (1999) 46 NSWLR 346 a majority of the Court of Criminal Appeal determined that a full-term sentence of between four and five years imprisonment was warranted in cases involving the following seven characteristics: firstly, a young offender with no or little criminal history; secondly, a weapon like a knife capable of killing or inflicting serious injury; thirdly, a limited degree of planning; fourthly, limited, if any, actual violence, but a real threat thereof; fifthly, the victim was in a vulnerable position such as a shopkeeper or taxi driver; sixthly, a small amount of money was taken; and lastly, a plea of guilty, the significance of which is limited by a strong Crown case. Each of those elements is here present.

46 In R v Thomson (2000) 49 NSWLR 383 it was said that R v Henry should be understood as involving a late plea of guilty for purposes of the application of the guilty plea guideline promulgated in Thomson itself.

47 In R v Henry the Chief Justice said that non-custodial sentences for armed robbery should be “few and far between”. The Court of Criminal Appeal has repeatedly stated that a non-custodial sentence for offences of armed robbery can only be imposed in exceptional circumstances.

48 The question which arises here, as it arose in Delaney is, are there exceptional circumstances? In my view there are.

49 In R v Govinden (1999) 106 A Crim R 314 the respondent to the Crown appeal was eighteen years old at the time of the offences to which he pleaded guilty. One count was of being an accessory after the fact to armed robbery. Whilst on bail for the charge of being an accessory after the fact to armed robbery, the offender committed robbery in company. The trial judge imposed a sentence of 200 hours community service for the robbery in company and deferred sentence on the charge of being an accessory after the fact of armed robbery on the basis that the offender enter into a recognisance to be of good behaviour. The offender’s co-offender’s were juveniles at the time of the offences and were not sentenced to any custodial term.

50 The Court of Criminal Appeal dismissed the Crown appeal. The judgment of the Court was given by Dunford J with whom James J and Smart AJ concurred.

51 Commencing at [29], his Honour said this:

“It is well recognised that in dealing with young offenders, questions of general deterrence are of less importance than in the case of older offenders, and the rehabilitation of the offender is given a greater significance. This principle has recently been affirmed in Tran [1999] NSWCCA 109 at paragraph 9 to 10, one of the cases dealt with in the case of the guideline judgement of Henry earlier referred to. See also Tocknell v Farah (unreported, Court of Criminal Appeal, New South Wales, 11 December 1998). But this respondent was aged eighteen and a half when the offences were committed and the principle is more commonly applied to offenders younger than that, and is not applied to offenders who commit crimes of the nature normally committed by adults, such as armed robbery: see Pham (1991) 55 A Crim R 128 at 135 referred to in Tran at paragraph 10 to 11.

In Maddocks, a case which bears some similarity to the present case, although the respondent was a couple of years older, the Court found that otherwise similar circumstances of this did not amount to the ‘most exceptional’ circumstances which would justify a non-custodial sentence, although in the exercise of its discretion, the Court decided not to interfere, in view of the progress and rehabilitation that had been made since the respondent had been dealt with in the District Court.

Another important case in this regard is Lattouf (unreported, Court of Criminal Appeal, New South Wales, number 60433 of 1996, 12 December 1996), which was another armed robbery case. It was also a Crown appeal and the respondent was a single man aged nineteen residing with his family which was described as warm and caring, and he had a good record of employment. In giving judgment Mahoney ACJ reaffirmed the seriousness with which the Court treats armed robbery, and it reiterated that it is only in the most exceptional circumstances that a non-custodial sentence will be imposed.

He pointed out that there is a public interest in the adoption and articulation of sentencing principles, which will deter the commission of serious crime and punish those who commit it. But his Honour went on to refer to the paramount objective of achieving justice in the individual case, and said (at pages 7-8):

‘But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in the person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It has to be recognised that imprisonment may convert a person, who will not be a persistent criminal, into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age, whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community, not to attempt the rehabilitation of such a person.’

The appeal was dismissed, although the judgment of the differing members of the Court reflected some variation in thinking as to how that result should be achieved.

Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person sustaining the sentence is ‘at the crossroads’, ‘has seen the error of his way’, ‘is at a turning point in his life’, or, ‘has excellent prospects of rehabilitation’. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity, and the Court should be astute to recognise them. I believe this is such a case even though, unlike Lattouf, this respondent was not a first offender at the time of the commission of the more serious offence.”

It is to be noted that in Govinden itself the primary or main offence was committed whilst the offender was at conditional liberty, which is an aggravating factor. Nevertheless the Court of Criminal Appeal allowed the non-custodial sentence imposed by the trial judge to stand. With respect, the present Offender’s case is more in line with Lattouf, which was cited with approval, than with Govinden itself.

52 Another case which should be considered is R v Metcalf [2000] NSWCCA 277. There the offender was involved in five offences. In the first the offender entered the Quix Service Station at Lansvale in company. Metcalf had driven to the service station in his own car. He armed himself with a kitchen knife and in company with his co-offenders entered the service station. Metcalf held a knife to the unfortunate console operator at the station. Some $50 or $60 was stolen, as well as a magazine. The second offence was the same trio robbing a service station at Campbelltown. Again, Metcalf’s motor vehicle was used. Again, Metcalf armed himself with a knife and went into the service station. $670 in cash was stolen and $140 worth of cigarettes. The third offence was another armed robbery upon another service station at Lansvale. A small amount of cash was taken and some packets of cigarettes. The fourth offence involved a service station at Yagoona. Again, Metcalf and his two co-offenders entered the service station. One was armed with a baseball bat and the other with a knife. Whether Metcalf had one of the weapons, the judgment does not disclose. Money was taken from the till. The fifth offence involved robbery of a service station at Warwick Farm. The victim on that occasion was a female console operator. A threat was made by one of Metcalf’s co-offenders and the female service station operator handed over the money.

53 The offender pleaded guilty. The offender was twenty years of age at the time. Judge O’Reilly sentenced Metcalf’s two co-offenders to imprisonment for six years with a non-parole period of three years. However, his Honour sentenced Metcalf to a period of periodic detention for three years and the Crown appealed against the sentence.

54 It can be seen that Metcalf’s offences were much more serious than Donley’s.

55 The Court of Criminal Appeal referred to a number of potent subjective features. Metcalf had suffered from schizophrenia since the age of thirteen. Fortunately Donley does not suffer from any psychiatric illness, as far as I am aware. Metcalf had agreed to give evidence on behalf of the Crown against his co-offenders. Here, Donley co-operated with the police and gave them information as to the identity of his co-offender, which would have enabled the co-offender to be arrested. Metcalf had been a drug user and had undergone psychiatric treatment after being charged. He provided thirty-six drug free urine specimens between the time of his arrest and the time of his sentence. Metcalf had obtained employment in the spare parts business in the southern suburbs and managed to change that employment from casual employment to full-time employment. In other words, Metcalf was undergoing rehabilitation. There was a suggestion also that the medication prescribed for Metcalf’s schizophrenia resulted in Metcalf’s having a lack of capacity to resist doing acts which he knew to be wrong. Donley cannot claim that. However, I do accept Donley was acting under the coaxing of his co-offender Wilson and was acting under the influence of liquor, to which I have already referred.

56 The Court of Criminal Appeal also pointed out that persons of “tender years” suffering from psychiatric conditions find it notoriously difficult to cope in prison, which is a matter going to mitigation. If Metcalf at the age of twenty can be described as a man of tender years, so can Donley.

57 Donley has spent sixty-nine days in custody. A number of those days in custody was at a metropolitan remand prison, the balance of it at Parramatta.

58 Donley described his experience in gaol as “horrifying”. He saw a serious assault take place and heard rumours of others. He had fears for his own safety whilst in prison. He would have been one of the youngest prisoners in an adult institution in this State. Young offenders who go to prison full-time often need to seek protection from more experienced inmates, and then enter the university of crime and end up becoming criminals, as Mahoney ACJ pointed out in Lattouf.

59 In my view this is one of those truly exceptional cases to which the authorities which I have cited refer. Here we have a man of unblemished good character in the past. His criminality is attenuated vis-a-vis that of the co-offender Wilson whose idea it was to attempt the robbery, who produced the knife and played the major role in the attempted robbery. The Offender was acting under the influence of alcohol but, in the special circumstance of this case, I have characterised that as a mitigating factor.

60 The prospects of rehabilitation are excellent. The evidence for that is really that the Offender himself, but in particular that of his uncle who made the point that this offence was completely out of character but had the potential to ruin this young man’s life.

61 Clearly a full-time custodial sentence would interrupt the Offender’s rugby league pathway for almost a year, and put him behind others in seeking an apprenticeship.

62 I do not see any point to be served by putting Donley in gaol. It only has the potential of firstly physically and emotionally harming him, and of turning him from life of a law-abiding, worthwhile citizen to the life of a criminal.

63 In R v Griggs (2000) 111 A Crim R 233 Simpson J said that a failure by a sentencing judge to give any consideration to available sentencing options, more lenient than full-time custody, which are canvassed in a pre-sentence report will manifest error in important respects.

64 Here the pre-sentence report raises questions of both periodic detention and community service.

65 In my view periodic detention here is inappropriate. Often prisoners are required to attend on Friday afternoons, which would interfere with the Offender’s quest for full-time employment, and certainly interfere with his rugby league career. True it is that mid-week periodic detention is available between Wednesdays and Fridays, but again, that would interfere both with the Offender’s seeking a full-time job or pursuing a professional rugby league career. Furthermore, periodic detention again would expose the Offender to the criminal milieu and, in any event it is proposed by the Executive that it be abolished.

66 In my view community service is not as severe as the penalty which I think it appropriate to consider in this case.

67 The other sentencing option available to me is a suspended sentence. The authorities make it clear that a suspended sentence is to be regarded as a real sentence and as punishment for the offence in question: R v JCE (2000) 120 A Crim R 18; R v Foster (2001) 33 MVR 565; R v Zamgias [2002] NSWCCA 17.

68 In R v Laws [No. 2] (2000) 116 A Crim R 70 Wood CJ at CL said at paragraph 50:

“As is made plain in the second reading speech on 30 September 1999, when the option of suspended sentencing was introduced in this State, and as had earlier been made plain by Muirhead J in Darcy (1980) 2 A Crim R 254, their purpose is to convey the seriousness of the offence and the consequences of re-offending to the offender whilst also providing him or her with an opportunity to avoid the consequence by displaying good behaviour, and by not repeating the relevant breach of the law or any similar breach of the law.”

I intend to impose a suspended sentence. Donley needs to understand that if he fails to comply with the conditions of the bond which will require him, amongst other things, to be of good behaviour, then this Court will have no alternative other than to revoke the order for the suspension of the sentence, unless Donley is able, when called up, to satisfy the Court that any failure to comply with the bond was trivial in nature or that there were good reasons for such failure. If the bond is revoked then the Court has power, after hearing from the Offender, to determine the non-parole period which the Offender will have to serve, but the head sentence will remain, that fixed by the suspended sentence.

69 The maximum term of a suspended sentence is two years imprisonment and I intend to impose that term of imprisonment.

70 The pre-sentence report suggests that the Offender was suitable for a medium to low level of intervention by that Service and that an individualised case plan would include strategies to address the following identified areas of criminogenic need.

71 Firstly, a psychological assessment and follow-up treatment as the pre-sentence report suggests that the Offender still suffers from unexpressed grief following from the death of his late father, when the Offender was ten years old.

72 The pre-sentence report also refers to drug and alcohol assessment, and that may be wise to impose. Accordingly it is my intention that during the period of the sentence the Offender be subject to the direction and supervision of the Probation and Parole Service.

73 I should indicate that on the question of alcohol that the Offender has abstained from alcohol since this offence. He has become his family’s designated driver and regularly transports his friends and football colleagues around because he is the person who remains sober. In that regard he must consider what we all read about constantly in the press and hear on other forms of media, misbehaviour being perpetrated by sportsmen when under the influence of alcohol.

74 I trust that this experience will have persuaded Donley to make sure that if he drinks alcohol in the future it is only in modest amounts.

75 Raymond John Adam Donley, on the charge that you did on 7 March 2007 at Lurnea in the State of New South Wales attempt to rob Meng Sea Ly of certain property, namely a sum of cash money the property of Pizza Hut Pty Ltd, whilst being armed with an offensive weapon, namely a large knife or machete, you are convicted.

76 I sentence you to a term of imprisonment of two years. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I order that execution of the sentence be suspended. I direct that you be released from custody on condition that you enter into a good behaviour bond for a term of two years commencing today.

77 Conditions of the bond are as follows: firstly, that you appear before the Court if called upon to do so at any time during the term of the bond; secondly, that you are to be of good behaviour; thirdly, that you are to reside at 44 Kembla Crescent, Ruse or fourthly, to advise the Registrar of the Court by prepaid registered post of any change of residential address during the term of the bond; fifthly, that you be subject to direction and supervision of the Probation and Parole Service during the term of the bond.

78 Mr Donley, do not nick off straight away. You need to go to the registry and sign the bond because theoretically you are in custody at the moment.

79 Mr Donley, the term of the bond is two years. I cannot retire for another three and a half years and I do not have to retire for over fifteen years. If you breach the bond you will come back before me. I do not want to see you again Mr Donley, except on television playing footy.

80 The back-up charge under s 114(1)(a) of the Crimes Act 1900 is by consent dismissed.

81 I add this to my reasons for sentence. I should indicate that I also accessed statistics available from the Judicial Commission of New South Wales. Since the decision in R v Henry there have been 197 cases determined for an offence pursuant to s 97(1) of the Crimes Act 1900. 18% to 19% of those committing crimes under s 97(1) have not been sentenced to full-time imprisonment, but to other forms of penalty. 2% of such criminals have been sentenced to suspended sentences and 8% have been sentenced to suspended sentences with supervision. When I factor in the circumstances personal to Donley there are eight cases. The personal circumstances are that there is only one count to which the Offender has pleaded guilty, that there is no Form 1 matter, that the Offender has no prior criminal record, that there is a plea of guilty, and that the Offender is aged between eighteen and twenty years. Of the eight cases that meet those criteria, only four have been sentenced to full-time imprisonment. One was given a s 9 bond with supervision. One was given a suspended sentence with supervision. Two were given periodic detention. Of the four who were sentenced to full-time imprisonment, the median head sentence was three years imprisonment and the median non-parole period twelve months imprisonment. It can be seen, therefore, that in the case of the co-offender Wilson, he obtained the median head sentence and the median non-parole period. However, the number of those not sentenced to full-time imprisonment is another factor which I have weighed and taken into account in passing the sentence which I have passed upon Donley.

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