R v Robb

[2018] NSWDC 476

District Court

New South Wales

Medium Neutral Citation:	R v Robb [2018] NSWDC 476
Hearing dates:	21 June 20183 August 2018
Decision date:	03 August 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found- age, 1st time in adult custody, need for an extended period of parole to assist in rehabilitation and reintegration into the community. Sentenced to a term of imprisonment for 3 years comprising of a NPP of 1 year and 6 months to commence on 21/6/2018 and to expire on 20/12/2019 and a balance of term of 1 year and 6 months to commence on 21/12/2019 and to expire on 20/6/2021. To be released to supervised parole on 20/12/2019.
Catchwords:	CRIMINAL – sentence —violent offences —robbery – offender on day release at time of offence - stealing of mobile phone from victim walking home late at night after work – commencement date in issue - Bugmy & Fernando principles – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Bugmy v the Queen [2013] HCA 37 R v Fernando (2002) NSWCCA 28 R v Ibrahimi (2005) NSWCCA 153 R v McVeety (2002) NSWCCA 344 R v Moffitt (1990) 20 NSWLR 114 R v Quinn (2003) NSWCCA 239 R v Richards (1981) 2 NSWLR 464 R v Thomson; R v Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina James Robb
Representation:	Solicitors: Crown: Mr A Brookman Defence: Mr M Hunter
File Number(s):	2017/00181788

Judgment

1. HIS HONOUR: In this matter, James Robb appears for sentence in respect of an offence of robbery contrary to s 94 of the Crimes Act 1900. The maximum penalty available is 14 years' imprisonment. There is no relevant standard non-parole period. The offender was committed for sentence on 31 October 2017 from the Central Local Court and is entitled to a discount for the utility of the plea alone of 25%, as referred to in Thomson & Houlton (2000) 49 NSWLR 383. Such discount will be provided.

2. The facts are agreed and are as follows. At about 12.30am on Sunday, 18 June 2017, the victim, Juan Miguel Catstillo, finished work at a restaurant in Crown Street, Surry Hills, and began walking home to Cope Street, Redfern. While walking home, the victim held a black phone case containing his Samsung Galaxy S7 mobile phone (valued at $1,000) in his right hand. The victim was listening to music through the phone speakers during his walk. As he was walking south on Regent Street, Redfern, he observed the offender walking towards him along James Street. The victim noticed the offender was intoxicated, swaying while he walked. As the victim crossed James Street, he noticed the offender following along Regent Street, trailing a short distance behind.

3. The offender caught up to the victim from behind and used his right arm to place the victim in a headlock. The offender said, ''Give me your fucking phone,'' to the victim, while continuing to hold the victim in a headlock, thus restricting his movement. The offender took the victim's mobile phone, NAB bank card and business cards from the victim's hand. The headphones separated from the phone and remained in the possession of the victim. As a result of the headlock, the victim suffered discomfort to his neck.

4. The offender turned around and walked off in a northerly direction along Regent Street towards Cleveland Street, still in possession of the victim's property. The victim walked home to Cope Street, Waterloo. On returning home, the victim cancelled his bank card and began tracking his phone, using "Find my phone" software. The victim noticed the phone's location moving south along Pitt Street, Redfern, towards Redfern Street.

5. The victim contacted police and provided a description of the offender, being a male of Pacific Islander or Aboriginal appearance with shoulder-length hair, and intoxicated.

6. Police attended the victim's residence at about 1.45am and requested the victim to provide an updated, ''Find my phone,'' location. At 1.49am the victim informed police the location of the phone was outside 225 Pitt Street, Waterloo. At about 1.50am, police attended Pitt Street, Waterloo, and immediately sighted the offender who closely resembled the description that had been previously provided, and appeared to be moderately intoxicated. He was standing at a bus about 50 metres east of 225 Pitt Street, Waterloo. The offender had the victim's phone in his hand and was touching the phone screen to operate the phone.

7. As soon as police approached, the offender quickly used his right hand to secrete the phone in his right pants pocket. Police asked the offender whose phone he had just placed in his pocket, to which he replied, ''It's my phone.'' Police complied with LEPRA safeguards and conducted a search of the offender, removing the victim's Samsung Galaxy S7 from the offender's pocket. They observed the phone was in locked mode, indicating that it had been stolen. Police asked the offender to unlock the phone if it was his, as he had claimed. The offender said, ''I just found it right here,'' and pointed to a staircase about 5 metres away.

8. The offender was arrested and cautioned. The offender stated, ''I swear I just found it right here. Come on, I'm on day release.'' The offender was further searched before being placed in a police vehicle. Police located a wallet in his right hand pants pocket, the same pocket in which he had placed the phone. The wallet contained two bank cards belonging to the offender, as well as three business cards belonging to the victim. The cards belonging to the victim were in the same compartment as the offender's personal cards. One of the business cards was from a restaurant in the Star Casino and the other two were from restaurants in the Philippines. The victim had obtained these cards during a recent visit to the Philippines and had addresses in Manila written on them that were in the native language of Tagalog.

9. The offender was conveyed to Redfern Police Station, entered into custody and provided with his rights. Aboriginal Legal Services provided advice to him. Although an electronic record of interview was commenced, the offender refused to answer any questions, and so it was discontinued. Forensic photographs and a buccal swab were obtained under order.

10. At the time of the offence, the offender was currently serving a sentence of imprisonment, being a term of imprisonment of four years for a number of counts of aggravated robbery. He was on day release, or work release, at the time of committing the offence. The offender committed the offence in the early hours of the morning of Sunday, 18 June 2017. The victim was walking home from work and was entitled to do so without being placed in a headlock and having his property stolen, as well as being entitled to be free of fear when walking in a public street.

11. There was limited violence involved, being a headlock which caused only temporary discomfort, nonetheless a mobile phone of significant value was stolen from the offender and a number of cards which are unlikely to have been of any utility to the accused, particularly those related to restaurants in Manilla and addresses written in Tagalog. The victim was subjected to threat and force. The offender, having been in effect caught red‑handed, continued to deny the obvious, although eventually entering a plea of guilty in October 2017. As referred to by Latham J in Ibrahimi (2005) NSWCCA 153 at [22‑23]:

"It is well established sentencing principle, emphasised in the decision of Ranse NSWCCA 8 August 1994, that offences involving direct attacks on the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace. The judgment of Gleeson CJ, as he then was, in Ranse has been affirmed many times… One of the primary purposes of the system of criminal justice is to keep peace, in this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fears of physical violence. It also embraces respect for property of others."

12. I accept that this matter falls below mid-range of objective seriousness for such an offence, although in my view it is not substantially below that mid‑range. An aggravating circumstance in this matter is that the offence was committed while the offender was the subject of conditional liberty. Most offences committed by offenders while on conditional liberty are committed either when they are on parole or released on bail.

13. This offender was not released on parole, nor was he released on bail, he was released on a work release order approximately one month before he might otherwise have been released on parole. The conditions of the order were that he reside with his mother, who lived in close proximity, in Pitt Street, Waterloo, to where the offender was located, and he was required as part of the work release to work as a brickies’ labourer and not to consume alcohol.

14. I note of course that the facts indicate that the offender was observed to be affected by alcohol in advance of the assault on the victim as well as by the police when eventually arrested. In relation to offences committed while on bail, there is a long line of authority that this is a serious aggravating fact as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465. The protection of the community from those who abuse there liberty on bail to commit further offences calls for quite severely deterrent sentences, which will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed or passed for the original offence.

15. In relation to offences committed while on parole it has also been said that this is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a harder punishment, R v McVeety (2002) NSWCCA 344, R v Fernando (2002) NSWCCA 28 at 42, "Offences committed while on parole demonstrate that rehabilitation which parole is designed to assist has failed and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances." Greg James J in R v Quinn (2003) NSWCCA 239 stated that:

"It is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour, that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you have been liberated conditionally."

In R v Moffitt (1990) 20 NSWLR 114:

"It was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole."

16. While those comments have been made by the courts in relation to breaches of parole and offences while on bail, they are just as apposite to offences committed while an offender is subject to a work release order. Indeed, offenders who commit offences while on work release orders call into question the whole of the work release order system, and may disadvantage other prisoners who might in the absence of such offences be given the benefit of a work release order which is clearly designed to assist prisoners in rehabilitating themselves and reintegrating into the community. In my view, breach of a work release order is at least as serious if not more serious than a breach of parole or a breach of bail, for that reason.

17. I have previously referred to the fact that the offender was serving that sentence at the time of this offence, although on work release. It is necessary in those circumstances to make some reference to his previous criminal history and the offences that he was serving sentences of in respect of.

18. In 2013, he committed an offence, dealt with at the Mildura Children's Court in 2014 in respect of which he received a s 33(1)(b) bond of 12 months with supervision. There were further offences committed some weeks later in 2013, and dealt with on the same date at the Mildura Children's Court as the previously mentioned offence, being assault officer in the execution of duty and resist officer in the execution of duty, in respect of which he received probation under s33(1)(E) with 12 months' supervision. However, he committed further offences as a juvenile, although the further offences were dealt with in the District Court according to law.

19. If I did not mention it, in respect of the first offence, it was intentionally throw object at vehicle or vessel. On the same date as that offence was committed, he committed two further offences, being aggravated assault with the intent to rob and aggravated robbery with wounding. Those offences were committed on 19 December 2013. He received the benefit of an aggregate sentence in relation to those two offences and a further offence committed while on bail for those two offences. The further offence was an aggravated robbery committed on 25 July 2015.

20. Between the offences in December 2013 and July 2015, there were two further juvenile offences, being steal from the person and common assault committed on 24 January 2015, in relation to which in each case there was a Control Order under s 33(1)(g) of two months and 28 days. There was also in 2013, an affray charge in relation to which he received six months supervision under s 33(1)(E), although he was called up and as a result received a seven‑month suspended sentence, and a further Children's Court matter of common assault in December 2013.

21. In relation to the offence of aggravated assault with intent to rob, and aggravated robbery with wounding and the offence committed while on bail for those offences, that is, the further aggravated robbery, he came before the Court for sentence in respect of those matters on 14 June 2016. Part of the material provided to the Court are the reasons on the sentence as expressed by Madgwick ADCJ. The significance of the reasons on sentence is the highly similar nature of the previous offending. He is not being re‑sentenced in respect of those matters but it is relevant to the appreciation of his offending on this occasion to have some regard to the facts that were before the Court, as expressed in his Honour's reasons.

22. As I have previously indicated, there were three offences. The first two were committed on 19 December 2013: the offender assaulted a young man with intent to rob him and at the time of the assault intentionally inflicted actual bodily harm on him. The offender was one of a group of 10 to 12 young people at Waterloo Park. While there, they had been spoken to by police who recognised the offender as one of that group. Soon after, the young victim left his house in Waterloo to go to the McDonald's café in Alexandria on the corner of McEvoy and Botany.

23. He was walking along Pitt Street to get there. As he passed Waterloo Park, he walked past the group the police had previously spoken to because he did not want any trouble. He went to McDonald's and at about 12.15am commenced to return home, retracing his steps, again walking past Waterloo Park. As he walked up Pitt Street he averted his eyes from the group, but then observed Mr Robb stand up and approach him. The young person became anxious and scared and started to run. He was pursued by Mr Robb, who then, having reached him, struck him with a hard punch to the right side of his face, knocking him down and knocking his prescription glasses off.

24. Once he was on the ground, he could see other offenders standing over him. He was asked where his mobile phone was and his pockets were felt. However, he put his hand on his pocket to prevent it being removed. Someone returned his glasses. He got up and walked off. Nothing was in fact taken from him. That was the first event that evening. In relation to that matter I should add that the young person suffered fractures to the right side of his facial bones, including the eye socket, as well as multiple superficial abrasions to his arms, left shin and right calf.

25. Later that same night at about 4am a female, age unstated, left home in Alexandria to walk to work on Bourke Street, Waterloo, where she was due to start at 4.30am. She was heading east on McEvoy Street and as she approached Pitt Street, she observed three young persons come out from a wall across the road where there was a large block of units. The first of those was Mr Robb, who was observed to be taller and bigger than the others. They walked directly towards her; she turned around and walked back the other way, for obvious reasons. One of the group ran across the road so that she had to change direction. She again changed direction to walk in the original direction she had been walking, but by that time was understandably very frightened. She walked onto the road on McEvoy Street in the middle of the intersection of Pitt Street, feeling cornered.

26. Mr Robb was standing about a metre from her and asked if she had a cigarette. She informed him she did not smoke. He said, ''You have a phone in your bag?" While that conversation was taking place, one of the other males standing on McEvoy Street about 2 metres west of here, while the third was standing about 2 metres behind her, that is, she was surrounded.

27. Mr Robb stepped towards the female and grabbed her left hand, she felt immediate pain and saw blood coming from her hand. She did not see any object in hid hand but received a stabbing type injury. Mr Robb took hold of the strap of the shoulder bag she was carrying and pulled it, she being slight of build was pulled with it. The strap broke and she managed to pull the bag back and was then punched to the right side of the head at the back by a male other than Mr Robb, who had been standing behind her. She fell to her knees and then felt kicks to her lower back and punching to her head. Mr Robb took her bag and the three men then ran back to the wall where they had been first sighted by her.

28. The bag contained a valuable wallet and the usual things, such as photo identification, bank cards, Medicare card, membership cards, bus tickets and a few dollars in change, her work keys, house keys and her mobile phone. She observed the three young men to be rifling through her bag. She later ran to McDonald's and stopped at traffic lights and waved down a taxi and later contacted the police. Her bag was later found with its contents outside a unit complex at 250 Pitt Street, Waterloo, that is, the unit complex in which the offender resided with his mother at the time of those three offences and where he continued to reside at the time he was released on work release. There is a great degree of similarity between this offence and the offences in respect of which he was serving the period of custody.

29. In relation to subjective matters, before the Court is a psychological assessment under the hand of Ms Caroline Hare, dated 19 June 2018, a previous psychological assessment under the hand of Ms Fleur Taylor, dated 26 April 2016, which had been prepared for the purposes of the sentence by Madgwick ADCJ, and in addition a number of documents in relation to parole such as a submission to the parole jurisdiction of Juvenile Justice outlining his response in custody and his program participation and counselling as well as recommendations in relation to how best to reintegrate him into the community.

30. That report was dated 16 May 2017. It also included a number of Juvenile Justice Centre reports for consideration on the question of release on parole, outlining in detail his behaviour and efforts while in custody and a Waratah Pre‑Release Unit Student Learning of Achievement Report and a unit report under the hands of James English and Peter Bartollo, as well as a confidential psychological report prepared for the purpose of consideration for parole under the hand of Desiree Innes, being a psychologist, dated 10 May 17.

16. A letter from WEAVE, that being part of Youth and Community Services, dated 9 May 2017, in particular, as to what their programs offers, or might offer to the offender. As previously indicated, the remarks of Madgwick ADCJ, and a number of orders in the order that they are contained in the documentation, a Notice of Order for Revocation of Parole stating that on 18 June 2018 the Children's Court at Parra made an order for the revocation of parole from 31 October 2017. The order was signed by the registrar on 19 June 2018. There is also an Order for Revocation of Parole with similar information, indicating that on 18 June 2018 the Children's Court, being satisfied that he had failed to comply with his obligations under the order, made an order revoking the parole order.

17. There is a further “Updated Report for Parole Revocation Review Hearing” under the hands of Jenny Anderson and Amanda Bull, dated 14 June 2018, and an additional Children's Court of New South Wales Parole Determination determining that the offender was appropriate for release on parole on 26 July 2017, with the order being dated 31 May 2017. In addition there is a further updated report from WEAVE dated 20 June 2018, and a letter to the Court from Jacob Saunders, being a mentor with “Tribal Warrior”, as to the possible provision of support to the offender, the letter being dated 20 June 2018.

18. I have read all of that material and I accept, to put it in short, that prior to his release on work release on the occasion of committing this offence, the offender had been doing well in juvenile custody. Indeed, it is reasonable to say that he had been doing very well, despite a few early blemishes in his term. He had, in effect, “come good” and was on track, hence why the order was made for his release on parole.

19. I accept that the material contained in the psychological reports as to his personal background as an indigenous person living in Redfern is true, and that he did not have a good start to life. From an early date he was exposed to parental discord and domestic violence, his parents separating when he was aged five. His father was an abuser of prohibited drugs and repeatedly incarcerated, and when the offender was seven, his father died from an overdose. He grew up in the absence of a father figure and was embarrassed by that fact when attending school. I accept that his mother is a seemingly loving and pro-social parent; however she also exposed him to substance abuse during his early childhood before she desisted from that behaviour. He maintains a positive relationship with his mother, and she has been consistently supportive of him as is evidenced by the fact that he was to reside with her while on work release.

20. I note that both he and his mother believe that part of his problem has been not simply alcohol but also the peer group with whom he has mixed in Redfern, and that in the past the reports have indicated that his mother had an intention to move from the premises in Pitt Street, Redfern, to some area where the offender, when not in custody, would be able to reside with her and would be free from any influence from that peer group.

21. I note in that regard, however, that it is clear that although that was proposed to happen when the matters were before Judge Madgwick, there has been no change in accommodation by the offender's mother and she continues to reside in the same premises and the immediate area in which the offender in fact committed all of these offences, that is, the offences before Judge Madgwick and this matter. That may well be the result of her particular economic circumstances but it does not assist him in the sense that it is highly likely when eventually released he will return to reside with his mother in the same area.

22. As to the influence of any peer group on him, there may have been some influence in relation to his consumption of alcohol and or prohibited drugs, however it is clear in relation to the third offence, in respect of which Judge Madgwick dealt with him, that he was not in the company of any other members of any peer group but on his own, just as on this occasion he was not in fact at the time of the offending in the company of any antisocial peers. It is also evident, in relation to all of the offences before Judge Madgwick and this offence, that the offender is the one who played the major role in committing the offences. In those circumstances it appears that he is likely to have been the peer group member who influenced the others who were present on at least the first two occasions, rather than the contrary.

23. I do not intend to go into the detail other than to the extent that, as I have indicated, I accept that he has a bad start to life, including an older brother who was a negative influence on him, particularly in the absence of a father, and I note that his older brother is currently incarcerated and he has two younger brothers.

24. He had some difficulties in learning at school and acted out; he left school in Year 8 because he found the curriculum too hard. He did manage to complete Year 10 and gained a school certificate while in juvenile detention. He has apparently completed a first aid qualification and gained an OH and S General Induction for Construction, also while in juvenile detention. He has in previous periods of imprisonment had some work within the prison. He had apparently been doing well enough at the work release bricklaying that there was some prospect of him obtaining a job in that field with his supervisor: that is of course now well in the past.

25. I note that he began drinking alcohol at approximately 11 years of age and from age 15 he was engaged in a pattern of daily alcohol abuse to the point of intoxication. The last time in which he relapsed of course was when he was on work release. He must at that time have been well aware of his tendency to commit offences while affected by alcohol, yet went ahead in breach of the conditions and consumed alcohol to the point of being significantly intoxicated.

26. He has apparently experimented with cannabis on one occasion a few years ago, and also while on overnight leave from juvenile detention he apparently experimented with cocaine. He denied enjoying either of those experiences and he does not have a pattern of illicit drug use. I accept that in the light of his difficult upbringing the Court has to give consideration and take into account the factors referred to in Fernando and Bugmy, which in effect lower the offender's moral culpability for the commission of the offences as a result of those circumstances of his upbringing.

27. Although he has done well in the past in relation to his time in Juvenile Justice, this offending was a significant counter to allowing consideration that attempts at the past of rehabilitation had been of any significant ongoing effect. The prospect of the offender's rehabilitation in those circumstances must be guarded and the risk of re-offending in the circumstances where this is another offence of a similar in nature to those offences that he was serving a period of incarceration in respect of, indicates that it cannot be found that there is a good prospect that he will not re-offend. The offender has expressed remorse and contrition in relation to his offending. I note, however, in relation to the psychological report of Fleur Taylor provided for the purposes of his appearance before Madgwick ADCJ that she stated,

''James presented with an appropriate level of remorse related to his behaviours and he stated that his actions would have had an adverse impact on his victims. He expressed a level of motivation to refrain from offending behaviour in the future and he presented with a good level of insight for the need for maintaining abstinence from alcohol and engaging in counselling to address his psychological wellbeing."

43. I note that at the time that he was before Judge Madgwick, he already had the assistance of the Tribal Warrior Program and that his Honour made the following statement in respect of the offender.

"When he first came under the agents of Juvenile Justice, they offered him counselling but he was not really amenable to it. In many ways, apart from having the love and support of his mother, who battled as a single parent, that the nearly a year he has had in Juvenile Justice has been the best thing that ever happened to him, he has been separated from the bottle, he has been counselled by a counsellor who he apparently listens to. Despite an unfortunate educational start in life, he has applied himself to a horticultural course. His behaviour has improved out of sight - he has shown real remorse as the solicitor for the Crown pointed out. He has a way to go in developing insight into why he committed these offences, but at my invitation he has expressed remorse in his own words and quite appropriately to the female victim.

The prospects of his rehabilitation appear to me to be quite reasonable, though there are deep rooted problems, and nobody should expect a quick magical simple cure. He is willing to continue his counselling once he gets out of custody, and it is desirable that he continue to have close supervision, preferably by Juvenile Justice officers…Both he and his mother recognise the best thing for him would not be to go back to Waterloo, where the other lost and dangerous young men that he was knocking around with live. His mother is going so far as to uproot herself and the younger children and seek a transfer from the Housing Department to accommodation elsewhere.''

44. I note that time has indicated that Judge Madgwick's faith in the offender's ability to rehabilitate and not to re-offend has been proved to be entirely misplaced. That is not to say that there is no prospect of rehabilitation or that the offender will necessarily re-offend in the future. It is however of serious concern that at a time when he was due to be released on parole in approximately 30 days, he again involved himself in a serious criminal offence of a very like nature to those that he was serving time in custody for.

45. I have taken all of those matters into account. There has been an issue before me in relation to the commencement date, the defence arguing that the commencement date of any sentence should be the date on which he was originally ordered to be released on parole, being 26 July 2017. By that stage of course he had committed this offence and was in custody as a result. He never entered parole and, in my view, the sentence that had been imposed by Madgwick ADCJ simply continued to be served by him once he had been arrested when committing this offence and returned to custody.

46. Submissions have been made by both parties in relation to the commencement date. The Crown in essence has submitted that there must be some period of time in custody referrable to the previously imposed sentence, and concedes that the sentencing respect of this matter is in fact a complex sentencing exercise because of the commission of the offence while on day release and the effect in particular of s 56 of the Crimes (Sentencing Procedure) Act 1999.

47. I have during the course of the sentence proceedings indicated to Mr Hunter, solicitor for the offender, that I reject his submission as to the starting date, taking the view and put in simple terms, that the offender never in fact entered parole and although if he had not committed this offence, he may have done so, that parole order was revoked. There is an issue in relation to whether in sentence to be imposed should in fact flow on from the termination of the sentence imposed by Judge Madgwick or from the date of possible parole.

48. I take the view in the circumstances that, as I have said, that being returned to custody, he in effect simply continued to serve the sentence imposed by Judge Madgwick as well as being in effect bail refused in relation to this matter, but that the Court must, taking into account what I have previously said about breaches of parole, breaches of bail and breaches of work release orders, that there must be a period of custody referrable to the sentence previously imposed by Judge Madgwick.

49. In the circumstances, I will accept as the appropriate starting date for sentence the date on which the matter first came before me for sentence, being 21 June 2018.

50. For the purposes of sentencing, the Court must have regard to the provision of s 3A of the Crimes (Sentencing Procedure) Act 1999 and must take into account such as the aggravating factors outlined in s 21A(2) of that Act as are present and such of the mitigating factors referred to in subs (3) of that section as are present, as well as any other relevant factor.

51. Any sentence must reflect the objective seriousness of the offence as well as, as I see it in respect of this particular offender, the need for both general and specific deterrence. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives. that no penalty other than imprisonment is appropriate. No submission to the contrary has been made, appropriately, by Mr Hunter on behalf of the offender.

52. I have taken all of those matters into account as well as the 25% discount for the utility of the plea, and I have determined that an appropriate term of imprisonment for this offence, finding special circumstances on the basis of the offender’s age of just in excess of 19 years, and this being his first time in adult custody and, as I perceive it, the need for a significant period of parole to assist him in rehabilitation and reintegration into the community, hopefully still with the assistance in the future of WEAVE and Tribal Warrior and any other assistance which might seem appropriate at the time of his release.

53. Having found special circumstances, I have reduced the statutory relationship between the nonparole period and the balance of term. The non‑parole period will be one year and six months, commencing on 21 June 2018, I order that he be released on parole of 20 December 2019. The balance of term is one year and six months, giving a total sentence of three years. The total sentence will expire on 20 June 2021.

54. What that means, Mr Robb, and I do understand that you probably already understand it, is that you will be released at the conclusion of the non-parole period. It will not require the Parole Board to make a further determination because I have ordered your release at that time. You will on release be subject to parole for a period of 18 months. You would understand that if you breach that parole you will inevitably end up being returned to custody. You have in the past done well in relation to your time in Juvenile Justice, although all is essentially set to nought by your commission of this offence while on day release. I hope that that has some impact on you.

55. You did express some remorse and contrition in your evidence on sentence. I found it hard to take that seriously in the circumstances of your past offending and then expressed remorse. In my view your expression of remorse is without any real understanding of the seriousness of your offending or the consequences for those who you offend against in this way, as well as the community. I hope that you will make a firm determination to change your conduct. It would of course, in my view, be helpful if you are again to return to live with your mother that she has found some accommodation other than in Redfern, and hopefully where you are not surrounded by unemployed, alcohol and drug using youths of about your own age.

56. That's a matter for you, I can't do anything about it, but I do however understand that your mother may have some difficulty relying on the Housing Commission to find some more appropriate place to live, but I do emphasise that if you wish to avoid the revolving door of gaol, you need to make a real change.

HIS HONOUR: Alright, thank you, is there anything I have omitted, or any error?

BROOKMAN: I do not believe so, your Honour.

HUNTER: No, your Honour.

Decision last updated: 01 March 2019