R v Roberson aka Luke
[2010] NSWDC 216
•13 August 2010
CITATION: R v Roberson aka Luke [2010] NSWDC 216 HEARING DATE(S): 30/07/2010
JUDGMENT DATE:
13 August 2010JURISDICTION: Crime JUDGMENT OF: Norrish QC DCJ DECISION: H37339670 – 001 Convicted: Sentenced to a term of imprisonment consisting of a non parole period being 1 year commencing on 7.8.11 and to expire on 6.8.12. Balance of the sentence being 2 years is to expire on 6.8.14. Eligible for release to parole on 6.8.12.
H37339670 – 002 Convicted: Sentenced to a term of imprisonment consisting of a non parole period being 1 year commencing on 7.8.11 and to expire on 6.8.12. Balance of the sentence being 3 years and 6 months is to expire on 6.2.16. I find special circumstances. Eligible for release to parole on 6.8.12.
H37339670 – 004 – Taking into account matters of a Form 1. Convicted: Sentenced to a term of imprisonment which consists of a non parole period being 9 months commencing on 7.11.11 and to expire on 6.8.12. Balance of the sentence being 3 years and 6 months is to expire on 6.2.16. I find special circumstances. Eligible for release to parole on 6.8.12.
H37339670 – 005 – Convicted: Sentenced to a term of imprisonment of 2 years and 3 months commencing on 7.8.09 and to expire on 6.11.11.
H37339670 – 006 – Convicted: Sentenced to a term of imprisonment of 2 years and 3 months commencing on 7.8.09 and to expire on 6.11.11.CATCHWORDS: CRIME - Sentence - assault with intent to take and drive a conveyance - robbery in company LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Markarian v The Queen (2005) 79 ALJR 1048: [2005] HCA 25
Henry v R (1999) 46 NSWLR 346
R v O'Callaghan [2006] NSWCCA 58
Attorney Generals Reference No 2 (2002) 56 NSWLR 147
Way v The Queen [2004] NSWCCA 131
Anderson v The Queen [2008] NSWCCA 211
R v MLP [2006] NSWCCA 271
R v MMK (2006) 164 A Crim R 481
R v XX [2009] NSWCCA 115
Arnaouto v The Queen (2008) 191 A Crim R 149
Jagou & Ors [2009] NSWCCA 167
Blackman and Waters [2001] NSWCCA 121PARTIES: Regina
Michael Roberson aka Michael LukeFILE NUMBER(S): 2009/00042534 SOLICITORS: Ms Kemp - Director of Public Prosecutions
Mr Karim - Offender (ALS)
SENTENCE
1 Michael Luke. I propose to sentence you to six and a half years imprisonment with a non-parole period of three years. Those sentences will be backdated to 7 August 2009 so they will be partially accumulative upon the balance of parole and other sentences that were imposed in the Local Court. You can take a seat while I give my reasons now.
2 Michael Luke appears today for sentence in relation to a number of offences that were committed between 3 April and 5 April 2009. If ever there was a case that highlighted the difficulties involved in applying properly principles such as those set out in the High Court decisions of R v Pearce and R v Markarian, this was such a case.
3 The prisoner was born on 19 June 1990. It follows thus that the offences with which I am concerned were committed when the prisoner was just short of eighteen years and ten months of age.
4 The offences for which he is to be sentenced can be summarised as follows in more or less chronological order. The prisoner has pleaded guilty to an offence of assault with intent to take and drive a conveyance. This was an offence committed on 3 April 2009 in respect of the vehicle owned by Faisal Alomari. This offence contrary to s 154C(1)(a) Crimes Act 1900 carries a maximum penalty of ten years imprisonment and has a standard non-parole period of three years imprisonment. The second offence is an aggravated taking and driving of a conveyance without the consent of the owner in company. This is the conveyance of Nelson Lim. This offence was committed on 4 April 2009 and is an offence contrary to s 154C (2) and carries a maximum penalty of fourteen years imprisonment, with a standard non-parole period of five years imprisonment. The third offence to which I will refer is an offence of robbery in company of Xie Zhuokang committed on 4 April 2009. This is an offence contrary to s 97(1) Crimes Act and carries a maximum penalty of twenty years imprisonment with no standard non-parole period.
5 This offence is one in respect of which I am required to take into account three offences on a Form 1. The three offences on a Form 1 are two offences of driving a conveyance taken without the consent of the owner, these offences committed on 4 and 5 April 2009 and relate to the motor vehicles the subject of the first two mentioned charges, the third offence is a separate criminal enterprise involving the accused being an accessory after the fact of robbery in company committed on 4 April 2009, when he drove the perpetrators away from the crime. I will give details of that offence soon. That carries a maximum penalty of 14 years imprisonment. The maximum penalties in relation to the driving matters are five years imprisonment in each case.
6 The fourth indictable offence for which I must impose a separate sentence is a robbery in company committed on a young woman called Amanda March on 5 April 2009. This offence likewise is contrary to s 97(1) Crimes Act 1900 and carries a maximum penalty of twenty years imprisonment. There is no standard non-parole period.
7 The prisoner was arrested in relation to these matters on 2 June 2009. He was, however, in custody having been previously arrested in relation to an unrelated assault charge on 13 May 2009. In respect of that charge he was, whilst in custody, sentenced to a term of imprisonment of three months, which was backdated to the date he came into custody, to expire on 12 August 2009. At the time of the commission of that offence the offender was in breach of parole. That parole was revoked and the prisoner was ordered to serve the balance of the parole period and that was fixed by the Parole Board to run from 13 May 2009 until 17 September 2009.
8 The statement in the Crown’s cover sheet asserts that the sole period in custody referable to this matter commences from 8 September 2009. Before I get to the facts, I might indicate from the outset that I have regard to the periods in custody which are unrelated to this matter. I have concluded ultimately that I should not make the commencement date of any sentences I impose wholly cumulative upon those periods of custody and I foreshadowed in my earlier remarks to the prisoner that the commencement date of sentences effectively will be from 7 August 2009 and thus will be partially accumulative upon the sentences that the prisoner has sentenced either by way of revocation of parole or common assault. As I have just noted in the course of exchange with counsel, the offences with which I am concerned are said to be not committed whilst on bail, on parole or on a good behaviour bond.
9 The Crown has presented a statement of facts which is not disputed and to summarise the contents of that statement of facts, the first offence in time is the offence contrary to s 154C(1)(a) the assault with intent to take and drive a conveyance or car jacking offence committed by himself against Faisal Alomari on 3 April 2009. This is sequence 1 in the variously numbered sequence of charges. What happened in that matter is that in the early hours of the morning the victim was driving his motor vehicle, a Toyota Camry sedan registration plates AA-54-JC, east along Maroubra Road, Maroubra. The vehicle stopped at a red light and whilst he was stationary the prisoner walked over, said to the victim, “Get out of the car”, reached into the car through the open window, turned off the ignition and took the keys out of the ignition. The prisoner again said, “Get out of the car”, threatened the victim and then punched the victim a couple of times in the head. The victim went towards the passenger side to get away from the reach of the prisoner. He then got out of the car. The prisoner entered the car and then drove the motor vehicle away. This vehicle was found the following day at Randwick Racecourse and there is footage which shows the vehicle being pushed into property of the AJC and the prisoner is apparently able to be seen in that footage. The prisoner’s fingerprints were found inside the vehicle.
10 The next day at about 6.30pm, the prisoner was in company with two other men. Nelson Lim was parking his black Mazda 3 outside premises at Kingsford. He locked the vehicle using his remote locking device and when he was approximately fifteen metres from his vehicle walking away, two unknown males came up from behind him and stood in front of him. One of those males said, “Give me your car keys”. Mr Lim did not do anything at that point but he saw the prisoner standing behind the men. Lim gave the keys that he had in his pocket to a male who pushed him in the chest after again demanding the keys. All three men then ran to the vehicle. The prisoner got in the driver’s seat and drove the vehicle away. That offence is the aggravated in company offence of taking and driving a conveyance to which I earlier referred.
11 The Form 1 offence of accessory after the fact to robbery occurred nearly two hours later. The prisoner was driving the vehicle of Mr Lim. There were three unknown males in the vehicle at this time. They asked the prisoner to stop the vehicle which he did and the three men got out of the car. The three men then set upon two persons by the name of Lu and Peng. Lu was a woman. Her bag was grabbed. Peng intervened and Peng was then threatened and his backpack was taken from him. His backpack was returned to him and the offenders then returned to the vehicle driven by the prisoner and he drove away from the scene of the crime.
12 A very similar modus operandi was involved in the robbery in company matter involving Xie Zhuokang which is the principal offence for the Form 1 matters. This offence was committed only ten minutes or so after the accessory after the fact of robbery matter on the Form 1. The victim was walking in Meeks Street, Kingsford. Again the prisoner’s co-offenders approached the victim and demanded his wallet. One of the co-offenders punched the victim in the face. His glasses fell off him. The victim’s wallet was taken from his trouser pocket and the two offenders who had assaulted him ran towards the vehicle in which the prisoner was seated in the driver’s seat and the car was driven away by the prisoner.
13 The next robbery in company was committed the following day in the early hours of the afternoon at about 2.20pm. This was a Sunday. Ms March was a woman minding her own business, walking down a road in Blues Point. She was carrying some personal items and a bag containing clothing and some groceries. Two unknown co-offenders got out of the rear passenger side doors of the vehicle that was driven by the prisoner. They left the doors open, ran over to the victim and said, “Get her bags”. The victim was, as I said, carrying the property that I have identified, her handbag contained a wallet, keys, mobile phone and other personal items. The bags she was carrying were grabbed at by the attackers. The victim tried to get her arms out of the straps of one of the bags she was carrying. The right-hand side of her chest was scratched near her collarbone as she sought to disentangle herself from the bags that the offenders were trying to take from her. Her backpack and other bags were taken and that property was taken to the vehicle driven by the prisoner and he drove away.
14 The robbery in company committed on Li Li (the accessory after the fact matter on the Form 1) occurred it is said at 2:45pm, only twenty-five minutes after the robbery of Ms March. This occurred back in the Kingsford area. The victim was walking along a street in Kingsford, saw three offenders talking amongst themselves. A description of those persons is included in the facts. As she walked past, one of the men grabbed her handbag. Another offender tried to grab her iPod which was in the left-hand shirt pocket. That offender was unsuccessful. Ms Li struggled to hold onto her handbag and an unknown co-offender then punched her in the head, demonstrating his great “courage”. This caused the poor victim immediate pain and the victim fell to the ground and the vehicle of Mr Lim which was parked nearby was driven off by the accused. The prisoner drove away.
15 The two vehicles that had been taken by force, once by the prisoner alone and the other when in company with others, were recovered. Mr Lim’s vehicle was driven into the Holsworthy railway station car park. The prisoner got out of the driver’s side door, another unknown male in the front passenger seat got out. The prisoner secured the car by remote control and then the two men ran down to another level and jumped in a motor vehicle which was identified in the facts and that would appear to have belonged to the prisoner’s sister’s boyfriend. A number of items belonging to Ms March were located in that vehicle.
16 On 2 June 2009, investigators from the Metropolitan Robbery Unit went to the MRRC at Silverwater, the prisoner was cautioned and the prisoner made various admissions in relation to the various offences with which I am concerned. He made admissions in relation to the taking of the vehicles of Mr Lim and Mr Alomari. He said in relation to the robberies that he received some money from the offenders in the vicinity of $400 to $500 claiming, “I was just the driver. We just do what we have to do”. He said nothing was planned but he conceded that he understood that they were going to commit robberies. He was shown some film footage from the Holsworthy railway station closed-circuit television system and he admitted that he was there.
17 The prisoner pleaded guilty at the Local Court and as the matter unfolded in the course of submissions having regard to the circumstances of the committal of the prisoner and the admissions made by the prisoner that led to his inevitable conclusion, it is a matter where it is appropriate to give the prisoner a discount of twenty-five per cent upon the otherwise appropriate sentences for each matter to recognise, what I may call generally, to be the utilitarian benefit of the pleas of guilty.
18 The offender’s criminal history reveals quite a number of appearances in the Children’s Court commencing in late 2004 when the offender would have been approximately fourteen years of age. Most of those offences involve the minor matters of dishonesty or the misuse of motor vehicles. There is a finding of guilt in relation to breaking, entering and stealing and what could be loosely called other driving offences. The offender was, in 2007, the subject of a number of further orders in the Children’s Court, including control orders, involving committal to Juvenile Justice institutions. The offender first appeared in the Local Court as an adult to appear in respect of the common assault matter, to which I referred earlier, with which he was charged on 13 May 2009. For that offence he was sentenced to a term of imprisonment as I mentioned. He was, however, on 23 April 2008 sentenced to a control order in respect of two offences of taking and driving a conveyance without the consent of the owner, for a period of twelve months with a non-parole period of eight months, hence the revocation of parole. There is a finding of indecent assault against him in 2004 and he was required to undertake intensive therapy in relation to that matter. He was granted a bond for that. The detail of his criminal history I have only dealt with in summary. Certainly, the criminal history reflects much which is reported upon by the Probation and Parole Service and the psychologist who prepared a report.
19 In relation to the offender’s background, there has been prepared a psychologist’s report which was most useful, unlike some reports I have seen in recent times, which have done nothing more than repeat the history provided by the offender. Ms Player, a colleague of Dr Chris Lennings, quite exhaustively went through matters, not just from the perspective of the history provided by the offender, but also from the details of the testing that she did and a number of reports that had been previously prepared, including a psychological assessment report prepared in 2003, a Juvenile Justice background report, prepared in 2005, and other material.
20 The offender is the only child of his mother’s relationship with his father; his father gave evidence in the proceedings, I will deal with that evidence later on. The offender said that his mother was fifteen years of age when he was born and it is clear that the relationship between his mother and his father was limited. His mother is a lady of Aboriginal background and the offender spent some years cared for by his maternal grandmother because of his mother’s inability to care for him. There were a number of traumatic events that occurred in his early upbringing, a series of partners that his mother was involved with were a feature of his upbringing. One particular partner was a positive influence, but that person died in 2001. He gave a history of a half brother being killed whilst in foster care and it would appear that the offender himself had periods of time outside of family care. He estimated to the psychologist that since twelve years of age he would have spent a total of two years living in the wider community, otherwise he would have been in juvenile detention or in other care arrangements. The consequence of this is that he has had very little formal education beyond that provided for in Juvenile Justice detention. He has completed his Year 10 certificate whilst in detention. He has also completed a number of courses in detention including brick and block laying, commercial cleaning, horticulture, forklift driving, occupational health and safety and responsible service of alcohol courses, although he is not really put any of those courses to any real effect.
21 He has had, in fact, very limited work experience during the limited period he has been at large. He indicated in his evidence to me, and to the psychologist, that he had worked with the ‘Tribal Warrior’ organisation run by Shane Phillips, as I understand it, for a local Aboriginal corporation over a period of time. He has one child from an earlier relationship obviously formed when he was very young indeed. Apart from some historical injuries his health has been generally good. He claims to have used cannabis from the age of ten, orally ingesting amphetamines from the age of thirteen and using amphetamines and cocaine up until the time of his incarceration from time to time. He also was a heavy user of alcohol an asserted that prior to the commission of the offence with which I am concerned, he would have been orally ingesting amphetamine every second day and smoking heroin twice a month. He acknowledged to the psychologist the difficulties for him because of his alcohol and drug abuse. He had not been subject to any community rehabilitation programs.
22 The offender gave some history about his behaviour and attitudes in growing up and they reveal in a summary a lack of ability to control himself, to curb impulses and an attitude of anti-social behaviour. The psychologist administered a number of recognised psychological tests, including the Wechsler Abbreviated Scale of Intelligence, or WASI test, and the Millon Clinical Multiaxial Inventory test, to complete. The WASI test revealed that the offender was of average cognitive ability outperforming forty two percent of the normative sample of his age. He impressed with sound intellectual skills and his performance was commensurate with the testing that had been done some years ago by Ms Collins in 2003. These test reveal quite clearly that he has very significantly underachieved whilst at school and also underachieved in relation to employment, but one would expect nothing less of a person with so many opportunities in life.
23 So far as the Millon Clinical Multiaxial Inventory test was concerned, the psychologist formed the view that the offender provided open and frank responses to the questionnaire and made no attempt to present himself in a favourable light. She concluded that Mr Luke’s profile was commensurate with his self report, that he had difficulty with emotional regulation, that he would engage in self destructive and anti-social behaviours as a function of pessimistic thinking, negative attitudes or out of a sense of entitlement, with limited forethought or sensitivity to the needs of others. His offences that I am concerned with speak clearly, at the very least, of these types of attitudes. At the time of testing he had moderate levels of anxiety, and the tests revealed results consistent with a person who was dependent upon or concerned about his use of alcohol and drugs.
24 The formulation of the psychologist was that the offender was at the time of testing a young Aboriginal man of sound intelligence, he had a childhood characterised by unstable family attachments and the absence of any continuing male father figure and the various stresses of his home life, including his mother’s substance abuse, domestic violence that he observed, frequent changes of residence and school, had compromised his development for appropriate emotional responses for control of his anger and for control of negative and impulsive behaviours. The psychologist opined that given the early introduction and persistence of the stabilising factors in his life, he had developed entrenched and pervasive personality traits, stemming from his formative years including pessimistic and anti-social beliefs with a façade of self entitlement. The psychologist said it would appear that his problems with anger and impulse control, in conjunction with his problematic alcohol and drug abuse in the community have resulted in self destructive and unsociable behaviours. It was said by the psychologist that he was:
25 “A psychologically vulnerable young man who reveals a marked history of behavioural disturbance and adjustment difficulties in the community.”
26 Quite properly the psychologist identified relapse into drug and alcohol abuse upon his release as a key matter to be addressed. Also, the psychologist noted underlying these matters would be problems with anger management, emotional regulation and impulse control, and it was recommended that whilst in custody the offender should undertake the Violent Offender Treatment Program and that the offender should start addressing his propensity to aggressive behaviour. It was also recommended the offender should be the subject of some rehabilitation on release that was residential in character. He requires a lengthy period of supervision in the opinion of the psychologist, and requires assistance to deal with the problem solving, self management and self control skills which are important in leading a law abiding existence. The offender will also require employment assistance to address his underdeveloped employment skills.
27 I pause for a moment to point out that the psychological testing, both recently and a number of years ago, show the offender has the intellectual capacity to do much better than opportunities and performance have thus far provided or displayed and very much will depend upon the offender’s capacity to respond to those who seek to assist him.
28 The offender gave evidence before me and his father gave evidence. In the course of the evidence of the offender the offender revealed that he did not want to identify the people that committed the crimes with him. It is a matter of concern to any court that it is known to it that there are people in the community who are at large, perhaps, who have committed crimes of the character with which this offender has been associated. I cannot penalise him more than is objectively appropriate. I cannot hang out a carrot to him, offering hope of the reduction of any appropriate sentence to recognise cooperation with the authorities. But the offender’s contrition expressed to me and to others has to be seen in the light of the offender’s unwillingness to identify other offenders. That having been said, I accept the offender’s very deep concern that if he was to nominate his co-offenders there may be risks for him both inside and outside of custody. Certainly when he was approached by the police, by and large, with some prevarication he was prepared to admit his own guilt and to reveal what he knew of relevant offences, which is to his credit.
29 The offender spoke of the circumstances in which he was living at the time of the commission of these offences. He had established a link with his father before these offences were committed and had the opportunity to go up to Queensland and to see his father’s lifestyle in the Redcliffe area in the northern beaches of Brisbane. He had returned to Sydney to make some arrangements in relation to his personal affairs when these offences were committed, and I am prepared to accept to accept that one of the reasons these offences were committed was because when he returned to Sydney he went back to the use and abuse of drugs that he had temporarily put on hold whilst in his father’s care.
30 He gave evidence of his background of drug usage and abuse since a very young age. He spoke of the effect upon his of foster care and the effect upon him of the death of his half brother, and obviously the lack of love, attention and support that he had received domestically. He spoke positively of the future and indicated that he had in the past undertaken courses whilst in the care of Juvenile Justice, that he had obtained some certificates in custody most recently, but would wish to complete courses in relation to anger management and also the SMART Program. He would also wish to pursue and IT program with which he has been involved and Bible studies. He expressed regret for his conduct. He said that he was sad to have caused the harm that was caused to his victims. I point out in passing, as I will in summary at a later time, that much of the violence perpetrated on the victims in the course of the joint criminal enterprises to which he has admitted, was committed by others. It may be that he himself did not particularly or specifically approve of particular acts of violence. But certainly, by being part of a joint criminal enterprise, to involve himself in robberies in company he was prepared to take such action as was necessary to further the joint criminal enterprise and would have expected reasonably that in order to steal the property of victims force may be required. He spoke of the access to drugs in custody and said that he was determined not to use prohibited drugs whilst in custody, nor use prohibited drugs in the future. He said that he had last used amphetamines in around about March or April of 2009, and he said that he would wish to cut himself off from the associations that he previously had.
31 The offender struck me as a genuine witness. Of course his wishes for the future and his expectations for the future will clearly be sorely tested by the temptations that have undone him in the past.
32 His father’s evidence was very impressive indeed. His father made a special trip down from Brisbane. He is a man with something of a colourful past, the detail of which was not made known to me. But in recent years he has developed his own business in foil insulation installation. He is a hard working man who works seven days a week.
33 He had said that the prisoner came into his life about eighteen months ago. He knew little of him, having had barely any contact with him from shortly after his birth. He brought him up to Queensland to show him his lifestyle and was prepared to put him in the right direction both in terms of employment and in terms of life skills. The father has his own family now but has introduced the prisoner to his family, he can provide him with work, he can provide him with a residence and it would seem as though he could provide him with at least in the short term a stable family environment. The worry always is with a man as damaged as this prisoner that these stabilising influences may come to his life too late. But certainly the father’s evidence was of great importance in this sentencing proceeding to demonstrate that this prisoner does have alternatives, albeit that I noted that those alternatives were presented to him before he returned to Sydney to commit the offences with which I am currently concerned.
34 The prisoner was the subject of a Justice Health Report. I do not propose to reiterate the background material that comes from the prisoner himself in that report by and large. The prisoner has been the subject of various interventions by Justice Health whilst in custody. There are some occasional references to auditory hallucinations and the like but by and large the prisoner does not have any history of psychotic conduct. It would appear that such mental instability has been observed in any symptomology is consistent with the prisoner’s withdrawal from drugs or involvement with drugs both in and out of custody. The report in its diagnosis asserts the primary diagnostic matter is a background of poly substance abuse and alcohol abuse with some suggestion of drug induced psychosis in remission. There is opinion expressed in the “Diagnosis” as to the presence of an antisocial personality disorder, which I think is self evident. There is some self reporting of a brain syndrome arising from an injury suffered when he was a small child. There is not sufficient evidence to establish that the prisoner’s conduct or his attitudes are a result of some inherent disability.
35 The psychiatrist was of the opinion that there are no reasonable grounds to believe that the prisoner suffers from any developmental disability, but he notes in the report that the prisoner does come from a very disturbed background with a lengthy history of involvement with the criminal justice system particularly as a juvenile. He has a severe personality disorder primarily associated with his poly substance and alcohol abuse. The psychiatrist, Professor Greenberg, asserted that in his opinion the primary matters that the prisoner should address are alcohol and illicit substance abstinence and he would benefit from counselling in the future as well as psychological counselling. Ultimately, the conclusion to be drawn from the combination of the psychologist’s report and the medical report is that the prisoner does not have any particular psychiatric or psychological condition which is unamenable to counselling and treatment, or which might be said to explain the offending behaviour with which I am concerned at the present time.
36 I was confronted with a great many detailed submissions from counsel for the prisoner and the learned Crown Prosecutor. A number of the matters the subject of submission I have either dealt with already or will deal with in the course of addressing the various legal issues that I am required to address. Counsel for the prisoner was particularly concerned to address the implications of Henry v R (1999) 46 NSWLR 346, the guideline judgment in relation to armed robbery, and also to press upon the Court the need for the Court to give very close consideration to the treatment of a young offender perhaps not settled in a criminal lifestyle but with deep seated antisocial attitudes who could fairly be said to be highly institutionalised even at this early stage of his life.
37 The Crown’s general submissions pointed to the objective seriousness of the offending with which I am concerned. The inevitability of imposition of a term of imprisonment and the desirability of the Court giving proper effect to general and specific deterrence.
38 I have had very close regard to all that has been said by the parties. I have also had regard to all the other material that has been presented by the parties in evidentiary form. I point out in this matter that I was not provided with any victim impact statements from the victims, although it is clear that each of the victims would have been very greatly affected by the offending behaviour.
39 With regard to the offending behaviour the prisoner was of course the primary perpetrator in relation to the first “car jacking” matter. Thereinafter it might be fairly said in respect of all the other indictable offences the prisoner’s role was that of a participant in the relevant joint criminal enterprise. In fact in the Form 1 matter he was an accessary after the fact to the joint criminal enterprise and his role was to drive the relevant subject motor vehicle to enable his co-offenders to commit the crimes. I have already pointed out that some violence which is referred to in the facts was perpetrated by others. It is true the prisoner bears some moral culpability for that but it could not fairly be said that the prisoner necessarily approved or was aware of beforehand the fact that one or other of his co-offenders might strike the victims in the course of committing the respective robberies. The offences were of course committed over a relatively limited period of time but it cannot fairly be said that they were part of the one criminal enterprise, they each were separate criminal enterprises.
40 There is a relationship of the offences, one to the other in a temporal and factual respect. The taking of the motor vehicles ultimately led to the use of the motor vehicles or at least one of the motor vehicles for the purposes of the commission of the robberies. The offences on the Form 1 in relation to the use of motor vehicles directly related to the offences that are brought against the prisoner pursuant to s 154C Crimes Act, in their respective forms.
41 There are, as it follows from the submissions and it follows from my obligation as a matter of law to address all relevant legal matters, a number of legal issues to be considered. One matter to be considered without taking them in any order of importance is the fact that I am required to sentence the prisoner for the relevant principle offence taking into account Form 1 matter.
42 The treatment of Form 1 matters has been the subject of discussion in a number of authorities but I need look no further than the guideline judgment reported at (2002) 56 NSWLR 147. There the Court of Criminal Appeal held that the fact that there are matters to be taken into account on a Form 1 means that in respect to the principal offence greater weight should be given to the need for personal deterrence and the community’s entitlement to extract retribution. “The entire point of the process” is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principle offence if sentenced alone. It was wrong, the Court said, to suggest that the additional penalty should be small, sometimes it will substantial, [18]. However, the court noted that the sentencing process is only concerned with the principal offence not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences and apply a discount giving appropriate weight to the matters referred to above. The Court stated that, “deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence”. There is no need to fix the extent of any increase upon the otherwise appropriate sentence for the principal offence. One has to have regard of course to the limits on the sentencing exercise, both the totality principal and the maximum penalty are relevant limits. Their Honours also noted that the offences included on a Form 1 will have a significant salience in the sentencing process for various reasons. However, a judge must be careful to assess whether it is appropriate to proceed to sentence on that basis as there may be cases where the administration of justice could be brought into disrepute by the Court proceeding to sentence a person guilty of a course of criminal conduct on a “manifestly inadequate, unduly narrow or artificial basis”.
43 I am required to have regard to s 3A Crimes (Sentencing Procedure) Act. This of course requires consideration of the competing purposes of sentencing set out in that section, including of course giving appropriate weight to personal and general deterrence but also ensuring that the offender is adequately punished, protecting the community from the offender, making him accountable and denouncing his conduct, recognising the harm to the victims of his crimes as well as promoting his rehabilitation. The balance of those matters, when one is dealing with a very young offender in the scheme of things, albeit an adult, is a matter of some considerable difficulty as the courts are well aware. The issue of the effect of the revocation of parole and other matters is a matter to be taken into account. The commencement date of the sentence must bear some realistic relationship to the time spent in custody in relation to the current subject matters whilst the revocation of parole is not something that ultimately transpires to be an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act. I have still had close regard to what Simpson J said in O’Callaghan [2006] NSWCCA 58. As I have foreshadowed I will commence the sentences partway through the period of custody attributable to other matters.
44 The primary matters that have concerned me though are the relevance of the standard non-parole periods fixed for at least two of the offences to this sentencing exercise and the implications of the guideline judgment of Henry (and others). Another feature of the matter that I have had to closely consider particularly in light of the submissions on behalf of the prisoner are the observations of the Court in respect of the relevance of drug dependency or addiction to the sentencing of an offender for a robbery type offence. In dealing with the issue of the standard non-parole periods, clearly as is required in the decision of Way v The Queen [2004] NSWCCA 131, even though these are sentences are occurring after pleas of guilty and even though Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act is not strictly applicable, the standard non-parole periods still perform the useful task of a reference point or guidepost amongst other words used in the judgment at [122] of the judgment in Way. In decisions such as Anderson v The Queen [2008] NSWCCA 211, as well MLP [2006] NSWCCA 271, the consideration of the relevance of the standard non-parole period falling within the middle of the range of objective seriousness have been discussed.
45 In Way (at [118]) in characterising whether the offence was one in the middle range of objective seriousness one has to have regard to the objective seriousness of the relevant offence considered in light of the facts which relate directly to its commission including those which may explain why it was committed so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind, circumstances of aggravation and mitigation present in the offence arising under s 21A(2) and (3) and those matters that are incorporated from the general provision set out in s 21A(1) are also to be taken into account.
46 It must be fairly said that both offences with which I am concerned could be regarded as fairly falling within the “midrange” but bearing in mind that in Way it was said the midrange was not a narrow band. It might also be fairly said in the scheme of things that the offences may fall at the lower end of the range, although the first offence in time did involve the infliction of blows to the victim. I note that property was a taken from the victim for use in the commission of other crimes, but each car was eventually discarded without significant damage as I understand the facts. The vehicles in question were held for only relatively short periods of time.
47 That having been said, of course, in the context of the discussion in Anderson and other cases the prisoner pleaded guilty. The pleas of guilty had very high utilitarian value in the scheme of things apart from the fact that they were entered early. They incorporate the cooperation of the prisoner such as to permit of successful prosecutions of him and also there is in this matter a range of factors that are clearly capable of establishing special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. Thus in the circumstances of the matter there are good reasons in fixing sentence, albeit after a plea of guilty, for departing from the standard non-parole period without losing sight of it completely.
48 With regard to s 44 Crimes (Sentencing Procedure) Act it is the case that the prisoner is subject to a term of prison custody for the first time in his life. He is a very young offender with a very difficult and problematic background. He will need an extended period of supervision to assist him to adjust to community living. The institutionalisation of a prisoner is something I have already commented upon. He has a background of drug and alcohol abuse and dependence, he also has psychological issues that need to be addressed and one would hope that he will get the intensive professional assistance that he will need, whether he wants it or not, to try and assist him to avoid offending in the future.
49 He will also require regular urinalysis to ensure that he is not using prohibited drugs whilst at large. This would be essential in my view to provide the assurance to the authorities that behind their backs he was not behaving in the way that brought him back into custody. I appreciate that there is the prospect or the promise of stability in his domestic life if he is able to return to his father’s family, but I would expect that intensive parole supervision could continue under the auspices of the Queensland authorities.
50 In any event I have come to the conclusion, obviously pursuant to s44 Crimes (Sentencing Procedure) Act that there are such ‘special circumstances’ that warrant a significant adjustment of the relationship of the non-parole period to the balance of sentence. Another feature of this case is that of necessity I am required to fix sentences that are concurrent and/or partly concurrent, partly accumulative. The accumulation of sentences is, of itself, a special circumstance as has been long recognised.
51 That aspect of the matter brings me to another issue before I turn to Henry principles which has excited a great deal of material. Both in the submissions initially made and in the supplementary material that was sent to my chambers this morning and the subject of discussion earlier today. I am required to sentence the offender for a large number of offences as I have set out. This requires very close regard to the principles set out in Pearce v The Queen (1998) 194 CLR 610, particularly at [45]. The issue is one of affecting an appropriate sentence that reflects the totality of the criminality. Of course I am mindful of the fact that questions of concurrence and accumulation are discretionary matters. I am reminded of what was said in MMK (2006) A Crim R 481, particularly at [11], that the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court.
52 I am also taken to the judgement of Justice Hall in the decision of R v XX [2009] NSWCCA 115, particularly at [52]. His Honour very helpfully sought to reiterate or state the principles as he understood them, relating to the fixing of sentences either concurrently and/or consecutively. I need not go through the various matters set out at para 1 through to 8 and following, but I note observations such as that, if the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk the combined sentences will exceed that which is warranted to reflect the totality of the offences. If not, the sentence should be at least partially accumulative, otherwise there is a risk the total sentence will fail to reflect the total criminality of the two offences. This is so, regardless of whether the two offences present two discrete acts of criminality or can be regarded as part of a single episode of criminality. Furthermore, in cases involving assault with violence, where the offences involve two or more attacks of considerable violence and are distinct and separate, or in cases where there are separate victims of the attacks, the closeness in time and proximity of the two offences will often not be determined to be factors. His Honour went on to cite the particular observations and particular judgments.
53 One of the difficulties in this particular matter is that the law requires me, in relation to those offences that carry standard non-parole periods, to fix non-parole periods. This is mandatorily prescribed by the legislation as some recent decisions of the Court of Criminal Appeal have made clear. But because that criminality is intertwined in material respects with the criminality involved in the three offences that do not have standard non-parole periods, and because one of the robbery in company matters is a principal offence for other matters to be taken into account on a Form 1, in structuring the sentences, whilst trying to give effect to totality, there may appear to be at first blush some artificiality. Particularly in the decision I have made to make the sentences for the three robbery in company matters largely concurrent, one with the other, except for the fact that the sentence for the offence with the matters to be taken into account on the Form 1 will be of course greater than the sentences to be imposed for the other two offences. This artificiality is something I cannot avoid. Unless of course I embarked upon the Texan approach of making each sentence for each of the indictable offences partially cumulative one upon the other. In the context of application of Pearce principles and the decisions that have been cited in submissions and which I have read from my own researches, I do not believe there is a necessity to attend to the matter that way. This attitude that I have adopted is to my mind confirmed in the judgment the Crown very helpfully sent to me this morning, in the context of endeavouring to assist the court with what could be called comparative sentences or similar offending. The judgment that the Crown forwarded to the Court and the subject of earlier discussion this afternoon, involved the sentencing of an offender for a number of offences, similar offences in many respects, although perhaps somewhat differently prosecuted to the robbery matters with which I am concerned.
54 That judgment of Arnaouto v The Queen (2008) 191 A Crim R 149, has a myriad of facts and circumstances too detailed and complicated for me to reiterate here, but I do note apart from some similarity in the course of offending over a limited period of time, noting of course the sentences that were imposed in the matters the subject of appeal and noting of course the offences including a carjacking offence of some considerable seriousness with a threat to kill a woman (included only on a Form 1) the offender in Arnaouto was much older than the current offender and was a much more experienced criminal. He was a man approximately thirty years of age at the time of the offending whose criminal history included an offence of armed robbery for which he had been sentenced to imprisonment in 1995 of four years, who had previously been convicted and sentenced for offences of a robbery in company in 1998 to five years imprisonment, with a number of offences on a Form 1, and who had been in gaol for other offences. Amongst the offences that offender committed, the subject of appeal, was an offence of escaping from lawful custody and assault occasioning actual bodily harm related to that particular escape. However, I have had regard to the sentences imposed for the principal offences in the spirit in which the Crown suggests them and the Crown’s spirit was of course very helpful and cooperative. It was not as if the Crown was suggesting that these various comparative sentences might lead to a longer sentence than might otherwise be contemplated. In fact, they may, in the Crown submission, lead the Court to consider something less perhaps than might otherwise be dictated, had the offences been committed by an offender with a longer criminal history than this prisoner with attendant aggravation such as previously having been on parole and the like.
55 I have also in the further written submissions for comparative sentencing purposes been assisted by counsel’s reference to the decision of Jagou & Ors [2009] NSWCCA 167. Again the facts are somewhat different. It might be said the offence in question in that matter, in terms of the commission of the robbery involved a far more serious violence than those offences for which this offender is to be sentenced, albeit that he played a minor role. On the other hand, I think the point made by his counsel which I take into account is, as with the much earlier judgment of R v Blackman and Waters, from 2001, in order to do justice in the individual case, there is still existing a wide judicial discretion. This brings me back to Henry and the guideline set out in the judgment of the learned Chief Justice to consider when dealing with robbery cases, that guideline is to be found primarily between [162] and [165]. I am not proposing to take the task as was undertaken in submissions of trying to weigh each of the criteria or features said to be common in an armed robbery offence sufficient to fix a guideline. Nor weigh the various matters of aggravation that are discussed at [170]. It was generally submitted that the learned Chief Justice had, at [185], proved an approach that would allow a very exceptional order if there was an exceptional history of drug addiction or dependency.
56 I am not sure that his Honour’s observations go so far, I understood his Honour to be generally approving not of what Justice Simpson said but approving of what Justice Wood said (at [273] and earlier) that drug addiction or drug dependency is not a mitigating factor in sentencing for robbery offences. However, drug addiction or dependency may be relevant because of the fact that an offence or offences are motivated by a need to obtain money to obtain drugs, they reflect upon the impulsivity of the offence or the extent of planning of it, may reflect upon the existence or non-existence of any alternative or reason that might operate in operation of the offence, may reflect upon the state of mind or the capacity of the offender to exercise judgment.
57 Here I am prepared to accept that these various offences were relatively impulsive, albeit I am convinced the offenders, when driving around in the car of Mr Lim were looking for people that they might readily rob and they chose victims that were clearly of some vulnerability. On the other hand, I believe the prisoner’s capacity to exercise judgment, given the consideration of the commission of these offences over a short period of time, was to some extent affected by the dependency from which the prisoner suffered. Drug dependency may also however have relevance to subjective circumstances as the Chief Judge at Common Law pointed out, including the impact upon the prospects of recidivism and rehabilitation, and consideration for offenders to be at the cross-roads and I have taken those matters into account. It clearly could not be said that the prisoner was at the crossroads, but I do accept the essence of the evidence of the prisoner, in conjunction with his father, that he may be moving to that particular juncture in his life’s journey. He should be assisted with the limited capacity I can assist the prisoner, given the weight that I need to give to general and personal deterrence.
58 If I may briefly turn to s 21A Crimes (Sentencing Procedure) Act. Ultimately, the various aggravations of the offending I have pointed to in my assessment of the facts, the relevant mitigating factors I find here are these: Firstly, I am satisfied the offences were not part of planned or organised criminal activity. Some offences may have been in fact impulsive but such planning as was involved was quite limited. I am prepared to accept that the prisoner has shown remorse for the offences through his evidence and acknowledging that loss and injury that has been occasioned. I accept as a mitigating factor his plea of guilty. He could not be said to have provided “assistance” to the law enforcement authorities, but he certainly cooperated with the authorities to the extent that he implicated himself in the relevant offending.
59 One matter of importance, at least to his counsel, was that I should make a positive finding that he has good prospects of rehabilitation and/or that he was unlikely to re-offend. Clearly, I could not make that finding on the balance of probabilities. I do not suggest that not being able to make that finding is a matter that grossly adversely affects him. I understand the prisoner’s future is problematic. He will face many temptations on his release from custody, assuming that he is released to parole and of course his past capacity to address temptation has been shown to be limited. I would need, as I have said on at least two occasions to his counsel, on the evidence in this case, a crystal ball to be able to make a positive finding of the type that was sought. That is not to say however that I do not believe that eventually the prisoner can commence along the road to rehabilitation. He himself, will need to make many adjustments including being able to control himself whilst in the wider community. He clearly is a disadvantaged young man who has not been given those opportunities nor given what could be called the schooling to enable him to meet those challenges. I am hopeful that the leadership of his father recently acquired, will provide him with that opportunity some time in the future. Thus it can be seen as I have worked my way through the matters that have been raised with the parties, I have addressed the principal matters of concern.
60 I get back to where I started, the sentencing of this particular young offender is a matter of some considerable difficulty. It is a matter where, when one reads the facts, one recoils in some horror at the callous assaulting and robbing of individuals for pure personal gain and ultimately it must be fairly said that anyone that wants to go out there and commit crimes simply to get money to buy drugs, is purely robbing people or stealing from people for pure personal gain. That having been said, the youth of the offender and his background of disadvantage is a matter that cannot be ignored, at least at this stage, and even if the prisoner is institutionalised, it may not be too late for something to be done which might assist the set of the ‘Gordian knot’ of offending and re-offending that has existed up until the present time. His criminal history does not speak favourably for the future. On the other hand, even allowing for his young age, it is by far and away not the worst criminal history I have seen in an offender of his age. This young man, with his intelligence and the matters that I have pointed out, may be able to grasp the future with greater confidence than many others of similar age and similar background. I trust that that is so.
61 On the other hand, it is not put in my power nor should it be, simply to allow the prisoner to go free now without there being some recognition of the seriousness of his offending. That requirement to impose some punishment, however, must be ameliorated to at least on this one occasion give him an opportunity that he may not be able to see today but will be self-evident to him when the opportunity for parole arises. Thus hopefully in this rush, in light of the developments since lunch time, having dealt with all the matters that I understand are required to be addressed, I will move to sentencing the offender. I will do this by reference to sequence numbers, could you stand up thanks very much sir.
62 In relation to the robbery in company of Amanda March on 5 April 2009 you are convicted, this is sequence 5, you are sentenced to two years and three months imprisonment. That term of imprisonment will date from 7 August 2009 and expire on 6 November 2011.
63 In relation to sequence 6, that is the offence of robbery in company committed on 5 April 2009 you are convicted, you are sentenced to two years and three months imprisonment, that will date from 7 August 2009 and expire on 6 November 2011.
64 In relation to sequence 1, that is the assault with intent to take and drive motor vehicle committed on 3 April 2009, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year, that will date from 7 August 2011 and expire on 6 August 2012. I fix in relation to that sentence, a balance of sentence of two years which will expire in 6 August 2014.
65 In relation to sequence 2, the aggravated in company take and drive conveyance, the offence committed against Mr Lim on 4 April 2009. you are convicted, you are sentenced to a term of imprisonment by way of non-parole period of twelve months, that will commence on 7 August 2011 and expire on 6 August 2012. In respect of that sentence I fix a balance of sentence of three years six months. I have made a finding of special circumstances including as I have earlier indicated, the need to accumulate that sentence on others.
66 In relation to sequence 4, the robbery in company of Xie Zhuokang, taking into account the three matters on the Form 1, you are convicted, you are sentenced to a term of imprisonment by way of non-parole period of nine months, which will commence on 7 November 2011 and expire on 6 August 2012. In respect of that sentence I fix a balance of sentence of three and one-half years. Those two balances of sentence will expire on my calculation on 6 February 2016. You may take a seat thanks very much.
67 Madam Crown I am sorry to have kept you so late. Now any technical matters?
68 FLEISCHMANN: Your Honour the only other thing I think there had been some discussion about where there was an unexpired portion between eighteen months that your Honour might refer this offender to the compulsory drug treatment correctional centre and I think that this matter does fall into that category, so I mean I think that happens as a matter of course.
69 HIS HONOUR: Well what am I required to do in relation to that. I certainly must say consistent with what has been reported in the psychiatry report and the psychologist’s report would strongly urge the Corrective Services Department where such programs are available, to put this prisoner through such a program if he was eligible for it. It would be of benefit to him and the community to have that opportunity and I do remember his counsel raising that issue with me and providing some material. What orders need to be made?
70 FLEISCHMANN: All your Honour needs to do is make the order for the referral--
71 HIS HONOUR: To the Drug Court?
72 FLEISCHMANN: That he be referred to the Drug Court for assessment.
73 HIS HONOUR: Right.
74 FLEISCHMANN: For participation in a compulsory drug treatment correctional centre program and then they will make the proper assessments.
75 HIS HONOUR: And who acts upon that recommendation, the Corrective Services?
76 FLEISCHMANN: The matter is referred I understand by the Registry out to the Drug Court and then they do an assessment and there are a number of things that they have to look at including the past offences that he has been convicted of.
77 HIS HONOUR: Corrective Services will do this will they?
78 FLEISCHMANN: Yes, once he gets out there, together with the Drug Court.
79 KARIM: But the order has to be made.
80 FLEISCHMANN: The order has to be made here.
81 HIS HONOUR: So just tell me the nature of the order that I need to make?
82 FLEISCHMANN: That the offender is referred for assessment to--
83 HIS HONOUR: It is an order is it?
84 FLEISCHMANN: I understand that it is an order.
85 HIS HONOUR: I order that the offender be referred to the Drug Court for assessment as to his eligibility for the compulsory drug treatment correctional centre program - that is at Parklea is it not?
86 KARIM: Yes it is your Honour.
87 HIS HONOUR: At Parklea, yes.
88 HIS HONOUR: I will ask that order be placed on the warrant.
89 FLEISCHMANN: Thank you your Honour. There are no other charges that need to be withdrawn.
90 HIS HONOUR: All the outstanding charges have been dealt with on the Form 1 and I note whatever s 166 certificate there was has been--
91 FLEISCHMANN: Dealt with.
92 HIS HONOUR: Well there are no outstanding back-up or related charges.
93 FLEISCHMANN: No.
94 HIS HONOUR: I understand that. Now Mr Luke the effect of the sentence I have imposed upon you is to fix a sentence of, in total, six and one-half years with a non-parole period of three years. That will make you eligible for referral for assessment to the Compulsory Drug Treatment correctional centre program. You have served obviously at least one year of your non-parole period now. I cannot direct that you be released to parole. That will be a matter for the Parole Board but the truth of the matter is that you have got the innate intelligence to at least understand what has happened and you have also got the innate intelligence to understand that when you go out into the wider community if you commit more robberies and the like, which you will inevitably be caught for one way or the other, you can expect to come back to court and spend many more years in gaol. In one sense the ultimate result is one that reflects your comparative youth, but I am also mindful of the fact that you are experienced enough to know your way around the system. You will have to understand of course that if you are released to parole after three years and you commit offences on parole, your parole will be revoked and you will need to serve the balance of the parole and such other sentences that are imposed. You will need to also understand, of course, that you are running out of opportunities. I know that you have had a life without opportunity. I am mindful of that. But the truth of the matter is that if you want to go back to the community and hang around with the people you hung around with before, then the opportunities that await for you in the future will diminish as sure as we are now sitting in this court. Thank you, you can go with the officers. Thank you gentlemen, I am sorry to keep you so late, I did not want to be back here until 4.30 myself.
95 Thank you Madam Crown for your assistance, I hope I made it clear to you and your colleague appearing for the prisoner, it was not as if I am ungrateful for assistance it is just that sometimes the timing of it does not permit for the attention that one needs to pay to the material. Anyway the problem I had was I had limited time today but I was very anxious to try and have this matter finished today because my availability otherwise was limited. So I appreciate your attendance and I am very sorry I kept you and Mr Karim back so late, thank you. Thank you to the court staff for its assistance during the week, thank you.
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