R v Robertson

[2023] NSWDC 426

District Court

New South Wales

Medium Neutral Citation:

R v Robertson [2023] NSWDC 426

Hearing dates:

22 September 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Fulltime imprisonment. For orders see [50].

Catchwords:

CRIME – aggravated break and enter commit serious indictable offence.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

R v Fernando (1992) 76 A Crim R 58

R v Henry (1999) A Crim R 149; [1999] NSWCCA 111

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Director of Public Prosecutions (the Crown)
Chad Junior Robertson (offender)

Representation:

Counsel:
Mr E Anderson

Solicitors:
Mr Strainer (the Crown)

File Number(s):

22/46311

Publication restriction:

Nil.

REMARKS on SENTENCE

1. The offender is to be sentenced in respect of an offence pursuant to s 112(2) of the Crimes Act 1900 of aggravated break and enter commit serious indictable offence. The maximum penalty prescribed is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.

2. The offence occurred on 13 February 2022 and the offender was arrested on 16 February 2022. At the time of the offence the offender was on bail for two offences which occurred on 2 February 2021 of assault occasioning actual bodily harm in company of others and steal from person value less than $2,000. For those offences an aggregate sentence was imposed of 2 years and 9 months with a non-parole period of 1 year and 3 months commencing on 5 October 2021 and terminating on 4 January 2023. The offender has therefore been in custody for the index offence only since 5 January 2023.

3. The index offence was committed in company with three co-offenders who are referred to below. This is the circumstance of aggravation in the charge.

The sentence hearing

4. The sentence hearing took place on 22 September 2023. The Crown Sentence Summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows.

5. The offender was born on 28 April 1990 and was therefore 31 years of age at the time of the offence. In the early hours of the morning on 13 February 2022 the offender together with co-offenders Pickering, Risati and Rutherford were at premises in Mascot. During the early hours of the morning a Ms R Calabro exchanged a number of phone calls with the offender. She was at the home of D Sikais at Tempe with two other persons.

6. At 2:51am the four co-offenders left the Mascot premises in two vehicles and drove to the Tempe premises. Once nearby the Tempe premises all co-offenders relocated into one vehicle which then parked outside the premises. Rutherford was armed with a white pole and Pickering with a machete. The offenders then attended the Tempe premises at 3:22am as part of an agreement to intimidate the occupants at that address. They entered the courtyard of the premises and then forced entry into the residence by smashing the rear sliding glass door. The three co-offenders then entered the house and assaulted Sikais and another occupant, Mr Raiola. Sikais was struck in the face and Raiola was struck with a weapon on his right wrist. Sikais was then chased onto the street by the co-offender Risati who punched him several times before returning inside the premises. Sikais then moved back towards the courtyard of the premises however was chased onto the street again by co-offender’s Pickering and Risati before he managed to flee.

7. The four co-offenders then left the property and returned to the premises at Mascot with Ms Calabro. As the offender exited the vehicle, Risati approached him and slapped him twice with his left hand, gesticulated in his face and spoke heatedly at him.

8. Police were called and arrived at the Tempe premises a short time later. Both Raiola and Sikais declined to provide formal statements to police. Police observed a glass sliding door to the premises had been smashed and the fly screen door was lying in the courtyard. The premises appeared to have been ransacked with numerous items strewn about and blood droplets on the ground leading towards the lounge.

9. On 15 February 2022 police executed a search warrant at the Mascot premises where they found blood splattered clothing worn by the co-offenders during the commission of the offence and a court listing notice in the name of Mr G Raiola. A search of Rutherford’s vehicle revealed a 50cm long black machete and blood spots were also located on the bonnet of the vehicle.

10. At 7.25pm on Wednesday 16 February 2022 the offender attended Maroubra Police Station for an unrelated matter and was placed under arrest. He declined the opportunity to participate in an electronically recorded interview. The co-offenders were also arrested. Following his arrest on 7 June 2022 Risati made a number of admissions, including that following their arrival at the premises at Tempe he picked up a piece of wood approximately 30-50cm in length and hit the glass sliding door with it, causing the glass to shatter and the wood to break. He then used his left foot to kick the glass causing a laceration to his left ankle. He told police that he needed money at the time of the offence as he was homeless and went to the location to obtain money from the people within. He also admitted to assaulting Sikais several times by punching him to the face before the victim broke free and ran out of the premises onto the roadway. He then gave chase to the victim and punched him further whilst out in the street.

11. Exhibit A included the offender’s criminal antecedents. He had a number of minor offences in 2008 and 2009 which were dealt with by way of bonds or fines. In 2019 he was convicted of an offence of deal with property proceeds of crime no less than $100,000 and two supply prohibited drug offences for which he was sentenced to concurrent Community Correction Orders for a term of 12 and 24 months. His next offence was on 2 February 2021 in respect of which he was on bail at the time of the index offence.

12. Exhibit A also included the offender’s custodial record which revealed that since he has been in custody he has had seven infractions, two of which were for possession of drugs and four of which concerned assaults or fighting.

13. Exhibit A also included a Sentencing Assessment Report (“SAR”) under the hand of Ms N Salinas dated 14 August 2023. Under the heading “Attitudes” the author noted that the offender accepted limited responsibility for his role in the offence as he claimed he was not a willing participant. His attitude was described as “blasé” and implied that his role in the offence was minimal. He was unaware of the presence of weapons and denied knowledge of the planned attack. Further, his poor decision making was attributable to his level of intoxication.

14. The author noted the offender’s lengthy history of poly-substance and alcohol abuse which commenced in his teenage years and became increasingly problematic. He admitted to being under the influence of alcohol, prescription medications, ice, heroin and GHB at the time of the offence. He had been diagnosed with opioid dependence and is currently receiving treatment via an Opiate Treatment Program in custody.

15. Under the heading “Insight into impact of offending” the author noted the offender “shared feelings of guilt due to knowing some of the victims though, appeared mostly unconcerned”. He did however indicate a willingness to undertake intervention surrounding alcohol and other drugs, violence and aggression. The offender was assessed as a medium risk of reoffending and as suitable to undertake community service work.

16. Exhibit A also included the fact sheet for the offending on 2 February 2022 together with the relevant sentencing documents for the three co-offenders, including the Remarks on Sentence of her Honour Judge Wass SC dated 4 August 2023 when sentencing Risati and Rutherford. Both co-offenders were sentenced for a break and enter and commit serious indictable offence of larceny in circumstances of aggravation of being in company, pursuant to s 112(2), which charge carried a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. Both offenders also had an offence of affray taken into account on a Form 1 which carried a maximum penalty of 10 years imprisonment. Rutherford also had another matter taken into account on a Form 1, being an unrelated matter which gave rise to one count of dishonestly obtain property by deception and a break and enter. Both co-offenders pleaded guilty in the Local Court and were afforded a 25% utilitarian discount on sentence.

17. Rutherford was sentenced to a term of imprisonment of 2 years and 8 months commencing on 15 March 2022 with a non-parole period of 16 months which expired on 14 July 2023. Risati was sentenced to a term of imprisonment of 3 years and 3 months commencing on 7 July 2022 with a non-parole period of 20 months which expires on 6 March 2024. These sentences will give rise to the principles of parity to be applied in sentencing the offender for the index offence.

The offender’s evidence

18. Exhibit 1 was a report from Ms S Hawil psychologist dated 9 July 2022. The report was prepared in anticipation of the sentence hearing for the prior offences of assault occasioning actual bodily harm in company and steal from the person property value less than $2,000. The author set out the offender’s family background. He described an unstable upbringing in which he was exposed to substance abuse and domestic violence from an early age. He had been in an 11 year relationship which ended five years ago and produced three children who were at the time of the report aged 15, 12 and 5 years.

19. The offender described a disruptive schooling in which he was expelled from two different schools. He worked as a labourer and currently holds a Traffic Control Red Card.

20. The offender reported experimenting with cannabis recreationally from the age of 12 years. He reported using ecstasy from the age of 14 years and began using cocaine recreationally at the age of 18 or 19 years which quickly developed into daily use. He was introduced to ice at the age of 24/25 years and first used heroine at around the same age. He further reported over the past 10 years he had used Valium and Xanax on a daily basis, oxycontin and also ketamine.

21. Following psychometric testing the author was of the opinion that the offender met the criteria for the diagnosis of Conduct Disorder and Stimulant Use Disorders in respect of cocaine, amphetamines, opioids and sedatives. The offender also reported that he had been robbed at knife point by the victim in those proceedings at the age of 18 or 19 years. Ms Hawil set out a treatment plan for him.

22. Exhibit 2 was a report from Mr C Awit psychologist dated 17 August 2023. The author took a similar background history however the offender also advised that he had been sexually abused at school in Years 9 and 10. He had struggled with what had happened and found himself acting out, taking drugs and struggling with depression. Mr Awit also took a detailed work history however the offender had not regularly worked for the last five years. He also set out his history of drug abuse as reported above.

23. Mr Awit opined that the symptoms reported by the offender are consistent with a Generalised Anxiety Disorder (“GAD”), Major Depressive Disorder (“MDD”) and Substance Use Disorder (“SUD”). He noted that the offender expressed remorse in relation to his involvement in the index offence. The offender had reported that the events had unfolded quite quickly and he had no justifiable excuse to have been involved. The author opined that at the time of the offending the offender would have been struggling with symptoms of anxiety and depression and his substance abuse would have contributed to impaired decision making. He reported that the offender recognises that he now needs to change his life.

24. Mr Awit opined that the offender’s risk of reoffending can be reduced by ongoing psychological intervention and he set out a treatment plan for him.

25. Exhibit 3 was a letter from Mr C Thomas dated 18 September 2023 informing the Court that the offender will have fulltime employment with the author’s plumbing firm upon his release from gaol.

26. Exhibit 4 was a letter from the offender’s mother Ms L M Brown who had been communicating with the offender once a week since he was incarcerated. She described the offender’s close relationship with his children for whom she was now the carer. She stated that the offender is now aware of all of the wrong choices he has made and expressed that he will always have family support around him.

The Crown’s submissions

27. The Crown’s written outline of submissions noted that the SAR indicates he had expressed a blasé attitude to the offending and that his inclination towards reform is superficial and limited. The Crown noted the diagnoses set out by Mr Awit of GAD, MDD and SUD.

28. In his oral submissions the Crown conceded that the offender’s role was below that of both Risati and Rutherford, whose offending had been assessed by the Sentencing Judge as below mid-range.

29. The offender was entitled to a 5% utilitarian discount on sentence and the Crown conceded that a finding of special circumstances was warranted as this was the first time the offender had been subject to a substantial custodial sentence. The Crown noted the following aggravating factors:-

1. The co-offender Pickering was armed with a machete and the co-offender Rutherford was armed with a piece of wood.

2. The offence was committed in the home of the victims.

3. Violence was perpetrated on Mr Sikais, occasioning actual bodily harm.

4. The wounding of Mr Raiola required surgical intervention.

5. The offender had a record of previous convictions.

6. The offender was on conditional liberty at the time of the offending.

Submissions on behalf of the offender

30. Counsel for the offender accepted that the offender had been in custody solely referable to the index offence since 5 January 2023. The index offence was committed whilst the offender was on conditional liberty having been on bail. He had been sentenced in the District Court for that offence on 26 July 2022 and counsel submitted that a moderate degree of accumulation should apply to both sentences.

31. Counsel confirmed that the offender was entitled to a 5% utilitarian discount on sentence. The agreed facts upon which this offender was to be sentenced were very different and less serious than the facts upon which the three co-offenders were sentenced.

32. It was also submitted that if this charge had been available in the Local Court the offender would have pleaded guilty there.

33. It was submitted that the agreed facts established that the offender entered through the gate into the courtyard of the Tempe premises but did not enter the house. Nor did he inflict any injury on either of the two persons who were assaulted. Also relevant was that both Risati and Rutherford had been sentenced in respect of the index offence but also in respect of Form 1 offences which were taken into account in their sentence.

34. It was conceded that the offender attended the premises to intimidate those inside but that he had remained in the courtyard. He accepted that he was aware that Rutherford had the piece of wood, however the Crown accepts that he had no knowledge of the machete which Pickering had concealed. It was an aggravating factor that the offence occurred in the home of the victims.

35. In applying principles of parity, counsel submitted that on any view the offender’s role was the least of the four co-offenders. It was important to note that Risati had been sentenced for more serious offending together with a Form 1 offence of affray whilst Rutherford had Form 1 offences of affray, dishonesty, obtaining property by deception and a break and enter.

36. It was submitted that the offender’s significant subjective case demonstrated childhood deprivation and early exposure to domestic violence and drug and alcohol abuse, applying what Simpson J said in R v Henry (1999) A Crim R 149; [1999] NSWCCA 111 and R v Millwood [2012] NSWCCA 2, and applying the principles in R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, this diminished the offender’s moral culpability and also diminished the need for the significance of general deterrence in sentencing.

37. The offender accepted that he had not been a model prisoner and that the report in the SAR could have been better. He does however have significant familial support and employment available on his release from custody as well as a close connection with his children. Counsel noted that the Crown conceded that an order for special circumstances should be made.

38. Counsel submitted that the principle of totality had some work to do, and any sentence should be subject to backdating to achieve some accumulation with the sentence imposed on 26 July 2022.

Determination

39. S 3A of the CSPA sets out the purposes of sentencing as follows:-

"3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community".

40. In assessing the objective seriousness of the offending pursuant to s 112(2) I take into account that the offender entered the courtyard but not the premises at Tempe and that he otherwise did not engage with the occupants of those premises. He was therefore less involved than the co-offenders. Of those charged with the same offence the Sentencing Judge held that Rutherford’s involvement fell below mid-range and that Risati’s fell at or slightly below the mid-range. Having regard to all of the circumstances of the offending I find that the objective seriousness of the offender’s role fell within the low range of objective seriousness for an offence pursuant to s 112(2). It still constituted serious offending. I find the following aggravating factors have been established:-

1. The co-offender Pickering was armed with a machete and the co-offender Rutherford was armed with a piece of wood (s 21A(2)(c)).

2. The offence was committed in the home of the victims (s 21A(2)(eb)).

3. Violence was perpetrated on Sikais, occasioning actual bodily harm (s 21A(2)(b)).

4. The wounding of Raiola required surgical intervention (s 21A(2)(g)).

5. The offender has a record of previous convictions ( s 21A(2)(d)).

6. The offender was on conditional liberty at the time of the offending having been granted Supreme Court bail on 16 June 2021 (s 21A(2)(j)).

41. It is not a mitigating factor that the offender was well affected by prohibited drugs at the time of the offending. It does however, together with his history of drug addiction from an early age, give context to the offending.

42. General deterrence is important in sentencing for aggravated break and enter offences. A clear message must be sent to likeminded members in the community that Parliament has prescribed lengthy maximum periods of imprisonment, in this case 20 years, and a standard non-parole period of 5 years imprisonment and that the courts will impose condign punishment in appropriate cases. The maximum penalty and standard non-parole period are guidelines in the sentencing process.

43. Specific deterrence is also important in sentencing for such offences as the offender must understand that if he continues to offend in this manner he will be sentenced to increasingly long periods of imprisonment.

41. The offender pleaded guilty and is entitled to a 5% utilitarian discount on sentence.

42. The offender has incurred a number of infractions whilst in custody and has not progressed his rehabilitation. He does however have familial support in the community and employment available upon his release from custody. His prospects of rehabilitation must be somewhat guarded and his risk of recidivism will no doubt depend on him undertaking appropriate drug and alcohol rehabilitation so as to prevent relapse into drug addiction and a criminal lifestyle.

43. The offender was aged 31 years at the time of the offence and is now aged 33 years. The offending occurred in the context of poly-substance abuse and I find that the offender suffered childhood deprivation and abuse in that he was exposed to domestic violence and abuse of both alcohol and prohibited drugs together with sexual abuse. In accordance with the well-established principles in Fernando and Bugmy this diminishes somewhat the offender’s moral culpability for the offending and also the significance of general and specific deterrence in sentencing.

44. The principle of parity is a principle of equal justice where like cases should be treated alike, and different cases differently – see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. Thus in sentencing for the index offence I have taken into account the sentences imposed on the co-offenders Rutherford and Risati and have identified the following differences from this offender. First, those two offenders were sentenced, taking matters into account on Forms 1 and both were sentenced on statements of agreed facts which differed from the facts on which the offender is to be sentenced. On any view his offending was less serious than the other three co-offenders and it is clear that he had no knowledge that Pickering had armed himself with a machete. All co-offenders were at the Tempe premises for a very short period of time and other than entering the courtyard, this offender played a very small role in the offence. This offender however does not have youth on his side as a factor to be taken into account like the co-offenders.

45. Taking into account the objective seriousness of the offending, the subjective factors outlined above, a discount of 5% and applying principles of parity, I therefore intend to sentence the offender, having been satisfied that the threshold in s 5 has been crossed and no sentence other than imprisonment is warranted in the circumstances, to a term of imprisonment of 2 years and 4 months.

46. I make a finding of special circumstances as conceded by the Crown pursuant to s 44(2) of the CSPA and intend to vary the ratio between head sentence and non-parole period. I intend to impose a non-parole period of 1 year and 2 months to commence on 5 October 2022 and to terminate on 4 December 2023. The balance of term will be from 5 December 2023 until 4 February 2025.

Orders

50. I hereby order as follows:-

1. You are convicted of an offence pursuant to s 112(2) of the Crimes Act 1900 of aggravated break enter and commit serious indictable offence.

2. I sentence you to a non-parole period of 1 year and 2 months to commenced on 5 October 2022 and to terminate on 4 December 2023.

3. The balance of term will be a period of 1 year and 2 months from 5 December 2023 to 4 February 2025.

4. Your parole eligibility date is 4 December 2023.

Decision last updated: 13 October 2023