R v Sebbens

[2020] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:	R v Sebbens [2020] NSWDC 213
Hearing dates:	20 March 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 4 years 2 months with a non-parole period of 2 years 10 months: at [24].
Catchwords:	CRIME — Violent offences — Armed robbery — Robbery SENTENCING — Penalties — Imprisonment SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Factual basis for sentence — Form 1 offences — Moral culpability — Multiple offences — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 R v Henry (1999) 46 NSWLR 346
Texts Cited:	Bugmy Bar Book Project
Category:	Sentence
Parties:	Regina (Crown)   Daniel Sebbens (Offender)
Representation:	Ms J Todhunter (Crown)   Mr J Brock (Counsel for the offender)
File Number(s):	2019/104300

Judgment

1. Daniel Sebbens is now 39 years of age, he has, as Mr Brock put on his behalf, had a wretched start in life and he has spent 16 out of the last 20 years in custody. His background brings into play the full constellation of Bugmy (Bugmy v The Queen (2013) 249 CLR 571) type features.

2. He appears for sentence having pleaded guilty to three offences:

1. Sequence 001: An offence contrary to s 97(1) of the Crimes Act 1900, of armed robbery, in which the offender was armed with an offensive weapon namely a knife. This offence carries a maximum penalty of 20 years imprisonment with no standard non-parole period.

2. Sequence 004: A robbery offence contrary to s 94(a) of the Crimes Act 1900. This offence carries a maximum penalty of 14 years imprisonment. As Mr Brock acknowledged this was probably preferred in circumstances where he was fortunate not to have been charged with armed robbery under s 97 of the Crimes Act 1900.

3. Sequence 005: An offence of being armed with a knife with intent to commit an indictable offence, namely intimidation, contrary to s 114(1)(a) of the Crimes Act 1900. This offence carries a maximum penalty of seven years imprisonment withno standard non-parole period..

3. There is a Form 1 offence (sequence 003) to be dealt with in relation to sequence 005 of assaulting a police officer in the execution of duty contrary to s 60(1) of the Crimes Act 1900, which carries a maximum of five years. The Form 1 matter will be dealt in the way suggested by the Chief Justice in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146..

4. He has been in custody since his arrest on 3 April 2019 and it is common ground that no alternative to full-time imprisonment is appropriate.

5. He was subject to a section 9 bond for two years at the time of this offending which was imposed along with terms of imprisonment for a number of other offences at Nowra Court in June 2018. It is common ground that a short fixed term of imprisonment should be imposed in relation to the breach of the bond, and I will indicate that a three month term of imprisonment with an accumulation of one month will be imposed for that breach.

6. I took an unusual course, for me, and indicated to Mr Brock, having read the material, what sentences I was minded to impose before hearing oral submissions and Mr Brock, while frankly indicating that those suggested sentences were within range, admirably performed the task of counsel for an offender and has persuaded me that the final sentence to be imposed should be somewhat less than my original indication.

Facts on Sentence

7. The first two robberies were captured, as they usually are these days, on CCTV and graphically depict the circumstances summarised in the agreed facts.

Sequence 001 Armed Robbery

8. The first armed robbery occurred on 3 April 2019 at about 4.30pm. He went to Sam’s Superstore in Revesby, having been into the store earlier on. He had a hood over his head, holding a knife in his left hand in front of his stomach which was visible to the storekeeper. There was a female customer who picked up her child and ran from the store. The shopkeeper turned around to pick up his phone to call the Police. As this happened, Sebbens reached over the counter, opened the cash register and grabbed some money being about $300 in $50 notes. The shop keeper, grabbed his hand and the offender pulled away, still holding some cash, and ran out of the store.

Sequence 004 Robbery

9. About 20 minutes later he went to an Australia Post in Panania. There were three employees behind the counter. He had a white handle knife sticking out the back of his shorts, but it was not used as part of the robbery. He told Ms White, one of the attendants behind the counter, that he wanted $1,000. She initially thought he wanted cash out of his account. He was holding a cloth over his face ensuring that it remained covered. He told one of the employees to put some cash into a plastic pouch. They then realised that he was trying to rob the store, and the three employees ran to the back office and locked themselves in. He then jumped the counter and tried to open a number of drawers and eventually pulled the whole register out of its place and jumped over the counter and ran from the store.

Sequence 005 Armed with intent

10. As he was carrying out this robbery, a customer had left the store and called her husband who was an off duty police officer. He saw the offender outside the store. The offender pulled out the knife and said “Just back up, back the fuck up mate”. The off-duty policeman said “just go mate” and the offender walks south along Anderson Avenue and you see him leaving in a car on the recorded CCTV footage.

11. Later that evening Police went to his house, and found the items that he was wearing during the robberies, the knife, a key to the car, $50 cash and the stolen cash register, hidden in the garage.

Form1: Sequence 003 Assault police officer of the execution of duty

12. While he was being strip-searched at Bankstown Police Station that night, he was holding an uncapped syringe. The Constable told him to drop it on many occasions and the offender waved the syringe in his direction and yelled out “get back, I’ve got Hep C”. Again this was captured on CCTV footage and the uncapped syringe and a further capped syringe and a small resealable bag were found on the floor of the change room.

13. As I have indicated the offender has a very lengthy custodial history for offences of dishonesty and violence.

14. I take into account the victim impact statements specifically excluding the reference to the knife which was not a part of the offence.

15. There is a detailed psychological report setting out a history which is consistent with the unchallenged evidence on affidavit from the offender’s mother and his partner as to the difficult circumstances of his upbringing and the significant support that he has from his family at present.

16. Mr Brock’s written submissions helpfully include a number of extracts from the new Bugmy Bar Book Project which support his submissions as to the negative impact of the background such as the offender’s. There is ultimately little in dispute between the Crown and the written submissions of Mr Brock. The key issue in contention between the Crown and Defence is the assessment of the armed robbery in relation to the R v Henry (1999) 46 NSWLR 346 guideline judgment. The Crown opposes the Defence characterisation of the offence as “significantly less serious” than general features considered in the Henry guideline. The Crown, while acknowledging distinguishing features of this case which both increase and decrease the seriousness of the offence, submitted that it was probably appropriate to regard it as a typical Henry armed robbery.

17. While on one view it might be described as a snatch and grab; he ran into the store with his face and his eyes covered, holding a knife in front of his stomach. He did not use any threatening words, but as the Crown said, he did not need to, it would have been implicit that he was there for money.

18. As to the Australia Post robbery, the Crown accepts that it is towards the low range of objective gravity. There was no great sophistication or planning but it was perpetrated against a vulnerable female shopkeeper and her fear was evident as she yelled out to the other employees to run, as they went to the back office and locked themselves in.

19. The Crown agrees that the armed with intent offence and the Form 1 carrying with it fall between the low and mid-range, noting it’s brief duration.

20. The aggravating features are not in dispute. His significant record and the fact that he was on conditional liberty, are prominent.

21. The offender pleaded guilty in circumstances justifying a 25% discount on the terms of imprisonment.

22. The Crown acknowledges that the offender suffered significant deprivation and dysfunction during his childhood which may explain his recourse to violence, and acknowledges that moral culpability should be assessed in the light of Bugmy v The Queen (2013) 249 CLR 571.

23. The Crown acknowledges the diagnosis of schizophrenia, ADHD, substance use disorder and PTSD, but correctly points to the lack of any causal connection to the offending. I accept that the offending was more likely committed to obtain money to support a drug addiction. Mr Brock acknowledges that his prospects of rehabilitation must be guarded, at least.As the Crown indicated, the offender has had the benefit of a finding of special circumstances on two previous occasions. It is noted that there should not be a significant allowance for special circumstances, although clearly, as he approaches 40, the risk of institutionalisation if it has not already occurred, mean there is a need for some strict supervision for an extended period on his ultimate release.

24. The orders that I make are as follows:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. 001: 3 years, 8 months;

2. 004: 3 years;

3. 005, taking into account the Form 1 matter (003): 18 months.

3. I impose an aggregate sentence of imprisonment of 4 years, 2 months, to commence on 3 May 2019.

4. I impose a non-parole period of 2 years, 10 months, expiring on 2 March 2022.

5. I find special circumstances.

BREACH OF BOND: Section 9 bond (2017/383846-001) (H65962224)

6. The section 9 bond is revoked.

7. I impose a fixed term of imprisonment of 3 months to commence on 3 April 2019 expiring on 2 July 2019.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 19 May 2020