R v Souksavath

[2021] NSWDC 458

District Court

New South Wales

Medium Neutral Citation:

R v Souksavath [2021] NSWDC 458

Hearing dates:

4 August 2021; 3 September 2021

Date of orders:

3 September 2021

Decision date:

03 September 2021

Jurisdiction:

Civil

Before:

Weinstein SC DCJ

Decision:

Term of imprisonment of 2 years to be served by way of an Intensive Correction Order

Catchwords:

CRIME – Robbery in company

SENTENCING – Relevant factors on sentence – Background of disadvantage – Significant mental health issues – diminishment of moral culpability

Legislation Cited:

Children’s (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Casella v R [2019] NSWCCA 201

DPP v De La Rosa [2010] NSWCCA 194

Fisher v R [2021] NSWCCA 91

Green v R; Quinn v R (2011) 244 CLR 462

Karout v R [2019] NSWCCA 253

Kelley v R [2021] NSWCCA 173

Mandranis v R [2021] NSWCCA 97

Markarian v The Queen [2005] HCA 25

Moodie v R [2020] NSWCCA 160

Muldrock vThe Queen (2011) 244 CLR 120

R v Fangaloka [2019] NSWCCA 173

R v Govinden (1999) 106 A Crim R 314

R v Henry (1999) 46 NSWLR 346

R v Millwood [2012] NSWCCA 2

R v Pullen [2018] NSWCCA 264

R v Wong [2003] NSWCCA 247

Rossal v R [2021] NSWCCA 200

Wany v DPP [2020] NSWCCA 318

Category:

Sentence

Parties:

Regina

Thavisack Souksavath

Representation:

Mr Smith (ODPP)

Mr Baldeo, Counsel (Offender)

Solicitor:

Gary Stewart Solicitors (Offender)

File Number(s):

2019/381060

Judgment

1. The offender Thavisack Souksavath, born in 1997, is before the court for sentence for robbery in company, contrary to section 97 of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment and for which there is no standard non-parole period.

2. The agreed facts are as follows:

1. On 2 December 2019, Mr Souksavath was in the Cabramatta area with young persons DI, JP and JK.

2. At about 3:41pm, they entered the Whitlam Library. The offender was captured on CCTV footage wearing a black long sleeve shirt with a white ‘LA’ logo on the sleeves, dark blue puffer vest and dark blue sweat pants.

3. The group then went to Cabra Vale Park.

4. At about 4:11pm, the victim was walking along a footpath that runs through an open grassed area in the park. At some areas of the park there are trees and bushes on either side of the footpath. The victim was talking on his mobile telephone, which he was carrying in his hand. He was wearing a satchel bag across his chest. Inside the bag was his leather wallet valued at between $720 to $780. The wallet contained $70 to $80 in cash and various identification cards, including a Medicare card, a Commonwealth Bank debit card and a Malaysian driver’s licence, two bundles of cash (respectively containing $1,000 and $400), his house keys, Apple Pod earphones and two packets of cigarettes.

5. JK walked in front of the victim to obstruct his path. The victim cannot recall whether he was still talking on his mobile telephone. Shortly afterwards, the offender and DI approached JK and the victim. JP walked into some bushes on the side of the footpath.

6. JK said to the victim, “I want your bag. Take it off. I want it.” The victim responded, “Why?” JK grabbed the victim’s left shoulder. A member of the group tried to pull the victim’s bag from his grip, but the victim held onto the bag’s strap with the same hand that he used to hold his mobile telephone.

7. A member of the group punched the victim to the right cheek. The victim fell to the ground and his prescription glasses fell off onto the ground. A member of the group continued to hit the victim to the back of the head on at least four occasions while he was laying on the ground. The victim tried to protect himself by covering his head with his hands.

8. JK pulled the victim’s bag from his grip. The victim managed to hold onto his mobile telephone.

9. The three members of the group who assaulted the victim then ran away. The victim recovered his glasses from the ground and ran after the group. JP emerged from the bushes and pursued the victim and the other members of the group.

10. The offender, DI and JK ran approximately 200 metres along a nearby road until they arrived at the driveway of an apartment complex. Shortly afterwards, JP arrived at the same apartment complex. The victim yelled out to the group, “Just give me back my licence and ID.” Shortly thereafter the group ran behind the apartment complex and the victim lost sight of the group.

11. At 4:17pm, the victim called a friend and then reported the incident to police.

12. The victim suffered a sore jaw and back of the head. The victim struggled to properly open his mouth after the incident.

13. Soon thereafter police observed the offender and JP walking along Railway Street, Cabramatta. Police cautioned and arrested them.

14. At about 5:25pm police executed a search warrant at the offender’s family home. Police seized a dark puffer vest and a black long-sleeved shirt with a distinctive LA logo from the clothes line. CCTV footage seized from Cabra Vale Park shows the group, including the offender wearing his distinctive clothing, committing the offence. Trees partially obscure the actual assault.

Exhibits

3. Before me are 5 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A notice of committal;

2. A charge certificate dated 17 March 2020;

3. The statement of agreed facts (recited above);

4. The offender’s NSW criminal history;

5. The offender’s NSW custodial record; and

6. A Sentencing Assessment Report (SAR) under the hand of Natalie Talevski dated 5 November 2020.

4. Exhibit 2 contains three transcripts of the sentencing of the co-offenders in the Children’s Court: the sentence of JK by his Honour Magistrate Hayes on 30 June 2020, the sentence of DI by his Honour Magistrate Hayes on 16 September 2020 and the sentence of JP by her Honour Magistrate Price on 28 October 2020.

5. Exhibit 3 is a report of Anne Lucas, forensic psychologist, dated 14 May 2020 and which was prepared on the question of whether or not the offender was fit to plead.

6. Exhibit 4 is a letter from the offender’s treating psychiatrist Dr Kishani Atapattu of the Fairfield Community Mental Health Centre. The letter is undated, but it is apparent from the content of that document that it postdates 2 July 2021 and it is therefore relatively contemporaneous.

7. Exhibit 5 is a letter from the offender’s general practitioner Dr Vary Nou dated 22 July 2021.

Evidence

8. I will now summarise some of the documents which have been placed before me.

9. The offender has a minor criminal history. It is of note that he was convicted of robbery in company in 2015 when he was a child, for which he received a sentence of probation. As an adult, he has received a fine, a section 10A and a conditional release order for minor offences.

10. The SAR notes that the offender attributed his offending behaviour to his susceptibility of the influence of negative peers and his untreated mental illness. He assumed responsibility for his actions and he did not justify or minimise his behaviours. The offender expressed remorse for his actions and was appropriately reflective of his behaviour.

11. The offender disclosed a history of methamphetamine use and denied any recent use. He denied that he was under the influence of any illicit substances at the time of the offending, although he disclosed that he has consumed a gram of cannabis on a daily basis. He has been referred to a drug and alcohol counsellor.

12. Mr Souksavath claimed to have been diagnosed with drug induced psychosis and schizophrenia by a psychiatrist at Liverpool Hospital when he was a juvenile (see below). Although he had sought mental health case management from Fairfield Community Health Service in April 2021, he was subsequently removed due to non-engagement. He was reported to be compliant with the anti-depressant medication prescribed by his general practitioner. He asserted that his persistent use of cannabis would assist in his mental health treatment and he revealed that he has had some intention to reduce the use of the substance.

13. As to his insight into his offending, the offender displayed an awareness of the impact his offending had on the victim, acknowledging that had he had his property taken, he would not have liked it. It was noted that the offender retains the support of his father.

14. Mr Souksavath was assessed as a medium risk of re-offending according to the Level of Service Inventory – Revised.

15. Exhibit 2 contains transcripts of sentence proceedings of the three co-offenders, each of which took place in the Children’s Court.

16. The first in time (on 30 June 2020) was the sentence of JK who was 17 years old at the time of the offending. From the transcript it appears that it was the Crown case that JK’s role was the most serious of the four offenders. It was he who stopped the victim, told the victim that he wanted the bag, and grabbed the victim’s shoulder. The offending was aggravated because JK was on bail at the time of the offending. He was entitled to a discount of between 20%-25% for his plea of guilty. The Crown submitted that the section 5 threshold had not been crossed. His Honour found that the offending fell just under the mid-range of objective seriousness. He found that there was some planning. JK was sentenced to 12 months probation pursuant to section 33(1)(e) of the Children’s (Criminal Proceedings) Act 1987 (the Children’s Act).

17. The second in time (on 16 September 2020) was the sentence of IR who was 15 years of age at the time of the offending. He pleaded guilty at a late opportunity and was on a bond at the time of the offending. His role was less than the principal (JK). His Honour found that the offending was toward the low end of the scale of objective seriousness, and found that the offender’s prospects of rehabilitation were good. IR was sentenced to 7 months probation pursuant to section 33(1)(e) of the Children’s Act.

18. The third in time (on 28 October 2020) was the sentence of JP who was 17 years of age at the time of offending. JP had a significant prior criminal history including two robberies in company, one robbery with an offensive weapon and an assault with intent to rob in company. The offending was aggravated because JP was on parole. He had spent four months and 1 day in custody solely referable to this offending. His role in the robbery was the least of the four offenders. Her Honour found that the offending fell at about the mid-range of objective seriousness. She noted that there was domestic violence in the offender’s family which diminished his culpability. She found that his prospects of rehabilitation were very guarded and sentenced him to a 12 month control order (backdated by 4 months and 1 day), with a 6 month non-parole period pursuant to section 33 (1)(g) of the Children’s Act.

19. Exhibit 3 is a report of Anne Lucas, forensic psychologist dated 14 May 2020. This document was prepared regarding Mr Souksavath’s fitness to plead.

20. The offender was born in Fairfield. His father came from Laos and his mother from Cambodia. He grew up in Cabramatta. He said that he had an unhappy upbringing, his parents being in conflict much of the time. He denied physical violence had played a part in his parents’ conflict. He denied that he had ever been subjected to physical violence in the home. He spent considerable time at his grandfather’s home to escape the conflict in his family home. When he was 12 years old, his parents separated. He remained living with his father whilst his half brother and sister went with his mother. Not long after, his mother returned to Cambodia. He has had no contact with her since and does not know of her whereabouts. The offender reported that the separation from his mother had affected him badly in an emotional sense, and he soon gravitated to a group of peers who roamed the streets. He disengaged from his studies and started smoking cannabis in large amounts. He was angry and hurt at his mother’s abandonment. He reported a mixed relationship with his father.

21. The offender advised that for several years he has been prescribed psychotropic medication. He had been commenced on Lithicarb and Zyprexa at about 15 years of age (contemporaneous with the first robbery). He had been engaged with Fairfield Community Mental Health Services for this medication and had seen a psychologist since that time. He suffered from psychosis-like symptoms which he attributed to cannabis use. He said that he ceased taking the medication when he had been incarcerated in December 2019 and had not attended the Fairfield Mental Health Centre for review on his release. He was prescribed Avanza during his time in jail in early 2020.

22. In about year 8 he began to disengage from his studies. He began fighting with other students and truanting when he was about 12 years old. This corresponds to his mother’s departure from the family. The offender has had a sparse employment history. He reported that he engaged in a little bit of self-employed landscaping and yard work.

23. The offender commenced using cannabis from his mid-teens, and described himself as being a daily user of drugs but denied using any other illicit substances.

24. The offender was able to attend the assessment unaccompanied via public transport.

25. The offender’s mood was flat and he presented as lacking in emotional variability or responsivity. He denied current experiences of psychotic phenomenon. He reported that in the past he has seen things that other people could not, for example fleeting shapes in the periphery of his vision. He denied ever experiencing auditory hallucinations. He denied ever having paranoid thoughts. However he experienced perceptual abnormalities for about one year including the timeframes when he was not actively smoking cannabis. Overall the offender impressed as experiencing difficulties with diminished emotional expression, recurring blunted affect and reduced quantity of speech and a loss of motivation and interest. Deficits in these domains can reflect negative symptoms of psychosis and or more serious states of depression in Ms Lucas’s opinion.

26. Several tests were performed to assess the offender’s cognitive function. His IQ was estimated to be 85, placing him in the low average descriptive category. He had difficulties in the domain of verbal memory which may be reflective of his reported mental health problems associated with psychosis where verbal learning and verbal memory can be affected. His social behaviour was marked by a lack of interpersonal engagement and reduced emotional expression.

27. The offender did not present with active symptoms of psychosis at the time of the report. However the psychological history provided suggested to Ms Lucas that he may have suffered from a period of psychosis in the past. It was suggested that medical records be obtained. At the time of assessment he presented with a restricted emotional range and blunted affect. He impressed as understanding the serious nature of the offence for which he had been charged. On the basis of the cognitive assessment conducted, he would be expected to understand the nature and severity of the charges and their possible consequences.

28. Exhibit 4 is a report from the offender’s treating psychiatrist Dr Kisanthi Atapattu of Fairfield Community Mental Health, undated, but from at least 2 July 2021.

29. Dr Atapattu said that the offender is a 23-year-old single male living with his father. He has been known to mental health services since 2015 when he had his first episode of psychosis (at the age of 17). Since then he was initially case managed by the early psychosis team at Liverpool Hospital and is now managed by the Fairfield Community Mental Health Service (and case management service). He has a confirmed diagnosis of schizoaffective disorder with a history of comorbid polysubstance abuse. His most recent hospital admission was from 31 December 2020 to 7 January 2021. Dr Atapattu has seen him since January 2021 and the last psychiatric review was on 2 July 2021.

30. Dr Atapattu reports that during previous relapses, the offender has shown significant disorganisation and behaviour associated with impulsive and reckless behaviour, significant mood disturbances (depressive and manic symptoms), auditory hallucinations, persecutory delusions, delusions of reference, and grandiose delusions. His insight has been significantly impaired as well as his judgement. This has led to misadventure, risks of violence and also attempted self-harm and suicide in the past.

31. Since the offender’s most recent discharge from hospital he was showing gradual improvement. He is on Olanzapine 10 mg nocte and his father is closely supervising his medication compliance. On the most recent review, the offender did not show significant mood symptoms or psychotic symptoms.

32. Schizoaffective disorder is a permanent mental illness which requires lifelong treatment, and given multiple relapses in the past, the offender is likely to develop further relapses and deteriorate if he is not maintained on adequate treatment. Considering his diagnosis of a severe mental illness and the comorbid illicit substance use, the offender needs assertive treatment in the community, and case management provided by an adult mental health service (which is Dr Atapattu’s service). He needs to be regularly reviewed and his medication may need to be adjusted based on his clinical presentation. Further, considering the negative impact of co-morbid substance abuse on the prognosis of his condition, he may benefit from drug and alcohol services, whether a day program or a residential program. They will consider referral to rehabilitation services or to community occupational therapy and NDIA support in the future to assist his recovery, assist him in learning and improving social skills and function.

33. Exhibit 5 is a letter from the offender’s general practitioner Dr Nou dated 22 July 2021. It notes that the offender has a history of mental illness and that he was treated at the mental health unit at Liverpool Hospital. He confirms the diagnosis is schizoaffective disorder and that the offender is still on Mirtazipine and Olanzapine on a regular basis.

Objective Seriousness

34. The Crown submits that the offending falls at just below the mid range of objective seriousness. Mr Smith relied upon the guideline judgment of R v Henry (1999) 46 NSWLR 346 in coming to that conclusion. He submitted, relying on the seven Henry factors:-

1. That the offender was young, with a minor criminal history. This factor is present.

2. The presence of a weapon like a knife, capable of killing or inflicting serious injury. This factor is not present.

3. Limited degree of planning. Mr Smith submitted that the offender and the co-offenders were at the park for about 20-30 minutes prior to the offence. One of the co-offenders acted as a lookout. I agree that this factor is present.

4. Limited if any actual violence but a real threat thereof. Mr Smith submitted that one member of the group punched the victim to the right cheek and then others continued to hit the victim on at least four occasions. He said that this factor is slightly elevated. I disagree. In my opinion, there was limited actual violence, as submitted by Mr Baldeo on behalf of the offender.

5. Victim in a vulnerable position like a shopkeeper or a taxi driver. Mr Smith submitted that the victim was not vulnerable due to his employment position, but that there was some vulnerability because he was walking alone talking on the telephone. He said that this factor was slightly below that contemplated in Henry. Mr Baldeo said that the victim was not vulnerable in the manner contemplated in Henry. I agree that the victim was not in the same position contemplated by Henry, ie in an enclosed space with no escape. In my opinion, the factor as contemplated by Henry is not present.

6. Small amount taken. Mr Smith says that the value of the items stolen was considerable for an offence of this type, and that they were personal items that are difficult to replace. He accepted that the items were located in such a way that the offender could not have known precisely what was inside the victim’s bag. He says that this factor is slightly above that contemplated in Henry. I disagree. In my opinion, this factor fits squarely within that contemplated as small amount taken.

1. Plea of guilty, the significance of which was limited by a strong Crown case. This case is distinguishable by the offender’s early plea. In Henry there was a late plea.

35. Mr Smith noted that the Henry range with a 25% discount would be between 3 years and 4 months and 4 years and 2 months as a head sentence. He appropriately conceded that Henry is a guideline not a tramline. Rather, it is a check or a sounding board. Notwithstanding that comment, by operation of section 42A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), the guideline judgment has statutory force and sentencing judges are obliged to take it into account: see Bell P in Moodie v R [2020] NSWCCA 160 at [24].

36. I note that in earlier proceedings it was put by the Crown that JK had the most significant role of the four offenders. It follows that the offender’s role was less significant than JK’s.

37. The Crown does not rely on any aggravating features. As I have said, he says that the offending lies at just below the mid-range of objective seriousness.

38. It is submitted by the offender that in all of the circumstances, the offending lies at the low end of the range.

39. I take into account all the objective factors set out above which were pursued in argument. I also take into account the legislative yardstick of the maximum penalty of 20 years imprisonment. In my opinion, the offending sits somewhere just beyond the low range of objective seriousness, subject to any finding about his moral culpability, to which see below: see Fisher v R [2021] NSWCCA 91 at [71], Kelley v R [2021] NSWCCA 173 at [38]-[39] and Rossal v R [2021] NSWCCA 200 at [100].

Subjective Circumstances

Plea of Guilty

40. It is agreed that the offender is entitled to a 25% discount for his plea of guilty.

Prior Criminal History

41. The offender has a relatively minor prior criminal history. On 26 February 2014, when the offender was about 16 and a half years of age (and close to the time when he first became known to mental health services), he was charged with robbery in company. The Children’s Court sentenced him to a probation order, which was ultimately called up, and he was re-sentenced to 20 hours of community service.

42. In my opinion, the offender’s prior criminal history does not assist him, and disentitles him to leniency. It is not, however aggravating.

Time in custody

43. The offender was in custody in respect to this offence for 4 months and 29 days. Any sentence of full-time custody will be backdated to account for that time spent in custody.

Remorse

44. The Crown accepts, and I find that there is evidence of genuine remorse.

General Deterrence

45. The Crown submitted that general deterrence plays a significantly reduced role in this sentencing exercise in light of the offender’s mental health diagnosis, a proposition with which Mr Baldeo agrees. I add that it in my opinion the role of general deterrence has less of a role to play due to the offender’s background, to which see below.

Mental Health

46. The Crown accepts that the offender has suffered from and continues to suffer significant mental health issues. It is not known if the offender’s mental illness contributed to the commission of the instant robbery, although I note that there appears to be a co-relation between the onset of the offender’s mental illness and his criminal activity.

47. In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health likely contributed to - at least indirectly - and is linked to the commission of the offence. In my opinion, the offender's moral culpability is reduced on this account. I accept, as does the Crown, that general deterrence plays little role in this sentence, and which will be reflected in the sentence I will impose. Any sentence will be more onerous because of the offender’s need for intensive mental health support which is likely only available in the community. The offender’s mental health also reduces the significance of specific deterrence, taking into account the contemporaneity of his offending generally and his mental illness.

Disadvantage

48. The Crown did not dispute that the offender had experienced disadvantage in his upbringing, and in particular when his mother left the family home and returned to Cambodia. It was at this time at this time that the offender started to “roam the streets”. He has had no contact with his mother since that time and he has (rightfully) felt abandoned by her.

49. As a result, I find that the offender has suffered disadvantage because of his background. The effects of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise as per Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2, where her Honour said that a person in the offender’s position does not bear equal responsibility with the offender who had a normal or advantaged childhood. That is not to say that the disadvantage means that the offender bears no moral culpability. It is just to say that it is diminished.

Youth

50. The offender was just 22 years of age at the time of the offending. His youth is an important subjective feature in his case, in particular because of his low intellectual functioning set out in the report of Ms Lucas. It is well established that in dealing with young offenders, questions of general deterrence are of less importance than in the case of older offenders and that rehabilitation is given greater significance: R v Govinden (1999) 106 A Crim R 314 per Dunford J at [29]. I take the offender’s youth into account as a matter to synthesise on sentence.

Prospects of Rehabilitation

51. The Crown submitted that the offender’s prospects of rehabilitation are somewhere between relatively good and guarded. He conceded that the offender has made some encouraging recent progress, but noted that he will require significant and sustained medical intervention in relation to his mental health issues and his substance abuse. I agree with this last comment. In my opinion, taking into account the opinion of Dr Atapattu, and noting his comments that the offender is showing gradual improvement, that he is on Olanzapine and that his father is closely monitoring the offender’s medication compliance and that at the most recent review in July Mr Souksavath did not show significant mood or psychotic symptoms, I find that the offender’s prospects of rehabilitation are better than guarded, and will be good should he receive assertive treatment in the community.

Parity

52. The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike.

53. The Crown says that I would give parity very little weight taking into account that the co-offenders were sentenced by the Children’s Court where different sentencing considerations and objectives apply. However it is not irrelevant, and I accord it some weight: R v Wong [2003] NSWCCA 247 per Kirby J. I note that in this particular matter, the offender’s subjective case is much stronger than any of his co-offenders.

Threshold

54. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Special Circumstances

55. The Crown did not disagree that special circumstances ought to be found in light of the offender’s strong subjective case. I indicate that my reasons for finding special circumstances include the offender’s urgent need for intensive psychiatric treatment and the fact that this will be his first time in custody. I would deviate to a ratio of 50% because of special circumstances.

Sentence

56. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s urgent need for continuing psychiatric review and ongoing rehabilitation.

57. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

58. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guidepost of the maximum penalty and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

59. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, and after imposing a discount of 25%, I impose a sentence of imprisonment of 2 years. Without the 25% discount, his sentence would have been 2 years 8 months.

60. Having determined the term of the sentence, I now turn to consider the mode by which the sentence is to be served. Only two options are available, by way of full-time custody or in the community by way of Intensive Correction Order (ICO). If an ICO is made no non-parole period is to be set: s7(2) of the Sentencing Act.

Henry, Custodial Sentence and Exceptional Circumstances

61. It was submitted by the Crown that in a matter where the Henry guideline judgment applies, a non-custodial sentence can only be imposed if there are exceptional circumstances found. He submitted that no such circumstances exist in the present case.

62. Here the offender has already served part of his sentence in custody, and so it cannot be said that that there will not be a custodial sentence. Had I imposed a custodial sentence, because of special circumstances, the offender would have been released to parole in approximately 7 months.

63. In any event, in my opinion, exceptional circumstances exist. These are the combination of the offender’s youth, his background of significant mental illness which is best treated in the community and the very favourable steps he has made towards rehabilitation.

64. In these unusual and exceptional circumstances, I propose to consider an ICO.

ICO

65. I observe that Mr Baldeo submitted that an ICO would be appropriate in all of the circumstances of this case. I must consider whether the alternative to full time custody is appropriate, namely, in these circumstances, an ICO. On this question, I note that the passing of the Sentencing Act has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

‘We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.’

66. In R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Wany v DPP [2020] NSWCCA 318 and Mandranis v R [2021] NSWCCA 97, differently constituted courts of the Court of Criminal Appeal discussed the interaction of the competing purposes of sentencing on the consideration of whether a sentence of imprisonment should be served in custody or by way of an ICO.

67. I acknowledge that whilst an ICO has the capacity to operate as substantial punishment “there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of imprisonment”: Fangaloka at [67].

68. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Sentencing Act), and I have had regard to the recent decisions of R v Pullen [2018] NSWCCA 264, R v Fangaloka, Casella v R , Karout v R [2019] NSWCCA 253, Wany v DPP and Mandranis v R. Taking into account the compelling subjective case of the offender and the purposes of sentencing, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, is more likely to be addressed within the community rather than in gaol: s66(2) of the Sentencing Act. That determination must take place without any preconception in favour of incarceration as the only path to rehabilitation. I must weigh that determination with all other matters that are required or permitted to be taken into account. In arriving at these conclusions, I have considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment and synthesised all considerations in making a discretionary judgment aimed at achieving and imposing a just and appropriate sentence: s66(3) of the Sentencing Act. In the present case, taking into account the offender’s encouraging progress towards rehabilitation, I am of the view that community safety is not endangered by allowing the offender to serve his sentence in the community. I am not at all persuaded that the offender’s risk of re-offending would be more likely addressed by full-time detention.

69. I will adjust the length of the ICO by taking into account the time the offender has spent in custody, ie 4 months and 29 days: Mandranis at [58].

Orders

70. Mr Souksavath, please stand.

71. I convict you of robbery in company, contrary to section 97 of the Crimes Act 1900.

72. You are sentenced to a term of imprisonment of 2 years, less the 4 months and 29 days you have spent in custody.

73. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order.

74. The sentence will commence today on 3 September 2021 and will expire on 4 April 2023.

75. This Intensive Correction Order is subject to the following standard conditions:

1. You are not to commit any offence while subject to this Intensive Correction Order; and

2. You must submit to supervision by a Community Corrections Officer.

76. The following additional conditions apply:-

1. A non-association condition. You must not associate with any of your co-offenders during the currency of this ICO.

2. A rehabilitation and treatment condition requiring you to attend upon your treating psychiatrist Dr Atapattu and any other mental heath practitioner at Fairfield Community Mental Health as directed from time to time, and to attend upon your general practitioner Dr Nou each month for a review of your psychotropic medications.

3. An abstention condition. You are to abstain from taking any drugs other than those prescribed to you by a medical practitioner.

77. You must telephone the Fairfield Community Corrections Office within 7 days, that is by 10 September 2021.

78. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

79. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

80. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

81. Mr Souksavath, do you understand the orders that have been made?

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Decision last updated: 03 September 2021