R v Steele

[2021] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:

R v Steele [2021] NSWDC 75

Hearing dates:

18 March 2021

Decision date:

18 March 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Custodial sentence to be served by way of intensive correction order. For Orders see [54] – [58]

Catchwords:

Multiple offences; robbery in company; young offender; immature offending

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Summary Offences Act 1988

Cases Cited:

Howard v R [2019] NSWCCA 109

Pearce v R (1998) 194 CLR 610

R v Henry (1999) 46 NSWLR 346

Yildiz v R [2020] NSWCCA 69

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Asher Steele (Offender)

Representation:

Counsel:
J Trevallion (Offender)

Solicitors:
M Rogers (Crown)

File Number(s):

19/351185

Publication restriction:

Nil

remarks on sentence

1. The offender, who was born in May 2001, is to be sentenced in respect of the following five offences:

H74833251/2 – armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900.

This offence occurred on 6 November 2019 and the maximum penalty proscribed is 7 years imprisonment.

H74833251/5 – robbery in company pursuant to s 97(1) of the Crimes Act 1900.

This offence occurred on 6 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

H74833251/7 – custody of knife in a public place (first offence) pursuant to s 11C Summary Offences Act 1988.

This offence occurred on 6 November 2019 and the maximum penalty proscribed is 2 years imprisonment and/or a fine of $2,200.00.

H74833251/8 – assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900

This offence occurred on 7 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

H74833251/9 – assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900.

This offence also occurred on 7 November 2019 and the maximum penalty proscribed is 20 years imprisonment.

There is no Standard Non-Parole Period proscribed for any of the offences.

2. The offender was arrested on 7 November 2019 and was in custody in respect of the index offences from 7 November 2019 until 24 April 2020, a period of 5 months and 18 days.

3. He then spent a period of 1 month and 3 days on strict bail conditions including a curfew.

The sentence hearing

4. The sentence hearing took place on 22 May 2020. The Crown Sentence Summary became Ex A. It included an Agreed Statement of Facts which may be summarised as follows.

5. At approximately 3.25pm on 6 November 2019 the offender and his co‑offender, Luc Bonnell, were in a public area at what is known as the Chatswood Interchange. They approached a 14 year old boy who was wearing his school uniform and a white Nike hat and had an Apple airpod in his left ear. The co-offender took the boy’s hat off his head and pushed him in the left shoulder. The offender then grabbed at the boy’s clothing before taking the airpod from his ear. The co-offender then pushed the victim again causing him to fall backwards. The co-offender and offender then threatened the boy, stating:

“We’re going to bash you, we’re going to stab you, your friends and everyone at your school.”

6. The co-offender and offender then ran away from the interchange towards Chatswood mall.

7. The incident was partially captured on CCTV. It occurred in full view of a large number of people, mainly school children, on their way to public transport. That was the conduct comprised in Sequence 5, robbery in company.

8. At about 3.30pm on the same day, the co-offender and offender approached a group of three boys who were in Telstra Lane, adjacent to the Chatswood Interchange. The offender asked the boys for a cigarette and was told by one of them to go away. The co-offender then said:

“If you want to fight let’s do it around the corner. There’s cameras here. Don’t be a pussy.”

9. The boy, who was aged 17, pushed the co-offender. As he did so, the offender grabbed his collar, at which point the boy punched the offender in the nose. The boy and co-offender and offender continued pushing and shoving, while one of the other boys tried to break up the fight.

10. During the confrontation, the co-offender reminded the offender that the offender had a knife. The offender then removed the knife from the front of his pants. It was described as a “flick” or “fold-out” knife. The offender started waving the knife in front of the three boys, saying:

“This isn’t going to slide. I’m going to put you in a body bag; I have boys.”

11. The incident was captured on CCTV and shortly thereafter the three boys left the laneway. The offender was observed to pass the knife to the co-offender. He then approached one of the young boys at a phone booth near the Chatswood Interchange and asked him to come around the corner, and began pushing the young person and throwing him around.

12. CCTV footage of the offending was recorded on a USB which became Ex B on the Sentence Hearing. This was the conduct that comprised Sequence 7, custody of a knife in a public place, and Sequence 2, armed with intent to commit indictable offence.

13. The following day, on 7 November 2019, at approximately 4pm, a young person aged 17 years was walking home from school and had just crossed the Pacific Highway, Lane Cove, when he was “blind-sided” by the co‑offender and offender. The offender confronted the young person and pushed him in the chest and shoulder. The offender indicated a bruise around his eye and blood around his nostrils, and accused the young person of knowing the person who had injured him, which the young person denied. The offender then struck the young person in the torso with his knee, causing him to be winded, and continued to threaten to bash him until the co‑offender intervened and told him to stop. The co-offender told the young person to empty his pockets and then searched his bag, but did not take any property.

14. A vehicle pulled up alongside the three, and the driver told the co-offender and offender to stop what they were doing. A passenger in the car threatened to get his pit-bull on them and showed them a dog in the back of the vehicle. The occupants of the car then took the victim home.

15. This was the conduct comprised in Sequence 8, assault with intent to rob in company.

16. A short time later, the co-offender and offender approached another young person aged 16 years in Lane Cove. The offender asked the young person what time a bus was coming, and then grabbed the young person around the neck and placed him in a headlock, forcing him across the road and against a fence. The co-offender and offender were standing over the young person when the offender said, “Give me your wallet”, and “why did you punch me in the eye?” The young person declined to hand over his wallet and denied punching the offender in the eye. The owner of the house came out and threatened to call the police, and the co-offender and offender left. This was the offence in Sequence 9, assault with intent to rob in company.

17. Exhibit A included a report from the NSW Police which showed that the offender had no criminal convictions.

The offender’s evidence

18. The offender tendered evidence on the sentence hearing which became exhibit 1, included an affidavit sworn by the offender on 20 May 2020. In it he deposed that he was very embarrassed and regretful for his involvement in the offences which he felt was out of character for him. He stated that he felt bad for the people involved, meaning the victims, and that he thought they would have felt scared and threatened. He further stated that he had not taken any illegal drugs since being taken into custody on 7 November and that he is now taking his medication every day and was in a routine with it. He was also in regular consultation with Dr Chan, psychiatrist, who is willing to continue with him as a patient. The offender stated that he eventually wanted to start an apprenticeship as a carpenter, but that he was for the moment concentrating on his rehabilitation. He stated that he was truly sorry for his involvement, that he had no one to blame but himself and that the offences were not pre-planned or discussed in advance, they were just done on the spur of the moment. He had only known his co-offender for a period of two weeks before the offending and finally he stated that when he sobered up he was shocked by what he had done and he wanted to sincerely apologise to the victims.

19. He also tendered a number of testimonials from his mother and father, from a neighbour Ms Moran and from a Mr Anthony Porter. They speak highly of the offender as a young person and attest to his otherwise good character and the remorse that he has shown since his offending. His father also outlined that the offender does know that he still has a long way to go to get better and that it was the offender’s idea to get help with his rehabilitation. It is clear that the offender has the strong support of his family.

20. Exhibit 1 also contains a number of reports from Dr Chan. The first is dated 15 September 2017 and sets out the background which brought the offender under his care, namely a history of anger outbursts at home and conflict with his parents that had been worsening in the previous 12 months and difficulties that he was having at school.

21. At that time Dr Chan diagnosed the offender’s pattern of behaviour as being consistent with a diagnosis of oppositional defiant disorder with an underlying generalised anxiety disorder. In a report dated 14 September 2018 Dr Chan reported to his local medical officer that he had changed schools and was on an antidepressant Fluoxetine on a daily basis. However he was continuing to smoke cannabis most days and was not motivated to quit. He had also started some counselling at Head Space at Chatswood which Dr Chan thought was a great idea.

22. On 15 November 2019 Dr Chan confirmed his diagnoses of generalised anxiety disorder, oppositional defiance disorder and cannabis use disorder.

23. In a report dated 11 May 2020, clearly for the purposes of these proceedings as it is addressed to the offender’s solicitors, Dr Chan opined that the offender continues to have a generalised anxiety disorder. Instead of oppositional defiance disorder he now makes a diagnosis of conduct disorder as a more accurate label. He described this conduct disorder as characterised by a pattern of persistent behaviour in which the basic rights of others or major societal norms or rules are violated.

24. Dr Chan also set out the offender’s misuse not only of cannabis but benzodiazepines and cocaine. Whilst he had not used drugs for six months since the time of his arrest, Dr Chan opined that he satisfied the criteria for substance use disorder in early remission. Importantly he opined that a fulltime residential rehabilitation program such as Odyssey House would be of benefit to the offender.

25. The offender, by his counsel, sought an adjournment of his sentencing pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). That application was granted on conditions, and my judgment delivered on 22 May 2020 should be read in conjunction with these remarks.

26. The offender was admitted to the residential program at Odyssey House on 25 May 2020. A letter from L Griffiths, senior therapist at Odyssey House, dated 3 March 2021 has become Ex 4. It reports positively on the offender’s time in that program, his positive engagement with all aspects of the program, and the fact that he has remained drug and alcohol free throughout the program, as evidenced by independent toxicology reports from the drug toxicology unit, NSW Health Forensic and Analytical Scientific Services. I note that the offender has not yet finished his treatment, however, he has not got very much left to work through on his treatment plan.

Offender’s further submissions on sentence

27. Learned counsel for the offender noted he had been resident in the Odyssey House program since 25 May 2020. It was submitted that the offender’s participation amounts to quasi-custody, as participants are subject to discipline and restrictions. Thus, he was entitled to credit for half the time spent in rehabilitation.

28. Counsel noted the aggregate sentence imposed on the co-offender, Bonnell, who was sentenced on 4 June 2020 for the same five offences, by way of an aggregate sentence of 2 years imprisonment with a non-parole period of 12 months. A finding of special circumstances was made based on the co‑offender’s youth, the fact it was his first time in custody, and his mental health and drug and alcohol issues.

29. Counsel submitted that the offender had spent a total of 9 months and 3 weeks in quasi-custody. That should be taken into account, together with the 5 months and 18 days in custody, prior to him being granted bail, and the period of 1 months and 3 days on strict bail conditions.

30. Counsel submitted that the offender presents with a stronger subjective case than that of his co-offender, primarily because it had now been demonstrated that the offender has good prospects of rehabilitation, low prospects of recidivism and he will be able to successfully reintegrate back into the community with the support of his family.

31. It was submitted that in all the circumstances, parity with the co-offender could be met with a sentence that takes into account the time he has served in custody, together with the quasi-custody of his residential rehabilitation program, “together with a parole period similar to that imposed upon the co‑accused”.

Crown’s further submissions

32. The Crown also filed additional submissions on sentence in which it properly conceded that the offender, having now successfully completed over nine months in a residential rehabilitation program, would lead the court to make favourable findings as to his prospects of rehabilitation.

33. The Crown also noted the offender had spent 5 months and 18 days in custody, and properly conceded that the 9 months and 3 weeks he has spent in Odyssey residential rehabilitation amounted to quasi-custody, and that whilst the degree to which quasi-custody is taken into account is a discretionary matter, a range of 50-75% has been frequently applied. The Crown submitted that the bail conditions imposed on the offender between 25 April 2020 and 24 May 2020 were not sufficiently strict to qualify as quasi‑custody, notwithstanding that a curfew was imposed.

34. With respect to parity with the co-offender, the Crown noted that the co‑offender had two relatively minor offences taken into account on a Form 1. It was submitted that the role of the co-offender was very similar in relation to Sequence 5, however, the offender played a greater role in all of the subsequent offending. The Crown submitted that the subjective cases of both offenders were very similar and ultimately the Crown submitted that a justifiable sense of grievance would arise if there was a marked disparity in sentences between the two co-offenders.

Determination

35. Section 3A of the C(SP)A 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.”

36. I make the following findings of objective seriousness in relation to each of the offences as follows:

1. Sequence 7 – custody of knife in public place (first offence) pursuant to s 11C Summary Offences Act 1988. This offence occurred towards the conclusion of the confrontation that took place in Telstra Lane, Chatswood, on 6 November 2019. It occurred when the co-offender was handed the knife by the offender as he approached one of the young persons after they had left Telstra Lane. The offending was of very short duration, and as submitted by the co-offender and agreed to by the Crown, it could be subsumed in the offending in Sequence 7. I find in all the circumstances the objective seriousness of the offending was at the lower end of the range for an offence pursuant to s 11C of the Summary Offences Act 1988.

2. Sequence 5 – robbery in company pursuant to s 97(1) of the Crimes Act 1900. The offending in the Chatswood Interchange took place over a very short period of time. Being in company was an element of the offence and there was little planning or premeditation involved. There was also very limited actual violence perpetrated on a vulnerable 14 year old boy and no injuries suffered by the victim. A small amount, namely, the airpod, was taken. I find that the objective seriousness of the offending conduct fell towards the lower end of an offence pursuant to s 97(1) of the Crimes Act. The application of the Henry guideline judgment is discussed below.

3. Sequence 2 – armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900. In assessing the objective seriousness of the offending here, I note that the custody of the knife was an element of the offence pursuant to s 114(1)(a). The indictable offence was that of intimidation pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007. I find that the offence was committed in company, and in the presence of a child. I also find that it occurred without regard to public safety. The use of a knife in a public place to threaten school children would obviously cause a real fear of immediate personal violence to them. I take into account, however, that the weapon was not in fact used for actual violence or to inflict any physical harm. The offending was not planned or premeditated and the co-offender’s possession of the knife was for an extremely brief period. I find that the objective seriousness of the offending fell towards the lower range for an offence pursuant to s 114(1)(a) of the Crimes Act 1900.

4. Sequence 8 – assault with intent to rob in company on 7 November 2019, pursuant to s 97(1) of the Crimes Act 1900.

5. Sequence 9 – assault with intent to rob in company on 7 November 2019, pursuant to s 97(1) of the Crimes Act 1900. The objective seriousness of each of the above offences was similar. Both were committed in company and involved actual violence. In both, the actual violence was perpetrated by the offender, however, the co‑offender is equally responsible as it was a joint criminal enterprise. Both offences were opportunistic with no planning or premeditation. Further, no weapon was used and the injuries to both victims, namely, winding of the first victim, and the second victim being placed in a headlock, were relatively minor. No property was lost in either case. For offences pursuant to s 97(1) of the Crimes Act 1900 I find that the objective seriousness of offending in both offences was at the lower end of the range for offences pursuant to that section.

37. In respect of each of Sequences 5, 8 and 9, the Crown submitted that the offending was “just outside the guideline judgment” in R v Henry (1999) 46 NSWLR 346, however, the guideline judgment was relevant to the sentencing exercise for each of the offences, notwithstanding that there was no armed robbery offence.”

38. The guideline judgment outlined seven factors which were relevant to assessing its application in arriving at a range of 4-5 years imprisonment for the head sentence, based on a late plea of guilty.

39. It is well established that the guideline judgment in R v Henry, supra, is a guideline and not a prescribed range or pattern of sentencing, nor is the guideline to be treated as a starting point from which will be deducted items that are relatively ameliorative or those which are relevantly aggravating. It has been described as “not a tram line”.

37. Here, each of the offences pursuant to s 97(1) of the Crimes Act 1900, Sequences 5, 8 and 9, were objectively at the lower end of seriousness for such offences. Further, no weapon was used and the actual violence was limited. The offender, who was born in May 2001, was 18 years and a little over three months of age, and was suffering from mental health issues and polysubstance abuse. The courts have long recognised that emotional maturity and impulse control develop progressively during adolescence and may not fully develop until a person is in his or her mid-twenties.

38. The principles to be applied in sentencing a young person in the context of the guideline judgment in R v Henry, supra, were recently discussed in Yildiz v R [2020] NSWCCA 69. Simpson AJA and N Adams J referred to a recent decision of the court in Howard v R [2019] NSWCCA 109, where Fullerton J (with whom Macfarlan JA agreed) said at [14]:

“I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person’s immaturity and a compromised capacity for mature decision making.”

42. The court went on to hold that the mere fact that the guideline judgment in Henry takes into account that a sentence is being imposed on a young offender, with no or little criminal history, does not mean that youth is an irrelevant factor, nor does it mean that youth is not a factor that should be considered in the overall determination of the sentence to be imposed (see [48] per Rothman J). It is clear that the youth of the offender here may be taken into account as a mitigating factor.

43. Clearly this was immature offending. Whilst the guideline judgment is relevant, the young age of the offender must be taken into account as a mitigating factor here. It is well settled that in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance in the sentencing process.

44. The age of the young offender is also relevant to the weight to be attributed to general deterrence in sentencing here. General deterrence is clearly important in sentencing for offences pursuant to s 97(1) generally, as demonstrated by the guideline judgment. However, it has less work to do in the case of this young offender, who had mental health issues as well as poly‑substance abuse issues.

45. The offender is entitled to a 25% utilitarian discount on sentence for his early plea of guilty to these charges. I also accept that he is remorseful for his criminal conduct.

46. I have taken into account the maximum penalty proscribed for each of the offences as follows:

Sequence 2 – offence pursuant to s 114(1)(a) of the Crimes Act 1900 – 7 years imprisonment

Sequences 5, 8 and 9 – offences pursuant to s 97(1) of the Crimes Act 1900 – 20 years imprisonment

Sequence 7 – offence pursuant to s 11C of the Summary Offences Act 1988 – 2 years imprisonment and/or a fine of $2,200.00.

The maximum penalties proscribed for each offence are guideposts in the sentencing process.

47. I am also satisfied that the s 5 threshold has been crossed, and having considered all possible alternatives, no penalty other than imprisonment is appropriate for this offender.

48. In considering the appropriate method of serving any sentence to be imposed, I have taken into account the 5 months and 18 days the offender spent in custody on remand until he was released to bail. I have also taken into account the period of 1 month and 3 days he spent on strict bail conditions, which included a curfew. I also take into account the 9 months and 3 weeks quasi-custody the offender has spent in residence at Odyssey House. Taken altogether, his custody and quasi-custody amount to the equivalent of 12 months in custody.

49. The principle of parity in sentencing is one of equal justice. Like cases must be treated alike, and material differences must be taken into account. I accept that there are differences in the subjective case relating to the offender and his co-offender. The co-offender had a previous criminal conviction and this offender has demonstrated that he has good prospects of rehabilitation, which also reflects on his risk of re-offending, and I find that he is a low risk of recidivism.

50. I intend to proceed by way of an aggregate sentence in respect of Sequences 2, 5, 8 and 9. For the purpose of transparency in sentencing, I must provide indicative sentences. Applying that principle, the following are the indicative sentences:

• Sequence 5 – robbery in company contrary to s 97(1) of the Crimes Act 1900 – 9 months imprisonment

• Sequence 2 – armed with intent to commit indictable offence contrary to s 114(1)(a) of the Crimes Act 1900 – 6 months imprisonment

• Sequence 8 – assault with intent to rob in company contrary to s 97(1) of the Crimes Act 1900 – 18 months imprisonment

• Sequence 9 – assault with intent to rob in company contrary to s 97(1) of the Crimes Act 1900 – 18 months imprisonment

51. In respect of Sequence 7 – custody of knife in public place contrary to s 11C of Summary Offences Act 1988 – you will be convicted with no further penalty pursuant to s 10A of the CSPA.

52. In applying principles of proportionality, totality, and parity, and having regard to the time you have spent both in custody and quasi-custody, the appropriate sentence is one of 12 months imprisonment.

53. The offender will need ongoing supervision for his drug and alcohol issues to ensure that he does not relapse into drug abuse upon his return to the community. Rather than impose a sentence which involves a non-parole period, I intend to sentence the offender by way of an intensive correction order pursuant to s 7 of the CSPA. In considering that sentence, the question of community safety is of paramount importance pursuant to s 66(1) of the Act, and it has to be weighed against the purposes of sentencing set out in s 3A of the CSPA as above. The concept of community safety is inextricably linked with considerations of rehabilitation, which this offender has positively advanced. I therefore intend to impose a sentence of 12 months imprisonment, to be served by way of an intensive correction order for a period of 12 months from today.

54. I am satisfied pursuant to s 17D(1A) of the CSPA that I have sufficient information available to justify making an ICO without requiring a Sentence Assessment Report being obtained.

Orders

55. I make the following orders:

1. You are convicted of the following offences:

H74833251/2 – armed with intent to commit an indictable offence pursuant to s 114(1)(a) of the Crimes Act 1900.

H74833251/5 – robbery in company pursuant to s 97(1) of the Crimes Act 1900

H74833251/7 – custody of knife in a public place (first offence) pursuant to s 11C Summary Offences Act 1988

H74833251/8 – assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900

H74833251/9 – assault with intent to rob in company pursuant to s 97(1) of the Crimes Act 1900

2. I sentence you in respect of Sequences 2, 5, 8 and 9 by way of an aggregate sentence pursuant to s 53A of the CSPA to a term of imprisonment of 12 months.

3. That sentence is to be served by way of an intensive correction order pursuant to s 7(1) of the CSPA. The sentence will commence today.

4. You must report to the Community Corrections Office at Sydney as soon as practicable, but no later than 7 days from today.

5. The standard conditions of the order will apply pursuant to s 73(1) and (2) of the Act:

1. You must not commit any offence; and

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

6. The following additional condition will apply:

1. You must accept the supervision of your Community Corrections Officer and comply with any rehabilitation or treatment recommended by that officer.

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

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

58. In respect of Sequence 7, you are convicted with no further penalty pursuant to s 10A of the CSPA.

**********

Decision last updated: 19 March 2021