R v Stewart

[2022] NSWDC 205

District Court

New South Wales

Medium Neutral Citation:

R v Stewart [2022] NSWDC 205

Hearing dates:

01 June 2022

Date of orders:

02 June 2022

Decision date:

02 June 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify a sentence of imprisonment of 4 years 11 months to commence on 26 August 2021 and expire on 25 July 2026. This consists of a non-parole period of 2 years 6 months which will expire on 25 February 2024

Catchwords:

CRIME — Violent offences — Robbery in company

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

Imbornone v R [2017] NSWCCA 144

R v Henry and Ors [1999] NSWCCA 111

R v Qutami [2001] NSWCCA 353

Category:

Sentence

Parties:

Regina (Crown)
Kieran Stewart (offender)

Representation:

Jason Lee (Solicitor for the Crown)
Daniel Thomas (Solicitor for the offender)

Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service NSW/ACT

File Number(s):

2021/00149276

REVISED EX TEMPORE JudgEment

SENTENCE

1. Kieran Stewart appears for sentence upon one charge. The matter was listed for hearing on 1 June 2022 at the Bega sittings of the Court. After the presentation of evidence and the submissions the matter was adjourned for judgement and sentence today, 2 June 2022.

THE OFFENCE

2. The offence before the Court is that the offender:

“On 19 May 2021, at Potato Point in the State of New South Wales, did rob Roderick Fitzjohn of certain property, namely $1,200 the property of Roderick Fitzjohn, whilst being in company with another person”.

The offence is contrary to s 97(1) Crimes Act 1900. The offender pleaded guilty when arraigned on 23 May 2022.

PENALTY

3. The maximum penalty for an offence contrary to s 97(1) Crimes Act 1900 is imprisonment for 20 years. There is no standard non-parole period for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999.

THE TIMING OF THE PLEA OF GUILTY

4. The offender pleaded guilty after committal for trial, but before the matter was listed for trial to allow the parties to discuss a plea of guilty which ultimately resolved the matter. Thus Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies, and in accordance with s 25D(2)(b) the discount for the utility of the plea of guilty is 10% of the sentence that would have otherwise been imposed for the offence if not admitted.

PRE-SENTENCE CUSTODY

5. The offender was arrested on 26 May 2021 and has been in custody ever since. However, the custody to which he was subjected was not referable only to this offence.

6. The offender was released to parole on 13 March 2021, a little more than two months before this robbery occurred. Thus he was subject to parole at the time he committed it. Consequently his parole was revoked effectively from 26 May 2021. The balance of parole expired on 20 December 2021.

7. On 22 November 2021 upon conviction for offences of assault and intimidation he was sentenced to an aggregate term of imprisonment of 16 months, including a non-parole period of eight months from 26 May 2021. The non-parole period expired on 25 January 2022 and the sentence will expire on 25 September 2022. The offences for which he suffered this sentence are related to the offence upon which I am to impose sentence. Included in the Crown bundle are the facts upon which the Magistrate determined sentence. It is not clear to the Court why these matters were not included in the proceedings for determination in this Court, drawing upon s 166 Criminal Procedure Act 1986, to be dealt with at the same time as the robbery offence, which was the predicate to the further misconduct ultimately dealt with in the Magistrate’s Court. Had the sentence for those offences been determined at the same time as that for the robbery with which the Court is now concerned, an aggregate sentence could have been imposed upon the application of s 53A Crimes (Sentencing Procedure Act) 1999.

8. The question now is at what point this sentence should commence to reflect the relationship between the misconduct in the offences before the Magistrate to reflect the totality of the offending upon which this and the related offences were prosecuted, and bringing into account the balance of parole that the offender was also required to serve for unrelated offences, with appropriate regard to the principle of totality, relevant to the entire range of misconduct for which the offender was and is to be punished.

9. The Court has discretion as to when the sentence I am about to impose will commence, bringing into account the custody for the other misconduct to ensure that the punishment he now suffers is no greater than the totality of the offences require, and to ensure that the appropriate non-parole period is identified to give effect to the special circumstances which I find established.

10. Also relevant to the discretion is the probability that but for this robbery, the offender would not have been denied the opportunity to seek parole at the expiration of the balance of the sentences served.

11. The principles well stated by Simpson J in Callaghan v R [2006] NSWCCA 58 are regularly applied in the determination of sentence in this State.

12. Mr Thomas for the offender submits that I ought to backdate the sentence I am to impose to commence at the same time as the aggregate sentence imposed by the Magistrate. The Crown concedes that this is within the Court’s discretion but submits that there ought to be some accumulation upon the sentence for the unrelated offending in respect of which the offender was required to serve the balance of parole.

13. The balance of parole and the sentence imposed by the Magistrate were ordered to commence on the same date, 26 May 2021. The offences for which the Magistrate identified individual sentences leading to the aggregate sentence were serious. It is not controversial that they followed the robbery and were retaliatory after the robbery had been put into the hands of the police.

14. The material in the Crown bundle, exhibit A, includes the papers relevant to the revocation of parole. The revocation arose because of further offending including that which is set forth in the material tendered to the Magistrate. The facts sheet prepared for the Local Court has been provided to me.

15. After dealing with the robbery offence upon which sentence is to be imposed today the facts continue regarding charges of assault occasion actual bodily harm, intimidation intending to cause fear, and another two charges of intimidation intending to cause fear. The facts relevant to those charges are that a victim of the name Hogarth, connected with the victim in this robbery, was in a supermarket when he was approached by the offender’s brother. There was a verbal confrontation arising from the belief that Hogarth was involved in the report of the robbery committed by the offender.

16. On the afternoon of 25 May 2021 Mr Hogarth, another man named Moore, and the victim of the robbery were at a bowling club at Bodalla. About 2.30pm the offender driving a Toyota motor vehicle entered the bowling club carpark. He approached the victim Hogarth who was on the bowling green, he exchanged greetings without any issue, and then returned to the vehicle. About ten minutes later he left the vehicle and walked towards Hogarth once more. He had with him a mobile phone which he held to his ear, he appeared to be in conversation. As he approached Hogarth he said, “Oi Mark, what did he say to you in the IGA?”, Hogarth responded by saying, “I said nothing”. The offender called Hogarth a dog before striking him once with a right clenched fist to the left side of his face. This caused Hogarth immediate pain and discomfort and caused him to stumble back, however he maintained his footing. Hogarth was standing to the side of the offender and did not see the punch at any point. He described it as a king hit and a coward punch because of the unexpected nature of the blow.

17. Regarding the charges of intimidation, the offender began to abuse patrons of the bowling club, screaming “You can all get fucked, you all dogs, you white gubba cunts”. He pointed his finger towards Hogarth and said, “You’re gone cunt”. This caused Hogarth to fear for his and his family’s safety. Moore, one of the victims of the intimidation charges, began to speak with the offender. He responded, “All you old cunts, I’m gonna come back and get you”. He then spoke directly to Moore, “I’m coming to get you too”. He yelled at Fitzjohn, the victim of the robbery, “You’ll get yours you dog”.

18. Hogarth and Fitzjohn witnessed the earlier crime committed by the accused with which this Court is concerned, and the representation by the prosecution in this facts sheet is that the assault and the intimidation were to intimidate and influence the witnesses.

19. The offender re‑entered the Toyota motor vehicle and drove from the bowling club. Several police responded to the incident and an investigation followed. Hogarth suffered redness and slight swelling and small indentations with broken skin where he was struck. He was a man of 56 years at the time, 20 years older than the offender. He continued to suffer pain to the jaw and neck. He was burdened by a spinal fusion in the neck which was symptomatic following this assault.

20. The offender attended the police station on 26 May 2021. He was arrested. He had the benefit of legal advice. He declined the opportunity to be interviewed.

21. I am not persuaded that this sentence today should be commenced at the same time as the balance of parole period and the sentence imposed by the Magistrate. The offences in retaliation for bringing the robbery to the attention of the police were related, but they followed the robbery, were in respect of it, but were not part of it. The Magistrate’s aggregate sentence built upon the indicated sentences adopted must have been determined without any component for the robbery.

22. I have come to the decision that there is to be a start date for this sentence reflecting some accumulation upon the balance of parole and the sentence imposed by the Magistrate.

23. I shall order the commencement of this sentence on 26 August 2021.

THE FACTS

24. The accuracy and detail of the statement of agreed facts as presented by the Crown are acknowledged by and on behalf of the offender who gave evidence when the matter came before me.

25. I am required to assess the objective seriousness of the offence and the moral culpability of the offender upon all the material that was put before me and his evidence.

26. The Crown concedes that considering the lesser role the offender played in the robbery, his misconduct is within the low end of the middle range of objective seriousness.

27. The extent to which the offender might be seen to have performed a lesser role in the robbery is in my assessment not significant. I accept, considering the Crown’s concession, that the offender would be dealt with as if his role was less than that of the accomplice for the purposes of determination of sentence. But it is on my assessment of the matter, as I have indicated, though a lesser role, it was not insignificant. Any difference is perhaps properly described as marginal.

28. Minds might differ upon this, but the facts that support this opinion are that the offence occurred in the victim’s home, access to which was facilitated by the association that existed between the offender and the victim over the years, his instruction to the victim not to report the matter to the police, and the extent of the organisation involved in the crime, selecting the victim for one of two reasons, either because he had won money at the local bowling club, or because of the knowledge, it is asserted the offender and his accomplice had, that the victim was involved in the supply of prohibited drugs. I shall come to that in greater detail.

29. The facts begin with the circumstances of the victim who lived alone at his home at Potato Point. He knew the offender and from when he was a young boy. He was a friend of the victim’s stepson as they grew up.

30. The offender is an Aboriginal man, described to be of medium to large build, in his mid-30s with an olive complexion. This in part describes the offender who gave evidence before me.

31. The victim saw the offender two weeks before the robbery at the bowling club in Bodalla. Both were on friendly terms.

32. On 18 May 2021 the victim won about $1,200 from a bet at the bowling club. About 1.47pm on Wednesday, 19 May 2021 the victim was home alone when he saw the shadow of a person walking outside his house. The victim thought it was his friend coming over to watch the horse races with him so he opened the curtains and the door at the same time. The victim looked outside and saw the offender with another unknown male, referred to as male 2, standing at the door. Male 2 was shorter than the offender, about 5 foot, 8 inches tall, was heavy set and muscular with short dark hair and a round face. That is all that is known of the second offender.

33. The victim said, “Hey Kieran, what’s happening?” The offender said, “Inside, I’ve got to talk to you”. The offender and male 2 walked into the victim’s lounge room. The offender sat on one lounge while the victim sat on another. The victim said, “What do you want?”. Male 2 stood over the victim and said, “We’re here for your money and your stash. Don’t fuck us around or I’ll burn your house down”. The victim was petrified. He said, “Come on Kieran, I’ve known you for a long time, what’s this about?”. The offender said, “Nah, I don’t give a fuck. You’re on my turf, this is rent”. The victim asked, “What rent?”, because he initially did not understand what this was in relation to. He subsequently said, “Okay I’ll get it for you”.

34. The victim walked over to the bookshelf in the lounge room, male 2 followed him. The victim retrieved approximately $600 made up of $100 and $50 denominations concealed between two books and handed them to male 2. Male 2 said, “And what about that?” as he pointed towards the victim’s black wallet on the bookshelf. The victim handed male 2 the wallet and he took approximately $450 in $50 denominations as well as a $10 and a $5 note. The male handed the victim his wallet which he put back on the shelf.

35. Male 2 then said, “Where’s the dope? Don’t fuck us around or I’ll chop your leg off with a pair of scissors”. The victim said, “Yeah, okay I’ll get it”, and retrieved a resealable bag containing approximately 15 grams of dried cannabis head and handed it to male 2. The victim said to the offender “Come on Kieran, I’ve known you for a long time, this bloke’s left me with nothing”. The offender turned to male 2 and said, “I think we should give some back to him, would you give him some back?”. Male 2 gave the victim back $100. The offender then said to the victim, “Don’t tell the jacks.” and left the victim’s house with male 2. The offence occurred over seven to ten minutes.

36. About 2.15pm the victim spoke with a friend, Mr Hogarth, to whom I earlier referred, and told him that he had been robbed by a “henchman” who was with the offender. Mr Hogarth said the victim was distressed and trembling.

37. At 11am on 20 May 2021 Mr Hogarth reported the offence to Narooma Police Station. About 1.15pm police attended the victim’s house. The victim provided a version of events before attending the police station to provide a written statement.

38. About 9.15am on 26 May 2021 the offender attended Nowra Police Station and was arrested. He declined the opportunity to participate in an interview. He suffers no adversity because of exercising his right to silence; he was perfectly entitled not to submit to the request to participate in an interview on each of the occasions when it was asked of him.

OBJECTIVE SERIOUSNESS AND MORAL CULPABILITY

39. Against those facts the Crown submits, as I have said, that the objective seriousness of this offence is within mid-range but at the low end of the mid‑range.

40. The Crown pointed to the record of antecedents that the offender has and that the offence was committed whilst he was on conditional liberty by way of parole. Those two factors do not aggravate the offending or the proportionate sentence that the offending attracts. It is relevant to his prospects for rehabilitation and the extent to which he might have otherwise had leniency extended to him for the crime.

41. It is significant and aggravating that the offence occurred in the victim’s home. The Crown concedes the mitigating factor of the plea of guilty after committal to trial in the Bega District Court. The Crown concedes furthermore that the plea of guilty in the circumstances, although attracting only a 10% discount by force of the legislation, is consistent with a measure of contrition and remorse.

42. Although evidence was not put before me of this, it is not controversial that there were different representatives appearing for the offender through the committal phase, and it was after Mr Thomas took over the representation and well before the trial date was allocated that the offender followed the course that he was concerned to follow from earlier on, that he would admit the crime. I therefore take the plea of guilty as evidence of his contrition and remorse.

43. The submissions on behalf of the offender regarding the assessment of objective seriousness include the concession that there is no sentence other than a full-time term of imprisonment that is appropriate upon the application of s 5 Crimes (Sentencing Procedure) Act 1999. I am reminded of the guideline judgement in R v Henry and Ors [1999] NSWCCA 111, and comparisons and contrasts are offered between those circumstances and what is before this Court. It is said that overall this case is less serious than in Henry because there was no weapon and the victim was not a vulnerable victim. However, it is conceded that the threat to burn down the house and the threat of harm in the context of robbing the victim elevates this to a serious example of the offending.

44. The antecedent record is acknowledged, including the criminal history for violent offending, but contrast is drawn between what is before the Court on this occasion and much that appears on the offender’s record in the circumstances of domestic violence.

45. Other facts advanced in support of the proposition that the seriousness of this offence should be seen to be low is that the offender requested that the man described as the “leading co-offender” return $100 back to the victim, demonstrating lower culpability. This is in the offender’s favour but it is not such as to cause me to differ from the view I have already expressed.

46. The offender has accepted full responsibility for his offending and acknowledges he should not have participated in the crime. He is attributed with regret, and it is also noted that he was seated during the threat of violence by the co-offender who was standing over the victim.

47. Another matter agitated in oral submissions was the approach to be taken for the motivation behind this crime. Though it is not expressly stated to be so, the description of the robbery in the agreed statement of facts is consistent with two propositions. First, that the offender and his accomplice in committing this crime were in the pursuit of cash aware of the victim having won money at the bowling club, and secondly, that the offender and his accomplice were in the pursuit of money and drugs from the victim who might in some measure be involved in the supply of prohibited drugs.

48. The submission made on behalf of the offender is that the Court is left to determine the matter upon the second basis because that is the inference to be drawn from the basic facts described. It is said that the good fortune of the victim in winning money at the bowling club before this event should be seen as merely fortuitous and unrelated to the true motivation for the offence.

39. The Crown does not concede that this was the motivation for the crime. There was no opportunity to explore with the victim whether he was as submitted against him. The offender gave evidence but this aspect was not explored with him. Taken on its face the agreed statement of facts might carry this second implication, or it might be that the offender and his accomplice masked their purpose and motivation by their utterances in the commission of the offence to suggest some justification for their crime or is less serious against such an individual.

40. Whether this was a robbery planned against the victim knowing he had won money at the bowling club or was planned without that knowledge for the purpose of taking money and drugs from the victim involved in the supply of drugs cannot be determined on the material before me. Both the inferences are implicit in the agreed statement of facts.

41. The basic facts are that the amount of money stolen was comparable with the amount won by the victim. The offenders took steps to take all the money including what was secreted between books and what the victim had in his wallet. The offender and the victim knew each other and were on friendly terms before this. The victim saw the offender at the bowling club two weeks before the robbery. The words used by the offender in the robbery included “Nah. I don’t give a fuck. You’re on my turf. This is rent.” The accomplice this said, “We’re here for your money and your stash. Don’t fuck us around or I’ll burn your house down.” He later said, “Where’s the dope? Don’t fuck us around or I’ll chop your leg off with a pair scissors.” It is said on behalf of the offender that implicit in these words is the purpose of the robbery, to take from someone engaged in the illicit drug trade.

42. Of course these utterances were not from the victim, said to be so engaged, although I note that as I earlier described after the offender offered his contribution the victim asked. “What rent?” consistent with him not understanding what it was in relation to. He subsequently said, “Okay, okay, I’ll get it for you.” It is not said however what occurred, if anything, in between the question and the surrender.

43. The only representations that give rise to the proposition advanced fell from the perpetrators of this crime.

44. Allowing for the possibility that the second alternative was the motivation I am not persuaded that it mitigates the objective seriousness of the offence. Even a drug dealer is entitled to the protection of his home. Moreover, it could not be said that the offender and his accomplice were engaged upon any public service in what they were about. If the victim was a dealer in cannabis upon what I have it must have been within modest proportion, and if it were the case, the offender and his accomplice gained financial benefit from such activity and the residual cannabis in the victim’s possession, in this instance limited to 15 grams.

45. I agree with the Crown’s submission that this offence falls within the lower part of the middle range of objective seriousness for the reasons the Crown identified and upon my assessment of the material.

THE OFFENDER

56. The offender was born in 1984 and this year will be 38 years of age. He has an extensive criminal history from 2003 recorded over 18 pages in the report provided. He has a history of misconduct whilst in custody.

57. Dealing first with that, the custodial record has the following episodes of misconduct for which he was disciplined: in July 2021 for failing to comply with correctional centre routine he was required to be of good behaviour for 28 days; in September 2020 for entering other cells, he was confined to his cell for two days; in June 2020 for disobeying a direction he was confined to his cell for seven days; in April 2020 for failing to comply with correctional centre routine he was given 14 days off buy ups; in the same month for fighting or other physical combat he was confined for five days in his cell; in March 2020, for possessing an offensive weapon or instrument he was given 56 days off buy ups and 56 days off contact visits; in February 2020 for assaults he was confined for five days in his cell; in February 2020 for fighting or other physical combat he was confined for four days in his cell; and in November 2015 which is significantly earlier in another period he failed to comply with the current correctional centre routine and suffered 28 days to be of good behaviour.

58. Considering the submissions that have been made in the offender’s support it is appropriate that I give some attention in detail to his antecedent record. The submissions made were that he has demonstrated such prospects for rehabilitation that a finding of special circumstances ought to be made. Moreover that he had for a period of his life, notwithstanding what were said to be difficult formative years, progressed to a relationship with three children born to that union and acquisition of his home which in due course he lost because of his activities.

59. The first time he was charged for an offence was in January 2003. That was for an assault occasioning actual bodily harm for which he was given a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. It was in his 19th year.

60. He remained clear of misconduct until 6 October 2005 when he was charged with affray and given the benefit of s 9 Crimes (Sentencing Procedure) Act 1999; regrettably he breached that bond and was called up and ordered to serve 150 hours of community service.

61. On 29 December 2006 he was charged with common assault. He was then in his 23rd year. He was fined for that offence.

62. On 9 August 2012 when in his 29th year a period of six years had elapsed. He was then charged with common assault in a domestic violence setting and using a carriage service to menace, harass or offend. He was given a bond pursuant to s 9 of the Act for the assault and for the federal offence was fined with a recognizance to be of good behaviour for a period of 12 months.

63. On 14 August 2012 he was in his 29th year and he was charged for contravening an apprehended violence order and fined.

64. On 27 July 2013 he was charged with driving whilst his licence was suspended and fined and disqualified.

65. On 8 October 2013 when he was in his 30th year he was charged with driving whilst disqualified and was given the benefit of s 10 Crimes (Sentencing Procedure) Act 1999 with a bond for 12 months.

66. On 21 December 2014 when he was in his 31st year he was charged with offences of assaulting an officer, resisting an officer, intimidating an officer, contravening an apprehended violence order, and intimidation and was sentenced to an aggregate term of imprisonment of 18 months including a non‑parole period of six months from 28 May 2015 to 27 November 2015 the sentence to expire on 27 November 2016. The sentence in its final form was set by the District Court to which the offender appealed. The length of the sentence remained intact but the start date was ordered to commence at an earlier point. Thus he was in custody for a period of six months at least until released to parole.

67. On 31 December 2014 he was charged with contravening an apprehended violence order for which he was sentenced to 18 months imprisonment in the same set of proceedings that led to the earlier order of imprisonment.

68. On 3 April 2015 he was charged with common assault and three charges of damage to property, for which he was sentenced to imprisonment for 18 months. Again these were charges that were before the District Court on appeal and resulted in the aforementioned sentence.

69. On 20 October 2016 when he was 32 he was charged with not disclosing the identity of the driver, being the person responsible for the subject vehicle and was fined.

70. On 29 December 2016 he was charged with driving with an expired licence he was fined.

71. On 14 February 2017 he was charged with driving with an illicit drug in his blood for which he was fined and disqualified.

72. On 31 December 2017 he was charged with entering inclosed lands and was fined.

73. On 7 May 2019 he was charged with affray and was imprisoned for two years with a non‑parole period of 15 months from 14 December 2019 to 13 March 2021 and 13 December 2021.

74. On 3 March 2020 he was charged with possessing an offensive weapon or instrument in the place of detention. For this he was sentenced to three months from 3 March 2020. This it would appear to be a reference to one of the custodial offences to which I earlier referred.

75. On 26 May 2021 he was charged with the common assault and three charges of intimidation for which he was sentenced to imprisonment for 16 months with a non-parole period of 8 months from 26 May 2021 to 25 January 2022 with the sentence to expire on 25 September 2022. This entry relates to the offence upon which he was sentenced by a Magistrate, discussed earlier with deciding when the sentence I am to impose should commence. The material to which I referred had the offender charged with assault occasion actual bodily harm, but the antecedent record represents that he was sentenced for an offence of common assault. Upon the material I have I would proceed upon the basis that the antecedent report is the correct description of the offence ultimately dealt with. Nonetheless, this does not cause me to revisit my decision upon when the sentence today should commence.

76. It has taken some little time to deal with antecedent report because of the regrettable practice of not listing these offences according to their chronology.

77. The breach of parole report that led to the revocation is included in the material before me. The breach was for the further offending upon which the Magistrate sentenced him after this robbery occurred. The report notes that he was compliant with the reporting obligations but failed to engage with alcohol and other drugs counselling. The report asserts that his breach and risk factors directly correlate with his violent offending behaviours. The report asserts that he will be provided with a written direction to engage with anger management and alcohol and other drug counselling when managed in the community but ultimately his revocation of parole is recommended and in due course it was actioned.

78. When the matter came before me yesterday I invited comment upon the approach that I had formulated subject to what was going to be put before me on behalf of the offender, focussing upon the report from psychologist, Vanessa Edwige, and a reference speaking to the offender’s qualities to be considered against the history found in his antecedent report and the misconduct upon which he engaged.

79. The submissions led me to the view that it was appropriate that I reconsider the commencement date for the sentence which I have done and ultimately concluded that it should commence on the day I had nominated earlier. It was in response to further exchanges between Mr Thomas and the bench that the motivation behind this crime was argued and it was put to me that the offender is at a cross‑roads in life. His evidence was in terms that he wants to redirect his path. He has reached a stage and an age where he does not want to continue facing the risk of incarceration.

80. It was put to me that he had demonstrated in the past the capacity for work and progression in the community and that the reason for his losing his way on this occasion and previously is to be found in the history attributed to him by the psychologist. During the exchange I expressed the view that the objective material by way of the agreed statement of facts, his criminal history, and the material that was included in the custodial record dealing with his classification was in significant respects inconsistent with what the psychologist had heard and the opinion she offered and that I was left to decide this matter only upon the material tendered and without the benefit of hearing evidence. The features of the evidence of the representations attributed to the offender enlivened the principles discussed in the high court decision in Bugmy v The Queen [2013] HCA 37, specifically what were said to be challenges in his formative years because of domestic disharmony between his mother and father.

81. His mother and father were present in court with other family members and his current partner but not for the entire conduct of the matter as I recall it. Ultimately nothing turns upon that but one way or another only the offender gave evidence about these matters.

82. I am still left in some difficulty regarding the representations of what was said to be difficult times in his formative years. That said the Crown consented to the tender of the psychologist’s report subject to the guidance and circumspection urged by Smart AJ in R v Qutami [2001] NSWCCA 353 and Wilson J in Imbornone v R [2017] NSWCCA 144. The offender was not tested upon his assertions regarding his alleged challenges because of disharmony between his mother and father as he grew up, and so ultimately, although I have reservations, it would seem to me that on balance I should extent to him the benefit of what the psychologist has offered by way of her opinion and the representations that she has attributed to him. I shall now turn to that report.

83. The psychologist had the statement of agreed facts, the criminal history, and the letter from Mr Jordon Roberts. That was tendered and formed part of exhibit 1. Mr. Roberts is an indigenous tradesman. He wrote on 18 January 2022; he has his own business on the South Coast; he specialises in concrete stencilling, tiles, bricklaying, solid plaster, and cement rendering, and has been so engaged for the past four years. He grew up with the offender in the same community and with comparable schooling and writes, “I found him to be an honest and generous person and open handedly (sic) has always contributed back to the Elders and the community”.

84. He has worked on various projects over the years; according to this document he is diligent and one of the more prominent sportsmen on the south coast, particularly in rugby league. He has work that he would make available to the offender upon his release. The author was not required for cross-examination and so I accept and act upon what is provided.

85. The report from the psychologist paints on one view a bleak life which had an impact upon the offender, but at the same time there were positive features, including adequate nurturing and provision for him as he grew from childhood to adulthood. He has an older brother and a younger brother.

86. I should pause here to refer to the evidence he gave before me when called upon to discuss what he had told the psychologist, which he said he had not revealed before notwithstanding the multiple opportunities he has had to do so on various occasions when he has been before the Court. It is simply not known what was put before courts on prior occasions to confirm one way or another whether he sought to rely upon his upbringing and negative aspects of it.

87. He referred to arguments and fighting between his parents, his father’s propensity for alcohol, the fact that his mother and father used to always fight and that he was always put in the middle. He found it hard to talk about it. He said it is the first time he has talked about it; it was depressing. He noted his parents were here today. He said the arguments became violent. When asked to amplify or further describe these features he said, “I don’t know what to say, it’s just too hard”. He then went on to the breakdown in the relationship he had with his partner.

88. Another aspect of his evidence included his gainful employment at a bowling club on the south coast where he was employed as a chef. Police from the homicide unit at Parramatta, he said, came to the club, were investigating him, and spoke to the manager there. The police did not speak to him at all. The manager told him that they were investigating a homicide. His partner was also spoken to by the police before that, as I understood his evidence. He was embarrassed by the fact that the police had attended the bowling club and spoken to his manager and he simply walked away from the job without further intervention by anyone.

89. Regarding his partner, however, she allegedly said to him that the police told her not to speak to him about their visit or tell him that they had spoken to her, but they attributed him with the crime that they were investigating and threatened her that she could lose their children and lose her employment. This was not further amplified or tested. He described how he was required to go to the Crime Commission in 2015. Whether that was in formal hearing or simply to speak with investigators from the New South Wales Crime Commission was not established.

90. All these events were said to be factors that contributed to his deterioration in psychological health, which the psychologist asserts he has suffered, and provide some explanation for his poor judgement in engaging in the behaviour that has been charged.

91. The psychologist beneath the heading, “Psychosocial history” was told, according to the document, that the offender’s father worked in construction and his mother in aged care. Both parents worked their entire life. They did not misuse alcohol or other substances. They drank socially but never to excess. Both had a bad temper; they would argue and those arguments became physical and it made him want to muck up and put him on edge all the time. He said in evidence, as I noted, that his father used to drink. There was no further qualification of what that meant or to what extent, but it stands in some contrast to what was attributed to him by the psychologist.

92. He met his partner, his first partner, at her age of 16 and they moved in together. He was then 19 years of age. They had three children together. He finished high school, he won an apprenticeship as a chef and then began working at a licensed club. He moved, with his family, to Nowra and worked in a restaurant for two years. They moved to Queensland where he worked as a chef and then returned to the south coast where they bought a house and he began working at the licensed club as a chef. That is the position, as I understand it, from which he walked away when the police spoke to the manager.

93. He said 2013 or 2014 was when the homicide detectives came to his place of work. There was stress upon the relationship which ultimately led to its breakdown. He moved to live with his grandmother. He also said that the detectives spoke to his children and he has not seen them for five or six years. Whatever the allegations might have been, he denies them. It was said that after this event he stopped working and was introduced to drugs.

94. By 2013, 2014 he had several appearances in court after being charged, as I earlier indicated when summarising his antecedent record. The offences for which he had been before court were for affray, common assault and using carriage service to harass or offend, assault occasioning actual bodily harm, again contravening an apprehended violence order, driving whilst suspended, driving whilst disqualified. It was in December 2014, it appears, that the more serious charges were prosecuted against him and these included damage to property, the common assault offences, intimidating, assaulting, and resisting officers, and so to that extent, though he had a history of offending up until this point of time, when the police attended the club he embarked upon more serious misconduct thereafter.

95. His education is discussed. He began using crystal methylamphetamine at age 28, “He just didn’t care because he had lost so much”. That must be a reference to the breakdown of his relationship and the loss of his family. He stopped using ice three years ago, he said, and he is just over that. He saw a drug and alcohol counsellor in Moruya three years ago in a mainstream service as described. He had no significant history of childhood illness. He is involved in an Aboriginal men’s group.

56. The report then deals with the topic “Impact of considered disadvantage”. I will quote this because this is where there is still, in my view, a hiatus in the evidence that perhaps could have been clarified:

“Mr Stewart describes a childhood that was marred by exposure to domestic violence” and then a little later, “Mr Stewart was exposed to significant domestic violence growing up, as a young child, by witnessing his father’s abuse his mother” (sic).

97. The report deals with generalities otherwise in this section. It continues,

“Mr Stewart experienced a sense of fear as he witnessed this violence and reported feelings of feeling ‘on edge all the time’”.

98. It then continues with this opinion:

“It is evident from Mr Stewart’s early childhood history that his exposure to domestic violence had an impact on his social and emotional wellbeing. Whilst, Mr Stewart did not present with early childhood behavioural issues, feeling unsafe as a child can manifest in externalising and internalising behavioural issues that impact on a child’s ability to engage and learn at school and other important domains of their life.”.

99. I am troubled by that proposition because, as was put to me, and as the evidence reveals, whatever problems his mother and father had between them he was able to complete his education, he was able to complete his training as a chef and he continued in gainful employment until the event in which he said the homicide police came to his place of work.

100. The current psychological state is then discussed. He claims to be depressed on most days. COVID-19 has left him confined to his cell most days, so it must be in addition to the confinement suffered because of his misconduct in custody. But I accept that it is a matter of which the courts take notice at the present time, that COVID-19 has had a profound effect on the extent of punishment of those in custody, with confinement and lack of opportunity for exercise outside of their cells. He reports feeling on high alert all the time, waiting for something bad to happen and he speaks of flashbacks of police raids on his parents’ home and his grandmother’s home. There is nothing further to describe what that is all about and there is no evidence before me to explain it.

101. The report suggests that Mr Stewart’s mental health at the time of the offence impacted on his ability to make appropriate and informed decisions. How that applies is not adequately described in the report. It is suggested that he was developmentally disadvantaged through exposure to domestic violence. Again, that sits in contrast to the achievements he gained up until the point when his relationship failed.

102. The police investigation is said to have caused significant trauma; he suffered humiliation. There is reference to recurrent and intrusive memories of the trauma he experienced with flashbacks and it is suggested that he meets the criteria for other specified trauma and stressor-related disorder (adjustment-like disorder, persistent anxiety and depression). Mr Stewart did not present with any prior mental health issues before this identifiable stressor, which I take to be the visit by the police at his place of work and upon his then partner.

103. In the “Clinical opinion” section the report suggests he was a child exposed to domestic violence and despite this developmental stressor he reported a childhood where he was looked after and cared for. Both parents worked and neither parent misused substances. The section deals with his success at school, his certificate in hospitality obtained through TAFE and his work as a chef. Then the catalytic event is identified as occurring in 2014. Again, this must be a reference to the police investigation. Up until that his mental health was good, he was living a good life. He suffered humiliation and significant stress, he was unable to return to work due to shame, he said, and there is reference to him buying his own home.

104. In this part of the report, at p 7, Mr Stewart reported that his parents’ home and his grandmother’s home were raided causing his family members significant distress. His father was stopped driving to work, the car was searched; this, he said, caused humiliation. There is reference to the detectives having spoken to his children, leading to an apprehended violence order which now continues.

105. In a more positive vein, he has stopped using ice from three years ago; he has formed a new relationship; I note his partner was in court yesterday. It said that on 19 May 2021 he had a significant mental health issue that impacted on his ability to make informed decisions and exercise appropriate judgement.

106. I do not accept the opinion offered by the psychologist that the asserted events had the impact for which the author contends.

107. I brought to his solicitor’s attention the classification records from Corrective Services which include his participation in an outlaw motorcycle group. He gave evidence about that and said that was part of his deterioration. I paraphrase but that is the effect of what he had to say. He formed his association with them in February 2018 and it came to an end in 2021 when he formed his current relationship. It is upon my experience not unknown for members of that group to frown upon the departure of members, depending upon their status within the organisation. That was not explored before me. He indicated that there were no difficulties in that regard in response to the questions I put to him. Leaving the club has not left him with any problems. He said he has chosen his partner over his former mates.

108. Regarding the reliance that has been placed upon the decision in Bugmy ibid there is not sufficient material before me upon which I could come to a finding that his challenges in his formative years were such as to give rise to deprivation as was discussed in that authority. However, I accept that the evidence is sufficient to establish that there must have been some domestic disharmony between his mother and father for whatever reason, notwithstanding that the evidence is conflicted upon the extent to which his father might have resorted to alcohol. It would be entirely implausible to suggest that any married couple would not have differences throughout their married life. The difficulty in this case is being able to quantify the extent of their disharmony and how it might have impacted upon the offender who, upon all the material before me, including his presentation, is a resilient and robust individual consistent with what he engaged upon in the commission of this crime and in the related offences in retaliation for the matter having been put before the police.

109. The submissions made on his behalf include that his circumstances are sufficient to establish a finding of special circumstances. I indicated I did not need assistance upon that point because I do find that there are special circumstances. First, he has been in custody already for a significant period and if I accept as genuine his assertions that he wants to change his life, which I do on the balance of probabilities, he needs an opportunity to prove his worth in the community over an extended period of time under supervision. Accordingly, I have reduced the custodial component of the sentence to have him at large for a longer period than otherwise would be the case.

110. I note the submissions made regarding his disadvantaged background, relying upon what was said to be significant domestic violence. I do not make a finding that the domestic violence, whatever it might have been, could be described as significant on the material that I have.

111. I accept that whatever the role the police took when they came to the south coast investigating whatever homicide was before them, regardless of the extent to which they might have intruded into his personal life and circumstances, their presence must have had an impact upon him, because against the timeline of prior offending his misconduct evolved to be more serious after that event, when he embarked upon the extended use of drugs and significant criminality.

112. However, I do not find that his background under his parents’ care was sufficient to leave him with impaired judgement such that he could not make a properly reasoned decision whether to embark upon this robbery. The evidence regarding his parents does not allow me to go so far.

113. I accept his assertions of regret and remorse and although it is said in the report, as I recall, that it could not be said that the prospects of him not re‑offending are not strong, I accept his sincerity in wanting to change his ways, to build his life with his new partner, and return as a worthwhile member of the community. It is conceded at p 3 in the written submissions that the Court could not find that the offender was unlikely to reoffend.

THE SENTENCE

114. Thus I come to the point of imposing sentence. I have allowed him 10% discount for the sentence that might otherwise have been imposed. There are differences between this crime and the crime used as the example in the Henry guideline judgement; he was unarmed, but he was in company; he has a significant record of antecedents; his plea of guilty is acknowledged, but I note that should this matter have proceeded to trial it would have been most surprising if a jury had returned with a verdict of not guilty. Against his background of antecedent offences one cannot unfortunately extend to him leniency that might otherwise have been obtained.

115. But for the plea of guilty I would have sentenced him to 5 years and 6 months imprisonment. Applying a 10% discount to that sentence is one of 4 years and 11 months. I have abandoned a period of 12 days that would have applied upon the result of the calculation. I am specifying a non-parole period of 2 years and 6 months.

116. I formally convict the offender of the offence of robbery. I impose a non-parole period of 2 years and 6 months commencing on 26 August 2021, to expire on 25 February 2024. I specify a further period of imprisonment of 2 years and 5 months, during which he will be eligible for parole. That will extend from 26 February 2024 and will expire on 25 July 2026.

117. Mr Stewart, I will just repeat that for you so you have those dates in your mind. The overall sentence is 4 years 11 months. It begins on 26 August 2021 but the important date for you, that you will want to know, is your eligibility for parole, which will be 25 February 2024. That requires a custodial component of 2 years and 6 months. The overall sentence will extend to 25 July 2026.

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Decision last updated: 09 June 2022