R v Stewart

[2016] NSWDC 423

District Court

New South Wales

Medium Neutral Citation:	R v STEWART [2016] NSWDC 423
Hearing dates:	08/04/2016
Date of orders:	21 April 2016
Decision date:	21 April 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Seq 1 - Convicted: Sentenced to a term of imprisonment 2 years and 3 months with a non parole period being 1 year Seq 3 - Convicted: Sentenced to a term of imprisonment of 9 months. Seq 2 – Convicted: Sentenced to a term of imprisonment of 3 years 6 months with a non parole period being 1 year
Catchwords:	Criminal – Sentence, armed robbery, attempted robbery in company, intimidation with intent to cause fear of physical harm, parity, totality, individual justice, young offender, matters on a Form 1.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	Attorney General’s Application (No 1) of 2002 (2002) 56 NSWLR 147 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Harris and Huynh [2005] NSWCCA 220 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR R v Ponfield [1999] NSWCC 435 Veen (No 2) v The Queen (1988) 165 CLR 365
Category:	Sentence
Parties:	Regina Thomas Alexander Stewart - Offender
Representation:	Counsel: Mr Charles – Director of Public Prosecutions Mr Vizintif - Offender   Solicitors: Director of Public Prosecutions
File Number(s):	2013/32359; 2014/188875

Sentence

1. HIS HONOUR: Thomas Stewart appears today for sentence in relation to three offences with a number of offences on two separate Forms 1. The matters for which he is for sentence, the matters to be taken into account and his custody situation are a complicated affair and to some extent his criminal history is a complicated affair, given the fact that in various ways he has been in breach of conditional liberty on the various occasions that he has committed offences for which he is to be sentenced today.

2. Mr Stewart was born in October 1994. It would appear to me on my calculation he is thus 21 years of age to turn 22 at the end of this year in October. However a number of the offences, in fact all bar one of the offences with which I am concerned, including the matters on the Form 1, were committed in 2014. The first “principal” offence by reference to the Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as “the Act”, was an offence committed on 24 February 2014 when he would have been 19 years and approximately four months of age. The last offence in time as I calculate the various dates was committed on 15 January 2015. He was 22 years of age then.

3. To go through the various offences, the first principal offence with two matters on a Form 1 is an offence shortly described as “attempted robbery in company”. This is an offence committed on 24 February 2014, as I said it is contrary to s 97(1) Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment.

4. I have picked up a defect in the Court Attendance Notice, but I will deal with that at the end of the sentencing proceedings before I make the formal orders. The Court Attendance Notice upon which he pleaded guilty at the Local Court alleged:

“He on 24 February 2014 at Scotty’s Bakehouse shop 3/65 Veterans Parade, Wheeler Heights in the State of New South Wales did attempt to rob the victim(sic) Randall Smith the employee of Scotty’s Bakehouse of certain property, to wit Australian currency the property of the said victim, whilst being in company with Nathan Griffin, Jackson Siladi, Nathan Youd, Ollie Northeast and Thomas Keeping-Sullivan, did attempt to commit a serious indictable offence, to wit armed robbery(sic).”

5. That is how it reads in the Court Attendance Notice I have been provided. It seems to me in passing, that the words “did attempt to commit a serious indictable offence, to wit armed robbery”, are not only contradictory with the terms earlier expressed in the Court Attendance Notice, but are entirely surplus to any proper requirement.

6. I point out in passing that I sentenced Nathan Griffin on 15 June 2015 and I sentenced Nathan Youd on 25 September 2015. Naturally I have had regard to those remarks on sentence in relation to the common charge between those two men and this prisoner, that being the crime that I have just referred to above.

7. There is a Form 1 in respect of that offence. The Form 1 in respect of that offence relates to two offences committed by the prisoner on 1 December 2014 at Crows Nest. He and another offender entered commercial premises, as the statement of facts reveals the “Crows Nest Dental Centre”, and there the prisoner stole a red Samsung Galaxy 2 mobile phone the property of a named victim to the value of $200 and also stealing the same victim’s “Adult Opal card” to the value of $36.43.

8. The second charge for sentence is an offence of “intimidation”. It is directly related to the circumstances of the armed robbery in that the person intimidated by the prisoner was one of the co-accused, the young man Nathan Youd who I have earlier sentenced. This was a crime committed between 26 June 2014 and 27 June 2014 at Dee Why of intimidation with intent to cause Youd to fear physical harm. This is an offence that carries a maximum penalty of five years imprisonment and or a 50 penalty units. This was an offence committed some months after the attempted robbery in company.

9. In respect of the second “principal” offence, as I might call it, that is an offence of aggravated break, enter and commit serious indictable offence, to wit stealing, knowing persons were present or within the premises. This is an offence contrary to s 112(2) Crimes Act 1900 and it carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years imprisonment. There are two matters on a Form 1 and they are offences of a similar character. One offence is an offence of break, enter and steal at an office building at Belrose between 21 November 2014 and 22 November 2014, within the premises stealing an Apple iPad and the hard drive from an Apple mini Mac, the property of Graham Thovurn. This is an offence contrary to s 112(1) Crimes Act 1900.

10. The second offence and the last offence in time committed in the early hours of 1 January 2015 is a break, enter and steal at the Manly Sea Life Sanctuary situated in West Esplanade, Manly and stealing a range of office equipment and other items of value, including a master key for the Sanctuary and its various rooms, a white iPhone 5, a green iPod shuffle, a Merlin entertainment staff ID, a shark rescue donation box with about $300 to $400 in it, various EFTPOS cards worth $50 each, ten what are described as “Merlin entertainment envelopes”, five Merlin entertainment envelopes also containing trade sales ticket invoices and discounts and a black laptop bag, all the property of Manly Sea Life Sanctuary. The offence of aggravated break, enter and steal, I hasten to say, was an offence committed on 15 January 2015, so it was in effect the last offence in time.

11. In relation to these various offences the facts need not be dilated upon. In fact the facts in relation to the attempted robbery in company are extensively set out in the two judgments I have previously delivered. What is to be noted from those judgments is that the prisoner sometime around about 10.20pm approached the victim Mr Smith who was a baker at the bakehouse he was alone, he was at the front of the shop having a cigarette. He was approached in total by four males including the prisoner holding knives, pushing him back into the shop. The prisoner was not the eldest person there, Nathan Griffin was born in September 1993, but two of the other offenders were juveniles being respectively born in 1996 and 1998.

12. A demand was made for money and the victim was threatened with the knives. The victim picked up a pie tray which was about a metre in length and 40 centimetres wide and called out to his assailants, “I’ll fucking kill you”. The young men showing their courage, or lack of it, ran from the premises and police were called. No doubt it was a frightening experience of course for Mr Smith and he acted only to protect himself. Various inquiries were made as I have commented upon in relation to the sentencing of Mr Griffin and Mr Youd that various people provided assistance to the police, providing information identifying at least by 24 April 2014 the prisoner as one of the participants. The prisoner attended Manly Police Station on 25 June 2014 and told lies to the interviewing police, denied knowing any of the co-offenders to start with and then later saying that he knew the co-offenders but denied involvement in the robbery. It is interesting that the facts state he told the police the others must be “dogs”, that is informants, and they were blaming him because he bullied them in the past. It is quite apparent on the evidence available to me that through the period late 2013, 2014 the prisoner was frequently behaving in an aggressive fashion towards others and was somewhat out of control, given the criminal record available to me and having regard to the offences with which I am concerned.

13. The intimidation charge is directly related to these events, because once the prisoner was charged on the evening of 26 June, he rang Youd and threatened him, calling Youd “a fucking snitch” and threatening to “kill him”. A further call was made, it must be said, on 27 June 2014 in the character of a text message, where the prisoner said “Sorry. All good. I found out it wasn’t you that snitched”. Later the prisoner and Youd spoke on the mobile phone. The prisoner apologised to Youd but then he asked Youd to help him out saying that he had received advice that he could go to gaol and he wanted Youd to tell lies about his relationship with one of the co-offenders and that he had been the victim of a conspiracy.

14. I bear in mind in relation to the facts available to me and the overall circumstances that I do not believe that the prisoner was going to kill the victim. He was endeavouring of course to threaten him and scare him and he apologised for that. Although he somewhat compounded the situation by trying to get the victim to go along with a scheme to try and extricate him from the difficulties he had with being charged with the ‘robbery’ offence.

15. With regard to the ‘break, enter and steal matters’, the “principal” offence and the two matters on the Form 1, dealing with the principal offence first, the offence committed was on 15 January 2015. The prisoner broke into an apartment in Freshwater on the second floor of a unit complex. There were people inside. The prisoner obviously entered the premises and he was apparently in company with another person because the victim saw two people run out of the apartment when he awoke. Some cutlery was dropped by the people inside the premises. The items stolen included an Apple MacBook Pro, a mobile phone described as “HTC”, a white Apple iPhone 5, a brown leather wallet containing credit cards, some identification, $95 in cash and a green handbag containing a purse with credit cards, identification and cash belonging to the victim’s wife, who was also present in the premises. Apparently one of the stolen cards was used the next day. The prisoner’s fingerprints were found at the scene. Obviously he certainly did not cover his hands and the crime would appear to be one of opportunism to the extent that the prisoner chose a premises obviously with which he could not have been personally familiar not being known to the victims. The victims seek $4,222 in compensation to replace the stolen items.

16. The next offence of break, enter and steal was at a business premises at Belrose. The premises were locked on the evening of 21 November. The next morning entry had been gained by unknown people, various property was missing which I have already identified and it was revealed on forensic examination that the prisoner had again left latent fingerprints at the scene. The victim of that crime seeks compensation for the replacement of the items that were stolen in the sum of $2,000.

17. The crime committed at the Manly Sea Life Sanctuary through the early hours of New Year’s Day involved the prisoner breaking into the premises and stealing the property I have already identified. He was captured on CCTV footage attempting to gain entry to the cash office door but was unable to do so. The prisoner apparently was identified from the CCTV footage. Compensation is sought, although the precise quantity of that compensation is not known to me. The compensation includes replacing the master key and damage done to internal doors. The prisoner, obviously when he committed that crime, was not disguised and there does not appear to be any reason to believe that he was disguised when he committed the other crimes.

18. With regard to his criminal history, as I said, it is a complicated situation because at various times when he committed various offences he was subject to various types of conditional liberty. His offending started in 2012. He has a minor matter in Queensland in that year which I can safely ignore, but it appears as though from about September 2012 when he was charged as a juvenile with an offence of damaging property, throughout 2013 and 2014 up until early 2015 he has committed a series of offences. I plead again for someone to organise a system whereby criminal histories are provided to judges in chronological order, not in the order in which they currently are given to us.

19. What is relevant in relation to this criminal history is that he has a number of appearances in relation to what could be called relatively minor offences such as damaging property by use of graffiti and possessing what is described as a graffiti implement for which he was fined. However, in respect of one such a series of offences, six counts in fact of defacing property or damaging property with the use of a graffiti implement, he was on 16 December 2013 sentenced to four months imprisonment which was suspended on him entering into a s 12 good behaviour bond. It follows from that order made in December 2013 that he was subject to that particular bond at the time he committed the attempted robbery in company offence. Furthermore, on that date he was placed on s 9 good behaviour bonds in respect of two counts of larceny and further counts, 13 in all, of damaging or defacing premises or property with graffiti implement.

20. The s 9 bonds in respect of those matters were to run for 12 months. That would mean that up until 15 December 2014 he was subject to those bonds. It follows from the dates that I have already supplied he thus was in breach of those bonds when he committed the attempted robbery in company offence, the intimidation offence and at least one of the break, enter and steal matters. That is one of the matters on the Form 1 and also when he committed two larceny matters on the 1 December 2014.

21. It appears from his criminal history that in fact he committed a minor offence in 2014 which was dealt with in January 2014 but was subsequently on 8 April 2014 charged with other offences including entering inclosed lands and two counts of larceny. In respect of those offences he obviously was granted bail because on 20 November 2014 he was charged in relation to failing to comply with a bail order.

22. The significance of the offence date in relation to those matters and the circumstances of his charging in relation to those matters on 8 April 2014 is, making the assumption he was on bail although in the scheme of things it is a relatively minor matter, he committed offences of intimidation and at least one of the break, enter and steal matters with which I am concerned whilst subject to that bail restraint.

23. He was convicted at the Manly Local Court on 1 April 2015 in relation to a series of offences which appear to have been committed throughout 2014. To identify them, not necessarily in chronological or order of importance, one offence was an offence on 7 May 2014 of “escaping police custody”. When sentenced on 1 April 2015 he was sentenced to seven months imprisonment with a non-parole period of two months and 13 days commencing on 20 January 2015. The non-parole period was to expire, according to the orders available to me, on 1 April 2015.

24. He was also sentenced on the same day to sentences of imprisonment in relation to a number of the matters I have already identified. In relation to two larceny matters committed on 8 April 2014 he was sentenced to two months imprisonment to date from 20 January 2015. In respect of failing to appear in accordance with a bail acknowledgement, I hesitate to point out because I do not place great significance on this aspect as it could have been a failure to appear in relation to a bail matter relating to other offences, he was sentenced to one month imprisonment to commence from 20 January 2015. Thus, having come back into custody as I said earlier on 20 January 2015 the learned Magistrate fixed four sentences of imprisonment, one with a non-parole period to commence from 20 January 2015.

25. I pause just to make the observation the custody record shows that he was in custody from 20 July 2014 to 4 November 2014. I calculate that to be a period of three months and two weeks. He was also in custody for a day on 30 November 2014. I have got no idea whether the learned Magistrate took those periods of custody into account when sentencing him on 1 April 2015. If the Magistrate did, then the Magistrate ought to have backdated any terms of imprisonment. But they appear on the record and they are of significance in relation to a matter raised by the prisoner in his evidence, which I will deal with in a moment.

26. The prisoner has other convictions. On 1 April 2015 when sentenced to the terms of imprisonment, the magistrate also placed the prisoner on a bond pursuant to s 9 of the Act to be of good behaviour for two years in relation to an offence that can be shortly described as “goods in custody”. I have no facts in relation to any of these matters.

27. The prisoner has other convictions in 2013 for stealing, entering inclosed lands et cetera. I just picked up, given the chaotic character of the criminal history, that the criminal history also states he was sentenced to two months imprisonment, again on 1 April 2015 for an offence committed on 20 January 2014 of “shoplifting”, which could be one of the larceny matters to I earlier referred.

28. It can be seen from this survey of his criminal record that throughout the period of time in which the offences with which I am concerned were committed the offender was committing other offences. It would seem, being charged, being placed on bail, being released and continuing to commit offences. It is quite an intense period of criminal activity if one looks at it from the period of time from about late 2013 through to the beginning of 2015.

29. The prisoner gave evidence before me as did his uncle. In the context of just dealing at the moment with his criminal history and dealing with the circumstances of his custody, there appear to be two very important matters that emerged. One is that when he was in custody between July and November 2014 he had his jaw broken in custody by another inmate. This was one of the incidents of being in custody he himself has acknowledged to the Community Corrections officer. He apparently said the wrong thing to the wrong inmate. But I bear in mind the infliction of that punishment upon him which of course is not what he was sent to gaol to suffer.

30. His uncle gave evidence before me to confirm the fact of the broken jaw. He confirmed the fact that when he was released from custody in early November 2014 the prisoner not only had a broken jaw but he was sent to a drug rehabilitation programme called ‘The Glen’ where he lasted a few days until the prisoner feels he was unfairly expelled. Apparently when the prisoner came back into custody, as best I can calculate it on 20 January 2015, and where he has been since that date, he had his jaw broken again. The circumstances of that are not made known to me, nor have I got any medical records in relation to the mater. But his uncle, who impressed me as a witness who is cares for the prisoner, has confirmed that fact.

5. The other feature of the evidence that emerged quite shockingly I must confess, at least to me and I see a lot of shocking things, was the fact that the prisoner’s parents, the prisoner being an only child, at some time as I best can understand it in 2013 decided, bearing in mind one of his parents has a connection with England, that they would leave the Manly area and remove themselves to England to live. It would appear they are living there permanently, although the prisoner’s father has come back to Australia at least once in early 2016.

6. The case from the evidence available from both the prisoner and his uncle who is the younger brother of the father is that the parents left the prisoner behind to his own devices. The prisoner, it must be fairly said, gives a history to the psychologist and the Community Corrections Service of some dysfunction when he was at school and what would appear to be conduct that might be categorised of evidence of a “conduct disorder”. There is nothing in the evidence to suggest the parents abandoned the prisoner simply because of his behaviour. It seems to me quite clear from the evidence that the prisoner not only was left to his own devices, but being in a situation where he was effectively homeless. As he said on occasions, “couch surfing”. It did not take long before he was involved either in antisocial conduct or involved in criminal activity to obtain property in order to gain money. In fact his uncle gave evidence before me that he did not even know that the prisoner was in custody for some period of time and he endeavoured to come to his rescue in late October to try and obtain bail for the prisoner to try and get him into a drug rehabilitation programme. The abandonment of the prisoner by his parents which seems somewhat irrational given what I understand of his parents and their background, has been a contributing factor in my view to the course of offending that I have taken some time to outline.

7. The Community Corrections Service has supervised the prisoner in 2013 in relation to a ‘community service order’ where his service was unsatisfactory. In relation to the good behaviour bonds there is no comment about his reaction to supervision, but it would appear given his offending pattern, to have been at least unsuccessful. He has been in custody continuously since 20 January 2015.

8. The prisoner himself reported that he had a stable and comfortable upbringing. His parents lived at Freshwater near Manly and the prisoner continued to live in Manly after his parents’ departure. The co-offenders in the ‘robbery in company’ matter, if I might call it that, were young men, some younger than he, all from that particular area.

9. He admitted he was slow in maturing and came to adverse attention at school by acting, as what he described as “the class clown”. The father has in fact provided some background of the prisoner in previous interviews, presumably given before the prisoner’s father left for England over two years ago. He believed the prisoner was easily led and had come under some influence of others more experienced than he.

10. The Community Corrections Service said, “The move by his parents has removed an important source of support.” The prisoner however, wishes to move to the South Coast to live with his uncle, and start afresh. He gave evidence of this before me in the course of also apologising for his conduct and expressing his contrition, which expression of contrition I accept as genuine.

11. His uncle gave evidence he lives near Nowra and he is willing, once the prisoner is released, to provide accommodation for the prisoner and endeavour to find the prisoner employment. It would appear the uncle is involved in the building industry. He is a stable, responsible person and he may be able to find employment in that area.

12. The prisoner left school in year 10, he has done some bricklaying, having commenced an apprenticeship in that skill, but lost his employment when his employer retired. He has mainly worked otherwise in casual employment. He admits to abuse of alcohol and recreational use of cannabis and ecstasy. He moved to what is described as “methylamphetamine” and he said that had “dramatically messed with me”. He told the Community Corrections Service, consistent with the evidence he gave before me and consistent with what he has said to his uncle, that he wants to make a new start.

13. The assessment of the Community Corrections Service was that he would appear to have had a constructive and supportive upbringing, but the relocation of his parents was a major loss, particularly as he was an only child. It was a difficult time for the prisoner and continues to be so “emotionally”. Mr West is one of the most experienced Community Corrections service officers that I know of, he has been providing reports to the Court for 40 years, expressed the view that the prisoner described in positive terms the opportunity for a new start with his uncle.

14. The prisoner wrote a letter of apology which he adopted in this Court. He also wrote a letter of apology to one of his victims expressing his regret for what he did. That letter of apology may never reach those victims, that’s the victims of the principal offence of break, enter and steal knowing people are present in the premises, but that letter provides further evidence of his remorse.

15. The psychological report sets out a great deal of history that I need not dwell upon. Most of it I have already summarised. Dealing with the real issues that should arise in a psychological report, that is the psychometric testing of the prisoner. The prisoner does not suffer any intellectual disability. He has a full range IQ score on the test applied, of between 87 to 100, which places him in the average range, one would have thought. He does have evidence of attention deficit difficulties which is quite consistent with the history that I have outlined. He also has a psychological dependence to compulsive and use of methylamphetamine. His degree of distress in the personality testing was such that no valid test conclusions could be reached. He has had moderate levels of depression and stress, but that may well be indicative of his plight in custody. There is no evidence of prior depression or anxiety in the material available to me, concerning the period of time before or during the offending with which I am concerned.

16. He did complain in the history provided that he was exposed to some drug use and physical violence when in his father’s care for some period of time, apparently his parents either were separated or for various reasons he was in the care of his father to the exclusion of his mother. He reported learning difficulties in school but also reported reaching average academic milestones, including obtaining his school certificate.

17. The opinion of the psychologist was that he was highly likely suffering from ADHD at the time of the commission of the offences and continues to do so. It is recommended he receive as much “emotional support and guidance as possible” to promote his wellbeing. He would be advantaged by obtaining under the Medicare arrangements, bulk billed sessions with a psychologist under what is described as the Better Access to Mental Health Care scheme, to assist him in relation to ADHD symptomology and also to assist him in relation to his predilection for drug abuse.

18. Noting the existence of symptoms and other matters of history consistent with ADHD from some time in his childhood, there is not in this matter any evidence of a specific mental disorder or mental illness that would warrant of itself diminution of weight to be given to general deterrence or greater weight to personal deterrence.

19. However the sentencing of the prisoner is not solely to be determined by those matters, as the submissions and the law that I have to take into account makes clear. I have referred to the evidence of the prisoner’s uncle. He confirmed as I said the physical injuries suffered by the prisoner in custody and his continuing support. He gave evidence, I think on questioning from myself about the circumstances of the prisoner’s parents. They would appear to be permanently in England, at least for the foreseeable future and it would seem that there does not seem to be a short term contemplation of their return to Australia. It seems to me without further comment that the treatment of the prisoner by his parents have been quite extraordinary and their seeming lack of interest in his welfare is actually quite sad. It is certainly sad for the community if in fact that in some way contributed, as I believe it has, to factors related to the offending with which I am concerned.

20. The Crown and the defence provided extensive written submissions. There is little distinction between the submissions in material respects. I am required to have regard to the purposes of sentencing as is self-evident pursuant to s 3A of the Act; there must be an element of general and personal deterrence here. Although in sentencing this particular prisoner and considering issues of general and personal deterrence I take into account his relative youth and immaturity at the time of the offending. I do not believe ultimately there is a need to protect the community from the prisoner. One of the issues that appears to arise, is that after breaking his jaw sometime in October 2014, when released on bail he went on to commit further offences. But I accept that extra curial punishment suffered by the prisoner in custody has had a salutary effect upon him. I am required to promote his rehabilitation, make him accountable for his conduct, denounce his conduct and recognise any harm or loss suffered by victims. It does not seem to me in this circumstance to be a practical matter to impose any order for compensation upon him. He has got no capacity to meet it, it seems to me, in the short to medium term.

21. I have had regard to s 5 of the Act, particularly s 5(1). There is no alternative in this matter other than terms of imprisonment in relation to the offences with which I am concerned. The issue of parity arises, specifically in relation to the attempted robbery in company matter. I bear in mind that the other two offenders that I sentenced I sentenced with considerable leniency. Both offenders were given the benefit of non-custodial orders. There were a number of specific circumstances peculiar to them that do not apply in this matter. It seems to me, with respect to the very helpful submissions about the relevance of what is described as Henry (1999) 46 NSWLR 346, at [162], that a matter to be taken into account of course in considering that guideline and the various factors identified by the learned Chief Justice is the fact that the guideline will in particular cases be a matter to consider in the context of other, perhaps overarching considerations. Parity of sentencing has been expressed to be an artefact of what is called “equal justice”.

22. Equal justice is an Aristotelian concept. Rothman J in the decision of Jimmy from 2010 expressed it as being the process by which, to paraphrase his more eloquent words, alike are treated alike and the unalike are considered unalike to the extent of their unlikeness on rational bases. In this particular matter I have got to bear in mind the bonds granted to the other offenders. There were no Crown appeals or prisoner appeals in relation to those orders and thus to some extent, although to a limited extent, in sentencing the prisoner in relation to the common offence there should be some restraint here. Although the reality is in this matter I cannot contemplate a good behaviour bond.

23. With regard to the issue of the appropriate term of imprisonment in relation to that particular offence I have had close regard to the helpful submissions of the learned Crown. In my view he, by reference to the seven factors identified by the learned Chief Justice [162] was entirely fair and accurate in his assessment of the relevant criteria, a young offender with little criminal history. A weapon like a knife capable of inflicting serious bodily harm, limited degree of planning, limited if any actual violence, but a real threat thereof, victim in a vulnerable position and a plea of guilty, the significance of which was limited by a strong Crown case. Of course there is another factor in the guideline of “small amount taken”. This is an “attempted offence” but it seems to me it is not a factor of great significance in the fixing of the appropriate sentence. The “guideline” has salience in sentencing for a range of “robbery” offences.

24. With regard to the guideline which was fixed by the Court of Criminal Appeal that ordinarily a sentence of between four and five years could be considered as a starting point, noting matters of aggravation that were later identified in the judgment by the learned Chief Justice requiring consideration of a greater sentence, it is also to be remembered in the same judgment at an earlier point his Honour adopted the observations of Mahoney ACJ in the decision of Lattouf, where his Honour, the Acting Chief Justice pointed out, if justice is not individual it is “nothing”. His Honour, the learned Chief Justice, in giving the judgment in Henry, acknowledged there must continue to be a residual discretion in the sentencing of offenders and all matters need to be taken into account. I believe it is readily recognised in his Honour’s judgment that whilst the guideline points to particular factors or other factors of aggravation, there will be many matters that will be required to be taken into account that will bear upon the appropriate sentence. For example, the existence of a mental disability or a disorder that would warrant consideration of what are sometimes called Hemsley principles laid down by Sperling J in 2004 and in the more detailed criteria that were identified by McClellan CJ at CL in the decision of DPP (Cth) v De La Rosa [2010] NSWCCA 194 (at [177] – [178]). The other matter that arises here is of course that Henry was a case that predated the guideline judgment in relation to the fixing of appropriate discount to recognise the utilitarian benefit of the plea of guilty in sentencing matters.

25. In Henry, the guideline in consideration of relevant factors refers to a plea in the face of a “strong Crown case”. It was said the plea of guilty had a significance which was “limited” by that fact. The judgment of the learned Chief Justice in Thomson & Houlton, from 1999 held that in fixing a discount for the utilitarian benefit of the plea of guilty, the strength of the Crown case is not a determinative matter. It is the utilitarian benefit of the plea that is to be taken into account.

26. In this case as I foreshadowed the prisoner, having pleaded guilty to all offences at the Local Court and having been committed for sentence is entitled discount of 25% upon the otherwise appropriate sentence for each offence without dispute from the Crown Prosecutor.

27. If I might borrow from the Crown’s submissions - although these matters are reflected in the defence submissions - in considering the aggravated break, enter and steal matter it has a standard non-parole period. That means, pursuant to Pt 4 Div 1A of the Act, the Court is to have regard to ss 54A(2) and 54B(2), which were amended after the High Court judgment in Muldrock in 2011. Now makes it clear that the middle range of objective seriousness is by regard only to the objective facts of the case. S54B(2) makes it clear that the Court then in considering the fixing of a non-parole period which is mandatory under that particular Division is also to have regard to other matters that are relevant including mitigating factors, issues that arise under the Act such as “special circumstances” and the like.

28. It is also to be borne in mind, as the Crown helpfully pointed out that there are a range of decisions such as Harris and Huynh [2005] NSWCCA 220 where the Court considered the character of aggravating factors and the character of the serious indictable offence as relevant matters to be taken into account in determining where an offence fits in the spectrum of offending. The offence of stealing is only one of many, many offences that can be committed potentially in the course of a breaking and entering of a premises. It carries a maximum penalty of considerably less than many other serious indictable offences as was discussed in Huynh and Harris. Furthermore the circumstance of aggravation itself might speak of degrees of seriousness as the case may be. Two people breaking into a house in company to pick up a television and carry it away are not committing an offence with an aggravation as serious as breaking into a property and inflicting for example, actual bodily harm upon a victim within the property. That could be self-evidently so even though the different circumstances of aggravation bring into play the same greater maximum penalty. A maximum penalty always providing a yardstick for the seriousness of a particular offending.

29. Ultimately as I am required to do I am to assess where the offence fits by relationship to the middle range of objective seriousness. The offence in its terms, bearing in mind the circumstances of aggravation are clearly not at the lower end of the scale but giving the word “substantial” its normal meaning, in my view it is substantially below the cusp of the middle range of objective seriousness. It is on the other hand substantially above an offence at the lowest range of seriousness of an offence of this type, bearing in mind of course the expectation, although the prisoner never threatened the victims, of people being inside in the early hours of the morning in domestic premises.

30. I have had regard to the Ponfield guideline. The Ponfield guideline was a judgment by Grove J, one of the finest judges of the Supreme Court of his period. It is interesting that if one reads Ponfield one will discover that many of the aggravating and mitigating factors that he identified found themselves incorporated almost word for word into the subsequently enacted Crimes (Sentencing Procedure) Act. In this matter the Crown has referred to matters I should take into account by reference to Ponfield such as the prisoner’s prior record, the value of the property, which is obviously relevant and the circumstance of people being in the premises. But that is pleaded as a circumstance of aggravation. It seems to me if I might come back to, if I may call it, the more relevant s 21A(2) of the Act, the major circumstance of aggravation that arises in relation to all the offending with which I am concerned is the breach of conditional liberty, primarily being on bail. That situation of course is complicated as the intensity of it varies from offence to offence. But it is significant that at any particular time the prisoner in one way or another was subject to conditional liberty. In relation to the attempted robbery in company he was subject at least to a suspended sentence bond and a good behaviour bond.

31. In relation to the break, enter and steal in circumstances of aggravation matter the bonds I have mentioned had expired, but he clearly must have been on bail at the time of that offending. Amongst other things he had been released from custody in October with his jaw broken to go to a rehabilitation centre when he committed that principal offence in the middle of January 2015.

32. The “intimidation” offence in my view is not a particularly serious offence. It is a serious matter to threaten somebody, but it is to be seen in the context of what appears to be the prisoner’s anger at being charged. It seems to be an impulsive offence. He apologised to his victim. Although as I said he tried to get his victim to assist him in other ways. Any fear for the victim was short lived.

33. The learned Crown Prosecutor in his written submissions, in the aggravating and mitigating features ‘section’ of his submissions, also correctly pointed out that in respect of the attempted robbery offence there was the aggravation of the threatened use of a weapon but his possession of the weapon is an element of the offence. He submitted in writing that the previous record of convictions was an aggravating factor. I do not accept that submission. That was a matter we discussed. He also claimed the offences, particularly the robbery offence, was a “planned and organised criminal activity”. I do not find that as an aggravation. In fact it was conceded in the other written submissions that there was limited planning. He put in a submission, which I gather to be a word processing slip, that the offences were committed “with disregard to public safety”. No element of that arises, bearing in mind the written submissions of the Crown refer to “danger to other road users”, which has got absolutely nothing to do with any of the offences with which I am concerned.

5. Two of the principal offences were obviously committed for financial gain. But to my mind they are intimately bound up in the very purpose of such offending as is recognised by the maximum penalties.

6. With regard to the written submissions of the prisoner as I said his counsel both orally and in writing thoroughly and with skill referred to matters favourable to the prisoner and relevant to take into account. He put submissions arising from Veen (No 2) (1988) 165 CLR 365, from memory. I have taken that into account. He has dealt with the issue of parity with which I have already dealt.

7. There are however unfortunately for those that are required to listen to my remarks on sentence, several other legal issues that obviously need to be taken into account in relation to the Form 1 matters. I have regard to the guideline judgment in relation to such matters Attorney General’s Application (No 1) of 2002 (2002) 56 NSWLR 147. In that judgement the Court of Criminal Appeal noted that the matters taken into account on a Form 1 mean greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. The entire point of the process the Court said was to impose a longer sentence or to alter the nature of the sentence that would be imposed if the principal offence had stood alone. Sometimes the additional penalty would be small, sometimes it would be substantial, depending upon the character of the offences of course on the Form 1 and the context of the matter. Form 1 matters provide some guidance as to as the totality of the criminality with which one is concerned. However it is to be borne in mind that the Court is not to determine appropriate sentences for matters on a Form 1 or to determine an overall sentence that would be appropriate for all the offences and then consider the matters of discount et cetera. It would rarely be appropriate, the Court said, for a sentencing judge to attempt to quantify the effect on the sentence of taking into account the Form 1 matters and also their Honours pointed out that offences included on a Form 1 will have a significantly lower salience in the sentencing process. For various reasons the judge must be careful to assess whether it is appropriate to proceed to sentence on a basis that would bring into disrepute the Court processes.

8. Learned counsel for the prisoner drew my attention to the decision in relation to Form 1 matters of Bavadra, a decision of Wood J, which predated the guideline judgment, noting the utilitarian value of the admission of guilt and the placing of the sentencing judge in a position where it is possible to sentence the offender for all the outstanding criminality. However unless proper attention is given to the additional offences, bearing in mind no separate sentence is to be imposed, the procedure may fail to serve its true purpose.

9. I am also required to have regard to the totality of sentencing, the structure of the sentences I impose will reflect that. This flows from, for example, decisions such as Pearce v R (1998) 194 CLR, particularly that part of the judgment of the majority at [45]. I also have regard in the context of considering totality of criminality, the observations of the High Court in Mill v R (1988) 166 CLR 59, particularly at (62-63). Although this does not give rise to consideration of what are called “Todd” principles.

10. Because of the requirement of some partial accumulation upon the sentences imposed at the Local Court, to give effect to totality and some partial accumulation of sentences that I will impose, that of itself constitutes ‘special circumstances’, pursuant to s.44 of the Act. This was so held by the Court of Criminal Appeal back in 1998 in the decision of Astill. But there are other matters of course that are taken into account and which in my view satisfy the requirement to make a finding of ‘special circumstances’ pursuant to s 44 of the Act. He is a young offender, it is his first significant period in gaol and he will need a considerable period of time of professional assistance to adjust to community living. He will need assistance and direction in relation to employment and drug counselling. He will also need assistance in relation to the issue of accommodation although he is prepared to take up his uncle’s offer. I am sure that that would be satisfactory to the Community Corrections service or the Parole Authority.

11. There is a need in my view for an extended period of time for that supervision. I wish to just place on the record my thanks to both the learned Crown Prosecutor and the learned counsel for the prisoner for the helpful written submissions that were provided.

12. With regard to mitigating factors arising under s 21A(3) of the Act, in my view none of the offences can be identified as planned or organised criminal activity. With regard to issues of character and risk of reoffending one could not make a positive finding in that regard. But with the assistance of his uncle and the salutary experience of being in custody, I am prepared to find on balance that he has good prospects of rehabilitation, particularly having regard to his youth.

13. I accept as a mitigating factor of some importance the remorse expressed by the prisoner, I believe it is genuine and I believe that he has accepted responsibility for his conduct and acknowledged the injury or damage that he has done. His pleas of guilty are mitigating factors of course but they are matters for which he receives a discrete discount as I have earlier foreshadowed.

14. Thus follows that I will make the relevant orders. It also follows from what I have said in the detail of the matters that I have had to address, that anyone who thinks sentencing people is an easy task in the modern world is deluding themselves.

15. Stand up please Mr Stewart. All these sentences I impose include a discount of 25%. In relation to the offences I will shortly describe of attempted robbery in company taking into account the matters on the Form 1, you are convicted. You are sentenced to a term of two years and three months’ imprisonment that will date from 1 March 2015. In relation to that sentence I fix a non-parole period of one year to commence from 1 March 2015, that non-parole period expired on 29 February 2016.

16. In relation to the offence of intimidation, you are convicted and you are sentenced to nine months imprisonment. That will date from 1 March 2015 and that term of imprisonment expired on 30 November 2015. It will be concurrent thus with the first sentence I announced.

17. In relation to the aggravated break, enter and steal matter, taking into account the matters on the Form 1 you are convicted. You are sentenced to a term of imprisonment of one year by way of non-parole period and that will date from 1 March 2016 and expire on 28 February 2017. I cannot direct that you be released to parole, that will be a matter for the Parole Authority as I understand the law, given the effective total sentence I impose. In any event I fix a balance of sentence of two years six months in relation to that matter, that balance of sentence as I calculate it will expire on 31 August 2019. Thus, the total sentence I have imposed is four and a half years imprisonment with a non-parole period of two years imprisonment. Those sentences of course are cumulative or partly accumulative upon the sentences imposed at the Local Court. Take a seat thank you.

18. Madam Crown any technical matters from you?

19. CHARLES: No your Honour those numbers all look correct to me.

20. HIS HONOUR: I note the applications for compensation. I am very sympathetic of course to the victims, but I have already noted, whilst I have the power to make an order for compensation I just cannot see it to have any practical effect in this matter. Everyone’s property is valuable, I know that, particularly the victims of a break, enter and steal in their private homes and business persons are in the same position. But in the scheme of things I just don’t see the utility in the particular matter, having regard to the circumstances of the prisoner.

21. Are there any matters, bearing in mind you are ignorant of the case by and large, from you?

22. VIZINTIF: Nothing arising your Honour.

23. HIS HONOUR: He’s been called up in relation to breaches of bonds, the bonds all having expired, that is part of the material I’ll just direct no action in relation to those bonds, they have been subsumed it seems to me into consideration of the offending. Bearing in mind I have made the findings about the aggravated factor of breaches of conditional liberty.

24. CHARLES: That’s fine your Honour, I will make a note that has been taken into account. Thank you.

25. HIS HONOUR: Do you understand the sentence I have imposed Mr Stewart?

26. OFFENDER: I kind of don’t understand a little bit.

27. HIS HONOUR: The effective sentence I have imposed is four and a half years imprisonment. That dates from 1 March last year and subject to rights of appeal of the Crown or yourself, the non-parole period at this stage will expire on 28 February 2017. You will be eligible for release to parole at the end of February next year right and then you will be, if the sentence stands and that’s again subject to the obvious rights of the relevant parties, the Crown and the defence, if you are released to parole you will be subject to parole supervision for two and a half years. But in fixing that parole supervision by relationship to the non-parole period I have taken into account those periods in custody that you had beforehand. If you breach your parole in a material way the Parole Authority will revoke your parole. You’ll go back into custody and you will serve the balance of the sentence until such time as the Parole Authority deems appropriate in all the circumstances. It is a matter for the Parole Authority, not for me, I am pleased to report. Thank you, you are excused Mr Stewart.

28. Thank you ma’am, thank you sir, for your assistance. I am just signing the orders, just bear with me madam Crown. Could you thank your colleague very much for his assistance in the matter?

29. CHARLES: I will your Honour, thank you.

30. HIS HONOUR: Thank Mr Cody very much for his assistance in the matter.

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Decision last updated: 14 June 2017