R v Vincent, Kenneth

[2009] NSWDC 432

CITATION:	R v Vincent, Kenneth [2009] NSWDC 432
HEARING DATE(S):	08/04/09, 09/04/09 & 23/06/09
JUDGMENT DATE:	25 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a non-parole period of 16 months and 15 days with balance of term of 15 months.
CATCHWORDS:	Criminal law - sentencing - robbery and at time of robbery inflict ABH - taxi driver victim - driver's taxi purse, money and mobile phones taken - injuries towards lower end - poor subjectives - offence committed whilst on parole.
CASES CITED:	The Queen v Henry CCA (1999) 46 NSWLR 340 The Queen v Gladue [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Kenneth Vincent
FILE NUMBER(S):	2009/3686
SOLICITORS:	Crown: Mr J May Defence: Ms S Carr

JUDGMENT

1. Twenty per cent of the New South Wales adult prison population is comprised of persons who are either Aboriginal or Torres Strait Islanders. All of those persons have been placed in custody by order of a court either refusing bail or passing sentence. Many judicial officers are conscious that no Aboriginal is in gaol other than upon bases that he or she did have, as the final result, court orders imposing custody. As this case illustrates, all too frequently courts are the end of the line with no room to move. The conduct of this offender demands a custodial sentence of significant length.

2. Aboriginal communities and Aboriginal men and women need to heed the words of leading Aboriginal people. Most recently, Patrick Dodson, in his Sydney Peace Prize speech on 8 November 2008, said this:

“The Aboriginal community must come to terms with the reality of our contemporary situation and deal with it. Whatever the causes of our alcohol and substance abuse issues, whatever the denial that has resulted in our dispossession, whatever the outcomes of poor government policies on our communities, the results are ours to confront. Like the victims of a hit and run accident, there is no point in bemoaning our fate, we must contribute to our own healing and our own rehabilitation.”

3. To date, no thought of controlling his own substance abuse has yet occurred to Kenneth Vincent. On Boxing Day of 2008, at Bourke, he robbed the local taxi driver of $408 and two mobile phones. At the time of the robbery he inflicted actual bodily harm on the taxi driver.

4. Today Kenneth Vincent is to be held accountable for his criminal conduct towards Bill Moles, the taxi driver. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender, Kenneth Vincent, harming this victim, Bill Moles, in the community of Bourke (see The Queen v Gladue [1999] 1SCR 688 [80]).

5. My initial task requires an assessment of the objective criminality of this offence before the Court. I will need to have regard to matters personal to Kenneth Vincent; they are called subjective matters. The starting point for such assessments requires me to make findings of fact from the evidence before the Court relating to both the offence and to the offender. This offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. That is particularly so because of his youth. Before any sentence can be passed, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, and the length of the non-parole period, and attached to that the ultimate length of the term of imprisonment to be imposed.

6. None of those things can be determined until the primary facts have been found. What weight needs to be given to all of these matters, against the imperative that all sentencing should have as its primary focus the protection of society, will also need to be determined. (See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740).

7. Bill Moles was the victim of this offence and the account of what happened in the morning of Boxing Day is best told through his statement. He gave this statement the same day he was assaulted and robbed:

“I am 66 years of age, I have lived in Bourke for the past nine years. About six to seven years ago I started working part time as a taxi driver in the Bourke Township. I worked for Stan Douglas who runs the Douglas Taxi Service. I was rostered to work Friday 26 December 2008 from 8am until about 9.30pm. The usual process is, I go to Stan’s house, before my shift starts, and pick the taxi up. I got to Stan’s house around 7.30am and picked up the taxi. I drove to the BP service station and checked the tyres, then I made my way to New Vogue service station on the corner of Mitchell Highway and Warrawina Street in Bourke.

The New Vogue was closed on that day so I pulled into the driveway on the Mitchell Highway and sat inside the driver’s seat of the taxi waiting for any customers. The front of the taxi was facing the New Vogue roadhouse. I would have got to the New Vogue about 8am. That’s a common place for us to wait in the taxi for any customers.

About 8.10am while I was sitting in the taxi, a bloke walked up behind the taxi from Mitchell Highway. He opened the passenger side door, he got in the taxi and said, ‘Can you drive me to 41 Short Street?’ I said, ‘Certainly.’ I pulled out of the New Vogue by doing a U-turn in the driveway and I pulled into Mitchell Highway and headed to Becker Street where I turned left heading to Short Street.

I would describe the bloke as being Aboriginal appearance, late teens or early twenties, a bit taller than me so about 5 foot 8 or 9 inches tall, slim but solid build, short dark hair. He was wearing a dark-coloured short-sleeved shirt, T-shirt, with a round neck, blue jeans that were a bit faded, and open-toed sandals.

I noticed the bloke had an abrasion or a cut to the knuckle area of his right hand. From driving the taxi I know a lot of people from Bourke but I can’t ever remember seeing this bloke before. As we drove towards Short Street, the bloke was talking and said he’d just got out of gaol. He didn’t say exactly when but I figured he meant very recently. I turned the taxi right into Short Street from Becker Street and I pulled up the taxi near 41 Short Street. I checked the meter and it was $6.90.

I told the bloke and he said, ‘Can I just go in and get the money from my brother?’ I said, ‘Okay but try not to be too long.’

The bloke mumbled something but I couldn’t hear what he was saying, I turned my head to the left to try and hear him. All of a sudden the bloke’s left hand came up from behind him. It was in a closed fist and he punched me to the nose area. When he hit me, his hand must’ve also hit the rear vision mirror causing the mirror to get knocked off the windscreen. I was very surprised and knocked about. His left hand came up again in a fist and hit me to the face again. This time, connecting to my right cheek. By this time I turned my head away and his left hand came up again in a fist and connected with my left cheek. He tried to reach me again but I reached out with my left hand and grabbed his left hand as he swung. My nose had started to bleed so I grabbed the taxi purse that has the money in it and I opened the driver’s door and stood up out of the taxi. I grabbed my handkerchief out of my shirt’s pocket and put it up to my nose. By this time, my nose was really starting to hurt.

The bloke must’ve got out of the taxi. As I was standing next to the driver’s door, he walked up to me from behind the back of the taxi and said, ‘I’ll have that’. He then grabbed the taxi purse out of my right hand and walked off into the yard at 41 Short Street. He walked up the left side of the house where I think there is a driveway and he went out of sight. I sat back in the driver’s seat of the taxi and looked for the two mobile phones which I’d earlier placed in the mobile console near the drink holders. The bloke would’ve been able to see the mobile phones when he got into the taxi. They were not there when I got back into the taxi so I’m assuming the bloke has taken them.

I contacted the police, using the two-way radio inside the taxi. A short time later the police arrived and spoke to me. They contacted an ambulance and a short time later I was taken by the ambulance to Bourke Hospital for a check-up. As a result of the assault, I have a small cut above my right eye, a sore nose, a sore left and right jaw and a sore cheekbone just below my right eye. At no time did I give this bloke permission to touch or assault me.”

8. In the Crown case, photographs were tendered, taken from the in-car cam cord. They support Bill Mole’s account.

9. Kenneth Vincent was arrested on 6 January 2009. He has remained in custody since that date. The offender in his interview with Probation and Parole told Probation and Parole that he had asked Mr Mole if he could pay the following day. I understand there are some drivers in Bourke who permit locals to pay the following day when those locals are caught short of cash. But the driver had to know who the local was and to trust him or her. This driver says he did not know the offender. I have no evidence the driver was one of those drivers who accepts pay the following day. I reject entirely that Mr Mole made any derogatory comments. Further, the account Mr Mole gave to the police was given on the day of the offence, not four months later.

10. As best I can see it, it would have made no difference to his story of robbery, whether the conversation had been, “Can I go and get the money from my brother” or “Can I pay you the following day” because it was immediately after whatever that was said that he was struck. I can see no advantage to Mr Mole's account in giving the account consistent with what the offender says in terms of the offender’s request. Nor is there any suggestion by Mr Mole that there was an argument.

11. Again, I can see no disadvantage to him in the account he gave in saying there was an argument. He gave his account on the day of the offence. The offender’s account to Probation and Parole was given in April, some four months later. While I have not seen the full replay of the security camera, what is apparent from the still shots that I have seen is that it is the offender who is talking immediately prior to the attack being made. I reject the claim of asking to pay the following day and I reject the claim of any derogatory remarks made by Mr Mole towards the accused.

12. From the facts, as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of the offence can be evaluated. The objective criminality has an important impact on the overall sentencing.

13. Gleeson CJ, when the Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required. In a case called R v Rause unreported NSWCCA 8 August 1992 his Honour said:

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs [including driving cabs] without fear of violence. It also embraces respect for the property of others [in this case two mobile phones and $400 odd in cash]. Offences of the kind committed by the present [accused] are not trivial instances of disrespect of private property. They are serious breaches of the peace. They are direct attacks upon the security of the person and his property which the law exists to protect. It’s quite likely, (his Honour continued) that this young man does not understand and he may never understand the seriousness of his anti-social behaviour. But the Courts understand it. Crime of this kind, especially when committed by an offender with a long criminal history deserve severe punishment.”

I should hasten to say that Kenneth Vincent’s history is not a long criminal history as meant by the Chief Justice although he has one. The essence of robbery is the putting in fear of a person to such an extent that he surrenders his property against his will because of, in this case, the force of violence administered to him.

14. The major aggravating features of this robbery are that Kenneth Vincent had been released from prison on the 17th I think it was of December and this offence occurred eleven days later. The release he had been given was a parole which required him to be of good behaviour, that is to say he was on conditional liberty. His taking advantage of his conditional liberty to commit a crime is regarded by the law as an aggravating feature.

15. The second aggravating feature is that the victim was vulnerable. He was vulnerable because he was one out in a taxi and because at sixty-six he was forty-six years older than his young lithe solid built attacker. The sum of money taken constituted a float, two mobile telephones were taken which could have caused no end of inconvenience to Mr Mole in terms of his telephone directories and other private information stored in there, plus their replacement cost would have been substantial. I note also that there was nearly seven dollars worth of service provided to Mr Vincent which was rewarded with a punch to the face.

16. The mitigating matters are that the actual injury to Mr Mole was towards the lower end of the range. I am satisfied the offence was unplanned and opportunistic and the level of violence suffered whilst it lasted was intense but in fairness it was not as long in duration as many other robberies that I have seen before the courts.

17. As I have said, nonetheless, because of the aggravating features and the nature of the crime itself, the Court has little option but to impose a substantial gaol sentence.

Subjective Features

18. I turn now to the subjective features. I am both entitled and required to do that. Not only am I sentencing for this criminal offence of robbery of Mr Mole, but I am also sentencing Kenneth Vincent for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of this offence by this offender, or some reason why a more or a less sentencing outcome is appropriate.

Family, relationships & Background

19. I have made the point that Kenneth Vincent was a young, as I understand it, single man aged twenty-one now and I think aged twenty at the time of the offence. He is the eldest of six siblings including his half-sister.

20. He was born and raised in the Bourke area. He was primarily raised by his grandmothers in the Bourke and Enngonia districts. His parents rowed a lot when he was a child. His father had difficulties with drink and would administer violence towards Kenneth Vincent as a young boy. Vincent’s parents and several of the family members are known to the Probation and Parole Service. It seems unless Kenneth Vincent is going to do something about it, we are going to have a second generation of Vincents coming through and into the criminal justice system. The only person who can change that is he.

Education, Employment & Skills

21. He left school in Year 9. I can only assume that it was one of the schools in Bourke. He has had some time off and on of employment with the Community Development Employment Program (CDEP) and short term casual labouring positions. So far as I can tell he has done no vocational training, done nothing at TAFE and has done little when out to seek to improve himself.

Drugs & Alcohol

22. Kenneth Vincent has a significant history of substance abuse and its related anti-social behaviour. The case that was run before me does not establish that the robbery was done for the purpose of obtaining money for drugs. It does not establish that the offender was hanging out. I can only treat the robbery as one of a robbery for financial gain.

23. He first reported consuming alcohol was when he was thirteen. He told Probation and Parole he had done binge drinking to a point where they took a view it was problematic. He says that he consumes two cartons of Jim Beam a week. He calls it a rum. I must say that I thought Jim Beam was a bourbon, but be all that as it may. Mr Vincent further reported regular use of illicit substances from the same age of thirteen. It would seem that his drug abuse is well entrenched.

24. In the sentence that I am giving I have allowed a substantial period for rehabilitation. I do not make it a condition of his parole but I certainly recommend to those oversighting him and, indeed, to him, that he considers seriously seeking admission into the Roy Thorne drug and alcohol or some other drug and alcohol centre in far west New South Wales for the purposes of rehabilitating. Roy Thorne I know is some miles away in Moree but it is very effective and it is not all that long by comparison with a couple of the others.

General Health & Mental Health

25. There is nothing before me that gives me any insight into the offender’s general health or his mental health. I do not have any personality profile. I would imagine he is in good health. He appears to be from his appearance in court and, as best I can tell, on the video.

26. As to his mental health it would only be speculation. One would have to wonder whether there were not some issues operating on him perhaps causing him to use or abuse drugs, perhaps such as depression or some resentment or anger at things that had happened in his early life that really need addressing. Again, if he were in a rehabilitation centre some attention could be paid to those issues.

Character

27. He is a twenty-one year old with an education standard that, while by no means the weakest I have seen, is, if I put it this way, light on. No regular employment history, no vocational education, no certificates or certifications or apprenticeships. All of those work against him in terms of rehabilitation.

28. I remember noticing when in court that there were no family members or friends there in support of him, although there are six siblings within the family. It is, in my experience, unusual for an indigenous man to appear in court without some sort of family support there for him and I am worrying whether there are not issues of social isolation that need to be addressed. Again, that is purely speculative.

29. His criminal history begins in the juvenile courts in October 2003 with a charge of affray. In 2004 he was before the Children’s Court at Bourke for motor vehicle theft type offences, for break and enter with intent to steal. In 2005 he was before the Court, again the Children’s Court, for being carried in a conveyance.

30. Just looking at the non-fingerprinted matters he was earlier in 2002 before the Court for destroying or damaging property, behaving in an offensive manner, common assault, stealing property. In 2004 for driving offences. In 2005 still before the Children’s Court for using an unregistered vehicle and other driving offences. There is another offence of violence in December 2004 for assault occasioning actual bodily harm. More take and drive conveyances. There is an aggravated break and enter in September 2005. Take and drive a conveyance. A further and earlier aggravated break enter knowing there was someone inside. Further driving offences.

31. In Dubbo he was before the Court, the Children’s Court again, for common assault. There was also a further break and enter. At that time he received a control order of some six months. In 2007 there was more car stealing, driving in a manner dangerous for which he received nine months imprisonment with a three month parole period. In May 2008 there was an affray for which he was convicted in June 2008. On that offence he was imprisoned for nine months with a release date of 17 December and a four month parole period. It is that parole period that is breached by these offences.

32. I have not done the maths but I think I made the point in Bourke that it looks to me as though Kenneth Vincent has done more of his adult life in custody than he has done in the community. If that is so, it is a very sad and narrow life he must be leading. Narrow because the confines of the gaol do not permit him to travel or see or do things that a young man his age ought to be thinking of doing. It is narrow also because there is no real stimulation, nothing to excite the mind or the heart, no music to go to. The companionship of gaol is single sex and, if I may say so, probably pretty repetitive in terms of things that are said and done.

33. His rehabilitation prospects, I cannot think that they are strong until he makes his mind up that he is going to change. His past record to the extent that past conduct can be indicative of future conduct does not bode well for him. Unfortunately, I cannot make findings that will assist me. I have no information as to any programs he might have done in custody. I am told that at Wellington there are not a lot of programs that young men can do. Whether that is true or not I do not know.

34. I do not have any evidence before me of any post release plans he has in mind. For me, this case is a very sad case because there seems so little feedback coming from Mr Vincent that the Court can act on.

35. On the question of contrition, what can be said is that he has pleaded early. That plea is an acceptance of responsibility for his offending. Save for the matter that I referred to earlier as to the conversation immediately before the administration to violence he does not dispute the police facts and in particular he does not dispute the taking of the money. He says that he was intoxicated and the Probation and Parole authorities say he tended to minimise his responsibility and claimed that his drinks may have been spiked. One cannot be genuinely sorry for an offender if one pretends the circumstances are different or denies that the circumstances that have occurred in fact occurred. It is also a problem in terms of rehabilitation if one keeps kidding oneself as to the seriousness of criminal events that one participates in.

Setting the Sentence

36. The maximum penalty for this offence is one of twenty years. Parliament has set that penalty with a view to making clear to offenders such as Kenneth Vincent that gaol is a necessity. That is to say, Parliament is seeking by those maximum penalties to deter offenders from committing these offences. This Court, when setting sentence, has to keep in mind those maximum penalties that Parliament has established.

37. The guideline judgment of The Queen v Henry CCA (1999) 46 NSWLR 340 sets for offences such as this, a notional guideline of four to five years imprisonment as an appropriate overall sentencing outcome. That guideline was established before the Court of Criminal Appeal authorised the making of twenty-five per cent discount for early pleas of guilty. Mr Vincent pleaded guilty before the Magistrate. There is no doubt that he is entitled to the full discount of twenty-five per cent.

38. When I balance the objective and the subjective features of this offence but for the plea of guilty I would have set an overall sentence of three and a half years for this offence. I have discounted that by twenty-five per cent hoping that my maths is correct. That becomes a figure of ten and a half months to be taken from the three and a half years. Again, if my calculations are correct, that amounts to an overall sentence of two years, seven months and fifteen days.

39. I earlier mentioned that Mr Vincent had been arrested on 6 January 2009. The sentence that I am about to impose will commence on that day.

GIDARO: Is your Honour going to take into account the revocation of parole and the balance the offender served in custody as a consequence of that order?

HIS HONOUR: How much has he served?

GIDARO: Your Honour he was in custody from 7 January 2009 until 29 May 2009, a period of four months and twenty-two days. Your Honour I would submit that any sentence for this offence would date from 29 May 2009.

HIS HONOUR: That was a point that was raised I think by Mr May in the Local Court.

40. My own view is that he is a young man, that I should give an appropriate sentence but I should also take into account and give proper weight to the need for rehabilitation in a person as young as he and in the circumstances in which he finds himself. Prison is an appropriate place for punishment and in that sense prison serves a vital role in the administration of justice. But more and more research is demonstrating that prison is counter indicated in terms of rehabilitation. If I am to impose the sentence that I wish to impose and add a further four and a bit months to it, the ultimate outcome becomes one of a further twenty-one months imprisonment, where in my view sixteen is the appropriate number. I thank the Crown for its submissions both in Bourke and here and I intend to proceed as I was before.

41. The term of imprisonment of sixteen months and fifteen days, that is the non-parole period, would expire on 20 May 2010 and the additional term of fifteen months would expire on 20 August 2011.

42. I have found, it was clear, special circumstances. I have recommended to the authorities that consideration be given to a full-time rehabilitation program for him to deal with his drug and alcohol abuse. That is the basis of my making a finding of special circumstances in the hope that that would be carried out.

The Sentence

43. The formal orders I make are these. Kenneth Vincent, I am convicting you of the offence that you on 26 December 2008 at Bourke in the State of New South Wales robbed one Bill Mole of two mobile phones and $408.30 in cash and at the time of the robbery you intentionally inflicted actual bodily harm upon him. For that offence you are sentenced to a minimum term of sixteen months and fifteen days in prison to commence from 6 January 2009. That sentence will, if my maths are correct, expire on 20 May 2010. The additional term is one of fifteen months which I calculate as expiring on 20 August 2011. I order your release on this sentence on 20 May next year. I order that you be supervised by Probation and Parole and I request the Probation and Parole authority to seriously contemplate requiring you to enter into a full-time rehabilitation program as a condition of your parole, the breach of which ought to result in a reconsideration of whether you are entitled to remain at large.

Do you understand what has happened?

OFFENDER: Yes.