R v Willis

[2020] NSWDC 135

District Court

New South Wales

Medium Neutral Citation:	R v Willis [2020] NSWDC 135
Hearing dates:	27 February 2020
Decision date:	27 February 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years 9 months. Non parole period of 2 years 7 months. For orders see [18] – [20].
Catchwords:	SENTENCING - robbery armed with offensive weapon SENTENCING- relevant factors on sentence- on parole for similar offence on same store- symbolic offence committed to ensure return to gaol – institutionalised offender- background of profound deprivation
Legislation Cited:	Crimes Act 1900
Cases Cited:	Henry v R (1999) 46 NSWLR 346 Jackson v R [2010] NSWCCA 162 Jinette v R [2012] NSWCCA 217
Category:	Sentence
Parties:	Warren Willis Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender)   Solicitors: Legal Aid NSW(for the offender) Ms N Olender (for Director of Public Prosecutions)
File Number(s):	2019/00246563; 2019/00220392.

Sentence – ex tempore revised

1. On 5 August 2019, Warren Willis robbed a woman working at the BWS store in Burelli Street, Wollongong of $900 in cash. He was armed with a Stanley knife.

2. On 17 August 2019, Willis was back in gaol. I say “back in gaol” because he had been released to parole on 26 May 2019 to serve the balance of a term of three years’ imprisonment that I imposed upon him in 2017. That offence related to an armed robbery of the same liquor store in Burelli Street, Wollongong. Not for the first time in his short life Willis faces sentence for an offence or armed robbery, s 97(1) Crimes Act 1900; an offence which carries a maximum penalty of 20 years’ imprisonment.

3. How did it come to this? Born in 1993, his home life was blighted by drugs and violence. When he was nine years old Willis’s mother suicided. He was subject to continued violence from his father. He received some assistance from Family and Community Services and some psychological assistance. He was taken from his father and he was placed in a number of foster homes. Given his background, it is understandable that did not settle or make friends at school. Given his background, it is understandable that he can to the notice of police and the Childrens court.

4. Willis spent most of his teenage years in juvenile detention. Although he completed his year 10 equivalent, he has never lived a normal life in the community. As an adult, his criminal record reveals that his time in the community can be measured in months. The only gap in his New South Wales criminal record reflects a period he spent in Queensland; most of that time was spent in custody. When he did hold a job in Queensland, he stole from his employer.

5. I have reviewed the material that was before me when I sentenced him on the last occasion. A relatively lenient sentence was imposed. While I do not have my sentence judgment, a lenient was imposed because the offence, while serious, was accompanied by his immediate surrender. He told the police it was because he could not handle the pressures of living outside of gaol. It was clear, as it is clear now, that he was, and has been entirely institutionalised. He told me in evidence today that the only place he knows is gaol and that is where he feels comfortable.

6. Willis was released with good intentions and for a short period during his time in the community, he fulfilled those good intentions. He had established a rapport with his Probation and Parole officer. He had accommodation with his father, and he was taking steps to obtain employment. With assistance, he was about to fly to Tasmania to take up the first job he had really ever had. But information was inadvertently provided to the employer which caused him to rethink the job offer and terminate Mr Willis’ job before he had started.

7. A person with a background of profound deprivation who has never had to cope with such disappointments can be expected to have few moral resources to turn back on. Willis did, however, have a Parole Officer, someone he trusted, but he did not take advantage of that support. Rather he gave up. And very shortly afterwards he committed an almost symbolic offence which, as he well knew, would guarantee his return to gaol for a substantial period of time.

8. I will take all of those matters into account but a Willis knows, I also have to take into account the crime he committed. A female employee working alone in a store was targeted, a bladed weapon was used to put her in fear. A relatively small amount of money was taken. The offender is no longer young, although he has never had a chance to mature in the community, and he has a record of continuously committing crimes against the community.

9. The Court can and does give full weight to mitigating factors. The Court also has to take into account that this crime was against a woman doing her job who did not ask to have a blade produced to her, who did not ask to be told to lie on the floor and who would have been lying on the floor not knowing whether that blade was going to be used against her. She did not know Mr Willis’s background. She did not know - as I accept - that he did not intend to harm her - she did not know whether this was going to be the last minute she spent on this planet.

10. Willis has been made by our system Willis. His path in life was set when he was too young to make any rational choices. He had no care from a family. His only carers the Department of Community Services, Juvenile Justice and Community Corrections. I give full weight to the circumstances but there still must be a substantial punishment in this case, as is recognised by his counsel.

11. I have regard to the maximum penalty. I have regard to the Henry guideline, but it is not prescriptive: Henry v R (1999) 46 NSWLR 346. Every offence and every offender must be given individualised treatment. The primary focus here must be on appropriate punishment and community protection. There will come a time when the Courts will have to give up on Willis and simply say that he be removed from the community for as long as possible, proportional to the offence committed. He could spend the rest of his life in gaol. That time has not come yet, but like him, I despair.

12. The material before me shows he has been institutionalised. Mr Fraser, who appears on behalf of the offender, has drawn to my attention the decisions of the Court of Criminal Appeal in Jackson v R [2010] NSWCCA 162, at [24]; Jinette v R [2012] NSWCCA 217, at [103]. Even in the face of entrenched recidivism, Courts should attempt to structure a sentence to enable an offender, even a repeat offender, to be allowed release to parole if they earn it, and to be supervised and assisted for as long as is practicable. But as this sentence has been moderated, as far as practicable, because of the subjective case, and a background that means the offender’s moral culpability is not as high as many I have to sentence, only limited weight can be given to that finding.

13. It is a sad fact that past behaviour is a good indication of future behaviour. I can have no confidence that the offender will break the habits of a lifetime and stop reoffending. His evidence to me indicates he has some insight. He has formed relationships in the community that might give him some motivation, but if things go wrong, we know what happens. I put no pressure on those who have attended Court to support him. He has to make his own course in life.

14. His gaol record explains why he has not settled in a gaol and why he has never got to the top of a waiting list for most of the courses he needs. It is critical that he engage in programs such as the Positive Lifestyle Program run at Lithgow Gaol. It is critical that he be stabilised while in custody so that he can enter and complete various EQUIPS programs. It may be, if available to him, that programs can be continued while he is on parole. Those are matters for the State Parole Authority. Release to parole requires they consider the safety of the community.

15. If Willis is to lead a normal life in the community he will need accommodation and he will need a job. If his pattern of breaches of prison discipline continues there is no guarantee that he will be granted parole.

16. I will make a finding of special circumstances allowing a some modest adjustment of the sentence to allow for (a) accumulation, and (b) supervision and monitoring on release for as long as practicable.

17. Willis went into custody on 17 August 2019. He had over nine months of his parole left to serve. While on parole he had also committed an offence against a police officer. He was placed on a Community Corrections Order The learned magistrate did not wish to return him to custody and the parole officers decided that they would give him the benefit of the doubt, so to speak, and not breach him. But the robbery offence was in breached that Community Corrections Order. I have been asked to deal with that breach. It was an offence against a police officer. He was trying to help someone escape police. Given his record only a custodial sentence should be imposed.

18. I have to be careful not to double count because the sentence I impose is aggravated by the fact it was committed on parole and while subject to an order involving a promise to the Local Court to be of good behaviour. I have taken all those matters into account when I came to structure the sentence.

19. Had it not been for his early plea of guilty, a sentence of five years would have been imposed. Willis will have the full benefit of that plea. I take into account his remorse and facilitation of the course of justice when I came to synthesise an appropriate sentence.

20. While the crime itself was, in sense, a cry for help, and a request to go back into custody, Willis has to understand that if that is what he wanted, he did not have to confront a fellow citizen with a knife. He had options, and he chose to exercise his options in way that offended against an individual and the community.

Orders

21. For the breach of the Community Corrections order - resist or hinder police officer in the execution of duty: the breach having been admitted I impose a fixed term of imprisonment of one month. That sentence will commence on 17 September 2019.

22. For the robbery armed with offensive weapon: The non-parole period will be two years and seven months. It will commence on 17 October 2019. Willis will be eligible for consideration for release to parole on 16 May 2022. Parole period of one year two months. Total sentence of three years and nine months.

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Decision last updated: 23 April 2020