Regina v Kane William Wratten

[2007] NSWDC 279

CITATION:	Regina v Kane William Wratten [2007] NSWDC 279
HEARING DATE(S):	4, 12, 14, 15, 18, 19 June 2007 24 September 2007 22 October 2001
JUDGMENT DATE:	29 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentenced to imprisonment for 2 years, Suspended pursuant to entering s12 Good Behaviour Bond with conditions. Sentence not imposed until parties satisfied resources available in country town. Adjourned for 2 weeks.
CATCHWORDS:	Criminal law - Sentence - Robbery armed with offensive weapon - Form 1 - Rob in Company - Pizza delivery robberies - teenage male offender - violent, unstable, alcoholic role models upbringing - expressed willingness to rehabilitate.
CASES CITED:	Gladue v Regina [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 599 R v Hayes [1984] 1 NSWLR 740 R v Rouse unreported NSWCCA 8 August 1992 Walden v Hensler 163 CLR 561 R v Porter (1933) 55 CLR 182 R v Henry and others (1999) 46 NSWLR 340 The Attorney General's application pursuant to s37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2004) 61 NSWLR 305. R v Thompson, R v Houlton (2000) 49 NSWLR 383
PARTIES:	Regina Kane William Wratten
FILE NUMBER(S):	06/31/0426
SOLICITORS:	Crown: Ms Robertson Defence: Mr Zabi

JUDGMENT

1 HIS HONOUR: Those men and women who deliver pizzas take not only the pizza with them on delivery but sums of cash so as to change $50 or $100 notes for customers.

2 On 16 July 2005 a nineteen year old Alisha Breen drove to an address in Albury. She was delivering a pizza that had been ordered earlier that night. In circumstances to which I shall come shortly, Kane Wratten, then aged eighteen, using a large serrated edged breadknife, callously robbed this teenage girl of the pizza and a smallish sum of money.

3 Nearly one year later on 25 June 2006 at Taree, Trent Hammond, another pizza delivery person, was delivering an order of pizza and garlic bread. He was robbed of the pizza and $26.25 in cash. One of the robbers was Kane Wratten, who at the time of the robbery was in company of a female person.

4 Today he is to be held accountable for his offending conduct. He has pleaded guilty before the Local Court Magistrate at Taree to the first robbery whilst armed with an offensive weapon. He asks that I take into account the second robbery in company when I am sentencing him for the first.

5 As sentencing judge, it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentence for this offence before this court committed by this offender, harming this victim in her community (see Gladue v The Queen [1999] 1SCR 688 [80]). My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

6 Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, how to approach the Form 1 matters and, finally, of course, the ultimate length of the term of imprisonment or other penalty that is to be imposed. None of these can be commenced until the primary facts are determined. 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 the community will also need to be determined (see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740).

7 This offender gave evidence in which he disputed allegations made by his victim. Ms Breen’s account of the robbery is to be found in her statement made on the day of the robbery, 16 July 2005. So far as is relevant, I am taking material from para 4, 5, 6, 7 and 12. She says:

4.On Saturday 16 July 2005 I started to work at 6.30pm. When I arrived for work I was given a bumbag with my float for the shift by the supervisor. The float usually has about $40. I made four deliveries between the start of my shift and when I went back about 7.45pm. When I went back to the shop my supervisor Chris said there was an order to be delivered at 65 Jacaranda Street, West Albury.” She said the telephone number that had been supplied for the order must have been wrong because they had tried to ring it but could not get through.

5. Chris gave me three pizzas contained in a blue Pizza Haven heat pack and a delivery docket. The delivery docket shows the order was placed at about 2.30pm and was for a Ben Williams of 65 Jacaranda Street, West Albury, telephone number 6021-8842, with the pick up time of 7.30pm. I drove straight up to Jacaranda Street, West Albury. I was driving up the street and I couldn’t see number 65, so I did a U-turn and was driving back down the street when I saw a guy standing on the western side of Jacaranda Street. I pulled up near him and said, ‘Can you tell me where number 65 is?’ He said, ‘Right here.’ I reversed back up the street a bit and then drove into the driveway where he was standing. I got out of the car. He was standing about half a metre from the driver’s door. I got the pizzas out of the car.

6. I turned around and he appeared to be looking for his wallet, putting his hands in his pockets. He reached behind himself with his right hand, and then I saw he had a large breadknife in his right hand. I just looked at him sort of stunned. He said, ‘Give me the pizzas and the money or I’ll cut you.’ I held my hands up to about waist height with my palms facing him and said, ‘No.’ He said, ‘I'm not fucking joking. I’ll cut you.’

7. I just quickly gave him the heat pack with the pizzas in it and he took it in his left hand. I was trying to undo the buckle on the bumbag, and he said, ‘Hurry up or I’ll fucking cut you.’ I got the buckle undone and handed it to him. He took it with his right while he still had the breadknife. As soon as he got the bumbag, he just ran off straight up into Mulga Place into a vacant block and I lost sight of him in the darkness.”

“11. The breadknife he used was about 30 centimetres long including the handle. It had a serrated edge on it with a silver blade.
12. As I said before, the pizzas were in a heat pack which is royal blue in colour with the Pizza Haven logo on it. The bumbag is the same colour again with the Pizza Haven logo on it. The bumbag had anywhere between $100 and $120 in it. Just prior to the delivery I had a $50 note changed, so there would have been a lot of $10 and $5 notes in it. There would have only been one $20 note and a heap of coins.”

8 The offender’s account is that he was staying with his father-in-law, one Darrell Stevens. Stevens had previously threatened him. Stevens kept a firearm in the house. The offender knew he had fired it because on one occasion he had fired it at a funeral home.

9 On the night in question he told the offender he had phoned in an order for a pizza. He (the father-in-law) was hanging out for drugs. He said if the offender did not “do this”, by which I understand him to mean rob the pizza delivery person, “I am going to bash you basically”. The father-in-law then looked at a pillow beneath which he kept his sawn-off shotgun. The offender knew what the father-in-law was in effect saying when he looked in this area. The offender said he did not want to do it, and the father-in-law said, “Too bad.” So the offender went out and did it.

10 He denied threatening to cut the delivery girl. His case is all he said was, “Give me the money and the pizza.” That was said after he had presented the knife at his victim. But for that simple demand and the knife, no other threat was uttered.

11 The offender told Probation and Parole he had been threatened with a shotgun. It is difficult to assess whether that statement is inconsistent with his sworn evidence.

12 However, the evidence of his partner, who presented herself as an eyewitness, Jessie Jane Law, and daughter of Darrell Stevens, is clearly inconsistent with the offender’s account. She says (transcript p 17 line 47):

“Yeah. He [Stevens] called up the pizza man and he’s [the offender] got to go down there and get stuff, and Kane’s like, ‘No, I am not doing that.’ And he’s just gone to him, ‘Oh well, you’re going to have to. We’ve got no food and I need the money for drugs. So if you don’t do it then you’re out in the cold.’ And he was threatening him with his gun and everything.”

At transcript p 18 line 13:

“He’s [Stevens] told Kane heaps of time he was going to shoot him. He tried to stab my sister through the door. He once stabbed a tent which he thought Kane was in, try and - and then went in there and tried to stab him but he wasn’t in there. But, yeah, that night, I’m just trying to remember his exact words. Something about ‘If you don’t go down and get it I’m going to blow your fucking head off,’ and when he said that he was holding his gun.

HARKIN
Q. What sort of gun was it? Can you describe it for his Honour?
A. A sawn-off double-barrelled shotgun.”

At line 32:

“HIS HONOUR
Q. Now when you say he was holding it, how was he holding it?
A. Well, it was under the pillow next to him. He’s put his hand under the pillow and pulled it out and put it on his lap and gone, ‘I'll blow your fucking head off.’ He wasn’t a very nice person, your Honour.”

13 The onus of proof here rests with the defence. It is seeking to mitigate the offender’s involvement in this robbery by presenting evidence suggesting he was driven to it by threats from the father-in-law. A close analysis of the evidence demonstrates the precise nature of the threats made by Stevens is unclear. In Court the offender’s account was a bashing coupled with the glance towards the shotgun’s place of rest beneath the pillow. At Probation and Parole it was a threat with the shotgun. The partner, who claims to be an eyewitness to the threat, gives evidence of the presentation of the shotgun and a threat to kill, “I’ll blow your fucking head off.”

14 I am not prepared to accept that Stevens threatened this offender in any way. The onus is upon the defence to prove the pressure it alleges. However, as I say, it is unclear from the evidence precisely the level of pressure exerted, if any.

15 I am also satisfied beyond reasonable doubt the offender’s words during the commission of the robbery were accurately recorded by his victim, and are themselves inconsistent with the proposition that he was threatened to commit the offence. She gave her statement to the police on the day of the robbery. She did not at that time know the offender. She had no reason to tell other than the truth to those investigating her claim of being robbed. Her opportunity of accurately telling what happened on the night it happened must be viewed as so much greater than those of the offender trying to recall conversation two years subsequent.

16 The offender claimed he received none of the proceeds of the first robbery. I am satisfied beyond reasonable doubt the proceeds of the robbery were about $100. I am satisfied beyond reasonable doubt those proceeds were handed by the robber to the offender. The onus therefore falls upon the offender to establish he thereafter handed all of the proceeds to some third party. He says in his interview in June 2006 that he handed the bumbag straight to his father-in-law. He also claims he did not receive any of the pizza.

17 However, that position is inconsistent with a statement of one Shelley Dee Ridgeway. Her statement has been tendered. She has not been required for cross-examination. She says the following:

“About two weeks ago Kane was desperate for money and he was trying to talk me into a bash and steal from a pizza delivery boy. He said my job would be to ring them up. This was my job. He said he would go and get it. He said he would hide in the bushes and jump out and grab them. I told him I didn’t want to be any part of this.

6. He said he had done it before in Albury. He went to this house and it was vacant. He sat around the corner and he asked the pizza chick for money. He said he got $170 or $140. They had ordered a couple of pizzas and they wanted change of a hundred. He said he did this by himself.”

18 Regrettably, I come to a view the offender has sought to minimise his role in this robbery in any way he could. While I accept that I have not seen the video itself, nonetheless, particularly in the light of the evidence of Shelley Dee Ridgeway, I am unable to accept his account as given there.

THE ROBBERY IN TAREE

19 The robbery of the Taree pizza delivery man follows a pattern not dissimilar to the first robbery. In his interview with police he claimed not to have ordered the pizza. He may indeed be correct in that (see the statement of Shelley Dee Ridgeway). He agreed he was with Carla Buchanan. The call, he says, was made from a public phone. The order was for a pizza, garlic bread and Coke. Initially he claimed to have “grabbed the pizza bag”. He modified that answer to “grabbed the pizza”. There was an occasion when he said he grabbed two pieces of pizza. There is another occasion when he said he grabbed the bag and then went home to bed.

20 However, as the questioning in the interview continued it becomes clear there was a second account given to the police by way of a police statement and it, like this account, was untrue. During the course of the interview, police claim the pizza box and cell bag had been found in a bin at the rear of the IGA store wrapped in a plastic garbage bag which could have come from the offender’s house. The offender’s response was to claim that the co-offender could have put these items in the bin and could have used a garbage bag coming from his place. He conceded his associate could have left $5 at his house which he used the following morning. Later in the interview he said he went to the Manning Hotel after the robbery (see question 135 and compare it to question 82).

21 I am satisfied, both by his admission of guilt and his request to have the matter taken into account, the offender was an active participant in the robbery in company in Taree, but again I am also satisfied he is seeking to minimise his role in this offence by whatever means he can.

OBJECTIVE CRIMINALITY

22 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 an offender. That is done by comparing objectively the criminality exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these two offences, although only one is to be sentenced, can be evaluated. The objective criminality has an important impact in the overall sentencing outcome.

23 Gleeson J, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why a substantial punishment is required. 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 without fear of physical violence. It also embraces respect for the property of others.

Offences of the kind committed by the present [offender] are not trivial instances of disrespect for private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect.”

His Honour continued:

“It is quite likely that this young man does not understand and he may never understand the seriousness of his antisocial behaviour. But the courts understand it. Crimes of this kind, especially when committed by an offender with a long criminal history, deserve severe punishment.”(see R v Rouse unreported NSWCCA 8 August 1992).

I pause to note that this offender has no criminal history of any significance

24 The nature of robbery is that it is the use of a threat of violence to overcome the will of the person who has custody of property. In the first of these robberies the device used to overcome the will of the young girl was an offensive weapon, namely a breadknife. In the second of the offences the device used to overcome the will of the delivery person was numbers of people present, supporting and abetting the offender.

25 In each case, the victim of the crime presented as a classical vulnerable victim; a delivery person responding to a call, necessarily alone, necessarily in an isolated place, without protection. The first victim was a female teenager. The knife used, while large and having a serrated edge, was not a knife usually favoured by criminals or offenders. Knives such as boning knives or other large knives used for chopping or knives with the more pointed blade are usually favoured. Of course, when presented to his victim in night lighting circumstances such as existed when the threat was made, the distinction may be more academic than real.

26 I am satisfied his threats were advanced by his threatening demands. I am satisfied his gender, knife and threats all contributed to his overpowering the will of his female victim.

27 The proceeds captured in either robbery were less than $150 in value. There was a level of planning or, indeed, a modus operandi in both robberies. In particular, in the indicted robbery a false phone number was given, a false address, but an address of sufficient specificity for the offender to arrive before the delivery person. He was able to present himself to the delivery girl while she was still in her motor vehicle. That same technique was used in the second robbery.

28 I am having difficulty determining what motivated these offences. The offender is far from flush with funds. He told Probation and Parole he had drug and alcohol issues and, indeed, that he was inebriated (my word, not his) at the time of the offences. He also concedes a gambling problem. He told Probation and Parole he had used two drugs before committing the Albury offence and was “out of it”. When committing the Taree offence, he claimed heavy drug and alcohol use.

29 The offence before the Court is a serious one. Although committed by a young man who had just stepped upon the threshold of adulthood, it is an offence requiring a term of imprisonment.

SUBJECTIVE MATTERS

30 I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to the 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.

PERSONAL CIRCUMSTANCES AND BACKGROUND

31 It is unclear to me exactly where Kane Wratten is living. On one account he says he is living with his father, a reformed alcoholic, and his stepmother at Wingham. On another account he claims to be renting. That may mean the same thing; on the other hand, it may not. The evidence is unclear as to whether the offender’s partner shares accommodation with him. She is a young woman who is the mother of his eighteen month old son.

32 There is an older brother, a younger brother, a half brother and a half sister. His father, a labourer, suffered a back injury for which he received compensation when the offender was very young. The father has not worked since Kane Wratten was aged three. There were, however, severe alcohol abuse and domestic violence issues between father and mother during the offender’s formative years. The father served two terms of imprisonment for breaches of AVOs.

33 When the offender was aged nine his parents separated, with the mother at that time retaining custody of the children. She formed a new liaison with another alcoholic abusing man. That man also abused marijuana. He is said to have “flogged” the children. Whether as punishment for acknowledge misdeeds or just as brutal gratuitous violence is unclear. There is hearsay evidence from his stepmother that the offender was tied to a headstone in a cemetery when he was aged eight. Whether that occurred at the hands of his father or stepfather is unclear because at aged eight he was, as I understand it, still living under the father’s jurisdiction. On either view whether it was punishment or just gratuitous brutality, it was unhealthy and counterproductive to physical and psychological wellbeing.

34 Kane Wratten became aware the stepfather was behaving sexually inappropriate towards his sister. For how long he knew, in what circumstances this conduct was disclosed to authorities, and by whom it has been disclosed are not clear in the evidence, but I sense these matters are festering sores on the offender’s psyche. His father approached the courts when he became aware and was given custody of the children. On return to the father and stepmother there was further violence.

35 This offender left home aged fourteen, living in refuges and on the street. Even since his relationship with Ms Law, his life is in turmoil. For some time he lived with his father-in-law, who is reputed to be a drug abuser and a violent man. Since his arrest he has commenced to gamble, putting tensions upon his relationship with his partner.

36 I note in Court she has been very supportive of him. His father and stepmother are likewise supportive of him. These are important factors in terms of his prospects for rehabilitation.

EDUCATION, SKILLS AND EMPLOYMENT HISTORY

37 Against his childhood background, it would be unlikely Kane Wratten would be settled in and successful at school. Further, aged, on my calculations about eleven, he was diagnosed with ADD, that is attention deficit disorder. He was medicated for this and the treating psychiatrist claims it was effective. However, Mr Wratten abandoned that medication in about 2001 claiming it kept him awake at night.

38 Dr Alan White, psychiatrist, prepared a report for the defence. He observes:

“His schooldays were extremely difficult for him. He went to primary school in Taree, in Queensland, and then to Wingham High. Academically, he was a below average student. He was not sporty and not active. He became involved with a group which smoked marijuana, so he began abusing this drug from fourteen, which did little for his academic performance and which was associated with considerable truancy. He was expelled for continuing misbehaviour when he was fifteen without academic qualifications.

After leaving school, he worked for two years on his grandmother’s dairy farm in Kempsey. But he found the work boring and he was lonely there, as there were no young people. He left the farm and moved back to the Taree area. He attempted an IT course at Taree TAFE, but found it too hard and dropped out. He has been on the dole for most of the time.”

39 He told Dr White he was living in rented accommodation. It is clear that his income stream is unemployment benefits from Centrelink. He has interests in music and fishing. He claims an interest in securing a good job. He says he would like to get into the building industry as a labourer.

PHYSICAL HEALTH

40 Kane Wratten is 185 centimetres tall. He weighs 73 kilos. I would think he is underweight. He is certainly slim. He fractured his right shoulder on a skateboard when sixteen. That appears to have healed satisfactorily. He has had two right inguinal hernia repairs. These too, I have assumed, have healed. He otherwise appears to be in good physical health.

MENTAL HEALTH ISSUES

41 As I earlier remarked, he was diagnosed in 1998-1999 with ADD. Symptoms noted included poor attention span, easily distracted, impulsive, cheeky, restless, and difficulty controlling temper. He no longer takes medication for this condition. This diagnosis was made when he was prepubescent. What impact the condition now has upon him as an adult is not made clear in the evidence. Dr White diagnosed a disorder of impulsive control, namely gambling. There is also an underlying mood disorder, probably major depression, says Dr White.

42 On the other hand, Dr Akkerman diagnosed no signs of psychosis, no signs of mood disorder. My sense of Dr Akkerman’s review was that he does not appear to have delved into the recent history of the offender with the detail Dr White has done. Dr Akkerman was able to give a greater insight into the ADD at age eleven because he had diagnosed and treated that condition.

43 However, I prefer Dr White’s diagnosis as to the current mental state of the offender. I have acted upon it.

ALCOHOL, DRUGS AND GAMBLING

44 This offender claims not to have consumed alcohol since his arrest. His stepmother gave evidence that she is not aware of his using any illegal substances.

45 On the other hand, Dr Akkerman, who consulted with the offender on 24 July 2007 at Forster, wrote:

“I asked Mr Wratten why he ceased his treatment with me in 2001. He said it was around this time he started using drugs. He has been using a lot of drugs since then. He uses marijuana, 3 grams per day. This is ongoing . Occasionally he uses methamphetamine, ecstasy, or any drugs he can get his hands on when he has the money.” (my emphasis)

46 These comments appear to me to be a global review since 2001 to the present. Mr Harkin, counsel for the offender, argues I should not read this passage in that way. The accused has given no evidence as to his current drug use. A longitudinal history of the offender’s drug abuse requires interpreting this controversial passage in Dr Akkerman’s report as presenting a global view to the present. It is clear from both Dr Akkerman and Dr White’s reports that the offender has a disposition susceptible to addiction, including alcohol, cigarettes, illicit drugs, and gambling.

47 His alcohol abuse would appear to be longstanding. He acknowledges prior to arrest consuming two bottles of spirits each second day for purposes of becoming intoxicated. As I remarked earlier, his father is a reformed alcoholic. It is well-known that alcohol addiction can run through families.

48 He has been using marijuana since he was fourteen, speed since fifteen, ice since seventeen. His gambling appears entrenched.

49 When asked by Dr White for his hobbies, he told Dr White they included playing the poker machines. Probation and Parole report him having an ongoing and significant problem with gambling. The author of the presentence report notes it has resulted in his being unable to meet financial responsibilities on a number of occasions. He told Probation and Parole that gambling affords him the opportunity to relax and escape from pressure.

50 Given that gambling is a tension in his relationship with his partner and causes him to fail to meet his financial responsibilities, his claim to find it relaxing can only be viewed by me as a rationalisation by him for setting appalling priorities, including the reasonableness of gambling. In fairness, as matters presently stand no nexus can be made on the evidence before me between his offending and his gambling addiction. Nonetheless, it still remains a serious obstacle on his path to rehabilitation.

51 After his arrest in June of 2006, it would appear he had four or five sessions at the Taree community health centre with a female drug and alcohol counsellor. That counselling has not been pursued, although for what reason is unclear. He claims to have found the counselling beneficial.

CHARACTER AND CRIMINAL ANTECEDENTS

52 Kane Wratten is a twenty year old father of an eighteen month old toddler. He has experienced drug, alcohol and gambling addictions, yet he is only twenty. His childhood was one in which he witnessed and experienced physical and emotional abuse. At twenty, he would still be very close to the impact of those matters upon his psyche. It has left him with serious personal scarring and several issues to work through.

53 Since June of 2006 there has been no further offending.

54 He presents with a reference, unsigned, from the Aquatic Motor Inn, Taree, manager Richard Thompson. I am prepared to accept the reference is genuine. It speaks of knowing Kane Wratten for the past two months as a tenant at the motor inn. It speaks of Mr Thompson finding “Kane to be a likeable young man who is endeavouring to learn and recover from past mistakes” and “his desire to become an important part of his son’s life and is desperate for the chance to become a future role model that his son will be proud of”.

55 Mr Thompson comes to a view that the offender could become a valuable member of the community with a little guidance and controlling influence. He notes him still to be “a little rough around the edges”. Mr Thompson says that the offender is well liked by other tenants at the motor inn, that he has recently started doing odd jobs around the premises to offset living expenses, and that the offender’s character has changed and is developing and will be given the chance to become a valuable member of the community.

56 There is no doubt that at twenty his character would still be developing.

57 There are only two Children's Court matters comprising this offender’s antecedents; one, driving on a road while suspended on 12 April 2005 and, the other, possessing a prohibited drug on 18 July 2006. That would appear to me to be at a time after his arrest on these matters, in which case I query how it is in the Children's Court.

OFFENDER: It was the same day, your Honour.

HIS HONOUR: The same day? So it should be 16 June 2006. That makes sense. But again why it would be in the Children's Court I don’t understand.

58 For each he was fined. His total criminality to date has been punished by $900 worth of fines and a twelve month period of disqualification. He has never been incarcerated before.

59 That record I do not regard as disentitling him to leniency. I do not regard that record as in any way aggravating his criminality.

ATTITUDE TO OFFENCES

60 He has clearly sought to minimise his involvement. I have discussed this aspect at some length.

61 Probation and Parole report him having a high level of anxiety in relation to “his present predicament”. It was noted, however, he lacks insight into the impact his offending conduct may have upon his victims.

62 Ms Rabel, and I hope I have got that correct, his stepmother, said the offender had spoken within the family on a few occasions about his offending conduct and expressed remorse. She believed he had learnt his lesson.

63 My view of the evidence discloses he was not asked in evidence [as said] as to his attitude to his offending conduct. It would seem this topic was not discussed with either psychiatrist. Probation and Parole, who usually record expressions of contrition, do not appear to have done so on this occasion. However, in his interview with police he said, “I shouldn’t have done it and I’m stupid. And the one in Albury I was forced to do. Otherwise it would not have happened.”

64 I am satisfied the offender recognises his behaviour as morally wrong and unlawful. But his evaluation is concrete with little insight into its impact upon others or his need to be held accountable for it.

PLEA OF GUILTY

65 The offender pleaded to the indictable offence before the Local Court at Taree on 21 November 2006. This plea was early entered. Substantial benefit must be given to the offender for the early plea.

REHABILITATION PROSPECTS

66 Currently this offender is doing little or nothing to advance his rehabilitation. I do note that he has not offended in the last fifteen months. To the extent that future conduct can be gleaned from past history, his recent past history is perhaps a rehabilitation indicator.

67 He told Dr White he did not want to use drugs again. He told Dr White he noted an improvement in his father since the father had been off alcohol, suggesting at least some insight into the way in which he too might be advantaged by coming off alcohol. He agreed for the need for further counselling. He indicated a preparedness to attend Alcoholics Anonymous and/or Narcotics Anonymous. He indicated he would attend Gamblers Anonymous if he could find one. He indicated he was prepared to have regular supervised urine drug screening.

68 Dr Akkerman noted if the offender continued to abuse substances his chances of re-offending were quite high. That observation suggests Dr Akkerman sees a nexus between the substance abuse and the offender’s criminal behaviour. Dr Akkerman also observed the offender would benefit from treatment, although he noted the offender’s motivation is low.

69 The offender’s prospects of rehabilitation are very dependent upon him engaging in a structured rehabilitation programme. Clearly that requires addressing alcohol, drug and gambling addictions. It also requires him to be integrated into a workforce where he can gain a stronger income stream, work skills, and a stronger self image.

70 There are a couple of important positive rehabilitation indicators. He has strong family support from his father and stepmother. He appears to have reasonably good health and he is at least maintaining contact with his partner, although I sense that that relationship may have turmoil to work its way through. Probation and Parole have assessed him as suitable for a medium level of intervention, including counselling for further drug and alcohol gambling.

71 In the absence of his addressing his rehabilitation, I am satisfied his prospects of re-offending are great. Statistics show that about two-thirds of prisoners released from custody re-offend within a two year period. In those circumstances, prison must be viewed as contraindicated so far as rehabilitation is concerned.

72 Of course, rehabilitation is not the only purpose to be addressed in sentencing. Prison provides a means of punishing offenders for their criminal behaviour, promoting deterrence, both personal and general, and protection of the community from further offending by the offender during the period of incarceration. All of these are statutory purposes to be achieved in sentencing.

SETTING THE SENTENCE
DETERRENCE

73 In modern Australian society there is a very extensive raft of criminal laws passed by the Federal and State Parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those who are tempted to breach its provisions (see Walden v Hensler 163 CLR 561). Parliament does that by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law. Consequently, when a person is sentenced for a breach of the criminal law he is exposed to the possible maximum penalty provided by the statute breached. In this case, the maximum penalty for the robbery I am dealing with is twenty years imprisonment.

74 Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind that maximum penalty available and its deterrent purpose. There is also a specific deterrence aimed at individuals likeminded to the offender who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced.

75 Finally, there is a component of deterrence to be considered which is personal to the offender with a view to deterring him or her from re-offending.

“The starting point in all sentencing is to understand the purpose of the sentencing proceeding. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law so that when people have committed offences the law considers that they may reap punishment. But its prime purpose is to preserve society from the depredations of dangerous and vicious people. Armed robbers using knives to terrify their victims quite clearly must qualify as dangerous and vicious people”. (see R v Porter per Dixon J (1933) 55 CLR 182)

76 The offender asks that I take the Form 1 matter into account.

77 The Chief Justice, speaking for the court which has authority over me, the Court of Criminal Appeal, in a guideline judgment on the proper approach to Form 1 matters made clear the rationale requiring an increase in penalty. He said:

The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence which the commission of the other offence will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused engaged. The second is the community’s entitlement to extract retribution for the serious offences which...are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. (see The Attorney-General's application under s.37 Crimes (Sentencing Procedure) Act 1999 No.1 of 2002 (2004) 61 NSWLR 305).

IMPACT OF GUIDELINE JUDGMENTS

78 I have taken into account three guideline judgments: The guideline judgment I just referred to, the Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act. There are two others: R v Henry and others (1999) 46 NSWLR 340; and R v Thompson and Houlton (2000) 115 A Crim R 104. Each of those have some part to play in the sentencing proceedings.

BALANCING THE OBJECTIVE AND SUBJECTIVE FEATURES

79 The offender has sought to minimise his involvement in two serious offences against vulnerable victims. His offending conduct demonstrated a level of forethought and planning. The first involved the use of a weapon, a dummy address, a false telephone number, and his presentation on the street to greet the arriving delivery vehicle.

80 He has shown little insight into the impact of his offending upon his victims.

81 Probation and Parole observed the offender has received little in the way of positive support and guidance throughout his life. He is yet to develop the personal resources, it is said, necessary to manage his responsibilities, an observation with which I agree.

82 I have found that he is unwilling to hold himself accountable for his offending conduct and given my reasons for so finding. What I mean by holding himself accountable for his offending conduct is that he has been unwilling to initiate the serious changes to his lifestyle his offending demonstrates he requires.

83 He was eighteen and nineteen at the time of his offending. He is now twenty. While he is an adult, as I remarked earlier, he is still on the threshold of adulthood. If at all possible, his sentence should have a high component of rehabilitation opportunity for him.

CUSTODIAL HISTORY

84 To date he has spent no time in custody.

SPECIAL CIRCUMSTANCES

85 Special circumstances should be found. This is the first term of imprisonment to be imposed upon the offender. He is young and no doubt would be vulnerable within the prison system. Should he go to gaol, it will be his first experience of incarceration.

86 He is committed to his young child. Gaol would, in those circumstances, be arduous for him. Although, of course, no more arduous than those other fathers’ incarceration who are away from their young children. His rehabilitation would be better achieved in a community-based setting.

GIVING THE BENEFIT FOR THE PLEA OF GUILTY

87 I intend to give a benefit to the plea by extending to the offender an opportunity to serve his sentence in the community upon a number of strict conditions. If those conditions cannot be agreed to or are unavailable in the community, then he will have to serve his sentence in prison. I say that because I am convinced all the conditions that I am considering imposing are necessary to ensure his rehabilitation and my primary task, the protection of the community. No one should be in any doubt that at the end of the day what drives this Court will be the protection of the community and not the particular desires of this offender. If these objectives cannot be achieved or cannot be undertaken in the community, then I regret to say he will need to serve his sentence in custody.

88 The overall sentence I intend to impose is one of two years imprisonment, taking into account the Form 1 matter.

89 The conditions that I require are these. They will be provided to the offender, but should be taken down.

90 Firstly, I will adjourn this matter for two weeks so that a decision can be made by him whether he is willing to engage upon the difficult task that I have set him and, secondly, whether it is possible within the community to embark upon that.

(1) Be of good behaviour

(2) Supply and keep supplying the Court registry with his address

(3) Answer any call-up in the event of a breach of the s 12 bond I am contemplating giving him

(4) Accept supervision of Probation and Parole, and report to Probation and Parole at Taree by 4pm, 30 October 2007

(5) Obey directions of Probation and Parole, including participating in treatment and programmes as required by him, particularly in relation to drug, alcohol and gambling issues that he has

(6) Abstain from consuming any alcohol for any purpose for a period of fifteen months from the date of sentence

(7) Abstain from all illicit drugs

(8) Abstain from any form of gambling, games of chance, or wagering

(9) Submit three times monthly as and when required by Probation and Parole or other drug treatment authority on random notice to supervised urine screening for the purpose of analysis to detect the presence of illicit drugs and/or alcohol

(10) Enrolment or entry into the Personal Support programme offered by Centrelink or some other Commonwealth provider, and there are a number of people who provide this, for the purpose of addressing personal issues and to obtain employment. I pick those organisation, Personal Support, because they require fortnightly reporting, as I understand it.

(11) Once securing employment, doing all he can to maintain employment during the sentencing period.

91 I intend to adjourn these proceedings for two weeks only so that those matters may be attended to. If one of them is not attended to in some form or other, I will take it that incarceration is required.

92 Firstly, before I do that, you had better ask your client whether he is willing to at least explore that possibility. If he is not prepared to abide by those conditions, we can finalise the matter now.

HARKIN: Yes, your Honour, he indicates that he is willing--

HIS HONOUR: I do not want anyone coming back saying, “It’s too hard.” If somebody comes back and says, “It’s too hard,” or, “It can’t be done,” or, “There are no facilities in Taree,” I do regret my intention is to incarcerate. Is that understood?

HARKIN: Your Honour, I can give my utmost assurance that he will be made to understand these things.

HIS HONOUR: He will also need some assistance, as I remarked earlier. He does not have a lot of personal resources. But that is not my responsibility. That is the responsibility of those who have his interest at heart.

93 Gentlemen, a two week adjournment. Today is Monday. When I say two weeks I guess I am meaning Friday week really.

94 My advice to him is that if he finds an obstacle, he gets in contact with his legal people to help him through the obstacle. If you throw up your hands, you will go to gaol.

95 Today is the 29th. Tomorrow he will be before the Probation and Parole with a copy of these conditions so that they can better assess them to assist him. Friday 9 November at Penrith. If he is to go to gaol, it should be done quickly. If he is not to go to gaol, the sentence should be imposed quickly and suspended.

96 You are going to have to get yourself down to Penrith for the sentencing.

97 I stand this matter over to Friday 9 November at the Penrith District Court for finalisation.

Does either party want to be heard on whether in their view this can be done; that is, a two week adjournment for the condition? Because I want to give you an opportunity. Clearly, if two minutes can’t be done, it seems to me two weeks can be done. That is my view. It is a conditional situation.

COLES: I think your Honour is right. If your Honour is in effect seeking more information--

HIS HONOUR: I’m not seeking information. I’m seeking whether he can - it is conditional upon him doing these things.

COLES: Yes.

HIS HONOUR: If he can or can’t, I need to know. It is a programme.

98 He should understand that a breach of the s 12 bond will be a breach of any of these conditions and he will go to gaol. You could explain to him why I have very limited jurisdiction so far as a s 12 breach is concerned.

I am only asking for a submission in respect of the adjournment, not anything else.

COLES: Yes, I understand what your Honour is saying. I don’t see, on the face of it, why it can’t be done, your Honour.

HIS HONOUR: I only wanted to make sure that the parties had been heard on it.

COLES: Thank you, your Honour.

HIS HONOUR: Do you want to be heard on it?

HARKIN: No, your Honour.

HIS HONOUR: The matter is stood over. Your bail will continue. The bail will be conditional upon your considering these matters over the two weeks. So I will have that bail sheet given to you. You will have to wait. I will remand you into the custody of your barrister while we get this done, but you are not to leave the Court until you have got your bail sheet with the condition attached.

***********