Armed Robbery Sentencing Decision

The defendant was sentenced to 3 years imprisonment for armed robbery offences, with a non-parole period of 18 months. The court considered the defendant's mental health and prospects of rehabilitation.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2022] NSWDC 228 Hearing dates: 17 June 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 [NAME] is convicted. 2 I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 5 September 2021. The non-parole period will expire on 4 March 2023 and the head sentence will expire on 4 September 2024. [NAME] will be eligible to be released on parole on 5 March 2023. Catchwords: CRIME — Violent offences — Armed robbery — Offensive weapon Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: [NAME] v The Queen [2007] NSWCCA 244 R v Henry (1999) 46 NSWLR 346 R v Olbrich (1999) 199 CLR 270 Category: Sentence Parties: Director of [NAME] ([NAME]) Representation: Counsel: [redacted]

Solicitors: [redacted] Criminal Defence Lawyers File Number(s): 2021/188681 2021/117220 Publication restriction: None

Judgment 1. [NAME] ([NAME]) appears for sentence after pleading guilty in the [ADDRESS] to the following charges: 1. on 22 November 2020 – robbery with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment; and 2. on 19 April 2021 – robbery with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment. 1. [NAME] also asks the Court to take into account on a Form 1 when dealing with the offence of 22 November 2020, assault with intent to rob, and when dealing with the offence of 19 April 2021, common assault.

Approach to sentencing 1. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999. 2. [NAME] entered pleas of guilty in the [ADDRESS] and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

3. To the extent that I make findings of fact adverse to [NAME], I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to [NAME], I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Agreed facts 1. The parties tendered agreed statements of facts for both charges which may be summarised as follows.

H [PHONE]

Sequence 3 – Form 1 1. At about 9.24pm on 21 November 2020, [NAME] attended the bottle shop attached to the [COMPANY] located on [ADDRESS] in Guildford West. [NAME] was wearing a dark blue [NAME] brand hooded jumper, dark blue shorts and dark blue Nike shoes with a white trim. He was carrying a dark grey [NAME] backpack containing a metal claw hammer. 2. [NAME] approached the checkout desk from the western side of the premises and said to the attendant at the desk, [NAME], "Give me the money and cigarettes." [NAME] took a step towards the checkout desk and said, "Do as I say, and no one will get hurt." [NAME] placed the backpack on the checkout desk and removed the claw hammer. [NAME] made a throwing motion with the claw hammer which caused [NAME] to become fearful for his safety. 3. [NAME] moved away from the cash register and responded, "Come around and do what you want to do." [NAME] walked around the checkout desk towards the cash register and continued to make throwing motions with the claw hammer. At this time, [NAME] was confronted by other customers present. [NAME] picked up the backpack and fled the premises on foot. He abandoned the backpack on the lawn area of a car [NAME] near [ADDRESS].

4. Police attended the scene a short time later and [NAME] provided a statement. The entire incident was captured on CCTV.

Sequence 2 – Sentence 1. At about 11.24am on 22 November 2020, [NAME] re-attended the bottle shop. He was wearing a beige coloured jacket on top of a dark blue hooded jumper, dark blue shorts and dark blue Nike shoes with a white trim similar to those worn the day before. [NAME] was armed with a 30-centimetre kitchen knife. He approached the checkout desk from the western side of the premises and said to [NAME], "Open it, open it right now" while gesturing towards the cash register with the knife. Upon seeing the knife, [NAME] moved away from the checkout desk and stood about ten metres away from [NAME] where he called for help. 2. [NAME] pulled out the drawer under the front counter and removed a number of packets of cigarettes. He made numerous attempts to access the till until the Manager of the Hotel contacted [NAME] through a two-way radio. [NAME] grabbed the two-way radio and pushed the computer screen which was located on top of the front counter. [NAME] ran back towards the western side of the premises before exiting towards [ADDRESS]. The two-way radio was later found down a drain.

3. Police attended the scene a short time later. The entire incident was captured on CCTV which clearly showed [NAME]'s face.

4. At about 8am on 8 December 2020, police attended the [COMPANY] and conducted a search of the rear car [NAME]. During this time, police spoke to a witness, [NAME], who informed them that he had found a dark grey coloured, [NAME] backpack containing a claw hammer. Police seized the backpack for forensic analysis.

5. On 27 April 2021, [NAME] was arrested by Bankstown Criminal Investigation Unit at [NAME]'s home on [ADDRESS] in Yagoona for an unrelated matter. During this arrest, police seized a pair of dark blue Nike shoes with a white trim similar to the shoes [NAME] had worn during the armed robberies.

6. On 3 May 2021, police obtained a DNA result which linked the claw hammer to [NAME].

7. On 8 May 2021, police executed a search warrant at [NAME]'s home to obtain clothing worn by [NAME] during the armed robberies. Police seized certain items of clothing and two pairs of Nike shoes. 8. [NAME] refused to participate in an electronically recorded interview in relation to these offences.

H 79398024 1. At about 4.50pm on 19 April 2021, [NAME] left his home and walked to the Beer Wine and Spirits (BWS) bottle shop on the [ADDRESS] in Yagoona. He was carrying a knife that he had obtained from his kitchen. At about 5.04pm, [NAME] walked through the western entrance of BWS and into the cool room where he picked up a case of Somersby pear cider. He then took the case of cider and placed it on the front counter.

Sequence 1 – Sentence 1. [NAME] then walked back into the cool room and immediately came back out wielding the knife in his left hand. He pointed the knife towards a BWS employee, [NAME], who was positioned behind the cash register. Whilst he was wielding the knife, [NAME] was about a metre away from Ms [NAME]. [NAME] then pointed the knife towards the cash register and demanded "open the cash register" repeatedly until Ms [NAME] did so.

Sequence 2 – Form 1 1. Around the same time, [NAME], a customer, walked out of the cool room carrying a box of alcoholic beverages. Whilst still wielding the knife in his left hand, [NAME] used his right hand to push [NAME]'s right shoulder in the direction of the driveway and told him to stand in front of the counter. 2. [NAME] returned to the open cash register and began to grab cash from the till. He took approximately $510. [NAME] then fled the premises on foot. While running, he abandoned the knife in an undisclosed road.

3. Police attended the scene shortly after and spoke with witnesses. The entire incident was captured on CCTV which clearly showed [NAME]'s face. A forensic analysis of the case of Somersby cider revealed a fingerprint which matched [NAME]'s.

4. At about 1.10pm on 27 April 2021, police arrested [NAME] at his home. [NAME] participated in an electronically recorded interview and made full admissions. He remained cooperative with police, explaining in detail his actions and the reasons behind them, including being without an income and having recently had a son.

[NAME]'s subjective circumstances, remorse and prospects of rehabilitation

Psychiatrist report of [NAME] 1. [NAME] tendered a report of [NAME], psychiatrist, dated 8 June 2022. [NAME] met with [NAME] via audio-visual link on two occasions for the purpose of preparing the report. The content and findings of [NAME]'s report can be summarised as follows.

Background and psychiatric history 1. [NAME] was born in Auckland in 2001. His father was born in Tonga and his mother was of mixed Tongan/Māori heritage. His family migrated to Australia and lived in Brisbane between 2005 and 2019. 2. [NAME] completed primary school and high school in Brisbane. There were no indications of specific learning difficulties or attention deficit hyperactivity disorder. He played rugby league at school, including competitive football. He completed Year 12. 3. [NAME]'s father worked in the construction industry and his mother stayed at home. [NAME] worked in the construction industry himself for a period in 2019 after his family moved to Sydney. His family lived in Guildford then Yagoona. 4. [NAME] has been in a relationship for the last three years. He has a one-year-old son with his partner and they are expecting a daughter in September. [NAME] was unemployed at the time of the offences. 5. [NAME] had a history of apparent psychotic symptoms. He reported that he "heard voices" after he ceased working with his father, which was in the latter months of 2019. He also experienced feelings of paranoia around that time, believing that people were talking about him and that songs and other content on the radio were about him. 6. [NAME]'s mother also reported that she saw changes in [NAME]'s behaviour around this time. She stated that he was staying up all night and sleeping during the day. She also stated that he was paranoid and believed that their neighbours were "laughing at him". 7. [NAME] was admitted to Cumberland Hospital for approximately two months from December 2019 to January 2020, or thereabouts, for treatment of his psychotic illness. [NAME] stated that the nature of his symptoms and the length of that admission suggested that the most likely diagnosis was schizophrenia. 8. [NAME] had follow-up treatment through [NAME] with [NAME], psychiatrist and case manager. His antipsychotic medication was changed due to adverse side effects. 9. [NAME] also saw a psychiatrist from the Bankstown Community Mental Health Team (BCMHT) and was prescribed antipsychotic medication, being a depot antipsychotic medication each month via injection and 400 milligrams of Solian (Amisulpride) orally twice daily. 10. [NAME] told [NAME] that he still experienced paranoia from time to time but was no longer having auditory hallucinations or hearing voices.

Drug and alcohol history 1. [NAME] did not drink or use drugs throughout his high school years until he started smoking cannabis sporadically at the age of 17. [NAME] drank and used cannabis more regularly after leaving high school and was smoking cannabis intermittently up until his arrest. [NAME] had a history of binge drinking.

Offence-related issues 1. In relation to the November 2020 offences at the [COMPANY] bottle shop, [NAME] told [NAME]: "I didn't have much to do. No longer working with [NAME]…just angry…sometimes just frustrated…anger takes control of me."

2. In relation to the April 2021 offences at the BWS bottle shop, [NAME] told [NAME]: "I was bored. Nothing to do. Not working." He also stated that he regretted his offending and "should've thought about it and not done it."

3. In relation to both sets of offences, he told [NAME]: "It was childish. Silly. I shouldn't be doing that. No point. I should have got a normal job."

Recent progress 1. [NAME] was remanded in custody between April and November 2021 and was subject to bail restrictions/supervision in the latter months of 2021 and in the first 2 to 3 months of 2022. His case management was to be transferred from the BCMHT to the Liverpool Early Psychosis Intervention Program (LEPIP). 2. [NAME] was involved in a domestic incident in March 2022 which amounted to a breach of his bail conditions and he was taken back into custody on 15 March 2022. [NAME] was subsequently charged in relation to an incident in custody involving two correctional officers, which led to him being placed in segregation.

Mental state examinations 1. [NAME] reported that [NAME] presented as logical throughout both assessments and did not appear to be significantly depressed or to be psychotic or suicidal. His intelligence was not formally assessed, but [NAME] believed that he likely fell in the below average range. [NAME] expressed anxiety about his upcoming sentencing proceedings and his segregation in incarceration and denied any recent symptoms of psychosis.

Opinion regarding specific questions 1. [NAME] stated that [NAME] was not very bright and had developed a schizophrenic illness with the onset of psychotic symptoms and functional decline in 2019 that had continued in active and then residual form over the last 2 to 3 years. He appeared to have developed a maladaptive pattern of drinking and cannabis abuse over the last few years, with his drinking and desire to obtain alcohol, cigarettes and money being causally related to his offending. [NAME] acknowledged that drinking and a desire for alcohol does not, of itself, necessarily reduce the seriousness or moral culpability of the offending, he stated that it was "an inescapable conclusion" that [NAME]'s schizophrenic illness and related functional impairment were driving forces behind his drinking, maladaptive behaviour, and impaired judgment at the time of the robbery offences, including an apparent disregard for the consequences of his actions. 2. [NAME] believed that [NAME] met the DSM-5 criteria for schizophrenia and substance use disorder. He opined that current medical evidence suggested that schizophrenia was more likely to be the result of a genetic vulnerability rather than cannabis being causal of schizophrenia and related psychotic symptoms.

3. As to [NAME]'s risk of reoffending, [NAME] stated that [NAME] was likely to remain functionally impaired by his schizophrenic illness. However, he believed that the assertive psychiatric follow-up and case management outlined in the proposed treatment plan would likely improve his mental health, decrease his risk of reoffending, and facilitate adequate rehabilitation. [NAME] also acknowledged that [NAME]'s drug and alcohol issues also needed to be managed, most likely through engagement in drug and alcohol counselling/rehabilitation. 4. [NAME] was of the opinion that the available history suggested that [NAME] was likely to engage in the proposed treatment plan, including by taking antipsychotic medication and seeing his local community mental health team, which he had been doing over the last two years. 5. [NAME] also opined that [NAME]'s mental condition would make any period in custody more burdensome for him. In particular, he stated that people with schizophrenia are prone to paranoid interpretations of the actions or words of other inmates due to hallucinations and/or delusions, and that mood disturbance associated with schizophrenia can also make persons more irritable and confrontational. Additionally, the presence of a schizophrenic illness and lower than average intellectual capacity also made [NAME] more vulnerable to being 'stood over', humiliated or abused in other ways, meaning the custodial environment would be more challenging and onerous. [NAME] also opined that [NAME] would probably be at greater risk of having further relapses of psychosis in the future due to difficulties in accessing timely assessment and treatment in custody, lack of direct support from his family and case manager, and the increased stress of incarceration.

Medical documentation relating to [NAME]'s mother 1. [NAME] also tendered medical documentation relating to his mother, [NAME], including a discharge referral from Liverpool Health Service dated 12 May 2022, a letter from [NAME] dated 15 July 2021, and a letter from [NAME] dated 10 June 2022.

2. The medical documentation confirmed that [NAME] had recently been diagnosed with metastatic endometrial cancer and that her treatment was palliative. She was experiencing significant pain and had limited mobility which meant that she required assistance.

Letter of support from [NAME]'s parents 1. [NAME] also tendered a letter of support from his parents. The letter confirmed the close and loving relationship between [NAME] and his family. It also supported the evidence that the offending was related to the decline in [NAME]'s mental state in the latter months of 2019 and expressed [NAME]'s wish that her son be by her side during her time in palliative care.

Objective seriousness, deterrence and aggravating and mitigating factors

Objective seriousness 1. The November 2020 and April 2021 offences shared a number of common features. Firstly, the items taken on both occasions were of limited value, being a number of packets of cigarettes on the first occasion and approximately $510 in cash on the second occasion. Secondly, the offending appears to have been short-lived rather than a protracted course of conduct. Thirdly, [NAME]'s threatened use of violence was largely by way of his conduct rather than explicit threats of violence and the words spoken took the form of demands directed towards opening the cash register. I note, however, that in the offence of 19 April 2020, [NAME] pointed the knife at the victim momentarily before motioning towards the cash register. Fourthly, both offences were unsophisticated with limited planning save for [NAME] arming himself before attending the premises. Fifthly, [NAME] made no attempt to conceal his identity which was captured on CCTV. Sixthly, the victims in both offences were in a vulnerable position as employees of licensed premises.

2. The Form 1 offence attached to the 22 November 2020 offence shared many of the features outlined above. The Form 1 offence attached to the 19 April 2021 offence involved common assault in the form of a single push of moderate force to the right shoulder of [NAME] whilst holding a knife.

3. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment but it should be noted that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: [NAME] v The Queen [2007] NSWCCA 244 at [40] and [48]-[59].

4. As a result of [NAME]'s mental illness, his moral culpability for the offences is reduced to some extent. The offences are at the low end of the range of objective seriousness.

5. I have had regard to the maximum penalty for the offences.

Deterrence 1. General deterrence is of significance in sentencing offenders for armed robbery offences. Persons considering committing these types of offences should be aware by reference to the penalties given for them that they will be met with significant punishment if they choose to commit them.

2. General deterrence can be afforded less weight where [NAME] suffers from a mental condition and/or is immature. [NAME]'s schizophrenia is a serious condition that has had significant impacts on him, including affecting his capacity to reason through consequences. Whilst there is no significant causal nexus between his schizophrenia and these offences, his moral culpability is reduced to some extent. In addition, [NAME] was 19 and 20 at the time of the offences but very immature and is of limited intellect. This is an appropriate case to give less weight to general deterrence, denunciation and retribution and to impose a sentence that will foster [NAME]'s rehabilitation.

3. Specific deterrence is also of some relevance because [NAME] has limited insight into his offending conduct.

Aggravating factors 1. There are no relevant aggravating factors.

Mitigating factors 1. [NAME] has no prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 2. [NAME] was a person of good character: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 3. [NAME] has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. To realise these prospects of rehabilitation, [NAME] would need to engage in assertive and long-term psychiatric treatment, including taking antipsychotic medication and engaging with his local community mental health team. In this regard, the available history as documented by [NAME] suggests that [NAME] is likely to comply with a proposed treatment plan. I am also satisfied that the antipsychotic medication which [NAME] currently takes will be of greater effect now, being more than 12 months since the second set of offences. [NAME]'s prospects of rehabilitation are reinforced by his strong family ties and the powerful motivating factor of [NAME] expecting his second child in September. [NAME] is still young and I am confident that he can rehabilitate himself. 4. [NAME] has expressed a degree of remorse in relation to his offending conduct by telling [NAME] that he regretted his actions and that they resulted from a combination of boredom due to unemployment as well as general anger and frustration. He told [NAME] that he should not have committed the offences and that his actions were "childish" and "silly". I am not satisfied that [NAME] has established the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, but the remorse that he has expressed can still be taken into account.

5. I have taken into account that [NAME]'s mother is terminally ill and will probably die while he is in custody.

Other matters 1. I have taken into account the impacts that the pandemic has had on prisoners in custody, including [NAME].

Penalty 1. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate. 2. [NAME] is convicted.

3. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.

4. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty and the matters on the Form 1 are: 1. for the 22 November 2020 offence – 2 years and 9 months; and 2. for the 19 April 2021 offence – 2 years and 6 months.

1. The appropriate aggregate sentence is one of 3 years imprisonment. I have considered s 66 Crimes (Sentencing Procedure) Act 1999. These offences involve some violence and with his current lack of insight and developing mental illness, I am not satisfied that the community would be adequately protected if [NAME] was to serve the sentence by way of an Intensive Corrections Order. Further, a full time custodial sentence is warranted in this case to provide adequate punishment for the offences committed.

2. I make a finding of special circumstances. This is [NAME]'s first time in custody and he has a serious mental illness requiring treatment and this justifies a longer parole period.

3. I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 5 September 2021. The non-parole period will expire on 4 March 2023 and the head sentence will expire on 4 September 2024. [NAME] will be eligible to be released on parole on 5 March 2023.

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Amendments 27 June 2022 - Personal identifier removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2022