R v Gordon; R v Smith [2020] NSWDC 355

District Court New South Wales

Medium Neutral Citation: R v Gordon; R v Smith [2020] NSWDC 355 Decision date: 22 April 2020 Jurisdiction: Criminal Before: Payne DCJ Decision: GORDON Sentence of imprisonment for three years six months, with a non-parole period of one year eight months SMITH Sentence of imprisonment for two years five months, with a non-parole period of one year three months Catchwords: SENTENCING – armed robbery, Crimes Act 1900, s 97(1) – guidelines for sentencing – R v Henry (1999) 46 NSWLR 346 – destroying or damaging property, Crimes Act 1900, s 195(1)(a) SENTENCING – aggravating factors – breach of conditional liberty – offence committed in company SENTENCING – relevant factors on sentence – co-offenders – parity – general and specific deterrence Legislation Cited: Crimes Act 1900, ss 97(1), 195(1)(a) Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571; 229 A Crim R 337 R v Henry (1999) 46 NSWLR 346 R v Thomson and Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Regina (Crown) Robert Gordon (Offender) Kyle Smith (Offender) Representation: Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Offender Gordon) Aboriginal Legal Service (Offender Smith) File Number(s): 2019/9875, 2019/143998

Judgment 1. In relation to this matter, Mr Gordon and Mr Smith come forward for sentence in respect of the same offence, robbery armed with an offensive weapon. The offence is contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years. There is no standard non-parole period prescribed. Each of them adhered to their pleas of guilty in this Court. I convict each of them of this offence. 2. In addition, each of them ask to have taken into account on a Form 1 document an offence of destroy or damage property contrary to s 195(1)(a) of the Crimes Act. I will take this offence into account. 3. The factual circumstances in relation to this matter are found in an agreed facts document which has been signed by both the prisoners. That document reads as follows: "Background 1. The first offender is Robert Gordon (born 1996). 2. The second offender is Kyle Smith (born 1997). 3. The offending, in short, is that both offenders participated in a robbery of 'The Pub', a hotel in Tamworth. The amount stolen was $3450. Offending 4. The offender Gordon was released from custody on 27 September 2018. 5. The kitchen inside 'The Pub' closed at around 8.00pm. Kitchen staff left shortly after. 6. Around 8.15pm on Monday 1 October 2018, Ryan Bowden entered the hotel and tried to order food. He was told that the kitchen was closed and directed to the Leagues Club. 7. At around 8.20pm, the two offenders entered the hotel through the bottle shop sliding doors, which opened automatically. 8. Gordon was wearing dark pants, a dark hoodie with faint pinstripes and a green 'LKI' logo on the rear left shoulder, and a balaclava. His hands were covered with black socks. 9. Smith was wearing a light shirt with blue on the cuff of each sleeve, dark pants, a black baseball cap with grey brim and a blue item covering his face. His hands were covered with ordinary latex gloves. 10. Both offenders were of skinny build and could not be identified from the CCTV. 11. Both offenders held large knives out in front of them at all times, both entering, during and after the robbery. 12. The two offenders entered the main bar where Karina Craig-Guy and Lauren Christakos, both employees, were working. They waved their knives in front of them and demanded money from the safe. 13. The two employees gave the men the notes out of four separate tills. The total amount was $3420 (Count 1). The offenders followed the employees to each till. 14. They told patrons and Jayson Carpenter, another staff member on duty, to stay away from the bar. 15. After less than a minute, the two offenders left via the same bottle shop doors. They did not open automatically. The two men forced the doors open, smashing the glass in the process (Form 1). They dropped eight $5 notes as they were leaving. The value of this glass door panel repair was $580. 16. This conduct was captured on clear CCTV from the hotel. Both offenders were wearing balaclavas throughout the incident and were unable to be identified. 17. Police attended and investigated. 18. At the back fence of 17 Aberdeen Street, they located: (a) One black balaclava (b) Two black socks (c) One $50 note 19. 17 Aberdeen Street is approximately 250 metres from 'The Pub'. 20. Inside the premises of the Latter Day Saints Church on Ridge Street (immediately behind 17 Aberdeen Street), they located: (a) One black baseball cap with grey brim 21. At the time, the offender Gordon was residing with his brother, Trevor Doole, in Sussex Street, Tamworth. This is around 800 metres in a direct line from the hotel and generally in the direction that the two men were seen running. Arrest - Robert Gordon 22. The seized items were tested for DNA links. 23. Mixed DNA profiles where Gordon was identified as a contributor were located on: (a) Inside of black sock (b) Outside front of balaclava (c) Inside front of balaclava (d) Inside back of balaclava 24. Mixed DNA profiles where Gordon could not be excluded as a contributor were located on: (a) Upper peak of baseball cap (b) Lower peak of baseball cap 25. The offender was arrested on 10 January 2019 in Inverell. He declined the opportunity to participate in an ERISP. 26. A buccal swab was completed and the offender Gordon was charged. Arrest - Kyle Smith 27. On 8 May 2019, the OIC Shaun Jackson attended Newcastle Police Station. Offender Smith was there on unrelated matters. Whilst at the station, Jackson indicated he wanted to ask Smith some questions about an armed robbery at The Pub in Tamworth, but wanted the Custody Manager to inform Smith of his rights before speaking with him about the matter. 28. Smith responded with, 'Yeah fuck it, I did it, I robbed The Pub. I will tell you what I did but I won't tell you about my mate or anything else'. 29. This offender was then charged. 30. This offender was cautioned and provided the opportunity to speak with a solicitor, to which he declined. 31. He was offered the opportunity to participate in an ERISP (R0586184) and complied. Under caution, the offender Smith told the police: (a) He was explained and understood Part 9 of LEPRA (QA9); (b) He declined the opportunity to speak with a solicitor (QA13); (c) He was at The Pub when the robbery occurred (QA20); (d) He doesn't know the name of the person he was with (QA32); (e) They entered through the glass sliding door near the bottle shop (QA36); (f) He was wearing a light blue t-shirt over his face (QA39); (g) He was armed with a 12 centimetre blade (QA37); (h) They watched The Pub from across the Gunnedah Highway (QA54); (i) The two offenders exited through the sliding doors they entered in, but they had to break the glass to get out (QA64); (j) They ran across the road, through the roundabout and up the street, then got into a car (QA70-72); (k) He had taken a gram of ice and drunk three to four cans of Canadian Club before the robbery (QA75-77); (l) He had never met his co-offender before (QA77); (m) He stayed with Trevor Doole for a night (QA91); (n) He told people inside The Pub to stay still or he would stab them (QA193); (o) He lost a few notes as they were exiting the hotel (QA205); (p) He was couch surfing at the time, and that is why he committed the robbery (QA28). 32. During the ERISP, Jackson showed Smith five stills from CCTV at The Pub. Smith identified himself, and signed all five photographs. 33. It is the agreed position of the parties that without the full and frank admissions of Smith, it is unlikely he would have been charged." 1. The Court received submissions concerning objective seriousness. Both Mr Floyd for his client Mr Gordon and Ms Gidlow for Mr Smith submitted that the offending was towards the lower end of the range. Ms Crown says it was in the mid-range. In my view, the offending falls at the bottom of the middle range, and I will be referring also to the guideline judgment. 2. It will be appropriate now to consider the material in respect of Mr Gordon's matter. Firstly, I have considered all of the material in the Crown sentence summary, so in the Crown material Exhibit A, and I have read the psychological report dated 13 April 2020, Exhibit 1 and the helpful submissions of Mr Floyd, Exhibit 2. It will not be possible to refer to all of the material. I should say also I have had the benefit of oral submissions from Mr Floyd and the Crown. I have though taken into account all of the material. 3. The guideline judgment of R v Henry (1999) 46 NSWLR 346 is addressed, understandably, in the written submissions of Mr Floyd. The guideline was for four to five years, however, at that time it was in relation to a late plea. That was clarified in the case of R v Thomson and Houlton (2000) 49 NSWLR 383: 1. Young offender with no or little criminal history; 2. Weapon like a knife, capable of killing or inflicting serious injury; 3. Limited degree of planning; 4. Limited, if any, actual violence but a real threat thereof; 5. Victim in a vulnerable position such as a shopkeeper or taxi driver. The victims were two women working at a hotel at about 8 o'clock. The Crown said, as I recall it, that they were in a vulnerable position. Suffice to say, they were in the course of their employment. 1. Small amount taken; 2. Plea of guilty, the significance of which is limited by a strong Crown case. 1. I accept that, as the Crown has fairly said, the Crown case in relation to Mr Gordon was circumstantial and this matter is specifically addressed in the written submissions of Mr Floyd. There were mixed profiles and the location of DNA, and the location of the item is a consideration. At para 21(f) of the defence submissions, it was submitted: "(iii) He has entered a plea of guilty in circumstances where the Crown case is circumstantial and not strong (iv) Neither participant in the robbery could be identified from CCTV footage or by the victims or witnesses. No forensic material was located in the location of the robbery that would allow identification of the participants in the robbery. (v) The case was circumstantial and relied on clothing found approximately 250 metres from the location of the robbery. The DNA profiles on that clothing were, on analysis, found to be mixed profiles, that is, coming from more than one individual. Mr Gordon was identified as a contributor amongst a number of the other people in that mixed profile for a sock and the balaclava, Mr Gordon could not be excluded as a contributor to the mixed profile on a baseball cap." 1. I accept this submission and Mr Gordon is entitled to a 25 percent reduction for utilitarian considerations only. I take into account the value of the plea, having given consideration to the strength of the Crown case. If I have not said it in terms, the Crown conceded it was not a strong case for the Crown. 2. Turning to contrition and remorse, the plea in this case is some indication of contrition and remorse. A reference is also made to this matter in the written submission taken from the psychological report: "Mr Gordon has some insight into the impact of his offending on the victim and indicated to Ms Martens, Forensic Psychologist, that those victims would have felt fearful; however, he lacks a nuanced understanding of the function and wider impact of his offending behaviour." 1. Being a matter on the balance of probabilities, I am of the view that he is entitled to the mitigating feature found in s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. 2. Mr Gordon is still a young man, having been born in December 1996. At the time of the offence he was aged only 21 years and 9 months. He has already served a sentence for two offences of armed robbery. He was in custody from 8 October 2015 and was not released to parole until 27 September 2018. Accordingly, he was not granted parole at the end of the non-parole period. The sentence imposed was three years and nine months with a non-parole period of one year and nine months, 8 October 2015 to 7 July 2019. The non-parole period 8 October 2015 to 7 July 2017. But as I have said, he was not released to parole until 27 September 2018. So he served in the order of three years. 3. At the time he started that sentence, he was 18, turning 19, so he was very young at that point. He had only been in the community for a very short period of time. The offence took place on 1 October 2018. He had only been released on 27 September 2018. So it was only four days. Mr Floyd does point out, though, that between the commission of the offence and when he was actually arrested there was a period from 1 October 2018 to when he was arrested on 10 January 2019 when he did not re-offend, only a short period but at least for that time he did not re-offend. 4. He has had a sad life and he had previously spent time in juvenile institutions. The psychological report indicates that he has had a history of abusing illegal drugs. There is concern that he is already suffering from some degree of institutionalisation. He has had, as I said, a sad background and a deprived background, being exposed to violence in the home as a young child. At age 11 or 12 he was placed in care for a period of about two years. This is a feature I take into account in sentencing him and Mr Floyd refers to the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571; 229 A Crim R 337. He suffers from generalised anxiety and panic. 5. Returning to objective seriousness, the Crown submitted there was very limited planning, and that is the position and I certainly do not elevate the planning to an aggravating feature. The Crown properly pointed out that the whole incident took about less than one minute. It was impulsive and, because of his situation, he had little capacity to exercise judgment. He was motivated by his need to obtain money. The Crown said, properly, weight must be given to the offence on the Form. It was damage to property that was occasioned or that was carried out after the offence in order so they could leave the premises. He was clearly, from what I have said, on conditional liberty at the time of the offence and that is a feature of aggravation. The offence was also committed in company. His previous convictions is a matter I have referred to but this is not a case where it should be elevated to a feature of aggravation but it disentitles him to any leniency. 6. I have already referred to remorse. The entry of the plea of guilty at an early stage and the circumstance here, considered separately, in relation to the strength of the Crown case. 7. The Court does not have a victim impact statement but one of the purposes of punishment under s 3A Crimes (Sentencing Procedure) Act is taking into account the effect on the victim. 8. He must serve some time in relation to the balance of parole which was a period of slightly more than nine months. I have determined that the sentence should start or commence four months in to that balance of parole. He went into custody on 10 January 2019. Accordingly, he started the balance on 10 January 2019 and this sentence will commence on 10 May 2019. 9. The Crown correctly pointed out that his age is a consideration of lack of maturity, his childhood trauma and institutionalisation. 10. In relation to his prospects of rehabilitation, both counsel said it was guarded. I agree with that, given that one hopes that, with greater maturity, that prospect may improve. It is very difficult to determine whether a person will or will not re-offend and I make no finding one way or another. The matter is neutral. 11. General deterrence must still be a feature of this sentencing exercise. There must be also an element of specific deterrence. 12. The sentence I intend to impose upon Mr Gordon is not one which, in my view, will engender in any way a justifiable sense of grievance as compared to the sentence to be imposed upon Mr Smith. 13. It will become clear when the sentence is announced that I have found special circumstances and there has been a clear moderation of the statutory ratio. The special circumstances are the need for him to have assistance upon assimilation back into the community and his history of drug addiction to reduce, as much as is possible, any institutionalisation. 14. I should have said that both sides of the bar table accepted the factual circumstances, as opposed to other matters, in terms of their participation in the armed robbery were the same. I also note what the Court of Criminal Appeal has previously said in regards to the seriousness with which offences of armed robbery are viewed. This is reflected in the guideline judgment. 15. Turning then to Mr Smith, he is approximately one year younger than Mr Gordon. He has not served a lengthy period in adult gaol as Mr Gordon has. 16. In relation to his plea of guilty, he is certainly entitled to a reduction for utilitarian consideration of 25 percent. It is the position though that I give very significant weight to the circumstance that without his admissions, as the Crown said, the Crown would not have been able to prove the case against him. It was, the Crown said, completely his admissions. 17. I have given consideration to the Henry guideline judgment. The Crown said the offence fell within the middle range. Ms Gidlow said at the lower end of objective seriousness. I am of the view it falls at the bottom of the mid-range. 18. In relation to remorse, I am of the view that what he has said is sufficient, together of course with the plea of guilty, to give him the benefit of the provisions found in s 21A(3)(i) Crimes (Sentencing Procedure) Act. 19. Paragraph 21 of the psychological report says, "His decision making related to this offence appears to be impulsive" and I accept that. "When asked about the impact his behaviour had on the victims, he noted, 'I feel remorseful for the people in there', stating that they were 'traumatised', however, 'I didn't injure them in any way so there is no long term effects'. This demonstrates some engagement in cognitive distortions as a way to mitigate any guilt regarding his criminal behaviour." 1. In relation to his case, I have considered all the material in the Crown bundle. I have considered the material in the psychological report and the careful submissions of Ms Gidlow. 2. The aggravating factor relevant to him is the offence was committed in company. That is the only aggravating feature. 3. I will just clarify, the only aggravating features for Mr Gordon were the offence was committed in company and he was on conditional liberty. 4. He had a particularly terrible background and I have taken into account the content of the psychological report. He has had a very disrupted education, if any, and he unfortunately also succumbed to the use of drugs, including intravenous use. He experienced significant trauma and his upbringing was marred by physical and other abuse and significant instability. He was suffering from post-traumatic stress disorder, and the Crown accepted this, and the Crown said that is one of the special circumstances in his case. 5. General deterrence must still be a feature but, given his background and life history, there can be some moderation of that and only some very limited weight to specific deterrence. 6. In his situation, as that of Mr Gordon and in respect of that I took into account totality in relation to the balance of parole which will become clear when I announce the sentence, in his case though it became clear from his record that he committed an offence of assault occasioning actual bodily harm after committing the present offence. He committed the present offence on 1 October 2018 but he was not arrested until 8 May 2019 when he was already in custody. The offence of assault occasioning actual bodily harm took place on 10 December 2018. It is not entirely clear but he was out on bail from 9 or 10 September and then he went back in on 19 December 2018. He was bail refused for the assault occasioning actual bodily harm from that date and then he was not arrested on this matter until 8 May. Then by the time the case came before the Court, that was 14 August 2019, in the Local Court her Honour took into account time bail-refused when sentencing him to a 15 month community correction order. 7. In my view, the sentence to be imposed should commence on 8 May 2019, taking into account the principle of totality and the Crown did not seek to be heard on that, nor did Ms Gidlow, rather than the August date because he was from the May 2019 date bail-refused in relation to this matter. He was not on conditional liberty at the time. 8. At the time of the offending he was only 21 years and 1 month, he having been born on 9 September 1997. In my view, given his attitude towards this offence, his prospects of rehabilitation must be guarded. On the other hand, weight must be given to favourable to him in respect of remorse and prospects of rehabilitation given the plea and his young age and hopefully the circumstance that maturity will assist him in addressing the clear effect that his background has had on him. 9. I do not have any view in relation to whether he will or will not re-offend. That is a very difficult task and the Court is neutral in relation to that. I have made reference to some degree of general deterrence. 10. I have taken into account the matters noted in s 3A Crimes (Sentencing Procedure) Act. 11. This has been a difficult sentencing exercise because the offending behaviour was serious. I must take into account the maximum penalty in relation to the offence. As against that, each presented a strong subjective case and I have applied intuitive synthesis in coming to the sentences I intend to impose.