District Court New South Wales Medium Neutral Citation: R v Walker [2020] NSWDC 464 Hearing dates: 19 June 2020 Date of orders: 23 June 2020; 25 June 2020 Decision date: 23 June 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to term of imprisonment of 2 years 3 months 2 weeks imprisonment; non-parole period 6 months 2 weeks imprisonment. Catchwords: SENTENCE – Crime – robbery – victim not known to offender – drug use – paranoia – unplanned – opportunistic – history of anti-social behaviour – principal carer of his father – making positive changes to his circumstances – plea of guilty – special circumstances Legislation Cited: Crimes Act 1900 Cases Cited: Dipangkear v R [2010] NSWCCA 156 Lee v R [2019] NSWCCA 15 McCullough v R [2009] NSWCCA 94 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) Stephen Francis Walker (Offender) Representation: Solicitors: Mr D Wilcox-Watson (DPP) Mr Ford (Offender) File Number(s): 2019/00193635 Publication restriction: No Judgment 1. Mr Walker, what I am going to do is I am going to sentence you to a term of imprisonment but I am going to fix a non-parole period that will permit your release immediately. The practical difficulty is in order for that to be done arrangements need to be made for a Community Corrections officer to release you to parole. That can be done either by the Registrar or the Community Corrections Office. 2. You probably appreciate at the moment we have what we call COVID-19 restrictions affecting a lot of things. You have been in custody at least up until partway through that crisis. And it is not like it normally is in our court, where I have Corrective Services officers and I have people readily available to do things for me. I do not have people to sign orders and the like. 3. So what I am planning to do, Mr Walker, because the law, and common sense and procedural fairness, requires me to give reasons I will give my reasons and then I will make the formal orders on Thursday at 2pm. And I will grant you bail until 2pm on Thursday. The only thing that will cause me to change my mind of course is if something dramatic happened in terms of your conduct, in which case I would hear from your counsel and find out whether I ought to vary the anticipated order I make. 4. OFFENDER: Sure. 5. HIS HONOUR: What I am proposing is a term of imprisonment with a non-parole period. I am not proposing an Intensive Correction Order. So you will be on parole and if you breach your parole the Parole Authority will revoke your parole most probably and you will have to go into custody until they tell you that you are free to be released. 6. The prisoner Stephen Francis Walker appears today for sentence in relation to an offence contrary to s 94(a)Crimes Act 1900. That is an offence of what is sometimes called "robbery" simpliciter, and that offence carries a maximum penalty of 14 years' imprisonment. 7. The offence was committed by the prisoner on 19 June 2019. It has had something of an unusual course on its way to sentence before me. The prisoner was arrested, I am informed by the Crown, on 20 June 2019. As I understand it he was on bail for six days after being charged, had his bail revoked on 30 August 2019, and remained in custody until 9 March 2020. My understanding from the cover sheet is that is a total period of time in custody of 199 days. 8. The anticipated orders that I make will require a commencement date and I will need some assistance from the parties in relation to that. But giving the prisoner full credit for the time spent in custody my approximate calculation is the sentence I impose should commence on or about 7 December 2019, but I will seek assistance from the parties in due course as to that date. 9. The prisoner was committed for sentence on 21 April 2020 from the Nowra Local Court. At that stage he had been released to bail. I am told that he pleaded guilty at the first reasonable opportunity and thus he is entitled to a discount of 25% upon the otherwise appropriate sentence for the utilitarian benefit of his plea of guilty. 10. The facts of the matter are set out in an Agreed Statement of Facts. The prisoner gave evidence before me and his mother gave evidence in relation to matters principally connected with the circumstances of the prisoner's "father". 11. If I could just pause for one moment. Mr Ford, I'll ask you, when I re-read the psychological report there's reference to the prisoner's father, but also reference to his stepfather. The psychological report says he does not know or has hardly had any connection with his "father". So do I understand therefore the man at Greenwell Point that he's caring for is his stepfather? 12. FORD: Yes, stepfather, your Honour. 13. HIS HONOUR: Thank you. I accept that he regards him as his father. It was only when I re-read the history and the psychological report that it became apparent to me that that matter wasn't perhaps explained as fully. But then again, perhaps it's a detail that I overlooked. 14. In any event the victim in this matter was not known to the prisoner. The prisoner was 42 years of age at the time of the offending; the victim was 34 years of age. 15. The victim was minding his own business, pulled over in his car on Greenwell Point Road at Nowra, at about 5pm on 19 June. So around about sunset, at about this time of the year, the sun setting, as I noted yesterday, at 4.53pm. He was speaking on his mobile phone to his "girlfriend". He was on the phone for about two minutes when he noticed a silver coloured car, something like a wagon, being driven by the prisoner, pull up alongside the side of his vehicle. There was a conversation that passed between the prisoner and the victim through the windows of the car. The prisoner asked the victim, "Are you right?" the victim said, "Yeah, I'm okay" and the prisoner repeated, "Are you right, mate?" and the victim said, "Yeah, I'm good". 16. The prisoner then got out of his car and approached the victim who was still in his car. He said to the victim, "You've been driving around my house, scoping me out". I pause for a moment to point out the prisoner, as I understand the evidence, was living at Worrigee at that time, his stepfather, who I'll come to in a moment, lived at Greenwell Point, and his mother, in June of 2019, was living at Greenwell Point because she was then involved in the management of a hotel. That aspect of the matter was not clarified in the evidence. Be that as it may, where the car was parked was not, as I would understand it, near the home of the prisoner. 17. The prisoner yelled, "Give us ya phone. Give us ya phone. Show me". The facts state the victim was "terrified". The prisoner is a bulky man, He is not a huge man, but he is a formidable-looking gentleman and no doubt in the course of confronting the victim in this either agitated or aggressive way the victim had good reason to be concerned for his safety. 18. The victim, in the spirit of reconciliation, endeavoured to show the prisoner the mobile phone call log to prove that he was talking to his girlfriend. He snatched the phone out of the victim's hand and asked for the victim's name, which the victim supplied. The prisoner then said, "Where's your wallet? Where's your licence? Prove it." The victim reached over to the front passenger seat and grabbed his wallet, removed his driver's licence from his wallet and at that point the prisoner reached towards the keys in the ignition. The victim grabbed hold of the keys to prevent the prisoner from taking them. The prisoner snatched the victim's driver's licence from his hand and started yelling at the victim, asking if he knew various people. The prisoner said these words, "You're either a dog or a rat or a cop". The prisoner then said, "See ya, dog", punched the victim twice with a closed fist to the right side of the victim's nose. The victim felt immediate pain and could feel blood dripping from his nose, blood was on his shirt. The prisoner proceeded to walk back towards his vehicle, yelling at the victim. He left the scene in the possession of the victim's phone and licence. 19. The next day the prisoner was obviously identified in some way as being involved. Police executed a search warrant at an address at Worrigee where the prisoner tells me in his evidence that he lives now, I take it he was living there at the time, and a search warrant was conducted in relation to an unrelated matter and a car of similar description to that identified by the victim was found. 20. The mobile phone of the victim was seized. The victim's licence was recovered "on the road nearby". It is not entirely clear whether that is on the road nearby to the prisoner's home or nearby to where the offence was committed. 21. In regard to this matter there are some unusual features of it, having sought in the way I have identified the facts, to identify things that could be said are highly unfavourable to the prisoner. This confrontation with the victim was entirely unnecessary and it is a matter that obviously does the prisoner, no credit. Having regards to the context in which the offence occurred I am not satisfied the prisoner committed the offence "for financial gain". There is no evidence the prisoner tried to sell the phone, or even use the phone, even if he was capable of so doing. There is no evidence that he, in fact, could get access to the phone; that information is denied to me. The prisoner's statements to the victim are highly consistent with a state of "paranoia", even if some of the representations made to the victim by the prisoner were not true or entirely true. As I said earlier I have noted the victim was no in any way close to or in the vicinity of the prisoner's home. 22. But the prisoner was agitated, obviously, and he was agitated in a way that suggested suspicion of the victim. This suspicion of the victim is to some extent explained in the evidence of the prisoner by reason of his return to the use of prohibited drugs, particularly amphetamine type drugs, which can create an aura or feeling of paranoia. Certainly paranoia runs deep in an assessment of the statements made by the prisoner. 23. The fact that the prisoner, of course, was in some way affected by the use of prohibited drugs is not a mitigating factor. I accept that and it is clear that that is so. Of course the fact that the prisoner was driving a motor vehicle in circumstances where he may have been affected by prohibited drugs is a matter of significant concern. But I am not sentencing him in relation to any driving offences. I note, although it was not fully explained to me by anybody, that he apparently has outstanding offences in the Local Court in relation to driving matters. Whether they are related to this day or some other day I do not know. 24. The property of the victim was recovered. The use of force against the victim was unnecessary. The Crown submitted to me that I should find as an "aggravating factor" pursuant to s 21A(2) of the Act that the offence involved "gratuitous cruelty" in that the accused punched the victim twice to the right side of the nose, causing pain and the nose to bleed. 25. I am not satisfied beyond reasonable doubt that the actions of the prisoner, either objectively or seen in the context of the prisoner's perception of the matter, reflects "gratuitous cruelty" as that expression is understood. In fact, an examination of authorities makes it very clear that "gratuitous cruelty" is concerned with the infliction of pain as an end in itself. That is, needless yet intentional violence committed simply to make the victim suffer. I could not conclude that the prisoner's punching of the victim constituted infliction of pain as an end in itself. It was unnecessary, that is true. 26. The definition of 'gratuitous cruelty' is the subject of discussion in the decision of McCullough v R [2009] NSWCCA 94. There the Court of Criminal Appeal observed that: "offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim" are not in themselves offences of gratuitous cruelty. There needs to be "something more for the factor to be present than merely that the offender has no justification for causing the victim pain". 1. The "Butterworths Practice", by reference to a number of other authorities, gives us examples which clearly fall within what one would have thought was the definition of 'gratuitous cruelty'. The use of a pair of pliers to a person's penis and scrotum, the large number of injuries inflicted on a very young child, obviously highly vulnerable, the kicking of a pregnant woman in the abdomen, these are certainly examples of gratuitous cruelty. Notwithstanding the helpful submissions by the Crown on that point I cannot find that as an aggravating factor. 2. With regard to the assessment of the objective criminality of the offender I bear in mind these matters. The property whilst of value to the victim was not substantially valuable. It was recovered, although through no assistance of the prisoner. It did not seem to have any use to the prisoner in the sense of financial advantage, although it was consistent with the prisoner's stated aim of trying to find out if, in fact, the victim, who was entirely innocent in this affair, was using the phone in some way in relation to the circumstances of the prisoner. Consistent, as I said, with the explanation given by the prisoner when he gave evidence before me. 3. In sentencing offenders for robbery offences one must have some regard to the decision of R v Henry (1999) 46 NSWLR 346. I appreciate, of course, the Henry guideline is concerned with armed robbery. Armed robbery, as with robbery in company, is a more serious offence than "robbery" simpliciter. It carries a maximum penalty of 20 years' imprisonment and the guideline set out by the learned Chief Justice in that decision at [162] makes it very clear that an integral part of the consideration of the appropriate sentence for an offence under s 97 includes a consideration of the character of the weapon used by the prisoner. In this case there is no weapon other than the use of his fists. 4. But having said that, over the years many authorities of the Court of Criminal Appeal in reflecting upon appropriate sentences for robbery have had regard to the guideline, making allowance for and factoring in, of course, the substantially lesser maximum penalty for "robbery" simpliciter. 5. If one were looking at some of the characteristics of a typical offender and offence this prisoner does not fit within the guideline very well. He was not a young offender with little or no criminal history. But then again this victim was not a vulnerable person. Although he was alone on the highway I have no reason to conclude as an adult male that he was vulnerable as that expression was used in the guideline judgment. Bearing in mind, of course, the guideline judgment precedes by several years the operation of s 21A which sets out additional aggravating and mitigating factors to be taken into account in sentencing for all offences, including many of the matters that are referred to in the guideline judgment. I also point out by reference to the "guideline judgment" the observation, in the context of the four to five year guideline for armed robbery offences, that the learned Chief Justice pointed out, that aggravating and mitigating factors will justify a sentence below or above the range and that a number of circumstances particular to the offence of armed robbery might render offences more serious. Many of those matters, in fact all of those matters, identified by the learned Chief Justice in the judgment, do not apply in this matter, bearing in mind there was no weapon, there were no other offenders involved, there was no substantial financial loss to the victim et cetera. 6. There is one other feature of Henry that is relevant in this particular matter, accepting the evidence of the prisoner about his drug use at the time of the offending, his history of drug use and the psychologist's report. That is the fact that in that guideline judgment Wood J gave, in a separate judgment to the Chief Justice, consideration to the issue of drug addiction and drug dependency in sentencing offenders for armed robbery offences. His Honour's observations have been adopted in relation to other robbery offences and also in relation to other offending. It comes from Henry, and it is commonly accepted, that drug dependency and drug use is not a mitigating factor in sentencing. But it may be relevant in a range of ways; it may be relevant to an assessment of the objective facts, the impulsivity of the offending for example, and it may be relevant in certain subjective ways, prospects of rehabilitation, or whether an offender is at the crossroads, are some of the matters that his Honour identified at [273]. 7. I am satisfied on the evidence available to me, both the agreed facts and the evidence of the prisoner, that the offence was unplanned. It was "opportunistic". It was an offence to be fairly said without "reason". But that is little consolation for the victim, to be accosted by a complete stranger for no good reason whatsoever. It makes the prisoner's conduct more inexplicable. The prisoner could not possibly have planned to rob this particular person in the circumstances spoken of in the Agreed Statement of Facts. 8. The prisoner does not have a significant criminal history, but then again he has been in court on other occasions in relation to other offences. His offending starts in 2002 when he is about 25 years of age. He has been convicted of drink driving offences, he has been convicted of crimes of violence. He was convicted of a common assault in December 2003 for which he was fined. He was convicted of common assault, assault occasioning actual bodily harm on two occasions and escaping police custody for offences committed in October 2011 when he appeared at the Nowra Local Court in May 2012. For those offences he was given terms of imprisonment suspended under s 12 of the Act, an option not available nowadays. He was called up in relation to breaches of those bonds I have noted, in November 2013 and placed on an Intensive Correction Order for a period of up to 12 months, dating from 11 November 2013. 9. He was at the time of the offending with which I am concerned, subject to conditional liberty. He had been convicted at the Nowra Local Court in October 2018 of possessing a prohibited weapon, for which he was fined a modest amount, and also convicted of possessing prohibited drug for which he was placed on a Community Correction Order for 12 months. It is the breach of the Community Correction Order that constitutes the breach of conditional liberty. A breach of conditional liberty is, of course, an aggravating factor under s 21A(2) of the Act. 10. The Community Corrections Service prepared a report in relation to the prisoner. The prisoner's mother, who as I said, gave evidence before me, was interviewed as were other sources. It underlines what I was saying in another matter earlier today that just simply relying upon a psychologist's report with self-serving statements from a prisoner is barely sufficient when there is an opportunity to obtain reports from the Community Corrections Service interviewing people independent of the prisoner. 11. The Community Corrections Service confirms a history of "antisocial behaviour", but not a significant history. He certainly does not get a great deal of credit from his record. In fact, his criminal history might not entitle him to any special leniency. It is certainly not an aggravating factor in this matter. I bear in mind the relatively late time at which he commenced offending. 12. He has provided details of, and the Community Corrections Service is aware of, a history of substance abuse, but he claimed to Community Corrections, as he said to me in his evidence, he had not used illicit substances since June 2019. Since he was released on bail he has commenced intervention treatment with the Shoalhaven Drug and Alcohol Service, of which he gave evidence. This is confirmed by Community Corrections. 13. He acknowledged to the Community Corrections Service the victim had not provoked him in any way. He acknowledged that the use of prohibited substances can have a negative impact on his behaviour and increases his risk of violence-related behaviour when under the influence. This is a matter recognised too in the psychological report and I will come to that shortly. 14. He has had some treatment for mental health instability. He is the subject of current AVOs in relation to his stepfather and another man. He acknowledged the wrongness of his actions towards the victim and showed insight in relation to the effect of his offending. 15. I point out in relation to this matter, and it is no criticism of the Crown or anybody else for that matter, I do not have a victim impact statement. But I am prepared to accept that the victim was greatly impacted by the conduct of the prisoner. 16. He is willing to engage in community-based work if required. He was polite and forthcoming according to the Community Corrections officer. His previous supervision in 2014, presumably in relation to the ICO, was considered "satisfactory", but he is regarded as being at a medium risk of reoffending, which I think is a fair assessment. And it is acknowledged in the report that he requires a number of interventions, particularly those addressing alcohol and other drug use, and following a mental health treatment plan. He is suitable to undertake community service work if required, but that is not an option that, in my view, is available in this particular matter. 17. As I said, the prisoner and his mother gave evidence. Most of that evidence was addressing issues relating to the care of his father. 18. The prisoner ordinarily would have remained in custody until he appeared before me, particularly having had his bail revoked last year. However, he appears before me off bail and it is a matter that ultimately, to some extent, works in his favour. Because in the context of the steps he has taken since release on bail in early March one can see that he is making some positive steps towards not only rehabilitation, but ultimately addressing issues that inform the circumstances of the offending. 19. Out of his evidence I accept these matters in conjunction with, I hasten to say, the evidence of his mother. Firstly, that the prisoner lives with his two daughters, one of whom is only 19 and has just had a child. He has been receiving treatment for bipolar disorder for a period of time. Since his release from custody particularly, he has been primarily concerned with the care of his father who has a terminal illness; his father's terminal illness being the reason that he was granted bail to provide care to that person. His father lives at Greenwell Point, as I earlier mentioned, his father is separated from the prisoner's mother. The prisoner's mother can provide some assistance to the father, but the father, notwithstanding an existing AVO that apparently was taken out against the prisoner by the father, draws comfort from the care provided by the prisoner. I accept the prisoner is the principal carer of his father. His care of his father involves providing him with breakfast, lunch and dinner, assisting him throughout the day, although not staying with him all day, to attend to needs such as bathing and the like, and ultimately seeing him into bed. The father is adamant that he does not wish to be placed in a nursing home. If the prisoner is unavailable to care for his father then the prisoner's father will be required to go into a nursing home because he is incapable of looking after himself. As I said, the evidence is that his condition is terminal. He also has, complicating his cancer condition, dementia and what has been referred to as "Alzheimer's". 20. I accept the prisoner is greatly concerned about his father's welfare. Whilst his daughter can provide some assistance to the grandfather, with her newborn child her assistance is limited. 21. I accept in the context of the evidence of the prisoner and the mother that it is important for at least the future immediate care of the father that the prisoner be able to provide that care. One of the complications in this matter is this, that the prisoner's mother, as I said, had a managerial role up until the COVID‑19 crisis, at the Greenwell Point Hotel. That apparently closed once there were social distancing restrictions in place. She lost her employment. Whereas she once lived at the hotel she now lives in rented premises at Callala. She is determined to obtain employment wherever she can and she has been offered the opportunity of employment, possibly in Narooma. Certainly, it seems as though any employment that she will obtain will be away from the Nowra/Greenwell Point district, and thus the expectation is that even though she can provide some assistance to her former partner, the prisoner's stepfather, she, in a practical sense, is not able to do so. 22. One point I should make about the prisoner's evidence, at the risk of being accused of being entirely gullible, is the fact that he did impress in these respects. I take it he is not a professional witness. He probably has not given evidence before and if he has it would be on a limited basis. He, particularly in the course of cross-examination, made it very clear to the Court in these terms, that since he got out of custody, released on bail, he had done nothing wrong. He said to me, "I've been doing my best, trying to do the right thing by my family". I am prepared to accept that is true. As I said, he has taken a number of positive steps, apart from continuing care for his father, to try and address the matters that are underlying the offending with which I am concerned. Not that I am suggesting for a moment that drug use or drug dependency provides some justification for his conduct. 23. I have not lost sight of some negative things that have emerged from the psychologist's report. I have borne in mind a history of some dysfunction and disadvantage arising out of his upbringing. But the truth of the matter is I am not dealing with a young offender more vulnerable to those influences now. He is a mature man; he has children of his own. He did suggest that exposure to physical abuse as a young person at the hands of the person for whom he now cares had normalised, in his view, "aggression as a means of coping with distress". 24. He disclosed to the psychologist that as an adult his "impulsivity and poor anger control has contributed to past offending". He volunteered, "In addition to frequent fights with strangers he'd been asked to leave venues such as pubs". He acknowledged in relation to his relationships that he had exhibited "controlling and emotionally abusive behaviours". He noted, however, that since being charged in relation to this particular offence he had shifted away from the way in which he normally would manage his anger. He told the psychologist that he now engages in "consequential thinking, reads, exercises, walks his dog and adopts deep breathing techniques to reduce his distress". The psychologist opined that it was "positive that he had gained insight into his aggression with improved adaptive coping strategies that have been successful in moderating his anger". 25. I pause for a moment to point out that his criminal history does not reflect the degree of anger, violence, controlling and intimidating behaviour that he admitted to the psychologist. Yes, he has convictions for assault occasioning actual bodily harm and assault, but normally for a man of this age with those self-admitted characteristics, particularly characteristics of controlling his partner and the like, you would expect to see more domestic violence related assaults, more breaches of ADVOs and the like. So the prisoner must be given credit for his frankness in his communications with the psychologist. As I said, there are aspects of his evidence that impressed me, and in particular the way in which he stated and articulated his desire to improve in the future. 26. I bear in mind from the total effect of his evidence and the history he gave to the psychologist that he has been in regular employment for most of his adult life. He completed an apprenticeship in plastering and apparently has worked in this business for most of his adult life, although he has been unemployed for some short period of time. He presently is receiving Centrelink benefits, but he may also be endeavouring to obtain a carer's benefit for the care of his father. 27. He has had an unremarkable medical history. But he has received medication, as I have earlier indicated, for bipolar disorder and has had inpatient admission for treatment in relation to that condition. He continues to consult a medical practitioner in relation to that condition. He is also seeking to participate in a suboxone detoxification program to assist him in avoiding the use of prohibited drugs, with an ingrained history of that prior to this offending. 28. The psychologist undertook some rudimentary psychometric assessment. The prisoner "impressed as a low average functioning person intellectually", but felt that his cognitive potential had been dampened as a result of his illicit drug use for over 30 years. But he did not report any significant neurological concerns at interview. 29. Whilst noting his history of violence and his proclivity for resolving confrontations in a violent way it was also noted that in part, this may be explained by negative role modelling. He has a history, it is said, of oppositional and antisocial traits and has difficulty regulating his emotions in these circumstances. However, he was able, in a clearer mind than he was on the day of the robbery of the victim, to express insight, regret and remorse for having offended, and victim empathy. And he expressed that to me in the evidence he gave last Friday. 30. He has made positive changes to his circumstances. He has motivations to do that; the welfare of his own children and the welfare of his father in the absence of other people to assist. It is to his credit that he has, notwithstanding the chequered history he has had with his father, taken on these responsibilities. 31. It was felt by the psychologist he would benefit from drug and alcohol counselling and, of course, maintaining medication to avoid the use of prohibited drugs. He also would benefit, it was said, to receive direction in relation to anger control and to help him develop risk management strategies to reduce the likelihood he will reoffend. That would involve some psychological counselling. He needs to develop, it is said, a highly structured and productive personal routine. It seems as though the routine he has with his stepfather is assisting him in that regard. He needs to return to stable employment, of course, but then again stable employment in the past has not stopped him using drugs. So he has many things to address in the future. 32. I do not propose to go back to his mother's evidence. I think the key parts of his mother's evidence I have earlier identified. 33. Arising out of all this evidence there were obviously important matters for me to determine; the object seriousness of the offence. Of course setting upon somebody on the side of the road for no good reason, assaulting them and taking their property, is a serious offence. But in the range of offences of robbery, contemplating a range of violence, the extent of property that might be taken, the context in which the offence occurred, this is obviously not the most serious offence of its type. Although I am not required to determine where it fits by reference to the middle range of objective seriousness, I might have contemplated it being below the "middle range of objective seriousness", having regard to all the circumstances. 34. That having been said, the offender is not the worst offender to commit such an offence and it is to be noted in his criminal history there are no prior offences of robbery, nor any offences of significant dishonesty. Most of his offences are concerned with drug use, misuse of motor vehicles or violence. Albeit it is to be recognised robbery is an offence of violence. 35. With regard to the way in which the case was argued, probably from the perspective of the parties at least, but to my mind not the only matter I had to consider, was the issue of whether this was a case that gave rise to what might be called the "exceptional circumstances" that might cause a court to depart from what should otherwise by the appropriate penalty by reason of the dependency of third parties upon the prisoner. I received detailed submissions from the Crown and the defence on those matters and the oral submissions of the parties largely concentrated on that aspect of the matter. 36. It is well known, of course, that only in exceptional circumstances will the hardship to family members or third parties play a significant role in the sentencing of offenders. Obviously hardship to third parties can be relevant in a range of ways, but to depart from what would otherwise be the appropriate penalty, having regard to the objective and the subjective facts, by reason of hardship to third parties is not a common occurrence. In that regard, of course, it is always to be noted that when someone is going to be sent to gaol there will be hardship to third parties who are dependent upon a relevant prisoner. 37. In the decision of Lee v R [2019] NSWCCA 15, Hoeben CJ at CL and Rothman J and Price J, Price J being the Chief Judge of my court, adopted what Whealy J had said in the decision of Dipangkear v R [2010] NSWCCA 156, that in summary: "Where all the features of a particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentenced may be shortened, or the non-parole period decreased. Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person". 1. I am satisfied if the prisoner was to return to prison this would have a significantly deleterious effect upon the prisoner's stepfather and that the prisoner's stepfather and his welfare will be advantaged significantly by the prisoner's presence in the community. 2. In this particular matter, of course, having regard to the objective seriousness of the offending I could not fix a term of imprisonment that would warrant what his Honour in that judgment contemplated as suspension of a term of imprisonment. Of course that alternative is not available to me, nor is the only alternative other than full-time custody that is available under current sentencing law, and that is a sentence by way of Intensive Correction Order. In my view to represent the purposes of sentencing of general and personal deterrence the term of imprisonment must be greater than two years. 3. But all the purposes of sentencing that are relevant here, recognising the harm to the victim, denouncing the conduct of the prisoner, considering the promotion of the rehabilitation of the prisoner as well as personal and general deterrence taken together, in my view, do not ultimately require me to fix a sentence in the sense of the fixing of the non-parole period that would require the prisoner's immediate return to custody. 4. In that regard the alternative that may be available in a particular case, discussed by Whealy J, that is of shortening the non-parole period or decreasing the appropriate non-parole period, is the alternative that I have considered as pertinent and applicable in this particular case. 5. In that regard I note the following matters as they are relevant to assessing the issue of the appropriate non-parole period. Firstly, the time the prisoner has already spent in custody is obviously a relevant matter. Although, if the appropriate non-parole period was greater than that already served by the prisoner then I would have fixed an appropriate non-parole period. In that sense I am satisfied on the evidence available to me that the prisoner is relevantly remorseful or contrite according to the particular sub paragraph in s 21A(3). I am satisfied on the basis of the steps the prisoner has taken since his release from custody that the prisoner has good prospects of rehabilitation and if he follows through with the matters that he has spoken of, and which the psychologist has written, then he is a person, in the context of a criminal history that does not speak of an antisocial attitude all the time, who is unlikely to reoffend. 6. I have already taken into account the mitigating factor of lack of planning in the assessment of the objective facts. The plea of guilty, of course, is a mitigating factor but for that the prisoner receives the discrete discount that I have earlier identified. 7. By reference to the written submissions of his counsel it is acknowledged that his breach of conditional liberty is an aggravating factor. I have taken that into account in the assessment of his prospects of rehabilitation. I note in that regard, as I have earlier pointed out, that even though he breached the s 12 bonds, when he was placed on the ICO he responded favourably to supervision at that time. His record of prior convictions is not an aggravating factor. 8. The learned Crown Prosecutor made particular submissions on the issue of gratuitous cruelty, which I have already dealt with. And his oral submissions largely centred on that issue and also the relevance of the circumstances of his father. I have taken into account those matters raised by the learned Crown. He took me to the circumstances of the offending and the assessment of the objective seriousness of that offending. Of course if I was satisfied beyond reasonable doubt that the prisoner had engaged in "gratuitous cruelty" then the objective seriousness of the offending would have been considerably enhanced. 9. The Crown conceded in its submissions that the motivation of the offending did not appear to be financial gain, but did appear to arise out of the mistaken belief the victim was following the offender. Again, it is no consolation for the victim that that was a mistaken belief. But that is a highly relevant matter to the assessment of the objective seriousness of the offending. Whilst the value of the phone is not known, as the Crown points out, ultimately it was recovered. 10. The Crown acknowledged a number of the subjective considerations available from the evidence known to the Crown at the time of the written submissions. The mental condition of the accused I have considered in the context of whether of itself it required lesser weight to be given to general deterrence or to reducing the moral culpability of the offender or giving greater weight to specific deterrence. But, whilst I acknowledge, that mental health background that I have summarised, and the prisoner's need for assistance in relation to that, that enhances the finding of special circumstances that I have made, I cannot see a causal connection between the prisoner's bipolar condition and the offending. Although I do not deny that it may have some underlying association with the prisoner's dependence upon or use of prohibited drugs at the time of the offending. 11. The Crown submitted that the s 5 threshold had been crossed and obviously that is so. The Crown said, however, that the only appropriate penalty would be one of full-time imprisonment. But for the circumstances of the prisoner's father and, of course, as I have said, the impression the prisoner made upon me as to his commitment to the future, I would have agreed with the Crown's submissions. But having taken into account all the evidence available to me and giving the matter some mature reflection, I have ultimately determined that I should fix a term of imprisonment with a non-parole period that will permit the prisoner's release from custody on the making of the order. 12. As I foreshadowed to the prisoner and to the learned Crown Prosecutor and counsel for the accused what I propose to do is stand the matter to Thursday when counsel for the prisoner is available. I will list the matter at 2pm. THURSDAY 25 JUNE 2020 1. In relation to the matter of Stephen Francis Walker I gave my reasons in relation to this matter a couple of days ago, but because of the COVID-19 situation there were no relevant authorities here at court to process the prisoner in light of the prospective release date I foreshadowed, because it is required of the offender consequent upon my orders that he be released to parole and he has appeared before me off bail. He does not appear in custody. 2. The order I make in relation to the prisoner is as follows: Of the offence to which he has pleaded guilty he is convicted. He is sentenced to six months two weeks imprisonment by way of non-parole period commencing on 8 December 2019 expiring according to the Corrective Services calculator on 21 June 2020. I fix a balance of sentence of one year nine months imprisonment expiring 21 March 2022. I have adjusted the total sentence slight upwards to ensure that the balance of sentence is an even number of years and months. Of necessity the non-parole period in the circumstances has to be one of months and weeks. 1. You should be released to parole today Mr Walker, but the effect of the sentence is that you are subject to parole supervision for one year, nine months. If you breach your parole, if you fail to comply with the parole conditions fixed by the Parole Authority, if you commit further offences your parole will be revoked, you will go back into custody and you will remain in custody until such time as the Parole Authority either releases you to parole again or alternatively that your sentence expires. ********** 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: 20 August 2020