District Court New South Wales Medium Neutral Citation: R v Barnes [2019] NSWDC 939 Hearing dates: 9/12/19, 18/12/19 Date of orders: 18/12/19 Decision date: 18 December 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Sentenced to imprisonment for 5 years with a NPP of 3 years. Catchwords: Crime – Sentence – Robbery in company Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v R [2013] HCA 37 Mill v R (1988) 166 CLR 59 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: DPP – Crown Jason Barnes - Offender Representation: Ms Brown for Crown Ms N Carroll for Offender File Number(s): 2019/1679 sentence 1. Jason Barnes is for sentence today in relation to an offence of robbery in company which carries a maximum penalty of twenty years' imprisonment and there is no standard non‑parole period that applies to that offence. He also asks the Court to take into account in sentencing him, an offence on a Form 1 document which is an offence of take and drive a stolen conveyance, the maximum penalty for that offence being five years. I note that the offender pleaded guilty to the robbery in company offence and therefore he is entitled to a 25% discount on the sentence that would otherwise be imposed. 2. The facts of the matters are the subject of an Agreed Statement of Facts which in summary form are as follows. At about 9.15pm on Wednesday 26 July 2017, the victim Mr Baringh returned to his home driving his Honda Accord and drove into the secure underground car park of the unit complex where he lived. The gates to the car park remained open for a short period after the vehicle entered and at that time Mr Ebsworth, a Mr Kinder and this offender Mr Barnes, entered the car park before the gates closed. Once inside they effectively followed Mr Baringh as he drove his vehicle down three levels in the car park until he reached the parking space. 3. The victim got out of his car and as he did he was approached by the offender and his two co‑offenders and at that point Mr Ebsworth punched the victim twice near his right eye then used his foot to cause the victim to fall to the ground which the victim did, landing on his right elbow. Mr Ebsworth then kicked the victim in the hip area, grabbed him by his shirt and flung him against a concrete wall which resulted in the victim hitting the back of his head against the wall. At that point both of the other offenders, one of them being Mr Barnes, effectively surrounded the victim and prevented him from escaping. 4. At that point Mr Ebsworth said to the victim "Give me your wallet" which the victim did. Mr Ebsworth then grabbed the victim's shirt near his neck and pulled him up so he was standing and said "Give me your phone" which the victim did and handed over an iPhone. Mr Ebsworth then said "Give me your car keys" and the victim handed over his car keys. Ebsworth then said "Give me your remote" and the victim said that it was in his car. Ebsworth then got into the victim's car and sat in the driver's seat saying "Give me your remote" and the victim showed him where the remote was. The victim then said "My wallet has my driver's licence" and Mr Ebsworth handed back the wallet upon which the victim removed the driver's licence and two bank cards before Ebsworth snatched the wallet back off him. Still inside the wallet was a St George bank card, $50 in cash, a photo ID card, an ATM card and a private health insurance card. 5. The victim then walked to the lift and went back to his unit where his sister called triple‑0. This offender and Mr Kinder got into the victim's car which at that point was being driven by Mr Ebsworth, Mr Barnes taking the front passenger seat and then Mr Ebsworth reversed the vehicle from the parking spot hitting a concrete support column which caused the front bumper bar and the numberplate to be almost completely ripped from the vehicle. Ebsworth then got out and effectively tore the bumper off the car with his bare hands and drove out of the car park with the other two offenders in the car. 6. Just before 3.30am the Honda Accord which had been stolen from Mr Baringh which was easily identifiable because of its missing bumper bar and numberplate, was seen to enter a 7‑11 store on Richmond Road at Blacktown. Shortly after leaving that service station that Honda was involved in a police pursuit which was ultimately terminated by police due to safety concerns. Later the Honda was found abandoned on Girraween Road near the Great Western Highway at Girraween. 7. Police conducted a forensic examination of the Honda and fingerprints matching this offender were found on the rear quarter window and his DNA was found on the steering wheel. On 31 July 2017, so about five days later, the offender was arrested for unrelated offences and it was not until 7 January 2019 that he was charged over the matters to which I have just referred. 8. As the Courts have stated on numerous occasions, robbery is not simply a crime against property but a crime against persons. An offender convicted of robbery in company must ordinarily expect to receive a fulltime custodial sentence except in unusual and exceptional circumstances. Ms Carroll, counsel for the offender, appropriately conceded that the offence is a very serious example of a robbery in company given the unprovoked and violent nature of the attack on the victim. While I note that this offender did not personally inflict blows on the victim, counsel accepted appropriately and as the law states, that this offender is nonetheless responsible for those actions given his participation with his co‑offenders in robbing the victim. His active participation in the robbery is clearly set out in the Agreed Facts where it is noted that after the co‑offender Ebsworth had effectively punched and pushed the victim to the ground and then thrown him against a concrete wall, this offender participated with his co‑offenders in surrounding the victim to prevent his escape. 9. The robbery offence was clearly premeditated in the sense that the three offenders entered through the security garage doors then followed the victim as he drove down three levels before setting upon him. I have had regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346 and while that was a case concerned with the offence of armed robbery, it has commonly been applied by analogy to offences of robbery in company. 10. In Henry, the Court of Criminal Appeal noted a number of factors which are common in offences of that kind, the relevant ones for the purpose of this offence being in my view as follows. Firstly, a young offender with no or little criminal history. In this case while the offender is relatively young it cannot be said in his favour that he has no or limited criminal history. Secondly, whether there was a limited degree of planning. While there was some planning in this case in the sense that the three offenders placed themselves at the point of entry of the victim's premises and then followed him, I regard the planning as fairly limited. Thirdly, the question of whether there was limited or any actual violence. As already noted there was considerable violence in this case. Fourthly, whether the victim was in a vulnerable position such as a shopkeeper or taxi driver. The victim in this case was in neither of those particular categories and although he was vulnerable in the sense that he was alone in a car park confronted by three assailants that type of vulnerability will usually be an ingredient of a robbery in company offence. Fifthly, whether there was a small amount taken. On the agreed facts and particularised charge the property taken was fairly limited being an iPhone, a wallet and car keys. Sixthly, the presence of a plea of guilty the significance of which is limited by a strong prosecution case. I consider that this factor is present in this case given that the offender's fingerprints and DNA were located in the victim's car. 11. The Court of Criminal Appeal in Henry said that in an offence which involves the common factors which the Court identified, some of which I have just referred to, head sentences should generally fall between about four and five years. In my view the circumstances of this case involve enough of the common Henry elements that I must treat that decision as an important guide in the sentencing exercise. The decision in Henry is however a guideline only and must be applied with due regard to the particular circumstances of the case. 12. The objective seriousness of this robbery offence must in my view be regarded as very serious. The robbery offence is aggravated also by reason that it was committed in the home of the victim which, in my view, must include the secure garage area underneath his residence. Furthermore, both the robbery and the take and drive conveyance offences are also aggravated because they were committed while the offender was subject to conditional liberty by reason of a suspended sentence of twelve months which was imposed at Parramatta Drug Court only three weeks earlier. 13. Turning to subjective matters, the offender's subjective case has been placed before the Court via a psychological report. He is currently twenty‑three years of age and was twenty‑one at the time of the offences. He had a troubled upbringing, having been taken into State care when he was an infant and he knows little of his parents. He was introduced to his mother when he was fourteen but described this as an awkward experience and he has struggled to maintain contact with her since. 14. He told the psychologist that as a child he had been through about twenty different foster placements and although he denied any abuse or neglect, this experience left him with the belief that there was something bad about him. When he was about thirteen he started associating with negative influences and was transferred to the Orange/Parkes area but continued to struggle with feelings of rejection and abandonment and with adapting to a rural environment. He spent the majority of his adolescence in juvenile detention. While I have taken into account this background in formulating the sentence that I regard as appropriate, I note that it was not submitted that the principles identified by the High Court in Bugmy v R [2013] HCA 37 should be applied. 15. It is positive that during this most recent period in custody he has completed EQUIPS courses relating to aggression and addiction and also has earned a certificate of achievement in the Young Adult Satellite Program at Macquarie Correctional Centre. There is some history of mental disturbance in the offender's family and he told the psychologist that he was himself diagnosed with schizophrenia and bipolar disorder at the age of fourteen, as a result of which he was placed on medications. It is of concern however that he apparently has not been on any of those medications for five or six years but currently takes Temazepam to manage his mood. 16. The psychologist concluded that the offender requires treatment for his methamphetamine and cannabis use because although he has participated in the EQUIPS Addiction Program, he nonetheless requires treatment and requires more intensive drug rehabilitation to give him the skills to avoid relapse once he returns to the community. The psychologist noted that treatment will need to be culturally sensitive and specifically address the offender's sensitivity to rejection and abandonment if it is to be effective. In this regard she recommends that referral to the culture specific Ngara Nura Program at Long Bay Correctional Complex be considered. 17. The psychologist suggests that psychosocial factors such as education and/or vocational training, employment, suitable housing, the avoidance of negative peers and pro‑social support in the community will also be needed to support his rehabilitation. I accept that this is so and this conclusion is supported by the psychologist's observation that the offender exhibits some signs of institutionalisation. I note also that the offender told the psychologist that he has only ever worked one day in his life which poses a challenge for him and the community in terms of his prospects of rehabilitation on release. 18. The Court has received a Sentencing Assessment Report which is of little assistance to the offender because of its suggestion that he minimised his involvement in the offences, displayed little insight and is at a high risk of reoffending. However, counsel for the offender submitted that I ought not draw any adverse conclusion from this report and the Crown effectively concurred with that position. I will therefore refrain from drawing adverse inferences against the offender by reason of the contents of that report. Having regard to these matters, the offender's criminal history and all the circumstances of the case, I am unable to reach an optimistic view as to his prospects of rehabilitation and risk of reoffending. 19. There is some evidence of remorse and contrition which was expressed to the psychologist in the form of regret for his offending when he said "I know I shouldn't have done it. He" - that is the victim - "probably worked hard for it and probably felt threatened and unsafe". While this expression of remorse was not supported by evidence on oath, I will give it some weight in the sentencing exercise. 20. Another factor for consideration in this case arises from the delay between the commission of the offences and the date on which the offender was charged with them. In this regard I note that on 4 May 2018 he was sentenced in the Parramatta Drug Court to an aggregate term of six years with a non‑parole period of four years, each to date from 11 June 2017. That sentence was imposed in relation to two offences of drive whilst disqualified, an offence of driving a vehicle taken without the consent of the owner, an offence of obtain property by deception, an offence of destroy or damage property, an offence of common assault and the most serious offence, one of aggravated drive motor vehicle with person inside the vehicle committed in company. Notably that most serious offence and one of the disqualified driving offences were committed only one day after the robbery offence for which I must impose sentence. The offender's current non‑parole period is due to expire on 10 June 2021. 21. It was argued on behalf of the offender that I should structure any sentence so as to accumulate the head sentence but leave intact the current non‑parole period in an attempt to achieve an overall result resembling that which it was argued would have been likely if all offences including the offences for which I must sentence, had been dealt with at the same time. A Court when sentencing an offender who is serving an existing sentence must ensure that the overall sentence is just and appropriate to the totality of the offending behaviour. The Court must in considering the totality of the criminal behaviour, ask itself what is the appropriate sentence for all offences. The proper approach is to ask what would have been the likely effective head sentence and non‑parole period if the offender had been sentenced for all offences at the one time - see Mill v R (1988) 166 CLR 59 at paras 66 to 67. 22. I have had regard to these principles and the submission by the offender that any sentence I impose should not extend the offender's current non‑parole period. However, in my opinion to adopt that course would fail to acknowledge the serious nature of the robbery offence for which the offender must be sentenced and would not represent the minimum period that he must spend in fulltime custody having regard to the elements of punishment including rehabilitation, objective seriousness and the subjective circumstances. Also, in my view to adopt that course would not give sufficient weight to the importance, which is significant in this case, of deterring this offender from committing similar offences in the future and of deterring others. 23. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and particularly the need for adequate punishment, for deterrence as I have mentioned already, of the need to protect the community, of the need to promote the rehabilitation of the offender and to make him accountable for his actions, to denounce his conduct and to recognise the harm done by the offences. 24. I am satisfied, having considered all alternatives, that the only appropriate sentence in this case is one of fulltime imprisonment. In imposing penalty I have taken into account the offence referred to on the Form 1 document and of course I have also taken into account the 25% discount by reason of the early plea of guilty. 25. I impose a head sentence of five years. I find special circumstances for varying the ratio between the non‑parole period and the head sentence based on the need for an extended period on parole so as to monitor Mr Barnes' transition into the community, his psychological condition and the importance of his abstinence from illicit drug use. I therefore impose a non‑parole period of three years. Having regard to the principles that I have referred to in relation to the offender already being subject to existing sentences, I have given consideration to the date upon which that sentence that I have imposed should commence and I intend to backdate it to a slight degree. Each of the sentences will commence on 11 September 2019. The non‑parole period will expire on 10 September 2022 and the head sentence will expire on 10 September 2024. ********** 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: 03 September 2020