District Court New South Wales Medium Neutral Citation: R v Kenworthy [2020] NSWDC 572 Hearing dates: 13 August 2020; 4 September 2020; 28 September 2020 Date of orders: 28 September 2020 Decision date: 28 September 2020 Jurisdiction: Criminal Before: ADAMS QC ADCJ Decision: Full time imprisonment Catchwords: CRIME - robbery in circumstances of aggravation, namely the use of corporal violence Legislation Cited: Crimes Act NSW 1900 Children (Criminal Proceedings) Act 1987 Cases Cited: R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Office of Public Prosecution (Crown) Karim + Nicol Lawyers (Accused) Representation: Counsel: S Climo of Counsel (Accused) Solicitors: K Bombell, Solicitor (Crown) N Karim, Solicitor (Accused) File Number(s): 2019/322982 Publication restriction: None Judgment Introduction 1. The offender Kyle Kenworthy is before the Court for sentence for the offence of robbery in circumstances of aggravation, namely the use of corporal violence, contrary to s95(1) Crimes Act NSW 1900, which carries a maximum punishment of imprisonment for 20 years. There is no standard non parole period. He pleaded guilty in the Local Court and is entitled to a discount of 25% in respect of any sentence of imprisonment that may be imposed. The offender has spent 10 months in presentence custody for this matter, which must be taken into account. As will be seen, the offender is presently subject to a Control Order pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 commencing on 29 January 2020 and ending 13 December 2020, with a non-parole period of 6 months and 9 days, ending on 6 August 2020.) Facts 1. The following narrative is taken from an agreed statement of facts which was tendered in the proceedings. At about 11:40pm on 16 September 2019 the victim was starting to close the tobacconist shop where he worked. The till contained about $2000-$3000 in cash. The shop is open plan, with a storeroom and washroom at the back. On the left wall is a counter containing display cabinets, a cash register and a wooden slab that opens towards the back to allow access to the storeroom and behind the counter. 2. The victim was sitting at the counter when the offender entered the shop and yelled, "Give me the money". The offender was wearing a cap and a scarf around the bottom half of his face and brandished a stick about 3 feet long. The offender continued to demand money while waving the stick at the victim and jumped over the counter to the side the victim was on. The offender was 2 to 3 feet away and, pointing towards a shelf under the counter with some paperwork on it said, "Money? Where is the money? What is this?" the victim said, "That's the money there" and pointed to the cash register. The offender then raised the stick above his head struck the victim on the right side of his face just below his right temple, knocking his reading glasses off and causing a scratch which bled. The victim opened the cash register and gave the offender the $50 and $100 notes in the till, saying "That is all the money". The offender said, "Give me all the $20 and $10". He was still holding the stick and the victim therefore complied. 3. The offender then asked, "Where is your mobile?" the victim said, "It is important to me, I cannot give you my mobile". The offender responded, "Give me the mobile and go to the back room, [or] I will beat you" and began pushing the victim towards the storeroom. The victim grabbed his mobile phone from the counter and placed it in his pocket. He opened the wooden panel at the counter to exit. The offender attempted to stop him by grabbing and pushing him. As the victim left the counter, the offender followed him. A physical exchange broke out, during which the victim pulled off the offender's cap and scarf and the offender pushed the victim in the chest into the display cabinet behind him which broke the glass window. The offender then ran out of the shop into the street, leaving the stick in the shop. 4. Shortly afterwards a passerby, who heard glass breaking inside the shop and saw the offender running out covering his face with his hands, entered the shop and talked to the victim about what it had happened. CCTV obtained from a nearby hotel picked the offender at the entrance counting a significant amount of cash, the proceeds of the robbery (likely $2000 - $3000). On 15 October 2019, DNA obtained from the white cap was found, consistent with that of the offender. He was arrested on that day. Criminal record 1. On 29 January 2020 the offender was convicted of 2 offences committed on 13 May 2018 being sexual intercourse without consent and common assault. In respect of the first offence, the Control Order to which I have already referred was imposed, with special circumstances consisting of "mental issues" leading to a reduction of the statutory non-parole period and, in respect of the second offence, a bond under s 33(1)(B) for 18 months under the supervision of the NSW Probation Service. On the same date the offender was convicted of having custody of a knife in a public place and larceny, both offences having been committed on 10 November 2018. The charges were dismissed with a caution. On 21 May 2020 the offender was convicted of the offence of attempting to escape from lawful custody on 17 September 2019 and was sentenced to a term of imprisonment of 8 months commencing on 17 September 2019 with a non-parole period of 6 months ending on 16 March 2020. Subjective features 1. Tendered on the offender's behalf without objection were the reports of Dr Peter Ashkar, psychologist, which dealt with the offender's personal situation and Dr Andrew Ellis, psychiatrist dealing with the impact of restrictions in the corrections environment imposed because of the risks presented by the pandemic. The offender also gave evidence, which I thought was truthful. The following account of the offender's background is taken from Dr Ashkar's report and the offender's evidence. 2. The offender is 19 years of age and was born and raised in Sydney. He has 3 younger sisters, none of whom have problems with drugs or crime. His father (a white Caucasian man) was in gaol much of his childhood, while his mother (an Aboriginal woman) worked hard to support the family. (It was his father's return to gaol for a breaking and entering offence that was the trigger for the offender's intoxication on the evening of the offence.) The offender described a happy childhood with no history of domestic violence, parental substance abuse or childhood trauma or abuse. He tried to act as a father figure for his sisters during his father's absences. He had problems with attention and concentration at school but had not needed to repeat a year. He was suspended in secondary school for a time but managed to complete year 10. He started a carpentry apprenticeship after leaving school but left after 6 months. He worked for a municipal council for 12 months after that and then started a plumbing apprenticeship in which he is in his 3rd year and hopes to complete. His employer has offered work when he is released. The offender grew up playing rugby on the age of four and in 2019 was playing first grade, with a scholarship to play for the Penrith Panthers. He was involved in the Redfern Land Council as a Eora Gadigal member. The Council board met over weekends, dealing with programs to help the community. He plans to return to playing football on his release. He is single and has no children. 3. The offender began using alcohol at the age of 17 years but says he did so only socially and denied drinking in large amounts, though he binged when stressed with his father going to prison. He used Xanax (off script) for the first time during the day/evening of the offences but denied any other use of that or any other drug, illicit or otherwise. 4. The offender is physically healthy with no medical history of concern other than perhaps from a car accident in 2016 to which I shall shortly come. He has sustained brief concussions from time to time playing football but has never required hospital attention and there does not appear to have been any brain injuries of lasting consequence from these events. On neuropsychological assessment, he was calm and socially appropriate and otherwise normal in his reactions. There was no sign of cognitive slowing. Visual-spatial/constructional skills appear to be intact although difficulties were noted with his processing of more complex visual material. He demonstrated weaknesses in his verbal intellectual skills and in areas of higher level/executive thinking involving visual abstract reasoning and inhibition (functioning at the "extremely low" level in the 2nd percentile) but Dr Ashkar thought these were consistent with his limited engagement in learning at school and his general history. He reported symptoms of anxiety and mood disturbance following from the car accident but there was little to suggest he is presently experiencing active symptoms. 5. The offender told Dr Ashkar that he had attended the Casino with friends earlier on the evening of the offence and had consumed somewhere between 6 and 10 beers and a tablet of Xanax (i.e. benzodiazepine). He took the Xanax to relax as he was angry with his father for his return to custody for breaking and entering. He had not used Xanax before and had no experience of its effects. He said he began to stumble, slur his words and become drowsy. He claimed to have no memory of the offence because of his intoxicated state, although he was able to describe some aspects of it to Dr Ashkar as: "It just took me over … I got this rush of thinking I can do anything I want … This rush of anger … It just come over me". The offender told Dr Ashkar of his offence: It was "putting a person's life in danger … He works hard for his money … I'm not above the law … [The victim would have been] scared, upset, shocked, everything under the sun". He said "It was never my intention to go out and rob … Stupidity, very silly of me … I feel very remorseful … I am sorry for hurting him and his family … Now that I've had this 12 months to reflect on my actions, I would never pick up a drink, never again take [Xanax] … I want to go back to football … I want to get on the straight and narrow". 6. As mentioned, the offender was involved in a car accident when he was 16 years of age and sustained head injury. He also witnessed a serious injury suffered by a friend. He was admitted to Lithgow Hospital. He has suffered from migraine headaches and nosebleeds thereafter. His mother said that she felt his memory had been affected by the accident and he had become anxious and nervous. The offender himself was unable to recall what he was told at the hospital about the head injury but felt that his mood had changed. He became anxious, paranoid and hypervigilant, reporting sleep disturbance, nightmares, flashbacks of the car accident and poor concentration. A report of 5 November 2019 from Ms Vanessa Edwige, expressed the opinion that the offender had sustained a mild traumatic brain injury and developed post-traumatic stress disorder. 7. The offender has been in custody since his arrest. Although he has adjusted reasonably well, not having been charged with any rule violations and trying to make good use of his time, working 5 days a week (packing rations), he has felt intimidated by the level of serious violence he has witnessed. Before the changes brought about by the pandemic, he was visited by family and friends. 8. Dr Ellis's report deals mainly with restrictions which likely to be imposed in the face of the pandemic, essentially involving the reduction or abandonment of personal visits, access to various services, including education and psychological, movement of prisoners and availability of exercise. Although there is no evidence before the Court of the actual conditions presently subsisting or proposed (except that visits have been terminated and can only be effected by AVL), I think it fair to act on the basis that, whilst the risk of infection remains, severe limits on the freedom of prisoners to interact within corrective institutions will necessarily be imposed and some adjustment should be made to the term of imprisonment to take account of this issue. 9. Also received into evidence was a letter written by the offender's maternal grandfather who was an elder from the Eora Gadigal tribe. He speaks eloquently of the offender's loving connection with his mother and sisters and points to his achievements from playing football to working. He states that the offender's use of violence was an aberration. It is clear that the offender will benefit from the close support of his family. Assessment 1. When considering sentencing for aggravated robbery offences, it is necessary to have regard, as a relevant reference point, to the guideline judgment of R v Henry (1999) 46 NSWLR 346 although it is specifically directed at the offence of armed robbery with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900. The guideline refers to cases with the following characteristics – 1. Young offender with no or little criminal history. The offender was 18 years of age at the time of the offence with a limited criminal history. 2. Weapon like a knife, capable of killing or inflicting serious injury. The offender used a stick that was three feet long, possibly capable of inflicting serious injury. 3. Limited degree of planning. There was limited planning involved in the commission of this offence. 4. Limited, if any, actual violence but a real threat thereof. The offender struck the victim on the head, causing a scratch that bled. 5. Victim in a vulnerable position such as a shopkeeper or taxi driver. The victim was a shopkeeper. 6. Small amount taken. Between $2000 and $3000 was taken. It is not a small amount. 7. Plea of guilty, the significance of which is limited by a strong Crown case. The offender's plea in this case entitles him to a discount of 25%. I accept that he is remorseful. His plea of guilty is consistent with remorse although the Crown case was a strong one. 1. The Henry guideline suggests an offence with the above characteristics will generally fall between 4 years and 5 years for the full term of imprisonment but this would need to be discounted in an appropriate case. As Spigelman CJ made clear, however, the list of characteristics is not exhaustive and it is necessary to consider all the relevant objective and subjective features of a case before determining a sentence. 2. A number of matters are submitted by the Crown to be aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Act). The first of these is the actual or threatened use of a weapon: s 21A(2)(c). However, this is to some degree implicit in the use of corporal violence, which is an element of the offence. Though use of the stick is an aggravating factor, it should not be counted twice. Secondly, the Crown refers to the fact that the offender was on bail at the time of the offence: s 21A(2)(i). I accept that this feature must be taken into account. 3. The offence was to a substantial degree impulsive and spontaneous, although the offender had first armed himself with a stick and had attempted to disguise himself. Considering the range of circumstances that can give rise to an offence under s 95(1), the circumstances of this offence lie towards the lower end of objective seriousness. I appreciate that the Henry guideline supposes a young offender but this does not mean that the actual circumstances of a young offender should be disregarded. Here, the offender was only just an adult with overall less than average and, in several important respects, significantly less than average functioning. This qualifies his moral culpability and highlights the importance of the factors of rehabilitation in his case. 4. The offender's very low functioning at executive decision-making, combined with his anger at his father's return to gaol and his intoxication, disinhibited him significantly and contributed to his decision to commit this offence. There is no evidence that the offender habitually misuses alcohol or abuses drugs. He is genuinely remorseful. I conclude that his offence was an aberration and, with family support, employment and appropriate supervision, he is unlikely to offend again. 5. The emphasis on rehabilitation when sentencing young people is based in part on the recognition that they can reform and, with increased maturity, develop the means to behave pro-socially if they wish to do so. It is important to provide an opportunity for rehabilitation. His talent for and interest in sport, available family support and work are positive factors in this regard. Although youth cannot become a licence to commit crime, it is in the public interest to deflect criminal tendencies if there is a reasonable basis for doing so. 6. The subjective features to which I have referred provide, when taken together, special circumstances that justify departure from the statutory calculus prescribed by s 44 of the Act. This is aimed at providing a greater period of supervision than would otherwise apply. Also relevant in assessing the non-parole period is the impact of the pandemic on the extent of and manner in which prisoners can mix as well as the absence of face to face visiting. Sentence 1. The starting point for the sentence to be imposed is three years imprisonment which results, when discounted by 25%, in a term of two years and 3 months commencing 15 October 2019. To allow for an appropriate period of supervision on release, the non-parole period is 1 year. The offender will therefore be eligible to be considered for release on parole on 14 October 2020. 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: 30 September 2020