District Court New South Wales Medium Neutral Citation: R v Lin [2021] NSWDC 70 Hearing dates: 4 February 2021 Date of orders: 4 February 2021 Decision date: 04 February 2021 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Aggregate sentence imposed one of two years and four months to be served by way of Intensive Correction Order. Catchwords: CRIME — Violent offences — Armed robbery — Offensive weapon CRIME — Custody of prohibited weapon CRIME — Property offences — Goods in custody Legislation Cited: Crimes Act 1900 (NSW) s 97(1) Weapons Prohibition Act 1998 (NSW) s 7(1) Crimes (Sentencing Procedure) Act 1996 (NSW) s 3A Cases Cited: Bullock v The Queen [2016] NSWCCA 131 BP v The Queen [2010] NSWCCA 159 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Director of Public Prosecution (Crown) Kyle Lin (Offender) Representation: Counsel: Mr J Chin (Crown) Mr J Kalantar (Offender) Solicitors: File Number(s): 2020/7408 Publication restriction: Nil SENTENCE Introduction 1. The offender, Mr Lin, pleaded guilty in the Local Court and adhered to those pleas before me to the following offences. The first being that on 4 January 2020, in Redfern, he attempted to rob Lorna Zhou of money whilst being armed with an offensive weapon, namely what appeared to be a car key. That is an offence under s 97 subs (1) of the Crimes Act and it carries a maximum of 20 years imprisonment. There is no applicable standard non-parole period. 2. The second offence is an offence that on the same date he possessed a prohibited weapon, namely a flick knife, with a nine centimetre blade without being authorised to do so by a permit. That offence is an offence under s 7 subs (1) of the Weapons Prohibition Act and has a maximum penalty of 14 years imprisonment and there is an applicable standard non-parole period of five years. The offender acknowledges his guilt in relation to an offence of goods in custody, the amount being $7,971.05 and asks that I take that into account when imposing the sentence on possess prohibited weapon offence. 3. In the circumstances of that offence here, the offence on the Form 1 does not have a significant impact upon the sentence I will impose on the prohibited weapon offence. The Facts 1. The facts are agreed and the following is taken from them. 2. At about 9.10am on Saturday 4 January 2020 the victim, Ms Lorna Zhou, left her boyfriend's apartment on Cope Street, Waterloo. She walked north along the western footpath of Cope Street towards Redfern Railway Station. Just north of the laneway connecting Cope Street and Regent Street Ms Zhou saw two males walking towards her on the footpath. One was this offender and the other was the co-offender Brandon Foo. As the males approached her this offender grabbed her by the front of her black hoodie on the right side of the collar. She was understandably startled and this offender said "Give me your fucking money". The co-offender held what Ms Zhou thought was a car key to her face. The end of it was almost touching her face. She said "I don't have any money on me". The offender was still holding Ms Zhou and shook her a little and kept repeating "Just give me your money". The co-offender kept motioning the weapon towards her face and said, "we're going to shank you". Ms Zhou said "I don't have any money". This exchange went on for a little while. The offender still had hold of Ms Zhou's hoodie. She was wearing a dress with her hoodie over the top. Ms Zhou grabbed the offender by his wrist. She then said "Seriously dude I don't have any money, I'm just going to go now". This offender said "Just give me your money." Ms Zhou said, "Dude look at what I'm wearing, you can tell I have nothing on me, just leave me alone I am going to go now". This offender said "You got fucking lucky today". The offender then let the victim go. The offender and the co-offender walked off in the opposite direction to that of the victim. 3. When they were about ten metres away, Ms Zhou turned around and took a photo of the two offenders. She then walked to Redfern Police Station and reported the incident. There is no doubt that the victim showed extraordinary bravery in my view during the interaction with this offender and the co-offender and great nerve to take a photograph of them and take it to the police to ensure that they were apprehended. 4. The offender and the co-offender then attended the Mountbatten Hotel in Haymarket at around 10am. They sat in an area with the poker machines. The assistant manager of the hotel was notified that a knife had been found on a seat situated near the back wall of the smoking area where they were seated by the poker machines. After watching the CCTV footage which showed that the knife fell from this offender's pocket, the assistant manager called the police. The police attended at about 11.40am. After watching the CCTV footage they approached the offender. He is reported as being co-operative and acknowledged that the knife belonged to him. He said "I live in Greenacre, so I'm kind of scared for myself, so I just try to keep it for my own protection." He acknowledged the knife had fallen out of his pocket. He was placed under arrest and he was searched and police located a sum of cash on his person which is what relates to the goods in custody. 5. He was interviewed by the police. He told them the flick knife had been given to him by an uncle, that he has had a few people try to jump him, and he has pulled out the knife "and they got scared and so after they beating me up they fucked off". He said the knife had never been applied to the body of another person but had been used to threaten a person in self-defence. He said "I've used a knife to threaten someone. When I'm threatened, I threaten back". The flick knife was shown to have a nine centimetre blade, when un-sheafed it was approximately 22 centimetres in length. 6. He gave an account about the source of the cash which I will not read onto the record, it was a fairly implausible account in my view. 7. On 9 January 2020 police officers attended a residence in Greenacre. Both offenders were asleep and they were arrested and they declined to take part in an interview. Objective seriousness 1. I turn then to my assessment of the objective seriousness of the two offences. Relevant to the assessment of the level of seriousness of the armed robbery offence are the objective factors discussed in The Queen v Henry, the guideline judgment. Sentencing has moved on since that decision and it is important to isolate only the objective factors in the guideline in assessing objective seriousness. 2. A car key was what was used it appears in the armed robbery, not a knife, so there was less of a risk of a significant injury being caused to the victim, than if a knife or some other weapon had been used. I note it was the co-offender who put the key to the victim's face and it was the co-offender who told the victim "we're going to shank you", i.e. threatened her with it, although of course this was a joint criminal enterprise. The offence was clearly unplanned and somewhat opportunistic and of relatively short duration. The level of violence administered by this offender to the victim was relatively low although I have no doubt that the victim would have felt very frightened during the offence. As I said a little earlier, the victim clearly showed great bravery in resisting the offenders. Nothing was actually taken from her. The offence was committed in company with the co-offender, which in these circumstances, I consider is an aggravating factor. I assess the attempted robbery offence as being below a notional mid-range offence but not at the bottom of the range. 3. The prohibited weapon was a flick knife with a nine centimetre blade. Such weapons can be easily concealed and are often used for a criminal purpose. It was possessed in licensed premises, hence, in a public place. The fact that the offender asserted he had it for a defensive purpose is not a mitigating factor. Given, however, the type of weapons encompassed by this offence, I consider that the objective seriousness of this offence is towards the bottom of the range for such offences. The offender's subjective case 1. I turn then to the offender's subjective case. His date of birth is 27 August 2001. He is currently 19 years of age and he was 18 at the time of the offence. He is therefore what the criminal law often terms a young adult offender, and the principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give greater weight to rehabilitation and treatment than general deterrence, denunciation and retribution when sentencing a young adult offender. See the summary of principles in Bullock v The Queen [2016] NSWCCA 131 referring to BP v The Queen [2010] NSWCCA 159. 2. The offender has no criminal history, and his lack of a criminal record entitles him to some leniency in this sentence. He was held in custody from the day of his arrest, being 9 January 2020, until 4 April 2020 before being granted bail by the Supreme Court. That was a period of some two months and 25 days. Sentence Assessment Report and psych reports 1. In terms of his subjective case, there is before me a sentencing assessment report dated 3 February 2021, a letter from Ms Gavina Lovicu, a psychologist, dated 25 January 2021; a psychological report by Mr Tim Watson-Munro, a consultant psychologist, dated 6 February 2020; and a letter from the offender's caseworker at One 80TC, the drug rehabilitation program, that the offender is undertaking and an updated letter was provided today. The offender also gave evidence on sentence. Family background 1. In terms of his family background, the psychological report by Mr Watson-Munro states that the offender was born in Sydney and that he has no knowledge of his natural father. His parents separated when he was three years of age and he has had no contact with his natural father since that time. He told Mr Watson-Munro that his mother re-partnered and then separated when he was about six years of age. He stated that this was a highly abusive relationship and that he still had clear memories of his stepfather's abuse towards his mother. The offender reported that he believes that the absence of a stable father figure and role model had an impact on him. I understand his mother has re-partnered and the offender has a positive relationship with his now stepfather, who with his mother, is in court supporting the offender today. The offender also told the author of that report that he attended three primary schools because of the instability in the home and he reported at some point living with his maternal grandmother. 2. The offender is single and maintains contact with friends from high school. The Sentencing Assessment Report notes that the offender's mother is supportive but does not appear to understand the extent of his drug use Education and employment history 1. In terms of his education and employment history, the report of Mr Watson-Munro states that the offender attended a number of primary schools including Fort Street Primary School. He was a student at Randwick Boys High between Years 7 and 10 and then enrolled in Homebush Boys High until the end of Year 10. 2. He completed Year 12 just prior to the commission of these offences and he has not engaged in employment or education since then. The evidence is that he left home to live at his co-offender's premises during the Higher School certificate exams. He is currently not working and he is in full-time residence at the One80TC rehabilitation program. He intends to work with his stepfather upon his discharge from that program. Substance use 1. In terms of his substance abuse he told the author of the Sentencing Assessment Report that since the age of 16 he has engaged in poly substance use consisting of cannabis, Xanax, ketamine, MDMA and cocaine. Apparently he has never abused alcohol and has a low tolerance for it. The Sentencing Assessment Report notes that the offender has been engaged with the One 80TC residential rehabilitation program since 16 November 2020. 2. He gave evidence that he had previously, when granted bail by the Supreme Court, spent five months or so in another drug rehabilitation facility full-time, although relapsed into drug use and was expelled from the program. 3. In his evidence he said he considered his current rehabilitation program was addressing his addiction issues more appropriately. 4. According to the Sentencing Assessment Report his current rehabilitation provider has advised that the offender's attitude to maintaining his absence in the community is considered over confident. He did not come across as over confident in the witness box, but I accept people are sometimes very different in the witness box than they are in "reality". 5. In the latest report from the rehabilitation facility it notes he has remained abstinent from illicit drugs and alcohol and is progressing well. I understand it is a 12 month program and he entered it only in November last year. His treating psychologist's letter notes that he was very open and honest about his drug use and acknowledged the impact of his difficult childhood and on his choice of coping strategies. 6. Of course the fact the offences were committed while addicted to drugs is not a mitigating factor on sentence. Psychological/psychiatric history 1. In terms of his psychological history the report of Mr Watson-Munro states that he is suffering a severe and recurring depressive disorder which in part appears to be related to poor self-esteem issues and a dysfunctional life. Part of that depressive disorder might also be related to the fact he is a very young man facing sentence for a very serious offence. Response to supervision if relevant 1. The offender is willing to engage in ongoing supervision and behaviour change and I have already noted the program that he is engaging in which has some months to run. I also note he incurred no disciplinary infringements in the gaol system during the time that he spent in custody according to his custody record. Attitude to the offence 1. In terms of his attitude to the offence, the offender reported to the treating psychologist that he was very remorseful about how his choices had impacted upon those around him especially his mother. He told the author of the Sentencing Assessment Report that he could not remember the commission of the offence due to ongoing drug use for several days preceding the commission of it. He denied he threatened the victim with a weapon but also stated that he does not remember the offences. He said in evidence he had very little memory of the events, but given what he told the police about the prohibited weapon, I think it may be that he remembers more than he is prepared to let on. It may be he finds it difficult to confront precisely what he did that day. 2. The offender categorised the impact of the offences to the author of the Sentencing Assessment Report on the victim as horrible and said that the victim would have been terrified. He claimed he was pressured by his co-offender to commit the offence and was in a vulnerable state of mind due to his substance use. I am not prepared to accept what he said to the Sentencing Assessment Report writer about being pressured by his co-offender. He did say in evidence that he has got no intention of associating with his co-offender again. In his evidence the offender apologised to the victim and appeared to show some insight into the trauma the victim was put through on the day of the offence. Consistent with the bravery the victim showed on the day of the offence the victim was present in court during the sentence proceedings The future and risk of re-offending 1. The offender was assessed in a Sentencing Assessment Report as having a medium risk of re-offending. 2. As I say, he gave evidence on sentence and overall I found him to be an acceptable witness Imposition of sentence 1. He entered an early plea of guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of the plea. 2. On balance I find that there is genuine remorse noting the early plea of guilty, what he said to the author of the Sentencing Assessment Report and his evidence. It is always very hard to know whether or not someone is genuinely remorseful but I think in this instance he is. 3. I consider he has reasonable prospects for rehabilitation. Much will depend upon how he goes in the drug rehabilitation program he is currently in. He has a supportive mother and family. He has no prior record. Provided he can get on top of his drug addiction issues, he should be able to be fully rehabilitated and be a worthwhile member of our community. I noted earlier the two months and 25 days he spent in custody before obtaining bail. In total, as I understand the evidence, he spent approximately seven months in residential drug rehabilitation. I only have evidence about the conditions in the current program. I propose to allow him a period of four months as what is sometimes referred to as quasi custody. 4. There are two distinct offences here, there clearly should be some accumulation of one of the sentences upon the other. 5. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Armed robbery in our streets in particular is very prevalent. People should be able to go about their business without the fear of being the victim of an armed robbery. General deterrence, that is the need to send a message that the Courts will not tolerate such offending, as well as specific deterrence, needs to inform any sentence imposed for armed robbery. Similarly, possessing a prohibited weapon, general deterrence, that is the need to tell the community that possession of weapons like flick knives will not be tolerated, must inform any sentence. 6. The only appropriate sentence is one of imprisonment. I have of course been very conscious of the Henry guideline which, in a case such as this, despite his youth, would suggest that the only appropriate sentence is one of full-time custody. However, it is important to remember that it is a guideline, it is not meant to be prescriptive and it is not to be slavishly followed either in terms of the actual outcome of the sentence or the length of it. 7. The maximum penalties and the standard non-parole period in relation to the prohibited weapons offence have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole period for the weapons offence based on my assessment of the objective seriousness and his somewhat compelling subjective case. 8. I propose to utilise the aggregate sentencing provisions. I have had regard to all of the objective and subjective factors I referred to earlier in arriving at the indicative and aggregate sentence. Just stand up Mr Lin please. 9. You are convicted of the two offences to which you have pleaded guilty. The sentences you will hear me first announce are what are called the indicative sentences. I will then announce an aggregate sentence which is the sentence you will serve. The indicative sentences are as follows. On the attempted armed robbery offence; there is an indicative sentence of two years imprisonment after having regard to the pre-sentence custody and the quasi custody I referred to in these remarks. On the possess prohibited weapon offence there is a sentence of eight months imprisonment. I will not indicate a non-parole period because of the method by which the sentence is to be served. There is an aggregate sentence of two years and four months. That sentence is less than three years and I propose to consider whether or not I should extend the leniency to this offender of allowing him to serve the sentence in the community. 10. The paramount consideration in determining whether he should serve the sentence by way of an intensive correction order, which is a degree of leniency, is community safety. I am satisfied when I have regard to his prospects of rehabilitation, and his young age, that community safety will not be compromised if I allow him to serve the sentence in the community. I am also to assess whether the making of such an order, or serving the sentence by way of full-time detention, is more likely to address his risk of re-offending. Given he is part of the way through a full-time drug rehabilitation program, and he has already spent some time in custody, I think that if he is allowed to serve the sentence in the community, it is more likely to address his risk of re-offending. 11. There is therefore an aggregate sentence of two years and four months. It commences today. It will expire on 3 June 2023. It is to be served by way of Intensive Correction Order. The conditions are as follows. There is the standard conditions which are: you must not commit any further criminal offence; you must submit to supervision by a community corrections officer. The additional conditions are as follows. You are not to take any prohibited drugs and you are to perform 300 hours of community service. 12. You should understand that today you have received a sentence of imprisonment of two years and four months. It's not a good behaviour bond. It is a sentence of imprisonment, a gaol sentence. You are not going to serve it in gaol at the moment. I am going to allow you to serve it in the community with those strict conditions. If you breach the terms of the order then you should understand you will not come back to Court. You will be referred to the State Parole Authority and there is a very good chance that you will end up in full-time custody. You must do everything to comply with the conditions of the order. Just have a seat for a moment. 13. You will be required to contact by telephone Windsor Community Corrections office within seven days of today. You will need to go around to the registry and be provided with a copy of the order. There will be a bit of a wait while the file is written up then taken around there. Mr Roff I'm sure you'll explain to him what he needs to do. Of course I'm sure you and your solicitor will bring it home to him I have extended considerable leniency to him today. He's got his mother in the back of the Court. It is in his power to make sure that he complies with the order and doesn't end up in gaol this time, and to make sure that this is the last time he is in a criminal court with his mother sitting in the back of the Court. Next time there won't be any second chance he'll be going to gaol. Orders 1. The offender is convicted of the offences to which he pleaded guilty 2. Impose an aggregate sentence of 2 years and 4 months, served by way of Intensive Correction Order. The sentence expires on 3 June 2023. ********** 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: 18 March 2021