District Court New South Wales Medium Neutral Citation: R v Campbell [2020] NSWDC 908 Hearing dates: 13 November 2020 Decision date: 27 November 2020 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Sentenced to an aggregate term of imprisonment of 7 years 3 months; non-parole period 4 years 3 months. Prisoner referred to Drug Court for consideration for admission into the Compulsory Drug Treatment Program Catchwords: CRIME – sentence – enter dwelling house with intent to commit serious indictable offence – people there – robbery with offensive weapon – little planning – not armed on arrival – no injury to victims – no threats with weapon - offences committed while on conditional liberty – extensive criminal history as a juvenile – first time in gaol as an adult – dysfunctional and disadvantaged upbringing – no experience of normal community living - remorseful – institutionalised – upon release will need help with drug counselling, pro-social living and employment – good prospects of rehabilitation CRIME – sentence – entering premises with intent to commit serious indictable offence - in company – larceny - robbery simpliciter – offences committed while on conditional liberty – unidentified co-offender – threatening and intimidating behaviour – pleas of guilty - totality of criminality Legislation Cited: Children's Criminal Proceedings Act Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v R [2013] HCA 37 Harris v R [2005] NSWCCA 204 Holder & Ors v R [1983] 3 NSWLR 245 Hunyh v R [2005] NSWCCA 220 Kentwell v R [2013] NSWCCA 266 Mill v R [1988] 166 CLR 59 Pearce v R [1998] 194 CLR 610 R v Henry (1999) 46 NSWLR 346 R v Henry (1999) 46 NSWLR 346 Tilyard v R [2007] NSWCCA 7 Veen (No.2) v R [1988] 164 CLR 465-477 Yardley v Betts (1979) 1 A Crim R 329 Category: Sentence Parties: Regina (Crown) Isiah Campbell (Offender) Representation: Solicitors: Mr M Belcher (DPP) Mr J Hibbard (Offender) File Number(s): 2018/00390298 2019/22383868 Publication restriction: No Judgment 1. The prisoner Isiah Campbell appears today in relation to a number of offences committed at different times. There are a series of offences that he committed on or about 19 December 2018 at Coledale. Those offences are that he did enter the dwelling house of Scott and Jennifer Lowe at Coledale with intent to commit a serious indictable offence, therein namely larceny, in circumstances of aggravation, namely knowing persons present. This is an offence contrary to s 111(2) of the New South Wales Crimes Act and I am told by the Crown carries a maximum penalty of 14 years' imprisonment. There is no standard non-parole period. 2. There is a related offence, in fact intimately related offence, of armed robbery with an offensive weapon committed at the same place at the same time of Scott and Jennifer Lowe of certain property, namely two mobile phones, some Australian currency and a "men's watch" belonging to those persons. The offensive weapon is a knife. 3. There is a matter on a Form 1 that is related to the entering of a motor vehicle without consent. It is a very minor matter by comparison to the matters for sentence and in fact I was told by the Crown that it carries a maximum penalty of four penalty units. It is really a matter concerned with the prisoner entering a motor vehicle prior to his arrest where he was arrested by the police and in the context of the 'guideline judgment' in relation to Form 1 matters from 2002, which I will come back to shortly, it is not a matter that substantially increases the totality of the criminality with which I am concerned. 4. Those offences as I said were committed in late 2018. The prisoner was arrested on 19 December 2018. He was granted Supreme Court bail on 30 April 2019 and failed to appear at the Wollongong District Court as I understand it in answer to that bail and I will come back to the circumstances of that shortly. Whilst on bail in relation to that offence he committed two offences, one contrary to the same provision relating to the Coledale affair pursuant to s 111(2) Crimes Act 1900 and another offence of robbery simpliciter (s 94 Crimes Act 1900). 5. The offences that he committed at Bondi occurred on 27 November 2019. The two offences to which he entered pleas of guilty at the Local Court were entering the Bondi Icebergs Club at 1 Notts Avenue Bondi, with intent to commit a serious indictable offence, namely larceny in circumstances of aggravation, that was he was in company of an unknown person. That is an offence contrary to s 111(2) Crimes Act 1900 which I have already described with the same maximum penalty of 14 years imprisonment. 6. The robbery simpliciter carries a maximum penalty of 14 years imprisonment, whereas armed robbery carries a maximum penalty of 20 years imprisonment, and that is the offence of robbing Jacob Cochrane of certain property, namely a Samsung mobile phone, New South Wales Driver's Licence and a wallet. I will come back to the facts of all those matters shortly. 7. With regard to some of the background matters I am required to take into account, obviously offences committed whilst on bail are matters committed contrary to, or in breach of, conditional liberty and that is an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999 which I will herein after refer to as "the Act" where necessary. 8. The offences committed at Coledale, the earlier offences which I described, were committed whilst subject to parole as a result of a court order in respect of an order pursuant to the Children's Criminal Proceedings Act, that is, a 'control order'. The non-parole period expired on 12 December 2018. So the prisoner's non-parole period in relation to that control order had expired on 12 December 2018. 9. I have calculated from the time the prisoner has been in custody, and I note in relation to the second set of offences he was arrested on 5 December 2019 some days after the offence, that the total amount of time the prisoner had spent in custody, admittedly broken by release to bail, is one year four months and three days. I have calculated that with both the assistance of the material provided to me by the Crown and also by my own calculation of the custody record of the prisoner. I am required to give full credit to the time the prisoner has spent in custody and therefore as I have foreshadowed I propose to date the sentence at this stage from 23 July 2019, subject to correction by the parties which I have invited them to consider. 10. The prisoner was 18 years of age when he committed the offences at Coledale. He was born in August 2000. He had turned 18 in August of 2018. The prisoner is now 20 years of age. He was 19 years of age when he committed the offences on 27 November 2019 at Bondi. It is self-evident from what I have just said that the Coledale offences were, as with the other offences, committed in breach of conditional liberty but a different conditional liberty than existed as at November 2019. 11. I have read an updated report in relation to the revocation of his parole. It provides some evidence of the prisoner endeavouring to address some matters whilst he was on bail pending his sentence proceedings in Wollongong, but without great enthusiasm I must say. He is a man with a myriad of issues that require very intensive support and in part he had difficulties in relation to matters such as employment because he did not have a driver's licence and as I discovered in his evidence before me, he was unable to get Centrelink benefits whilst on bail. The revocation report noted his charging in relation to the Coledale matters at Wollongong and his pleading guilty at the Local Court on 19 June 2019 and thus he was in breach of his parole order which may have been a reason for him not appearing off bail. Although he did tell me one problem was that he was in breach of his bail anyway, through no fault of his own, because his address given to the Supreme Court disappeared when his sister lost her rental premises. 12. Each of the charges I am concerned with at different times was the subject of a plea of guilty at the Local Court. The prisoner is entitled to a 25% discount in relation to the appropriate sentence for each offence in accordance with the legislation relating to early pleas of guilty and recognising the utilitarian value of the pleas of guilty. 13. To deal just firstly with the Coledale facts; the victims were at home, it was the early hours of the morning of 19 December. Inside the home was an adult daughter who read her victim impact statement to me and a foster child who was about nine or ten years of age. The two victims as I will call them, the direct victims of the prisoner's criminality, were adults. I should point out that one of the daughters who read a victim impact statement, I read from the facts, was born in 1987, so that would suggest to me that she was a person that was 31 years of age at the time of the offences. 14. The prisoner entered the dwelling as it is pleaded in the indictment, knowing that there were persons in there, and was detected by the female adult victim, that is the mother of the house, in the bedroom. He was standing with a knife. The knife was one that he had not brought to the house. It is the fact that this house was randomly chosen. The prisoner had no prior knowledge of the victims and it was clear that by his conduct throughout the 20 minutes or so he was in the house to obtain property and not to injure people. He presented the knife to the woman and her husband and demanded property. He gave instruction for them to cooperate. Although he did threaten that if they did not cooperate there would be consequences and was acting in a threatening fashion, neither of the male or female suffered any injury apart from some emotional injury as a result of the prisoner's conduct. 15. He gave instructions to the male to provide the pin to his phone and other instructions in relation to property that he was seeking. The mother of the house said words to the effect to the prisoner, "don't hurt my children" and the prisoner said in response to that, "just do as you're told I'm not going to hurt you I won't hurt the children just do everything that you are told". To be fair, not much consolation to the victims, he was true to his word. In fact it is an important matter for me to point out by reference to some of the contents of the victim impact statements, the prisoner never saw the adult child or the foster child. He never threatened them. The reference to the children by the mother would seem to me to be the first time that he was put on notice of the fact that there were "children" in the house, although one of them was an adult of course not a child. There is no evidence of him threatening to hurt the children or causing them any harm whatsoever. Thus, by reference to some of the comments made in the victim impact statements by the children, one through a counsellor, I need to bear that in mind. 16. In any event he obtained various property, giving instruction including a request for keys to the car of the adult victims or the parents of the house. At one point he had in his possession two of Mr Lowe's watches. Mr Lowe said, "Can I keep that watch my mother bought it for me she is in a nursing home" and to the prisoner's credit he gave the watch back to the victim by placing it back on the bed. The facts state that the mother was "petrified the offender was going to harm her children". I appreciate her fear in that regard but in the context of the objective facts in my view that was unrealistic as things turned out. 17. The prisoner followed the mother through the house at one point. He held a knife; he was standing quite close behind her, but there is no evidence that he actually threatened her directly with the knife. He certainly did not inflict any injury upon her. In the meantime the adult daughter was able to contact "000" and police arrived at the premises approximately 20 minutes after the prisoner intruded. The prisoner was seen by a police officer following the mother of the house and then he ran back and managed to unlock the external bedroom door and left the house. The mother apparently was quite hysterical. In fact the daughter in her victim impact statement talked about her mother's "blood curdling screams". I do not doubt the mother was petrified and terrified but in the scheme of things I wonder aloud whether screaming assisted the situation. It certainly did not cause the prisoner, if I can use the expression, to lose his temper or "cool" with her, not that that is much consolation to her. 18. In any event police eventually pursued the prisoner. They found a pair of white Nike sneakers in one of the rooms of the house that did not belong to any of the victims and appeared to be identical to sneakers worn by the prisoner when he was picked up on CCTV footage at Coledale Train Station at an earlier time. There were some Christmas presents partially opened and there were various signs of interference with electronic goods. When police did a search of the premises they located a pack of cigarettes with a sum of currency totalling $60 on the front porch. Another $50 note was located in the front of the side gate, a basketball cap was found as well. It seems within an hour of the prisoner being at the premises he was found inside a vehicle the subject of the matter on the Form 1. He was arrested. 19. He was in possession of two mobile phones and some coins. These were the mobile phones that belonged to the parents of the house and it was subsequent to this that the mother's phone was examined and it was shown that the prisoner had the presence of mind to sign into her Facebook account at about 2 am and send some messages to associates. It is in this context whilst the prisoner claims that he has no memory of this offending because of the ingestion of Xanax and other drugs, I have difficulty accepting that proposition given the presence of mind reflected by his access to the Facebook account. 20. He was arrested. Initially he made partial admissions. When he was interviewed in an electronic interview he denied being inside the house. Subsequently, forensic evidence located in the premises linked him to events inside. As I said, he pleaded guilty at the Local Court. 21. With regard to the victims as I said there are victim impact statements from the mother which I have read. The mother in fact and the daughter were waiting outside the Court at Wollongong when I first started this matter and for some reason better known to the authorities, they were not permitted even to come into the courthouse. When I discovered that they were actually present and naturally had been disturbed by the prisoner failing to appear at Court in 2019 and disturbed obviously by the considerable delay to the matter, I directed that they be allowed to come into the courtroom and read their victim impact statements. I agreed to 'hang on' to the matter, if that is the correct expression, even though it was not ready to proceed, to ensure that there was a quick resolution of it. I appreciate that the victims have been under considerable stress with the prisoner first of all being at large on bail and then having this considerable delay which is entirely unacceptable in the circumstances before the matter can be dealt with in Court. The mother spoke of the impact upon her and her family. The intrusion upon their privacy, the compromise of security. Whilst it was dated 23 October 2020 the victim impact statement appears to have been prepared some considerable time earlier because it refers to events up to May 2019. 22. I should point out that in my view the prisoner is not a continuing threat to the victims of these two offences for a number of reasons. There is no suggestion that after his arrest he threatened them in any way. When he was on bail he had no contact with them. They are people unknown to him. It is highly unlikely, unless he read the court papers, he would even remember the address particularly. There is no suggestion of any threats by him to them whilst awaiting sentence in custody again. 23. I have read the foster child's narrative, concerning the activities of the prisoner and the effect upon her. The mother and the adult daughter of the victim have spoken of the effect upon the child. As counsel for the prisoner pointed out this child, a young indigenous child in foster care, appears to be getting the love and affection that has been denied the prisoner practically all of his life which is an irony. We trust that she will come back to embrace her culture. I have already referred to the adult daughter's victim impact statement. I again note, notwithstanding what was contained within the victim impact statement, the very pertinent fact that she was not confronted by the prisoner. She was obviously distressed by the reaction of her mother and what she can understand was going on and the fear that something would happen to her parents. But the truth is they were not injured. 24. With regard to the Statement of Agreed Facts in relation to the Bondi matters, the prisoner entered a loading dock at what is called the "Bondi Icebergs" building at Notts Avenue on the pathway between Bondi Beach and Tamarama and Bronte Beach. I have seen CCTV footage of the movements of the prisoner with an unnamed and unknown co-accused through the loading dock and then through the building. I have viewed many of the material events that are related to the facts with which I am concerned, except for the essence of the robbery offence, because it occurred after the entering of the premises at Bondi, in fact away from the premises it would seem from the facts. 25. The prisoner and his co-accused drove to Notts Avenue in two rather luxurious cars, a silver Lexus and a black Mercedes. There is no evidence as to how the prisoner got access to one or other of those cars and I certainly know he did not have a licence because that is exactly what the revocation of parole document tells me was a bar to him getting employment whilst he was on bail after April 2019. 26. The prisoner has provided no assistance to anybody as to who his co-accused was. So we have a person wandering around the community who no doubt will, on the form of these offences, potentially commit further offences, which this prisoner will not be able to do for some little time. 27. The prisoner and his co-accused came "prepared". The prisoner was wearing rubber gloves. He had black material covering his face and he had a cap on. I saw him, as the facts reveal, go up to level 2 of the premises. He ransacked an office. He grabbed a cash register located behind the bar and attempted to open "the till", while the other co-accused moved around elsewhere in the building. He was ultimately confronted by two cleaners who were just going about their lawful business doing work around the premises. The facts state, although it is difficult to see this precisely in the CCTV footage but you get the sense of what happened, one of the cleaners, after the prisoner chased him when interrupted in the manager's office, grabbed the prisoner by his shirt. The prisoner punched that victim in the face, he fell to the ground and started bleeding and then there was a fight between those two men. It seemed to me, with the greatest of respect to the prisoner's pugilistic skills, that he was no Anthony Mundine. He was gotten the better of as the two men fought with him. The other worker grabbed a chair to defend himself. The prisoner picked up a chair, then he picked up a steel bollard and threatened one of the victims and there was general mayhem in the area of the bar as I saw it. There was also activity at the level below where the co-accused was endeavouring to obtain money from a till as I understand it. The prisoner is seen in the CCTV footage, and reflected in the facts, jumping from what I would understand to be level 2 to a lower level and escaping, but escaping without any property. The victim that the prisoner punched suffered bleeding and swelling to his facial area. The other person who threw the chair at the prisoner or approached him with a chair suffered from a bleeding nose, cuts on his face and elbow, a sore thumb and wrist. 28. As the prisoner was leaving the premises he confronted a man who was a delivery driver for a bakery. The prisoner approached the victim from behind at about 1:42am and I should note that the prisoner entered the Bondi Icebergs at 1:38am. So the events that happened in the Icebergs happened over a very short period of time. After unsuccessfully trying to obtain property from the Iceberg's premises the prisoner was confronted by the delivery driver who saw the prisoner in possession of his backpack. The prisoner ran back to the silver Lexus with the backpack. He placed it inside the vehicle then he approached the victim who had followed the prisoner but approached him in a very threatening fashion which does him no credit whatsoever. He told him he should not have followed him. He took hold of the victim's vest and chest pulling him onto the ground. He said, "You really should not have come back you are probably going to die now. If you tell anyone about this I will stab you. I will tie you up and throw you in the ocean". 1. This must have been very threatening for the victim who was alone. The victim was asked for his wallet, phone, keys and key cards. The victim gave his phone and keys to the prisoner. The prisoner put his hand into the victim's front and rear pants pocket. The victim said, "I don't have a wallet I just carry my ID". The victim ultimately told the prisoner that his wallet was in the van above the steering wheel. The prisoner gave the phone that he had in his possession back to the victim so it could be "unlocked". He told him to change the password or threatened to kill him. He asked for the victim's key card PIN which the victim supplied. The victim heard the offender return to where his van was still parked. Two males who apparently had no connection with entering the Icebergs were there. They apparently must have been with the prisoner, it is not entirely clear. The prisoner has given no evidence about these people at all. One of these people apologised to the victim saying this was not supposed to happen. Eventually the prisoner returned. He asked the victim what the victim's keys opened. When told that they open the house and the car the prisoner said, "Sweet we can use these", but one of the males standing alongside these two people, the prisoner and the victim, said "I'm not taking these" and gave them back to the victim. So there was at least a sense of decency with the people accompanying the prisoner. The prisoner said these words to the victim, "If you tell anyone about this I'm going to hunt you down, kill your wife, your daughter and you". 1. Then he walked off with the others and drove away. That is a very threatening and disgraceful thing to say to anybody and the prisoner should be ashamed of himself whatever his personal circumstances. There is no suggestion whatsoever that he was affected by drugs or in any way incapacitated at the time of the commission of that offence and the related offence, bearing in mind his athleticism during the course of the fight, leaping from the balcony or leaping away from the second level of the Icebergs' premises. 2. The prisoner's is of course a very young man. He was only 18, as I said earlier, at the time of the first set of offences, 19 at the time of the second. But he has a terrible criminal history. Admittedly, nearly all of it in the Local Court or Children's Court. I am mindful of the fact I should say he was arrested on 5 December 2019; that was the second arrest to which he was subject after the Icebergs offence. He was charged with a number of offences, obviously connected with his arrest relating to his conduct towards the police officers and he was given in the Local Court whilst in custody awaiting sentence in this Court, a sentence of three months' imprisonment in total. I have some thought to accumulating the sentences which I impose upon that three months. But ultimately I have determined that the aggregate sentence should be concurrent with those sentences but I haven't lost sight of the fact that the prisoner's conduct is revealed in those charges. 3. Having said all this it is quite clear by reference to some evidence I have from the prisoner, which I will comment about shortly, the prisoner's disadvantage is very much reflected in his criminal history. He appeared at the Kempsey Children's Court when he was 13 years of age charged with summary offences and stealing offences and has a number of appearances at the Kempsey Children's Court the district from where his father comes at the ages 13 and 14, which to my mind, although it would be open to conclude that he had some form of 'conduct disorder' as psychologists and psychiatrists call it, reflected aspects of his disadvantage. But his "criminal history" are primarily in the Children's Court. It reflects a series of offences through 2014 and 2015, 2016 and 2017, largely offences of robbery or robbery in company for which at various times he has received control orders and non-parole periods. For example at the Bidura Children's Court on 20 October 2015 when he was only 15 years of age for offences committed, I hasten to say, when he was only 14 years of age. He was given a 12 month control order with a non-parole period of four months in respect of a robbery in company and a two month control order in relation to assaulting a police officer in the execution of his duty. He appealed in relation to that order and it would appear that he was unsuccessful in that appeal in the District Court. 4. He has a finding of guilt in 2017 for an offence committed when he was 15 years of age of aggravated assault with intent to rob, for which he received a control order of nine months. In April 2017 he has a finding of guilt for entering a building with intent to commit an indictable offence from May 2016, that is the date of the commission of the offence when he was 15 years of age. He has findings of guilt in relation to offences committed when he was 15 years of age for stealing from the person and robbery in company. Those offences committed in November 2015. Again he was ordered to serve control orders for the robbery in company, a control order of seven months with a non-parole period of three months 5. He has a finding of guilt in 2017 for an offence committed when 16 years of age of using an offensive weapon to prevent a police investigation and being armed with intent to commit an indictable offence. For those offences he received modest control orders. He also was sentenced on that occasion for an offence of taking and driving a motor vehicle without the consent of the owner. He has a finding of guilt in relation to an offence of intimidation on 28 April 2017 and then on the same date, he was also sentenced in relation to dishonestly obtain financial advantage by deception and robbery whilst armed with an offensive weapon for which he received a control order of 12 months with a non-parole period of three months. Ultimately he was called up to the Children's Court in respect of breaches in relation to probation for the dishonestly obtain financial advantage matter. 6. He was again had a finding of guilt recorded in the Children's Court on 9 April 2018 for robbery in company. Again he was given a control order of 12 months, nine months being the non-parole period. He has other findings of guilt for robbery in company recorded at the same time with offences committed in July 2017. So therefore, three different robberies in company within days of one another for which he was subject to a control order. 7. Ultimately at the Children's Court he was also sentenced on 9 April 2018 in respect of an aggravated break and enter and commit serious indictable offence with people known to be within the premises, an offence committed in March 2018, to 15 months control order with a non-parole period of nine months commencing on 13 March 2018. That is the matter for which he was subject to parole at the time of the commission of the Coledale offences. I should point out that he has a finding of guilt also at the age of 16 for recklessly inflict grievous bodily harm. 8. The three offences that arose out of the circumstances of his arrest on 5 December are a break and enter dwelling house with intent to steal, resisting a police officer in the execution of his duty and common assault, all committed on 5 December 2019. It seems from that history that he was arrested in relation to the break, enter and steal matter and his detection for breach of bail and then the offences at the Icebergs followed. 9. That is a very formidable history, particularly of robbery offences but has to be understood in the context of other evidence in the case. 10. The prisoner gave evidence in an articulate and considered fashion, having regard particularly to his lack of formal education. He accepted responsibility for his conduct in respect of all of the offences, apologised to the victims, particularly the victims at the Coledale premises. He acknowledged the fear that he would have engendered over the period of time he was in the house. He expressed specific regret for causing fear to the Koori or Aboriginal foster child who he was unaware of in the premises. He explained his failure to appear off Supreme Court bail in respect of the first group of offences as I earlier explained in terms of his sister's accommodation in Minto in Western Sydney being lost because of her failure to pay rent, he being homeless and going back to the use of drugs. He would have, by pleading guilty in June of 2019 to those offences, also have been in breach of his parole and that is something that he should have known. 11. In a thoughtful discussion about his breach of parole he said that one of the difficulties was that he had not been properly prepared as there were not many "pre-release programs" in Juvenile Justice institutions. A document produced by his counsel showed that in a five year period between December 2013 and December 2018 he had spent just over 33 months in custody out of 60 months, much of that period on remand. No doubt associated with matters adverted to in his history given to the psychologist which he adopted in his evidence as true. 12. Whilst in custody he had managed to complete year 10 and undertake some courses but he seems to be poorly qualified for the outside world. The history that he gave to the psychologist adopted by him as true and which I accept to be true, is that he is one of six children, the youngest. His mother died from a drug overdose when he was a toddler. His father, who I have said is from the Kempsey area, had problems with alcohol abuse after the death of his wife and it seems as though the prisoner and his siblings were shuffled between family members. He spent some time on a mission near Kempsey from where his father had come. But his father provided little parental guidance. He had a dislocated and disrupted education. At the age of ten he was removed from his father's care, living in foster homes ironically for a number of months and ultimately wound up living with his maternal grandmother who had her own issues, particularly with alcohol. At a very young age this led to drug usage and offending as represented in his criminal history. 13. He left school midway through year 8. He has no significant history of employment. He has had some association with Shane Phillips' Tribal Warrior Boxing program, but it would be sporadic given the times that he spent in custody. 14. He has an unremarkable medical history. He suffered a broken leg when he was 13 but it did not appear to inhibit him, judging from the CCTV footage that I saw. He had a concussion when he was aged eight. Most significantly he had a history of cannabis use up till the age of 15 as well MDMA, methylamphetamine and Xanax which he claimed to have taken on the occasion of the offences at Coledale. 15. He described many periods of homelessness with no family support. He identified in his evidence, quite impressively, the reasons he failed to live in the community as being, firstly, his use of drugs, secondly his lack of accommodation and, thirdly, his lack of income. Surprisingly he said he never received Centrelink payments because up until the age of 18 he was unable to get the relevant paperwork signed by his father and he has largely been in custody since the age of 18. 16. I dealt with an Aboriginal man from Nowra who was involved in many significant commercial break-ins. He told me, and I accepted it to be true, that he had never been able to get Centrelink benefits even up until the age of 23 because he did not have a birth certificate. His mother had never registered him and he could not provide the necessary identification. 17. He admitted to the use of "bupe" in custody, but explained since the COVID-19 lockdown which started in mid-March 2020 it had been harder to obtain drugs in custody. Whilst in custody on his last occasion he attended Narcotics Anonymous "six or seven times" but there were few other programs available. He told me he enjoyed playing basketball and he made the point that keeping active keeps me out of trouble. He would wish to undertake some form of drug rehabilitation on his release, which he has not really undertaken before, and aims to obtain income and try and find stable accommodation and involvement in sport on his release. 18. He agreed in cross-examination that he told the psychologist who prepared the first report much the same as he told the Court on this occasion. Obviously, he agreed, he had not lived up to the promise of reform that he had made to the psychologist in the first report. He agreed that he told her, as he told the Court here, that he wanted to turn his life around. He also agreed in cross-examination that he had expressed plans for his future which he had not taken up when he had the opportunity when on bail to do so. Although he said there were other factors involved, particularly the loss of his sister's accommodation. It is interesting however to note in the course of his answer from the learned Crown Prosecutor's skilful cross-examination, he said in what I regard as an insightful way as my note records it, I do not have a transcript of the evidence: "I had a lot of doubt about succeeding on the outside because I use drugs to blackout all the anxiety and not focus upon what I should do." 1. Reports were prepared by different psychologists in respect of the first and second group of offences. The first report dated 28 August 2019 setting out his history noted his history of coming in and out of custody with antisocial peers and that he was more vulnerable to negative effects of prison than the average prisoner having regard to his youth. 2. Psychometric assessment endorsed findings of propensity for problematic drug use, impulsive risk taking behaviours but there were no current mental health issues. He had difficulties regulating his anger. He was, "socially confident and prefers to be in a leadership role". It is interesting that was the impression he gave me in the confidence in which he gave his evidence. I am not suggesting he is a con man, but he certainly impressed in his presentation. He impresses far more in his presentation in Court than his conduct towards his various victims impresses. 3. Interestingly the first report suggested that he was, "not motivated to engage in treatment". It would seem his conduct in failing to appear in Court and other matters reflects this. It was said that his offending was a continuation of a pattern of antisocial behaviour with a rapid return to substance abuse on release to parole. There was a recommendation for drug and alcohol counselling and structured activities to help him establish a pro-social peer support network, develop his work ethic and improve his skills for pro-social living. The truth of the matter is the prisoner has never had the opportunity of having anyone to set an example for him, save for perhaps people like Shane Phillips and other in the Redfern community who do provide some leadership in this regard. 4. The next report prepared after he had returned to custody in late 2019, of 13 October 2020, covers much the same history. It additionally notes a childhood diagnosis of ADHD which is not surprising. Some history of paranoid ideation, but not serious depressive illness symptoms, with a low tolerance to anxiety and stress. He has not been prescribed any medications whilst in custody. He appeared, "disinterested in his own welfare". The psychologist said that the presentation qualified for a diagnosis of "poly substance use disorder" in early remission in a controlled environment, that is gaol, and early conduct disorder which I earlier referred, and emerging criminality being indicative of "antisocial personality disorder". Of course these labels disguise or mask a whole raft of causes. The psychologist noted that the offences with which he was charged were precipitated by periods of cumulative dysfunction and, "lifestyle instability having no stable address, no source of income and the use of substances". He also said that the current offences were, "embedded in a chaotic template for community living with no positive structure, antisocial associations and the absence of belief in an alternative way of living". 1. I do not mean to be unkind to the prisoner, but the truth is he just does not have any experience of a normal community lifestyle. He had a broader pattern, it was said, of engaging in, "cumulative poor decisions and poor self-care generating stressful situations where he focused on his immediate needs and acted in an exploitative way to meet these needs." 1. In submissions Mr Hibbard for the prisoner noted the irony of the young Aboriginal girl living with the first group of victims and the support she had to assist her compared to that of the accused and his background. He noted the impact upon the prisoner of a lifestyle of a lack of care, over which he had no control. He submitted that the prisoner was a truthful witness, acknowledging his responsibility and reflected a development of some maturity, and I must say I agree with that assessment at face value. 2. It was submitted that the first group of offences were the more serious requiring obvious weight to be given to general and specific deterrence. However it had to be noted that there were a number of features of the objective offending, notwithstanding some of the opinions expressed in the victim impact statements, including no expressed threat of violence, the incident occurring over a relatively short time, a relatively small amount of property taken which was recovered it would seem, and the prisoner returning property of sentimental value. I believe those propositions in general terms are true. 3. Although it was submitted there is no entitlement to leniency, having regard to his record, his record was very much a reflection of his upbringing, which I accept to be true too. He noted the prisoner's absence of role models throughout his upbringing, the findings of the psychological reports, the impact of dysfunction and disadvantage, the instability arising from his itinerant lifestyle and other features such as antisocial attitudes, disrupted education, no family support, et cetera. 4. It was submitted however the prisoner was developing maturity, which was reflected in his evidence. The prisoner was entitled it was said to a discount of 25% which I accept to be true and the Crown accepts to be true in relation to all offences. 5. In relation to mitigating factors it was submitted that contrition arose pursuant to s 21A(3) of the Act and I accepted that to be true. It was submitted that he had good prospects of rehabilitation and was unlikely to re-offend. I do not accept that or those matters as mitigating factors, but that is not the end of the process. I hasten to say, that at the moment to my mind, regrettable as it is, the proof is in the pudding, if that could be correct expression, by the character and course of the offending with which I am concerned in the context of the criminal history. I will come back to that aspect shortly. 6. It was also submitted that his disadvantage and upbringing reflect upon the issue of moral culpability. That is correct as well. I will come back to that shortly. I was reminded to have regard to the totality of the criminality. There was an overlap in the offending in each instance, clearly so although in relation to the second group of offences the robbery of Mr Cochraine was in fact a separate offence from the offence within the "Icebergs". It was submitted I should make a finding pursuant to s 44 of the Act of "special circumstances" which I am prepared to do on the basis as advanced by his counsel. Firstly, the prisoner's relative youth, the fact that he is in adult custody for the first time, but more importantly the need for professional assistance on release to the community to adjust to community living. Because it seems to me that he is largely institutionalised now and the need for assistance in relation to a raft of matters including drug counselling, financial arrangements, employment, training and the like. 7. I had the rare benefit of two very learned Crown Prosecutors appearing on the last day of the sentencing proceedings. I should say I had to adjourn the Wollongong proceedings because the Sydney matters were not prepared and it transpired that when the matter came to Sydney, not leaving it in Wollongong for Judge Haesler to struggle within six months' time, I had the benefit of the Crown Prosecutor from Wollongong and the Crown Prosecutor who appears today from Sydney, both were of great assistance with their written submissions. 8. The oral submissions of counsel who was actually in Court, the other counsel appearing via audio visual link from Wollongong, were to the effect that the Court should doubt the prospects of rehabilitation as a mitigating factor and I accept that submission. The Crown noted matters I am required to take into account, particularly the maximum penalties of the offences, although it was acknowledged the Form 1 matter was a very minor matter intimately bound up with the facts of the principal offence. 9. With regard to the offending at Coledale, taking into account both the oral and written submissions of the Crown, there were circumstances of aggravation beyond those pleaded. The offence was one that occurred within the home of the victims, but it was pleaded as an element of the offence that it was entering a dwelling house. Most particularly, in terms of the character of the offending, the Crown pointed to what I would have thought were common sense observations, the invasion of the privacy of the victims, the continuing of the offending when asked to desist, albeit for a relatively short point of time. It was submitted by the Crown as I have already accepted that breach of conditional liberty is a significant aggravating factor in relation to both sets of offences. 10. It was acknowledged by the Crown in relation to the Coledale offences and the written submissions that the offences were not planned and were not organised criminal activity and that is to be fairly acknowledged as a "mitigating factor" under s 21A(3) of the Act. The pleas of guilty are a mitigating factor but of course the prisoner receives a discrete discount for that. 11. In relation to the psychological reports, on behalf of the Director it was submitted that the Court should have regard to his behaviour in custody as reflected by his custodial record. I approach that matter with some circumspection bearing in mind the lower standards of procedural fairness in relation to those matters. But having regard to his criminal history, the breach of bail, the breach of parole, it was submitted that he was a risk of re-offending and the prospects of rehabilitation as I said must be viewed with some circumspection. 12. For a young man he had a significant criminal history and that his behavioural conduct in recent times had been "a betrayal of the opportunity for rehabilitation". Well on one view of it that is correct. But these matters have to be seen in the wider context as I have said. I am required to have regard to the "purposes of sentencing" pursuant to s 3A of the Act in relation to all the offences, and I do. All the purposes of sentencing have some role to play to varying degrees. General deterrence, personal deterrence, clearly they are to be acknowledged. The affect upon victims and the like. It was noted by reference to authority of the Court of Criminal Appeal, particularly the decision of Tilyard [2007] NSWCCA 7, particularly at [22], that armed robberies committed by young persons with addiction still require proper weight to be given to general deterrence and I acknowledge that to be so. The robbery offences have to be seen, it must be said, in the context of the still continuing guideline judgment in Henry, reported at (1999) 46 NSWLR 346, which I will come back to shortly. 13. I am required to have regard to the fact that also the entering and stealing offences contain clear desire by the prisoner for personal financial gain. In one or other of the two written submissions of the Crown, Veen (No.2) [1988] 164 CLR 465-477, where I had the honour of being the junior to Peter Hidden QC, it is said, should be invoked. In this matter greater weight should be given to retribution, personal deterrence or protection of the community. Again these are matters of weight. 14. Regrettably for Mr Veen in 1987, when the matter was argued in the High Court, I was appearing in relation to the second killing of a man he had undertaken in almost identical circumstances. In his case where he was given a term of life imprisonment it was clear that he was a continuing danger to the community. He was not a youth as this prisoner is. I was told in submissions quite properly to have proper regard to totality. 15. The Crown Prosecutor in respect of the second set of offences submitted there was further present in the "aggravated enter with intent" offence the aggravation of "being in company". He certainly was in company at the time of the entering of the premises but he was not in "directly" "in company" at the time of the conflict with the cleaners. There is reference to reckless infliction of actual bodily harm. I acknowledge there was a fight between him and the cleaners and they had every right to defend themselves. But I also note it was open to the Crown to plead special circumstances of aggravation. 16. I agree with the Crown submission, however, in relation to that offending that there was an element of planning, having regard to disguises and the wearing of gloves. The offending was not "opportunistic". The Crown said it fell within the middle range of objective seriousness in relation to this type of offending. I cannot agree with that. Simply for the reason that, firstly, the serious indictable offence is one of larceny, not a more serious offence of robbery or armed robbery or sexual assault and this is a very relevant matter when one talks about the character of the offending. It is not an offence solely concerned with the serious indictable offence of "larceny". It is an offence of entering premises with intent to commit a serious indictable offence and I need only cite decisions such as Harris and Hunyh from 2005 where this matter was discussed at some length by Simpson J. The Crown was correct to point out that the robbery offence was visited by aggravation such as the "threats to the victim". It was committed over a relatively long time. But the robbery was in fact "opportunistic" in nature it was acknowledged. The property stolen was of relatively low "monetary value" and it fell below the middle range of objective seriousness slightly and I must agree that that is correct. 17. There are a number of issues that arise in relation to the character of the offending. I have noted the aggravation of breach of conditional liberty in all offences and the circumstances of those breaches. As I said earlier, the first set of offences were unplanned. I have noted in relation to the matter that, notwithstanding the opinions expressed in the victim impact statements, the victims have to understand that in sentencing the prisoner I have to regard to a range of authority by which I am bound and also legislative provisions. The daughter of the primary victim, that is the adult daughter, the lady then in her thirties who was never directly threatened by the prisoner and in fact never saw him but was disturbed by her mother's "blood curdling screams", with the benefit of her law degree made an observation about her "previous belief in the prospects of rehabilitation" had been destroyed; inferentially stating that even with the benefit of her law degree, she no longer had any faith in that. 18. The issue of rehabilitation is a matter that is required to be taken into account. I am required to promote his rehabilitation if it is appropriate pursuant to s 3A of the Act. Of course with a young offender as many authorities and much wiser legal minds have said in various judgments as well as legislation, promotion of a young offender's rehabilitation is a matter of some significance. But I am also required to have regard to all the other purposes of sentencing. There is no hope in this matter of some order such as a Community Correction Order or something similar. The recognition of harm done to victims has to be considered in the context of the harm that was actually done and the harm that potentially could have been done but was not done and these are relevant matters. 19. This would be a far more serious example of offending, I hasten to say, if the prisoner had specifically chosen the victims because of some grudge or some other motive. I also point out for the benefit of the victims, if I ever come to read my remarks on sentence acknowledging their pain and suffering so to speak, that home invasions as they are sometimes called come in a range of circumstances, many far more serious as this. For example people coming into domestic premises, armed with weapons like baseball bats and firearms, inflicting harm upon the victims, physical harm upon them to obtain a particular objective that is planned in advance. This is small consolation for these victims. But the truth of the matter is that the prisoner's actions were pure "happen chance". He did not enter the dwelling armed with a weapon. He did not hurt the children when asked not to do so by the mother. As I said he told her at one stage, "I am not going to hurt you, I am not going to hurt the children, just do everything you are told". 1. I have noted other aspects of the circumstances of the offending earlier. I have noted matters relating to his subsequent contact. As I said earlier the concerns of the two children have to be seen in the context of them having no direct contact with the prisoner. 2. It is to be fairly said in relation to the offence at Coledale under s 111(2) Crimes Act 1900 that that type of offending can in the appropriate circumstances be charged under other provisions carrying greater maximum penalties, some with a standard non-parole period. 3. The words 'home invasion' are sometimes used for this type of offending. Certainly there is an invasion of privacy and security of the victims, but usually where a matter can properly be regarded as a home invasion, as I said, it carries characteristics that are absent here. I cannot sentence the prisoner on the basis solely of the emotion of the victims. 4. These observations that I make also have relevance to the armed robbery matter. It was clearly opportunistic and was intimately bound up with the circumstances of entering the premises. 5. In relation to the second set of offences there was evidence of planning which I have acknowledged. The prisoner and his colleague seemed to know where they wanted to go to almost immediately. They were only in the premises for a short period of time and one can see them going straight to offices and cash registers and the like. But the harm or injury caused to the cleaners arose out of not the prisoner targeting them per se, but in the circumstances of it being interrupted as one of the cleaners entered the office as the prisoner was rifling through it. That does not give the prisoner the right to assault that person I hasten to say. But that injury or assault was not obviously planned, it was spontaneous to the situation. I regard those offences below the middle range of objective seriousness as I do both the armed robbery and the other offence at Coledale for the reason I pointed out in the context of, for example, the character of the serious indictable offence the opportunism involved in some of the offending and the like. 6. In sentencing the prisoner in relation to the matter I have regard to the concept of totality of criminality. There is the decision of Mill v R [1988] 166 CLR 59, particularly at 62-63. There is a decision of Holder & Ors v R [1983] 3 NSWLR 245 particularly at 260, where Street CJ in his usual erudite way explained the practical application of the totality principle in these terms; "The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate in a broad sense the overall criminality involved in all the offences and having done so will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentences (sic) in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than what would have been arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone. In carrying out this process of adjustment it is both the inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all the offences. As has been said more than once in this Court where the principle of totality comes into effect it is more often than not of little importance how the ultimate aggregate is made up (that is to say whether by a series of aggregate terms or by a series of concurrent terms or by partly one and partly the other). The important factor is the practical significance of the sentencing order." 1. Since then of course we have had the decision of the majority of the High Court in Pearce v R [1998] 194 CLR 610 particularly at [45], where the majority of the Court in considering, I hasten to say, a conviction appeal, but in the context of reflecting upon the practical effect of acquittal upon sentences actually imposed at the Court below, commented upon the need for appropriate sentences to be passed for each offence, then turning one's mind to the issues of concurrency, accumulation and of course the related principle of "totality". 2. The practical problem in Pearce was, if my memory serves me correctly, that he had been acquitted by the Court of Criminal Appeal in relation to one offence for which the prisoner had been given the most significant sentence, but nominal sentences in relation to the matters that remained. The Court was addressing the issue that the then problem of him having an inadequate sentence could have been overcome by the sentencing Judge at first instance fixing a proper sentence for each offence, which is of course the practice since the decision of Pearce in 1998. 3. Also in this matter there is the issue of what I call "Bugmy principles" and I refer specifically to the High Court judgment of 8 October 2013 of Bugmy v R [2013] HCA 37, particularly at [40]-[44]. The prisoner is an Indigenous Australian who has grown up in a highly dysfunction and disadvantaged environment and this has had a significant impact upon his opportunities of life, his socialisation and his attitudes. I have got no doubt as reflected in his offending, and in his past offending, he does not have many prosocial attitudes. This is going to have to change unless he wants to spend the rest of his life going in and out of gaol. 4. This disadvantage and its effects upon him, is relevant to the assessment of his moral culpability. This disadvantage is something unfortunately that will remain with him all of his life perhaps. But it certainly has had an impact upon him and his behaviour until the present time. Of course one has to ask one's self where this matter ends as a mitigating factor and the issue of personal deterrence takes over. If the prisoner is a damaged person it means that there is a risk of him causing other damage to other people in the years to come. But at the moment it is a matter that in my mind must be considered, if I can use the expression in a very loose fashion, "to his favour". The relevance of the "Bugmy principles" as they are considered and discussed by many cases since 2013, for example in the decision of Kentwell where Rothman J addressed the matter with the concurrence of the Chief Justice, is not one that diminishes with time. Then there are the observations of Wood J in Henry (1999) 46 NSWLR 346, particularly at [273] of that judgment. 5. In Henry his Honour discussed the fact that drug addiction or drug dependence is not a mitigating factor in sentencing for armed robbery and nor is it for other offending. However the circumstances of the prisoner's descent into drug addiction or drug dependence may be relevant both to an assessment of the objective facts and also the subjective circumstances of the prisoner, including the issue of whether the offending was unplanned and/or spontaneous and also the prospects of rehabilitation. But more importantly in my view, as in this matter, the issue of considering that drug dependency and drug addiction being burdens the prisoner faces for reasons beyond his control, which is clearly the case here. 6. I have noted for the purposes of sentencing but I also not decisions of high authority that deal with the question of promoting the rehabilitation of an offender for the benefit of the community. King CJ in a South Australian decision of Yardley v Betts (1978) made observations which have been adopted a number of times by the Court of Criminal Appeal in this century. I note particularly Wood J, one of the wisest Judges ever of the Supreme Court, reflected upon this a number of occasions in judgments. The proposition is very simple. The reformation of offenders is just not for the benefit of the offender, it is for the benefit of the community. If an order of a Court can send an offender on the path to rehabilitation that is for the good of the community. 7. It might be thought, given offences committed on conditional liberty, given the impact upon victims, given the character of the offending, for example those disgraceful threats made to Mr Cochrane to bring shame upon the prisoner, that a crushing sentence should be imposed upon this man to give full weight to general deterrence and personal deterrence. The prisoner might appreciate of course I am sentencing him to the biggest sentence he has ever faced. But he is 20, he is not 15 and he has committed very serious offences both in circumstances of aggravation which I have identified. 8. I have tried to fashion the sentence in a way that can reflect some consideration of the promotion of his rehabilitation. This includes finding special circumstances pursuant to s 44 of the Act and adjusting the relationship of the non-parole period to the balance of sentence, but not fixing a non-parole period that is inherently and inadequately lenient. 9. So in the circumstances of the matter I have determined that the aggregate sentence in respect of all the offences should be seven years and three months. Each of the indicative sentences reflecting the 25% discount that the prisoner is entitled to for his early pleas of guilty. 10. Thus, in the circumstances of the matter Mr Campbell these are the orders I make: In relation to all the offences including taking into account the matter on the Form 1 in respect of the enter dwelling with intent to commit larceny in 2018, the prisoner is convicted of all counts. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 the prisoner is sentenced to an aggregate sentence of seven years three months, to commence on 23 July 2019, expiring on 22 October 2026. The non-parole period is four years and three months, commencing on 23 July 2019 and expiring on 22 October 2023. That means you are eligible for release to parole Mr Campbell in October 2023. 1. The indicative sentences are as follows: In relation to the sequence 1 offence from Coledale, three years imprisonment. In relation to the armed robbery matter, four years and six months imprisonment. In relation to the enter premises at the Icebergs at Bondi, three years six months imprisonment. In relation to the robbery matter, four years imprisonment. I refer the prisoner to the Drug Court pursuant to pt 2A Drug Court Act 1998 for consideration for admission into the Compulsory Drug Treatment Program. 1. Mr Campbell do you understand the orders I have made? 2. OFFENDER: Yes. 3. HIS HONOUR: The total sentence is seven years three months. The non-parole period is four years three months. You are eligible for release to parole on 23 October 2023. Of course that will be a matter for the Parole Authority not for me. There must be some, what I regard at your age, substantial term in custody. There's no escaping the requirement for that. But I've tried to fashion the sentence to provide you with an earlier opportunity for consideration to parole and other matters than might otherwise be the case if you were older or other circumstances were different. Yes Mr Crown? 4. BELCHER: Apology. My rough or very quick math calculated the pre-sentence custody as one year four months and six days. I know that's only a small difference and if my friend disagrees I may well have added that up wrong. 5. HIS HONOUR: Well if the Crown tells me it is three days extra then the prisoner might appreciate those three days assuming the sentences stand. The Crown pointed to an error on my part. So that would move the commencement date forward to the 20th I assume Mr Crown, is that right? 1. BELCHER: Yes your Honour. 2. HIS HONOUR: Do you have a problem with that? 3. HILL: No your Honour. 4. HIS HONOUR: Notwithstanding his counsel's argument to the contrary. I don't mean that unkindly of course. But there might be something that I haven't taken into account. So I'm sorry Mr Campbell the commencement date of your sentence will be 20 July. It will expire on 19 October 2026. The non-parole period will start on 20 July 2019 and expire on 21 October 2023. You will be eligible for release to parole on these orders on 21 October 2023. Of course the learned Director of Public Prosecutions has his rights of appeal and you have your rights of appeal. Those orders may be changed. 5. OFFENDER: Thank you your Honour. ********** 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: 25 May 2021