District Court New South Wales Medium Neutral Citation: R v Graham [2017] NSWDC 478 Hearing dates: 25 August 2017 Date of orders: 25 August 2017 Decision date: 25 August 2017 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentence of imprisonment of 4 years 1 month with a non-parole period of 2 years 8 months Catchwords: CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse — Reduced moral culpability SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — — Deterrence — Specific deterrence — General principles — Objective seriousness — Purposes of sentencing — Community protection SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Recidivism —Institutionalisation — Dysfunctional childhood Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Hili v The Queen (2010) 242 CLR 520 Jackson v R [2010] NSWCCA 162 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Herring (1956) 73 WN (NSW) 203 R v Windle [2012] NSWCCA 222 Ryan v The Queen (2001) 206 CLR 267 Texts Cited: C Jones and J Guthrie, "Efficacy, Accessibility and Adequacy of Prison Rehabilitation Programs for Indigenous Offenders across Australia" (2016) Australasian Institute of Judicial Administration. Category: Sentence Parties: Todd James Graham (the offender) Public Prosecutions (NSW) (Crown) Representation: Solicitors: P Townsend solicitor for Legal Aid (NSW) (for the offender) A Ward solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2017/69897 JUDGMENT – Ex tempore revised Introduction 1. Todd Graham was committed for sentence to this Court. Today he adhered to a plea of guilty for a charge of assault with intent to rob when armed with an offensive weapon: Crimes Act 1900 (NSW), s 97(1). That offence carries a maximum penalty of 20 years imprisonment. That maximum penalty is one important guide to the exercise of my sentencing discretion. 2. Another important guide to the exercise of my discretion are decisions of other courts, including the decision of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. There the Court of Criminal Appeal sought to give guidance to judges of this Court to correct what was perceived to be undue leniency in robbery sentence matters. 3. I also have regard to my own decisions, those of other judges of this Court, and the sentencing patterns from the Court of Criminal Appeal. But as the High Court has made clear on many occasions, one example being Hili v The Queen (2010) 242 CLR 520, every offender is individual and every offence individual. Facts for sentence 1. Any sentencing exercise must start with what was done. Graham has a long history of incarceration to which I will refer to later. He was released to parole on 28 February 2017. As a condition of his parole, he was told to reside at a motel near Wollongong railway station. Sadly, as he knew, and is notoriously known to this Court, that particular part of Wollongong is where the methadone clinic is, it is where the pawn shops are, it is where the free food vans are, it is where people with drug and alcohol problems go for assistance and accommodation. It is, from all the material before me, in this and other cases, also one of the few places available to parolees for secure accommodation. It is not a particular pleasant place to stay. 2. More importantly, as the evidence in this case and others has demonstrated, that particular location allows for temptation and opportunities to meet up with drug users and others who live, reside or visit the area and who have little respect for the law. Within hours of being left at that centre by his sister, Graham was using the drug Xanax. 3. As Madam Crown said in submissions, to require someone to reside there was "not a great plan". In fact, it is set this parolee up to fail. It is a sad indictment on our community that resources, particularly accommodation resources, in this city for those recently released from custody, or those in need of considerable support and assistance, are so dire. 4. At 11.30 on the morning of 1 March 2017, that is the next day, Graham went to a post office in southern Wollongong. He was armed with a 20-centimetre knife. He confronted a male worker at the post office, in a way that, as the still CCTV photographs show, must have been very disturbing. At one point he jumped up on the counter. He was unable to obtain any property and he ran. He left behind his own property, including his parole papers, one of which had his photograph on it. 5. The post office had CCTV. It would have been obvious to Graham that his actions would inevitably lead to him being arrested and returned to gaol for a substantial period. Objective seriousness 1. Courts must start with, and impose a sentence that is, just and proportionate to the offence itself. An appropriate sentence must reflect the harm done to the victim and the community by the offence. 2. This was serious offence. A bladed weapon was used. A worker providing a valuable community service was threatened and intimidated by Graham's aggression. The victim was not to know whether he would be stabbed. He was not to know whether those moments were to be the last he would spend on this earth. 3. Graham now, with mature reflection understands that. I accept his evidence today that the victim was not to know what was to happen next, and his apology and his expression of remorse toward him. . 4. There was little, if any, planning. It was a spontaneous act by a drug addled man. That does fact does not mitigate, and to his credit, Graham does not ask that it mitigate the offence. In fact, it makes it more serious because drug affected as he was, who knows what might have happened as he was not full in control of his faculties. I suspect the victim must have been aware of that. That would have increased the terror he felt. 5. While there is no Victim Impact Statement before me, that does not mitigate the offence either. One can readily understand the harm that was inflicted and that such harm may have lasting consequences. 6. The consequences of this crime also flow on to other people running small businesses in this city. Margins are tough. To have pressure placed on them of others being robbed increases the harm to the general community. Other matters 1. To his credit, and reflecting fundamentally on prosocial core values, I suspect Graham, having discussed the matter with his sister and having visited his children who perhaps he should have focused more on when he first got out, handed himself in to police on 9 March 2017. 2. The fact that he was on parole means that the sentence I must impose upon him is increased. To avoid any suggestion of double counting and to reward him for his surrendering, I propose to date this sentence from 9 March 2017; noting that the sentence runs parallel with the balance of parole, which has now been served. 3. Graham's criminal record provides him no assistance. It means that greater weight has to be given to deterrence and retribution and community protection. He has offences involving steal from a person, and importantly in 2005 an armed robbery. He has spent most of his adult life in gaol. Subjective case for the offender 1. Graham gave evidence today. In that evidence, he affirmed material which was provided to social workers from the Legal Aid Commission prior to his earlier sentence and a subsequent report prepared for me by Mr Bembrick, 9 August 2017. The reports are comprehensive. They set out his background. They note that he has done every course he can while in custody. They note he has two children who reside with his sister in Wollongong. 2. He told me that what he told Mr Bembrick and Ms Jelen was true and correct. I must take into account the history given. It notes how he was raised by his grandmother because his father and mother were not capable of doing so. He says that at the age of 15 he went to live with his mother. He left school and his life thereafter became what is described as "dysfunctional". 3. At a very young age he took up the use of illicit drugs. He was introduced to heroin in custody. He has had a continual problem with prescription medication. He presented to both social workers as thoughtful, but with a high level of emotional distress. He presented as a damaged person, a result of problems in adolescence. 4. Both Mr Bembrick and Ms Jelen postulate that those problems have had long term consequences because Mr Graham is not "psychologically resilient". It is clear that he needs a lot of help in adjusting to normal community life. That help was not made available to him on his release. 5. He is at a high risk of reoffending. He told me, and I accept, that he is able to behave as an adult in gaol, but on release he behaves like a child. He told Mr Bembrick that a full-time rehabilitation program and more structure in his life would be of advantage. During the longest time he has spent out of gaol he was assisted by being placed in a very structured environment. 6. There have been a number of recent reviews of problems in relation to recidivism and the lack of resources available to parolees. Most recently, a publication by the Australasian Institute of Judicial Administration reviewed prison programs. The report it noted that over-incarceration affects the community in ways that perpetuate cycles of crime. The policy of mass incarceration across the country has led to gaol numbers being at record levels. The publication authors note that the more people we have in gaol the more crime is generated. They note that there are better and cheaper ways of investing in crime prevention other than building more gaols, such as investing in health, housing and employment support: C Jones and J Guthrie, "Efficacy, Accessibility and Adequacy of Prison Rehabilitation Programs for Indigenous Offenders across Australia" (2016) Australasian Institute of Judicial Administration. 7. If housing and employment support had been available, if structure had been available to Graham, it is possible that this offence may have been avoided. But, and it is an important but, in New South Wales and across this country it is still the case that our community in 2017 says, "If you do the crime you do the time". Judges are told that punishment, particularly punishment that reflects the objective circumstances of the offence, is required. Retribution is still required, as many in the community regard this as more important than prevention. 8. Retribution is a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]. 9. I will deal with Graham's sentence individually of course, but I note that his is one of three similar matters before me for sentence today. Each individual, and each individual offence, in their way, illustrate that punishment by way of imprisonment does not prevent crimes of this nature, crimes where people rob others, sometimes with weapons. In two of those cases the inevitability of capture, because the premises were clearly covered by CCTV, did not prevent the crime. The inevitability of return to custody did not prevent the crime. Instinctive synthesis 1. I must impose a sentence that carries with it a measure of individual and personal deterrence. I also must impose a sentence, which by its severity, tells others in the community what the consequences of such crimes are, and I will do so. There may be a better way, but judges must apply the law; judges do not make the law. 2. Importantly, everyone in the community, including this offender, has to learn that armed robbery is not just a crime against property; taking a small amount of money or attempting to take a small amount of money, is a crime against people. This was serious crime because when citizens are robbed, assaulted and threatened at knifepoint it can have a terrible impact on them. When such crimes occur where others gather, such as post offices, it can lead to people losing trust in public institutions. People fear others and lose their trust in others. They fear that the police and the courts cannot protect them. Where individuals are fearful the entire community suffers. 3. It is clear that heavy sentences, CCTV, or the fact he was on parole did not prevent this offence. But the proper role of the criminal law and in judges' sentencing, is to attempt to afford protection to the community as a whole. That means in cases such as this, removing a person from the community for a period. 4. It is clear that Graham will need considerable assistance on release. It is clear that he has been institutionalised. But a court, even in the face of entrenched and serious recidivism by an institutionalised person may still make a finding of special circumstances, and I intend to do so: Jackson v R [2010] NSWCCA 162. The focus must be to ensure that he gets the assistance for a lengthy period of time to help him adjust to normal community life. Because Graham must be released to the community, he must be supported in the community. He must have the support that was not made available to him on the last occasion, although I do note here, there was little time to provide such assistance before he reoffended. 5. His release will be conditional upon the State Parole Authority putting in place a program for him. I hope they do so because the longer he is supervised in the community the better. 6. Mitigating factors, a person's background, a person's history, their own remorse, their cooperation, must be given appropriate weight. But those factors cannot lead to the imposition of a penalty which is disproportionate to the gravity of the crime committed, which here, for the reasons I have outlined, was a particular serious one. 7. The dignity of each victim of violence must be respected and vindicated, and the community must understand by the severity of the sentence imposed that what was done by Graham was, and remains, totally unacceptable. 8. I have taken into account his cooperation, including his surrender. Had it not been for the utilitarian value of his early plea of guilty a sentence of 5 years and 6 months would have been imposed. Orders 1. There will be a sentence of imprisonment in this matter of 4 years and 1 month. 2. The formal orders of the Court are that there will be a non-parole period of 2 years and 8 months to date from 9 March 2017. You will be eligible for consideration for release to parole on 9 November 2019. There will be a parole period of 1 year and 5 months from that date. Total sentence should expire on 9 April 2021. 3. To reiterate: 2 years, 8 months, 9 March 2017 to 9 November 2019. Parole, 1 year, 5 months. Sentence expires 8 April 2021. 4. I will just repeat it again. It is a 4-year, 1 month sentence. Non-parole period 2 years, 8 months. Release date, 8 November 2019. That is when Parole may allow your release, and there is a lengthy period of parole which reflects my finding of special circumstances, 1 year, 5 months. ********** 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: 08 October 2024