New South Wales District Court CITATION: R v J.S.S [2009] NSWDC 268 HEARING DATE(S): 05/03/2009, 27/03/2009 and 03/04/2009 JUDGMENT DATE: 21 August 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted: sentenced to imprisonment 2years 3months; non parole period 15 months. CATCHWORDS: Criminal Law - Sentencing - State offence - aggravated robbery - aged 23 at time of sentencing - aged under 17 at time of offending - sentenced at law - s.11 bail orders made when offender serving balance of parole - bail order revoked - female victim - alone in car park late at night - seriously violent offence - first episode of offending conduct - subsequent offences - serious alcohol abuse issues - strong family support. Crimes (Sentencing Procedure) Act LEGISLATION CITED: Children's (Criminal Procedure) Act Crimes Act 1900 CASES CITED: Hearne (2007) 124 AcrR 457 PARTIES: Regina J.S.S FILE NUMBER(S): 2008/11755 SOLICITORS: Crown: Ms A Arul - O DPP Defence: Mr Wilson JUDGMENT 1. On 27 March 2009 J.S.S was before the Court anticipating the granting of a s 11 to bail on his matter to which he had pleaded guilty. That was a charge of aggravated robbery of Gillian B on 4 July 2003 at Eastgardens Shopping Centre at Pagewood. 2. The evidence before the Court was that the offender was serving a nine month custodial sentence commencing on 28 April 2008 for a subsequent offence. His status in respect of this offence was bail refused. 3. The offender and his uncle gave evidence. Each in his own way presented as an impressive witness. I will need to return to their evidence later. 4. In the circumstances, I canvassed with the Crown whether it would regard s 11 bail for a twelve month period as falling into appealable error by me. The Crown, fairly, in my view, accepted in the total circumstances of this case that a s 11 bail for the purpose of seeing whether J.S.S could show any prospects of rehabilitation was an appropriate outcome. On that day I made orders pursuant to s 11 of the Crimes (Sentencing Procedure) Act granting bail. That bail contained stringent conditions and required J.S.S to report his progress to the Court on at least three occasions during the bail period. 5. The matter reached the Court Registry at 5pm on that day, when it became apparent the offender was serving a balance of parole which would expire on 5 December 2009. I made orders in chambers staying the bail orders made and listed J.S.S's matter for mention on 3 April 2009. At that time J.S.S, supported by family, sought finalisation of the matter. Given there is to be an eight month portion of sentence to be served in fulltime custody I have determined to acquiesce to this request. 6. I have been troubled, having made bail orders, whether I can proceed. Section 11 bail orders are not final orders. In the event of any breach of the bail they can be revoked. In this case, because he was serving a sentence it is likely that I did not have jurisdiction to make them in any event. It is likely the bail orders were null and void. In the event they were not, I am prepared to revoke the orders for want of jurisdiction. Both parties accept and agree that now a sentence should be imposed. The facts 7. I have reviewed the facts of this offence in some detail on 27 March 2009. Those facts as set out in my remarks of that date should be regarded as being incorporated into these remarks. Objective criminality 8. This offence was a particularly nasty instance of aggravated robbery. J.S.S presents in 2009 as a solid athletic man of Samoan heritage. The violence of the robbery included a punch with his right fist to the head of his victim; the grabbing of her, forcing her to the ground; striking her head against the concrete, as I recall her head being held in his two hands; grabbing her by both her legs, dragging her some distance across concrete; pinning her legs against her body and lying on top of her; using his body weight to hold her legs up and a second punch to her head to silence her screams. 9. The charge itself establishes that actual bodily harm was done to her. That level of violence has overcome her will so that she surrendered her property to him. It is the level of violence that promotes this offence into a serious example of aggravated robbery. 10. The contents of the stolen backpack included the victim's wallet, mobile phone, key card, Visa card, Student Identification, a Canadian Citizenship card, personal papers and $130. The impact of this theft of these items primarily would have been of significant inconvenience to Gillian B with the loss of her phone cards, the loss of her phone and credit cards and other cards. The sum of money taken was not great. The victim was alone in a car park late at night. She was at her most vulnerable alone and at night. 11. The offender has, he says, no recall of the incident. At the time of the incident he was drinking heavily. He accepts that alcohol had contributed to his violent behaviour. While he cannot recall the circumstances of the robbery there is no evidence before me upon which I could find it was a planned or schemed offence. It is likely he has gone to the car park area to commit the robbery, because Coles was open at that hour of the night. Having gone there for that purpose he seized the opportunity to rob Gillian B. On the other hand I am unable to determine where he travelled from to be at Eastgardens or for how long he had to wait. Nor am I able to assess whether his victim was the first person he encountered or whether he let more imposing people pass by as he determined to wait for someone more vulnerable. It is likely the robbery was committed to provide funds for drinking and possibly for drugs. 12. The offence is sufficiently serious to warrant fulltime custody. It is the assessment of that custody that takes some consideration. I shall return to that topic. Subjective matters 13. J.S.S was sixteen years and eleven months at the time of offending. He is being dealt with at law for his offending conduct, although his age at the time of offending must necessarily be a factor to take into account when sentencing. 14. He is now aged twenty-three. His parents live in Brisbane. He has a family network strongly supportive of him. His parents and relatives have been in Court on each occasion he has been before the Court. His family visit him in custody. 15. His uncle lives in Earlwood. As I said earlier, the uncle gave evidence of the offender living with him during a bail period. The uncle was prepared to set a strict, but fair limits during the nephew's stay. One restriction was "no alcohol". J.S.S respected his uncle and was prepared to abide by the uncle's rules. If parole is to be served in New South Wales, the Parole Board should give consideration as to whether the uncle is still willing to house J.S.S during part or all of the parole time. If parole is not to be served in New South Wales I anticipate it will be served in Queensland, where his mother and family live. 16. J.S.S is the second youngest of seven children, born in New Zealand of Samoan descent. The family moved to Australia when he was age nine. His upbringing was strict, but during his latter teen years his peer group was unsavoury. Education, Training and Skills 17. J.S.S obtained his School Certificate, but was expelled in year eleven for non attendance. 18. He joined the workforce as a builder's labourer, but was irregular at work as a consequence of alcohol and drug abuse. He had experience as a forklift driver. He was, in fact, in employment at the time of his arrest. 19. He has sporting skills, particularly in rugby, rugby league, golf and basketball. 20. I should have mentioned he obtained his Forklift Certificate whilst in custody on a prior occasion. General Health 21. He presents from custody as in fine physical shape. He appears to be drug free. So far as one can tell there are no physical health problems that would impact upon his rehabilitation prospects. Mental Health 22. Likewise, there is nothing before the Court suggesting any mental health or ingrained anti-social issues I need be considering. Drug and Alcohol History 23. The offender began binge drinking at sixteen. As I said to him during the course of his evidence he is a bad drunk. He becomes violent once he is intoxicated. 24. Whilst in custody he has completed programs to prevent relapsing into alcohol abuse and violence prevention programs. His evidence is these that programs had given him beneficial strategies to avoiding alcohol. 25. He was also abusing drugs at sixteen. It is hard for me to know from the evidence what drugs, but he certainly was using cannabis. Cannabis is one of the most insidious drugs about. It is deceptive, because users of cannabis believe they are relaxing; meanwhile the cannabis may well be underpinning the mental health of the person using it, to such an extent that those who are heavy users become paranoid, aggressive suspicious and sometimes violent. He told the author of the Pre-Sentence Report he has stopped using cannabis with the help of an older brother, who introduced him to rugby. 26. Each episode of his offending is related to alcohol abuse. He told Probation and Parole he now realises he should not drink, that abstinence, he says, is preferable to controlled drinking. I have taken him at his word on that, as he will see in the orders I ultimately make. Character and Criminal History 27. J.S.S is a physically imposing young man with above average sporting skills in rugby, golf and basketball. 28. At the time of this offence J.S.S had not been before the courts. As I said moments ago, since sixteen he has drug and alcohol issues, which have seen him incarcerated in May 2006 and again in October 2008 for offences of serious violence. His parole was breached by the second offence. His parole for the first offence was breached by his commission of the second offence. The Parole Board required of him, presumably on 24 October 2008, that he serve the balance of his parole one year and nine months in respect of the first offence. Assuming my maths is correct. 29. The importance of J.S.S's character and subsequent criminal history is that it throws some light on the offender's rehabilitation prospects and some light on his sense of remorse for his earlier offending conduct; that is, the conduct I am dealing with. His subsequent offending does not, however, aggravate the objective criminality of the offence I am dealing with. Attitude to the offence 30. The offender does not recall his criminal conduct on the night of 3 July. It is likely he was well affected by alcohol. His drug of choice. It may also be he has blocked out the memory. I accept his memory of the event is seriously diminished. Nonetheless he has been confronted with the facts, or allegations, that were made by his victim. He accepts his behaviour as alleged. He has not sought to quibble with or minimise the allegations surrounding his crime. He expressed his sorrow, acknowledged his bringing shame to his family and shame to him "To think I did this". He pleaded to the offence from the outset, indicative of his willingness to accept full responsibility for his criminal offending conduct. His plea also has utilitarian value. A reasonable identification case could have been run by the defence, although there were other aspects of the Crown case that appears strong. Calling the victim as a witness would have caused her to relive the trauma of this terrible night. That is a bonus gained to her and the Crown by virtue of his plea that she has not been called. This is a case where the full 25 per cent discount for a plea of guilty should be available. Rehabilitation prospects 31. Had the offender been dealt with in the Children's Court the sentencing structure of the Children's (Criminal Procedure) Act places great focus on rehabilitation prospects. It is a moot point whether this offender would have been dealt with in the Children's Court, because of the solidly violent level of his offending conduct. Necessarily the elements of the offence, robbery and infliction of actual bodily harm recognise a level of a violence over and above that required to overpower the will of the victim in respect of surrendering possession of property. 32. I have reviewed the JIRS statistics for offending conduct against the same provision of the Crimes Act 1900, namely, s 95(1). More than 150 aggravated robberies were dealt by the Children's Court. Thirty-two of them were serious enough for control orders to be given. In my view it would only have been in circumstances where the prosecution exercised its discretion to have this matter dealt with at law that it would have been so dealt with. In exercising its discretion the offender's prior good record would have been of use to the defence until November 2005 when he was charged with the malicious wound for which he served his first sentence. That is two and a half years after this offence. There is a real likelihood, in my view, that in those circumstances if the offence had been dealt with prior to November 2005 it may have been dealt and finalised in the Children's Court. As matters stood at the time he was charged before the Local Court, only one jurisdiction was available. He had to be dealt with at law, because he was over twenty-one. 33. Coming back to the topic of rehabilitation prospects the offender's rehabilitation prospects will depend upon how well he exercises self discipline in respect of his alcohol consumption. As I earlier said he had agreed to submit to rigorous bail conditions to advance his rehabilitation. Those conditions included abstention from alcohol, participation in the workforce and participation in a community based activity such as sport. His acceptance of those conditions, even though he did not get a chance to prove himself, do demonstrate a desire by him to accomplish rehabilitation. 34. His custodial conduct is mixed. There have been conduct charges levelled against him and there has been involvement in programs focussing upon rehabilitation. He has strong family support. He made undertakings before the family when bail was thought to be possible, that he would abstain from alcohol. Hopefully he would renew that pledge when he is released. 35. I should note cases such as Hearne (2007) 124 A. Crim.R 457 stress the importance rehabilitation is to play in cases involving young persons guilty of serious offences of violence. The sentence I shall set will give due regard to that principle. Setting the sentence 36. I am conscious when setting this sentence the maximum penalty for the offence, had he been dealt with in the Children's Court, would have been two years fulltime custody. I am conscious the delay in charging (see my remarks of 27 March 2009) have denied to him any prospect of being dealt with by the Children's Court. For reasons I expressed earlier I do not rule out that he had reasonable prospects of being dealt with in that jurisdiction. Having said that I must acknowledge that the maximum penalty for the offence is twenty years imprisonment. But when sentencing at law, all sentencing options up to the maximum penalty are available to a judge of this Court. Deterrence 37. I have not given general deterrence the weight I would otherwise give had I been sentencing a criminal who committed this offence as an adult. As to personal deterrence I have designed a sentence that I believe does contain strong personal deterrence, namely, a substantial balance of term. This offender, through experience, now knows what a breach of parole will bring, because he is currently being retained on that score and he was denied an opportunity to be released to bail, because he had earlier breached his parole. Hopefully he will learn from that experience. Stale offence 38. This is an offence that occurred six years ago. I have already made a reference to delay and the effect it has upon the jurisdictional options open to deal with the matter. I have already indicated I take that into account. Custody 39. This offender has been in continuous custody since 28 April 2008. His balance of parole that is currently being served will expire on 5 December this year 2009. I indicated earlier (see remarks March 2009) that I would consider backdating any sentence I had to set to commence three months prior to the offender's custody commencing in respect of this matter. As best I can glean his sentence on the assault occasion actual bodily harm, the non parole portion of that expired on 27 January this year. The overall sentence I would have set for this offence, bearing in mind all of the matters that I have reviewed, is one of three years imprisonment. I have reduced that to a sentence of two years and three months overall on account of his plea of guilty, that is the nine months that is taken off is the discount. 40. I intend to find special circumstances for the following reasons: a). The sentence is being served in an adult gaol although the offender was a juvenile when the offence was committed. b). His rehabilitation is better achieved within a community setting. c). He has made useful progress on rehabilitation issues whilst in custody, and special circumstances amount to recognition that he is willing to focus on rehabilitation and provides him with an opportunity so to do. 41. J.S.S will you stand up. 42. J.S.S I convict you of an offence that you between 11.50pm on 3 July 2003 and fifteen minutes after midnight on 4 July 2003 at Pagewood did rob Gillian B of certain property, to wit a Lightening Bolt backpack, leather wallet, a Nokia 3310 mobile phone, an umbrella, a New South Wales drivers licence, Credit Union cards, St George card, Student ID card, Medicare card, Canadian Citizenship card and $130 in cash, that was her property and immediately before that robbery you intentionally or recklessly inflicted actual bodily harm on her. I set a non parole period of fifteen months to commence from 27 October 2008 and to expire, on my calculation, on 26 January 2010, the day after Australia Day next year. I set a balance of term of twelve months, to expire on 26 January 2011. 43. Sit down. 44. I order your release on this sentence. I do not know what other sentences you have. It took me by surprise last time, but on this sentence I order your release on 26 January 2010, the day after Australia Day next year. 45. Pursuant to s 52 of the Crimes (Sentencing Procedure) Act I am entitled to set conditions for your parole and I set one, I will put it this way, I impose the following parole condition in addition to any imposed by the Parole Board. The condition is that you are not to consume any alcoholic beverages for the entire period of your parole, that is a twelve month period. You survive that and you have got a good chance of surviving generally. Any other matter, Mr Wilson, Madam Crown? ARUL: Yes, your Honour, there is 166 Certificate in relation to another charge. The Crown wishes to withdraw that charge, your Honour. I can hand up that document. WILSON: There's no objection, your Honour. HIS HONOUR: As I understand it - I am corrected 26 January is Australia Day. I was thinking 25 January, but that is the day before. I got it confused with Christmas. HIS HONOUR: The Crown, pursuant to 166 of the Criminal Procedure Act, certify that the offender has been charged with inflicting actual bodily harm with intent to have sexual intercourse. It seeks leave to have that charge withdrawn. Leave is granted. The charge is withdrawn. You are a young man, I hope you do well, but it will be up to you and particularly what you do with alcohol. Do you understand that? Return him to custody. Thank you. 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.