R v Vincent, Kenneth [2009] NSWDC 432

New South Wales District Court

CITATION: R v Vincent, Kenneth [2009] NSWDC 432

HEARING DATE(S): 08/04/09, 09/04/09 & 23/06/09

JUDGMENT DATE: 25 June 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted. Sentence to a non-parole period of 16 months and 15 days with balance of term of 15 months.

CATCHWORDS: Criminal law - sentencing - robbery and at time of robbery inflict ABH - taxi driver victim - driver's taxi purse, money and mobile phones taken - injuries towards lower end - poor subjectives - offence committed whilst on parole.

The Queen v Henry CCA (1999) 46 NSWLR 340 The Queen v Gladue [1999] 1SCR 688 [80] CASES CITED: R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740

PARTIES: Regina Kenneth Vincent

FILE NUMBER(S): 2009/3686

SOLICITORS: Crown: Mr J May Defence: Ms S Carr

JUDGMENT

1. Twenty per cent of the New South Wales adult prison population is comprised of persons who are either Aboriginal or Torres Strait Islanders. All of those persons have been placed in custody by order of a court either refusing bail or passing sentence. Many judicial officers are conscious that no Aboriginal is in gaol other than upon bases that he or she did have, as the final result, court orders imposing custody. As this case illustrates, all too frequently courts are the end of the line with no room to move. The conduct of this offender demands a custodial sentence of significant length. 2. Aboriginal communities and Aboriginal men and women need to heed the words of leading Aboriginal people. Most recently, Patrick Dodson, in his Sydney Peace Prize speech on 8 November 2008, said this: "The Aboriginal community must come to terms with the reality of our contemporary situation and deal with it. Whatever the causes of our alcohol and substance abuse issues, whatever the denial that has resulted in our dispossession, whatever the outcomes of poor government policies on our communities, the results are ours to confront. Like the victims of a hit and run accident, there is no point in bemoaning our fate, we must contribute to our own healing and our own rehabilitation." 3. To date, no thought of controlling his own substance abuse has yet occurred to Kenneth Vincent. On Boxing Day of 2008, at Bourke, he robbed the local taxi driver of $408 and two mobile phones. At the time of the robbery he inflicted actual bodily harm on the taxi driver. 4. Today Kenneth Vincent is to be held accountable for his criminal conduct towards Bill Moles, the taxi driver. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender, Kenneth Vincent, harming this victim, Bill Moles, in the community of Bourke (see The Queen v Gladue [1999] 1SCR 688 [80]). 5. My initial task requires an assessment of the objective criminality of this offence before the Court. I will need to have regard to matters personal to Kenneth Vincent; they are called subjective matters. The starting point for such assessments requires me to make findings of fact from the evidence before the Court relating to both the offence and to the offender. This offender's rehabilitation prospects will have to be assessed even if looking through a glass darkly. That is particularly so because of his youth. Before any sentence can be passed, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, and the length of the non-parole period, and attached to that the ultimate length of the term of imprisonment to be imposed. 6. None of those things can be determined until the primary facts have been found. What weight needs to be given to all of these matters, against the imperative that all sentencing should have as its primary focus the protection of society, will also need to be determined. (See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740). 7. Bill Moles was the victim of this offence and the account of what happened in the morning of Boxing Day is best told through his statement. He gave this statement the same day he was assaulted and robbed: "I am 66 years of age, I have lived in Bourke for the past nine years. About six to seven years ago I started working part time as a taxi driver in the Bourke Township. I worked for Stan Douglas who runs the Douglas Taxi Service. I was rostered to work Friday 26 December 2008 from 8am until about 9.30pm. The usual process is, I go to Stan's house, before my shift starts, and pick the taxi up. I got to Stan's house around 7.30am and picked up the taxi. I drove to the BP service station and checked the tyres, then I made my way to New Vogue service station on the corner of Mitchell Highway and Warrawina Street in Bourke.