Pending Appeal : New South Wales District Court CITATION: Regina v Imraaz Hudson [2006] NSWDC 137 HEARING DATE(S): 8 to 12 May, 15 May, 27 September JUDGMENT DATE: 13 October 2006 JUDGMENT OF: Nield DCJ DECISION: (1) For the offence against Mr Cotter, count 1 of the indictment, imprisonment for six years with a non parole period of three years from 15 May 2006 to 14 May 2009 and a parole period of three years from 15 May 2009 to 14 May 2012; (2) For the offence against Mr Boler, count 2 of the indictment, imprisonment for six years with a non parole period of three years from 15 August 2006 to 14 August 2009 and a parole period of three years from 15 August 2009 to 14 August 2012; (3) For the offence against Ms Collins, count 3 of the indictment, imprisonment for six years with a non parole period of three years from 15 November 2006 to 14 November 2009 and a parole period of three years from 15 November 2009 to 14 November 2012; (4) For the offence against Ms Moffitt, count 4 of the indictment, imprisonment for six years with a non parole period of three years from 15 February 2007 to 14 February 2010, on which date the offender is to be eligible to be released on parole, and a parole period of three years from 15 February 2010 to 14 February 2013; The earliest date for the offender's release from prison is 14 February 2010; I order that the offender be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period CATCHWORDS: Sentence after trial - robbery whilst armed with a dangerous weapon and in company - parity with co-offender LEGISLATION CITED: s97(2) Crimes Act s3A, s21A Crimes (Sentencing Procedure) Act CASES CITED: R v Henry (1999) 46 NSWLR 346; 1999 NSWCCA 111 PARTIES: Regina Imraaz Hudson FILE NUMBER(S): 05/31/0185 COUNSEL: Mrs T. Bright (Crown) Mr S. Russell (Offender) SOLICITORS: Office of the DPP Gosford Mr R. Day (Offender) - 1 - ** AT THE TIME OF PUBLICATION AN APPEAL IS PENDING ON THIS DECISION ** HIS HONOUR: 1 The offender is Imraaz Hudson. He was born on 15 January 1982. Accordingly, he was aged 23 years 2 months when, on 28 March 2005, he committed the subject offences, and he is aged 24 years 8 months now. 2 The offender was born in Fiji. He is the only child of his parents, who separated when he was aged about two years. Subsequently, both his mother and his father entered into new relationships. He has three half-siblings from his mother's subsequent relationships and five half-siblings from his father's subsequent relationship. 3 After his parents' separation, the offender was cared for by his mother. He has not had any contact with his father since his parents' separation and he does not have any memory of his father. He has close contact with his mother and his mother's other children. 4 Both the offender and his mother were subjected to physical abuse by his mother's second husband. This, so far as I am aware, is the only untoward thing in his upbringing. I do not see this as related to his commission of the subject offences. 5 The offender attended primary and secondary schools in the western suburbs of Sydney. His time at school was not a particularly happy time. He completed year ten and obtained the School Certificate, and he commenced year eleven but he did not complete the year. He has not undertaken any occupation or trade course since leaving school, as per paragraph 15 of the report of Ms Seidler, psychologist, exhibit 1, or he has completed a Food Safety course and a security course since leaving school, as per the pre-sentence report, exhibit T, and I do not know which is correct. 6 The offender has been employed in various unskilled or semi-skilled employments by different employers since leaving school. However, he had been unemployed for some period of time before his commission of the subject offences. 7 The offender is single, never having married, and he does not have anyone dependent upon him. 8 The offender does not have a completely unblemished character. He has been dealt with by a Magistrate in the Local Court at Penrith for four offences arising from his driving of a motor vehicle, with two of them being committed on 29 February 2000 and the other two of them being committed on 30 December 2001. He was ordered to pay a fine and he was disqualified from holding or obtaining a driver's licence for each offence. These offences pale into insignificance when compared with the subject offences. I disregard these offences in determining an appropriate sentence for each of the subject offences. 9 At about 11pm on 28 March 2005, at Shelley Beach, the offender and his co-offender, Mr Shaun David Crompton, robbed Mr Luke Patrick Cotter, Mr Nathan Thomas Boler, Ms Skye Maree Collins and Ms Amanda Brooke Moffitt of their property when they, the offender and Mr Crompton, were armed with a dangerous weapon, namely a plastic replica pistol. 10 What happened was this. Ms Collins had driven her car with her friends, Mr Cotter, Mr Boler and Ms Moffitt, to the waterfront at Shelley Beach. Mr Cotter was aged seventeen years, Mr Boler eighteen years, Ms Collins seventeen years and Ms Moffitt sixteen years. Mr Cotter was seated on the front passenger seat, Mr Boler on the rear seat behind Mr Cotter, Ms Collins on the driver's seat and Ms Moffitt on the rear seat behind Ms Collins. At about 11pm their talking among themselves was interrupted by a knock on the driver's door window. They saw two men standing at the driver's door. One of the men was the offender and the other man was Mr Crompton. Mr Cotter left the car and he was followed by Mr Boler. They walked to the rear of the car where they spoke to the offender and Mr Crompton. Mr Crompton asked for directions to Mannering Park. When Mr Boler was giving directions to Mannering Park, Mr Crompton produced the replica pistol, threatened Mr Cotter and Mr Boler with it, and demanded that they hand over their wallets. Mr Cotter took his wallet from his pants pocket and threw it onto the ground. Mr Boler took his wallet from his pants pocket and, after removing his money, $18, from it, handed over the money to Mr Crompton. The offender picked up Mr Cotter's wallet from the ground and gave it to Mr Crompton. Mr Crompton then showed the replica pistol to Ms Collins and Ms Moffitt, threatened them with it, and demanded that they hand over their wallets. Ms Collins took her wallet from her bag and Ms Moffitt's wallet from her bag and she handed over both wallets to Mr Crompton. The offender and Mr Crompton then left the scene and they walked to their car, which was parked some short distance away. 11 After arriving at their car, Mr Crompton put the wallets of Mr Cotter, Ms Collins and Ms Moffitt into the fuse compartment under the dash panel of the car and the offender put the replica pistol, which Mr Crompton had given to him, into the fuse compartment. Then Mr Crompton took off the jacket that he was wearing and put it into the boot of the car and then the offender, with Mr Crompton as the front seat passenger, drove the car away. As the car was low on petrol, the offender drove the car to a petrol station. However, before reaching the petrol station, the offender stopped the car and Mr Crompton alighted from it, and then the offender drove the car into the petrol station. At some time, either at the car after the robbery, or when Mr Crompton alighted from the car, or when he stopped the car at the petrol station, the offender took off the jacket that he had been wearing and put it into a backpack which was on the rear seat of the car. After putting petrol into the car, the offender drove the car away from the petrol station and back to where he had left Mr Crompton. Then the offender drove the car to Wyong Road in Tumbi Umbi, where he stopped the car alongside a garbage bin, into which Mr Crompton disposed of the unwanted stolen property. Then the offender drove the car towards Toowoon Bay. 12 At about 11.30pm that night, police stopped the blue coloured Holden Commodore sedan, registered number YUB-958, on Koongara Street in Toowoon Bay to subject the driver of it to a random breath test. The offender was the driver of the car and Mr Crompton was the front seat passenger of it. A search of the car, which was permitted by the offender, revealed a plastic replica pistol and a woman's purse in the fuse compartment under the dash panel of the car, some coins in the console between the front seats of the car, a white jacket in the boot of the car, which jacket was similar to the jacket worn by one of the two robbers, and a jacket in a backpack on the rear seat of the car, which jacket was similar to the jacket worn by the other of the two robbers. A search of the offender, which he permitted, revealed notes and coins amounting to $43.05 on him. Both the offender and Mr Crompton were arrested and they were taken to The Entrance Police Station. 13 At about 2.52am on 29 March 2005, Detective Senior Constable Walker, in the presence of Detective Senior Constable Moir, commenced to interview the offender. The interview concluded at 3.55am. The offender was asked and he answered 366 questions. The interview was recorded on video and audio tapes. The offender admitted being present with Mr Crompton when the offences were committed, but he claimed that he believed that what Mr Crompton intended to do was to commit a "practical joke" on some people. After being interviewed, the offender was charged with four offences of robbery whilst armed with a dangerous weapon. 14 On 29 March 2005 the offender appeared before a Magistrate in the Local Court in Wyong in relation to the offences with which he had been charged. He was granted bail and the proceedings were stood over to a later date. 15 In due course, on 29 June 2005 the offender appeared before a Magistrate in the Local Court at Wyong for a committal hearing. It was a paper committal hearing. As expected, as the Crown's case was not challenged or tested, the offender was committed to appear on 11 August 2005 in this Court at Gosford for arraignment. 16 Accordingly, on 11 August 2005 the offender appeared before Judge J X Gibson in this Court for arraignment. He was indicted with four charges of robbery whilst armed with a dangerous weapon and he pleaded not guilty to each charge and his trial was fixed for 14 November 2005, later changed to 8 May 2006. 17 On 8 May 2006, the offender appeared before me in this Court to stand his trial. The Crown Prosecutor presented an indictment which charged the offender with four offences of robbery whilst armed with a dangerous weapon. The offender pleaded not guilty to each charge. A jury was empanelled. The jury heard evidence from ten witnesses, including the accused, and it received sixteen exhibits, all tendered by the Crown Prosecutor, over three days from 8 to 10 May 2006; counsel's addresses on one day, 11 May 2006; my summing up over two days, 11 and 12 May 2006; and it returned its verdict of guilty on 15 May 2006. After taking the jury's verdicts, I stood over the sentencing proceedings to 20 July 2006 and revoked the offender's bail. 18 The jury's verdicts of guilty did not surprise me, as the Crown's case was strong to the point of being overwhelming, and the offender's case, as contained in the police interview of him on 29 March 2005, and repeated by him in his evidence, was improbable to the point of being fanciful. 19 On 27 September 2006 the offender appeared before me on the sentencing proceedings. I received documentary material from the Crown Prosecutor, exhibits R to V inclusive, and the offender's counsel, exhibit 1, and I heard evidence from the offender and submissions from the offender's counsel and the Crown Prosecutor as to sentence, after which I stood over the sentencing of the offender to 6 October 2006, later changed to today. 20 I am now to impose sentence upon the offender for the offences of which the jury found him to be guilty. 21 The offences committed by the offender are very serious offences, notwithstanding that the weapon that the offender and his co-offender used was a plastic replica pistol. They are offences contrary to section 97 subsection (2) of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of twenty-five years. They are offences which cannot be dealt with summarily. They are offences which do not carry a standard non-parole period. They, and the less serious offences of robbery contrary to section 94 of the Crimes Act, and armed robbery contrary to section 97 subsection (1) of the Crimes Act, are prevalent offences, usually committed by young men, who usually are users of prohibited drugs, in which money or property of relatively little value is stolen, but which often cause great emotional harm to the victims. As it has transpired, the emotional harm of the subject offences upon Ms Skye Collins, one of the victims, has been substantial, as revealed by her statement, exhibit R. I understand and appreciate the emotional harm of the offence upon Ms Collins. The circumstances in which she and her friends found themselves, confronted, as they were, by two young men, one holding what they believed to be a real pistol, must have been terrifying. 22 As I have said already, the offender committed the subject offences in the company of Mr Crompton. Both Mr Crompton and the offender were charged with four counts of robbery whilst armed with a dangerous weapon contrary to section 97 subsection (2) of the Crimes Act. On 8 February 2006 Mr Crompton appeared before Judge McLoughlin and, after pleading guilty to the subject offences, he gave evidence as to his participation in them (see the transcript of Mr Crompton's evidence, exhibit U1.) Mr Crompton was born on 2 November 1984 and, accordingly, he was aged 20 years 4 months when he participated in the subject offences. Mr Crompton said in evidence that the offender suggested that they "roll some people" (transcript page 10 line 20); that he went along with the offender "just to help him out" (transcript page 10 line 37); that the offender "was the one that (sic) was after the money" (transcript page 10 line 52); that the offender suggested when they left the car that he "grab the gun" (transcript page 11 line 38) because "it would be good back up" (transcript page 11 line 34); that the offender "collected two wallets off the two boys" (transcript page 12 line 21); that the offender received all of the money taken from the wallets (transcript page 17 line 29); that, although he regarded the offender as his friend, he had a "little bit of fear of" him (transcript page 2 line 35); and that he had lied to police about what had happened because of what the offender "would do to me and my daughter or my family" (transcript page 2 line 28). 23 On 30 March 2006 Judge McLoughlin sentenced Mr Crompton, upon the evidence before him, including the evidence of Mr Crompton, which he accepted, and, after allowing a discount of 25 per cent for the guilty pleas, to imprisonment for four years with a non-parole period of two years three months and a parole period of one year nine months for each offence, with two of the sentences commencing on 24 August 2005, one of the sentences on 24 November 2005 and the last of the sentences on 24 February 2006, with the result that Mr Crompton will be in prison for two years nine months from 29 August 2005 to 23 May 2008, and on parole for one year nine months from 24 May 2008 to 23 February 2010. 24 There are differences between the offender and Mr Crompton. The offender is two years nine months older than Mr Crompton. The offender has a record for driving offences, which I have disregarded in the determination of appropriate sentences, whereas Mr Crompton has a record for two more serious criminal offences. Mr Crompton was subject to a bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act, entered into on 11 June 2004, and a community service order made 27 October 2004, whereas the offender was not subject to any restraint or restriction. The offender pleaded not guilty to the offences, whereas Mr Crompton pleaded guilty of them. The offender does not regard himself as being guilty of the offences, whereas Mr Crompton is remorseful for having committed the offences. Because of these differences, I consider that I am not bound to impose sentences upon the offender which are the same as or similar to those imposed upon Mr Crompton by Judge McLoughlin. 25 The offender's counsel submitted that the offender's role in the offences was less serious than that of Mr Crompton and, therefore, the sentences to be imposed upon the offender should be less severe than those imposed upon Mr Crompton. The Crown prosecutor submitted that the offender's role in the offences was equal to that of Mr Crompton and, because of the differences between them, the sentences to be imposed upon the offender should be more severe than those imposed upon Mr Crompton. 26 I agree with the Crown Prosecutor that the role of the offender in the offences was equal to that of Mr Crompton, albeit that they did different things during the commission of the offences. Although Mr Crompton had the plastic replica pistol, the offender knew that Mr Crompton had it. Although Mr Crompton suggested, on the offender's version, that they confront somebody with the replica pistol, the offender knew what Mr Crompton intended to do. Mr Crompton and the offender walked together from where the offender had parked their car to the yellow coloured Hyundai in which Ms Collins and her friends were sitting. Mr Crompton and the offender both asked Mr Cotter and Mr Boler for directions to Mannering Park. The offender was present, standing alongside Mr Crompton, when Mr Crompton produced the replica pistol to Mr Cotter and Mr Boler, threatened them with it and demanded that they hand over their wallets. When Mr Crompton threatened Mr Cotter and Mr Boler with the replica pistol, the offender said, "Do what he says. He's not fucking around." The offender was present when Mr Crompton took $18, which Mr Boler had removed from his wallet, from Mr Boler. The offender picked up Mr Cotter's wallet from the ground where Mr Cotter had thrown it and he handed it to Mr Crompton. The offender was present when Mr Crompton showed the replica pistol to Ms Collins and Ms Moffitt, threatened them with it and demanded that they hand over their wallets. When Mr Crompton threatened Ms Collins and Ms Moffitt with the replica pistol, the offender said "Don't shoot, mate" or, "Don't shoot anyone." The offender was present when Mr Crompton took the wallets from Ms Collins. The offender and Mr Crompton walked away together from Ms Collins' car, with Mr Crompton taking the wallets of Mr Cotter, Ms Collins and Ms Moffitt and the $18 taken from Mr Boler, with him. The offender was present when Mr Crompton put the stolen wallets into the fuse compartment of the car and then removed the jacket that he had been wearing and put it into the boot of the car. The offender put the replica pistol into the fuse compartment of the car. The offender drove the car away from the scene of the offences. At some time the offender removed the jacket that he had been wearing and put it into the backpack which was on the rear seat of the car. The offender was present when Mr Crompton disposed of the unwanted stolen property into a garbage bin on Wyong Road in Tumbi Umbi. I consider that it is beyond argument that thew offender's role in the offences was equal to that of Mr Crompton. 27 The offender's counsel submitted that the offender's responsibility for the subject offences was lessened because of his mental state and his abuse of cannabis. 28 As to the offender's state of health, the offender's physical health is good, albeit that, during 2002, he suffered a closed head injury and a fracture of his right lower leg in a motor vehicle collision. But his mental state is not good, as revealed by the report, exhibit W, of Professor Greenberg and the report, exhibit 1, of Ms Seidler, which reports do not need to be recited. However, accepting that his mental health is not good, I cannot see anything in the evidence which suggests that the state of his mental health played any part in his decision to participate in the subject offences. 29 As to the offender's use of prohibited drugs, the offender told the Probation and Parole Office who prepared the pre-sentence report, exhibit T, when he was interviewed on 29 June 2006, that he consumed intoxicating liquor "occasionally on a social basis" and that, although he smoked cannabis for some time from when he was aged seventeen years, he had ceased to smoke it because he had suffered an episode of "drug induced psychosis". He told Ms Seidler, psychiatrist, who prepared the report, exhibit 1, when interviewed on 13 July 2006, much the same as he had told the Probation and Parole Officer, but added that he had used amphetamine "on one occasion". However, he told Professor Greenberg, psychiatrist, who prepared the report, exhibit W, when interviewed on 16 September 2006, that he had used amphetamines "for a three month period", and that "at the time period surrounding the alleged offences, he was smoking approximately twelve cones of cannabis", which I assume to be per day. Moreover, the offender told me in evidence on 27 September 2006 that he had smoked between ten and twelve "bongs" with Mr Crompton between 9.30pm and 10.30pm on the night when the offences were committed, and that he was "spaced out" by what he had smoked. However, there was nothing in the evidence of any of the victims which suggested that either the offender or Mr Crompton was affected by or under the influence of anything, and, although the offender told police when he was interviewed that he and Mr Crompton had had "a smoke" (see answers to questions 103 and 217 of the record of interview), the offender told police that he did not use "drugs" and that he had not "smoked for about three" years (see answer to question 302 of the record of interview). 30 Although I accept that the offender had abused both intoxicating liquor and cannabis during his later teenage years, and that he had used amphetamine "once" or "for a three month period", I do not accept that the offender was affected by or under the influence of intoxicating liquor or any prohibited drug when he committed the subject offences, and I do not accept his evidence that he had lied to police because he was ashamed and embarrassed by his smoking of cannabis. 31 As to the offender's rehabilitation and the likelihood of his not reoffending, the evidence is meagre. All I know is his age, now 24 years 8 months; his record, four offences related to his driving of a motor vehicle; the fact that he has the support of his mother, who will welcome him into her home on his release from prison; and the fact that he has not served a prison sentence. I am prepared to accept that the offender, if he makes good use of his time in prison, and if he accepts the guidance of the Probation and Parole Service after his release from prison, has reasonable prospects for rehabilitation and is reasonably unlikely to reoffend. 32 What, then, having regard to what I have said about the offences and the offender, is an appropriate sentence to impose upon the offender for those offences? 33 In determining an appropriate sentence to impose upon the offender for each offence, I must recognise the purposes of sentencing outlined in section 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in section 21A subsection (2) of that Act as are present, and such of the mitigating factors referred to in subsection (3) of that section as are present, and any other relevant factor. 34 As the Crown Prosecutor submitted, an appropriate starting point is the guideline judgment of the Court of Criminal Appeal in Henry. The guideline is that, for a typical armed robbery offence committed by a typical offender who pleads guilty to the offence, albeit not at the earliest opportunity, the sentence should be imprisonment within the range from four years to five years. In many respects, the offences committed by the offender and Mr Crompton were typical armed robbery offences. They were unplanned, being spur of the moment or spontaneous; they did not require much in their execution; they involved threats and the use of a weapon, although, fortunately, the weapon was a plastic replica pistol which was harmless, although the victims of the offences were unaware that it was a plastic replica; and none of the victims was physically injured during the robbery, although the emotional harm of the robbery upon Ms Collins was substantial; they resulted in property of relatively little value and a small amount of money being stolen, some of which property was recovered by police after the arrest of the offender and Mr Crompton. Also, in some respects the offender is a typical offender, being relatively young and without a record of criminal offences, although he did not plead guilty to the offences. However, as the Crown Prosecutor pointed out, the judgment in Henry applies to offences contrary to section 97 subsection (1) of the Crimes Act, which carry a prescribed penalty of imprisonment for a maximum of twenty years, whereas the offender has been found guilty of offences contrary to section 97 subsection (2) of the Act, which carry a prescribed penalty of imprisonment for a maximum of twenty-five years, which means that the starting point should be imprisonment for a period greater than four or five years. 35 As to section 21A of the Crimes (Sentencing Procedure) Act, I consider, having regard to what I have said already, that the aggravating factors are those lettered (e), because the offences were committed in company, and (g), insofar as the emotional harm upon Ms Collins is concerned, in subsection (2), and that the mitigating factors are those lettered (a), as to Mr Cotter, Mr Boler and Ms Moffitt, (b), (e) and (f), in subsection (3), and that the offender has reasonable prospects for rehabilitation and for not reoffending. 36 One factor not mentioned in section 21A of the Act is deterrence, both personal and general. I see personal deterrence to be of less importance in this case than it might be in another case, because these are the first criminal offences committed by the offender and, as I have said already, he has reasonable prospects for his rehabilitation and he is reasonably unlikely to reoffend. However, I see general deterrence as important. As I have said already, offences of this kind are prevalent offences, often committed by young people who are usually affected by drugs, in which a small amount of money is stolen or property of relatively little value is taken, but great emotional harm is caused. General deterrence is something which cannot be ignored or under-valued. 37 Although I accept that the offences are serious offences, I consider, viewed objectively, that they fall below the middle of the range of seriousness for offences of their kind, and, taking that into account, I have determined that the sentence which is appropriate to impose upon the offender for each offence is imprisonment for six years. Apportionment of a sentence of imprisonment for six years in accordance with the statutory ratio will result in a non-parole period of four years six months and a parole period of one year six months, in the absence of a special circumstance. 38 I consider that special circumstances exist, those being the offender's age, the fact that he does not have a record for criminal offences, and the fact that he has never been imprisoned. I propose to fix a non-parole period of three years and a parole period of three years. 39 As to whether the sentences should be served concurrently or consecutively, or partly concurrently and partly consecutively, the offender's counsel submitted that, as all of the offences were committed at the one and the same time, the sentences should be served concurrently, and the Crown Prosecutor submitted, as there were four offences, one committed upon each victim, the sentences should be served partly consecutively. I agree with the Crown Prosecutor that to punish the offender appropriately for four offences, albeit committed at the one and the same time, the sentences should be served partly consecutively. 40 Accordingly, Imraaz Hudson, for each of the four offences of robbery whilst armed with a dangerous weapon, of which the jury found you to be guilty, you are convicted. I sentence you as follows: 41 For the offence against Mr Cotter, count 1 of the indictment, imprisonment for six years with a non-parole period of three years from 15 May 2006 to 14 May 2009 and a parole period of three years from 15 May 2009 to 14 May 2012. 42 For the offence against Mr Boler, count 2 of the indictment, imprisonment for six years with a non-parole period of three years from 15 August 2006 to 14 August 2009 and a parole period of three years from 15 August 2009 to 14 August 2012. 43 For the offence against Ms Collins, count 3 of the indictment, imprisonment for six years with a non-parole period of three years from 15 November 2006 to 14 November 2009 and a parole period of three years from 15 November 2009 to 14 November 2012. 44 For the offence against Ms Moffitt, count 4 of the indictment, imprisonment for six years with a non-parole period of three years from 15 February 2007 to 14 February 2010, on which date you are to be eligible to be released on parole, and a parole period of three years from 15 February 2010 to 14 February 2013. 45 The earliest date for your release from prison is 14 February 2010. I order that you be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period. ********** 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.