New South Wales District Court CITATION: R v Matthew Ryan Thomas [2007] NSWDC 69 JUDGMENT DATE: 30 March 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted.; NPP 18 months commence 30/3/07 expire 29/9/08; Balance of Term – 23 months expire 29/8/2010; Recommend to Parole Board consider making an order by Dr Dalton for a WayBack Treatment Program; Recommend be classified as soon as possible in regard to his immediate welfare with a view to him being placed in a minimum security environment as soon as possible. CATCHWORDS: Criminal Law - Sentencing - Rob with Wounding - Rob in Company - young offender - second robbery whilst on bail for first - strong rehabilitation. R v Gladue [1999] 1 SRC 688 at [80]. R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 594 CASES CITED: R v Hayes [1984] 1 NSWLR 740 R v Rause unreported, NSWCCA 8 August 1992 Walden v Hensler (1987) 163 CLR 561 per Brennan J at 569-570 R. v Henry (1999) 46 NSWLR 346 PARTIES: Regina Matthew Ryan Thomas FILE NUMBER(S): 05/21/0295 COUNSEL: Accused: N. Steel Crown: Ms Durnell - Office of Director of Public Prosecution - Parramatta SOLICITORS: OVERTURNED ON CROWN APPEAL - see R V THOMAS [2007] NSWCCA 269 JUDGMENT 1 HIS HONOUR: On his way home from work on 12 April 2005 Vasanthan Kandiah took a short cut across a portion of the Parramatta Golf Course. He had travelled some fifty metres along a pedestrian path. He still had some short distance to walk before he reached the Parramatta Rugby Union Club. His journey was interrupted by four youths who robbed him. 2 Matthew Ryan Thomas, a young man then approaching his twenty-first birthday, was one of the youths. He was charged with robbery in company. He denied he was a robber. After an eight day trial a jury found him guilty. 3 A little over a month earlier than this offence Kiaron Mucullough made his way to a Telstra payphone opposite the Bendigo Bank in the Parramatta street mall. While at the payphone he was talking to his brother. Earlier he had consumed a large quantity of alcohol. He had also purchased three 750ml bottles of beer. One was opened and he was consuming its contents. Whilst at the phone booth he was approached by a young man who claimed he wanted the phone. Words were exchanged Mucullough became scared and ran from the phone. Some minutes later he was brutally robbed by two men, one of whom was the same man who frightened Mucullough whilst he was calling. That man, again, was Matthew Ryan Thomas. Worse, that man was responsible for wounding Mucullough. Matthew Thomas pleaded guilty to the aggravated robbery of Kiaron Mucullough. 4 Today, Matthew Thomas, is to be held accountable for his criminal conduct as reflected in these two offences. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these two offences before this court committed by this offender harming these two victims within this community. (See R v Gladue [1999] 1 SRC 688 at [80]. 5 My initial task requires an assessment of the objective criminality of each offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessment requires the sentencing judge to make findings of fact from the evidence before the Court relating to these offences and to this offender. The offender's rehabilitation prospects will have to be assessed even if looking at the future through a glass darkly. 6 Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, the length of the parole periods and finally, of course, the ultimate length of the term of imprisonment that is to be imposed. None of those matters can be addressed until the primary facts are determined. What weight will need to be given to all of these matters against the imperative that all sentencing should have as its primary focus, the protection of the community, will also need to be determined. (see: R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 594 and R v Hayes [1984] 1 NSWLR 740). THE FACTS IN RELATION TO THE VASANTHAN KANDIAH ROBBERY 7 Looking at the robbery of Mr Kandiah, which I will call the Kandiah robbery, the facts as I find them to be are these: Mr Kandiah was walking home from work. He had joined the path across the golf course from Argyle Street. That path is a hundred and fifty metres across the park or golf course. He had walked, as I said, about fifty metres of it. He saw four youths approach from his left. They made their way to a bench which was some distance in front of him. That bench was next to the footpath. He was approaching close to that bench with his mobile phone in his hand as he walked. He had already become concerned, fearful and dialled Triple 0 to seek the police. I cannot be satisfied that the call he sought to make was in fact connected. 8 One of the youths came from the bench. When two to three metres from him the youth asked for a two dollar coin. Kandiah said, "I have no change." The youth abused him using foul language and racial slurs. Kandiah stopped. The youth grabbed his jacket and continued swearing and abusing him. 9 Another youth pulled the mobile phone from his hand, looked at the mobile phone and began pressing buttons. There was a conversation to the effect that the Triple 0 was on the screen. By this time there were two or three males standing on his left. 10 Another youth in that group who had a baseball cap on pulled the mobile phone from the hands of the youth who first had it. He too commenced playing with the phone. 11 Kandiah sought to continue walking on; however, the four youths were encircling him. He made no more than four to five metres. A youth grabbed his jacket, Kandiah turned to face that youth, in so doing he was facing the direction from which he had come. The abuse continued. A youth put his arms completely around Kandiah. Kandiah could smell alcohol and the smell that reminded him of vomit. It may well be that his sense of smell was right because I am satisfied the youths had been drinking. He sought to push that youth away with his left hand. Four or five times he pushed. The youth did not go away. Kandiah then pushed him harder driving that youth two to three metres back. 12 Another youth, on the crown case the offender, said, "Excuse me, you've just hurt my friend." Mr Kandiah replied, "I didn't mean to hurt your friend, I just pushed him away." There was exchange between Kandiah and the accused who Kandiah said spoke aggressively. Kandiah tried to brush them off saying, 'I didn't hurt your friend, just go away." 13 The accused raised his right fist, drew it back and struck Kandiah in the cheek just below his left eye. Kandiah was dizzy, could see nothing and was knocked to the ground. In so saying I am not confident that he was knocked flat to the ground, but certainly to his knees. He tried to stand up after a moment or two. He called out, "Help". He turned to face all four youths. He was rushed. He put his arms in a defensive position to protect his head. He was driven back four or five metres. He was hit from his front and on his right. His jacket was grabbed and pulled and in the course of that occurring his arms were forced back and with the strain the jacket slipped from his arms. 14 He was pushed so that he fell to the ground. As he tried to get up he was kicked, he fell back to the ground, used his arms to protect his head. He was kicked along the right side of his body. He had difficulty breathing. The abuse was continuing. One of the youths however was screaming, "Where's your wallet, where's your wallet." With all the noise going on another said, "Stop, he can't hear you". The demand for the wallet was repeated. Kandiah directed the youths to the briefcase. The briefcase was found and taken. It was later found elsewhere in the golf course. His wallet was missing. Once the case was taken there was quiet for a while. Kandiah managed to get to his feet. Disorientated, he realised he had been robbed. He saw the youths some distance away. He made his way to Parramatta Rugby Union Club and reported the robbery. 15 The physical injuries to Mr Kandiah as a consequence of his treatment at the hands of the robbers included bruising and pain from being kicked over his body. The lining of the skin of his mouth and his cheeks and lips were all injured. I will return to the topic of his psychological injuries in particular when I deal with the victim impact report from him. THE FACTS IN RELATION TO THE ROBBERY OF KIARON MUCULLOUGH 16 The crown tendered a series of allegations which it labelled 'facts'. Many of these allegations were not disputed but crucial ones were. Evidence was led from the victim, the offender and a co-offender named McLennan. I intend firstly to read out the facts as I find them to be and thereafter explain how it is that I determined some of the disputed facts adversely to the offender. 17 On 2 March 2005 Kiaron Mucullough spent a considerable time at the Parramatta Hotel playing pool with friends and drinking. Some time after 8.30 he bought three long-neck bottles of VB. He walked from the pub through the Church Street Mall towards North Parramatta. As he made his way he was drinking from one of the long-neck bottles. The other two were unopened and in a plastic bag. At the corner of Macquarie Street he went into a phone box to call his brother. The opened VB bottle was on a bench inside the phone booth. The offender, at the time a passenger in a red Ford Laser being driven by a juvenile and in which McLennan also was with two others and the offender, spotted Kiaron Mucullough. He said to the driver, "Stop the car, there's a guy with a long-neck at the pay phone and I'm going to take it." He also called on one of them to jump out "just in case it turns back on me." 18 Thomas alighted from the car and went across the road to the phone booth. McLennan also alighted from the car. He too walked across the road but hung back from the phone booth. There was some interchange between Mucullough and the offender. Mucullough stepped outside the phone booth and the offender pushed and shoved him. Mucullough ran across the street, fearful, turned into the Church Street Mall, ran in the direction of the railway station carrying his two VB bottles in the plastic bag. Matthew Thomas chased him, so too did Jake McLennan. McLennan was the one who tripped Mucullough and Mucullough fell to the ground, dropped the plastic bag containing the VB bottles. Regrettably they did not break. Had they broken it may well be that this robbery would not have occurred. 19 While he was on the ground both men, McLennan and the offender, started belting into Mucullough. Both, in my view, were kicking Mucullough on the ground. Mucullough managed to hold the offender's leg. As best I can tell, the offender then started kicking with his other leg. Mucullough managed to hold onto both of this offender's legs. Whether the offender panicked or whether he decided to end the situation then and there, he picked up the plastic bag containing the bottles of VB, swung them over his shoulder and hit Mucullough in the back of the head with the bottles. He then picked up one of the VB bottles from the ground and he and McLennan retreated to the Ford Laser. 20 Two police officers on foot patrol were told by a member of the public of the bashing in the mall. They hurried and saw the offender and McLennan running along Church Street to the car. Once in the car the offender said, "Drive off; look what I've got" and pointed to his trophy, the VB bottle. He placed that in the boot of the car where it was later found by police. It was not long before the police were speaking to the offender at a nearby BP Service Station. He was asked to show his hands. On his hands were blood stains. He sought to explain those by saying he had hurt himself at work. I am satisfied there were no wounds on his hands that caused that blood. There was also blood on his shoes and shorts. Those items of clothing were seized. 21 The crucial facts of the Kiaron Mucullough robbery were much in dispute. I heard from the victim who was unable to identify his assailants and Jake McLennan. McLennan was a co-offender. The law recognises that co-offenders and accomplices are persons who belong to a class of witnesses who maybe unreliable, have an interest in minimising their own offending conduct and are striving, or often striving, to ingratiate themselves with prosecutors by giving an account that implicates the prosecuted. They are also recognised as witnesses who maybe inaccurate, dishonest but nonetheless impressive. Even so, McLennan's general account I find convincing. 22 I have sought to recognise the possibility of and identify the fact of some minimising by him. The starting point for the accused and McLennan was the same, that is, that Thomas was the one who made his way to the telephone box. That being so it was Thomas who scared the victim whilst at the box and caused him to run. I have no doubt that that was done through threats, abuse and striking him. It is to be remembered that Thomas [as said, read McCullough] was drunk and probably would have lacked physical coordination. It is also, I suppose, to be remembered that the offender was drunk as well. As he was running, that is as Mucullough was running, he heard someone behind him. I am satisfied that someone was initially Thomas. I am also satisfied McLennan joined and probably overtook Thomas. McLennan's evidence is that he was across the road. I am not entirely sure that that is so. 23 Mucullough makes no mention of seeing a second person in his evidence. Mucullough's evidence is that he thought that there was only one person involved in the attack upon him. He is wrong, indeed he told the police he thought that there were two because of the amount of force used. I think in saying that he accurately described his situation to the police; it is to be remember that that account was given much, much closer to the event than his evidence. 24 McLennan's evidence appears to have some self-serving portions to it. However, his account of Thomas saying he saw a man with long-neck bottles whilst he, Thomas, was in the car, is consistent with Thomas making his way directly to where the bottles were and with Thomas ending up robbing the man of them. His account of there being blows struck at the telephone between Mucullough and Thomas is consistent with Thomas attempting to secure the bottles then. Mucullough's account of being scared is consistent with him being assaulted and some attempt to take his property. The chase by Thomas in circumstances where his claimed purpose was to use the phone makes no sense. The chase however does make sense if one accepts Thomas had an intent to rob. 25 I accept that during the actual attack McLennan may have sought to reduce his role. But I also accept Mucullough's account to the police that there was enough violence in the attack upon him for two persons to be involved. 26 I cannot be satisfied that the victim was struck with anything prior to falling to the ground as he claimed. I am satisfied beyond reasonable doubt that the offender struck the victim a number of times by kicking actions at a time when the victim was on the ground. As I earlier said I am also satisfied McLennan did too. 27 The injuries sustained by Mucullough were reported by Dr Renaldo Hufana. He saw Mr Mucullough at 2.15am on 3 March 2005. The doctor's observations were that Mucullough was orientated to day, date and place, alert, coherent and not in distress. His airway was clear and breathing normal. His Glasgow Coma score was 15/15; the injuries sustained were four: a two and a half centimetre laceration to the occipital area with surrounding haematoma, a one centimetre superficial laceration to the parietal area, swelling over the nasal area with no active bleeding, erythema to the right supra-scapula area. An x-ray showed nasal bone fractures. The victim was advised not to blow his nose and to obtain a referral from his local doctor to an ear, nose and throat specialist once the nasal swelling had subsided. The other injuries were treated. He was discharged at 4.02 on the same day. Mucullough had arrived at hospital at 11pm, was not seen, as I say, by the doctor until 2.15 and was discharged a little less than two hours after being seen by Dr Hufana. 28 I am satisfied the offender was well affected by alcohol on each occasion - by each occasion I mean in the Kandiah and Mucullough robberies. Indeed I am satisfied his associates on each occasion were also to some greater or lesser degree likewise affected by alcohol. 29 The degree of planning for the Kandiah offence was greater. I am satisfied Thomas and his companions were at the golf course in the area of the walkway with a view to assessing their chances of robbing a pedestrian. I am satisfied when they began to 'close-in' from a hundred metres it was with the intent of the whole group to commit the robbery. The selection of a seat in advance of Kandiah was designed to facilitate the robbery. Thereafter, events would require appropriate responses from the robbers to achieve the robbery. I am satisfied the items targeted included a mobile phone and money. As best I can tell the motive for the robbery was to obtain money to continue a lifestyle in which alcohol was important focus. I do not regard the evidence as establishing that Thomas played any leadership role in that robbery. 30 The Mucullough robbery was an opportunistic response to seeing a drunken man alone with alcohol. In this robbery Thomas did take a leadership role in that he initiated the approach and the necessary episode of violence to commit the robbery at the phone booth. The proceeds for this appalling level of violence amount to one bottle of beer. The motive for the robbery was simply to deny by force a working man his beer so that he, Thomas, could drink it himself. So stated, could evidence of such a worthless motive justify so worthless a priority? OBJECTIVE CRIMINALITY 31 From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of each offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in that offence with criminalities of offences of a similar kind. It is in this way that the seriousness of the criminality of each of these offences can be evaluated. The objective criminality will have an important impact upon the overall sentencing outcome. 32 Gleeson J, when Chief Justice of New South Wales encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in R v Rause unreported, NSWCCA 8 August 1992 his Honour said, "One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect of private property, they are serious breaches of the peace. They are direct attacks upon the security of the person and the property which the law exists to protect." His Honour in that case continued by saying, "It is quite likely this young man does not understand and he may never understand the seriousness of his antisocial behaviour. But the courts understand it. Crimes of this kind especially when committed by an offender with long criminal history deserves severe punishment." In this case, of course, the offender does not have (as I will come to later) a long criminal history. 33 The prominent feature of both robberies is the level of violence administered. In cases of robbery, and more so in cases of robbery with wounding, a substantial degree of violence is an element of the offence. Consequently the administration of violence does not constitute an independent aggravating feature. Having said that however one still needs to examine the essence of criminality exhibited by the element of this offence against other robberies in which violence is also an element. The level of violence in each of these robberies is vicious; is administered in each case when the victim was on the ground; is administered by kicking and kicking by more than a single person. There is a level of disinhibition in the violence administered. Having said that the level of violence is not at the extreme level, but it is above the level of violence seen in many robberies. 34 The value of goods taken in either robbery is not great. Indeed I have remarked on the inexplicable situation where the level of violence administered to Mucullough yielded only a 750 mil bottle of beer worth, as I understand it, something less than ten dollars. 35 The robbery of Mucullough is aggravated by its being done in company with McLennan. The wounding of Mucullough is an element of the offence, thus the fact of the wounding does not present as some independent feature of aggravation, nor is the overall wounding as great as is seen in many robbery with wounding cases. However, in assessing the criminality exhibited in this element the targeting of the head where traumatic brain injury can readily be a consequence of kicking or striking, as in this case, increases the criminality by comparison with those cases where the wounding is also minor but relates to less vulnerable parts of the body. 36 From the photographs it appears that there were two areas of the skull that have been attacked. In addition to the wounding on the skull there are lacerations and bruising to the face. 37 The use of bottles as implements to strike Mucullough constitutes a matter aggravating the criminality used in the offence. It is clear the face was a target of the robbers. There are also lacerations and bruising to other parts of his body. However it should be noted no long term physical damage or scaring is reported as arising from the wounds. 38 Both victims were targeted when each was alone. Mucullough was also targeted when he was well affected by alcohol. Each victim then was targeted in situations when each was at his most vulnerable. Each was alone well away from homes and places, that is to say, isolated, as to places where he could flee to. Targeting persons in situations where they are at their most vulnerable does constitute a matter aggravating this offence. 39 At the time he participated in the robbery of Mr Kandiah, Thomas had been charged with and was on bail for the robbery of Karion Mucullough. Again the commission of the second offence that is, the robbery of Mr Kandiah, when granted bail on the understanding that he would be of good behaviour, aggravates the criminality of the offender when committing the second offence. 40 Mr Kandiah complained of racial slurs made to him during the robbery that, of course, was unfortunate. I cannot be satisfied that the offender was the person who made those slurs. Nor can I be satisfied there was any racial motivation in the selection of Mr Kandiah as the intended victim of the robbery. He was selected on the criteria that he was alone, well isolated from any potential rescue and was carrying a brief case and likely would have a mobile phone. 41 An overview of each offence reveals it to be not some minor example of this kind of robbery. The criminality of the conduct exhibited in each robbery is serious enough to call for a sentence of full-time incarceration of some significance. VICTIM IMPACT STATEMENT 42 I have received a victim impact statement from Vasanthan Kandiah. The material in that statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I recognise they too have not been the subject of cross-examination. 43 A victim impact statement may, if I accept it as reliable, provide unsworn evidence as to the facts of the offence and their effect upon the victim. The function of statements such as the one read by Mr Kandiah in court and the one to which I am about to refer, give to the victims an opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender or in this case offenders. Secondly, it enables the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, the victim impact statement contributes to an offender at least hearing at first hand and hopefully gaining some insight into the impact his offending conduct had upon the victim. Finally, the victim impact statement ensures that a court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are its victims. As such victim impact statements play an important part in the administration of criminal justice. 44 I do not intend to review the statement read by Mr Kandiah. He had his opportunity to read it in court, but he had annexed to it a report by Alison Rowe, a clinical psychologist, with whom he had been consulting. She makes these points, "Kandiah was clearly very anxious during his appointments, speaking rapidly most of the time. He is suffering a number of trauma related symptoms including painful memories, distressing dreams, feeling that he is reliving the event, avoidance, difficulty in enjoying his normal pursuits, feelings distant from people, feeling numb, sleep disturbance, feeling very angry, difficulty concentrating, hyper-vigilance, physical distress such as a racing heart, feeling of choking, difficulty breathing and indigestion. He is suffering a severely depressed level of mood and severe anxiety. He feels ashamed that he was unable to protect himself during the assault. His main way of coping has to be to mobilise his anger in his determination to have the perpetrators brought to justice. Although Mr Kandiah has friends, because of his shame, he does not speak to anyone about this ordeal including his wife. Subsequently he has become socially withdrawn. Kandiah reported that he found the legal system very demoralising and frustrating and he feels that the law protects the criminals rather than the victims. As a result of the assault he suffered injury to the tendons and ligaments of his left knee and right shoulder. He has ongoing problems with mobility and chronic pain with them; he is having physiotherapy and has noticed come improvement." 45 It is not surprising that Mr Kandiah found the legal system demoralising and frustrating. Many of the victims do. Their aims and the aims of the criminal justice system are often very different. They would be seeking retribution. The criminal justice system seeks justice and in so doing, of course, seeks to ensure that only guilty persons are found guilty. That is, we recognise the presumption of innocence. That Mr Kandiah feels the law protects criminals rather than victims is certainly a view open to him but I am sure that accused persons often feel the other way. It is simply a matter of whose eyes one is looking at it through. Justice can only be successful if it is even-handed. SUBJECTIVE MATTERS 46 I turn now to the subjective factors; I am both entitled and required to do that. Not only am I sentencing for these criminal offences but I am also sentencing this offender for them. Each offender coming before the Court varies from other offenders who stand, or who have stood, for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of these offences by this offender or some reason why a more or a less sentencing outcome is appropriate. FAMILY DYNAMICS AND PERSONAL BACKGROUND 47 Matthew Thomas was born in August of 1984. At the time of each robbery he was still 20 years old, heading for his 21st birthday. He lives with his family in the Parramatta region. He has three siblings; two sisters and a brother, all older than he. His family, parents and one sister, as best I can tell, in particular, have supported him on each occasion he has been to court. At least three of his family have accompanied him on all occasions. 48 He discloses a happy childhood. He has a partner of about the same age, employed in the loans department at a finance company. She has no problematic substance abuse and no psychiatric or criminal history. Matthew Thomas regards her influence on his behaviour as positive. There are no children. 49 It would seem in his mid teenage years he gathered around him a negative group. The lifestyle choices of that group were alcohol, risk taking and antisocial behaviour. 50 On each of the two occasions he offended, alcohol and some of his unfocussed and inebriated peers were part of the scene. EDUCATION, TRAINING AND SKILLS 51 At school he apparently obtained average grades. He was suspended in Year 7 for truancy. He left schooling, having completed Year 10. 52 Thereafter, he worked as a car detailer for four years. For a year he then worked in a delivery position for a window company. That, he found arduous and returned to car detailing. More recently, he has worked as a landscape gardener. 53 He has supplied a reference from his current boss, John Brogden, with whom he has been for four months; it might now be more. Mr Brogden indicates a willingness to employ Matthew Thomas as "the opportunity arises". He reports Thomas works well; does not require constant supervision; is polite, courteous and his honest. GENERAL HEALTH 54 From appearances in court, it would seem Matthew Thomas is a fit, medium sized, stocky built, 22 year old male. He is reported to have no prominent scarring or tattoos. So far as one can tell, he appears to be in good physical health. He is 172 centimetres high. MENTAL HEALTH 55 He falls within the average intelligence range. When tested by Peter Ashkar, a forensic psychologist retained by the defence, there was no evidence of impaired executive functioning. Ashkar is satisfied Matthew Thomas's intellectual functioning is intact. ALCOHOL AND SUBSTANCE ABUSE 56 Alcohol abuse was a factor in each of the offences before me. 57 Ashkar opined, the offender required psychological treatment for the management of his alcohol use. 58 The offender gave evidence, that I accept, of multi-weekly visits to Alcoholics Anonymous. Two fellow AA members have supplied letters attesting to his attendance. 59 Dr Stella Dalton reports that the offender came under her care in March 2006. The offender, she says, recognises he has a drinking problem. In October of last year, she expressed herself happy to continue his treatment. She noted that if a custodial sentence was imposed she requested a treatment order to the Wayback program. 60 The Court is both satisfied and impressed with the determined and dedicated effort the offender has made to address his alcohol abuse. He has not drunk in a public place since the second offence. ATTITUDE TO THE OFFENCES 61 He has expressed remorse for the Mucullough robbery. He pleaded guilty to the offence, a plea based upon accepting responsibility for his offending conduct. He has publicly expressed contrition for the offence to Peter Ashkar. 62 It is likely he also privately regrets his involvement in the Kandiah robbery. Publicly he has not done so. Identification was the real issue in the trial. He sought to avoid legal responsibility and accountability for it by challenging the identification evidence. One can understand that because the consequence of a conviction must be imprisonment. 63 Even though he has sought to avoid legal responsibility, that does not mean he lacks insight into the offence or its causes, nor does it mean that he does not regret the injuries occasioned to Kandiah. 64 He appears, post this particular robbery, to have addressed his alcohol issues and the equally difficult task of disentangling himself from his antisocial peers. I am less confident of his success in doing the latter, but I am satisfied he is seeking to address that issue. CHARACTER AND ANTECEDENTS 65 Matthew Thomas is now 22 years old. He completed to Year 10 at high school. Thereafter, he appears to have maintained employment in the years since leaving school. His latest boss speaks well of him as an employee. He has good family support and, as best I can tell, he reciprocates by supporting them. 66 True, he did associate with a group of negative peers since his mid teenage years. In those circumstances, the only entry on his antecedents, prior to these offences, relates to a trespass type offence on rail property for which he received a s.10 discharge. 67 Effectively, at the time of the Mucullough robbery, the offender had no prior convictions on his record. His record does not disentitle him to some leniency, particularly in respect of the first robbery on Mucullough. PLEA TO THE FIRST OFFENCE 68 Thomas pleaded guilty to the Mucullough robbery on the date scheduled for the trial. In so doing, he was entitled to a discount for the utilitarian value of the plea. That utilitarian value, in this case, is somewhat diminished by virtue of the fact that the facts upon which the plea was based were in dispute. A hearing was required in this Court. When assessing the appropriate discount it is appropriate to tabulate, therefore, what is embraced by the utilitarian value of the plea. 69 The guilty plea must be recognised as a significant contribution by advancing the administration of criminal justice; first and foremost because the interests of the administration of criminal justice is served by the public acknowledgement by an offender of his guilt. Pleas of guilt by offenders sustain, thereby, the community's confidence in the administration of criminal justice by maintaining confidence of the community in the investigation of crime and the community's expectation that those guilty of crime will be held accountable for it. 70 The administration of justice is also served because court time, witnesses' time, legal expenses and the like are freed so that they can be devoted to other cases. The plea reduces considerably the likelihood of contest in an appeal on the issue of guilt in respect of, in this case, the Mucullough robbery. All of these are important utilitarian factors insofar as the administration of criminal justice, in the Mucullough case, are concerned. 71 In this case, the plea still serves the interest of criminal justice so that the confidence of criminal justice is retained; the time taken to contest the issues was not as long as the estimated hearing length of the trial; no jury was required; the cross-examination of each Prosecution witness was completed within a session. Although I accept it may be towards the top of the available range in circumstances such as this, I intend to give a 15 percent discount for the plea. REHABILITATION PROSPECTS 72 I am satisfied the offender's rehabilitation prospects are solid. He has a supportive family. He has insight into his offending behaviour and its causes. He has taken meaningful steps towards addressing factors causing these two offences. He has a good employment record and the support of his current employer. He enjoys good health, free from mental health issues that could impede his rehabilitation progress. 73 The only real negative issue I see is the counter-rehabilitation pressures that he will fact from the prison population. Current recidivist figures suggest nearly two out of three prisoners return to prison within two years of their release from incarceration. Even so, these offences call for incarceration because of the need for punishment, retribution and deterrence. SPECIAL CIRCUMSTANCES 74 This is case where special circumstances should be found. Among the reasons I find special circumstances is the principle identified by Hunt J in a case, which I think is Pham but it may not be, but, if need be, I will find the reference. When dealing with young offenders who had committed serious offences, his Honour said, in part: "[W] Where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the functions of the court to protect the community require deterrence and retribution to remain significant elements in sentencing him...that is not to say, however, that his youth is to be disregarded in the sentencing process, far from it. It is of particular relevance in determining the appropriate relationship between the minimum and additional terms and it remains an element (albeit less significant than usual) to be considered in assessing the length of the sentence to be imposed. General deterrence, however, remains a primary importance in the circumstances of the case (My emphasis). " 75 While his Honour was speaking, in the circumstances of that case, in respect of a juvenile offender, the principle still has some resonance when sentencing others who are young. 76 Other factors of importance in the decision to find special circumstances is a recognition that this is Matthew Thomas' first time in custody; that his rehabilitation is to be better advanced in the community based setting; that he has already done much to advance his rehabilitation. SETTING THE SENTENCE 77 As I said, this is a case which calls for deterrence. In modern Australian society there is a very extensive raft of criminal laws passed by both the Federal and the State parliaments. The chief purpose of the criminal law put in place by parliaments is to deter those tempted to breach its provisions (see Walden v Hensler (1987) 163 CLR 561 per Brennan J at 569-570. Parliament does that by prescribing maximum penalties for offences for those who engage in conduct prohibited by the criminal law. Consequently, when a person is sentenced for a breach of the criminal law, that person is exposed to the possible maximum penalty for the statute breached. 78 In this case, the maximum penalty for the robbery of Mr Mucullough is 25 years imprisonment. The maximum penalty for the robbery of Mr Kandiah is 20 years imprisonment. 79 Sentencing for breaches of the criminal law requires the sentencing Judge to keep in mind the general deterrence aims of the criminal law for the community at large by keeping in mind those maximum penalties when determining the appropriate penalty in this case and also keeping in mind the deterrent purpose of those maximum penalties. 80 There is a specific deterrence aimed at individuals like-minded to the offender, such as those in the motor vehicle with him; such as those, yet to be found, who committed the offence against Mr Kandiah, who would be willing to commit crimes similar to those for which this offender is being sentenced. 81 Finally, there is a component of deterrence to be considered, personal to the offender, with a view to deterring him or her from reoffending. 82 Given the structure of the sentence that I have determined; the fact that this offender has been to trial; has been before the Court in respect of both matters; has been before the Local Court in respect of both matters; has been arrested and interrogated in respect of one of them, if not both, I am of a view that no further personal deterrence is required. BALANCING THE OBJECTIVE AND SUBJECTIVE FACTS 83 Both offences before me are serious. Notionally and factually, the more serious offence was the robbery with wounding of Kiaran Mucullough. The beating of him was far more vicious than the attack upon Mr Kandiah. The beating occurred at a time when the offender was already in possession of the goods he was intending to steal. His role in this robbery was as leader and instigator. 84 The Kandiah robbery was done with two more co-offenders. I have not ascribed a leadership role to the offender, nor can I find that he was responsible for any of the physical violence to Mr Kandiah once he was on the ground. TOTALITY 85 I am sentencing for two offences. The overall sentence imposed must reflect the totality of criminality found in both criminal events. I do not propose to set completely concurrent sentences. The sentences will be partially cumulative to achieve the required totality. I have determined that the accumulation will amount to six months. IMPACT OF GUIDELINE JUDGMENTS 86 Two guideline judgments have impacted upon the outcome of these sentences. I have already made allowance for the plea of guilty as I understand I am permitted to do in accordance with the principles in Thomson & Houlton. 87 The guideline judgment of R. v Henry also has application in each of these two robbery cases. I am aware of the principles enunciated in that case. The common criteria relied upon when setting the guideline are in the terms of the guideline. I acknowledge its importance as a guideline in the sentence I am imposing. But for the plea of guilty I would have set an overall sentence of four years for the robbery of Mucullough, applying a 15 per cent discount and rounding it out that becomes a sentence of three years and five months. I will set a non parole period of eighteen months and a balance of term of twenty three months to commence from today. 88 In respect of the robbery of Mr Kandiah I will set an overall sentence of three and a half years. I will set a non parole period of eighteen months to commence on 30 September 2007. 88 The effect is to impose an overall sentence, if my maths is correct, of three years and eleven months [as said – read four years]and an overall non parole period of two years. That certainly is my intention. 89 Would you stand up please. 90 Matthew Thomas, I convict you of robbing Kiaran Mucullough of a quantity of alcohol on 2 March 2005 and that you in committing that robbery used corporal violence upon him and wounded him. 91 I set a non parole period of eighteen months to commence on 30 March, that is today's date, 2007 and to expire on my calculation on 29 September 2008. 92 I set a balance of term of twenty-three months to expire on 29 August 2010. 93 Mr Thomas I also convict you of an offence at a time when you were in company with unknown persons robbing Vasanthan Kandiah of his mobile phone and a briefcase and its contents which were his property. For that offence I set a non parole period of eighteen months to commence on 30 September 2007 and to expire on 29 March 2009. 94 I set a balance of term of two years to expire on 29 March 2011. 95 It is not for me to release you to parole. I can only do that in cases where the sentence is three years or less. Your main sentence is one of three years and five months. 96 The Parole Board will be the people who will release you. They will take into account the progress that you make during your time in custody. If you make good progress or continue the progress you are currently making you are likely to be released on your earliest release date which is 29 March 2009. 97 I recommend to the Parole Board that they consider making an order sought by Dr Dalton of a Wayback Treatment Program. HIS HONOUR: Is there any other order? WONG: Your Honour in relation to the robbery in company matter your Honour there is a s 166 Certificate which contains the back-up charge of goods in custody. The crown would be asking for that matter to be dismissed your Honour. HIS HONOUR: To be dismissed? WONG: Yes, your Honour the back-up charge. HIS HONOUR: Pursuant to s 166 and on the application of the Crown I dismiss the back-up charge. STEEL: Your Honour the effective end of the whole sentences is 29 March 2011? HIS HONOUR: Yes. STEEL: Which is a four year overall term? HIS HONOUR: I made it three years - I see it is a four year overall term, yes. STEEL: It is just that your Honour had indicated-- HIS HONOUR: Three years and eleven months, I was distracted by the five months but because I have accumulated it by six, it becomes four years, thank you. Officers, Is it possible me to make a recommendation that Mr Thomas be classified to minimum security as soon as possible? There is some process by which I can get him classified quickly and I am just not sure how I go about it. CORRECTIONAL OFFICER: I not sure your Honour. HIS HONOUR: Well I recommend that he be classified as soon as possible with a view to him being placed in, if it is deemed appropriate, minimum security as soon as possible. ********** 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.