New South Wales District Court CITATION: R v WAKEFIELD [2010] NSWDC 118 HEARING DATE(S): 18 February 2010 EX TEMPORE JUDGMENT DATE : 18 February 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: Overall sentence to be served by the offender consists of a non-parole period of five years and three months and a head sentence of seven years. CATCHWORDS: CRIMINAL LAW - Sentence - Armed robbery CASES CITED: R v Henry (1999) 46 NSWLR 346 PARTIES: R v John Leslie Wakefield FILE NUMBER(S): DC 2009/00063081 SOLICITORS: Director of Public Prosecutions Legal Aid Commission - Offender SENTENCE 1 HIS HONOUR: John Leslie Wakefield appears for sentence on two serious offences, they being two offences of armed robbery, both committed in July 2009, less than a year after the offender was released on parole for a similar offence. 2 Mr Wakefield has spent thirty-seven of his last forty-two years in prison. His history of incarceration began at the tender of age of eleven. Since then he has been dealt with many times, most importantly for the purpose of sentencing for this offence, for armed robbery offences. Some of these have been much more serious than the two for which I have to sentence him. 3 Let me deal with the facts of the present offences. On 2 July 2009 he went to Australia Post Office in Panania. He approached the counter, handed over a bag and said to the employee, "Put the money in the bag." At this stage he was armed with what is described as a black rubber pipe, but he held it in such a way so that it looked like the barrel of a gun. Certainly the employee, the victim of this offence, believed that that is what he was armed with. He reinforced her belief by saying words to her which could only convey the meaning that if she did not cooperate with him, he was going to shoot her. No doubt, the experience of being robbed in this way was a terrifying one. She, of course, was not to know that he was incapable of shooting her. She, of course, was not to know that her life was not at risk. I have got no doubt that she genuinely feared for her life, and that the effects of this offence will continue for some time, if not forever. After presenting the weapon to her and asking for the notes, the employee handed over just more than $1,000 and the offender drove away. 4 The offender claims now that he is remorseful. That claim to be remorseful needs to be looked at in light of the fact that less than a month later the offender committed a remarkably similar offence. This time on 25 July 2009 he went into a video store, again presented the rubber pipe in a way that made it look like it was a gun, and demanded money. Through that means he obtained $300. Both of these offences were captured on closed-circuit television. 5 The police obtained a search warrant, went to the offender's premises and discovered evidence incriminating him there. The offender made full admissions to the police when he was interviewed by them. 6 These offences were, as I have described them, very serious because of the circumstance that the victims must have believed that their lives were at risk, having what they believed to be a gun pointed at them. However, in looking at Mr Wakefield's claims that he has begun the path of rehabilitation, it is perhaps instructive to have a look at what Mr Wakefield did in the past. The circumstances of his offence on 16 July 1990 are set out in a decision of the Court of Criminal Appeal unreported 17 December 1993. He pointed a loaded sawn off shotgun only a few inches from the chest of one of the men who was in a post office on that occasion. So it can perhaps be said that the offender's offences are becoming less serious. That is consistent with what he said to me today and what he has said to the psychologist and the probation and parole officer who interviewed him about his attitude towards his life so far. 7 The offender had an upbringing which can only be described as terrible. It involved him being exposed to a number of people, in particular relatives, who lived the lives of outlaws. He was used by his grandmother, who "cared" for him, in her thieving activities from a young age. He was only being cared for by his grandmother in the first place because his father was in gaol and his mother, for reasons that were not clear, was not looking after him. 8 In more recent times he has come under the care and attention of Mr and Mrs Clark. They are law abiding citizens who have put a great deal of effort and attention into caring for the offender. The offender is lucky to have met them and they are to be commended for what they have done. He went to live with them after his release on parole in July 2008, and he was for a while doing well. He had a job, but these offences were committed in circumstances where he found himself in debt. 9 At least part, if not a significant part, of the reason that he got into financial difficulty was because of his lack of living skills. As a person who has spent thirty-seven of the last forty-two years in gaol, he is, as Mr Wakefield has demonstrated, ill equipped to cope with financial matters. For example, he went into a bank seeking a loan for $3,000 but walked out with a loan for $12,000. Despite many attempts to obtain work, he was often thwarted by his criminal history. Employers would report to him that whilst he was a good worker, were such that once they found out about his criminal history, he was either not offered the job or terminated from the job he did have. In those circumstances he committed these two offences. He needed money, and the only way he knew to obtain it was to commit these offences. 10 He has expressed his remorse in many ways now. He wrote to the victims of the offences. He spoke about his remorse to the psychologist and the probation and parole officer, and he expressed his remorse in evidence today. I accept that he is sorry for what he has done. I accept that he regrets the decision that he made in July last year on two occasions to commit these offences, not only because it meant sending him back to gaol for a significant period of time but for many other reasons as well. He is sorry for the effects on the victim. He is sorry that he has let Mr and Mrs Clark down, and he is sorry that he has continued to take from the community when he should be putting something back into it. 11 Of course, the offender was on parole at the time of these two offences. Since returning to custody his parole has been revoked. I have to be careful not to double count the circumstance of aggravation that the offender was on parole, in circumstances where it was the commission of these offences that has seen him returned to custody. I can say that I have not double counted and have chosen the appropriate penalty in light of the fact that I will commence the effective sentence that I will shortly impose upon the offender from today. 12 The offender's record demonstrates a continuing attitude of disobedience to the law. However, as I hope I have explained, there are some prospects for the future. I cannot say he has good prospects for rehabilitation. I can say, however, that he genuinely does desire to rehabilitate himself. It will be in his interests, and, of course, the community's interests, that he is given as much assistance as possible whilst in gaol in order to promote the idea that upon his eventual release from custody, he will have living skills so as to reduce as much as is possible of the chances of him committing further offences when, perhaps, he gets into financial difficulties in the future. 13 There is occasionally publicity given to offenders serving sentences of imprisonment being allowed to leave the prison walls for the purposes of work release. Some commentators seem to have the view that a person in custody should remain in custody until the expiry of their sentence. What that fails to deal with, of course, is the circumstance that most offenders are eventually released back into the community, and it is in the community's interests that they commit no further offences. Sometimes that is best achieved by sentences of personal deterrence. Sometimes that is best achieved by sentences which promote an offender's rehabilitation. 14 In this case significant sentences are required to reflect the objective gravity of the offences and to reflect the aggravating circumstances I referred to. It is to be hoped that the prison authorities recognise the need to allow Mr Wakefield to engage in work release programs and similar, so that when he is released from custody he will have skills he does not presently have. 15 There are no special circumstances in this case. It is to be noted that the offender has, according to the probation and parole report, breached every parole order he has ever been placed on. That itself is enough for me to say that there are no special circumstances justifying the extension of the period of eligibility for parole at the expense of the non-parole period, so the overall sentence reflects the statutory ratio even if the individual sentences do not. 16 The offender has now developed an insight into his behaviour. He gave evidence at length today. He is articulate and personable, and I am satisfied that he recognises that the life he has lived has been rather futile. He is now fifty-three years of age. He will be spending a significant period of custody as a result of the sentence I will shortly impose, but with assistance of the prison authorities, I am satisfied that it is possible that the offender can do what he wants to do, that is live life outside gaol, putting something back into the community. 17 Of course, this being an armed robbery case, I should look at the decision of R v Henry (1999) 46 NSWLR 346. I note in comparison to the standard circumstances referred to in that case that the offender's pleas in this case were early. The four to five year range in Henry is for a plea of guilty of limited assistance. The utilitarian value of the offender's plea was much greater than the late plea postulated in Henry. It came at the earliest opportunity, and I have made an appropriate allowance for that. The weapon used by the offender was not as bad as the knife or similar weapon referred to in Henry. In realistic terms it was unlikely to have caused significant injury, albeit, as I have mentioned earlier in these remarks, the unfortunate victims of these offences did not know that. Of course, this is far from a young offender with little or no criminal history. These offences were planned to the extent that the offender obtained the rubber pipe and used it in a way that I have described. With those differences, however, the Henry guideline is important. 18 The guideline judgment itself was a response to growing concern about the prevalence of armed robbery offences. It is important for the purposes of general deterrence that those who would terrorise unfortunate employees of Australia Post or video stores for relatively small amounts of money understand that the courts do what they can to prevent offences such as these being committed in the future. General deterrence is of particular importance for offences of armed robbery. 19 For the offence committed on 2 July 2009, the offender is sentenced to imprisonment for five years. That is a fixed term because of the sentence I will pronounce on the second matter. That sentence is to commence on 18 February 2010, that is today. 20 For the offence committed on 25 July 2009, the offender is also sentenced to a term of imprisonment. I set a non-parole period of three years and three months to commence on 18 February 2012, and a head sentence for that matter of five years. Thus, the overall sentence to be served by the offender consists of a non-parole period of five years and three months and a head sentence of seven years. The offender is eligible to be released to parole on 17 May 2015. ********** 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.