New South Wales District Court CITATION: R v ENGLISH [2010] NSWDC 308 HEARING DATE(S): 5 November 2010 EX TEMPORE JUDGMENT DATE : 5 November 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The overall term is one consisting of a non-parole period of five years, and a total overall term of seven and a half years. CATCHWORDS: CRIMINAL LAW - Sentence - Aggravated take and drive a motor vehicle with a person whilst armed with a weapon - Armed robbery - Carjacking - Aggravated assault - Offender on bail at the time of the commission of the offence - Form 1 CASES CITED: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R PARTIES: The Crown Robert Cecil English FILE NUMBER(S): DC 2009/191250; DC 2009/194437 SOLICITORS: Director of Public Prosecutions Legal Aid Commission SENTENCE 1 HIS HONOUR: Robert Cecil English appears for sentence today after having pleaded guilty, in this Court shortly before his trial was due to commence, to three serious offences. The first is an offence of aggravated take and drive a motor vehicle with a person whilst armed with a weapon. That has a maximum penalty of fourteen years with a standard non-parole period of five years. The second offence is an offence of armed robbery, carrying a maximum penalty of twenty years. Although it is the second on the Crown's sentence summary it appears to have been committed shortly after the offence which is third on the Crown sentence summary, another offence of armed robbery with a maximum penalty of twenty years imprisonment. When I sentence him for the second armed robbery on the Crown sentence summary Mr English asks that I take into account a matter on a Form 1, that being an additional offence related to carjacking and aggravated assault with intent to take or drive a motor vehicle. The three offences for which the offender must be specifically sentenced all occurred on the same day, 7 July 2009, whilst the matter on the Form 1 occurred a little while thereafter, 25 August 2009. 2 On 7 July Mr English was under the influence of both Xanax and heroin. His intoxication by those drugs probably had a part to play in his decision to commit the three offences on that day. His ability to think rationally was clearly affected by the drugs that he had taken. He decided that he would commit an offence of armed robbery but he needed to get a getaway car. He therefore waited in the Westfield car park at Hurstville. At about 4.20 that day a woman drove into the car park and parked her car. The offender approached the driver. He placed a knife to her stomach, told her to give him the car keys and her handbag. Not surprisingly the victim did as she was told. Mr English then got into her car and drove away. The victim's handbag, which was in the car, contained about $180 in cash and various other personal items. 3 A little while thereafter Mr English committed the first of his armed robbery offences that day. He went to a convenience store whilst armed with a knife. He approached the counter and produced the knife. He leant over the counter and grabbed the victim by his jacket collar. He pointed the knife towards the victim's abdomen and said, "Open the till or I'll stab you." The victim complied because he was afraid. He said, "Okay, calm down, don't stab me." He opened the cash register. The offender took the cash tray containing $200 in cash and ran out to the vehicle which he had earlier taken at the Westfield car park at Hurstville. That was at about 5.50pm. 4 Shortly before, in fact 5.45pm, he had gone to a mixed business at Peakhurst. There was a female shop attendant there. The offender produced a knife and ran behind the counter. The shop attendant tried to stop him from entering the counter area but he simply pointed the knife at her chest so she moved aside. He wanted the contents of the till, so the offender took a key trying to open the till. When that was not successful he reached underneath the counter where a change box was kept. At this stage the attendant tried to get away but Mr English chased her, grabbed the left sleeve of her shirt and a struggle ensued. During this struggle the knife fell to the floor and the shop attendant attempted to kick the knife away. A further struggle ensued, during which she was knocked to the ground. She managed to kick the knife under a shelf and began to scream. They continued to struggle for about forty seconds. Eventually the offender managed to retrieve the knife and ran out of the shop. He got into the motor vehicle that I have spoken about and drove away. It seems that he was identified when he pawned a mobile telephone that he had taken during the carjacking offence. 5 The Form 1 matter occurred on 25 August 2009. As Mr Priddis, who appeared for the offender, suggested, it was probably going to be the precursor to other offences of the type that I have just described. On this occasion the victim drove her car into a council car park. She turned off the engine and waited in the driver's seat for her husband. She became aware that Mr English was at the driver's door. He told her, "Get out of the fucking car." The victim saw that the offender had a Stanley knife in his hand. She grabbed her handbag but the offender presented the knife to her, holding it about thirty centimetres away from her face. He said after she began screaming, "Stop fucking screaming." He pulled her out of the car and she fell onto the ground. However he couldn't start the car. Probably because of the adrenalin that was flowing through her body at the time, the victim yelled at Mr English saying, "Get out of my fucking car", and probably because he was unable to start the car and because of the fuss that was being made, Mr English ran away. He had been observed getting into another car which was registered to him. He was therefore arrested and searched. 6 These are of course very serious offences. On each occasion the offender was armed with a knife with which he threatened an innocent person. Each of the victims of these offences were greatly concerned for their personal safety and no doubt that factor is an important one which the legislature has taken into account in setting significant terms of imprisonment. The prevalence of armed robbery is also one of the factors that led to the Court of Criminal Appeal issuing a guideline judgment for those offences. It is obvious that significant sentences need to be imposed to reflect the objective gravity of what the offender has done to personally deter him from committing further offences of this kind in the future (and I note in this respect that he has a criminal history involving other offences of armed robbery) and to deter others who might be tempted to commit offences of this type. 7 The offender is now thirty years of age. He was born and raised in Sydney. He grew up in a household where both his parents abused alcohol and assaulted each other when they were drunk. His parents would separate, reunite and then separate fairly regularly. The offender left home at the comparatively late age of twenty-seven years. He is in a de facto relationship, with a young child being born of that partnership. His partner has recently been diagnosed with bipolar disorder. She lives in Queensland. The offender left school at thirteen after being expelled for truancy, smoking cannabis and generally acting in an antisocial way. Despite having left school then, the psychological report suggests that he has above average intelligence. He gave evidence before me today and impressed as an articulate and clever person, who, if he chooses to do so, has much to contribute. He has been employed on a number of occasions, most recently working for a waste removal company. 8 He was released from custody for armed robbery matters in December 2007 and completed his period on parole satisfactorily. However matters went downhill in his work and personal life, such that he began reusing drugs. His offending on this occasion was related to his drug use, not only as I have described, because he was under the influence of drugs at the time, but also because his desire to obtain more drugs was what motivated his offending. 9 He was arrested on 28 August 2009 but has served a fixed term of six months for a break, enter and steal matter, which means that his time in custody solely referrable to the matters for which I must sentence him, dates from 24 February 2010. I will commence the sentences that I am going to impose upon him from that date, taking into account that these sentences will be served accumulatively on that six months sentence. The offender was on bail at the time of these offences, which is a seriously aggravating factor. Because the carjacking offence carries with it a standard non-parole period, I am required to assess whether it falls within the middle of the range of objective seriousness of offences of that type. I make that finding, noting that what I am looking at is not a single point but a range. I am satisfied that as I have described it, the offence does fall within that range. 10 It was, I regret to say, an unremarkable offence of carjacking. I regret to say that because offences of this type are becoming, it would seem, more common. As vehicle security increases it is harder to steal one and so offenders like Mr English obtain their getaway cars by carjacking instead. Increasing prevalence of this offence is no doubt one matter which has led to it being one of the comparatively small number of offences that do carry standard non-parole periods. The standard non-parole period is not of direct application in this case because of the offender's plea of guilty. That was a late plea but I will discount the sentence that I would otherwise have imposed by ten per cent to reflect the utilitarian value of that plea. 11 I mentioned before the Henry guideline judgment, that proposes a sentence of four to five years for an offence of the type postulated by the Court of Criminal Appeal in that judgment. The offender's conduct on each occasion was broadly within that typical case postulated by the Court of Criminal Appeal with one exception, he is not a young offender with little or no criminal history. He is thirty years of age with an extensive criminal history, including, as I have mentioned now on a couple of occasions, prior offences of armed robbery. The offender expressed his remorse, not only in the psychiatric report but also in his evidence today. I accept that remorse is genuine. That of course will play an important part in the offender rehabilitating himself, in that he genuinely accepts that he has done the wrong thing and deserves to be punished. 12 I cannot say however that there are good prospects of rehabilitation or that he is unlikely to re-offend. There is hope for the future but much will depend on how Mr English deals with the stresses of everyday life upon his release from custody and in particular whether he resorts to drug use as he did on this occasion. He will need an extended period of supervision on parole in order to provide him with the best chance of overcoming his drug problem. Not only will that be of benefit to him, but it will also be of benefit to the community. The findings I have made of special circumstances has led to a comparatively modest adjustment because the non-parole periods that I will eventually announce are the least which I consider appropriate to reflect the objective gravity of the offender's conduct. Special circumstances exist also because the sentences are accumulative partially, that is on each other, and totally accumulative on the six months sentence for break, enter and steal. It is true that these three offences for which I must specifically sentence the offender all occurred within a relatively short space of time, but they do represent serious, significant, separate acts of criminality. For that reason it would be inappropriate to impose sentences which are totally concurrent with each other but I take into account the principle of totality and will impose sentences which are partially accumulative on each other. 13 The third of the armed robbery offences on the Crown's sentencing summary is objectively worse than the second, but the second has the Form 1 attached to it. Notwithstanding their different circumstances, I will impose identical non-parole periods on the two armed robbery offences. The more serious objective gravity of the third armed robbery offence on the Crown sentencing summary means that the overall sentence is slightly longer than the second. The sentences I am about to impose are lengthy but they are a product of a number of important matters, not the least of which is the standard non-parole period attached to one of them. It also has to be emphasised that the offender has caused a great deal of harm to society and its members through his continuing criminal behaviour. The sentences I will now announce therefore are the least which I consider are appropriate in the circumstances. 14 For the offence of carjacking, described as offence 1 on the Crown sentence summary, the offender is sentenced to imprisonment. I set a non-parole period of three years to date from 24 February 2010 and a head sentence of five years on that matter. 15 For the offence described as offence 2 on the Crown sentence summary, taking into account the From 1 matter, the offender is sentenced to imprisonment. I set a fixed term of two years to date from 24 February 2012. For the offence described as offence 3 on the Crown sentence summary, the offender is sentence to imprisonment. I set a non-parole period of two years to commence from 24 February 2013 and a head sentence of four and a half years. 16 The overall term is thus a non-parole period of five years, which will expire on 23 February 2015, on which day the offender is eligible to be released to parole and a total overall term of seven and a half years. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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