R v RPA [1999] NSWSC 1222

New South Wales Supreme Court CITATION : R v RPA [1999] NSWSC 1222 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 70001/99 HEARING DATE(S) : 26/11/99, 13/12/99 JUDGMENT DATE : 14 December 1999

PARTIES : Regina v RPA JUDGMENT OF : Barr J at 1

COUNSEL : Crown: TR Hoyle SC Prisoner: D Gasic SOLICITORS : Crown: SE O'Connor Prisoner: John J Puleo & Co CATCHWORDS : ACTS CITED : Criminal Procedure Act 1986, s 21 Children (Criminal Proceedings) Act, Div 4 Pt 3 DECISION : See paragraphs numbered 41, 42 and 43.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Tuesday, 14 December 1999

70001/99 - REGINA v RPA

JUDGMENT 1 HIS HONOUR: On 15 December 1998 the prisoner, whom I shall refer to by his initials RPA, was committed to this Court for trial on a number of serious offences, including murder and several counts of aggravated robbery. On 1 October 1999 the Crown presented an indictment containing two counts and the prisoner pleaded guilty to them both. They were that on 9 March 1998 at Marrickville he robbed Toan Van Doan of a gold chain, a wallet and some money and at the same time used corporal violence upon him and that at the same time and place he robbed Cong Hai Nguyen of a television receiver, a video cassette recorder, some hi-fi equipment, two leather jackets, a gold chain, a telephone and a wallet and at the same time used corporal violence upon him. 2 The prisoner was arrested on 1 April 1998 and held in custody, bail refused, until he entered into conditional bail on 28 October 1998. During the currency of that bail he committed further offences and on 18 November 1999 a magistrate committed him to this Court for sentence for five offences. They were that on 13 February 1999 at Yagoona whilst in company with a person I shall refer to as RP he robbed LJ Hooker Pty Limited of cash in the sum of $1,500, that on 15 February 1999 at Peakhurst whilst in the company of RP and a person I shall refer to as MB he robbed Forest Real Estate Pty Limited of cash in the sum of $80 and a mobile telephone, that on 17 February 1999 at Beverly Hills whilst in the company of RP and MB he robbed Robert Seib of a telephone and cash to the total value of $70, that on 22 February 1999 at Chester Hill, whilst in the company of RP and MB he robbed The Professionals Real Estate Pty Limited of cash in the sum of $1,520 and a camera and that on 26 February 1999 at Berala, whilst in the company of RP, he robbed The Professionals Real Estate Pty Limited of cash in the sum of $13,175. 3 The prisoner maintained his pleas of guilty in this Court and asked the Court to take into account pursuant to s 21 Criminal Procedure Act 1986 eleven further offences, nine of them constituting robbery in company and the remaining two taking and driving a conveyance without consent. 4 On 9 March 1998 the prisoner and six other youths or young men went together to a house in Marrickville where Cong Hai Nguyen lived, intending to buy heroin from him. The others were Aaron Anderson, Michael Poa, David Hooker and three youths to whom I shall refer by their initials, which are PS, SB and KMD. 5 A man called Duc Hoang Do was visiting Mr Nguyen at the time. The prisoner and his colleagues purchased and smoked heroin and while that was going on one of them suggested that they rob Mr Nguyen and Mr Do. They all agreed. As Mr Do walked into the lounge room from the kitchen he was punched by Michael Poa and knocked across the room. He was there punched and kicked and lay unconscious in the corner of the room. Mr Nguyen entered the lounge room and he too was attacked, being kicked and punched in the face and in the head. His trousers were ripped as his attackers removed his wallet and he was kicked in the chest. Some of the offenders began to remove property from the flat. As that happened Mr Nguyen managed to get away. 6 During the course of the robbery Toan Van Doan, another friend of Mr Nguyen entered the flat. He was forcibly carried into a bedroom and attacked. He lost consciousness. 7 During the attack David Hooker was searching a lounge chair, hoping to find concealed drugs, and found a large knife. He used it to stab Mr Do and Mr Doan. Mr Do died of his wounds and Mr Doan was seriously hurt. He had to have thirty-seven sutures to the head and had to undergo an operation to remove a blood clot from his brain. 8 The belongings which I mentioned earlier in summarising the charges were removed by the attackers and they all got away in a car. 9 Although the prisoner joined in the attack and was thereby responsible for the punching and kicking of Mr Doan and Mr Nguyen it is no part of the Crown case that the prisoner personally caused any injury. Of course, the finding of the knife by Hooker was never contemplated by the prisoner and it has not been suggested that he is responsible for injuries inflicted by its use. 10 I accept that the attack was launched on the spur of the moment and that the original intent of the prisoner in going to the flat was to purchase heroin. 11 On 13 February 1999 the prisoner, MB and RP went into a real estate office at Yagoona. The prisoner was armed with a knife. The offenders threatened the occupiers, searched the premises and took $1,500 from a cash tin. 12 On 15 February 1999 the prisoner and the same two companions entered a real estate office at Peakhurst and stole at knife point the sum of $80 and a mobile phone. 13 On 17 February 1999 the same three offenders entered a real estate office at Beverly Hills. The prisoner produced a knife and the three stole $70 and a mobile telephone. 14 On 22 February 1999 the prisoner, MB, RP and two others entered a real estate office at Chester Hill. One was armed with a knife. $1,520 in cash and a camera were stolen. 15 On 26 February 1999 the prisoner, MB and RP entered a real estate office at Berala. One of them was armed with a knife. $13,175 in cash was taken. 16 At the time of the Yagoona robbery mobile telephones were taken from two persons present on the premises, and those two robberies were the first items the Court was asked to take into account. Four further matters which the Court was asked to take into account comprised the theft of $500 together with a wallet and papers from the business at Peakhurst on 15 February 1999, the theft of a watch, a wallet and $20 from the Beverly Hills business on 17 February 1999, the theft of a mobile telephone and $400 at the same time and place and the theft of $380 from the Chester Hill premises on 22 February 1999. 17 Certain other offences which the Court was asked to take into account were not directly connected with any of the matters to which the prisoner pleaded guilty. They were that in a robbery of a similar kind on 15 February 1999 in a real estate office at Riverwood a camera was taken, that at the same time and place a mobile telephone was taken and that at Mortdale on the same day, in a robbery of a similar kind, the sum of $70 was taken. 18 The final two items the Court was asked to take into account concerned the taking and driving of two motor vehicles which were used to carry out one or more of the robberies. 19 The prisoner was born in New Zealand on 22 October 1980, the third eldest of nine children. His parents were of Samoan and New Zealand background. The family moved to Australia when the prisoner was two years old. His parents were hard workers. Nothing remarkable is reported about the prisoner's early childhood, though it is said that he was shy and continues to be so. He progressed through primary school to high school and developed normal friendships. He became very close to his mother. 20 Although the matter is not entirely clear, it appears as though his father used to discipline him harshly. He was charged on one occasion with the assault of the prisoner. 21 About the time the prisoner was in year 9 at high school he was suspended because of an assault on another student. He denied being solely responsible. He acknowledged to officers of the Department of Juvenile Justice that he had lost interest in school at that time. This led to his leaving school early in year 9 in 1995. 22 The prisoner's mother had a job packing food for an airline and his father was employed as a demolition labourer. The prisoner was able to obtain part-time work in both of those occupations. 23 The prisoner's friends tended to be Fijian, Tongan or Samoan and he met them at or through school. He began to offend whilst he was in the company of one or more of them. He began to experiment with drugs and ultimately became dependent on drugs, needing to raise money to purchase them. That he could only do, as he saw it, by resorting to crime. During 1995 he began binge drinking of alcohol, mainly beer. He would become very drunk and get involved in fights. In May 1995 he was given six months' probation on charges of assault and having the custody of an offensive implement. In January 1996 he was found to have committed ten offences of breaking, entering and stealing, two of stealing motor vehicles, one of resisting police and one of entering a dwelling with intent to steal. He was given the benefit of a bond and parental supervision for a period of six months. 24 In May 1996 he was given twelve months' probation and fined for using a conveyance and driving whilst unlicensed. He was dealt with again for a similar offence in August of the same year. Two months later he was dealt with for threatening an injury to resist arrest and was given a two year bond with supervision and a six month control order. 25 During 1996 the prisoner found himself at Mount Penang Juvenile Justice Centre and satisfactorily completed a period of parole, notwithstanding some difficulty he had had earlier with unsatisfactory reports about his response to supervision. 26 He began experimenting with cannabis, cocaine and ecstasy in 1997 and 1998. He began using heroin at the end of 1997 and at one stage was spending $500 per day on it. 27 Following his arrest on 1 April 1998 for the offences committed at Marrickville the prisoner was kept at Kariong Juvenile Justice Centre. His behaviour in custody was generally satisfactory, although he was considered as having only limited involvement in programs or with counselling services. Similar reports have been made about his custody at Parklea Correctional Centre since his re-arrest on 5 March 1999. 28 When the police asked the prisoner about the offences that took place at Marrickville he admitted his involvement straight away. He named others who had taken part and gave what proved to be a substantially truthful version of events. He took the police to the premises and showed them where and how events had happened. He said that he was sorry for what had happened, particularly the death and injury of the two young men. 29 The officers of the Department of Juvenile Justice who have had the duty and responsibility of supervising him and reporting upon him are of the opinion, which I accept, that his expressions of remorse were genuine. 30 The authors of the background report, which was furnished to the Court, appear to consider a period of full-time custody inevitable. Counsel for the prisoner made no submission to the contrary. 31 It may be accepted that the reason why the prisoner involved himself in these offences was to obtain money to buy heroin. It may also be accepted, as stated in the background report of Ms Stamos and Ms Duncan, that the prisoner must control and overcome his desire to use drugs if he is not to continue to offend. 32 The prisoner has learned by childhood experiences to resort to the use of violence and threats in order to obtain what he wants. The combination with drug addiction has put him firmly in the way of criminal activity. His addiction to drugs may be partly explained by his childhood experiences. He appears to have an abiding sense of hopelessness and it is essential that he become engaged in counselling over his drug use and his use of violence to achieve his aims. It will be necessary to impose a sentencing regime which requires him to spend a considerable amount of time in custody, but if he is to become rehabilitated he will have to be given the chance of an extended period under supervision on parole. 33 In sentencing the prisoner for the Marrickville offences I intend to impose concurrent sentences of effective full-time custody, allowing for the time the prisoner was at large on bail between 28 October 1998 and his re-arrest on 5 March 1999. I shall allow for his pleas of guilty and for his realistic and truthful answers to questions asked of him. The fact that he later re-offended , I think, does not preclude an acceptance that he had a degree of remorse, which was partly responsible for his pleas of guilty. Because the prisoner was being held on bail within the juvenile justice system he was denied the full benefits of the sentencing regimes available under the Children (Criminal Proceedings) Act, and I shall take that matter into account in assessing the length of sentences to be imposed. 34 Of course, subsequent events, resulting in his re-arrest, have made it out of the question to impose any less than a full-time custodial sentence for the Marrickville offences, but they should be made shorter because of the considerations I have mentioned. I take into account his age and the fact that although he has been dealt with under the criminal system before it has always been under the juvenile system. This is his first service in an adult prison. 35 I shall accumulate the sentences which I impose for the five offences committed after the prisoner's release to bail. The totality of his criminality comprised seven separate attacks on the staff of real estate agents' offices carried out over a two-week period in order to raise money to buy drugs to feed an addition. There were two incidental but important offences comprised in the theft and use of the cars during the course of the commission of some of those offences. All the offences were committed whilst the prisoner was at liberty on bail and under an obligation to be of good behaviour and were the more serious for that. 36 The robberies on the offices of the real estate agents were very serious. Because they were carried out in company each attracts a maximum sentence of twenty-five years' penal servitude. Fortunately, nobody was injured but innocent people going about their business were put in great fear. 37 Although no evidence was put before the Court, I am prepared to deal with the prisoner on the understanding that he has some remorse for the second group of offences, as evidenced by his pleas of guilty, and that he wishes seriously to tackle the many problems which confront him. 38 I propose to impose fixed term control orders for the first two offences. It is now too late to allow a probation period. 39 In accumulating the sentences for the second group of offences my intention is to produce an effective overall sentence somewhat less than would otherwise have resulted if each group of sentences had been imposed without regard to the other. 40 The accumulation of sentences is a further reason for the imposition of an extended period of time during which the prisoner will be eligible for release on parole. 41 RPA, for the robbery with corporal violence of Toan Van Doan and for the robbery with corporal violence of Cong Hai Nguyen I commit you to the control of the Minister administering the Children (Detention Centres) Act for two fixed terms each of one year and three months. Each term will be taken to have commenced on 1 April 1998 and to have expired on 30 June 1999. 42 For the robbery in company of LJ Hooker Pty Limited on 13 February 1999 at Yagoona I sentence you to penal servitude for six years. The sentence comprises a minimum term of three years and six months, which will be taken to have commenced on 1 July 1999 and which will expire on 31 December 2002, and an additional term of two years and six months, which will commence on 1 January 2003 and expire on 30 June 2005. You will be eligible for release on parole on 31 December 2002. In imposing sentence I have taken into account the several other offences I have summarised under the provisions of s 21 Criminal Procedure Act. 43 For the remaining offences, namely the robbery at Forest Real Estate Pty Limited Peakhurst on 15 February 1999, the robbery of Robert Seib at Beverly Hills on 17 February 1999, the robbery at The Professionals Real Estate Pty Limited at Chester Hill on 22 February 1999 and the robbery at The Professionals Real Estate Pty Limited at Berala on 26 February 1999 I sentence you to terms of penal servitude each of five years. Each sentence will comprise a minimum term of three years six months, which will be taken to have commenced on 1 July 1999 and which will expire on 31 December 2002 and an additional term of one year six months, during which you will be eligible for release on parole, commencing on 1 January 2003 and expiring on 30 June 2004. **********