District Court New South Wales Medium Neutral Citation: R v Andy William SOARS [2012] NSWDC 51 Decision date: 02 February 2012 Before: Cogswell SC DCJ Decision: For the offence of robbery in company with wounding, a sentence of 6 years imprisonment. A non-parole period of 3 ½ years. Catchwords: CRIMINAL LAW - Sentence - purpose of sentence - protection of community - relevant factors - prior criminality - aggravating - limited prospects of rehabilitation - parity - co-offender a juvenile - non-parole period - special circumstances - relatively young age (22), first substantial period of time in custody. Legislation Cited: Crimes Act 1900, s 98 Crimes (Sentencing Procedure) Act 1999, s 3A, s 21A(2)(d), s 32 Category: Sentence Parties: Regina (Crown) Andy SOARS (Accused) Representation: Solicitors: Director of Public Prosecutions (Crown) Mr Ramsland (Accused) File Number(s): DC 2010/405746 SENTENCE 1I am sentencing a young man who was involved in a very nasty robbery with wounding in a public park in Newcastle. He is only 22, but has spent a good deal of time over the last 4 years since he became an adult in gaol. 2He has been charged with a very serious crime. It is called robbery in company with wounding. It is an offence against s 98 of the Crimes Act 1900. Parliament regards it as so serious that it has fixed a maximum of 25 years imprisonment to that offence. Not only that, Parliament has also fixed a standard non-parole period of 7 years to that offence. 3When I am sentencing Mr Soars, he has asked me to take into account another offence which was committed at the same time of robbery in company. He has signed a form under s 32 of the Crimes (Sentencing Procedure) Act 1999 and I will take that offence into account when I am sentencing him, and I sign the same form to the same effect. 4It is important for a judge to briefly say what happened which gave rise to the charge that the judge is sentencing someone for. 5It was about 10.30pm on a summer's night, 3 December 2010. Two people were in Islington Park, sharing a drink. They were John Emmerson and Kerrie Merrett. Mr Soars came through the park with a young teenaged man and a young teenaged girl. They had a brief conversation with Mr Emmerson and Ms Merrett and then moved on. 6But about 10 or 15 minutes later, they came back to the park. Mr Soars and the young man spoke about robbing Mr Emmerson and Ms Merrett. The young woman did not wish to be involved. So what the two men did was to go back to where Mr Emmerson and Ms Merrett were sitting, and one of them picked up a glass bottle which Mr Emmerson and Ms Merrett were sharing. That bottle was used to strike Mr Emmerson over the head. The neck broke off, the rest of the bottle shattered. Mr Emmerson got lacerations to his forehead and below his right eye. A fragment also struck Ms Merrett. 7Despite Mr Emmerson holding his hands up over his bleeding face, Mr Soars pushed him to the ground, then punched and kicked him a number of times before taking his wallet, which contained $50 in cash. Mr Emmerson took himself off to hospital, where his lacerations were sutured and it is noted the injuries were considered "minor" by the treating physician. 8While Mr Emmerson was being robbed, his teenaged companion took Ms Merrett's handbag and stole some cigarettes and money from the purse. 9Mr Soars and his young co-offender ran away but, as it happened, the police were in the area and the two men were arrested. Mr Soars was charged that night. The young person admitted to being the one who had used the bottle. 10Some weeks later, Ms Merrett selected Mr Soars' photograph from an array. About four months after the offence the young person entered a plea of guilty. About seven months after the offence, a DNA analysis confirmed that some blood spots on Mr Soars' clothing were consistent with Mr Emmerson's blood. 11Mr Soars has remained in custody since his arrest on 3 December 2010. He was committed for trial on 13 April 2011 and his trial was listed for 15 August 2011. There were negotiations between his legal representative and the prosecutor during the week before the trial, and he agreed to plead guilty to the offence that I am sentencing him for and for the other offence to be put on a form to be taken into account. 12Both Mr Coles, who appears for the Director of Public Prosecutions, and Mr Ramsland, who appears for Mr Soars, agree that the appropriate discount to allow for Mr Soars' plea of guilty is in the region of 15 per cent, and I propose to apply a discount in due course of 15 per cent. 13The sentence which I impose will date from when Mr Soars was arrested on 3 December 2010. 14It is obviously also important for a judge to take into account in sentencing a person information which is personal to the offender. One of the main pieces of important information is the offender's criminal record. Sometimes an offender will come before a court for sentencing without any prior criminal record at all. That is not the case with Mr Soars. He has a criminal record which dates back well before he turned 18. He is now 22. 15As a child he was dealt with by the Children's Court for offences which included indecent assault and shoplifting and breaking and entering. He found himself in adult prison at the age of 18. That was for a dangerous driving offence. He served another prison sentence for a PCA offence and then, when he was 19, he went back to prison for an assault occasioning actual bodily harm. He did further time in prison for assaulting a police officer. He has also been sentenced for common assault, but those sentences were served after his arrest on the current charge. 16As Mr Coles pointed out, the offence that I am sentencing him for was committed only about a month after he was released from prison for assaulting a police officer. 17An offender's personal history also relates to his background and personal circumstances. In this case there are two helpful pre-sentence reports prepared by the New South Wales Probation and Parole Service. 18Mr Soars has been supervised by that service in the past, and his response early was regarded as being unsatisfactory. He left home when he was 12 and kept what the report called a transient existence for some years. He went into a relationship with a woman and they share a 14 month old daughter. That relationship has now ended. Since leaving school at the age of 14 he has kept steady employment and there will be some employment available to him when he is released from custody. 19He said that he was experiencing some emotional distress at the time of offending. He has been drinking alcohol since he was 12 years old. He has tried various prohibited drugs but claims to have been drug free since early 2010. He went into a residential rehabilitation program in mid-2010 to address his alcohol misuse, but left after 2 months because that coincided with the birth of his daughter. 20Since being in custody there are two institutional misconducts recorded against him. 21The report noted that he tended to minimise his current substance misuse issues. 22There is a later report which was dated yesterday, which indicated that he had not incurred any further institutional misconducts and that he had not been able to participate in any programs because he is presently bail refused, but had completed a Health, Survival and Core Skills Assessment. 23He has been visited a number of times by his mother. His mother, who is here in court, is prepared to offer him accommodation when he leaves prison. 24He has acknowledged the stupidity of his behaviour and the role which alcohol had in that behaviour. He acknowledged that he was under the influence of alcohol at the time. 25The report noted that the "time in custody has afforded him time to reflect upon his life and to effect an attitudinal change so that, when released, he will return to work, either as a labourer or, further, the possibility of re-engaging in boilermaking/belt splicing in the local mining industry." The author noted that he was forthright in his interview. 26I have been given the assistance by Mr Coles of statistical information maintained by the Judicial Commission sentencing database. 27Mr Ramsland helpfully provided some written submissions. He argued that the objective seriousness of the offence fell below the mid range for such offences, and Mr Coles agreed with that submission. I, too, will find that the objective seriousness of the offence fell below the mid range, but not far below the middle of the range of objective seriousness. 28One of the factors which I take into account is the finding by the doctors that, fortunately for the victim, his lacerations were described as minor. 29I am not satisfied beyond reasonable doubt that it was Mr Soars who wielded the bottle which injured Mr Emmerson. 30I find, as Mr Coles urged me, that there was some degree of planning or, as he put it, some deliberation involved. It involved a matter of 10 minutes or so, I expect, so it was not an offence planned for an extended period of time, but nor, on the other hand, was it completely spontaneous. 31Mr Ramsland acknowledged, as he had to, that his client had a record of previous convictions, which I have referred to. They are an aggravating factor in my sentencing, which I take into account under section 21A(2)(d) in this case. In particular, the record of previous convictions includes assaults and at least one assault occasioning actual bodily harm. 32Mr Ramsland, in his written submissions, urged me to find that his client has good prospects of rehabilitation. As I indicated during submissions, I do not find that his prospects of rehabilitation are good. That must be a finding which I make because Mr Soars has been called up a number of times in the past for a breach of his bond, and the Probation and Parole reports were somewhat guarded about his response to supervision. On the other hand, as Mr Ramsland submitted, his client's attitude seems to have changed in the last few months, so I would regard his prospects of rehabilitation as guarded. 33He has pleaded guilty to the offence. That is an important factor to take into account. It is relevant in this case because of its value in saving court time and the sentence which I propose to impose will be 15 per cent shorter than what I might have otherwise imposed. 34I take into account that Mr Ramsland's client is still very young and has a good work history, and has substance abuse problems to deal with. 35I propose to adjust, in due course, the ratio between the non-parole period of the sentence and the balance of the term. Normally, a non-parole period is 75 per cent of the sentence which a judge would impose, but I propose to reduce that because of the special circumstances which Mr Ramsland has referred to in his submissions. They are the need for his client to get support and guidance for some period after his release, as well as his client's relatively young age. It is also his client's first substantial period of time in custody. 36Mr Coles correctly emphasised the importance in this case, in sentencing this offender, of the protection of the community. Section 3A of the Crimes (Sentencing Procedure) Act includes amongst the purposes for which a judge may impose sentence the protection of the community from the offender. That is very important in this case, because Mr Soars has taken it upon himself to assault other people within the community, including a law enforcement officer, and in this case, as Mr Coles said, to pick on two innocent people who were enjoying a quiet drink one summer's evening in the park. He left one of them with his head in his hands and bleeding from his face and head and stole money and a wallet from him, as well as participating in robbery from the other victim. 37I mentioned his co-offender. I also mentioned that he pleaded guilty. He was sentenced for two counts of robbery. He was sentenced in the Children's Court nearly a year ago. He received a control order of 12 months with a non-parole period of 5 months. I must bear in mind, of course, that I know nothing about that young person's criminal history but, more importantly, the sentence given to a juvenile does not assist with parity for an adult because of the large number of special factors which have to be taken into account in sentencing a juvenile. 38I need to take into account the robbery in company which Mr Soars has asked me to take into account when I am sentencing him for the robbery with wounding. 39I have determined that an appropriate overall sentence, taking into account that other offence, would be 7½ years imprisonment. However, I propose to discount that sentence by 15 per cent because of Mr Soars' plea of guilty. I propose to fix a sentence of 6 years imprisonment for the offence that I am sentencing Mr Soars for. 40I propose to fix a non-parole period of 3 ½ years for that 6 year sentence. That 3 ½ years is about 60 per cent of the overall sentence. It is less than the 75 per cent envisaged by the sentencing law, because of the special circumstances which I have referred to. 41The non-parole period is obviously substantially less than the standard non-parole period of 7 years provided for by Parliament. The reason for that is that the offence does not fall within the middle of the range of objective seriousness in my opinion. In addition, Mr Soars has pleaded guilty to the offence, and I take those factors into account in not fixing the standard non-parole period. 42The balance of the term will be 2½ years after the non-parole period. HIS HONOUR: Mr Soars, I am going to formally sentence you now, if you would stand up. 43I formally convict you of the offence of robbery in company with wounding. I take into account in sentencing you the offence of robbery in company. I set a non-parole period of 3½ years to commence on 3 December 2010 and to expire on 2 June 2014. The balance of the term is 2½ years commencing on 3 June 2014 and expiring on 2 December 2016. 44The overall sentence is 6 years. The first date that it appears to me you will be eligible for parole is 2 June 2014. Whether you get parole will depend upon the Parole Authority. HIS HONOUR: Have a seat, Mr Soars. Now, Mr Coles, Mr Ramsland, the mathematics is one factor and another factor is whether I have overlooked any factual or legal matter which could be dealt with straight away. COLES: No, your Honour, I think the mathematics is correct, and I don't think your Honour has overlooked anything. RAMSLAND: Yes, your Honour, nothing. 45Mr Soars, you have a 6 year prison sentence. I have backdated it to when you were arrested. It commenced on 3 December 2010. It expires on 2 December 2016. It takes into account the other robbery on the woman. You have a non-parole period of 3 ½ years. Normally the non-parole period would be 75 per cent. I have reduced that in your case. It also started when you were arrested. It will expire on 2 June 2014 and you are eligible for release then. The balance of the term starts then and expires on 2 December 2016. Because the sentence is over 3 years, I do not fix any conditions of parole. ********** 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. Decision last updated: 30 April 2012