R v HENG [2012] NSWDC 58

District Court New South Wales

Medium Neutral Citation: R v HENG [2012] NSWDC 58 Hearing dates: 2 February 2012; 30 March 2012 Decision date: 30 March 2012 Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 3½ years. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Armed robbery - Breaches of s9 bonds imposed by the Local Court Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R, Category: Sentence Parties: The Crown Christopher Heng Representation: Director of Public Prosecutions Legal Aid Commission File Number(s): 2011/287198

SENTENCE 1HIS HONOUR: Since the age of twelve Christopher Heng has been a user of illegal drugs. He began by smoking marijuana, then progressed to using ice. Shortly before his nineteenth birthday he was using ice, marijuana and alcohol on a daily basis. He wanted to get some more drugs to use on the day of his nineteenth birthday and for that he needed money. Accordingly, he and a co-offender, who was a juvenile, committed an armed robbery in broad daylight on a person who had the misfortune to use his iPhone 4 on a train. 2It was in the early afternoon of 30 August 2011 that Mr Paul Clarke got into the train at Central in order to travel to Caringbah. He was using his iPhone 4 to listen to music and surf the net. He was spotted by this offender and his juvenile co-offender and, on the spur of the moment, they decided they would rob him. Mr Heng sat behind him before reaching forward and covering Mr Clarke's mouth and nose with his hand and presented a knife, holding it against the side of Mr Clarke's face. The offender said, "This is a knife, do what I say or I will cut you." Sensibly Mr Clarke did what he was told to do. He allowed the offenders to take his phone and wallet. They also searched his backpack but found nothing worth taking. The two offenders left the train. 3Mr Clarke went into another carriage and spoke to a person there who turned out to be an off duty police officer. Other police arrived and enquiries commenced in an effort to identify the offenders. Fortunately CCTV footage showed the two offenders and they were identified. A search warrant was carried out at the offender's premises where police discovered incriminating material. 4The offender pleaded guilty at the earliest opportunity to this charge and so the sentence I will impose upon him will be twenty-five per cent less than it would otherwise have been. He has remained in custody since his arrest on the day the search warrant was executed. 5When I sentence him he also asks that I take into account four other offences on a Form 1. These all relate to offences committed by Mr Heng in the early hours of 27 April 2011. The offender and a number of other people were hanging around the bus station when they discovered a large can of white paint. The offender and another threw the paint onto the ground and commenced to jump and slide in it, leaving paint marks on the roadway. That is an offence of malicious damage to property. 6Next the offender was part of a group which stole a shoulder bag from a person who was waiting at a bus stop. Then having travelled by train to Hurstville railway station the offender received an Apple iPad which another member of the group had taken from an unlocked utility parked near the railway station. Finally, when police looked through the offender's property after having searched him upon his arrest for these three matters I have just set out, they discovered 112 My Zone bus tickets. That is an offence of goods in custody. 7All of the offences I have outlined were committed whilst the offender was on two s 9 bonds imposed in the Downing Centre Local Court for an offence of assault occasioning actual bodily harm and an offence of goods in custody. When the matter first came before me no one had advised the magistrate that the bonds had been breached and so the matter was adjourned until today part heard so that I could properly consider issues regarding concurrency and accumulation. 8The offender was born in Sydney in 1992 to parents who had come to Australia from Cambodia about thirty years ago as refugees. He is the youngest of six siblings. He did reasonably well at school, getting good grades, although his poor attendance record led to him being expelled after completing the school certificate. He was asked to leave home when he was sixteen because of what he described as dramas between him and his older siblings. No doubt these dramas are at least partially related to his drug use, which as I mentioned earlier began when he was but twelve years of age. He lived either on the street or at a friend's house for a couple of years. At the time of this offence he was living with his mother. 9Whilst in custody he began studying for the HSC but after being moved from one gaol where the HSC was offered to another gaol where it was not, he had to drop his studies. That is very unfortunate. In the witness box he impressed as an articulate and clever young man. It was my impression that he was capable of doing well in the HSC and the inability of Corrective Services authorities to provide him with an education is unfortunate to say the least. 10Whilst in custody he wrote a letter of apology to Mr Clarke, the victim, although at Mr Kozanecki's suggestion it was not sent. I am satisfied nevertheless that he is remorseful for his offending. 11I should mention the issue of parity. The juvenile offender was dealt with for an offence of robbery in company where he received a control order for twelve months with a non-parole period of twenty weeks. When the offender compares the sentence imposed upon him with the sentence which was imposed upon his juvenile co-offender, he must remember that his co-offender was dealt with for a different offence, in a different jurisdiction and it was not the co-offender who held the knife to Mr Clarke's face. 12The seriousness of the offender's conduct is obvious. People should be able to get trains in broad daylight and use their smart phones without being subject to violence and a threat of it at the hands of people who simply want to get money to buy drugs. The offender and the offence fit quite well into the commonplace scenario postulated by the Court of Criminal Appeal in the guideline judgment of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R, with two qualifications, one relating to the timing of the plea and one relating to the circumstance that there are a number of matters on a Form 1 which I must take into account when I sentence Mr Heng. But even though the offence and the offender do fit quite well into the guideline judgment, it is of course well to remember that that case suggests a guideline sentence and that judges are free to depart from the sentence range postulated or suggested in that case where it is appropriate. 13In this case I note that the offender was still eighteen years of age at the time of his offending and so this offence was committed by a person who did not have the maturity that other older offenders might have. The offender has plans for the future. Upon his release from custody he wishes to move to the Central Coast, a place where he has lived before and return to work as a labourer. He accepts the likelihood that it will be necessary for him to do a drug rehabilitation course if he is to maximise his potential by putting his drug using days behind him. Of course, his prospects of rehabilitation largely depend on him giving up illegal drug use. 14I cannot say that the prospects of the offender's rehabilitation are good. They depend very much on what the offender does in relation to drugs when he is released from custody. There are many hopeful signs and so it is possible that the offender will take advantage of opportunities that will be presented to him on his release to parole and take serious steps to deal with his longstanding drug addiction. It is not going to be easy but the offender must know that if he does not make substantial efforts to put his drug using days behind him, he will soon become the sort of person who measures out his life in court dates and custodial sentences. 15This is the first time the offender has received a custodial sentence in an adult gaol. I hope that he is finding the experience unpleasant. I hope that he is determined therefore to put his offending ways behind him when he is released from custody. 16Of course, it is an aggravating circumstance of this offence that the offender was on two s 9 bonds at the time it was committed. It is important of course also that I do not double count. The offender has been sentenced to imprisonment for the offences having breached his bond and it would be double counting to then sentence the offender to a wholly cumulative sentence and regard the breach of the bonds as a serious aggravating factor. On the other hand, the breach of bonds cannot be ignored. What I will do is to commence the sentence I will shortly announce on 6 December 2011 so that my sentence will be partially accumulative and partially concurrent with the sentences he has received in the Local Court. 17Of course, there are special circumstances in this case. They relate to the offender's youth, the need for him to be supervised upon his release from custody in an effort to do as much as can be done to get him off drugs and of course there is the more technical aspect of accumulation which would in itself justify a finding of special circumstances. 18It is clear, as I said before, that the offender's conduct was very serious indeed. And the Form 1 matters also show in some cases much more than juvenile misbehaviour. The offender needs to be personally deterred from committing further offences. There is no reason that the full measure of general deterrence should not be visited upon this offender even despite his relative youth. And more fundamentally perhaps, the courts need to mark in a very concrete way the wrongfulness of what the offender did. I repeat, members of the community are entitled to get public transport and use their smart phones without having a knife presented to them by those who seem to care little about the consequences of their actions beyond a desire to obtain money for drugs. 19The offender is sentenced to imprisonment. I set a non-parole period of two years to date from 6 December 2011 and a head sentence of three and a half years. The non-parole period will expire on 5 December 2013, on which day the offender is eligible to be released to parole.