District Court New South Wales Medium Neutral Citation: R v Skinner; R v Elliott [2012] NSWDC 138 Hearing dates: 10 August 2012 Decision date: 31 August 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment - see paragraphs [48], [49], [50], [51], [52], [53], [54] Catchwords: CRIMINAL LAW - Sentence - Conspiracy to commit armed robbery - Possess a prohibited firearm - Armed robbery - Forms1 Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR Category: Sentence Parties: The Crown Shane Skinner Gregory Elliott Representation: K Magnus - Crown R Wilson - Offender Elliott J Trevallion - Offender Skinner Director of Public Prosecutions Legal Aid Commission - Offender Elliott Mark Klees and Associates - Offender Skinner File Number(s): 2009/247656; 2010/16698; 2009/247773 SENTENCE 1Appearing for sentence are two offenders, Shane Skinner and Gregory Elliott. They are each to be sentenced for an offence of conspiring to commit an armed robbery with each other and with two others who I will sentence at a later date, Nathan Hardy and John Genua. In addition Mr Skinner is to be sentenced for an offence of possessing a prohibited firearm, namely a shortened rifle without being authorised to do so. When I sentence him for the conspiracy matter he asks that I take into account a further offence on a Form 1 namely that he allowed himself to be carried in a stolen conveyance. Mr Elliott is to be sentenced for other offences as well apart from the conspiracy. He committed two substantive offences of armed robbery, one on 3 October 2009 and one on 16 October 2009 and when I sentence him for the first of those substantive matters he asks that I take into account some offences of take and drive a conveyance. 2In each of Mr Skinner's and Mr Elliott's case the Form 1 matters involve such minor criminality when compared with the matters on the indictments that they can effectively be ignored. 3Police had been monitoring various telephones and became aware that four men, these two offenders, plus Genua and Hardy were planning an armed robbery. They monitored a number of telephone calls in which the various co-conspirators indicated their willingness to participate in the offence and in which various aspects of the offence were planned. However at about 12.45 pm on 10 November 2009 conversations were captured which didn't accord with the physical surveillance then being undertaken by police. I mention this circumstance because it was the evidence of Mr Skinner, in sentencing proceedings, that whilst he had agreed to participate in the armed robbery with the other three men, when Hardy and Elliot failed to turn up as planned he abandoned the idea and asked to be taken to a railway station so he could go home. Given that the Crown did not cross-examine Mr Skinner to suggest that he had not in fact abandoned the conspiracy, and given the evidence I have just referred to, I propose to sentence Mr Skinner on that basis. 4So, pursuant to what I have just found is Mr Skinner's intention to go home, he and Genua entered a stolen motor vehicle and drove off. Shortly afterwards it was stopped by police officers. Genua was driving with Skinner in the passenger seat. After the two offenders were arrested police discovered, in the front seat well where Skinner had been seated, a shortened Remington rifle secreted in a black bag. That is the subject of the second offence for which Mr Skinner is to be sentenced. They also located material belonging to the offender Genua including a balaclava and a small replica pistol. 5Elliott and Hardy were separately arrested and the vehicle in which they had been travelling was searched. In that vehicle police found another replica pistol, another balaclava and a white face-mask. 6Mr Elliott did not give any evidence that he had abandoned the conspiracy. There is nothing at all to suggest that Mr Elliott had any change of heart at all. 7Shortly before the events I have just described Mr Elliott committed two other very serious offences of armed robbery. The first of those was committed on Saturday 3 October 2009. On that occasion Elliott and others robbed an employee of a foreign currency exchange service. The employee unlocked the currency exchange kiosk where she worked. She was prevented from closing the door by the offender who entered the kiosk behind her. He then presented a shortened shotgun and Mr Elliott's co-offender also entered the kiosk. 8It is difficult to imagine the fear that the employee must have felt but things must have only got worse when the offender actually pointed the shotgun at her whilst pulling her right shoulder down towards the safe and demanding that she open it. She did open the safe and Mr Elliott then placed the shotgun on the floor and removed a large amount of cash which was inside. 9As if that was not enough, Mr Elliott's co-offender took the unfortunate employee's personal handbag as well as a significant amount of cash from the safe. 10Mr Elliott and his co-offender, together with a third man who was apparently acting as a lookout, ran away and then drove off in a car. 11All of those events were captured on CCTV surveillance footage and Mr Elliott was identified by the employee when a number of photographs were shown to her. The offenders stole close to $28,000 in Australian currency and the equivalent of about $14,500 in foreign currency. The getaway vehicle was of course stolen and that offence appears on the Form 1. 12The next offence for which Mr Elliott is to be sentenced was committed a relatively short time later on 16 October 2009. This time the offender and other men targeted a jeweller's shop in Rockdale. Mr Elliott and two co-offenders came into the shop, pulled out hammers from the bags they were carrying, and immediately commenced smashing the glass jewellery display cases. Staff members were present at the time and Mr Elliott pulled out a shortened shotgun and ordered one of the employees to lie down. The employee didn't. He picked up a small coffee table and struck at each of the co-offenders before he threw it towards Mr Elliott's face. Mr Elliott responded by threatening to shoot the employee as a result. 13Meanwhile another employee threw an office chair at the offenders which caused them to retreat briefly. They continued however to remove the jewellery and place it into the bags they had brought with them. One of the employees then pushed a display case over onto one of the co-offenders and climbed over it, cutting his own right wrist in the process. Once again Mr Elliott pointed the shotgun at the employee, but he was not to be deterred, trying to apprehend the offenders as they ran away. As they did so they left behind two of the three bags they were carrying, the two hammers, and other items. Other witnesses nearby tried to physically restrain the men but they got away. The employee who had cut his wrist required medical treatment. 14Once more this entire incident was captured on CCTV surveillance footage and once more Mr Elliott was identified as being the man with the shotgun during the robbery after one of the employees was shown a number of photographs. The total value of all the stolen jewellery, both taken by the men and left behind was between $5000 and $6000. 15The circumstance that no shots were fired by any of the robbers in order to deter the victims from what they were doing tends to suggest that the firearms may have been unloaded. Of course the victims of the robbery were not to know that, but it goes without saying that had there been evidence to establish that the firearms were loaded, this very serious offence would have been even more serious. 16Again the vehicle that was used was a stolen motor vehicle and the second matter on the Form 1 relates to that offence. 17Thus Mr Elliott conspired to commit an armed robbery which appears to have been thwarted only by the intervention of the police and had earlier committed two very serious and violent armed robberies in which entirely innocent people had a sawn off shotgun pointed at them by Mr Elliott. The criminality of this offender is very high indeed. 18Both men have criminal histories but there is a substantial difference between them. Mr Skinner has never before been dealt with for an offence as serious as the present. He has been a regular offender in the past but has never yet been sentenced in the District Court. 19All of his offending appears to be related to his addiction to drugs. He is now 38 years of age. He told the Probation and Parole Service that he had a disruptive upbringing. His parents separated when he was seven and he had no contact with his father for the following seven years. They have now re-united and his father is one of his strongest supporters visiting him regularly in gaol and giving evidence on his behalf in a very impressive manner. 20But things were not always as rosy. At 15, after re-uniting with his father shortly before hand, the offender moved in with his father but then left the family home and had no fixed address. He then commenced his lifestyle of illicit drug use and criminal activity. There have been times in the past where the offender has been able to stay off drugs but, as is obvious, there have always been relapses into drug use and criminal offending. 21Since going into custody the offender says he has not used any illegal drugs. He has been subject to regular urinalysis and there has been no report of any such testing revealing that what the offender said was untrue. He expressed a commitment to rehabilitation. He attempted to get bail after being accepted into various residential rehabilitation programs but was unable to take up those offers because his bail applications were unsuccessful. 22He has made the decision, and it seems to be a genuine one, to change his lifestyle on the understanding that if he doesn't do it now he will end up living a wasted life. 23He is serving his sentence on protection because he was assaulted in prison whilst serving a previous sentence and it is safer for him to be on protection than in the general prison population. However the conditions under which he has been kept in custody are vastly different than those applying to the general prison population. For example at Parklea, where he is at present, he spends less than four hours each day out of his cell and is unable to work in the various industries which are available to the general prison population. It is highly likely that he will serve the rest of his sentence on protection and there is a risk that any further time in custody would also be served under harsher conditions of custody than apply to the general prison population. 24He expressed his remorse for what he had done and explained that none of it would have happened had he not been a drug user. I am satisfied that Mr Skinner's desire to rehabilitate is genuine and that he has good prospects of doing what he hopes to achieve upon his release from custody. He has substantial family support as well as the support of experts in rehabilitation. He has been accepted into various residential rehabilitation programs and a release plan summary indicating the sort of assistance the offender will receive upon his release was tendered to me during the sentencing proceedings. 25He has spent more than two years in custody awaiting trial and sentence. His pleas of guilty arose in the following circumstances. A trial involving both him and Hardy commenced before me after they both pleaded not guilty. However the trial insofar as it concerned Mr Skinner was aborted after his counsel was unable to continue for personal reasons and so the jury was discharged as concerned Mr Skinner. Mr Hardy was found guilty by the jury and before Mr Skinner could face a re-trial he changed his plea and admitted his guilt. Mr Skinner gave evidence that he had resisted pleading guilty because he had abandoned the conspiracy before his arrest. He said that when it was explained to him that this did not effect the circumstance that he had committed an offence of conspiracy, he pleaded guilty. While that circumstance may be relevant to the question of the offender's remorse it does not effect the utilitarian value of the plea. Accordingly on that latter basis the sentence I impose upon him will be slightly reduced, in the order 10% to reflect the utilitarian value of his pleas. 26Mr Skinner does not fit comfortably into the typical case of armed robbery discussed by the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR. He is not a young offender with little or no criminal history and the circumstances surrounding the conspiracy suggest that what was planned was a far more serious version of armed robbery than that contemplated by the Court of Criminal Appeal, in fact most likely the sort of armed robbery committed by Mr Elliott which did not involve Mr Skinner. 27Mr Trevallion who appeared for Mr Skinner on sentence emphasised his client's desire and willingness to be rehabilitated. But it is a fundamental rule of sentencing that any sentence imposed on an offender must reflect the objective gravity of what he or she did. In this regard, given that the offence is one of conspiracy, it is important not to only focus on the actual acts of the offender but to also have regard to the circumstance that agreeing to commit a crime in itself is a significantly criminal matter. 28I note that pursuant to the agreed facts, the offender first became a part of the conspiracy on the very day he was arrested. I note also that by early afternoon that day he had abandoned the conspiracy and was heading home. Thus the offender's involvement in the conspiracy was very short indeed. He also voluntarily ceased his own criminal behaviour. He was not the driver of the car which was used by Mr Genua as something of an offensive instrument in an effort to get away from police and no ammunition was found for any firearm. These are important matters in assessing the objective criminality of what the offender did. 29It was Mr Trevallion's submission that the time that the offender has spent in custody is enough, given a finding of special circumstances in his favour. 30I will make the finding of special circumstances based on the clear desirability for the offender to be given as much assistance as possible upon his release from custody and the circumstance that I expect he will only be granted parole if he then goes into a period of quasi custody as part of a residential rehabilitation program. 31Another significant factor relevant to the circumstance as to whether the offender has spent enough time in custody already concerns the circumstances of that custody which are, as I have earlier indicated, are harsher than those of the general prison population. 32In imposing sentence upon Mr Skinner I note that he is to be sentenced for conspiring to commit an armed robbery and faces a separate charge of being in possession of a firearm. In my view there is such a substantial amount of overlap between those two offences, that, together with the other matters I have referred to earlier, the sentences will be entirely concurrent 33I should also note that one of those offences carries with it a standard non-parole period. I have taken into account that standard non-parole period, as well of course as the maximum penalties for both offences, in formulating the appropriate sentences. My reasons for not imposing the standard non-parole period for the possess prohibited firearm matter appear in these remarks on sentence. 34I will announce the sentence I have decided to impose after dealing with the case of Mr Elliott. 35Mr Elliott is now 32 years of age. He also had an unstable early life, describing himself as an uncontrollable child who attended approximately 15 different primary schools. Because of his behaviour his mother sent him to live with various relatives but he would often run away. 36He has a long association with antisocial peers, and has been a heroin user for a very long time. 37In the last 13 years, he has spent only eight and a half months out of gaol, and since the 3rd August 2000, a period of more than 12 years, he has been in the community for only 2 months. Exhibit H prepared by Mr Wilson who appears for Mr Elliott shows that Mr Elliott has had only the following periods out of custody since the 3rd January 1999, (when he entered adult custody for the first time): * two days, * five months six days, * six days, * five days, * four days, * seven days and * one month 19 days. 38It was in that last period that the offender committed the three offences for which he must now be sentenced. 39To say that that is a terribly sad state of affairs is obviously an understatement. Mr Elliott is clearly institutionalised. He has bleak prospects of being able to remain offence free when he is next released into the community without enormous support from Corrective Services. Unfortunately there is one particular circumstance which has a significant affect on the likelihood that Mr Elliott will get that enormous support and assistance in rehabilitation which he clearly needs. It concerns the fact that he escaped from custody in 2004 and is thus classified E1. A prisoner with that classification is not eligible for work release and the chances that he will be classified in a different manner, thus allowing him the benefits of things such as work release programs are not very good. It is not for judges to make the policy as to how prisoners are rehabilitated but it is undeniable that under current prison policies Mr Elliott will be released to the community, as one day he must, without it being possible for best efforts to be made to ensure that he does not commit further offences soon after release. 40That this is not a matter of concern to politicians and the wider community is somewhat surprising. Even if what is best for Mr Elliott is put to one side, how about taking into account what is best for the community? As matters stand the prison authorities will not be doing what they can to prevent innocent members of the public being harmed by further offending of Mr Elliott. Any future victim of Mr Elliott's crimes is entitled to look towards the prison authorities and say "why didn't you do what you could to rehabilitate Mr Elliott?". From where I sit I doubt that a satisfactory answer could be given. 41Being tough on prisoners, especially those who escape, is easy. It requires fewer resources to punish someone than it does to rehabilitate them. Even this morning a talk back radio host expressed the view that judges who say that there are too many people in jail are wrong. That same radio host often praises judges, including me on occasions, who impose lengthy sentences. But there is much more to protecting the community than sending people to jail for a long time. Protection of the community from further offending by people such as Mr Elliot requires that substantial efforts be made to rehabilitate them, to give them what they so desperately need to change their behaviour. Those efforts cannot be made in Mr Elliot's case because of the way prisoners who have escaped are treated in gaol. And it is Mr Elliot's future victims who will suffer. 42In this case, somewhat unusually, I have had the benefit of two psychological assessment reports prepared by the same psychologist some years apart. Dr Collins saw Mr Elliott in 2005 when a report was prepared in relation to offending mush less serious than at present. At that time she reported that Mr Elliott was an immature man with low cognitive function and significant psychological disturbance secondary to his poor background. She noted "it is possible that Mr Elliott may mature out of some of his behaviours as he reaches his early 30's, however, this may only be achieved with ongoing supports upon his return to the community." 43The offender is now in his early 30's and when Dr Collins saw him in July this year she reported that Mr Elliott is now at a crossroads and he will either continue on his anti-social trajectory or mature out of his behaviour. Importantly, given what I have just said, about Mr Elliott's classification in gaol, she says "I do not believe that Mr Elliott will be able to make positive lifestyle changes without intensive support and supervision being put in place upon his return to the community." 44Clearly there is a risk that Mr Elliott will become one of those sad people whose only real home, and the only place they feel comfortable, is prison. Clearly the risk that Mr Elliott will become more fully institutionalised as his time in custody goes on and on is a highly relevant circumstance to the sentence I should impose upon him. 45Despite the serious nature of his offending it may be better, not just for Mr Elliott, but also for the community, to be able to extend to Mr Elliott a significant measure of leniency, in particular as regards the effective non-parole period. 46Mr Elliott's pleas of guilty was earlier than Mr Skinner's. I will discount his sentence by 15% to reflect the utilitarian value of his pleas. 47Special circumstances are clearly to be found in this case. There is first the mathematical circumstance that he has effectively served a very long accumulative sentence. Secondly there is the realisation that every day that Mr Elliott spends in custody extends his institutionalisation and thirdly there is the circumstance referred to by Dr Collins, but blindingly obvious to everyone (apart perhaps from some talk back radio hosts), that if the community is to be protected from Mr Elliott committing further crimes, the best way of achieving that is by a very lengthy period of close supervision by the parole authorities upon Mr Elliott's release from prison. For Mr Skinner: 48Taking into account the matter on the Form 1, for the offence of conspiring to commit an armed robbery the offender is sentenced to imprisonment for 4 years, to date from 8 July 2010. 49For the offence of possessing a prohibited firearm the offender is sentenced to imprisonment for 3 years to date from 8 July 2010. 50In each case I set a non-parole period of 2 years and 3 months. The non-parole period will thus expire on the 7th of October 2012 on which day the offender is eligible to be released to parole. Although it is not me who sets the conditions of Mr Skinner's parole it is my firm recommendation that he only be released to parole on condition that he immediately enter and remain at a residential drug rehabilitation program. For Mr Elliott: 51For the offence of conspiring to commit an armed robbery the offender is sentenced to imprisonment. I set a non-parole period of 2 years to date from 10 November 2009 and a period of eligibility for parole of 2½ years. 52For the offence of armed robbery of The Change Group, taking into account the matters on a Form 1, the offender is sentenced to imprisonment. I set a non-parole period of 3 years to date from 10 November 2010 and a period of eligibility for parole of 4 years. 53For the offence of armed robbery of Timely Jewellery, the offender is sentenced to imprisonment. I set a non-parole period of 3 years and a period of eligibility for parole of 4 years, to date from 10 November 2011. 54The earliest date the offender can be released to parole is 9 November 2014, with an effective overall sentence of non-parole period of 5 years and a head sentence of 9 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. 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: 04 September 2012