District Court New South Wales Medium Neutral Citation: R v Jacobson FITZSIMMONS [2013] NSWDC 169 Decision date: 11 June 2013 Before: Cogswell SC DCJ Decision: Convicted of the offence of robbery in company. Sentenced to 1 year and 10 months imprisonment. Offender referred for assessment as to his suitability for intensive correction in the community. Catchwords: CRIMINAL LAW - Particular offence - robbery in company - vulnerable victim - passenger travelling alone on train at night - Sentence - relevant factors - parity between co-offenders - co-offender sentenced to imprisonment - distinguishable - co-offender had criminal record; was on conditional liberty when offence committed; and Form 1 taken into account - response to charges - early plea of guilty - 25 percent discount - remorseful - nature and circumstances of offender - employed - undertaking apprenticeship - voluntary work - nature and circumstances of the offence - no weapon - offender not involved in violence - Sentencing procedure - sentencing guidelines - many Henry factors present - limited planning - limited actual violence - no criminal record - vulnerable victim - small amount taken - guilty plea - Sentencing orders - non-custodial orders - referral for assessment for suitability for intensive correction order. Legislation Cited: Crimes Act 1900, s 97(1). Crimes (Sentencing Procedure) Act 1999, s 32, s 69(1). Cases Cited: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. Category: Sentence Parties: Regina (Crown) Jacobson Fitzsimmons (Offender) Representation: Counsel: J Baxter (Offender) Solicitor: D M Weston, Office of Director of Public Prosecutions (Crown) File Number(s): DC 2012/179652 REMARKS ON SENTENCE 1I am sentencing a young man who became involved in a robbery on a train. The young man had become an adult merely weeks before the crime was committed. He has pleaded guilty and it is my job to sentence him or reach a conclusion about the appropriate sentence today. 2His name is Jacobson Fitzsimmons. He was born on 23 April 1994 so he is still only 19. 3What a judge has to do in sentencing is to say briefly what happened in the crime and then to say something about the offender and consider the arguments by the prosecution and the defence and then to reach a conclusion about the appropriate penalty. 4First I should say something about the crime. As it happened I sentenced one of the other persons involved in the offence last year so I will make reference to those remarks as well. Mr Fitzsimmons pleaded guilty to an offence known as robbery in company. That is an offence against s 97(1) of the Crimes Act 1900. Parliament has fixed a maximum of 20 years imprisonment to that offence. I formally convict Jacobson Fitzsimmons of that crime. 5The events happened at about 8.00pm on a Wednesday night, 6 June 2012. Mr Fitzsimmons went to Kogarah Railway Station with two other young men. One like himself had just turned 18 and the other was under 18 and therefore regarded at law as a child rather than an adult. The three got onto a train and found a man called Yi Zhang sitting on the train. He was near the guard's compartment. The three young men stood in the middle of the vestibule area. There were no other passengers around. One of the other young men, whose name was Raven Edwards and who was the other adult, sat down next to Mr Zhang. Mr Zhang was reading articles on his mobile phone. The articles were in Chinese. The other two sat nearby. 6After some unsuccessful attempts at conversation Raven Edwards said, "Give me your phone". Mr Zhang said that he would not. Raven Edwards grabbed Mr Zhang's arm and tried to pull the phone away. Mr Zhang resisted so Raven Edwards stood up and punched him in the head at least twice. Mr Zhang tried to get away but Mr Edwards grabbed him. Mr Zhang fell onto the floor. Raven Edwards kicked him in the stomach. One of the others kicked him in the head and the neck. I heard evidence from Mr Zhang who was cross-examined by Mr Baxter of counsel who appeared for Mr Fitzsimmons. I cannot be satisfied beyond reasonable doubt that Mr Fitzsimmons was one of the ones kicking Mr Zhang in the head and the neck. 7One of them grabbed the phone and Mr Zhang's bag and they ran out of the train at Hurstville. Mr Fitzsimmons pushed through a ticket barrier without a ticket and he was stopped by the police. He was identified by some witnesses as one of the robbers. He was arrested and charged with this offence. 8Mr Zhang sustained grazing to his face and neck. He sought compensation and I have ordered that. 9Mr Fitzsimmons comes before the court as a young man with no criminal record whatsoever. There is a pre-sentence report which has been prepared. It summarises his case as follows - "Mr Fitzsimmon presented as an open and likeable young man who appears to have the ongoing support of his family. He has commenced an apprenticeship and is gainfully employed. Whilst he has a history of alcohol abuse and illicit drug use he has stated, and his mother has supported, that he is no longer using illicit drugs. To his credit he has undertaken the Positive Lifestyle Program and the facilitator has made positive comments about his engagement and participation." The author of the pre-sentence report thought that he would be unlikely to need supervision. 10Mr Baxter tendered some material on behalf of his client. There was a psychological assessment by the experienced forensic psychologist Anita Duffy. She noted that he expressed remorse and concern over his involvement in the offence. It noted that when he committed the offence he had lost his employment the day before and was angry and disappointed. He had been drinking and smoking cannabis. It noted that he had reduced his alcohol intake and is more cautious in his dealings with other people. 11Ms Duffy noted that research indicated "that youth appear to benefit more from treatment than adults for offending behaviour." She was of the view that "community based sanctions...seem to be more effective for rehabilitating youth than more restrictive alternatives". She thought an intensive correction order would be a suitable outcome. 12There is a report from the chaplain about Mr Fitzsimmons' participation in the Positive Lifestyle Program for Youth conducted by the Salvation Army. The author, Major Susan Reese, concludes as follows: "In summary, Jacobson has impressed me as a young man with significant potential and a genuine desire to live a good life. He has consistently shown regret that he has disappointed himself and his family and failed to provide a positive role model for his youngest brother. I have seen him demonstrate a genuine desire to change and a commendable level of insight. He has been open and honest in disclosing his feelings and discussing his actions. As a result he has shown significant growth and development over the time that we have been meeting, and I believe that this will continue as he matures, particularly given further learning opportunities and encouragement." 13He has employment which includes an apprenticeship and is undergoing studies at TAFE. There is a reference from the head teacher of the metal fabrication and welding section of the Sydney Institute which is part of TAFE pointing out that Mr Fitzsimmons "has been a consistent and reliable student, fore filling all the requirements for the units of competencies in stage one of his studies." He has attended all classes. The author says that Mr Jacobson "interacts extremely well with the teaching staff and peers alike" and "demonstrated all the very best qualities expected from a first year apprentice". He has done voluntary work at the PCYC and there are references from people pointing out that his actions were out of character. 14Ms D M Weston who appeared for the prosecution pointed out that Mr Fitzsimmons' case fitted into the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149. There was limited planning and limited actual violence. He had no criminal record and the victim was vulnerable, sitting alone on a train. A small amount was taken and he had pleaded guilty. As Ms Weston said, the case fitted squarely into the guidelines set out by the Court of Criminal Appeal for judges who are sentencing robbers and the guideline was one of 4 - 5 years imprisonment. 15I asked why the case had taken so long to come on. Apparently it was not reached when first listed and then Mr Fitzsimmons had difficulty with his legal representation and then there were further adjournments and a pre-sentence report. 16Mr Baxter assisted me with very comprehensive written submissions. Mr Baxter pointed out that there was no weapon involved in this case and that his client had played no part in the violence. His client had demonstrated some remorse expressed through the psychologist and the author of the pre-sentence report and the injuries and loss to the victim were not substantial. He had entered an early plea of guilty. Mr Baxter pointed out the references and positive steps taken by his client in undertaking the Salvation Army Positive Lifestyle Program. He pointed out how his client had kept his employment and was undertaking an apprenticeship and was making steps to put the incident behind him. He was doing voluntary work and finished the course. His case was that his client could avoid a sentence of full time custody. As a young man he would be vulnerable to other inmates and would be susceptible to their influence. 17This is a case as Ms Weston says and Mr Baxter acknowledges, which in my opinion must be dealt with by a prison sentence. I reach that view because no other option is available and in my opinion the offence is too serious to be dealt with otherwise than by a prison sentence. However the question is how that prison sentence should be served. 18A factor which is an important part of this case is the sentence which I imposed on one of the co-offenders. I sentenced Mr Raven Edwards on 30 November last year. I imposed upon him a sentence of 2½ years imprisonment with a non-parole period of 12 months. I regarded an appropriate overall sentence as being one of 4 years imprisonment but I reduced that to 3 years imprisonment because of his plea of guilty. I would undertake the same process in this case but I would adjust the figures so that the appropriate commencing sentence is one of 3½ years. I fix that sentence because I am not satisfied beyond reasonable doubt that this offender participated in the physical violence. I would reduce that sentence to 33 months because of his plea of guilty. Sorry that is wrong. 19In Mr Edwards' case I discounted his 4 year sentence to a 3 year sentence and then reduced it to a 2½ year sentence because of his age. I propose to undertake a similar process here. I propose to reduce Mr Fitzsimmons' sentence to one of 2½ years before taking into account the discount for the plea of guilty. I reduce it to 2½ years because there are three important distinguishing factors between Mr Edwards' case and Mr Fitzsimmons' case. They are all pointed out and relied upon by Mr Baxter. 20The first is that in Mr Edwards' case he had a criminal record and it was a relevant criminal record. The second is that in Mr Edwards' case he was on conditional liberty at the time that he committed this offence. The third is that in sentencing Mr Edwards I took into account another offence under s 32 of the Crimes (Sentencing Procedure) Act 1999. All of those factors were absent in Mr Fitzsimmons' case. Hence I would reduce his sentence to 2½ years imprisonment but reduce that further by 25 per cent because of his plea of guilty and fix an overall sentence of 22 months or 1 year and 10 months imprisonment. 21Because of his employment and his efforts to rehabilitate himself and the recommendations of Ms Duffy I propose to make an order for Mr Fitzsimmons to be assessed for suitability for an intensive correction order. Under s 69(1) of the Crimes (Sentencing Procedure) Act 1999, I refer Mr Fitzsimmons for assessment as to his suitability for intensive correction in the community. For that purpose Mr Fitzsimmons is to report to the office of the Probation and Parole Service at Hurstville on or before next Monday at 5.00pm, 17 June 2013. HIS HONOUR: Now in a moment I will re-list it but are there any other formal matters Mr Baxter, Ms Lockery which - so I have referred him for an assessment. BAXTER: Just that bail conditions would remain the same. HIS HONOUR: Yes. Ms Lockery bail the same? LOCKERY: Yes your Honour. HIS HONOUR: Okay. 22Bail is continued on the same conditions as presently fixed. HIS HONOUR: I think we have to allow 8 weeks don't we these days, is it 8 weeks? LOCKERY: Yes your Honour. HIS HONOUR: So we are presently Tuesday the 11th. I will have to list it on a day I am in Sydney civil. I have in mind Friday 9 August. Mr Baxter, Ms Lockery? LOCKERY: Suitable to the Crown your Honour. BAXTER: Your Honour it's unlikely I will be appearing at that time. HIS HONOUR: But somebody will be here? BAXTER: They will and I understand that date is suitable. 23I list the matter for Friday 9 August 2013 at 10.00am. I continue bail until that date on the same conditions as presently fixed. I direct that a transcript of my remarks be taken out and made available to me for revision on or before Monday 5 August 2013. HIS HONOUR: I will explain this to Mr Fitzsimmons in a moment. Is there anything else, any other formal matters I need to attend to? I don't think so. LOCKERY: No your Honour. BAXTER: No your Honour. HIS HONOUR: Mr Fitzsimmons I have given you one of the options that Mr Baxter was arguing for. His best option was a community service order but your offence was too serious for that. The other young man, Mr Edwards, got a gaol sentence and I have given you a prison sentence as well. It is a 22 month prison sentence, 1 year and 10 months. But I am having you assessed for serving that in the community and Mr Baxter will explain to you and so will I if the assessment comes back positive what that means. It will be pretty restricted and restrictive on your freedom. That is to remind you of the trouble that you got into and to make it a form of punishment for you. But on the other hand it will enable you to carry on with your job, your apprenticeship and to keep the positive changes that you have made in your life. Keep those up. So it is a balance, and to keep you out of gaol which would be very bad for you. You had those 2 nights did you not, in gaol? Did you have 2 days? OFFENDER: A night and a day. HIS HONOUR: A night and a day, that is what I thought. And you had a cell mate who was friendly but it was still pretty scary was it not? OFFENDER: Yes. HIS HONOUR: Yes, that is what I thought. So you have got to turn up at Hurstville Probation and Parole this week but make sure you have done it by Monday at 5.00pm. Do you understand? OFFENDER: I understand. HIS HONOUR: And they will either assess you there or get things under way or send you to another office and then you will come back before me on 9 August and if the assessment is positive I will impose the sentence of 22 months and direct that you serve it by way of ICO which also involves voluntary work as well. OFFENDER: Thank you your Honour. HIS HONOUR: Okay Mr Fitzsimmons. It looks as though you are on the right track which is a very good thing. ADJOURNED TO FRIDAY 9 AUGUST 2013 ********** 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: 10 September 2013