District Court New South Wales Medium Neutral Citation: R v Page [2012] NSWDC 300 Hearing dates: 22 November 2012 Decision date: 22 November 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 4 years Catchwords: CRIMINAL LAW - Sentence after trial - Robbery in circumstances of aggravation - On bail at the time of offence - Totality Legislation Cited: Summary Offences Act Category: Sentence Parties: The Crown Harley Page Representation: Mr Corish - for the offender Director of Public Prosecutions File Number(s): 2011/376344 Sentence 1HIS HONOUR: Harley Page was convicted a short time ago of an offence of robbery with corporal violence. He had pleaded not guilty to that offence but after a short trial the jury convicted him. I also convicted him in a matter appearing on a s 166 certificate arising out of the same circumstances, an offence against s 11A (1) of the Summary Offences Act. He thus is to be sentenced for both of those matters which were committed by Mr Page while he was on bail for an offence of robbery in company. 2The circumstances which led to Mr Page committing these offences were set out in some detail in the evidence of the various witnesses. A group of music students had gone out drinking one night and they were heading home when their group was approached by another group of young people, that group including the offender and his brother Levy and a man by the name of Isherwood amongst others. It is apparent that some of those people in the offender's camp, including the offender himself, were looking for some violence. 3It seems that to some people a good night out cannot be had unless you end up punching someone. The last sentence I did before this one concerned an offence of drunken violence and I have to say, in particular, Newcastle District Court faces offences of drunken violence with depressing regularity. What it is that makes people like the offender, Mr Isherwood and others whose behaviour I saw on CCTV actually desire to become involved in violence as a means of entertainment is something which is beyond me, but it is apparent that that was what was planned. 4The offender's group, at least members of it, began taunting the complainant's group until some of the latter sought refuge in a 7/11 store at the end of the Hunter Street mall. I mentioned before that I saw aspects of the behaviour on CCTV footage. There were three cameras operating that night and they recorded part of what went on. What did go on was that Mr Isherwood in particular, and the offender, began to punch people. The offender began to punch Mr Copeman. All he did to deserve this attack was to walk along the street. He did not provoke the offender in any way. He did not abuse him. He barely even looked at him but, as I mentioned, the offender seems to be, or at least was that night, the sort of person that goes looking for trouble because he enjoys it. 5Mr Copeman, whilst being struck by the offender repeatedly, bent over and put his hands up to protect his head. This occurred just outside the 7/11 store and was visible on one of the bits of CCTV footage. A friend of Mr Copeman bravely entered the fray and dragged Mr Copeman inside. The offender followed but turned his attentions to other people and began hitting others. Mr Isherwood was also violent that night but the Crown did not present its case against the offender in the trial matter as involving any sort of derivative liability for what Mr Isherwood did. The young music students who had just gone out to have a good night found themselves confronted by violent, aggressive and, I have to say, somewhat out of control, thugs. 6Not everyone in the offender's group was acting that way and indeed his brother Levy Page can be seen trying to stop members of his group acting in such a reprehensible way. He is to be congratulated for his actions that night. It is a shame that his brother the offender did not pay more attention to Levy's sensible actions. 7It will be noted that so far I have not said anything that involves a robbery and that is for this reason. Mr Copeman gave evidence that whilst he was being struck outside the 7/11 he was holding the purse or wallet, or "clutch" as it was described, of a female friend of his. He gave evidence that as he was being struck the offender made a demand for that property. However, once he was dragged inside, the offender appears to have abandoned any intent to rob, having more fun by hitting other people than by taking whatever it was that Mr Copeman had in his hand. 8The gravamen of the offender's misconduct that night was his violent actions rather than his brief and abandoned intent to rob. Certainly the jury has found him guilty of the offence but really I am sure what is of concern to the victims of his offence and to the community and to anyone who witnessed the video is the violence rather than the desire to steal. 9The offender, as I mentioned, was on bail at the time for an offence of robbery in company. He was convicted of that matter and is now serving a sentence. That sentence imposed by Judge Cogswell consists of a non parole period of two years six months with a period of eligibility for parole of 18 months. The pre sentence report prepared for that matter dated only a few months ago was tendered in the present proceedings. It reveals that the offender is now 23 years of age and has four siblings. His parents separated when he was young and he was raised by his mother. He has the support of his mother and his siblings. Indeed, a number of them are in court today. 10The offender appears to have taken his parents' separation somewhat badly. The pre sentence report indicates that he longed for his father to return. Eventually he did resume contact with his father at the age of 16. The offender left school at 15 after he was asked to leave because he rarely attended. He was a member of the rugby league team and would avoid going to school when there was a risk that there would be drug or alcohol tests but since leaving school he has not worked very much. There are occasional stints of work as a labourer or at a food processing manufacture but the pre sentence report summarises it thus: "Mr Page's employment history is negligible and he has mostly been in receipt of Social Security benefits. The offender uses drugs, commencing with cannabis at the age of 15 and uses alcohol too, commencing drinking at the age of 16." One of the most accurate things I have read in the pre sentence report is this: "The offender informed that he becomes aggressive under the influence of alcohol". That is clearly the case. 11One of the problems that this sentencing exercise faces concerns the question of totality and the circumstance that any sentence imposed partially accumulatively on the non parole period that he is currently serving, will eat into the period of eligibility for parole. It is an unfortunate act of timing that has led to the offender being dealt with for the robbery in company offence prior to this offence but it does have consequences as regards the selection of the appropriate sentence and, in particular, whether he can be actually punished for the summary offences matter. One of the consequences will be that although I make a finding of special circumstances, the variation is less than it would otherwise have been when the overall ratio is considered. 12Of course the harm to Mr Copeman is an important aspect of determining the appropriate sentence. Not surprisingly, without objection from Mr Corish, the Crown told me that he experiences difficulty going out and is apprehensive, much more than he used to be. These are the entirely understandable and foreseeable consequences of an offence of this type. 13But of course it is not only Mr Copeman who suffers. Everyone who saw what occurred that night is entitled to feel just that bit more apprehensive when they go out in Newcastle in the evening. It makes all of us feel a bit less safe knowing that there are people like the offender who delight in violence, or at least who did so on that occasion. 14Since going into custody the offender has begun to work productively. He is apparently a different person when he is not drinking. He begins to use his abilities he has. That suggest that there are prospects for the offender's rehabilitation if he can do something about his excessive consumption of alcohol. If he truly does recognise that he is the sort of person who becomes aggressive under the influence of alcohol, then the necessary consequence is obvious. He has to be one of those people who just does not drink alcohol. If he is able to take that significant step, then his prospects of rehabilitation are significantly enhanced. If he does not, then I regret to say that it is likely that Mr Page will spend more and more time in custody as the years go on. 15Mr Page is sentenced to imprisonment as follows. 16For the matter on the s 166 certificate I impose a fixed term of imprisonment of six months to commence on 28 February 2013. 17For the offence of robbery in circumstance of aggravation I set a non parole period of two years to date from 28 February 2013, a head sentence of four years. Thus the non parole period will expire on 28 February 2015 on which day the offender is eligible to be released to parole. 18I will dismiss the back up charges on the s 166 certificate. ********** 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: 26 November 2013