R v Jacob Keith Rees [2015] NSWDC 289

District Court New South Wales

Medium Neutral Citation: R v Jacob Keith Rees [2015] NSWDC 289 Hearing dates: 20 November 2015 Decision date: 01 December 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentence imposed. (For orders see [47]) Catchwords: Robbery in company Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194 Pearce v R (1998) 194 CLR 610 R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 346 R v Stanley [2003] NSWCCA 233 R v Sydney [2004] NSWCCA 63 Veen v R No. 2 (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Crown) Jacob Keith Rees (Offender) Representation: Counsel: H Cantor (Crown) Z Khan (Appellant) File Number(s): 15/23540 Publication restriction: Nil

REMARKS ON SENTENCE

The Offence 1. The offender has pleaded guilty to an offence pursuant to s 97(1) of the Crimes Act 1900 of robbery in company on 16 December 2014. That offence carries a maximum penalty of 20 years imprisonment and there is no standard non-parole period prescribed for it. 2. The offender has been in custody since the date of his arrest, namely, 25 January 2015, serving sentences for unrelated matters. He is currently eligible for release in respect of those matters on 24 April 2016.

Evidence on the sentence hearing 1. The Crown bundle (exhibit A) included a statement of agreed facts which may be fairly summarised as follows. At approximately 11.30am on Tuesday 16 December 2014, a Mr Joshua Webb was at his home in Lake Haven when he noticed two males and a female arrive in a green Hyundai XL motor vehicle. They were standing out the front of his house looking at a car that his roommate was selling. Mr Webb knew one of the males and went outside to speak to the three persons, and then invited them into his home. The female said, in his presence, that she needed to report to Gosford Police Station for bail, otherwise she would get locked up. Mr Webb then offered to drive the three of them to Gosford. 2. During that journey, the offender punched Mr Webb, who was driving the vehicle, on a number of occasions for no real reason. The victim said, after he had been punched by the co-offender, McPhail: "I'm doing you a favour and driving you where you want and this is how you treat me?" 1. The offender then directed the victim to turn off the highway and pull over. He was directed to turn into a driveway that led to a block of apartments. As he did so, the offender continued to punch him in the back of the head. 2. The victim stopped the vehicle next to two unknown males and said "You've gotta help me, call the cops I'm being kidnapped." The offender and his co‑offender started laughing and said "We know these guys, they are our brothers." The offender then exited the vehicle with the victim's wallet and mobile phone. The victim grabbed his wallet back and the offender said to him, "Give me your keys, it's my car now." The victim returned to the driver's seat and started to drive away when the co-offender said to him, "If you call the cops I'm going to slit your throat in your sleep." 3. The victim then drove himself to a service station and called 000. The offender was arrested on 25 January 2015 and declined to participate in an ERISP interview. The co-offender was arrested on 11 February 2015. 4. Exhibit A included the criminal record of the offender. It was lamentable. From age 15 it included both traffic offences and offences of dishonesty, including numerous break, enter and steal offences. Thereafter, his record includes numerous dishonesty offences, offences of assault police officer in the execution of their duty, possession of prohibited drugs, traffic offences including drive whilst disqualified, receiving stolen property, police pursuit and driving dangerously offences. 5. On 28 April 2015 he was convicted of the following offences for which he is currently in custody: 1. Police pursuit – not stop – drive recklessly – imprisonment for 18 months commencing 25 July 2015 with a non-parole period of 9 months concluding on 24 April 2016. 2. Drive conveyance taken without consent of owner – imprisonment 18 months with a non-parole period of 9 months concluding on 24 April 2016. 3. Drive motor vehicle during disqualification period – second offence – imprisonment of 18 months with non-parole period of 9 months concluding on 24 April 2016. 4. Take and drive conveyance without consent of owner – imprisonment of 3 months commencing on 25 January 2015 and concluding on 24 April 2015. 5. Drive motor vehicle during disqualification period – second plus offence – imprisonment 3 months commencing 25 January 2015 and concluding 24 April 2015. 1. Exhibit A also included the offender's custody records which revealed that on a number of occasions he had failed urine tests. 2. Exhibit A included a certificate pursuant to s 166 of the Criminal Procedure Act. The backup offences set out therein are as follows: Sequence 2 – Aggravated robbery (corporal violence) – to be remitted back to the Local Court to be withdrawn. Sequence 3 – Common assault Sequence 4 – Larceny Sequence 5 – Stalk/intimidate Those sequences 3, 4 and 5 are to be withdrawn as backup offences. 1. Exhibit 1 was a Clinical Psychological report under the hand of Mr Johan Shoeman dated 15 March 2015. It was a report prepared for the matters dealt with in the Local Court in April 2015, but was relied on by the offender in respect of the subjective matters set out therein. That included an early diagnoses of Attention Deficit Hyperactivity Disorder (ADHD), anxiety and Obsessive Compulsive Disorder (OCD) as a child. He had been in detention centres from an early age and managed to obtain a Year 7 qualification only. Whilst he received training as a chef during imprisonment, he has never engaged in employment in the open labour market. 2. The offender had also been the subject of a sexual assault at a young age and had started using cannabis before aged 10. By the time he was 18, he was experimenting with a broad spectrum of illicit drugs. His drugs of preference continued to be cannabis and methamphetamine. He had become significantly institutionalised as a result of extended periods of imprisonment and had lost self confidence in terms of engaging in work, relationships and general social activities. It was his ingestion of illicit drugs which led to impulsive and sometimes aggressive behaviour. 3. The offender was diagnosed with a Bi-polar Disorder Type 1, an Excessive Compulsive Disorder, Generalised Anxiety Disorder, Dysthymic Disorder and substance abuse. 4. Mrs Donna Harrison gave evidence on behalf of the offender. She was the offender's mother and aware of the charges against him. She acknowledged that he had a criminal history from age 13 years, and that his life had been mainly institutionalised. 5. Mrs Harrison had spoken to the offender on an almost daily basis whilst he had been in custody. She described him continuously expressing his remorse to her, which she believed was genuine. On previous occasions Mrs Harrison believed that he had been sorry for himself and not sorry for what he had done, but on this occasion it was different. 6. Mrs Harrison was asked why he had been unable to break the cycle of crime in his life. She expressed a hope that he would, however, nothing had worked to date. She expressed that "something is different now". Whilst he is in custody he is at peace with himself and doing things for his future. He has a daughter who is 10 years of age. She has said to him that she does not want him to regret the whole of his life and he has promised her that on his release he will be at home forever. He is also working as a baker whilst in custody and has completed two courses. His work requires him to be up at 4am and in the future he will be able to live with his family. He was not able to do that when he was last released from custody in December 2014 because he was, at that time, doing drugs and committing crimes. 7. Mrs Harrison and her husband have a family business in the disability field. He could assist by virtue of his qualifications as a roofer and roof plumber in maintaining the buildings that are part of the business. 8. In cross-examination, Mrs Harrison acknowledged that he could not work in the family business where such work involved the clients of the business. She acknowledged that he was a habitual drug user, and his long criminal history. She said that he was a petty criminal, and not a very good one. She also acknowledged that this offence was more serious, however, she believed that he was remorseful to the extent that he wants to do his time in gaol hard to demonstrate that remorse.