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. Submissions on behalf of the offender 1. Mr Khan, Counsel for the offender, submitted that there was ample evidence of remorse here. Mrs Harrison was, in his submission, a truthful and accurate witness and held a genuine belief that he was remorseful. 2. It was conceded that the criminal record of the offender was lamentable and that a full time custodial sentence was inevitable in accordance with the principles in R v Henry (1999) 46 NSWLR 346. 3. It was submitted that his relationship with his 10 year old daughter has had a profound effect on him and that he has completed both an EQUIPS course, together with a Positive Lifestyle course. He is also in employment. With respect to his custodial record, there has been no illicit drug use detected since 2013. 4. With respect to the commencement date of his sentence, the offender had been in custody since his arrest on 25 January 2014. On 28 April 2015, he was sentenced in relation to the five matters referred to above for a total period of 18 months. There was some accumulation of the sentences and it was submitted that the court could still apply a degree of concurrency with the current offences. 5. Counsel provided a comprehensive written outline of submissions. It was submitted that the objective gravity of the offence was elevated by it being committed in company. As a general rule, it was submitted that that aspect was less objectively serious than an offence accompanied with a use of an offensive weapon. Here, there was one co-offender, who did at one point, strike the victim in the face. An aggravating factor was the actual use of violence beyond a mere threat thereof pursuant to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999. Here, there were at least four punches to the back of the head of the victim, however, it was submitted that the attack was not particularly ferocious or injurious and certainly not in the character of causing "substantial harm" pursuant to s 21A(2)(g). 6. It was submitted that there was no evidence of planning involved and the criminal conduct evolved organically and impulsively. It was submitted that in all of the circumstances, considering all relevant factors, the objective seriousness of the offending fell below the middle of the range for offences pursuant to s 97. 7. Counsel submitted that there were numerous subjective factors which had to be taken into account. They were set out in the psychological report (exhibit 1) and included his diagnosis at an early age of ADHD and OCD, the fact that he was sexually assaulted as a child, and his drug and alcohol use from an early age, together with his severe mental disorder. His drug addiction threw light on the impulsivity of the offence and planning, together with his state of mind at the time of the offending. 8. It was submitted that his drug addiction from an early age was a matter which reduced the need for specific deterrence, as he was now at the "crossroads". It was submitted that he had reached a point in his life where he had begun to reflect on his behaviour and develop some insight into its causes and remedies, which boded well for his prospects of rehabilitation. 9. Counsel relied on DPP (Cth) v De La Rosa [2010] NSWCCA 194 and R v Hemsley [2004] NSWCCA 228 as authorities for the proposition that the offender's mental health may reduce the offender's moral culpability and decrease the need for denunciation and punishment, and further render the offender an inappropriate vehicle for general deterrence. 10. It was submitted that the offender at age 32 is a relatively young man who is in very real danger of becoming irrevocably institutionalised. However, he had not incurred any disciplinary breaches whilst in custody for the first time, and also the court could be cautiously optimistic as to his prospects of rehabilitation. The Crown's submissions 1. The Crown submitted that the offending conduct amounted to a very serious offence. There was actual violence involved, together with the threat of further violence to the victim, namely, that his throat would be slit. Whilst the offending was very serious, the Crown submitted it was not necessarily within the mid-range of objective seriousness for offences pursuant to s 97. 2. The Crown submitted that the court would have regard to the purposes of sentencing to punish the offender and also general and specific deterrence. The Crown acknowledged that there was, given the mental health issues involved, a diminishing reliance on general deterrence, however, there was a need to protect the community from such behaviour. The Crown conceded that the offender was entitled to a utilitarian discount on the sentence of 25% in respect of his early plea of guilty. 3. It was submitted on behalf of the Crown that the psychological report relied on by the offender was prepared in respect of the earlier sentencing process. As it contained a commentary made after the subject offending, it did not assist in providing a solution to the sentencing process here. Nor did the hopes expressed by the offender's mother demonstrate that they would necessarily be borne out. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. I have had regard to the maximum penalty of 20 years imprisonment for offences pursuant to s 97(1) as a guidepost in the sentencing process. I find that the offending, in all of the circumstances, is below the mid-range of objective seriousness for an offence pursuant to s 97(1), however, it still constitutes serious offending and is not very far below it. 2. In the guideline judgment of R v Henry, supra, Spigelman CJ at [162] identified the category of case upon which the guideline was based. It involved the following features: Young offender with no or little criminal history Weapon like a knife, capable of killing or inflicting serious injury Limited degree of planning Limited, if any, actual violence, but a real threat thereof Victim in a vulnerable position such as a shopkeeper or taxi driver Small amount taken Plea of guilty, the significance of which is limited by a strong Crown case. 1. The Court identified a range of sentences for such a case of 4-5 years for the full term, with aggravating and mitigating factors justifying a sentence above or below the range. At [170], Spigelman CJ said as follows: "170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail et cetera, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon (ii) Vulnerability of the victim (iii) Position on a scale of impulsiveness/planning (iv) Intensity of threat, or actual use of force (v) Number of offenders (vi) Amount taken (vii) Effect on the victim(s)." 1. The guideline judgment also took into account a guilty plea of limited value. That should be understood to involve a late plea of guilty for the purpose of the application of the guidelines. Here, the plea of guilty was entered at an early stage and the Crown has acknowledged the offender is entitled to a utilitarian discount of 25%, whereas the 4-5 year term referred to in R v Henry incorporated a discount of 10% - see R v Sydney [2004] NSWCCA 63 per Beasley JA (as her Honour then was) (with whom O'Keefe and Bell JJ agreed). 2. I accept that the offender has expressed some remorse for his involvement in the offence and has accepted some responsibility for his criminal conduct, whereas in the past he has failed to do so. I was impressed by the evidence given by his mother in support of that proposition. I am also impressed that he has undertaken some courses to rehabilitate himself already, and is working so as to prepare himself for life outside imprisonment. Hopefully his relationship with his daughter will provide him with the incentive to continue to do so. 3. It is clear from the guideline judgment in R v Henry, supra, and the offender accepts, that no penalty other than a full time custodial sentence is appropriate here pursuant to s 5 of the Sentencing Act. I am, however, persuaded that his mental health issues, as set out in the psychological report, diminishes moral culpability and warrants a lesser emphasis on general deterrence in the sentencing process. 4. The offender clearly does not meet all of the criteria of the guideline judgment. 5. I have regard to what the High Court said in Veen v R No. 2 (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted." 1. It is clear that this offender falls within the latter category of offenders referred to above. It was conceded by his Counsel that his prior criminal history would disentitle him to leniency from the court. 2. In R v Stanley [2003] NSWCCA 233 at [14], the Court of Criminal Appeal noted that the matters referred to in R v Henry apply "mutatis mutandis" to the offence of robbery in company. It was submitted on his behalf, and the court accepts, that a significant characteristic is absent here, namely, the possession and/or use of a weapon capable of inflicting death or serious injury. Further, the guideline in R v Henry assumed a vulnerable victim and a late plea. Those three matters justified departure from the starting position identified in Henry of 4 - 5 years. 3. I accept those submissions, together with the submission that the offender is entitled to a finding of special circumstances pursuant to s 44(2) of the Sentencing Act. He has laboured for many years with drug addiction, underlying mental health issues and the danger of becoming irrevocably institutionalised. He will, therefore, require a longer period on parole to be under the supervision of Community Corrections. The Crown did not submit otherwise. 4. I have had regard to the principles of totality, proportionality and parity set out in Pearce v R (1998) 194 CLR 610 at [45]. Having regard to all of the circumstances here, and the guideline judgment, no sentence other than imprisonment is appropriate in this case. However, having found special circumstances, I am of the view that a long period of supervised rehabilitation is appropriate to provide the offender with an opportunity to take up a meaningful and productive life in the community. He is at the crossroads, and a longer sentence than what is proposed may crush his incentive to achieve that goal. I therefore intend to set a non-parole period of 2 years imprisonment and a total term of 3 years. 5. In terms of the commencement date, I note that the offender was sentenced to terms commencing on 25 January 2015 for the five offences referred to above, for which he is presently serving custodial sentences. Those offences involve some accumulation. He had, at the time of the sentence hearing, spent 10 months and 26 days in custody following his arrest on 25 January 2015. It is a matter of discretion when the sentence is to commence, but having regard to the principle of totality, the sentence is to commence on 25 July 2015. Orders 1. I therefore make the following orders: 1. You are convicted of the offence of robbery in company pursuant to s 97(1) of the Crimes Act 1900. 2. I sentence you to a non-parole period of 2 years, to commence on 25 July 2015 and to terminate on 24 July 2017. 3. I sentence you to a further term of 12 months, commencing on 25 July 2017 and terminating on 24 July 2018. The total term of imprisonment is 3 years. 4. You will be entitled to release on parole on 24 July 2017. 5. The first matters referred to the s 166 Certificate (Sequence 2) is to be referred back to the Local Court to be withdrawn. Sequences 2, 3, 4 and 5 have been withdrawn. ********** 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: 09 December 2015