R v Rosenberg [2017] NSWDC 194

District Court New South Wales

Medium Neutral Citation: R v Rosenberg [2017] NSWDC 194 Hearing dates: 2nd June 2017 Date of orders: 02 June 2017 Decision date: 02 June 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the breach of s 9 bond, the offender is convicted with no further action under s10(A) Crimes (Sentencing Procedure) Act For the offence of robbery in company the offender is sentenced to imprisonment consisting of a non-parole period of 18 months and a head sentence of 3 years. To be released at the conclusion of the non-parole period Catchwords: CRIMINAL LAW – Sentence- Robbery in company – Bag snatching – Subject to an ICO at time of offending Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown Jamie Rosenberg Representation: Counsel: Mr A Isaacs – The offender

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2016/96209; 2015/179174

SENTENCE 1. HIS HONOUR: In sentencing an offender it is important to bear in mind the actual criminal culpability that the offender displayed in his or her offence. Where two offenders commit an offence together, in some circumstances each offender is criminally responsible for the actions of the other. But that is not so in the present case. Mr Rosenberg, the Crown accepts, did not anticipate that his co-offender would commit the offence I am about to describe in the way he committed it. 2. The offender has a step-brother by the name of Thomas Thompson. Mr Thompson and the offender went to a shopping centre. Mr Thompson had previously stolen a car which he drove to the shopping centre. In the shopping centre are some banks, in particular an NAB bank and an ANZ bank. Two people a Mr Chau Huang and Ms Sek Sor who were employees of an Asian food import export company had some business at the banks. That business involved a reasonable sum of money together with a number of cheques. Fortunately they completed their business at the banks before the events I will now describe. 3. As they were walking back to their car Mr Thompson approached Huang and struck him to the head with a walking stick knocking him to the ground. Whilst he was on the ground Thompson struck Mr Huang a further three times. This offender Mr Rosenberg was standing nearby. Mr Thompson stole the banking bag from Mr Huang and then Mr Thompson and this offender Mr Rosenberg ran way. 4. The statement of facts tendered by the Crown indicates that the Crown accepts the plea of guilty from Mr Rosenberg on the basis that he was not part of a joint criminal enterprise to cause the wounding occasioned on Mr Huang by Thompson. That much is clear already from the charge which the Crown brought against the offender a charge of robbery in company, not armed robbery and more relevantly perhaps not a charge involving any act of violence. 5. Because Mr Huang had completed his banking there was nothing terribly valuable in the bag stolen from him by Mr Thompson, just a newspaper. But of course that does not mean that the harm caused by this offence was minimal. He suffered a wound to his forehead requiring seven stitches at hospital, although I emphasise the offender Mr Rosenberg was not criminally responsible for that injury. 6. The offender pleaded guilty at the earliest opportunity to the offence of robbery in company and so the sentence I impose upon him will be 25% less than it would otherwise have been. He has been in custody for some time. At the time of this offence he was subject to s 9 bond and an ICO. The ICO was revoked with the result that the offender went into custody on the date of his arrest 30 March 2016. His time in custody referrable to this offence dates from 2 September 2016 the day on which Mr Isaac says I should commence the sentence I will shortly announce. It is important that I do not double count given that I have not partially accumulated the sentence I will announce on the time that Mr Rosenberg spent in custody having breached his ICO. I state therefore quite clearly that there has been no increase in the sentence I will impose to reflect the otherwise aggravating circumstances of the offender being on conditional liberty. 7. Mr Rosenberg's upbringing was far from ideal and attended with tragedy. Domestic violence was a feature of Mr Rosenberg's childhood. His father would assault his mother as well as Mr Rosenberg himself. His parents separated when he was six years of age living with his mother who had to work in two jobs to support the family. Mr Rosenberg's older brother suffered from spinal muscular atrophy and died at the age of 20 in 1999. It was this tragic event that appears to have caused Mr Rosenberg to commence a significant use of drugs, a problem which has stayed with him over his adult life and which has led to him committing a number of criminal offences. A psychological report tendered on behalf of Mr Rosenberg sets out his emotional and psychological state and suggests that the effects of the death of Mr Rosenberg's brother, someone who he clearly cared for, and did a lot for have remained with Mr Rosenberg to this day. 8. I mentioned the offender's criminal history. He has many driving offences, offences related to his use of drugs and a number of assaults, but no offences as serious as this appear on his criminal history. 9. It is important to ensure, as I began these remarks on sentence, that I differentiate the roles between Mr Rosenberg and Mr Thompson in order that I do not unwittingly punish Mr Rosenberg for something for which he is not criminally responsible. The offender was not expecting any violence and did not contemplate its possibility. I repeat, if he had contemplated it was possible, then the Crown would have preferred a different charge. What Mr Rosenberg expected was that the bag would be snatched from the hands of Mr Huang without any other violence. I do not wish to underestimate the seriousness of a bag snatching offence, indeed such offences are significant breaches of the criminal law. But a bag snatch is not as serious a criminal offence as an armed robbery with violence. 10. The offender has been in custody for some time now. He finds that difficult for a number of reasons. He is concerned that his grandmother now 86 years of age and a woman for whom he has great affection may die whilst he is in custody. He has been assaulted and is indeed currently serving his sentence on protection. I take into account the risk that he will serve the entirety of his sentence on protection and the risk that that will involve harsher conditions of custody in formulating the appropriate sentence to impose upon the offender. 11. The offender expressed his remorse to the psychologist, displaying what the psychologist described as empathy for the victim of his offence. The Crown made the fair point that Mr Rosenberg himself did not give evidence and I should exercise caution before I accept untested expressions of remorse. Consistent with the offender's role in the offence I will accept that he is remorseful for his participating in it. 12. I cannot say there are good prospects of rehabilitation, although there are a number of matters that bode well for the future. He has an offer of employment, although unfortunately that offer is such that there will be more opportunities for Mr Rosenberg to work in the summer months than the winter months because of the nature of the work that Mr Rosenberg would do and the sentence I will impose will see Mr Rosenberg released in Autumn. Other matters suggestive of Mr Rosenberg's prospects of rehabilitation concern the fact that he has not committed any offence whilst in custody and in particular in contrast to earlier times he was in gaol there is no suggestion that he has been using drugs whilst in custody. Also pointing in the direction of the offender being able to rehabilitate himself is his age, although it has to be borne in mind that the offender was on an ICO which involved the offender being supervised by the Probation and Parole Service at the time he committed this offence which is the most important factor in me being unable to make a finding that Mr Rosenberg's prospects of rehabilitation are good. 13. For obvious reasons by Madam Crown and Mr Isaacs referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R, although Henry was of course a guideline judgment concerning armed robbery it, perhaps to the surprise of some involved in the original Henry guideline judgment, has for many years being treated as appropriate to an offence of robbery in company. Mr Rosenberg is not a young offender with little or no criminal history. Although there was a weapon used he was not aware of the possibility that it would be used and in any case it was less serious a weapon than a knife. 14. There must have been some planning involved but whether Mr Huang was targeted because of some prior knowledge of his business involving cash deposits to a bank I simply do not know. It does appear however that there was likely to have been a limited degree of planning. Of course actual violence was used but I repeat yet again the offender is not criminally responsible for it. Whether Mr Huang was in a vulnerable position is difficult to determine. He was a shopkeeper it would seem but not in his shop at the time of the offence. There was a small amount taken, as I have said a bag and a newspaper and the offender's plea of guilty was entered early rather than a plea of limited utility postulated in the Henry guideline judgment. 15. The offender has also asked that I sentence him for a breach of a bond imposed for possessing a prohibited drug and that was a s 9 bond. He admits his breach. 16. There are clearly special circumstances in this case. They result from the accumulation about which I have already spoken and the need for some careful psychological care to be given to Mr Rosenberg upon his release from custody to deal with the issues that the psychologist refers to in his report. I impose sentence as follows. 17. For the breach of bond matter the offender is convicted with no other penalty under s 10A of the Crimes (Sentencing Procedure) Act. For the offence of robbery in company I impose the following sentence of imprisonment. A non-parole period of 18 months to date from 2 September 2016 and a head sentence of three years. The non-parole period will expire on 1 March 2018. 18. Now Mr Isaacs and Madam Crown there has been some movement in the Court of Criminal Appeal as to whether I should order Mr Rosenberg's release or merely note that that is the earliest day on which he is to be released to parole. The sentence I have just imposed is three years but it is accumulative on a sentence which takes the overall sentence of imprisonment over three years. My understanding is that I would nevertheless order Mr Rosenberg be released to custody. Do you agree with that Madam Crown and Mr Isaacs? 19. ISAACS: That would be my understanding. 20. MORAN: That's my understanding. 21. HIS HONOUR: Right thank you. There may well be some legislative change to clarify things but until then I will order that Mr Rosenberg is to be released from custody on 1 March 2018. Any other order required Madam Crown or Mr Isaacs? 22. MORAN: No your Honour. 23. HIS HONOUR: Thank you both for your assistance.