R v Balawagaga [2019] NSWDC 91

District Court New South Wales

Medium Neutral Citation: R v Balawagaga [2019] NSWDC 91 Hearing dates: 5 March 2019 Decision date: 05 March 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for the 2 principal offences of 6 years, totally concurrent, with a non parole period of 3 years. Catchwords: CRIME: SENTENCE: robbery armed with offensive weapon; take or detain with intent to obtain an advantage Legislation Cited: Crimes Act 1900 (NSW) ss97(1) and 86(1)(b). Category: Sentence Parties: Regina (Crown)

Kylie Balawagaga (Offender) Representation: Ms Owen (Crown)

Ms Tawagi (Solicitor) File Number(s): 2018/57134 Publication restriction: Non publication order made of the name of the victim or anything that might directly or indirectly identify her.

Judgment​ ​ 1. Kylie Balawagaga, you appear for sentence today in relation to two principal offences. 2. First, for the offence of robbery armed with an offensive weapon. 3. This involves a contravention of s 97(1) of the Crimes Act. 4. The maximum penalty for that offence is 20 years in prison. There is no standard non‑parole period. Although there is no standard non-parole period, there is a guideline judgment of The Queen v Henry. 5. Secondly, for the offence of take or detain with intent to obtain an advantage. 6. This involves a contravention of s 86(1)(b) of the Crimes Act. 7. The maximum penalty for that offence is 14 years in prison and there is again no standard non‑parole period. 8. In addition to those two principal offences, you have also asked me to call up a s 9 bond which was imposed upon you in the Local Court at Parramatta on 20 December 2017. That s 9 bond was for the offence of assaulting an officer in execution of duty. The maximum penalty for that offence in the Local Court is two years in prison. I have agreed to call up that bond. 9. The facts surrounding the two principal offences are contained in a document called Agreed Facts and are not in dispute. Slightly recast by me as to style but not substance those facts are as follows. 10. On 20 February 2018 you were 20 years old. You had a long criminal history - to which I shall return - and a long history of mental health issues and illicit substance abuse issues. 11. And on that date you were on the s 9 bond that I have already referred to - and you were on parole in connection with a sentence which King SC DCJ imposed on you in 2017 - that was for the offence of robbery armed with an offensive weapon. 12. It would seem that on that afternoon of 20 February 2018 you had had some form of disagreement or conflict with some mental health providers. It would also seem that you had been using ice for some days and you were not in a good place. 13. At 3.50pm, the victim (who was 16 years old) was standing outside the Bass Hill Police Station. She was in school uniform, with a backpack, standing on the footpath, waiting for her mother. 14. It was at this time that you emerged on the scene, having had that confrontation with the mental health providers and you walked straight up to the victim. 15. Disturbingly, you had in your possession a knife. It was about 20 centimetres long and the length of the blade was 10 centimetres. 16. Whilst armed with this weapon - and I pause to note that there is nothing in the material to explain why you were walking around Chester Hill at 3.50pm carrying a knife - you went straight up to the victim in a very determined way that the CCTV footage has shown me. 17. When the victim saw you coming towards her armed with that knife, she started to back away from you and she was afraid. You placed your left arm around her neck and your right hand (which was holding the knife) was placed to the side of the victim's head. The victim fell to the ground. You took her mobile phone from her and when she stood up you came back to her and you placed your right arm around her neck and you placed that knife to her throat and she could see it. 18. Whilst you had that knife to her neck, you told the victim to walk to the police station and that is what happened. It was all captured on the CCTV. 19. You both went into the police station and an officer (who had been watching all of this on the CCTV) came out. 20. Before you got to the police station, you asked the victim an odd question: "Do you want me to go to gaol?" When the victim said "No" you said: "Because I do." 21. In any event, the two of you got into the police station. The victim was distressed and in tears and you were still holding the knife less than a centimetre from her neck. 22. The police officer came to the counter and you threatened to kill the victim. The police officer told you to drop the knife and you repeated your threat that you were going to kill the victim. 23. After you spoke to the officer for a short time, you put the knife down on the counter. The officer quickly pushed the knife away from him and into the office and you were swiftly taken into custody. 24. The victim, quite naturally, was terrified for her life and the victim impact statement (although it is only brief) shows the depth of the damage you have done to her and it is likely to be permanent. I do not need an expert's report to know that; it is a matter of common sense that that will likely haunt that girl for the rest of her life. 25. A court is required to make an assessment of the objective seriousness of offences for offences of their kind and, in relation to the robbery armed with an offensive weapon offence, it is a mid-range offence and for take or detain with intent to obtain an advantage offence, it is above the mid-range. 26. Each of the offences is aggravated by the fact that you were on a s 9 bond and, more importantly, on parole for the offence of armed robbery - in which you used a knife. The take and detain offence is aggravated further by the use of a weapon. (That is not an aggravating factor of the robbery because that is an ingredient of that offence.). 27. Your subjective circumstances, that is things about you personally, your background, have been given to me through three experts' reports: Dr Elliott, a psychiatrist from the Justice Health; Dr Ashkar, a neuropsychologist; and Dr Furst, another psychiatrist. 28. Each of them has told me about your family background. You told them that you had trouble with your parents. You told them that your father physically abused you: not sexually, but physically. None of the experts actually spoke to your parents and it would seem that no-one has examined whether or not what you said was true. (I pause to observe that in few cases is that background check ever done by anybody.). But because it has not been checked and challenged, I shall accept what you said was true. I shall also accept that, at the age of 15, in the face of the hostility of your father to your sexuality, you left home. 29. From the time you left home, you have excessively used alcohol, cannabis and ice on a daily basis. 30. You have a lengthy history of mental health issues. For a long time, it was thought you were schizophrenic; that diagnosis now seems to be wrong. Dr Elliott, Dr Ashkar and Dr Furst all agree that you are not schizophrenic - and you have never been schizophrenic - and that the treatment you have received from the mental health providers over the last five years or so has been wrong. 31. But the diagnosis they have come to, borderline personality disorder, is even more disturbing. It would seem from each of those reports that treatment for borderline personality disorder is far more difficult than for schizophrenia which can be treated by appropriate medication. 32. I accept that your long-term use of drugs has been your attempt to self-medicate in circumstances where you have not been properly diagnosed or treated by professionals. 33. You have a disturbing criminal history of violence for one so young. 34. You left school at a young age. 35. You were difficult at school; you were suspended and expelled. You have no training of any kind for any form of work. In fact, apart from a short period of time in a supermarket, you have never worked. 36. Your support in the community is non‑existent. Your parents have nothing to do with you; neither do your siblings. You have no close friends, other than criminal associates. 37. However, you have had two intimate personal relationships. 38. One was with a girl before you went into custody. That itself was problematic: she had children, but you both were drinking heavily whilst you both were supposed to responsible for those children. You have now formed a relationship whilst in custody. I do not know anything about the young lady concerned. But apart from her, there seems to me to be no-one who can support you. 39. This is a very sad story. 40. You have given me some letters to say that you express remorse. It would not have made any difference if you said that in the witness box because I do not really think, as a result of your mental health conditions, that you truly understand what you have done. An experienced neuropsychologist who prepared a report in your own case tells me that you have limited empathy for your victim and that your expression of remorse was lacking. But I do regard your lack of empathy and lack of remorse as part of your borderline personality disorder. 41. Because of your mental health issues, you are not an appropriate vehicle for what sentencing judges call specific and general deterrence - that means imposing a sentence which will deter you and others from offending. But, on the other hand, precisely because of those mental health issues, the protection of the community from you is of increased significance. 42. Your prospects of rehabilitation seem to me (on the material available to me today) to be poor - and that is because there is little material available to me about the availability, either in custody or in the community, of the specialised and intensive programmes that Dr Furst has spoken about. Unless the State makes such programmes available, you will continue to be a threat to the community because, at 22 years of age, you have committed two very serious offences involving knives and you are not mentally well. So, unless the State makes the appropriate resources available, you will not have a very happy – and, I suspect, not a very long - life. 43. For each of the principal offences, the s 5 threshold has been crossed and what that means is that no sentence other than one of full-time custody is appropriate. 44. Insofar as the assault police matter is concerned the facts surrounding that are contained in exhibit C. The s 5 threshold is also crossed in relation to that matter. 45. The three sentences which I shall shortly impose upon you will be backdated to commence on 15 February 2019, which was when your parole expired in relation to your previous armed robbery. 46. Because I am starting your sentence from that date, because of your age, and because your prospects of rehabilitation would be enhanced by a longer period on parole, I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. 47. Both your advocate and the advocate for the Crown have submitted that there could be some partial accumulation (or overlap) of the two principal offences but the sentences I shall impose will be totally concurrent. Furthermore, the matter of assault police will also be totally concurrent. 48. In relation to that matter of assault police, I sentence you to a fixed term of imprisonment of one month which commenced on 15 February 2019 and which will expire on 14 March 2019. 49. In relation to the 2 principal offences, except for your plea of guilty, I would have sentenced you in each case to a term of imprisonment of eight years. You pleaded guilty at an early stage and in each case, there is a discount of 25%. Therefore, the sentence in each case is six years imprisonment, to date from 15 February 2019. Because I have made a finding of special circumstances, the non-parole period will be three years in prison. You will be eligible for parole on 14 February 2022. I fix a balance of three years. Whether you are admitted to parole will be a matter entirely for the Parole Authority and not for the Court. 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: 04 April 2019