District Court New South Wales Medium Neutral Citation: R v Minkley [2019] NSWDC 422 Hearing dates: 26 July 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Criminal Before: Weber SC DCJ Decision: (1) The offender is convicted of each count set forth in the indictment. (2) The offender is sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months. (3) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such term of imprisonment shall commence on 19 November 2018 and that the non-parole period shall expire on 18 May 2022 with the balance of the sentence to expire on 18 July 2023. (4) Pursuant to the provisions of section 18B of the Drug Court Act 1998 (NSW), the offender is referred to the Drug Court. Catchwords: CRIME - Armed robbery - offensive weapon - where offender armed with machete - where offender robbed hairdresser and pharmacy - where small amount of money taken SENTENCING -Relevant factors on sentence - Objective seriousness - considerable similarity to guideline judgment in R v Henry - offences in the low/mid and mid-range - Aggravating factors - breach of conditional liberty - planned or organised criminal activity - record of previous convictions including crimes of violence - medium/high risk of re-offending - Other matters - offences motivated by drug addiction - remorse shown - early guilty plea - no injury to persons - form 1 matters SENTENCING - Multiple offences - Aggregate sentences - Imprisonment - referral to Drug Court Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Drug Court Act 1998 (NSW) Drug Court Regulation 2015 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Chung v R [2017] NSWCCA 48 Johan v R [2015] NSWCCA 58 Markarian v The Queen (2005) 228 CLR 357 R v Henry (1999) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) Nathan Minkley (Offender) Representation: Counsel: Mr B. Green (Offender) Solicitors: Mr E. Navea (ODPP) Mr P. Cox (Offender) File Number(s): 2018/00355838 Judgment 1. The offender comes before the Court having pleaded guilty to 2 counts of robbery, armed with an offensive weapon, contrary to the provisions of s 97(1) of the Crimes Act 1900 (NSW) ("Crimes Act"). 2. The maximum penalty for these offences is 20 years' imprisonment. There is no applicable standard non-parole period. Form 1 Offences 1. The offender has also asked the Court to take into account his guilty pleas in respect of: 1. 3 further offences of larceny, contrary to s 117 of the Crimes Act; and 2. 1 count of being armed with intent to commit an indictable offence, contrary to the provisions of s 114(1)(a) of the Crimes Act. 1. I have taken the form one matters into account in relation to the sequence 5 offence in accordance with the principles set forth in the Attorney General's Application under section 37 of the Sentencing Act (2002) 56 NSWLR 146. In so doing, I have increased the sentence which I would otherwise have imposed for the sequence 5 offence to reflect the community's entitlement to retribution and denunciation of the offender's behaviour. Agreed Facts 1. The matter proceeded by way of agreed facts. As they are not voluminous, I will set them out below. Sequence 3 Offence (the "Hairdresser Offence") 1. Head Candy Hair and Beauty Salon is located at 519 Pacific Highway, Mt Colah. The salon fronts on to the Pacific Highway and the windows allow viewing onto both Lady Street and the Pacific Highway. Entry is gained to the salon through two automatic sliding doors. 2. At approximately 2pm on 17 November 2018, the victim Lena-Marie Ferris was standing at the front counter of the hair salon. Ms Ferris saw the offender walk past the front of the shop from left to right and enter Lady Street. A minute later, Ms Ferris saw the male appear on the right hand side of the front doors and enter the shop through the automatic sliding doors. Ms Ferris described the offender as being about 170cm tall with a thin build wearing a black balaclava and a black grey mottled hoodie pulled up over his head. 3. The offender approached Ms Ferris and placed an open backpack on the front desk. The offender said in a quiet voice "money in the bag". The offender was fiddling with the handle of a knife which was placed in the top of his trousers on the left side near his hip area. Ms Ferris opened the cash register and took out all the notes and placed them into the open section of the backpack. Ms Ferris estimates that the total value of the notes was $200. 4. The offender did not say anything else and turned around and walked out of the shop holding the backpack before turning right towards Lady Street. Ms Ferris turned to the other people in the salon and one of the hairdressers, Tina Hemsworth, said in a panicked voice "call the police". Ms Ferris contacted triple 0 and was on the phone for about 10 minutes before the police arrived. 5. The offender walked down Lady Street and took off his mask before getting into his vehicle and driving out of sight. One of the hairdressers (Ms Betts) walked out of the salon front doors and turned right in the same direction the offender walked in. Ms Betts saw a silver Ute with a silver tool box on the back tray pull out onto Lady Street from a parked position with a registration plate beginning in "DTX". Ms Betts took photographs of the Ute on her mobile phone. Sequence 5 Offence (the "Pharmacy Offence") 1. At 3.42pm, CCTV footage captured the offender driving his Ford Ranger Dual Cab utility into the carpark of the Supersaver Chemist on the corner of Wattle Street and the Pacific Highway in Asquith. The vehicle was bearing NSW registration plates BJT72Y. 2. The offender reversed the Ute into a disabled car space and left the engine running whilst he exited the vehicle. The offender was wearing dark pants, a fluorescent yellow and blue high-vis jumper, dirty red and white shoes and a full faced black balaclava. The offender walked into the chemist holding a 40-50cm long machete in his right hand. The offender was also wearing black gloves at the time. 3. The victim, Mr William Coyne, was working behind the cash registers near the front of the store next to the front entrance doors. At about 3.40pm, Mr Coyne was serving an elderly female when the offender came to the counter and nudged the female out of the way. 4. Mr Coyne described the offender as being an unshaven Caucasian male, 5"10 in height, medium build, wearing a hi-vis jumper and dark track pants. The offender was also wearing a black balaclava which was not covering his full face. The balaclava was raised above the offender's mouth allowing him to speak easily. The offender was holding a large machete in his right hand. The metal of the knife was a rusty black colour and the blade edge was clean, as if it had been recently sharpened. 5. The offender tapped the machete on the counter and said "open the tills". Mr Coyne replied "I can't, I don't have authority to do that". The offender said "Bullshit, open the tills". Mr Coyne opened the tills and took out $500 worth of notes. Mr Coyne handed the notes to the offender who placed them in a blue plastic tray on the chemist bench. The offender grabbed the plastic tray and exited the store. 6. After the offender left, the victim immediately called triple 0 from a landline phone in the chemist. 7. At about 5.15pm on 17 November 2018, a resident in Hornsby located registration plates BJT72Y and a blue plastic chemist tray in the gutter out the front of his house. These items were later provided to Hornsby Police Station. Form 1 offences 1. The larceny offences the subject of the form one matters, involved in each case the theft of registration plates. The form one matters numbered 1 and 4 occurred on the day of the principal offences, namely 17 November 2018, and the third larceny matter (sequence 6) occurred on 19 November 2018. 2. The final form one offence (sequence 2) was committed on the day of the principal offences. At 1.55pm, the offender approached Liquorland Express Mount Colah carrying a backpack in which was contained a machete which he used in relation to the principal offences. The offender pulled down the black balaclava over his face as he approached the store, but when he noticed two males near the front counter, he stopped and briefly looked at the two males, before walking away. Arrest 1. The offender was apprehended by police on 19 November 2018, and initially denied committing any of the offences charged. 2. On 23 November 2018, the offender's mother contacted police, and ultimately via the process that she commenced, the offender was charged with the matters before the Court for which he ultimately pleaded guilty. Objective Seriousness of the Offences 1. The Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346, provided sentencing guidelines for the offence of armed robbery. In that case, the Court determined that there was a category of such offence which was sufficiently common for the purposes of determining a guideline. 2. At paragraph 162, the Court set forth the following factors common to that category: 1. Young offender with no or little criminal history. 2. Weapon like a knife, capable of killing or inflicting serious injury. 3. Limited degree of planning. 4. Limited, if any, actual violence but a real threat thereof. 5. Victim in a vulnerable position such as a shopkeeper or taxi driver. 6. Small amount taken. 7. Plea of guilty, the significance of which is limited by a strong Crown case. 1. The Court held that for offences of the character identified above, the sentence should generally fall within a range of 4-5 years for the full term. Understandably, the Court went on to indicate, that aggravating and mitigating factors would justify a sentence of above or below the range. 2. The Court indicated that a number of circumstances are of particular relevance in assessing the objective seriousness of the offence of armed robbery. These include: 1. The nature of the weapon. 2. The vulnerability of the victim. 3. The position on a scale of impulsiveness/planning. 4. The intensity of threat, or actual use, of force. 5. The number of offenders. 6. The amount taken. 7. The effect on victim(s). 1. The circumstances of the offences for which the offender is before the Court, are almost perfectly in alignment with the factors of offending the subject of the R v Henry guidelines referred to in paragraph 23 above. 2. R v Henry is also important in the present context insofar as it establishes that the commission of the armed robbery to support a drug addiction does not afford an excuse, nor is it a mitigating factor (see also: Johan v R [2015] NSWCCA 58). Objective seriousness of the Hairdresser Offence 1. The parties were ultimately in agreement that this offence was in the low to mid-range of objective seriousness. I agree with this assessment. The Crown submitted that in assessing the objective seriousness of the offending, the following were relevant: 1. That the maximum penalty of the principal charge is 20 years. 2. That the weapon was a machete knife with a lengthy blade capable of serious injury. 3. That while only the handle was displayed to the victim, this did not render the weapon an empty threat. The victim could only expect the weapon to be used if she did not comply with the offender's demands. Thus, she may have experienced the same level of fear and anxiety as she would have if the offender had displayed the entire weapon to her. 4. That a finding that the offence was planned is appropriate, given: 1. The offender taped up the handle of the machete. 2. The offender used a face covering. 3. The offender used stolen registration plates. 4. The offender conducted surveillance just prior to the offence by walking past the front of the shop. 1. That while the total value was $200, and thus a small amount, it represented the victim's takings for the day. 2. That the offence occurred on commercial premises. The victim was the shopkeeper. 3. That there was no injury to persons. 4. That the offender's presence on the premises, which was for a short duration, is of no assistance to him: Chung v R [2017] NSWCCA 48 at [77]. 1. I accept these submissions. 2. I am of course not bound by any common view between the parties as to the objective seriousness of the offence, but should say that I am in agreement with their assessment of the objective seriousness for the reasons outlined above, and so find. Objective seriousness of the Pharmacy Offence 1. The Crown contended that the following were relevant in the assessment of the objective seriousness of this offence: 1. That the maximum penalty of the principal charge is 20 years. 2. That the weapon was a machete knife with a length blade capable of serious injury. 3. That the weapon was displayed to the victim and a female customer of the chemist. 4. That the weapon was pointed at the victim at a short distance from the victim and customer. The weapon was tapped on the counter. As a consequence, the threat of violent force was much greater than in the Hairdresser Offence. 5. That there was a higher value of money taken: $500. 6. A finding that the offence was planned is appropriate, given: 1. The offender taped up the handle of the machete. 2. The offender used a face covering. 3. The offender used stolen registration plates. 4. The offender parked his getaway vehicle in a position allowing for fast departure from the scene. 1. That the offence occurred on commercial premises. The victim was the shopkeeper. 2. That there was no injury to persons. 3. That the offender was on the premises for a short duration is of no assistance to him. 1. The Crown submitted that the objective seriousness of this offence was considerably higher than that of the Hairdresser Offence. It contended that I should find that this offence was well within the mid-range. The offender accepted that the objective seriousness of this offence was greater than the Hairdresser Offence. 2. The Crown also submitted that the following factors, common to both offences, are relevant to any assessment of objective seriousness: 1. The offences were part of a course of conduct that occurred within a short space of time within the same day. There is a 1 hour and 42 minute gap between the two offences. 2. The offender's criminal behaviour escalates, and he can be seen to become more aggressive between the Hairdresser and Pharmacy offences. 3. The offences occurred while the offender was on conditional liberty. At the time of the offences, the offender was subject to 5 lengthy s 9 good behaviour bonds. The offences are therefore aggravated pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). I shall return to this factor later in these Reasons. 1. I agree with the submissions of the Crown, and find that the offence is at the mid-range of objective seriousness. The Offender's Criminal History 1. The offender does not have any prior convictions for robbery, nor for larceny offences. He does, however, have a criminal history of which includes crimes of violence, and drug and alcohol related traffic offences. These are all relevant factors. 2. As I have indicated, also relevant is the fact that the offences for which the offender comes before the Court, were committed in contravention of good behaviour bonds. On 4 September 2017, the accused was convicted of mid-range PCA, his second such offence. He was inter alia placed on a bond to be of good behaviour for 18 months. On 24 January 2018, he was convicted of two assaults occasioning actual bodily harm. The victims of these assaults were his parents. The assaults were of a serious nature. These offences occurred on 23 September 2017, a mere 19 days after he was placed on the earlier bond. On 24 January 2018, the offender was also found guilty of destroying property and assaulting a police officer in the execution of his duties. For the offences which he was convicted for on 24 January 2018, the offender was placed on a further good behaviour bond pursuant to s 9 of the Sentencing Act for 18 months. 3. I should note that contrary to the Crown's submission, I have not taken into account the fact that the offences were committed while on conditional liberty as being an aggravating factor. I have formed the view that to do so would involve an element of double counting, as I shall be dealing with the offender's breach of his various bonds as part of the sentence which I shall later impose. 4. The Crown contended that the offender is disentitled to leniency on the basis of his criminal record. I agree with this submission. 5. The offender gave evidence both from the witness box, and via a letter to the Court (the contents of which he verified while on oath). In his evidence, the offender expressed his considerable remorse for his offending, and especially for the impact of his offending on the victims of the offences who had the misfortune to be going about their business as retail employees when the offender saw fit to rob the premises at which they were employed. 6. The Crown accepted that the offender has shown remorse, and that he has demonstrated some insight into his offending. 7. The offender attributes his descent into his ever-increasing seriousness of offending, as being the result of his development of an addiction to methylamphetamine and heroin, and to his abuse of benzodiazepines and cannabis. He says that the armed robbery offences were committed in order to fund his drug habit, which, prior to losing his employment, was consuming virtually all of his wages. 8. The offender has engaged in addiction support programs while in custody and expressed his willingness to continue to engage in any programs which would assist him in overcoming his addiction problems. It should also be noted however, that the offender admits that while in custody, he has used buprenorphine and has been twice the subject of institutional misconduct charges for the possession of drug implements. 9. A sentencing assessment report was prepared in relation to the offender which confirmed his willingness to engage in counselling and intervention in relation to his drug and alcohol use. It noted, however, a medium to high risk of reoffending. 10. The offender's risk of reoffending and his prospects of rehabilitation seem to me to be entirely reliant on his capacity to overcome his drug and alcohol abuse issues. These appear to be the root cause of the offender's descent into ever-increasing criminality, and unless and until they are addressed, it seems that his prospects of rehabilitation are not good, and his risk of reoffending is thus high. 11. As I have indicated, the offender has expressed his willingness to undergo programs designed to assist him in that regard. I accept the genuineness of these expressions of willingness. 12. Initially, the offender, reliant on the sentencing assessment report, submitted that his case was an appropriate one for an intensive corrections order ("ICO"). I do not believe that this is the case, particularly as the report suggested his risk of reoffending was in the medium to high range. 13. Given the paramountcy of public safety in relation to the possible imposition of an ICO, it seemed to me that such an order was inappropriate. It would also, in my view, be quite inconsistent with the guidelines set forth in R v Henry. At the end of the day, the offender, through his counsel, accepted that this was the case. Gaol – The Only Alternative 1. It thus became common ground between the parties that there was no alternative other than to impose on the offender a full-time custodial sentence. I accept that that is the case, and so find pursuant to s 5 of the Sentencing Act. I should also add that absent the agreement of the parties, I would have unhesitatingly come to the same conclusion. Early Guilty Plea 1. As I have previously indicated, the offender entered a guilty plea at an early occasion and as such is entitled to a 25% discount to reflect the utilitarian value of that plea. That is not disputed by the Crown. 2. As I intend to apply an aggregate sentence, I should record that this guilty plea has been taken into account in the indicative sentences to which I shall later come. The Offender's Circumstances 1. The offender was born on 31 July 1987. At the time of the offences, he was 31 years old. He is a qualified carpenter and before his descent into drug addiction, was employed in that occupation. He had also set out on technical college studies to obtain qualifications as a builder. He is only one assessment short of achieving that goal. Once he is released from custody, he intends to complete that course. 2. The offender retains the support of his parents and his sister, and on his release from custody, he intends to live with his parents at their home at Berowra. 3. The offender explained that his problems with heroin, methylamphetamine and other drugs were preceded by a continuing inability to responsibly use alcohol. He explained that his two mid-range PCA offences were as a result of this inability. He said that alcohol abuse played a large part in his assaults of his parents. 4. As I have indicated earlier, on 4 September 2017, the offender was dealt with for mid-range PCA in the Local Court and placed on an 18 month bond. One of the conditions of the bond was to obey all directions for counselling, educational development or drug and alcohol rehabilitation. 5. Ironically, while attending an alcohol rehabilitation program in connection with his bond, he became associated with an unnamed woman, who the offender said introduced him to heroin and methylamphetamine. The offender indicated that his use of heroin and methylamphetamine became problematic in approximately mid-2018. He explained to the Court that his life spiralled out of control thereafter. It is clear from his admitted continued usage of drugs in gaol, that his problem with drug addiction remains unresolved. 6. The offender's counsel put to me that given the centrality of drug and alcohol addiction to the offender's offending, his prospects of rehabilitation, and his risks of reoffending, it would facilitate the offender's re-entry into society if he were to be referred to the Drug Court pursuant to the provisions of s 18B of the Drug Court Act 1998 (NSW) ("Drug Court Act"). 7. This Court is a prescribed court for the purposes of the Drug Court Regulation 2015 (NSW) ("Drug Court Regulation"). 8. In order for me to refer the offender to the Drug Court, I must find that he is an "eligible convicted offender" for the purposes of s 5A(1) of the Drug Court Act. In order for the offender to come within this definition, it is necessary for me to be satisfied that: 1. The offender has committed an offence. 2. The offender is sentenced to a term of imprisonment by way of full-time detention. 3. At the time that the sentence is imposed, the unexpired non-parole period is at least 18 months. 4. At the time the sentence is imposed, the unexpired total sentence is a period of not more than 6 years. 5. The offender has a long-term dependency on the use of prohibited drugs within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW). 6. The facts in connection with the offence, antecedents of the offender, and other information available, indicates that the offence was related to the person's long-term drug dependency and associated lifestyle. 7. The offender's usual place of residence is in a Local Government Area specified in the Drug Court Regulation (in this case, Berowra). 8. The offender is over 18 years old. 9. The offender is male. 1. I find that each of these factors is established, or will be established, by the sentence which I am about to impose. 2. As I have previously indicated, I intend to deal with this matter by way of an aggregate sentence. This is so, as in my view it best accommodates the requirements of accumulation, concurrence and totality. 3. Accordingly, I formally indicate that such a sentence is being imposed (s 53A(2)(a) of the Sentencing Act). 4. I am also required to indicate the sentences I would have been imposed for each offence, had separate sentences being imposed instead of an aggregate sentence (s 53A(2)(b) of the Sentencing Act). 5. In setting forth the following indicative sentences, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offences. Aggravating and mitigating factors to which I have referred are also taken into account in arriving at the indicative sentences, as well as the form one matters and bond breaches. I have applied the applicable discount in relation to guilty pleas on the Hairdresser and Pharmacy offences. 6. In arriving at these sentences and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357, at [51]. 7. The indicative sentences are as follows: Sequence 3: 3 years Sequence 5: 3 years, 9 months (Including Form 1 matters) Breach of Bonds: 6 months 1. I propose to impose an aggregate term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months. As the offender has been in custody since 19 November 2018, such term of imprisonment is to commence on 19 November 2018. 2. Nathan Minkley: 1. You are convicted of each count set forth in the indictment. 2. You are sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months. 3. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 19 November 2018 and that the non-parole period shall expire on 18 May 2022 with the balance of the sentence to expire on 18 July 2023. 4. Pursuant to the provisions of section 18B of the Drug Court Act 1998 (NSW), you are referred to the Drug 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: 15 August 2019