R v Saininaivalu [2019] NSWDC 569

District Court New South Wales

Medium Neutral Citation: R v Saininaivalu [2019] NSWDC 569 Hearing dates: 22 July 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Term of imprisonment for 4 years with a non-parole period of 2 years Catchwords: CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Category: Sentence Parties: Regina (Crown) Tuisamoa David Jay Saininaivalu (Offender) Representation: Emily Anderson-James (Crown) Geoff Harrison (counsel) (Offender)

Director of Public Prosecutions (NSW) (Crown) File Number(s): 2018/00270839

EX TEMPORE REVISED JUDGEMENT

SENTENCE 1. David Saininaivalu pleaded guilty in the Magistrates Court at Parramatta to a charge of robbery armed with an offensive weapon, contrary to s 97 (1) Crimes Act 1900, for which the maximum penalty specified is imprisonment for 20 years. There is no standard non-parole period specified for the purposes of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999. 2. Since his arrest for this offence on 4 September 2018 he has been sentenced for two other episodes of misconduct. One resulted in a sentence of imprisonment of nine months fixed term, commencing on 4 September 2018, expiring on 3 June 2019, and the other is for an offence of assault occasioning actual bodily harm. The first offence was a charge of common assault; the other offence was one of assault occasioning actual bodily harm, for which he was sentenced to a fixed term of imprisonment of 15 months, to commence on 4 September 2018. 3. The events that led to those sentences are entirely different to the facts and circumstances with which I am concerned and I agree with the Crown's submission that the sentence I impose today should start at the expiration of the sentence to which he is presently subject, from which it follows that he will start the sentence today on 4 December 2019, but Mr Harrison correctly points out that the sentence has to be structured in such a way as to reflect the totality of the misconduct upon which he engaged, so that the overall sentence to which he will be subject does not extend beyond what he should suffer for his crimes. 4. The Crown opposes a finding of special circumstances. I agree with Mr Harrison's submission, that there is a need for a finding of special circumstances in this case. First of all, the accumulation of this sentence on the earlier sentence requires an adjustment in the custodial component to make sure that the overall sentence does not include a parole period less than one-third of the overall custodial component, but in addition I have noted that the offender has spent a significant amount of time in custody as an adult already, apart from his Juvenile Justice custody. 5. He came into the adult system on 12 December 2016, where he remained for three days. He was bailed until 27 January 2017, a period of six weeks. He remained in custody until 22 February 2017 and then was paroled and remained at large until 30 March 2017, a period of about five weeks. On 5 April 2017 he was bailed and remained at large for three weeks until 28 April 2017. He was in custody until 25 August 2017, when he was paroled and bailed. He was at large for three months until 24 November 2017. He remained in custody until 2 May 2018, at which point he was paroled, and then he came into custody on 4 September 2018 after four months at liberty and he has been in custody ever since. 6. He is 20 years of age, his record is appalling, and the concern this Court has is that he has spent so much time within the criminal justice system, whether as a child or as an adult, that it might become his preferred way of life. I have had note of what the psychologist has had to say and the presentation the offender offered in the course of the assessment. It was an unusual attitude that he displayed to the psychologist, almost as if he had no real care about his predicament. What he needs, if I accept what the psychologist had to say, is close and careful supervision in the community against the risk that he will be returned to custody to serve what will be a substantial balance of parole. Should he fail to take the opportunity that I hope to present him with today, the consequence will be that he will be approaching 30 by the time he gets the opportunity to come back into the community. 7. He was born in 1998, as I said, and will this year turn 21. Because of his pre-sentence custody he has served no time in gaol for this misconduct. 8. The attitude that I gleaned from the psychologist's report is reflected in the way he went about this crime. This was at the Irish hotel down at the corner of Church Street and the Great Western Highway at Parramatta - P J Murphy's. He is a patron of that hotel and he walked in on the day of the crime, 17 August 2018, greeted staff, went into the men's bathroom and then came out wearing the same clothes, but with grey fabric covering the lower half of his face, and a pair of dark-coloured gloves. It would not have taken the world's greatest detective to identify him as the person who had just walked in and also the person who was a patron of the hotel. 9. He approached two staff members. He was asked to remove his mask by one of them. He walked toward the main bar, lifted his jacket and took out a knife with a 25 centimetre serrated silver blade and a black-brown handle. He held it in his right hand at waist level, pointed the knife toward the staff member's face and said, "Open the till." He was told that the staff member could not open the till. Another staff member opened the gaming till and began removing cash beginning with $50 notes, and ultimately $900 in cash was put on the bar counter. The offender asked a staff member to open the second till but she did not have access to do so. He went to the TAB till at the other end of the bar and opened it using the key that was already in the register lock. He took $900 from that till, banged his fist against another till and said, "This is easier than I thought." He asked a staff member to take him to the safe but she refused. 10. He took the cash from the top of the bar, and walked through the beer garden into the bistro. There was a male customer and his young child eating a meal. He attempted to access tills there from behind the bar, and then left the pub at 3.46pm using the same entrance he came through. He was captured on closed-circuit television apparently carrying a knife and he put something into the back of his pants as he left the premises. He returned at 3.48pm. He then left the pub through the kitchen entrance. 11. Police were called. They obtained the CCTV footage and they were told that he was a regular customer known to the staff as David. 12. About 9.30pm on 17 August 2018, the day of the robbery, he attended the Star City Casino and played poker machines there with the proceeds of his crime. He was captured on closed-circuit TV at those premises. Whether they captured him gambling or not is not clear. 13. On 21 August 2018 in the early morning the police executed a search warrant at his home. They recovered clothing matching the items he wore in the commission of this crime. They recovered the serrated-edged knife. Later on, on 21 August 2018, a staff member at the pub recognised that the offender was in the poker machine room. She called triple-0 and the police attended but it appears he and his companion left after they had been asked to leave because they had no identification on them. It appears the execution of the search warrant did not lead to his arrest on 21 August 2018 before he returned to the pub. 14. He was arrested on 3 September 2018. He was seen near to the same hotel. The police were aware that he was wanted and he was arrested. He was interviewed. He admitted that he committed the robbery; he did so with items of clothing he described; he made about "two grand"; he took the knife from the house - I take that to mean his home; he described the clothing he wore. He said he robbed the pub because he felt like he needed some money and he gambled all of it. He decided to target the pub for the purposes of the robbery because they never used to let him in when he was younger. 15. He is a native of Fiji. He was first in the Children's Court in this State in August 2014 charged with robbery in company and thereafter for various offences. He persistently engaged upon criminal misconduct, with the Children's Court exercising all options, no doubt with a view to facilitate his rehabilitation - clearly without success. For the robbery in company offence first appearing on his record he was given probation. He was called up in respect of that, given more probation, then called up again in respect of that and given more probation. His other offences include driving never having held a licence, stealing property in dwelling house, dishonestly obtaining a financial advantage by deception - multiple examples of that offence, shoplifting, goods in custody, custody of a knife in a public place, travelling without a ticket, stealing from the person. 16. In December 2016 he began appearing in adult courts when charged with shoplifting, custody of a knife in a public place, common assault, entering inclosed lands, dishonestly obtaining property by deception, larceny, entering a vehicle without consent of the owner. There are multiples of these offences across the history of misconduct. This most recent escapade is clearly an escalation in his criminal behaviour, and once again the Courts have employed all options with a view to rehabilitating, I would expect, and he is left with the unenviable record as I have summarised with his custodial history, which means that since December 2016, a period of about two and a half years, he has spent most of that time in gaol. 17. In custody his behaviour has been less than adequate. The first custodial offence as an adult was in August 2017 when he failed to comply with centre routine and he spent three days in his cell. In August 2017 he smoked or used tobacco or an electric cigarette. It must have been some conduct that was of a high order on the scale of seriousness because he suffered 14 days off amenities, 14 days off buy-ups, 14 days off contact visits, 14 days off phone calls and 14 days not keeping his personal property and 14 days without the use of library facilities. Then in April 2018 he failed to attend a muster and spent seven days in the cells as a consequence; in October 2018 for fighting he spent three days in his cell; November 2018 for failing to comply with routine he was off buy-ups for 14 days; in March 2019 for failing to comply with centre routine he was 28 days off his buy-ups; and then in July 2019 for possessing an offensive weapon there were 42 days off buy-ups and 42 days off phone calls. 18. A psychologist wrote a report on 19 June 2019. Ms Megan Godbee took a history from the offender. An aspect of it I am a little concerned about, which I shall summarise. I am conscious of the circumspection that is required when dealing with untested representations not the subject of evidence under oath or affirmation and I am concerned particularly with what he said of his father, which seems to be the essence of his complaint about his formative years. I should note that the psychologist in the last portion of the report, para 26, represents he suffered trauma throughout his childhood in the forms of witnessing domestic violence and being the victim of physical abuse. At first blush that paints a fairly bleak picture, but when one goes to what was actually attributed to him in the report in the section dealing with his background history, his representations are rather more vague. 19. He is the third of five children. The siblings have apparently made progress throughout their formative years and are contributing members of society. His mother provided care and nurturing throughout his formative years. He said that his parents remained married but they had ups and downs in their relationship. They argued regularly and he recalled witnessing his father being violent towards his mother. He described this as sad to see. It is not further described; there is no particularity, and nothing in the report upon which one could assess the extent to which that might be an accurate statement. He said there was one occasion when the police were involved but he is unsure of what the outcome was. Both parents were employed; the financial needs of the family were met. He said that his father "was a shit", rarely at home, held high expectations for the children but gave them little guidance and was physically abusive toward them. Again that is not further qualified or quantified; it is simply a general expression attributing to his father conduct that could extend across a range of behaviour. He said he was regularly hit and believed it was normal, but with hindsight he can see that it was abusive. There was some incident where his father threw a glass cup at him, causing him to be rendered unconscious, requiring him to be taken to hospital. There is nothing before me about that at all other than what is attributed to him in the report. Despite all of that history, he said "I guess so." to the question of whether or not he felt loved and safe with his father. The opinion offered by the psychologist upon that is that it suggests disrupted attachment to an unsafe care-giver. 20. I make clear I attribute little weight to those representations. They are not evidence, they are not tested and they are imprecise in the way they are presented. 21. He and his brothers fought. Because he was the smallest of the group he suffered more at their hands, he said. There is no family history of law violations; there is no family history of substance abuse. One of his brothers spent some time in a mental health facility but he is unsure of what the details were. He acknowledged he began engaging in substance abuse and offending behaviours from an early age, while at the same time his siblings lived pro-social lives. He suggests that this was because he was not scared to break the rules. He also complained that his childhood was characterised by the feeling that he had to learn everything on his own. His parents, he said, migrated recently to Australia, did not know enough about this country to teach the children about it. He said his parents tried their best, or at least his mother did. 22. The sources of information with this report included the letter of instruction, the statement of agreed facts and his criminal history. 23. He was only educated to Year 11 but left midway through after he entered juvenile detention. He described himself as someone who bullied his peers at school. His employment history has been in the form of casual labouring work and he will have that available to him when he is released. 24. In the section dealing with medical history, what was earlier taken from him has been elevated to a head injury from his father at the age of seven. He does not recall whether he was diagnosed with concussion but said he was admitted to hospital for a few hours. He has a large scar on his skull from this injury, it is said. He is unsure of any long-term neurological impacts. Then he was, at 19, involved in a crash in a car when it was being pursued by the police. The vehicle was stolen before then. He suffered a collapsed lung and a fracture to his lower back. Strength training in custody has alleviated his back pain and he does not experience any significant issues as a consequence. There is nothing else before me regarding that and what sequelae might have burdened him and what prognosis there might be for any long-term conditions that might evolve. 25. He spoke of binge drinking across weekends, alcohol has contributed to his problems in the past, but he did not provide any specific details. He smoked cannabis daily from the age of 14, such that he suffered withdrawals each time he went into custody, which clearly did not discourage him from misuse of prohibited drugs. He began using ecstasy or MDMA, and up to two grams of cocaine each week by the age of 17. After he was remanded for this offence he experienced withdrawal for five months, compared to the few weeks' withdrawal that afflicted him from cannabis and alcohol use. 26. He was referred to the Drug Court after a prior arrest but withdrew from the program because he did not like spending time with other substance users. He has not completed any drug or alcohol rehabilitation programs. He said that he was willing to undertake to do it if it would get him out of gaol. He needs to develop genuine motivation for treatment, it is said. 27. He denied impulsive gambling but that is inconsistent with what occurred in this case and his history, which includes him losing up to $4,000 on one occasion. 28. He described himself as outgoing. He does not currently have close friends. He has been associating with substance-using peers when at large but he does not want to continue in that lifestyle. 29. He has support from his mother, who I note is in court. He has support from his siblings. He has processed his history of abuse from his father during childhood and they currently have an amicable relationship. He has not had any meaningful long-term relationships because those that he had disintegrated through his infidelity. 30. His history of offending extends back to when he was aged 15. His custodial history is summarised. He thought offending was cool, influenced by rap music, action movies and his friends. He spoke of regularly attending the pub as a customer and being known to staff. He returned to the pub to gamble on two occasions between the robbery and when he was arrested. He said he committed the offence because he was bored and broke and began planning it about a week before. He was intoxicated by alcohol, cannabis and cocaine both at the point of planning and when he committed the offence. Section 21A (5AA) Crimes (Sentencing Procedure) Act 1999 applies. His self-induced intoxication provides no mitigation. 31. He described himself as a happy person, who has never experienced significant low mood. He has no current mental health needs. He has limited insight into his need for assistance for substance abuse and gambling problems, as well as attitude towards his offending. Offence‑specific psychological intervention might be necessary it is suggested. 32. As I indicated, I am not prepared to find that his father's conduct contributed in any meaningful way to his decision to embark upon this criminal lifestyle that he has undertaken on the material before me. 33. Paragraph number 26 is one that tends to build upon the reliability of his representations with further development of the concepts which are offered in support of the suggested explanation for his misconduct. It is said that over time his experiences have desensitised him to punishment because he adopted the belief that he was cool or brave for breaking the rules, possibly influenced by media portrayals of offending. I do not know where the basis is for that proposition in the report. I find that paragraph unhelpful. 34. Overall the material before me provides ample scope to find that this offender is one who has chosen his lifestyle, notwithstanding the efforts of at least his mother, who has been able to raise four other siblings to be meaningful, contributing members of society. There is no psychometric testing or intellectual assessment reflecting his abilities or lack of abilities in any context. His demeanour and attitude, which I glean from this report, as I said earlier, suggests to me someone who just does not care. He was prepared to go into this hotel, commit the robbery, regardless of the fact that he was known there, and then to return, notwithstanding that he had been seen committing the crime. He clearly has lack of insight. Whether that is because of some intellectual impairment or otherwise is not entirely clear and I do not believe this report provides the answers. 35. The Crown clearly and justifiably asserts the application of the Henry guideline judgement. He fits squarely within the example given in that decision, save for the nature of the victims, who were not vulnerable within the context of that term as used in the decision. The guideline advances the proposition that a sentence within the range of four and a half years would be appropriate in such a case as this. He has an extended criminal history, which is another variation upon the theme provided in Henry. 36. The record of antecedents disentitles him to leniency and requires focus upon specific deterrence in the sentencing exercise. It does not aggravate the offending objectively, nor does it increase what is otherwise a proportionate sentence. He has the benefit of his plea of guilty attracting a discount of 25% for utility. Whether he is truly sorry for this offence is difficult to assess in light of the view that I have taken of the report and the information attributed to him. There is no assessment of risk of re-offending. 37. He has few protective factors, as observed by the Crown, including limited motivation to engage in any rehabilitation. I could not find that he is unlikely to re-offend. The Crown and I are apart, however, upon the concept of special circumstances. By reason of his age, by reason of the risk that his attitude reflects someone who would find it more comfortable to stay in custody than go out onto the street, I feel that special circumstances must be found and that he does need a longer period on parole to hopefully facilitate, to the extent possible, his rehabilitation, the prospects of which I must find are not established. 38. Accordingly, I come to the point of sentence. The offender is convicted of the offence. I have chosen a head sentence of four years. This is below the Henry guideline judgement, but I have chosen this period because of the sentence to which he is presently subject and the fact that I am commencing this sentence on 4 December 2019. I find that there are special circumstances. I will specify a non-parole period of two years and thus he will be eligible for parole on 3 December 2021, after which he will be subject to parole for two years, if he is able to win the confidence of the parole authorities and have them grant him parole. His custodial offences, as presently informed, leave me with some caution regarding that. Hopefully he will change his ways and take the opportunities that the custodial environment will provide for him and do something about his future. 39. Thus, he is convicted. I specify a non-parole period of imprisonment of 2 years, to commence on 4 December 2019 and expire on 3 December 2021. I impose a further period of imprisonment to commence at the expiration of the non-parole period of 2 years, commencing 4 December 2021 and expiring on 3 December 2023. The parole will be supervised in accordance with whatever regulations are in place at that time under the legislation that governs those matters and the parole authorities will no doubt identify his criminogenic needs at that point. Bringing into account his current sentence of 1 year and 3 months, which is concurrent upon the sentence of nine months for the common assault offence, it means a custodial component altogether of 3 years and 3 months, with a parole period of 2 years, which I believe is appropriate in the circumstances.