District Court New South Wales Medium Neutral Citation: R v Lee [2019] NSWDC 879 Hearing dates: 17 May, 7 June 2019 Date of orders: 25 July 2019 Decision date: 25 July 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Full time custodial sentence. Decision at [50] – [51] Catchwords: CRIME – sentencing – robbery in company – two charged – multiple co-offenders – parity Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 NSW Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2007 NSW Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Elliot v Blessington (2006) 164 A Crim R 208 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen (1998) 194 CLR 610 R v Govinden (1999) 106 A Crim R 314 R v Henry (1999) 46 NSWLR 346 Slade v The Queen [2005] NZCA 19 Turner v R [2011] NSWCCA 189 Texts Cited: None Category: Sentence Parties: Regina (Crown) Zachary Lee (Offender) Representation: Counsel: Mr P Swaine (Offender) Solicitors: ODPP (Crown) Legal Aid (Offender) File Number(s): 2018/198777 Publication restriction: Non-Publication Order regarding the names of the co-Offenders Judgment 1. The Offender was born in the year 2000 and is now 19 years of age. The offending was committed on 23 June 2018, just two months after the Offender attained his majority. He was arrested and charged four days later. 2. On 7 December 2018 the Offender was committed for sentence in the District Court having pleaded guilty to the charges in the Local Court. This was at a relatively early stage of these proceedings, and this will be taken into account in assessing the value of the guilty plea. The Offender has been in custody for these offences since his arrest. 3. The evidence on sentence for the Crown comprises of the following: 1. an updated Crown Sentence Summary (Exhibit A); 2. an updated custodial history (Exhibit B); 3. the Form 1 (Exhibit C); 4. reasons for sentence of the co-Offender referred to by initials BC (Exhibit D); 5. reasons for sentence of the co-Offender referred to by initials TC (Exhibit E); 6. reasons for sentence for the co-Offender referred to by initials MK (Exhibit F); 7. the Crown's Written Submissions (MFI 1); 8. the Crown's Submissions on Parity (MFI 2); and 9. the Crown's Further Written Submissions (MFI 5). 1. The Offender relied upon the following material: 1. a report by Ms Brann, Psychologist, dated 12 March 2019 (Exhibit 1); 2. a letter from the Offender dated 2 January 2019 (Exhibit 2); 3. a Remand Domestic Abuse Letter of Attendance dated 16 April 2019 (Exhibit 3); 4. the Offender's Submissions on Sentence (MFI 3); and 5. the Offender's Further Submissions (MFI 4). 1. The following are the Agreed Facts upon which the Offender is to be sentenced. The three victims in this matter are 18 year old Cody, 19 year old Kyle, and Kyle's 18 year old sister, Tui-Carol (hereinafter referred to as Tui-Carol). 2. In the afternoon of Saturday 23 June 2018, Cody was contacted by BC via the online applications Facebook Messenger and Snapchat. A number of messages were exchanged. BC asked Cody to sell him some leftover MDMA tablets that Cody had obtained at a recent party. Cody contacted his friend Kyle and asked whether he could drive him to Erina Fair Shopping Centre where the deal would take place. Agreeing, Kyle and his sister Tui-Carol drove to Cody's home in Kyle's white Nissan Pulsar to pick him up. After collecting Cody, they drove to Erina Fair Shopping Centre. Kyle drove, so he was in the driver's seat, while Cody sat in the front passenger seat and Tui-Carol was in the back offside seat behind Cody. 3. When they got closer to Erina, Cody, on instructions from BC, directed Kyle to drive into a laneway that runs along the rear of Hoyts Cinema complex within the Erina Fair Shopping Centre. BC told Cody that he was wearing a black hoodie with a black hat and that his friend, later known to be co-Offender TC, was wearing a white hoodie. As they were driving towards the shopping centre, Cody advised Kyle of the reason for which they were going to Erina Fair. Kyle stopped his vehicle and the three victims sat in the car waiting for BC to arrive. The victim's vehicle was facing the cinema building and was to the left hand side of the road. While they waited, Cody made further contact with BC via Facebook Messenger and told him exactly where the three victims were waiting. BC sent a photo via Snapchat to Cody, which depicted both BC and MK, as previously described. 4. CCTV cameras captured the four Offenders walking towards the laneway via a bush track, all wearing sports hooded jumpers. A short time later the three victims observed BC and the other Offenders gather together at the bottom of a nearby ramp and talk. This group of people were the Offender Mr Lee and his co-Offenders BC, MK and TC. The co-Offenders were under the age of 18 and have been dealt with in the Children's Court. 5. The four Offenders approached and surrounded the vehicle. As they were wearing distinctive sports hooded jumpers, they were easily identified on CCTV before and after the event, as well as on the following day. The four Offenders then split into two groups. BC and MK walked to the passenger side of the vehicle and engaged Cody, who was seated in the front passenger seat, whilst Lee and TC went to the driver's side, walked to the rear of the vehicle, and leaned onto the rear looking inside the vehicle. MK opened the front passenger side door and unzipped his jacket to show that he was holding a brown wooden baseball bat, between 90 and 100 centimetres in length. 6. MK then held the bat out towards Cody and said to him "This is a robbery. Give us all your stuff". The baseball bat was clearly visible to Cody, who was still seated in the front passenger seat. Cody was scared and handed over his iPhone X, his wallet containing $100, his driver's license, NAB card, school ID card, TAFE card and the drugs he had been planning to sell. MK demanded more property and started searching Cody. 7. At the same moment that MK produced the bat, the Offender Zachary Lee opened the rear driver's side door and sat in the rear driver's side passenger seat next to Tui-Carol who was seated behind Cody. Lee was holding a black coloured knife and pointed it at Kyle's neck. When Cody told MK that there was nothing else to hand over, Lee who was still holding the knife behind Kyle, said to Kyle, "I like your watch bro". Kyle turned around in his seat and said, "Is this a joke?" Lee replied, "This is serious. Give me your watch and hat." 8. Next, Lee turned the knife towards Tui-Carol who was seated next to him. The knife at this stage was held about 20 centimetres from Tui-Carol's body. Lee said to her, "Give me your stuff." Tui-Carol was very scared and in shock because Lee had a knife and was sitting right next to her. Tui-Carol looked away but eventually replied, "No." BC interjected and questioned Tui-Carol, "Do you really want to get stabbed just for a piece of jewellery". MK looked at Cody's hat and whilst indicating toward Kyle's distinctive red Raiders NFL club hat, said, "We don't want your hat. We want yours." 9. Fearing for his and his sister's safety, Kyle relinquished his hat and gold coloured Pulsar brand watch to Lee, who was still seated behind him. Lee then jumped out of the car and the four Offenders then ran away in the same direction from which they had come. A review of CCTV cameras and information from security staff from the Erina Fair centre showed that the Offenders returned to Erina Fair the following afternoon, Sunday 24 June 2018. Several cameras captured them walking throughout the shopping centre still wearing their distinctive sports clothing as well as BC wearing the red Raiders NFL cap they had stolen from Kyle. 10. At 11am on Wednesday 27 June 2018, police attended the Offender's mother's address in Melbourne Street, East Gosford. The Offender's mother invited police inside and woke the Offender up. The co-Offenders TC and BC were also present, and were still wearing the same clothes depicted in the CCTV recordings from 23 and 24 June 2018. They were all cautioned in front of the mother of the Offender and placed under arrest. 11. When questioned about the stolen property, BC produced the red Raider's NFL baseball cap and the Pulsar branded gold watch that was stolen from Kyle, and a blue bag in the Offender's bedroom that looked identical to the one he was carrying on the CCTV. TC, BC and Lee were conveyed to Gosford Police Station and entered into custody. 12. MK was sighted at a bus-stop at Erina Fair a short time later. He too was still wearing the same clothing and distinctive maroon coloured shoes, as depicted on the cameras at the time of the robbery and the following day. MK was also arrested and conveyed to the police station, and entered into custody. Following legal advice, BC, MK and TC declined to participate in any form of interview. 13. The Offender, however, participated in an ERISP and made partial admissions. He agreed that they were intending to rob Cody of his drugs because they did not have any money. He said that the decision to take the other property was a last minute one, however he repeatedly denied being armed with a knife. He conceded that a baseball bat had been produced. 14. In considering the objective seriousness of the offending, it is necessary to have regard to the maximum penalties as guideposts indicating the seriousness of the conduct of the Offender. Next, one has regard to the particular circumstances of the offending and the overall criminality. The guideline judgment of R v Henry (1999) 46 NSWLR 346 provides a useful tool in determining the relative objective gravity of robbery offences. Whilst the judgment does not act as a checklist, the following guideline factors were identified in Henry: 1. a young Offender with no or limited criminal history. This applies to this Offender who is 18 years of age, although he did have a limited criminal history; 2. a weapon like a knife, capable of killing or inflicting serious injury. This applies to this Offender who was in possession of a knife and pointed it towards two of the victims on occasions during the offending. I note also that one of his co-Offenders had in possession and threatened to use a baseball bat; 3. a limited degree of planning. This would also seem to apply, that is the decision to rob the victims of the items other than the drugs appears to have been a last minute decision; 4. limited if any actual violence, but a real threat thereof. This is apposite in relation to the circumstances of this offending; 5. a vulnerable victim. The victims were not vulnerable in the traditional sense, however they did suffer some vulnerability by reason of being trapped within a vehicle surrounded by the Offenders; 6. a small amount was taken. This applies; and 7. a plea of guilty, the significance of which is limited by a strong Crown case. In this matter the Crown case was strong, supported by CCTV footage and other evidence located at the premises of the Offender. 1. The Crown submitted that both principal offences fall within the middle of the range of objective seriousness. With regards to the robbery of Cody it was conceded by the Crown that this Offender's role was minor, being restricted to being part of the company and holding a weapon. Conversely the robbery of Kyle involved this Offender pointing a knife at the throat of the victim, making two separate threats for property. It was additionally submitted by the Crown that, taking these matters beyond the Henry guideline, the offending was aggravated by the Offender being subject to a number of control orders and bonds at the time of the offence. 2. It was submitted on behalf of the Offender that these two offences sit below the offending considered by the court in Henry. This is based on the fact that at least one of the victims was seeking to sell illicit drugs, and therefore cannot be classed as a vulnerable victim. Whilst I accept that submission, I have previously made observations concerning the fact that they were held within a vehicle. Similarly, the Offender pleaded guilty in the Local Court, which is at an earlier point in time than the plea considered in the Henry guideline judgment. 3. I find that both the offences fall at the mid-range of objective seriousness. Whilst the Offender did plead guilty at an early stage which is a positive difference from the Henry guideline, that characteristic will be taken into account in a quantified discount on sentence. The plea was also entered in the face of a strong Crown case. 4. The subjective case is informed by the Sentencing Assessment Report and the Psychologist's report. The Offender is now a 19 year old male who was 18 and two months at the time of the offending. He is the only child of his parents' union. He was raised by his mother and had limited contact with his father in his formative years. The Offender left school at the end of Year 10. Since leaving school he has worked at McDonalds for nine months at ages 15 or 16 and has otherwise been receiving Centrelink benefits. 5. The Offender described a dysfunctional childhood history. Specifically, he reported that his mother abused illicit drugs and suffered significant mental health issues, culminating in him being removed from her care by FACS at the age of 12. He revealed suffering "various forms of neglect, including lack of food at home and school, and dirty clothes". The Offender reported being exposed to infrequent domestic violence inflicted upon his mother and being threatened by step-fathers with physical violence. He was the victim of violence at eight years of age. 6. The Offender revealed incidents of sexual abuse at the hands of a neighbour over a period of three to four years from eight years of age. He disclosed the abuse to his mother when he was 16 years of age, coinciding with the commencement of his own mental health difficulties and substance abuse. This substance abuse included both intentional and accidental overdoses of amphetamines. At the time of the offending the Offender was consuming benzodiazepine, pain killers, anti-anxiety medication and a laxative. The Offender reported at the time of assessment by Ms Brann that he was abstinent from drugs. Prior to the offending, the Offender participated in a youth residential rehabilitation program, but was discharged due to fighting. 7. The Sentencing Assessment Report was written following an interview with the Offender at Cessnock Correctional Centre. In regards to his attitudes to the subject offending, he accepted responsibility but displaced blame to the victims, considering robbery as an occupational hazard. Ms Adams, the author of the report, opined that the Offender appeared to delineate between the morality of stealing from the general public and from drug suppliers or associates. 8. Since the time of writing the Psychologist's report, the Offender has been disciplined within custody for possession of an anti-depressant. On 7 June 2019 two further pieces of documentary material were tendered on behalf of the Offender. The first was a handwritten letter by the Offender dated 2 January 2019. In that letter the Offender apologised for his conduct and for wasting the time of the police and the Court. He admitted that the offending was committed to obtain drugs and he felt that a chance of rehabilitation would be worthwhile. He also said that "I'll never do anything wrong again". The second piece of evidence was a letter of attendance for the Remand Domestic Abuse program, demonstrating the Offender had attended five sessions in regards to domestic abuse. 9. Concerning the question of remorse, I am troubled in finding remorse, given the comments made to the author of the Sentencing Assessment Report concerning the distinction between robbery from drug suppliers and robbery from the general public, referring to robbery of the former as an occupational hazard appears to downplay the severity of his offending, if not an attempt to justify it. I am unable to make a positive finding of remorse based upon the untested evidence in view of the remarks made to Ms Adams. 10. The Court may also have regard to any aggravating or mitigating factor particular to the Offender and the offending. The aggravating factors that are relevant and exist here are: 1. the use of a weapon. In considering that matter as an item of aggravation I am mindful of the fact that, under s97(2) of the Crimes Act, an element of the offence is being armed with a dangerous weapon. Findings of a statutory aggravating factor may be double counting and for that reason I decline to do so. I do however find that it is generally a matter which elevates the objective seriousness of the offending; 2. the amount of planning and organisation involved in the activity. It seems to have been limited to communicating between BC and the victims. I find that the degree of planning and organisation was limited and does not aggravate the offending pursuant to the statute; and 3. the fact that at the time of the offences the Offender was subject to four control orders from the Children's Court is an aggravating factor. 1. The only mitigating factor which exists here and which is relevant is the Offender's plea of guilty. 2. Having regard to previous convictions, I note that for his age, the Offender has a significant criminal record. The record includes previous offences of dishonesty and violence committed whilst a juvenile. I do not find that his criminal record aggravates his offending, but it does disentitle him to a finding of good character and any leniency which might flow from that. 3. It is also clear from the subjective case that the Offender had a troubled childhood and adolescence and the principles denunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571 are enlivened. I note [44], which addresses how a deprived background affects the different purposes of sentencing. In my opinion, the Offender's upbringing was deprived and therefore reduces his moral culpability and also raises the need for rehabilitation, justifying a finding of special circumstances to permit that to occur whilst on parole. 4. In the report by the Psychologist there are references to the Offender's addiction to cannabis, stimulants and amphetamines. The Offender self-reported that his abuse of substances commenced when he suffered a sporting injury at the age of 16. The Crown referred the Court to a decision of Turner v R [2011] NSWCCA 189, where it was held that an addiction to prescription or opioid medication following an accident was a matter which can mitigate the offending. As pointed out by the Crown there is no evidence as to the severity of the injury which caused the addiction and it was conceded on behalf of the Offender that for a considerable period of time he was self-medicating. It was further submitted on behalf of the Offender that his past drug addiction would contribute towards a finding of special circumstances, as he will require substantial assistance to overcome that addiction. I accept that submission. 5. Turning to the questions of rehabilitation and re-offending, I find the prospects of rehabilitation can only be considered as guarded, having not been successfully explored in the past. He is, however, a relatively young man with some degree of insight into his offending behaviour. Notwithstanding the program completed whilst in custody and the attempt at rehabilitation pre-custody, I find that the prospects of successful rehabilitation are guarded. Consistent with that finding, I find the risk of re-offending to be moderate. 6. It is clear that the Offender is young and by reason of that fact, immature. His criminal and moral failures should not be equated with those of mature adults. It is accepted that adolescent decision-making capacities are immature: Slade v The Queen [2005] NZCA 19, at [43]; Elliot v Blessington (2006) 164 A Crim R 208, at [127]. What this conclusion will go to is devising a sentence which is clearly headed towards the Offenders rehabilitation. Through analysis of the subjective evidence, the Offender's addiction to drugs is relatively short-lived and whilst his criminal history is not favourable to him, all of the offences were committed between 2017 and 2018 when he was under the age of 18. 7. The approach to be adopted for sentencing is often referred to as an intuitive process, which involves synthesising the objective seriousness of the crime with the subjective circumstances of the Offender, and arriving at a sentence that best meets the purposes of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act. Often the purposes point in different directions. There was no doubt that offending of this type must be acknowledged by the court as being at the very least anti-social, and there is need for both general and specific deterrence. It is also essential that the sentence imposed upon the Offender is adequate punishment for the offending. Perhaps against those considerations is the need for rehabilitation which, if successful, would substantially reduce the risk of re-offending in the future. Acknowledgement and recognition of the harm done to the victims of the crime is also a matter to which the court has regard in sentencing an Offender. At the end of the sentence process, the proportionality principle requires that a sentence should neither exceed not be less than the gravity of the crime, having regard to the objective evidence. 8. Before sentencing anyone to imprisonment the Court must be satisfied that, having considered all possible alternatives, no sentence (including non-custodial sentences other than imprisonment) is appropriate. In this case the Crown contended that the threshold under s5 had been met and that a term of imprisonment was warranted. Counsel for the Offender submitted that the s5 threshold had been crossed, but that the imposition of an Intensive Corrections Order would not be inappropriate for this Offender. I find that no sentence other than imprisonment is appropriate. 9. In considering the submission made on behalf of the Offender concerning the ICO, I am mindful of the comments made by the Attorney-General on the occasion of the Second Reading Speech of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act, particularly his remarks concerning the advantage of community supervision over a short prison sentence. 10. It was submitted on behalf of the Crown that an Intensive Corrections Order is not appropriate for this Offender for two reasons. First, the objective gravity of the two offences, particularly when one of them is aggravated by a Form 1 which would outweigh the maximum aggregate sentence that can be imposed for an aggregate ICO. Secondly, due to the Offender's lack of insight into his offending when the guarded findings regarding rehabilitation and re-offending have been made. 11. I accept the submissions of the Crown and I am not convinced that serving a term of imprisonment in the community by way of an Intensive Corrections Order is appropriate, particularly having regard to the principles underpinning s66 of the Crimes (Sentencing Procedure) Act and the need for protection of the community. 12. In accordance with s22 I have taken into account the guilty plea of the Offender and I accept that his sentence ought to be discounted by 25% to reflect the value of that plea. 13. Issues of parity arise but only on a limited basis, as the three co-Offenders were charged and sentenced as minors. The present Offender was charged and will be sentenced as an adult. There should be a proper relationship nevertheless between the sentences imposed between the Offender and the co-Offenders. This requires a comparison of the sentence imposed on each Offender, and an evaluation of their involvement in the commission of the offence, as well as their antecedents. I am mindful of the comments of the High Court in the matter of Lowe v The Queen (1984) 154 CLR 606 at 623. 14. The three co-Offenders were all sentenced by the Children's Court, and that jurisdiction has different purposes of punishment mainly geared towards rehabilitation. Each of the co-Offenders were sentenced to the following: 1. BC was sentenced to one count of robbery in company on 31 August 2018. He was sentenced by a Local Court Magistrate to a control order, pursuant to s33G, for a period of 10 months with a non-parole period of two months; 2. TC was sentenced for one count of robbery in company on 10 August 2018. He was sentenced to probation for a period of 12 months; and 3. MK was sentenced for one count of robbery in company. In November 2018 he was sentenced to probation for a period of nine months. 1. The Crown pointed the Court to the decision of R v Govinden (1999) 106 A Crim R 314 at [15], where it was felt that it was still proper for the Court to recognise that sentencing this Offender is taking place in a different regime to that of his co-Offenders. The Crown stated that strict parity in terms of length of sentence would not be appropriate in this particular matter, however it could be appropriately dealt with by a finding of special circumstances. Should there be any grievance by reason of disparity, it would not be legitimate given that the Offenders were sentenced in a different jurisdiction and for different purposes. I find special circumstances exist by reason of the Offender's history of drug use and his youth, together with the fact that this is the first time that he has spent time in custody as an adult. 2. I have also had regard to statistics in order to ensure consistency. Whilst statistics are informative, as well as the guideline judgment of Henry is informative, they are by no means binding upon this Court. I am satisfied, however, that the sentence to be imposed upon the Offender is consistent with offending by other like Offenders. I am also mindful of principles of proportionality and totality as referred to by the High Court in the matter of Pearce v The Queen (1998) 194 CLR 610. 3. The commencement date for a sentence in respect of this Offender is the date of arrest, being 27 June 2018. From 27 June 2018 to 28 July 2018 the Offender was in custody solely for these offences. From 28 July 2018 to 27 February 2019, the Offender was serving sentences for other offences. In order to accommodate the principle of totality the sentence will date from a point between those two dates, namely 27 September 2018, allowing partial concurrency and accumulation with the unrelated sentence. 4. I intend to impose an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act. I am first required to record the sentence which I would otherwise have imposed in respect of each count on the indictment. The Court has discretion as to aggregate sentencing and, in my view, in the circumstances of this case it is appropriate due to the contemporaneity of the offending. 5. Before announcing the indicative sentence, I note the charge on the Form 1 attaches to sequence 3 being robbery in company. In respect of sequence 3, namely the robbery in company (that is the robbery of Cody), I provide an indicative sentence of four years, which after discount is an indicative sentence of three years. I have had regard to the matter on the Form 1 in that respect. 6. In relation to sequence 4, again, robbery in company (the victim being Kyle Harrison), I indicate a sentence of four years, which after discount of 25% results in an indicative sentence of three years. 7. Before determining the aggregate sentence, I have had close regard to the principles of totality as discussed in Pearce. I am required to stand back and consider whether the overall sentence to be imposed is just, appropriate and reflects the total criminality involved. I have considered questions of accumulation and concurrency in determining the aggregate sentence. 8. Mr Lee, you are convicted of the two offences on the Crown sentence summary, namely being sequence 3 of charge number H ending 904, robbery in company with the victim being Cody Eslick, in breach of s97(1) of the Crimes Act. You are further convicted of robbery in company of Kyle Harrison in breach of s97(1) of the Crimes Act. 9. For those convictions I impose an aggregate sentence of five years to date from 27 September 2018 and expire 26 September 2023. I impose a non-parole period of three years, to date from 27 September 2018 and to expire 26 September 2021, at which time you will be eligible for release on parole. 10. I direct that a copy of the report by Ms Brann accompany the Offender's warrant of commitment. I direct that prior to or at the time of parole the Services and Program Officer for Corrective Services at the Correctional Centre at which he resides arranges for his assessment of eligibility for admission into multi-diagnosis and drug rehabilitation program. I further direct that you are to be supervised on parole by Community Corrections, and follow any directions provided by them as to any rehabilitation which is considered appropriate. 11. I encourage you to engage in whatever rehabilitation programs may be available to you in prison, and upon release to follow the directions of community corrections and take advantage of any programs that may be available to you for rehabilitation. You are only now 19 years of age. It would be unfortunate if you became a repeat Offender, and I encourage you to follow the advice of psychologists and other counsellors who may from time to time give you advice. ********** 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: 30 April 2020