HKSAR v. LIMBU JUN-KANG also known as CHAN KING-TUNG

HCCC 159/2018

[2019] HKCFI 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 159 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 14 May 2018, Limbu Jun-kang (hereafter “the accused”) was committed by a magistrate to the High Court for a sentence on two charges of robbery. The Summary of Facts was agreed before the learned magistrate.

There are two separate incidents which are the subject of the charges that were committed to this court.

Incident 1 - charge 1

In the early hours of the 12 November 2017, a Mr Chan Cheung-wah went to a nightspot in Lan Kwai Fong in Central with friends. At about 2.20 am, he left the club as he felt drunk. As he walked in the direction of Wellington Street, the accused came up and walked with him. For some reason, the Mr Chan, the 1st victim, thought that the accused was a friend so he walked with him for about 20 metres. The accused brought the 1st victim into a rear lane of Wellington Street. At this point, the 1st victim realised the accused was not his friend. Indeed, the accused used his hand to lock Chan’s neck from behind and the accused started to kick and punch him. The accused kept punching the face of the 1st victim and told him not to make noise and to give up his money. The 1st victim complied by handing over his wallet which contained about $1,800. The accused took away about $1,300 from the wallet and following the taking of the money, continued to assault the 1st victim for about two or three minutes.

The 1st victim fell to the ground as a result of injuries, and, a little while later, was found by the police. In the course of the robbery, the 1st victim’s smart phone was damaged by the accused. The 1st victim was taken to hospital for medical treatment and it was found that:

(1) both cheeks were swollen, tender and erythematous - in other words, skin was reddened;
(2) upper and lower lip were both swollen and mildly abraded;
(3) the left forehead and nasal bridge were tender and swollen;
(4) a right sub-conjunctival haemorrhage;
(5) his left chest wall was tender and erythematous;
(6) the nose of the 1st victim was broken as revealed by X-ray.

The 1st victim was admitted to hospital and remained in the surgical department for three days.

The incident was recorded on CCTV. That recording depicts the accused dragging the 1st victim into the rear lane of Wellington Street. The accused then kicked the 1st victim, used both hands to hold the 1st victim's head and kneed, and the 1st victim’s face. The CCTV also captured the money taking process as well as the taking of the 1st victim’s mobile phone smashing it onto the ground. The recording of the incident lasts for about six to eight minutes.

Incident 2 - charge 2

On 16 November 2017, just five days after the 1st incident, Mr Chan Chung-yin went to a bar in Lang Kwai Fong with friends. They were at the bar until about 4.30 am, that was 17 November. Mr Chan, the 2nd victim and his friends, then went to a nearby restaurant to have some food. As they were going to the restaurant, the 2nd victim left the group and walked alone to a public toilet. The reason for this was that he was not feeling well. After using the toilet, the 2nd victim then walked towards the restaurant. When he was at Wellington Street, the 2nd victim said the accused suddenly appeared and locked the 2nd victim’s neck from behind punching his face and pulling him into the rear lane.

Inside the rear lane, the 2nd victim said he was pushed by the accused to the ground next to a wall. The accused then pulled the 2nd victim up again, kneed his face after locking his neck. In the course of the attack, the accused demanded money from the 2nd victim, who handed over $420 to the accused. After taking the money, the 2nd victim said that the accused used an empty beer bottle and smashed it on the head of the 2nd victim. He kicked the 2nd victim’s head a few times and left the scene. A report was made to the police. The 2nd victim was taken to hospital for treatment. On examination, the doctors found:

(1) a laceration over the left scalp;
(2) bruises on the left eye with a left subconjunctival haemorrhage;
(3) a CT brain scan revealed a right proximal area with contusion, and right front contusion.

The 2nd incident was also recorded on CCTV. Part of that recording depicts the accused appearing to keep an eye on the 2nd victim. At one stage, the recording depicts the accused following the 2nd victim. At this stage, the accused has an empty glass bottle in his hand. Further CCTV recording depicts the accused and the 2nd victim in a rear lane and the accused grabs the neck of the 2nd victim and pushed him to the ground. At this stage, the accused is seen using both hands to hold the 2nd victim’s neck and used the empty glass bottle to hit on the head of the 2nd victim. In this recording, the taking of the money then occurs and following that recording, that recording shows that the accused again smashed the bottle on to the head of the 2nd victim.

The accused was arrested on 18 November 2017 following an anti-crime patrol conducted in the Lang Kwai Fong area. The accused was intercepted near D’Aguilar Street. The accused admitted both offences. He told police, under caution, that he dragged both victims into the rear lane to rob them. A search of the residence of the accused revealed clothes matching the clothes worn by the robber, as recorded in the CCTV in the area. He admitted so far as the first incident is concerned, that he observed the victim of the robbery appearing to be drunk and walking in the street and he dragged him to a rear lane to rob him. He identified himself on the CCTV recordings of the two incidents. In relation to both incidents, the accused made full admission. Significantly, he said that he walked around the night clubs looking for victims.

Personal background of the accused

The accused was born in Hong Kong in 1992 and he claimed that he worked as a part-time actor between 2007 and 2017. There is fairly compelling evidence that, at bare minimum, this claim is somewhat exaggerated. The accused has previous convictions for common assault in 2009 and indecent assault in 2017. In relation to the indecent assault, he was sentenced to imprisonment for 4 months.

The present matter came before this court on 6 August 2018. Further psychiatric reports were requested. (There were two previous psychiatric reports dated 17 January 2017 from Dr Oliver Chan and a report from Dr S H Lee dated 15 January 2018.) I also called for a psychological repot and a background report.

I now have reports from Dr Chan dated 20 August 2018, Mr Joe Wong, Clinical Psychologist, dated 24 August 2018 and a background report dated 12 September 2018.

The reports have been very helpful.

In relation to the psychiatric view of the matter, it is perhaps best articulated in the reports of Dr Oliver Chan. He notes that the accused has been known to the psychiatric wards of hospitals in Hong Kong since 2012. Initially, Dr Chan diagnosed what he characterised as a pervasive developmental disorder with deficits in language and social communication. However, in his more recent report, Dr Chan recasts his diagnosis to that of autistic spectrum disorder. The report of Dr S H Liu notes that the accused is suffering from a mental illness and he describes it as pervasive developmental disorder, being self-centred, odd of thinking and socially inappropriate. The observation of Dr Liu clearly resonates with the opinion of Mr Joe Wong, Clinical Psychologist at the Correctional Services Department.

Mr Joe Wong has provided a report dated 24 August 2018. In that report, he notes that the accused had dyslexia, a pattern of learning difficulties involving inaccurate word recognition as well as spelling and attention-deficit/hyperactivity disorder. He misbehaved at school and at home. Perhaps not surprisingly, his relationship with most of his family members is one involving conflict and his behaviour is clearly at the heart of that. His parents were reported as feeling increasingly unable to manage his misbehaviour. His school results were pretty dismal as well. He started Secondary 2 level but dropped out after a few months. Following that, he enrolled in a Youth Pre-employment Training program and dropped out of that as well. His experience at both school and the training program are characterised by a poor relationship with his classmates as a result of his repeated strange and difficult behaviour. In addition, Mr Wong also reports that the accused was often teased and physically bullied at school. His method of coping with that was violence. Mr Wong noted that the employment history of the accused was noted as equally bleak and unstable.

In paragraph 6 of Mr Wong’s psychological report, he notes the inability of the accused to make friends as a child. His more recent friends were clearly a destructive and anti‑social group. In particular, he made some friends in the area of Thai boxing. Unfortunately, they appear to encourage the accused to fight with strangers in the street to prove that he was a good fighter. Mr Wong observed that he gained a sense of recognition and achievement from the Thai boxing friends by fighting with strangers. Mr Wong noted that the accused had been admitted into Kowloon Hospital in June and September 2017 for violent behaviour towards his mother and father.

So far as the account of the offence is the subject of the charges, he told the clinical psychologist, Mr Wong, that in relation to the 1st charge, he had seen that the victim of the 1st charge had indecently touched his female friend in a bar. He told Mr Wong that when he met the victim outside the bar, he decided to teach him a lesson by assaulting him in the rear lane. As Mr Wong says in his report, paragraph 10:

“He treated the victim as a ‘sex offender’, and imagined he was a hero with a mission to promote justice. Furthermore, he believed he was assaulting a sex offender and could erase his record of being a sex offender before.”

Of course it is accepted that the accused does have a previous conviction for indecent assault.

To conclude the findings in Mr Wong’s report, he considered that the accused was a person of borderline intelligence following well-recognised tests. Significantly at paragraph 12 of the report, Mr Wong observed:

“It appeared that the present offending behaviour might be related to the accused’s need for a sense of recognition, violent tendency and idiosyncrasy (sic) thinking. Because of an abusive childhood and under achievement, he used to adopt violent coping in interpersonal conflict or indulge in his own fantasies of being a hero well-recognised by others and he gained a sense of recognition and achievement in the Thai boxing for fighting with others.”

The court has also received a probation officer’s report which sets out in depressing detail the history and background of the accused. It is long and detailed and a very incisive report. What comes out of it is a consistent need for recognition from others. In paragraph 7, the report records an event which obviously traumatised the accused and involved him being sexually abused by another male. The name that the accused now uses and which is the name under which he has been charged, was the result of a name change in 2016. According to the background report, the motivation for the change of name was to forget the unhappy experience of sexual abuse by the male and to start anew. The name change was intended to represent a new life for himself. Sadly, that did not quite work out.

The report notes (paragraph 12) and a subsequent letter confirms that despite everything, perhaps the one shining light in the case is the support of the younger sister of the accused. (Further, she wrote a letter to the court and has urged leniency and the hope that the accused could somehow be rehabilitated. She detailed in that letter that however the accused may have treated other people, he had always treated her with generosity and kindness.)

The overall effect of the probation and background report is to present a fairly bleak picture. This is exemplified in paragraph 16 of that report where the probation officer records:

“Throughout the present social enquiry, the accused impressed to have little insight, poor drug and treatment compliance towards his psychiatric illness. For the present offence, the accused claimed that he understood its seriousness upon being arrested and prepared to bear the legal consequences for his misdeeds.

Nevertheless, as reflected from his belittling of his role and responsibility in the present offence, by attributing his present law transgression to his confused mental state upon taking cough medicine and too much wine on both occasions. The accused seemed to have gained little insight into his problem and his determination to start anew is doubtful.

While both parents were in total despair on the accused’s present misdeeds and lacked confidence in supervising the accused’s drug and treatment compliance in treating his psychiatric illness upon the accused’s release, they earnestly requested for compulsory psychiatric treatment at a confined setting for the accused, complete social rehabilitation and they committed to give their support and encouragement to the accused by visiting him regularly throughout his imprisonment. The accused’s younger sister, out of her love towards the accused, pleaded for the court’s leniency for the accused’s early discharge from prison.”

On any view, the combination of the borderline intelligence of the accused, the autistic spectral disorder and at least so far, the pervasive under achievement of the accused in educational endeavours, suggests that the accused has a long way to go in order to put his life in order and, within the limits of his abilities, to be a proper functioning member of the community. It is easy to understand the utter exasperation of his parents. Dealing with somebody with an autistic spectral disorder is an immense challenge. It is appropriate to note that the continuing and plainly unstinting support of his younger sister. All that and more are needed for the future.

Mitigation

Mr Stephen Kwan, counsel for the accused, recognised the seriousness of the conduct on the part of the accused in carrying out these robberies a few days apart. He recognised that, in law, the robberies were separate incidents and were capable in the context of being punished separately. He nevertheless urged the sentences be made partly consecutive and partly concurrent.

Counsel for the accused took me through the history, including the medical history of the accused and supported his submissions by references to the psychiatric report of Dr Chan, together with the psychological assessment of Mr Joe Wong. He placed a great deal of reliance on the characterisation of Mr Wong of the offences, particularly the first offence. He pointed to this man’s mind being poisoned by a confusing and toxic bundle of notions, including that in a sense, he was something of a hero in assaulting and robbing a person who he perceived to have himself committed an indecent assault. Mr Kwan, based on the psychological assessment of Mr Wong, pointed to the toxic and disturbing notions of the employment of violence as a mode of self‑recognition.

Mr Kwan recognised the sentencing guidelines which operate in Hong Kong in relation to robbery with violence. He plainly recognised the clear and compelling public interest in the deterrence of such conduct. Nevertheless, he submitted that while those notions of deterrence had to form the foundation of any sentence that this court might impose, the sentence called for an increased focus on a personalised sentence.

I also called on counsel for the prosecution, Ms Noelle Chit, Senior Government Counsel, to assist by way of submission. She made the cogent point that the central focus of the various guidelines cases in relation to robbery with violence, was deterrence and the protection of the public. She accepted that the incidents, particularly the second incident, did not fall within the classic head banging framework of analysis. I agree with these propositions.

The foregoing outline of the submissions of counsel for both parties probably does not do them justice. If ever there was a case where counsel for both parties made a real and meaningful contribution to the just disposition of case, this case was it.

Sentencing Principles

Members of the Hong Kong community are entitled to walk the streets of Hong Kong safely at any time of the day or night. They are entitled to that, whether they are drunk or sober or somewhere in between. They are entitled to have their personal property respected. To that end, the courts of Hong Kong have established sentencing principles in relation to robbery with violence of the kind seen in the present case.

Dealing with the second robbery in which a beer bottle was used in the course of the robbery to strike the victim, in Mo Kwong Sang v R[1981] HKLR 610, the Court of Appeal provided guidelines for robberies when the accused was armed with a weapon other than a gun. The Court of Appeal (comprising Roberts CJ, Leonard and Li JJA) suggested guidelines as follows:

“We suggest that in future the appropriate sentence in an ordinary case of armed robbery where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be 5 years.

If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of 6 years would be appropriate.

If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of 7 years should be considered.

These suggested sentences should be increased if there are any other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill treatment of elderly persons and children; and a multiplicity of offenses of a similar kind.”

Mo Kwong Sang v The R (above) has been followed in a multitude of cases, including in recent times, HKSAR v Sun Yu HingCACC 398/2010, [2011] 4 HKLRD 18, HKSAR v Choi HungCACC 225/2010, §7 and HKSAR v Wong KamCACC 520 of 2011, [2013] 1 HKLRD 39, §22.

Of course, the first of these robberies did not involve a weapon. In R v Yau Kwok Tung[1987] HKLR 782, the Court of Appeal (comprising Roberts CJ, Yang and Silke JJA) characterised four years as being at the top end of the tariff for robberies in which no weapon was displayed. This is followed by the Court of Appeal in HKSAR v Ting Chiu & AnorCACC 174/2003, [2003] 3 HKLRD 378.

The Court of Appeal (Stuart‑Moore, ACJHC, and Woo JA), a sentence of 4 years appears to be implicit, the implicit base for Mo Kwong Sang v The R (above) before aggravating features such as the display of weapons are considered.

This incident did not involve robbery using a weapon. Nevertheless, aspects of Mo Kwong Sang v The R (above) which are highly germane to the sentencing of robberies of this kind. In particular, I have in mind the examples of circumstances of aggravation which suitably modified, are of assistance.

In this context, section 10 of the Theft Ordinance defines robbery as follows:

“A person commits robbery if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”

Robbery is not simply theft with violence at some time. Robbery might be committed if immediately before or at the time of doing so and in order to do so, a person puts or seeks to put any person in fear of being then and there subjected to force. Thus, if actual force is used before or during the taking or at any time of doing so and in order to do so, then while that is also the crime of robbery, the courts are entitled to proceed on the basis that the robbery with violence is a more serious matter. That explains the point made in Mo Kwong Sang v The R (above) that an actual infliction of violence is an aggravating factor.

It is relevant to consider the Secretary for Justice v Ma Ping Wah [2000] 2 HKLRD 312, where the Court of Appeal was dealing with a robbery in which the robber hit the victim on the head with a large stone. The victim suffered multiple lacerations. The Court of Appeal held that generally speaking, a starting point of 8 year’s imprisonment would be appropriate. As Stuart‑Moore VP observed:

“This is of course not a straitjacket and there may be some offences where a lesser penalty can be imposed, depending on all the circumstances. Equally, depending on how severely the victim is injured, there will be other cases for which greatly increase sentences will be required. In the light of this conclusion, prosecutors responsible for the preparation of such offences would be well advised to give careful consideration the probable need to transfer future head bashing robberies for trial in the High Court.”

I am not sure whether it is either necessary or appropriate to characterise the second of the two robberies as a ‘head-bashing’ robbery. The label can just as easily mislead, as inform. I prefer to approach these robberies on the basis that they are robberies with substantial violence, one of which was an armed robbery and one of which was not.

Application of principles to the facts of the present case

In the present cases, both were robberies with substantial violence. In one case (the second case), the accused was carrying a weapon in the form of a bottle, which he smashed over the head of the victim and caused lacerations. This occurred both during the robbery and afterwards. Both robberies were at night and in both cases, the accused admitted looking for victims in effect, targeting the victims. I have no hesitation in inferring that one of the important criteria for the selection of victims was that they were drunk, or at least appeared to be so. In such circumstances, they might be less likely or perhaps less able to resist robbery. The degree of violence used in both cases was quite substantial. Even worse, the injuries suffered in both cases was also quite substantial.

Each incident is a serious episode of robbery with violence and a number of days separated each incident. On that premise, the starting point for analysis that each robbery should be sentenced separately and, as a consequence of that, the sentences should be consecutive, subject to totality and, of course, to other mitigating factors.

In each case, the robbery was accompanied by substantial violence although the violence in the second robbery was significantly greater and involved violence continuing after the act of theft was complete. Some of that violence was plainly gratuitous in the sense that it did not appear to have anything to do with the robbery. I can only sentence for the crime charged and the violence beyond that which was “in order to do so”, within the language of section 10 of the Theft Ordinance, cannot be the subject of a robbery sentence. Had there been an additional charge for the gratuitous violence in the 2nd charge, the overall result might have resulted in about 6 to 9 months additional, being added to the overall sentence. In any event, in both cases, the violence inflicted in the course of the robberies is, in both cases, a serious aggravating factor.

There is no evidence of lasting physical consequences of the robbery. Had there been so, the starting points of the sentences that I propose to impose would have been substantially greater, depending on the nature of residual disability. That said, the event must have been a frightening event for both victims and ordinarily the terror of the event is likely to stick with them for a substantial period.

I also consider the fact the victims were targeted by the accused, were perceived by him to be drunk and thus less able to resist is also an aggravating factor. In this regard, it is to be recalled that the Court of Appeal in Mo Kwong Sang v The R (above), while providing a list of factors which might aggravate a robbery, made it plain that the list was not exhaustive. The fact that this factor is not specifically mentioned does not mean it is not, or cannot be a factor of aggravation. However, it is not something which is the dominant factor of aggravation.

Both were nasty robberies with violence and on any view, it is somewhat invidious to differentiate between the two of them in terms of an appropriate starting point for sentence, but nevertheless, I fix the starting points for sentence, which would have been appropriate had either or both matters gone to trial as follows:

(1) Robbery one: 5 years; and
(2) Robbery two: 6 years.

These robberies were committed on different dates and merit consecutive sentences, subject to matters of totality.

Against that, the accused was detected by the police fairly soon after the robberies and made full admissions shortly after that. This is something to the credit of the accused. Pausing there, although the full scope and nature of the investigation is not part of the Admitted Facts between the parties, I infer that this was a very neat piece of police work and those who were involved deserve the gratitude of the community. I would ask that prosecuting counsel reflect my appreciation to the relevant authorities in due course.

In addition, the accused pleaded guilty before a magistrate on committal and it follows that the accused should receive the full measure of the discount appropriate. That discount is, of course, a reduction of one-third off an otherwise appropriate sentence.

The previous criminal record of the accused does not aggravate the sentence. The consequence of his previous record is simply that he will not receive a measure of recognition by way of reduction of sentence that a clear record might otherwise have justified.

The accused has an autism spectrum disorder. Perhaps the real tragedy is that it was not diagnosed earlier. While an earlier diagnosis may not have made the job of his parents any easier, they may have been able to deal with their son with a great deal more insight and it is just possible that things might have turned out differently for the accused from an educational and behavioural stand point. This carries with it no explicit or implicit criticism of the parents of the accused. Autism spectrum disorder, in terms of diagnosis and treatment (I use ‘treatment’ in its broader sense) is, as I understand it, in its infancy. Whether or not the education system and the counselling and support systems necessary to deal with disorder or disability could have met the challenges posed by the problems arising from it, is something that is beyond the capacity of this court to resolve.

What I think is true is that the diagnosis provides an insight into the strange behaviour and strange notions which underline the behaviour observed in relation to the accused, both generally and in relation to these robberies. That is particularly so with the first robbery which, if I were to accept what the accused told the clinical psychologist, arose out of a misplaced notion of righteousness in relation to a person he perceived to be guilty of an indecent assault and that the violence visited upon the person (who he happened to rob) somehow expiated his own guilt. I only have the word of the accused that he observed the first victim commit an act of indecent assault. I only have the word of the accused that this motivated or explained the robbery. I am not prepared to accept as true this serious allegation against the victim of the first robbery. However, it is conceivable that the accused misperceived the events prior to the robbery. He mentioned nothing of this notion to the police when he was interviewed within days of the event. He first mentioned it some months after the event. Perhaps the only thing that makes me not prepared to dismiss this absurd notion completely is that it was said to a trained psychologist and the psychologist was not prepared to dismiss it. Indeed, Mr Wong the psychologist, appears to have connected this notion to the imperative which he considered to exist in the accused, for an element of validation. This ties back to the poisoning of the mind of the accused by the Thai boxing people, which as I have already noted, left the accused with a belief that fighting and violence by the accused somehow validated him. That this notion is absurd and perhaps worse than that, it is dangerous, cannot be doubted. The evil that these people have perpetrated, poisoning the mind of the accused, cannot in my opinion, be understated. However, the problem is, I have to deal with the accused and not the people who most likely poisoned a very susceptible mind.

Pausing there for a moment, let me reiterate in the plainest terms, I do not accept at all that the first victim was himself in any way guilty of any form of sexual offence. I reject that completely. My point is that the accused may have misperceived things and it is upon that basis only that I sentence him.

What is powerfully obvious is that the accused is a troubled soul and it can only be hoped that now that this is clearly recognised by way of Dr Chan’s diagnosis and the insightful observations of the clinical psychologist, that something can be done to undo the damage that has been done and something can be done to improve the behavioural and educational outcomes which have hitherto existed for the accused. That the diagnoses to which I have referred are points of like in favour of the accused is not open to doubt. The fact the accused has pleaded guilty and thus taken responsibility for his conduct is, in my opinion of itself, perhaps another point of light in this case. There is also one bright shining light of the continuing and unstinting support of the sister of the accused. Perhaps now that there is an insight into the real basis of the problems of the accused, there are things that his parents can now do. Perhaps there may be other sources of assistance. I sincerely hope so. The problem for me is how to reflect the fact that at the time of these serious robberies, one in which the accused was armed with a beer bottle used as a weapon and one in which he was unarmed, but the perpetrator of the robberies may have had a mind which was, to some extent, poisoned. That said, it is clear the accused understood that he had perpetrated robberies. He clearly understood that he had perpetrated those robberies with substantial violence, and I am in no doubt that both in the broader sense, he knew that this was wrongful behaviour and that he had the relevant state of mind, and this is a substantial qualifier to any mitigation that the poisoned mind of the accused might otherwise offer.

What this comes to is that for the purpose of sentence, that there is no perfect answer. There is, as I hope I have recognised in a sufficiently explicit way, a limit to what this court can do in terms of the future improvement of the accused. On behalf of the community, the court has a legitimate interest in ensuring that these poisonous notions in the mind of the accused are appropriately dealt with in a way which reduces the prospect of a repeat of this conduct. Most of what needs to be done or done better has no direct relationship to the length of the prison sentence which I must impose.

I have not have found this sentencing exercise easy. This is not just a sentence that a series of robberies with substantial violence which would ordinarily be a relatively easy matter to resolve in terms of the appropriate sentence. There is a degree of tension between the protection of the community from those who rob, or who might be tempted to rob on the one hand and the prevention and the risk of future occurrences and the just treatment of the accused. All of these factors are factors in which the community has a powerful interest. In this regard, counsel for the accused has urged that the sentence not be a deterrent sentence, but a sentence personalised by reference to the accused. He submits just as the community would ordinarily demand deterrent sentences for his conduct, but the community would readily understand an amelioration of the penal consequences which would ordinarily flow from that conduct where it is appropriate to do so. That proposition is unanswerably right. The problem is how to do this.

In my judgment, a custodial sentence is inevitable. As I have already identified what I consider to be the appropriate starting point of each robbery, 5 years and 6 years’ imprisonment respectively. The accused is plainly entitled to a one-third discount for his plea of guilty. What I intend to do in this case is to enhance that discount to 40 per cent, in the hope that this is an adequate balance of the competing factors to which I have referred. I would reject the notion that merely a 7 per cent additional discount for the problems the accused faces, is in any respect, mean. I view the discount as a whole, rather than as the sum of its parts. On my calculations, that would make starting points of 36 and 43 months respectively. As has already been noted, the robberies were themselves separate transactions and at least, as a starting point for analysis, consecutive sentences should be imposed, subject to totality. However, with a view to achieving what I consider to be an appropriate totality, I order that 21 months of the sentence for the second of the two robberies be served consecutively to the term of the first robbery and the balance of 22 months, be served concurrently.

On my calculations, that makes an overall sentence of 4 years and 9 months.

Orders

In an attempt to resolve these competing interests, and in an attempt to temper justice with mercy, I make the following orders:

(1) In relation to the 1st charge, the accused is sentenced to a term of imprisonment of 36 months.

(2) In relation to the 2nd charge, the accused is sentenced to a term of imprisonment of 43 months.

(3) I order that 21 months of the sentence of the 2nd charge be served consecutively to the 1st charge and 22 months be served concurrently with the sentence of the 1st charge.

On my calculations, as I say, that results in a sentence of 4 years and 9 months’ imprisonment, and that is the order of the court.