R v Brown

H68943522 (2018/329601) 1. Sequence 006: Robbery armed with an offensive weapon; 2. Sequence 008: Break and enter dwelling with intent (steal); 3. Sequence 014: ;Larceny; H70702879 (2019/9564) 1. Sequence 001: Break and enter dwelling house and steal; 2. Sequence 002:Break and enter dwelling house with intent to steal.

1. He has been in custody since 26 October 2018, and it is common ground that a term of imprisonment is required and it is unnecessary for me to consider any alternatives.
2. He was also subject to a section 12 bond at the time of the offending. It is common ground that the bond should be revoked and a fixed term of imprisonment imposed with a modest degree of accumulation on the principal sentence.
3. The written submissions by Mr Brock of counsel, acknowledged the inherent seriousness of each offence as being reflected in the maximum penalty, but points out that the Henry guideline (R v Henry (1999) 46 NSWLR 346) has limited application given the different circumstances of the offending and the complex personal history of Mr Brown. He also helpfully set out the salient facts and matters going to objective seriousness and the aggravating and mitigating factors in a table included in his submissions.

Facts

1. The first offence (seq 001) occurred on 12 October 2018. The offender entered a shop with a co‑offender. He forced the victim into a headlock, pulled her hair and punched her in carrying out the robbery and stole about $1,200. The offending was unsophisticated and short in duration. The bodily harm inflicted was towards the lower end and the objective seriousness is between low and mid-range.
2. The second offence (seq 002) occurred the following day. The offender entered a hotel holding a tyre lever. Two staff members were present. He assaulted one grabbing her around the throat and by the hair while demanding cash. He stole about $300. His physical contact with the victim makes it more serious. Unless otherwise indicated, the aggravating factors and the mitigating factors will be as I have referred to for the first offence. The weapon operated as a threat, but it was not used. The objective seriousness of this offence was below but approaching mid-range.
3. The third offence (seq 003) occurred four days later. The offender entered a liquor store wielding a screwdriver. A single member of staff immediately complied with his demands. About $4,500 was taken, including some cigarettes. There was no explicit threat or use of the weapon. The objective seriousness of this offence was was towards the low range.
4. The fourth offence (seq 004) occurred on 20 October 2018 when he entered another liquor store and stole between $2,000 and $2,500. He struck one staff member to the head and the co-offender struck another staff member several times which resulted in harm requiring medical treatment. The objective seriousness is complicated by the reckless wounding charge (seq 015) which relates to the same event and there is a substantial overlap between the reckless wounding and the robbery in company and I have taken care not to double-count. The reckless wounding was a split lip arising from a number of punches. The robbery was described as mid-range of objective seriousness and I accept that the reckless wounding was towards the lower end of the range for that type of offence.
5. The next offence (seq 005) was on 21 October 2018. He entered a newsagency and assaulted a staff member to access money, $1,130 was stolen, and there was significant harm, being fractures to the ribs, and the ordeal was longer than other instances and the offence was approaching mid-range for s 95 offences..
6. There is a Form 1 matter (seq 001) occurring on that day, which was an opportunistic and senseless break-in by smashing a window in a laundry. He took keys and $300 and an attempted break and enter consisted of trying to manipulate the front door (seq 002).
7. A further two Form 1 matters occurred on 25 October. First (seq 008) an attempted break and enter with intent; he used a pushbike to smash a window and entered the dwelling, but he left without any items. Secondly, a section 97 offence where he ran into a bottle shop with a screwdriver and demanded a staff member assist with the safe and to get onto the floor. The safe was not ultimately accessed and $500 was taken (seq 006) .
8. Sequence 007 is another robbery, armed with an offensive weapon on 26 October. He entered a bottle shop and used a screwdriver to direct a staff member to provide money; $600 was stolen. Again the offending was opportunistic and lacking sophistication and he was apologising to a staff member.
9. The final Form 1 matter (seq 014) occurred on 26 October and it was shortly before the sequence 007 robbery offence. He had entered Domino's Pizza store and walked out with an eBike.
10. The only co-offender listed is Sharon Murphy in relation to sequence 001, the aggravated robbery on 12 October. She was sentenced by Flannery DCJ to an Intensive Correction Order for 14 months. Quite properly, there has been no submission as to parity on that issue.
11. The aggravating factors common in many of the charges are that he had prior convictions, subject to Veen v The Queen (No 2) (1988) 164 CLR 465, the offence were committed in company, and he was on conditional liberty.
12. The plea and the expressions of remorse, that I accept, are noted as mitigating factors. The offending was not part of an organised criminal activity activity and he is relevantly under a disability, to which I will turn.
13. As I said, his custodial record is lengthy. His first time in custody was in 1997 for two months. There was a lengthy sentence of seven years with a three year non-parole period in 1998 for robbery in company. Further robbery offences and dishonesty offences led to a term of imprisonment of five year and six months with a non-parole period of three months, commencing in 2007. Another term of imprisonment of four years with a non-parole period of two years for aggravated break and enter in 2012. There was a breach of parole and he served the balance of the sentence. There were further shorter fixed terms, the last being in April 2014.
14. The offender did not give evidence on the sentence proceedings but he relies upon an affidavit sworn 20 February 2020 which was not the subject of challenge. Evidence was given by his sister, Lillian Miles, who graphically described the difficult upbringing of both herself and her brother in an area of Redfern known as "The Block". She described growing up during the heroin influx that swept through The Block, and a lot of people that were caught up in it, including herself. She went to gaol on several occasions until the age of 26 or 27 but described how she had broken free of that cycle of drug use and offending, and is now gainfully employed as an officer manager at Koori Radio.
15. She described a very violent pattern of behaviour by her father against her brothers, and she described the lack of community organisations and support in their younger days, unlike the better levels of support that are currently available to them.
16. There is a significant quantity of unchallenged subjective material relied upon by Mr Brown, a lengthy report of a clinical neuropsychologist, Dr Melissa Hughes which, in summary, suggested that he had an impoverished childhood with exposure to violence, crime and drugs from a young age. He partook in significantly harmful levels of substances from at least 12 years of age. He experienced learning difficulties. His engagement and interaction style was passive and his performance on testing indicated largely impaired cognitive function, with his performance in most tests placing him in extremely low to borderline range consistent with an intellectual disability. His intellectual disability is permanent and not treatable, but curbing of his substance usage will prevent further decline in cognitive functioning and there may be some small improvement in some aspects of functioning, if any are attributable to long-term substance use. She said it is also possible to improve his psycho-social situation and curb offending patterns by providing appropriate treatment for his criminogenic needs and supports to his general wellbeing. He would certainly benefit from treatment programs while in custody.
17. In a history given to a psychiatrist, Dr Dayalan, Mr Brown said that he had been injecting about 3 points of crystal methamphetamine and 5 points of heroin on a daily basis around the time of the offending, and he had not been taking prescribed psychiatric medication. He had no recall of the details of his mental state at the time. He was unsure if he had been feeling paranoid but he said he continued to experience hallucinations and he said "the voices were helping me to commit crime so I could get money to buy ice".
18. Dr Dayalan said there were reasonable grounds to believe that he was experiencing some psychotic symptoms at the time of the offending, and he should participate in a drug rehabilitation program and provide regular screening samples.
19. He had first been seen at the Aboriginal Medical Service by the consultant psychiatrist in 2015 and had a further five consultations over the period until September 2018. He was diagnosed with panic and agoraphobia, generalised anxiety disorder, social anxiety disorder, complex post-traumatic stress disorder and poly substance abuse in remission for which he was to be taking Fluoxetene daily and receiving counselling. He had successfully applied several strategies in dealing with his anxiety states and paranoia. It is significant to note that this report was prepared only a few weeks before the offending.
20. The psychiatrist said that, "Mr Brown has spent a great deal of his life in prison and is currently doing extremely well in his attempts to overcome the effects of a difficult and traumatic early life. He has failed to attend appointments on some occasions. When he has attended he has engaged very well and has been very positive about receiving help, which I believe he has benefited from. I believe Mr Brown is very genuine in his attempts to address his issues. He is a committed father and is thoughtful of his children's needs."
21. The sad fact is that he ran well and truly off the rails in the next few weeks and committed this series of offences.
22. There is a further note from a drug and alcohol worker at the Aboriginal Medical Service in April 2018, noting that he had commenced the opiate treatment program in September 2017, he was attending daily and rarely missed doses. He was very committed to the program, he was honest, reliable and trustworthy. He was considered one of the most compliant clients on the program and never argued or made excuses when asked to provide a urine drug screen.
23. He commenced on Suboxone treatment of 6 milligrams a day and his current dose as at April 2018 was 8 milligrams a day, which has been stable since September 2017.
24. As I have indicated, Mr Brown's affidavit sets out in some vivid detail the very difficult circumstances under which he grew up in the Redfern area. He said most of the group of people that he hung out with starting at about 12 ended up in gaol at some stage. He started trying to go out every night and his father would try and ground him, but he could not control him. He was smoking heroin by the time he was 13 or 14, and begun injecting it after his first time in gaol. His uncle, who he used to stay with, had drug and alcohol problems and his uncle showed him how to steal cars when he 13 years old. He had never been taken out of the family home by DOCS, but he was on the street since he was about 12 or 13. All of his mates were of the same type, they were not going to school and they would just hang out on the streets and couch surfing where they could. His parents gave up on him. He used to sleep at his mate's grandmother's place. He was allowed to come home and visit, but if he was affected by drugs or alcohol, which was pretty much all the time, he was not allowed into the family home. He saw a lot of violence on The Block. When he was 15 he was stabbed in the neck with a bottle and ended up getting 52 stitches. He was hit on the head with an iron bar when he 16. He describes the lengthy periods in gaol and how he has been since he went into custody in 2018.
25. He confirms, as the medical records show, that he was clean from using and on the Buprenorphine program in 2017 and 2018 up until October. This is the first time that he has been on the program since in custody. He says "I reckon if I get my medication right I'll be okay". He understands what a Compulsory Treatment Order (CTO) and thinks it would be helpful. Now that he is on the injection program he is happy to keep going with it when he gets out.
26. He has been in contact with his young daughter, who has been in Court during these proceedings. He has a close relationship with her and her mother comes and sees him while in prison.
27. I take account, as I have indicated, of his sister's evidence which was supported by an affidavit, and the affidavit of Mavonia Welsh, his partner. Ms Welsh describes her relationship with him and the fact that they have two children of their own. She also says that he tried really hard last time he was out, and that he was working hard with medical services and tried to get into rehabilitation. She was doing shift work and he would make sure that he was around to help with the kids, but he would go off to Waterloo and get sucked into drugs. She has decided that she is going to move to Tweed Heads and she has made arrangements to go and live in the area where her family lives. She also says when he is off drugs and taking his medication he does well. She realised that he had a mental illness when their eldest daughter was about two years old. She said if he uses drugs she will not have him around.
28. Mr Brock took me to some research on the topic of interrupted school attendance and suspension, pointing out that suspensions are experienced at a higher rate by students with cognitive or learning impairments, particularly where there are associated behavioural issues.
29. I was also taken to the judgment of Rothman J in Kentwell v R (No 2) [2015] NSWCCA 96, where his Honour pointed out: "… that for mental illness to be an ameliorating factor in sentence, the illness need not be causative or connected to the commission of the offences; it need only be relevant to moral culpability or such as to diminish the appropriateness of the offender as a vehicle for general deterrence or denunciation."
30. Further his Honour referred to a number of studies considered in R v Lewis [2014] NSWSC 1127 at [89], which disclosed, as observed by Rothman J somewhat counter intuitively, "[T]hat social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs."
31. So a person such as the appellant in that case, who is not relevantly dissimilar from Mr Brown, who has suffered extreme social exclusion, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made.
32. The Crown accepted, as it quite properly should, that the Bugmy v The Queen (2013) 249 CLR 571 principles apply, that not being a matter of discretion, and that the offender's moral culpability for this series of offending is thereby limited to an extent. It is agreed that the evidence shows that his prospects of rehabilitation may best be described as guarded. The Crown properly points to the need to balance the prospects of the rehabilitation with the need for community protection from a man, such as this, who may once again fall into drug use and commit this type of offence if not strictly supervised and adherent to treatment. The Crown acknowledges that the Henry guideline is simply that and not a tramline. The Crown further did not challenge the proposition that there is an element of De La Rosa (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1) reduction of moral culpability applicable here. Ultimately the Crown acknowledged the very difficult sentencing task posed by the serious offending balanced against the impelling subjective circumstances. It is clear that there should be a degree of accumulation in the sentences to be imposed.
33. I accept Mr Brock's submission that general and specific deterrence have less prominence in the sentencing process in light of the De La Rosa and Bugmy factors to which reference has been made. He also correctly acknowledges that De La Rosa concerns can warrant increased concern for the protection of the community, as I have indicated. But he says correctly that the offender's circumstances are not hopeless and there is some evidence of his capacity to respond. In spite of his background he has a supportive partner and has demonstrated a capacity to engage pro-socially with his family and, indeed, with the community, because his partner says that he was working for a short time prior to this offending. There is consistent record of success with continued engagement with the Aboriginal Medical Service and his level of insight by indicating his desire to access the Compulsory Drug Treatment Program. He acknowledges the need to be supervised.
34. I will, as requested, recommend that the reports tendered on sentence be provided to Corrective Services and Justice Health for planning of treatment during custody and on parole.
35. Mr Brock concludes by reminding me that there are legitimate considerations for a degree of concurrency, bearing in mind questions of totality.
36. The orders that I make are as follows: 1. The offender is convicted of each offence. 2. The indicative sentences are: 1. 001, taking into account the Form 1 matters (H68943522: 006, 008, 014; H70702879: 001, 002): 3 years, 6 months 2. 002: 3 years 3. 003: 3 years 4. 004: 3 years 5. 005: 3 years 6. 007: 3 years 7. 015: 2 years, 3 month; NPP 16 months 1. I impose an aggregate sentence of imprisonment of 5 years, 6 months, to commence on 26 November 2018. 2. I impose a non-parole period of 3 years 4 months, expiring on 25 March 2022 3. I find special circumstances. BREACH OF BOND (s 12 suspended sentence): H63948423/008 Supply prohibited drugs - ongoing basis 1. The bond is revoked. 2. I impose 12 months imprisonment to commence on 26 October 2018. RECOMMENDATIONS 1. I recommend that following reports from the Defence Bundle be provided to Justice Health and Corrective Services: 1. Neuropsychological report pf Dr Melissa Hughes dated 13 January 2020 2. Psychiatric report of Dr Sathish Dayalan dated 10 April 2019 3. Records from Aboriginal Medical Services relating to Mr Brown's engagement. 1. I recommend referral to the Compulsory Drug Treatment Program. Note - These extempore remarks were revised without access to the court file.

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