Sentence: Aboriginalityrobbery whilst armed with offensive weaponmatters on a Form 1offences on parolespecial circumstancespreparation for release to paroledrug addictionphysiological reaction to drugsmental disability' general and person deterrencemoral culpability
Judgment (2 paragraphs)
[1]
sentence
HIS HONOUR: Leigh Wallace Cooper appears today for sentence in relation to four principal offences, but there are a large number of other offences to be taken into account. Each of the four principal offences is an offence of robbery whilst armed with an offensive weapon which in each instance pursuant to s 97 Crimes Act 1900 carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period for each of those offences.
The first two principal offences, that is, sequences 3 and 4 in the relevant H series, were offences committed on 4 and 7 December 2016. The second two offences of robbery with an offensive weapon were committed by the prisoner on 18 and 19 December 2016.
The first robbery whilst armed with an offensive weapon has matters attached on a Form 1, that being three offences committed at or about the time of that first offence on 4 December 2016. In relation to the third robbery whilst armed with an offensive weapon committed on 18 December 2016, there are four matters on a Form 1 committed between 16 and 19 December 2016. It should be pointed out, and I will deal with this in greater detail later, that in the first Form 1 to which I referred, there are two attempts at robbery whilst armed with an offensive weapon to be taken into account. On the second Form 1 there is another attempt to rob property of the Regent Hotel whilst armed with an offensive weapon to be taken into account. Therefore, it can be seen that both the principal offences and the matters to be taken into account are quite serious offences.
The prisoner was relevantly on parole at the time of the commission of all the offences, in fact, had only been released to parole less than a month before the first offence was committed. He had, at that particular time as I understand it on his release to parole, a balance of sentence of one year nine months to complete his parole period without further controversy.
The prisoner was released to parole as a consequence of a sentence imposed by her Honour Judge Flannery on 7 March 2015. In relation to the sentence imposed by her Honour on that occasion which was an aggregate sentence, the prisoner was sentenced to four charges of robbery whilst armed with an offensive weapon, a distressing similarity to the situation we have here. There were a number of matters, again, to be taken into account on two Forms 1 and they were, as are the matters with which I am concerned, related to the substantive or principal offences that I am required, and Her Honour was required, to impose sentences.
Each of the pleas of guilty were entered at the first reasonable opportunity so the prisoner's sentences today reflect a 25% discount for the utilitarian benefit of the pleas of guilty. The first robbery committed by the prisoner in time, that is, the sequence 3 offence, was committed on 4 December 2016 as I earlier said. It was not, however, the first offence in time by the prisoner. The prisoner was, as revealed on one of the Forms 1, guilty of and has admitted his guilt to driving a motor vehicle without the consent of the owner, being a white Audi S3. This was the vehicle that the prisoner used to commit the offences of robbery and attempted robbery or armed robbery, again, 4 and 7 December 2016.
The first offence in time, again on a Form 1 and not a substantive or principal offence, was an attempted armed robbery on 4 December 2016. I should point out, the prisoner at the relevant time was 30 years of age being born on 29 January 1986. The details of that offence are set out in the facts. It involved the prisoner being disguised, carrying a backpack, making demands for money using the force of his body to break through to the counter area and placing fear in the mind of the person working at the petrol station. There was another attempt at robbery at the same location in that when the prisoner could not successfully steal anything from the service station, he attempted to steal the property of a customer who had, unfortunately, found his way into the petrol station at the time of the robbery. The prisoner made verbal threats to the victim. But to be fair to the victim, he stood up for himself. In fact, the prisoner is quoted as saying to that victim, "Fuck you, give me the wallet." And Mr Cao responded to the prisoner by saying, "Fuck you, go away." In fairness to the prisoner he then left the store without further ado.
The first principal offence, the sequence 3 offence, is the successful robbery whilst armed with an offensive weapon, this occurred at a Budget Petroleum Petrol Station at Bexley Road Campsie. The prisoner made a threat to shoot the owner of the business, who was inside the store. The prisoner was armed with a hammer but I accept he had no firearm. The prisoner gained access to the counter area by the open security door, attempted to break open the cash register with his hammer but was unsuccessful, the owner having fled, no doubt, for fear of his safety. The prisoner located a second cash register and removed $300 before running from the store.
The next substantive robbery whilst armed, which is the sequence 4 offence and a principal offence, was committed on 7 December 2016, three days after the offence that I last referred to. It was at a convenience store in Leichhardt. The prisoner was carrying a black crowbar. Again, there was an attendant behind the counter serving a customer. It was in the early hours of the morning as the other earlier offences were. The prisoner carried the crowbar to the counter area and the prisoner wedged the crowbar between the glass door and the doorframe of the counter area to force entry. Complying with what he was told to do, the employee opened the automatic door and allowed the prisoner entry. He entered the area, removed a $50 note from the worker's possession, ordered the worker to open the cash register. The prisoner took two mobile phones belonging to the victim from underneath the counter and took $350 from the cash register leaving the store.
The next matter in time is a matter on a Form 1 of taking and driving a red VW Golf Hatchback without the consent of the owner on 16 December 2016. This was the car the prisoner used to commit various offences between 18 December 2016 and 19 December 2016. On a Form 1 is an attempt to rob the Regent Hotel at Kingsford. On this occasion, the prisoner was in company with two people that are not identified. Thus, there is an aggravating feature in relation to this offence, although it appears on a Form 1,of the prisoner being in company. I am familiar with the Regent Hotel in Kingsford. It is quite a large hotel. Fortunately or unfortunately as the case may be, the prisoner and his friends endeavoured to rob the staff of the hotel at a time when the cash registers and the like had been emptied.
The prisoner was armed with a crowbar. He attempted to smash his way through the locked side entry doors of the hotel. One of the other offenders was armed with a claw hammer and the other carried a backpack and was armed with a large screwdriver or "pry" bar. The offenders kicked their way through the front entry door it having been locked. They threatened staff and patrons who were still there, some of whom fled the hotel in fear. The prisoner and his colleagues sought to jump the counter at the hotel, force open the cash register drawers. At one point an employee of the hotel, Shane McMahon was struck with an object. It is not suggested that this prisoner struck the victim and there is nothing being pleaded in the matter to identify a circumstance of aggravation on that fact. As I said nothing could be found of value and the prisoner and his colleagues left the scene.
The next offence is the sequence 7 offence, the principal offence. This occurred at a Coles Express petrol station in the area of Randwick near Frenchman and Clovelly Roads. Again the victim was an employee. He was alone at 5.24am. The prisoner was in company with two other offenders, one had a hammer. The prisoner got out of the driver's seat, he was wearing a blue tracksuit jumper, yellow and black gloves and grey face covering. The victim was instructed to open the door which leads behind the counter. The person armed with a hammer hit the victim on the head with a hammer for no good reason. There was no point in doing that and it could have caused him serious injury, but as it turned out there is no injury reported.
The prisoner and other offenders ransacked the counter area, opened the cash drawers which only contained a small amount of cash. They instructed the employee to open a large safe which he did. They stole a further quantity of cash and filled a cardboard box with cartons of cigarettes. The total amount of money stolen during the robbery was just short of $300 and $3000 worth of cigarettes were stolen. A further offence of robbery whilst armed with an offensive weapon was committed by the prisoner.
On 19 December, again in the early hours of the morning in Tempe, on this occasion the prisoner was alone. He was carrying a claw hammer with a red and black handle in his left hand. He threatened the store attendant demanding money. The victim opened the register and gave the prisoner between $200 and $300. When the prisoner insisted that there was more money there he was given a further $200 to $300. He walked to the left side of the store and began bashing on the door that gave access to the area behind the counter calling out "open it, open it". The prisoner eventually entered the counter area and began searching through cupboards. At one point he held the hammer over his shoulder and standing close to the victim, who obviously was defenceless, and said "where are the keys to the office?". The victim said "I'm not sure where they are". The prisoner said, "Where is the switch to the cameras?". The victim said "The cameras are not of my control". The prisoner left. He had stolen $560. At the relevant time of driving the red VW golf the prisoner was disqualified from holding a licence to drive and that matter is on a Form 1. He was pursued by police who were attending to investigate the report of the robbery at Tempe. The prisoner then drove in an erratic manner akin to driving in a manner dangerous, although he was not specifically charged with that matter. He drove through a red light. There followed a police pursuit. The police activated their lights and sirens and signalled the prisoner to pull over. He was pursued to a certain point where he drove into a street which was a dead end. He slowed the vehicle and jumped out of it as it was still moving, although it only collided softly with the fence as it is described. He was further pursued by police and arrested in Alexandria. He was determined obviously not to be arrested. But he was arrested.
Items were found that are related to the commission of offences, a hammer, a crowbar, inside the boot of the golf were two cash register drawers, a 50 pack of cigarette lighters, a large amount of cigarette and tobacco cartons, a white cardboard box similar to that stolen from the Coles Express petrol station the previous night. He was taken to the police station. He declined to be interviewed or shed on any light on the matter. So it can be seen the prisoner, over a relatively short period of time in basically two different discrete periods, was involved in committing a large number of offences. Some in company, as I have identified, which is an aggravating factor, not pleaded, but an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter I will refer to as "the Act". And of course robbing people on occasions in the early hours of the morning when they were alone, and clearly vulnerable as the facts make it clear.
As I understand it, from the custody record that has been provided to the court, the prisoner was released to parole, or was eligible for release to parole on 6 November 2016. His parole was eventually revoked in January 2017 but the revocation was backdated to 19 December 2016. The balance of parole as I mentioned earlier was one year and nine months. The Crown prepared very detailed written submissions only on the issue of the relevance of the commission of offences while subject to conditional liberty. That is an aggravating factor of course under s 21A(2) and clearly being on parole for armed robbery matters itself reflects in the range of conduct that might amount to breaches of conditional liberty, a serious example of that particular aggravation. The Crown submitted initially by reference to the authorities that I should date the sentence from the expiry of the balance of parole. The Crown and I had a friendly and constructive discussion in relation to this matter and I do not want to ascribe to the Crown some concession that he did not make. I have no transcript of yesterday's proceedings. But one matter we did discuss, and which was acknowledged by the Crown was the observation made by Justice Simpson in a judgment cited by the Crown of Callaghan v R (2005) 160 ACrimR 145 in which her Honour pointed out in terms of commencing a sentence, or sentences for offences committed whilst on parole, where the parole is revoked, that the court should be very careful in fixing a commencement date that does not amount to a "double dipping" on the penalty to be imposed upon the prisoner as an aggravating factor pursuant to s 21A(2). It is a factor that may warrant an increase upon what might otherwise be the appropriate sentence taking all other considerations into account both mitigating and otherwise.
The imposition of a sentence that expires at the end of the balance of parole may lead to what her Honour referred to as "double dipping" in respect of this matter. I form the view that it would be unfair to commence the sentence at the end of the expiry of the balance of parole and I have chosen a date as I mentioned earlier part way through that balance of parole which has now expired.
I might indicate from the outset I had made a finding that there should be an adjustment of the relationship of the non-parole period to be fixed with the balance of the sentence. So I have thus made a finding of "special circumstances" pursuant to s 44 of the Act. I am very mindful of the fact that the prisoner has committed these offences shortly after his release to parole, and these offences involve a distressing repetition of the conduct that led to the sentences imposed by her Honour Judge Flannery. But there are a number of important aspects of the background of the prisoner that need to be taken into account that in my view need to be recognised in the consideration of a number of issues. Not just the total sentence to be served, but also the minimum period of time that the prisoner should be in custody.
It is clear to me the prisoner needs a great deal of assistance on his release to the community, which to my mind from what I understand, was not provided to him on his last release. For example, one of the matters that the prisoner has raised with the psychologist as part of the history he gave, was the fact that when he was released to parole he was very keen to undertake some form of program to avoid the use of opiates or to reduce the desire for the use of opiates. He has been addicted to prohibited drugs and particularly heroin for an extensive period of time. The problem was that he did not have a Medicare card and thus he had difficulties accessing the medical system, particularly through the Aboriginal Mental Health Service, to obtain the opportunity to undertake some program that might be available to assist him to avoid the use of opiates. It seems to me that when a person is released to parole, particularly having served a substantial period of time already in custody, that preparations for that person's release should include giving that person the tools to be able to cope with community living. The tools required for community living require access to funds to pay for rent, to pay for transport, access to the means of obtaining medical assistance.
The prisoner has an extensive criminal history. Again, it and the opiate dependency of the prisoner are very much tied up with an important matter that I am going to come to from the material available elsewhere in the case.
He first appeared in the Children's Court in 2000 when, I would calculate, he was 14 years of age, and has a lengthy history of offences relating to the misuse of motor vehicles, minor dishonesty and use of implements to gain access to conveyances during the period of time that he was a juvenile.
As I understand it, the prisoner was first imprisoned back in 2004 in relation to a break and enter and steal offence and other matters for a period of six months. In 2004 he was further convicted in relation to a range of taking of vehicles without consent and driving offences related thereto for which he received a sentence of 12 months imprisonment with a non-parole period of five months.
He was convicted again in the Sydney District Court in May 2006 for receiving property that was stolen, sentenced to a period of 15 months imprisonment with a non-parole period of six months. He was shortly afterwards, presumably while serving that sentence, also sentenced to a number of other terms of imprisonment in relation to the misuse of motor vehicles. Those sentences would appear to have been partly cumulative upon the sentences imposed in the District Court.
He did have a finding of guilt, I should point out, in relation to an offence of steal from a person as a 14 year old. He was convicted of escaping from lawful custody at the Bourke District Court in June 2009 and sentenced to a period of 12 months imprisonment. He has some convictions for offences of violence, including a conviction in 2008 at the Local Court for assault occasioning actual bodily harm for which he was sentenced to 16 months imprisonment with a non-parole period of 12 months. That having been said, the first time he was charged substantively as an adult with offences of the type with which I am concerned, particularly the armed robbery offences, was when he was dealt with by her Honour Judge Flannery and sentenced in the manner I earlier outlined. He did have a finding of guilt for armed robbery in company in the Children's Court, an offence committed in 1999 when I would calculate he was only 13 years of age and I propose to ignore that matter.
Thus the situation is, given the fact that he has a number of other matters dealt with in the Children's Court or the Local Court that I need not dwell upon, whilst his criminal history does not entitle him to any special leniency, it is not an aggravating factor in this sentencing exercise under s 21A(2). The Crown, on the discussion of that issue, conceded that in the course of submissions that were made. But again, the criminal history of the prisoner reflects something of the, if I could call it, bigger picture relating to this particular prisoner.
The bigger picture is this. The prisoner is a person who comes originally from northern Victoria but moved to the Redfern area when he was aged six. He is an indigenous man and he is, like many indigenous people in our community, a person who has grown up with considerable dysfunction and disadvantage in his life. This has affected him and his education. It has affected him in his educational opportunity and his economic opportunities. It has also affected him directly in relation to his history of substance abuse. Living in the area in which he lived he was introduced to a great deal of violence as a child.
He turned to the use of prohibited drugs, first using heroin at the age of 15. He has never undertaken any inpatient detoxification or rehabilitation, but as I said, he was anxious on his last release to pursue some chemical or other means of avoiding the use of opiates which can include heroin. He has been physically dependent it would seem for a large number of years and this has contributed to his offending history, and has contributed to the offending to which I am concerned. He was on methadone at the age of 22, but whilst he abstinent whilst on methadone, it is a program that he did not have access to at the time of his last release.
The psychologist's report, which is very dependent upon the history given by the prisoner, and I appreciate what has been said about the circumspection that should be exercised in approaching such matters particularly where the prisoner does not give evidence, notes various matters relating to the effect of heroin upon individuals. The psychologist, from the learning, that is footnoted in her report, observes that heroin's effect upon the brain causes both endorphin and enkephalin receptor sites to eventually cease working. It has the effect that the individual must continue to introduce what are called "exogenous sources of opiates into the body" to stave off withdrawal symptoms. This causes a downward spiralling effect of addiction and what is called "narcotic hunger".
The psychological assessment of the prisoner led the psychologist to conclude that the prisoner had evidence of a 'childhood onset conduct disorder'.
The prisoner reflected, in the testing administered, a history of what the psychologist calls developmental trauma although I do note the detail of that trauma is not discussed. The prisoner gave what would appear to be a convincing account of various symptoms of nightmares, vigilance, fears and other signs of anxiety much linked to his heroin abuse but also providing the prisoner with a form of "chemical disassociation so that the prisoner could separate himself from memories of abuse".
The opinion of the psychologist was that the prisoner had symptoms consistent with a post-traumatic stress disorder against a background of what the psychologist called "complex trauma". The psychologist undertook further testing of the prisoner to identify aspects of his personality and the like to assist in assessing his psycho-pathology. She also expressed opinions about the relationship of post-traumatic stress disorder, or PTSD, to the conduct of the prisoner as revealed in his criminal history and the facts of this case.
In relation to that aspect of the matter, she came to the view that the prisoner's condition reflected the fact that the prisoner's capacity to function without acting impulsively was restricted. She noted that recent research has shown that individuals who have experienced substantial trauma continually experience what she describes as the "there" and have great difficulty in living in the present moment. As a result of this, the individual continually experiences a disturbance to their decision-making processes, heightened levels of arousal and fear response and interference with their mood. She also said that there is a difference in the way the brain of a traumatised person processes their environment and that these people suffering from symptoms of post-traumatic stress disorder often seek what could be called the "road of immediate relief". In the prisoner's case, drug abuse and then drug dependency.
She observed from her researches:
"The left hemisphere of the brain is involved with routine behaviour ... the right hemisphere is involved with novelty and sees everything in context or the relationships between things. Individuals who have experienced developmental trauma tend to operate from the left hemisphere of the brain which has longer dopamine pathways; which is related to addiction which is ultimately a highly practiced behaviour. The difficulty is that the left hemisphere does not see new developments or new ways of looking at problems and therefore the traumatised individual becomes stuck in their view of their problems and is unable to develop new ways of looking at their problems. For individuals with a trauma background (such as this prisoner) this informs the specific treatment they should undertake ...".
She went on to say:
"The role of heroin in Mr Cooper's life is that it has allowed him to disassociate himself from his past memories of abuse. In other words, he operates from a two-one pathway in the brain or from the instinctual brain to the survival brain. He has always returned to heroin because it has allowed him 'peace' and some space from memories of the past that won't go away. The problem is that he continues to operate from the left hemisphere which means that he recalls the same order biographical story over and over with no escape and no other way of looking at the problem hence the cycle of trauma and drug abuse repeats in the person's life."
She also has some comments to make about aspects of the prisoner's personality referring to a condition she calls an intermittent explosive disorder. She undertook a personality assessment and it reflected in the scores that she reported in her report (at p 13), a high risk of recidivism and particularly significant scores in relation to matters such as anti-social personality problems, criminal tendencies, conduct problems, alcohol and drug abuse, anti social associates and anger.
She concluded that with his long history of heroin dependency, a drug of choice exclusively, it has been noted that the only treatment Mr Cooper has undertaken for heroin dependency was the methadone maintenance program which was initiated whilst he was in custody but was unable to continue the program on his release. She said:
"The relationship between heroin dependency and underlying trauma has been discussed at length. As noted, Mr Cooper has memory blanks for significant periods of time under the age of ten".
She indicated that there was a real need for counselling and professional assistance for the prisoner, which apparently he has not had the opportunity to receive, and hence the cycle of offending, albeit escalating in recent years.
I referred to the Aboriginality of the prisoner. I do not seek in any way to embarrass him. But as his learned counsel pointed out in his very helpful written submissions, the Aboriginality of a person and particularly in circumstances of dysfunction and deprivation in his upbringing or her upbringing has recourse to consideration of those principles that were laid down by the High Court in Bugmy v R [2013] HCA 37. I particularly refer to [43]-[44]. It was noted by the High Court, albeit in a different context that:
"A background of dysfunction may compromise the person's capacity to mature and learn from experience. It is a feature of a person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending".
Further, the High Court went on to say:
"Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to the offender's deprived background in every sentencing decision. However, this is not to suggest as the appellant's submissions were apt to do that an offender's deprived background has the same mitigatory relevance for all of the purposes of sentence. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse (for example) may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced".
This is not that case. But it is the fact that the relevance of the prisoner's background is to identify, from what I understand from the psychological report, his susceptibility to the abuse of heroin which has contributed to the commission of these offences. Because I accept the essential submission of his counsel that the crimes that were committed were primarily committed to obtain funds for the purposes of financing a heroin addiction from which he really had not recovered even during the time that he was in custody.
I note that the judgment of the High Court in Bugmy, in part of the passage I just read, footnotes the decision of the High Court in Veen v R (No 2) [1988] HCA 164 CLR 465, particularly the majority observation at p 476, that the exercise of the sentencing discretion was difficult because the purposes of sentencing, of which the High Court spoke of four, there now being seven in s 3A of the Act, required consideration of matters that were like signposts that sometimes pointed in opposite directions. And, of course, Mr Veen was an Aboriginal man himself, with a much damaged personality arising out of the unfortunate circumstances of his background.
It is that observation of the High Court that leads me to the judgment that was cited in the written submissions of learned counsel for the prisoner, that is, Kentwell v R (No 2) [2015] NSWCCA 96. Justice Rothman gave the leading judgment for the Court although the learned Chief Justice formulated the relevant orders. In Rothman J's judgment accepted by the Chief Justice and the other Judge who sat, the learned Justice Rothman in resentencing the offender, albeit as it turned out to a substantial term of imprisonment, reflected upon the decision of Fernando (1992) 72 A Crim R 58, Wood Js judgment at first instance, particularly, at pp 62-63, the judgment of Kennedy [2010] NSWCCA 260 and, of course, the judgment of Bugmy, part of which I have cited. He also reflected upon a judgment of his own, as I remember in a first instance judgment in the sentencing of an Aboriginal man for manslaughter or murder, that is the decision of Lewis [2014] NSWSC 1127. His Honour pointed out that, as he had noted in Lewis, that overseas studies of substance disclose that one of the features of the circumstances of many indigenous people is their "social exclusion" which can create high levels of aggression, self-defeating behaviour and reduce pro-social contributions to society as a whole. Thus leading to, for example, as is the case here, heroin addiction and related criminal activity. He went on to say,
"Circumstances such as that are akin to a systematic background of deprivation and are a background of a kind that they compromise the person's capacity to mature and to learn from experience (citing Bugmy).
As a consequence, this background of social exclusion will on the studies to which detailed reference was made in Lewis, explain "an offender's recourse to violence such that the offender's moral culpability for the inability to control that impulse may be substantially reduced." at [93].
He noted that this aspect of the matter in conjunction with a consideration of supposed "Bugmy principles" can reflect upon the moral culpability of an offender; it can reflect upon the weight to be given to general deterrence in circumstances where otherwise general deterrence would have paramount importance in the sentencing exercise. In that particular case, where an offender had been convicted of very serious offences including offences of sexual assault that the Court still imposed a sentence of 11 years imprisonment, but substantially decreased the sentence that had been imposed at first instance.
The relevance of these matters by reference to principle and the evidence relating to this prisoner, to my mind, come into sharper focus when one considers the guideline judgment of Henry [1999] NSWCCA 111. Not just for the purposes, as submitted to me, as providing some guideline as to appropriate sentence for an armed robbery of particular character, but also in consideration of the very important observations made by Wood CJ at CL at [273]. The majority of the Court agreed with his Honour's analysis although, of course, Chief Justice Spigelman gave the leading judgment as to the identification of an appropriate guideline and the various matters that were required to be taken into account. Wood J reflected upon the fact that a drug addiction was not a mitigating factor. But he also said,
"Drug addiction may be relevant to the sentencing exercise for a number of reasons. It may not act as an excuse or a matter of mitigation but the fact that an offence or offences of this type may be motivated by need for drugs may be taken into account in assessing either the impulsivity of the offending and the extend of planning, the existence or non-existence of any alternative reason that may have operated an aggravation of the offence" (which does not apply here), "and also the state of mind or capacity of the offender to exercise judgment."
Now, in this particular, of course, the capacity of the prisoner to exercise judgment appears to be relatively complete given the way in which the offences were committed. But each of the offences does have some element of desperation consistent with the pressing need over which the prisoner had no control to obtain money to purchase heroin. He went on to make the important points in respect of the relevance of heroin addiction to the subjective circumstances of an offender that, the existence of such an addiction may impact upon the prospects recidivism and the capacity of a prisoner to rehabilitate himself. It was important to identify where the addiction was not a matter of personal choice, but was attributable to some event for which the prisoner was not primarily responsible. Wood J gave some examples of that. Also it was relevant to consideration of whether the prisoner could be judged to be "at the crossroads", as said in the South Australian decision of Osenkowski.
What I think is particularly pertinent in this particular sentencing exercise to the issues that arise in a subjective sense, particularly, in consideration of the reasons for the prisoner's dependency upon heroin being in my view directly related to the circumstances of his upbringing, is the fact that this is an example of a person with an addiction that could not be reasonably identified as a matter of "personal choice". I appreciate Chief Justice Spigelman in the same judgment made some observations about drug addiction being a matter of "personal choice", a matter with which Simpson J, in my humble view, correctly disagreed. But here I do not need to pull apart the arguments and discussions that relate to that particular matter. As Wood J identified there will be reasons for people being affected by drugs that have nothing to do with personal choice. One of those reasons emerges from, for example, the circumstances of this prisoner in the manner explained by the psychologist. That is, that the use of prohibited drugs and particularly heroin with its particular characteristics is a mechanism for people to address underlying trauma and try to avoid the effects of that trauma in their life. Thus we get, if I can use the expression, coalescence or an overlap of what could be called 'Henry principles' as emerged from that case and what I can call 'Bugmy principles' in the instance of this particular prisoner.
So what does it mean in a practical way though? This is the question I posed to the learned counsel for the prisoner, who, as was the Crown Prosecutor, most helpful. I have concluded in this particular matter - notwithstanding the fact that stripped bare one might be entitled to impose a much greater sentence than I have concluded, particularly given the pressing aggravation of committing these offences so shortly after being released on parole, that the overall circumstances of the prisoner and the context in which the offences were committed, which I accept are as reported to the psychologist, permit some reduction upon the weight to be given to general deterrence and some reduction to the level of moral culpability of the prisoner. I do not believe that greater weight be given to personal deterrence. I do not believe there is a need to then, if I might use the expression, extend the sentence to give that greater weight to personal deterrence.
There is another feature of this matter that also needs to be addressed by reference to high principle, and that is the principle summarised by Justice McClellan in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] and [178]. His Honour identified the principles enunciated in other cases, which he summarised, as being matters that were required to be taken into account if a mental disability illness or condition was identified as causally connected, either directly or indirectly, to the offending. He noted that in the circumstance of an existing condition such as I have identified, there may be lesser weight to be placed on general deterrence. There may of course be greater weight to be placed on specific or personal deterrence as was discussed by Chief Justice Gleeson in Engert. The mental condition might be something that weighs upon the circumstances of a person's custody. The problem, if I could pause for a moment, with Mr Cooper - and it is another matter that I have weighed in determining a reduction of what I would regard as otherwise the appropriate non parole period - is the clear and present institutionalisation of the prisoner. Reflected for example, from the psychological testing and the risk of recidivism.
I am not aware from the information available to me, of the circumstances of the prisoner's custody and the manner in which he serves his sentences. There is no evidence of, if I could call it, "complaint", by the prisoner. Not that I am suggesting that he enjoys being in prison or that this is a place that he would wish to be. But in light of his criminal history it may be the case that he finds some security in custody that he cannot find in the community. Perhaps for him, imprisonment does not hold the same deterrent effect as it might have on other people. But that is no reason to give him a longer sentence. In fact, it is a matter that Justice Wood again, in another decision of Moffitt (1990) 20 NSWLR 114, identified as a relevant matter in determining whether one should make a finding of 'special circumstances' pursuant to s 9 of the repealed Sentencing Act now s 44 Crimes (Sentencing Procedure) Act 1999 to assist somebody already institutionalised, to sever the Gordian Knot of institutionalisation, on their release from custody.
The objective gravity of the offending with which I am concerned does not permit me to fix an inordinately low non parole period, recognising those aggravating factors that I have identified and the totality of the criminality. But as I said, I have taken into account the above matters as warranting an adjustment of the relationship of the non parole period to be balance of sentence. Obviously, totality of criminality has to be considered, in accordance with decisions such as Mill v The Queen (1988) 166 CLR 59, and others that discuss such matters. I am required in accordance with Pearce v The Queen [1998] 194 CLR 610, particularly at [45], to fix an appropriate sentence for each offence and then turn my mind to the totality of the criminality reflected in concurrency and accumulation, or partial accumulation as the case may be. I propose to do that by means of an aggregate sentence, as I indicated from the outset to the prisoner.
The purposes of sentencing I have touched upon in reference to general and personal deterrence. I am required to consider the protection of the community from the offender, to make the prisoner accountable for his actions and denounce his conduct, recognise the harm or threat of harm done to the victims in the appropriate cases, their relevant vulnerability as it is reflected in terms of s 21A (2). But I am still required to promote the rehabilitation of the prisoner. I cannot give him immediate release as a means of, if I could call it, kick starting that process. There is a requirement for the prisoner to spend time in custody. The community would expect nothing more. But the promotion of his rehabilitation is another factor that assists me to ameliorate the effect of that non parole period.
As the submissions of the parties made plain, I am required to have consideration to the guideline in Henry, particularly what was said at [162] [165]. I am also required to have regard to additional factors that might be considered, set out at [170]. On the other hand, I am required to note, as a practical matter, that many of the matters discussed in Henry, as relevant factors in sentencing, were matters identified by the Court of Criminal Appeal before the passing of the Act, to which I earlier referred, and thus a number of the considerations identified in Henry, have to be seen now in terms of the operation of s 21A of the Act. The features of the offending are very similar to a number of the matters set out in [162]. As I have said, there are some circumstances of aggravation or, "additional factors", as they are identified in the guideline judgment. But the guideline judgment is a guideline, not a "tram line". It is there to structure judicial discretion not to dominate it, and of course, there were other aspects of the matter that were not contemplated in the fixing the guideline in Henry. Such as matters as the requirement to fix a discount for the utilitarian benefit of the plea which did not apply at the time of the decision in Henry but arose in a subsequent decision of Thomson and Houlton.
In every case, there is the "justice" of the case, for prisoner and victim. Chief Justice Spigelman himself identified that by adopting what Acting Chief Justice Mahoney had said in Lattouf, an unreported decision of the Court of Criminal Appeal, cited in Henry at [10]. In that judgment, Acting Chief Justice Mahoney said:
"General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason it is in my opinion important that in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it, but there are other interests to which the sentencing process must have regard, these are other objectives which the sentencing process must seek to achieve, paramount amongst these is the achievement of justice in the individual case."
Regrettably I have no power to undo the disadvantage the prisoner has suffered throughout his life. I cannot undo his history of addiction. Ultimately he is the person that has to address these matters in order to achieve reform, so that he can avoid committing further offences.
It is also the case I have pointed out that I have to have regard to all the purposes of sentencing. Thus, the orders that I make which to the prisoner would represent a significant term in custody must have regard to matters that are sometimes not favourable to him. But I do want the prisoner to appreciate that, in making the orders as I have structured them, I have given due weight to everything that has been put by his learned counsel and by the Crown Prosecutor to have the effect, notwithstanding the significance of the breach of parole by the commission of these offences, of reducing what might have otherwise have been an appropriate sentence had the particular features of this prisoner not called for consideration of the matters to which I have referred.
I have the breach of parole report that was prepared at the time of the prisoner's appearance. I take it before the Parole Authority, on his earlier release. This report highlights in my mind what I referred to earlier and that is the awareness of the prisoner to try and take steps to assist himself to avoid offending, but also to find there were obstacles in his way that perhaps should not have been placed there. In fact it is this report now that I turn my attention to, that reports the absence of a Medicare card not just the report of the psychologist.
It was clear that his parole had to be revoked. It is a shame that people when they are released to parole are sometimes, if I might use the expression, doomed or set up to fail. I would hope that before the prisoner is released to parole on the next occasion, without necessarily extending the time that he is in custody, that the prisoner is given the proper mechanism to try and make a go of it.
It is of high significance in my mind in the consideration of the background of addiction that he was able to fall from grace so quickly after his release to parole. I acknowledge the presence of his sister here today and on the last occasion. I appreciate that there is family support there for him. When he was released to parole he went to live with his sister but there is a limitation as to what his family can do. Ultimately the prisoner must endeavour to appreciate the fact that he has control over his future but he also needs professional assistance to achieve the goal of reformation.
For many people, the literature informs us, the achievement of reformation is very much a work in progress that can only be undertaken with proper and complete professional assistance.
I determined that there are "special circumstances" as I have earlier indicated. The prisoner needs an extended period of time to adjust to community living and needs professional assistance in a range of ways both in addressing his heroin dependence, in finding opportunities for employment and perhaps pursuing educational opportunities that have been denied to him to this particular time. He clearly does need intensive assistance, not cursory casual assistance, to make a success of his release to parole on the next occasion.
Thus noting all that has been placed before me, I propose to make the following orders:
You do not need to stand up Mr Cooper, it would be silly you standing up in that room there. Have you heard what I have said?
OFFENDER: Yes.
HIS HONOUR: I am not speaking in any way critical of you. It may be some of the matters I have adverted to you may not understand. Many of them involve considerations of legal principle that judges and lawyers have trouble understanding. But I want you to understand that although I am required to fix a substantial sentence in all the circumstances of the matter, I am required also to give proper weight to the matters that have been advanced very skilfully on your behalf by Mr Marr.
I should point out of course I have had regard to mitigating factors both those that might fairly be said to arise under s 21A(3) of the Act and the other mitigating matters that are not prescribed in statutory form. The plea of guilty is a mitigating factor and I am prepared to accept that the prisoner is contrite and his contrition is a mitigating factor in this matter. I am prepared to accept that the offences themselves were not planned offences and not part of organised crime. They were opportunistic, if that is the correct expression, offences. But it is the case the prisoner clearly was choosing places to rob where he would expect little resistance.
Although I must say, if I might be so bold to say so Mr Cooper, having a long connection with the South East suburbs of Sydney, the Regent Hotel in Kingsford is not a place to try and rob. Because you are likely to run into somebody who is a little bit more formidable than yourself. As it turned out not on this occasion. But it would not be in my view a soft target for an armed robbery on any occasion. I hasten to say that I cannot say that the prisoner is unlikely to reoffend, I cannot say, given recent history the prisoner has good prospects of rehabilitation. But as I have tried to emphasise and hopefully this will be taken up by the Parole Authority, these aspects of the matter will be aided by intensive and professional assistance, the prisoner should not be left to his own devices.
In respect of all the offences for sentence taking into account the matters on the Form 1 pursuant to s 53A of the Crimes (Sentencing Procedure) Act, 1999 I fix an aggregate sentence of eight years, six months imprisonment to commence on 19 November 2017 expiring on 18 May 2026.
I fix an aggregate non-parole period for the sentence of five years, three months to expire on 18 February 2023.
The indicative sentences I would fix are these:
In relation to the first armed robbery as a principal offence sequence 3, taking into account matters on the Form 1, the indicative sentence is five years, six months.
In relation to the sequence 4 offence the indicative sentence is four years.
In relation to the sequence 7 offence taking into account the matters on a Form 1, the indicative sentence is five years, nine months.
In relation to the sequence 1 offence the indicative sentence is four years, six months imprisonment.
In considering the matters on the Form 1 in relationship to the principal offence, I have taken into account the guideline judgment of the Court of Criminal Appeal from 2002 and the observations of the Court of Criminal Appeal about the relevance of matters on a Form 1 ((2002) 56 NSWLR 127, at [18] - [44]). Clearly they require the imposition of a greater sentence for the principal offence had the principal offence stood alone with a somewhat greater weight being required to be given to retribution and punishment subject to the other observations I have made. However the primary role of sentencing is to fix a sentence for the principal offence, not to ascribe a measureable value for the matters on the Form 1.
In relation to the offence of driving whilst disqualified which is on the second Form 1, the prisoner is disqualified from holding a motor vehicle driver's licence for a period of two years accumulative upon his current period of disqualification.
That means Mr Cooper that you should understand I would imagine that you are disqualified for an extended period of time you should not drive any motor vehicles at all. If you drive motor vehicles and you are identified as driving you can expect to be returned to custody. Yes Madam Crown, any matters from you?
[2]
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Decision last updated: 28 February 2019