R v Doidge

District Court of NSW|2019-04-18

SENTENCE - EX tempore revised

HER HONOUR: Damian Duane Doidge, 27 years of age, appears for sentence in relation to one offence of robbery whilst armed with an offensive weapon, pursuant to s 97(1), Crimes Act. The maximum prescribed penalty for that offence is 20 years imprisonment. There is no prescribed standard non‑parole period.
The offender is also to be dealt with for one offence on a s 166 Certificate of self-administer prohibited drug, an offence pursuant to s 12(1), Drug Misuse and Trafficking Act. The relevant drug was heroin. The maximum prescribed penalty for that offence is two years imprisonment and/or a $2,200 fine.
The offender pleaded guilty on 3 July 2018 at the Gosford District Court. That was the first day of trial. Having regard to the timing of the plea, I propose to allow discount on sentence of 10%.
The offender has been in custody since his date of arrest which was 6 June 2017. He has served a period of four months since that time being a balance of parole between 7 June 2017 and 6 October 2017 in circumstances where he was bailed refused for the offence of robbery armed with an offensive weapon. There was no prospect of him re-entering parole. In those circumstances, I propose to exercise my discretion and date today's sentence from 6 June 2017.

Arrest, Interview and Charge

The offender was arrested on 6 June 2017 and participated in a record of interview. During the record of interview he made the following admissions: 1. Approaching the victim and requesting the $30 that she had in her possession; 2. That when the victim declined, grabbing the victim's shopping bag looking for her wallet with all of her groceries subsequently falling on the ground; and 3. Searching the victim's handbag and grabbing the victim's wallet and smokes.
During the record of interview the offender denied producing a pair of scissors. Also during the record of interview the offender admitted using the proceeds of the robbery to purchase heroin on the same day which he injected after purchase. This admission forms the basis of the offence of self-administering a prohibited drug.
The offender was charged on 6 June 2017 and has been in continuous custody since that date.
Those facts clearly disclose very serious objective criminality. To confront a person that is doing nothing other than going about their own business in the manner in which the offender did warrants condign punishment. Both general and specific deterrence are important considerations on sentence. The court must also denounce such conduct and ensure that others are deterred from committing similar offences.

Assessment of Objective Seriousness

In assessing the objective seriousness of the offence I have had regard to the guideline judgment of R v Henry (1999) 46 NSWLR 346. I have taken into account the following factors: 1. The offender was relatively young at the time, being 25 years of age, he has an extensive criminal history. 2. The weapon used was a pair of scissors which, whilst they were described as school scissors, would have been capable of inflicting serious injury. 3. There was a very limited degree of planning in circumstances where the evidence suggests the victim was followed because the offender had seen her obtain cash prior to leaving the store. 4. There was limited actual violence, but a threat of violence in circumstances where the offender pointed the scissors at the victim. 5. A small amount of property was taken, namely $32.40 plus the personal cards of the victim. 6. The plea of guilty was entered in circumstances where there was a strong Crown case because the offender had made extensive submissions during his record of interview with police.
Having regard to those factors, I assess the objective seriousness as falling below the middle of the range. I am satisfied that the offending falls within the guideline set out in R v Henry.
The Crown relied upon two aggravating features, firstly that the offence was committed whilst the offender was on conditional liberty. I accept that that aggravating feature is established in circumstances where the offender was on a number of s 9 bonds imposed on 7 September 2016 and 5 December 2016. The offender is to be dealt with for breaches of those bonds as part of these proceedings.
Secondly, the Crown submitted that the offender has a lengthy record of convictions in Queensland New South Wales and Victoria. Whilst I do not propose to take the offender's record of convictions into account as an aggravating feature I am satisfied that because of the record, retribution deterrence and protection of the community do indicate that a more severe penalty is warranted (see generally Veen v R (No 2) [1998] HCA at 14).

Victim Impact Statement

A victim impact statement was prepared by Wendy Race setting out very clearly the consequences of the offending upon her. The victim indicates that she is now very scared and fearful to leave her home and as a consequence of the offending she has, in fact, lost her employment. She also referred to the injuries she has sustained as a consequence of the offending and indicated that she often has nightmares about the experience and feels as if, "the crime was happening all over again".
She indicates that she lives alone and now she is very nervous in relation to any noises that she hears. She indicated that she has endured anxiety as a consequence of the offending and she has been prescribed medication to help her sleep. She indicates that now when she walks to her local shops she takes a different route to ensure that she does not travel past the scene of the offending.
In my view they are entirely expected consequences of such a serious violent offence. One would be hopeful that with time the victim is able to fully recover from this experience and return to a normal life. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3 (g), Crimes (Sentencing Procedure) Act.)

Subjective Circumstances

The offender is now 27 years of age. He was 25 year old at the time of the offending.
His adult criminal convictions in New South Wales commence in 2016 when he was dealt with for two offences of possess prohibited drug and one offence of shoplifting in respect of which he received s 9 bond for two years. Each of those matters is being called up before me today. He was also dealt with in that same year for an offence of goods in custody and received a term of imprisonment of three months. In that same year he was also dealt with for an offence of steal from person. He received a term of imprisonment of eight months with a non‑parole period of four months. It was that parole period that he was serving between 7 June 2017 and 6 October 2017. Also in 2016 he was dealt with for a further two offences of shoplifting and one offence of possess prohibited drug. Again, in respect of all those matters, he received a two year s 9 bonds, those matters, are also being called up before me today.
Finally, in 2016 he was dealt with for an offence of larceny which he again received a two year section 9 bond which is also being called up before me.
In relation to his criminal history in Queensland, his convictions as an adult commence in 2009 when he was dealt with for offences of graffiti, fail to appear, goods in custody and uttering counterfeit money. He received a recognizance for twelve months with a fine.
In 2010 he was dealt with for offences of larceny and goods in custody, possess property suspected of being used in connection with the commission of a drug offence, fail to dispose of needles. He received a 12 month probation with 60 hours community service.
In 2012 he was dealt with for offences of assault occasioning bodily harm whilst in company, threatening violence with discharge of firearm or other act, stealing, enter premises and commit indictable offence. In respect of those matters he was sentenced to imprisonment for four months with immediate parole and also imprisonment 30 days with immediate parole. He was called up in respect of both matters and again, he was sentenced to 30 days imprisonment with an immediate release date.
In 2014 he was dealt with for offences of dishonesty, assaulting police and stealing. On all charges he was placed on probation for a period of 12 months. In 2015 he was called up for breaching probation he was sentenced to community service time of 120 hours and also fined. He also breached the community service order and was sentenced to three months imprisonment but immediately released.
In 2015 he was also dealt with for offences of damage to property and possessing a knife in a public place. He was fined in respect of each of those matters.
In relation to his Victorian criminal history in 2013 he was dealt with for an offence of theft from a shop. He was sentenced to an aggregate 10 month term of imprisonment. I note that that matter was the subject of appeal. The criminal history indicates that the appeal was allowed and the order of the magistrate was set aside, it is not clear what the new sentence was.
Clearly, that extensive criminal history disentitles the offender to any leniency that would otherwise be available to a person of good character, and as I have previously indicated I do consider retribution, deterrence and protection of the community would indicate a more severe penalty is warranted.
The following material was tendered on behalf of the offender during the sentence proceedings: 1. Report of Dr Richard Furst dated 13 April 2019 which was marked as Exhibit 1.
The offender's background is outlined in the report of Dr Furst. The offender has one younger sister and an older half-brother. His mother passed away in 2008 at 40 years of age. His father lives in Victoria. He lived and attended school in Victoria and Queensland. The offender reported that he struggled with school and was emotionally troubled and disturbed in year 6 and 7. He left school in year 8. He had only worked for a period of two to three months, which was several years ago.
He reported a dysfunctional childhood in circumstances where both parents drank to excess and abused drugs. He reported his family home was highly unstable and that there was domestic violence including physical abuse towards the offender and his brother. The offender reported that he was neglected by his parents and was raised by his grandmother.

Substance Use

The offender reported that he has used drugs from 13 years of age which included injecting both heroin and ice. He was a heroin addict from 16 years of age until he twenties. He drank alcohol from 14 years of age.
Between the ages of 18 and 25 years the offender has engaged in opiate substitution therapy with short term success before relapse. His last period of treatment was in 2015 when he received methadone whilst he was in custody in Victoria.

Background to Offending

The offender reported that he was released from custody in Queensland several months before the current offending. He stated he committed the offence because he was "hanging out for heroin". He expressed regret to Dr Furst for his actions stating as follows, "It's something I shouldn't have done, if I put myself in their shoes I wouldn't like to be robbed".

Psychiatric History

The offender reported that in 2016 he developed symptoms of anxiety and apparent psychosis whilst in Queensland. He was admitted to a psychiatric unit for approximately two weeks. He was treated with medication for a likely drug induced psychosis. He had two further days in a psychiatric unit in November or December 2016, in the context of ongoing drug use he was treated with medication. After moving to New South Wales the offender continued to use heroin and ice. He then spent four months in custody. Upon release he lived at Bateau Bay on the Central Coast of New South Wales. He continued to use heroin on a daily basis.
Dr Furst noted as follows: "Although previous diagnosis of both schizophrenia and bipolar disorder have apparently been suggested there was no history of a previous manic episode and no apparent history of persistent and/or severe depression. It would appear that his reported psychotic symptoms were drug related, or drug induced rather than enduring, suggesting he does not meet the diagnostic criteria for either schizophrenia or bipolar disorder."

Current Mental Health

The offender has been in custody 22 months where he has been taking medication for his mental health issues. Dr Furst noted that: "He denied suffering any ongoing psychotic symptoms and he has not seen mental health nurses or psychiatrists over the last 12 months or so".
Dr Furst was of the opinion there was no indication of psychosis. The offender reported he has been abstinent from drugs in custody. I note that during submissions before the court today it was clarified that when the offender first went into custody he was not abstinent from all drugs, however in recent times he has been abstinent.
The offender expressed a desire to Dr Furst to resume the methadone program and was willing to consider a residential rehabilitation facility. Dr Furst was of the opinion that the offender had reasonable insight into his addiction and mental health issues. Dr Furst was also of the opinion that the offender met the diagnostic criteria for substance use disorder and previous substance induced mental disorder (drug related psychosis).
Dr Furst concluded as follows: "Mr Doidge has a lengthy history of emotional and behavioural disturbance, childhood conduct disorder and maladaptive coping when using drugs from the age of 13 to 14 years in the context of abuse and neglect at the hands of his parents. He also has a strong genetic loading for addictive disorders both parents being heavy drinkers and drug addicts. He has committed the majority of his offences in the context of his addiction to heroin. Has very limited education, few, if any, practical vocational skills and an unfortunate pattern of gravitating towards dysfunctional relationships and drug abuse when released from custody, which led to the current robbery offence in question before the court and prior offences of a similar nature. He has acknowledged the wrongfulness of his actions, had pleaded guilty and has some insight into his drug addiction and related mental health problems."
Dr Furst recommended the following in relation to future management of the offender: 1. That whilst in custody he remained under the care of Justice Health and that he attend Equips and other educational and vocational training. 2. That upon release he would benefit from placement in a residential drug and alcohol program (such as "Wayback" at Harris Farm). 3. That the offender recommence the methadone program.
In relation to the offender's longstanding history of drug addiction, Dr Furst noted as follows: "Unfortunately the available evidence suggests his risk of relapsing into drug use again, especially heroin is high, previously treatment measures for his opiate dependence proving ineffective in the past. It is likely that unresolved childhood trauma, poor role models, provided by both parents and his genetic vulnerability to addiction coupled with the lack of community support, a general tendency to make poor choices and a degree of institutionalisation had maintained his addition to opiates and other drugs over the last 12 years or so. Although Mr Doidge's progress is generally poor the measures outlined above would likely to be of some assistance in mitigating his risk of future re-offending which appears to fall in the medium to high range".
It was submitted on behalf of the offender that the court would take into account the offender's dysfunctional background and moderate the otherwise appropriate sentence. Having regard to the evidence of Dr Furst, I am satisfied that the offender has had a childhood characterised by dysfunction, abuse and neglect. Unsurprisingly, this in turn led to his early addiction to drugs. I am satisfied that these experiences of deprivation, trauma and neglect warrant a reduction in his moral culpability for the reasons set out in Bugmy v R [2013] HCA 37.
In my view, it is very unfortunate indeed that the offender was deprived of an appropriate role model in his early life.

Prospects of Rehabilitation

I am satisfied that any view of the offender's prospects of rehabilitation must necessarily be guarded because of his longstanding drug issues in combination with underlying mental health issues. However, there are some very positive signs. The offender has recently abstained from drug use whilst in custody, Dr Furst is satisfied that he has insight into his offending, his addiction and his mental health issues. He has expressed a willingness to undertake treatment and finally, he is still relatively young.
The Court is hopeful that upon release from custody the offender receives the assistance and treatment that he so clearly needs to ensure that he can remain abstinent from drugs and look forward to a much more positive and fulfilling future. For the reasons stated, I cannot find at this stage he is unlikely to reoffend.

Remorse

The offender did express remorse to Dr Furst which I have previously outlined, I am satisfied that does constitute evidence of remorse. However, I do give it limited weight because that evidence was not tested on oath (see Imbornone v R [2017] NSWCCA 144 per Wilson J at para 57.)

Special Circumstances

It was submitted on behalf of the offender that the Court would find special circumstances and vary the statute ratio between the non-parole period and the parole period in circumstances where the offender has a demonstrated need for long term rehabilitation and treatment.
I am satisfied that this is an appropriate matter to vary the statutory ratio pursuant to s 44(2) Crimes (Sentencing Procedure) Act. It is wholly apparent that the offender will need significant assistance upon release from custody to ensure that he does not return to drug use. In my view a longer period on parole is a very positive step towards ensuring the protection of the community in circumstances where I am satisfied that if the offender is able to maintain abstinence from prohibited drugs it is much less likely that he will reoffend.

Determination

In determining the appropriate sentence I have had regard to the purposes of sentencing as set out in s 3A, Crimes (Sentencing Procedure) Act.
Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate (see s 5(1), Crimes (Sentencing Procedure) Act.
I have had regard to the objective gravity of the offending, the relevant prescribed maximum penalty of 20 years imprisonment and the guideline judgment of R v Henry.
Stand up please Mr Doidge. In relation to one offence of robbery whilst armed with an offensive weapon you are convicted.
I sentence you to a non‑parole period of two years and two months to date from 6 June 2017 and expire on 5 August 2019. The total term of the sentence is three years and seven months which dates from 6 June 2017 and expires on 5 November 2020.
The starting point for that sentence was four years which I have discounted by 10% for your plea of guilty. I have also varied the statutory ratio between the non‑parole period and the parole period. So I have given you a longer parole period to ensure that you do get a lengthier period under supervision to ensure that your treatment needs are addressed.
The earliest date upon which you will become eligible for parole is 5 August 2019.
The court is also dealing with the offender for breaches of section 9 bonds. (see exhibit B) that is, the bonds that were imposed on 7 September 2016 and 5 December 2016.
It was submitted on behalf of the offender that the appropriate course was to take no action in relation to those breaches in circumstances where there is no utility in extending the supervision orders under those bonds, because those orders would be subsumed in the parole orders made for the principal offence. I accept that submission.
I am satisfied that pursuant to s 107C(1)(c),Crimes (Administration of Sentences) Act that the offender has consented to the Court dealing with of those breaches of bond.
Pursuant to s 107C(5)(a), Crimes (each Administration of Sentences) Act, I take no action on each of those breaches.
Is there anything further that I am required to refer to?
SEGAL: The summary matter your Honour on the Certificate.
HER HONOUR: Thank you. In relation to the offence on the 166 Certificate being an offence of self-administer a prohibited drug, I find the offence proved without any further penalty being imposed pursuant to s 10A.
If you can confirm those dates.
THOMS-PACKER: Your Honour I confirm the date with respect to the non‑parole period, I am just confirming with respect to the total term which was three years and seven months.
HER HONOUR: The starting term was four years.
THOMS-PACKER: Yes.
HER HONOUR: That is 10% that is three years and seven months. Non‑parole period two years and two months, parole period one year five months. That is a ratio for your assistance of 60%.
THOMS-PACKER: Yes, your Honour, my friend and I agree that with respect to the total term would commence 6 June 2017 and expire 5 January 2021.
HER HONOUR: That's correct it is two months short. So the total term expires on 5 January 2021.
SEGAL: That's agreed your Honour.
HER HONOUR: So Mr Doidge I do hope you get the assistance that you need upon release, you have taken some positive steps in custody so I do hope that continues.
OFFENDER: Yeah.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2019

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