R v Drollet

[2021] NSWDC 27

District Court of NSW|2021-01-20

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-01-20

Catchwords

Multiple offences of aggravated larceny
offence of steal from person. Aggregate sentence
[2013] HCA 37 Cahyadi v R 168 A Crim R 41
[2007] NSWCCA 1 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Source

Original judgment source is linked above.

Catchwords

Multiple offences of aggravated larcenyoffence of steal from person. Aggregate sentence[2013] HCA 37 Cahyadi v R 168 A Crim R 41[2007] NSWCCA 1 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Judgment (17 paragraphs)

[1]

remarks on sentence

The offender is being sentenced having entered pleas of guilty to three charges of aggravated steal from person, pursuant to s 95(1) of the Crimes Act 1900 (Sequences 5, 6 and 9) and one charge of steal from person, pursuant to s 94 of the Crimes Act 1900 (Sequence 8).
The offences pursuant to s 95(1) of the Crimes Act 1900 carry a maximum penalty of 20 years imprisonment. There is no Standard Non-Parole Period proscribed.
The offence pursuant to s 94 of the Crimes Act 1900 carries a maximum penalty of 14 years imprisonment. There is no Standard Non-Parole Period.
The offender has asked that two matters be taken into account on the Forms 1. Both are offences pursuant to s 154A(1)(b) of the Crimes Act 1900. The first, Sequence 7, is attached to the index offence in Sequence 5, and the second, Sequence 10 is attached to the index offence in Sequence 9. The offender has admitted her guilt in respect of both charges, and has asked that both be taken in to account on sentence.
The index offences were committed between 31 October 2019 and 11 December 2019 when the offender was arrested. She was in custody from 12 December 2019 to 16 April 2020, a period of 127 days, when she was granted Supreme Court bail. That bail was revoked on 15 October 2020 following subsequent offending, and she has been in custody since that date.

[8]

Sequence 10 - offence pursuant to s 154A(1)(b) of the Crimes Act on 8 December 2019

On 11 December 2019, police attended premises at Liverpool following information that the offender and co-offender were at those premises. A white Toyota Hiace van, registration number AL5 4LJ, was parked outside the premises with what appeared to be a fake number plate. Enquiries revealed the actual registration was DXK 81P and the vehicle had been stolen on 8 December 2019. The owner had left the keys in the ignition. Police observed the offender and co-offender approaching the white van with two young children, and observed them opening the door of the vehicle.
Police approached Kerr who ran away. He was apprehended a short distance away, and in a conversation with Detective Hanney, the co-offender admitted to doing a number of robberies, and when asked whether he wanted to say anything, Mr Kerr said, "I have a heroin habit. I only do it to get it every day." He told police that he got about $400 per phone. The offender was also arrested and she told police she needed to steal phones to pay for heroin, that she had been addicted to heroin for about three months and used approximately $400 worth a day.
Exhibit A also contained the criminal antecedents of the offender. It contained numerous offences of aggravated break and enter to commit serious indictable offences, for which she was sentenced in the Children's Court, which I have discounted. In 2014, the offender was sentenced to a bond pursuant to s 9 for 12 months for a shop stealing offence, however, there were no offences thereafter until 2018 when she was sentenced in respect of a number of driving offences by way of fines and disqualification in 2019. The offender was subsequently convicted of an offence which occurred on 2 March 2019 of driving motor vehicle during disqualification period - second offence and on 15 May 2019 she was sentenced to a community correction order for 12 months on two offences. Thus, the index offences occurred whilst she was on conditional liberty by way of the bonds imposed on that occasion.
Exhibit A also included the Agreed Facts, criminal history and the remarks on sentence of Judge King SC in respect of the co-offender, Braden Kerr. Those are referred to below in terms of application of the principle of parity in sentencing.
Exhibit A also included the facts in relation to the drive whilst disqualified offences of the offender, referred to above. Exhibit B was the Sentencing Assessment Report under the hand of Ms D Ghali dated 1 December 2020. The author set out the family and social circumstances of the offender and noted she had minimal familial and social support in the community. She intended to re-engage with her church community in order to maintain a positive lifestyle and develop positive networks. Under the heading "Attitude", the offender stated she participated in the offences as she felt scared to say no to her ex-partner, given that she was a victim of domestic violence. She identified the offences took place in order to fund her drug addiction. Under the heading "Insight into impact of offending", the offender identified that the victims trusted her as a potential buyer of their phones, and they were left injured and hurt. The offender was assessed as a medium risk of re-offending and also assessed as suitable to undertake community service work.

[9]

Evidence adduced by the offender

Exhibit 1 was a report of Mr C Awit, registered psychologist, dated 27 November 2020. In that report, Mr Awit set out the family history of the offender. Her father died when she was eight years of age, and her mother supported a family of seven children until she suffered a stroke in 2013, when the offender was 16 years of age. The offender became homeless at that time and started going to youth refuges and was placed in shared accommodation.
The offender had moved schools on a number of occasions because the family moved constantly. After year 10, she had commenced a diploma of beauty, but did not complete the course and she later obtained a traffic control licence. She worked in a number of cafes for short periods of time, but did little work between ages 15 and 24, when she commenced working at Toll doing warehouse logistics. She was employed casually until her arrest.
Under the heading "Drugs and alcohol history", the author set out that the offender commenced consuming alcohol from age 15, when she also commenced a toxic relationship with the co-offender. She also experimented with illicit substances at age 15, but ceased abusing prohibited drugs until August 2019. Her consumption of alcohol had increased in 2018 because of her relationship with Mr Kerr, which ultimately broke down in January 2019. Thereafter, she and her two children were assisted by her mother, however, she kept checking up on Mr Kerr, who she was aware was using heroin. They got back together and in August 2019, notwithstanding that she had previously been against heroin because she had seen how it destroyed some of her elder siblings. The author noted: "She advised that she could not understand why Mr Kerr could not give it up, so she tried it, and instantaneously felt like her underlying fears disappeared. She advised that she found herself returning back to it again and again."
The offender informed the author that she had suffered for years from symptoms of anxiety and depression, stemming from the instability of her childhood, her mother's deteriorating health and having to live in refuges. The author opined that based on that history, she was suffering a mental health condition, namely General Anxiety Disorder, Major Depression Disorder and Substance Use Disorder, prior to and during the offending period that likely impacted her ongoing decision making processes during that period.
Psychometric testing indicated that the offender suffered from extremely severe depression and extremely severe anxiety in the lead-up to the period of the alleged offending and the results were consistent with the diagnostic criteria for Generalised Anxiety Disorder and Major Depressive Disorder. The author therefore opined that: "A psychological link between Ms Drollet's conditions and the offences before the court exists. … This psychological link stems from Ms Drollet's impaired decision making ability in the lead-up to the offences. … These are conditions that clearly have been present since childhood and adolescence. … These conditions led to Ms Drollet's drug abuse."
Mr Awit thereafter set out a treatment plan which included the opportunity for the offender to complete an outpatient drug rehabilitation program to continue with her abstinence from drugs, together with psychological treatment by way of cognitive behaviour therapy and developing skills to prevent relapse into drug abuse. Exhibit 2 was a letter of attendance showing the offender had attended four out of five sessions of a Remand Addictions course.

[10]

The offender's oral evidence

The offender gave evidence that she was now 25 years of age and had two children aged four and five years. She was no longer the partner of her co‑offender, Mr Kerr.
The offender gave evidence that she had told the truth to the Community Corrections officer who prepared the Sentencing Assessment Report, and the psychologist Mr Awit. She gave further evidence about the history of her relationship with Mr Kerr from the age of 15 years. She described it as a toxic relationship in which she would do everything, including looking after the children, paying the rent and managing the finances. She was subject to domestic violence all of the time during the relationship so that it became normalised for her. It extended to physical, emotional and mental abuse, and during the relationship the co-offender was involved in drugs, crime, being unfaithful and spending time in gaol. Upon his discharge from gaol, the cycle would be repeated. She gave evidence that he abused both methamphetamines and heroin.
The offender gave evidence that she was too scared to report the violence to the police, however, neighbours would call the police and eventually an AVO was taken out by police in December 2019. At that time, the offender had given her kids to her mother and told her that she was going to leave the co‑offender, however, she gave evidence that she lied about that to stop her children being subjected to domestic violence. She gave further evidence that she drank alcohol to deal with the co-offender being around her.
One month before the offending commenced in 2019, she got back together with the co-offender. He had a heroin addiction and introduced her to the drug. The offender gave evidence that: "I did it because I was scared. The abuse became more severe. The first time was in July or August 2019."
In August or September, after she had given her children to her mother, she started using every day with the co-offender. She did not know what it cost because he held the money and drugs. She consumed heroin by smoking it on foil and would do that all day.
In respect of the offending which commenced at the end of October 2019, the offender gave evidence that they had to get money to purchase heroin. She was scared and he told her what to do. When asked whether she discussed the crimes, in terms of planning, she said, "not really".
The offender expressed that she was very regretful and remorseful for her offending and for the victims. She gave evidence that she did not know how to stop and she was now disgusted with the person she was when committing those offences. She agreed that she had drug issues that she needed to deal with and that she was also suffering from mental health conditions.
The offender gave evidence that she would adopt the treatment plan recommended by Mr Awit, and undergo outpatient drug and alcohol treatment, together with treatment by her GP and a psychologist. She had been abstinent from drugs since she had been in custody and she spoke to her mother and children each week. She had also been employed in custody.
In cross-examination, the offender was asked why, after separating from the co-offender in January 2019, she wanted him back. She gave evidence that she wanted her family to be complete because of the two children and they got back together in August 2019. For the period they were separated, between January and August 2019, she had been doing well with no drug and alcohol issues.
The offender accepted that she had been sentenced in May 2019 to two Community Correction Orders in respect of offences of driving whilst disqualified. When she reunited with the co-offender, she knew that he was taking ice and heroin. She was cross-examined about her explanation for taking heroin on the basis that it was inconsistent with a version she gave; i.e. that she did not really want to take it and was scared. She gave evidence: "I wanted to, but when it was in front of me, I was scared." A short time later, she was addicted to heroin.
The offender was cross-examined about the Agreed Facts, in which it was recounted that she told police that they needed to steal phones to buy heroin, however, she denied telling the police anything.
The offender gave evidence that she knew the heroin was costing about $400 per day and that the co-offender was using an additional amount. Her evidence was that they had no other money to pay for drugs and therefore stole the phones.
The offender gave evidence that for the future she had plans to live with her mother and children. She did not want any contact with the co-offender and the plan for their children was for him to see them at his mother's house. She gave evidence: "Because of everything, I won't go back to him."

[11]

The Crown submissions on sentence

The Crown relied on a written outline of submissions. The Crown submitted that in relation to the four index offences, they were committed on four different days with four different victims. It was an aggravating factor pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") that the offences were committed in company. This was an aggravating factor "because the offence of robbery in company, contrary to s 97 carries the same maximum penalty as an offence pursuant to s 95", relying on Moore v R [2005] NSWCCA 407 at [33].
The Crown submitted that all of the offences were planned, to the extent that the offenders, responding to advertisements on the various websites, contacted each victim to arrange the purchase of their phone. Harm was inflicted on each of the victims when the offenders forced their compliance by means of driving off in their car. The following matters were relevant to the assessment of objective seriousness of the offending: 1. Sequence 5 (victim Ms Bao) 1. Degree of force used: as the victim stood next to the car (which was occupied by both the co-offender and offender), the offender grabbed hold of the phone. The victim was dragged along the road as the offenders drove away. When she eventually pulled her hand free, she fell and hit her head on the ground. 2. Injuries suffered by the victim - the victim sustained abrasions to her finger, buttock, knee and back. 1. Sequence 6 (victim Mr Rivero) 1. Degree of force used: as the victim went to hand over the phone, the offender took the phone out of his hand, whilst winding the window up on his arm. The car moved approximately 100 metres with the victim's arm stuck in the window. The victim was dragged down the street. 2. Injuries sustained by the victim: the victim sustained abrasions to all his toes and to the inside of his right arm. 1. Sequence 9, (victim Mr Razak) 1. The co-offender punched the victim to the left side of his face on several occasions, forcing him backwards, before the co-offender decamped and ran to the vehicle driven by the offender.
It was submitted by the Crown that the circumstances of aggravation relied on was the use of corporal violence and the nature and extent of the violence was relevant to the assessment of the seriousness of the offence, relying on R v Atonio (2005) 154 A Crim R 183 at [29].
Further, the facts disclosed a degree of planning and the use of vehicles to enable quick getaway.
In respect of the offence of steal from the person pursuant to s 94 of the Crimes Act, it was submitted that the offence was not a trivial instance of disrespect for private property. Relevant in assessing the objective seriousness of Sequence 8 (victim Mr Jung), were: 1. The offence was planned: the offender contacted the victim three days before and arranged to view the phone. 2. Threat: the co-offender asked to view the phone before re‑approaching the car holding the phone. When the victim tried to get his phone back, the co-offender said, "Look bro, if you come any closer, I'm going to taser you".
The Crown submitted that the offences were committed whilst the offender was on two Community Correction Orders, which the offender asked to be called up. The first index offence (Sequence 5) was committed five and half months into the period of the bond. It was submitted that the offender's criminal antecedents disentitled her to leniency.

[13]

The offender's submissions

Counsel for the offender also relied on a written outline of submissions on sentence. Those submissions outline the subjective circumstances of the offender as related in the report of Mr Awit (Ex 1), and also set out the history of the offender's relationship with the co-offender and her drug and alcohol abuse.
The offender submitted that her offending was linked to her mental health issues as she had an impaired decision making ability in the lead up to the commission of the offences. Those mental health conditions reduced her moral culpability, thereby reducing the need for general deterrence, retribution and denunciation in sentencing. It was submitted that the offender's mental health conditions contributed to her offending in a material way, relying on DPP(Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
The offender submitted that she had expressed shame and remorse in relation to the offences. Her life at the time was spiralling out of control and the co-offender was physically and emotionally abusing her. Further, the offender's background, in which she was exposed to drug use and older siblings committing criminal offences, reduced her moral culpability for the offending, relying on Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Counsel for the offender advocated a finding of special circumstances, which was not in issue.
Counsel conceded that the threshold in s 5 of the CSPA was crossed and no sentence other than full-time imprisonment was appropriate in the circumstances. The offender's criminal conduct showed a pattern of behaviour in which she assisted the co-offender in the commission of the offences. It was noted that the guideline judgment in R v Henry (1999) 46 NSWLR 346 had some relevance to the sentencing exercise being undertaken, with respects to Counts 1 to 3, however, caution should be used when sentencing an offender for an offence contrary to s 95. Here, as the circumstances of aggravation was the use of corporal violence, consideration of the nature and extent of that violence was required in assessing the objective seriousness of the offending.
In respect of the offence pursuant to s 94, the offender relied on Ranse v R (unreported, 8 August 1994 NSWCCA). It was conceded this was not a trivial instance of disrespect towards private property, but rather, a direct attack upon the security of the person and property of the victim of the offence.
It was submitted that the court may consider the imposition of a sentence which allowed the offender to remain in the community with her family by way of an intensive correction order pursuant to s 7(1) of the CSPA, relying on R v Pullen [2018] NSWCCA 264. It was submitted that given the offender's age, subjective circumstances and in particular the need for her to continue her mental health treatment, including drug and alcohol treatment, the safety of the community could be best achieved by allowing her to serve her sentence by way of an ICO in the community.
Counsel also submitted that the court would have regard to the COVID-19 pandemic and the hardship for the prison population, given the restrictions that exist within the custodial environment because of the pandemic. Such restrictions may lead to a lack of opportunity afforded to an inmate to work and otherwise occupy themselves meaningfully.
Counsel conceded that the following matters aggravated the offending pursuant to s 21A(2) of the CSPA, namely that the offences were committed in company and were committed whilst the offender was on conditional liberty.
The following matters were submitted to mitigate the offending pursuant to s 21A(3) of the CSPA, namely her young age, the support she has from family and friends in the community, and her compliance with the treatment plan proposed by Mr Awit, which would diminish the risk that she will re‑offend.
It was submitted that the offending fell at the middle or just below the middle of the range of objective seriousness in respect of the s 95 offences, and in the middle of the low range to just below the middle range of objective seriousness in respect of the s 94 offence.
Counsel submitted that in applying principles of parity, the court could impose a sentence different from that of the co-offender, given the different charges, the difference in their respective roles and in their respective subjective circumstances. It was submitted that no justifiable sense of grievance or appearance of justice not being done could arise in arriving at a marked disparity in sentence.
Counsel further submitted that the principle of totality should apply so that the sentence may be adjusted down by making the sentences wholly or partly concurrent or by lowering individual sentences.

[14]

The oral submissions of the offender

Counsel for the offender rehearsed his submissions in respect of the application of the principle of parity. Here, there were different offences and different subjective circumstances and the role played by the offender was different to that of the co-offender in that the evidence established that she had been pressured into the offending. This arose from the domestic violence she had been subjected to over a number of years, which did not amount to duress, but was pressure that arose from her relationship with the co‑offender.
Counsel also rehearsed his submissions in respect of the mental health issues suffered by the offender and the application of the principles in DPP (Cth) v De La Rosa, supra. It was submitted that the offender had expressed remorse and there were good prospects for her rehabilitation. She was also entitled to a 25% utilitarian discount on sentence in respect of her early plea of guilty.
The offender accepted that upon her release to the community, she required treatment for her drug, alcohol and mental health issues. Assuming compliance with such treatment, she would have good prospects of rehabilitation and having regard to the issue of community safety, the imposition of a sentence to be served by way of an ICO was warranted here. She was in a different category to the co-offender and although, in advocating such a sentence the offender had "a large mountain to climb", it was submitted that she would require a large amount of support both in and out of custody to remain abstinent of drugs. The real risk of re-offending arose in the event that the offender recommenced her relationship with the co‑offender. To counter that, there were family court proceedings on foot seeking sole custody of her children by her mother, and it was submitted that assuming she complied with any conditions of her release and her treatment plan, she had good prospects of rehabilitation.
Finally, in respect of the call-up of the two matters for which the offender had been sentenced by way of a community corrections order, the offender submitted that those orders should be revoked and the offender re-sentenced by way of short fixed terms of imprisonment, to be served concurrently with the sentence imposed for the index offences. The offender acknowledged that her driving record does not assist her, however, it was open to the court to take no further action for the breach, or the court could impose further community correction orders in respect of those matters.

[15]

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending in relation to Sequence 5, where the victim was Ms Bao, I take into account that there was a substantial degree of force used when the offender grabbed hold of the victim's phone through the window of the vehicle, and the victim was dragged along the road for a distance of 40 metres before she eventually pulled her hand free.
I take into account that the victim sustained injuries to her finger, buttock, knee and back, and that she hit her head on the ground. This was a serious incident of offending, just below the mid-range for an offence pursuant to s 95(1) of the Crimes Act.
The offending in Sequence 8, the offence pursuant to s 94(1) of the Crimes Act, where the victim was Mr Jung, involved a threat by the co-offender to taser Mr Jung if he approached him before he got in the car. The offending was below mid-range, as no injury was in fact inflicted on Mr Jung.
The offending in Sequence 6, an offence pursuant to s 95(1), where the victim was Mr Rivero, must take into account the substantial degree of force involved when the offender took the phone out of his hand as he handed it to her through the open car window, and she wound the window up on his arm. He was dragged approximately 100 metres, with his arm stuck in the window, and sustained abrasions to all of his toes and the inside of his right arm, for which he was taken by ambulance to Liverpool Hospital and treated. This constituted serious offending, just below the mid-range for an offence pursuant to s 95(1) of the Crimes Act 1900.
The objective seriousness of the offending in Sequence 9, an offence pursuant to s 95(1) of the Crimes Act, where the victim was Mr Razak, involved the victim being punched to the left side of his head on several occasions, forcing him backwards. It was serious offending, just below the mid‑range for an offence pursuant to s 95(1) of the Crimes Act.
Each of the four offences exhibited the following aggravating factors pursuant to s 21A(2) of the CSPA: (e) The offence was committed in company (n) The offence was part of a planned activity. The degree of planning was manifested in the response in each case to advertisements for the sale of mobile phones, the arranging of meetings with the victims for the purpose of viewing the phones, and the use of two different vehicles to enable the offender and co-offender to escape.
It was also an aggravating factor pursuant to s 21A(2)(j), that the offender was on conditional liberty in respect of the offences for which she was subject to bonds to be of good behaviour pursuant to s 9, which, by virtue of the transitional provisions, became community correction orders imposed on 15 May 2019 for a period of 12 months each.
The objective seriousness of the offending for the two matters on Forms 1, namely the two offences pursuant to s 154A(1)(b) of the Crimes Act (Sequences 7 and 10) both fell within the low range of offences pursuant to that section.
I was impressed with the evidence given by the offender, who is now 25 years of age. I accept that she was in an abusive relationship with the co‑offender, which had commenced when she was 15 years of age, and that abuse extended to physical, emotional and mental abuse over a long period of time.
I am also satisfied that the offender suffered from anxiety and depression as a result of that abuse, which may have impacted her decision making processes. However, I am not satisfied, on the balance of probabilities, that there was a nexus between those conditions and the offending as opined by Mr Awit. Mr Awit was a psychologist who subjected the offender to psychometric testing, the results of which confirmed that she suffered symptoms which were consistent with a Generalised Anxiety Disorder and Major Depressive Disorder. However, as a psychologist, he was not qualified to make those diagnoses and his opinion as to the link between them and the offender's criminal conduct cannot be accepted as having a sound basis. For example, it would not be accepted as an expert opinion pursuant to s 79 of the Evidence Act 1995, if that Act applied to the sentence proceedings.
Rather, I find that the offender's criminal conduct was borne out of her addiction to heroin and the need for her and the co-offender to obtain money to support their addictions. In so finding, I accept that the offender did suffer from mental health issues which led to her abuse of prohibited drugs, and in particular, heroin. Her explanation for that use is hard to accept, namely that it was a drug that she disapproved of, having seen its effect on her older siblings, however, when the co-offender introduced her to heroin in July or August 2019, she did it "because she was scared".
Whilst the offender was an active participant in each of the index offences, and is liable for the consequences of the corporal punishment delivered by the co-offender to the victims, Bao, Rivero and Razak, I accept that her moral culpability for the offending is somewhat diminished as a result of her mental health issues and the abuse she was subjected to whilst in a relationship with the co-offender, in accordance with the principles in DPP (Cth) v De La Rosa, supra. This also means that the importance of general deterrence is somewhat diminished as she is not a suitable vehicle for that.
There is still a need for specific deterrence to be emphasised in the sentencing process, as the offender must understand the serious nature of her offending conduct and the need for her to avoid a relapse into, first, a relationship with the co-offender, and secondly, a relapse into illicit drug abuse.
As set out above, I find that the following are aggravating factors in the offending, namely that the offender was on conditional liberty, being subjected to s 9 bonds which became community correction orders at the time of the offending, and further, that the offences occurred whilst she was in company.
A mitigating factor pursuant to s 21A(3) is her plea of guilty which entitles her to a 25% utilitarian discount on sentence. I also accept the offender's evidence that she is remorseful for her criminal conduct. I have also taken into account the offender's relatively young age at the time of the offending. Unfortunately, her criminal antecedents do not entitle her to any leniency in the sentencing process.
I assess the offender's prospects of rehabilitation as somewhat guarded. There has been a failure by her in the past to rehabilitate and notwithstanding that, at the time she entered into the two s 9 bonds in May 2019, she was not in a relationship with the co-offender, she resumed that relationship in July or August 2019, and shortly thereafter commenced use of heroin which spiralled into an addiction. Whilst I accept that she intends to undergo the treatment plan recommended by Mr Awit, she has no history of compliance with any treatment regime and thus her risk of relapse is co-dependant on her remaining away from the co-offender and any relationship with him, and avoiding illicit drugs.
Those two factors also affect any assessment of the risk of recidivism for this offender. The author of the Sentence Assessment Report noted that the offender was a medium risk of recidivism. Having regard to her criminal history, that risk must be assessed as a real risk unless she undertakes the rehabilitation and treatment recommended by Mr Awit.
As set out above, I was impressed by the evidence given by the offender and I accept that she has acknowledged responsibility for her offending and expressed remorse for the victims. She also acknowledges her mental health issues and the need to undergo treatment for them. It is no small thing to overcome an addiction to a highly addictive drug such as heroin and I accept that she has been abstinent from drugs whilst she has been in custody and has also been employed.
I also take into account that she had a relatively deprived childhood and became homeless at age 16. Notwithstanding that she had been unemployed for most of her adult life, she had commenced working prior to this offending and was employed casually until her arrest. I also accept that she was in a toxic and abusive relationship with the co-offender from the age of 15 and her exposure to drug abuse and domestic violence from an early age reduces her moral culpability for her offending.
I have had regard to the maximum penalties for each of the three s 95(1) offences of 20 years imprisonment and the maximum penalty for the offence pursuant to s 94(1) of the Crimes Act of 14 years imprisonment. The maximum penalties are guideposts in the sentencing process. I am satisfied pursuant to s 5 of the CSPA, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
I intend to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. So as to provide transparency in the sentencing process, I am to provide indicative sentences which take into account the objective seriousness of the offending, the subjective matters set out above, together with the 25% utilitarian discount on sentence. The indicative sentences are as follows: 1. Sequence 5 - offence pursuant to s 95(1) of the Crimes Act - 2 years and 9 months imprisonment 2. Sequence 8 - offence pursuant to s 94(1) of the Crimes Act - 2 years imprisonment 3. Sequence 6 - offence pursuant to s 95(1) of the Crimes Act - 2 years and 6 months imprisonment 4. Sequence 9 - offence pursuant to s 95(1) of the Crimes Act - 3 years imprisonment
I note that I have taken into account the two matters on the Forms 1, Sequence 7 attached to the index offence in Sequence 5, and Sequence 10 attached to the index offence in Sequence 9, in arriving at the above indicative sentences.
In arriving at an aggregate sentence, I must have regard to the principle of parity concerning the co-offender's aggregate sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 11 months. The principle of parity is a principle of equal justice. Like cases must be treated alike, and different cases differently. Here, the co-offender, Mr Kerr, was sentenced in respect of three offences of aggravated steal from person pursuant to s 95(1) of the Crimes Act, and one offence of steal from person pursuant to s 94 of the Crimes Act, together with an offence of take/drive conveyance without consent of owner pursuant to s 154A(1)(a) of the Crimes Act 1900. In addition, two matters were taken into account on Forms 1. The co-offender had a more significant criminal history than the offender, and at the time of the offending the co-offender was subject to three intensive correction orders, which he breached. There were also differences in the subjective circumstances of the co-offender and the offender.
I have also had regard to the principle of totality. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J explained the application of the principle at [27] as follows: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
In applying those principles here, there must be some accumulation for each of the four separate index offences which occurred on separate days over a three months period. I intend to impose an aggregate sentence of 4 years and 6 months. As the sentence exceeds 3 years, pursuant to s 68(2) of the CSPA, an intensive correction order is not available to the offender.
I also find that there are special circumstances here pursuant to s 44(2) of the CSPA, based on the offender's need for supervision and rehabilitation for her mental health, drug and alcohol issues to enable her to return to the community. I note this finding was not opposed by the Crown. I therefore intend to vary the statutory ratio between head sentence and non-parole period, and impose a non-parole period of 2 years and 3 months.
The sentence will be backdated for a period of 255 days from 19 February 2021. The non-parole period will therefore commence on 9 June 2020.
In respect of the matters for call-up on the two community corrections orders, I order that in respect of each matter no further action be taken on the breach.

R v Drollet

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (8)