R v ELLIS

District Court of NSW|2022-04-08

Reasons on sentence

Keysha Ellis appears for sentence having been found guilty by a jury on one count under section 94(a) of the Crimes Act that on 5 August 2020 she did rob David Metcalf of $480 cash and an amount of prescription medication. The maximum sentence for that offence is 14 years imprisonment. I take that maximum penalty into account as the legislative guidepost to assist in arriving at the appropriate sentence. There is no standard non-parole period.
There are no matters to be dealt with by way of the form 1 procedure. There is however a section 166 certificate in respect of three related offences. Each of those offences is of possessing drugs on 3 September 2020. The drugs were 2 g of cannabis, .2 g of alprazolam and .52 g of methylphenidate. Each of those matters is an offence under section 10(1) of the Drugs Misuse and Trafficking Act and in respect of which in each case there is a maximum penalty of two years imprisonment and or 20 penalty units.
The offender was arrested on 3 September 2020 and was released on bail. No time has been spent in custody.
There is a co-offender namely Daniel Ashenhurst. He is the father of the offender's three children and the offender and co-offender have been in a long term relationship the status of which is not entirely clear. An apprehended domestic violence order has been made with the offender as the person in need of protection and the co offender the defendant. The co-offender was convicted of the more serious charge under section 97 (1) of being armed with an offensive weapon namely a knife to commit the robbery in question. The maximum sentence for that offence Is 20 years. He received a sentence of 39 months imprisonment with an 18 month non-parole period.

Objective seriousness

The offender is criminally responsible for the robbery carried out by the co-offender on the basis of the principle of joint criminal enterprise. To determine the objective seriousness of her criminal acts however it is necessary to identify what her role is. In doing so I need to be satisfied of those matters beyond reasonable doubt and they need to be consistent with the jury verdict. Those matters are: 14.1. I am satisfied that the offender was aware of the planned robbery from 5:17 PM. 14.2. I consider it likely if not probable that she was aware of it sometime earlier that day but am not satisfied of that beyond reasonable doubt. That is because whilst there were communications between the offender and co-offender on 4 August and 5 August prior to 5:17 PM there are a number of other explanations that are quite rational and reasonable explanations for that communication. They are that the offender and co offender have three children and whilst their relationship is dysfunctional, they may well have continued to be in communication with each other for non robbery purposes. Further that the co-offender may be requesting money in the circumstances of this case is plainly explicable for reasons other than in connection with the robbery, namely a need to buy goods as he did here with the offender's debit card at 12:02pm, which had no connection with the robbery, other than perhaps to "case" the pharmacy, but the other explanation of simply needing the goods is a reasonable one. 14.3. Further the fact that the co-offender spent parts of the hours immediately prior to the robbery preparing for the robbery suggests that the robbery had not been the subject of any significant prior planning. It is also notable that the co-offender did not use the debit card of the offender for purchasing any goods to do with the robbery. That may be because they wanted to eliminate a trace of the offender but may also be because she was not involved at that point.
The involvement of the offender is therefore speaking with the co-offender at 5:17 PM and agreeing either at that time or at the very latest by the time the co offender got out of the car within the next 10 minutes to taking part in the robbery, meeting with the co-offender, waiting for him in the car park where she was in a position to view what was going on so as to be ready to depart, and then driving away from the scene of the crime with the co offender.
The Crown submitted that the offender then drove to near where the co-offender was later found and used drugs. This is supported by the fact that after the robbery she purchased a syringe and needles, noting that earlier that day the co-offender had purchased a pack which is a syringe container and personal disposal unit. As I understood the submission the point was to make it clear that this showed a longer and more heavy involvement in the robbery by the offender than allowed for above. However the facts are that the offender was not with the co-offender when he was unconscious in the bushes, a fact of itself that suggests he was consuming significant amounts of the drug. The location of the offender herself is next placed at her own home the next morning so that just where she was at the time the co-offender was consuming drugs is not known.
I consider and find that the offender was minimally involved in the robbery.
I take into account the low value of the items stolen, totalling less than $2000. I also take into account the threats of violence (not involving the knife), and that there were a number of staff members confronted and effected by the crime.
I also take into account the fact that there was very little considered planning for this robbery. The planning seems to have consisted of an idea of the co-offender which was given effect to by firstly the purchase of various items in the hours leading up to the robbery. The robbery then occurs in a pharmacy of which the co-offender had earlier been a customer that day and was known by name by at least one of the staff of the pharmacy. The disguise of the clown's wig was inadequate, falling off in the course of the robbery. It would be fair to describe all this as basic and unsophisticated and almost certainly doomed to fail and for the co offender to be identified and apprehended within a short time.
In my view the objective seriousness of this offending is low.

Aggravating factors

Neither party made submissions concerning any particular aggravating factors. There was plainly a threat of violence being made by the co-offender, but an offence of robbery under s94(a) is with violence, unlike stealing in s94(b). I do not take into consideration any conduct of the co offender involving the knife, in light of the verdict being for the second count on the indictment, i.e. robbery, as opposed to count 1, armed robbery. Another aggravating factor is that the victims were vulnerable in the way described in section 21A (2) (l), in the same way that service station attendants or bank tellers are vulnerable, and I take that into account.

Subjective matters

The offender does not benefit from any discount by reason of any plea given the matter was determined by the jury. For that same reason, along with the totally fabricated story that she gave to police, any finding of remorse or acknowledgement of guilt needs to be tempered.
The parties seem to be at odds in the way in which the offender's criminal history should be considered. There was dispute as to whether it could be said that she had not offended for a period of either 17, 19, or 20 years. The Crown submitted that because there had been an offence of larceny in March 2019 the court should view the record markedly differently than if there had not been that offence. Leaving out that offence the position is that the offender, born in 1981, in 1997 and 1999 committed offences of larceny, common assault, shoplifting, stealing and obtaining money by deception with community service orders being made in respect of the last two matters. There was also a charge in 1999 of carrying a cutting implement. Then in 2000 there was shoplifting and in 2002 larceny and also a charge of not supplying her drivers particulars. There the record rested until February and March 2019 when two offences were committed, larceny of a value of less than $2000 and not disclosing the identity of the driver were committed. In other words In the period 2002 to 2019, or from the ages of 21 to 38, there was no offending by the offender. Then approximately 18 months before this present offence she committed larceny and failed to disclose a driver's identity and was fined $500 on each count. The background and personal circumstances of the offender are set out in a psychological report referred to below. In those circumstances I consider that the offender's record does not entirely disentitle her to some leniency. To have remained as offence free as she has in the circumstances in which she has lived is in fact to her credit. It also works in her favour when considering her prospects of rehabilitation.
A sentencing assessment report dated 23 March 2022 was prepared. It sets out that the offender lives with her two teenage daughters with her youngest daughter living with her mother and sister. Those people support her and are pro social influences. Her relationship with the co-offender is long-term and she reports suffering domestic violence by him. At the time of the offence an AVO was in place to protect her with the co offender as the defendant. The offender has not worked for several years it is said because of PTSD and anxiety and receives Centrelink payments.
The report notes the offender's criminal history and refers to this offence as an escalation. I accept that assessment; this offence is plainly a far more serious offence than the offending referred to above.
The report expressed the view that the offender minimised her involvement in the offending by attributing her actions to acting out of fear of the co-accused. The report states that the accused displayed an element of enabling antisocial behaviour rather than trying to prohibit it. The Crown submitted that the court should reject the assertion of the offender made through this report of her actions being due to fear of the co-accused. Reference was made to the case of Lai v R [2021] NSWCCA 217. In that case there was no sworn evidence but rather a statement of the offender was tendered. In this case the statement made to the report writer can be viewed in the same way. The principle relied on is at [79] where it was said "considerable caution should be exercised in reliance upon such exculpatory material whether there is a matter in dispute and where no evidence is given by the offender or other direct evidence is not placed before the court".
There is no direct evidence in this case that the offender acted at the time as a result of duress or fear engendered by the co-offender. I accept the submission of the Crown in this regard.
As to the three possession matters the offender maintained that she was not aware the drugs were in her car. This frankly seems to be a further mark against the offender as it reflects a lack of remorse and an absence of acknowledgement of guilt.
The report records the offender stating the degree of fear she has of the co-accused particularly when he is drug affected and said she offended to placate him. For reasons just given I reject that proposition.
The offender expressed regret for the victims yet appears to have continued to deny her involvement in the offence. Plainly in terms of remorse there is little in fact nothing to assist the offender. She was willing to undertake community service work and has been assessed as suitable. As to intervention she is already engaged in services to address her substance use and mental health which I take to be a reference predominantly to her anxiety and post-traumatic stress disorder.
I note also that the history given is of illicit substance use not being an issue for the offender for some time and her alcohol and other drug counselling service confirmed there were no concerns with her progress. In other words in terms of considering rehabilitation the offender is receiving counselling in the community and is progressing in a way that does not give that service concern. Further, I accept she has the support of pro social family members being her mother and her sister.
The offender was assessed as being a medium risk of reoffending. That is an assessment based on the level of service inventory-revised (LSI-R). Without having the details of that assessment not too much weight could be given to such a test. Based on the matters just referred to in the preceding paragraph, and in view of the offender's criminal history, I would assess the risk of reoffending as low. I accept the submission of the offender that this assessment is dependent on her maintaining and treating her mental health and I would add hand-in-hand with that, not engaging in any drug abuse.
The report sets out a supervision plan should a supervisory order be made including monitoring her drug counselling and attendance at the EQUIPS program and focusing on interpersonal relationships and promoting self awareness.
The offender relied on a psychology report of Dr Meg Perkins dated 12 November 2021. That report gives a more detailed history than is in the sentencing assessment report. The Crown takes no issue with this report. It confirms a history of PTSD, anxiety disorders and major depression. The offender suffers with the after-effects of childhood trauma. As a child she was diagnosed with ADHD and continues to have difficulty with attention, slow thinking processes and executive dysfunction. She is likely to still be suffering symptoms of ADHD.
The psychologist carried out a number of tests. The scores indicated amongst other things that she has difficulties with social communication and interaction and tends to isolate herself. It was suggested that she may be on the autistic spectrum but further investigation is required to determine this.
A history was given of being sexually abused at the age of nine years old and with ongoing physical and emotional abuse. The symptoms of intrusive memories, nightmares, fear, guilt and shame, amongst others meet the criteria for a diagnosis of PTSD. She often experiences a depressed mood, feeling empty, hopeless and losing interest in things she used to enjoy. Her symptoms meet the criteria for a diagnosis of major depressive disorder
The offender ran away from home at age 15 and went to Sydney and began to use heroin which she used for many years on and off. She has been on the methadone program for 15 years.
The report concludes that the offender lives with ADHD and executive function disorder (said not to be a separate diagnosis), which the report described as affecting a person's ability to make decisions and to affect impulses, as well as with ASD.
To address at least some of these issues it was recommended that a therapeutic relationship with a counsellor be established as well as psychoeducation followed by other therapy. It is suggested that the 20 sessions provided by Medicare may not be enough.
It was recommended that she be referred to a female psychiatrist for recommendations as to medication and to a therapist specialising in trauma therapy. Investigation as to eligibility for NDIS funding due to autism was suggested.

Sentencing considerations

Section 3A sets out the purposes of sentencing as follows: 41.1. To ensure the offender is adequately punished 41.2. To prevent crime by deterring the offender and others from committing similar offences 41.3. To protect the community from the offender 41.4. To promote the rehabilitation of the offender 41.5. To make the offender accountable for their actions 41.6. To denounce the conduct of the offender 41.7. To recognise the harm done to the victim of the crime and the community.
By section 5 a term of imprisonment should be imposed only if there is no other more appropriate outcome.
In this case there was no argument that the section 5 threshold had not been crossed. The ultimate submission of the offender was for the imposition of an ICO. That is opposed by the Crown.
In my view the parties are correct in their assessment of the seriousness of the matter requiring a term of imprisonment. There is a significant need for deterrence and denunciation of this type of offending, as well as the need for the sentence to reflect the purpose of protecting the community. There is also the need to promote the rehabilition of the offender.
The argument for the Crown against the argued for ICO outcome was that the seriousness of the offending meant an ICO was not an appropriate outcome. The basis of the Crown's position was expressly not that an ICO outcome was not available due to section 68.
There are three steps in determining whether to impose an ICO. The first is to determine whether the section 5 threshold is crossed. The second is to determine the length of sentence. The third, if permitted by s68, is to consider s66.
I have found that the section 5 threshold has been crossed.
In determining the length of the sentence I note the above findings that: 48.1. The offending was low in objective seriousness; 48.2. There is a low (albeit qualified) likelihood of reoffending; 48.3. There was no challenge to the psychological report and I accept that the offender suffers from the range of mental health issues detailed above; 48.4. The offender's criminal history shows an ability on her part to remain offence free for a significant period of time, something that is more to her credit given the history detailed in the psychological report. 48.5. Whilst the offender has no employment the fact that she has the criminal history that she does with the history that she has as well as having the support of her mother and sister suggest to me that her prospects are reasonable. 48.6. There is a need for deterrence in any sentence of the offender. 48.7. A stated purpose of sentencing is the need to promote rehabilitation of the offender. I take that into account. Further the above findings of pro social family support, ongoing drug counselling that I infer is progressing positively as the service has no concerns, and of a long history from age 21 of not offending to any significant degree, lead to the conclusion that the prospect of rehabilitation and no further offending are good.
For these reasons the term of the sentence should be two years. In this regard I note that for the more serious offence under section 97 the co-offender was sentenced to a head term of 39 months albeit with a 25% discount. This is a lesser offence and the involvement of the offender is far less than the co-offender.
The term being no more than two years an imposition of an ICO is not prevented by section 68.
The court was referred to the decision of Karout v R [2019] NSWCCA 253. In that case an offender appealed a sentence of two years with a one-year non-parole period on grounds which included failing to have regard to protection of the community in accordance with section 66. In the dissenting judgement of Brereton JA he considered that the judgment did not reveal whether or how the sentencing judge had taken into account, on the question of whether the sentence should be served by way of an ICO, the paramount consideration of community safety; s66(1). Upholding the appeal on that ground His Honour then proceeded to resentence and imposed an ICO.
Justice Fullerton, with whom Justice Hoeben agreed, did not uphold that ground of appeal on the basis that the complaint of the offender was not the failure to give reasons or a complaint about the adequacy of the reasons. Rather the ground was stated as being that the sentencing judge failed to have regard to the protection of the community as required by section 66. Her honour concluded that the legislature did not require community protection to be elevated to a mandatory consideration in the sentencing exercise in the sense that it should dominate considerations of broader sentencing principles. Her Honour disagreed that the sentencing judge's reasons were deficient in explaining his decision to decline to exercise the power to impose an ICO given that the sentencing judge did refer to the written and oral submissions that an ICO was available, and taking into account that extemporaneous reasons were given after detailed oral submissions addressing written submissions so that her Honour had no doubt the question of community protection was given appropriate weight.
Relevantly to this case at [94] it is recognised that positive findings as to good prospects of rehabilitation, being unlikely to reoffend and finding special circumstances might have supported the making of an ICO, but did not dictate that an ICO was the appropriate outcome. It is necessary to take into account other purposes of sentencing as required by section 66(3). Her Honour observed that it was clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence overwhelmed other considerations that were in play.
This demonstrates that in determining the appropriate sentence there are a range of factors that need to be taken into consideration including the objective seriousness of offence, the purposes of sentencing set out in section 3A and section 66. The case is not authority for the proposition that the determination of whether an ICO should be imposed is determined solely by the seriousness of the matter. With respect it may be that the Crown submissions in this case did not go so far as that but rather were that, as was found in Karout, the objective seriousness of this case overwhelmed the other considerations.
I note the approach of Justice Campbell to s66 in Blanch [2019] NSWCCA 304 at [51]. Subsection 1 prescribes that community safety is the paramount consideration, though as the judgement of Fullerton J referred to above makes clear, that does not make irrelevant other considerations. Subsection 2 requires an assessment of whether an ICO or serving full time custodial sentence is more likely to address the offender's risk of reoffending. In the judgement of Campbell J he made the point at [43] that in introducing the 2018 amendments the Attorney General made the point that community safety is not just about incarceration and that the Attorney General stated "imprisonment under two years is commonly not effective at bringing about medium to long-term behaviour change that reduces reoffending. Evidence shows that community supervision programs are far more effective at this".
In the present case the evidence is of the offender for a period of 17 years living an offence free life and of only offending once in a period of 19 years as at the date of the offending. In making the section 66(2) assessment the concern must be that the period of incarceration for a person in the mental health state and personal history of the offender will be detrimental to her prospects of dealing with her long-held trauma. It is true that she has not dealt with that meaningfully in the community either, however treatment conditions can be imposed. That treatment would be more likely as a matter of logic be more effective provided in the community where there is some family support as opposed to a custody environment. In my view the likelihood of not reoffending would be heightened by the offender remaining in the community to pursue the type of treatment outlined in the psychological report. Whilst in custody treatment and various courses are available treatment that is occurring in the community would most likely be more regular and more readily available. The s66(2) assessment favours the making of an ICO. The imposition of an ICO is more likely to address the offender's risk of reoffending.
Section 66 (3) requires the other purposes of sentencing set out in section 3A to be considered. These have already been considered and in my view those purposes are achieved by the imposition of an ICO. In my view bearing in mind the objective seriousness of this matter and the subjective case of the offender the imposition of a term of imprisonment albeit to be served in the community adequately meets the need for deterrence in this case both general and specific. It also provides sufficient denunciation of the conduct and at the same time promotes the rehabilitation of the offender. In reaching this conclusion I have taken into account that the offender's insight appears to be somewhat lacking as she continues to deny her involvement in the offending and also denies the minor offences with which she is also charged. It cannot be said that the offender has demonstrated significant remorse. I have taken this into account. As to the paramount concern of community safety, not only is the offender a low risk of re offending, but the ICO outcome serves as a deterrent, and further, should the rehabilitation of the offender succeed, the community's protection from her becomes long term.

Conclusion

The term of imprisonment of two years should be served in the community by way of the imposition of an intensive correction order. It will be on the following conditions: 58.1. The term of the order will be from 14 April 2022 to 13 April 2024. 58.2. It shall have the standard conditions that the offender commit no offences and be under the supervision of the officer of community corrections, noting that the supervision plan set out in the sentencing assessment report will be imposed. For that purpose I direct the offender to attend the office of community corrections at Coffs Harbour by no later than 4 PM 21 April 2022. 58.3. There shall be the following additional conditions: 58.3.1. The offender perform 100 hours of community service work; 58.3.2. A treatment condition to the effect that the offender within 14 days of his order attend on her general practitioner for a referral to counselling of the type envisaged by paragraph 4.8 of the report of Dr Perkins and extending to 20 sessions. I direct a copy of that report be provided to the GP and the counsellor. 58.3.3. That the offender abstain from taking any illegal drugs and any prescription drugs other than drugs prescribed to her. For the avoidance of doubt this is not to prevent the continuation of the methadone program. 58.3.4. There will also be a non-association condition prohibiting the offender associating with the co-offender other than as may be necessary to make decisions concerning the welfare of the parties youngest child. In this regard I note that the submission for the offender was this may be unworkable; no evidence was before the court as to why that may be so and indeed all evidence was to the contrary given the leading role played in the offending by the co-offender. Not associating with the co-offender on the evidence can only be to the benefit of the offender and in my view likely to aid her prospects of rehabilitation and not reoffending.
This leaves the three possession matters. Each charge is under section 10 of the DMTA. They are each minor amounts of illegal drugs. Nothing is known of the facts of this matter other than that those drugs were found in the motor vehicle of the offender. Taking into account the subjective case of the offender and the low level of criminality in this offending, there should be a community corrections order in each case for a period of 12 months on the terms that the offender not commit any offence and appear before the court if called upon to do so.

Orders 1. The offender, having been found guilty by a jury of the offence under section 94(a) is convicted of that offence. 2. The offender is sentenced to a term of imprisonment of two years to date from 14 April 2022 and expiring 13 April 2024. That sentence is to be served by way of the imposition of an intensive correction order on the following conditions: 2.1. That the offender not commit any offence. 2.2. The offender must submit to supervision by a community corrections officer. It is noted that supervision will be as set out in the sentencing assessment report dated 23 March 2022. 2.3. I direct the offender to attend the office of community corrections at Coffs Harbour by no later than 4 PM 21 April 2022. 2.4. I direct that a copy of the report of Dr Perkins dated 12 November 2021 be provided to the supervising officer. 2.5. There shall be the following additional conditions: 2.5.1. The offender perform 100 hours of community service work; 2.5.2. A treatment condition that the offender within 14 days of this order attend on her general practitioner for a referral to counselling in respect of her PTSD and otherwise as the Doctor may determine and extending to 20 sessions. I direct a copy of the report of Dr Perkins be provided to the GP and the counsellor. 2.5.3. That the offender continue to attend any AOD counselling she is currently engaged with. 2.5.4. That the offender abstain from taking any illegal drugs and any prescription drugs other than drugs prescribed to her. For the avoidance of doubt this is not to prevent the continuation of the methadone program. 2.6. A non-association condition prohibiting the offender associating with the co-offender, Daniel Peter Ashenhurst other than as may be necessary to make decisions concerning the welfare of the parties youngest child. 1. The offender is convicted of the three charges under section 10 of the Drugs Misuse and Trafficking Act. 2. In respect of each charge a community correction order of 12 months is imposed on the standard conditions that the offender not commit any offence and attend upon the Court when called upon to do so. 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: 14 April 2022

Drugs Misuse and Trafficking Act 1995(NSW)

At a glance

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Decision date

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (3)