R v Gobbo

The Sentence Hearing

1. On 2024 at the sentence hearing Mr Kanakaratne, solicitor, appeared for the Crown and Mr Bennett, solicitor appeared on behalf of the offender. I was assisted in my task by the comprehensive and helpful oral and written submissions from both the Crown and Mr Bennett for the offender and I express my gratitude to both for them. I note that the offender's mother and extended family members attended court in person in support of the offender on that date, with the offender appearing from his place of custody in person.
2. At the sentence hearing Mr Kanakaratne on behalf of the Crown tendered the following: 1. Crown Sentence Bundle (Exhibit A) which included the following: 1. Notice of committal. 2. Signed agreed facts. 3. Copy of police CAN for the principal offence (sequence 1). 4. Copies of colour photographs from CCTV relevant to the offences. 5. Copy of Police CAN for the Form 1 offence (sequence 2). 6. The offender's NSW Criminal History. 7. The offender's NSW Custodial History, and
3. A Sentencing Assessment Report prepared by Jaime Webster, Community Corrections Officer, Bathurst, dated 5 February 2024 was also tendered and marked Exhibit B.
4. On behalf of the offender, Mr Bennett tendered the following: 1. Report of Dr Richard Furst, forensic psychiatrist, dated 1 February 2024 (Exhibit 1). 2. Letter of Edgar Reyes, Chaplain, Bathurst Gaol, dated 04/02/2024 (Exhibit 2). 3. Letter from the offender's grandfather, dated 16/02/2024 (Exhibit 3), and. 4. Letter from the offender to the Court (Exhibit 4).
5. As previously noted, both the Crown and Mr Bennett prepared detailed written submissions on sentence which were marked respectively MFI 1 and MFI 2.
6. As with all sentencing it is necessary for me to assess the objective seriousness of the offences for which the offender is to be sentenced. I am required to do this by reference to the maximum penalty prescribed by the Parliament, being a legislative guidepost as to the seriousness with which the offence is to be viewed, the facts and circumstances of the offending, relevant common law principles and the applicable sections of the C (SP) Act 1999. I am required by process of instinctive synthesis to impose a sentence that is proportionate to the gravity of the offending and in doing so, to have regard to the factual circumstances of the offences and the subjective features of the offender. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation. As was observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10] "Assessing the objective seriousness of the crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion".
7. I must also have regard to the purposes of sentencing set out in s 3A of the C (SP) Act. Those purposes are adequate punishment, general and specific deterrence, the protection of the community, the rehabilitation of the offender, the need to make the offender accountable for her conduct and to denounce it, and the need to recognise the harm done to the victim and the community. Normally in offences of this kind deterrence, denunciation, recognition of the harm done to the victim of the crime and the community and protection of the community are fundamental considerations.
8. In Elias v The Queen (2013) 248 CLR 483 at [27], the HCA said: "… The factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the Judge to balance often incommensurable factors and to arrive at a sentence that is just in all the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion."
9. Once all the relevant factors have been considered as was observed by Garling J in R v Warwick (No 94) [2020] NSWSC 1168 at [15]: "The sentencing judge is then in a position to undertake an "instinctive synthesis" whereby the judge "makes a value judgement" as to what is the appropriate sentence given all of the factors of the case. As the "instinctive synthesis" approach to sentencing embodies a value judgement there is no such thing as a single correct sentence".

Agreed Facts

1. A Statement of Agreed Facts signed by the offender and on behalf of the Crown was tendered in the Crown Bundle (Exhibit 1), in the sentence proceedings. It is upon the basis of those agreed facts that the offender is to be sentenced. The agreed facts are as follows:
2. [Recite Agreed Facts Document] - Attached.

General principles regarding armed robbery offences and the objective seriousness of this offence

1. In R v Henry (1999) 46 NSWLR 346 Spigelman CJ stated: "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment."
2. An offender convicted of armed robbery should expect to receive a full-time custodial sentence, save in the "most exceptional circumstances": R v Roberts (1994) 73 A Crim R 306 at 308.
3. In R v Henry, Spigelman CJ promulgated the following guideline at [162]: 1. Young offender with little or no criminal history 2. Use of a weapon like a knife, capable of killing or inflicting serious injury 3. Limited degree of planning 4. Limited, if any, actual violence but a real threat thereof 5. Victim in a vulnerable position such as a shopkeeper or taxi driver 6. Small amount taken 7. Plea of guilty, the significance of which is limited by a strong Crown case.
4. It has since been clarified that the guilty plea component of Henry refers to a late plea of guilty for the purposes of the application of the utilitarian benefit an early plea of guilty attracts. It should also be noted that Henry does not play some sort of mandatory or automatic role in the determination of the sentence to be imposed. As was said by Button J (with whom N Adams J and Hoeben CJ at CL agreed) in Hetherington v R [2016] NSWCCA 165 at [78]: "Turning to my determination of this ground, it is the case, of course, that what was said in the guideline judgement of R v Henry is just that: a guideline. It is not to play some sort of mandatory or automatic role to the imprisonment of persons once a number of "boxes are ticked". Nor is it to play such a role with regard to the length of sentences of full-time imprisonment for armed robbery and related offences."
5. Having proper regard to Hetherington, nonetheless, Henry remains relevant and instructive as a means to assess the seriousness of an offence of robbery whilst armed with an offensive weapon. In Henry, Spigelman CJ was of the opinion that sentences for offences of the character identified should generally fall between 4 and 5 years for the full term. Aggravating and mitigating factors will justify a sentence below or above the range. The narrow range was said to be a starting point. In addition to factors which may arise in any case, such as the offender's youth, criminal record, cooperation with authorities, guilty plea in the absence of a strong Crown case, efforts on the part of the offender at rehabilitation, whether the offence was committed whilst on bail etc, may impact upon the ultimate sentence that is to be imposed. The then CJ went on to identify a number of circumstances that are particular to the offence of armed robbery. These include: 1. The nature of the weapon used. 2. The vulnerability of the victim. 3. Position on a scale of impulsiveness/planning. 4. Intensity of the threat used, or actual use of force. 5. Number of offenders involved. 6. Amount taken, and 7. The effect on the victim.

Assessment of the objective seriousness of this offence

The Crown's submissions

1. In both written and oral submissions, the Crown asserted that the principal offence for which the offender is to be sentenced was a serious example of the offence of robbery armed with an offensive weapon due to the presence of a number of particular features. The Crown submitted that a number of the features identified by CJ Spigelman in Henry as to the nature of the robbery, and circumstances further identified in the guideline judgment are present to a significant degree in the present offence, as well as the Form 1 offence.
2. Notably, the Crown referred to the following features of the offending for which the offender is to be sentenced:

His age/antecedents

1. In submissions the Crown noted that the offender was 21 years old at the time of the offence and he had no prior criminal record.

Use of weapon capable of killing or causing serious injury

1. The Crown submitted that the offender was armed with, and in fact brandished a large butcher's knife (Cleaver), capable of causing serious injury or death. The agreed facts disclose at Paragraph 6 that the offender produced the butcher's knife and started "waving it at the victim" demanding that the victim put money from the till into the plastic bag. On the second occasion (the Form 1 offence), after throwing the same toward the victim, the offender produced the same silver coloured butcher's knife, demanding the victim fill the bag with cash from the till. At some point during the incident, the offender cut his right hand on the knife, causing the wound to bleed. This demonstrates that at the time the offender was not only armed with a knife but was brandishing it also. On each occasion the Crown submitted that the victim feared that the offender would hurt him with a knife. The Crown submitted that the use of the knife by the offender towards the victim, in the way described in the agreed facts elevates the seriousness of the offence.

Degree of planning

1. The Crown asserted in submissions that the offences entailed some degree of planning and premeditation. The Crown identified the fact that the offender had armed himself with the butcher's knife and taken it with him to commit the robbery, and had also taken the plastic bag into which the money was placed with him to the shop. The Crown asserted that this demonstrates a level of planning beyond the conduct being impulsive or the planning being rudimentary.

Level of violence

1. The conceded there was no actual physical violence but a real threat of violence by the offender toward the victim by showing the knife to him and waving it at the victim at the time the offender was demanding the victim place money from till into the plastic bag. The Crown submitted that the absence of any further threatening words does not make the offending less serious. The Crown distinguished the facts of this case from one where the offender falsely pretends to be in possession of a weapon, or, in the absence of a weapon uses verbal threats against the victim. By waving the knife at the time the offender demands the money, the Crown asserts elevates the seriousness of the offence.

Vulnerability of the victim

1. In submissions the Crown asserted this factor as identified in the guideline judgement is applicable in the present case. The victim, by virtue of his employment was placed in a vulnerable position. He was alone as the storekeeper in the grocery store. The circumstances and conditions of his employment increased the vulnerability of the victim.

Small amount taken.

1. The Crown identified that the offender took $400 in the robbery, and about $100 in the Form 1 offence. This is consistent with a factor identified in Henry, that is, a small amount of property taken in the robbery.

Guilty plea

1. The Crown conceded that the offender had entered pleas of guilty in the Local Court. However, the Crown submitted that the significance of the early plea of guilty is limited in the circumstances of this case by virtue of the strength of the Crown case against the offender. The Crown submitted that the evidence against the offender in the current matter was strong.
2. The Crown also referred to the presence of the Form 1 offence; a circumstance not contemplated by the guideline judgement of Henry. The agreed facts disclose that two days after committing the robbery on 27 June 2023 (the principal offence), the offender returned to the Mini-Mart store where the victim was again working and committed the second armed robbery (the Form 1 offence), in virtually identical circumstances. He threw the plastic bag at the victim, demanding he fill it with money from the till, at a time he was brandishing the silver-coloured butcher's knife. The Form 1 offence attracts the same maximum penalty of 20 years imprisonment as the principal offence. The Crown noted that although the Form 1 offence does not act to aggravate the principal offence, relating to an assessment as to its objective seriousness, the penalty to be imposed for the principal offence must reflect the presence of the offence on the Form 1. The sentence for the principal offence should therefore be increased: Hoskins v R [2015] NSWCCA 245. The Form 1 offence does not increase the objective principal offence to be given to personal deterrence and retribution: Tuvunivono [2013] NSWCCA 176.
3. In both written and oral submissions, the Crown asserted that in the current matter, the Form 1 offence is serious offending "where a full-time custodial term is highly warranted due to its inherent seriousness and since the offence being a rip Pete offending on the same grocery where the same victim was subject to a serious threat [sic]. Therefore, the Form1 offence would make the sentence to be imposed for sequence 1 (the substantive offence) harsher. Ortiz v R [2014] NSWCCA 7".

Statutory aggravating factors - s 21A(2) CSPA

1. The Crown submitted that due to his occupation the victim of the robbery was "vulnerable" in accord with the provisions of s 21A(2)(l) CSPA, because the victim was the sole person present at the grocery store and was in that situation by virtue of his employment, and the conditions of his employment.
2. The Crown also submitted that the level of planning associated with the offence demonstrated by the offender arming himself with the butcher's knife and the plastic bag, at some time before the robbery suggest that the planning involved is substantially greater than rudimentary or indicative of the offence being impulsive or unplanned. In submissions the Crown stated that both the offences (i.e., the principal offence and the Form 1 offence) "were premeditated and cannot be regarded as spontaneous or impulsive acts." The Crown however conceded that the level of planning "may not" amount to a further aggravating feature but may nonetheless be relevant to the courts assessment as to the objective seriousness of the offence generally, and the applicability of the Henry guideline. To regard 'lack of planning' as necessarily mitigating, and 'planning' as necessarily aggravating is erroneous: Kennedy v R [2022] NSWCCA 215 at [49] and [52].

The offender's submissions

1. In both written and oral submissions Mr Bennett noted that the maximum penalty as set by Parliament for any offence represents the legislatures assessment of the seriousness of such offence: Markarian v The Queen (2005) 228 CLR 357 at [31]. Determining where an offence sits on a scale in terms of its seriousness, is an essential part of the sentencing exercise: Campbell v R [2014] NSWCCA 102. The objective seriousness of an offence is to be assessed without reference to matters personal to the offender, or to a class of offenders within which the offender falls. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39 at [27].
2. Both the principal offence and the Form 1 offence are "personal violence offences". It was submitted that by reference to the maximum penalty legislated by Parliament for the offences, they fall in the "high range of seriousness for criminal offences". Mr Bennett conceded that there are a number of features present in the offence (and the Form 1 offence) identified in the guideline judgement of Henry (op cit). The guideline judgement states that a penalty of full-time imprisonment should be imposed in all but "the most exceptional circumstances". It was asserted that this principle has been somewhat diverted since the time of Henry, and it is generally accepted that merely "exceptional circumstances" are required: Legge v R [2007] NSWCCA 244 at [44]. The features identified by the guideline judgement present in the offence that need to be considered in determining the objective seriousness of the offence (and the Form 1 offence), are as follows:

A. Nature of the weapon

1. It was submitted the weapon used is described as a large silver butcher's knife (cleaver). Mr Bennett submitted this is a less serious type of weapon due to its lack of stabbing capability in contrast to a kitchen knife or other similar bladed weapon.

B. Vulnerability of the victim

1. Mr Bennett conceded that by virtue of being a retail employee, the conditions and circumstances of the victim's employment render him vulnerable as identified in Henry and elsewhere. It was nonetheless submitted that the location of the offence acted to reduce the victim's vulnerability. The agreed facts tendered in the Crown bundle (exhibit A), included photographs derived from the CCTV footage. The photographs depict the victim behind a counter protected by "security wire". The security wire and the physical layout of the area where the victim was located at the time of the robbery is such that the offender was unable to enter the area with the victim was standing, thereby reducing his vulnerability.

C. Position on a scale of impulsiveness/planning

1. It was submitted on behalf of the offender on a scale ranging from impulsive and spontaneous to organised and planned, that the offence was unplanned and relatively spontaneous and impulsive. The agreed facts disclose that the offender had previously met the victim when he had attended the Kingswood Mini Mart Store on several occasions where the victim was employed to make purchases. The victim new the offender by the name "Cameron". The offender engaged in little or no to disguise himself and committed the robberies in the full gaze of CCTV. In respect to the Form 1 offence, the offender returned to the store two days later, dressed in the same clothes.

D. Intensity of threat, or actual use of force.

1. Mr Bennett asserted that the threat is set out in the Agreed Facts can be stated as "an implicit threat caused by the action of waving the knife around." There was no verbal threat associated with waving the knife made to the victim. Beyond the act of waving the knife the offender did not either verbally or by his actions threatened to use the knife or injure the victim with the knife.

E. Number of offenders.

1. The offender committed the principal offence and the Form 1 offence alone.

F. The amount taken.

1. The amount taken in the principal offence was $400. The amount taken in the Form 1 offence was less than $100. As identified in the guideline judgement the value of the property taken was relatively low.

G. Effect on the victim.

1. The evidence tendered by the Crown is limited in respect to the impact this offence caused to the victim. At its highest it is stated in the agreed facts that at the time of the offence, the victim was fearful for his safety. The agreed facts at paragraph 6 state: "… Fearing for his safety, the victim complied and proceeded to place the cash amounting to $400 from till into the plastic bag, fearing that the offender will hurt him with a knife."

Statutory aggravating factors

1. It was submitted on behalf of the offender that there are no aggravating factors as set out in s 21A(2) CSPA. The use of a weapon, and threats to use a weapon are each essential elements of the offence. The offending does not disclose any level of sophistication, organisation, or planning, beyond what may be described as rudimentary at most and necessary for offences of its type. Whilst it was conceded that the nature of the victim's employment, the conditions and circumstances of his employment rendered him vulnerable to some degree, Mr Bennett submitted that the presence of the security wire as a barrier between the offender and the victim, denying the offender any opportunity to enter the space in the store inhabited by the victim, acted to reduce any actual vulnerability.

Statutory mitigating factors

1. Mr Bennett submitted there are present a number of mitigating factors that should be considered in determining the appropriate sentence for the offence. He asserted that the evidence discloses the injury, emotional harm, loss, or damage suffered by the victim was not substantial. The offending was not part of a planned or organised criminal activity beyond basic or rudimentary planning at most. The offender has no prior criminal record or any previous convictions. At the time of the commission of the offence the offender was a person of good character, and provided he is given appropriate ongoing treatment for his mental illness, he is unlikely to re-offend. Mr Bennett further submitted that having regard to the offender's lack of any criminal history, his early plea of guilty and acceptance of responsibility for the offending, his demonstrated willingness to engage appropriate mental health treatment, and his empathy generally for the victim, together with his young age demonstrate that the offender has good prospects of rehabilitation.
2. The offender has demonstrated genuine remorse for the offence, not only by virtue of his early plea of guilty, but his statements to the author of the SAR, Jaime Webster who stated that the offender disclosed that he "felt remorse for his actions, and he was able to identify the impact on the victims." In his report Dr Richard Furst reported at page 3 that the offender said "he feels remorseful for what he did and now feels it was the wrong thing to do. He also said he felt bad for the victims." Mr Bennett also referred to the diagnosis of schizophrenia made by Dr Richard Furst, forensic psychiatrist. The offender was, at the time of the commission of the offence "hearing voices in his head" and thought that "bad things would happen if he did not do this". He told Dr Furst that he was not himself, he was continuing to have strange thoughts about his family and ongoing auditory hallucinations. He disclosed that at the time of the offence he thought people were after him and he thought he was being spied upon by the CIA and the government. He feels he would not have committed the offence if he was on his antipsychotic medication. It was submitted that as a consequence of his schizophrenic illness the offender was not fully aware of the consequences of his actions in committing the offence.
3. In respect to the mitigating factors identified by Mr Bennett, Mr Kanakaratne for the Crown did not take issue with the offender's submissions relating to the lessor injury, emotional harm, loss or damage caused to the victim, that the offender has no criminal record and at the time of the offence was a person of good character, and with ongoing appropriate treatment for his mental illness, coupled with his young age, the offender has good prospects of rehabilitation. However, the Crown asserted that by arming himself with the weapon, and taking the plastic bag, presumably to fill with money taken in the robbery, and returning to the premises on the second occasion (the Form 1 offence), these factors demonstrate a level of planning and organisation beyond rudimentary or the offending being spontaneous and/or impulsive.
4. The Crown also submitted that there is insufficient evidence, having regard to the opinion of the forensic psychiatrist, for the court to be satisfied that the offender is unlikely to reoffend. Any assessment as to the offender's likelihood of offending in the future is contingent upon his maintaining appropriate and prolonged mental health treatment. In respect to the s 21 A(3)(j), namely, whether the offender was fully aware of the consequences of his actions because of his schizophrenia, the Crown asserted that Dr Furst did not assert that the offence was "driven by his schizophrenic illness". The Crown conceded that the psychiatric illness, according to Dr Furst would have had an adverse effect on his judgement and his consequential thinking, and thus may have a bearing on his moral culpability. However, in the assessment of the Crown, it was submitted there was no nexus between the mental illness diagnosed and commission of the offence. The offending was not a major or a direct consequence of the mental illness suffered by the offender at the time. Accordingly, the Crown submitted that s 21 A(3)(j) is not a relevant mitigating feature for the consideration of the court.

Determination

1. I am of the opinion having regard to those features of the principal offence that have been identified by both the Crown and Mr Bennett for the offender, that the offence falls appreciably below, what may be described as the broad mid-range of seriousness for offences of 'Robbery armed with an offensive weapon.
2. I am satisfied the offending was relatively unplanned, and unsophisticated, and more aptly described as impulsive. True it is as the Crown submitted that the offender took the butcher's knife with him to the Mini Mart, and he also took the plastic bag along, presumably to place the money into. The presence, however, of these features, I am not of the view act to elevate the level of planning, and the objective seriousness of the offences much, if at all. The carrying of the knife to the robbery is an element of the offence, and apart from a circumstance where an offender may belatedly arm himself/herself with a weapon during the commission of a robbery it is, in essence, an integral feature of the offence. The use of the bag as identified by the Crown, I am also of the view establishes at most, rudimentary planning, not inconsistent with the offence being relatively unplanned and impulsive.
3. The offender was known to the victim, as he had shopped at the store on several occasions before the robbery. The agreed facts do not disclose that the offender took any steps to disguise his appearance and, as I understand the facts, the victim recognised the offender. In respect to the subsequent offence, two days later on 29 June 2023 (the Form 1 offence), the offender again entered the Mini Mart, wearing the same clothes he had worn two days prior, and again without any effort to disguise his appearance. The incident took place over a brief duration and in a well-lit, and relatively busy suburban mini mart covered by CCTV.
4. Notwithstanding the submission of Mr Bennett, I am satisfied that the victim by virtue of the circumstances and conditions of his employment was at least to some degree vulnerable. He was alone in the store at the time of the offence. He was of a class of person whose occupation placed him in a more vulnerable situation. (R v Goundar [2001] NSWCCA 198 per Wood CJ at CL at [36]).
5. The agreed facts disclose that the offender having armed himself with the butcher's knife, waved it at the victim, demanding he put the money into the plastic bag that the offender had thrown through the security wiring protecting the victim. The offender did not thereafter threaten the victim by words or further action with the knife.
6. As already observed, the offender did not seek by any means to disguise himself in a place where it should have been obvious was covered by a CCTV camera or cameras. I accept that the value of the property taken in the principal offence, being $400, although not trifling, was as the Crown and the offender submitted, a relatively small amount. The Form 1 offence discloses that less than $100 was taken on that occasion.
7. The agreed facts also disclose that the offender told the victim at the conclusion of the robbery (the principal offence), to call the police 10 minutes after he had left the store. This in circumstances as explicitly disclosed in the agreed facts where the victim recognised the offender at the time and knew his name. The minimart store was within walking distance of the offender's home.
8. I am also mindful that at the time of the offences the offender was as he reported to Dr Richard Furst "hearing voices in his head" and thought "bad things would happen if he did not do this", themselves a consequence of his schizophrenic illness. These disclosures about his poor mental health and its relationship at the time to the offending, is consistent with what the offender said in evidence before me in the sentence proceedings.

The Impact on the victim

1. A sentencing Court is always entitled to have regard to the harm done to the victims of crime. That this is so, is clear from the terms of s 3A(g) of the CSPA 1999, which dictates that one of the purposes of sentencing is to recognise the harm done to the victims of crime. No victim impact statement was provided in the sentence proceedings in respect to the robbery perpetrated upon the victim. However, one need only consider what Spigelman CJ stated in Henry (op cit) that: "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment."
2. Although no submissions were made by either the Crown or counsel for the offender, the nature of the offending including the use of the offensive weapon I am satisfied would have caused the victim, 21-year-old Tharak Yesudas very considerable fear, working as he was as an employee in the Mini Mart store. The court will consider this in the process of instinctive synthesis in which it engages in imposing a sentence that is both just and proportionate in the circumstances.

The offender's subjective case

1. As previously observed, Mr Bennett on behalf of the offender tendered a report of Dr Richard Furst, psychiatrist, dated 1 February 2024 which set out a brief history of the offender. The offender also gave evidence in the sentence proceedings, subjecting himself to cross examination by Mr Kanakaratne on behalf of the Crown. In evidence the offender told the Court that the account he provided to Dr Furst of his background and his mental health, his involvement in the offences, and the nexus between the offences and his poor mental health at the time was true and an accurate narrative. He also stated that the letter he wrote, which was tendered in the offender's bundle was a true account.
2. The offender was born in the Nepean Hospital at Kingswood on 28 November 2001. He has two older brothers. His parents separated when he was 5 years old. His father always worked, and now runs his own swim school. His mother previously employed in preschools and now works in a factory. The offender grew up in Glenmore Park. He attended Bethany school until year 4, and then Mary McKillop school until completing year 6. He attended high school at Jamison High School from year 7 until year 10.
3. The offender reported that he struggled with reading and writing and delayed learning at school. He disclosed that he was not able to read and write properly until he was in year 5 and required additional support/special education classes. He had poor social skills and autistic traits, describing himself as somewhat of a loner. The offender was bullied in early high school but reported an improvement by around year 8. At this time the offender developed an interest in politics, history, and poetry and started to make more friends at school.
4. Following school, the offender was employed in the construction and landscaping industry for about one year before becoming unemployed.

Mental health history

1. The offender told Dr Furst that he commenced hearing "voices in his head" when he was about 15 or 16 years old. He described them as multiple different voices that told him he was "being watched". He described feelings of anxiousness and paranoia due to hearing "voices", and he thought that people were "talking about him". The offender also reported intrusive negative thoughts/ruminations dating back to his childhood and early teenage years.
2. When he was 18 years old the offender was admitted to the Acute Mental Health Unit at Nepean hospital for several weeks. He received antipsychotic medication (Invega Sustenna) at a dose of 150 mg by way of monthly depot injection. The medication was administered each month following his discharge from hospital by his GP at the Bringelly Medical Centre. The offender has presented to Nepean hospital on 2 - 3 subsequent occasions, including in about June or July 2022, when he believed his father had been "replaced by somebody else" and thought that everyone else in his family had been "cloned" and were special agents. He told Dr Furst that he experienced those beliefs again in the months preceding these offences, including beliefs that "secret technology had been used on his family". Dr Furst opined that these delusional beliefs are indicative of Capgras' delusions/syndrome which tends to be an ominous and severe symptom indicative of schizophrenia. The offender told Dr Furst that, "I felt like I was surrounded by people [in his family] that I didn't know and couldn't trust anyone. I felt overwhelmed". He reported that he had stopped taking his antipsychotic medication some months prior to the offences, which Dr Furst suggested likely lead to a relapse of his apparent schizophrenic illness.

Drug and alcohol history

1. The offender has no history of alcohol abuse, and reported only smoking cannabis occasionally when he was about 17 years old. He smoked cigarettes and disclosed that he liked the effects of nicotine. He commenced using "vapes" over recent which was an issue at the time of the robbery offences.

Medical history

1. The offender suffers no major medical problems apart from a history of seizures, about 10 in total, which stopped about 10 years ago. He disclosed that he has not been formally diagnosed with epilepsy. The offender is currently prescribed Zyprexa (olanzapine) 10 mg orally daily.

Family history

1. The offenders paternal grandmother suffered chronic depression and his maternal uncle suffered from schizophrenia which required hospital admissions.

Offence related issues

1. The offender said that at the time of the offences he was "hearing voices in his head" "bad things would happen if he did not do this. He told Dr Furst that "I wasn't myself". He believed he would not have committed the offences if he was on his medication. He disclosed having strange thoughts about his family at the time, hearing ongoing voices, and thinking people were after him and that he was being spied on by the CIA and the government.

Recent progress

1. The offender continues at times to think that people are talking about him since he has been in custody. He reported that his mood has been low over the last several months, and he tends to feel depressed and suffers from panic attacks. He disclosed suicidal thoughts at times. He has been isolating and has withdrawn from others whilst in the custodial setting. As previously observed the offender commenced antipsychotic medication after his arrest and remand in custody, currently Olanzapine 10mg daily. The offender has gained a very significant amount of weight since the change of medication to olanzapine which often causes metabolic dysfunction, weight gain and diabetes is common side-effects.
2. The offender plans to return to live with his mother in Bardia near Liverpool upon his release from custody. He is motivated to continue his medication and to accept treatment and directions concerning his mental health from the local Mental Health Team at Liverpool hospital, and if directed to comply with a Community Treatment Order under the Mental Health Act if directed by his mental health team.

Diagnosis

1. Dr Furst observed in his assessment of the offender that he was restricted in his affect. He was otherwise alert and cooperative throughout the assessment. He reported that he continued having difficulty with trusting other people, often thinking that people are talking about him. Dr Furst noted this is indicative of residual paranoid thinking. However, the offender denied hearing any "voices" (auditory hallucinations) at the time of the assessment. The offender meets the criteria for the diagnosis of schizophrenia. The diagnosis is based upon the persistent and recurrent nature of the offender's psychotic symptoms which have included paranoid delusions, auditory hallucinations, and Capgras' delusions.
2. Dr Furst described schizophrenia as a chronic and severe mental disorder, characterised by distortions in thinking, perception, emotions, language, and sense of self and behaviour. Common symptoms experienced in people with schizophrenia include hallucinations (hearing voices or seeing things that are not there), delusions (fixed, false beliefs), mood disturbance, behavioural disturbance, motor abnormalities, negative symptoms, and cognitive deficits. Schizophrenia is frequently associated with considerable disability and impairment in psychosocial function, including detrimental effects on educational and occupational performance. People with schizophrenia are 2 -3 times more likely to die prematurely, generally as a consequence of suicide, misadventure, higher rates and/or inadequate management of physical diseases, including cardiovascular disease, diabetes, and infections.
3. Causation in relation to schizophrenia is not fully understood; however, there is strong evidence in relation to poly genetic transmission of biological vulnerability and the impact of environmental factors, including exposure to illicit drug use precipitating this illness in vulnerable individuals. Treatment generally involves a combination of antipsychotic medication and psychosocial support, including case management and assertive psychiatric follow-up. Facilitation of assisted-living, supported housing, supported employment and family-based interventions also assist in reducing the impact of the illness for people with schizophrenia.

Psychiatric and psychological mitigating factors

1. In his report Dr Furst noted that the offender's autistic traits, social, emotional and learning deficits that were evident in his childhood together with negative ruminations and anxiety, were most likely the harbinger of his obvious schizophrenic illness, which became more apparent in his mid-to late teenage years. Dr Furst is of the opinion based upon his interview with and assessment of the offender that he was mentally unstable as at the latter days of June 2023, being the time of the offences. He suffered paranoid thinking, auditory hallucinations and Capgras delusions, such that he did not feel he could trust anybody, including his family. He was not taking any antipsychotic medication at this time. Dr Furst stated (at p5 of his report, dated 1 February 2024): "Although his offending was not necessarily driven by his schizophrenic illness, the cognitive emotional and perceptual deficits that our core features of schizophrenia most likely had an adverse effect on his judgement, mood, decision-making and behaviour, the seriousness of his actions and his moral culpability. His psychotic state probably also had an adverse effect on his consequential thinking, including his decision to return to the same store again, only two days after the first robbery."

Recommendations regarding future treatment

1. Dr Furst notes that the offender requires ongoing treatment with psychotropic medication, currently olanzapine 10 mg orally daily. He needs to be regularly reviewed by a psychiatrist and mental health nurse at least monthly. He also recommends that the offender engage in psychological treatment/counselling aimed at improving his coping skills. Upon his release from custody, he recommends follow-up with mental health services, that is, the community mental health emergency team at Liverpool hospital. He will require a case manager and a psychiatrist, probably fortnightly to begin with.
2. In his report (p6) Dr Furst expresses an opinion that the offender's history of schizophrenia places him at increased vulnerability compared to other inmates in the custodial environment in NSW. It likely makes any custodial sentence or period spent in custody more onerous for him, specifically to the effects of stress in the gaol environment and/or the effects of being "stood over", intimidated, threatened and/or assaulted by other more mentally robust inmates in custody. Probably makes the risk of the offender relapsing into more acute phases of schizophrenia more likely. He describes the offender as appearing motivated to address his clinical/criminogenic issues, specifically in relation to his mental illness. He has no significant criminal anti-sequence, and he is not a violent or antisocial person by nature and appears to have good prospects of being successfully rehabilitated, even though is likely to be chronic and debilitating. The treatment recommendations outlined by Dr Furst he feels will be of assistance in relation to managing the offender's schizophrenic illness and reducing his risk of reoffending.

The evidence of the offender

1. As previously noted, the offender gave evidence before me in the sentence proceedings. He expressed remorse and was distressed when giving evidence about his offences and the impact he believed they had upon the victim Tharak Yesudus at the minimart store.
2. He also described being "locked in" his cell about once each month when there was a suspected case or and identified case of Covid discovered in the prison. Notwithstanding this he has on most occasions been able to have a single in-person visits fairly regularly on a fortnightly basis since coming into custody.
3. The offender gave evidence about ceasing his medication in the months leading up to the offence. He described living alone in his unit. He was not working. He also described the increasing symptoms of his psychotic illness in the period leading up to the offences. In respect to his antipsychotic medication, the offender gave evidence that he is desirous of remaining medicated and seeking out further mental health treatment and being compliant with a CTO and/or other directions of his mental health treatment team or mental health plan when in the community. He plans to live with his mother and stepfather upon his release from prison. He described a good relationship with both. He is also motivated to obtain employment.
4. The offender's mother, stepfather and extended family were in court at the time of the sentence proceedings.
5. In cross examination the offender confirmed that he was aware of the very serious nature of his robbery offences. He again expressed deep remorse and empathy for the victim and the impact the offences would have had upon him. He told the Crown during cross examination that he would not wish such an experience upon anyone. In respect to Covid and its impact within the prison system, the offender conceded that there are less lockdowns, and he is fully vaccinated.
6. He was questioned about his recollection of the offences. The offender reiterated what he had told the author of the SAR, that is, he did not recall much of the detail of the offending. He did recall something about cutting himself but believes this was accidental. He recalls being arrested by police on Bringelly Road while he was walking toward his home after the second robbery. He stated he was about halfway home when police arrested him. He had walked from the minimart store and was still in possession of the butcher's knife.
7. The offender conceded in cross examination that he still suffers from panic attacks from time to time that Wake him in the middle of the night, and he still has some suicidal thoughts. He also conceded that he occasionally feels that people are talking about him and that they are looking at him strangely. He understands that such thoughts are caused by his mental illness. He told the Crown in cross examination that he is motivated to continue with his treatment for psychosis and to obtain full-time employment and live with his mother and stepfather. He believed that he stopped taking his antipsychotic medication during the year before the offences. He accepted that he needs to remain on antipsychotic medication and is motivated to do so.
8. The offender disclosed during his evidence before me that he remains "on protection" in custody, because of his poor mental health and his vulnerability in gaol. He feels that he has been on protection the entire time he has been in custody.

The Crown submissions - Offender's subjective case/moral culpability

1. In submissions the Crown conceded that there may be some reduction in the offender's moral culpability for the offending, having regard to the background of mental illness. However, the Crown submitted any such reduction would be relatively minor, noting the presence or absence of a number of features in the offender's subjective case to support such a submission.
2. The Crown referred to the decision of R v Hemsley [2004] NSWCCA 228 noting that the presence of mental illness on the part of an offender may be relevant in three ways. Firstly, where the mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced, thereby reducing the need for denunciation and stern punishment, that absent the presence of the mental illness would otherwise be warranted: Israil [2002] NSWCCA 255 at [23]. Secondly, mental illness may render an offender an inappropriate vehicle or medium for general deterrence, or otherwise moderate that consideration: Israil at [22]. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Israil at [24].
3. The Crown noted that a fourth and countervailing consideration may arise where an offender suffers from a mental illness, namely, the level of danger which the offender may pose to the community. That may sound in the need for specific or special deterrence of such an offender: Israil at [24]. In DPP (Cth) v De La Rosa [2010] NSWCCA 194, the court held that an offender's moral culpability may be reduced if the offender was unable to exercise sound judgement into his/her offending conduct. The Crown noted that whilst it is clear from the evidence of the offender, and as diagnosed by Dr Furst that he was suffering some disturbance in his mind prior to and at the time of the offending, the Crown noted that the offender had received treatment for mental health issues historically whereupon he was placed on antipsychotic medication and treatments. However, on his own initiative, the offender ceased taking medication prior to and at the time of the offences. Dr Furst also expressed an opinion that the offending was not necessarily driven by the presence of the schizophrenic illness. The Crown submitted there is no causal nexus between the presence of the schizophrenic illness identified and the commission of the offences. In other words, the offending was not a major or a direct consequence of the mental health condition of the offender.
4. As previously noted, the Crown submitted that the offending involved a not insignificant level of planning and some premeditation, it involved the use of a butcher's knife capable of inflicting serious injury or killing, and the robberies were perpetrated upon a vulnerable individual. Whilst Dr Furst stated that the schizophrenic illness would have had an adverse effect on the offender's judgement and his consequential thinking, the offences were not a direct consequence of the offender's mental health condition. With proper regard to the objective seriousness of the offending, the Crown submitted that general deterrence is still a crucial and relevant consideration in the sentencing process. At most the offender's moral culpability is slightly diminished. Aspects of community protection and denunciation of the offender's conduct also remain relevant as does specific deterrence of the offender. The decision by the offender to cease medication when he was living alone in the community prior to the offences presents as a future risk to the safety of the community in the future.
5. The Crown submitted that the offender poses some amount of risk to the community. Mental illness is not only relevant to assessing culpability for the offence, but it is also relevant to assessing the level of danger an offender presents to the community and the way he/she may be rehabilitated: (Israil [2002] NSWCCA 255 as cited in Primmer v R [2015] NSWCCA 155).

The offender's submissions - Moral Culpability

1. Mr Bennett submitted that the features identified in Henry are to a large extent present in the offences. However, in the present case the offender pleaded guilty at first available opportunity, and was suffering a serious psychiatric illness, namely, schizophrenia in the time leading up to and at the time of the commission of the offences. These features, and in particular the presence of the psychotic illness act to distinguish the offending and the offender from that envisaged in Henry.
2. It was submitted that the court would make a finding that the offender has diminished moral culpability based upon his diagnosis of schizophrenia and his significant active symptomology at the time of offending (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]). As disclosed by the offender in his evidence and in the report of Dr Furst (at p4), at the time of the offending, the offender was mentally unstable with symptoms of paranoid thinking, auditory hallucinations and Capgras' delusions, indicative of severe schizophrenia. Dr Furst expressed an opinion that the offending although not necessarily driven by the mental illness, the core features of the offender's mental illness most likely had an adverse effect on his judgement, mood, decision-making and behaviour (p5). Mr Bennett submitted that the schizophrenic illness and the symptoms experienced by the offender in the time leading up to and at the time of the offending was a substantial contributing factor to the offending thereby substantially reducing the offender's moral culpability.

Determination - Moral Culpability

1. The offender is a 22-year-old single male. At the time of the offences, he was 21 years old, living by himself in a rented unit at Kingswood. The unit was within walking distance of the Mini-Mart supermarket that he entered armed with a butcher's knife on the afternoon of 27/06/2023, and again on the evening of 29/06/2023 (the Form 1 offence) and robbed Tharak Yesudus, an employee at the store. The offender was a customer of the Mini-mart and was known to the victim. He did not make any effort to disguise his appearance in committing the offences. The unchallenged evidence before the Court from the offender, and Dr Richard Furst, psychiatrist who assessed the offender on 22 January 2024 establishes that the offender struggled with learning difficulties at school, requiring special education classes until about year 7. By the age of 15 or 16 he was experiencing auditory hallucinations (voices in his head) together with paranoid delusions, described as Capgras' syndrome, an ominous and severe symptom indicative of schizophrenia. He was first admitted to the Acute Mental Health Unit at Nepean Hospital when he was 18 years old. At the time he received Invega Sustenna, an antipsychotic medication given by way of a 150 mg monthly depot injection. Upon his discharge from the mental health unit, he received follow-up care from his GP who continue to administer the antipsychotic medication each month. The offender presented to the Nepean Hospital mental health unit on 2 or 3 subsequent occasions experiencing bizarre and persecutory delusions and beliefs about himself and his family, indicative of a serious schizophrenic illness.
2. The offender has no history of alcohol or illicit drug abuse, beyond occasionally smoking cannabis when he was about 17 years old. His paternal grandmother suffered from chronic depression and his maternal uncle suffered from schizophrenia requiring hospital admissions. During the period leading up to the offences, when the offender was living alone in the community, he ceased taking his antipsychotic medication. He was not subject to any CTO under the Mental Health Act at the time. Upon ceasing the medication, it became apparent, I am satisfied that his mental health deteriorated, and he experienced auditory hallucinations and delusional beliefs consistent with a recurrence of schizophrenia. At the time I am satisfied that the offender was as he describes "hearing voices in his head", and experiencing strange thoughts about his family including that people were after him and he believed he was being spied upon by the CIA and the government. As the offender stated he thought that "bad things would happen if he did not do this (the robbery)".
3. The offender has no criminal history. He was engaged in employment in construction and landscaping for about one year after leaving school. Prior to living alone in the rented unit, he lived with his mother and stepfather at Bardia near Liverpool. He had and continues to have a close relationship with his mother and stepfather. They continue to support the offender as do the extended family who were all present during the sentencing proceedings, and today. When the offender was compliant with his antipsychotic medication it is apparent that he was able to function reasonably well and independently in the community.
4. As noted in the period leading up to the offences, the offender ceased receiving the monthly depot injection of Invega Sustenna. According to Dr Furst the offending was not necessarily driven by the offender's schizophrenic illness. However, Dr Furst was of the opinion that the cognitive, emotional, and perceptual deficits that are the core features of schizophrenia most likely had an adverse effect on the offender's judgement, mood, decision-making and behaviour at the time of the offending. His psychotic state probably also had an adverse effect on his consequential thinking, including his decision to return to the Mini-Mart store again, only two days after the first robbery. Dr Furst noted that the offender requires ongoing treatment with psychotropic medication, with regular review by a psychiatrist and mental health nurse with continuing mental health treatment through the community mental health emergency team when he is released into the community.
5. Whist as the Crown has correctly identified in his submissions, the offender's schizophrenic illness did not drive the offending, or in other words, it was not the cause of the offending in a strict or narrow sense, nonetheless as Mr Bennett submitted on behalf of the offender, it was a substantial contributing factor in the offending, in that it likely had an adverse effect on his judgement at the time, and on his mood and decision making and behaviour. As to the necessary nexus between an offender's mental health and the commission of an offence, Button J (with whom Basten JA and Davies J agreed) said: in Moiler v R [2021] NSWCCA 73: "[59] It is well-known that the assessment of the extent of a mental condition, it's causative connection (if any) with offending, and any concomitant reduction in moral culpability and the sentence to be imposed are all very much a matter for a sentencing judge: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft quoted paragraph speaks of material contribution to offending, not singular or direct causation of it."
6. In the present case I am satisfied that the offender's mental illness, namely, schizophrenia played a substantial role in the offences. The offender was labouring under delusional beliefs, experiencing auditory hallucinations and bizarre thoughts about himself and his family leading up to and at the time of the offences. His judgement, decision-making and behaviour I am satisfied were impaired at the time. I am satisfied that this operates to substantially reduce his moral culpability and the appropriate sentence.

Section 3A

1. As previously observed, I am satisfied that in the period up to and at the time of the offences the offender was suffering from delusions, experiencing auditory hallucinations, and bizarre thoughts about himself and his family such that his judgement and decision-making capacity were impaired and compromised. This acts in a number of ways. Firstly, it reduces the necessity, otherwise fundamental in offences of armed robbery to impose a sentence that emphasises general deterrence, denunciation, and protection of the community. Secondly, as I have already observed in these reasons, it renders this offender an inappropriate vehicle for general deterrence. That is not to say sentencing principles such as adequate punishment, deterrence and protection of the community will not play some role in the process of instinctive synthesis I engage in arriving at appropriate and proportionate sentence herein.
2. It should be noted that a strong subjective case, even one as compelling as this offender's is, must not result in a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending: Clark-Jeffries v R [2019] NSWCCA 56 per Bellew J at [45]. As the Crown has appropriately submitted, there is an issue of general deterrence, denunciation, and protection of the community to be addressed in the sentence. Ultimately the Crown submitted that the only appropriate sentence was one of full-time imprisonment. This submission was conceded by Mr Bennett on behalf of the offender but by reference to period of time the offender has already spent in custody awaiting sentence, and a consideration that such sentence be served by way of an ICO.

Remorse

1. In the SAR dated 5 February 2024, Jaime Webster noted the offender had no history of criminal convictions and that he was not taking medication for his mental health at the time of the offences. He said he was unable to recall many of the details surrounding the offending, but did, however, acknowledge his wrongdoing. He reported suffering from acute psychosis prior to his arrest and at the time of the offences. He is now taking medication as prescribed in custody and recognises the improvements in his mental health and overall stability. The offender stated to the author of the SAR that he felt remorse for his actions and was able to identify the impact on the victim. He has not shown any prior violent or aggressive behaviour, and this was confirmed by his mother.
2. In his letter to the court tendered on his behalf in the sentence proceedings the offender stated that he was deeply sorry for what he did to the victim. He apologised to his family and the community as a whole for his conduct. In evidence it was apparent that the offender was somewhat distressed when questioned about his offences and their impact on the victim. He expressed remorse and shame at the offending. The offender also told Dr Furst that he felt remorseful and that he felt bad for the victim.
3. In his submissions Mr Bennett on behalf the offender submitted that those expressions of remorse were heartfelt and genuine. In his submissions on behalf of the Crown, Mr Kanakaratne conceded that the offender appears to have some insight into his offending and its impact on the victim and the community more generally and he appears to be genuinely remorseful due to the impact of the offences on the victim.
4. I am satisfied that the offender's expressions of remorse as disclosed in the SAR, his letter to the court, as reported by Dr Furst and in his evidence are genuine and heartfelt.

Prospects of rehabilitation/likelihood of reoffending

1. In submissions the Crown identified that the offender has been assessed in the SAR as a medium risk of reoffending. The psychiatric report prepared by Dr Furst outlines a suggested treatment plan for the offender to address his chronic mental illness. That plan includes ongoing antipsychotic medications, engagement in psychological treatment and counselling, regular reviews by a psychiatrist and mental health nurse, and upon his release into the community follow-up with mental health services, that is, the Community Mental Health Emergency Team at Liverpool Hospital. In his evidence the offender disclosed that he was motivated to return to live with his mother and stepfather at their home near Liverpool. The offender has a good relationship with his mother and stepfather, and they are supportive of him. As previously noted, many members of the offenders extended family were present in court during the sentence hearing, and are again present for this judgement. In correspondence to the court his grandfather as indicated the family will continue to support his mental health and well-being upon his release from custody.
2. I am satisfied that the offender's prospects of a positive reintegration into the community, future employment and his risk of reoffending are contingent upon his continuing compliance with treatment for his mental illness. The offender has disclosed his motivation and willingness to continue with pharmacological treatments as well as relevant psychotherapy, treatment, and support. He has never been subject to a CTO in the past, although expressed a willingness when giving evidence to submit himself to a CTO supervised by the local community mental health team upon his release into the community. I am of the view with proper regard to the offender's relative youth, his early plea of guilty, his lack of any antisocial or criminal activity in his past, and his willingness to continue with treatment and supervision of his mental illness that he has reasonably good prospects for the future, and he is unlikely to reoffend. In the event appropriate treatment and support is provided to the offender for his mental health issues in the future, and he remains compliant with such treatment, I am of the view that the offender will reintegrate and contribute positively into the community.

Section 5

1. As noted, both the Crown and Mr Bennett conceded that the s 5 threshold has been crossed in this matter. I am satisfied that the submission made by the Crown and its concession are both well made. Reference to the s 5 threshold is of course reference to s 5(1) of the C (SP) Act 1999 which relevantly states: "(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives that no penalty other than imprisonment is appropriate."
2. In other words, a sentence of imprisonment is one of last resort; there must be no other possible outcome before a court proceeds to finalise the matter in that way. The Crown's submission is that is the case here. The Crown asserts that the purposes of sentencing to which I earlier referred in this judgement, cannot adequately be met other than by a sentence of full-time imprisonment being imposed, even considering the relevance of the offender's schizophrenic illness at the time of the offences, and its relationship to the offending.
3. Mr Bennet, as noted, conceded that the only adequate sentence was one of imprisonment, but submitted that the Court may consider such sentence to be served by way of an ICO. When considering the imposition of a sentence of imprisonment there are three questions a sentencing Court should ask. They are: 1. Is there any alternative to the imposition of a sentence of imprisonment? 2. If not, what is the appropriate term of the sentence? This question is to be determined without reference as to how, or in what manner the sentence is to be served, and 3. How should the sentence be served, that is, should it be served in full-time custody or is there some alternative noting that the only alternative sentence of imprisonment that is available in New South Wales is an intensive correction order. Of course, in the event that a sentencing court is considering the imposition of an ICO as has been urged here by Mr Bennett, community safety is the paramount consideration of the court in determining whether such an order is appropriate and/or applicable in the circumstances of the case.
4. In this case I am to sentence the offender for a single offence of robbery armed with an offensive weapon, contrary to s 97(1) Crimes Act NSW (the principal offence). The second robbery offence of 29/06/2023 is before the Court on a Form 1 pursuant to s 32 of the CSPA to which the offender has acknowledged his guilt, and which the offender asks the Court to consider when sentencing him for the principal offence. The second question referred to above is therefore crucial in the context of this case. Having concluded that the only appropriate sentence is a sentence of imprisonment, what the Court must now determine is the term of such sentence (without regard as to how it may be served), having regard to the court's assessment as to the objective gravity of the offence, the maximum penalty legislated by the parliament, the personal circumstances of the offender, applicable s 3A CSPA factors, and to the extent relevant, applicable common law principles.
5. In submissions the Crown raised the statutory preclusion contained in s 68(1) CSPA applicable where the is sentencing for a single offence as is the case here. Section 68 is contained in Part 5 Division 2 of the CSPA - "Sentencing procedures for intensive correction orders". Relevantly, s 68(1) states: "(1) An intensive correction order must not be made in respect of a single sentence if the duration of the term of imprisonment imposed for the offence exceeds 2 years."
6. The Crown submitted that even accounting for the 25% discount on sentence arising from the early plea of guilty, together with the offender suffering from a schizophrenic illness leading up to and at the time of the offences, thereby reducing his moral culpability, any sentence to be imposed would be greater than the 2-year limit identified in s 68(1). Mr Bennett submitted that the court could consider the "pre-sentence custody" the offender has served since his arrest on 29 June 2023. I am mindful, however, of what the CCA said in DG v R (No 1) [2023] NSWCCA 320 where the court held (Wilson, Fagan, and Sweeney JJ) whether a sentence ought to have been reduced by the period on remand rather than backdated to the date of arrest so that the sentence would be less than the statutory maximum available under s 68 CSPA (in that case 3 years)-enlivening the availability of an ICO, is not a relevant consideration in fixing the duration and commencement date where a term of greater than the statutory maximum allowing consideration of an ICO is found appropriate. DG considered an aggregate sentence. Section 68(3) precludes the availability of an ICO where the duration of the term of an aggregate sentence exceeds 3 years. I am satisfied the principal espoused in DG extends to s 68(1) and the statutory preclusion therein in imposing an ICO of greater than 2 years for a single offence. In any event having regard to the offence, the presence of the Form 1 offence coupled with particular personal circumstances of the offender I have come to the view that a total sentence of greater than 2 years is warranted in the circumstances of this case. As such aspects of community safety which also underpin some of the general purposes of sentencing and have which I have already considered in deciding whether to impose a sentence of imprisonment, I need not consider further in the context of imposing an ICO, where consideration of the concept of community safety is required, but in a different manner when deciding whether to make an ICO: s 66 CSPA. In context "community safety" principally concerns possible harms to the community from the offender's future risk of reoffending in a manner that may adversely affect community safety: Stanley v DPP (NSW) [2023] HCA 3 at [72] and [116]. That risk may be different depending upon how an offender's sentence of imprisonment is to be served. In this case as I have observed I have come to the view that a sentence greater than that identified in s 68(1) CSPA is required.

The plea of guilty

1. As observed the offender pleaded guilty before the Local Court at Penrith on 13 October 2023. The offender is therefore entitled to a discount of 25% on what would otherwise be an appropriate sentence for the utilitarian value of his plea. The discount accords with s 25D(2)(a) of the CSPA 1999.

The Sentence

1. Absent the plea of guilty the total sentence I would have impose is one of 3 years imprisonment. The 25% discount is to apply to that sentence, which leaves a total sentence of 2 years 3 months.
2. The offender has been in custody since the date of his arrest solely referable to the offences on 29 June 2023. In accord with s 24(1) and s47(3) CSPA I am satisfied that the sentence I am to impose must take into account the time for which the offender has been held in custody referable to the offending and will commence on 29 June 2023.

Covid 19

1. In submissions Mr Bennett referred to the additional hardship created by the intermittent lockdowns and restrictions imposed on the offender on remand due to Covid 19. The offender gave evidence before me that his remand commenced at a time when the is it to very strict procedures within the custodial system to combat the spread of the virus amongst inmates had been relaxed. He did, however, give evidence that he had been "locked in" to his cell when prison authorities suspect a positive case or identify a positive case of Covid. He disclosed this has taken place about one occasion each month since he has been in custody. Nonetheless he has mostly continued to receive "in person" visits each fortnight.
2. Mr Bennett submitted the court could consider these additional "lock ins" in the process of instinctive synthesis. The Crown submitted that the evidence disclosed that the additional hardship, if any, caused by the virus has all but dissipated, and the offender has been fully vaccinated against the virus whilst in custody.
3. Having regard to the evidence I am satisfied that the impact of the Covid 19 pandemic upon the prison population and the additional hardship and isolation it caused, has thankfully diminished significantly. The restrictive measures put in place by corrective services have also been relaxed. The offender gave evidence, however, that throughout his period in custody to date he had been locked in his cell about once each month due to suspected positive cases of Covid being identified. I have taken this into consideration in the process of instinctive synthesis in which I have engaged.

Special circumstances

1. Mr Bennett would make a generous finding of special circumstances. The offender is still a young man. He has historically suffered from a severe form of schizophrenia which will require targeted and multi-focused treatment, including antipsychotic medications, psychotherapy, counselling and ongoing and long-term follow-up and support administered by mental health services, that is, the community mental health emergency team on a long-term basis.
2. The Crown did not cavil with the submissions by Mr Bennett concerning special circumstances. The Crown, however, cautioned against "double counting" those mitigating circumstances, personal to the offender, that have been identified to reduce his moral culpability. The Crown accepted that there is a need for extensive rehabilitation due to the offender's chronic mental health issues and the need for ongoing treatment. However, the non-parole period must sufficiently address the criminality and reflect the serious nature of the offences.
3. What constitutes special circumstances may vary from case to case and is a discretionary finding of fact. The primary consideration in such a finding should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence of the offender, and I must avoid counting again features of the offender's subjective case I have considered in fixing the total sentence. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as it deterrent to him and others, albeit I have found that the offender because of his mental illness, and its role in the offending, is not an appropriate medium for general deterrence.
4. Generally, the reform of the offender will often be the purpose in finding special circumstances, but this need not be the only purpose. Here I am satisfied that there is a clear need that the offender continues with targeted and long-term treatment for his schizophrenic illness. This will require assistance and supervision with pharmacological treatments and associated psychotherapy and supervision through is local community mental health team. In addition, I am satisfied that the offender's mental illness in combination with his young age, which has rendered him more vulnerable in custody, resulting in him being placed into protection, has made the impact of custody substantially more onerous for him. This in my view warrants a generous finding of special circumstances.

Conclusion and Orders

1. The offender pleaded guilty before the Local Court at Penrith on 13 October 2023. That plea attracts a statutory discount on what would otherwise be an appropriate sentence of 25%. Absent such plea as I have already stated I would have imposed a total sentence of 3 years imprisonment, taking into account the offence of Robbery Armed with an offensive weapon on 29/06/2023 on the Form 1 document for which the offender has acknowledged his guilt. The orders I make are as follows: 1. Cameron Gobbo you are convicted of the offence of Robbery Armed with an offensive weapon at Kingswood in NSW on 27/06/2023 contrary to s 97(1) Crimes Act NSW 2. You are sentenced to a term of imprisonment consisting of a non-parole period of 1 year and a total term of 2 years 3 months, commencing on 29 June 2023. 3. I have made a finding of special circumstances for the reasons and upon the basis contained in paragraph 102 of this judgement. 4. You will be eligible for release on parole on 28 June 2024 and I recommend such release. 5. Your total sentence will expire on 28 August 2025.

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: 16 December 2024