R v Joe Daniel Rose

The Sentence Hearing

1. The Crown evidence (exhibit A) included a fact sheet setting out the above facts, a criminal history which included a drug possession charge in the Northern Territory in 2012 which was dealt with without proceeding to conviction, together with the similar offence referred to in [1] above, for which he was on conditional liberty.
2. A pre-sentence report from Ms J Noble dated 5 June 2015 set out the offender's family history. He had lived with his mother and two siblings in the ACT, his parents having separated when he was two years of age. The offender was noted to be active in the care of his severely disabled younger sister. He had received good family support since being incarcerated on remand at the Goulburn Correctional Centre.
3. The offender spent his formative years in Darwin. He left school in year 11 and commenced an apprenticeship in roofing, which he did not complete. He started to use cannabis at the age of 17 and at 19 he was introduced to methamphetamines, which accelerated to daily intravenous use by the time he was aged 21.
4. The offender had attempted drug rehabilitation in 2013, however, discharged himself from the program after one month. He stated that he was now willing and motivated for admission to a residential rehabilitation to address his drug issues.
5. It was noted that the offender was heavily drug affected and sleep deprived at the time of the offence. He had, however, made full admissions in respect of the offence and recognised the seriousness of his conduct. He told the author of the report that the property was randomly selected, and that he believed that the residents were not at home and that he panicked when confronted by the male resident.
6. The offender stated that he was ashamed of his behaviour and had applied to do a Restorative Justice Program. The author of the report opined that he appeared to have an insight into his drug use being the trigger of his offending behaviour. He was assessed as being at a medium risk of re-offending and his identified criminogenic needs are "Alcohol/drug problems and emotional/personal". It was considered that the offender would benefit from a period of supervision by Community Corrections and that case management strategies would include residential rehabilitation to address his drug issues. He was otherwise assessed as unsuitable for a Community Service Order.

The Offender's Evidence

1. The offender gave evidence on the sentence hearing. He admitted that he had not told the author of the pre-sentence report the truth when he told her that the premises were selected at random. In fact, the property was once owned by the offender's grandfather and he knew the property. When asked why he chose it, he stated that he did not intend to choose it, but that he just ended up there. He thought he could "get in and out of the property" (meaning without detection) and that it did not appear that anyone was at home as there were no cars parked on the property.
2. The offender gave evidence that he had a gun license. He did not know why they wanted to steal guns. However, he had told the police that he held fears for his safety after an incident several days earlier when he saw a man pull a gun on one of his friends. He acknowledged that there was no reasonable basis for believing there was a threat to himself. He gave evidence that he had been awake for two to two and half weeks on ice and had consumed some that morning.
3. The offender had no idea who had purchased the property. When asked what he thought when he saw the male resident coming to the shed, he said "I don't know. I have never had a feeling like that before." When asked why he assaulted the male resident, he said "I don't know. I said I was sorry." He said that he never had it in mind to hurt the residents, that he had read their victim impact statements and understood that they were devastated by the incident and his threats to kill them. He had applied for the Restorative Justice Program to give him the opportunity to write a letter or in some way catch up with them. When asked what he would say to them he said, "I don't know what I could say to that." He acknowledged that the residents were the same age as his grandfather. He did not regard himself as a bad person. However, he had been mixed up with bad people.
4. The offender was supported in court by his mother and father, two brothers, one sister, a cousin and a family friend. He acknowledged the hurt that he had caused all of his family. He said that before he took drugs he was a good person and he does not know how he got so far off what he was previously like. He was intending to do a residential rehabilitation program and had not touched drugs for eight months. In the future, he said that when he has problems he will turn to his family for help and not to drugs. In terms of future employment, he wanted to use his time in custody productively and was hopeful of being sent to Junee where he could do a TAFE course.
5. In respect of the guns that were stolen, he had assisted police by providing information to them.
6. In cross-examination, the offender said he had been consuming one point per day of ice over a period of two weeks and was on a "bender" at the time of the offence. When asked how he was supporting his drug habit, he said "It was just there", where he was living. He did not remember whose idea it was to go to the Bywong property.
7. The offender said that he was aware of the danger of guns in the community and did not know why he suggested that the guns be stolen. They had no use for them. The offender acknowledged that the victims were aged 74 and 76 respectively and were small in stature.
8. Since being in custody the offender gave evidence that he had gone from weighing 60 kilograms to 85 kilograms. When asked how he would feel if his own grandparents were treated in the same way, he said he would be disgusted.
9. Although he had previously had a very negative reaction when prescribed medication containing codeine, he did not think that taking ice would be a bad thing to do. At the time he did not care. He described the hammer that he was carrying at the time as a "jimmy bar". He had no doubt that the victims were terrified by the experience, that they remain terrified and would be terrified for the rest of their lives as a result of his criminal conduct.
10. Exhibit 1 was a report from Dr L Magor-Blatch dated 8 June 2015. Dr Magor‑Blatch is the Associate Professor, Faculty of Social Sciences at the University of Wollongong and Adjunct Associate Professor, Faculty of Health, at the University of Canberra. Dr Magor-Blatch's assessment of the offender took place over a period of three hours. The report sets out the offender's family background. His brother, Geoffrey, was involved in a motorbike accident in 2011 which left him with an acquired brain injury. He has a half‑sister who has cerebral palsy and global development delay, and is deeply committed to the support and care of her. The report noted that the offender's drug use had caused disruption to the family and that he had been asked to leave the family home and was, at the time of the offence, largely homeless.
11. Testing of the offender indicated the following diagnoses: 1. Substance Use Disorder 2. Post-Traumatic Stress Disorder 3. Persistent Depressive Disorder.
12. It was Dr Magor-Blatch's opinion that the offender was well motivated to undergo treatment and rehabilitation for his drug problem. He was also remorseful for his actions and for the pain that he had caused the elderly residents during the offence. It was to the offender's enormous benefit that he had the loving and caring support of his family and through them a wider helping community, including Aboriginal and Torres Strait Islander health, welfare and substance abuse treatment services. He would also have the benefit of stable housing upon release from custody and good employment prospects. It was therefore recommended that the offender be allowed to undertake a period of rehabilitation, preferably within a residential therapeutic community for his methamphetamine dependency.
13. Exhibit 2 comprised a bundle of impressive character references on behalf of the offender, which attested to him being, as a young man, a most compassionate and caring person who was considerate of others and extremely respectful of his elders. Those references also attested to the contributions made by the offender's parents to both the Indigenous community and the wider Australian community. It is clear that in his life before drugs the offender had the best upbringing that was possible for his family to give him. He was a caring and compassionate young person who excelled at sports and was dedicated to his disabled sister. The references bespeak of a support system that would be available to the offender upon his release from custody, which will ensure his repatriation to a meaningful and productive life in the community.

The Victim Impact Statements

1. Both male and female victims of this crime have provided victim impact statements for the court. Each spoke of their fear for their lives when the offender threatened to kill them and the terror that they had experienced during the offence and thereafter. Both had sought professional help for their emotional reaction to this ordeal and the stress it had created in their lives. They do not feel safe in their home and cannot sleep, living constantly in fear that their home and personal space would again be invaded. It is clear that the actions of the offender have had a life-changing impact upon them, and they ask that the court takes these matters into consideration when sentencing the offender.

Submissions Made on Behalf of the Offender

1. Mr Lalor, solicitor on behalf of the offender, provided a written outline of his submissions. He addressed the matters outlined in the guideline judgment of R v Henry (1999) 46 NSWLR 346. The guideline was met in this case, as the offender was young, 23 years of age at the time of the offence, and had no recorded convictions. He was armed with a knife and had planned to use the knife as a means of breaking the gun cabinet. There was a limited degree of planning and the offender did not know the identity of the victims. There was limited, if any, actual violence, but a real threat thereof. In this case the offender threatened the victims repeatedly, however, alternately, between such threats, he had told them that he would not hurt them. After being invited into their home, he was asked to leave his tools outside and he did so. The victims were clearly vulnerable, being an elderly couple in their own home, and the offence was not committed for financial gain, but rather, the offender had formed a misconceived belief that he was at risk of harm from known drug dealers. The offender had entered a plea of guilty at the earliest opportunity. However, the guideline was predicated on a relatively late plea quantified at a 10% discount on sentence.
2. Mr Lalor submitted that it was relevant that the offence was not committed in order to finance a drug addiction. However, in Henry, the Court had held: "Drug addiction is a circumstance relevant to the sentencing exercise, but it is not itself a mitigating factor. The existence of a causal relationship between drug addiction on the commission of an offence should not automatically result in a lesser sentence."
3. It was submitted that the offender's drug addiction was relevant to the assessment of the impulsiveness of his conduct. This in turn was relevant to his moral culpability for the offence. It was also relevant to the subjective circumstances to be considered. In respect of his drug addiction, the offender submitted that it was not itself a mitigating circumstance. However, it led to him being impulsive in his decision making which did amount to a mitigating circumstance.
4. It was submitted that the offender was a good candidate for rehabilitation, relying on the report of Dr Magor-Blatch, that the offender had expressed remorse, had made full admissions to the police and had provided information that assisted them in retrieving the weapons.
5. It was submitted that the court should find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("C(SP)A"), on the basis of his need for rehabilitation for his drug addiction, the good prospects he had of rehabilitation, his relative youth, the fact that it was his first custodial sentence and that he was a young Aboriginal man with strong familial ties.
6. In speaking to those submissions, Mr Lalor emphasised the assessment of Dr Magor‑Blatch, that there were good prospects for rehabilitation because of the offender's short period of drug use and his young age. The strongest factor in his favour was the widespread support of his family. Mr Lalor also referred the court to JIRS statistics which demonstrated that for 70% of such offences, a head sentence of 24-36 months was imposed and in 90% of cases the non-parole period of between 12 and 24 months was imposed.

Crown Submissions

1. The Crown submitted that the starting point was the guideline judgment in Henry, which predicated a range of 4-5 years as the head sentence. The offender here was entitled to a 25% utilitarian discount for his early plea of guilty, however, he otherwise met the guideline. He was a young person and used a knife as a weapon. There was some planning involved and some degree of contemplation, given that he was carrying a knife in order to carry out the offence of break and enter, and others were waiting nearby to assist him escape. It was his intention to take the weapons that he found on the property.
2. Further, the threats he made to the residents were in no way minor. The residents were vulnerable and in their own home. Also significant was the fact that guns were taken and the Crown submitted that the offender had given an inadequate explanation for his reasons for doing so. The offender's evidence had demonstrated a scant recollection of the details of his offending and therefore the starting point in sentencing was greater than mid-range objective seriousness, even given his early plea of guilty.
3. The Crown conceded that special circumstances have been established.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. I have had regard to the maximum penalty of 20 years imprisonment for the offence. It is clear that this case fits within the elements set out in the guideline judgment of Henry, namely: 1. Young offender with little or no criminal history 2. 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. The victim in a vulnerable position such as a shopkeeper or taxi driver (in this case, an elderly couple in their own home, at a remote location) 6. Small amount taken 7. Plea of guilty, the significance of which is limited by a strong Crown case.
3. The Court identified a range of sentences for such a case of 4-5 years for the full term, with aggravating and mitigating factors justifying a sentence above or below the range. In Henry at [170] Spigelman CJ said as follows: "170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail et cetera, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon (ii) Vulnerability of the victim (iii) Position on a scale of impulsiveness/planning (iv) Intensity of threat, or actual use of force (v) Number of offenders (vi) Amount taken (vii) Effect on the victim(s)."
4. The guideline judgment also took into account a guilty plea of limited value. That should be understood to involve a late plea of guilty for the purpose of the application of the guidelines. In this case, the plea of guilty was entered at an early stage and the Crown has acknowledged that the offender is entitled to a utilitarian discount of 25%, whereas the 4-5 year term referred to in Henry incorporated a discount of 10% - see R v Sydney [2004] NSWCCA 63 per Beasley JA (as she then was) (with whom O'Keefe and Bell JJ agreed).
5. I am satisfied here that the offending was the product of the offender's addiction to methylamphetamine (ice) and whilst that does not constitute a mitigating factor, the impulsiveness involved in his conduct may be regarded as a mitigating factor in the circumstances. There was some planning involved, in terms of the selection of the property which was known to the offender and the purpose for which the crime was committed, namely, to obtain guns against a perceived threat.
6. The objective seriousness of the offending here falls just below the mid-range of offences pursuant to s 97(1) of the Crimes Act (NSW). The offence was, however, still very serious, and was a terrifying incident for the victims.
7. I have also had regard to both of the victims' impact statements tendered by the Crown, and the impact that these offences have had on both victims' physical and emotional state. The statements were a poignant exposition of the extent of the trauma suffered by them. I note that there is no medical evidence against which to assess the victim impact statements, however, it is a matter of common sense that the offences have had a substantial impact on both victims.
8. The Crown did not advocate that the victim impact statements would amount to an aggravating factor to be taken into account on sentence pursuant to s 21A(2)(g) of the C(SP)A. In EG v R [2015] NSWCCA 21 Hoeben CJ at CL, with whom the other members of the court agreed, referred to the caution that the court must approach victim impact statements with, where such statements raise harm that was more deleterious than could generally be expected from the circumstances of the offence. His Honour referred to the judgment of Wood CJ at CL in R v Berg [2004] NSWCCA 300 where his Honour said at [48] - [49]: "I would sound a note of caution in relation to the proper approach to fact finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, insofar as the maker of the statement would not normally be available for cross-examination. I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating sentence."
9. Hoeben CJ at CL also referred to the judgment of Simpson J (with whom Ward JA and Wilson J agreed) in R v Tuala [2015] NSWCCA 8, where her Honour stated at [77] that such aggravating factors must be proved beyond reasonable doubt. Her Honour went on to state: "79 Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents. 80 Difficulties can arise, for example, where: The facts to which the victim impact statement attests are in question; or The credibility of the victim is in question; or The harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or The content of the Victim Impact Statement is the only evidence of harm. … 81 In these cases, considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard."
10. I have therefore taken the victim impact statements into account, but I make it clear that I have done so not to aggravate the offender's culpability.
11. I accept that the offender has not consumed any drugs during his time in custody, and that he has good prospects of rehabilitation back into the community. It was not contested that I should find special circumstances established pursuant to s 44(2) of the C(SP)A so as to vary the usual ratio between any non-parole period and the head sentence.
12. There are significant subjective factors which the court has to take into account. The offender is supported by his family and community. He has already undertaken some steps to rehabilitate and address his drug problem. It is no small thing to overcome a drug addiction, however, the offender is still very young and has the support of his family to assist him in that endeavour.
13. I have also had regard to the principles of totality, proportionality and parity set out in Pearce v R (1998) 194 CLR 610 at [45].
14. Having regard to all of the circumstances here, and the guideline judgment, no sentence other than imprisonment is appropriate in this case. However, having found special circumstances, I am of the view that a long period of supervised rehabilitation, including residential rehabilitation, is appropriate to ensure the return of the offender to a meaningful and productive life. For that reason I intend to set a non-parole period of 21 months imprisonment, and a total term of imprisonment of 3 years and 3 months.

Orders

1. I make the following orders: 1. You are convicted of the offence pursuant to s 97(1) of the Crimes Act 1900 (NSW). 2. I impose a non-parole period of 21 months. Having regard to the fact that you have already spent 258 days in custody, the non-parole period will commence on 11 October 2014 and terminate on 10 July 2016. 3. I impose a further period of imprisonment of 18 months commencing on 11 July 2016 and terminating on 10 January 2018. 4. Total term of imprisonment will be 3 years and 3 months. 5. Your parole eligibility date will be 10 July 2016. 6. I further direct that you, upon release to parole, accept the supervision of Probation and Parole Service and that you attend any drug and alcohol rehabilitation service to which you are directed, including any residential program that is deemed suitable for you.
2. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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: 25 June 2015