R v Kariolakis

District Court of NSW|2023-07-21

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following three offences to which he has pleaded guilty:- 1. H89946627/5: Assault with intent to rob armed with offensive weapon pursuant to s 97(1) of the Crimes Act 1900. 2. The maximum penalty for this offence is 20 years imprisonment. 3. H89946672/2: Robbery armed with offensive weapon pursuant to s 97(1) of the Crimes Act 1900. 4. The maximum penalty for this offence is 20 years imprisonment. 5. H89946672/3: Robbery armed with offensive weapon pursuant to s 97(1) of the Crimes Act 1900. 6. The maximum penalty for this offence is 20 years imprisonment.
There is a Form 1 attached to Sequence 3, being Sequence 4 - an offence of deal with property proceeds of crime less than $100,000 pursuant to s 193C(2) of the Crimes Act 1900. There is further Form 1 attached to Sequence 5, namely Sequence 6 - an offence of steal from the person value less than $2,000 pursuant to s94(b) of the Crimes Act 1900. The offender has admitted his guilt in respect of each of the matters on the Forms 1, and has asked that each be taken into account on sentence.

The sentence hearing

The sentence hearing took place on 21 July 2023. The Crown sentence summary became Exhibit A and it included a statement of agreed facts which may be summarised as follows.
At about 4.17pm on Friday 29 July 2022 the offender entered premises known as "The Penthouse" and was greeted by a receptionist who directed him to a room known as "the introduction room". The offender ignored her and walked past the introduction room into a bar area and when asked again to go into the introduction room he appeared agitated. He then had a conversation with the receptionist about the location of a nearby strip club. The receptionist during that conversation entered a small office area and the accused approached the receptionist and was told to go away. He then demanded cash from her and as he did so he pulled a screwdriver from the front right pocket of his shorts. The interaction was caught on CCTV which was played to the court as part of Exhibit B. The offender held a screwdriver in his right hand, from the grip end, in a closed fist with the metal end pointed downward. The receptionist apprehended that she was going to be stabbed and the offender demanded money saying "Give me the cash". As he did so he put the screwdriver back into his right front pocket and the receptionist demanded that he leave, saying to other employees "He was just about to stab me with a fucking screwdriver! ... Get out. He needs to get out, he has to get out."
The offender then returned to the entrance of the office area and grabbed a mobile phone from the receptionist. He then entered the office area and again demanded that the receptionist give him the money, to which she replied, "I can't". The offender then said "Do you want to fuck with me brother" and an unknown employee said, "leave him alone". The offender again demanded the money and the receptionist said "I can't. Are you serious?" The offender then left the office area whilst the receptionist was asking for her phone back. The offender then exited the premises. The receptionist followed him onto the street and yelled "He's got my phone, he's got my phone, he stole my phone". She told a bystander that "He stole my phone". The offender did not run away but proceeded to hand the phone back to the receptionist.
Police were called and arrived five minutes later. The screwdriver held by the offender was around 15-20cm long and had been exposed to the receptionist for approximately 3 seconds. This was the offending in Sequence 5.
Sequence 2 occurred at 5.45pm on 29 July when the offender entered premises known as "The Tool Shed" in Darlinghurst. Working in the premises was a salesperson who was behind a counter. The offender asked that person whether the store sold erection gels and was shown a number of products. Whilst looking at those products, the offender asked the salesperson, "Can you give me some money?". The salesperson asked the offender what he meant and the offender repeated his request. The salesperson put the products away and the offender then said "Give me some money. Do you want me to come around the counter?" a number of times. The salesperson said "I don't have any money. I only have a credit card". The offender then walked around to the salesperson's side of the counter and was holding a screwdriver in his right hand. The offender held the screwdriver near his waist with the tip of it pointed towards the salesperson. The offender then demanded that he open the till and the salesperson said "Don't stab me, don't stab me" to which the offender replied "I won't". The offender then removed between $450 and $500 in cash from the till. The salesperson then started running towards the exit when the offender yelled out "Come back, I want the gels". The salesperson said to the offender, who was looking at some drawers behind the counter, "You're on camera" to which he replied "I don't care about the cameras. I'm going to chase you down the street". The salesperson then ran from the premises and contacted police who arrived a short time later. There was no CCTV available in relation to this incident.
Sequence 3 occurred at around 7.10pm on 29 July 2022 when the offender entered premises known as "AdultXXX City" in Darlinghurst. He was greeted by a salesperson and said to him words to the effect of, "Give me money for something to eat" to which the salesperson replied, "I didn't bring my wallet so I can't give you any money for something to eat".
The offender then became aggressive saying, "Well open the till and give me some money" to which the salesperson replied, "Sorry, that's not my money. I can't give you any of the store's money out of the till." The offender then said, "I told you to give me some money" and started to walk around the counter. The salesperson said, "Sorry you're not allowed to be behind the counter to which the offender replied, "Open the fucking till". As he was approaching the salesperson, he removed a screwdriver from his right pocket and held it in his right hand. The incident was captured on CCTV which formed part of Exhibit B. It clearly demonstrated the offender holding the screwdriver in his fist at above shoulder height with the metal end pointed towards the salesperson. He then used both hands to shove the salesperson on the chest and on his left shoulder.
As he held the screwdriver in his clenched fist just above shoulder height the offender again shoved the salesperson on his right shoulder using his left hand to direct him towards the till. He said, "Open the fucking till" at least twice and whilst the till was being opened the offender grabbed the salesperson's shirt on the left side of his back using his right hand which was still holding the screwdriver.
The offender then let go of the salesperson and grabbed almost all of the cash from the till, removing $475. As he did so he was holding the screwdriver in his right hand.
The offender then moved to the front of the counter and said to other customers in the store words to the effect of "Be smart. Don't try anything". He then ran out of the premises. Police were contacted and arrived a short time later.
The offender then entered hotel premises in Surry Hills at around 7.12pm and began playing poker machines within a VIP lounge in the premises. At 7.15pm police attended and placed him under arrest while he was seated at a poker machine which had $54.40 worth of credits playable on it. The following items were located and seized following a search of the offender:- 1. 15cm Phillips head screwdriver with a yellow and black handle; and 2. $257.10 cash.
The offender agreed to participate in an Electronic Record of Interview ('ERISP') in which he made partial admissions in relation to The Penthouse and Adult XXX premises. From his comments and presentation during the ERISP the offender appeared to be mentally unwell.
Exhibit A also included the criminal antecedents of the offender. He was born on 20 April 1979 and in the year 2000 had been convicted of traffic, larceny and possession of prohibited drug offences. Later that same year he was convicted of goods in personal custody, resist officer in execution of duty, supply prohibited drug and drive in a manner dangerous offences for which he was sentenced to concurrent sentences of imprisonment of 3 years and 6 months, together with a fine. In 2002 he was sentenced to concurrent sentences of 15 months imprisonment for three offences of supply prohibited drugs which sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ('CSPA').
In 2008 he was convicted of an offence of assault occasioning actual bodily harm for which he was sentenced to 8 months imprisonment, again suspended pursuant to s 12. In 2009 he was convicted of a common assault offence and given a s 9 bond for 12 months to be of good behaviour. He was also convicted of an offence of destroy or damage property for which he was fined and again placed on a s 9 bond for 12 months. In 2011 he was convicted of common assault and imprisoned for 4 months together with a concurrent sentence of 4 months for an offence of contravene prohibition/restriction in AVO (domestic).
In 2013 the offender was sentenced to 2 years and 5 months imprisonment with a non-parole period of 1 year and 3 months for an offence of assault with intent to rob and a term of 3 years imprisonment with a non-parole period of 1 year for an offence of robbery. In the same year he was convicted of offences of common assault and stalk/intimidate intend fear physical etc harm (domestic) and was sentenced to concurrent terms of 6 months imprisonment.
In 2015 the offender was convicted of common assault and was placed on a s 9 bond for 12 months. Upon callup in respect of that offence he was sentenced to 3 months imprisonment. He had further common assault convictions in 2015 and 2017 for which various terms of imprisonment were imposed. In 2018 he was again convicted of common assault and placed on a Conditional Release Order for 12 months. In 2019 he was convicted of 6 offences of destroy or damage property for which he was placed on concurrent Community Correction Orders for a period of 15 months from 14 August 2019 to 13 November 2020.
Exhibit A also included the offender's custodial history. Since he has been in custody on remand he had recorded five custodial infractions for failing a prescribed drug test, possess offensive weapon, conceal weapon for purpose of escape, intimidation and damage or destroy property.

Evidence relied on by the offender

Exhibit 1.1 was a report of Dr R Furst dated 19 May 2023. Dr Furst had been initially asked to assess the offender in relation to his fitness to be tried in December 2022 and opined that he was so fit. A further assessment took place on 28 March 2023 by audio-visual link.
Dr Furst set out that at the time of the offending the offender lived in a rental property at Liverpool, however he normally lived with his mother and brother. After leaving school in Year 12 he worked in the hospitality industry until he was about 30 years of age. He suffered from mental illness since his late twenties and early thirties, being diagnosed with schizophrenia and treated under a Community Treatment Order when he was about 30 years of age through the Liverpool Community Mental Health Team ('CoMHET'). In 2015 he was admitted to Liverpool Hospital and diagnosed with paranoid schizophrenia and treated with an antipsychotic medication. He was again admitted to hospital on 11 September 2016 with psychotic symptoms. On 14 July 2022 he was again admitted to Liverpool Hospital presenting with signs of agitation, paranoia, a lack of insight and was difficult to engage. He was managed in the High Dependency Area of the Mental Health Unit and remained a patient at Liverpool Hospital until 25 July 2022 when he was discharged only 4 days prior to the index offending. His diagnosis was a "relapse of chronic schizophrenia" and he was treated with depot injections.
Dr Furst recorded that he continues to experience symptoms of anxiety and paranoia despite taking monthly injections both in the community before his arrest and in custody.
Dr Furst also took a history that the offender had a problem with pathological gambling which included compulsive gambling on poker machines from the age 20 years.
The offender had a history of cannabis, MDMA and cocaine use on a regular basis in his twenties and thirties and started to use ice from around 2018 which became a regular habit. The offender stated that the index offending related to his use of ice, telling Dr Furst that he "need money for ice" and was craving ice at the time of the offending. The offender denied having any particular paranoid beliefs, hallucinations or hearing commands at the time of the index offending. However, he told Dr Furst that he heard voices "maybe sometimes. Not voices… I was unwell. I felt like something strange was happening".
Whilst on remand the offender has been working in the kitchen and metal workshop at the Clarence Correctional Centre. When eligible for parole he wanted to apply for a disability support pension and also hoped to do some labouring and/or construction work.
Dr Furst was of the opinion that the offender meets the criteria for schizophrenia, substance use disorder and a gambling disorder. With respect to his mental health condition leading up to or at the time of the offending conduct, Dr Furst opined as follows:- "Given his regular use of drugs over many years, it is likely that he relapsed into more acute symptoms of psychosis again, including paranoid thinking that Police wanted to kill him, within hours or days of his discharge from Liverpool Hospital, symptoms that continued up to and including the time of his offending. He was craving methylamphetamines and he committed the robberies in that context."
Dr Furst found no link between the offender's mental health conditions and his offending, rather the most likely contribution related to his express craving of methylamphetamines. He opined that his mental health conditions will make his time in custody more onerous than the general prison population. Dr Furst set out a treatment plan for him once the offender returns to the community.
Exhibit 1.2 is a letter from the offender dated 13 July 2023 in which he states that at the time of the offending he was under the influence of drugs having smoked ice and was going through "some serious mental health issues". He expressed his remorse, stating "I am very sorry and deeply regretful not only to the court but to the victims, the community and to my family also". He stated that he understood that the victims would have been scared and frightened.
The offender promised that when released from custody he will go to hospital for his medication and comply with his Community Treatment Order. He stated that he would like to get a job in construction or one day open a business. He further stated that he was going to stop using drugs and was happy to "attend parole or any other counselling".
Exhibit 1.3 was the Discharge Summary from Liverpool Hospital. He had presented on 9 July 2002 admitting non-compliance with his medical regime and was minimising symptoms. He presented with poor selfcare and paranoid thoughts towards police and was worried he was being watched and spied on through cameras. Due to poor insight and risk of further deterioration he was admitted to the Mental Health Unit. On discharge he was referred to the CoMHET for community follow up. At the time of discharge he was assessed as being a low risk of suicide and self-harm but a high risk of violence.
Exhibit 1.4 was a Reception Screening Assessment from Justice Health dated 30 July 2022 which noted the offender's poor engagement and his statement that he was suicidal at the time.
Exhibit 1.5 were nursing notes from Justice Health dated 30 July 2022 which noted his past history of schizophrenia and a request by the offender to go to the hospital.

The Crown submissions

The Crown relied on a thorough and detailed written outline of submissions which set out the offences and conceded the offender was entitled to a utilitarian discount of 25% for his early plea of guilty.
In assessing the objective seriousness of the offending the Crown submitted the court would have regard to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 11. The Crown submitted that each of the robbery offences fell within the lower end of the mid-range of objective seriousness, noting that one of the characteristics in Henry, namely, "young offender with little or no criminal history" did not apply here as the offender was 43 years of age at the time of the offences with a significant criminal history.
In respect of the issue of "limited, if any, actual violence but a real threat thereof" the Crown submitted as follows:- 1. "Sequences 5 and 2 did not involve any actual violence, but a real threat thereof. The offender was armed with a 15cm Phillips head screwdriver. The offender approached the victims whilst armed with the screwdriver and came within very close proximity of the victims. 2. Sequence 3 involved the actual use of the screwdriver by the offender. The offender held the screwdriver just above shoulder height towards the victim for 5 seconds in very close proximity to the victim. Sequence 3 also involved the use by the offender of repeated corporal violence. The offender shoved the victim 3 times and held the victim's shirt at his shoulder with his right hand for 2 seconds. The offender is holding the screwdriver in his right hand at the same time he is holding onto the victim's shirt. 3. The offender, in each of Sequences 2, 3, and 5, effectively trapped each victim within the front register or reception area of the respective premises. Each victim had no means of escape (or no means of easy escape), temporarily depriving them of their liberty. 4. Each victim saw the screwdriver being held in the offender's hand. The screwdriver was visible for 3 seconds during Sequence 5 and for the entirety of Sequences 2 and 3. 5. Sequence 5 lasted around 15-20 seconds (from the time the offender began demanding cash to when the offender walks away before stealing the phone). It is not known precisely how long Sequence 2 lasted for. Sequence 3 lasted for around 55 seconds (from the time the offender first begins demanding cash to when he walks away). Considering the repeated demands for cash and ongoing threat of the presence of the screwdriver, this would have been terrifying for the victims. Even if the Court were to consider the offences of short duration, this is of little assistance to an offender where, for the time the incident did extend, it would have been frightening to the victim: Chung v R [2017] NSWCCA 48 at [77]. 6. In relation to Sequence 2, the offender told the victim that he would not stab him. Reassuring words by an offender during an armed robbery do not alleviate the seriousness of the offence, and the possible traumatic effect of the offence: R v Speeding (2001) 121 A Crim R 426; [2001] NSWCCA 105."
A further difference from the guideline judgment in Henry was that that case pertained to a late plea of guilty with little utilitarian value whereas the offender here is entitled to a discount of 25%.
The Crown submitted that the offender's motivation to obtain money for methylamphetamine was neither an excuse nor a matter of mitigation, however, in accordance with Henry, it was a factor to be taken into account relevant to the objective criminality of the offending in so far as it affected the impulsivity of the offence or the extent of planning for it. The Crown submitted that the offender's motivation here for committing the robberies would not necessarily elevate the objective seriousness of the offending.
The Crown submitted that the offender's moral culpability for the offending is not reduced because the evidence did not support that the offender's mental health contributed to the commission of the offence in a material way.
The Crown noted that in the criminal antecedents of the offender, in 2012 he had served a sentence of fulltime imprisonment for two charges of assault with intent to rob and two charges of robbery. He also had several convictions of common assault recorded since then and it was submitted the court would hold some concern that the present offending appeared to indicate a re-escalation of his offending conduct.
The Crown relied on Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] in respect of the principles that apply when sentencing an offender with mental health issues.
The Crown submitted that the need to protect the community from a person suffering a mental illness which makes them a potential danger may be a very significant factor to be considered in sentencing, relying on R v Dong [2021] NSWCCA 82 at [48] per Beech-Jones J (as his Honour then was).
The Crown referred to Dr Furst's conclusion that there was no direct causal link between the offender's schizophrenia and the index offending but that there may be an indirect relationship between his mental illness and drug use. The Crown submitted that it could not be said that the offender's schizophrenia contributed to the commission of offences in a material way such that the offender's moral culpability would be reduced. The Crown submitted that Dr Furst appears to suggest that the offender's regular drug abuse causes or has a part to play in his relapse into more acute symptoms of psychosis.
The Crown submitted that the offender's gambling addiction was not a mitigating factor and that the court would be guarded about the offender's statement of remorse and his prospects of rehabilitation.
An aggravating factor pursuant to s21A(2)(l) of the CSPA was the fact that the victims were vulnerable given their occupation as retail attendants or receptionists.
The Crown conceded the following mitigating factors:- 1. The offence was not part of a planned or organised criminal activity (s21A(3)(b)); and 2. The offender entered a plea of guilty (s21A(3)(k).
The Crown conceded that partial accumulation of sentences for the robbery offences was appropriate here. Partial accumulation was needed to reflect the offending as being multiple distinct acts of criminality at distinct locations and to acknowledge the harm done to each victim, relying on DS v R [2017] NSWCCA 37 and BT v R [2012] NSWCCA 128.
The Crown submitted that the s 5 threshold had been crossed and no penalty other than fulltime imprisonment was appropriate in the circumstances. The Crown conceded that it was open to the court to make a finding of special circumstances.
In her oral submissions the Crown noted that the five infractions whilst in custody raised a concern about the offender's prospects of rehabilitation. In response to a submission on behalf of the offender that the offender had a lack of support and stability in his life, the Crown submitted there was no evidence of such a lack of support rather Dr Furst had reported that he had lived with his mother and brother. Further the evidence established that he was receiving ongoing treatment for his mental health issues.
In response to a submission made on behalf of the offender that his capacity to exercise judgment was impugned by his mental health issues, the Crown submitted that the motivation for the offending was his craving for the prohibited drug ice. Otherwise the evidence established that he had been discharged from hospital on 25 July 2022 after 11 days in hospital, just 4 days before the offences took place. The Crown therefore submitted that the evidence established he did have capacity to exercise judgment. The main issue before the parties concerned whether the moral culpability of the offender should be diminished so as to reduce the need for denunciation, general deterrence and specific deterrence in sentencing. The Crown relied on Dr Furst's opinion that there was no causal link between the offender's mental health issues and the offending.

The offender's submissions

Counsel on behalf of the offender also relied on a detailed and thorough written outline of submissions. Counsel submitted that the offending for each matter can be properly characterised as falling just below the notional mid-range of objective seriousness. Here, the offending differed from the guideline judgment in R v Henry because:- 1. "The court must take into account the offences on the Form 1; 2. The offender is not a young offender with little or no criminal record; 3. The plea of guilty was entered at an earlier opportunity compared with R v Henry; and 4. The offender has a mental health disorder."
The offender submitted that the objective seriousness of the offending fell below mid-range for the following reasons:- 1. The offender's participation was impulsive and motivated by his drug and gambling addictions; 2. The offence was committed without significant deliberation or forethought; 3. The offender's involvement was temporally brief; 4. The offending was unsophisticated. There was the inevitable risk of detection given he took no steps to disguise himself and was captured clearly on CCTV committing the offences; 5. The only property taken was a small amount of money; and 6. The offender did not physically harm any of victims nor did he threaten them with things that he said to them."
It was submitted that the fact that he was followed by the victim in Sequence 5 indicated that her level of fear toward him was not significant.
The offender submitted that his capacity to exercise judgment has been impugned as a result of drug addiction and mental health issues which were relevant to provide context to his offending conduct. It was submitted that drug addiction can be relevant to the objective criminality as it may cast light on the state of mind or capacity for the offender to exercise judgment, referring to R v Henry at [273].
Counsel set out subjective features of the offender to be taken into account. He is a single man with no children who was aged 43 years at the time of the offences. He had previously worked in the hospitality industry until he was in his thirties and had previously successfully completed both suspended sentences and good behaviour bonds without breach. Further there were gaps in his criminal record between 2001 and 2008, between November 2009 and March 2011, and between May 2019 and July 2022.
The offender had been diagnosed with schizophrenia for the past 15 years and had been treated both in custody and the community with a number of admissions to hospital as an inpatient as well as Community Treatment Orders. He is currently working in custody in the kitchen and metal workshop, and has future plans to remain abstinent from drugs and to comply with Community Treatment Orders and parole.
Counsel submitted that the offender's moral culpability is an important factor that bears on an appropriate sentence here. This is because it informs the extent to which the person deserves to be punished in the sense of retribution and denunciation. The offender has a long history of mental health issues, and the diagnoses are not challenged by the Crown. Counsel noted that the offender's admissions to Liverpool Hospital in 2016 and 2022 do not correlate with him having committed any offences, thus it was submitted that his moral culpability is reduced because his mental illness contributed to the commission of the offences.
The offender relied on the opinion of Dr Furst that whilst his offending appears not to be driven by psychotic symptoms, those symptoms were still likely present at the time of the offences thus the need for denunciation and punishment is moderated. Further, he was not an appropriate vehicle for general deterrence and a fulltime sentence of imprisonment will be more onerous for this offender. It was further submitted that neither the nature of the offending nor his criminal antecedents warrant a conclusion that protection of the community should sound in special deterrence.
Counsel noted the offender was entitled to a 25% discount on sentence and submitted that he had expressed remorse in his letter to the court. Counsel further conceded that the offender's prospects of rehabilitation are guarded in light of his criminal history and complex needs, however there was some cause for optimism given his stated future intentions to be abstinent of prohibited drugs, to comply with his medication regime and to obtain work in the community.
The offender accepts that there must be some accumulation on sentence to reflect the multiple victims and that each offence represented a separate and discrete act of criminality. However the offences occurred on the same day in little over an hour and each was of short duration. Thus it was submitted that there should be a significant degree of concurrency between the individual sentences to comprehend and reflect the total criminality of all of the offences.
Counsel submitted that a combination of circumstances justified a finding of special circumstances here, based on the need for an extended period of supervision, the period of time he has spent on remand subject to lockdowns associated with COVID-19, the fact that his mental health issues will make his time in custody more onerous and the risk in this case that the offender may become institutionalised.
In his oral submissions Counsel for the offender rehearsed his submissions regarding the assessment of objective seriousness. It was submitted that the offending occurred over a short period of time between 1 and 2 hours, there was no sophistication whatsoever and no planning. It was submitted that the threat of violence in both The Penthouse and Tool Shed offending was not particularly high, however more threatening use of the screwdriver was made in the offence in Sequence 3 that occurred in the AdultXXX City shop. He also pushed the victim in an incident characterised as being frightening for the victim but short lived.
Counsel rehearsed his submission that there was no attempt to disguise himself and two of the incidents were caught on CCTV. Counsel also rehearsed his submission regarding the application of the principle of totality of criminality given there was more than one victim and the offending was repetitive in nature. It was submitted that a positive finding could be made here, based on the history of the offender's mental health disorders which provided a link, giving rise to his use of prohibited drugs and impaired life decisions which ultimately led to a diminished moral culpability for the offending.
With respect to protection of the community it was submitted that the offender's criminal history was not advocated by the Crown to be an aggravating factor and could not be, particularly given that he was suffering mental health issues at times when he committed other offences.
The Court would have regard to the fact that the offender has in the past sought out treatment in the community, relying on Exhibit 1.3, and that he has been compliant with his medication regime in custody. The offender had also been in three different correctional facilities on remand because of his mental health issues and treatment, however, he was now working in two roles in custody.
Ultimately counsel conceded there was no dispute that the threshold in s 5 of the CSPA had been crossed and no penalty other than a fulltime custodial sentence was warranted in all of the circumstances. However, in this case the statutory ratio between head sentence and non-parole period should be varied to allow him a substantial amount of time under supervision representing 50-60% of his sentence.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In R v Henry at [99] Spigelman CJ said:- "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."
In assessing the objective seriousness of the three offences here, of the seven factors identified in the guideline judgment not all are relevant here. First the offender was 43 years of age and has entered an early plea of guilty entitling him to a 25% utilitarian discount on sentence. The offending in Sequence 5 involved the offender revealing the screwdriver for a short period of time, 3 seconds, to the receptionist, holding it at waist height with the metal pointed towards her. Whilst the incident would have caused fear in a vulnerable victim, she exhibited resilience to it, even to the point of chasing the offender onto the street and demanding the return of her phone. The offence on the Form 1 for this offence concerning stealing the phone pursuant to s 94(b) of the Crimes Act, given that it was returned to the victim after a short period of time, does not warrant any accumulation on sentence. Whilst the offence in Sequence 5 was objectively serious offending, it fell below the mid-range for an offence pursuant to s97(1) of the Crimes Act and towards the middle of the low range for such an offence.
The offending in Sequence 2 again involved the use by the offender of the same Phillips head screwdriver, which the offender was holding near his waist, pointed towards the vulnerable victim. The offender did not lift the screwdriver past his waist. The incident engendered fear in the victim who said, "Don't stab me. Don't stab me". Notwithstanding that the offender said, "I won't", the victim managed to escape the premises while the offender was removing cash from the till. Again the objective seriousness of the offending fell below the mid-range for an offence pursuant to s97(1) and towards the lower end of the range for such an offence. It still constituted serious offending.
The objective seriousness of the offending in Sequence 3 involved the offender demanding money from the till of the employee at the AdultXXX City store. On this occasion the offender pushed the vulnerable victim with both hands and held the screwdriver in a clenched fist just above shoulder height and shoved him again on his right shoulder using his left hand to direct him towards the till when he said, "Open the fucking till" at least twice. Whilst the till was open, he grabbed the victim's shirt on the left side of his back with his right had in which he was still holding the screwdriver. On leaving the store, having taken $475 from the till, he confronted other customers in the store saying words to the effect of, "Be Smart. Don't try anything". This too was objectively serious offending and whilst it was below the mid-range for an offence pursuant to s97(1) of the Crimes Act, it was in the upper part of the low range for such an offence. The offence on the Form 1 attached to this offence, being Sequence 4, the offence of deal with property proceeds of crime less than $100,000, was given the small amount taken, towards the lowest end of the range for such an offence and does not warrant accumulation of sentence in relation to Sequence 3.
I take into account the offender's criminal history as outlined above. I have regard to what the High Court said in Veen v R [No. 2] (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
It is clear that the offender falls into the latter category and his criminal history of itself, given the commission of similar offences, disentitles him to leniency.
It was also an aggravating feature of the offending that all three victims were vulnerable given their occupation. As that is a factor taken into account in the guideline judgment, I have been careful not to double count it as an aggravating factor.
I accept that a mitigating factor here, was the lack of planning and unsophisticated nature of the offending which is also taken into account in the guideline judgment in terms of limited planning. I have therefore been careful not to double count this as a mitigating factor. I also note that the offender by his early plea of guilty is entitled to a 25% utilitarian discount on sentence.
I have taken into account that the maximum penalty for each of the three offences in Sequences 5, 2 and 3, is 20 years imprisonment. This is a guidepost in the sentencing process for each offence and an indication of the seriousness with which Parliament regards such offending.
As outlined in the guideline judgment of Henry, general deterrence is important in sentencing for armed robbery offences in that a clear message must be sent to likeminded members in the community that Parliament has prescribed lengthy maximum penalties for such offences and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important here given the offender's age and criminal history as set out above, subject to the following matters.
I have taken into account the subjective factors relating to the offender as outlined by his counsel. He is now 44 years of age, is a single man and has been unemployed for some years. For the last 15 years he has suffered mental health issues, having been diagnosed as a schizophrenic, and has suffered psychotic episodes from time to time requiring three hospital admissions as well as being subject to Community Treatment Orders for which he has been largely compliant. He was in fact admitted to Liverpool Hospital just prior to the offending and discharged only four days beforehand.
In DPP (Cth) v De La Rosa, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-

"Where the state of person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

I am satisfied that here the mental health condition suffered by the offender contributed to his offending in a material way by reference to his addiction to methylamphetamines. This is a matter that diminishes his moral culpability for the offending. It does, in accordance with the principles in De La Rosa diminish significantly the need for denunciation and the impact of general and specific deterrence for his offending conduct. That however must be balanced by the final factor referred to by his Honour in De La Rosa, namely protection of the community, which in appropriate cases may lead to an increased sentence. I therefore accept the Crown's submission that given this offender's diagnosis together with his past history of similar offending, which makes him a potential danger in the community, protection of the community must be a significant factor in sentencing - see R v Dong, supra, at [48].
I also find that the offender's mental health diagnosis will mean a custodial sentence will be more onerous for him than the general prison population. The offender accepts that the threshold in s 5 of the CSPA has been crossed and that no sentence other than one of fulltime custody is appropriate in all of the circumstances.
I accept that the offender has expressed some remorse for his offending in his letter to the court (Exhibit 1.2). I find however that his prospects of rehabilitation must be guarded given his past history of offending and his mental health diagnosis. It will be entirely dependent on the offender undergoing meaningful rehabilitation and adopting relapse prevention strategies.
I propose to impose an aggregate sentence pursuant to s53A of the CSPA. In order to provide transparency in the sentencing process I find for each offence the following indicative sentences, taking into account the objective seriousness of the offending, the subjective matters submitted above and a utilitarian discount of 25%:- 1. Sequence 5 (including the Form 1 offence) indicative sentence of 2 years and 6 months imprisonment. 2. Sequence 3 (including the Form 1 offence) indicative sentence of 3 years imprisonment. 3. Sequence 2 indicative sentence of 2 years and 6 months imprisonment.
In determining the appropriate aggregate sentence, principles of proportionality and totality must be applied. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour.
In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Howie J said at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

Orders

I hereby order as follows:- 1. You are convicted of the following offences:- 1. Sequence 5 - assault with intent to rob armed with offensive weapon an offence contrary to s 97(1) of the Crimes Act 1900. 2. Sequence 2 - Robbery armed with offensive weapon an offence contrary to s 97(1) of the Crimes Act 1900. 3. Sequence 3 - Robbery armed with offensive weapon an offence contrary to s 97(1) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months to commence on 29 July 2022 and terminating on 28 April 2024. The balance of the term will be from 29 April 2024 to 28 January 2026. 2. Your parole eligibility date will be 28 April 2024. 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. 3. I have certified that I have taken into account the offences on the Forms 1 attached to Sequence 3 and Sequence 5 as outlined above. 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: 01 September 2023

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