HIS HONOUR: The prisoner appears today for sentence in relation to an offence contrary to s 97(1) Crimes Act 1900, that is, robbery whilst armed with an offensive weapon. That offence carries a maximum penalty of 20 years imprisonment. There is no standard non parole period.
There is also a matter on a Form 1 to be taken into account, that is, an offence described as an 'attempt to obtain prescribed restricted substance', the facts of which are available in the file provided by the Crown, along with the facts in relation to the principal offence.
The offender pleaded guilty at the Local Court and I am proposing in due course to give the prisoner the benefit of a discount of 25% upon the otherwise appropriate sentence for the utilitarian benefit of the plea of guilty in accordance with the Thomson and Houlton decision of 1999 setting out a "guideline" in relation to providing discounts to recognise the utilitarian benefit of pleas of guilty.
The prisoner was arrested in relation to the current matter on 18 July 2016 and remained in custody for four months and three weeks from 18 July 2016 until 30 November 2016. He was granted Bail by the Supreme Court on various conditions, which I have read, and those conditions generally still apply. Although some of these are otiose to current requirements. Essentially they required him to undertake a course of rehabilitation at Odyssey House to comply with all directions of Odyssey House or any other service provider not to take illegal drugs nor abuse prescription drugs other than in accordance with directions of a medical practitioner and to speedily transfer to the residential program that he has undertaken since his release on Bail.
There is an alleged "co-offender" who apparently was charged with less serious offences, including receiving stolen property and utter a forged prescription, who was discharged under various conditions I would assume pursuant to s 32 Mental Health (Forensic Provisions) Act 1990. Having regard to the facts of the principal offence little issue of parity arises in respect of the sentencing of this offender, bearing in mind of course that he is for sentence, in respect of the principal offence, for a far more serious offence in the District Court as opposed to the offence for which the supposed "co-accused" was dealt with disposable in the Local Court.
The facts of the matter are set out in the statement of facts tendered by the Crown, which is not in dispute. I am assisted to some extent by some closed circuit television still images showing various scenes relevant to what is alleged against the accused. The prisoner entered a pharmacy called the 'Cremorne Pharmacy' in Spofforth Street, Cremorne at about 8pm on 18 July 2016. He and the other person in his company handed to the pharmacist two prescription scripts both in the name of Anne Ryrie. The first script was for diazepam which was dispensed. The second drug on that script was the drug doxycycline which could only be dispensed on that date. The second script was for a medication call hydromorphone which is a Schedule 8 drug, pursuant to the Poisons and Therapeutic Goods Act 1999, which the pharmacist did not dispense. That second script was returned to the 'co-accused' and thus it would seem to me represents perhaps one of the charges that were dealt with in relation to that offender.
The matter on the Form 1 with which I am concerned is an offence committed by the offender on 18 July 2016 at a pharmacy, as I understand it, at St Leonards when the offender presented a script in the name of 'Alexander T Ryrie' incorporating the surname that was used for the purposes of the other scripts sought to be dispensed at the later time. There was a request on the scripts for two particular medications and the facts reveal that after some discussion with the pharmacist and some concern by the pharmacist on the character of the script, the medication was ultimately not dispensed as I understand the facts.
The two incidents, that is, the attending upon the Cremorne pharmacy at 8pm and the earlier attempt to have the script filled in the name of 'Alexander Ryrie' reflect an aspect of all the offending with which I am concerned. That is quite clearly the prisoner's dependency upon prescription drugs and the fact that for some period of time before the commission of the principal offence the prisoner had not only been addicted to a wide range of drugs but had engaged regularly in what could be called 'doctor shopping' and 'pharmacy shopping' to obtain medications beyond his immediate medical needs.
So far as the armed robbery is concerned CCTV footage outside the pharmacy showed the prisoner walking away from the pharmacy after the initial approach at 8pm, sometime around about 8.08pm, and then approximately seven minutes later the prisoner is shown walking out of a passageway, nearby it would seem, to where the pharmacy carrying a blue plastic milk crate which it seems he obtained from the passageway. He then walked back into the passageway without the milk crate and then walked back into Spofforth Street.
At some time around about 8.30pm, and there had been some gap in the coverage of the prisoner's movements, the prisoner returned to the pharmacy alone. On this occasion he was brandishing a pair of metallic scissors in his left hand and the blue milk crate to which I earlier referred was in his right hand. He said words to the effect to the pharmacist and her assistant, there was a female customer with a small child in the pharmacy as well, "I'm sorry to do this to you but I'm going to need all your S Eights". This was a reference to Schedule Eight drugs. That is, drugs that are otherwise restricted under the Poisons and Therapeutic Goods Act 1966.
The prisoner was told by the pharmacist that that was fine but the prisoner was not to harm anybody else in the store and she would do what he wanted I am assuming the pharmacist was a lady from the name. Her grace under pressure is to be admired.
The prisoner obtained in due course a number of drugs which I will identify in a moment. But he said when the pharmacist went to the pharmacy safe:
"I want one of you getting the schedule 8's and one of you to get the benzos."
That last word being a reference to benzodiazepine. He demanded the production of valium and pseudoephedrine, specifically indicating the Sudafed brand medication, and a number of boxes of medication were placed into a grey plastic bag and the bag was ordered to be put in the crate. Strangely the prisoner then said that he wanted "half the money." Indicating towards the cash register. The prisoner was handed, as I understand it, a sum of money in $5, $10 and $20 notes. Eventually he took $290 in total. Again, strangely the prisoner instructed the pharmacist to "give the assistant $20" and then took the money from the pharmacist.
The prisoner left the pharmacy dropping the scissors as he left. He then picked them up again and walked out of the store holding the scissors in one hand and the milk crate with the boxes of medication in the other.
The pharmacist followed him and saw him enter a red hatchback which was within 10 or 15 minutes identified by police a short distance away. The prisoner was found in company with the person described as the "co-accused". He was not, as I understand it, present in the pharmacy at the time of the offending involving the robbery.
When the prisoner exited the car on the intercession of the police a pair of metal scissors fell out of his right pocket onto the railway. The blue plastic milk crate was found with the plastic bag in it containing 11 boxes of Sudafed, nine boxes of Targin in various dosages, 11 boxes of Concerta of various dosage amounts, eight boxes of OxyNorm capsules in various dosage amount, two boxes of Norspan, ten boxes of Endone, four boxes of diazepam variously branded. These various medications are either very powerful pain killers or benzodiazepines and similar prescribed drugs.
The prisoner had a backpack in which there was a notebook with various handwritten notes including a guide to complete synthesis of methamphetamine and various pages, instructions on acquisition of diazepam and other medication from practitioners including a summary of pretences used in obtaining medication, synthesis of various substances, including elemental iodine, pseudoephedrine and anthranilic acid, and notes in relation to "the search" and "experimental chemicals", as well as a blister pack of 5 milligram diazepam tablets which were two in all. There were two beanies, $290 in denominations as I have described, taken obviously from the chemist shop, and a number of unfilled prescriptions in various names, including the name of Anne Ryrie to which I earlier referred and another box of diazepam from the Cremorne Pharmacy issued to Anne Ryrie, the medication that had been dispensed at 8am.
There was certain material found in the co-accused's possession which I need not dwell upon. The prisoner was interviewed and although he declined to answer most of the questions he made admissions to owning the backpack, the notebook and owning the prescriptions found in his backpack as part of the collection of what are described as "prescriptions and medications".
Police undertook various forensic examinations to endeavour to link the prisoner with matters concerned with the armed robbery. Inquiries made of some of the prescription sheets in the prisoner's possession discovered that the prescription book was 'obsolete' as it is described. The prisoner had been a patient of the surgery of the doctor whose name the prescriptions were purportedly issued, although unfilled, but the doctor in question had no knowledge of the prisoner or the co-accused.
The man who drove the red car was apparently an innocent party in all of this. He had been contacted by the prisoner asking him to be picked up. It would seem just before the armed robbery occurred, and there are text messages in the facts confirming that fact. The driver of the car gave details of the circumstances which he came to pick up the prisoner.
The prisoner remained in custody until granted bail in the Supreme Court in the circumstances I previously outlined. With regard to the prisoner's criminal history he has a finding of guilt in the Children's Court on 5 March 2013 in respect of an offence that would seem to have been committed between very late 2011 and April 2012 of "manufacture prohibited drug". The Crown has provided me with facts in relation to that. The prisoner was manufacturing prohibited drugs I understand it in the residence of his mother and that offence was committed as I would calculate the matter at a time when the prisoner was 17 years and 2 months of age. He was born on 10 October 1995. He was thus, as I would understand it, 20 years of age at the time of the commission of the offence with which I am now concerned. He is now 21 years of age.
He has a finding of guilt in April 2015 for an offence committed in November 2014 for "shoplifting" and giving a "false name". Has no convictions for robbery type matters nor findings of guilt in relation to such matters nor previous convictions for violence.
The material provided within the pre-sentence report, the material provided by the accused through the oral evidence he gave, an extensive affidavit of his mother and the history he gave to a psychologist appears to me to be generally consistent. With regard to the pre-sentence report it sets out details of his background, which I will summarise from the prisoner's mother's affidavit because it has greater detail, and discusses factors relating to his offending, his attitude to the offending and his general risk to the community based upon the instrument that are used by Community Corrections and an assessment of him in summary.
So far as factors relating to offending are concerned the Community Corrections Service points to a long history of drug dependency, he began injecting heroin in his teen years of about 14 years of age and has been an opioid abuser in various ways both through prescription medication and drug ingestion up until the time of his arrest.
There is a history of overdosing whilst living in Germany for a period of time, the prisoner's mother is of Polish background but the prisoner as I understand it and his mother are both German citizens. The prisoner is also now a citizen of Australia.
The Community Corrections Service reports that the prisoner when assessed was living at Odyssey House which has provided a report to the Court. His progress through that program has been "positive". The prisoner told the Community Corrections Service that he had little to no recollection of the offence, although he did not deny it occurred and admitted shame and embarrassment for his offending behaviour. He expressed concern for the victims and stated he would not want to put anyone through that experience again. He has spent some time in reflection after his arrest identifying what had led to his life culminating in the commission of this serious offence. He believed the treatment he was receiving at Odyssey House was assisting him. On the instrument or "assessment tool", used by Community Corrections he was assessed as a "low-medium risk" of reoffending. Particular matters that he obviously needs to address are alcohol and drug issues, his financial circumstances and matters relating to education and employment, although it must be said, as I will reveal in a moment, the prisoner is remarkably a well-educated young man and quite considerably accomplished and no doubt he is a person of very high intelligence. His mother is an academic now in Australia and has lived in Australia for some period of time. The prisoner is fluent in a number of languages. He was enrolled at university for up to three years and as I understand it at the time of his arrest was in fact in his third year at university.
The assessment of the Community Corrections Service was that the prisoner had shown a "willingness to address the issues related to his offending behaviour". It reported upon addressing his "long-term drug use" at Odyssey House and he had performed satisfactorily to date on that program. He had been abstinent from illicit drug use since his release from custody on 30 November 2016 and it is thought that he had benefit from ongoing support from that program and would benefit from completing that program in order for him to move forward in his life and utilise "his academic talents".
So far as his mother's account of his history is concerned that is a very detailed affidavit and I do not think I can do justice to it in summarising it here in these remarks on sentence. I pointed out that his mother is an academic and her area of research and teaching is in relation to intercultural communication, "Global Power and Justice" with experience of teaching in universities across the world for 25 years.
The prisoner was born in London and had lived with his mother in Berlin, at a city near Shanghai and then Sydney. She described him as a "creative, compassionate, open-minded cosmopolitan person". He speaks English, German, Spanish and some Mandarin Chinese. He skipped a full grade of school while attending an international school in China and completed a bilingual international baccalaureate, an internationally recognised high school matriculation qualification in Sydney in 2013, at the age of 17. He had studied at Sydney University and was due to graduate, if he completed the course, in 2017 in a degree in Political Economic and Social Sciences.
The mother described the prisoner's life being in "turmoil" since she and her son moved to Sydney in March 2008, the prisoner was then 12 years of age. A number of significant events happened when he was 12 or 13. Firstly, his grandmother was diagnosed with Alzheimer's Disease when only 64 years of age and that disease progressed very quickly. Furthermore, the prisoner was diagnosed with Type 1 Diabetes in 2009 and has been insulin dependent ever since. I note in relation to that matter I have some evidence in respect of its current situation, it seems to be maintained by regular insulin intake, but whilst in custody on a number of occasions the prisoner, not being able to take insulin at the times required, had hypoglycaemic episodes which required some medical treatment and even hospitalisation. The effect of these events on the prisoner was quite profound. There was suggestion even in his early teen years of some suicidal ideation. The effect of diabetes on his general health was significant and he was required thereinafter to be extremely vigilant to avoid hypoglycaemic incidents.
Notwithstanding the difficulties he had in that regard his mother describes he was a young man with progressive attitudes, with interests in social justice in a range of ways, helping disabled people and working in the fundraising events in relation to peace initiatives and also in support of World AIDS Day.
The prisoner it would seem, and his mother for that matter as best I can work out, were estranged from the prisoner's father. In fact it was quite sad to read the fact that when the prisoner was about 17 turning 18, whilst in Berlin, or London, it doesn't matter precisely where he was, his father informed him that once he turned 18 he was no longer "responsible" for him.
Prior to that, in 2011, when he was 15, he suffered an opioid overdose in his father's bathroom in London and the mother obviously was greatly concerned. He had overdosed on prescription drugs largely prescribed to treat anxiety and sleeplessness. Through his mother's efforts, I assume, he did see a psychologist in 2012 and undertook mindfulness type techniques. However, he continued to abuse benzodiazepines and other prescription drugs for a period of time. He was prescribed drugs by a particular medical practitioner in Neutral Bay and the mother confronted that practitioner concerning the prescription of drugs of that type to an underage boy. She was told the drugs had been prescribed for people with a mental illness and she identified one of the prescription drugs as "strong painkiller" not relevant for the treatment of any mental health issue.
He had less and less contact with his father whilst he was living in Sydney and just prior to his eighteenth birthday he overdosed again, as I understand it in Berlin. He was placed in a non-residential program in Berlin which basically used a replacement drug treatment, or substitution treatment, about which the prisoner spoke in his evidence. He identified in his evidence, astutely, that programs that merely substitute an addictive drug with a prescription drug were counterproductive for him and that the Odyssey House program of abstinence, he realises, is the only way that he would be able to drag himself out of the mire in which he has been enmeshed for quite some number of years. He understood, of course, that whilst he had some detoxification in Berlin there was no rehabilitation phase, it would seem. Merely a drug substitution program. He realises that he required closer follow-up after he had detoxified on that particular occasion.
The mother has given evidence, through her affidavit, that she saw her son a few days after the incident and he was still confused and not able to give a coherent account of what had happened, reflecting upon the extent to which he was affected by such medication or drugs as he had ingested in the commission of the offence.
It is noteworthy from the objective facts that the prisoner's remarks and the requests were somewhat bizarre. An apology in committing the offence, an indication to the pharmacist that some of the money that he was stealing should be given to the Assistant, and, of course, his clumsiness dropping the scissors as he left the pharmacy, are hallmarks of him being affected at that particular time.
She speaks of his remorse, the progress the prisoner has made whilst at Odyssey House and his desire to complete the program there for the long-term betterment of himself. His mother is satisfied that he is safe in Odyssey House and it is the best chance for him to have a "drug-free future". She has obviously great fears for her son, the fact that the ingestion of drugs may kill him and the like.
Odyssey House has prepared a report. The prisoner is at 'Stage 3' at the moment, as the Community Corrections Service has reported. The report available to the Court, dated 21 July 2017, reflects upon his progress to that level and the various levels that he has passed through. It makes observations about what the prisoner is undertaking at the present time, endeavouring to identify the underlying causes of his previous abuse amongst other matters. The prisoner still has some way to go in completing the course and also it is observed that his current stage or level, for at least four months and will require to complete level 4, which will include some community living away from the residence that is controlled by Odyssey House. The Odyssey House program, of course, is well-known to courts as one of many constructive rehabilitation programs with very high levels of professional assistance, direction and integrity in the administration of the programs.
I have a reference from a friend of the prisoner, who is slightly older, who reflects upon the prisoner's character, the prisoner's difficulties during his teenage years, his relationship with other people, his better quality, so to speak. He speaks of the prisoner's expressions of regret for his involvement in the commission of the events. He notes a change of attitude in the prisoner from the attitude he had in years past, appearing to the author of the reference "more level-headed" now and actively acknowledging the impact upon him of the drugs that he has abused.
I also have a report from Mr Sam Borenstein, which sets out a great deal of history, which I have already reflected upon from the firsthand evidence of the mother and the evidence given by the prisoner himself. Mr Borenstein reflects upon the progress of the prisoner at Odyssey House. He noted that the prisoner had insight into the extent and nature of his drug use and the impact on his daily life, which has been a motivation for him to continue rehabilitation and reflects upon the failure of previous rehabilitation, perhaps for reasons beyond the control of the prisoner. He noted on such psychometric testing as he undertook that the prisoner's assessment from a "Personality Assessment Screener" noted scores consistent with measure of "depression and anxiety". His profile reflects upon a personality or a history of acting impulsively and unsuccessful relationship formation with others, as reflected in his relationship with his father.
He noted the prisoner's lack of memory of aspects of the principal offence and the fact that at the time of the commission of the offence the prisoner's immediate friends had to some extent rejected him in light of his frequent dependency and use of drugs. His history, it is said, confirms a sensitivity to rejection and marginalisation and that he has suffered over a number of years a significant amount of emotional turmoil, which he had previously not acknowledged, and was unable to manage the symptoms of, except by the abuse of drugs.
The assessment, or "diagnosis" of the psychologist is that of a person with a substance dependency/opiate use disorder, which would be self-evident from the history that I have outlined. It is currently in remission. He said that the prisoner understand the need to undertake psychological therapy to address long-standing emotional and psychological vulnerabilities, that I have already outlined, and that he would also require substantial therapy, such as cognitive behaviour therapy or CBT, and what is described as Dialectical Behaviour Therapy, focussing on mood, affect regulation, utilising mindful and allied techniques, and also he should in his counselling focus on his interpersonal relationships, addressing the sensitivities that might lead to relapse or aggression. He believed that psychological intervention and the current drug rehabilitation will mean the likelihood of the reoffending by this prisoner would be quite low.
As I said a little while ago, I have some evidence in relation to the prisoner's diabetic condition and how he maintains his condition, the need for blood glucose checks on a regular basis and the need to have instantaneously available access to insulin, just prior to every time he eats, which he was not able to get whilst in custody.
As I mentioned, the prisoner gave evidence before me and I have no reason to disbelieve his evidence. The Crown Prosecutor did cross‑examine him, particularly in relation to the significance of his possession of a large number of packets of Sudafed, which he had taken from the pharmacy in the context of his previous finding of guilt in respect of the manufacture of amphetamines.
If I could just deal with that aspect of the matter in the context of dealing with his criminal history. To my mind the only significance of his criminal history is to underscore the long history of drug dependence going back to his early teenage years. There is no evidence that he was supplying amphetamine. Such manufacturing as was occurring, I might point out, almost five years ago, would seem to me designed to provide him with the amphetamines that he was dependent upon. It may be in the context of his notes and his backpack and the possession of the Sudafed tablets with their high levels of pseudoephedrine, capable of being broken down for the purposes of amphetamine manufacture, that he might have contemplated a further manufacture of pseudoephedrine. But I have no evidence that in fact that is so and the prisoner denied that it was so. He said the notes that he had were of some age. The prisoner has not been convicted of supplying amphetamines to other people. Nor is there any suggestion in the way in which this matter is charged that he was attempting to manufacture prohibited drugs. These matters, as I say, really underscore the character of his drug dependency
It should be pointed out that the prisoner is a highly intelligent young man and he apparently does have some chemistry skills independently of any prior involvement in the manufacture of amphetamines. It follows from this that I do not regard his criminal history, as I have outlined it, as being significant for the purposes of sentencing in this exercise beyond reflecting upon the underlying contributing factor primarily to his offending.
The prisoner's evidence confirmed the matters that I have already outlined from the history that have been recorded both by Mr Borenstein and mentioned or set out by his mother. He said that at the time of the offending he was heavily intoxicated from alcohol, opioids and benzodiazepines. He did not have much memory of what happened. But he said he was very ashamed and sorry for his behaviour and regretted it. He had been robbed himself on one occasion, as I understand it, and he would not want people to go through that. He regarded himself as being happy to be sober. He had been sober since his arrest. He told me at Odyssey House he had urinalysis twice a week. He had various restrictions upon his liberty and his behaviour which he had complied with, and he would hope to complete 'stage 4' by the end of the year and he would wish to complete that program.
I have taken into account matters that were raised in the cross-examination of him. He explained to the Crown prosecutor that the reality was, in terms of his history, that he had a general interest in drugs, not for good reasons, and he could not face life without the use of drugs, which is a very sad situation. Both for him and any people who are victims of crimes he commits because of that drug addiction.
The parties produced written submissions and some oral submissions to supplement those written submissions. It is I think important, in terms of dealing with the legal principles to be applied, to address at the outset the gravamen of the matter that was touched upon or submitted upon when the matter was last before me last Friday. That was the issue of whether I should adjourn the matter in accordance with the terms of s 11 of the Crimes (Sentencing Procedure) Act 1999.
That particular section provides that a court that finds a person guilty of an offence, whether or not it proceeds to conviction, may make an order adjourning proceedings against the offender to a specified date, either for the purpose of assessing the offender's capacity and prospects for rehabilitation, or for the purpose of allowing the offender to demonstrate that rehabilitation has taken place, or for the purpose of assessing the offender's capacity and prospects for participation in an intervention program or for the purpose of allowing the offender to participate in an intervention program, or for any other purpose the court considers appropriate in the circumstances.
Section 11 in the Act replaces in legislative form what had been referred to previously as a "Griffiths remand". The Griffiths case was a case involving a matter where Judge Goran adjourned a sentencing for six months to see how an offender went. The sentencing procedure and proceedings on that occasion lacked the sophistication that is required of sentencing proceedings in the modern era.
Mr Griffiths was the subject of an appeal to the Court of Criminal Appeal. The Court of Criminal Appeal set aside the remand and Mr Griffiths was remanded to custody. He appealed to the High Court of Australia, and as my memory serves me, remained in custody for almost two years before the High Court said that the judge at first instance had the power to affect the remand that had been given to him. What damage had been done to him in the two years he spent in custody waiting for all his legal circumstances to be resolved is not known.
It has been the subject of many decisions over the years and the Crown very helpfully referred me to a fairly recent decision of Hopoi [2014] NSWCCA 263. That decision quotes, in fact, an earlier decision of that year, Farrell [2014] NSWCCA 30. Amongst the considerations identified in Farrell and adopted in Hopoi, in relation to a s 11 "deferral", it was stated that, firstly, it was necessary for the sentencing judge to make findings of fact and an assessment of the objective seriousness of the offence before adjourning a matter under s 11, citing another important decision on s 11 remands, a decision of Howie J in Palu [2002] NSWCCA 381.
Just putting aside some other matters referred to relating to powers of appeal and the like, the court pointed out a deferral under s 11 will be manifestly inadequate if it is demonstrably obvious that a sentence was called for immediately. A s.11 deferral should not be granted unless there are good reasons for concluding that it is likely to assist the court in determining whether an offender should be sent to gaol, or in fixing the length of the sentence or the non-parole period, citing another decision of Trindall [2002] NSWCCA 364. Trindall is a decision that in fact was specifically quoted with approval in Farrell, a decision of the Court of Criminal Appeal comprising Spigelman CJ, Grove J and then Smart AJ who gave the judgment for the Court. Three very experienced and wise judicial officers.
The other consideration arising from these various authorities that I have identified, again referred to in Farrell and Hopoi, is that unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice by reason of the delay, again citing Palu. However a s 11 deferral is not confined to cases where something other than a full-time custodial sentence is contemplated by a sentencing judge if rehabilitation is successful, citing the decision of Trindall, to which I referred, in the judgment of Smart AJ.
I say at this point that I have come to the conclusion that a remand in this matter is likely to assist the Court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. I point out that it is clear that this offender has had a significant addiction, not an ephemeral or casual dependency with drugs, extending way back to his early teenage years. If it be the ultimate conclusion I reach that he should be sentenced to a term of full‑time custody, taking him from a program like 'Odyssey House' at this point will be counter‑productive in a range of ways and certainly would deny this Court a full understanding of the situation for sentencing purposes. I believe a further delay in the sentencing is important to enable the sentencing discretion to be properly exercised.
I should point out by reference to Hopoi, if I may, reading not just the principles but the facts, it is interesting to note that Mr Hopoi committed an offence on 1 April 2012, he was arrested on 11 October 2012, the matter came before the District Court for sentence on 12 May 2014. It was adjourned and then the deferral of the sentence, pursuant to s 11, occurred on 23 July 2014. So that means in effect the deferral of his sentence occurred, as I would calculate it very roughly, almost one year and ten months after he was arrested. The point made in Palu and the other cases is that delay is often pleaded by offenders but if they are the architects of the delay they should not get the benefit of it.
In this matter there is no suggestion this prisoner has consciously delayed the proceedings. In any event he comes for sentence for me slightly over a year after the charging. Therefore the matter is before me for consideration within a much shorter time than that which occurred in Hopoi. The point that Court made in Hopoi was that the Judge in that matter, in all the circumstances of that case which are not very different from this case, I hasten to say, had plenty of opportunity to make an assessment of the progress of the rehabilitation of the prisoner.
In relation to the case of Trindall it was observed by Smart AJ:
"I do not share the view that it (remand) necessarily imposes undue hardship on the offender to grant a Griffiths remand and warn him that he may still go to gaol, or that he will go to gaol and that the remand is for the purpose of determining a non-parole period. From my experience many offenders prefer to take their chances. Most believe that they will be able to demonstrate marked improvement or rehabilitation...After all, going straight to gaol gives them no opportunity of avoiding that devastating experience or reducing the extent of that experience."
I also adopt, as I must but do so with pleasure, the observations of Howie J for the Court with whom Levine and Hidden JJ agreed in Palu, particularly at [29]:
"The section can only be utilised in a principled way and upon proper material placed before the Court otherwise it becomes an instrument of injustice, either by raising false expectations in the mind of the offender as to the sentence which will ultimately be imposed upon him or by becoming the justification for the imposition of a sentence which fails to meet legitimate expectations of the community as to the punishment to be imposed upon the offender."
In respect of this matter the Crown made helpful oral submissions, providing Hopoi as one judgment to me for consideration, the matter was the subject of extensive submissions by learned counsel for the offender, many of the matters identified by the parties as issues of fact I have already picked up in the course of my remarks. There are some other submissions made by the parties as to the ultimate disposition of the matter and I will need to naturally reserve upon that aspect of the submissions made and/or the evidence that is available to me to a later time in light of the order I propose.
However, there are two aspects of the matter that require comment at this stage in accordance with the requirements of me in determining that I should grant the remand. One is to make an assessment of the objective gravity of the seriousness of the offending. A starting point in that regard would be regard to the guideline judgment albeit now nearly 18 years old of R v Henry and Others [1999] 46 NSWLR 346, particularly the judgments of Spigelman CJ and Wood CJ at CL. It is to be pointed out in relation to the guideline as was fixed by Spigelman CJ with the approval of the majority of that Court, that his Honour observed at [10] citing an unreported decision of Lattouf, a judgment of Mahoney A-CJ, that:
"General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and the order of sentence which it is appropriate that they impose. But, of course, principles are necessarily framed in general terms. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge...There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case."
By reference to the guideline judgment to which I am referring at the moment, I note as was identified by learned counsel in her written submission which was the subject of a comment by me without having read the written submissions at that point, that Spigelman CJ when reflecting upon the guideline judgment that he was responsible for said in Legge [2007] NSWCCA 244 at [59]:
"A guideline is not a tramline. It is not the case exceptional circumstances must be demonstrated before a sentence of less than the guideline promulgated in Henry may be imposed. Such an approach impermissibly confines the exercise of sentencing discretion. It is also inconsistent with the nature of the guideline as a check, a guide or an indicator or as a sounding board."
I point out by reference to, if I can call them, the criteria identified by the learned Chief Justice at [162] that most of the features or characteristics of offending associated with the fixing of the guideline that his Honour identified are to be found in this matter. He was a young offender with little criminal history in my view. Obviously he had a weapon, although he did not have a weapon in my view capable of killing or inflicting serious injury. I accept counsel for the offender submission in that regard. There was clearly a limited degree of planning, limited if any actual violence but a real threat thereof in the sense of him brandishing the scissors. There were no oral threats. There were commands made I appreciate that, but commands also littered with apologies and the bizarre directions to the pharmacist. The victim was in a vulnerable position, although she had a colleague there I accept that night. A pharmacist in a shop is vulnerable, but not as vulnerable as perhaps shopkeeper alone, certainly a taxi driver on a lonely stretch of road. A relatively small amount was taken and the plea of guilty is one where the significance of which is limited by a strong Crown case.
There has been a degree of discussion of a judgment of David Kirby J, to which I was referred, assessing what that last matter means in the context of as we know by chronological events the guideline judgment in Thomson and Houlton coming out after the Henry guideline. My observation of that point is that although it has been thought that the particular criteria at [162], identified at (vii), may reflect on a discount of 10%, it should be pointed out that Thomson and Houlton itself says that the strength of the Crown case is not determinative of the extent of the discount to be given for the utilitarian benefit of a plea. The utilitarian benefit of a plea can be very great even if the Crown case is overwhelming, having regard to the nature of the concept of utilitarian benefit. Anyway, I do not need to get into that debate at the moment.
I do note that there were no aggravating factors or matters calling for more significant penalties, as identified by the Chief Justice at [170].
The offence for which the offender is to be sentenced of course covers a range of activity. Five men dressed in body armour, armed with pump action shotguns, bursting into a bank and stealing hundreds and hundreds of thousands of dollars, if they do not shoot anybody and if they do not commit other offences, may be charged with the same offence. Although they more likely would be charged with armed robbery with a dangerous weapon which carries a slightly greater maximum penalty. But the point I am making is there is a range of conduct contemplated by s 97. It goes without saying that any form of robbery, particularly an "armed robbery", is a serious offence. But on the other hand one has to look at the character of the weapon, the degree of planning and the like, the property taken and the conduct of the offender in the course of the commission of the offence, amongst other matters, in assessing the objective seriousness.
Counsel for the offender drew my attention to the fact that authorities have contemplated the fact that not all the criteria identified at [162] of Henry are relevant to the assessment of the objective gravity of the offence in the context of the remarks in Muldrock. But it is also to be said that Muldrock is concerned with a construction of then s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 which is not relevant here.
Be that as it may, the other matter that I refer to from Henry which is of pertinence here are the observations of Woods J of [273]. He said, as the Court held, that "the need to acquire funds to support a drug habit per se is not an excuse to commit an armed robbery or any similar offence and of itself is not a matter of mitigation". This is clearly understood. However, he pointed out, "the fact that an offence is motivated by such a need" and I bear in mind this is not just a question of need as such, the offender clearly was strongly affected by drugs at the relevant time, the motivation that I have described "may be taken into account as a factor relevant to the objective criminality of the offence, such as reflecting upon the impulsivity of the offence and the extent of planning for it". This offence could primarily be identified as "impulsive". The formulation of the plan to rob the chemist clearly took place over a very limited period of time, probably no more than 20 minutes, given the fact that the prisoner had gone into the chemist earlier trying to have a script filled.
As to "the existence or non-existence of any alternative reason", there are no alternative reasons here that aggravate the commission of the offence. Further his Honour pointed to the state of mind, or "capacity of the prisoner to exercise judgment". Here I believe the state of mind, or capacity of the prisoner to exercise judgment was extremely limited. But I also bear in mind those provisions now in the Crimes (Sentencing Procedure) Act which require courts to ignore intoxication as a mitigating factor in sentencing.
He also pointed out in the same paragraph of the judgment that the background of drug dependency may be relevant to the subjective circumstances, the prospects of recidivism and rehabilitation, the circumstances in which the person became dependent upon drugs, and justify consideration for offenders judged to be at the crossroads.
Dealing with those three matters it is clear had I sentenced the prisoner when he was in the state he was on 19 July I could not with any confidence identify his prospects of recidivism, or rehabilitation, as being positive. However he is a work in progress at this moment in that regard, and certainly he has made considerable strides.
I also point out that his Honour identified the fact that a person's drug addiction if it be arising from some medical intervention, or when it occurred at a young age, may be an important relevant subjective factor. This offender clearly became dependent upon drugs at a very young age in circumstances of considerable emotional turmoil, including, I hasten to say, the prisoner's acquisition of the condition of diabetes, which is completely beyond his control. It seems to me that whatever happens further down the track the prisoner continues to be 'at the crossroads'.
In regard to s 21A of the Act, insofar as I can reach conclusions before the completion of the remand period, in my view there are no aggravating factors that I am satisfied of existing here. The Crown helpfully sought to identify matters that I should consider, particularly that the offence of armed robbery was committed for financial gain. It may technically be an aggravating factor but it is inherently, it seems to me, an element - when I say an element, a characteristic, rather than a pleaded element - of the offence. But in any event whilst the prisoner did obtain some money it seemed his primary interest was obtaining prescription drugs.
With regard to mitigating factors that could be contemplated, finally in sentencing, I conclude that the offence was not part of planned or organised criminal activity. The prisoner did not have a significant record of previous connections. I am prepared to accept notwithstanding his drug dependency that he was a person of good character in a number of respects, I will need to reserve on the issue of his likelihood of reoffending and his prospects of rehabilitation. I do accept that the prisoner has relatively shown remorse as required under s 21A(3)(i) of the Act.
I believe I have identified the matters, at this point I am required to address as I have said in the submissions of the parties there are submissions made both in relation to Henry guideline and the matters to be taken into account under, for example, s 21A, upon which I must reserve by definition in light of the course that I have proposed in respect of this matter.
HIS HONOUR: A date, Mr Crown, his evidence, my understanding is the prisoner could complete level 4 by December of this year, is that right?
EVANS: No, your Honour, I understand that we're hopeful that he would commence stage 4 by December.
HIS HONOUR: The evidence is incomplete on that score if you don't mind me saying so.
EVANS: It's ambiguous because it's based on his progress.
HIS HONOUR: Yes, it is ambiguous, yes.
EVANS: But I'm content for the matter to come back in December if that assists.
HIS HONOUR: That's my point, if he's going to complete the course in December it will have to go over to February of next year simply because I'm not sitting in Sydney in December. What I propose to do, assuming that I'm sitting in Sydney, I don't know what I'm doing February next year, I'm going to list the matter for very early in February after the vacation. 2018, I don't know when the term starts but at this stage I would suggest Friday 9 February. Are you available then, Mr Crown?
RAFEEQ: Yes, your Honour.
HIS HONOUR: How are you placed on 9 February, ma'am?
EVANS: Yes, that's suitable, thank you.
HIS HONOUR: I require my associate to order a transcript of last Friday's proceedings and also my remarks on sentence, I will revise those and send it out to the parties when I get a chance. I should point out, last Friday I started a drug manufacturing matter which I had to adjourn. I asked for a matter that would take an hour because I had to have radiation treatment for a cancer on Friday at midday and then I had to come back to Court at 2 o'clock to try and complete a very complicated and difficult historical sex matter that took another two and a half, three hours of my time. So the matter was somewhat rushed on Friday and I had no opportunity whatsoever to contemplate the material that had been placed before me without notice as usually happens in our Court of sentencing proceedings nor resolve in my own mind what have we done so here we are trying to deal with the matter on the first available opportunity whilst I'm part heard in a trial.
Stand up, sir. In relation to the offence to which you have pleaded guilty taking into account the matter on the Form 1 - I should point out, Mr Crown, I have not forgotten the need to take into account the guideline judgment but I will deal with that matter in the sentencing proceeding - for the purposes of assessing your capacity and prospects for rehabilitation and assessing that rehabilitation has taken place, I adjourn the sentence proceedings until Friday 9 February 2018 at 9.30am. I propose to grant you bail on the following conditions, bearing in mind of the conditions imposed in the Supreme Court some of them no longer apply. You are to be of good behaviour.
Secondly, you are to attend this Court for sentence on Friday 9 February 2018 at 9.30am. You are to reside at such address as approved by Odyssey House by - what is the correct description, Ms Evans, of the principal officer there or the relevant officer there for directing people undertaking the program? He cannot be directed by a building, he cannot be directed by an organisation, I need a rank or something.
EVANS: Perhaps the therapy coordinator.
HIS HONOUR: Yes, this is his residential address. I have got a reference from the therapy coordinator.
Reside at such address as directed by the Therapy Coordinator at Odyssey House and approved by New South Wales Community Corrections Service.
Fourthly, the prisoner is to undertake rehabilitation as provided by Odyssey House and is otherwise directed by the New South Wales Community Corrections Service.
Fifthly, the prisoner is to report to the Campbelltown Office of the New South Wales Community Corrections Service within seven days. Telephone reporting is sufficient, I understand. There can be telephone communication between Odyssey House and Community Corrections.
He is required to continue to surrender his passports and not apply for any new or replacement passports.
HIS HONOUR: Is there anything else you can think of, Mr Crown, it flashed through my mind as I was speaking and it's been lost in the ether.
RAFEEQ: Reporting, one day.
HIS HONOUR: Reporting?
RAFEEQ: Yes.
HIS HONOUR: Well, if he's at Odyssey House and he's under supervision of Community Corrections I don't require him to report.
RAFEEQ: Right.
HIS HONOUR: Advise the Registrar of the District Court Downing Centre of any change of residential address.
Finally, I direct the Community Corrections Service to prepare a report for the Court on or before 9 February 2018. But report any breaches of conditions of bail as soon as is reasonably practicable.
HIS HONOUR: Just one matter, Mr Crown and Ms Evans, my remarks on sentence were largely "ex tempore" and since I haven't typed out a written judgment I just haven't had a chance and I've just relied upon the material that was presented and my notes of various matters but I am not sure that I actually specifically identified what I regard as the objective seriousness of the offending which I am require to do.
Your written submissions, Ms Evans, referred to the midrange of objective seriousness and that's a requirement it must be said, particularly, arising under Pt 4 div 1A of the Crime (Sentencing Procedure) Act which does not apply here although it's a useful reference point. I am mindful of the remarks in the judgment you brought to my attention of Yuksel which I will come back to at a later time and, particularly, the observations of Beech-Jones J in 2012 in relation to the appeal of Yuksel [2012] NSWCCA 84 that it was:
"Otherwise doubtful whether there was an obligation (upon the sentencing Judge) to undertake some task of classifying the objective seriousness by reference to it being in the low, middle or high range of objective seriousness."
In any event, citing another decision of the Court of Criminal Appeal, I notice in recent judgments of the Court of Criminal Appeal there has been some general shift in opinion of the judges of the Court in that regard. Certainly, in the context of the objective seriousness of this offence, I would characterise it, as it be relevant, below the middle range of objective seriousness. Not, of course, the least serious offence of its type but in the context of the considerations I earlier referred to, all things taken into account of a purely objective fashion at a low end of objective seriousness. Yes, thank you. Yes, Ms Evans.
EVANS: Thank you, your Honour, I have nothing further to add.
HIS HONOUR: Don't go anywhere I haven't excused you.
You can leave the dock, sir, you will have to go up to level 3 to enter the bail that I have entered, you have to enter a fresh bail, you cannot leave the Court until you have entered that bail. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: If you fail to comply with the conditions that I fix then I will be notified, I will issue a warrant for your arrest and you come back in custody and we will have to press on with the matter without regard to the outcome of any progress you make at Odyssey House. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: So you have a type of sword of Damocles hanging over your head. It may be that I will impose notwithstanding the successful completion of term of imprisonment with a non-parole period, these are matters to be resolved at a later time. You are excused from the dock. You can go up to level 3 of this complex.
HIS HONOUR: You are excused, Mr Crown, thank you. You are excused, Ms Evans, thank you very much for your assistance. Are you able to take or is your solicitor able to take him up to level 3?
EVANS: Yes, my solicitor will organise that, thank you.
ADJOURNED TO FRIDAY 9 FEBRUARY 2018 AT 9.30AM
[2]
Amendments
21 August 2018 - No amendment made.
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Decision last updated: 21 August 2018