R v LEROY

Criminal history

1. The offender was born on 6 February 1995 and as indicated he is now 28 years of age. He has a record in the Children's Court, which for the purpose of passing sentence I ignore.
2. However, he has a substantial record as an adult including convictions for matters of Stalk/Intimidate and Dishonestly Obtain Property by Deception. On 16 October 2015 he was sentenced on indictment for Assault with Intent to Rob and sentenced to 30 months imprisonment with a non-parole period of 1 year 3 months. On 18 September 2017 at the Campbelltown District Court he was sentenced to an aggregate sentence of 8 years with a non-parole period of 4 years. The criminal history reflects that that sentence was for offences of Robbery in Company, Assault with Intent to Rob while Armed with an Offensive Weapon occasioning Wounding (or grievous bodily harm) and Aggravated Break Enter and Commit Serious Indictable Offence.
3. Mr Leaver of counsel appropriately conceded that s 21A(2)(d) of the Crimes (Sentencing Procedure) Act was enlivened making the record a factor of aggravation. Even without that concession, noting those offences and the fact that the matter presently under consideration was committed while on parole, I would have come to the conclusion that the record was a factor of aggravation in any event.
4. Further, as the offender was on parole at the time of commission of the offence presently under consideration, the additional factor of statutory aggravation provided for by s 21A(2)(j) is made out.

Subjective Case

1. No oral evidence was called from or on behalf of the offender. However, counsel for the offender tendered a volume of indexed written material that became exhibit 1 on sentence. That material consists of a report by Dr Andrew Ellis, Justice Health Records, letters of apology to the victims and a letter from the offender indicating his remorse.
2. The offender pleaded guilty in circumstances where the Crown case was not overwhelming, however, neither was it incapable of securing the conviction of the offender. The offender told Dr Ellis (p 7 of the report) that "'I kick myself' when he thinks about what he did. He said if he had not engaged in this behaviour he could be nearly off parole. He said he did not think much about his actions at the time. He said, 'I'm sorry, but what can you do". The offender also expressed to Dr Ellis that "the effects on the victims are more". He said "they might be scared to leave the house". He wrote the letters to the court and the victims that are within the defence tender bundle expressing remorse and regret for his actions. I am prepared to accept on balance that the offender is remorseful.
3. I now turn to other aspects of the report of Dr Ellis. At page 3 of the report under the heading "identifying data" Dr Ellis sets out that upon his release from parole the offender initially lived with his mother but then took to couch surfing and sleeping rough on the streets. Further, although the offender maintained weekly parole reporting he was not subjected to any drug testing on parole. The offender had ceased his psychiatric medication, being off medication for most of his time in the community. The offender was prescribed oral buprenorphine (opioid replacement medication) for the first six months of the parole period however he missed three days of treatment and then was discharged from the program.
4. The offender reported to Dr Ellis that his current medication regime "helps heaps". The offender also reported that the voices that he had experienced had stopped approximately six months ago. Dr Ellis sets out that the offender reported hearing voices all his life until the last six months. He had stopped self harming. The offender reported still having cravings to use crystal methamphetamine and was unsure about how he would manage these in the future.
5. Dr Ellis sets out (page 4) that the offender was admitted to the Forensic Hospital in 2013 while he was in custody. He was diagnosed with schizophrenia and treated with olanzapine and paliperidone antipsychotic injections. The offender has been reviewed by psychiatrists during his previous custody. He has had a change in antipsychotic medication and antidepressant medication added.
6. The offender reported to Dr Ellis a heavy consumption of alcohol from the age of 14, often experiencing blackouts where he could not recall the events while drinking. He could not remember how old he was when he started cannabis but the offender told Dr Ellis, "I love my pot". He would smoke a quarter of an ounce of cannabis every day. The offender acknowledged that he needed to wean himself off cannabis.
7. Further, the offender reported the use of crystal methyl amphetamine intravenously. He was using this daily before entering custody on this occasion. The offender reported a gambling problem.
8. At page 6 of the report Dr Ellis notes that the offender's father was a truck driver but the offender has had little contact with his father. His parents separated when he was four years old. His mother sold drugs from the family home and had a "mental breakdown". His mother has spent time in custody. The offender was in foster care for a period of 10 years and lived for some time with his grandmother in Tasmania. The offender has no formal work qualifications and it would seem has limited work experience.
9. Under the Heading, "Account of the Material Time" Dr Ellis notes that the offender was using 1.5 g of crystal meth amphetamine daily, injecting three times per day. Although he was not drinking alcohol, he was also smoking 2 g of cannabis daily. The offender estimated that he had been "off" any psychiatric medications for 18 months. The offender was living with his co-offender for approximately three weeks.
10. Dr Ellis goes on to report that the offender believed that he was being followed in cars and people were trying to run him down, he thought people were jealous of him, he believed that his phone was being tapped and he was worried about those thoughts. He had "real world drug debts" to pay. He heard a voice in his head which he believed was a devil that sounded like a normal person.
11. The offender gave an account to Dr Ellis of he and his co-offender (Smith) acquiring the weapon used in the robbery. The offender told Dr Ellis that the weapon looked like a Glock and was very realistic. He engaged in the robbery to pay for drug debts. The matter of dishonesty on the form 1 was committed for the same reason.
12. I have already dealt with the expressions of remorse that appear at page 7 of the report.
13. Dr Ellis opined that the offender would meet the criteria for a diagnosis of schizophrenia, noting the 10 year history of delusions, hallucinations and thought disorder. The doctor further opines that the offender continues to meet the criteria for a substance use disorder, particularly cannabis, opioids and stimulants. The doctor goes on to say that he remains of the view that the offender would be considered to suffer from antisocial personality disorder.
14. It seems that Dr Ellis prepared a report for the previous sentence proceedings. That report was not made available in these sentence proceedings. Dr Ellis says (page 8), : "His offending is remarkably and unfortunately similar to that at my previous review, as were his circumstances at the time. At the material time he was not treated for schizophrenia, using substances and his personality rendered him more vulnerable to impulsive and non-consequential thinking. His low level of education remained the same and likely contributed to reduced impulse control and reduced ability to think through the consequences of actions. The symptoms of his schizophrenia did not directly relate to his motives at the time. It likely rendered him more disorganised in his thought process, and more angry at others in a general sense as his experience of symptoms, particularly delusions of reference (thinking people stare or talk about him) irritates him. It is not likely that any of these conditions or the conditions in combination totally deprived him of the ability to restrain impulses or consider the consequences of his actions. He was experienced with the use of substances and could likely have foreseen the effects on his mental state. His presentation on reception to custody is consistent with experiencing ongoing symptoms of schizophrenia (delusions and hallucinations)".
15. Dr Ellis goes on to say (page 9) that the offender needs to have effective treatment of his mental illness in order to benefit from correctional interventions. The doctor notes that the offender may find navigating the subculture of prison more difficult as he has a severe substance use disorder and can be vulnerable to exploitation by persons that deal in substances.
16. Further Dr Ellis says: "As I noted at the previous review his treatment and rehabilitation will be complex, owing to the direction of multiple difficult to treat disorders. This was borne out by his relapse to substance use, non-compliance with psychiatric medication, homelessness and lack of social engagement on the most recent release. He again failed to engage with services (and by his report there was less than vigorous efforts to re-engage him with mental health, housing and substance use services when he began to deteriorate)."
17. Dr Ellis opined that over the long term, engagement is likely to remain a challenge. Further, as the offender's personality and substance use problems are significant, general public substance abuse and mental health services will, and did, find it difficult to engage with voluntary programs. Dr Ellis recommended that the offender continue with his long acting injectable antipsychotic medication, referral to a public mental health service rather than general practice for his ongoing treatment, substance use treatment with consideration of residential rehabilitation and when his mental state is stable engaging in remedial education and vocational training.
18. There is a volume of Justice Health medical records and notes which are difficult to negotiate. However, those notes merely confirm what is in Dr Ellis's report.
19. Mr Leaver, counsel for the offender, submits that despite Dr Ellis' opinion that the offender's conditions are not likely to have totally deprived him of the ability to restrain impulses and consider the consequences of his actions, the principles relating to the offender suffering mental illness in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] still have an important role to play in the sentencing exercise. Counsel relied heavily in this regard on the decision in Moiler v R [2021] NSWCCA 73. In that decision Button J (Basten JA agreeing with brief additional comments, Davies J agreeing) said at [58]-[62]: "Subjectively, the offence was aggravated by the conditional liberty of the applicant for a very similar offence. And abuse of prohibited drugs - pursuant to statute, not a mitigating feature - certainly played a causative role. Even so, all of that had to be seen through the prism of why it was that the applicant was leading a deprived, isolated, disturbed life in an inner-city motel, seeking relief through prohibited drugs, intermittently screaming alone in his room after midnight. The answer, in my opinion, is that his longstanding schizophrenia, if not a direct or immediate cause of the offending, was undoubtedly a significant indirect or contextual cause. [59] It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it. [60] I accept that the applicant on this occasion did not assert that command hallucinations had "told" him to use the fire extinguisher. But that is hardly to say that his chronic and severe mental illness could not play a significant contextual and causative role in how it was that this offence came to be committed. After all, one could reflect that, if the applicant had not been suffering from a longstanding mental illness and intellectual deficits, and all that has flowed from them, by the age of 29 his life might have turned out very differently. [61] In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other. [62] In short, the offending in its consequence was not of the greatest seriousness. It was committed by a man with a compelling subjective case that in my opinion greatly reduced his moral culpability. And yet the starting point of the sentence for the reckless wounding was only a little over 18 months short of the applicable maximum penalty. In my respectful opinion, that bespoke error."
20. In the matter presently under consideration, to use the words of Button J the offender's longstanding schizophrenia, if not a direct or immediate cause of the offending was undoubtedly a significant indirect or contextual cause. In passing sentence I will need to remain cognisant of the admonitions of Button J in [59] of Moiler v R.
21. Counsel for the offender goes on to submit that given the mental illnesses suffered by the offender the court would find that the moral culpability of the offender is reduced as is the need for denunciation; further, that the offender is not an appropriate vehicle for general deterrence and custodial sentence may weigh more heavily on the offender.
22. However, counsel does concede there is a need for specific deterrence and that there remains an issue about protection of the community. Essentially counsel submits that substantial weight should be given to the mental conditions of the offender in the determination of the appropriate sentence.
23. Mr Leaver relied heavily on Dr Ellis's report in his submissions and emphasised a number of aspects of that report most of which have been recited or summarised in these reasons in the course of dealing with that report.
24. The fact remains that the offender although suffering the mental illnesses diagnosed by Dr Ellis was also abusing illicit substances on a regular basis at the time of commission of the offences. It is also relevant that Dr Ellis opined that the offender's mental conditions are not likely to have totally deprived him of the ability to restrain impulses and consider the consequences of his actions. The offender conceded to Dr Ellis that he committed the offence and the matter presently under consideration to pay drug debts.
25. In all the circumstances, while I am of the opinion that the mental illnesses suffered by the offender must attain some meaningful significance to reduce the moral culpability of the offender, reduce the impact of denunciation and general deterrence I am not prepared to find the mental illnesses attain the significance submitted by counsel for the offender.
26. Clearly, given the history given to Dr Ellis, the principles enunciated by the High Court in Bugmy v the Queen [2013] HCA 37 are enlivened to a meaningful extent, again reducing the offender's moral culpability. In this regard I note the exposure to drug-related activity as a child, separation of his parents, his removal and placement in foster care, noting that this would have occurred as counsel submits when the offender was six years of age.
27. The Crown submits it is arguable as to whether Bugmy is enlivened in this case. For the reasons I have given I maintain that it is. However, as I made clear at the sentence hearing it is a question of weight. Although features are present in this case the factors do not achieve the same weight as it might in other cases with which this court has dealt, particularly in western and far western New South Wales.
28. In this regard I also note the decision in R v Millwood [2012] NSWCCA 2 and in particular the judgment of Simpson J (as her Honour then was) at [69] of that decision.

General remarks

1. I cannot find that the offender is unlikely to re-offend or that he has good prospects of rehabilitation. There is the criminal history and the breach of conditional liberty taken with the failure to engage with services while in the community - see p. 9 Dr Ellis' report.
2. The Crown in written submissions puts that I would find that the factor of statutory aggravation provided for by s 21A(2)(o) of Crimes (Sentencing Procedure) Act that the offence being committed for financial gain is made out. Counsel for the offender, not surprisingly, submitted that financial gain was essentially contemplated by the offence. Larceny is an element of a robbery. In those circumstances I decline to find the aggravating circumstances submitted by the Crown.
3. The Crown submits, in written submissions, that general deterrence in respect of another robbery offence cannot be ignored despite the mental illnesses suffered by the offender. I agree with the submission. Whilst the impact of general deterrence is lessened to some extent because of the mental illnesses, it is not eliminated completely.
4. There has been reference to the co-offender. I have already made plain that that person is awaiting sentence in respect of an offence of accessorial liability. It is not suggested that the offender was in company at the time he entered the service station.
5. Counsel for the offender concedes that the sentence of full time custody must be imposed. However he also submits both in written and oral submissions that the court would make a significant finding of special circumstances based on the mental illnesses of the offender, partial accumulation, the risk of institutionalisation, and the need for an extended period of supervision to ensure that the offender receives the appropriate treatment for his mental health and substance abuse issues.
6. The Crown submits whilst a finding of special circumstances is justified, noting in particular the significant finding a special circumstances made in the previous matter and the fact of reoffending, the finding a special circumstances would not be significant. The issue of mental illnesses will be taken into account in determining the appropriate sentence. It would be double counting to also apply that issue to a finding a special circumstances.
7. There is a particular issue of totality to be addressed in this sentencing exercise. It occurs to me that it is the issue of partial accumulation of sentence and the need for a longer period of supervision that justify finding a special circumstances which would not otherwise be justified in the circumstances of this case.
8. The offender has been in custody since 9 September 2022. His parole was revoked and the balance of parole will expire on 12 March 2025. Counsel for the offender submits it would be appropriate for the Court to commence the sentence for the matter presently under consideration from the date close to when he was returned to custody.
9. The Crown makes no submission about totality in the written submissions. Neither counsel has made any submission as to what an appropriate commencement date of the sentence might be.
10. In all of the circumstances I will date the sentence in this matter from 9 March 2023 to make the appropriate allowance for totality. Given the breach of parole it is not appropriate that this sentence be wholly concurrent with the balance of parole the offender is serving.
11. In determining the appropriate sentence, I must give proper regard to sections 3A and 5(1) of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: (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.
12. Section 5(1) of the Sentencing Act provides: (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
13. Given the offending, the maximum penalty, the effect of the Henry Guideline and breach of parole, there must be a full time custodial sentence imposed in this matter. Counsel for the offender did not make any contrary submission.
14. In all of the circumstances I am of the opinion that the starting point for the total sentence is 6 years, 6 months, which with the 25% discount for the utilitarian value of the plea deducted produces a total sentence of 4 years 10 months with some minor mathematical rounding down.

Orders

1. In respect of the matter to which the offender has pleaded guilty, he is convicted.
2. Taking into account the matter on the Form 1 document, the offender is sentenced to a non-parole period of 2 years 10 months to date from 9 March 2023 and which will expire on 8 January 2026. The balance of term of 2 years on parole will commence on 9 January 2026 and will expire on 8 January 2028.
3. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
4. I recommend that any release to parole be conditioned that the offender is supervised by the Department of Community Corrections and that the offender obeys all reasonable directions of that service relating to ongoing treatment and counselling for substance abuse and mental health issues.
5. The sentence indicates a finding of special circumstances, the reasons for which have been enunciated in these reasons but include the partial accumulation of sentence and the need for a longer period of supervision in order that the offender might receive appropriate treatment and counselling for substance abuse and mental health issues.
6. The non-parole period of 2 years 10 months is approximately 58% of the sentence imposed on the matter presently under consideration. The total effective sentence including the balance of parole that the offender is serving dates from 9 September 2022 and expires at the expiration of the sentence I have just imposed i.e. 8 January 2028. The total effective sentence is 5 years and 4 months and the total effective period in actual custody is 3 years 4 months. The total effective period in actual custody is approximately 63% of the total effective sentence.
7. I direct that a copy of the report of Dr Ellis be forwarded to the Department of Corrective Services with the relevant warrant

Amendments 16 November 2023 - Amended spelling of representative's name. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2023