R v Moller

EVIDENCE ON SENTENCE

1. The evidence on sentencing comprised the following on behalf of the Crown: 1. the Crown Sentence Summary and the documents annexed thereto (Exhibit A); and 2. the Pre Sentence Report (Exhibit B).
2. For the Offender, the following evidence was tendered: 1. the Offender's Bundle (Exhibit 1); 2. a letter from Ashley Smith dated 30 June 2018 (Exhibit 2); 3. a letter from Allan Emery (Exhibit 3); 4. a letter from Daniel James (Exhibit 4); 5. a report by Danielle Vilder of the Wesley Mission (Exhibit 5); and 6. a note from Dr Grennall (Exhibit 6).
3. The Crown has also prepared submissions, (MFI 1), and further submissions, (MFI 2), and, together with that, several cases have been handed to the Court upon which reliance is placed respectively by both parties.

AGREED FACTS

1. The facts relating to the offending are set out in the Statement of Agreed Facts behind tab 3 in Exhibit A. It was signed by the offender on 22 May 2018 and it provides relevantly as follows:
2. As at January 2018 the offender was aged 53 years of age, lived with his wife, Simone Fox, and their six year old son in a motorhome at Norah Head Caravan Park. Sometime in the middle of the afternoon on Wednesday 17 January 2018, the offender told his wife that he had to go to the shops and left in her vehicle.
3. The victim, Pamela Bellette, a registered pharmacist, is the co-owner and operator of Kanwal Medical Centre Pharmacy at Kanwal in the State of New South Wales. At around 5.40pm, Ms Bellette was working in the office at the rear of the pharmacy. A pharmacy assistant, Kirralee Sargeson aged 17 years, was working behind the front counter about 3 metres away from the office. The offender entered the pharmacy and approached the front counter. He was wearing a blue long-sleeved hoodie, long dark pants and carrying a black Aldi fabric shopping bag.
4. The offender said, "I want Endone." Ms Sargeson said words to the effect of "Do you have a prescription for that?" The offender then said, "I want OxyContin." At this point Ms Bellette approached the counter from the office and asked the offender if he had a prescription. The offender then partially removed a toy firearm from the Aldi bag and pointed it in the general direction of the counter. The plastic orange cap had been removed from the toy firearm. Both Ms Bellette and Ms Sargeson were not familiar with firearms and thought that it was real.
5. The offender then said to Ms Bellette, "I want OxyContin." Ms Bellette said she would need to obtain a key to open the drug safe. She walked over to the drawer behind the dispensary area and got the key. At the same time, she pressed a panic or holdup button which was nearby. The offender followed Ms Bellette as she opened the drug safe on the side wall. At this point he had placed the toy gun back into the Aldi bag.
6. Ms Bellette removed 17 whole boxes of Endone 5 milligrams and a partial box, a total of 349 tablets. She placed them in the offender's bag on top of the toy gun. The offender said, "And the OxyContin." Ms Bellette then obtained five boxes of OxyContin 10 milligrams, being 140 tablets, and six boxes of OxyContin 20 milligrams, being 168 tablets and put those in the offender's bag. The offender turned and walked out of the pharmacy.
7. Ms Bellette locked the front door. She noticed the offender was walking in the direction of the car park. She spoke to the security company and also called triple-0. At around 6.30pm investigating police arrived at the pharmacy. They obtained the CCTV footage from the pharmacy and transported Ms Bellette and Ms Sargeson to Wyong Police Station where they both made statements.
8. Sometime between 6.30pm and 7pm the offender returned to his motorhome where his wife was cooking dinner. The offender said, "I've got something to show you," and produced a plastic bag. He said, "I've done something really bad and stupid," and, "I can't believe what I've done." He opened the bag which contained several boxes of Endone and OxyContin. His wife asked the offender where he got the drugs and how much he paid for them. He told her that he got them from a chemist. He went on to admit to his wife that he had showed the pharmacy staff their son's plastic toy gun in order to obtain the drugs. His wife was shocked and upset and told the offender he had to turn himself in, to which the offender replied, "I know."
9. Sometime around 8.30pm the offender contacted Toukley Police Station and stated he was going to turn himself in for an armed robbery. At around 9.30pm the offender arrived at Toukley Police Station, having been driven there by his wife in her vehicle. He was met by Detective Senior Constable Milton who cautioned him and placed him under arrest. Senior Constable Milton asked the offender if he had robbed the pharmacy and the offender replied, "Yeah, but it was just a toy." The offender stated that he said, "Sorry about this," before leaving the pharmacy.
10. The offender handed Senior Constable Milton the black Aldi shopping bag and stated that the stolen medication and his son's toy gun were inside. Police also collected the clothing worn by the offender. Senior Constable Milton activated a handheld audio recorder and had a conversation with the offender. The offender made full admissions to walking into the pharmacy, asking for Endone and OxyContin and showing the pharmacy staff the plastic gun.
11. The offender was then transported to Wyong Police Station where he was introduced to the custody manager and he agreed to participate in a recorded interview. During the interview the offender again fully assisted the police. He adopted the earlier admission he gave to the police and gave a full and frank account of the events of that afternoon. The offender told police that he had become addicted to OxyContin after a workplace accident which occurred in 2011. He said it was becoming harder for him to obtain prescriptions for the drug as his treating doctors were trying to wean him off the drug. He said, "I know I really need to try to get off it but I just don't know what to do with the pain. I can't sleep and it's just a real - the pain is just - I can't live with it."
12. The offender stated that he had spent his workers compensation payout on the motorhome he was living in with his family. He also used the money to financially assist his parents and older children, otherwise he had lost a large amount of money through gambling. The offender initially denied picking up the toy gun but, when the victim's version of events was disclosed to him, he did not dispute the victim's version stating, "Oh, if she said that she must be correct because I wasn't even fully with it."
13. The offender stated he purchased the toy gun for his son about three days earlier from a discount shop. He conceded that he had removed the orange cap from the end of the toy gun and replaced it with grey tape. When asked why, he said he used the tap "because it falls apart" and he removed the orange cap "because I just wanted to. If I didn't do that they would just know it was a toy gun." At the end of the interview the offender was charged with the matter now before this Court. The majority of the stolen drugs were recovered but, of course, were no longer suitable for resale. The retail value of those drugs was $588.40 and the wholesale value $246.43.

OBJECTIVE SERIOUSNESS

1. A predominant factor relevant to any sentencing exercise is the objective seriousness of the offence. It is not, however, necessary, nor in some cases possible, to articulate a determination, by placing the offence along a hypothetical range. It remains an essential task to undertake an evaluative process for assessment of the objective seriousness of the offence. The starting point, of course, is the legislation to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.
2. On behalf of the offender, it was submitted that the objective seriousness of the offending was below the mid-range. Reference was made to the limited planning involved, suggesting that it was no more planning than one would expect for an offence of this type. In addition, the legal representative of the offender relied upon the fact that the weapon in question was, in fact, a fake firearm and that there was no actual violence involved.
3. In relation to being a fake firearm, I note the solicitor for the offender took the Court to a decision of the New South Wales Court of Criminal Appeal in the matter of R v Crowe [2011] NSWCCA 251 where, at [26] there is discussion about the significance to be attached to the fact that the weapon in question was, in fact, a toy and it was pointed out that: "In this respect, the applicant's offence was less serious than those where a weapon, such as a loaded gun or a knife, is used and the applicant was fairly entitled to have this difference taken into account."
4. Reliance is also placed by the solicitor for the offender on the fact that the robbery was not to obtain a financial advantage but rather to obtain the drugs to which he had formed an addiction following the work-related injury. It was submitted on behalf of the offender that it was below the mid-range of objective seriousness of offending.
5. The Crown submitted that it was at the upper low or the lower mid-range of seriousness of offending and it was suggested, by reference to the guideline judgment in R v Henry (1999) 46 NSWLR 346, that the offending here slightly exceeds that which is described by the New South Wales Court of Criminal Appeal in the matter of Henry.
6. Relevant, of course, to the seriousness of the offending is the fact that there was, albeit it fake, a firearm the use of which was threatened by the offender in that he pulled it out and pointed it towards the counter behind which the pharmacist and her assistant were located. Also relevant, of course, is the value of the medication to which I have already referred.

AGGRAVATING AND MITIGATING FACTORS

1. In this matter the offender has a relatively unremarkable criminal history. I note that the only matters of any real significance occurred in 2002 or thereabouts when the offender assaulted an officer in the execution of his duty, for which he obtained a s 9 bond, and also escape from lawful custody, for which he obtained a s 9 bond. That offending occurred some 16 years ago and bears no resemblance to the offending now the subject of this sentence. Whilst I do not consider the criminal record of the offender as an aggravating factor, it is a matter which bears upon any leniency to be extended to him.
2. The solicitor appearing for the offender also conceded that the offending was aggravated by the fact that it involved vulnerable victims and the threatened use of violence. There was some debate between the parties as to whether the use of a weapon or the threatened use of a weapon was an aggravating factor or an element of the offence. In my mind, it is an objective factor to which the Court would have regard as a relevant consideration in determining the objective seriousness of the offending. It was also conceded by the solicitor on behalf of the offender that there were multiple victims to the offending.
3. In terms of the factors which might mitigate against the seriousness of the offence and the sentence to be imposed, it was submitted on behalf of the offender that the offending occurred in circumstances of addiction. Further, it was suggested the addiction was not through choice but rather by reason of medication prescribed to the offender by his treating doctor following a work related accident in 2011. As to the question of addiction and choice, again, the Crown and the offender disagreed.
4. The offender's submission was based upon a decision of Turner v R [2011] NSWCCA 189 in which the Court of Criminal Appeal had regard to this specific matter and at [57-58] of the judgment of the Court. First of all, an extract appears from Henry where there is reference to addiction not being a matter of personal choice but rather being attributable to some other event for which the offender was not primarily responsible and it was accepted by the Court that the applicant's case, in that case, fell squarely within that principle and it is precisely the kind of case in contemplation by Wood CJ at CL as an exception to the general principle that drug dependence does not operate as a mitigating factor. The offender in this case makes the same submission.
5. Against that is the submission on behalf of the Crown that the consumption of the medication by the offender became a matter of choice. Initially, it was prescribed to him quite properly through his medical practitioners as a result of the 2011 injury. It was submitted that, at some point thereafter, his use continued that which exceeded the drug as it was prescribed by the doctor and, at that time, an element of personal choice began to operate.
6. In my mind, based on the evidence of the offender, I accept that he was addicted to OxyContin which was first prescribed to him by his doctor following the work accident and that his need for it and consumption of it never became a matter for personal choice but was the subject of addiction. Accordingly, I find that he was, in fact, addicted to OxyContin and other drugs at the time of the offending and that was a matter which was not through choice, thereby entitling him to the advantage of mitigation on the balance of probabilities.
7. As to other mitigating factors, the offender has pleaded guilty to the charge and, as I say, pleaded guilty at an early time. He has not only good prospects of rehabilitation but already demonstrated prospects of rehabilitation. He has commenced and is undertaking a program by which he has ceased his addiction to the drugs, OxyContin and Endone. I find that his prospects of rehabilitation are excellent.
8. In terms of other factors which may be described as mitigating factors, I have had regard to the fact that the offender has, in various documents, referred to his remorse and, under oath in his evidence today, has repeated that fact. I accept and find that he has shown remorse for his offending. The likelihood of reoffending must be considered virtually non-existent. In fact, the Crown referred to the risk of reoffending as "vanishingly small". I accept that and find that the risk of reoffending is small to none.
9. Overall, in terms of the objective seriousness of the offending, having regard to all of those factors, I find that the offending occurred at about or just below the mid-range of objective seriousness.

SUBJECTIVE CASE

1. The offender presents before the Court with what could only be described as a strong subjective case. He has had difficulties with substance abuse, mental health, financial problems and gambling in the period leading up to the offending. I note the report by Michael Maxwell of Community Corrections dated 6 August 2018, Exhibit B, which refers to the risk of reoffending as being low to medium. I think that overstates the risk of reoffending for reasons I have previously referred to.
2. The author of the Pre-Sentence Report referred to the offender as presenting as an individual of unstable circumstances relating to mental health, substance dependence and financial stability. Whilst that may be an accurate statement of his historical presentation, the impression one obtains from having regard to his evidence and also to other material is that his future is more promising than it has been in the past. I note that Mr Maxwell assessed the offender as being unsuitable for a Community Service Order by reason of his health and other issues.
3. Exhibit 1 contains a number of documents which bear upon the subjective case of the offender. The first is a report by Lee Knight, a psychologist. Mr Knight prepared a report dated 7 August 2018 following an assessment of the offender in his rooms on 17 July 2018. He was provided with a large number of documents which gave background information as to the offender's medical health, treatment and other matters. He referred to the offender's past psychiatric history, to which I have had regard in considering his subjective case, and also his past medical history, again to which I have had regard.
4. He provided an outline of the drug and alcohol history relating to the offender, which appears to have become only truly problematic after the work related accident in 2011.
5. He referred to a childhood which is described as being "good" and a work history which appears to be exemplary up until the accident at work. His various relationships are described on page 6 of the report, all of which appear to have been, on occasions, difficult but stable. In terms of diagnosis, Mr Knight found that the offender gave a history which was consistent with suffering from a Major Depressive Episode complicated by Chronic Pain and Dependence on Prescribed Opioid Medications.
6. There is reference made to treatment being obtained by the offender from Dr Ang. Importantly, at page 7 of the report the author referred to a treatment plan which was recommended for the offender consisting of counselling, medication and other forms of treatment. It was suggested that, in the event that the offender is sentenced to a period of imprisonment by way of custody, he will require referral to Justice Health and Forensic Health Network Mental Health Team.
7. The next document referred to is what appears to be an incomplete report from Dr Grennall, GP, dated 31 July 2018 which is a referral to Spectrum Health and Training in which he simply referred to the fact that the offender was taking various medications as at that date, none of which were the medications the subject of the offending in question. On 31 July 2018 a Mental Health Plan was devised on behalf of the offender. His problems or symptoms which were referred to included depression, anxiety, chronic low back pain, previous narcotic analgesia (now weaned) and stress.
8. The next document in Exhibit 1 is a report by Danielle Vilder of Wesley Mission dated 6 June 2018 which I am informed has been superseded by the report of 13 August 2018 marked Exhibit 5. I will turn to Exhibit 5 in a moment.
9. I note that as at 19 January 2018 the offender was registered for medical service with the Central Coast Local Area Health Service in relation to drug and alcohol addiction. It refers to the history of dependence on opioid medications as well as a treatment plan put in place at the time of this letter, the date of which is unclear.
10. The author referred to the fact that he had reviewed the offender that day and noted that the offender has worked extremely hard to overcome his medical issues and is trying to rehabilitate himself. It also goes on to say that he was genuinely regretful for his past actions. On behalf of the service, the doctor the author of the report stated, "We are happy with his progress and the treatment program and are happy to provide ongoing support to Mr Moller in his rehabilitation."
11. I have also taken into account a report by Dr Pek Ang dated 1 June 2018. Dr Ang is a psychiatrist. In his report of 1 June 2018, he says that he last saw the offender on 19 June 2017 which, of course, is prior to the relevant offending. I infer, by the language used by the author of the report, that he saw the offender for the purpose of the report of 1 June 2018 as he has stated: "Steven presented much better than I last saw him (when he was on opioids). His mood was certainly more robust. He is still a little flat but nowhere near as depressed. He is terribly remorseful about what happened and grieves the fact that he has lost the opportunity with his payout and now he is financially in a very bad situation."
12. The offender also relies upon a report by Dr John Harrison, an orthopaedic surgeon, dated 15 March 2012 in order to provide background information relating to the work-related incident. It is plain from that report that the offender suffered an injury to his lower back as a result of the work accident, giving rise to a whole person impairment in the order of 7%.
13. Exhibits 2, 3 and 4 are effectively character references. I note that Ashley Smith has known the offender for some 30 years and speaks highly of the offender. Similarly, Mr Emery has known the offender for some ten years and he described him as being an honest and respectful person. In similar terms, Daniel James, a director of DPAC Remedial, in a reference dated 27 February 2018 stated that he has known the offender for some 34 years and referred to him as being honest and respectful.
14. The next document to which regard is had is the updated report by Danielle Vilder dated 13 August 2018. I gather that the offender's association with Wesley Mission, of which Danielle Vilder is a registered psychologist, concerned his gambling behaviour. It is noted that the therapeutic strategies which were implemented by the client to address his anxiety, depression, stress and coping strategies with healthier approaches were positive and, overall, the impression one gets from the report by Ms Vilder is that the offender has made good progress in relation to that difficulty.
15. Finally, in relation to the offender's subjective case, I have a photocopy of a photograph of a report by Dr Grennall dated 24 July 2018. It states: "This is to state that Mr Moller has worked hard to wean his OxyContin and Endone use. He no longer takes these medications. I provided a script for Panadeine Forte. It is hoped he will cease this medication too in the near future."
16. That is the evidence bearing upon the subjective case of the offender. It appears that he came from a supportive family and strong background and has been a hard worker.
17. With the exception of a few relatively minor offences in the past, has led a life of good character, although I do not intend to make a specific finding as to that matter. I have already referred to the previous convictions and I have had regard to those convictions in the way suggested by the New South Wales Court of Criminal Appeal in R v McNaughton (2006) 66 NSWLR 566 and, in particular, how they might bear upon the question of proportionality in the exercise of the sentencing discretion.

REMORSE

1. Evidence of contrition or remorse in respect of the subject offending is also relevant. I have already found that the offender has demonstrated remorse. I consider the remorse to be genuine and accept that he truly regrets his offending.

APPROACH TO SENTENCING

1. The approach to sentencing, of course, must bear some reference to and consideration of the purposes for sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 where the legislature identified seven considerations as purposes for which a court may impose a sentence on an offender including punishment, deterrence, protection, rehabilitation, accountability, denunciation and recognition.
2. In my mind, there is no need for specific deterrence in this case as the offender has already effectively rehabilitated himself and is continuing to do so. There is, of course, a need for general deterrence as conduct of this type cannot be tolerated in the community. For the reasons set out in the decision of R v Henry, the Court is mindful of the antisocial and dangerous effects that behaviour of this type has in society. There is also the need for punishment and I am satisfied that the sentence which I will impose will reflect that purpose.
3. In my mind, the consideration or purpose of protection does not necessarily arise in this particular case. In light of my finding that the risk of reoffending is virtual non-existent, it is unlikely that the offender will pose any further harm or risk of harm to the community. Rehabilitation is, of course, something to which the sentencing discretion should give weight.
4. Whilst the offender has made good progress in rehabilitation, there are still further efforts to be made and gains to be achieved. I have adjusted the sentence to permit the offender a longer period of time on parole so as to pursue his rehabilitation in the community. Accountability, of course, is a relevant factor to which I have had regard, as well as denunciation and recognition.

DISCOUNT

1. In this case there arise two bases for discounting the sentence to be imposed upon the offender. The first is to reflect the value of the guilty plea. As I have stated, I intend to reduce the sentence by 25% to reflect that fact. The second is in relation to the assistance which the offender has provided to the community by handing himself in and saving the community the time, inconvenience, expense and unhappiness of pursuing a contested criminal investigation and trial.
2. In considering what weight is to be given to that assistance, which arises both as a general mitigating factor and also as a statutory mitigating factor pursuant to s23(4) of the Crimes (Sentencing Procedure) Act, the Court must always bear in mind the question of proportionality so as not to reduce the sentence to a degree that offends the principle of proportionality. That is, the common law has long recognised the punishment must fit the crime. A sentence should not be increased or, indeed, decreased beyond what is proportionate to the crime in order to merely extend the period of protection or, in this case, to extend the period of rehabilitation for the offender. The principle of proportionality is something to which the Court has had regard in determining the appropriate sentence in this case.
3. In terms of the discount to be applied in relation to assistance provided by the offender to law enforcement authorities, I note that, on the night of the offending not long after it occurred, he made contact with the police and he then presented himself to the police station where he made frank and honest concessions. In his evidence here today he has stated that, if there is any difference between what he says and what is said by the victims of the offending, the Court should prefer what the victims say over what he says, as he "was not fully there" or words to that effect.
4. My impression of the offender is that the evidence he gave demonstrated him to be a reliable and honest person who is entitled to a discount for his co-operation and assistance with the authorities. It was submitted on behalf of the Crown that a range of discount between 5% and 10% would be appropriate. It was submitted by the solicitor for the offender that 15% might better reflect the assistance provided to the police. In determining what is appropriate, I should throw into the mix a consideration of the strength of the prosecution case.
5. I note that prior to the offender reporting himself as the offender, the police had obtained the CCTV footage of the event, the subject of the charge, and it seems likely, in my view, that they probably would have located him in any event, but that involves a degree of speculation to which the Court should not diverge. In my mind, a discount of 10% for assistance to the authorities is fair and would not result in an outcome disproportionate to the objective seriousness of the offending.
6. In terms of the matters to be considered under s23(4), I have indicated by the remarks I have just made that a lesser penalty will be imposed by reason of the assistance he has provided. A record of that fact will be made on the court file in accordance with the remarks on sentence provided now. The sentence which would have been imposed by reason of the deduction of 10% would have been 10% higher than what it will be and in due course I will announce what the sentence, in fact, is.

SPECIAL CIRCUMSTANCES

1. The question of special circumstances was not disputed by the Crown. Indeed, in the Crown's submissions a number of grounds were set out in MFI 1 at paragraph 20 as being proper bases for finding special circumstances in this case.
2. On behalf of the offender, it was submitted that the Court ought to find special circumstances on the basis that there is a real need for continued rehabilitation, together with the fact that it is the first time in custody, although the solicitor for the offender cautioned the Court against placing too much reliance upon the latter as being a special circumstance which would warrant a departure from the statutory ratio.
3. I note, for example, the decision in the New South Wales Court of Criminal Appeal in R v Collier [2012] NSWCCA 213, where the Court of Criminal Appeal warned against finding special circumstances on that ground alone. In this case, however, there are other grounds upon which such a finding might be made and, as has fairly been conceded by the Crown, they include addiction, rehabilitation and poor health.
4. On the basis of the finding of special circumstances, I intend to adjust the statutory ratio between parole and non-parole down to 50%.

IMPRISONMENT

1. I must be satisfied, having considered all other possible alternatives, that no sentence, including non-custodial sentences, other than imprisonment is appropriate. The Crown contends that the threshold under s5 has been crossed, as does the solicitor for the offender. Accordingly, I find that, after considering all alternatives, imprisonment by way of full time custody in this case is appropriate.

IMPOSITION OF SENTENCE

1. Mr Moller, you are convicted of the offence set out in the Crown sentence summary, namely, robbery armed with an offensive weapon, in breach of s97(1) of the Crimes Act 1900.
2. I sentence you to a term of imprisonment of four years, which I reduce by 25% on account of your guilty plea and by a further 10% on account of your assistance to authorities. That results in a head sentence of 31 months.
3. I impose the following: a sentence consisting of a non-parole period of 15 months commencing today and expiring 16 November 2019 at which time you will be released on parole, and I impose a head sentence of 31 months commencing today and expiring 16 March 2021.

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: 28 November 2018