HIS HONOUR: Andrew Morrison appears today for sentence in relation to an offence of armed robbery contrary to s 97(1) Crimes Act 1900, committed on 2 November 2011 at Glenfield Park in the State of New South Wales, when he did rob Alissa Michelle Mainwaring of certain property, namely $536.55, the property of The Reject Shop Limited, being armed with an offensive weapon, namely, a knife. That offence carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period for it.
Related to that offending are three other offences, an offence of taking and driving a conveyance without the consent of the owner, contrary to s 154A Crimes Act 1900, which when dealt with summarily, as I am required to approach the matter as it is on a s 166 certificate, carries a maximum penalty of two years imprisonment and/or a fine of $5,500. There is another offence of driving in a manner dangerous, which carries a maximum penalty of nine months imprisonment and/or a $2,200 fine, with a minimum period of disqualification of 12 months.
A third offence on the s 166 certificate is an offence of driving whilst unlicensed and never having been licensed which carries a monetary penalty of a maximum of $2,200. Because these matters are on an s 166 certificate I will be required to impose sentences upon the prisoner in relation to those matters
They have not attracted much attention in the course of submissions and in the circumstances of the matter, noting of course Pearce v R (1998) 194 CLR 610, particularly in the majority judgment at [45], and cases subsequent to that decision, particularly in the New South Wales Court of Criminal Appeal, I have concluded that any penalties I should impose involving a term of imprisonment should be concurrent with the sentence that I impose in relation to the armed robbery given their intimate connection to that offence.
Again it has not been expressly addressed but clearly can be impliedly understood that the criminality in the armed robbery includes consideration of matters relating to the taking of the vehicle and the conduct of the vehicle, to impose the terms of imprisonment that I must impose, notwithstanding s 5 Crimes (Sentencing Procedure) Act 1999, those terms will thus be concurrent.
R v Morrison [2013] NSWDC 334 | Case summary | Zoe
I have a statement of agreed facts in relation to some of the offences, particularly the taking of the motor vehicle and the offence of armed robbery which was charged on indictment. The prisoner, as at 2 November 2011 was resident in Wagga, but on parole, having been released to parole in September 2011 having served over five years of a term of imprisonment imposed by his Honour Judge Coorey.
He was residing in premises in Bluett Crescent, Mount Austin, and according to the facts, as I understand the matter, he asked a young man staying at the prisoner's residence if that young man knew how to get to the Southcity Shopping Centre. The prisoner and his companion walked to address in Tolland. The prisoner approached a motor vehicle, the subject of the take and drive without the owner's consent charge, which was a white coloured two-door Hyundai Excel.
He entered the driver's seat of the vehicle, told his companion to get into the passenger seat. The person with him saw the prisoner break the steering lock of the vehicle and hotwire the car. The prisoner drove the vehicle to the shopping centre and eventually parked the motor vehicle in a nearby carpark. He retrieved a baseball bat from his tracksuit pants and the young man that was with him waited in the motor vehicle.
The prisoner disappeared from sight and was absent only a matter of minutes, and the male companion heard loud screaming. The screaming was as a result of the armed robbery that the prisoner had committed. The victim of the armed robbery was an employee of 'The Reject Shop' in the shopping centre. At approximately 2.15 to 2.20pm that day she was working one of the cash registers or "tills", having started work at about 1pm.
The prisoner walked into the shop and walked towards her. When he got close to her he ran around behind her and grabbed her by you shoulders with his left hand, he spun her around so that she was facing away from him and he had his front to her back, and held a knife to her neck region. In the agreed statement of facts the knife was estimated to be approximately 20 to 23 centimetres in length and about 5 to 5 and a half centimetres wide at the base.
The knife was held close to her neck, a matter of a few centimetres away, and the prisoner kept a firm grip on her and said, "Open the till, get the money out. I want the money." The victim told him that she could not do it. Another employee came to her aid having heard the victim scream. She saw the prisoner holding the victim and the prisoner yelling, and heard him say, "Open it. Open in." She told him she would open it and indicated there were difficulties because it couldn't be done without a sale.
The prisoner was said by the witnesses to become agitated. The victim herself said, "She's almost got it. She's almost got it." The prisoner let go of the victim when the till was open and she fell from his grip, so to speak. The prisoner put his hands in the till and pulled out the tray containing the money. He called out as he walked away holding the tray and the knife, "Don't call out or I'll hurt youse." He then left the store.
As part of the evidence in the sentence proceedings I have seen the closed circuit television footage of the armed robbery which shows effectively two views, one in a close up of the actions of the prisoner. The prisoner, on the view one has of the closed circuit footage, approached the victim purposefully. He took a firm grip on her and held the knife, as the facts state, close to her throat, and clearly during the period of time he was making demands to gain access to the contents of the "till".
It can be fairly said of course that the time that he had the victim in his grip was a matter of perhaps no more than 15 seconds. But one can see the affect of the prisoner's conduct on the victim after he left as she was visibly shaking and had to be consoled by one of the witnesses. As I said, the prisoner acted purposefully and deliberately and it is clear from the closed circuit television that the prisoner knew exactly what he was doing and was prepared to do what he needed to do to effect his purpose.
Of course, whether he needed to produce a knife and hold it against the throat of a vulnerable victim is another matter, but that is what he chose to do. The prisoner drove off eventually in the car that he had previously taken, and there are some facts in relation to the offence of driving in a manner dangerous, and of course any driving of the motor vehicle constituted the offence of driving whilst never licensed.
He drove around the Mount Austin area and eventually to an area of Glenfield, a suburb of Wagga. The police were no doubt looking for the subject vehicle. It eventually was followed by police, and in the course of that "pursuit" he drove on the incorrect side of a roundabout at Glenfield Road and travelled along Glenfield Road on the incorrect side of the road, overtaking vehicles, his manner of driving causing other vehicles to flash their headlights and move out of the way onto the shoulder of the road to prevent a collision. He eventually turned into Redhill Road, to the south of Tolland, and eventually police lost sight of the vehicle.
He drove the vehicle into Tolland and abandoned it and it was later recovered by the police. The prisoner was subsequently arrested. He was interviewed by police some time after 5.51pm. The agreed statement of facts simply said that he denied committing the offence, but in the context of the prisoner's evidence today, the ERISP was tendered and I will deal with the details of that when I deal with the prisoner's evidence, but it must be said that the prisoner gave a "coherent" account of himself and a detailed account of his movements throughout the day in his denial of having committed the armed robbery, which the police were then investigating.
The prisoner pleaded guilty at the December sittings of the court when the matter was listed for trial. The prisoner has given evidence about some aspects of the circumstances of the giving of the plea, but as was conceded in the written submissions of the prisoner's counsel, the discount to recognise the utilitarian benefit of the plea of guilty could be no more than 10% in light of the judgment of Thomson and Houlton, and I am prepared to provide the prisoner with a discount of 10% upon the otherwise appropriate sentence in relation to the indictable offence.
Likewise, I will give an appropriate discount to the summary matters, although that is academic given the fact that they will be, where prison sentences are required, sentences of imprisonment to be served concurrently with the non-parole period that I fix for the prisoner.
The prisoner was, as I mentioned earlier, on parole. This was a matter of considerable significance in these sentencing proceedings. Not just because the prisoner by being on parole when he committed this offence was in breach of conditional liberty, but because the prisoner's offending in a number of respects, and his conduct and attitude towards the offence, bears striking similarity in many respects with matters for which he has previously been sentenced and in respect of which he was on parole at the time of the commission of the offences with which I am concerned.
Also, the evidence of the prisoner and submissions that are made, in the context of the medical evidence, reflect upon lost opportunities to endeavour to sever the Gordian Knot of the prisoner's clear institutionalisation having spent many years in custody, admittedly arising out of the commission of serious crimes whilst an adult.
The prisoner was born on 13 April 1978, according to the criminal history available to the Court. He was thus at the time of the commission of the offences of which I am concerned, on my calculation, 33 years of age, and is now 34 years of age, about to turn 35. Commensurate with his history of dysfunction and neglect as a child he has appearances in the Children's Court for various offences relating to matters of dishonesty, stealing of motor vehicles and misuse of motor vehicles and the like.
As an adult he first appeared in a Local Court for an offence of breaking and entering with intent and received on that occasion a three year good behaviour recognisance as it then was known under s 558 Crimes Act 1900, and subsequently, over a year later, received a community service order and another recognisance to be of good behaviour for three years for receiving stolen property.
Ultimately and inevitably he was sentenced to terms of imprisonment in 1998 for crimes of dishonesty, including the take and driving of a motor vehicle without the owner's consent. These were relatively short periods of imprisonment imposed in 1998 in the Manly Local Court, and also just previously in the Fairfield and Liverpool Local Courts. He reappeared in the Local Courts in 1999 and was again sentenced to a relatively short term of imprisonment for breaking and entering a building and committing the indictable offence of stealing, and given concurrently, recognisances to be of good behaviour for 15 months.
He continued to offend, however, and was sentenced to terms of imprisonment in 2000 for offences relating to his misuse of motor vehicles and taking and driving a vehicle without the owner's consent, totally, as I understand, 18 months with a non-parole period of 12 months. He was convicted at the Campbelltown District Court on 12 December 2001 for various offences relating to robberies, two offences in company, one offence of using an offensive weapon to avoid apprehension and another offence of driving a conveyance without the consent of the owner.
Those terms of imprisonment extended, so I understand, the sentences imposed by the learned sentencing judge, from 12 December 2001, in total, through to February 2006. A non-parole period was fixed, recognising the special circumstances although the sentences involved themselves, some accumulation. It should be noted that the prisoner was sentenced in relation to two robberies in company at that time.
The prisoner did not obtain parole. There is evidence available that firstly, his parole was delayed and then by the time he was offered parole, he said in his evidence today that he determined to serve out the rest of the sentence with only six months to go. Shortly after his release he then committed a series of offences that were dealt with by his Honour Judge Coorey at the Campbelltown District Court on 18 February 2008.
These offences involved a course of conduct by the prisoner between 27 February 2006 and early March 2006. They involved offences of knowingly drive a conveyance without the owner's consent, committed on 25 February 2006, an offence committed on 27 February 2006, a "quite aggravated robbery", involving the infliction, as I understand it, of actual bodily harm, obtaining a benefit by deception and driving whilst disqualified, on the same date. Also, robbery whilst armed, with wounding, committed on 28 February 2006, obtain benefit by deception and drive whilst disqualified on 1 March 2006, and robbery whilst armed with an offensive weapon and driving whilst disqualified on 5 March 2006. On 11 March 2006 the prisoner committed another offence of taking and driving a motor vehicle without the consent of the owner, and driving whilst disqualified.
The prisoner was arrested shortly after that date in relation to other matters and he was questioned several days later in respect of the matters with which his Honour Judge Coorey dealt. I have not only the agreed statement of facts, but his Honour's remarks on sentence and a medical report and a psychological report that were prepared for the proceedings and have been re-tendered in these proceedings.
In relation to those remarks on sentence, of course there are a number of common features with the current circumstances of the prisoner. Many of the subjective circumstances have remained much the same and of course there are parallels between the character of offending and the prisoner's subsequent conduct in 2006 with the matter with which I am concerned. His Honour structured the sentences, as I understand it, in such a way as to make a number of sentences concurrent with each other.
Ultimately, his Honour fixed a total sentence of seven years and six months with a non-parole period of three years and six months, reflecting a finding of special circumstances on the basis of the material available to him. I should point out the prisoner's traffic record is before me. He has never been licensed as I have pointed out, and has committed a large number of offences consistent with that, including many offences of driving whilst disqualified, most recently, when he was at large in early 2006.
The agreed statement of facts also set out the details of the information the prisoner provided to the police in respect of the investigations they were undertaking in respect of the number of crimes that the prisoner is alleged to have been concerned with. There are some parallels between the prisoner's obfuscation on that occasion and the obfuscation in the interview the prisoner gave to police in relation to the matter with which I am concerned. As I earlier pointed out, the prisoner was released to parole on or about 12 September 2011. He came to Wagga to be with his partner who had two young children.
According to the Probation and Parole Service report that was tendered it was the case that the prisoner whilst on parole, up until the time of the offending with which I am concerned, generally complied with the directions of the Probation and Parole Service, had managed to avoid the use of illicit drugs, which had been a feature or factor in his previous offending on a number of occasions, and was receiving medical treatment.
With regard to his supervision by the Probation and Parole Service, the report I have notes that whilst he did not present any problems for the Probation and Parole Service up until the commission of these offences, the period of supervision of course was relatively short and his past history, including past parole supervision, reflected the inability of the prisoner to maintain a lawful lifestyle. On numerous occasions whilst subject to community supervision the Probation and Parole Service report sets out some details of his previous supervision and breaches of his conditional liberties in the past.
He was in breach of parole in 2000 and his parole was revoked on that occasion. He did not eventually seek parole on the occasion he was in custody between 2001 and 2006, and because of his breaches in November 2011 his parole was revoked. With regard to the revocation of his parole which occurred in mid November, my understanding is that the balance of parole which he is required to serve, subject to further direction from the parole authority, is for a term of three years, ten months and 11 days, commencing from 2 November 2011, the date he came back into custody. That period of balance of sentence will expire on 12 September 2015.
Jumping ahead somewhat to one of the matters raised in the submissions of the accused particularly is the issue of commencement date of sentences I am required to impose for the matters that require sentencing today. In that regard I am drawn to a number of judgments of the Court of Criminal Appeal, DW [2012] NSWCCA 66, and particularly at [79], the judgment of Simpson J in Callaghan v R [2006] 168 A Crim R 145, and the earlier judgment of Kitchener [2003] NSWCCA 134.
I am mindful, particularly, amongst the number of matters that are raised from the authorities and included in the submissions for the accused, that one must be careful in fixing a sentence for offences where a breach of parole is an aggravating factor not to "double dip" to and extent that is unfair to the prisoner. I have noted what was set out in the written submissions in relation to the discretion that exists in the circumstances that I am faced with in this particular matter. I am mindful of the need, amongst other things, to include the period spent in custody since 2 November in the consideration of the fixing of an appropriate non-parole period for the prisoner for the sentences I must impose.
I have concluded ultimately that the commencement date of any sentences I impose should be 2 October 2013, which I calculate to be one year and 11 months since the effective revocation of the parole to which the prisoner was subject, which is slightly less than 50% of the balance of sentence otherwise required to be served, mindful of the fact of course that, but for these matters but assuming other breaches of parole, the prisoner may be entitled to release to parole during that period of time.
In any event, returning if I may to the Probation and Parole Service report, the Probation and Parole report reflects upon matters of the prisoner's background which are also included in the histories the prisoner has provided to medical professionals. It is clear from the history provided by the prisoner that the prisoner as a child, in fact as a very young child, suffered a great deal of trauma and neglect and from his very disadvantaged upbringing carried into his adult life a great many problems and disabilities, for want of a better word, which have impacted upon his capacity to live a lawful existence in the community.
There is some background of mental illness in his family reported, particularly in the medical reports. The prisoner was in various foster homes and makes claims of physical and sexual abuse. His association with his mother as a child and as a young adult has been very problematic. But he is now in a close relationship with her and said today that he had a close relationship with other members of his family.
He is said to have had little or no employment experience as an adult, but has said today, and I am prepared to accept it, he has worked in one area of employment for a period of 18 months. He has undertaken some vocational courses whilst in custody that he detailed today, but his level of literacy skills and other markers of education are limited indeed.
So far as the Probation and Parole Service is concerned it says that the prisoner could best be described as, "institutionalised", having spent, according to its calculations, only one year and seven months in the community over the past 16 years. The Probation and Parole Service also notes his inability to maintain a lawful lifestyle, as I said earlier, and concludes, "There is little evidence available to suggest Mr Morrison's compliance with further supervision would be positive."
He is indeed, on their assessment, in need of a medium to high level of intervention by the Service, particularly to address programs to provide him in the future with a gradual reduction in supervision, to assist him in some way to becoming deinstitutionalised so that he can adapt to normal, lawful community life. Notwithstanding what appears to be some success in drug and alcohol counselling in the past, he continues to be a person who needs monitoring in that regard and requires psychological assessment and counselling in relation to his childhood trauma and anger management.
The prisoner gave evidence to the Court, and as I said, a number of medical reports were tendered, as well as a psychological report. If I could deal with the prisoner's evidence so far as it reflects upon matters I have touched and the opinions of the psychiatrists and the psychologists. The prisoner said that the history he had given to the professionals was true, although, as I pointed out, he clarified some matters arising in the Probation and Parole Service report.
I accept his evidence that during his last term of imprisonment he was not given the opportunity of what could be called staged release, and was not given the opportunity to undertake counselling that clearly is necessary to enable him to cope in the wider community, particularly to address his anger and matters arising out of his unfortunate background.
In relation to his custody both presently and in the past, I note that he has for lengthy periods of time has been on protection or subject to "segregation". The conditions of his custody were not the subject of evidence by him, nor has any objective or independent evidence been produced to the Court about those matters. I accept that by being in segregation for the reasons that he gave he would have a greater difficulty gaining access, if he can gain access at all, to particular programs. Mention was made in the evidence of the 'Violent Offenders Program' which clearly, on the prisoner's criminal history, he needs to undertake to assist him.
He acknowledged in his evidence that his segregation status arises from his own behaviour, not because of any particular crimes he has committed or because there is any suggestion of him having cooperated with the authorities in the past. In fact, he said in so many words that his protection status, or segregation status, was both for his protection and/or the protection of others. He has, over a period of time, had a poor disciplinary record in custody and the Probation and Parole Service report notes that even since being back in custody on 2 November he has a number of infractions relating to alleged acts of violence and other matters against his record.
He accepts that the anger that he displays in his dealings with other people in custody and sometimes reflected in his frustration in this Court is a current issue for him to address. I accept that counselling to address some of the underlying issues arising from particularly his childhood, need to be addressed in custody, but it should be pointed out that it does not relieve the prisoner, nor has it relieved the prisoner in the past of the responsibility to address these matters himself with or without counselling, particularly by some process of self-examination, at least, to understand what has brought him into custody each time that he has been gaoled.
From the prisoner's evidence today and from the material available to the Court I have little evidence that the prisoner up to this point has done that in any meaningful way. There is a saying, 'the proof is in the pudding', and in the prisoner's case his criminal history and the facts relating to the matters dealt with by Judge Coorey demonstrate very clearly the propensity of the prisoner for violence when it suits him to get his own way, and his inability to lead a lawful lifestyle when in the wider community.
I accept in his favour however that on the last occasion he took advantage of what drug and alcohol counselling he had, and this is reflected in the six to seven weeks of abstinence whilst on parole. I accept that during this period he had no relapse in relation to his use of illicit drugs, and it is not suggested that illicit drugs are a contributing factor to his offending.
I note one of the matters he raised today was that the Probation and Parole Service would not allow him to visit his late grandfather who was dying of cancer at that time. In fact, as I understood the evidence before me, one of the reasons that he gives for the commission of the armed robbery was to obtain money to assist him to travel to see his sick grandfather, irrespective of whether the Probation and Parole Service would allow him to go.
I can appreciate of course that this was frustrating for him. However, at the same time he had only been out of custody for six or seven weeks. He clearly was a person vulnerable to relapse. The Probation and Parole Service no doubt was very concerned that if he left Wagga where he was apparently in a stable relationship, to return to where his grandfather lived, he might be at risk of reoffending. If he had gone to visit his grandfather as he wished to without the consent of the Probation and Parole Service, this would no doubt have been a potential breach of his parole.
In his evidence he believed that in the week before the armed robbery that the combination of the new antidepressant drug, the antipsychotic medication he was taking, and his use of methadone had an adverse effect upon him, particularly the new antidepressant medication, this gave him headaches, raised his levels of anger and frustration.
Noting his evidence of what he says and remembers and his reasons for doing what he did, which he really cannot give, these matters offer no explanation as to why he would commit an armed robbery on 2 November 2013 in the manner in which it was committed. Nor is any reason associated with either his mental health or his medication identified either in the opinions of Dr Furst, the evidence of the prisoner, or any other material.
I will come back to the relevance of his mental health in sentencing at a later time, but the direct causal connection between his mental health and the offending is not established. As I pointed out to the prisoner, even if his mental health and his use of medication had contributed to him becoming angry and lashing out in a violent way, it does not explain the manner in which the prisoner carried out the armed robbery with which I am concerned, which included of course the foresight of endeavouring to disguise himself and the obtaining of a vehicle in the manner in which he did, to convey himself to the scene of the crime and away from the scene of the crime.
In this regard the prisoner gave evidence of memory loss to some extent of relevant events. He has, on his version, a potted memory of some matters. I do not have a transcript of what he said to me today, but my notes suggest that he can remember having a knife, and other matters, but he can't recall, he says, the key relevant events. That claim has to be considered in the context of the detail of the account he gave to police in the electronic interview during which he was shown closed circuit television footage of the crime that he admits he committed. In the course of that electronic interview, and I have only read the transcript, I was not asked to view the video itself, the accused gave a coherent account, distancing himself from the robbery and related events.
He says today, frankly, that he did lie to the police but it is quite clear when one looks at the detail of that electronic interview, he lied deliberately and in a considered fashion, providing a great many details that he knew were false. This construction of a denial to the allegation of armed robbery sits at odds with the now claimed lack of memory of relevant events. No such lack of memory was claimed at the time. It is, on a consideration of the totality of the material, even taking into account any consistency between his evidence and the history he gave the psychiatrist, a matter of concern that the prisoner in this way fails to take full responsibility for his actions.
Even if it was true that he now has no memory of relevant events, even if it was the result of the mixture of medication that he was taking lawfully at the relevant times, as I said earlier, his actions in the armed robbery reflected as the film made clear, the actions of a man acting with deliberation and with the mental and physical wherewithal to commit the crimes that he wished to commit to achieve the purpose that he had in mind, and that was to obtain money for himself.
It may well be that at some point after the event he genuinely has a "lack of memory", but clearly, on all the evidence, and the prisoner has not said anything for me to conclude otherwise, when he committed the crime of armed robbery he knew exactly what he was doing, knew exactly what he was doing when he was lying to the police, and clearly, when he asked for directions to Southcity Shopping Centre and took the motor vehicle and asked his friend to wait and disguised himself, knew precisely what his actions were seeking to achieve.
He suggested initially to me in his evidence that his late decision to plead guilty arose out of his opportunity to review the closed circuit television footage. This claim did not at the end stand up to any critical examination when I learnt, and it was demonstrated through the ERISP that on 2 November 2011, the police actually took him quite carefully through the footage in respect of which he gave obviously false explanations.
There is no suggestion in my reading of the transcript of that interview, and again, without having seen the vision, that the prisoner was in any way affected by medication or incapable of explaining himself to the police. As the prisoner's counsel conceded, his evidence in this very material respect was of no assistance in relation to aspects of the matter, particularly the cogency of explanations he had given in histories as to the circumstances of his offending. Of course, the combination of medication may have been "counter-indicative", but even on the basis of the opinions of the doctor, relying of course very much on the history given by the prisoner, it provides no explanation and certainly no excuse for committing the crimes with which I am concerned.
I do accept however, from the evidence of the prisoner and from the objective facts of his conduct over the past 16 years, that the prisoner is institutionalised. As I said earlier, this again offers no mitigation for the prisoner, and it certainly provides no real explanation for the prisoner acting towards the victim of the armed robbery in such an unnecessarily violent way. If the prisoner by reason of his institutionalisation felt uncomfortable in the wider community, felt "more secure" in custody, in a personal sense, or if he just needed money, as he said he did today, there were far less violent things he could have done to satisfy his needs, whatever they may have been.
The facts of the matter are that his criminal history and the assessment of him by the psychologists and the two psychiatrists at different times show the prisoner, by reason of his personality disorder, amongst other things, has a predisposition to commit violent acts, particularly violent crimes, to achieve his ends, as he did on this particular occasion. That brings me to the opinions expressed by Dr Allnutt in 2007, and the report of the psychologist, Mr Jackmon, of 2007. Although they are now over five years old, there are some consistencies with the assessment of Dr Furst. But where any particular inconsistency arises arising out of a particular qualification, where a particular witness has to express an opinion, I prefer the opinions of Dr Furst.
Dr Allnutt was of the opinion that the prisoner at that time, in 2007, manifested ongoing symptoms consistent with a resolving psychosis. Quoting the prisoner's history of hospitalisation and treatment as a teenager, and his polysubstance abuse, he concluded that a differential diagnosis would include schizophrenia, schizoaffective disorder, and a drug induced psychosis. He noted the prisoner's disadvantaged background and his lack of education.
He concluded that the prisoner's most significant diagnosis at that point was "substance abuse and substance dependence, particularly to heroin", and he reflects upon the prisoner's failure to take the relevant medication on his release from custody and attributes substance abuse as the primary cause of his offending.
Mr Jackmon's report involved very extensive psychometric testing and in the helpful written submissions of counsel for the accused, he notes the testing revealed that the prisoner "rated highly" in a number of areas of "somatic complaints", including anxiety, anxiety related disorders, depression, mania, paranoia, schizophrenia borderline features, antisocial features, drug problems, aggression, suicidal ideation and life stress.
He also concluded on his testing that the prisoner showed what are described as "significant traits of post-traumatic stress disorder and substance disorder, and that in 2006 the prisoner revealed quite highly impaired capacity and judgment." It is worthy of note too that his assessment, also involved in his psychometric testing, produced results that revealed that the prisoner was, "quite likely to be impulsive and hostile", and that he had a "profile consistent with a person who would be expected to have a history of quite antisocial acts."
On the testing that he undertook he said, "Such individuals may be seen by others as exploitative in their relationships. They tend to have a history of antisocial acts and often manifested a conduct disorder during adolescents." He went on to say, "They may be involved in illegal occupations and/or engage in criminal acts involving theft, destruction of property and physical aggression towards others." He also said, "They tend to be seen as egocentric with little regard to others or the opinions of the society around them."
He said otherwise that the prisoner's testing revealed he would find it difficult to reduce his drug use and that in the testing in respect of aggression, the score level of the prisoner was such that:
"Respondents with that score level were quite likely to be chronically angry and will express freely their anger and hostility. They are easily angered, report having difficulty controlling the expression of their anger, and are likely to be perceived by others as being hostile and readily provoked."
He said these scores revealed, "(R)espondents who are not intimidated by confrontation", et cetera, et cetera. Much of the evidence reflects the accuracy of that assessment. That brings me to the most important report, because of its contemporaneity to the current proceedings, and that is that of Dr Furst. I accept of course the history obtained from the prisoner about previous treatments, particularly as a teenager, that required admission to psychiatric hospitals and the like.
He also noted the prisoner's assessment at the Wagga Base Hospital on his release to parole. There appears to be some complaint, if not directly levelled certainly indirectly levelled, at the treating doctor who prescribed the antidepressant medication. However, her note of 2 November 2011 indicated that the prisoner was, "stable and going well." If the prisoner was experiencing a reaction to the medication he was taking, from what I understand of the evidence, he made no complaint to the prescribing or treating doctor.
Ultimately, the diagnoses of the doctor on the basis of DSM4TR criteria was "On Axis 1, opiate dependence, on Axis 2, borderline personality disorder, antisocial personality traits." He said in his report that the prisoner's family, which is no fault of the prisoner of course, was dysfunctional. His mother had a serious mental illness and the prisoner lacked the positive role models in life. He had a number of behavioural and learning difficulties consistent with probably ADHD and conduct disorder, and he had a long history of emotional instability, depression, irritability, impulsivity, anger and chronic deliberate self harm which were consistent with borderline personality disorder.
He said that persons with such a disorder often have chronic feelings of emptiness, not caring about life, and make numerous attempts at self harm et cetera, which the prisoner has done. He described a borderline personality disorder as a "prolonged disturbance of personality function characterised by depth and variability of moods." The disorder typically involves unusual levels of instability and mood, "black and white" thinking … chaotic and unstable interpersonal relationships."
In extreme cases this disturbance in the sense of self can lead to periods of disassociation and these disturbances can have a pervasive and negative impact on many or all of the psychosocial facets of life, including maintaining, obviously, a stable life within the community. These matters are amenable to long term psychotherapy as the condition is also treatable by appropriate medication. He indicated that the prisoner would need to develop plans to engage with mental health services, not only in Justice Health while in custody, but in community health services when released.
As to his prospects of rehabilitation, Dr Furst said the prisoner had a pattern of recidivism, with serious violent offences. He had a low level of function, poor coping skills in the community and chronic mood instability as a result of his underlying childhood trauma and personality disorder. His prospects of successful rehabilitation were limited despite the positive efforts he was apparently making when last on parole in 2011. He noted various recommendations within his report which will form part of the papers to assist the prisoner in the future, and steps that should be taken on his release from custody eventually, particularly stable accommodation, psychological counselling and compliance with his medication, should medication be indicated.
He noted expressions of remorse by the prisoner to him but he did not volunteer any specific comments about the impact of his actions upon the victim. He said in relation to the prescription of the medication occurring at the time of the offences, he said that with regard to the use of the medication Seroquel, and the antidepressant medication, moclobemide, that "there is no contraindication to prescribing these medications together.
He was apparently reasonably stable in his mood when assessed by Dr Ross on 5 October 2011, and 2 November 2011, "making the indication for prescribing the antidepressant medication … unclear". This medication, he said, can cause a paradoxical increase in symptoms of depression and anxiety, especially within the first week or so of treatment. He noted the prisoner's description of, "a deterioration in his mood in the week or so after he took the medication, making it quite possible he has such adverse effects", but he went on to say:
"There was insufficient evidence to attribute his offending to the prescription of medication, especially as he has a chronic personality disorder that has been characterised by mood swings, depression and anger at various times throughout his life."
He also stated:
"In my opinion his underlying personality disorder and acute depression probably contributed to the impulsivity and poor judgement he displayed at the time of the offence. The medication he was taking at the time may well have contributed to the problems he was having with his mood."
Whilst I am prepared to accept that opinion, it stands uncontradicted of course on the evidence, it is to be fairly said that one would have some doubts as to whether there was relevantly an "impulsivity" in his actions given the course of events, the obtaining of clothing to try and disguise his appearance, the taking of the car and the like. But certainly, whether it be by reason of his personality disorder or other causes, the prisoner had not thought through the consequences of his action. Again, that is difficult to understand in light of the previous sentences imposed upon him, particularly the sentences imposed by Judge Coorey for three quite serious offences of robbery.
With regard to the submissions that were made by the parties, they were in written form, very detailed, and I am grateful to both parties for those submissions. Perhaps in one sense it is best to briefly deal with an aspect of the Crown's written submissions because it covers an area that is picked up directly in the thrust of the submissions put on behalf of the prisoner.
The Crown properly took the Court to s 3A Crimes (Sentencing Procedure) Act and set out a number of authorities and statements of the Court of Criminal Appeal in relation to the various purposes of sentencing. Of course, when the 'purposes of sentencing' are considered there are usually, as is the case here, quite a number of them that are relevant, although they may point in opposing directions, particularly the need to promote the rehabilitation of the prisoner as opposed to the need to give weight to personal and general deterrence as well as ensure adequate punishment to the prisoner.
The issues that arise from the purposes of sentencing set out in the legislation are very intimately bound up in the submissions that have been made by the defence in the context of the guideline judgment of R v Henry (& Ors) (1999) 46 NSWLR 346, which obviously predates the enactment of s 3A Crimes (Sentencing Procedure) Act and the principles that relate to the sentencing of offenders with mental health issues.
Insofar as the operation of s 3A and s 21A are concerned, I would understand Henry to reflect in anticipation, perhaps unknowingly, a number of the matters that now are required to be taken into account under the legislation. The judgment in Henry as a guideline judgment is, to be fairly said, not inconsistent in general terms with relevant considerations that arise now under the legislation.
Of course, I am very mindful of the fact that a guideline is not a "tramline". It is merely an indication of an appropriate penalty, but to get some measure to the matter with which I am concerned it was pointed out in the written submissions of the defence, when one has regard to the "common category", a case to which the guideline applies, reflecting a sentence in the range of four to five years in the context of the wide discretion a sentencing judge has for such a "typical case", the various features of such a "supposedly typical" case are not to be found here.
As was pointed out the prisoner was not a young offender with little or no criminal history. There was actual violence used, albeit that the victim was not physically injured. The prisoner used the weapon effectively to achieve his ends, and for admittedly, a brief period of time, a matter, as I said, of 15 seconds perhaps, maybe no more, there was a very real and intense threat of use of force reflected in the anxious actions of the other member of staff to prevent what she thought was the impending injury to her frightened colleague.
The prisoner, it is said, reflected in the commission of the offence a limited amount of planning, but the offence was not impulsive. In fact, it was premeditated in a range of ways. The prisoner chose a motor vehicle that he took without the owner's consent, in a very professional manner, to be taken to a place that he was shown by a friend, where he believed, as I understand it, a robbery could be committed. He took a cap and wore clothing to endeavour to disguise his appearance, and I assume that included endeavouring to cover tattoos on his person, because certainly the identification of a tattoo was one matter the police were reliant upon. He chose a place where he believed he could obtain the money that he needed.
There is no direct evidence of whether 'The Reject Shop' was the first place he chose or he had an opportunity to look at other places within the shopping centre. Certainly his presence in the shopping centre was only a matter of minutes. As I said, there was then a concerted, deliberate and purposeful set of actions undertaken by him to obtain the money that he needed, with threats, and he had a motor vehicle waiting nearby to enable him to get away from the scene of the crime.
It was not sophisticated planning of course, and it was planning over a relatively short period of time, but it certainly wasn't limited planning to the point of an impulsive crime committed at a particular place by what could be called a happenchance. Ultimately, noting the very fair concessions in the written submissions of the defence, it was conceded that this was, "a serious example of the offence of robbery (of its type) whilst armed." With that submission one could not argue.
With regard to the matters that are arising out of s 21A, whether it be from s 21A(1) or (2), as they directly deal with aggravating features, I accept that the use of a weapon and the use of violence are matters that might reasonably be reflected in consideration of the matter from the perspective of the Henry guideline. As to the previous criminal history of the prisoner, I accept ultimately that I cannot be satisfied beyond reasonable doubt that his prior record had the effect of aggravating the offence with which I am concerned but it deprives the prisoner of leniency, and also indicates in this matter that subject to consideration of his mental health, more weight is to be given to retribution, personal deterrence and the protection of society.
As is cited in the written submissions, the High Court in Veen (No 2) v R (1998) 164 CLR 465, in particular, said at 477-478:
"The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted.
It is legitimate to take into account the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and others from committing further offences of a like kind."
The armed robbery offence was not an uncharacteristic aberration. It shows in its commission a continuing attitude of disobedience of the law. His criminal history illuminates his moral culpability and shows to some extent his dangerous propensity, particularly when one compares the similarity of his conduct on this occasion with the matters with which Judge Coorey was concerned.
I appreciate however that there can be no doubt that the offence being committed on parole and within seven or eight weeks of release to parole is a significant aggravating factor and is to be found as an aggravating factor both under the common law principles of sentencing that existed before the Crimes (Sentencing Procedure) Act, and under s 21A(2). I also appreciate of course that the matters that I have referred to relating to his criminal history very much overlap with that particular consideration of the aggravation of committing this offence whilst on parole.
It is conceded in the written submissions as an aggravating factor that the victim was a vulnerable person by reason of her occupation. But there were other people nearby, she was not completely alone. In fact, the intervention of her colleague whose courage should be commended, to "save the day", because the young girl could not open up the cash register, was very decisive. I have dealt with the issue of planning, the planning was not sophisticated, but there was a degree of planning beyond that which was materially inherent to such an offence.
Because the offence charges the theft of money, it is an element of the offence that does not require a finding of aggravation that the offence was committed for financial gain. It is self evident that in an armed robbery offence that that would be the purpose, that is why the legislature reflects the maximum penalty such as it is given the elements of the offence. I am very mindful of the fact of course that any mitigating or aggravating factor present does not necessarily require an adjustment of the sentence accordingly, in accordance with s 21A(5) of the Act.
I am prepared to accept ultimately, in the context of no victim impact statement and no physical injury to the victim, although she must have been terrified and affected by this, that ultimately there is no evidence of injury or loss or damage of a substantial character. I also accept the plea of guilty as a mitigating factor pursuant to s 21A(3). In relation to remaining matters I note the prisoner's expressions of remorse to the psychiatrist, and in his evidence to this Court, but ultimately, in the manner in which it has come forward and its timing, and in the context of the evidence the prisoner has given relating to his recollection of the relevant events, I am not satisfied on balance that the remorse shown by the prisoner is a relevant mitigating factor.
I certainly could not conclude on the evidence that the prisoner was not fully aware of the consequences of his actions. Obviously, and I think this is conceded in the written submissions, I cannot conclude the prisoner is unlikely to reoffend or that he has good prospects of rehabilitation; the evidence he himself produces is to that effect. These findings accord generally with the position of the Crown reflected in its written submissions.
The Crown's submissions in relation to the mitigating and aggravating factors have been taken into account. As I earlier indicated the conclusions I reach generally accord with the position of both parties save for matters of minor importance. The prisoner, as I said earlier, is entitled to a 10% discount for the utilitarian benefit of his plea of guilty. One issue raised at the forefront of the submissions made today by the defence was the issue of a finding of special circumstances which is sought by the prisoner pursuant to s 44 Crimes (Sentencing Procedure) Act.
The Crown has drawn the Court's attention to the decision, and it is well known to it, of R v Simpson, when a five judge bench considered the meaning of "special circumstances", pursuant to the Crimes (Sentencing Procedure) Act in the context of an existing law. The words "special circumstances" have existed in legislation since at last the passing of s 9 Sentencing Act in 1989.
Ultimately the Crown "concedes there are special circumstances present insofar as this offender is concerned." This is, I take it from the oral submissions, addressing matters beyond the issue of partial accumulation which itself is a special circumstance. It is submitted by the Crown however that a non-parole period should be reflective of the seriousness of the offence and the offender's antecedents.
I have taken into account that concession by the Crown, and also the various matters raised in the written submissions of the prisoner. I have concluded that there are, notwithstanding the prisoner's failings on parole in 2011, and in the past, matters that are relevant to the assessment of special circumstances and justify the exercise of the discretion to adjust the non-parole period in the prisoner's favour.
There is the issue of the partial accumulation of the sentences I will impose upon the revoked parole, or balance of sentence. There is clearly, given the prisoner's institutionalisation, the need for professional assistance to adjust to community living. I do not recall any particular reference to this in the written submissions, but without citing the authority in detail, I clearly remember the judgment of Wood J in R v Moffitt (1990) 20 NSWLR 114, particularly at pp 120 to 121.
His Honour, in one of three judgments given in that case, including the judgment of Badgery-Parker J, reflected upon the fact that special circumstances may arise in the fixing of a non-parole period for a person who is institutionalised and/or is facing a lengthy period of imprisonment having spent many years in custody without having had a chance to adjust to community living.
The matter here is not as simple at that in any event. Militating more in favour of a finding of special circumstances and some adjustment of the non-parole period, the prisoner has an underlying mental health history and requires counselling both in custody and out of custody to address that mental health history, whatever the ultimate diagnosis will be. He also will have continuing issues to address in relation to his previous drug and alcohol dependency. For those reasons I have concluded that the prisoner should have the benefit of the finding of special circumstances.
I have been very troubled I must say by the detail of the facts that were presented to Judge Coorey and their relationship to the current matter. I note the consistency of conduct, the expedient conduct to obtain a short term advantage, the use of unnecessary violence to achieve the ends sought by the prisoner, a failure of the prisoner over a lengthy period of time to acknowledge what could fairly be said, for example, in relation to the matters Judge Coorey dealt with, his clearly established guilt and a lengthy period of time before any adoption of responsibility, in each case that adoption of responsibility coming too late to be of significance in the sentencing proceedings.
There is always, in the case of the prisoner, a concern about his future, not just for his sake, because the Court is concerned about his future, but for the reason that failings by him in the future will have an impact upon others, as has been proven in the past. As was said in Yardley v Betts, adopted by Wood J in the decision of Blackman and Walters v R, to paraphrase King CJs words, rehabilitation of offenders is not just in the interests of the offender, it is in the community interest. If a person be deterred or directed away from a criminal activity, that works not just for the benefit of the prisoner, but for the benefit of potential victims of his crimes and the community at large.
Returning to the written submissions of the defence in that other major respect that I earlier indicated, in sentencing the prisoner I accept that the prisoner has "other mental problems" that are of at least direct relevance to his offending. There is no direct link established either in the medical evidence or in the evidence given by the prisoner today, but I accept that the prisoner's conduct in committing this crime in an indirect way was compelled by a condition which is a product of events and circumstances beyond the prisoner's control.
While it may be said in these circumstances that the need to denounce the prisoner's conduct to give weight to general deterrence may be reduced to some extent, it may also be said in the context of the prisoner's conditions and his past performance, that the prisoner, with his condition, potentially presents as a danger to the community and a greater weight is needed in relation to specific deterrents. If one was undertaking some form of weighing exercise in relation to the competing considerations that arise, for example, on the principles summarised in the decision of De La Rosa (2010) 205 A Crim R 1, particularly at [177] - [178], what benefit might be given to the prisoner in reduction, reducing to some extent the need for a denunciation and general deterrence is balanced out by the clear need for an element of specific deterrence.
In that regard I note the submissions of the Crown in relation to this matter. The Crown submitted, and I generally accept, that the mental condition of the prisoner had little direct causal connection with the commission of the offence, although the Crown accepts that the prisoner has suffered from a long term "mental illness." On the other hand, as the Crown points out, it has been held that matters of general deterrence, denunciation and the like are not completely irrelevant where a causal connection is found. The significance of the mental condition or incapacity of the prisoner is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case.
If the prisoner in a particular case acts with knowledge of what he is doing, and with knowledge of the gravity of his actions, the moderation need not be great, (paraphrasing R v Wright NSWCCA (1997) - unreported) and of course the prisoner's evidence ultimately confirmed that whatever the gaps in his memory, he must have had a full appreciation of what he was doing, as his actions make clear.
Having tried to digest in a careful way all the matters that have been raised through the evidence of the submissions, I have come to the following conclusions. Just stand up please, Mr Morrison.
In relation to the offence to which you have pleaded guilty I have determined that the starting point of the sentence to be imposed upon you should be seven years and six months. I have given you a 10% discount and thus the total sentence for the offence of armed robbery will be six years and nine months commencing on 2 October 2013.
The sentence will expire on 1 July 2020, however, having regard to the fact that I have concluded that there are special circumstances I have concluded in your case that the non-parole period on that sentence, admittedly commencing 2 October 2013, shall be three years and nine months.
That non-parole period will expire, on my calculation, on 1 July 2017, commencing on 1 October 2013.
The balance of sentence is three years, is that correct? Just take a seat, Mr Morrison, you do not need to stand up for my mental arithmetic.
OFFENDER: Yes, your Honour.
HIS HONOUR: The balance of sentence of three years, this sentence reflects not only a finding of special circumstances, but in the context of the sentence I am imposing upon you, a conclusion that that period of time is a sufficient period of time for such benefit as you may receive from parole in the future to be achieved without diminishing the non-parole period, or the effective non‑parole period below that which would be appropriate having regard to the crimes you have committed.
In relation to the offence of take and drive a motor vehicle without the consent of the owner, I have determined that the appropriate penalty for that matter should be a term of imprisonment of 12 months. That sentence will commence on 2 October 2013 and expire on 1 October 2014.
For the offence of driving in a manner dangerous to the public, as with the take and drive matter, you are convicted. You are sentenced to a term of imprisonment of six months to commence on 2 October 2013, and to expire on 1 April 2014. In respect of that offence you are disqualified from driving or holding a motor vehicle driver's licence for a period of two years from today, being 13 February 2013.
In respect of the offence of never having been licensed, you are convicted and you are fined the sum of $500, and I grant you 28 days to pay that fine. You will be eligible for release to parole on 1 July 2017, but of course the Parole Authority will have to make that decision, not I.
HIS HONOUR: Are there any other matters Mr King, Madam Crown?
KING: No, your Honour.
HIS HONOUR: Yes, thank you, Mr Morrison, you can go with the officers, thank you. Thank you, Madam Crown for your assistance, thank you, Mr King.
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Decision last updated: 30 March 2015