(ii) failure to consider properly the effect of the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 in respect to the discounts to be applied for an early plea of guilty.
20 Before dealing with the grounds of appeal it is necessary to deal with the subjective circumstances of the respondent.
21 The respondent committed the offence in question whilst he was on parole for a number of other offences. Relevantly he had served eight months of a two year sentence for break, enter and steal and had then been released to parole on 27 November 2004. On 9 September 2005 his parole was revoked for breach of his conditions of parole namely recourse to drugs.
22 On 14 October 2005 the respondent was sentenced for assault occasioning actual bodily harm and had imposed upon him a section 9 bond. He was, on that date, arrested and kept in custody to serve out the balance of his parole which expired on 26 May 2006.
23 The respondent's record goes back to the time he was a juvenile. The earliest offence occurred on 11 May 1999 (the respondent was born in 1982) at which time he was 16. That was for an assault occasioning actual bodily harm. As a juvenile he was convicted of offences involving goods in custody, assault, entering premises without lawful excuse, a breach of community service orders, custody of knife in a public place, the possession of house breaking instruments, shoplifting, larceny, and in the case of some of those offences on multiple occasions. As an adult he continued to commit offences and he has been sentenced for receiving, entering premises without lawful excuse, aggravated break, enter and steal, common assault, larceny, possession of prohibited drugs, breaches of parole and assault occasioning actual bodily harm.
24 As earlier stated, the offence in question was committed whilst on conditional liberty and was in breach of his existing parole conditions.
25 The respondent is a heavy user of ICE/cocaine and has drug addiction and/or abuse problems. Tendered to the sentencing judge was a report of a psychologist, Emma J Collins, from LennMac Consulting with which I will deal.
26 His Honour the sentencing judge found that the monies stolen were used to purchase drugs and the reason, or principal reason, for his offending was the heavy use of ICE and/or cocaine.
27 The material before the Court below, and this Court, was to the effect that the respondent's use of drugs commenced with the use of marijuana at approximately the age of 12 which he used heavily until approximately the age of 15. He also abused alcohol and commenced drinking from approximately the same age, namely, 12 years of age.
28 The respondent commenced using heroin at the age of 16, used intravenously, and was heroin dependant for at least 3 years until the age of 19. At 19 he was incarcerated and for that reason gave up the use of heroin.
29 The respondent also abused ecstasy from the age of 21 years, initially 'recreationally', but escalated with the use of ICE (crystal methylamphetamine).
30 The sentencing judge found as a matter of fact that there was significant remorse and contrition and quoted from the respondent's letter tendered in proceedings before him:
"Innocent victims have been put in a position of fear and discomfort because I wanted to get high, I wish I could apologise to the victims face-to-face so that I could emphasise my regret and apologise. I am deeply sorry to the Commonwealth Bank as well, there is no justification in taking someone's property. I realise that if I do not start making some rational decisions about my life I will end up on the scrapheap."
31 As earlier stated, a psychologist's report was tendered by the respondent for the assistance of the Court. It recites matters, accepted by the sentencing judge, as to his background including some of the material to which I earlier referred relating to his drug addiction.
32 The respondent is a 24 year old Australian born male of Tongan ethnicity whose father is English. His parents separated when he was approximately 10 years old and, immediately prior to his imprisonment, he had been residing between his parents, mostly his father. He is involved in a stable relationship of approximately 18 months. He is involved, in prison, in the Smart Recovery program which is a custodial drug and alcohol counselling service.
33 His childhood was problematic with occasions of domestic violence, although he describes them as rare. His mother left the family home and his father stopped work in order to take on a full-time parenting role. At that point he saw his mother weekly or fortnightly. Notwithstanding the separation the respondent described his relationship with each of them as close. The psychologist opined that the divorce is likely to have had much more of a profound effect on him than he considers. His upbringing was a strict Mormon upbringing which was very restrictive.
34 The respondent changed schools frequently and his behaviour deteriorated each time he changed schools. This was around the time of his parents' separation. He was expelled from three schools and had been suspended during primary school years on a couple of occasions for unruly behaviour. It is clear that in his self assessment the applicant underestimates the effect of the separation of his parents and his inability to adjust to it. The report of Emma Collins, Psychologist, paints a more realistic picture. It repeats that his earlier childhood was marked by behavioural issues and that his last school at the High School level, after expulsion from three schools, was at a special school for children with behavioural problems. At that school the applicant lasted only one academic year being, once more, asked to leave on the basis of his poor behaviour. He has been incarcerated on juvenile offences.
35 The applicant commenced a pre-apprenticeship electrician course after he left school but was not given a certificate because of truancy issues. He did not work between 16 and 19 years of age because of escalating drug use and while he returned to TAFE and completed a few weeks of an electrician's apprenticeship, he did not complete that course because the employer for whom he then worked did not maintain an electrician's licence.
36 The psychologist, on testing, found that the applicant was high average to superior range of intelligence outperforming 88% of the normative sample for his age. Further testing showed that the applicant presented with a distrust of others, which the psychologist suggested was probably a reflection of the drug abuse and anti-social lifestyle he had been living. While the psychologist noted some moderate traits of anxiety and depression, she commented that "these are not elevated enough to indicate a mental disorder at present. The degree of distress is suggestive of acute stress related to his approaching sentencing, and not of an underlying and longer-term mood disorder."
37 It is worthwhile to repeat the summary and opinion presented by the psychologist:
"22. Current Clinical Issues: Mr. Wilson-Winship presents with some features of a sub-clinical adjustment disturbance with mixed mood. This is based upon his psychometric profile, his self-report of secondary related distress and the limited evidence or prior psychopathology, other than a multiple substance abuse disorder. There are no current medical issues that are impacting upon his present functioning. The head injury symptoms do not appear to represent a current issue given his good performance on intelligence testing. To this end, there are no significant indicators of an Axis I or II disorder.
23. Summary and Opinion: Mr. Wilson-Winship reports an early history marked by a somewhat unconventional and likely catastrophic adjustment to his parental separation. He appears to have attempted to disengage from the marriage break down to some extent, in order to maintain a good relationship with both of his parents, and he has reportedly done so to date. However, his adjustment to school around the time of the separation showed markers of difficulty, in that he began to display oppositional and disruptive behaviours that are consistent with a conduct disturbance. It is possible that Mr. Wilson-Winship's placement between his parents allowed him to abuse any attempts at limit setting, although he did not report any difficulties in his relationship with either parents during his upbringing. He told me that he was labelled with conduct problems, and as a result began to act out and associate with stimulus seeking peers. An onset of drug abuse and delinquency occurred thereafter. Mr. Wilson-Winship's history highlights a very early initiation into substance abuse which, along with disrupted supervision due to parental discord probably led to a significant disturbance of personality development.
24. As an adult, and following a period of incarceration, Mr. Wilson-Winship appears to have maintained employment and he has stable accommodation with his parents. However, his impulsive drug abuse continued to escalate to substance dependency. Following the onset of his current relationship, he told me that he is motivated to moderate his drug abuse, and he plans to complete an electrician's apprenticeship upon his release. Mr. Wilson-Winship has a number of protective factors that should assist him desist from drug use, however some degree of ongoing therapeutic intervention would best help him with abstinence."
38 There is much evidence, accepted by the sentencing judge, that the respondent had engaged in his criminal activity on account of his drug abuse. The money stolen from the bank, in this instance, was used for the purpose of purchasing drugs for his own use and was so found by the sentencing judge.
39 The sentencing judge also accepted that the respondent had significant family support, was in a relationship with a young lady who is not involved in drugs and that, if he has the will, and with the appropriate help, he should be able to rehabilitate himself. While his Honour did not come to a firm conclusion as to whether rehabilitation would be successful, it was clear that his Honour took the view that rehabilitation was the only means by which the criminal conduct of the respondent would cease and the only remaining opportunity for the respondent to get his life in order.
40 His Honour took into account that there was some planning in this matter as an aggravating feature of the offence pursuant to the general law and the terms of section 21A of the Crimes (Sentencing Procedure) Act. His Honour then remarked as to the effect of R v Henry, supra and R v Thomson and Houlton, supra. His Honour said:
"Of course this is a very serious matter. There is now a guide line judgment that applies to such robberies. The crown has referred to the matters taken into account when dealing with these sorts of matters in R v Henry 1999 46 New South Wales Law Reports at 346. The court formulated a guideline for a category of case which they thought was sufficiently common for the purpose of determining a guideline and which would comprise the following elements. A young offender with no or little criminal history, well Mr Wilson-Winship is young, but he does have a criminal history. (2) A weapon like a knife capable of killing or inflicting serious injury. Well the weapon in this case was a sledge hammer. (3) A limited degree of planning. (4) Limited, if any, actual violence but with a real threat thereof. (5) Victim in a vulnerable position such as a shop keeper or a taxi driver. (6) Small amount taken. (7) Plea of guilty the significance of which is limited by a strong crown case. There has also been a guideline judgment of R v Thompson (sic) and Houlton which in a sense qualified that last aspect, that is if a person does plead guilty at the earliest opportunity, they are entitled to the full discount." (Remarks on Sentence pages 6 and 7).
41 It is the latter comment and the utilisation of Henry and Thomson and Houlton and the manner of their utilisation that is the main thrust of the Crown appeal.