R v Zombori

Criminal History

1. The offender has previously been convicted of the following offences: 1. resist officer in execution of duty (on three occasions); 2. drive with high range PCA; 3. drive with an expired license (on four occasions); 4. stalk/intimidate intend fear physical harm (domestic); 5. common assault (domestic); 6. enter/leave restricted area, not possess ticket; 7. contravene prohibition or restriction in AVO (domestic); 8. behave in an offensive manner in/near public place/school; 9. possess a prohibited drug; 10. drive with mid-range PCA; 11. contravene AVO.
2. The last offence was committed the day prior to the subject offending and resulted in a sentence of imprisonment for a period of 6 months commencing 21 September 2021 and expiring 20 March 2022. For the period of 21 September 2021 through to 20 March 2022, the offender was serving a separate period of imprisonments following a breach of a CCO. Regard will be had to this in determining the appropriate commencement date.
3. At the time of the subject offending, the offender was the subject of a number of CCO's, as follows: 1. H ending 665, sequence 2 resist officer in execution of duty resulting in a CCO commencing 25 May 2021 expiring 24 May 2023. On 22 December 2019 police heard loud yelling in the vicinity of the ticket barrier at Gosford railway station. They observed the offender kneeling and yelling over towards another female MC. The offender walked towards police and jumped over the barrier without purchasing a rail ticket. She placed a hand in the air and said "what are you going to fucken do?" She then re-jumped the barrier and walked back towards the ticket machine. Later, police asked the offender her name and she replied "none of your business to be honest". She eventually gave her name. She walked away from the police who then grabbed her arm before she pulled her arm away using force and stating "don't touch me". She continued to struggle violently with police, was thrashing around and kicking her feet outward. She was taken to the ground and handcuffed. She continued to swear and call police abusive names. When on her feet she began to run away from police. She kicked backwards at police before being taken to the ground for a second time. I find the objective seriousness of this offending to fall below the mid-range; 1. H ending 910 being drive with mid-range PCA that resulted in a CCO commencing 25 May 2021 expiring 24 May 23. On 28 December 2020 the offender was driving a motor vehicle when she was pulled over by the police. She was alone in the car. Police could smell liquor emanating from the open window of the vehicle and saw open containers police described as beer bottles. When asked whether she had consumed any alcohol, the offender said that she had not. A breath test was positive. She underwent a breath analysis which revealed a blood alcohol content of 0.121. The offender then explained that she had her first drink at 4:00PM and last at 9:30 PM comprising 6 glasses of wine and one can of bourbon. Her license was immediately cancelled. Police formed the opinion that the offender was moderately affected by alcohol. I assess the objective seriousness of this offending as falling at or about the mid-range; 1. H ending 664 sequence 1 contravention of AVO resulting in a CCO for the period 25 May 21-24 May 23. That CCO was breached and has previously been called up resulting in resentence; 1. H ending 572 sequence 1 being drive motor vehicle whilst suspended a CCO was imposed for the period 25 May 21 - 24 May 23. The facts relating to this offence are that on Friday 12 March 2021 at about 7:10 PM the offender was stopped for a random breath test which was negative. When asked to produce a licence she produced a licence which had expired. A police check confirmed that a licence was suspended by police on 15 December 2020. I find this offending falls below the mid-range of objective seriousness; 1. H ending 334 sequence 1 drive motor vehicle while licence suspended resulted in a CCO commencing 25 May 21 expiring 24 May 23. On 9 April 2021 at about 11:10 PM police observed a car in a car park adjacent to an oval. It's headlights and brake lights were on, smoke was coming from the exhaust. As police pulled up next to the vehicle, its engine was turned off and the key was removed from the ignition. When questioned by police, the offender said "I wasn't driving it was my friend Lisa. She dropped me off here so we could have a moment. I don't have a licence. It's suspended so I wouldn't drive here". Later, the offender made full admissions. I assess the objective seriousness of this offending is falling at the mid-range. 1. H ending 510 sequence 1 being drive a motor vehicle whilst licence suspended resulted in a CCO commencing 25 May 2021 to 24 May 2023. On Monday 26 April 2021 at about 5:05 PM the offender was stopped by police for a roadside breath test which was negative. Again, she produced a licence which had expired. She was aware of that fact, and she said to the police "I haven't got one as I'm suspended". This offending falls above the mid-range of objective seriousness;
4. The offender will be resentenced in respect of all of the above except (c).

Sentencing Assessment Report

1. Amongst the material relating to the earlier offending is a Sentencing Assessment Report dated 18 May 2021. The offender attributed her prior offending to antisocial behaviour caused by poor stress management and ongoing alcohol use. Her risk of reoffending was assessed as medium to high. She was willing to engage with community corrections and perform community service work.

The Offender's mother

1. Exhibit 1 is an affidavit by the offender's mother affirmed 5 May 2022. As might be expected given the purpose of the affidavit, she spoke highly of her daughter. She did, however, refer to her drinking as being problematic and that she suffered some mental health issues. She said that she becomes dependent in a relationship. Upon her release from custody, her mother said that the offender will live with the family and that she has the full support of her family.

Expert Reports on Covid

1. Exhibit 2 is a joint report by a number of experts regarding Covid in prisons. I accept that the prison environment makes it more likely that one will contract the virus and that the impact of Covid on the freedoms and liberties of prisoners has been significant. Plainly, this offender's time in custody during Covid has been more onerous than would otherwise be the case.
2. Exhibit 3 is a report by Dr Andrew Ellis psychiatrist dated 29 August 2021. Like the previous report it was a generic report created for the benefit of Legal Aid. I accept his opinion. Covid has impacted the physical conditions in which prisoners are held, access to exercise, access to training and education programs, access to medical care and has caused mental health issues.

Psychosocial Assessment Report

1. Since the Sentence Hearing I have been provided with a report by Rebecca Assaf, social worker, dated 12 August 2022 which I have marked Exhibit 4. The report was obtained at the court's suggestion in order to have access to a more fulsome history of the offender's background and to gain further insight into the impact of certain events upon her lifestyle and behaviour at the time of the subject offending. The report is extremely useful.
2. She spoke of bullying at school where she was called "gay" by reason of her tom-boyish appearance. This caused her to become disruptive and to socialise with undesirable peers who used drugs and partied. She also spoke of social anxiety arising in the context of her school environment. She suffered a lack of support from her paternal grandmother who did not accept her sexuality. Her maternal grandmother on the other hand was supportive but died, causing the offender to suffer grief.
3. The offender was raped by a male during a small gathering at a friend's house when she was about 18 years of age. At that time, she was in a homosexual relationship and was outspoken about her sexual identity. She said the three men came to the gathering and made offensive and derogatory comments about her sexuality. The rapist suggested that the rape would convert her back to heterosexuality. This caused a massive decline in the offender's mental health resulting in her abusing alcohol and drugs, including ice and heroin. She was resistant to eating causing her mother to force feed her.
4. Her mother was interviewed by the expert: "when asked if she noticed any changes in Ms Zombori at the time, her mother said Ms Zombori returned from Sydney dysfunctional and with no job, withdrawing off drugs, heavily drinking, broke and 'looked an absolute mess… She went down the gurgler very quickly… after 3 months in Sydney.'"
5. The offender regarded the rape as a turning point in her life where she went from being a happy, jovial and motivated person to an overly anxious, overthinking person whose motivation was dependent on how others made her feel. She said that "he took everything that I had to give someone and that I wanted to give. I never wanted to give away my virginity… I feel worthless, dirty and disgusting… I didn't want to give away my virginity, especially to a male." She described herself as damaged goods and attempted suicide on a few occasions.
6. The offender has also been the subject of a number extremely unsatisfactory intimate relationships with women. Her most recent partner was violent towards her stabbing her in the face with a screwdriver, biting flesh off her cheek, trying to run her over with the car, beating her and engaging in other violent acts.
7. The offender said that she was mentally exhausted and felt numb because of that trauma. She said the abuse became normalised and that she became desensitised to the assaults.
8. The night her partner was arrested caused the offender to blame herself. The offender gave evidence that her offending was due to her desire to be reunited with her partner in custody. She told the expert that her partner had psychologically manipulated her to believe that a true act of love would be to go to jail if her partner was ever incarcerated. As the offender blamed herself for her part in the arrest and incarceration, she self-sabotaged and committed the armed robbery. Her partner has since been released and the offender is resentful of that fact that she remains in custody.
9. The offender expressed remorse to the author of the report and spoke of her plans for the future. She plans to secure employment, contact her daughter, and access support such as counselling and maintain a positive support network.
10. The expert expressed the opinion that the offender's relationship with her partner had a debilitating impact on the offender's life where she had significantly compromised the safety, well-being and liberty due to the power and control her relationship with her partner has had on her. The expert continued that the long-term effects of entirely functioning in this survival mode is the constant experience of symptoms such as hypervigilance, anxiety, hyperarousal and hypoarousal, somatic symptoms, insomnia and restlessness, depression and suicidality which increases her vulnerability to poor mental health functioning.
11. Ms Assaf said: At the time of the offence the offender had no access to executive functioning where higher brain functioning such as decision-making, coping skills, impulse control and affect regulation are enabled. The combination of life threat, relationship threat, homelessness and hopelessness increased her vulnerable state. The psychological abuse the offender experienced together with her fear of abandonment and left her desperately believing her only option was to join her partner in custody. The offender feared the ramifications if she did not demonstrate her loyalty to her partner. She had experienced significant loss over a short period of time with diminished capacity, and this behaviour was uncharacteristic of her.
12. Further, Ms Assaf said: Whilst her life has been challenged with many trials of adversity, trauma and loss, she has demonstrated repeatedly some resilience and the ability to remain connected and functioning in mainstream systems such as employment and family. The offender would benefit from trauma informed therapeutic intervention that can help her unburden her wounds and accept all her internal parts of self.
13. The Crown submitted that evidence is insufficient to make good the connection between the offending and the offenders psychological state at the time of the offending. For the reasons which follow, I do not accept that submission.
14. Ms Assaf said that the offender presents as a vulnerable person who has suffered significant adversity and continues to struggle with post-traumatic symptoms.

Evidence of the Offender

1. The offender gave evidence at the sentence hearing on 5 May 2022 which was adjourned part heard to today to permit the offender to obtain a report from a psychologist. Her evidence was essentially consistent with the information contained in the report by Ms Assaf. She gave evidence of her relationship with Madeline which was problematic, including the incident at the train station, referred to elsewhere in these remarks. It was also a violent relationship based heavily upon the consumption of alcohol.
2. She then gave evidence about her relationship with Tempany which was equally problematic, if not worse. Two nights prior to the subject offending, Tempany was taken into custody causing the offender to go on to what her solicitor referred to as a "two-day bender". The offender said that she also wanted to be in custody so that she could be with Tempany.
3. Prior to going into custody, the offender and Tempany engaged a sperm donor and Tempany fell pregnant with their daughter who was born 29 March 2022. The offender has never met her daughter due to being incarcerated since her birth. Tempany gave birth to their child whilst in a rehabilitation centre. It is the offender's understanding that when she is released should Tempany go back into custody DOCS will place the child with the offender. She plans to live with her parents at Lakewood, near Port Macquarie.
4. In her evidence, the offender expressed remorse which I accept.

Submissions

1. I am assisted by submissions from both the Crown and the offender, MFI 1 and 2 respectively.

Objective Seriousness

1. The Crown referred me to the guideline judgements in R v Henry (1999) 46 NSWLR 346 where at [99] Spigelman CJ stated: "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear endangered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment."
2. Of the 7 characteristic features referred to in Henry at least 5 exist in the present case, namely: 1. the offending involved a weapon like a knife, capable of killing or inflicting serious injury; 2. there was a limited degree of planning; 3. the victim was in a vulnerable position, namely a service station attendant; 4. a small amount of money was taken; 5. there was a plea of guilty, the significance of which was limited by a strong Crown case.
3. The Court in Henry said that the sentence in a matter such as this should ordinarily be between 4 and 5 years in custody. Of course, this is only a guide or yardstick for a sentencing judge to be taken into the mix along with the particular circumstances of the offending and the offender's subjective case.
4. In terms of objective seriousness, the Crown submitted that it was somewhat above the typical case as the complainant was behind a counter and the offender pointed the knife directly at him. I am not persuaded as to the significance of this fact as the situation of the complainant comes within the type of case contemplated by Henry in that regard. The Crown submitted that the objective seriousness of the offence fell towards the mid-range for matters of this type.
5. It was submitted on behalf of the offender that her moral culpability was affected by the subjective case, that is, the disadvantaged and traumatic experiences in her life prior the offending and leading to it. Objective seriousness and moral culpability are two distinct concepts although the latter may have a bearing upon the former. It was submitted that as the money was returned to the shop there was no financial loss to the business and that the offender assisted police in locating the knife. In the circumstances, it was submitted by the offender that the objective seriousness fell below the mid-range for this type of offence.
6. I accept the submissions on behalf of the offender and find the objective seriousness falls just below the mid-range for offending at this type.

Aggravating and Mitigating Factors

1. The Crown referred to the offender's prior record, which I have set out above. It submitted and I accept that it does not rise to the level of being an aggravating factor under s21A(2) of the Crimes (Sentencing Procedure) Act (CSP Act) but rather disentitles the offender to a finding of good character and any leniency which may flow from such a finding if made.
2. Further, the Crown submitted and I accept that the offending is aggravated by the fact that the offender was on conditional liberty at the time of the offending, being the subject of numerous community corrections orders.
3. In terms of rehabilitation and the risk of reoffending, the Crown submitted that the offender's prospects are guarded, given her criminal history. My impression of the offender is that she is motivated to turn her life around. She plans to live with her parents and raise her daughter. I consider the prospects of rehabilitation to be good and the risk of reoffending to be low.
4. I accept that the offender is remorseful, accepting responsibility for her behaviour and acknowledged the harm caused to the complainant.
5. Finally, the guilty plea is a factor in mitigation.

Mental Health Issues

1. The detailed report and careful analysis of Ms Assaf supports a finding that the subject offending was the result of the offender's psychological condition. I have already referred to the salient parts of her report. The mental condition was the consequence of the offender being raped giving rise to a post-traumatic condition as well as the challenging and deprived domestic situation in which the offender lived prior to the subject offending.
2. Solicitor for the offender referred to the decision of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, in particular to the following legal principles extracted from that judgment: 1. where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. I accept that submission. I find that the mental condition of the offender materially contributed to the offending; 2. in those circumstances, the need to denounce the crime may be reduced with a reduction in the sentence. I accept that submission; 3. that the offender in such a case may be an inappropriate vehicle for general deterrence, again resulting in a reduction of sentence. I accept that submission; 4. that a custodial sentence may weigh more heavily upon that person. I accept that submission; and 5. that it may reduce or eliminate the significance of specific deterrence. In my opinion, the need for specific deterrence to be reflected in the sentence is also moderated by the fact that violent offending of this type would appear to be an aberration for this offender.
3. Overall, I consider that the offender's challenging upbringing, the rape and living in a highly dysfunctional domestic environment combine to reduce her moral culpability which when placed in the mix has the result of reducing the sentence to be imposed.

Formulation of Sentence

1. I have had regard to the purposes for which a sentence may be imposed pursuant to section 3A of the CSP Act.
2. For the primary charge, I find that the offending is such that no sentence other than one of imprisonment is reasonable in the circumstances.
3. I find special circumstances based upon the fact that the offender has not previously been held in custody, has been in custody during Covid and that she would benefit from a longer than usual period on parole in order to pursue the treatment regime recommended to her.

Conviction

1. Ms Zombori you are convicted of the offence to which you plead guilty namely robbery armed with an offensive weapon namely a knife blade in breach of section 97 (1) of the Crimes Act 1900.

Sentence

1. I find that the section 5 threshold is crossed in respect of the driving offence on 26 April 2021 given the number of like offences that had taken place prior to that occasion. The offender displayed a complete lack of respect for the law which warrants stern punishment. I consider that no sentence other than one of imprisonment is appropriate in those circumstances. This offence is in contravention of section 54(3)(a) of the Road Transport Act and carries a maximum penalty of 6 months imprisonment for the first offence and 12 months imprisonment for offences thereafter.
2. In respect of that driving offence and the principal charge of armed robbery I intend to provide an aggregate sentence pursuant to section 53A of CSP Act.
3. Before doing so, I am required to record the sentences which I would have imposed had I sentenced the offender separately for those two offences.
4. For the armed robbery offence, after a discount of 25% for the guilty plea, I provide an indicative term of 2 years 10 months. For the offence of driving a motor vehicle while license suspended, I provide an indicative term of 6 months, after discount of 25% on account of guilty plea.
5. I impose an aggregate head sentence of 3 years imprisonment for those two offences.
6. As the sentence is for a period of 3 years I must determine by what means it is to be served. More particularly, whether I direct pursuant to section 7 that the sentence be served by way of Intensive Corrections Order (ICO). In considering that question community safety is paramount. I am to ask myself whether serving the sentence by way of full-time detention or by way of an ICO in the community would best address the offender's risk of reoffending.
7. I do not consider the offender to be a risk to the public. Further, I am of the view that it is important for the offender to access the treatment services recommended by Ms Assaf. In my opinion, this is the best way of addressing the risk of reoffending. I have also had regard to the purposes of sentencing set out in section 3A and find that the interests of the community would best be served by a direction that the term of imprisonment be served by way of an ICO.
8. Adopting the approach of Simpson AJ in Mandranis v R [2021] NSWCCA 97 at [56] and following, I give the offender credit for the period of just over 12 months spent in custody awaiting sentence (notwithstanding that six months of that related to other offending) and reduce the ICO to a period of 2 years commencing today. The ICO will remain in place until 9 August 2024.
9. The ICO will be subject to the standard conditions provided by section 73 namely: 1. the offender must not commit any offence; 2. the offender must submit to supervision by a community corrections officer. To implement this condition I direct the offender to contact by telephone the Port Macquarie Community Corrections Office within 48 hours of being released from prison.
10. In addition, I impose the following conditions pursuant to section 73A(2): 1. a community service work condition requiring the performance of community service work for the period of 200 hours; 2. a rehabilitation and treatment condition requiring the offender to submit to all treatment recommended to her by medical professionals. I note the recommendations made by Ms Assaf in paragraph 9.7 of the report. I direct that the offender bring that report to the attention of the Community Corrections Officer and her treating doctor; and 3. an abstention condition for alcohol and all illicit drugs.
11. The offender is also to be sentenced for the convictions the subject of the other CCO's. The CCO's are called up and I find that they were breached. I intend to impose the same sentence for each of the convictions to which the CCO's relate. I have had regard to the offenders criminal history, age and mental condition, the seriousness of the offending and the extenuating circumstance of reduced moral culpability to determine that I will impose CCO's for a period of 2 years in respect of each of the four outstanding breaches.
12. For each of the charges ending 665, sequence 2 (resist officer in execution of duty), charge 572 sequence 1 (drive motor vehicle while license suspended), charge 910 (drive with middle range PCA) and charge 334 sequence 1 (drive motor vehicle while license suspended) I impose 4 separate CCO's pursuant to section 8 of the CSP Act commencing today and expiring 9 August 2024, subject to the following conditions: 1. the offender must not commit any offence; 2. the offender must appear before the court if called on to do so any time during the term of the CCO; 3. a rehabilitation and treatment condition in the same terms as for the ICO above; 4. an abstinence condition requiring the offender to abstain from illicit drugs and alcohol.
13. I direct the offender to attend the registry of this court to sign the orders made.

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