R v AB (a pseudonym) (No.2)

[2021] NSWDC 175

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AB (A pseudonym) (No.2) [2021] NSWDC 175

Hearing dates:

11 May 2021

Date of orders:

13 May 2021

Decision date:

13 May 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 115 – 124

Catchwords:

CRIME – sentencing – robbery in company – application of R v Henry guidelines – offender’s role in planning robbery – whether reduced culpability because of victim’s sexual harassment of her and/or mental disorder – whether extra-curial punishment suffered because of social media posts consequential to newspaper articles – whether risk of re-offending more appropriately addressed by intensive corrections order or full-time detention

Legislation Cited:

Crimes Act1900 (NSW) ss 97, 98, 148

Crimes (Sentencing Procedure) Act1999 (NSW) ss 3A, 21A

Cases Cited:

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) 56 NSWLR 146

Clinton v R [2009] NSWCCA 276

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Muldrockv The Queen (2011) 244 CLR 120

R v AB (A Pseudonym) [2021] NSWDC 173

R v Henry (1999) 46 NSWLR 346

RvII [2008] NSWSC 325

R vJurisic (1998) 45 NSWLR 209

R v Lesi [2005] NSWCCA 63

RvMurchie (1999) 108 A Crim R 482

R v Pullen [2019] NSWCCA 264

R vWran [2016] NSWSC 1015

The Queen v De Simoni (1981) 147 CLR 383

Wany v DPP [2020] NSWCA 318

Texts Cited:

Odgers, Sentence, 5TH ed (2020)

Category:

Sentence

Parties:

AB (offender)
Director of Public Prosecutions (NSW)

Representation:

Counsel:
Mr M Valentin for the offender
Solicitor Advocate for the Director of Public Prosecutions (NSW)

Solicitors:
LegalAid for the offender

File Number(s):

2020/86187

Publication restriction:

(1) Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the applicant be referred to as “AB” until 11 May 2024.
(2) Order that there be a prohibition upon the disclosure of information identifying AB, being the description of her name and location of her residential address, until 11 May 2024
(3) Orders (1) & (2) are made on the basis that it is necessary to protect the safety of the applicant.

SENTENCING REMARKS

1. The offender appears for sentencing, following a plea made on 3 November 2020 in the Wyong Local Court, for the offence that on 11 March 2020, at The Entrance, she robbed Mr Adolphus Zausa of certain property, to wit, one men’s wallet, personal bank and other cards, and a mobile phone, whilst being in the company of a male co-offender, contrary to s 97(1) of the Crimes Act 1900 (NSW).

2. The maximum penalty for this offence is 20 years’ imprisonment. There is no standard non-parole period.

3. In this hearing, she asks the Court to take into account an offence on a Form 1, that on the same day, in a unit in the Ocean Front Holiday Motel at Marine Parade, she stole certain property (a 2 litre Coke bottle, a bottle of Jack Daniels Black Label and a bottle of Black Sambuca, this property also belonging to Adolphus Zausa; contrary to s 148 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 7 years’ imprisonment.

CIRCUMSTANCES OF OFFENDING

4. An extensive set of Agreed facts was placed before the Court.

5. The victim met the offender about 6 months’ ago at the offender’s ex-partner’s house. The victim and offender started messaging each other. After a period where contact stopped, the victim re-established contact again.

6. The victim suggested that he and the offender meet up. They started talking on Instagram. The victim asked the offender if she wanted to make some money by having a good time or having sex with him. He offered her $400 and the offender said “For $500, I’ll do it. We’ll have some drinks, and have a spa and have a good time.”

7. The victim organised a motel at the Entrance, being the Ocean Front Motel. The victim paid the $240 fee for the online booking, for the encounter to occur on 11 March 2020.

8. That day, the victim and offender exchanged text and Instagram messages, culminating in the offender confirming that she would meet him later that night. She arrived there at about 5:30pm. The victim had checked in earlier in the afternoon. The victim brought with him a bottle of Jack Daniels Black Label and a bottle of Black Sambuca; which cost around $100, by his bank card. After putting the alcohol in the fridge, he then went out and bought some other items, including a bottle of Coke, ice and cups.

9. The offender rang him to ask how to get into the motel. The victim ascertained that she was by herself. She did not have any bags with her.

10. After she entered, they had a drink. Before long, the victim observed her being on her phone; appearing to message someone.

11. The offender asked the victim whether he wanted to go for a walk. The victim offered to drive, but the offender pressed the idea of a walk. So they walked to the beach, very near the motel.

12. As they walked along the beach, it was still daylight, although the sun was beginning to set. The victim looked over his shoulder and noticed a man who he sensed had been following them. At the point when he looked, the man was about 10 metres behind. The victim had never seen that man before.

13. The man appeared to become angry, starting to run towards the victim. The offender moved herself back. As the male got close to the victim, he raised his right hand, clenched his fist in a motion to ‘king hit’ the victim. He prepared to jump on the victim. But as he jumped, the victim ducked. Nevertheless, the man landed on the victim’s back with the victim falling to his knees. The victim asked ‘What the fuck are you doing?’ but the man did not respond.

14. The offender started screaming “No more, I can’t do this”. The victim said to her “Are you talking to me? This cunt just tried to attack me. Or are you talking to him?”

15. The offender walked off. The man grabbed the victim’s jumper and pulled him up, but the victim was still on his knees and the man started punching him with his right hand. The assailant was not very accurate: he missed every time as the victim was ducking and weaving; but he did land blows to the victim’s shoulders and body area; numbering about 7 or 8 punches.

16. The victim called out the offender’s name as if in some sort of plea for help. But she did not assist him. He remonstrated with the man why he had attacked him; explaining that he and the offender were just friends and wanting to know if he attacked him because of the offender. But the man did not say anything.

17. Eventually, the attack subsided. The offender said “That’s enough”, but the agreed facts indicated that this only made the man angrier.

18. Most materially, the offender moved towards the victim, to a distance of about 2 metres. The man shouted to the offender “Oi grab his wallet. Grab his wallet then. Oi give us your wallet. Give us your wallet.”

19. Not wanting to be attacked further, the victim pulled out his wallet from his back pocket and gave it to the man. The wallet contained no money and the cards in the wallet were not eventually accessed.

20. The offender and the male walked off together. The victim got up and started to walk back to the motel. He called the police, who came a short time later. Police took the victim back to the motel. He had a sore neck with scratches and marks to his body and neck.

21. Upon the police’ arrival at the motel, the receptionist informed police that the victim’s ‘girlfriend’ had come in earlier, crying and asking if she could get into the room to retrieve her stuff as there had been a domestic incident; claiming that her partner (the victim) had just assaulted her. The receptionist escorted her to the room; holding the door open.

22. The offender grabbed some things from around the side of the room. She went to the fridge and grabbed some things. These included the bottle of Coke and the two bottles of alcohol which the victim had apparently purchased in the late afternoon.

Testimonial Evidence in Sentencing Hearing

23. The offender gave evidence at the sentencing hearing. In her evidence she appeared to accept that she procured the unidentified male to assault the victim. Some of the answers given by the offender in cross-examination, when compared to earlier evidence she had given – to the corrections officer, or in agreed facts- were inconsistent. An example of this was when she was referred to her statement to the corrections officer that she did not realise that the victim had a disability until “too late” and that it was only once she came to this realisation that she left as soon as she could since she could not bear to watch. This conflicted with her evidence during the sentencing hearing that it was not until she was later charged that she understood that the victim had a disability. The offender was unconvincing when asked about the circumstances of when she left the beach after the assault. She appeared to suggest that she may have left the scene where the assault occurred earlier than what was conveyed by the agreed facts. The overall effect of her evidence, however, was that having witnessed the initial assault, she tried to stop the co-offender, before she left the scene.

24. She also said that the male co-offender was a stranger, whom she had just met on the beach on the day of the offending; whereas Ms Brann, the psychologist who prepared a sentencing assessment report, reported the offender as describing him as a ‘male associate’.

25. A common answer that the offender gave under cross-examination was that when she had made a prior inconsistent statement, her thinking was ‘muddled’. I did not find that the offender to be an especially reliable witness at the sentencing hearing.

26. There were other aspects of her testimony concerning arrangements made with the unidentified male which struck me as implausible. It is difficult to accept that the unidentified male offender was simply a stranger who she met on the beach prior to her visiting the motel in the lead up to the assault, as the offender testified in the hearing. The offender was vague about the terms of such arrangement. She suggested that she offered money to him to ‘help her out’, which she had indicated amounted to an assault. She accepted that she did not ultimately pay the male any money. The Court is being asked to accept that an unidentified male, who was essentially a stranger to the offender, accepted an offer for her to assault a male stranger whom he did not know for an unspecified amount of money in circumstances where (given the time of the year) there was likely still some daylight (the Court Attendance Notice indicated that the robbery occurred between 7:00 and 7:30pm in the first half of March, before the end of daylight saving) and there was every prospect that the assault might be witnessed on a public beach. Moreover, on the offender’s account she tried to get the male to desist from further attack on the victim after the initial assault: if the co-offender was only a stranger to her, getting paid to assault someone he did not know, it beggars belief that the co-offender would not have stopped after that ‘job’ had been done. But instead the agreed facts indicated that the co-offender went on with it; over the offender’s protest. That would likely be more consistent with a co-offender who knew the offender and her grievances against the victim; rather than a virtual stranger.

27. Nevertheless, given the significance to the question of planning whether the male co-offender was an associate of, or stranger to the offender, I am not able to find, beyond reasonable doubt that he was, in fact, a known associate of the offender.

Assessment of objective gravity

28. The Court’s assessment of the gravity of the offending conduct is influenced by the guideline judgment of R v Henry (1999) 46 NSWLR 346, and particularly the seven considerations referred to by Spigelman CJ at [162]. Those considerations are:

1. young offender with no or little criminal history;

2. weapon like a knife, capable of killing or inflicting serious injury;

3. limited degree of planning;

4. limited, if any, actual violence but a real threat thereof;

5. victim in a vulnerable position such as a shopkeeper or taxi driver;

6. small amount taken;

7. plea of guilty, the significance of which is limited by a strong Crown case.

29. For circumstances falling within that category, the guideline sentence was 4-5 years’ imprisonment for the head sentence. But as the Chief Justice emphasised, this was only a starting point, and had to be considered in the light of aggravating and mitigating circumstances ([169]). Earlier, in R vJurisic (1998) 45 NSWLR 209, the Chief Justice emphasised (at 220-221) that the guidelines were intended to be indicative only; and were not to be treated as binding rules; treated much like the maximum penalty as an indicator.

30. Although the guideline judgment in R v Henry was ostensibly directed to armed robbery, subsequent authority posits that it also applies to the subject offence of robbery in company: R v Murchie (1999) 108 A Crim R 482 at [20]; R v Lesi [2005] NSWCCA 63 at [28]-[31]; R v II [2008] NSWSC 325 at [24].

31. The Crown addressed each of the 7 considerations identified in R v Henry. In its written submissions, the Crown referred to the following circumstances:

1. The offender, although an adult, was relatively young. She had little criminal history: two prior offences. This is the first time she has appeared for sentencing in this Court;

2. She was not armed;

3. The robbery appeared pre-planned and co-ordinated with the unidentified male assailant. The offender pressed upon the victim her desire for a walk. The powerful inference is that when the offender was using her mobile phone, she was doing so to ensure that the male co-offender would be in a position to perpetrate the assault. The offending was not opportunistic;

4. Actual violence was used, but not by the offender herself. The Crown concedes that at one point, at least, the offender tried to diffuse the altercation between the victim and the male assailant. Nevertheless the victim ended up with scratches and marks to his body and a sore neck;

5. The victim was physically vulnerable;

6. The property taken from the victim did not include money, but cards which the offender (and the co-offender) later did not access.

7. Unlike Henry, there was an early plea in this case.

32. The offender’s response to the Crown’s submission was:

1. The offender did indeed have a limited criminal history;

2. She was not armed;

3. There was some level of planning;

4. She made some attempt at limiting the violence inflicted by the other male;

5. The victim was not ‘vulnerable’ in the relevant sense;

6. a small amount of money was taken from the victim.

33. The Crown submitted that although no weapon was involved, as a starting point for sentence, the circumstances fitted within the paradigm established by R vHenry. Emphasis was originally placed, in this regard, upon the extent of pre-planning and the victim’s vulnerability. The latter submission, concerning the ‘vulnerability’ of the victim was withdrawn by the Crown; as neither fitting within the R v Henry guidelines, or satisfying the express consideration in the Crimes (Sentencing Procedure) Act1999 (NSW) (s 21A(2)(l)) (‘CSP Act).

34. The Crown did however, press that there was greater planning involving this offence than that which had occurred in R vHenry. I accept that there was planning, to some degree, which might be expected to ordinarily feature in a robbery in company, but the precise question is what the content of that planning actually was. There was something of an evidentiary vacuum as to what extent that the offender planned, or was involved in the planning of the robbery of the victim. Reading the sequence of the Agreed Facts (23-35), the first mention of any reference to robbery was the male co-offender urging the offender to ‘grab his wallet’ (that being a reference to the victim) after the assault on the victim had occurred. This statement by the co-offender had been after the offender had urged the co-offender to stop assaulting the victim. The Agreed Facts (34-35) suggest that the statement referring to robbery by the co-offender was spontaneous; and that the offender agreed to or acquiesced in the robbery. No concession was made by the offender, in the agreed facts, or otherwise about what role she had in planning for a robbery and she was not cross-examined on the matter when she gave evidence in the sentencing hearing. I am not satisfied beyond reasonable doubt that the offender did plan the robbery; as distinct from agreeing to it or acquiescing in it. That being so, her role in the robbery, and therefore her culpability for the offence is commensurately reduced on that account.

35. I must confess to being careful about the aspect of violence; and not only because it was not perpetrated by the offender, but by the co-offender; albeit at the instigation of the offender. That is because the offender is being sentenced for an offence under s 97(1), and not s 98 of the Crimes Act which offence is in substance (if not in form) an aggravated kind of the offence in s 97. I confess to concern that to take into account the offender’s complicity, or being part of a conspiracy to an assault perpetrated by a co-offender on the victim before, or at the time of the robbery may contravene the De Simoni principle (The Queen v De Simoni (1981) 147 CLR 383 at 389).

36. There is however, a more basic level of analysis when considering the consideration of violence, be it actual or threatened, as identified in the R v Henry guidelines. As I interpret those guidelines, actual or threatened violence, or force, in the relevant context, is viewed as the means deployed to achieve the ultimate end: the appropriation of the victim’s property. But if that be so, on the basis of the agreed facts, the end, to which the offender, at least, had planned, was only the infliction of violence upon the victim, to ‘teach him a lesson’. On the facts here, the robbery happened after the assault had commenced. The male co-offender did not explain why he was attacking the victim. He did not initially demand that the victim hand over his wallet; holding the threat of violence over the victim.

37. Finally, the Crown accepts that the offender is entitled to the 25% discount for the guilty plea on the basis that it was ‘early’. The Court is not in a position to know the strength of the Crown case at that point.

38. The result of the above analysis is that all of the mitigating considerations, if I could call them that, from the R v Henry guidelines apply; but none of what I might call the adverse considerations apply. It follows, in my view, that on the facts in this case, the guidelines have significantly reduced salience.

39. I find that the conduct fell at the low end of the range of offending for conduct of this kind.

40. I will address the question of the offender’s culpability at greater length when I give my remarks upon her subjective case.

The Form 1 offence

41. I have regard to this offence, which had some similarities to the principal offence. But as her psychologist noted, if there was a plausible personal motive to attack the victim of the principal offence for his alleged harassment of the offender (a matter I will refer to in my remarks shortly), there was no obvious motive for this offence. This offence was one of casual theft, albeit on a relatively minor scale. The conduct also involved deception of the receptionist.

42. These circumstances, viewed only objectively, would elevate the weight to be accorded to the sentencing considerations of personal deterrence and retribution to the principal offence than would otherwise have been accorded to the principal offence (Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) 56 NSWLR 146 per Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) at [41]-[44].

41. But even so, the offender’s evidence that she took the drinks to calm herself down following the crime scene observed on the beach has some plausibility when considering her conditions of Post-Traumatic Serious Disorder (‘PTSD’), Opposition Defiance (‘ODD’) and Attention Deficit Hyperactivity Disorder (‘ADHD’) and her alcoholism (which I refer to later in these remarks). The first and second of those conditions is apt to induce periodic shock of the kinds that might arise from the observation of violence. The ADHD may give rise to the exercise of poor judgment through the impaired executive functioning of the offender’s mind. Thus the extent to which the Form 1 offence may augment the need for specific deterrence and retribution for the principal offence is more diminished than might ordinarily be the situation of a case of this kind, having regard to the objective circumstances.

THE OFFENDER’S SUBJECTIVE CASE

Culpability

44. The offender told the Corrections officer that at the time of the offending, she felt trapped and hurt by the victim; and that her offending should be seen has reflecting her lack of impulse control and aggression. The Corrections officer noted that she expressed remorse and regret, but minimised the impact on the victim and claimed that she had been the victim of defamation after the offences.

45. The offender relied upon a psychologist’s report, which I have already referred to, of Ms Sarah Brann. Ms Brann is well qualified as a forensic psychologist; and has many impressive credentials in terms of her training and employment history. Ms Brann reported upon her assessment of the offender carried out on 16 February 2021, which featured psychometric testing. Ms Brann reported on the offender’s account of her offending which she had given her. The offender told Ms Brann that she had met the victim through her ex-partner, who was, as indicated, involved in drug supply. She alleges that over a 6-month period, he had sexually harassed her. She asserted that she had complained to police, but received no assistance. She was a victim of ‘sexting’. She says that the victim offered her money to engage in sexual acts with him during the period, but she did not respond. She told Ms Brann that she tried to stop the messages by changing her contact details and blocking him on social media but that this was ineffective. She explained that she was at a point of desperation and believed that what the victim had done to her warranted retribution: she said she paid a male associate (whom she did not name) to physically assault him to make the messages stop.

46. The Crown relied upon some testimonial evidence from the officer in charge of the investigation as to the content of ‘COPS’ information which police use to record complaints. The gist of the evidence was the absence of complaint by the offender about the victim sexually harassing her. However the officer conceded that, subsequent to the offender’s charging, the offender had complained to the police about the victim having sent messages to her. The offender later said in her evidence that she had tried to enlist police assistance with verbal complaints about the victim’s harassment of her, but that this had not been availing for her.

47. This evidence of the officer in charge was given in anticipation of the evidence of the offender in the sentencing hearing. After the Crown closed its case on the sentencing hearing, the offender gave evidence which re-inforced what she had told the corrections officer. She said that she had met the victim, for the first, time between 6 months to a year before the offending. She had met him as a friend of her ex-partner, in circumstances which involved drug-taking. She spoke of his being in her lounge-room on about 6 occasions; and that on at least one occasion, he had groped her. Otherwise he made sexual comments to her, in person, and also by means of other social media communications; including Instagram and texts.

48. She gave evidence that shortly before the subject offending, she had received another sexual message from him. She said, in effect that she had ‘had enough’.

49. She referred to the victim’s offer to meet up with her, for a good time, and sex, at a beach-side motel. She conjured a plan to scare the victim. She said that in the lead up to meeting the victim in the motel, she walked along the beach and offered a male, who she did not previously know, money to ‘assist’ her. As indicated, I had some doubt about that evidence, but was not satisfied beyond reasonable doubt that he was an associate of hers. She later accepted that this was to assault the victim.

50. She said that she witnessed the assault on the victim, but she ‘broke down’ and asked the assailant to stop. Shocked by what she observed, she went back to the motel (the assailant brought back her belongings to the motel).

51. She said that after she was charged, she received text messages from the victim (Exhibits 3 & 4). Exhibit 3, in particular, appeared to support evidence given by the offender during the hearing, in that a natural interpretation of the messages indicated that the victim (who the Crown did not call to give evidence at the sentencing hearing) attempted to induce in the offender the belief that if she engaged in sex with him he could assist with the charges being dropped against her.

52. That being so, the text message lends credence to the offender’s general point that prior to the offending, she had been subject to unwelcome overtures or advances to her by the victim of a sexual kind, prior to the subject offending, even if it does not, of itself, indicate the extent of that harassment. As indicated, the Crown did not call the victim to give evidence, either about the harm he sustained, or his response to the matters that were said about him; notwithstanding that the report of Ms Sarah Brann (the offender’s psychologist), which contained much commentary (especially at paragraphs 32-34), had been notified to the Crown (through the affidavit of the offender’s solicitor) in the course of the offender’s application for the suppression order, dated 20 April 2021. In contrast, the Crown did call the officer in charge to partially address the offender’s documented report the offender provided to Ms Brann about the victim’s sexual harassment of her. I accept, on the probabilities, her account of the victim’s previous sexual harassment of her.

53. Although this does not provide an excuse for, nor permit condonation of, what occurred, for someone with the offender’s disorders (see below), the Court is able to understand how a person with those disorders might respond, to the victim’s conduct sustained over a period of months, and to a degree it does lessen her culpability. In addition, the circumstance that she encouraged the co-offender to cease the attack further diminishes her culpability; the latter if only to a very small degree.

Age and background

54. The offender is 25 years of age.

55. In the early part of her report, Ms Brann referred to disturbing features of the offender’s background. She was formally removed from her parents’ care by child protection services when she was aged 8, due to an incident of domestic violence; and placed under the care of her paternal grandmother. The offender did not get on with that grandmother and reported receiving both verbal and physical abuse, and neglect. She was led to believe that her mother was dead. This was until the age of 16, when she discovered she was not; albeit that she had a terminal illness and was only able to enjoy a relationship with her reference for a few months before the mother did pass away.

56. This discovery that she had been deceived had a profound impact upon the offender’s life. When she was 16, she ran away from home; lived in a new area with a newborn child, experienced postnatal depression and was with a partner who lacked skills to emotionally support her. She ceased contact with the paternal side of her family; save for her father. It was also at about this point, that she began abusing substances, principally cannabis, as a means of coping with her grief. In the period of 20 months leading up to her offending, she had abused ecstasy, MDMA and cocaine as well.

57. The offender reported to Ms Brann that several members of the paternal side of her family also suffered from mental health issues, including diagnoses of bipolar disorder, ADHD. She reported that her father suffered from bipolar disorder and schizophrenia.

58. The offender had attended no less than 4 primary schools. She informed Ms Brann that she found it difficult to obtain acceptance. She was not helped by her elder brother, who had a bad reputation. By the age of 12, she had received her own diagnoses of ADHD and ODD. She had problems with her studies and problems with her peers; and had problems regulating her emotional and behavioural reactions. She left school at the beginning of Year 11 in the circumstances I have referred to.

59. She has had four significant relationships; resulting in 3 children. She reported to Ms Brann that most of these were abusive relationships; including physical violence resulting in a criminal conviction of one of her partners; who threatened to kill her upon his release from custody. In two other relationships, she reported suffering psychological abuse and one of her former partners was involved in drug supply; with her being caught up in activities by being physically assaulted connected with that activity.

60. Two of her children are very young (5 and 6 years of age). They were removed from her care by child protection services and currently reside with their paternal aunt. The offender is separated from her former husband.

61. She informed Ms Brann that she has never had formal employment. Nothing but a few days of work via job trials. She perceived that she did not deal well- being around with other people. She prefers the company of animals. She has been receiving Centrelink’s Job Seeker payment long-term; though she informed a Corrections Office recently that she has recently commenced employment as a stable hand.

62. She has made five attempts on her life via overdose of drugs. Despite this, she told Ms Brann that she remains hopeful of being reunited with her children.

63. She resides in accommodation supplied by the Department of Housing and has limited family support in the community. She disclosed to the Wyong Community Corrections officer, who prepared a sentencing assessment report on 7 April 2021 that she had a limited history of antisocial behaviour; but had a significant history of illicit substance abuse. She indicated that she had begun binge drinking since her early teens. She says she was intoxicated, being under the influence of alcohol and cannabis, at the time of the offending. The offender told the Corrections Officer that she used alcohol and cannabis as a coping mechanism to assist her with her emotions.

64. She has been diagnosed with PTSD (when she was 20). Symptoms of this included nightmares about domestic violence she suffered and flashbacks of being ‘ragdolled around’ by former partners. She has also been diagnosed with Bi-Polar Disorder and ADHD with the latter diagnoses being made when she was 12 years of age. She has not received formal treatment for her diagnoses and, according to her, this explains her recourse to illicit substances for self-medication and management of her mental health.

Relevance of drug and alcohol addiction

65. Depending on all the circumstances, it is recognised that addiction may support a more lenient approach to sentencing in the sense of any or all of: reducing the seriousness of the offending; reducing the weight to general deterrence; or reducing the need for specific deterrence and enhanced prospects of rehabilitation. On the other hand, it may also augment the weight to be accorded to community protection (Odgers, Sentence, 5^TH ed (2020), [4.81]-[4.82]).

66. I consider that there is force in the offender’s submission that due to her untreated mental conditions from a very early stage of the development of her brain, when she was 12, she took to alcohol and drugs as a means of self-coping and that, over time, this has impaired her capacity to make reasoned judgments. It is not quite so simple, in my opinion, to say that she took to alcohol and drugs, in the first place, purely as a matter of free-will. Rather, she did so as a result of a dysfunctional background. As Wood CJ at CL said in R v Henry (at [254]-[255]), there are cases where there was only limited choice in the origins of the addiction, given her age; where her ability to exercise appropriate judgment was incomplete (see also Simpson J at [337]-[340]).

67. She says, and I accept, that she was affected by alcohol and intoxication at the time of the subject offending. However, self-induced intoxication is ordinarily not a mitigating factor (s 21A(5AA) of the CSP Act.

68. Nevertheless, the three mental disorders identified in the community corrections report, and in Ms Brann’s report either singularly or viewed in combination, are all apt to generate the aggression, impulsivity and disordered judgment which, if not properly medicated, is apt to lead someone like the offender into self-coping stratagems such as alcohol and drug which may, and in this case, did lead to addictions contributing to the offending behaviour. Further, as I have indicated, her ODD, if not also one or both strains of Bipolar disorder, is, or are, apt to generate the aggressiveness and absence of ordered mental judgement which explain not only the offender’s past offences, but also her vengeful desire to hurt the victim for what she claims was a sustained campaign of sexual harassment against her. Ms Brann, when referring to her PTSD, emphasised her hyper-vigilance.

69. Ms Brann interpreted the offender as reporting that she is detached and estranged from others, and evidences a history of irritable and angry outbursts including violence towards others, particularly at times she feels threatened by them emotionally or psychologically or physically. Having regard to the circumstances of the offending, that account is plausible.

70. That being so, in my judgment, she is not someone whose circumstances who can be held up as a fully appropriate vehicle for general deterrence. Her mental disorders also reduce the significance of personal deterrence (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]).

71. Nevertheless, even if the disorders may help explain the offending to some degree, such as the planned assault on the victim, they do not explain the offence itself, that is, of robbery. It might be understandable if the assault was, in a perverse way, to teach the victim a ‘lesson’ for his alleged harassment, but the robbery involved deprivation of his property for the offender’s or co-offender’s actual or prospective financial gain; although I have noted that there was no actual use of the victim’s cards in this case. Even if, as I have indicated, it cannot be found that she planned the robbery, she either agreed to, or acquiesced in, the robbery and did nothing to dissuade the male from perpetrating the robbery; and she did not give an explanation for why she acted in this particular way.

72. The usual considerations for an offence of this kind, being general deterrence and specific deterrence thus remain relevant in light of these circumstances notwithstanding some moderation of them in light of her mental disorders and alcoholism and drug addiction.

Antecedents

73. The offender has some prior criminal history, including two prior personal violence offences in September 2016 and April 2019. For the first of those, one of common assault, she was subject to a fine.

74. For the second, in February this year, subsequent to the offending the subject of the current sentencing proceeding, she was sentenced to a community corrections order, for a period of 12 months. This involved an assault occasioning actual bodily harm. That order is due to expire on 8 February 2022. This being said, I note that there is no prior offence for robbery, or any property-related offence.

75. But the earlier offences indicate that other things being equal, she is not entitled to undue leniency because of her record.

Plea

76. The offender is entitled to a 25% discount on sentence because of her plea.

Contrition and remorse

77. The offender supplied a brief letter to the Court. She acknowledged that her actions were unjustified and immoral and takes responsibility for her actions.

78. This represented a welcome significant development since the earlier indications in which it appeared that the only thing that she felt remorse for was that she was unaware that the victim was an amputee. She does, however, think that it was a stupid decision.

79. Even on her own account, the offender took the law into her own hands. Other than the circumstance of his being an amputee, the offender considers that the victim ‘got what he deserved’. Vigilantism has never been a course condoned by the law.

80. Moreover her evidence featured an important omission. Her expressions of regret did not refer to the robbery of items of property. The offender’s desire to teach the offender a lesson, by paying someone else to attack him as a perverse way of discouraging sexual harassment of her said nothing about why the offender would need to take his property.

81. When asked about the matter in her cross-examination, the offender also appeared to take the view that she was entitled to take bottles within the motel room to help her cope with the aftermath of an assault which she commissioned. There was no manifestation of regret or even acceptance of responsibility for that conduct.

82. But her character referee, Mr Melville, spoke of her ‘deep remorse’ and strong desire to do better.

83. I accept that the offender is sorry for what she has done, albeit that she does not have full insight into the nature of her offending.

Character

84. Mr Keith Melville, who acted as surety for the offender’s bail, provided a character reference, which I have read and which I take into account. He spoke of her as being a caring and helpful person and he and his family have evidently had positive dealings with her.

Likelihood of re-offending/rehabilitation prospects

85. It is remarkable that notwithstanding diagnoses since the age of 12, the offender has not received formal treatment. The offender told the Community Corrections Office that she was willing to undertake supervision and willing to engage with a psychologist. To her credit, the Community Corrections Officer indicated that during the course of her current supervision, she has been deemed compliant and satisfactory. Progress has been made and she was co-operative with the Corrections officer when the latter prepared the sentencing assessment report.

86. The offender explained to Ms Brann that she saw a social worker for several months, when aged 20, but was discharged after failing to attend three appointments. The offender told Ms Brann she had difficulty getting public transport for appointments. She has accordingly taken to telephone services, such as ‘Beyond Blue’ to help her on her ‘bad days’; which she numbered as being one a month. She told Ms Brann that a mental health nurse, who was assigned to her via a job agency, rings her once or twice a month

87. Ms Brann also commented that the offender had reported to her being motivated to participate in treatment to assist her. Ms Brann made several recommendations as to treatment, including the provision of psychiatry services and those that can address her substance abuse issues, PTSD and other comorbid mental health disorders.

88. However, whilst those intentions are commendable, there is the serious concern as to whether they can be followed through with action. There is force to the Crown’s submissions that notwithstanding her being subject to sentencing hearing, the offender accepted that she continued to use illicit substances, had only sporadic counselling and an inconsistent approach to the taking of medication.

85. The Corrections office assessed her as being a Medium-to-High risk of re-offending. I place weight upon that conclusion.

86. In relation to both rehabilitation prospects and the likelihood of re-offending, much practically turns upon whether and how she can obtain the treatment that she needs for her disorders and capacity to undertake the extensive treatment which Ms Brann recommends for her. Although she has not been flawless, as demonstrated by her continued use of cannabis, she has stopped drinking and has taken tangible steps to further her rehabilitation.

87. Having heard her give evidence, it struck me that the offender has a general level of insight into her mental issues and that she has a genuine willingness to undertake the treatment that she needs. She was not shaken in cross-examination about that willingness to receive treatment.

88. In her favour, she appears to be productive and useful in her employment as a stable hand. A very positive letter in support was supplied by the owner and managing director of ‘Hedgerow Horse Performance’, Ms Carraro, who, amongst other things, referred to the offender’s work ethic and held out the prospect of continuing employment for the foreseeable future. Also, until her offending, and preparation for this sentencing hearing, she had not had anything like the comprehensive mental health plan compiled by Ms Brann.

89. I do not assess her prospects of rehabilitation as any higher than guarded.

Extra-curial punishment

94. In her application for a pseudonym and non-publication order, reference was made to extensive negative social media coverage that the offender has sustained since her guilty plea; when certain parts of her agreed facts were reported upon by the media. The circumstances are set out in my reasons: R v AB (A Pseudonym) [2021] NSWDC 173.

95. Whilst acknowledging that she has suffered from this, the Crown submitted that it did not amount to extra-curial punishment. It did not constitute punishment inflicted by the state; and therefore could not be taken into account.

96. I disagree. It has been held that injuries suffered by an offender in the form of retribution or retaliation subsequently meted out by members of the public fit within the rubric of extra-curial punishment (Clinton v R [2009] NSWCCA 276 at [31]). I do not see much conceptual difference between physical injury meted out by members of the public and the psychological damage which would foreseeably be suffered by the derogatory and offensive Facebook posts from members of the public coming to the attention to a reasonable offender, with this particular offender’s mental disorders, would suffer. As Ms Brann has indicated, this has had a sufficient impact and I accept the offender’s evidence of her being spat at in a shop and suffering a loss of friends (and even family) as a consequence of the media publicity and the Facebook posts. This goes beyond the normal public opprobrium which might naturally follow from disclosure of the offending. In any event, even if it did not, public humiliation which has a psychological effect on an offender may be taken into account (R vWran [2016] NSWSC 1015 at [78]-[79]).

97. This, in my view, has served to further partially fulfil the sentencing considerations of retribution and specific deterrence.

INSTINCTIVE SYNTHESIS

98. I take into account the sentencing considerations in s 3A of the CSP Act.

99. It is obvious that general and specific deterrence must play a significant role; although both are moderated for the reasons I have outlined. So too does denunciation and retribution, if to some degree they are also tempered by criminogenic factors which help explain the offender’s conduct. But if those criminogenic factors serve to moderate general and specific deterrence, community protection has added force as a consideration, given her past record of violent behaviour, about which I have more to say shortly; and the evidence of her diminished capacity to regulate her emotions and her impulsive behaviour; and also my assessment of her guarded prospects of rehabilitation. The consideration of harm done to the victim is a lesser consideration than might usually apply for a victim of this type of offence, in my assessment. The agreed facts suggest insubstantial physical injuries, little or any financial loss and he was not called to give evidence about his harm.

100. I also take into account the maximum penalty and the guideline judgment in R v Henry, the former being a legislative guidepost; and the latter as an indicator. As I have indicated, however, this case does not fall convincingly within the paradigm identified in R v Henry.

101. I find that the s 5 threshold is crossed. This much has been conceded by the Counsel’s offender.

102. Having regard to the circumstances that the offending falls at the low end of the range for objective seriousness, what I regard as the reduced salience of the R v Henry guidelines, some moderation of general deterrence (due to some reduced culpability, especially the offender’s limited role in the robbery itself, her own prior victimisation of by the victim himself and her pre-existing disorders) and specific deterrence (due to extra-curial punishment, and some remorse), and the effect of her guilty plea; and also some prospects of rehabilitation through a new and comprehensive treatment plan to which I am satisfied that the offender is committed to abide by, I find that an appropriate starting point for length of sentence is two years.

103. This brings into question whether, as Counsel for the offender submits, the Court should impose an Intensive Corrections Order (pursuant to s 7 of the CSP Act) in lieu of full-time custody. This requires the Court to consider whether an ICO or full-time detention is more likely to address the offender’s risk of re-offending: Wany v DPP [2020] NSWCA 318 at [56], [60].

104. In this regard, in extrinsic material associated with the introduction of ICOs as a form of imprisonment, the Attorney-General said:

““We know from Australian and international research that community supervision combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.”

105. The Court is required, by s 66 of the CSP Act to take into account, as a mandatory (and paramount) consideration, community safety. But that concept is inextricably linked with the consideration of rehabilitation of the offender, which, it has been said (echoing the views of the Attorney General) may be more likely to occur when the offender is supervised with access to programs in the community (R v Pullen [2019] NSWCCA 264).

106. I confess to finding this question difficult to admit of a clear answer. Plainly, in view of her antecedents and the planning and continued cannabis usage, even up to this sentencing hearing, there is a not insignificant risk of her re-offending. I am cognisant that there have been times in this offender’s past where for one reason or another, she has been off her medication and missed appointments with mental health professionals.

107. As to the last of the considerations against the offender, that is not an especially weighty consideration given the qualitatively more intense level of supervision that would attend an Intensive Corrections order.

108. I also take into account and accept the recommendations of Ms Brann for the management of her rehabilitation (paragraphs 61-63 of Exhibit 1). I also find and accept, on the probabilities, that the offender is willing to take steps to implement those recommendations.

109. In this regard, I place weight upon the perception of Ms Brann (noted at paragraph 34) of the offender’s willingness to adhere to court-imposed obligations to participate in treatment to address the factors contributing to her offending. Ms Brann’s perception is also supported by the opinion of the corrections officer in the sentencing assessment report (p 3). The corrections officer also spoke of the offender’s recent co-operation with that office and set out in some detail the level of supervision (not requiring the imposition of conditions) that it could extend to the offender if the offender was made subject to a supervised order; and her suitability to undertake community service work. I consider that the prospects of her rehabilitation would be hindered if subject to full-time detention.

110. As the plurality of the High Court stated in Muldrockv The Queen (2011) 244 CLR 120 at [56], it cannot confidently be predicted that the offender will get the treatment that she needs during any non-parole period associated with full-time detention.

111. Further, I take into account the circumstance that the offender has current employment, which of itself assists with her rehabilitation. Her employer speaks highly of her and I infer the offender achieves purpose for her work; noting the balming effect of proximity to horses. That would be lost if she is subject to further detention.

112. Further still, although he was not explicit about it, Mr Melville identifies himself as a close family friend and, I infer, may assist the offender; just as he did when agreeing to provide surety for her bail.

113. Finally, I take into account the offender’s age. She has suffered a lot of adversity in her relatively short life. As Ms Brann noted in her opinion, there are challenges to her effective treatment. However, it is for her benefit, and the benefit of the community generally, that she receive the opportunity to obtain the best treatment that she can get sooner rather than later. In my view, that is likely to be under community supervision.

114. Ultimately, though not without reservation, I am generally inclined to think that the risk of re-offending is more effectively addressed by an ICO with appropriately stringent conditions. Put another way, I am not satisfied that full-time detention is necessary to address the risk of her re-offending in all of the circumstances of this case.

115. The offender has been in custody for two days, referable to the offending.

Sentence

116. AB, please stand.

117. You are convicted of the offence of robbery in company.

118. Taking into account your guilty plea and the offence on the Form 1 that you have requested me to take into account, I sentence you to a term of imprisonment for 2 years, commencing on 11 May 2021 and expiring on 10 May 2023.

119. That sentence is to be served by way of an intensive corrections order.

120. That order is subject to the standard conditions, being that:

1. You must not commit any offence; and

2. You must submit to the supervision by a community corrections officer.

121. That order is also subject to the additional conditions:

1. an abstention condition requiring your abstention from alcohol and illicit (non-prescribed) drugs;

2. a rehabilitation condition requiring you to participate in such rehabilitation program, preferably as identified by Sarah Brann’s recommendations but, alternatively, the treatment plan referred to the pre-sentence assessment report;

3. that you are not to initiate contact, of any kind, with the victim; and incidental to that condition, if you consider you receive unsolicited contact from the victim, that you report that circumstance to police forthwith and take all reasonable steps to ensure that such report is documented;

4. a community services work condition being 20 hours per month for the duration of the order or such length which does not exceed the number of hours prescribed by regulations in the class of offence to which this offence belongs.

122. You are to present yourself to Wyong Community Corrections Centre within 48 hours of these orders.

123. You should understand that you have been sentenced to imprisonment, but instead of full-time detention, you are subject to intensive correction. If you breach a condition, you are liable to be immediately sent to gaol to complete the term of your imprisonment, without further reference to the Court.

124. I also direct that Sarah Brann’s report dated 18 February 2021 be brought to the attention of the offender’s supervisors in the correctional centre for the purpose of the formulation and monitoring of treatment for her conditions.

125. Before I adjourn, I will hear from the Crown and the legal representative for the offender whether any matter arises from these remarks, including, but not limited the scope of the additional conditions to the intensive corrections order that I have ordered.

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Amendments

13 May 2021 - Fixed typo

Decision last updated: 13 May 2021