R v Alexandrou
[2012] NSWDC 312
•14 December 2012
District Court
New South Wales
Medium Neutral Citation: R v Alexandrou [2012] NSWDC 312 Hearing dates: 12/12/2012 Decision date: 14 December 2012 Jurisdiction: Criminal Before: S Norrish QC Decision: Term of imprisonment of 4 years and 6 months with a non-parole period of two years five months.
Catchwords: Criminal - sentence, robbery whilst armed with offensive weapon, early plea, on conditional liberty, drug addiction, special circumstances. Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900Cases Cited: Veen (No 2) v The Queen (1988) 164 CLR 465
R v Henry (1999) 46 NSWLR 346
R v Hemsley [2004] NSWCCA 228
Callaghan v R [2006] NSWCCA 58
DW v R [2012 NSWCCA 66Category: Sentence Parties: Director of Public Prosecutions
Emanuel Alexandrou - offenderRepresentation: Director of Public Prosecutions
Mr Murnane - Offender
File Number(s): 2012/2200
SentENCE
HIS HONOUR: Mr Alexandrou remain seated, I will ask you to stand when I give the orders. I have to give reasons for my judgment. I am just telling you in advance what sentence I propose to impose for this matter.
The starting point of the sentence I propose to impose is six years imprisonment, but you are entitled to a discount of 25 per cent for the otherwise appropriate sentence to represent the utilitarian value of your plea of guilty. So the total sentence will be fixed at four years and six months.
That sentence will date one year and three months into your current balance of parole; that is, it will date from 3 April 2013, and in relation to that sentence I propose to fix a non-parole period of two years five months and a balance of sentence of two years one month.
The effective non-parole period, taking into account the balance of sentence to give effect to totality principle, is three years and six months. Whether you are released to parole on this occasion or not will be a matter for the Parole Authority, I hope the Parole Authority will take appropriate steps to see that the relevant mechanisms are in place to assist you on your release, and I will give my reasons for arriving at that decision now.
Emanuel Alexandrou appears for sentence today in relation to an offence, to which he pleaded guilty at the Magistrate's court, contrary to s 97(1) Crimes Act 1900. The crime to which he pleaded guilty was the offence of attempting to commit robbery whilst armed with an offensive weapon at Wiley Park on the third day of January 2012. The person he attempted to rob was Thi Do(?), and he attempted to rob that person of an amount of money, the property of Thi Do. The offence to which the prisoner has pleaded guilty carries a maximum penalty of twenty years imprisonment. There is no standard non-parole period.
As I foreshadowed in my introductory remarks when I told the prisoner the orders I was proposing to make, I am according the prisoner a discount of 25 per cent to represent the utilitarian benefit of the plea of guilty.
The prisoner was arrested on the day of the offence and has been in custody since that date. The prisoner however was on parole in relation to sentences, the detail of which I will outline later, but which included sentences for the offence of armed robbery. He was released on parole on 25 July 2011 and his parole was effectively revoked from 3 January 2012 when he came into custody. That left a balance of sentence to be served, arising from his revocation of parole, of two years six months and 23 days. The expiry date of which, I am informed, currently is 25 July 2014.
Of course, without other sentences imposed notwithstanding the fact his parole was revoked, the Parole Authority could review his situation from time to time. Revocation of parole does not necessarily mean the person would be required to serve all the balance of the sentence, but now consideration for release to parole on the foreshadowed orders that I have outlined will not arise until, at the earliest, 2 September 2015, and I am appreciative of the fact that the prisoner's release to parole would not necessarily follow automatically. I would hope that appropriate consideration will be given to the interests of the prisoner and the interests of the community in making that decision, particularly taking steps to ensure that the relevant mechanisms, or arrangements, are in place to deal with the fundamental problem the prisoner has which contributes to his history of offending, and that is his use of, abuse of and/or dependency upon prohibited drugs.
The offence he committed was committed at a newsagency on King Georges Road, Wiley Park. It was committed just after 8.05 am on Tuesday 3 January 2012. I do not propose to go through the detail of the agreed facts, save to point out several matters that are relevant to the assessment of the objective seriousness of the matter.
The prisoner was not disguised when he entered the newsagency. The victim working in the newsagency was able to give police a description of the prisoner. When that person greeted the prisoner the prisoner produced a kitchen knife. At that point he was standing about one metre from the victim. It was said to be a knife with a blade of about 15 centimetres. The prisoner leant forward onto the counter with the knife in his right hand. The victim yelled out in Vietnamese to her husband that there was a robbery taking place and the prisoner after this moved to another position in the newsagency closer to where the victim was standing and said, "Just give me the money, just give the money". He pointed the knife at the victim's chest. At this point it was about 20 centimetres from the victim.
The victim was holding a pair of scissors; she tapped the prisoner on the top of his right hand with the scissors - this was the hand holding the knife - and screamed "I will call the police, I will call the police". The prisoner then saw the victim's husband running from the rear of the store and he ran out of the store.
Whilst there was the threat by the production of the knife there were no oral threats beyond those implicit in the demand for money and the presentation of the knife. This is not a case where the threat of violence is a relevant aggravating factor as it is described under s 21A(2) Crimes (Sentencing Procedure) Act. There is no basis for concluding beyond reasonable doubt that the use of the knife in the circumstances outlined in the fact represents a relevant aggravating factor under the relevant provision in the Crimes (Sentencing Procedure) Act, bearing in mind the pleading that the prisoner used an offensive weapon to commit a crime which is, of course, the basis upon which the prisoner is to be sentenced.
The prisoner's escape from the newsagency was ultimately unsuccessful, because he jumped into a motor vehicle the registration of which was taken down by the victim and her husband. Police were advised of the relevant details and approximately five and a half hours later the prisoner's motor vehicle was apparently observed at a BP station at Padstow, and then ultimately was sighted by police outside the Belfield TAB at about 3.15pm. The prisoner, when arrested by police very shortly thereafter, was in a "drug affected state having red glazed eyes". His pupils seemed "like pinpoints and he had spittle and food stuck on his lips". He was slurring slightly when he spoke to police. Police believe the prisoner had changed his appearance to some extent from the way he had appeared, when he had been at the newsagency, by having his hair cut. The police located on the prisoner a medium size folding lock knife in the door pocket of the motor vehicle that the prisoner was driving. It matched the description of the knife described by the victim. The prisoner was wearing clothes similar to those described by the victim.
The prisoner gave blood and urine samples and was subsequently given time, once the LEPRA provisions were dealt with, to recover from the effects of drug. He agreed, when he could not find legal representation, to participate in an electronic interview. He gave some indication in the comments he made that he did not have a good memory of the day and some sections of the day he could not remember at all. He gave an account which included some admissions of presence in a business with a knife, but was not able to give a clear account of himself.
The Crown does not accept the account the prisoner gave of peeling an apple and the like. Ultimately, it should be understood that the prisoner's participation in the electronic interview was voluntary, however, his recollection of relevant events was affected clearly by whatever substances he had ingested either before the robbery or subsequent to the robbery.
One of the issues that arises from the material that has been tendered, on the basis of histories given by the prisoner, is the question of whether he was suffering from some drug-induced psychosis at the time of the commission of the offence. I note what the prisoner has said to the psychologist and the psychiatrist about this matter; I am prepared to accept as a proposition that when ingesting some prohibited drugs the prisoner will have psychotic symptoms or, have effects upon him from the drugs which give rise to psychosis or psychotic symptoms. But I am unable to conclude one way or the other whether the prisoner was in fact affected to that extent, if at all, at the time of the commission of the offence. Clearly on his arrest he was highly affected. However, his arrest occurred some seven hours after the robbery and it must be said that I read nothing in the facts, other than what might be inferred from the conduct of the prisoner, to suggest that the prisoner gave the appearance of being affected by drugs at the time of the robbery. These matters concerning voices driving him to do things and the like that arise from the histories he has given to the medical and psychological professionals were not raised by him when interviewed, as I understand the matter, later that day.
That having been said, noting what the Crown states about not accepting his version in the electronic interview, the mere suggestion that he had a knife peeling an apple might reflect a disturbance of mind that was induced by drugs. But whether that was by reason of drugs ingested before the robbery, or not, I cannot say.
In relation to the commission of the offence I have noted that it was poorly planned. It was clearly an opportunistic crime. The prisoner obviously had taken some little time to choose the relevant business because he went into the business armed with a knife. It could not be categorised as a "spontaneous" crime, but given his history of drug dependence and abuse and his drug affected state subsequently, there can be no doubt that the prisoner chose the business, even if very shortly before, with a view to committing a robbery to obtain a money for the purposes of obtaining prohibited drugs.
The prisoner apparently used a motor vehicle over which he had control, which was identified by the victim and that information led to the prisoner's arrest. The prisoner was a person who had not, it would seem, attempted to take any steps before the commission of the offence to prevent himself from ultimately being identified.
The prisoner, at the time of the commission of the offence as I understand the matter, was 41 years of age. He was born on 22 December 1970. He was, as I have earlier indicated in my preliminary remarks, on parole in relation to sentences that were imposed on 5 June 2009 for offences committed by him in 2008. In fact offences, from what I understand of the statement of facts, all committed on 26 July 2008 or thereabouts. In respect of an offence of stealing from a person the prisoner was sentenced to 18 months imprisonment. In respect of one offence of robbery whilst armed with an offensive weapon he was sentenced to four years imprisonment, commencing six months into the sentence for the steal from the person. In respect of another offence of robbery whilst armed with an offensive weapon he was sentenced to five years imprisonment, commencing one year into the sentence of 18 months, to which I earlier referred. He was given a concurrent sentence of six months for the offence of driving whilst disqualified. Ultimately the total sentences imposed were six years with a non-parole period of three years. Those sentences reflect the finding of special circumstances and no doubt the conclusion reached by the Court was that he needed an extended period of parole supervision to assist him in a range of ways, but, as I would understand it, particularly to assist him in relation to counselling and treatment for his drug dependency.
His offending started a number of years ago, initially with minor driving matters with a number of appearances in the Local Court. He also in the mid-1990s had convictions for possessing prohibited drugs and low level offending associated it would seem with drug usage. However, on 8 May 1998 at the Liverpool District Court, he was convicted of armed robbery, being armed with a dangerous weapon, and given the benefit of a s 558 recognisance for a period of four years. He was dealt with in May 2000 for a breach of that recognisance and sentenced to period of two years and six months, with a non-parole period of 15 months. An application was made to appeal the inadequacy of that order to the Court of Criminal Appeal in December 2000. The Crown appeal was allowed and the initial sentence was quashed and a substituted sentence imposed by the Court of Criminal Appeal.
On his release from parole he continued to offend, in some instances in the commission of driving and other relatively minor offences. He was convicted of possessing prohibited drugs in 2008. I neglected to point out he was also on that appeal to the Court of Criminal Appeal sentenced to seven years imprisonment, with a non-parole period of four years in respect of an offence of armed robbery.
He had convictions in 2001 of possessing prohibited drug for which he was given a term of imprisonment that would have been served concurrently with terms of imprisonment imposed by the Court of Criminal Appeal. In 2006 he had other convictions, including assaulting police officers and resisting police officers in the execution of their duty. Thus it can be seen by that review of the criminal record, which I confess is somewhat disjointed because the criminal history is not given to me, as is usually the case, in any reasonable chronological order, he has regularly offended over the last 15 years, receiving substantial terms of imprisonment in relation to serious crimes.
The commission of this offence in breach of parole is a significant aggravating factor. In fact, putting aside aggravations that arise from the pleadings and the simple facts of the case that give rise to the charge, the breach of conditional liberty in this matter is the most significant aggravating factor, as is made clear in the Crown's submissions. It is a matter of some discomfort that the prisoner was in breach of his parole it would seem within six months of being granted parole in circumstances where he still had two years and six months of his parole to serve. It may well be at some point in the future that the Parole Authority may release him to parole more hesitantly than it did on the last occasion.
I agree with the submissions of counsel for the accused that in sentencing the prisoner in relation to the matter with which I am concerned now, it is not appropriate to conclude that his history of prior convictions is relevantly an aggravating factor. But it is a matter to be taken into account in determining the sentence in a manner that does not involve giving such weight to it as to lead to a penalty which is disproportionate to the gravity of the offence.
The criminal history of the prisoner is relevant to show that this offence is not uncharacteristic, or an uncharacteristic aberration, and it also shows that the prisoner has manifested, by the commission of this offence, a continuing attitude of disobedience of the law. In that situation, as was made clear by the High Court in Veen v The Queen (No 2) [1998] 164 CLR 465, particularly at 477-478,
"Retribution, deterrence and the protection of society may indicate that a more severe penalty is warranted in the circumstances. It is legitimate to take into account the previous criminal history of the prisoner as it illuminates the moral culpability of the prisoner".
Of course since Veen (No 2) the legislature has set out the statutory 'purposes of sentencing' in s 3A Crimes (Sentencing Procedure) Act 1999 where four of the purposes of sentencing identified by the majority of the High Court in Veen (No 2) have been incorporated into the now seven or eight purposes of sentencing identified in the legislature. In this regard as the Crown properly pointed out, there are a multitude of matters that are pertinent to the sentencing exercise; firstly, there is a need to ensure the prisoner is adequately punished for the offence, to make orders that would hopefully prevent him, and others, from committing similar offences, there is an element of need for protection of the community from the offender. It is not to say, of course, that the offender ordinarily is a danger to the community. But it is clear that when affected by drugs or when in need of money to obtain drugs, having re-established the dependence upon drugs, the prisoner has by his actions on this occasion, and his actions in the past, shown a capacity to commit serious crime, particularly armed robberies or attempted armed robberies.
I am also required of course to promote his rehabilitation to the extent that it is possible, given the objective seriousness of the offence, and the relevant consideration of his breach of parole and his prior criminal history. I must also make him accountable, denounce his conduct and recognise the harm to the victim. Although, whilst appreciating the victim would have been greatly disturbed and frightened by the prisoner's conduct, there is no detailed evidence of particular harm that she has suffered. Her fortitude must be recognised. She admittedly was able to call for help in a language the prisoner could not understand. Although he held the knife in his hand she tapped him on the hand with the scissors to make clear to him, as I would understand it, that she was not going to give him money, that she would be calling for help and calling the police.
It is to be fairly said that it was not a completed offence and it is fairly to be said, in the assessment of the objective facts earlier outlined, that the prisoner when challenged quickly desisted from his attempt without further use of the weapon or threats, which in one sense is to his credit. These matters can spiral out of hand and more serious offences can be committed.
The victim has not provided a victim impact statement but, naturally, I could conclude that she was affected by the prisoner's conduct.
Reflecting upon the subjective evidence that has been led by the prisoner, I am greatly assisted by the detail of the written submissions of counsel for the prisoner. I accept the essential matters set out in the background provided in the written submissions largely from the history provided by the prisoner to the psychiatrist and the psychologist.
The prisoner is a person of Greek-Australian heritage, who comes from what has been described as a traditional family. He is one of two sons, and a daughter of the marriage of his parents. His father runs a plumbing business. The prisoner on leaving school began an apprenticeship with his father in plumbing but had difficulty passing the theoretical aspects of the course and discontinued that apprenticeship. He has worked as a mechanic for some periods of time, and as a labourer. He has also worked as a plumber in custody from time to time, and also sometimes with his father over the years but his relationship with his father is a difficult one.
Although growing up in Revesby, as is occasionally the case with Greek-Australian persons, he went back to Greece to undertake his national service with the Greek Army. He has no children. He has been in several relationships but has no permanent relationship to support him at the present time.
He commenced using prohibited drugs when he was in his early twenties. That had an adverse effect upon him. He used amphetamines between the ages of 24 and 34, supplementing this with cocaine use. He commenced using heroin when he was approximately 27 or 28 years of age and he has had a couple of admissions to drug rehabilitation facilities, having been treated at Odyssey House for a period of time, and also undertaking a drug rehabilitation program with the Salvation Army approximately 12 years ago.
He endeavoured to break his drug use, but people that had supplied him drugs in the past put pressure upon him to recommence his drug use and that has effectively continued as his criminal history has escalated in severity.
He suffered head injuries in a motor vehicle accident and has some health problems. He has depressive symptoms from time to time and has undertaken self-harm on occasions. He has been treated with anti-psychotic medication in the past but had ceased taking this medication at the time of the offence. He gave a history in relation to this offence, that he had been drug free on his release to parole for a number of months and only recommenced using drugs the night before, as I understand the history, when he met a woman at a pub. Whether that is true or not is something I could not say. One, in fairness, would need to approach the history given by the prisoner in some respects with some circumspection.
As I have said the claim of hearing voices and auditory hallucinations at the time of the offending is something that one could not conclude positively was the case, although I am prepared to accept that the use of drugs can cause those symptoms from time to time.
Very fairly, Senior Counsel for the prisoner has reflected upon the report of the forensic psychologist, Ms Wakely, and the report of the consultant forensic psychiatrist Dr Furst, which reports I have read. Ms Wakely was concerned very much with the claimed symptoms of psychosis, particularly the auditory hallucinations, and recommended the prisoner be psychiatrically examined. I appreciate of course that as a psychologist, even with extensive clinical experience, she was not able to make a medical diagnosis; that was to fall to someone with greater and better qualifications.
She correctly points out in her summary of the matter, based upon her examination of the prisoner and the history given by the prisoner particularly in the context of his criminal history, that the substance abuse and related mental health difficulties, as well as his "recurrent incarcerations", were very much interrelated and contributed to the obvious instability that led to the breach of his parole. The use of drugs could exacerbate auditory and visual hallucinations and paranoia and also he might not have been assisted by abandoning medications.
There was nothing else from her interview and assessment of the prisoner that was of a great significance, as reflected in the written submissions of senior counsel for the prisoner.
Dr Furst came to the conclusion that the prisoner was vulnerable to psychosis, particularly as a result of abusing drugs. He reflected upon the possibility that the prisoner may have a schizophrenic illness, although reached no conclusion on that because on his examination there were few indicia of chronic mental illness. In fact, in the absence of any history of admissions for treatment or the use of appropriate medication for mental illness whilst in custody, the diagnosis of schizophrenia or chronic mental illness was not available.
The prisoner has no developmental disability and none was found by the psychologist, and the doctor, as have I, reflected upon the absence of any claimed symptomology consistent with mental illness or even psychotic symptoms when interviewed by police.
The doctor's opinion was that the prisoner's condition was, again relying upon the history given by the prisoner in the context of some objective evidence, one of a substance abuse disorder with previous drug induced psychosis. Issues of personality disorders were not assessed as such and other factors to be considered in the absence of major medical problems were the long term effects of the prisoner of substance abuse, probable institutionalisation, which I accept seems to be reflected in the material and, of course, the impact upon the prisoner of his current circumstances.
In relation to the prisoner's current custodial situation Dr Furst suggested the prisoner should be placed under the care of a psychiatrist working for Justice Health to further assess his mental state and treatment needs. He may require a trial of anti-psychotic medication. He should also receive that assistance from a clinical psychologist and would benefit from drug and alcohol counselling in custody, as well as relapse prevention programs. He may need consideration for his suitability for the methadone maintenance program. Others better qualified than I are appropriate, obviously, to make that judgment, but one wonders whether the prisoner would benefit from being placed in a situation where he became dependent upon methadone.
The doctor, as with myself, in the context of the evidence available, came to the conclusion that the prisoner's prognosis was guarded, noting his previous relapses despite treatment in rehabilitation settings. He noted the prisoner was willing to accept recommendations for further counselling and treatment. This would obviously be essential if the prisoner was to have any hope on release to desist from offending. If he remained abstinent from drugs and engaged in appropriate counselling and psychiatric treatment to address his mental health issues, his prognosis could be improved was the view of Dr Furst. He also would benefit, the doctor thought, from some period of residential rehabilitation immediately upon his release. This will be of course a matter for the Parole Authority.
I have reflected upon the issue of the significant aggravating factor of the offences being committed whilst on conditional liberty, as reflected in s 21A(2)(j). The victim was vulnerable in the sense that she, at the time of the confrontation with the prisoner, was alone in a shop, but if it could be categorised as a relevant aggravating factor under s 21A(2) ultimately is a matter of minor significance for several reasons. One is, as it turned out, the victim's husband was at the rear of the shop and was able to come to her assistance. I know King Georges Road, Wiley Park, extremely well. I drive there frequently to get to Olympic Park and other places from my own home, and I know that at this time of the day, Monday to Friday or even Saturday and Sunday, the road is a very busy road and the shopping centre is one that is not isolated. The offence was committed at 8 o'clock in the morning, not at night. Assistance was close to hand.
It may well be, and I cannot conclude without assistance from the prisoner on this matter, the prisoner deliberately targeted the shop, or the newsagency, because he thought the victim was alone in the shop. But this particular shopping centre is at this time of the day surrounded by motor vehicle traffic and people attending the nearby Wiley Park Railway Station and the shops that are in the vicinity.
So far as the mitigating matters that relevantly arise out of this, ultimately I have to conclude that the injury, emotional harm, loss or damage caused by the offence was not substantial. There was no loss and whilst, as I said earlier, I accept the victim was frightened by the prisoner, no long term injury is revealed of substance. The offence was not part of planned or organised criminal activity.
Clearly I cannot conclude that the prisoner is unlikely to re-offend, nor can I conclude that he has been good prospects of rehabilitation. There could not be any suggestion that he is "at the crossroads". Amongst other things, I have had no evidence from the prisoner and such material as comes from the prisoner comes in a hearsay form, I note the Crown's observations in that regard.
Although the prisoner has not given evidence there is some expression of regret by the prisoner and he has pleaded early to the offence, as I have earlier noted. I am prepared to accept on balance that he has accepted responsibility for his actions and acknowledge what he has done, but having said that it is not a high level of remorse shown by the prisoner, but certainly something I am prepared to weigh in his favour.
I note his plea of guilty and I note some assistance by his qualified admissions when he was interviewed by the police.
As was clear in the written submissions by both Crown and the accused, the issue of the guideline judgment in Henry, albeit that it now is 14 years old, that it was handed down before the passing of the Crimes (Sentencing Procedure) Act 1999 and that it was handed down before the guideline judgment on the utilitarian benefit of pleas of guilty was handed down, is of relevance here even though this is an 'attempt' offence.
One further observation about the attempt, however, is that the reason the crime was not successful was simply because of the fortitude of the victim. The prisoner had done all that he thought he needed to do to obtain what he could from the victim. I am prepared to accept had he completed the crime, which he did not, a relatively small amount of money would have been provided to him. There is no suggestion that he was preparing to leap the counter and not only take what money was given to him but take other property from the shop.
The guideline judgment sets out a guideline for sentencing for armed robbery in circumstances reflected in a case "common" for the purposes of determining a guideline at [162]of the learned Chief Justice's judgment. His Honour noted that the characteristics did not represent the full range of factors relevant to the sentencing exercise. I am mindful of the fact that a wide sentencing discretion still exists in relation to sentencing for armed robbery type of offences. That was acknowledged by the learned Chief Justice when he reflected upon Acting Chief Justice Mahony's observations in the earlier judgment of Lattouf, stating that the 'justice' of the individual case needed to be recognised.
I am also mindful of the additional factors that might need to be considered, set out at [170]. I am mindful of the vulnerability of the victim not being particularly great, the high level or significant level of impulsiveness and the absence of planning, the absence of any intensity of threat, the absence of any actual use of force, the fact the prisoner was alone and what I have acknowledged from the evidence available to me of the effect on the victim.
Then again, as I have pointed out, and which the guideline does not address directly, is the significant matter of the prisoner with a prior of record of armed robberies committing this offence whilst on parole for an armed robbery offence.
Weighing up the various factors acknowledged by the Crown and the defence in the context of the facts as I have found them I have given close consideration to the decision of Henry.
I have also had regard, as I must, the observations of Wood J, then the Chief Judge at Common Law, in relation to principles that arise from sentencing an offender who is drug dependent, or commits crimes to feed a drug habit. Clearly this is not a mitigating factor. Interestingly, although I would not ascribe to Dr Furst any direct knowledge of sentencing principle, Dr Furst said in his report
"In my opinion the primary mitigating factor in his alleged offending behaviour was his substance dependence and the effects of drugs of abuse on his mental state".
In the written submissions of counsel for the accused it is directly acknowledged on the basis, even of the opinion of Dr Furst, that the issue of the prisoner's mental state is not one which gives rise to consideration of the principles arise in cases such as Hemsley, De La Rosa, et cetera, where a mental disability or disorder is causally linked to the commission of the offence. It was frankly acknowledged, as reflected elsewhere in Senior Counsel's submissions, as a mark of objective fairness by him, that given the history of the offence and the opinions of Dr Furst, whilst he may have been dis-inhibited and affected in his judgment by drugs, this was an impulsive act arising from his substance abuse and there was "no indication that he was unaware of his actions or their wrongfulness".
That having been said however, returning to Wood J's observations, it is the case that committing a crime, particularly an armed robbery offence, motivated by need to obtain money for prohibited drugs may be taken into account as a factor relevant to the assessment of the appropriate penalty. In this case it reflects upon the impulsivity of the offence and the extent of planning, as I have already said.
I am not able to conclude one way or the other whether the prisoner was in such a state of mind, or lacked the capacity to exercise judgment. His presentation when he was arrested, as I pointed out, was many hours after the commission of the offence and may have been caused by an intervening ingestion of prohibited drugs. I am not assisted by the prisoner with any direct evidence on this matter.
So far as the subjective matters identified by Wood J, I certainly cannot conclude the prisoner is "at the crossroads", that would be completely foolish on my part. I do not believe that it has been seriously suggested that I could. The prisoner is a person who needs intensive assistance before he reaches that particular position on the road to rehabilitation.
The issue of the prisoner's prospects of recidivism and rehabilitation is correctly here to be regarded as a "two edged sword", as his Honour said. One where the prognosis in the view of the doctor and in the view of the court is guarded.
However, the matter does excite consideration of s 44 Crimes (Sentencing Procedure) Act, the issue of "special circumstances". In this matter of course the prisoner at the time of sentence had his parole revoked and, as I have earlier indicated, the balance of parole at the time of the effective revocation was two years and six months. It is clear that any sentence I impose would, at the very least, be partly accumulative upon that balance of parole.
The Crown's submission orally was that it should be almost wholly accumulative. The problem with that submission, in my view, is twofold. Firstly, I do not believe that it would give effect to an ultimate sentence that reflected the totality of the criminality in the context of sentencing practice in New South Wales. Secondly, I have already pointed out the significant aggravating factor of committing this offence whilst on parole for very similar offences. To wholly accumulate, or almost wholly accumulate this sentence upon the balance of parole would truly be to "double-dip", as observed by Simpson J in the decision of Callaghan ([2006] NSWCCA 58), which is referred to in the written submissions of Mr Wilson and which I am prevented from doing.
I have had close regard to the authorities that reflect upon the appropriate approach to sentencing a person who is subject to serving a balance of parole. There are two particular cases, Callaghan, to which I referred, and DW ([2012] NSW CCA 66) which I note. Both judgments reflect upon the wide discretion that exists in these circumstances, but also the caution that needs to be exercised to ensure that there is no double counting in the effective sentence that is imposed.
I have concluded that the terms of imprisonment that I should impose should commence one year and three months into what was two years six months and several days of balance of parole to be served. The sentence I impose will require the fixing of a non-parole period. I have concluded in the context of the authorities that relate to 'special circumstances' that the fixing of a sentence in these circumstances requires consideration of the special circumstance of the effect of partial accumulation.
Notwithstanding the relatively early breach of parole by the prisoner and the breaches of recognisances in the past, as well as the prisoner's performance over the last 12 years, the fundamental matters that may give rise to the exercise of the discretion that exists under s 44 still exists. There is clearly a need for the prisoner to receive professional assistance to assist him not only to adjust to community living but to lead a law abiding lifestyle whilst in the community, and it is clear by his past performance that this requires very intensive direction in relation to matters of drug and alcohol, but particularly drug treatment and counselling.
I believe the prisoner also needs assistance in relation employment and clearly assistance in relation to stable accommodation. I appreciate, of course, that he has in the past lived with this parents. But I am mindful of the difficulties in his relationship with this father particularly.
As was pointed out by the learned Crown in the submissions made, and as I clearly understand from the law to be applied, the determination of whether there are special circumstances is one that requires the exercise of a separate discretion. One can find any number of matters that might reasonably be regarded as special circumstances but they may not necessarily excite the exercise of the discretion that is available under s 44.
I have concluded that I should exercise the discretion available. I should also add, in this matter there is the additional issue of the prisoner's rather clouded diagnosis and prognosis in relation to mental health issues. I am not entirely convinced, even accepting everything that Dr Furst says, that there is a clear picture that has emerged. There is a possibility of an underlying mental illness or a history of psychotic reaction to the use of drugs. If the prisoner is a person prone to psychotic reactions to the use of drugs that is a matter that urgently needs addressing, because it is no consolation to the victims of crime that the person committing the crime that affects them is drug addicted let alone psychotic at the same time.
These are matters for examination over a period of time and perhaps trial and error when it comes to appropriate medication. These are matters that not only will need to be addressed in custody but also on the prisoner's release to the community for the benefit of the prisoner and the benefit of the community and its protection.
Be that as it may, having surveyed those matters, I have concluded that I should exercise the discretion available to make a finding of special circumstances to endeavour to recognise those matters. Of course the prisoner, given what has happened in the past, could not expect a recognition of special circumstances such as to warrant an effective non-parole period of 50 per cent of the total sentence, as occurred on the last occasion. But, in my view, a period of two years and one month in the context of the overall period the prisoner would ordinarily be required to spend in custody, is an appropriate period to provide the prisoner with the assistance that he needs.
I have endeavoured in some detail, but also in some respects in a cursory fashion, to treat all the relevant matters that have been raised within the submissions and in the evidence in the case. Ultimately whether the prisoner is capable of not offending in the future is something that I cannot predict. I am cautious in my judgment in this matter, and certainly could not conclude, given past performance, that the possibilities of not offending in the future are great. However, again, I emphasise the need for the Parole Authority to give close consideration to the prisoner's case. I do not for a moment suggest that he should not receive encouragement from the Parole Authority in its officers, but he certainly will need very close monitoring and counselling on his release to the community, for his sake and the sake of the community that requires protection from people like the prisoner who commit crimes of this type.
Yes thank you sir, could you just stand up thank you very much? In relation to the offence to which you have pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole of two years five months. That will commence on 3 April 2013 and it will expire on 2 September 2015.
In relation to that sentence I fix a balance of sentence of two years and one month, and on my calculation that sentence will expire on 2 October 2017. Whether you are released to parole will be a matter for the Parole Authority; I cannot direct your release.
Your earliest release date will be 2 September 2015. I will not fix any conditions for your parole, the Parole Authority and its officers will be far better positioned to do that than I will at the appropriate time. Just take a seat thanks very much.
Any other matters Mr Crown?
HEARN: No there's not.
HIS HONOUR: Any other matters Mr Murnane?
MURNANE: No your Honour.
HIS HONOUR: Right. Do you understand the sentence I have imposed?
ACCUSED: Not really your Honour.
HIS HONOUR: Well your non-parole period will expire on 2 September 2015, which is a bit less than three years from now. I have extended the sentence that you would have otherwise been required if you were required to serve the entirety of the balance of parole by approximately a year and three or four months I think. Maybe two months. The balance of sentence, the period of time which you will be subject to parole as a maximum period will be two years and one month.
ACCUSED: Thank you your Honour.
HIS HONOUR: Yes thank you Mr Alexandrou, you can go with the officers thank you.
ACCUSED: ..(not transcribable).. apologise to the victim again--
HIS HONOUR: Yes thank you.
ACCUSED: --for my behaviour.
HIS HONOUR: I've noted what you said from the dock.
ACCUSED: Basically the way I see it your Honour is I'm a victim too because I fell on drugs. The real people are still out there selling drugs and I've never done that in my life sold drugs. I've never--
HIS HONOUR: Well Mr Alexandrou if you wanted to help the community and stop people using drugs, and stop people selling drugs, all you've got to do is contact the police and give the police the name of every person whose ever supplied you with drugs.
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Decision last updated: 24 November 2014
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