R v Alvarez

[2020] NSWDC 680

District Court

New South Wales

Medium Neutral Citation:

R v Alvarez [2020] NSWDC 680

Hearing dates:

08 September 2020

Date of orders:

08 September 2020

Decision date:

08 September 2020

Jurisdiction:

Criminal

Before:

ML Williams SC DCJ

Decision:

An aggregate term of imprisonment of two years and six months to be served by way of an intensive corrections order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999: [35].

Catchwords:

SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Factual basis for sentence — Maximum penalty — General principles — Multiple offences — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Age of offender — Bail pending sentence — Drug addiction — Mental illness

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Gadsden v The Queen [2005] NSWCCA 453

R v Blackman and Walters [2001] NSWCCA 121

R v Govinden [1999] NSWCCA 118

R v Henry (1999) 46 NSWLR 346

Tepania v The Queen [2018] NSWCCA 247

Yardley v Betts (1979) 22 SASR 108

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Patrick Alvarez (Offender)

Representation:

Mr G Gaynor (Solicitor for the Crown)

Mr J Cooper (Solicitor for the Offender)

File Number(s):

2018/317707

Judgment

1. Patrick Alvarez, now aged 27, appears for sentence having pleaded guilty to two counts of robbery in company under s 97(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment, with no standard non-parole period.

2. Pleas were entered in circumstances in which it is common ground, attract a 10% discount for count 1 and 25% discount for count 2, for the utilitarian value of the pleas. The purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 must be taken into account, and the maximum penalty is a yardstick in the sentencing process.

3. He served six days in custody after his arrest on 17 October 2018, before being granted bail.

4. His co-offender, only a year younger than Alvarez, is proceeding to trial at Queanbeyan District Court next year.

5. The first count concerns a robbery at the United Service Station at Sutton about 11.45pm on Tuesday 16 October. His co-offender opened the door of the service station and walked in wearing a black hoodie. Alvarez held the door open. As is usually the case, the offending was caught on CCTV. The co-offender approached the counter, produced a 40 centimetre knife and demanded money and cigarettes from the attendant. He handed over the till, containing $500 in Australian currency, and 31 packets of Winfield cigarettes valued at $1,200. The co-offender was yelling, “Get the money and more cigarettes.” They left, got into a car and drove south.

6. About 3am the next day, or about three hours later, they went to the BP Service station at East Queanbeyan. The roles this time were reversed. Again caught on CCTV, Alvarez had the knife, the same knife that had been used three hours before, told the attendant this was a robbery, demanded money and cigarettes. The till was handed over, containing $200 of Australian currency, together with various packets of cigarettes. He demanded his mobile phone, laptop and landline. This attendant complied and Alvarez pulled the items, which were connected to the wall via the cables, until they were disconnected. The pair left with $200 cash, eight packets of cigarettes, a laptop and a mobile phone, and headed off towards Queanbeyan.

7. They were arrested at 5.25am the same day in the pokie machine area at Queanbeyan Leagues Club and an abundance of evidence linked them to the robberies.

8. Alvarez obtained advice from the Aboriginal Legal Service after his arrest and declined to participate in an interview. He has no criminal record of any offence before or since October 2018.

9. The evidence put in support of the ultimate submission by Mr Cooper for the offender, comprises a comprehensive bundle of subjective material as well as evidence from two of perhaps the most compelling character witnesses that one could see, namely Rana Elmir, a therapist with ACT Health Department and Darren Solomons, a Kamilaroi man. There was no challenge to their assertions as to the remarkable degree of rehabilitation this man has undergone since his arrest.

10. In short, the material supports the following helpful chronology prepared by Mr Cooper. He was diagnosed with attention deficit disorder in 1997 when he was five years old. When he was six he was sexually assaulted, he gave a statement to the Australian Federal Police but nothing was done about it. He was assaulted at school in 2009. He had alcohol-related pancreatitis leading to hospital admission in May 2017. There was a suicide attempt in June 2017 which again took him to the Calvary Hospital. Again alcohol-related pancreatitis with a hospital visit, a further suicide attempt in July 2017. A presentation at the hospital on 13 October with intoxication and his arrest on 17 October for these offences.

11. The arrest was followed by a suicide attempt in the cells. He was taken by ambulance to Queanbeyan Hospital before being released on bail on 22 October.

12. He then commenced the Bush Healing Farm program in November 2018, then residential rehabilitation at Kedesh. He undertook further residential rehabilitation at Canberra Recovery Services until August 2019. He then did a ten-week cultural rehabilitation program at the Bush Healing Farm.

13. Mr Solomons, who was a director at ACT Health, said that his first impression of him was being a broken person, with his songlines broken, a standard drug-affected mental health client. But he made a remarkable change following his expressions of remorse and he was unchallenged in his assertions of confidence that this young man will not re-offend.

14. Ms Elmir described him as someone who brought a light to group counselling. She also described the remarkable change in him from what she saw as a wounded animal after his release from prison, to a man who no longer needs the type of intensive treatment that he has undergone over the last period of almost two years.

15. There is a very detailed history set out in the report of Vanessa Edwidge, a psychologist, and although the history has not been tested or adopted on oath, there is no reason not to accept it for the purposes of the sentencing process, given that it is consistent with a wealth of independent corroborative material and with the evidence of the witnesses to whom I have referred.

16. In short, he is a 27-year-old Dunghutti man through the ancestral birth rites of his mother. His mother’s family came from Kempsey and was a descendant of the Stolen Generations. He has never met his father but he grew up with his mother and siblings in a rough neighbourhood. His two brothers got into serious trouble with the law and every weekend from when he was three until he was 16 the family would be packed up and go and camp in a tent near the gaol so they could visit their brothers.

17. After the sexual assault when he was aged six and the lack of police charges following that, his behaviour changed. He became clingy and anxious, he wet the bed, he became depressed and constantly thought about suicide. He was diagnosed with bulimia which ruled his life for five years. He was bullied at school and assaulted there at age 16 according to records from Canberra Hospital.

18. He has been gainfully employed since he completed high school, and completed a number of certificates and has served the community for some eight years notwithstanding his descent during this brief period of offending in October 2018. He now works at the Australian Injecting & Illicit Drug Users League and, apart from his contributions to the community to date, I am confident that those contributions will continue in this field where he is helping others who have been through the type of trauma that he has.

19. He started binge drinking to the point of vomiting and passing out from age 16 and then progressed to cocaine, crystal methamphetamine, ecstasy, speed and marijuana.

20. In total, he has completed almost a year of drug and alcohol rehabilitation. His experience at the Bush Healing program was extremely valuable to him and an important part of his recovery, restoring his connection to culture and giving him guidance from the elders, and a strong sense of belonging and connection.

21. He had an extensive psychiatric history due to his bulimia. His childhood disadvantage includes depressive symptoms developing in primary school, in addition to the eating disorder.

22. His own description of his current state accords with the predictions of the character witnesses. He is happy working as a project officer three days a week at the Drug Users League and studying three days a week for a certificate in Alcohol and Other Drugs at Canberra Institute of Technology. He attends the gymnasium six days a week and lives independently.

23. The trigger for the offending seems to be the fact that he was told by his sister, two weeks before the offence, that her two children, aged two and four, had been sexually abused by their father. That was deeply distressing and triggered a range of emotions for him, including intense anger, flashbacks of his own abuse and an overwhelming sense of hopelessness. His drug use escalated significantly, he had been kicked out of the family home and was living in his car. He lost his job because of his drug use, had been admitted to hospital twice in recent times. As he says, at the time of the offending he was “drug-fucked.” He had consumed cocaine, ice, Risperidone and Lyrica. He said it was all a bit of a blur. He takes full responsibility for his actions and feels deeply ashamed of it.

24. The psychologist said that at the time of the offending he was suffering from a borderline personality disorder which significantly impacted on his decision-making and behaviour. She identified a number of strengths that are positive for his future and his contribution to the community; his strong connection to the Aboriginal culture and his desire to heal through traditional cultural practices, willingness to engage in long-term counselling, determination to continue his education and be gainfully employed, his emotional insight, his empathy, compassion and patience with people with disabilities.

25. His goals include remaining drug free, healing from his past traumas, working full-time, completing his studies. He acknowledges a genuine interest and a need for ongoing treatment. Ms Edwidge opines that ongoing psychological support for a period of at least 12 months would be beneficial, including psychiatric support from Dr Harrison, continuing counselling from Rana Elmir and continuing his certificate.

26. In short, the psychologist believes, and I accept, that he has worked tirelessly to turn his life around and he is committed to ongoing education to increase his skills and knowledge.

27. The history and the expressions of opinion by the psychologist are, as I have said, amply supported by a significant quantity of contemporaneous material and it is not necessary for me to go to the detail of that material, which is all set out in Exhibit 1.

28. He has satisfactorily complied with his bail conditions since his release, which includes reporting three times per week and a curfew every evening, from 9pm to 6am.

29. In detailed written submissions the Crown correctly points to the applicability of the R v Henry (1999) 46 NSWLR 346 guideline and the features set out there that are in common with these offences. Both Mr Cooper and the Crown acknowledge what was said by the Chief Justice in terms of the requirement for exceptional circumstances to be present before one avoids a custodial sentence. As his Honour said at [99]:

Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment.

30. The Crown’s submission is that full-time custody is the only appropriate sentence. The four or five-year range set out in Henry, of course, was later qualified to refer to a case where a 10% plea was allowed, and in the case of a 25% discount an appropriate adjustment would be made to the range. As the Crown says, in Gadsden v The Queen [2005] NSWCCA 453 McClellan J said that considerations of rehabilitation do not outweigh the importance of general deterrence.

31. Mr Cooper puts a constellation of circumstances justifying his ultimate submission, namely; the absence of a criminal record; his disability work for eight years, showing his prior good character; a childhood sexual assault invoking Bugmy v The Queen (2013) 249 CLR 571 principles and lowering his assessment of moral culpability and increasing the focus on rehabilitation; his mental illness causally related to the offending reducing his culpability, as noted in Tepania v The Queen [2018] NSWCCA 247, showing that he is not an appropriate vehicle for making an example to others; his demonstrated drug rehabilitation and the discretion to consider a significant amount of that time in residential rehabilitation; his compliance with strict bail conditions demonstrating that there is no issue of public safety, which is of course paramount when considering whether an intensive correction order should be made; the discounts, which I have highlighted; and totality to the extent that Mr Cooper acknowledges that some accumulation is appropriate, albeit that the offences were part of one enterprise committed three hours apart in similar circumstances of mental decline.

32. Mr Cooper reminds me of sentiments such as those expressed by Dunford J in R v Govinden [1999] NSWCCA 118, that courts must examine critically submissions that an offender has “excellent prospects of rehabilitation” or that the offender “has seen the error of his ways” or “is at a turning point in his life”.

33. As the Wood CJ at CL said in R v Blackman and Walters [2001] NSWCCA 121 citing Yardley v Betts (1979) 22 SASR 108,

The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

which aptly applies to this offender. There is no evidence of him being a threat to community safety and, to the contrary, his work is benefitting the community.

34. I accept that a term of imprisonment should be imposed. The indicative sentences should be 24 months for count 1 and 20 months for count 2. An aggregate sentence of two years and six months should be imposed. I am satisfied that it should be served by way of intensive correction order.

35. The orders that I make are:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. 001 – 24 months;

2. 002 – 20 months.

3. There being no other appropriate penalty, I impose an aggregate sentence of imprisonment of 2 years, 6 months.

4. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

5. The offender is to report to the OIC at the Queanbeyan office of CCS by 5pm, Tuesday 15 September 2020.

6. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

7. You must not commit any offence.

8. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

9. Continue with drug rehabilitation and psychological treatment as recommended by Rana Elmir, psychologist (ACT Health – Alcohol & Drug Service).

36. Both counsel have dealt with the statistics in relation to sentences for s 97(1) involving robbery in company. The statistics demonstrate that 31.6% of a range of 95 cases were dealt with by way of intensive correction order. The details that are available in relation to individual cases of that range of 31.6%, or 30 out of the 95 cases, included in the JIRS database show that eight of the 30 cases involve offenders with, for the most part, more than one prior offence. The statistics, of course, demonstrate a departure to a very significant degree from the strictures of what was said by the Chief Justice in Henry, namely that one requires exceptional circumstances for a non-custodial penalty and consideration of that material has assisted me in coming to the view that it will ultimately be appropriate for the term of imprisonment to be served by way of intensive correction order.

37. Thank you, Mr Crown for your written submissions which were very comprehensive.

38. GAYNOR: Thank you, your Honour.

39. HIS HONOUR: Mr Cooper, if I may say so, your presentation of the case was a model for any aspiring advocate. Thank you.

40. Note – These extempore remarks were revised without access to the court file

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Decision last updated: 09 November 2020