R v Blackmore

[2022] NSWDC 763

District Court

New South Wales

Medium Neutral Citation:

R v Blackmore [2022] NSWDC 763

Hearing dates:

29 September 2022 and 24 November 2022

Date of orders:

24 November 2022

Decision date:

24 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment sentence of 3 years with a non-parole period of 1 year 6 months

Catchwords:

CRIME — Violent offences —Robbery with an offensive weapon

CRIME — Domestic violence — Stalking or intimidation

SENTENCING — Aggravating factors — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment — Community Correction Order

SENTENCING — Relevant factors on sentence — Deterrence — Objective seriousness

SENTENCING — Subjective considerations on sentence — Aboriginal offender — COVID-19 — Drug addiction — Mental illness — Community Treatment Orders — Deprived childhood — Childhood sexual assault — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Moodiev R [2020] NSWCCA 160

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Corey John Blackmore (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
F Al Majed Aboriginal Legal Service (NSW/ACT) (for the offender)
J Azad for the Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2021/324458

JUDGMENT – ex tempore revised

Introduction

1. When Corey Blackmore came before me today, he adhered to pleas of guilty to two serious offences:

1. Robbery Armed with an Offensive Weapon. That offence, pursuant to s 97(1) Crimes Act 1900 (NSW) carries a maximum penalty of 20 years’ imprisonment; and

2. Intimidation Intending to Cause Harm. That offence, pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), carries a maximum penalty of 5 years’ imprisonment.

2. Because he indicted his pleas of guilty in the Local Court, I will reduce the otherwise appropriate sentences by 25% to reflect their utilitarian value. As he has served his sentence during the COVID-19 pandemic, Ms Al Majed, solicitor who appears for him, submitted that I could apply Victorian authorities which allowed for greater utilitarian discounts for pleas during the pandemic.

3. I cannot accept that submission. For indictable matters, s 25D Crimes (Sentencing Procedure) Act 1999 (NSW) limits and restricts the utilitarian value of discounts. There is no COVID-19 provision, and 25% is what is allowed. It does not mean that a plea of guilty does not have other values.

4. There is regularly evidence before the Court that during the pandemic prisoners have suffered harsher conditions, including lockdowns, restricted access to programs, work, and visits. Those matters are all matters the Court should take into account. Prisoners are effectively helpless; they have to rely on others to ensure their safety from spread of the pandemic and endure the measures that have to be taken to ensure their safety. I do not ignore the lived experience of gaol.

Agreed Facts

5. There are Agreed Facts before the Court. The offender has a longstanding mental health problem. He was subject to a Community Treatment Order in the community. He was required to attend on various agencies for review. At times, particularly towards the end of his depot medication period, his mental illness became more florid, and he became frustrated with the restrictions placed upon him.

6. On 2 November 2021 Blackmore attended Wollongong Hospital for a review. During the that review he was advised that there be a further Community Treatment Order. He said, “If you continue with the CTO I will come in with a syringe to stab everyone. I will also kill someone.” Understandably, the worker he was speaking to felt intimidated.

7. Later that day, he was contacted by telephone and told that he was required to attend the Psychiatry Emergency Care Centre at Wollongong Hospital. He said, “I’m going to come in and pour petrol over the desk and set the place on fire.” He disconnected the call. Those matters formulate the intimidation matters presently before the Court.

8. On 15 November 2021, the offender entered an EzyMart on Crown Street, Wollongong, at about 1.25pm. He approached the attendant and put two drink bottles on the counter. He said, “I want you to get 50 bucks out of the till and these two drinks.” The attendant said, “I have no cash in the till.” The offender said, “I don’t care, open the till, open the till or I’m going to stab you.”

9. As he said this to the attendant he moved, and the attendant saw a silver object which looked to him like a knife. The attendant became nervous he was going to get injured. A further demand was made, “Open the till before I stab you.” As the offender approached the counter the attendant walked backwards. The offender repeated his demand, “Open the till before I stab you … Hurry up.”.

10. Fearing for his safety the attendant opened the till and took out one $50 note and gave it to the offender. The offender kept his hands down the front of his shorts. He demanded all of the fifties. He was given another $50 note. The offender took the money and the two bottles and left.

11. Police were contacted. A knife with a broken handle was found at the scene. The incident was captured on CCTV footage in the store and in the very good CCTV in the local mall. The offender is seen giving one of the bottles to a homeless man. Police soon worked out who was responsible, attended his address and arrested him.

12. After being cautioned Blackmore told police, “Mental health kept fucking me around. I didn’t have a knife.” Police asked where the $100 was. He said it was spent. His rights were explained, and he arrested. He has been in custody ever since.

Objective seriousness

General

13. Robbery involves taking property, here a small amount; drinks and $100. It is also a crime against people and a crime against the community. People who provide services such as those in EzyMarts are very vulnerable. Where offences such as this occur, where they are threatened and threatened with what they believe is a weapon, it can have a terrible impact on them. Some leave the industry; some cannot get any other job.

14. When people rob places where everyone in the community goes to for services, we lose trust in our public institutions, and we lose trust in other people. When criminals who commit such offences are caught, the community can lose trust in the courts if they do not adequately punish them.

15. The need for consistency in sentencing and a fear that there was excessive leniency by sentencing judges of this Court led the highest Court in New South Wales in 1999 to publish a guideline judgment designed to guide the sentencing discretion of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149.

16. The Court of Criminal Appeal indicated that in the “ordinary case” of an armed robbery and, although this matter involves an offensive weapon, when viewed objectively it is tragically an ordinary case, matters at the lower end of seriousness ordinarily result in a period of 4 years following a late plea of guilty: Henry. I note that the Henry guideline has both objective and subjective factors in it.

17. While not prescriptive, careful attention to applicable guidelines is required. They must be taken into account: Crimes (Sentencing Procedure) Act 1999 (NSW), s 42A; Moodie v R [2020] NSWCCA 160.

Specific

18. Looking at the robbery’s objective factors. An offensive weapon of some sort was seen, although it was not produced. The threat was intended to intimidate, and it involved a threat to kill. The threat succeeded but only a small amount was taken. The console operator acted with appropriate restraint.

19. When I review the objective facts here, while obviously serious, it does fall towards the bottom of the end of the sort of matters encompassed by the guideline. While objectively this crime requires a custodial sentence of some length, this determination is a stage in the sentencing process. It must be assessed with all the other relevant factors and there are other relevant factors beyond my assessment of the gravity of the offending.

20. So far as the intimidation matter is concerned. The woman intimidated was only trying to help and do her job. That job was designed to ensure that both Blackmore and the community were protected by him keeping to the Community Treatment Order and his continuing with it. She was entitled not to be threatened in this way.

21. As someone who is occasionally subject to outbursts myself, in most cases I don’t expect they will be carried out, but in the back of your mind is always the fear that someone will actually do what is threatened. Here such threats can undermine a health professionals’ sense of safety and capacity to do their job. This applies no matter how resilient you are. It is of particular concern when the victim works in a caring profession, here, mental health and at a hospital.

22. Given all of the material before me, however, and given what the worker knew about the offender, it is not a matter that requires a custodial sentence, serious though it was.

23. Neither of the victims of these offences provided Victim Impact Statements, but their absence does not mitigate.

24. In making my determinations I accept the guidance of the guideline judgment and have regard to the maximum penalties. They are important matters that must be considered. I also have to take into account Blackmore’s criminal record.

Subjective case

25. Blackmore first came before the Children’s Court in 2007, but it is his Local Court convictions that I note. He appeared before the Local Court from 2011 to 2012 and since 2011 until 2017, his time out of gaol has been measured in months.

26. There have been improvements. There was a period out of gaol for in 2019, and he was able to be managed in the community for nearly 2 years from February 2020 until his arrest for the present offence. The gaol records note his intellectual disability and a visual impairment.

27. While his criminal record does not entitle him to leniency, his lengthy gaol terms have meant that he has had considerable difficulty adjusting to community life on release. However, with assistance, particularly the Community Treatment Orders, which sadly he rebelled against, he has been able to achieve some long periods without offending.

28. Blackmore’s subjective case is set out in the Sentence Assessment Report and what fell from psychologist, Ms Edwige. Although not supported by sworn evidence it is not in contest or controversial.

29. He was born in 1993. He is an Aboriginal Australian, a Ngarrindjeri man (a South Australian nation) on his mother’s side.

30. His childhood was blighted by violence and exposure to drugs and alcohol on an almost daily basis. He reported a sexual assault when very young, but he was not supported. There have been reports of further sexual assault by a police officer while in juvenile detention.

31. His father tragically spent many years in gaol. The family moved often and at times his family was homeless. Blackmore went to a specialist unit for children with behavioural and management issues, but his schooling was disrupted, and he has always struggled to read. In addition to these matters, there have been a number of losses in his life which have exacerbated his underlying conditions. For most of his life he has been bereft of support, and that continues to today.

32. It is unsurprising, given his background, that he took up the use and abuse of illicit drugs when too young to make rational choices. He went to rehabilitation facility when he was 16. At that time there was a diagnosis of schizophrenia but this was not treated until much, much later when Community treatment was ordered by the Mental Health Review Tribunal.

33. Ms Edwige’s report sets out his history and a number of traumatic events and their consequences. Her comprehensive and compelling report suggests a number of protective factors that might reduce Blackmore’s risk of reoffending:

• He will need to engage with a psychologist to address his trauma background and symptomology;

• He will need to remain on antipsychotic medication; and

• It would be to his advantage to attend drug and alcohol rehabilitation places such as The Glen.

34. He has a child, and he wants to be part of their life. This gives him a goal, but he will have to be able to look after himself first. Ms Edwige reports that he has a number of simple goals; somewhere secure to live, a job, and to be a father to his child. She puts forward a treatment plan at par [18] of her report. I will have a copy of this report and the plan sent to the gaol authorities.

35. An offender who has the background in life that Blackmore has, with his underlying intellectual and mental health problems, cannot be expected to bear the same moral responsibility for a crime as a person who had what might be termed a ‘normal’ or ‘advantaged’ upbringing. His background involved regular significant ‘adverse’ experiences; that term does not adequately describe how serious they were. His background has left a mark and compromised his capacity to mature and learn from experience. He has fewer emotional resources to guide his behavioural decisions: R v Millwood [2012] NSWCCA 2 at [69].

36. That does not mean that he does not bear responsibility for his actions. Far from it, but his moral culpability is less than that of an offender whose formative years have not been so marred: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

37. In his appearances before me, Blackmore has shown some growing maturity and understanding, but that will have to be tested in the community, not within the security, such as it is, of the gaol environment.

38. I accept that matters I have referred to have been exacerbated by the trauma that he has suffered and the mental illnesses he suffers. He is less of a vehicle for what is called general deterrence, than others who did not have his underlying conditions. I could not find a custodial sentence weighs more heavily on him, but there is a real risk the longer he spends in custody the more difficult it will be to adjust to community life on release. It is not only in his interests but also in the community’s interest, that he meets the goals that he has set himself.

39. He has shown an acceptance of responsibility and some insight into his behaviour was shown when he was interviewed by Community Corrections.

40. He has an ongoing problem with drug abuse that must be addressed. It is sadly his default position. If he resumes the use of illicit drugs, the only consequence will be further offending and return to custody.

Submissions

41. I am indebted to Ms Al Majed for her careful submissions, and Ms Azad, who sets out appropriate principles and made proper concessions.

42. Ms Al Majed asks that I take a gamble with this offender by allowing a substantial portion of his sentence to be spent in the community under supervision. I hope it will be justified. I will do so because I believe community safety would best be served by him getting help adjusting to normal community life and, I would presume, continuation of the Community Treatment Order, which is not for me to impose.

43. I have adjourned the matter on the last occasion to see if earlier release could be arranged so support can be provided to him by the Illawarra Aboriginal Medical Service and programs can be put in place. If I were to release him to a s 11 Crimes (Sentencing Procedure) Act remand or an Intensive Correction Order, as I was originally asked to, without anywhere to live, without programs in place, I believe I would be setting him up to fail. I have structured the sentence so that over the next 6 months, hopefully those programs can be put in place.

Synthesis

44. Synthesising all those matters. Blackmore committed a serious robbery offence against an individual and the community. He must be punished and removed from the community for a period to reflect the impact on the victim and the community.

45. He has also offended against someone who was trying to help him. He has a significant mental health issue and has the traumas in his background that I have referred to, but when he is dealing with health professionals if he wants them to trust him – he must trust them. People cannot give him help him if they cannot trust him to do the right thing by them, and doing the right thing means – accepting their direction and not threatening them.

46. It would appear that Blackmore’s mental health has improved while on his current antipsychotic medication, as has his general health. In her report Ms Edwige said, “Blackmore continues to experience the fact of his sexual abuse every day. He cannot resume the normal course of his life as the trauma repeatedly interrupts.”

47. I disagree with her conclusion, “Resume the normal course of his life” only because he has never lived a normal life in the community. He may never be able to do so because he may have to accept psychiatric treatment and medication for the rest of his life. But if given the assistance that should be offered to him: and if he takes it up, he may eventually become a father to his son.

48. I have structured the sentence to fix the absolute minimum he must spend in custody to meet the purposes of sentencing. I have structured it to give him an opportunity. He will relapse if he does not accept the support that is given and engage in programs, which I trust can be put in place before his release. If he fails, inevitably he will be returned to gaol, and sadly that return will be preceded by the commission of further crimes, but unless absolutely necessary gaols should not be a place to house people with deprived backgrounds, victims of trauma, and underlying mental illnesses.

Orders

49. I take into account the plea of guilty. I impose a sentence of 3 years’ imprisonment.

50. There will be a non-parole period of 1 year and 6 months which will date from 15 November 2021. He will be released to parole, subject to supervision, on 14 May 2023. The balance of the sentence of 1 year and 6 months is to commence on 15 May 2023, and the total sentence will expire on 14 November 2024.

51. Matter for you now, Mr Blackmore, but I suggest you go and request to see someone from Community Corrections so that plans can be put in place, hopefully for your housing on your release.

52. In relation to the intimidation, I impose a Community Correction Order for a period of 2 years and 6 months from today’s date. I am going to put two conditions on it:

1. Accept supervision of Community Corrections and to obey all reasonable directions of that service; and

2. Engage in any recommended medications or treatment.

53. I can’t impose a Community Treatment Order. That is for the Mental Health Review Tribunal.

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Decision last updated: 07 June 2024