R v Buss

[2021] NSWDC 675

District Court

New South Wales

Medium Neutral Citation:

R v Buss [2021] NSWDC 675

Hearing dates:

27 August 2021

Date of orders:

27 August 2021

Decision date:

27 August 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 5 years with a non-parole period of 3 years 9 months.

Catchwords:

CRIME - Robbery armed with offensive weapon -

Robbery – Attempt Robbery - Dishonestly obtain property by deception

SENTENCING - Relevant factors on sentence –multiple offences committed on parole - long history of similar offences - institutionalised - mentally ill offender unable to cope in the community - impact of robberies on the victims and the community - chaotic and deprived childhood - no special circumstances given past failures to keep to parole - need for comprehensive and aggressive post release plan

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1987

Cases Cited:

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

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19

Donald (a pseudonym) v R [2021] NSWCCA 198

Engert v R (1995) 84 A Crim R 67

Hoskins v R [2021] NSWCCA 169

Moodie v R [2020] NSWCCA 160

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

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Mathew Buss (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Aboriginal Legal Service (NSW/ACT) (for the offender)
Ms N Olender (for Director of Public Prosecutions)

File Number(s):

2020/00169469

sentence – ex tempore revised

Introduction

1. Not for the first time Mathew Buss is before a court for sentence for robbery and armed robbery matters. It is not the first time Buss has appeared before me for such matters. Once again he must be returned to gaol. A submission was made that he is at risk of being institutionalised. That risk has been realised. Mr Buss has been institutionalised. His default position is gaol. He suffers a mental illness and has other matters in his background that require a degree of sympathy and ultimately leniency. But the voices in his head keep on telling him to “go back” and back to gaol he goes.

2. On this occasion he committed three serious offences. There are three other matters he must be sentenced for that came to this Court on Criminal Procedure Act 1987 s 166 certificate, together with a breach of a community correction order,

Agreed facts

3. Every sentencing exercise should start with a proper appreciation of what was done and the seriousness of each offence. There are agreed facts before the Court.

4. About 9 o’clock on 5 June 2020 police stopped a vehicle being driven by Buss in Unanderra. Buss has never been licensed. He gave the police his name and address. At 11 o’clock the same day he went into a petrol station in Towradgi. He walked up to the service station attendant and said, “I have a gun so don’t do anything, get all the cash you have out of the till and into this bag”. He put his hand inside the front pocket of his hoodie. The cashier was able to see something that looked like a black plastic handle.

5. The whole incident was captured on CCTV. I have seen the CCTV. At a certain point the attendant realises that this is serious and backs away. He gives Buss mobile phones cards, cigarettes and about $200. He was obviously frightened. He thought Buss had a gun, although it may actually have been a knife. CCTV did not deter Mr Buss; to the contrary as he looks at the CCTV camera he appears quite nonchalant. He was not attempting to disguise himself in any way; his extensive tattoos were fully visible.

6. About 7.30am on 6 June 2021 Buss drove the same car to a service station in Figtree. He filled the car with petrol and then went inside and spoke to the attendant. He asked him how much the fuel was. He was told “$50.” Buss then said, “Listen man I’ve got a gun, I’ve got a gun, money, hurry up”. The attendant said, “Come and take the money yourself”, the offender replied, “Do you want a bullet in the fucking head, do you want a bullet in the fucking head, press it, press it, money, let’s go”. He put his hand in his bag making the attendant think he had a gun.

7. Buss’ demands were repeated. The attendant held up his hand and backed away. The CCTV and the agreed facts reveal that Mr Buss just walked away and hopped in his car. He did not seek to take the money that he had demanded. Again, he made no attempt to conceal his identity.

8. At 1.20pm the same day he entered a sandwich store in Figtree. He confronted the two 15 year old female store attendants. He said, “I’m just telling you I have a gun in my bag and you need to give me all the money in the till”. He shook his bum bag and said again that he had a gun. One of the young women opened the till and took the money out. Both girls were left scared and shaking. Buss left with about $400. He was driving the same car.

9. That car was found near where a relative of his lives in Towradgi. The offender was soon arrested. He made admissions to the police. He has been in custody ever since.

Objective seriousness

10. It needs to be said, as Buss in his evidence now acknowledges, that robbery, armed robbery, are crimes against people and that where people are threatened or where a weapon, even a handle of a weapon is produced, it creates a real sense of apprehension in them. Some people have the mental resilience to shrug such matters off and get on with their lives, but I regularly hear of people who have suffered significant psychological damage arising from the fear engendered by such matters. And, they all too regularly find that they cannot work in that profession again because they are constantly dwelling on the risk.

11. Each of the victims in these matters were providing a valuable community service. As a community we need sandwich shops and we need petrol stations. Often the people employed in them are young, not paid very much, and alone or do not have the sort of protection that is often now seen in banks. CCTV allowed this offender to be apprehended but it did not prevent the crimes. Individuals and the community feel unsafe when crimes like this occur and a fearful community is a damaged community. Accordingly, any criminal who carries out offences such as this can expect to be treated severely.

12. The need for consistency in sentencing and an assertion that there was excessive leniency by sentencing judges in this Court led the Court of Criminal Appeal (NSW) in 1999 to publish a guideline judgment indicating the sort of sentence that should be imposed in certain categories of matters including matters that were more serious than these: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149. I must, as a matter of law take into account an applicable guideline and I will do so: s 42A Crimes (Sentencing Procedure) Act 1999: Moodie v R [2020] NSWCCA 160.

13. Another guide to the exercise of my sentencing discretion is the maximum penalties; 20 years for armed robbery and 14 years for robbery and attempt robbery.

14. While not prescriptive, careful attention must be given to those judgments and the guidance offered by the maximum penalties. But, as the Court of Criminal Appeal has said many times, repeating what fell from the High Court, judges do not engage in a mechanistic process of somehow taking a maximum or a guideline and oscillating around it. Every offence and every offender requires individualised treatment and sentence is a discretionary judgment.

Criminal history

15. The offence occurred in breach of a Community Correction Order. The offence occurred while on parole. The offence occurred very shortly after he had been released to parole. - I have to take into account these breaches of conditional liberty.

16. A review shows his criminal antecedents go back to when he was 14 years old. He has been committing robbery offences since then. He went to gaol in 2009 aged 18. He has been sentenced for armed robbery by:

• Her Honour Judge Wells in 2010. There was a finding of special circumstances, but his parole was revoked.

• His Honour Judge Townsden in 2013. There was a finding of special circumstances was made but that parole was revoked. And,

• In 2016 he was sentenced by me. I too made a finding of special circumstances after I heard evidence from him about his plans for the future, but his parole was revoked.

17. His criminal history is relevant. Reference was made in submissions to the High Court’s decision in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. Mr Fraser, Public Offender, who appears for Mr Buss asks that I not simply repeat what fell from the High Court there because that case was concerned with consistent and continuing disobedience towards the law. But here it is abundantly clear that driven by his mental illness Mr Buss has incapacity to obey the law. The Court in Veen No 2 spoke about the need for punishment as specific deterrence but gaol has never been a deterrent to Mr Buss.

18. Ms Olender, senior solicitor for the Director of Public Prosecutions, pointed out, in cases such as this, focus must be on protection of the community.

19. However, this is a case where the offender’s mental illness and intellectual disability are such that given sympathy would say well you would not expect him to get the same sentence as someone else. At the same time the fact that he continues to offend, despite promises to himself and to the Court, and the supervision given to him by mental health care teams and Community Corrections, requires this Court put particular emphasis on community protection.

The case for the offender

20. Mr Buss gave evidence. He has now stabilised on his medication. He was able to articulate his remorse and formulate an apology, especially to the young girls. He showed some empathy towards his victims.

21. Words are important but action is much more important. I am quite sure, because he has told me before, that when stabilised on his medication, he does have, empathy for his victims. But regardless of what he has told himself and told the Courts - he committed these offences. He says that, this time for sure, he will take the help that has been made available to him. He will engage with the community mental health teams and National Disability Insurance Scheme (NDIS) providers. He wishes to, prior to release, to secure accommodation well away from Wollongong, where he has lived all his life.

22. His background was succinctly summarised by Dr Furst a respected psychiatrist, who had reviewed a lot of material.

23. Mr Buss is now 30. He is an Aboriginal man. He had a difficult upbringing. His father spent time in gaol for robberies through most of his childhood. His mother was addicted to heroin. His home life was chaotic and he and his siblings were placed in foster care. There were Department of Community Service interventions in his life since the age of ten. An Uncle looked after him for a period but his Uncle also was a heroin addict and at one stage, when he was seven, overdosed in the presence of Buss.

24. All throughout his childhood he was exposed to regular drug use and domestic violence. He was the subject of physical abuse and neglect and the family home was often without food. Unsurprisingly his school noted considerable behavioural problems. He went in and out of foster homes and spent time in youth refuges. He has never worked.

25. He was initially diagnosed with a psychotic illness while in juvenile detention and he has, since a teenager, been hearing voices.

26. A report from Mr Mahoney, a psychologist who tested him in 2011, confirms he has an intellectual disability at the borderline level placing him very low in the community in terms of intellectual capacity and function.

27. He is on a medication regime and that will have to continue. He has completed some custody based interventions but on release this time he ended up living in a car. He was soon after hearing voices telling him to go back to gaol.

28. A thorough review of Justice Health records was conducted by Dr Furst. In Dr Furst’s opinion, Buss’ low level of intellectual function, poor controlled schizophrenic illness, drug addiction and his unstable living circumstances at time constituted mitigating factors, although not an outright defence. Dr Furst puts forward a plan requiring aggressive interventions and assistance in an out of custody:

“The pattern that has been in place over the last 15 years is likely to continue unless more assertive interventions including supported independent living placement, guardianship orders and involuntary mental health orders either as an in‑patient when mentally unwell and/or through community treatment orders.

Mr Buss will require assertive psychiatric treatment in custody, preferably under a forensic community treatment order with regular psychiatric reviews and reviews with mental health nurse. When released from custody follow up would likely to be through the Community Mental Health Service unless he is placed in supported accommodation. Assertive mental health psychiatric follow up pursuant to his CPO should include regular reviews with case manager and psychiatrist”.

29. Then he makes recommendations as to medication and drug and alcohol counselling to focus on relapse prevention.

Submissions

30. I had the advantage of written submissions prepared on behalf of the Director from Ms Cabrera, Solicitor, and comprehensive written submissions from Mr Fraser, Public Defender. Ms Olender, who appears for the Director, noted that there is a need for specific deterrence in a matter such as this but that protection of the community looms large. Mr Fraser noted that objectively these were not the most serious of their type and noted the absence of many aggravating features, the weapon, if any, in the armed robbery was kept hidden, no weapon was produced in the other matters although they are not charged as armed robbery, and there were no overt physical threats, unsurprisingly drew my attention to Bugmy and De La Rosa.

31. Mr Fraser says the best that can be said is that when he confronted a number of people providing a valuable community service, there were no overt acts of violence shown apart from the threats made. That may be of little comfort to his victims for they were not to know what might have occurred.

Synthesis

32. I accept that Mr Buss believes what he told me is true but I cannot accept that he will carry out his promises. That is because, time and time again when he is feeling good on his medication he decides that he does not need it when, frankly, he sorely does. That does not mean I will keep him in gaol forever, far from it, he has to be released. Prior criminal history and a pattern of behaviour cannot result in a sentence which is disproportionate to the gravity of the offences here.

33. And, there are matters that require mitigation of sentence. He pleaded guilty, the sentence must be reduced by 25% to reflect the utilitarian value of that plea: s 25D Crimes (Sentencing Procedure) Act 1999. I am going to give him, as I must, some credit for his expressed remorse. I note he has served and will be serve his sentence during the restrictions imposed because of the COVID-19 pandemic, another factor I take into account.

34. The Court can, and as it must, take into account his background. His moral culpability is less than an offender whose formative years have not been so marred. The effects of his profound depravation do not diminish over time and must be given full weight in every sentencing case. His background has left a mark.

35. Buss’ mental illness and intellectual disability are intertwined with his background of deprivation. While I do not double count them, these factors must be given full weight. They means his moral culpability is less than someone not so afflicted reducing the need to denounce his crimes meaning he is an inappropriate vehicle for general deterrence. There is an additional burden on anyone with the background of this offender and his mental illness and intellectual disability in serving his time in custody.

36. His mental illness and intellectual disability are such that human sympathy would say well “you would not expect him to get the same sentence as someone else:” Engert v R (1995) 84 A Crim R 67 per Allen J at 70. At the same time the fact that he continues to offend, despite promises to himself and to the Court, and the supervision given to him by mental health care teams and Community Corrections, requires this Court put particular emphasis on community protection.

37. Incarceration may not be an effective deterrent, but a Court has to recognise there are many countervailing factors in the sentencing exercise and protection of the community is one of them: Hoskins v R [2021] NSWCCA 169; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

38. There is still a need to ensure by the punishment inflicted that the offender recognises and applies learned behaviour. He must learn to sticks to the plans put in place for him, in particular to take his depot medication: Donald (a pseudonym) v R [2021] NSWCCA 198; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19,

39. There were three principal offences for sentence, there must be some accumulation. The offences were committed on parole which justifies a harsher punishment. There is no clear rule which governs all such cases. When I read the parole report that is put before me it is clear that efforts were made by the parole service to maintain contact with Mr Buss and to get him to maintain contact with them. But that after the first few appointments he just failed to attend, the failure to attend and the need for more assertive supervision and assistance is one that Dr Furst’s report is directed to. He will require extensive support release and Mr Fraser submits that all of those matters justify a finding of special circumstances.

40. I am not prepared to make such a finding. Past behaviour is a good indication of future behaviour. I must fix a sentence whose minimum term reflects the seriousness of each of the offences and moderated by the principle of totality. I cannot extend a sentence to allow for a lengthier term, and in a case such as this I should not do so, because the chances Buss will breach is parole are high. There will be a period for him to be supervised and I would recommend that he be given the full period, although his release will be subject to a decision by the State Parole Authority; who must independently determine that his release is in the interests of community safety.

41. There should be some independent penalty for the breach. I sentence knowing that this sentence is concurrent with the balance of his parole.

42. CCTV did not prevent these crimes. The prospect of returning to gaol in fact did not deter Buss. Gaol has never deterred him. Rather, the voices he heard demanded it. He has very low level cognitive skills and his schizophrenia, his intellectual disability and his substance abuse problem are chronic. He need s all the help our gaol and parole system can give him if he is not to re-offend on release.

Orders

Breach - Community Corrections order

43. The breach is proved. There will be a sentence of one month imprisonment which will date from 7 June 2020.

Never licensed person drive vehicle on road - first offence

44. Buss can drive a car but he has never been licensed. There are two drive while unlicensed matters before the Court, in all of the circumstances I will deal with them pursuant to s 10A Crimes (Sentencing Procedure) Act 1999, no other penalty is expedient.

Aggregate sentence

45. There are four matters on the aggregate sentence. All matters take into account the plea of guilty:

1. For the dishonestly obtain benefit by deception, Seq 10, on the 166 certificate, taking into account the plea of guilty, I indicate a sentence of four months.

1. For Robbery armed with offensive weapon, Seq 7 at Towradgi, I indicate a sentence of 3 years 4 months.

2. For the attempt Robbery, Seq 8 at Figtree, I indicate a sentence of 2 years 3 months robbery two years three months.

3. For the Robbery, Seq 9 at Figtree, I indicate a sentence of 2 years 7 months at Subway two years seven months.

46. There will be an aggregate sentence of five years imprisonment. That sentence will commence on 7 July 2020. There will be a non‑parole period of three years and nine months. Bus will be eligible for consideration for release to parole on 6 April 2024.

47. There will be a parole period of one year and three months commencing on 07/04/2024 and expiring on 06/07/2025.

48. A copy of Dr Furst’s report to be forwarded to Community Corrections with the warrant by the Registrar.

49. AUDIO VISUAL LINK CONCLUDED AT 11.39AM

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Decision last updated: 13 December 2021