R v Dervish - [2019] NSWDC 745

District Court

New South Wales

Medium Neutral Citation: R v Dervish [2019] NSWDC 745
Hearing dates: 22 August and 1 November 2019
Decision date: 16 December 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 3 years 6 months with a non parole period of 18 months.

Catchwords: CRIME - SENTENCE - robbery - robbery armed with an offensive weapon - special circumstances to vary ratio of the non parole period to the head sentence.
Legislation Cited: Crimes Act 1900 (NSW), ss 94 97 (1)
Cases Cited: R v Henry (1999) 46 NSWLR 346
Category: Sentence
Parties:
Regina (Crown)
Ozer Niazi Dervish (Offender)
Representation:
Ms Forest (ODPP Campbelltown)
Mr Bellanto QC (Offender)

File Number(s): 2016/217961
Publication restriction: Nil

judgment

Ozer Niazi Dervish, you appear for sentence in relation to two offences which you committed on 3 June and 11 June 2016 - when you were a few weeks short of your 25th birthday. The delay in sentencing is largely due to the fact that you left Australia shortly after you committed the offences and did not return until early 2018.
The first offence was that of robbery. This involves a contravention of s 94 of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is no standard non-parole period.
The second offence was that of robbery armed with an offensive weapon. This involves a contravention of s 97 (1) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment. Although there is no standard non-parole period for that offence, there is a relevant guideline judgment - R v Henry (1999) 46 NSWLR 346.
I make a non-publication order of the names of the two victims of your offending or of anything else that might identify them, directly or indirectly.
The facts surrounding the two offences are, to a large extent, contained in an agreed statement of facts.
The agreed statement of facts, however, has been supplemented by the contents of various expert reports which have been tendered in evidence and your own oral evidence.
I find the facts to be as follows.
As I have already said, as at June 2016 you were almost 25 years old.
By that stage in your life, you had had some intimate personal relationships with women.
However, since your early teenage years you were aware that you were, in fact, homosexual.
Like many others in your situation, you felt you had to hide your true sexuality from your family and friends. As a consequence, there grew within you an increasing amount of frustration and anger.
You sought to deal with that frustration and anger in part by using illegal drugs, but they only aggravated the situation.
By early June 2016, you became aware of what is referred to in the agreed facts as an app known as “Grindr” – which is a site for men to meet other men for sexual encounters. It would seem that users of this site do not provide their real names to other users but rather use profile names. More significantly, for reasons I shall later return to, a user of that app can – and usually does – provide a profile photograph, which in your case was a genuine and recent photograph of yourself.
Late in the evening of 3 June 2016, you accessed the Grindr app and “met” a man whom I shall refer to as William (this is a pseudonym).
You and William exchanged messages via that app and ultimately you met up at the shopping centre at Hammondville. You got into the front passenger seat of William’s car and he drove off.
You directed William to the visitor parking bay of a block of flats in Hammondville which you told him you lived in.
You and William sat in the car talking together for a while before you offered to engage in sexual activity with him.
I pause to observe that in the agreed facts it is recorded that you told William that this incident was only the second time that you had had some form of sexual encounter with a man. In a report prepared on your behalf by Dr Furst, dated 3 May 2019, it is stated that you had never engaged in any sexually intimate activities with a man until this incident. This is the first of the number of discrepancies I shall refer to in these remarks and which have cumulatively caused me unease and hesitation in completely accepting your evidence – both directly from the witness box and indirectly through the various experts reports tendered on your behalf.
Returning to the narrative. After you suggested sexual activity to William, you pulled back, stating you were nervous. You asked him for a cigarette. You then asked him to drive you back to the Hammondville shops. William complied with your request.
Once he had done so, you apparently became concerned as to whether or not William had recorded you on his mobile phone. You demanded proof that he had not. William showed you his phone and opened the photo section to show that he had not, in fact, recorded anything.
Up until this point, the interaction between you and William was benign. But after William showed you there was nothing on the phone, you demanded that he give you his phone and all of his money otherwise you threatened to punch him five times to his face with your fist.
When William expressed some surprise at this turn of events, you threatened to kill him.
William, fearing that he was going to be injured by you, handed his iPhone to you. He also took out his wallet and you took the contents of it, which was a $50.00 note.
You told William that if he locked the phone you would come back and find him. You also told him not to contact the police.
You then left William’s car. William, however, immediately contacted the police and he was able to provide them with your photograph from your Grindr profile.
It is these facts which constitute the first offence of robbery.
In terms of its objective seriousness for an offence of its kind, it falls somewhere equidistant between the middle and the bottom of the range.
This first offence is additionally aggravated by the threatened use of violence and because the victim was vulnerable by reason of the time at which the offence took place and in an isolated place.
A little over a week later, and in the early hours of the morning of 11 June 2016, Lachlan (also a pseudonym) accessed the Grindr app and clicked on your profile.
In the initial messages between the two of you, there was discussion of sexual activity.
In these messages, Lachlan asked you if you wanted to slap him hard during that sexual activity - to which you replied, “Yes”.
It is significant to note, for reasons I shall later explain, that beyond this one reference to slapping, there were no further communications between you and Lachlan about what is referred to in the agreed facts as “any other kind of unusual or kinky acts.”
Lachlan provided his home address to you and you went there. It would seem that Lachlan did not live alone but had a housemate.
When you got there, you immediately went into his bedroom and you and he engaged in oral sex.
After you had ejaculated, you asked Lachlan, “Do you wanna be tied up?... To try something different?”
It is important to note that it was you, and not Lachlan, who suggested that you tie him up.
You had taken with you into Lachlan’s house a work bag which had been in your car.
This work bag contained at least a hammer, a chain, an industrial mask, and some rope.
A difficulty arises in the sentencing exercise in determining why you took that bag with you into Lachlan’s home given that, in the agreed facts, it is stated that, during your conversation or messaging with him, the only “kinky” act discussed was whether you would slap him.
In this context, I note that in a report from Dr Allnutt, a psychiatrist, dated 3 October 2019 it was stated – for the first time – that there had been a prior agreement between you and Lachlan that you would bring a rope for consensual sexual purposes – and, inferentially, that is why you took the bag into the house.
Two observations might at this stage be made about that history given to Dr Allnutt.
First, it is inconsistent with the agreed facts.
Secondly, if there had been an agreement for you to bring rope, it is not entirely clear why the bag containing the other items needed to be taken into the house as opposed to the rope itself.
Returning to the narrative. After you asked Lachlan whether he wanted to be tied up, you then told him to lie down on the bed and put his hands behind his back. Lachlan complied - and the only rational inference in the circumstance is that this was consensual. But Lachlan’s consent does not necessarily mean that there had been a prior agreement or discussion about its use.
You tied Lachlan’s hands with the piece of rope; and you asked if it was tight enough - to which Lachlan replied “yes”.
At this point, things went far beyond what Lachlan had agreed to.
He heard you rustling around in the bag that you brought into the house and he heard the rattling of a chain. You loosely tied Lachlan’s legs using that chain.
You then turned the light switch on at the wall and stood beside the bed. This revealed you: wearing a construction mask which you had brought in the bag; and holding a hammer in your right hand.
You demanded that Lachlan tell you where his laptop was.
Lachlan asked, “What are you doing?” You then repeated your demand: “Tell me where your laptop is now or I will smash your head in”.
As you said those frightening words, you were moving closer towards Lachlan. You pointed the hammer towards his head.
You rummaged through his bedside drawers and took various items including his passport and a wallet (which contained the usual personal items) and, curiously, some vitamins.
You then left the house.
About two minutes after you left the house, Lachlan received a telephone call from you. Although the agreed facts do not expressly say so, the only rational inference is that Lachlan was able to receive that call because his hands could not have been tightly bound by the rope.
In this phone call you made a most peculiar request of Lachlan. You asked him to “speak like an Indian”. Why you asked that question is not explained in any of the material before me. Lachlan immediately terminated the call and called 000.
You made a further call to Lachlan in which you made another peculiar request: you asked him whether his flatmate was awake.
It is these facts which constitutes the second offence of robbery armed with an offensive weapon.
In terms of its objective seriousness for an offence of its kind, it is a mid-range offence.
This second offence is additionally aggravated by the fact that the offending took place in the home of the victim.
Neither William nor Lachlan have provided a victim impact statement, perhaps because they were embarrassed about the circumstances in which they came into contact with you. Undoubtedly the experiences would have been frightening and troubling for each of them, especially for Lachlan.
Your subjective circumstances were largely advanced to the Court through a collection of medical reports - although, on the last hearing date, you did give sworn oral evidence.
I pause to observe that, to the extent that that oral evidence is inconsistent with the statement of agreed facts (which oral evidence was not accepted by the Crown), I do not accept your evidence. One example in this regard to which I have already referred is whether Lachlan and you discussed you bringing rope to the meeting at his house.
At this point I feel it is appropriate that I spend a little time looking at some aspects of some of the various reports put before me on your behalf. I shall do so, not in the order in which they were tendered, but in a chronological order.
The first report I wish to refer to was from Dr Allnutt dated 13 November 2018. This was a medico-legal report, the purpose of which was to address the legal question of whether you were fit to stand trial. The answer was “Yes”.
The report was based upon two extensive consultations which Dr Allnutt had with you on 26 September and 9 November 2018.
Four observations might be made about that report.
First, there are repeated references to you having no recollection of the events surrounding the two offences.
Secondly, Dr Allnutt expressed the opinion that the reason for your lack of recollection was likely to have been the various lawfully prescribed medications and unlawfully obtained drugs that you were taking at the time – but he was unable to rule out denial.
Thirdly, there is a detailed history taken of you hearing voices regularly from when you were 8 or 9 years of age up to and including your admission to the St John of God Hospice in late October and early November 2018.
Fourthly, the history of auditory and paranoid phenomenon was noted but it was difficult for him to determine whether or not it arose from a chronic psychotic disorder such as schizophrenia or schizoaffective disorder, or whether it was a result of substance induced psychosis. In relation to the latter alternative, it is difficult in my opinion to see how the history of auditory phenomenon commencing when you were 8 years old could have been the result of substance induced psychosis when you did not start using illicit drugs until much later in life.
The second report I wish to refer to was from Mr Diment, a psychologist, dated 30 November 2018.
Three observations might be made of that report.
First, it appears to have been obtained, not for the purposes of sentence for these present offences, but rather for a shoplifting offence you committed on 27 July 2018.
Secondly, it makes no reference to the offences for which you are to be sentenced today.
Thirdly, there is no reference to a history of hearing voices since you were about 8 or 9 years of age up to and including early November 2018 – that is, only a few days before you were interviewed by Mr Diment on 26 November 2018. Indeed, Mr Diment wrote:

“There was no evidence in his account to me or his behaviour during interviews of serious psychopathology e.g. psychosis or psychotic content, delusions, responses to internal stimuli, formal thought disorder, anti-social personality disorder or unusual verbalisations.” (emphasis added)

The third report I wish to refer to is the report of Dr Allnutt dated 3 May 2019 to which I referred earlier in these remarks. This was a medico-legal report prepared for these sentence proceedings.
The following observations might be made of things you told Dr Allnutt for the purpose of that report.
First, since you had stopped using illicit substances, your mind was clearer.
Secondly, two months before hand – that is, in about March 2019 – you had told your family that you were in fact homosexual and that you had first realised that you were homosexual 10 to 15 years before the offences – that is, about the time of the onset of puberty.
Thirdly, at the time of the offences, you were pursuing homosexual contacts on Grindr – but you felt shame about, not only your sexuality, but your attempts to pursue those contacts.
Fourthly, and in connection with the second offence, you had the rope with you because of a prior discussion about that with Lachlan. As I have already indicated, I do not accept that assertion by you because it is not consistent with the agreed facts. You further told Dr Allnutt that you could not remember the hammer or the white construction mask. This is surprising; and I have difficulty believing it.
Fifthly, you told Dr Allnutt you were not sure why you stole from the victims but you believed it was to get money for drugs. Later in the report Dr Allnutt recorded that you acknowledged that you took Lachlan’s phone and money for drugs. In this context, the following passage is notable:

“… Your client acknowledges that he took phone and money for drugs at the material time. He also provided an account that he was at the same time conflicted about sexual interactions and his behaviour at the time was influenced by his sexual conflict. While on the one hand his behaviour at the time of the alleged offences appeared to be motivated by opportunity to rob, it remains possible that he was intending to pursue sexual interactions with the victims and behaved in the manner he did with regard to the offences, influenced by his conflicted feeling about sex, combined with the effects of the substances he had taken; but this is difficult to know beyond his self-report.” (emphases added)

The fourth report I wish to refer to is the report from Professor Davies, dated 5 June 2019.
Professor Davies has been treating you as an outpatient at the South Coast Private Hospital on many occasions since 27 November 2018.
Four observations might be made about that report.
First, it was prepared for these sentencing proceedings.
Secondly, one of the documents which Professor Davies reviewed was the report from Dr Allnutt of 3 May 2019 in which, amongst other things, Dr Allnutt recorded the difficulties that he perceived of you dealing with your sexuality.
Thirdly, one of your admissions to the South Coast Private Hospital was in March 2019.
Fourthly, although Professor Davies makes reference to childhood traumas which you experienced and your drug use, there was no express reference to any difficulties being experienced by you in relation to your sexuality.
The fifth report I wish to refer to is the second report from Ms Durrant, a psychologist, dated 16 June 2019.
I have found it a most useful document. I shall return to it later in these remarks.
The final report to which I want to make reference is a third report from Dr Allnutt dated the 3 October 2019. The report relates to a further interview that you had with Dr Alluntt on 1 October 2019.
The following observations may be made in relation to that report.
First, it repeats an earlier history given by you that there had been a “prior agreement” for you to bring a rope to the meeting with Lachlan for sexual purposes. On this occasion, however, you could recall that the chain, mask and hammer were in the bag when you had taken it into the house.
Secondly, you told Dr Allnutt that you were “shocked” by Lachlan’s advances and that, as he continued his advances, you felt threatened. This is inconsistent with the agreed facts which state that you and Lachlan engaged in consensual oral sex; that you ejaculated; that you asked Lachlan whether he wanted to be tied up – something that had not been previously discussed between the two of you; and that you then consensually tied Lachlan up, whilst he was lying on the bed, with a rope and chain. I do not understand how, in these circumstances, you could have been “shocked” with “Lachlan’s advances” to the point of feeling threatened.
It is noteworthy that, ultimately, Dr Allnutt wrote:

“Whether or not the hammer was intentionally taken to use as part of an S&M roleplay or to rob, was unintentionally in the bag, used spontaneously when he discovered it when he felt under threat – are factual matters to be determined based on the evidence.”

Thirdly, it will be recalled that I noted that, in Dr Allnutt’s earlier (second) report dated 3 May 2019, you acknowledged that you took the phone and the money for drugs. However, in this third report, Dr Allnutt records you saying that it was dark in the room and that when you left, you took whatever you could that you thought was yours but, in the course of this, you took some things that belonged to Lachlan. You further said that after you left the house and realised this, you contacted Lachlan wanting to give the things back but Lachlan said he had already contacted the police. According to the agreed facts, however, you did not offer to return Lachlan’s inadvertently taken goods to him in either of the two phone calls you made to him after leaving his house. Furthermore, as at 1 October 2019, you denied having any intention to use the hammer or to rob when you arrived at Lachlan’s house.

Unhelpfully, Dr Allnutt does not seek to address these inconsistent histories – or even to note them.
The lack of consistency in your versions of events has caused me not a little concern as to the reliability of the things you have told me – either directly in the witness box or indirectly through the various reports. And you bear the burden of persuading me, on the balance of probabilities, of any matter in mitigation.
After some hesitation and reflection, I am satisfied of the following on the balance of probabilities – and which are drawn largely from Ms Durrant’s reported date 16 June 2019.
You have a complex psychological history.
At 8 years of age, you sustained Post-Traumatic Stress Disorder after you came upon the body of a neighbour who had killed himself. You have not received treatment for that disorder until relatively recently.
As you entered puberty and became conscious – probably imperfectly – of your sexuality, you were confronted by the strongly held conservative values of your family – whom you loved and admired.
Consequently, there built up within you the negative emotions of anger and fear which, in part at least, you tried to deal with by illicit drugs.
Amongst other things, your drug use interfered with your career in the IT industry. But in more recent times, you have been employed part-time in the administrative / sales team of an air conditioning company where you are held in high regard. You have also undertaken courses to obtain further qualifications in the IT industry which you hope to return to.
By the time of your mid-twenties, you were unable to resist the true nature of your sexuality and you started using Grindr.
Your offences were, in part at least, the result of your internal conflicts; and in part to fund your drug habit, caused significantly by those internal conflicts.
Your robberies were substantially opportunistic and unsophisticated. The fact that both of your victims had your photograph from the Grindr site and other means of communicating with – or identifying - you is indicative of that. However, the presence of the rope and hammer in the second offence, occurring so closely in time to the first, is suggestive of some planning.
Having now come to terms with your sexuality – which your family is said to be comfortable with – and by taking serious steps to address your Post-Traumatic Stress Disorder and your illicit drug use, you have made real and meaningful efforts towards rehabilitation: but the process is not complete.
Although you have a long association with illegal drugs, you have a relatively modest criminal history – that is, apart from the consumption of those drugs. I therefore propose extending to you the leniency which, in appropriate circumstances, is extended to a first offender - although I do note that that is a factor taken into account in the R v Henry guideline judgment.
I regard your prospects of rehabilitation as now being good.
Because of your psychological background, you are not a suitable vehicle for the full application of general deterrence; and because of your progress towards rehabilitation, specific deterrence is of reduced significance.
However, both of those considerations are still engaged, particularly specific deterrence given the discrepancies and anomalies in your accounts to the various experts to which I have referred at various points in these remarks.
Your pleas of guilty were entered at the first available opportunity and, accordingly, you are entitled to a 25 per cent discount in each case because of those early pleas.
No sentence for either offence other than imprisonment is appropriate; and so much was implicitly conceded by senior Counsel who appeared for you.
I intend imposing an aggregate sentence.
It is therefore necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
Neither of those indicative sentences would have been totally concurrent with the other; there would have been a need for partial accumulation because there were two victims on two separate occasions.
In relation to the first offence, except for your plea of guilty and a discount of 25 per cent for it, I would have sentenced you to a term of imprisonment of 1 year 6 months. Because of the plea of guilty, the indicative sentence is 1 year 1 month.
In relation to the second offence, the indicative sentence is 4 years minus 25 per cent, i.e. 3 years imprisonment.
Ozer Niazi Dervish, for the offences of robbery and robbery armed with an offensive weapon, I therefore sentence you to an aggregate term of imprisonment of 3 years 6 months.
I make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence. I have made that finding: first, because of your age; secondly, because this will be your first time in prison; thirdly, because of your continuing psychological issues; and fourthly, because your prospects of rehabilitation would be enhanced by a longer period on parole.
I therefore fix a non-parole period of 18 months to date from today, 16 December 2019, and which will expire on 15 June 2021.
I fix a balance of 2 years to date from 16 June 2021 and which will expire on 15 June 2023.
You will now go with the officers.

**********

Decision last updated: 16 December 2019

Medium Neutral Citation:	R v Dervish [2019] NSWDC 745
Hearing dates:	22 August and 1 November 2019
Decision date:	16 December 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 3 years 6 months with a non parole period of 18 months.
Catchwords:	CRIME - SENTENCE - robbery - robbery armed with an offensive weapon - special circumstances to vary ratio of the non parole period to the head sentence.
Legislation Cited:	Crimes Act 1900 (NSW), ss 94 97 (1)
Cases Cited:	R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Ozer Niazi Dervish (Offender)
Representation:	Ms Forest (ODPP Campbelltown) Mr Bellanto QC (Offender)
File Number(s):	2016/217961
Publication restriction:	Nil