R v Eatts

[2007] NSWDC 116

CITATION:	R v Eatts [2007] NSWDC 116
HEARING DATE(S):	06/02/2007, 22/02/2007, 13/04/2007
EX TEMPORE JUDGMENT DATE:	13 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Sentenced to imprisonment; see Paragraphs [68] - [76]; No compensation order made
CATCHWORDS:	Crimes - sentencing - multiple offences - armed robbery - carjacking - escape - mental illness - partial accumulation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Fernando (1992) 76 A Crim R 58 R v Gordon (2004) NSWCCA 45 Pearce v The Queen (1998) 194 CLR 610 R v Henry (1999) 46 NSWLR 346
PARTIES:	Crown Steven Aaron Eatts
FILE NUMBER(S):	06/11/0529
COUNSEL:	Ms M. Fernando, Solicitor (Crown) Ms C. Doosey (Offender)
SOLICITORS:	NSW DPP Aboriginal Legal Service

SENTENCE

1 Steven Aaron Eatts pleaded guilty in the Local Court to a number of serious offences and those matters were committed to this court for sentence. Because of some technical matters when Mr Eatts appeared in the District Court in Sydney on these matters the crown presented a fresh indictment. That contained sixteen counts and the crown also tendered a Form 1 in which the prisoner asked me to take into account a number of other offences.

2 Defence counsel pointed out that two matters on the indictment and two matters in the Form 1 were matters in respect of which the prisoner had been convicted at the Local Court. I accepted that submission and I remitted those matters, but not the matter that I have dealt with already.

3 Mr Eatts is convicted of the fourteen offences to which he pleaded guilty and I take into account the matters on the Form 1.

4 The facts giving rise to the offences of which he has been convicted are as follows. The first is an armed robbery at the Waldorf Hotel in Chippendale. At about 4.30pm on 5 March 2005 Glenda Kelly was working alone at the front counter of the Waldorf Apartments on the corner of Cleveland and Chippen Streets, Chippendale. The prisoner entered the foyer with another unknown accomplice. They walked to the office area and jumped the counter and stood about one metre away from Kelly. One of the offenders said to Kelly, “Where’s the money?” Kelly pointed towards the metal till box in the work area on the far side of the reception desk. The prisoner Eatts took the box and demanded that Kelly tell him how to open it.

5 Kelly told him that she needed to get the keys and he replied, “You’ve got twenty seconds to open it.” Kelly got the key and tried to open the till. As she tried, the prisoner stood at Kelly’s right side, holding a knife across the front of his waist area. The knife was held in his right hand and about one and a half inches of brown handle protruded from his hand. The blade did not appear serrated and Kelly could see about two inches of blade. The prisoner struggled but finally managed to remove the cash tray from the till.

6 As they walked towards the door the prisoner said, “Get her bag, get her handbag, get her bag.” The prisoner jumped back onto the counter and turned to face Kelly. CCTV footage shows the prisoner brandishing a large silver bladed knife. He jumped from the counter and stood in the foyer. He waved the knife in the air and pointed towards the office, demanding that Kelly hand over her handbag and wallet. He then turned to Kelly and said, “Where is it?” She said, “In the office.” The accomplice went back into the office and shouted at Kelly, “Money, do you have any money?” And Kelly replied that she did not have any money.

7 Kelly saw the two offenders leave the premises and tip the money from the cash tray into something and discard the tray. The prisoner and his accomplice left the foyer area, crossed Cleveland Street and ran into Eveleigh Street, Redfern. The proceeds of the robbery were $594.45 in cash and $2,100 approximately in travellers cheques.

8 DNA swabs were taken from the register, the till tray and drawers and they were later analysed. The swab from the cash register was found to contain DNA similar to that of the prisoner.

9 The second matter was a robbery at the Renaissance Store at 184 George Street, Sydney and I should say that the facts of each of these offences, are agreed facts about which there is no issue. On 16 April 2005 at about 5 o’clock in the afternoon the prisoner entered the store. There was only one person working in the store, Lena Bond. The prisoner walked straight past the counter and into the back section of the store. Bond followed him and said “What are you doing?” but Bond could not understand his reply. She was standing about one foot away from the prisoner when he pushed her on the left shoulder, forcing her to fall backwards. He reached into the tea making area and took Bond’s purse from her handbag. He then ran from the store. He also took a lady’s black Country Road leather clutch purse containing about $50 in cash and credit cards, licences and so on.

10 The Renaissance Store does not have CCTV but footage from the Summit Arcade shows the prisoner running from the area wearing a yellow T-shirt with brown and white stripes, a black cap and a black backpack.

11 On 31 May police executed a search warrant at 59 Glebe Point Road, Glebe, which was an address where the police knew that the prisoner had lived. A number of items belonging to him were seized and amongst those was a yellow shirt with brown and white stripes, similar to that shown in the TV footage. In his interview with the police, which was recorded, the prisoner made a number of admissions about this offence.

12 The third offence was aggravated robbery using corporal violence. On 16 April 2005 Kong Zhou was working alone at the Australian Eastern Gift Trading Store at 26/8A Quay Street, Haymarket. At about 5.45pm the prisoner entered the store and closed the door. As he walked to the counter area Zhou said to him, “How can I help you?” He did not reply. He punched Zhou to the left side of her face and knocked her to the ground. He walked past her to behind the counter and shouted demands to her, saying, “Where’s the money?” “How do you open the cash register?” Zhou did not answer and stayed crouching on the ground. He pressed the release button on the cash register and removed about $1,000 in cash. He pulled out the till tray, causing coins to scatter over the nearby area. He walked out of the store yelling at Zhou, “Don’t stand up or I’ll kill you,” and on his way out he grabbed Zhou’s brown backpack.

13 After he left the store Zhou stood up. She saw a large amount of money had been taken from the till and also that her backpack had been taken. That backpack contained a wallet containing personal cards, an MP3 player and her house keys. Zhou phoned her manager and then the police. There was CCTV footage which clearly shows the prisoner wearing a yellow T-shirt with brown and white stripes, a black cap and a black backpack, the same clothing as he wore when committing the offence in the Renaissance Store and that clothing was later found. Again, the prisoner made some admissions about this offence in his record of interview.

14 The next offence is an armed robbery at the Captain Cook Convenience Store in Camperdown. On 21 April 2005 Osama Abed was working at the Captain Cook Convenience Store at 138 Carillon Avenue, Camperdown. At about 9.45pm he started to close the store. He closed and locked the front and rear doors and started to count the day’s taking and put them in the safe. He picked up his backpack and put it on and went to the rear door to close and lock the security door. When Abed got to the door the prisoner approached the door and said to Abed, “I’ll be quick.” Abed said, “No, we’re already closed.” The prisoner told Abed that he wanted some milk for his daughter and Abed went back into the shop to get the prisoner a 600 millilitre carton of milk.

15 The prisoner handed Abed a $5 note. Abed went to the till to get change, leaving the rear door open. He heard the prisoner walk in behind him and went behind the counter and closed the door to the counter area. He gave the prisoner change and the prisoner asked for a packet of cigarettes and started to get agitated as Abed tried to confirm the type of cigarettes. Abed then locked the counter area. The prisoner ran to the door, tried to open it and produced a piece of metal about 30 centimetres long with a sharpened tip and said, “Open this door.” Abed said, “Take it easy, just take your cigarettes and leave.” The prisoner said, “I want the 20 cigarettes.” Abed got a pack of Winfield Filter 20s and passed them to the prisoner who took the cigarettes and went to the front of the counter. He tried to jump the counter but could not do so. The wires were getting in his way and he broke a light in the ceiling. Abed pushed him off the counter, the prisoner said, “Open the door,” while he was waving the piece of metal in his left hand. Abed could not see the prisoner’s right hand and thought he may have a firearm. Abed opened the door, the prisoner shouted, “On the floor.” Abed stepped back with both hands in the air and said, “Take it easy.”

16 The prisoner said, “Open the cash.” He was holding the piece of metal in his left hand. He had a wheel brace in his right hand. Abed opened the register and reached into the drawer. The prisoner reached over and took all the notes plus five or six bags of coins from the shelf below the register. He said, “Is that all you’ve got?” And Abed replied, “Yes that’s all, take it and leave.” The prisoner said, “Give me what you’ve got on you.” Abed reached into his pocket, took out his wallet and handed the prisoner a fifty and a ten dollar note. The prisoner said, “Is that all you’ve got?” Abed said, “Yes, that’s all. Just take it and leave.”

17 The prisoner left the store via the rear door and an examination of the store found fingerprints, which matched those of the prisoner. There was CCTV footage, which shows the prisoner wearing a black cap and a black backpack as in some earlier robberies, and he also made some admissions about this offence. He identified a person shown in a still taken from the CCTV footage as himself.

18 The next matter was an aggravated robbery using corporal violence at the De Milk Clothing Company Store, Haymarket. This was on 24 April 2005. Huijuan Huang and Ka Yan Cheng were working at the De Milk Clothing Company at 27 Goulburn Street, Haymarket. At about 7.50pm Huang went to the cash drawer and took $200 cash from the cash drawer and put it in the storeroom. She left a total of about $200 in the drawer. Huang was in the storeroom with the door closed. Cheng saw the prisoner come in to the store. She said, “Hello.” But he did not reply. He walked straight to the cash counter next to the back wall of the store and tried to open the cash drawer. Cheng said to him, “What are you looking for?” The prisoner did not reply.

19 A short time later Huang looked at the small monitor which displays footage from a camera that is located in the main floor area of the store. Huang saw the prisoner behind the sales desk, opening the cash drawer and looking in the other drawers. Huang came out of the storeroom and walked into the shop area. The prisoner was behind the sales desk and was holding the cash drawer open with his right hand. Cheng was standing next to him. Huang said, “What are you doing?” The prisoner walked a couple of paces from the sales desk and said, “I’m looking for the boss.” Huang said, “The boss is not here.” He said, “Is the boss out the back room?” Huang said, “He’s not there, what do you want, I’m the manager.”

20 The prisoner did not reply and held up both his hands showing his palms. He walked quickly out of the store into Goulburn Street and stood in front of the store. He then turned round and walked slowly back up the stairs and into the store. He reached up and pulled down the roller door, closing the store off. He was inside with Huang and Cheng. They were both very scared. Huang ran towards the door yelling, “What are you doing?” As she got about half way to the door, the prisoner moved backwards and pushed her with both his open hands on her shoulders. He then pushed her hard backwards towards the sale desk. She was screaming, “What are you doing?” The prisoner was also screaming, “Where’s the money?” And Huang replied, “It’s all in cash in the drawer.”

21 The prisoner pushed Huang and Cheng up against the wall in the corner and put his left leg out so it was against the wall and his back was against the desk, preventing each of them from moving. He reached into the cash drawer and took out $160 in notes. He kept asking, “Where’s the other money?” Huang said, “This is all I have. The prisoner said, “Where’s your wallet?” As he said this he opened the cabinet under the cash drawer and removed Cheng’s handbag. He took her wallet out and took $50 in cash from it. Huang tried to run from the store by running round the prisoner. She got a couple of steps away from him when he pushed her to the ground. He was saying, “Where’s your bag?” Huang said, “I don’t have a bag, my boyfriend took it away.” Huang got up and the prisoner pushed her back in behind the desk with Cheng. He continued looking for money and opened a wooden drawer set on top of the fridge. Huang went to take her mobile phone out of her pocket. The prisoner pushed her back into the corner. She said, “I call the police.” He pushed her back again and put his leg up against the wall to stop Huang and Cheng from moving.

22 Huang jumped over the prisoner’s leg, ran to the front of the store and rolled up the roller door. She ran out into the street and started yelling for help. About five seconds later the prisoner ran out of the shop and along Goulburn Street towards Sussex Street. Huang went to the shop, closed the roller door and called police. They later came to the scene and obtained some CCTV footage. This shows the prisoner wearing a dark blue T-shirt with white under the arms, a baseball cap and carrying a black backpack. When police searched the premises at Glebe on 31 May they found a dark blue T-shirt with white underarms, which matched the description.

23 On 1 June Huang went to City Central Police Station and identified a picture of Steven Eatts as being the offender. Again in his interview Mr Eatts made a number of admissions about this offence.

24 The armed or aggravated robbery charges in counts 8, 10, 11 and 17 are similar in type. It is not necessary to repeat the detailed facts. There are one or two victims in each case. The amounts involved were relatively small, the prisoner was easily identified and he admitted the offences that he recalled when he spoke to the police. As I say, I am not going to refer in detail to those offences. They were an offence on 26 April at the Mindissu Store at 569 George Street, an aggravated robbery maliciously inflicting actual bodily harm at the Volle Jewellery Store which is on the Form 1. There was an armed robbery on 11 May at Soul Pattinson’s Chemist at Blacktown. On 15 May there was an armed robbery at Sullivan’s Hotel, Paddington, and on 14 June there was an armed robbery at Spar Express in Newtown.

25 There are some other matters on the indictment which are of a different type. There is a charge of escape lawful custody. On the morning of 28 May the prisoner was arrested by Surry Hills police and charged with a number of matters. He was refused bail by police, and on the same day he appeared at Parramatta Local Court where he was again refused bail and remanded into the custody of Corrective Services.

26 About 3 o’clock in the afternoon of Monday 30 May the prisoner appeared in Central Local Court in Sydney for a mention in relation to certain charges. He was placed in the dock area in Court 1, which was surrounded by high solid glass walls with a metal frame. The dock had no roof. He was legally represented and a bail application was made. This was refused and the prisoner was again remanded in custody. When he heard this the prisoner climbed up onto a wooden banister inside the dock. He grabbed the top of the glass wall of the dock enclosure and hoisted himself up onto the top metal frame. He balanced there and then jumped to a ledge above the public entry enclosure. He kicked out a glass window of the court. This led to the Form 1 offence of malicious damage.

27 He climbed out through the window and onto the roof of the court building. He ran across the roof towards the back of the building and jumped down into a courtyard area. He climbed over a large fence, which surrounds the court building, and made good his escape by running down a laneway onto George Street, Sydney. The escape was captured by closed circuit television cameras, both inside and outside the court complex. There were a number of witnesses. He ran across George Street towards Sussex Street.

28 At this time, at about 10 past 3 Maria Ernawaty was sitting alone in the driver’s seat of a motor car ATF 67H on the eastern kerb of Sussex Street. She was waiting to pick up her brother. The prisoner approached the vehicle and entered it through the front passenger side door. He sat in the front passenger seat of the vehicle and closed the door behind him. He said to Ms Ernawaty, “Hi how are you, please stay, don’t move,” and he kept repeating, “Don’t move.” Ms Ernawaty was extremely frightened of the prisoner, particularly when he leant over and grabbed her left upper arm. She moved away and slipped her arm free until he only had hold of her jacket, and she was able to move further away, open the driver’s door and rolled out onto the road, screaming, “Help, please help, robbery.” She sustained some grazes to her knees and bruises to her right shoulder and buttock.

29 The prisoner slid across onto the driver’s seat of Ernawaty’s car and drove off in it, heading south on Sussex Street. A police constable was in the vicinity and heard the victim screaming. He was in plain clothes, although on duty, and he saw the prisoner in the vehicle and has since positively identified the prisoner. Those facts give rise to a charge of car-jacking.

30 At the time a member of the public, Richard Stout, was riding a push-bike along Sussex Street. He chased the vehicle and caught up with it a short distance away because of the heavy traffic. He stood next to the driver’s side window and yelled at the prisoner, “You, stop, get out.” The prisoner accelerated the vehicle and turned right into James Lane. The vehicle collided with Stout, knocking him to the ground, and ran over the bicycle, causing major damage to it. That gives rise to the charge of causing injury by furious driving. The victim sustained a grazed left knee and a severely grazed left hand. He was treated by ambulance officers.

31 The prisoner continued to drive the vehicle west along James Lane, contrary to a one-way street sign, and a police officer, Senior Sergeant Guy Guiana, was walking east along the lane in full uniform. He saw the vehicle travelling the wrong way towards him and stood in front of the vehicle, making signals that the vehicle should stop. He saw the prisoner staring straight at him. He realised that he was standing in the direct path of the vehicle and, as the vehicle did not stop, he started to move to the driver’s side of the vehicle, which accelerated forwards towards him. Guiana put his hands out to protect himself and both his hands were hit by the front side of the vehicle. The vehicle also collided with his elbow and left thigh. He suffered some very minor pain as a result of this.

32 The prisoner drove the vehicle off without stopping. Later the vehicle was recovered in Glebe and examined by forensic officers. A fingerprint located on a panel was identified as that of the prisoner. He was also charged with the offence of drive vehicle never having been licensed and he was, of course, convicted of that offence but he is discharged without any further penalty.

33 The seven Form 1 offences include two armed robbery offences, an attempted armed robbery, an offence of a convicted person being found in premises with intent, goods in custody, malicious damage, which is the window of the Local Court, possession of housebreaking instruments. As I say the circumstances of the robbery offences are very similar to those, which I have already described.

34 The proceeds of all these robberies were relatively small amounts of cash, the largest being slightly more than $2,000, but it was common to a number of offences that the prisoner would also take personal items such as handbags, backpacks and wallets, which contained credit cards and personal items.

35 After his escape from Central Local Court the prisoner’s photograph was widely distributed to New South Wales police officers. About two weeks later police saw him walking down the steps at Kingsgrove Railway Station. They approached him and asked for identification. He gave a false name and produced a railway infringement notice in that name. The police officers were not satisfied that the details supplied were correct and asked the prisoner to accompany them to the police station. He then became aggressive and attempted to run away. Police purported to arrest him but he didn’t stop. He climbed a wall and dropped into the playground of a local school, but after a short chase he surrendered to police in the school grounds. He was taken to Hurstville Police Station where he participated in a long interview, the transcript of which is in evidence.

36 In the course of the interview, the prisoner readily admitted his participation in many of the offences that he was able to remember. He did not have a memory of some of the offences. He was offered the assistance of a solicitor from the Aboriginal Legal Service, but declined this offer and continued to admit his involvement in virtually all the offences on the indictment.

37 Because of these admissions and his plea of guilty in the local court, he is entitled to the maximum discount for the utilitarian value of his plea. Given the number of offences, this value is significant. A trial of these matters would have involved a great deal of time and effort on the part of the police and prosecution lawyers, let alone the affect that it may have had on witnesses and victims.

38 In the course of the interview the prisoner did express remorse about some of the offences and some concern for the victims of the armed robberies. However, he showed no remorse in respect of the escape from Central Local Court and the subsequent carjacking and driving offences relating to people in the street, including the police officer. He took the view that he was an Aboriginal and a Muslim and that such people should not be in court. Therefore, in his view, he had the right to escape. This view appears rather idiosyncratic, and I will refer to it again when I deal with the subjective features of this case.

39 The offences on the indictment are extremely serious, carrying maximum penalties of up to twenty-five years imprisonment. One of the offences, the carjacking offence, carries a maximum penalty of ten years imprisonment and a standard non-parole period of three years, but as the accused has pleaded guilty to these offences, strictly speaking, the standard non-parole period does not apply. It must, however, be taken into account.

40 By their nature, armed robbery and carjacking offences are violent. Count 9 is a charge of robbery involving malicious infliction of actual bodily harm. Count 14 is a count of furious driving causing actual bodily harm and count 15 is an offence of using a motor vehicle with intent to - it is an object, which was a motor vehicle, with intent to prevent the lawful apprehension of the prisoner.

41 I have already stated the facts giving rise to these offences. They all involved either the actual use of violence or the threat of violence. The actual or threatened use of violence is an element of each of these offences and so cannot be an aggravating factor within the meaning of s 21A of the Crimes (Sentencing Procedure) Act. The community regards offences of violence with particular abhorrence. It is fortunate that the violence inflicted by the prisoner in this case was not in fact more serious than actually happened. The fact that the victim of the offence in court 15 was a police officer is of itself an aggravating factor. The offences are serious and the penalties are correspondingly heavy.

42 The offences on the indictment and the Form 1 were all committed during a period between 5 March 2005 and

43 14 June in that year. The prisoner had been released from prison shortly before this. He has a record of very serious offences, including manslaughter, and armed robbery as an adult. He had previously escaped from custody. For this and related reasons, he served the full term of his last sentence without having ever been released to parole. At the time of these offences he was technically on conditional liberty. He had been charged with some relatively minor offences, being offences for which he was convicted in his absence by the Local Court, and those have, I think, already been remitted to that court for sentence, but he was on bail for those offences during the time he committed the offences on the indictment.

44 His previous record, as I have said, contains convictions for serious offences both as a juvenile and as an adult. He has spent most of his adult life in custody. The fact that he has a record, which includes previous armed robbery offences, does not mean that he should be punished again for those offences, but it does mean, however, that a more severe sentence maybe appropriate in this case, and leniency which might otherwise be extended to him will not be.

45 The prisoner’s admission of his guilt to all these offences does not establish that this is a series of related offences. There is a series of separate and discrete offences. In most cases not more than two people were victims, but they were all vulnerable people such as shop assistants or hotel receptionists.

46 The carjacking offence must be regarded as falling at or above the middle range of seriousness for such offences because it involved the physical pulling of the driver and causing her to escape from the driver’s seat. In this respect the agreed facts are at variance with what the prisoner told the police in his interview where he said that she voluntarily left the car.

47 The Crown submitted that because many of the victims of the armed robberies were of Asian origin, these offences were aggravated because they could be seen as being motivated by racial prejudice. In his interview with the psychologist, Ms Gagliardi, whose report is in evidence, the prisoner is reported as saying that he chose shops where the employees were Asians as targets for his robberies because he thought they were more likely to be insured. Quite apart from the fact that this evidence is hearsay, and the crown raised a formal objection at least in relation to the weight to be accorded to statements made by the prisoner to professionals, I cannot say that I could be satisfied beyond reasonable doubt of the presence of racial prejudice and I must of course, be satisfied beyond reasonable doubt of any matter upon which I place weight in sentencing proceedings. This rule applies, in my view, to matters which are said to be matters of aggravation under section 21A. However, I take this alleged assertion as indicating, if anything, rather than racial prejudice established to the standard required by law, a peculiar aspect of the prisoner’s mental illness, which leads him to make statements that are illogical and irrational.

48 As I have said earlier, any standard non-parole period is not strictly applicable because of the pleas of guilty, but the sentences to be imposed will reflect the objective seriousness of the offence.

49 Perhaps the saddest feature of this case is the subjective history of the prisoner. He grew up in an urban Aboriginal community. As the Court of Criminal Appeal pointed out in Fernando, these communities are often touched by constant violence and substance abuse. The prisoner has told the psychologists and psychiatrists over the years that his father was particularly abusive and violent. All the matters to which the court referred in Fernando apply in this case, but there are some additional matters that are particular to this prisoner. He has a hearing disability, which was not diagnosed until fairly late. Because of this he had difficulty at school. He simply could not hear what was being said to him. Quite apart from the isolation in which an Aboriginal child going to school in Bankstown, as the prisoner did, would feel because he is Aboriginal, his difficulty in hearing and understanding was a further disincentive for him to do well in his schooling and a further cause of social isolation.

50 Because of his family situation he spent a great deal of time in institutions and ultimately in juvenile detention centres. As is so often the case, it is clear that he learnt how to commit crimes while he was in these detention centres and he put this knowledge to use when he was released.

51 He also turned to the use of cannabis at an early age. He never liked alcohol, but he did use cannabis heavily from about the age of twelve to about fifteen. After that time, crystal methamphetamine, or “ice”, became his drug of choice and he used this drug heavily. The prisoner, like other users of this drug, found that it made him more energetic or less controlled, or as the professionals say, disinhibited. His use of “ice” was so great and its stimulative effect on him so great, that he developed a habit of using heroin to calm himself down so he could sleep. At the time of his previous conviction for an armed robbery, he was a heavy user of “ice”; he says that he was able to obtain “ice” in gaol. He also said that he was using “ice” at the time of his escape from Central Local Court. This may explain both his ability to climb over the glass barrier in the dock area and the fact that he was not injured when he jumped a considerable distance from the wall to escape from the enclosed area of the court building.

52 While he was in gaol he became a Muslim and when arrested was carrying a Koran and a prayer rug. He attributes some behavioural changes to his conversion. However, the fact remains that while he committed the offences for which he is now being sentenced, he become a Muslim and he was still using “ice”. Muslims, like every other person in the community, are subject to the law. Neither religious belief nor substance abuse is an excuse for the commission of any offence.

53 When the prisoner was in a juvenile detention centre in 1996, Mr Peter Champion, forensic psychologist, interviewed and examined him. The report which Mr Champion prepared on that occasion and which was in evidence before me was remarkably prescient, although at that stage the prisoner had not been diagnosed as suffering from any recognised mental illness. Mr Champion indicated that there was a possibility that such an illness might develop. He also indicated a number of aspects of anti-social behaviour of the prisoner, which continue to affect him.

54 I have in evidence a recent report from Dr Olav Neilsen, a highly respected forensic psychiatrist, and from Ms Cinzia Gagliardi, forensic psychologist. They have both seen the prisoner within the last few months. Doctor Neilsen diagnoses him as suffering from acute schizophrenia, consistently with the prediction of Mr Champion over ten years ago. Dr Neilsen does not express a concluded opinion as to whether the prisoner’s mental illness is a result of substance abuse, but he does allude to this possibility. Ms Gagliardi supports this diagnosis and also refers to other aspects of the prisoner’s anti-social behaviour.

55 The reports reveal that the prisoner has been confined in the psychiatric section of Long Bay Hospital on a number of occasions because of acute mental illness and severe behavioural problems, and for this reason he has also been kept in segregation during much of the time that he spent in prison.

56 Quite apart from the current and previous convictions for escaping from lawful custody, he has a history of violent and anti-social behaviour in prison, with the result that any term of imprisonment would almost certainly be spent in segregation, without the possibility of him engaging in programs of education or rehabilitation. The Court of Criminal Appeal referred to this in Gordon (2004) NSWCCA 45. In that case the court suggested that a person could not take advantage of a restriction imposed on him or her as a result of their own conduct, but I do not take anything in that decision as meaning the circumstances of the prisoner’s time in prison are not relevant. They are not the only special circumstances.

57 The fact that this prisoner will be subject to restrictive conditions in prison, is relevant to both the question of special circumstances and to rehabilitation. Because he has been held in restricted conditions, he has never had access to educational and psychological services of the scale required for proper rehabilitation. It has been suggested that he has never had full access to drug and alcohol counselling and rehabilitation.

58 Despite statements from the bar table that changes are proposed to the regime of the particular section of Goulburn Correctional Centre where he is likely to be held, I formed a view that this prisoner, because of his record of escapes from custody, will be deprived opportunities available to other prisoners and this still constitutes a special circumstance, even though it is in part, a result of his own behaviour.

59 On the balance of probabilities I would also find that his past behaviour is, at least in part, a result of his mental illness. It is not clear that any psychiatric evidence of the type contained in Dr Neilsen’s report has ever been available to the Corrective Services officials, and it is apparent that it provides a likely explanation for the prisoner’s antisocial behaviour.

60 I am told from the bar table that the prisoner is related to a person called David Gundy, who was killed in tragic circumstances some years ago in an incident involving the police. As I said in the course of argument, it is not surprising that Aboriginal people take a particular attitude to the police. This does not justify them in considering themselves above the law, and it does not justify them in using violence against police officers.

61 When a person with such an attitude has a recognised mental illness such as schizophrenia, it is hardly surprising that they are likely to react violently in particular situations.

62 Although the agreed facts indicate that the police officer, who was the victim of the offence of using a car as an offensive instrument to avoid apprehension, was unarmed, the prisoner, in his interview with the police, expressed a strong view that he believed the officer was carrying a firearm which was aimed at him. This belief is not an excuse for the commission of the crime, but it illustrates the prisoner’s mental condition and must be taken into account.

63 A number of matters are common to all the matters before me for sentence. At all relevant times this prisoner was suffering from a severe mental illness. For that reason the element of general deterrence does not carry as much weight as would otherwise be the case. Therefore, where a person has committed a serious offence involving violence, even violence against a police officer, it is not so necessary for the courts to send a message to the community regarding the severity with which such offences will be punished.

64 A person who has a mental illness is not expected to be as able to maintain the same standards of behaviour as a person who does not suffer from such an illness. Further, as I have indicated, this prisoner must be dealt with in the way indicated by the Court of Criminal Appeal in Fernando.

65 There are a large number of offences. In Pearce, the High Court has indicated that this court must determine an appropriate sentence in respect of each charge on the indictment, but it is also equally clear that the court must have regard to the totality of sentences. It cannot be argued that all these offences were part of a single exercise or episode of criminality, so there should be no total accumulation of the sentences. The legislation provides specifically that a sentence for the offence of escaping from lawful custody must be cumulative upon any other sentences. While I seek to apply the principle of totality, it is necessary to make these sentences at least partially cumulative.

66 I do, however, regard the charges in relation to offences that occurred on 30 May 2005 following the escape, as being part of a single episode in which the prisoner stole the car from its driver while she was in it, violently removing her from the car, drove it furiously causing injury to Mr Stout, and then used it by driving it towards Sergeant Guiana so as to prevent that officer from arresting him. Each of these offences in itself is serious, but the time interval between them was short. If this prisoner were not facing so many other charges there might be a case for partially accumulating the sentences, but in view of the sentences that I must impose for all the offences on the indictment, the principle of totality would best be served in this case by making the sentences for the 30 May offences, other than the escape, concurrent with each other.

67 For the purpose of sentencing I will deal first with counts 13, 14 and 15. These offences are part of a single episode of criminality and, like the escape, they are matters in which the prisoner has not shown remorse, although he did plead guilty at the first opportunity, and he will receive a full discount of twenty-five per cent for the utilitarian value of his plea.

68 On each of counts 13 and 14 he is sentenced to a non-parole period of two years, and a total term of three years. Those sentences commence on 17 June 2005, and the non-parole period expires on 16 June 2007. The total term expires 16 June 2008.

69 On the charge of using an offensive instrument, namely a car, with intent to prevent lawful apprehension, in the absence of a plea of guilty I would have thought a ten year total term would be appropriate. After giving a discount and taking special circumstances into account, the prisoner is sentenced to a non-parole period of four years commencing 17 June 2005 and expiring 16 June 2009, and a total term of seven and a half years expiring 16 December 2012.

70 Counts 3, 4, 5, 6, 7, 8, 10, 11 and 16 all relate to aggravated robberies committed between 16 April and 14 June 2005. The circumstances of each of these robberies were similar. Because this prisoner has a previous record of conviction for armed robbery, notwithstanding the plea of guilty, the sentence indicated in Henry would be manifestly inadequate for a person who was not suffering from a mental illness. In such a case, in the absence of an early plea of guilty for each offence, a non-parole period of seven and a half years, and a total term of ten years would be appropriate. The prisoner’s mental illness, both reduces the weight to be given to the principle of general deterrence, and constitutes special circumstances because of the additional burden imposed on him in prison. The fact that he will be held in segregation is also a special circumstances. As I say, he has pleaded guilty at the first opportunity and he is entitled to a maximum discount of twenty-five per cent because of the utilitarian value of the plea. He has also shown some remorse.

71 On each of counts 3, 4, 5, 6, 7, 8, 10, 11 and 16 the prisoner is sentenced to a non-parole period of four years commencing on 17 June 2007, and expiring 16 June 2011. There will be a total term of seven and a half years, expiring on 16 December 2014; those sentences are to be served concurrently.

72 Count 9 relates to robbery with malicious infliction of actual bodily harm, and the Form 1 offences, which include other violent offences, are to be taken into account on this count. Again, the plea of guilty to this offence at the earliest opportunity, and he also admitted most of the Form 1 offences. The utilitarian value of the plea is significant. If he had not pleaded guilty I would consider a total term of twelve years would be appropriate, but he is entitled to a full discount.

73 On that count he is sentenced to a non-parole period of five years commencing 17 June 2008, and expiring 16 June 2013. The total term is nine years, expiring 16 June 2017.

74 The offence of escape lawful custody must be accumulated on the last sentence to expire. This escape is particularly serious because of the prisoner’s previous conviction for the offence, although because of his mental illness general deterrence does not carry the same weight as it would in the case of a person who is not mentally ill. The courts must generally send a very clear message that escape from lawful custody is a serious offence. But where the prisoner is mentally ill, that factor carries less weight. Again, the prisoner is entitled to a full discount for his plea of guilty. But for the plea of guilty, the sentence would be a total term of between five and six years. I would, in other circumstances, have imposed a non-parole period of two years, but because of the principle of totality, the non-parole period in this case will be one year.

75 The prisoner is sentenced to a non-parole period of one year, commencing 17 June 2013, and expiring 16 June 2014, a total term of four years, expiring 16 June 2017.

76 It follows, that the first date upon the prisoner is eligible for release on parole is 16 June 2014.

77 I am not going to make a compensation order in this matter. It is not that Mr Eatts should not compensate the victims, but there will be no point in making a compensation order, he is going to be in gaol for a long time. He has no money, and there is no point in making an order which cannot ever be effective.

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