R v Forbes

[2024] NSWDC 270

District Court

New South Wales

Medium Neutral Citation:

R v Forbes [2024] NSWDC 270

Hearing dates:

28 June 2024

Date of orders:

5 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender is convicted of the offences.

(2)   I impose a sentence of imprisonment 17 years to expire on 8 May 2039.

(3)   I impose a non-parole period of 10 years to expire on 8 May 2032.

(4)   The earliest date the offender is eligible to be released on parole is 8 May 2032

(5)   I make orders in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.

Catchwords:

CRIME – sentence following guilty verdicts - specially aggravated break and enter with intent to commit serious indictable offence – armed robbery with offensive weapon in company – armed with a dangerous weapon – take and detain person in company with intent to obtain advantage

Legislation Cited:

Crimes Act 1900, ss 86(2), 97, 112(3)

Crimes (Sentencing Procedure) Act 1999, ss 3A, 53A

Cases Cited:

De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32

DR v R [2022] NSWCCA 151

Dungay v R [2020] NSWCCA 209

Hall v R [2021] NSWCCA 220

Hesketh v R [2021] NSWCCA 262

Hesketh v R [2021] NSWCCA 262

R v Henry (1999) 46 NSWLR 346

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Newell [2004] NSWCCA 183; R v Speechley [2012] NSWCCA 130

Van Der Baan v R [2012] NSWCCA 5

Category:

Sentence

Parties:

Rex
Daniel Forbes

Representation:

Counsel:
Mr I Wallach (Offender)
Mr D Coulton (Crown)

Solicitors:
Department of Public Prosecutions (NSW) (Crown)
Nyman Gibson Miralis (Offender)

File Number(s):

2021/00130975

Publication restriction:

Nil

Judgment

1. The offender is to be sentenced, having been found guilty by a jury verdict, following a trial at Nowra District Court, for the following offences: –

1. Count 1 – Specially aggravated break and enter and commit serious indictable offence, being armed robbery in company, while armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900.

2. Counts 2 - 7 – Six counts of detain for advantage in company contrary to s 86(2)(a) of the Crimes Act 1900.

2. Count 1 carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.

3. Counts 2 - 7 carry a maximum penalty of 20 years imprisonment with no standard non-parole period.

4. The maximum penalty, and standard non-parole period for Count 1, and the maximum penalty for Counts 2 - 7 act as a sentencing guidepost and reference point.

Agreed facts for sentence

5. Consistent with the verdicts of guilty, the parties have agreed that the Court could be satisfied beyond reasonable doubt of the following facts for the purpose of sentencing.

6. The offences took place at Sussex Inlet RSL club which is a single-story building located in the town of Sussex Inlet adjacent to the Sussex Inlet waterway. There is a fenced outdoor area on the eastern side of the club which is only accessible to patrons of the club via glass double doors. There is no external access to this outdoor area.

7. The managers office contained a 3 m x 2 m safe which could be locked by a key/tumbler. In October 2018 the offender’s brother commenced working at the club and remained working there until the time of the offending.

8. Leading up to the offending on 25 July 2019 the offender attended the club, although he resided in Wollongong, on six occasions between 21 April 2019 and 16 June 2019.

9. The offender was in arrears with respect to his rental unit in Wollongong to the extent of $7,600, which had been the subject of orders made by the NSW Civil and Administrative Tribunal (NCAT). The offender failed to pay the outstanding rental arrears as required by the NCAT orders. On 25 July 2019, being the day of the robbery, the offender was advised by the real estate agent that it would be seeking immediate termination of the tenancy as well as orders to garnishee his wages. An email further advised that the offender would be listed on the tenancy database which would prevent him from leasing another property in the ensuing three years. The offender’s bank records included an account which was used for the payment of rent where transactions did not proceed due to insufficient funds. On the day the robbery the offender had a balance of 0.09 cents.

10. On the day of the robbery the offender purchased two sledgehammers from Bunnings, Wollongong.

11. By 10:35pm on 25 July 2019, the club had closed, although six members of staff, including the duty manager, remained.

12. At around 10:56 PM, the offender and his unidentified co-offender entered the perimeter fence of the outdoor area. The offender was in possession of a sledgehammer whilst the co-offender was in possession of a sawn-off double-barrelled shot gun or imitation, together with a second sledgehammer. Both offenders were wearing balaclavas, black sunglasses and black gloves. The offender was also carrying a black gym bag.

13. The offender and his co-offender smashed the external glass doors with their sledgehammers before securing entry into the club. The duty manager, Emma Thompson, was in the manager's office. In response to one of the staff members yelling that the club was being robbed all staff members locked themselves into the manager's office while one staff member, Neil Gorry, remained outside the office. Another staff member, Gay Griffin hid underneath the desk in the office with a crate containing cash takings earlier removed from the poker machines. When confronted by the offender, Mr Gorry denied knowledge of the location of the staff and denied he was able to open the locked manager’s office. The co-offender grabbed Mr Gorry by the arm and he was forced to sit on a stool in front of a poker machine in the main gaming area. The co-offender was holding the sawn-off shot gun which was pointed at him.

14. In the meantime, the offender smashed the office door open with a sledgehammer and knocked into Ms Thompson while she was on the phone to Triple 0. In response to the offender’s demand, all staff, except for Ms Griffin, left the office. The offender demanded that the safe be opened in response to which Ms Thompson returned to the office and opened the safe with the keys in her possession. The co-offender, still armed with the shot gun, demanded all staff remain with Mr Gorry.

15. Ms Griffin, still under the manager's desk, seeing the offender in the safe filling the bag with cash, disclosed her presence. She was escorted out of the manager's office by the offender. The staff were then directed by the offender to enter the safe. Ms Thompson happened to pick up the cordless office phone whilst walking through the office. The co-offender, still holding the shotgun, followed the staff into the office and locked them in the safe.

16. The offender and his co-offender then left the club taking with them $62,345 in cash from the safe. The cash was being carried in a bag by the offender.

17. One of the staff members alerted his spouse to the fact that they were locked in the safe. Consequently, the general manager of the club, in the company of the spouse, drove to the club and released the staff from the safe. This was enabled by reason of the keys being left in the keyhole to the safe. The staff were locked inside the safe from approximately 11:00pm to 11:20pm.

18. At 4:45am on 26 July, the morning after the robbery, the offender was captured on CCTV entering the lift of his unit complex holding a green Woolworths shopping bag. Later that same day the offender purchased a television from a local outlet for $1,888, paying by way of cash. CCTV from the offender’s unit complex showed the offender in the lift with his brother Shane Moss taking the television to the floor where his unit was located. On the same day, the offender deposited $15,000 in cash directly into the landlord's bank account.

19. The offender later denied any involvement in the robbery in an intercepted telephone call with his mother in October 2019. During that call the offender volunteered the fact that his phone history would reveal that he was nowhere near Sussex Inlet on the night of the alleged robbery. He further reinforced the fact that his phone records, which would be readily available to investigating police, would exculpate him from any involvement. He further referred to surveillance cameras in the apartment where he lived.

20. The offender's telephone records demonstrate calls and messages on the day of the robbery. However, from 4:02pm on 25 July 2019 until 2:15am the following morning there were no calls or messages sent from the offender’s phone. There were however unanswered calls between 4:10pm and 5:52pm on the evening of the robbery. Location data revealed that the phone remained connected to telephone towers in the Wollongong area.

21. When the offender was arrested in May 2021 listening devices installed at the Tweed Heads police station recorded a discussion between the offender and the person with whom he was arrested, referencing the purchase of the television on the day following the robbery and suggesting that the source of funds was other than the robbery. Further, the offender asserted that ‘our phone records show that we are not clearly down there.’

Offenders’ criminal history

22. The offender's criminal history commences in 1993 as a minor with convictions for property offences. The offender was thereafter convicted of various traffic related offences including driving whilst cancelled, driving unregistered vehicles, driving whilst disqualified and state false name and address. There are further convictions for various property related offences including goods in custody, obtain money by deception and receive dispose of stolen goods.

23. In 2007 the offender was convicted of aggravated break and enter to commit serious indictable offence for which he was sentenced to a period of imprisonment of over six years. That offence related to the ram raid and theft of an ATM at Bowral. Following his release the offender committed further driving offences, property offences and offences relating to damaging property. The last of the offending occurred in 2012.

Subjective material

Affidavit of Sharon Forbes

24. Sharon Forbes is the offender's mother. She observed that the offender's biological father “was not a very nice person". He started having affairs with other women when the offender was relatively young, and this continued over a period of some 9 years. The offender did not have a good relationship with his biological father. He was not affectionate and would drink alcohol to excess. The offender’s father was particularly hard on him and would be subjected to punishment including smacking even if not involved in any poor behaviour. Ms Forbes also referred to there being considerable domestic violence in the home with a lot of “pushing and shoving" and the offender and his siblings would witness the verbal and physical abuse. She considered that witnessing this violence affected her children, including the offender, in their teens.

25. Ms Forbes referred to the passing of her daughter, the offender’s sister, shortly before her 20th birthday. Ms Forbes attested to the significant impact this had on the offender in circumstances where he was particularly close to his sister.

26. Following her passing the offender became depressed and resorted to drinking and was at times, according to the offender’s friends, suicidal. Ms Forbes also referred to the offender informing her at the age of 16 that he had been molested by a scoutmaster in his younger years. She was unsure as to when the offender started using drugs although she acknowledged it was when he was young. There was an occasion where the offender passed out through the use of drugs. Ms Forbes also referred to being in a long-term relationship at the age of 18. They subsequently separated; the partner married the offender's first cousin. This also had some impact on him.

Report of Dr Richard Furst

27. The offender was assessed by Dr Furst by audiovisual link from the Correctional Centre on 14 May 2024. Dr Furst had available the indictment, sentence facts, criminal history and corrective services records. He referred the offender being a single male with no children who lived on the Gold Coast and Brisbane in recent years, operating a jet ski workshop service business. He noted that his father was an alcoholic and also used cannabis. There was domestic violence in the home and, following his parents’ separation, was raised by his mother with his younger siblings. There was a reference to being sexually abused between the ages of 10 and 11 whilst attending scouts. He described feeling confused about what had happened and only came to appreciate the wrongfulness of the abuse in his teenage years. As a consequence, he felt both ashamed and anxious and resorted to drug use in an effort to cope. This drug use continued throughout his teenage years and into his 20s and 30s. The offender told Dr Furst that he was incarcerated between 2007 - 2010 for a ram raid offence. He apparently progressed well through the custodial system and was ultimately granted weekend release.

28. Dr Furst referred to the death of the offender’s sister and his distress at being unable to resuscitate her. Her passing was a source of distress and grief for the offender and some guilt given the circumstances of her passing. He relapsed back into drugs following her death and was involved in a relationship with a nurse where they used drugs together. Dr Furst referred in some detail to the judgment of the Court of Criminal Appeal following an appeal from his sentence in relation to the earlier offences of aggravated break and enter and commit serious indictable offence. This included references to reports of a psychologist and psychiatrist upon which the offender relied in his earlier sentence hearing. The offender told Dr Furst that around the time of the subject offences he was using cocaine daily with his girlfriend. Further, they would play the poker machines, spending anywhere between $500 - $1,000 in a typical night out.

29. The offender stated that he had “cleaned himself out" during the following 19 months in custody on remand awaiting trial. Further, when released on bail, he returned to working in Brisbane where again he remained drug free.

30. Upon his return to custody following the guilty verdict the offender referred to being assaulted whilst in prison. As a consequence, he was bruised, suffered two broken teeth, suffering headaches and blackspots in his right eye. He reported suffering from high levels of anxiety and nervousness around other people especially other inmates since the assault. He has since commenced working in clerical jobs whilst incarcerated.

31. The mental state examination was generally unremarkable although there were descriptions of anxiety following the recent assault. The offender was committed to ongoing abstinence from drugs and wanted to return to work upon his release. He is open to trauma informed counselling in relation to the reported child abuse issues.

32. Dr Furst noted that childhood sexual abuse and other forms of sexual assault were strongly correlated with mental disorder, including, but not limited to, depression, anxiety, post-traumatic stress disorder, alcohol abuse, substance use disorders. Further, he observed that sexual abuse and emotional abuse in childhood were associated with significantly higher rates of binge drinking, drug dependence and behaviour disorders which were typically commenced during adolescence. Dr Furst was of the opinion that the long-term effects of child abuse and violence in the family home predisposed the offender into developing a substance use disorder with its onset in his early teens. Further, his father's alcoholism and drug use suggested the drug use was normalised as a maladaptive means of coping with stress from an early age. Further that the offenders drug use and addiction was largely the product of his genetic vulnerability to drug addiction, coupled with the traumatic effects of parental neglect, domestic violence, exposure in childhood sexual abuse when attending scouts. He was further predisposed to drug use in the context of his sister's death. Dr Furst “suspected" that the offender's involvement in the offending was potentially motivated by financial gain and “probably also his drug addiction at the time".

33. As to any mental illness or condition which the offender was suffering at the time of the commission of the offences, Dr Furst considered that he met the diagnosis for substance use disorder. Dr Furst considered that the offender’s likely engagement in proposed treatment/counselling would lead to reasonable prospects of being successfully rehabilitated. However, his risk of reoffending related largely to the offender’s capacity to maintain abstinence from drugs of abuse and engage in relevant treatment. The offender’s incarceration is likely to generate further anxiety and trauma given the recent assault. It is recommended that he engage in various treatments upon his release.

Department of Corrective Services

34. The offenders relied on an inmate application form wherein he be reclassified to a working prison so as to avoid being in an environment which would cause stress. That he would benefit from a working environment. I have also had regard to the records documenting the offender’s time since returning to custody.

Crown submissions

35. The Crown referred to the relevant principles in the assessment of objective seriousness of the offences. It was noted that armed robbery offences escalated in seriousness according to how the weapons were used. It was contended that Count 1 was a serious example of a serious indictable offence, namely robbery armed with a dangerous weapon. The Crown also referred to other relevant factors in assessing objective seriousness for Count 1 by reference to the relevant guideline judgment in R v Henry (1999) 46 NSWLR 346.

36. The Crown further addressed on objective seriousness of the remaining Counts of detain for advantage with relevant factors including the period and circumstances the detention, the persons being detained and the purpose of the detention.

37. The Crown contended relevant aggravating factors included the offender's previous record of convictions including those for serious offences, the offence was part of a planned organised criminal activity, and the offence was committed for financial gain. It was contended that there were no mitigating factors.

38. Ultimately, the Crown contended that aspects of both specific and general deterrence played a significant role. The only appropriate sentence was one of full-time imprisonment. The Crown contended that regardless of structure of the sentence partial accumulation was required to recognise the harm done to all the victims. In further written submissions, the Crown noted the reference in the report of Dr Furst to the “Bugmy principle". Whilst it was conceded that the offender’s subjective case were relevant on sentence, there would be no reduction in the moral culpability given the circumstances.

Offender’s submissions

39. The offender traversed the relevant agreed facts and ultimately contended that with respect to Count 1 the objective seriousness fell below the “average range" due to the limited low level of actual violence and limited use of weapons. It was further contended that the objective seriousness of Counts 2 to 7 “fell below the average range" due to the relatively limited expected duration of the detention. The offender’s written submissions contended that planning and financial gain were “inherent and closely associated with the robbery offence" and therefore would not be considered as aggravating features. However, in oral submissions Counsel for the offender conceded that financial gain was indeed an aggravating factor. It was conceded that there were no mitigating factors.

39. Reference was made to the opinion of Dr Furst in the written submissions and the evidence of the offender’s mother. In oral submissions Counsel for the offender conceded that, whilst the offender’s subjective circumstances were highly relevant in instinctive synthesis of sentencing, they were not of such significance that the offender’s moral culpability would otherwise be reduced. It was conceded that Dr Furst’s detailed reference to the subjective evidence in the offender’s appeal from his previous sentence was of limited weight absent of the report being in evidence. Further it was of limited weight given the absence of any direct history provided by the offender to Dr Furst traversing the subjective issues contained in the appeal judgment. At best, it provided context to the previous offending.

40. The offender contended that a finding of special circumstances would be made into the reduction of the standard non-parole period that would otherwise be applicable.

Consideration

42. Count 1 is an offence of break and enter and therein commit a serious indictable offence in circumstance of aggravation (being in company with another person) and in circumstances of special aggravation (being armed with a dangerous weapon).

43. As Fullerton J (with whom Beasley P and Adams J agreed) obsered in De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32 (“DeJong”) at [61]: –

“The objective seriousness of a breach of section 112(3) will necessarily vary depending first upon the particular serious indictable offence nominated in the charge as the offence committed after the premises were broken into and entered and the maximum penalty provided for that offence".

44. The serious indictable offence is robbery armed with an offensive weapon contrary to section 97 of the Crimes Act 1900 which is punishable by a term of 20 years imprisonment.

45. The offending was captured on a series of CCTV cameras installed in various positions around the premises. A collection of the images captured was in evidence at the trial (Exhibit 3).

46. The offending involved the offender, and his accomplice, repeatedly smashing the external glass doors of the premises with large sledgehammers. Whilst this is occurring staff inside the club are seen to be scurrying through the gaming area and retreating into the manager's office. The initial break and entering was particularly violent and would undoubtedly have been terrifying for the staff inside the club. Their fear would have been heightened by the fact that the co-offender was armed with what appeared to be a double-barrelled sawn-off shot gun.

47. The robbery involved further violence with the offender smashing his way through the locked door of the manager's office where the staff were hiding, no doubt with the thought that the office was a safe haven for them. The act of repeatedly striking the locked door before gaining entry would have caused further heightened fear and terror for the staff hiding inside.

48. In assessing the objective seriousness, the circumstances of aggravation and/or special aggravation, and the possible “interplay of other aggravating or mitigating factors", are also relevant: DeJong at [61]. The circumstance of aggravation particularised in the indictment was that the offender was in the company of another person.

49. I am satisfied that a further circumstance of aggravation was that the offender knew there were persons in the club premises at the time the offence was committed, a circumstance conceded by counsel for the offender. The offence was committed shortly after the club had closed; all patrons having left. Given the timing of the offence, the offender would have been aware that staff would have still been in the club at that time. Indeed, the timing of the break and enter coincided with the closing of the club at a time when staff were still present. This provided access to the office and safe where cash would have been secured. However, it must also be acknowledged that a further circumstance of aggravation, being intentional or reckless infliction of actual bodily harm, was absent.

50. The circumstance of special aggravation was being armed with a dangerous weapon, being a sawn-off shotgun. Whilst the Crown was unable to establish beyond reasonable doubt that the weapon was capable of being discharged, its presence would have clearly instilled significant fear in all the staff. However, it must be acknowledged that other circumstances of special aggravation including wounding and/or infliction of grievous bodily harm were absent.

51. I am satisfied that the robbery was a particularly serious example of the range of offences contemplated by this section, although not the most serious. The offending resulted in significant damage from the use of sledgehammers to gain entry to the club and managers office, clearly involving the use of violence. However, any direct physical contact with the victims was limited to the co-offender grabbing one of the victims by the arm and escorting him to the gaming area. Further, one of the victims was knocked in the process of the offender gaining entry to the locked managers office. The evidence is insufficient for the Court to be satisfied beyond reasonable doubt that this physical contact was deliberate.

52. The offending was far from opportunistic or spontaneous. It clearly involved a significant degree of planning. I am satisfied beyond reasonable doubt that the offender had purchased the sledgehammers earlier in the day for use in the robbery.

53. A significant amount of cash was stolen in the robbery, none of which has been recovered.

54. I am satisfied beyond reasonable doubt that the offender took the deliberate step of leaving his mobile phone in the Wollongong area as an attempt at exculpation. This finding is supported by the offender’s statements made to his mother that his phone history would show where he was on the night and the statements recorded at Tweed Heads police station that phone records would show that they were not in the area at the time of the robbery. There was clearly a further degree of planning by reason of the offender and his accomplice dressing in such a manner to avoid detection by CCTV cameras and/or the staff at the club.

55. In assessing the objective seriousness for the offence of detain for advantage factors such as the period of detention, the circumstances of the detention, the persons being detained, and the purpose of the detention are relevant considerations: R v Newell [2004] NSWCCA 183; R v Speechley [2012] NSWCCA 130.

56. Counts 2 to 7 involve each of the victims being held in the gaming area of the club before being escorted by the offender, and his accomplice, into the safe. The victims were thereafter locked in the safe and were released relatively quickly thereafter by reason of one of the victims fortuitously retrieving the cordless office phone, used to alert a relative of the staff member.

57. The circumstance of aggravation is that the offence was committed in the company of another person. However, it must be acknowledged that there was no infliction of actual bodily harm during the detention.

58. Whilst the overall detention was relatively short lived, it clearly would have instilled significant fear in the victims whilst being detained in the precincts of the gaming room before being locked in the safe. I am satisfied that irrespective of the use of the phone by staff members, the detention would still have been relatively short lived in that the alarm would have been raised when one or more of the club employees would not have arrived home at their expected time. Further, I accept that the leaving of the keys in the safe door was consistent with the intended purpose of the detention; to enable the offender and his accomplice sufficient time to flee before authorities were alerted. Given the wide range of circumstances contemplated by this offence, I am satisfied that the circumstances fall well below the most serious, although certainly not at the lowest end of seriousness.

59. The Crown contends that an aggravating factor is the offender’s previous record, and relevantly, offences of serious personal violence, as well as aggravated break and enter in company. The offender contends that whilst the offenders previous record disentitles him leniency, it would not be considered an aggravating factor for the purposes of section 21A of the CSPA.

60. In Van Der Baan v R [2012] NSWCCA 5, Hall J (with whom Beazley JA and Harrison J agreed) observed at [30]: -

“… (5) Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) (supra) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society".”

61. Whilst a substantial proportion of the offender’s prior offending are driving and traffic related, the offender was convicted previously of the offence of aggravated break and enter and commit serious indictable offence for which he was sentenced to a period of imprisonment of 6 years 8 months. Whilst I am not satisfied that the offender’s criminal record is of itself an aggravating factor for the purposes of section 21A, it disentitles him to leniency. Further, I am satisfied that the offender’s prior criminal record increases the weight to be given to retribution, personal deterrence (which means imposing a sentence that will deter the offender from further offending) and protection of society.

62. I have already made a finding as the level of planning involved in the offending, although I am not otherwise prepared to find as an aggravating factor that the offence was part of a planned organised activity.

63. However, an aggravating factor is that the offence was committed for financial gain. At the time of the offending the offender was in a poor financial position. The offender had no available funds in circumstances where he had been given notice that he was to be evicted from his rental unit. The day after the offences were committed the offender, in addition to paying his rental arrears, deposited an additional cash sum into the landlord's bank account paying his rent in advance. I am satisfied beyond reasonable doubt that the offenders purchase of a new television was from the proceeds of the robbery.

64. I am satisfied that the offender had a difficult upbringing given his alcoholic father. He was exposed to domestic violence involving his parents and was personally subjected to undue discipline, at times involving physical violence. I accept the history provided by the offender to Dr Furst that he was subjected to sexual abuse between the ages of 10 and 11 at the hands of a scoutmaster and later resorted to drug use to cope.

65. Whilst I accept there is an apparent inconsistency as to the circumstances surrounding his younger sister’s death, I am satisfied that her passing did have an impact on the offender such that he again resorted to drug use.

66. Dr Furst refers at length to details of the judgment of the Court of Criminal Appeal arising from his sentence in the District Court for aggravated break and enter and commit serious indictable offence in company. The matters traversed by Dr Furst were not the subject of any history provided directly by the offender to Dr Furst as part of his own assessment. Further, Dr Furst’s recording of an apparent history and diagnosis arising from psychological and psychiatric assessments completed as part of this earlier sentence appear to be extracted from the judgment of the Court of Criminal Appeal. It is apparent that Dr Furst did not have copies of those reports. It is difficult to discern from Dr Furst’s report the significance of the earlier Court of Criminal Appeal judgment.

67. Certainly, the earlier diagnosis of Drs Jacmon and Westmore do not have any correlation to Dr Furst’s own diagnosis. Indeed, the only diagnosis made by Dr Furst was that at the time of the offending the offender was suffering from a substance use disorder.

68. However, I accept Dr Furst’s opinion that the offender’s experience of childhood sexual abuse and violence in the family home predisposed him to developing a substance use disorder with its onset in his early teens. It follows that I accept the opinion of Dr Furst that the offender’s drug use and addiction was largely a product of his genetic vulnerability to drug addiction, coupled with the traumatic effects of parental neglect, domestic violence exposure and childhood sexual abuse.

69. Dr Furst’s opinion that the offending was motivated by financial gain is beyond challenge. Such a finding has already been made. However, Dr Furst’s conclusion that the offending was also probably motivated by his drug addiction is more problematic. Whilst there is no doubt Dr Furst obtained a history that at the time of his offending he was using cocaine on a daily basis with his partner, he also obtained a history that the offender, with his partner, was spending somewhere between $500 - $1,000 on the poker machines on a typical night out. Whilst it is likely that the offender’s drug use might have contributed to his financial difficulties, there is insufficient evidence to find on the balance of probabilities that his drug addiction of itself was a motivating factor in the commission of the offences.

70. Dr Furst refers to the offender’s exposure to alcoholism and drug use being normalised as a maladaptive means of coping with stress in suggesting that “Bugmy" factors were relevant to the offender. I am not satisfied that the offender’s moral culpability is reduced by reason of these issues. As much was conceded by counsel for the offender in closing submissions. The evidence does not enable the Court to find on the balance of probabilities that there was any relevant causal connection between the offender’s adverse experiences in his youth and the offending for which the offender is to be sentenced. As Bellew J (with whom Ward P and R A Hulme J agreed) observed in DR v R [2022] NSWCCA 151 at [37], having cited with approval the observations of Adams J in Dungay v R [2020] NSWCCA 209: -

“[37] There are two particular principles which emerge from these authorities. The first, is that the existence of a causal link between an offender’s disadvantaged background and the offending will inevitably support a finding that such offender’s moral culpability is reduced. The second, is that even where there is no such causal link, and thus no reduction in moral culpability, an offender’s disadvantaged background remains a factor which must be given full weight in the process of instinctive synthesis which is applied in determining an appropriate sentence. It is by reference to these principles that the present ground of appeal must be considered and determined.”

71. That said, I am satisfied that the offender’s upbringing, exposure to sexual abuse and the tragic passing of his sister were all contributors to his drug use over the years and that full weight will be given to these issues in the process of instinctive synthesis when determining the appropriate sentence.

72. Considering the purpose of sentencing provided in section 3A of the Crimes (Sentencing Procedure) Act 1999 (CSPA), personal and general deterrence looms large in the sentencing process. As previously observed, the offender has committed a previous serious offence of a similar nature. Personal deterrence is significant. However general deterrence similarly has a significant role to play in the sentencing process. This type of violent behaviour subjected on persons who are otherwise entitled to feel safe in their workplace must be denounced in the strongest terms. The sentence must reflect an adequate punishment given the level of criminality involved and protection of the community from the offender is also relevant. There must be a clear recognition of harm not only perpetrated on the victims of the offenders’ crimes but also on the community generally.

73. However, the sentence must also consider promotion of the rehabilitation of the offender. Dr Furst noted the offender's report of abstinence from drug use since November 2021 and a motivation to address his clinical/criminogenic issues, particularly in relation to addiction issues and childhood abuse/trauma. Self-evidently, Dr Furst noted that the offender’s risk of reoffending largely related to his capacity to maintain abstinence from drugs. Given the offender’s lengthy criminal history, and his previous psychiatric assessment arising from his offending, it is apparent that the offender has not previously taken steps to address his drug use and offending generally. Whilst it would be hoped that the more recent assessment by Dr Furst has reinforced for the offender the need to readdress these issues. I take into account the offender’s requests to be accommodated at a working prison and engage in meaningful work is a positive indicator.

74. I consider that the offenders’ prospects of rehabilitation are guarded.

75. However, I accept that a finding of special circumstances be made, such that there ought to be an adjustment of the statutory ratio of the non-parole period. Such a finding is justified given the offenders ongoing drug use and the availability of further support in the community to address his drug use and other issues traversed in the report of Dr Furst. Further, the hardship likely to be suffered by the offender including the consequences of the recent assault committed upon him.

76. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

77. With respect to Count 1, the appropriate indicative sentence is 12 years imprisonment with a non-parole period of 7 years.

78. With respect to Count 2, the appropriate indicative sentence is 4 years imprisonment.

79. With respect to Count 3, the appropriate indicative sentence is 4 years imprisonment.

80. With respect to Count 4, the appropriate indicative sentence is 4 years imprisonment.

81. With respect to Count 5, the appropriate indicative sentence is 4 years imprisonment.

82. With respect to Count 6, the appropriate indicative sentence is 4 years imprisonment.

83. With respect to Count 7, the appropriate indicative sentence is 4 years imprisonment.

84. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).

85. It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.

86. With respect to Counts 2 – 7 the offending involved the same criminal conduct although there were six individual victims. Accordingly, whilst there must be a significant degree of concurrency as between these offences, the aggregate sentence must also reflect some element of accumulation given the fact that each Count involves a difference victim. As between Count 1 and the remaining Counts, the total offending occurred over a relatively short period and there is a degree of similarity, albeit not significant. Accordingly, the aggregate sentence should reflect a modest allowance for concurrency whilst acknowledging the distinctly different criminality involved in the respective offences.

71. In all the circumstances an appropriate aggregate sentence is 17 years imprisonment with a non-parole period of 10 years.

72. The offender has spent a totally of 788 days in custody solely referrable to the offences for which he is to be sentenced. Accordingly, the sentence is to be backdated reflecting the total time spent in custody.

Orders

1. The offender is convicted of the offences.

2. I impose an aggregate sentence of imprisonment of 17 years to expire on 8 May 2039.

3. I impose a non-parole period of 10 years to expire on 8 May 2032.

4. The earliest date the offender is eligible to be released on parole is 8 May 2032

5. I make orders in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.

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Decision last updated: 05 July 2024