R v Heath

[2014] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:

R v Heath [2014] NSWDC 351

Decision date:

05 November 2014

Jurisdiction:

Criminal

Before:

Cogswell SC DCJ

Decision:

(1) Under s 11 of the Crimes (Sentencing Procedure) Act 1999 the offender is found guilty and convicted of the offence.

 

(2) Proceedings adjourned part heard to Thursday 18 December 2014 at 10am in Sydney. The purpose of the adjournment is to assess the offender’s capacity and prospects for rehabilitation and for the purpose of allowing him to demonstrate that rehabilitation has taken place.

 

(3) The offender is granted bail until that date on the following conditions:

(i) To remain abstinent from prohibited drugs and alcohol;
(ii) To have regular urine drug screens;
(iii) To have regular mental health care monitoring by his general practitioner;
(iv) To comply with any recommendations or treatments by his general practitioner including but not limited to medication compliance, attendance at appointments and participation in individualised or group therapy.

Catchwords:

CRIMINAL LAW - particular offences - assault with intent to rob whilst armed with an offensive weapon - under the influence of amphetamines - imitation gun - disrupted youth - no prior criminal record - early plea of guilty - pre-sentence report - low to medium risk of reoffending - procedure - adjournment for purposes of assessing capacity and prospects for rehabilitation - conditional bail granted

Legislation Cited:

Crimes Act 1900, s 97(1)
Crimes (Sentencing Procedure) Act 1999, s 11
Mental Health (Forensic Provisions) Act 1990, s 32

Category:

Procedural and other rulings

Parties:

Regina (Crown)
Daniel Owen Heath (offender)

Representation:

Counsel:
J Fitzgerald (offender)

  Solicitors:
NSW Officer of the Director of Public Prosecutions (Crown)

File Number(s):

2014/00046640

Judgment

1. Daniel Heath is a young man who turned just twenty earlier this year. He has had a disrupted youth. I say that because he got himself involved in alcohol and drugs in his teenage years. He started to use cannabis at fourteen and taking alcohol at fifteen. He left school and started an apprenticeship as a boilermaker but, as a presentence report says, “lost this position due to illicit substance abuse”.

2. His personal circumstances are set out at length in a helpful report by the psychiatrist Dr Christopher Bench. I have no reason to doubt the information contained in that report. He dealt with his difficulties and challenges by drinking too much and by the daily use of cannabis.

3. In January this year he had a car accident. It was his fault. He ended up with debts of over $8,000. He reacted to this by starting to use amphetamines. As the Court well knows, the effect of that was to become very quickly addicted.

4. Under the influence of alcohol and amphetamines, and weighed down by his financial obligations, he spontaneously decided one night to rob the local takeaway noodle store in Tanilba Bay where he lives.

5. He turned up with a machete and an imitation gun. He pointed them towards the proprietor Ms Feng. Ms Feng told him that he could take the money and as he walked towards her she turned and ran away. Daniel Heath then chased her, saying, “You get the money for me.” She agreed to do that. He again pointed the machete at her and they walked towards the cash register again before Ms Feng again ran away. Again Daniel Heath chased her. Ms Feng was screaming as she ran. Then she stopped, turned and, as the agreed facts say, “stood still and screamed in fear. She raised her fists. The offender stopped, turned and ran away.” However, Ms Feng was not to be stopped. She “went back inside the store and armed herself with a knife.” The police arrived and found that Daniel Heath had left his backpack with his mobile phone.

6. They called on him at his home and he admitted doing the crime. He said that he had gone because “he wanted money”. He had researched the internet on how to make an imitation gun “from paper and plastic tape”. He had covered his face so that he would not be recognised. The facts record that his “motivation was to obtain money to pay fines flowing from a recent car accident.” He acknowledged what he had done as “the stupidest thing to do ever” and acknowledged the fear that he must have put into Ms Feng.

7. As a result of that behaviour, he was charged with assaulting Ms Feng with intent to rob and armed with an offensive weapon. That is an offence against s 97(1) of the Crimes Act 1900 and carries a maximum of twenty years imprisonment.

8. In other words, Daniel Heath, having got through his troubled life without any serious incident up till then, found himself charged with a very serious crime. Up till then he had no criminal record. Since then he has pleaded guilty to an offence of stalking and intimidating someone and possessing a prohibited drug. He got a good behaviour bond and a recorded conviction. His progress on the good behaviour bond is regarded as satisfactory.

9. Daniel Heath lives with his grandparents in Cessnock in a positive and supportive relationship and also has a good relationship with his own parents.

10. He is assessed as a low to medium risk of reoffending by Sanna Hutchinson, the author of the presentence report. She goes on to say this-

“Mr Heath acknowledged the seriousness of his offence, and reported made efforts to change his circumstances, including relocating away from past poor associates and ceasing drug use. Whilst it is positive the offender has taken some initiatives, it would appear he would benefit from community based interventions to assist with relapse prevention and developing pro social skills.”

It is thought that he would benefit “from a period of supervision by Community Corrections” and strategies to help him with alcohol and drug intervention and securing employment.

11. Dr Bench diagnosed Daniel Health with a depressive disorder, a social phobia and polysubstance dependence. His diagnoses are such that were he in the Local Court he could have been dealt with, according to Dr Bench’s opinion, under s 32 of the Mental Health (Forensic Provisions) Act 1990.

12. I should add that after he was arrested he spent some time in custody, bail refused, which amounts, I am told by Mr Fitzhardinge who appears for the Director of Public Prosecutions, to be 125 days or some four months. Daniel Heath has pleaded guilty to the charge at what Mr Fitzhardinge acknowledges is at an early time.

13. Since being bailed in July he has been on quite strict bail conditions. His mother, who is supportive of him, acknowledges that her son “needs help by way of counselling, programmes, courses and support”.

14. Mr Fitzgerald of counsel, who appears for Mr Heath, has applied to adjourn the sentence proceedings from today to a date next year, with a mention date in between, for the purpose of assessing his client’s capacity and prospects for rehabilitation or demonstrating that rehabilitation has taken place.

15. I am able to agree to such an adjournment under s 11 of the Crimes (Sentencing Procedure) Act 1999. Often such adjournments result in an offender demonstrating rehabilitation or his prospects and coming back to court where the judge imposes a sentence which does not involve fulltime custody. I asked Mr Fitzhardinge his attitude to such an application. He acknowledged that if rehabilitation is demonstrated then a sentence not involving fulltime custody would be an available option.

16. Mr Fitzgerald proposed some conditions for the bail which would accompany the adjournment and I regard those as acceptable.

17. Accordingly, I propose to adjourn these proceedings for mention only.

18. Under s 11 of the Crimes (Sentencing Procedure) Act 1999 I find Daniel Health guilty of the offence. I convict him of that offence. I make an order adjourning these proceedings to Thursday 18 December 2014 at 10am before me in Sydney. The purpose of the adjournment is to assess Mr Heath’s capacity and prospects for rehabilitation and for the purpose of allowing him to demonstrate that rehabilitation has taken place. I grant him bail until that date on the following conditions:

1. To remain abstinent from prohibited drugs and alcohol

2. To have regular urine drug screens

3. To have regular mental health care monitoring by his general practitioner

4. To comply with any recommendations or treatments by his general practitioner including but not limited to medication compliance, attendance at appointments and participation in individualised or group therapy.

HIS HONOUR:   Now, Daniel Health, you have heard what I have said. Mr Fitzgerald suggested I adjourn your case and the prosecution has allowed it. I am adjourning it till December the 18th in Sydney and that is to see how you are going with dealing with your drug and alcohol problems. You are on bail till then. You will get a piece of paper that you have got to sign. You have got to stay off the grog and any prohibited drug. Do you understand that?

OFFENDER: Yes, your Honour.

HIS HONOUR: It is a condition of your bail. You have got to allow yourself to have regular urine screening. You have got to have - allow your GP - do you get on all right with the GP?

OFFENDER: Yep.

HIS HONOUR: Good. Is it a him or a her?

OFFENDER: Him.

HIS HONOUR: You have got to allow him to monitor your mental health and you have got to agree with any recommendations that he makes, including complying with his medication and going along to individualised or group therapy if he recommends that. They are conditions of your bail. We are going to bring you back in December to see how you are going and then probably adjourn it to March. Then if you are still on track in March, you will probably get a prison sentence but it will be suspended or might be some other form of limiting your freedom but not in gaol. That is what Mr Fitzgerald is hoping to be in a position to ask me to do. Do you understand all that?

OFFENDER: Yes, your Honour.

HIS HONOUR: So you are getting a chance. You are a young man who has made a serious mistake at this stage of your life but you are getting a chance from the system to put it right and start again. So good luck.

OFFENDER: Thank you.

HIS HONOUR: There will be a form for you to sign, a bail form, coming along.

19. I direct a transcript of today’s proceedings, including my remarks, to be available to me on or before Monday 15 December 2014.

Decision last updated: 09 September 2015