R v Hoskins

[2021] NSWDC 327

District Court

New South Wales

Medium Neutral Citation:

R v Hoskins [2021] NSWDC 327

Hearing dates:

20 July 2021

Decision date:

20 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 2 years 3 months. Non parole period of 1 year 1 month.

Catchwords:

CRIME – Robbery whilst armed with an offensive weapon- of a service station

MENTAL HEALTH - Criminal proceedings - offender found unfit to be tried offender by District Court - found fit by Mental Health Review Tribunal

SENTENCING - Relevant factors on sentence - guilty plea at first opportunity after offender found fit- mental illness had causative relationship to offence - background of deprivation – sentencing mentally ill offenders - early exposure to drug use and domestic violence - seriousness of offence - guideline judgment - community protection - risk to community - demonstrated progress toward rehabilitation - structure of sentence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act1999

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

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

Callaghan v R [2006] NSWCCA 58

Courtney v R [2007] NSWCCA 195; 172 A Crim R 371

DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Engert v R (1995) 84 A Crim R 67

Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41

Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38

Porter v R [2008] NSWCCA 145

Presser v R [1958] VR 45

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Israil [2002] NSWCCA 255

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

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Nyeasha Rose Hoskins (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr J Hibbard (for the offender)

Solicitors:
Aboriginal Legal Service (NSW/ACT) Limited (for the offender)
Ms K Stanley (for Director of Public Prosecutions)

File Number(s):

2020/00198906

Judgment

Agreed facts

1. In July 2020 Nyeasha Hoskins, then aged 20, was living with her parents in Narooma. At about 5.30pm on 5 July 2020 she went to the Caltex Service Station about 250 metres from her home. She was wearing distinctive clothing. She purchased some items from the console operator, who knew her as a regular customer. She used her keycard to pay for the items. She left and returned home.

2. At about 6.30pm that same evening she returned to the service station. She was wearing the same clothing. She pulled a knife from her pocket and held it towards the console operator. As she did so she said, “Give me the money. Give me the money”. She tried to jump over the counter and its plexiglass screen but failed. She then walked around the counter and said, “Give me the money. Just stand here. Open the till”. She was holding the knife towards the console operator; who opened the till and said, “Take the money”. Ms Hoskins took $1,250 in $50 notes from the till. She left the service station shop with the cash and her knife and returned home.

3. Police soon attended and CCTV footage was reviewed. Police were at the Hoskins’ home by 1am on 6 July 2020. Her parents told police that the offender was suffering from a mental illness that they described as a “psychosis.” Ms Hoskins admitted to police that she had been to the service station at 5.30pm and purchased items but she refused to answer questions about her role in the robbery. Police left the premises, leaving Ms Hoskins with her parents.

4. At 1.53am that morning her mother called police. It was agreed that she and her husband would bring Ms Hoskins to the police station. There Ms Hoskins was advised of her rights. She then took part in an ERISP interview, with her parents present as support persons. She was shown the CCTV footage but declined to answer any questions about the robbery.

5. With her parents’ consent their premises were searched. Police found the clothing that she wore during the robbery and the knife. While the search was taking place Ms Hoskins rang her parents and told them that she had the money. Police searched her and recovered $1,250 in cash from her tracksuit pants.

6. Hoskins was charged with armed robbery: s97 Crimes Act 1900; maximum penalty 20 years.

Ms Hoskins was very unwell

7. There can be no doubt that at the time of the offence Ms Hoskins was acutely psychotic; suffering from paranoid delusions, acute anxiety, thought disorder and persistent auditory hallucinations, all indicative of a schizophrenic illness.

8. When the matter was before the Local Court a real question arose about whether she could understand the court process and was fit to enter a guilty plea. A number of psychiatrists had diagnosed Ms Hoskins with a severe psychiatric illness; so severe that she could not properly participate in criminal proceedings. The matter was referred to the District Court so that that matter could be resolved.

The guilty plea

9. On 22 February 2021 Judge Buscombe found Ms Hoskins unfit to be tried. She became a forensic patient and was referred to the Mental Health Review Tribunal. On 3 May 2021 the Tribunal determined that Ms Hoskins was fit to be tried: s78(b) & s 80 Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

10. Ms Hoskins entered a guilty plea to the armed robbery charge when indicted today. It is accepted that that plea was indicated and entered as soon as she had become fit and the Director of public Prosecutions determined that the matter should proceed to trial. The otherwise appropriate sentence must be reduced by 25% to reflect the utilitarian value of that plea: s25(5) Crimes (Sentencing Procedure) Act 1999.

Criminal history

11. When Ms Hoskins committed the armed robbery she was serving the balance of parole for a reckless wounding and armed with intent to rob offence. She had been released to parole on 19 December 2019. After her arrest on 6 July 2020 her parole was revoked. She served its’ balance until 20 September 2020. She is still in custody.

12. The earlier offence occurred at Narooma on 20 March 2019, when Ms Hoskins was 18. She attacked a young woman with an aluminium pole. She was sentenced to 18 months gaol with a non-parole period of 9 months. That offence in turn was committed while on Community Correction Order for assault. She also has a number of Childrens’ Court matters for offences of violence, including serving a short Control Order.

Personal history

13. Ms Hoskins was born in Narooma and attended the local primary and high schools. There is a history of apparent learning difficulties and a longstanding difficulty with anxiety. She also has a history of alcohol and cannabis abuse since she was 12 years old. She told me she increased her cannabis use after her release to parole in order to cope with the sudden death of her grandfather.

14. Her parents remain in their relationship and were able to attend the hearing via video link. She has three brothers and two sisters with whom she gets along well with. There was however domestic violence in the home when she was a child.

15. She played Ruby League for a local team and her coach says that despite her troubles she is as a proud Aboriginal woman who loves her friends, family and her football. She has the opportunity to play in the next annual NSW Koorie knockout competition. And there is a local AusTag team. Other friends and neighbours who have witnessed her struggles still have a place in their hearts for Nyeasha.

16. She left school in Year 11 and has not worked or studied over the last 2-3 years. The local Wagonga Land Council believes she may be able to gain employment with them as a Ranger. Campbell Page are prepared to assist her finding employment and engaging in programs and accessing housing and other services.

17. Her mother set out some of that history in a letter to me, in which she acknowledged the poor choices made by her and her husband; choices formed and influenced by intergenerational trauma and deprivation. For the past decade she and her husband have made concerted efforts to end the cycle and restore pride and identity to their family. She speaks of her daughter as caring and intelligent but she also notes her growing anxiety and depression. She says she felt helpless as she saw her daughter fall through the gaps given a lack of services available on the NSW South coast.

18. She told me how her daughter was badly affected by the death of her grandfather days after she was released to parole. The community then had to endure that summer’s severe bushfires. Ms Hoskins seemed to be going OK until the COVID-19 pandemic, which heightened her anxiety and depression. It appeared she just couldn’t cope. She says her daughter is ready to do anything necessary to prevent a reoccurrence of her behaviour.

19. Self-medication with drugs and alcohol led to Ms Hoskins’ admission to Bega hospital’s psychiatric unit with acute psychotic symptoms including persecutory delusions and hallucinatory phenomena. She was discharged after 4 weeks on 30 June 2020. Her symptoms were reported to have resolved through treatment with an oral antipsychotic medication, olanzapine.

20. The offending occurred on 5 July soon after her discharge from hospital, while she was still unwell and before her schizophrenia was properly diagnosed or treated. She went into custody on 6 July.

21. On 8 July 2020 Ms Hoskins was seen by Dr Dorrington, a psychiatric registrar with Justice Health. She noted a history of early developmental trauma in a household characterised by domestic violence and parental substance abuse. In Dr Dorrington’s assessment Ms Hopkins presented as psychotic with auditory hallucinations and delusions she was going to be killed.

22. The Mental Health Review Tribunal decision noted a psychiatric review in March 2020 by Dr Alchin and Dr Rae. They found that Ms Hoskins was able to “coherently explain the events that led to the deterioration in her mental well-being…and achieved a sustained period of remission and recovery from her symptoms through continued treatment with anti-psychotics…:” Tribunal decision at [21]-[22].

23. When Dr Alchin reviewed her on 10 March he noted “no evidence to suggest active psychotic phenomena or pervasive mood disturbance…” He told the tribunal she no longer needed an acute mental health bed and had been moved to the ‘stepdown unit: Tribunal decision at [23]-[24].

24. Her GP confirms that on release he will prepare a Mental Health Care plan and arrange referral to a local drug and alcohol service for her.

25. She has spent her time in custody at either Silverwater Women’s Prison in its mental health screening unit or at Dillwynia; most of it subject to COVID restrictions and away from contact with family and friends.

26. In evidence she told me of her commitment to maintaining the stability of her mental health and not committing offences in the future. She expressed appropriate remorse in letter she wrote to the console operator. She promised the court and her family she would engage with drug rehabilitation and not smoke cannabis again.

Psychiatric assessments 2020

27. I have the benefit or three psychiatric reports from:

1. Dr Elliot (3 September 2020),

2. Dr Furst (18 October 2020) and

3. Dr Eagle (November 2020).

28. All agree that Ms Hoskins has a severe psychiatric illness. Her presentation is consistent with a diagnosis of schizophrenia and a substance use disorder in remission in a controlled environment.

29. In 2020, after her arrest, she was displaying positive signs of psychosis that have included bizarre persecutory delusions, thought disorder and auditory hallucinations despite treatment with oral antipsychotic medication. Dr Elliot set out the auditory hallucinations that directed her at the time of the offence,

30. Ms Hoskins described to Dr Eagle distressing beliefs that she was going to die and that her family were going to die. These beliefs were fixed and consistent with persecutory delusions involving hearing an unseen voice, consistent with an auditory hallucination and related to her persecutory delusions. Ms Hoskins lacked an awareness of her symptoms.

31. Dr Furst described her as “very unwell.” He assessed her to be “obviously paranoid with the voices she has been hearing, triggering and/or confirming her delusional thinking.” At the time of his assessment on 22 September 2020, Ms Hoskins remained acutely psychotic, with evidence of paranoid delusions, acute anxiety, thought disorder and persistent auditory hallucinations. He felt that as a result of her symptoms she was not fit to be tried according to the standards set out in Presser v R [1958] VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41.

32. Dr Furst notes that:
    “Schizophrenia is a chronic and severe mental disorder characterized by distortions in thinking, perception, emotions, language, sense of self and behaviour. Common symptoms hallucinations (hearing voices or seeing things that are not there), delusions (fixed, false beliefs), mood disturbance, behavioural disturbance, motor abnormalities, negative symptoms and cognitive deficits. psychosocial function, including detrimental effects on educational and occupational performance. In addition chronic adjustment problems, homelessness, stigma, discrimination and victimization of other forms, including the physical and sexual assaults and/or discrimination of people suffering from schizophrenia are common. Causation in relation to schizophrenia is not fully understood; however, there is strong evidence in relation to polygenetic transmission of biological vulnerability and the impact of environmental factors, including exposure to illicit drug use precipitating the illness in vulnerable individuals. Treatment generally involves a combination of antipsychotic medication and psychosocial support, including case management and assertive psychiatric follow-up. Facilitation of assisted living, supported housing, supported employment and family-based interventions also assist in reducing the impact of the illness for people with schizophrenia.”

Sentencing a person with a mental Illness

33. Sentencing offenders who suffer from a mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed. They have been described as "to an extent intractable:” Courtney v R [2007] NSWCCA 195; 172 A Crim R 371 Basten JA at [1]. They require a "sensitive discretionary decision:" Engert v R (1995) 84 A Crim R 67 per Gleeson CJ.

34. A judge has to consider the purposes of the sentence in s 3A the Crimes (Sentencing Procedure) Act1999 and also common law principles such as "... protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform." Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 476.

35. There are some cases where the offender’s mental illness, brain injury or intellectual disability, are such that human sympathy would say: "Well, you would not expect him [or her] to get the same sentence as someone else:" Engert v R, per Allen J at 70.

36. There are other cases where because of a person's mental illness they present more of a danger to the community. In those circumstances, considerations of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [28].

37. As the decisions in Veen (No 2) and Engert make clear, the mental illness of the offender, even if causally relevant to the commission of the crime, does not lead, as an automatic (or logical) consequence, to a reduction in sentence because of its effect on moral culpability.

38. Other principles that can be applied when sentencing an offender suffering from a mental illness, intellectual disability or other mental problem were succinctly summarised by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. Omitting citations they are:

• Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

• It may reduce or eliminate the significance of specific deterrence.

What is to be done?

39. In every sentencing exercise a judge must assess the objective seriousness of the offence; noting that armed robbery is an offence against people that can often have a devastating impact on a victim.

40. Console operators provide a valuable community service. They are often alone and particularly vulnerable to this sort of attack. Where criminals are caught committing such offences, the community can lose trust in the Courts if they do not punish those who commit such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency by sentencing judges led the highest court in NSW, in 1999, to publish a guideline judgment designed to guide the sentencing discretion of judges in matters such as this: R v Henry. The Court of Criminal Appeal indicated that in an “ordinary case” of armed robbery, sentences in the vicinity of four to five years imprisonment could be expected, following a late plea of guilty.

41. While that guideline is not prescriptive, regard must be had to it: S42A Crimes (Sentencing Procedure) Act 1999. Any sentence must assessed by reference to the purposes of sentencing, the maximum penalty, the offender’s record, personal circumstances and reduced to take account the utilitarian value of any guilty plea and maters raised in mitigation. While those matters can never be ignored and must be taken into account this is not an ordinary sentencing exercise.

42. There is evidence to support a conclusion that Ms Hoskins’ background has left a mark and compromised person’s capacity to mature and learn from experience: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. An offender’s childhood exposure to domestic violence and drug abuse may explain the offender’s recourse to violence such that their moral culpability for the inability to control impulses may be substantially reduced: Bugmy v The Queen at [40].

43. Further, given the severity of her undiagnosed mental illness and its role in her committing the offence human sympathy would say: "Well, you would not expect her to get the same sentence as someone else:" But, and it is an important “but” her mental illness and offending were both exacerbated by her cannabis use. Where an offender has a mental illness or a background that means she has little ability to control herself and resorts to violent offending the importance of protecting the community from the offender is remains a very relevant factor. It is particularly important consideration where a mental condition, and compliance with a medication and treatment regime, could be disrupted were the offender to resume the use and abuse of drugs and alcohol.

Submissions

44. Mr Hibbard, counsel instructed by the Aboriginal Legal Service, stressed the improvement made by Ms Hoskins once her psychiatric condition was diagnosed. He noted what he described as “Bugmy considerations” due to her dysfunctional upbringing and the evidence supporting Intergenerational trauma, exposure to domestic violence, alcohol and drug abuse.

45. Despite this he said the offender has good prospects of rehabilitation. She is only young. She now has insight into her illness. There is a plan in place for treatment in the community. She can access psychological and psychiatric services in the community to help her manage her schizophrenia, depression and anxiety. While there is a need to address her alcohol and cannabis use that too can be managed in the community

44. There she will have a close support network of family who are pro-social and prepared to take an active role in her care. She is still very young and immature. She now has the opportunity to return to playing rugby league and gain employment for the first time in her life. This will lead to an increase in her self-esteem and sense of self-worth; something more time in gaol cannot do.

45. Ms Stanley, solicitor, for the Director of Public Prosecutions, took me to a number of relevant principles to which I have already referred. She accepted that the consideration of the danger to society cannot lead to a heavier sentence than would be appropriate if the offender had not been suffering from a mental abnormality but concluded:

“It is clear in this matter that the offender has long standing mental health issues including substance abuse disorder (alcohol and cannabis) which leads to substance induced psychosis. She has a lengthy criminal history and continues to commit serious offences whilst she is unwell in the community. It is clearly likely that she will re-offend, bearing in mind her criminal history, such that protection of society becomes a material factor in the fixing of an appropriate sentence here.”

Structure

48. Ms Hoskins’ parole was breached because of her arrest. As a matter of general principle the commission of an offence while subject to parole, is an abuse of the conditions of her conditional liberty and requires a heavier sentence: Porter v R [2008] NSWCCA 145 at [86] and also s21A(2)(j) Crimes (Sentencing Procedure) Act 1999;. But care needs to be taken when fixing the commencement date not to double count this factor against the offender. Here it is appropriate the sentence start from the date she went into custody: Callaghan v R [2006] NSWCCA 58.

49. Ms Hoskins will need supervision and monitoring when she is released to ensure whatever resources are available to her, are taken up by her. And to ensure she engages with mental health and drug and alcohol programmes. The longer she can be so assisted the safer the community will be.

Synthesis

50. As the guideline decision of Henry v R makes clear consistency in sentencing is a very important principle. So too is the need for just and appropriate punishment of those who use weapons to rob vulnerable service providers. Where a mentally ill offender commits such offences, particularly if they already have a record for violent offending, a court must consider how best to protect the community.

51. One way is to gaol an offender, to remove her from the community or as long as possible, hoping she can progresses her recovery in custody. The other is to recognise that prisons are no place to treat a young woman with schizophrenia and a long history of anxiety and depression and structure a sentence in a more nuanced way so as to reduce the risk of re-offending.

52. As Justice Simpson has noted:

“Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative:” Hopkins v R [2004] NSWCCA 105, at [22]

53. Sentencing courts have an obligation to vindicate the dignity of the victim of violent crime and to express the community's disapproval of such serious offending. Courts must attempt to protect others against repetition of the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38, [52] to [58]. In doing so courts must synthesis many competing features. Ultimately, a sentencing judge must attempt to “translate the complexity of the human condition and human behaviour to the mathematics of units of punishment:” Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14, at [24]. This is usually expressed by in time in custody but in an appropriate case can also involve supervision and management in the community.

54. Ms Hoskins has responded well to mental health treatments while a forensic patient. She is now relatively well. She has insight into her illness and a plan is in place to manage her illness in the community. She has yet to address her drug and alcohol problems and many of the underlying factors that led her to take up drugs and alcohol while very young are still be present. Those problems are better addressed while she is the community but if she relapses she will again be a danger to herself and others.

55. There must be some punishment for a serious offence. It cannot be forgotten that the console operator here was threatened at knife point. She was not to know what was to happen to her. At that point she would not have cared about why Ms Hoskins was doing what she was doing- only that she was at risk of serious injury from an obviously disturbed young woman, wielding a knife. On the other hand the community will be best served by Ms Hoskins taking up the help offered her and demonstrating by doing so that she is ready to lead a life in her community and contribute to that community.

Orders

56. Had it not been for the early plea of guilty a sentence of three years would have been imposed. You are convicted. There will be a non-parole period of 1 year 1 month. To date from 6 July 2020 and expire on 5 August 2021 on which date you will be released to parole. There will be a parole period of 1 year 2 months, commencing 6 August 2021 and expiring 5 October 2022.

57. The total sentence is 2 years 3 months. The minimum period that must be spent in custody 1 year 1 month. Eligible for release to parole on 5 August 2021; reflecting a substantial finding of special circumstances.

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Decision last updated: 20 July 2021