R v Irwin, Dean [No.2]

[2010] NSWDC 266

CITATION:	R v Irwin, Dean [No.2] [2010] NSWDC 266
JUDGMENT DATE:	17 September 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Aggravated break and enter with intent (2008/00002697) & Aggravated break and enter commit serious indictable offence (2008/00007964): S.12 bonds revoked. Sentenced to 8 month non-parole period. Balance of term 16 months.. Robbery armed with an offensive weapon (2009/00219339): Convicted. Sentenced to 18 month non-parole period.. Balance of term 18 months. Offender referred to the Compulsory Drug Court for inclusion into the Compulsory Drug Treatment Centre.
CATCHWORDS:	Criminal Law - Sentencing - Robbery whilst armed with offensive weapon - breach of suspended sentence bonds - aggravated break, enter with intent - offender robs sports club - femal victim - 2 cash registers looted - claimed motive, non-payment of wages by employer - some premeditation - subjective matters - single 20 year old male - childhood problems - self-disruptive schooling - disrupted employment and apprenticeship history - serious alcohol and undisclosed drug hisstory - minimisation of substance abuse - revocation of s.12 bonds - referral to Drug Court for compulsory drug treatment program.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Thomson & Houlton [2000] NSWCCA 309 R v Hearne (2007) 124 AcrR 457 The Queen and Henry CCA (1999) 46 NSWLR 340 R v Rause unreported NSWCCA 8 August 1992 R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Dean Harold Irwin
FILE NUMBER(S):	2008/00002697; 2008/00007964; 2009/00219339
SOLICITORS:	Crown: Ms J Gaggin Defence: Ms T Johnson (Solicitor)

JUDGMENT

1. On Friday 18 September 2009 in what was a feel good moment for the Court and no doubt for Dean Harold Irwin, I imposed two suspended sentences upon him for serious break and enter type offences. At the time I said:

“They are bad examples of breaking and entering. The appellant would have been given sentences at least of the order of two years and probably more in respect of each…although it is fair to say he would not necessarily have been required [to serve] a full two year sentence. But he was pretty out of control and rehabilitation was a factor I would have had to take into account.

I am far more confident now about [his] rehabilitation prospects than I was then and in fact Mr Irwin needs to be complimented I guess for the immense progress he has made.”

2. The two serious type break and enter type offences are more accurately described as an aggravated break and enter with intent and the other was an aggravated break enter and steal. The feel good moment was occasioned by a very successful completion of s 11 bail and a short Griffith remand on strict bail conditions that had started at the beginning of August 2008. Those bail conditions required participation in a sustained full-time residential drug and alcohol facility, urine analysis, post residential attendance at Alcoholics Anonymous and Narcotics Anonymous, a requirement that he gain and maintain employment, therapy through psychological counselling, participation in a community based sporting activity and three monthly reporting to Court of his rehabilitation progress.

3. My confidence was seriously misplaced. Twelve days after receiving the two suspended sentences Dean Irwin attended the Bondi Golf and Diggers Club with a silver replica pistol and robbed a single female staff member of $5,700 whilst armed with the replica pistol. As with his earlier offending he was seriously under the influence of alcohol at the time of the robbery. Today he is to be held accountable for his criminal conduct in committing this serious offence. He is also to be called up on a s 12 bond, which all agree must be revoked, thereby enlivening the suspended sentences of two years imprisonment.

4. As sentencing judge it falls to me to resolve in this matter, that is the robbery matter, a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender, harming this victim in this Bondi Coogee community. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to him, called subjective matters.

5. The starting point for these assessments requires me to make findings of fact from evidence before the Court relating to both the offence and offender. The offender’s rehabilitation prospects will need to be assessed yet again, even though looking through a glass darkly. There are as usual technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, whether this offence attracts a standard non-parole period and if so the length of the parole period and finally of course, which it does not actually, and finally of course the ultimate length of the term of imprisonment or other penalty to be imposed.

6. None of that can be done until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

7. A statement of facts has been tendered which I have amended but slightly. On the morning of 30 September 2009 the Bondi Golf and Diggers Club was open for business. There were approximately thirteen patrons drinking after a round of golf which had been finished around 10.15. The club was situated at Military Road, North Bondi. Heidi Snoakes, a female single staff member, was on duty in the bar area.

8. About 10.50am building workers on the construction site in Wallace Parade noticed Irwin walking east on the northern footpath toward Military Road. He was wearing a black hooded jumper with the hood over his head and dark pants. The day was hot and sunny and he was regarded as slightly out of place. He proceeded to the rear of the golf club, went up a stairwell leading to the back deck and entered the club through the rear glass door. By this time he had wrapped something dark about his face.

9. Snoakes first noted him as he entered the club because of the hood on his head. Club policy does not allow this. She saw him walking at a fast pace. I have viewed the videos and in fact he was jogging towards the bar and into the drink serving area where only staff were allowed. When less than a metre away from Snoakes, he pointed a replica silver handgun at her upper body saying, “I’m sorry, my mother is sick, I’ve got to do this”. She did not know much about guns but it looked real to her.

10. She was fearful of being shot. Snoakes opened the first register, grabbed all the notes and placed them in a green bag held by the offender while he in the meantime with some exaggerated movements, no doubt caused by alcohol, waved the gun firstly at her and then towards those sitting at the tables who by this time were beginning to attend to what was happening. Snoakes asked him did he want the coins. He said no. There was a second register behind her on the counter, the offender pointed to that. That register was slightly closer to the patrons or where the patrons were sitting and he said to them, “Sorry, guys, my mother is sick, I have to do this”. Snoakes opened the second register and took approximately $500 in notes and put them into the green bags. The total amount taken was $5,700 according to Ms Snoakes and seems to me, unless there is some other evidence, I am prepared to operate on that basis. I note that because the facts before me have $6,000.

11. He walked from the club the same way he had come in. As he was walking one of the patrons remarked that it did not look like a real gun. His response was, “Don’t be a hero”. Four immediately gave chase and nearly caught up with him as he was running across Military Road and up Wallace Road. Snoakes thought she called the police and she did call the club manager. Patrons who gave chase and the builders working in Wallace Street saw him run up the northern side and turn into a block of flats at number fifteen.

12. A short time later a small blue sedan was noticed to drive slowly up Wallace Road with a driver holding a mobile phone to his ear. He eventually drove into the driveway of number 15 Wallace Road where the offender had disappeared and the registration of that car was taken down. Police attended unit 12, which I understand to be 15 Wallace Road where the offender and his family lived. A search warrant was arranged. Items of clothing were seized. Contact was attempted with the offender by police on his mobile phone, but he refused to hand himself in.

13. There are before me some documents which deal with that, documents in evidence of his responses to what would appear to be entreaties or suggestions by police that he surrender himself. It is clear, at least very early in the piece, that the offender recognised that eventually he would be arrested. The owner of the blue sedan was identified by police. He gave a false statement to police initially and then it was conceded that he had helped the offender depart Wallace Road but claimed he was not aware of what the offender had done. Ultimately the offender was arrested on 15 October 2009 near his own accommodation in Oakley Road. The offender participated in an interview where he made full admissions to police.

14. He told police the gun he had used was a toy one which he threw in a green bin on Bondi Road soon after the offence. He said that he was intoxicated at the time of the commission of the offence. The money taken from the club has never been recovered. He said that he had used the proceeds to purchase clothes, food and drink. The offender’s explanation for being involved is set out at question and answer thirty-four in his record of interview with the police. Police asked him:

“Q. Start from the beginning, what were you doing on that day?
A. I’ve just been working for a bloke who didn’t pay my wage for ages. I woke up, cracked the shits, I didn’t have any food or money, et cetera, et cetera, went to my mum’s, got drunk, I just ran in there and got the money and ran out. I didn’t have a gun, it was a fake plastic thing that I got from a friend and I threw it out, but yeah I know, I know I was stupid and that, but I’ve got no real, real good excuse why I done it. I just lost the plot that’s it. I knew I got caught already so I spent all the money on just having a good time I guess until I got caught.”

15. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. Objective criminality as one might expect has the most important impact upon the overall sentencing outcome.

16. Chief Justice Gleeson, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why substantial punishment is required in a case R v Rause unreported NSWCCA 8 August 1992. The Chief Justice said,

“One of the primary purposes of the system of criminal justice is to keep the peace”. In this connection the idea of “peace” embraces the freedom of ordinary citizens to walk the streets and go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect of private property, they are serious breaches of the peace. They are direct attacks upon the security of the person and property which the law exists to protect. It is quite likely this young man does not understand and he may never understand the seriousness of his anti-social behaviour, but the courts understand it. Crimes of this kind, especially committed by an offender with a long criminal history, deserve severe punishment”.

While this offender’s criminal history is not long it certainly has some serious matters on it.

17. This offence was an offence of serious personal violence towards another human being, it does not become any the less violent because the weapon was plastic. It may have made a difference if this offender had told the lady that the weapon was plastic. Robbery constitutes a crime against the person and against the property the person is in charge of, in this case the Club’s money. She was not the owner of the property but her employer in that sense is also now a victim. The crime against the person is constituted by putting the person in fear through threat of, or actual violence to such a point that she surrenders, against her will, property to the robber. In this case Irwin secured his advantage for his violence against a woman by relying upon her belief that the weapon he had was fair dinkum. In doing so he demonstrated a ruthlessness and a menace to his victim by waving the weapon towards her.

18. Ms Snoakes made clear in her account to police that she knew little about guns. The weapon looked real to her and at the time of the robbery she was fearful she would be shot. It was plain on its face to others that the weapon was not real but that does not diminish the situation for Ms Snoakes. It is impossible to resist the inference or the conclusion that is exactly what the offender desired. He did not seek to put her in actual danger with the weapon but that in the fast flowing events of the robbery she would be deceived, she would feel fear to a point that her will would be overcome and through that fear she would surrender the money she was custodian of. This was not a minor event for her. I do not know whether the offender has seen the videos but in one of them she comes near to collapse, having run out the door in pursuit of him and then the realisation of what has just occurred to her comes on her and she is helped to a chair.

19. Having received the $5,200 or so he was not satisfied and required her to surrender further cash from the second till, thereby prolonging the time span of his criminal domination over her. Even so, it is fair to say that the robbery was completed within thirty seconds of its commencing. His claim of a sick mother was a lie, it had the effect, perhaps not intended, of involving her because of his claim to be motivated by her health condition. In any event it was always going to involve her because the first place he ran to was the family home.

20. I note that because he was upset at police for using a search warrant to search the family home. He can hardly blame the police for running to the mother’s premises in exactly the same way he had done. His claim that she was sick appears to reflect an immaturity and it appears designed to offer a sympathetic “Robin Hood” type explanation for his offending conduct. Otherwise I can make no sense of it. As his own answer to police makes clear the robbery was all about him.

21. The proceeds of the robbery have not been recovered, the offender’s claim is they were spent on a good time and clothes. How am I to marry that up with his claim of motivation for the robbery set out in question and answer thirty-four. The robbery was conducted where some thirteen patrons were gathered. I note that they quickly came to a view the weapon was phoney and sought to pursue the offender immediately. I do not regard there being any evidence which established the fear engendered from the presentation of the weapon went beyond its intended victim.

22. I am satisfied the robbery was contemplated as a potential event within at least a twenty-four hour period before its occurrence. It is likely to have been more. The obtaining of the weapon was done for the purpose of conducting a robbery whilst armed with it. I am satisfied the drinking was done for much the same reason, including to assist in making the ultimate decision to embark upon the robbery and providing sufficient disinhibition to undertake the venture. I am satisfied the Club had been selected as based upon the offender’s familiarity with it and its proximity to a place that he thought he could make without detection, namely the family home. I do not suggest he cased the premises out but rather as a consequence of perhaps some prior attendance there on at least one other occasion had determined it would be a site where he could be successful. The sum taken was substantial but not large by comparison with a number of more serious robberies.

23. The case shares characteristics with the mythical offender in the guideline case referred to in The Queen and Henry CCA (1999) 46 NSWLR 340, namely young offender, limited degree of planning, limited actual violence but an intended threat thereof and the plea of guilty. There are differences. This offender has a more substantial criminal history than the mythical offender, the weapon was not capable of killing or inflicting serious injury, a significant difference with Henry. The victim was in the presence of numerous patrons although was working “one out”, the sum taken was not small but was substantial, but as I said not as great as many other robberies. The significance of the plea was not limited by a strong Crown case; see later. It will be seen some of the differences do not favour the offender by comparison with that mythical offender referred to in Henry.

24. No one disputes a significant custodial sentence is called for.

25. I have referred to the trauma experienced by the victim. She has in fact provided a victim impact statement. The material contained in the impact statement is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in it I recognise they would not be the opinions of a qualified expert. Coming as it does from the primary victim I may accept parts of it, or even all of it as reliable and therefore as a source of unsworn evidence as to the facts of the offences and their effect upon her.

26. The function of statements such as this one is to give to victims such as her the opportunity of being heard in sentencing proceedings by publicly identifying, or having publicly identified, the impact of the trauma upon her by the actions of this offender. Secondly, it enables sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding, arising from the criminal conduct of an offender by having that matter, that is that impact, drawn to his attention. Thirdly, it will contribute hopefully to an offender hearing at least first hand and perhaps gaining insight into the impact of his offending conduct upon her. And, finally, victim impact statements act as a reminder to judges, such as myself, of the impact crime has upon the ordinary men and women and in this case a working woman, when I come to deal with offences of this kind.

27. Ms Snoakes says at the time of the incident:

“I had been working at Bondi Golf and Diggers’ Club for three years. I had always enjoyed working there and never had any problems. I never had a need to take time off for sick leave. When the robbery occurred at my workplace on the morning of 30 September 2009 I was unsure of what was happening. I just followed the instructions of the offender like I was on automatic pilot.

It was only after the offender left the building that I felt panic, my breathing got faster and I had to sit down, I just wanted to be alone. I started to have a tension headache and was quite shaky. I took one day off immediately after the robbery but came back to work as usual. However customers were constantly reminding me about what happened and asking me questions about it. I found this distressing. I noticed after the robbery I began drinking more heavily than I normally would, usually I don’t drink much alcohol at all but when I was out with friends immediately after the robbery I found myself drinking quite heavily in order to forget what happened. This was out of character for me.

Two weeks after the robbery I went to see my GP because I had continuous headaches as a result of the robbery. I had been unable to sleep and I felt worried at the time. I was having nightmares that would wake me up more than once a night. scenes from the robbery would play through my mind. I felt like I could not talk to anyone about it because I did not want to hassle anyone with my problems After the robbery I did not feel like going to work which was out of character for me because I really enjoyed my job. My GP referred me to a psychiatrist. I saw the psychiatrist once a week for eight weeks.

This is a thirty second robbery we are talking about but the impact is very significant.

As a result of the robbery I took six weeks off work at the recommendation of my psychiatrist. I needed to get away from work, from the Bondi area, in order to get myself together again. I am currently still working at the Club. Since the robbery has happened I feel terrified to open the Club doors to the public, both at front and back. If I am on shift by myself, particularly if I have the morning shift, I feel very jumpy if somebody in the Club moves too fast or something unexpected happens. For example, if someone runs into the Club to use the bathroom I feel scared.

I am still looking over my shoulder when I am at work to see what is happening behind me. I have asked my co-workers to yell out to me so I know that they are approaching me from behind and I cannot see them. I have panic attacks when people have approached me at the bar, especially if they are wearing dark clothing like the offender was at the time of the robbery. I still don’t like talking about the robbery with people, however, I now try to make my life as normal as possible. I am still wondering when the time will come that I no longer think about the robbery”.

28. I turn now to the subjective matters. I am required to do that. Not only my sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the court varies from others who stand or who have stood for sentence. Circumstances personal to Dean Irwin may offer to the court some explanation and insight into the commission of this offence by him or some reason why a more or a less sentencing outcome is appropriate.

29. Irwin is currently twenty-one years old. At the time of his offending conduct he was either nineteen or twenty, just turning one or the other it seems. He claims to have been raised in a loving family environment although on occasions subject to strict discipline from his father. There is no doubt his mother is strongly supportive of him, but Irwin is proving himself an unreliable historian and I am less willing to accept much of his evidence where there is other evidence that throws some doubt upon it.

30. During his primary schooling for instance, he was fighting to a point of suspension from school. In Years 8 and 9 he claims weekly fighting with his peers. He was consuming alcohol at school. His self image was poor. While not conclusive, all those may be consistent of symptoms of difficulties within a home. He was told at eighteen the man he believed to be his father was, in fact, his stepfather and his own father had returned to the USA after a separation from the mother during Irwin’s infancy. There are four maternal half brothers aged thirty and twenty-eight and seventeen and twelve. He fits in the middle there.

31. He claims an abstinence of physical affection and emotional nurturing with each other within the family. There was however, financial security, a supportive parental marriage, no parental drug or alcohol abuse, no domestic violence and no neglect. He has a current non live-in partner with whom he has been for just over a year. From a former relationship there is a child whom he regards as his stepdaughter.

32. Irwin is assessed as being above average intelligence placing him in the upper quadrant of the population. He did well at primary school until there was the deterioration in his behaviour in Years 5 and 6. He attended two high schools in the eastern suburbs and was expelled from both for consuming alcohol on campus and persistent school fights. He did not complete Year 10.

33. He commenced a pre-apprenticeship via TAFE and was completing his second year apprenticeship in 2009 which was interrupted upon his return to custody. He has worked for brief periods in construction and as an unskilled labourer and as trade assistant. At the time of his arrest he was working as a plumber’s apprentice. He attributes the non-payment of wages in circumstances I will need to deal with in more detail shortly as a catalyst to his offending conduct on 30 September 2010 but as I noted his distribution of the proceeds do not seem to gel very well with that proposition.

34. Initially this offender had skills as a rugby league player and, indeed, rugby union. In his teenage years he had been taken into the eastern suburbs rugby league talented players squads. There was an expectation that he would make the Roosters first grade side. His offending conduct in 2008 saw that potential source of sport/employment disappear.

35. He is a fit, physically healthy young man whose physical health can raise no rehabilitation issues.

36. There are two psychological profiles in existence. One was prepared in 2008 by Anna Robilliard; the other prepared in more recent times this year, June I think, by Michelle Player. He has also received psychological counselling from time to time since 2007. Ms Player opines the absence of emotional warmth and the possibility of high achievement expectations coming from his parents may have lead to adverse attachment to his mother and stepfather, delayed the development of his emotional regulation skills and lowered his sense of self worth. I do note that judgment is a skill, which in the young adult male is sometimes slow to develop. To Ms Player’s opinion I would also add the impact of the late discovery of the identity of his real father has no doubt impacted upon his attitude to his mother and stepfather.

37. For my own part I do not rule out that even at a very young age once the father had disappeared the difference between his stepfather and the father may have been apparent to the offender or the absence of the father may have been apparent to the offender and remained both hidden and unresolved in his subconscious.

38. He is exhibiting symptoms of depression. In 2007 he had a major depressive disorder. That is reduced to dysthymia during the period of the s 11 bail but would appear to have returned as a consequence of a sense of failure in respect of the s 11 and as a consequence of his offending conduct and his current incarceration. In those circumstances it may be important to examine what I perceive to be the cause of his failure.

39. I have referred to his not being an accurate historian. He appears to lack what I would call self-honesty. Best illustrated in an answer he gave in evidence on 23 July last. Early in the account as to the circumstances of the committing of the robbery which brings him before the Court he was asked:

“Q. What can you tell his Honour about your compliance with that condition of your bond?
A. I know it’s quite ironic but everything until the offence was perfect your Honour. From working behaviour even to playing football. Everything was a hundred per cent.”

40. The sense as I understand it that he sought to leave the Court with was a sense that as a consequence of his evidence given on 18 September at that point in time, everything was one hundred per cent. The reality was everything was far from one hundred per cent. He now claims, p 8 line 50:

“Then the next week I missed a payment and then excuses sort of came as in when I [the offender’s employer] haven’t got much work and I will give it to you next week and then he [the employer] would pay me a third of my wages or fifty bucks and say, ‘I’ll give the rest to you tomorrow or’ and it went on for a few months and then I’d ask him about my wages and explain why I need them and try to be polite and nice about it and he just sort of kept palming me off with more excuses and I’d talk to people about it and I got told I should quit the job but I was under the impression I had to stay in the job and when I spoke to my parole officer he said it was a condition I remain employed with this company and if I left even to seek another job I’d be breached.”

41. On 18 September he presented as a young man who had successfully completed alcohol rehabilitation and was regularly attending AA. He conceded to Ms Player he had been problem drinking more than three times weekly from July until his incarceration in October of 2009. That concession raises issues for me in regard to his cash flow during this period. I have not ruled out the diminution in his wages may have been caused either by a non-attendance at work or an expenditure of those wages on alcohol. We have not yet heard from his employer. He says his Probation and Parole Officer said it was a condition that he remain employed. There is no doubt I certainly required in the s 11 bail he seek and maintain employment. However his s 12 bond which had been going for twelve days by this time, appears to have three relevant conditions, one relating to supervision and another to counselling and a third to attendance at AA. There was no s 12 requirement regarding employment. Again I have not heard from the Probation and Parole Officer.

42. The evidence established he had not seen his Probation and Parole Officer in the twelve days he was on the good behaviour bond and subject to their supervision. His assertions, if true, relate to a period prior to the hoped for finalisation of his break and enter matters. A fair reading of the answer to question 34 in the record of interview and the evidence I have referred to on p 8 and 9 of the transcript of 23 July last, leave no doubt he was working for one and the same employer throughout. But Amy Puke puts a different slant on the offender’s employment history. She says this. I note this is a document tendered on the letterhead of WAYS Youth Services dated 10 January 2010, paragraph 1:

“Dean Irwin has been known to WAYS Youth Services since April 2009. Dean was registered with our job network program when he accessed a one on one intensive case management program designed to assist young people securing and sustaining employment and training.”

Paragraph 4:

“In June 2009 Dean was placed into a full-time apprenticeship with Metro Plumbing where he worked for two months. Feedback from his employer was always positive regarding his work ethic and performance. I noticed the start of Dean’s downward spiral when he was having issues with his wages being paid late or sometimes not at all. He disclosed to me that he was anxious about potentially losing his BYA housing due to rent arrears and his ability to pay for work travel and basic necessities. After numerous conversations with his boss and no resolution Dean ceased work to try and secure another more reliable apprenticeship before the new year. Dean was accessing WAYS office daily but was finding it difficult to secure alternative employment at this stage due to the time of the year and its limited availability.”

43. That would have been in early August on my count. He has presented to the Court as a person who does not abuse drugs, but rather alcohol is the problem. But he conceded to Probation and Parole that when he feels stressed he does resort to illicit drugs and otherwise has difficulty resisting them “when they are around”. He has been using cannabis regularly from the age of thirteen and first used it at the age of ten. Those facts had not, so far as I am aware, been revealed to the Court until the pre-sentence report tendered as a consequence of this offending conduct.

44. Clearly, when for some time before he was given the s 12 bonds everything was not one hundred per cent. His lack of frankness or self-honesty must have diluted any impact his twelve months of pursuing rehabilitation in a full-time institution was concerned, because he kept deceiving himself and in so doing deceived others. It will impede his capacity to deal with emotional and psychological wellbeing if he continues to fool himself, or at least when he regards it as more important for his self image to lie so that he can deceive others.

45. It is now clear he has a longstanding drug and alcohol problem. The real context of his drug problem has been concealed, save and except that I am satisfied it is longstanding and poly-drug and alcohol. There is no doubt his alcohol abuse has played a significant role in his offending. It is likely in the extreme that his drug abuse or at least the combination affect of his ingestion of drugs with alcohol has also played a role in his past offending conduct. He told Probation and Parole that his abuse of alcohol and illicit drugs (my emphasis) has ruined his life. His prison history discloses a failed urine test in March of 2008 pointing to drug use even whilst in prison.

46. The offender is but twenty-one years of age. I am satisfied there is a vulnerability in his psychological profile that is yet to be healed and may not yet be fully exposed because of a reluctance by him to be honest with himself or alternatively with others. It appears to manifest itself in inexplicable criminal acts and pursuit of self-destructive, addictive and risk taking behaviour. The sadness is he has intelligence, good health, good physical attributes, has skills in sport, strong family and partnership support and support from other sources, a capacity to work, all of which should point to a good self image. But for some reason he struggles and seeks self destruction in anti-social behaviour, manifested as criminal conduct.

47. Each of the three offences that are before me, that is the two offences that he is called up on and the offence I am presently dealing with, have a touch of the bizarre about them. The picture presented by those who know him best differs. His mother has him making excellent progress within the family, socially, in the sporting world, in his relationship with “a lovely young lady”, at TAFE, with the non-payment of wages being his only real issue. I suspect that she also, like myself, has been deceived.

48. Michael Fletcher is a fourth year plumbing apprentice working with the offender who appears to have been paid regularly. A fourth year plumbing apprentice supports the offender’s claim of non-payment of wages. I ask myself if the employer was doing so badly, why did he select only one of his apprentices to punish if the apprentice was doing what he should have been doing. Fletcher observes the offender to be dependable and hardworking and he was, that is Fletcher, willing to employ the offender when he, Fletcher, sets up his own plumbing business.

49. This offender’s first conviction appears to be in January of 2008 for two assault occasion actual bodily harms, larceny as a servant, wielding a knife in a public place and common assaults. Although there were four offences dealt with on 30 January 2008, they represented three discrete occasions of offending conduct between June and October of 2007. On that occasion, that is 30 January, he received a four month non-parole period and eight months balance of term and a two year supervised s 9 bond. In May of 2007 he was also dealt with for driving offences.

50. I should note here the robbery offence I am dealing with occurs in circumstances where he has breached the two s 12 bonds he received from me in the call up matters and the two year s 9 bond for wielding a knife in a public place and the common assaults. Significantly the present case I am dealing with involves use of a prohibited weapon in a public place, although not a knife. I record acknowledgement that the breach of these three bonds necessarily aggravates the criminality of the robbery charge committed in September last year because it breaches the promise he gave to the Court to be of good behaviour.

51. There is no doubt the offender’s attitude to the offence is one of deep and profound remorse. He has written a letter to the victim. I understand it has not yet been sent to her. I acknowledge the letter is sincere, but if it has not been passed on, my advice is it should be re-drafted or edited with the help of someone with social work or welfare background, so that it becomes shorter, more succinct and with respect, less rambling. Letters from offenders to victims must reflect the apology intended but with careful and great sensitivity so as to have the therapeutic effect rather than to present as a reminder of the trauma. You will remember this lady said that when people spoke to her about the trauma it aggravated it for her. So I am not saying the letter is not a bad thing, it is a good thing, but what I am saying is it needs to be more sensitively drafted and much shorter.

52. He has also drafted a letter to the Court that acknowledges the significance of his failure to comply with the s 12 bond as an important lost opportunity. He acknowledges the impact of his criminal behaviour upon his partner and family as well as its victims. He writes, and this is important:

“I have learnt a lesson I will never forget. Not just from the 3pm lock-in [each day in prison]…I know I am better than what surrounds me. I am motivated to be such. I have not given up on myself.”

53. His plea of guilty was entered before the Central Local Court on 22 February 2010. Given his contrition and early plea he is entitled to a twenty-five per cent discount on the sentence I must give for this offence.

54. Irwin’s rehabilitation prospects are tied into his attitude to alcohol, drugs and self-honesty. My own view is that Irwin is an alcoholic. I am satisfied he has been using drugs and in particular cannabis for more than seven years. His level of consumption of other illicit drugs is at a level where he blames them for ruining his life. There is a nexus between his alcohol and drugs and his offending behaviour. He has thus far attended two full-time rehabilitation centres, having successfully completed the WHOS program. He will now have a substantial time in custody. It is important that his time in custody to the extent that it is possible, be focused upon his need for alcohol and drug rehabilitation. Secondary to this is a need for anger management and honest self appraisal. Also crucial to his rehabilitation is a vocation that suits his talents and his interests.

55. I note he has strong support from his family and his partner and they are crucial to his rehabilitation. In his letter to me he spoke of post-rehabilitation plans, another important positive rehabilitation indicator. The quote from the letter I just read out about him not losing confidence in himself or putting it more properly perhaps, that he is better than what surrounds him and that he has not given up on himself and that he is motivated to be better, are all positive rehabilitation indicators. I also note there is an understanding by him of the impact his criminal conduct had upon his victim and remorse and shame in respect of that as well as insight. That is positive.

56. This focus can best be achieved by his inclusion into the compulsory drug treatment program run through the Drug Court. In the event that he is unsuccessful in obtaining admission into that program, he should be admitted into the young offender’s program which although not as well resourced as the compulsory drug treatment program does focus on much the same issues. I will be referring him to the compulsory drug treatment program. In the event he is not included in that program I recommend his classification by the classification committee or board include him in the young offender’s program.

57. The maximum penalty for the offence I am dealing with is twenty years imprisonment. I have reviewed the objective criminality and noted the aggravation occasioned to that criminality by virtue of his breaches of the s 11 bail and the s 12 bond.

58. Courts superior to mine and indeed s 3A of the Crimes (Sentencing Procedure) Act 1999 make clear a purpose in sentencing is to deter others from offending. In this case, that will be achieved by accumulating the sentences for this offence to the sentences that are enlivened by the revocation of his s 12 bonds. I also note imprisonment is the most severe form of punishment known to the law in New South Wales. For that reason it must be considered a powerful agent of both personal and general deterrence.

59. There is also Court of Criminal Appeal authority requiring me when sentencing young offenders not to lose sight of the need to give appropriate weight to rehabilitation even in the more serious of cases (see R v Hearne (2007) 124 AcrR 457). The referral and recommendation I have earlier referred to were made for the purpose of advancing the offender’s rehabilitation. Likewise, I find special circumstances with this issue in mind.

60. I have made reference to the guideline reference of Henry. I have kept in mind that guideline subject only to the change in sentencing policy later heralded by Thomson & Houlton [2000] NSWCCA 309 of making appropriate allowances for the utilitarian value of the plea without necessarily placing weight on the strength of the Crown case.

61. When sentencing for this offence, I am required to take into account the totality of sentences as this sentence will be cumulative to the non-parole periods I set for the s 12 matters. One way in which I have taken totality into account is the finding of special circumstances. The other of course is the nomination of the overall sentence I have settled upon.

62. The offender has been in full-time maximum security custody since his arrest on 15 October 2009. The sentences I set will date from that time.

63. I have already indicated I will be finding special circumstances to apply in setting a greater than “normal” parole period.

[short discussion]

64. Dean Irwin you are convicted that you on 30 September at North Bondi robbed Heidi Marie Jojose(?) Snoakes of certain property. It says $6,000 in cash but I convict you at least in respect of $5,700 of it, the property of Bondi Golf and Diggers Club whilst being armed with an offensive weapon, namely a silver replica pistol.

65. In respect of that offence, I would have set an overall sentence of four years which I have reduced by twenty-five per cent to make three years. In respect of the sentence, I sentence you to a non-parole period of eighteen months to commence on 15 October this year and to expire on 14 April 2012 (amended). I set a balance of term of eighteen months to expire on 14 October 2013.

66. In respect of the s 12 matters, I noted on 18 September that you had spent more than 200 days in custody in respect of those matters. I postulated it was something in the order of 250. If my maths is correct, it is 321 days of which four months was referable to a non-parole period and the remaining 200 days was referrable to these two matters.

67. Both s 12 bonds are revoked. I note when setting the sentence the non-parole period for these matters, the time that you have already spent in custody referable solely to them should be taken into account. I revoke the s 12 bonds for the break and enter with intent. I set a non-parole period to commence on 15 October 2009 and to expire on 14 June 2010 and a balance of term to expire on 14 October 2011.

68. In respect of the break enter and steal, I set a non-parole period to commence on 15 February 2010 and to expire on 14 October 2010.

69. I order the papers and remarks on sentence be referred to the Registrar of the Drug Court for that court’s consideration as to whether it will order the offender to participate in the compulsory drug treatment program.

70. In the event that the court declines to make such an order, I direct the papers and the remarks on sentence to be referred to the Department of Corrective Services classification committee for it to consider entry of this offender into the young offender’s program.

71. I make clear that my desire is you be included in the compulsory drug treatment program. Do you know anything about that? It is a situation where you would be six months enclosed custody, six months eligible for day release provided you pass the first stage where a job is to be obtained and work to be engaged in and then six months subject to very close supervision living out and the eighteen months I think normal parole but I am not sure. Well Mr Irwin I wish you good luck.

[Further discussion]

oOo