R v Jones

[2020] NSWDC 147

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Jones [2020] NSWDC 147
Hearing dates:	24 April 2020
Decision date:	24 April 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 2 years 9 months. Non parole period of 1 year 4 months.
Catchwords:	SENTENCING - attempt armed robbery of service station - threat to use cigarette lighter to ignite petrol and LPG gas cylinder.   SENTENCING - Relevant factors on sentence - vulnerable victim providing valuable community service - mentally disturbed offender - hardship as a child - early guilty plea - remorse - COVID -19 concerns - special circumstances.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Brown v R [2020] VSC 60 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 CD v R [2013] VSCA 95 DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Verdins [2007] VSCA 102; 16 VR 269 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497
Category:	Sentence
Parties:	Damien Jones (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the offender)   Solicitors: Legal Aid NSW (for the offender) Ms K Rankin (for Director of Public Prosecutions)
File Number(s):	2019/00174892

SENTENCE

Introduction

1. Damien Jones is for sentence today for the crime of attempted armed robbery: s 97(1) Crimes Act1900; maximum penalty 20 years imprisonment. All parties appeared using the virtual court. Jones appeared from gaol (MRRC). Jones has been in custody since his arrest on 4 June 2019.

Agreed Facts

2. At 1:40 am on 24 May 2109 Jones went to the night service window of the Caltex Service Station in East Corrimal. There he purchased a cigarette lighter and a can of energy drink from the female attendant. A short time later he returned to the window and demanded money. The attendant closed the service window. Jones then went to the petrol bowser. Took out the pump and tried to set alight the nozzle with the lighter. Despite his attempts nothing lit; no petrol would come out as the pump was locked.

3. Jones then extended the hose a short distance. A small amount of petrol dribbled from it and pooled on the ground. Jones lit the petrol. He then walked toward the service window brandishing the lighter. By this time the attendant had retreated and was calling the police.

4. Jones then went to the side of the service station and released the valve on a large liquid propane gas (LPG) cylinder. He retreated a short distance and threw or “pegged” the lighter at it. Although the cylinder was leaking gas it did not ignite. Jones then walked away.

5. Police arrived soon after. The cylinder was still leaking propane gas and the fire brigade were called to turn it off.

6. A senior fire fighter provided an expert opinion about the incident. In a worst case there was a possibility the LPG cylinder could have ignited with a catastrophic explosion but this was unlikely. LPG in pure form is not explosive as a specific ratio of air to LPG is required before ignition. An ordinary person without specialised knowledge would not know this.

7. If a sufficient amount of petrol was expelled from a bowser its vapours could ignite and cause a catastrophic explosions, but again the expert noted this is a worst case scenario. Here as the bowser was locked only a small amount of residual fuel was available. Residual fuel in a pump could be ignited but being a small amount would only, as here, produce a small fire.

8. The entire incident was captured on CCTV. CCTV did not prevent this crime. The heavy sentences often imposed for armed robbery offences did not prevent this crime.

9. The attendant’s distressed reaction at the point Jones tries to ignite the pump’s nozzle is shown in the CCTV. Jones is also shown clearly. He is shirtless with readily identifiable tattoos. He makes no attempt to disguise himself. He seems is oblivious to the risk he is posing to himself and others. He does not seem all there.

10. On 4 June 2019, Jones, accompanied by his father, went to Windsor police station. He surrendered in relation to this and two early break and enter offences. He told police he had no memory of any of the incidents. He said he had discharged himself from the psychiatric clinic at the Royal Prince Alfred hospital (RPA) the previous day. He said it was likely that he had consumed alcohol that night.

Objective seriousness

11. The female attendant was working alone at night providing a valuable community service. An attempt was made to coerce her to hand over money. The attempt was reinforced by the use of a weapon, a cigarette lighter. That weapon was not of itself capable of seriously harming her but in the all circumstances it carried with it an implicit threat of catastrophic harm to both her and the offender.

12. No money was taken. There was limited actual violence.

13. It is expected that the attendant would have been distressed and concerned by what occurred. The absence of a Victim Impact Statement does not mitigate: s 30D Crimes (Sentencing Procedure) Act 1999. It is also expected the community would be distressed and concerned by what occurred.

14. Jones’ actions appeared deliberate and reckless as to any harm that may result. But, as the material before me establishes Jones’ self-control and conduct were, on balance, influenced by his mental state at the time. Although personal to the offender his mental state was causally connected to the commission of the offence: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at 186-187 [86]. In such circumstances mental state can affect the assessment of the relative seriousness of the offence as it substantially lessens his moral culpability for the offence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.

15. That mental state must be synthesised along with all other material before me. When I do I must take care not to double count any factor already taken into account in assessing objective circumstances. In assessing his mental state the fact he had drunk alcohol to excess is not a relevant factor: s428D Crimes Act 1900.

Criminal record

16. Jones had some contact with police and courts as a young man. His record since 2018 reflects the growing influence of alcohol abuse on his life set out in detail the reports tendered. While he does not get the benefits often given first offenders his record still allows for leniency.

17. In March 2019, Jones committed two break and enter offences. He was also arrested for these maters on 4 June 2019. On 20 September 2019 the Local Court imposed sentences of 10 months imprisonment to date from 4 June 2019. The sentences had non-parole periods of 4 months reflecting a significant finding of special circumstances: s 44 Crimes (Sentencing Procedure) Act 1999. Had bail not been refused for the current matter a full time custodial sentence may have been avoided.

Subjective case

18. Jones gave evidence today. He confirmed the history given to his social worker and psychiatrist. He told me he had stopped taking medication and increased his drinking. He said he suffered alcohol related blackouts He said since coming into custody he had worked as was now a trusted “street way sweeper.” He told me of his hopes and plans for the future on release. He said that so far he had not been able to participate in any drug and alcohol programmes.

19. Nothing in the material tendered on his behalf was controversial. Jones wrote a letter to the court saying while he accepted full responsibility for his actions, at the time he did not know what was going on and was acting “out of character.” He said he has “only himself to blame” but that he is “not a bad person” - he was just going through “a rough patch.”

20. In his letter expressed no remorse for his victim. I suspect he was so consumed by his own mental health problems he was not ready to think of others. His acceptance of responsibility however is a good first step. In his evidence he did apologise to the victim and showed appropriate empathy toward her and sympathy for the fear he put her in.

21. He told me that he left RPA before he was ready for discharge. He said that he was being medicated and they were trying to sort of a suitable medication regime. In cross-examination he accepted that he was aware at the time that he should not drink alcohol while he was taking mediation as this had an adverse impact on him.

22. The report of Ms Seers, a psychologist social worker with Legal Aid NSW, provides a detailed history.

23. Born in 1990, Jones grew up in Sydney. He did not have a good relationship with his parents. He moved schools a lot but had some stability when staying with his grandparent’s in Western NSW.

24. He has worked all his adult life and is a qualified butcher. He has had one long term relationship but increasing alcohol abuse and depression took its toll and he lost his marriage. He lost control of his finances and excessive alcohol abuse consumed his life - he ended up as psychiatric patient at RPA in the high dependency unit.

25. Jones told Ms Seers that while he had friends in Corrimal they were away at the time. He had no reason to be there at all. While he was able to express his regret for what he did he could not remember the incident or explain why he did what he did.

26. Ms Seers suggests that a childhood without positive parental guidance and emotional support left Jones vulnerable to taking up maladaptive coping strategies when dealing with stress. Excessive alcohol use in such situations is common response but when taken up in adolescence can lead to impairments in executive brain functioning; meaning, in simple terms poor and impulsive behaviour. Here, these problems had been moderated by a strong relationship but when that ended unresolved emotions and feelings were “managed” by excessive alcohol use.

27. Mr Fraser, for the offender, submits that the offender’s deprived background as a child means his moral capability is less than a person whose background was not so marred. He took me to the principles set out in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

28. Ms Rankin for the Director of Public Prosecutions, accepts the Bugmy principles have some limited application but notes that Jones’ background is not as harsh as suffered by many others and that the offender’s capacity to make proper and moral judgments has been demonstrated by his prior pro-social behaviour. I agree.

29. Ms Seers notes that given his capacity obtain qualifications, work, develop a healthy relationship and lead a stable life for a long period that with assistance Jones can be restored to the community. He will however need help and support and treatment with a psychologist. He needs to address his mental health concerns and develop appropriate coping strategies for confronting stressful situations.

30. Those mental health concerns are explained by Dr Furst in his report. Jones has suffered from a major depressive disorder since 2018. That disorder is a disabling condition; an illness characterised by pervasive low mood, loss of self-esteem and loss of pleasure in normal enjoyable activities. Jones requires ongoing medication and psychiatric care. He also has an alcohol abuse disorder requiring assertive treatment, such as the EQUIPS (addiction) programme run by Corrective Services. Follow up with Alcoholics Anonymous is recommended. Jones’ intoxicated state cannot mitigate his sentence: s21A (5AA) Crimes (Sentencing Procedure) Act 1999.It does however put his behaviour on context.

COVID-19

31. The present crisis has understandably increased apprehension by prisoners about infections in gaols, as it does in the community in general. Prisoners are personally unable to implement social distancing. They are reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced and for sentence.

32. I cannot predict what will happen to this offender but the lack of visits and heightened anxiety are relevant factors that must be synthesised along with all other matters. The extent to which those may be taken into account, must be resolved in each in case: Brown v R [2020] VSC 60 at [48]. Here, Jones is young and has no immediate physical problems. He is no more or less vulnerable than any other prisoner. He had however just started to reconnect with his father and brothers and lack of visits will make those connections so much harder.

33. If or when COVID-19 enters gaols early parole may be given some prisoners: s276C (Crimes (Administration of Sentences) Act 1999. The offender falls into a category that might be considered for early parole.

Guidance

34. Every offence and every offender requires individualised treatment but courts must in the exercise of their sentencing discretion take guidance from a number of sources. They include; the maximum penalty of 20 years; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.

35. While not prescriptive, there the Henry guideline must be considered: R v Henry [1999] NSWCCA 111 (1999) 46 NSWLR 346. That guideline was introduced because of the perceived leniency of judges of this court when sentencing armed robbers. It is a guideline only. As the Chief Justice later noted it is not meant to be a “tramline:” Legge v R [2007] NSWCC 244. This offence shares some common characteristics with the guideline but here; the factual circumstances are unusual, there was no planning and responsibility was accepted at the first opportunity.

36. Where, as here, an offender’s criminal behaviour was influenced by a mental condition amenable to treatment the retributive effect and denunciatory aspect of a sentence can be moderated: Muldrock at [54]; DPP v De La Rosa [2010] NSWCCA 194, (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]; R v Verdins [2007] VSCA 102; 16 VR 269 at 276 [32].

37. The sentence has been reduced by 25% to take into account the utilitarian value of the offender’s guilty plea: s 25D Crimes (Sentencing Procedure) Act 1999.

Special Circumstances

38. The evidence relating to; the offender’s need for continuing psychiatric treatment, assistance dealing with his alcohol addiction in the community, help adjusting to normal community life, all provide a basis for a finding of special circumstances. In so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. In this case as I have already explained other purposes of sentencing need not be given as much weight.

39. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497

Remorse

40. Where a plea is entered knowing that, as must now be explained to him by his lawyers, a reduction in sentence will be given, the guilty plea of itself provides no evidence of remorse: s 22 and 25D Crimes (Sentencing Procedure) Act 1999. No additional reduction in sentence beyond the required discount is required: CD v R [2013] VSCA 95 at [36]. However, here Jones’ expressions of remorse and his contrition and desire to atone can give a can be accepted. They give me confidence he is showing progress toward rehabilitation and accordingly less weight need be given to specific deterrence by harshness of punishment.

Submissions

41. I am indebted to Ms Rankin solicitor for the Director of Public Prosecutions and Mr Fraser, Public Defender, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determination as to the appropriate sentence.

Synthesis

42. Jones’ various problems are amenable to treatment in the community. He has a demonstrated capacity to work and lead a normal community life – if he is given assistance and participates in the mental health plan outlined by Dr Furst. If he engages in that treatment on release and if he supervised on parole it is unlikely he will reoffend. A significant finding of special circumstances is warranted.

43. There must be some independent punishment for his other offence; that accumulation is another reason for a finding of special circumstances. He has been in custody since 4 June 2019. This sentence should start on 4 August 2019.

44. Mitigating factors must be given appropriate weight but the penalty imposed must bear some proportion to the gravity of the crime committed. Here, while no physical harm was caused the service station attendant, the potential for catastrophe and the potential psychological impact of the offending on his victim must be taken into account. Sentencing courts have an obligation to vindicate the dignity of the victim of an armed robbery and to express the community's disapproval of the offending.

Orders

45. Damien Jones in accordance with your guilty plea you are convicted.

46. Taking into account a finding of special circumstances, I set a non-parole period of 1 year 4 months commencing 4 August 2019 and expiring 3 December 2020. There will be a parole period of 1 year 5 months to commence upon the expiration of the non-parole period on 4 December 2020 and expiring on 3 May 2022. The total sentence is 2 years 9 months, comprising the non-parole period and the balance of the sentence.

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Amendments

28 April 2020 - Hearing date only

Decision last updated: 28 April 2020