R v Joshua Aniello

[2018] NSWDC 264

District Court

New South Wales

Medium Neutral Citation:	R v Joshua Aniello [2018] NSWDC 264
Hearing dates:	1 June 2018
Date of orders:	01 June 2018
Decision date:	01 June 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of four years and one month with a non‑parole period of two years and six months
Catchwords:	CRIMINAL LAW SENTENCING – armed robbery – use of weapon – extraordinary scenes on Picton Road – pregnant women threatened – early plea – psychiatric history – defiant behaviour – assault in gaol – impact of brain injury – special circumstances – bad gaol behaviour – parole release not automatic – role of State Parole Authority.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1987 Road Transport Act 2013.
Cases Cited:	DPP (Cth) v De Le Rosa [2010] NSWCCA 194 Engert (1995) 84 A Crim R 67 Henry v The Queen (1999) 46 NSWLR 346 Mill v The Queen (1988) 166 CLR 59 O’Connor (2013) NSWDC 272 O'Connor [2014] NSWCCA 53 Polycarpou v Australian Wire Industries NSW [1995] 36 NSWLR 49 R v Israil [2002] NSWCCA 255 Silvano v R [2008] NSWCCA 118
Category:	Sentence
Parties:	Joshua Aniello the Offender Director of Public Prosecutions
Representation:	Counsel: Ms L McSpedden (for the Offender) Solicitors: Mr P Katsoolis (for the Offender) Mr D Coulton (for the Director of Public Prosecutions)
File Number(s):	2016/00173735

Judgment

Introduction: An incident on the Picton Road

1. On Monday 6 June 2016 Krystal Klarich and Matthew Beggs were driving from Wollongong, west along Picton Road in their white Holden Astra. Ms Klarich was driving, Mr Beggs was in the passenger seat. It was 1.45 in the afternoon. As they were coming up to a point where two lanes merge into one Ms Klarich heard and then saw a black BMW swerving on the road. She heard tyres screeching. As they approached the merging lane they saw a BMW travelling west alongside them in the breakdown lane. It swerved from the breakdown lane in front of Klarich's vehicle. Ms Klarich had to brake harshly to avoid hitting the BMW. The driver of the BMW, the offender now before the Court, Joshua Aniello, stuck out his right hand and made a hand gesture towards her.

2. The two vehicles continued to travel west. Given the nature of Aniello's driving Ms Klarich asked Mr Beggs to take a photograph of the BMW to identify it by its number plate. He did so using her mobile phone. She tried to slow her vehicle in an attempt to lose contact with the BMW. The attempt was unsuccessful. Suddenly the BMW stopped in front of them. It was at an angle and blocking the road. Ms Klarich was forced to stop her vehicle. Aniello stepped out of the vehicle. Ms Klarich hopped out of her vehicle and walked to the offender. She said to him "what the fuck are you doing, I'm six months pregnant, why are you driving like that, I almost crashed into your car". She then said, "It's all right, I've got your car's registration on my camera". At that point she was standing in front of the offender. He pushed her in the upper chest, causing her to step back.

3. Ms Klarich slapped him to the left side of the face. He clenched his fist and said, "Give me your phone". She said, "No". Aniello turned and walked back to his BMW, he reached inside the driver's side of the vehicle. He then produced what is described a grey and black handgun similar to a police semi‑automatic. He manipulated the top of the firearm causing a clicking sound. He walked towards Ms Klarich and pointed the firearm at her face. He said, "Give me your phone". He said this several times. Ms Kasich walked backwards until she was up against the road dividing fence. She crouched down on her knees. Aniello stood over her. He took the phone off her; a Samsung Galaxy S5 valued at $700. He then turned towards Mr Beggs and pointed the firearm at him. He said, "And give me your phone", Beggs replied, "I don't have it on me". He said, "Give me your keys". Beggs refused. He was standing right in front of Beggs and pointed the firearm at his stomach.

4. Aniello walked up to the Astra and removed the keys from the ignition. He then drove away westbound with the keys and the phone. Ms Klarich was so upset she vomited by the side of the road. Thankfully Mr Beggs had a spare set of keys to the car. They were able to flag down another motorist. Police were promptly on the scene. When at the police station it was noted that although they suffered no physical injury both were very distressed.

Aniello arrested.

5. Police investigations led to the offender, who is now before the Court. He gave a fabricated story that his vehicle had been stolen. He was arrested on 7 June 2016 and has been in custody ever since. He indicated a plea of guilty to two offences in the Local Court and adheres to those pleas today. There is also a matter on the s166 Criminal Procedure Act 1987 certificate; again he has indicated his guilt in relation to it.

6. The offences for sentence are: (1) Robbery while armed with a dangerous weapon; s 97(2) Crimes Act 1900, maximum penalty 25 years imprisonment. (2) Attempted robbery while armed with a dangerous weapon: s 97(2) Crimes Act 1900 and (3) drive manner dangerous, maximum penalty nine months and/or substantial fine, three years automatic disqualification from driving, 12 months minimum disqualification: s 117(2) Road Transport Act 2013.

Objective seriousness

7. The offences were objectively very serious. Although only a small quantity of property was stolen, to produce a firearm to point it at a young woman who he knew to be pregnant, to cause her to back away and adopt a kneeling position, to then point that firearm at her companion and then take the keys to the vehicle in the circumstances I have described was extraordinary criminal behaviour. It would have been particularly distressing to those involved, and to anyone who had heard or would hear about such an incident.

8. Offences such as these offences involve much more than the taking of property; they were a gross assault on the rights and integrity of both victims. They would have caused considerable disquiet and stress to the victims and it is expected that that stress would continue. The community would be understandably disturbed by this behaviour.

9. In his statements to psychiatrists, Mr Aniello said that the weapon was not a real one. In the absence of evidence, I cannot give any great weight to that assertion, and it would not matter in any event, the two victims did not know anything other than that this was a firearm. They were not to know that these were not the last minutes they had on earth: for given the erratic behaviour of the offender the firearm could well have been used.

10. Although the Court of Criminal Appeal in Henry v The Queen (1999) 46 NSWLR 346 provided guidelines for dealing with armed robberies, this was not the sort of matter that was contemplated by that guideline. Reference must be had to the maximum penalties, they are guides to the proper exercise of my sentencing discretion. The Court must also have proper regard to harm done to the victims of the offences, and the community, and impose a sentence appropriate to the seriousness of what occurred on a public street.

11. The fact that they were stopped while doing so, the fact that they were doing what good citizens would do, and that is reporting particularly dangerous driving, all aggravate the seriousness of the matters for sentence.

Subjective case

12. How did it come to this? Joshua Aniello does have a criminal record. Most of the matters were dealt with in the Children's Court. It is clear from all of the material before me that since very young he had had a number of significant problems in his life. Those problems are detailed in the comprehensive reports before me, first by Dr Gordon Elliott; exhibit C, and secondly Dr Olav Nielssen; exhibit 1. Both are respected forensic psychiatrists whose opinions I value. Both conducted extensive reviews of material relating to Aniello's background, particularly the pattern of behaviour which Dr Elliott describes as characterised by “impulsive, provocative and disinhibited, considered oppositional and defiant behaviour with frequent anger outbursts”.

13. Dr Elliott notes that Mr Aniello has been assessed in the past for the possibility that he suffers a bipolar disorder. It is the opinion of those, whose reports he summarises, that there is a significant underlying personality problem which requires the fairly frequent intervention of psychiatrists and psychologists, including those who specialise in the problems with children and adolescence. There is a history of both prescription and illicit drug use. There is a history of self‑medication with illicit drugs or overuse of prescribed medication.

14. The history given to Dr Elliott indicates that Aniello had stopped seeing his psychologist about three months prior to this incident. Having stopped seeing his psychologist, his life had become erratic and chaotic. There are a number of factors in his life that made him more susceptible to mental deterioration and the use and abuse of illicit drugs. Throughout his life he has had extraordinary volatile episodes although none as serious as this. Dr Elliott says that such is his presentation, that he believed there was a diagnosis of borderline personality traits. He said his prognosis is guarded and Aniello’s problems would be worsened if he returned to illicit substance abuse and inappropriate use of prescribed medication. He said that he would require ongoing counselling. Dr Elliott considered that psychiatric medication would be of marginal usefulness.

15. Dr Nielssen elicited from the defendant a similar history. He also took into account that since seeing Dr Elliott, Aniello, had suffered, in gaol, a serious head injury to which I will refer later. Dr Nielssen’s opinion was that at the time of the commission of this offence the diagnosis of bipolar mood disorder was appropriate. He postulates "he might have been in the hypomanic phase of a bipolar disorder at the time of the offence". He then qualifies that appropriately by saying:

"But it is also likely he was affected by benzodiazepine medications which have a disinhibiting affect, a bit like the effect of alcohol and which would also explain his limited memory of the events. There is also a history of impaired impulse control originally diagnosed as ADHD and which may be characterological tendency to act on impulse associated with his underlying bipolar disorder.

Mr Aniello has a combination of disorders or which he is likely to need long term psychiatric care. Traumatic brain injury can have an adverse effect on the course of bipolar disorder, and long term monitoring and treatment with mood stabilising medication such as Lithium or valproate by a psychiatrist with an interest in bipolar disorder is recommended. Mr Aniello should also participate in substance related counselling and supervision of abstinence from substance use, with a view to avoiding cocaine and benzodiazepine medication."

16. While he was in custody earlier this year Aniello was assaulted and suffered a serious head injury. He required hospitalisation for a fracture of the left temporal lobe with underlying injury to the brain. His full medical report is before me.

17. In her written submissions Ms McSpedden, for Mr Aniello, submitted that I could take this into account as extra curial punishment. Her attention was drawn to the decisions of Court of Criminal Appeal in O'Connor [2014] NSWCCA 53 and Silvano v R [2008] NSWCCA 118. For the reasons which are set out in those judgments, the fact that he was assaulted in gaol cannot be regarded as extra curial punishment. I said in O'Connor at first instance that extra curial punishment cannot be taken into account: O’Connor (2013) NSWDC 272. For reasons that still bemuse me, the Court of Criminal Appeal said that I did take extra curial punishment into account in O'Connor. Accordingly, I need to make it plain that I have not taken into account extra curial punishment in this matter. However, as was made clear in Silvano, of course, if someone suffers an injury in custody and that assault makes their conditions in custody more onerous, then that is a factor that can be taken into account by a judge in the synthesis of relevant matters.

18. It needs to be spelt out that the acquired brain injury, following an insult to the brain, it is not a simple fracture from which 100% recovery can be expected. Generally, brain injury is of a permanent nature. At the moment it is impossible for me to determine the exact extent of that brain injury and the extent to which the offender will require future treatment and assistance. I have enough experience, going back to my time as a solicitor, and as junior counsel when I practiced civil law; see Polycarpou v Australian Wire Industries NSW [1995] 36 NSWLR 49, to know that brain injuries can have a detrimental effect on a person for the rest of their life. To acquire such an injury while in custody requires a degree of sympathy. We send people to gaol for community protection; we hold people on remand for community protection, people are not sent to gaol to be seriously assaulted or to leave gaol with an injury that they did not enter gaol with.

19. It is a matter that I can appropriately take into account but I also must accept the guidance of the Court of Criminal Appeal. As the Court said in O'Connor I have to be careful not to over emphasise that particular aspect, and I will not.

20. It is clear that Aniello has had longstanding psychological conditions. I am not in a position to resolve the difference in diagnosis between Dr Elliott and Dr Nielssen, however it is clear that his underlying psychological problems which were longstanding and for which he had received treatment, were operating on his mind at the time of this offence. The bizarre events that led to the charges cannot be divorced from his mental and cognitive problems. There appears to be some causal relationship between those problems and his offending. It is impossible to draw dividing lines, this is not a case of black and white. He was also voluntarily, because of other problems in his life, not engaging in the treatment which had been organised for him by his family.

21. He was also taking illicit drugs. While I can understand a person with his background might self‑medicate, this can never be an excuse to commit an armed robbery, or an offence of any nature. It can help explain his impulsivity and the fact that the offending was unplanned.

22. Drug use goes to his subjective circumstances. It is of importance when I come to synthesise all relevant factors, particularly given that the underlying problems he suffers from have continued since he was a child. The courts have to be sympathetic to those who have impairments, psychological or psychiatric. They require a degree of understanding. There are principles that the Court must take into account. They were carefully summarised by Chief Judge at Common Law in DPP (Cth) v De Le Rosa [2010] NSWCCA 194. They are also referred to by both the Chief Justice and Austen J in Engert (1995) 84 A Crim R 67.

23. I am prepared to accept that the underlying mental condition of this offender contributed to the commission of this offence. This enables me to have some understanding of why it occurred. Although in De La Rosa the Court said that it might require a court to reduce the need to denounce the crime, I find that denunciation is still very important in this case. There is however some need to apply the principle that he is less of a vehicle for general deterrence. I will take into account that principle.

24. It also seems clear that his underlying psychological condition has made his term in custody more onerous.

25. I have reviewed his gaol record. His history of defiance is reflected in that record. It is also clear that this can only be as a result of his underlying psychological conditions. He has an extraordinary number of gaol offences on his record. It is clear that he is a difficult prisoner to manage.

26. I believe that specific deterrence is particularly important in this case. What that means, Mr Aniello, is that you have to understand that a significant penalty has to be imposed to ensure that you do not offend in this nature again. When you consider whether to abstain from using illicit drugs and self‑medicating, or using them, you have a choice.

27. You have the support of an extraordinary number of family and friends. If you are tempted again to use illicit drugs or over use prescribed drugs, you have a choice of turning to the family or turning to those drugs. If you turn to the drugs you will commit further offences and you will be punished for them. If you turn to your family and your friends you may well avoid ending up in this predicament again. For that reason, specific deterrence is an important aspect of this sentencing exercise.

Evidence

28. Evidence going to a person's psychiatric and psychological background does not always point towards mitigation as the Chief Judge made clear in De La Rosa and as was made clear in R v Israil [2002] NSWCCA 255. Sometimes a person's mental illness means that they present more of a danger to the community. The criminal history before me, while I treat it sympathetically, particularly the matters that arose in the Children's Court, indicates continued oppositional defiant, self‑interested and now seriously criminal behaviour. This means that a court has to give considerable weight to the protection of the community when it comes to sentencing. The offender is not to be punished for his history, far from it, it is a matter that does require sympathetic consideration, but the indicators do not point all one way as the Chief Justice made clear in Engert.

29. I will take into account that your brain injury and mental conditions would be better treated in the community. While you will have your minimum requirements met in prison you require a fairly extensive treatment. I am also prepared to accept would be serving your sentence in a harsher environment, than other prisoners not so afflicted. Similarly, when someone has been assaulted in gaol it is generally accepted that they are more hypervigilant and more aware of and anxious about the potential for future assaults.

30. If someone has been seriously assaulted in the community it is possible to avoid situations which might lead to a repeat of that assault. You cannot do that while you are in custody. The same situation that led to your past assault; being incarcerated with dangerous individuals, will continue while you are in custody. The sad reality of prison life should not be overlooked but care must be taken not to give too much emphasis to those matters.

Synthesis

31. I have to return and give all due weight to the seriousness of what occurred. The victims here were doing what good citizens are entitled to do. They were going about ordinary business when the offender behaved in an extraordinarily criminal way towards them. Unless those caught committing such offences are appropriately punished the community loses respect for courts and the law.

32. I must impose an appropriate sentence for each offence. I must ensure that the sentences are such that they are in combination just and appropriate to the totality of your offending: see Mill v The Queen (1988) 166 CLR 59.

33. Early guilty pleas were entered for three offences. Sentences are not made concurrent simply because of the similarity of the conduct or because they are part of one course of conduct. However, here the offences arose from the same unlawful acts and the offender is not to be punished twice for aspects of the sentencing process that are common to them. Each element technically is separate but the offences, as I have said, were part of one course of conduct and your liability for all three offences is inextricably linked. Nevertheless, recognition by way of partial accumulation must be given to the fact that there were three separate offences and two separate victims.

31. I have endeavoured in these remarks to give proper regard to the submissions of counsel. I must give appropriate weight, as I hope I have done, to the offender’s subjective case but any subjective case, even one that elicits the sympathy of the Court, must not be allowed to lead to the imposition of a sentence which is disproportionate to the gravity of the offences committed.

32. There will be a finding of special circumstances here. The conditions of custody; your existing psychological condition; the additional injury you suffered; your need to be supervised for as long as possible in the community; your guarded prognosis; must all be taken into account. I am heartened by the support you have Mr Aniello. If you accept that support you will have some prospects of success. If you turn your back on your family again your prognosis is guarded. I believe you should be supervised for as long as possible to ensure that appropriate programs can be put in place in the community.

33. Ultimately, courts have an obligation to vindicate the dignity of each victim of violence and to express the community's disapproval of the offending. I have to structure a sentence which appropriately punishes but also endeavours, by encouraging your rehabilitation in the community, the ultimate protection of the community.

Orders

37. I note that the matter on the s166 can be made part of an aggregate sentence. In relation to the three offences for sentence you are formally convicted. I take into account and give the full weight to your plea of guilty, the utilitarian value of that plea will result in a reduction of the otherwise appropriate sentence of 25%.

38. For the offence of armed robbery there will be a sentence of three years and nine months.

39. For the offence of attempted robbery, there will be a sentence of three years.

40. For the matter on the s166 certificate; drive matter dangerous I take into account your traffic antecedents, there will be a sentence of three months imprisonment.

41. I disqualify you from driving for a period of one year, that is the minimum period but you have been off the road for a while and that period will be stayed until the date you are released. If you drive after your release you will be in breach of your parole conditions.

42. The total aggregate sentence in this matter is one of four years and one month.

43. To give effect to my finding of special circumstances there will be a non‑parole period of two years and six months.

44. The sentence will commence on 6 June 2016, you will be eligible for consideration for parole on 6 December 2018, the balance of parole one year and seven months, expiry date 5 July 2020.

45. Can I give you this advice Mr Aniello; there was a report from the head of the State Parole Authority, sent out to judges only this week, Blanch CJDC, or Mr Blanch as he now is, made it clear that judges cannot put conditions on people's parole, that is a matter for the State Parole Authority, Mr Blanch also made it clear that one of the prime considerations for consideration of release to parole was safety of the community. When a person comes up for parole the State Parole Authority would carefully review their gaol record and their behaviour in gaol. If you want to get the parole on the date that I have indicated you will have to significantly improve your performance in gaol. That is gratuitous advice from me; just because I fixed a parole date does not mean that you will get parole. If you do not obey proper directions of prison officers, you may not.

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Decision last updated: 21 September 2018