R v Koroitamana

[2016] NSWDC 406

District Court

New South Wales

Medium Neutral Citation:	R v Koroitamana [2016] NSWDC 406
Hearing dates:	1 December 2016
Date of orders:	01 December 2016
Decision date:	01 December 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 21 months and a head sentence of 4 years.
Catchwords:	CRIMINAL LAW – Sentence – Robbery in company
Cases Cited:	R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149
Category:	Sentence
Parties:	The Crown Damien Koroitamana
Representation:	Counsel G. Gillett - Offender   Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2015/274464

SENTENCE

1. HIS HONOUR: Damien Koroitamana is now 34 years of age. When he was much younger he committed a large number of robbery offences, including armed robbery offences. He was sentenced to imprisonment for those by Williams DCJ in June 2005. His Honour imposed a non-parole period of nine years. The offender was released from custody on 2 October 2012. Unfortunately for him, and for the victims of his offence, he committed another robbery offence, for which I must sentence him, on 13 May 2015.

2. In the meantime the offender was considerably psychiatrically unwell. He has intellectual functioning in a borderline range, but perhaps more importantly, given the present circumstances, he suffers from schizophrenia. Somewhat remarkably, he had been admitted to hospital at the time he committed this offence and was, indeed, he was a patient in the hospital when he did commit this offence.

3. One of his symptoms of schizophrenia involves hearing voices. Unfortunately for the offender, and again unfortunately for the community, although he was receiving medication whilst an inpatient he was also, as he put it, “dabbling” in drugs. He took ice. That drug interfered with the medication he was taking and so he began to hear voices again. The voices most relevant to his present offending told him to commit this offence. So he, with a number of other inpatients, did what I will now describe.

4. He and three other men went to a bank in Elizabeth Street in Sydney. Two of them, this offender and another man, got out of the van they were in and loitered around the bank for some minutes. Eventually they went inside the bank. This offender was covering his hands with socks. Both of them had face coverings and hood and jumpers. There were two employees and one customer in the bank. The co-offender approached one of the employees and told him to get on the ground. As he did this the co-offender held up his arm, pointed it towards the employee in a manner which suggested he was holding a weapon. It appears that this ruse worked, because the employee complied with this threat and did drop to the ground. This offender adopted a similar approach. He went to the other employee and threatened him in a similar manner. He told this employee to take him to the safe. Sensibly, the employee obeyed. Together they went to the rear office where a safe was opened and about $24,000 was handed to the offender. Both men inside the bank then fled, going back to the vehicle which was driven away by another co-offender.

5. Eventually, and it is not necessary for me to detail the way in which police worked out that the offender was one of those who committed this robbery in company, he was arrested, denied involvement and has been in custody from the day of his arrest 18 September 2015.

6. He pleaded guilty at the earliest opportunity and so the sentence I will impose him is 25% less than it would otherwise have been.

7. Of course, the R vHenry (1999) 46 NSWLR 346; (1999) 106 AcrimR 149 guideline is important in determining the appropriate sentence. Although initially the Henry guideline was handed down for offences of armed robbery it has come to be used for offences of robbery in company, both offences carrying a maximum penalty of 20 years imprisonment. There are some features which suggest that this offence is worse that the common offence postulated at Henry and some which suggest that a lower sentence should be imposed. This offender is far from a young offender with little or no criminal history. He is, as I have mentioned, 34 years of age and has served a very long sentence for offences of this type. There was a lot of money stolen. The offender said that it was divided, I gather, four ways, because he got $6,000 which he spent on clothes and shoes. Working the other way as far as the Henry guideline is concerned, is that the plea of guilty was early, not the late plea of guilty postulated in Henry. Of course, that is just a guideline and certainly what was not contemplated in Henry was an offender who committed this offence while being significantly psychiatrically unwell.

8. The Crown accepts that general deterrence has less of a part to play in this offence than it would ordinarily be the case. The Crown accepts also that Mr Koroitamana’s moral culpability is substantially lessened because of the fact that he was responding to voices in his head when he committed this offence. The trouble is, of course, for the community and for Mr Koroitamana as well, that if he continued to use drugs, even dabble in them, the chances are that when he is released from custody he will offend again and that more people will be harmed in the way Mr Koroitamana has by now harmed many others.

9. Mr Gillett frankly conceded that he could not submit that the offender’s prospects for rehabilitation are good and when considering the likelihood that he will reoffend in the future any prediction must be guarded. However, it is not the case that I am allowed to impose a sentence of preventative detention on the offender which exceeds what the objective gravity of his offending otherwise suggests.

10. True it is that there appears to be a continuing attitude of disobedience to the law, but there seems to have been some improvement of recent times. Mr Koroitamana managed to incur 86 misconduct charges when serving his earlier sentence, but has not incurred a single one since going into custody over a year ago.

11. The offender wrote me a letter in which he expressed his remorse. He also gave evidence before me in which he, within his limitations, expressed his understanding of how his offending would have affected the victims of it.

12. It is not Mr Koroitamana’s fault that he suffers from a mental illness. In that sense it is a terribly sad matter to see him in court. In common with many people who suffer from schizophrenia he, on occasions, believes he does not need to take his medication. Letters tendered from his sister and sister-in-law speak of the way mental illness is regarded in the Fijian community, from which Mr Koroitamana originates. That is a further impediment to him accepting the need for him to be medicated. Again, that is not Mr Koroitamana’s fault either.

13. Ultimately, however, I have to accept that Mr Koroitamana must be sentenced for what he has done, taking into account his moral culpability and placing less weight on general deterrence than would otherwise be the case.

14. There is nothing to suggest that a sentence involving specific deterrence is inappropriate. Mr Koroitamana must understand that it is in his interests that he does not dabble in drugs when he is released from custody on the next occasion, because if he does it is likely that he will commit further offences and it is likely that he will go back into gaol.

15. There are clearly special circumstances in this case relating to Mr Koroitamana’s mental state and the need for him to be closely supervised upon his release from custody. Indeed, the variation from the statutory ratio between non-parole periods and head sentence is very generous, reflecting the desirability that Mr Koroitamana be closely supervised upon his release from custody, including supervision ensuring that he takes his medication in the hope that Mr Koroitamana’s life improves, which will, of course, have benefits for the community.

16. I impose a sentence of imprisonment consisting of a non-parole period of 21 months to date from 18 September 2015, so his non-parole period will expire on 17 June 2017. I set a head sentence of four years. So the offender is eligible to be released to parole on 17 June 2017.

**********

Decision last updated: 07 March 2017