R v Leota, Damien Jerome

[2016] NSWDC 384

District Court

New South Wales

Medium Neutral Citation:	R v LEOTA, Damien Jerome [2016] NSWDC 384
Hearing dates:	19 January 2016
Date of orders:	19 January 2016
Decision date:	19 January 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [81]
Catchwords:	CRIMINAL – armed robbery – with an offensive weapon – in company – CCTV footage – DNA evidence – taxi driver – store attendant – SENTENCE – vulnerability of victims – substantial criminal history – alcohol and illicit substance abuse – mental health history – mental condition relevant to specific deterrence – offence committed while on parole – parity
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Callaghan v R [2006] NSWCCA 58 DPP v De La Rosa [2010] NSWCCA 194 Markarian v The Queen [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Osenkowski (1982) 30 SASR 212 Pearce v The Queen (1998) 194 CLR 610 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Jimmy [2010] NSWCCA 60 R v Lattouf [1999] NSWSC 1382 R v Postiglione [1997] HCA 26 R v Thomson; R v Houlton (2000) 49 NSWLR 381
Category:	Sentence
Parties:	Regina (Crown) Damien Jerome Leota (Defendant)
Representation:	Counsel: Mr. Mcauliffe (Crown) Mr. Nicol (Defendant)
File Number(s):	2014/003372972014/00361789
Publication restriction:	Nil

SENTENCE

1. HIS HONOUR: Damien Jerome Leota appears today for sentence in relation to three offences, each contrary to s 97(1) Crimes Act 1900. The offences carry a maximum penalty of 20 years imprisonment. There is no standard non-parole period in respect of each offence.

2. Two of the offences were committed in December 2013. One offence was an offence of being armed with an offensive weapon when committing the offence of robbery, an offence committed on 10 December 2013 at Belmore when the offender robbed a shopkeeper of $1,000 in cash and ten packets of cigarettes, each valued at $39 each, whilst armed with an offensive weapon, to wit a black handled knife. The next day, 11 December 2013, in company with another man called Jeffrey(?) Rio, who has already been dealt with by Judge McClintock, the offender robbed a taxi driver, Mr Nasiri, at Wiley Park of his cash, his driver’s licence and Medicare card and a pair of spectacles as well as a car key. The third offence is an offence of robbery whilst armed with an offensive weapon committed 11 months later at Lakemba. Again the offender was alone, again he was armed with an offensive weapon, to wit a knife, and the offender on that occasion robbed a shopkeeper again and robbed that person of $200 in cash, the crime being committed at a convenience store.

3. The facts in relation to the matters with which I am concerned are set out in the agreed statement of facts and the essence of those facts I have already summarised by reference to the charges. I will come back to some features of each of the offences so far as the objective facts are concerned in a moment. There are no matters on a Form 1 to be considered.

4. I accept the offender in respect of each offence pleaded guilty at the first reasonable opportunity. He pleaded guilty at the Local Court and was committed for sentence where he has adhered to his pleas of guilty and, thus, in respect of each offence he is entitled to receive a discount of 25% upon the otherwise appropriate penalty in accordance with the guideline judgment from 1999 of Thomson and Houlton v The Queen to represent the utilitarian benefit of those pleas of guilty.

5. The background to this sentencing exercise of course is to be found essentially in the objective facts. The first crime in time, that is the offence committed on 10 December 2013, involved the offender going into a convenience store at about 7.45pm in the evening, there were no customers in the store, the offender was wearing a black hooded jumper with the hood raised over his head and was wearing yellow dishwashing gloves on both hands. He was armed with what was described as a “kitchen knife” with a blade that was approximately eight inches long. The victim obviously was fearful when he saw the offender pull out the kitchen knife, as the facts make clear, and he ran away from the offender. The offender left to his own devices climbed over the front counter of the store where the cash register was located, he opened the cash register and removed approximately $1,000 in cash before knocking the cash register off the counter and onto the floor. He then opened a cabinet behind the counter containing cigarettes and removed the packets of cigarettes particularised in the committal for sentence papers, each packet of cigarettes apparently valued at $39 each. The offender then ran from the store with the money and the cigarettes. He discarded the yellow gloves he had been wearing in the backyard of a nearby residence but they were recovered by the police and the incident itself was captured on CCTV footage within the store. Subsequently examination revealed a DNA profile consistent with the DNA profile of the accused located on the gloves.

6. The second crime in time, the robbery in company, was committed on a taxi driver in the early hours of the morning. The victim was driving his taxicab in the Chester Hill area and picked up the offender and his co-offender. He first of all picked up Mr Rio who directed him to then pick up the offender. He was given instructions to go to an address in Wiley Park, which is some substantial distance away, further to the east from Chester Hill. When the taxi driver arrived in the vicinity of where he was told to drive, the offender told the taxi driver when asked where to stop “Don’t worry, go around”. The victim drove around the corner and stopped the taxi. The offender asked, “What’s the damage?” The victim looked at the meter and said $33 and the co‑offender then got out of the taxi and stood beside the driver’s door. The offender produced a $10 note and two $5 notes and said, “That’s all I’ve got.” The victim rather wisely at that point said, “That’s okay”, accepting that offer of payment as full satisfaction of the fare. The offender then grabbed the victim in a “headlock position” pinning both his arms so he could not move them. The co-offender opened the driver’s door of the taxi and punched the victim to the head and face multiple times. The victim tried to use his arm to protect himself but was not able to do so because his arms were being held by this offender. The victim called out for the police and tried to activate the emergency button with his left foot, but the co-offender grabbed his right leg and dragged it outside the taxi punching the leg several times it would appear. The co‑offender then reached into the taxi, removed the keys from the ignition and took the victim’s glasses. The victim’s wallet was removed from the rear pocket of his trousers. The offender then got out of the taxi and he and his co‑offender fled on foot in the direction of the Punchbowl train station in possession of the wallet, the glasses and the keys, thus stealing the property particularised in the charge including $500 in cash being in part one would expect what the driver had earned throughout the night.

7. The victim was injured, he felt sore and dizzy, he had blood on his clothing, was bleeding from the bridge of his nose and was bleeding apparently from his mouth. He was conveyed to Bankstown Hospital for treatment. Again this incident was captured on the internal CCTV footage from the taxi.

8. The third crime was committed 11 months later at a convenience store in Lakemba at approximately 12.25pm, that is in the early afternoon. The victim was working in the convenience store alone. The offender came in. There was another person there but little is said about this person’s role in this affair. The offender partially covered his head with a white cloth and was holding a large knife, approached the victim from behind and she felt a sharp pain to the upper left side of her back. The victim turned around and saw the offender, held the knife up to her head and said, “Get all the cash from the till.” The victim succumbed to the threat and walked to the cash register. The offender told her he wanted “everything” and told her to hurry up and “get the money”. She pulled out $200 in cash and handed it to the offender. He then said to her, “Pull the tin up. Give me everything.” She said that there was nothing there and swore that that was so. The offender then left the convenience store running away. Again this incident was captured on CCTV footage. Apparently he went to the vehicle where the other person was waiting. He was still wearing the white cloth around his head and he was heard to yell “Go, go, go” to the other person who drove him away.

9. The offender apparently sought to dispose of clothing he was wearing in garbage tins at an apartment block nearby, and then in company with the other person and a third male drove in the direction of Bankstown. Again the DNA profile located on items identified by the police matches the DNA profile of the offender.

10. The offender was arrested on 15 November 2014 in relation to an unrelated matter and charged and has remained in custody since that date. He was approached by police on 9 December 2014 whilst in custody in relation to other matters, and he was questioned in respect of the robbery that was committed as I would understand it from the ‘H number’ on 11 November 2014. He participated in an electronically recorded interview but “refused to answer questions”, just as he had “refused to answer questions” when interviewed on 16 November 2014 in respect of both of the robberies that had been committed a year before.

11. I have gone through the facts in some little detail simply because it is important to understand in a rational way in which the offender went about the commission of the offences in the context of a claim that he makes in a handwritten statement produced to the Court that he has no memory of the relevant events. It should be pointed out of course that in respect of each offence there was a degree of deliberation and presence of mind. For example, in respect of the first armed robbery the offender left alone in the store was able to get over the counter of the store, remove $1,000 in cash from the cash register, then open the cabinet behind the counter to remove cigarettes. I also note that he sought to disguise his face and he wore yellow gloves presumably to prevent fingerprints being found or DNA samples being found at the scene of the crime. The fact that he did not professionally seek to dispose of the gloves does not really detract from the proposition that he had ample presence of mind to take the relevant precautions that he did and to execute the crime. Quite inconsistent with a person who was so heavily affected by drugs or alcohol that he has a legitimate reason not to be able to remember what occurred.

12. With regard to the robbery committed on taxi driver, again there is a degree of deliberation in this and particularly presence of mind. The offender identified for the cabdriver the need to drive around from the address that has been given to him. He had the presence of mind to initially offer the victim a small sum of money for the fare in discharge of the greater fare registered on the meter of the cab, and then take the action he did to control the victim whilst his co-offender set about attacking the victim with blows to the face and with the other offender removing property from the victim.

13. Likewise in relation to the third offence in time, the offender sought to disguise himself in an inept or partial fashion. He made specific demands upon the victim for money. When given the sum of $200 he challenged the victim as to whether he was given all that could be found within the cash register. In fairness to him, when the victim swore there was “nothing” left in the till, he further desisted from any threat.

14. With regard to the vulnerability of the victims, the intensity of the vulnerability varies obviously from victim to victim. Each of the victims in their own way was vulnerable because they were alone and represent a typical “vulnerable” victim in cases of armed robbery, as anticipated both by s 21A(2) and by the examination of ‘like cases’ in the guideline judgment of Henry (1999), to which reference was made in the course of submissions. With regard to the first victim in time, as I pointed out, that offence occurred at 7.45pm, which I would take to be within daylight hours, sunset in the middle of December being round about 8pm in the evening. Whilst the victim was alone, the premises were not in darkness and one would assume that the convenience store is located within a residential area. The victim in relation to the robbery in company was much more vulnerable. He was alone in the early hours of the morning in the company of the offender and his co-offender, and I have absolutely no doubt the offender and his co-offender had the “presence of mind” to choose their victim such as to ensure that they could obtain property for whatever purpose they desired. So far as the third victim is concerned this offence as committed in the middle of the day, as I would understand it, within a suburban area of Lakemba. As I have pointed out the victim, a woman, was alone and, thus, was “vulnerable”. But the intensity that extended to her vulnerability was to my mind nowhere near as great as that of the driver of the taxicab and less than the other victim, largely because of the timing of the commission of the offence. These observations are or course relevant when one turns to, for example, the guideline judgment of Henry and also to the terms of s 21A(2).

15. With regard to the time spent in custody, as I have pointed out the offender came into custody effectively on 15 November 2014. However, the offender was sentenced at Liverpool Local Court on 21 November 2014 in respect of a breach of bond that he had been given earlier in the year for an offence of common assault. The Magistrate on 21 November 2014 sentenced the offender to one month imprisonment commencing mistakenly on 26 November 2014 expiring on 15 December 2014. Allowing for the magistrate’s mistake in not giving the offender credit for the day that he had actually come into custody, I propose to fix the sentences that I impose effectively to commence from the expiry of that particular sentence of one month. No requirement given the very short length of that sentence arises for consideration of partial accumulation.

16. The offender when he committed the offences in 2013, that is the first armed robbery and the robbery in company, was on parole in respect of sentences imposed in regard to robbery matters. This breach of conditional liberty is an aggravating factor in any consideration of sentencing, but particularly arises as an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999. When the offender committed the last armed robbery offence or the second armed robbery offence, he was then on a good behaviour bond in respect of offences that were apparently committed on 18 January 2014. On that date the offender committed the offence of assault occasioning actual bodily harm upon one person and common assault upon another person, those people travelling in a bus in which the offender was also a passenger.

17. Those assaults occurred in the early hours of the morning and the facts of those matters have been provided to me. The prisoner’s conduct on that occasion is entirely unsatisfactory and unacceptable. But, of course, I am not sentencing him in relation to that offending. It does, as his counsel conceded, show, however, the character of the prisoner’s capacity for violence and is to be seen as violence inflicted by the prisoner upon a totally innocent person or persons notwithstanding his previous experience of committing crimes of violence and being imprisoned.

18. For the assault occasioning actual bodily harm matter he was, in fact, sentenced to three months imprisonment, that sentence commencing on 18 January 2014 and concluding on 17 February 2015. Apparently, during that brief period of time in custody no relevant “cold hit” was made connecting him to the previously committed robbery offences. It may well be so because no DNA sample was taken from him on the occasion of his arrest. Of course, these matters I have referred to are not the only matters that appear on his criminal history.

19. Although the prisoner, born in May 1990, is now 25 years of age and whilst it is the case he was 23 years of age when two of the robbery offences were committed and 24 when the last robbery offence was committed, the prisoner has a substantial criminal history. In the Children’s Court in May 2005, on my calculation committing an offence when he was 14 years of age just about to turn 15, he was in July 2005 found guilty of the offence of robbery in company and placed on probation. I place no great store on that particular matter. However, two years later he was back in the Children’s Court this time committing an offence when 16 years of age dealt with when he was 17 years of age of demand property with menaces with intent to steal. There being two counts of that charge brought against him. Again, he was given the benefit of probation for a period of 18 months. I believe I can rightly assume that during the course of that probation Juvenile Justice would have taken the steps to address some of the issues that arise, for example, from the psychiatric reports reflecting upon his mental instability at about that time given the history of drug use from his mid teenage years. He was also found guilty in the Children’s Court of possessing a prohibited drug, an offence which was dismissed.

20. In May 2008, this time as an adult, he committed the offence of assault occasioning actual bodily harm in company with others. He was given the benefit of 100 hours of community service. That offence committed on 29 May 2008 was committed at the time of or on the same date as the offence of larceny for which he was placed on a good behaviour bond for a period of 12 months thus from August 2008 when those orders were made he had the benefit of supervision from what was then the NSW Probation and Parole Service. He was apparently called up in relation to the assault occasioning actual bodily harm matter for failing to complete the community service. He was this time extended the leniency of a term of imprisonment of six months which was suspended on him entering into a bond to be of good behaviour pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 to which hereinafter I shall refer to as the Act. He was also called up for a breach of the bond with which that was granted at the same time and that was extended as I would understand it with conditions requiring him to receive drug and alcohol counselling and complete a residential treatment program if assessed suitable. There is no evidence he ever undertook such a program or particularly completed it.

21. He was also charged in November 2008, dealt with on 22 May 2009, with the offence of affray. I take that to be without the benefit of facts, an offence of violence offered in the presence of or towards others. He was sentenced to a term of 18 months imprisonment. Again, that sentence of imprisonment was suspended on entering a bond pursuant to s 12 of the Act. Again, with directions to undertake drug and alcohol treatment and counselling and to accept “treatment and comply with directions of Sydney South West Area Health Services or their delegate”. I take that condition to be directed at receiving treatment in relation to matters again identified within the psychiatric reports concerning his complaint of or symptoms of psychotic reactions to the ingestion of drugs. He has other findings of guilt; destroying and damaging property, possessing implements to drive a conveyance. The offence of possessing implements committed on 2 August 2008 was the subject of a term of imprisonment of ten months with a non-parole period of two months commencing in December 2012. I have taken that into account in fixing the commencement of the sentences with which I am concerned.

1. Most importantly, when aged as I would calculate at 20 years of age, he was charged with an offence committed on 19 March 2010 of robbery in company and another offence of robbery in company committed on 30 May 2010. In respect of the offence committed in March 2010, he was sentenced to two years two months imprisonment with a non-parole period of 13 months, as I would understand it that sentence commencing from 22 June 2010. In respect of the second offence of robbery in company, he was sentenced to three years three months imprisonment that was partially accumulative upon the first sentence to the extent of six months with a non-parole period of 18 months imprisonment. That non-parole period, as I would calculate it, expired on or about 21 June 2012. This was the sentence for which he was serving parole at the time of the commission of the offences with which I am now concerned.

2. I do not have the benefit of a presentence report from Community Corrections Service prepared for the information of this Court in respect of matters relevant to this particular sentencing exercise in a general sense. I do have a report, however, from the Community Corrections Service in respect of his breach of parole, which parole was revoked at the time that he came into custody or shortly after he came into custody in November 2014. It does not reflect well upon his ability to comply with parole supervision. There are a number of conditions of his parole including that he would not, whilst on parole, commit any offence which one would expect to be so and he was also to “totally abstain from alcohol”. The report states that whilst subject to parole the prisoner had been breached on two separate occasions for continued drug use and not residing in an approved address. Ultimately, his parole such as was left of it was revoked, his compliance with supervision was described as “erratic” and he had “displayed disregard towards the conditions of (the parole) order”. The revocation of parole, however, led to a consideration of a period of approximately two months and several days as I would understand it and given the fact that I have determined that the commencement of the sentence I impose will be in December 2014, part way through period required to be served or as a consequence of a revocation of a parole order, no issue of significance concerning the decision of Callaghan from 2006 arises.

3. The principal issues really in this sentencing exercise arise out of the medical evidence that has been produced to the Court. The report from the Crown being prepared by Justice Health and a report prepared by a private practitioner at the request of the prisoner’s legal representatives. Both reports substantially are in accordance with one another and I am prepared to accept their general conclusions. The more detailed report perhaps, in terms of the history of the matter, is to be found in the Justice Health report but again, both reports largely reflect the same history.

4. The prisoner did not give evidence before me. He wrote a statement which I have taken into account and I have a reference from his mother that his mother would have been prepared to attest as being correct on oath but that was unnecessary given the sensible attitude of the Crown.

5. The prisoner, as I understand the matter from the history available to me, is a person who was born in New Zealand and my understanding is he has some Samoan heritage. He came to Australia in 1997 and his family lived in the southwest of Sydney, over a period of time. He is the eldest of a number of children within the family unit and he is the only child of the marriage of his parents who has exhibited any antisocial conduct, which may reflect the significance of what appears to be underlying conditions that are relevant to be taken into account. His mother has provided details as to the various occupations or activities of the other children of the marriage, ranging in age between 24 and 13.

6. He gave a history to the psychiatrist of experiencing “weird things” about around the age of 17 years, when he started using crystal methylamphetamine. It is of some significance to my mind that substantial psychotic episodes, which I accept have occurred over a period of time from time to time, appear to have commenced at the time he started using amphetamine. He has, over a period of time, had auditory hallucinations and some visual hallucinations. The drug and alcohol history he gave the Justice Health psychiatrist stated he had started using cannabis and drinking alcohol when he was about 15 years of age. As I said, he started using crystal methylamphetamine when he was 17 years of age and over a period of time up until his most recent incarceration he has used cannabis. He has tried benzodiazepine pills intermittently and also used heroin, although he has denied intravenous drug use. He claimed to the psychiatrist that he would not be touching alcohol or prohibited drugs again. He told both psychiatrists he had a cousin with “schizophrenia”.

7. I note during the course of his time at school he had a number of conduct issues relating to violence with other students. His parents endeavoured to correct his conduct by sending him to Samoa to live with an uncle who was a Priest, but that apparently did not work out as well as was hoped by the mother and he returned to Australia when he was 16 or 17 years of age. He was expelled from a youth centre in Belmore because of “aggressive and fighting behaviour” and maintaining his drug and alcohol use. He presented on consultation with the Justice Health psychiatrist with generally organised thoughts. There was no evidence of a form of thought disorder. There were no bizarre delusional ideas expressed. He did not appear paranoid and denied ideas of reference or what are called “passivity phenomena”. He did, however, report auditory hallucinations particularly when he was alone in his cell. He was oriented in place and time. There was no “gross deficits” of his cognitive function. The Justice Health report gives a very detailed account of his various attendances at various hospitals and mental health units over a period of time between 2008 up until 2014. In fact, just before he committed the offence that brought him into custody in mid-November 2014 he was under the care of the Canterbury Community Mental Health team and had a Case Manager and was on a Community Treatment Order. He was at that time being treated with monthly antipsychotic intravenous medication. Since coming into custody, he had been abstinent from prohibited substances although as I said he continued to hear voices. He had been diagnosed both in custody and out of custody with schizophrenia although he was in custody relatively stable with mild symptoms. He did have some increase in auditory hallucinations in December 2014 shortly after coming into custody but his medication was increased and that was generally effective indicating the success of antipsychotic medication in maintaining him.

8. The prisoner, when he had been in custody in 2012, had been seen by Professor Greenberg and he had made assessments of him for the purpose of treating him for psychotic symptoms. His intellectual functioning is noted to be at “borderline level” but both Professor Greenberg and the psychiatrist preparing the Justice Health report for this Court, Dr Clark, both indicate that the prisoner does not have an “intellectual disability”. His conclusion was that the history of symptoms and treatment while they can:

9. “intermittently be associated with drug use, are also symptoms and signs associated with schizophrenia. From the information available, on the balance of probabilities, I consider Mr Leota has a psychotic disorder, most likely schizophrenia, and this is likely exacerbated by the use of psychotomimetic drugs, including cannabis and stimulants”.

10. He felt Mr Leota also had a polysubstance abuse disorder and had alcohol dependence. He did not currently meet the criteria for a mentally ill person, he was not intellectually disabled but his intellectual functioning was considered border line in that he had poor literacy and numeracy. Whilst there were conduct problems whilst at school and there may be antisocial personality traits present he, the psychiatrist, was unable to make a diagnosis of personality disorder without further corroborative or additional information. In relation to treatment, he believed the prisoner required ongoing psychiatric monitoring and care. He appears to have developed some insight into the presence and management of mental illness and developed some insight into his substance abuse. He should remain abstinent from drug and alcohol use, which is self-evident because, amongst other things, the use of drugs will “likely exacerbate his existing mental condition and may heighten the risk of relapse into drug use as well increase the risk of offending behaviour”. He should be referred for treatment to a community legal mental health team.

11. Dr Dayalan who prepared a report for the prisoner’s legal representatives on 3 December 2014 as I said earlier traverses much of the same material. She came to the conclusion bearing in mind a history of delusions and auditory hallucinations from the age of 17 as evidence of “psychotic symptoms” that his symptoms were consistent with “a diagnosis of schizophrenia”. He still had ongoing psychotic symptoms. He also had a history of substance abuse.

12. She said that she believed that he had been suffering from “chronic paranoid schizophrenia” which had had a “fluctuating course” over the previous eight years. The illness appeared “quite severe” and treatment resistant. She reflected upon features of schizophrenia and this can have a significant adverse effect upon his functioning.

13. She claimed that he was likely to have been “acutely unwell in the context of non-compliance with medication and the use of illicit substances”. However she points out as the facts themselves point out that:

14. “It does not appear that his behaviour at the time of the alleged offence (sic) was driven by any psychotic symptoms such as delusions or auditory hallucinations however his ability to think in a rational manner and judgment are likely to have been adversely affected given his psychos (sic). The distress secondary to his psychotic symptoms, namely persecutory beliefs and grandiosity associated with context of auditory hallucinations may have also played contributory roles in the offending behaviour.”

15. She noted that his condition with the use of illicit substances are “significant risk factors for violent and offending behaviour”. His unemployment would have contributed to his situation as well and he needs to engage to drug and alcohol rehabilitation program and also receive psychosocial interventions to assist him.

16. He has a chronic form of illness that has been “refractory” to treatment. He also has what he described as an “intellectual impairment” that may impose challenges to his functioning in the community. She noted his tendency to use illicit substances quite obviously “further complicates the rehabilitation prospects”. She noted positive features such as family support, which I accept, and a relationship he had with a woman for a period of two years before he came into custody and opines upon what might be done if a non-custodial sentence was imposed.

17. With regard to his letter to the Court as I said I have taken that into account. I cannot accept his bold claim despite other evidence he has no memory of the relevant events. I gave an illustration of how absurd that claim is in the circumstances, for example, relating to the first offence where he made off with a thousand dollars and ten packets of cigarettes. He says nothing in his statement to the Court as to coming to his senses and the possession of a thousand dollars that he could not explain, or ten packets of cigarettes that he had not bought.

18. With respect as I have pointed out the claim of no memory of relevant events is easily made and in its terms may be impenetrable, but it needs to be considered in the context of other evidence I have already referred to features of the offending that reflect on the part of the prisoner considerable presence of mind in respect of each of the offences with which I am concerned.

19. He has apologised to his victims and claimed a desire on his release to avoid the use of drugs and alcohol. I am prepared to accept from all the material, including his plea of guilty, that he is relevantly contrite for his conduct on each occasion. But it is to be borne in mind that that contrition has to be assessed in the context of the fact that he committed one of the serious crimes with which he is charged 11 months after the first two crimes.

20. That in its terms reflects at the time of the commission of the third offence little in the way of contrition for the previous misconduct for which he was responsible. He states that he would wish on release from custody to take the relevant steps to avoid further offending and I trust for the benefit of the community that he would do so.

21. So far as his mother’s letters are concerned I accept features of the matter that I have already referred to. She and her family provide their continuing support. They continue to visit him in gaol. She expresses shame for what he has done although she should have no shame herself. There is no suggestion in any of the material available to the Court that she or her husband or the family are in any way responsible for the course of conduct the prisoner has been involved in now for the best part of a decade, particularly conduct of a disruptive and violent character.

22. She does however speak of his “softer” side which I am prepared to accept. He has exhibited from time to time, I am prepared to accept, that he is capable of good things and when not affected by drugs or alcohol he is less likely to act in a violent manner. That having been said, of course, it is to be pointed out as was pointed out in the decision of Henry itself that being affected by drugs or alcohol is not of itself a mitigating factor.

23. With regard to that aspect of the matter I particularly note in that judgment at [273] the observations of Woods CJ at CL, accepted by the majority of the Court, that whilst being affected by drugs or acquiring drugs to support a drug habit is not of itself a matter in mitigation it may be relevant to assessing the objective criminality such as reflecting upon the impulsivity of the offence and the extent of planning, the existence or non-existence of any alternative reason that may operate in aggravation of the offence, and the state of mind or capacity of the offender to exercise judgment.

24. That having been pointed out these matters operate to varying degrees, particularly the first and third matters. In the first offence the prisoner had the presence of mind and exhibited some degree of planning to not only produce a knife but to have endeavoured to protect himself from subsequent identification by wearing gloves as I have already pointed out.

25. The second offence in time has more hallmarks of impulsivity. Obviously the prisoner and his co-accused could not have known that that particular driver would be driving in the Chester Hill area immediately before he was stopped by the co-accused before picking up the prisoner.

26. With regard to the third offence in time, again that seems to have been committed rather impulsively as one would understand the facts, the victim having been randomly chosen with minimal attempt by the prisoner to disguise himself.

27. So far as the subjective circumstances are concerned a person’s drug addiction or drug dependence might impact upon the prospects of recidivism and rehabilitation and it is quite clear in this particular case that it is relevantly the “two edged sword” to which his Honour referred, at [273].

28. This is not a case that justifies “special consideration” in the case of offenders judged to be at the crossroads as discussed in a South Australian decision of Osenkowski (1982) 30 SASR 212 approved by his Honour. His Honour was referring to a situation there where one might be dealing with an offender who has demonstrated a path to rehabilitation through successful undertaking of a rehabilitation program and the like.

29. This prisoner is of course very vulnerable even now, primarily because of his mental health issues and to my mind his ready susceptibility to lapsing back into drug use. The medical evidence raises issues that are of course important to consider in the context of the decision of the Court of Criminal Appeal in DPP v De La Rosa [2010] NSWCCA 194.

30. In that decision, which was an appeal by the Commonwealth Director of Public Prosecutions against the inadequacy of sentence of a cocaine importer, amongst other things, McClellan CJ at CL examined the relevant principles that relate to sentencing offenders with a proven mental illness or mental disability that is causally connected either directly or indirectly to the offending.

31. Some of the matters that his Honour identified from the previously decided cases that he cites are absent here. His Honour pointed out at [177] that:

32. “Where an offender is suffering from mental illness, intellectual handicap or other mental problems, the Courts have developed principles which include the principal there were the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced. Subsequently the need to denounce the crime may be reduced with a reduction in the sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.”

33. Those two matters have some role in this sentencing exercise. He also pointed out that in certain circumstances for such people a custodial sentence may weigh more heavily on the person. Whilst I note the prisoner does have hallucinations or auditory hallucinations whilst being kept alone there is no concrete evidence of any special burden placed upon him.

34. He pointed out that the condition may reduce or eliminate the significance of special deterrence, however he also pointed out that because of a person’s mental illness the person may present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence, noting what was said about the matter in Henry itself and in the decision of Israil.

35. The point was made in the decision of Engert, decision cited by his Honour of Gleeson CJ of the New South Wales Court of Criminal Appeal, that a particular mental condition whilst it may require less weight to be given to general deterrence may require greater weight to be given to personal or specific deterrence, particularly in circumstances where a person had proven obstinate to treatment in the past or was aware of the existence of the condition and had previously committed offences whilst subject to a particular condition required to be considered in the instant sentencing exercise, such as the case here.

36. Whilst I accept to some extent there will be a lessening upon the weight given to general deterrence and the prisoner’s moral culpability by reference solely to his mental condition, particularly the condition of schizophrenia. This is a case, as the Crown pointed out by reference to the detail of the prisoner’s treatment before he committed the offences with which I am concerned, where greater weight must be given to personal or specific deterrence.

37. This is also a case where one bears in mind that, by reference to s 21A(2), a present aggravating factor must be the fact that the prisoner committed the offences whilst subject to conditional liberty, particularly when committing the first two offences, being on conditional liberty for crimes of robbery in company.

1. I have considered whether the prisoner’s criminal history entitles a conclusion that it itself is an aggravating factor in this sentencing exercise. Given his relative youth, in all the circumstances, I am not prepared to make that particular finding. But having said that, his criminal history entitles him to no particular leniency.

2. The prisoner has committed robbery offences in the past and has previously been sentenced to terms of imprisonment and it would seem that those previous terms of imprisonment have not acted as a deterrent to the prisoner returning to the community and ingesting drugs in knowledge that the ingestion of drugs, given his mental condition, is more likely to make him violent or commit crimes of violence against others.

3. With regard to other features of the matter to be taken into account I note the sentence imposed on Mr Rio in relation to the robbery in company matter. I do not have the remarks of sentence of Judge McClintock SC but I understand he sentenced Mr Rio to a term of 18 months’ imprisonment but ordered that be served by way of an Intensive Corrections Order.

4. There are two observations to be made about the sentencing of this prisoner in the context of the sentencing of Mr Rio.

5. Firstly, I am prepared to accept notwithstanding the initiation of violence against the victim by the prisoner, that the two offenders were equally culpable performing acts in pursuance of a joint criminal enterprise. Thus, so far as the objective facts of the case are concerned, Mr Rio having hired the cab in the first instance, I am not prepared to conclude the prisoner is more morally or objectively culpable than Mr Rio.

6. That having been said, Mr Rio was a person at the time with no prior criminal convictions. There was absent in his sentencing exercise aggravating factors that arise in relation to this particular prisoner. He had the benefit of prior good character and certainly had never had the benefit of any prior supervision by way of probation or parole.

7. Obviously the parity issue arises at least for consideration because the two offenders are being sentenced in respect of a common offence where they are equally liable. But that having been said that does not mean they are both entitled to the same sentence.

8. As Rothman J pointed out in the 2010 decision of Jimmy, parity of sentencing is an artefact of the concept of equal justice. This was pointed out by the High Court of Australia in the decision of Postiglione where Dawson and Gaudron JJ identified parity of sentencing as a function of “equal justice”.

9. Justice Rothman pointed out that equal justice was an Aristotelian principle, which in essence required like to be treated alike and the unalike to be treated unalike, the differences being reasonable and rational in all the circumstances.

10. In sentencing the prisoner for the robbery in company I bear in mind of course that he had previously committed the day before a separate offence of armed robbery, although he had not been detected at that point. Mr Rio had not been involved in the commission of that particular crime. Mr Rio had the benefit of good character, which Mr Leota does not, and of course, as I have pointed out, Mr Leota committed the offence whilst on parole. Mr Rio did not. Thus it is proper to distinguish them in those circumstances.

11. Another feature of the matter to be borne in mind is the significance of the guideline judgment of the Queen v Henry to which I earlier referred ((1999) 46 NSWLR 346).

12. I am mindful of the fact Spigelman CJ when giving the primary judgment of the Court, embraced what had been said in the decision of Lattouf, that whilst laying down a guideline for the offence of armed robbery it was the case that the public interest in seeing that justice is done required “achievement of justice in the individual case” ( at [10]).

13. However, notwithstanding that, he went on at [162] to [165] to set out a series of relevant “criteria” for the consideration of the guideline fixed of “generally between four and five years for the full term” for the offence of armed robbery.

14. The criteria his Honour identified as being relevant to the consideration of that guideline included, “a young offender with no or little criminal history”, a limited degree of planning, “small amount taken”, amongst other matters. I am mindful also of course that that guideline was fixed before the guideline in relation to the discount to be given for pleas of guilty. I note in relation to the plea of guilty his Honour pointed to that as a factor where the “significance of (it) is limited by a strong Crown case”. In other words the guideline was fixed without regard to the need to give a discrete discount for utilitarian benefit of the plea of guilty. That principle followed later as I said with the decision of Thomson and Houlton.

15. Of course every case is different and the weighing up of different considerations involves a requirement to assist the matter in a synthesis of the material available as the High Court has pointed out in Markarian. It might be pointed out that whilst there are common features between this prisoner and a “typical” case such as the character of the weapon, the degree of planning, the use of actual violence, the vulnerable position of the shopkeeper and the other matters, it could not be said, for example, in relation to the first robbery, that a “small amount was taken”. The prisoner helped himself to $1,000 which I do not regard as being relevantly a “small amount” in the all the circumstances of the matter. As I pointed out the prisoner is not a person with “no or little criminal history”. He was a youngish offender but he was not as such a self-evident “young offender” to the extent as I would understand the guideline to have anticipated. Then again, this prisoner has mental health issues which are not reflected upon in the guideline, and of course we have the contrition that I have identified as a mitigating factor arising under s 21A(3) of the Act.

16. It is to be pointed out of course that the guideline in this matter, as with the guideline in the earlier decision of Jurisic, was fixed without the benefit of the operation of the Crimes (Sentencing Procedure) Act 1999 which in effect did not commence to operate until 2001. I am mindful also of the observations of the learned Chief Justice (at [170]) where other factors which may arise in the case might have an impact upon the assessment of the appropriate sentence, such as the degree of vulnerability of the victim, the degree of impulsiveness or planning as the case may be, the amount taken, the effect upon victims, the character of the weapon and the like. All these matters I have endeavoured to weigh up with the assistance of counsel.

17. With regard to the matters that arise under s 21A(3), obviously a number of the mitigating factors identified in that provision do not arise here. Amongst other things the prisoner, as I said, has a substantial criminal history. I have already pointed out that his prospects of rehabilitation must be approached with considerable circumspection and I certainly could not make a favourable finding on his behalf. I could not conclude also that he is unlikely to reoffend in the future if he returns to the use of prohibited drugs he is at real risk of offending as he has done in the past. That having been said, as I have pointed out, he is entitled to recognition of his contrition. In that regard I have paid close attention to the detail of the drawings that he has provided to the Court, which he would wish to be provided to the victims. That will be a matter for the Crown, but that is to my mind some evidence of his contrition and concern for the position of the victims. There are no other relevant mitigating factors. I accept of course that the offending is not “organised criminal activity”, I also accept I suppose as a mitigating factor that none of the offences could relevantly be regarded as “planned” criminal activity. But that is a matter of degree. His plea of guilty is a mitigating factor but he received a discrete discount for that.

18. It is obvious from what I have said by reference to De La Rosa and the relevance of his mental condition to the sentencing exercise that I have regard to the purposes of sentencing under s 3A. Apart from the issues of deterrence there is a need to ensure that the prisoner is to be adequately punished for the offence. I have to concern myself with the protection of the community from the offender but also promote his rehabilitation; I have to make him accountable for his conduct; denounce his conduct, in the manner discussed by McClellan CJ at CL and recognise the harm done to the respective victims, particularly the taxi driver who of course was the victim of physical assault in a sense of suffering injury, a fate not suffered by the other two victims. I pointed out by reference to the third offence in time that the prisoner did desist from further threats towards the victim. But in sentencing the prisoner in relation to the third offence in time, I bear in mind of course that he had already committed the two other offences in the previous year before he had committed the third offence, although he had not been detected for those offences. I have not ignored the observations of Wood J in the decision of Blackman and Walters [2001] NSWCCA 121, in which his Honour reflected upon the decision of the South Australian Supreme Court in Yardley and Betts noting in the appropriate case special consideration of the rehabilitation of young offenders who have not settled criminal ways. The problem in this particular case is it is clear that this prisoner has developed substantial criminal ways, reflected to my mind in the manner of the execution of the crimes with which I am concerned.

19. One final matter to be addressed is the issue of totality of sentencing. In this particular matter I have three offences. I am required to consider the totality of the criminality, bearing in mind the third offence in time was committed 11 months after the previous two offences. Counsel for the prisoner submitted to me that I might regard the two offences in December 2013 as being part of the “one criminal activity”. In my view that cannot be said. But the totality of criminality principle to be properly observed requires, in my view, concurrency in the sentences to be imposed for the first two offences, but some partial accumulation in respect of the third offence in time to give effect to those matters discussed by the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45] and in other decisions such as Mill v The Queen.

20. It follows from the partial accumulation of one sentence upon another that for that reason alone the Court ought make a finding of special circumstances pursuant to s 44 of the Act. But in this matter there are other matters to be taken into account including the evidence relating to the mental health of the prisoner and the need clearly for him to have intensive professional assistance both in relation to drug and alcohol rehabilitation, but also in respect of medical and psychological treatment. Of course all these matters have to be considered in a context that ensures that the ultimate sentence imposed gives proper regard to the seriousness of the offending conduct.

21. The fact that each offence of itself carries a maximum penalty of 20 years imprisonment reflects upon the seriousness of the offending conduct as does the attitude of courts to the sentencing for armed robbery offences which goes back well beyond the guideline judgment. Before the guideline judgment it had been generally the principle at common law that when sentencing someone in relation to armed robbery only in exceptional circumstances would a non-custodial penalty be imposed. No issue arises here obviously of fixing a non-custodial penalty. But the point is simply made that armed robberies have always been regarded as serious matters, and the totality of the criminality requires ultimately, all the mitigating matters taken into account, a substantial sentence to be imposed for this course of conduct, extending, as it does, over an 11 month period.

22. Could you stand up, thanks very much sir.

23. In relation to the first offence in time, the offence on 10 November 2013, you are convicted. In respect of that offence you are sentenced to a term of imprisonment by way of non-parole period of 2 years imprisonment to commence from 15 December 2014 and to expire on 14 December 2016. In relation to that matter I fix a balance of sentence of two years that will expire on 14 December 2018.

24. In respect of sequence 2, that is the second offence in time of 11 November 2013, you are convicted. You are sentenced to a term of imprisonment of two years by way of non-parole period to date from 15 December 2014 and to expire on 14 December 2016. In respect of that sentence I fix a balance of sentence of one year. In other words a total sentence of three years. In respect of the other offence, a total sentence of four years, those sentences to be served concurrently, one with the other. That sentence is constrained by the sentence imposed on the co-offender.

25. In respect of the offence committed in November 2014, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of one year six months. That will date from 15 December 2016 and expire on 14 June 2018. In respect of that sentence I fix a balance of sentence of imprisonment of three years imprisonment. In other words that balance of sentence will expire on 14 June 2021. The total sentence imposed upon you is six years, six months’ imprisonment. The effective non-parole period I have imposed is three years, six months, it will date from 15 December 2014.

26. I should point out that I have not specifically referred to the particular submissions of the parties, it is self-evident from the matters that I have addressed that I have followed closely the matters that have been identified in the submissions by learned counsel for the prisoner and learned counsel for the Crown, and my consideration of the matter has reflected the various issues that were raised by them in their submissions to me.

27. Any technical matters, Mr Crown?

28. MCAULIFFE: No your Honour.

29. HIS HONOUR: Any technical matters from you sir?

30. NICOL: No.

31. HIS HONOUR: Thank you. Sir, the effective sentence is six years, six months. The effective non-parole period is three years, six months. That will date from December 2014. You will be eligible for release to parole in June 2018, but it will be a matter for the Parole Authority as to whether you are released to parole. You are excused, thank you.

Decision last updated: 22 February 2017