R v Luke

[2022] NSWDC 401

District Court

New South Wales

Medium Neutral Citation:

R v Luke [2022] NSWDC 401

Hearing dates:

22 June 2022

Date of orders:

7 September 2022

Decision date:

07 September 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [55 -56]

Catchwords:

CRIME — Property offences — Damaging property by Fire 

CRIME — Property offences — Larceny 

CRIME — Violent offences — Robbery with Offensive Weapon

Legislation Cited:

Crimes Act 1990 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Graffiti Control Act 2008 (NSW)

Cases Cited:

Henry (1999) 46 NSWLR 346

De la Rosa [2010] NSWCCA 194

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Simpson (2001) 53 NSWLR 704

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Category:

Sentence

Parties:

Regina (Crown)
Luke (Offender)

Representation:

Hannah Crown Prosecutor for the Director of Public Prosecutions NSW
Behan Solicitor Advocate Legal Aid Commission NSW for the Offender

File Number(s):

2020/00272516, 2020/00272531, 2020/00272541 and 2020/00303908

Publication restriction:

Unrestricted

Reasons on sentence

1. Stephen Anthony Luke appears for sentence in respect of six offences.  Another 4 matters are to be dealt with by way of the Form 1 procedure. There are 3 matters on a Form 1 to be taken into consideration when sentencing for count 1 and a fourth Form 1 matter to be taken into account in relation to count 4. Those offences together with their maximum sentences are set out in the following table. None of the offences have a standard non-parole period.

Count	Sec	Offence	Max Pen
1	97(1)	Robbery whilst armed with an offensive weapon; s97;	20y
2	97(1)	Assault with intent to rob whilst armed with offensive weapon	20y
3	97(1)	Assault with intent to rob whilst armed with offensive weapon	20y
4	195(1)(b)	Intentionally damage property by fire	10
5	195(1)(b)	Intentionally damage property by fire	10
6	33B(1)(a)	Use weapon to prevent detention	12
Form 1 re count 1	117	Larceny	5y
192E (1) (b)	Dishonestly obtain property by deception	10y
192E (1) (b)	Attempt to obtain property dishonestly by deception	10y
Form 1 re count 4	4 (1) Graffiti Control Act	Intentionally mark premises	Fine Only

2. I note the maximum penalties in respect of each offence. Those maximum penalties are to be taken into account as legislative guideposts indicating the legislatures view of the seriousness of the offending and to assist in determining the appropriate sentence.
3. In regards to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.
4. At the time of the offending the offender was not on conditional liberty. The offender was arrested on 19 September 2020 and has been in custody since that time. The sentence imposed will date from 19 September 2020.

Facts and objective seriousness

5. The agreed facts form part of the Crown tender bundle which was made exhibit A. The following summary is taken from the agreed facts.  A significant feature of this case is the offender’s history of mental health problems.  He in fact committed an offence of damaging a church by fire in March 2008 and was found not guilty by reason of mental illness. Two of the charges in this case relate to damaging two separate churches by fire. The offender's criminal history shows that between 2008 until the current offending he committed the offence of resisting an officer in 2013 and driving whilst license suspended in 2018.  At the time of the current offending his community treatment order had expired. At the time of this offending he was not taking his medication. Those facts, although brief, suggest that the risk to the community posed by the offender has been well-managed in the past 14 years whilst he has been in the community and subject to mental health measures. In the present case the accused has not raised the defence of mental illness and so remains to be sentenced in the usual way. That said, the role of mental illness in general sentencing principles remains.
6. In early September 2020 the offender planned on travelling from Griffith to Lismore, NSW.  He told a support worker his plan was to hire a car. On 14 September at 4:10 PM he approached the 20 year old victim of count 1 and said to her to put her bag and keys into the car and that he was taking her car.  She said “what?” and he showed her a black handled knife. The blade was serrated and the knife about 30 cm long. The offender looked at the knife and raised it to about hip level. The victim did as she was told including that she put her keys in the car. She started the car. She put her phone in the car as asked. The offender told her to walk away and she ran.
7. Inside the bag were personal items and $20 cash together with a wallet containing a further $355 of cash & credit cards. The phone was recovered.
8. In assessing the seriousness of this matter the parties were agreed that it assists to consider the factors referred to in Henry (1999) 46 NSWLR 346. In that case the guideline provided was of a range of between four and five years for offences of the character described by the factors referred to, and with aggravating and or mitigating factors justifying a sentence above or below the range. In the present case there is a weapon such as a knife as referred to in Henry. Also the offending reflects limited planning and there was no actual physical violence but a real threat thereof. But for the car being stolen, there was a relatively small amount taken. Although the victim could in general terms be considered vulnerable, my view is she is not vulnerable in the way of a taxi driver or shopkeeper. I would note that the facts suggest that the offender was alone at the time of the offending and the intensity of the threat was not high albeit undoubtedly frightening. I also note the effect on the victim who gave a victim impact statement. The present case differs from the guideline case by the offender not being young, he was born on 7 October 1974, so was 45 at the time of the offences, the victim was not vulnerable in the way suggested in the guideline judgment, and more than a small amount was taken, though the car was ultimately recovered.
9. The Crown argued that this offence was above the level of the guideline case referred to in Henry and the offender argued it was less. The Crown’s view relies on the offender’s age and degree of premeditation and the value of property. The offender points out that the offence was carried out in the public car park at 4 PM and argues that the victim was not vulnerable. The offender also makes reference to the brief nature of the event and the offending being unsophisticated.
10. I do not consider the degree of premeditation that can be gleaned from the facts would make this a more serious type of case than referred to in Henry.  At the same time I do not consider that the nature of the victim’s vulnerability aids the offender.  The fact of the offender’s age I consider neutral, particularly given the mental health issues.  In assessing the seriousness of the offence I note the offence involved a fairly brief exchange, perhaps not uncommon in matters of this type, but there is about the whole affair a certain degree of it being very unsophisticated. The conclusion I reach is that the factors distinguishing this case from the category of case referred to in the guideline do not make it a more serious example of this type of offending.  Objectively I would place this matter within the less serious offending within the category of case being described in Henry, and what could be termed the high low range of objective seriousness. 
11. Two of the three Form 1 offences to be considered in relation to count 1 arise from the use of the victims bankcard to dishonestly obtain (one matter) (Max 10 Years) and to attempt to obtain (the second matter) property by deception (Max 10 Years). That property was to purchase a packet of cigarettes for $29 on 14 September and then to attempt to do the same on two occasions the following day without success due to the cards having been cancelled. The third offence is of larceny by removing numberplates from a motor vehicle and affixing them to the stolen car of the victim (Max 5 Years). In my view each of them, particularly the credit card offences, are particularly low in objective seriousness given the small amounts involved. The numberplate matter suggests some greater degree of criminality. I take these matters into account when sentencing for count 1.
12. Counts 2 and 3 are charges of assault with intent to rob armed with an offensive weapon. The circumstances are of the offender being at Hornsby train station at 11:45 PM.  He followed two young women and approached them saying “excuse me” and “I want some money you are the ones that will give me money”.  One of the victims saw that the offender had his fist closed around a knife with a sharp pointed blade about 10 cm in length. The victims said they had no money and the offender said they should withdraw it from an ATM. They did not do as they were told and he tried to convince them to do so and they ran away.
13. The concerning feature here is approaching two young women with a weapon late at night. At the same time the offender was seeking to persuade them to take money from the ATM and they had the wherewithal to firstly resist him by not agreeing to his request and then running away. Like count 1, there is about this offending a distinct flavour of a lack of sophistication, albeit clearly serious. I consider this offending less serious than count 1 as given the way the victims dealt with the offender the degree of intensity of threat and of fear in the victim appears less.  I would assess counts 2 and 3 as being in the low range of objective seriousness. 
14. Count 4 is intentionally damage property by fire, the property in question being the Hillsong church at Baulkham Hills.  There is also on this occasion (which was 16 September) a Form 1 matter of intentionally marking premises. That offence consisted of the offender writing the words “Tim Strong sucks Brian’s cock like a prison bitch” on an outside wall of the church in pink spray paint. Tim Strong is the current husband of the offender’s ex-wife. Having done that the offender then placed accelerant in the shrubbery next to a parking place for Brian Houston, the senior pastor of the church. The facts suggest this occurred about 1:30 AM. About 5:30 AM smoke was seen blowing across the back of the building and there was a small amount of fire in the garden and  smouldering smoke. A hose was used to put out the fire and a pressure washer used to remove the graffiti. The cost to fix this damage was $3000, which includes the cost of removing the graffiti.  The facts then recount a second fire in a different location which was at the home of Mr Houston. That conduct is not the subject of any charge.
15. I would assess the objective seriousness of count 4 as being in the high low range. It was a fairly unsuccessful attempt at damaging the property by fire but the flagrant use of accelerant in respect of a building of some size and and used by worshippers is self evidently serious.  The damage was minimal and the fire did not spread.  The marking of the premises is not a very serious matter considering the facts suggest it was detected at 5.40am in the morning and promptly removed and I note it is a fine only offence.  I have taken it into account in determining the sentence for count 4.
16. The offender then continued travelling north and by 17 September 2020 was at Lismore. Count 5 is intentionally damaging by fire property, the property being St Carthage’s Cathedral. The offender attended that location carrying a fuel container and when there forced either cloth or paper under the rear northern wooden door and then using the fuel set fire to it. The offender did this at approximately 6:20 AM.  Fire was noticed within 20 minutes and police and fire brigade attended. The fire engulfed the large northern door to the Cathedral and attempts to extinguish the fire caused smoke and water damage to the Bishop's sacristy and the Sacred Heart altar.  Significant structural damage was caused costing over $1.3 million to repair. Other items such as books, pictures and silverware were damaged. As a result of the damage, mass could not be held in the adjacent chapel for a period of time. The Cathedral was the residence of a number of priests and other staff who reside in adjoining buildings and were present at the time and there is also an adjacent primary school.
17. Both latter matters demonstrate just how serious this offence is. Not only is the damage caused extensive, but the potential risk of injury was significant to those people living and working in connection with the Cathedral, and also possibly worshippers.
18. In respect of this offence I accept the submission of the Crown that there is concern about the pattern of targeting religious sites. There is the offence from 2008 involving a religious site and now these two events (counts 4 and 5) where the offender has again targeted such sites. The submission for the offender that there was no real motivation to commit the offence but he was simply doing something he had been told is not a matter that I consider lessens its objective seriousness. In my view this offence is well into the mid range.
19. On 19 September the offender posted pictures of himself on Facebook and also stated on Facebook that he set fire to Lismore Cathedral and Hillsong church in Sydney and Pastor Brian Huston’s house.  He referred to “big pharma” and government agencies as criminals.  In another Facebook post he said he had nothing to lose and everything to gain to live in Christ and die in a hail of police bullets.
20. On 19 September acting Inspector Anthony Smith was patrolling Magellan Street in Lismore and saw the offender and tried to attract the offender’s attention. The offender took out a large silver hunting knife from his pocket and tried to enter a shop which had been locked by the shopkeepers. The officer told the offender to put the knife down and the offender said shoot me. The officer had his gun out. As the offender went to walk into a shop the police went to grab the door and he made slashing motions with his knife. The offender was sprayed with OC spray and continued to hold the knife. He was told to drop it and he again said shoot me and he was then stunned with a Taser. He was then secured.
21. The offender was then arrested and taken to the police station. He was interviewed and made admissions to the offending. He told police he had not been on medication for the previous six months for his mental health problems.  He provided DNA samples and photographs of the clothing and hunting knife were taken. The offender in other words cooperated.
22. The offence of using an offensive weapon to prevent unlawful detention is not touched on in the Crown’s submissions. I consider this behaviour to be serious. There is a production of a weapon and flashing a knife around in public in the vicinity of shops and shopkeepers and the refusal to lay down the weapon. The weapon was large.  There was repeated efforts to prevent detention.  The offender’s conduct created a risk of injury, possibly fatal, to the public, the police officer, and the offender.   In my view this borders on the mid range and I would assess it as high low in objective seriousness.

Subjective case

23. There is no dispute that the offender has a long term mental illness that is a contributing factor to his offending and that the principles of De la Rosa [2010] NSWCCA 194 apply; see Crown submissions at [30].
24. The position of the Crown is that if the court is satisfied that there is a causal link between that illness and the offending them the offender’s moral culpability is reduced and so would the need for general and specific deterrence. The Crown points out however that the sentence must still be proportionate to the objective seriousness of the offending and that should it be found his mental illness makes him a significant danger to the community then it is a factor that may lead to an increase in sentence.
25. The position of the offender is largely the same. Indeed the offender makes reference to the guarded view that may be adopted as to the offender’s prospects of rehabilitation.
26. The offender gave evidence.  In giving his evidence the offender said that since 2008 he had been a disability and aged care worker. When asked why he went off his medication he said he was not entirely convinced he had a mental problem but an emotional one after having lost his children and his wife which I take to be his way of referring to the separation from his first wife and I would infer the involvement of Mr Strong. It is notable that that separation occurred in about 2005 and for this offending to be connected to events occurring 15 years before the offending is cause for great concern.
27. In a letter he provided to the court he said that he was committed to taking medication for the rest of his life and he recognises he cannot function without that medication. He says he will be totally compliant upon release with his medication. Whilst that is a convenient thing to say for the offender, he was not successfully challenged on it and it is consistent with the fact that he was compliant whilst under supervision for the vast majority of the 11 years from 2009-2020, lapsing only in 2013 (resist police officer) and 2018 (drive whilst suspended). In cross examination he confirmed that losing his wife was a reference to separation. Despite that he maintained that he was not angry about anything to do with Tim Strong apart from one occasion when he was spoken to by Tim about trying to contact the children. Thus his position is that he is not angry towards this person who he writes obscene things about on the side of a building. What may have prompted the current offending is that he was abused he says by Mr Strong in August 2020 after the offender had tried to contact his eldest son by Instagram. He conceded he was angry about that at the time. When asked about the connection with the church at Hillsong and Mr Houston he said there wasn’t really a connection.
28. He acknowledged his wrongdoing in respect of the offending and described the robbery of the car as horrendous. He had planned to buy a car but had spent his $900 on the pokies and it was then that he robbed the victim.
29. In the course of his cross examination he said he was an enlisted soldier in God’s army and rules did not apply to him. He said he was in an alternative reality. He said he decided to set the Cathedral at Lismore on fire about half an hour before he did so. He then posted on Instagram talk concerning big Pharma and conspiracy. When asked further he said he had no grievance against the government and that setting fire to the Cathedral was done in the state of mind where he felt compelled to obey the voice in his head and it was also part of God’s plan part of his mission as a soldier. He disagreed that his actions were just what he wanted to do.
30. In reference to his use of a knife he made reference to Jesus saying sell clothes for a sword and he said he takes scriptures out of context to justify the voice that had spoken to him. He accepts he was deluded and in desperate need of medication. He expressed remorse and regret and apologised.

23. On balance this evidence demonstrates remorse and acknowledgement of wrongdoing. Indeed I formed a view of the offender that he was fairly stable in some of his evidence but in other parts was quite unhinged though that may have simply been because he was explaining in his then stable condition the instability he was in at the time.
24. The offender relied upon two reports of Dr Furst.  For the second of those reports Dr Furst had available to him the two reports of psychiatrists tendered in respect of the 2008 matter. In respect of those reports Dr Furst noted that they confirmed that the offender had a long standing mental illness of schizoaffective disorder and that he was suffering from acute symptoms of that mental illness when he set fire to the church at Camberwell in March 2008. On page 3 of this report of Dr Furst dated 15 August 2022 he states:

His actions in damaging church property by fire on each occasion were driven by delusions with manic elements, psychotic elements, grandiose delusions and delusional religiose attributions relating to a special purpose or mission he believed he was on at the time of his offending. He also felt compelled by God to act as he did and himself as a martyr for the cause. He also heard voices convincing him that his course of action was the correct one, to the point of believing that he would become a martyr if he was shot and killed by the police, meaning he was not morally responsible for his offending actions.

33. In his earlier report of 16 June 2022 Dr Furst sets out the history of the offender. His childhood was unremarkable. He was first married at age 23. He undertook full-time work. There were two sons to the first marriage. It ended in about 2005. The second marriage in 2015 lasted four years with no children.
34. He was treated for depression in about 2006 and subsequently developed psychotic/manic symptoms. There is then the offending of 2008 referred to above.
35. Following the 2009 proceedings he was supervised by the Mental Health Review Tribunal. He relapsed in 2013 when he stopped taking medication which I note is the time of the only significant offending in the interim.  The current offending occurred when he was no longer under supervision having been granted unconditional release in 2018 and with his community treatment order lapsing in November 2019. In 2020 he stopped seeing doctors altogether and adopted an itinerant lifestyle.
36. In my view it is plain, and I find, that the offender’s descent into antisocial behaviour and serious crime is directly connected to ceasing the treatment that he had been on from previous years.
37. There is something of a drugs and alcohol history but there is no suggestion it has a connection to the current offending.
38. Dr Hurst was told that the offender was hardly sleeping in the 4 to 5 months preceding the offending in September 2020 with only about one hours sleep per night. This suggests an elevated mood. In relation to the first count the offender said he had no choice but to steal the car. He described having an irresistible compulsion to light the fire of the Hillsong church and write the graffiti.  I have referred above to the fact that the Lismore Cathedral fire was prompted by obeying voices in his head.
39. Since the offending the offender has been in custody and has been treated for his schizoaffective disorder. Despite that he still hears instructional voices which he described as an ongoing teaching from God as to how to be spiritual. He drew a distinction between instructional voices and what he called directional voices which tell him to do things. There was reference to that when he gave evidence in the sentencing hearing and the distinction if there is one was rather blurred.
40. Dr Furst diagnosed the offender as suffering from schizoaffective disorder and also alcohol substance use disorder but in remission. As to schizoaffective disorder it is a chronic and severe mental disorder characterised by distortions in thinking and perception. Symptoms include hallucinations and delusions.
41. Dr Furst at page 7 makes an observation which was consistent with my observation of the offender giving evidence namely that he can appear lucid and logical but may then decompensate into mania and bizarre behaviour. Whilst the latter was not plainly evident in court the former was and at the end of his evidence the offender gave some answers of concern about instructional voices, specifically that he still hears them.  Whilst the evidence was these types of voices do not tell the offender to do things, the concern is that he is hearing voices.
42. Dr Furst says that when the offender is driven by mania associated with religiose and/or grandiose delusions he feels compelled to act, a phenomena generally described as an irresistible impulse or compulsion as he believes and perceives that he is acting in response to God’s instructions. He says that these were the primary factors operating at the time of the defacing of the Hillsong church with graffiti and setting a fire in the garden of the church and then driving to the pastor’s house. In respect of the Lismore offence the offender told Dr Furst a voice told him to set fire to the Cathedral. The view of Dr Furst, which I accept, as to what drove the offender to set both fires, is set out at [32] above. There was an attempt in cross examination of the offender to link the Hillsong fire to the personal dislike the offender has for Tim Strong. Yet the offender gave calm evidence denying that. There is a logical force in suggesting the motivation was personal, and it has support in the facts, yet the overwhelming feature is the delusional nature of the offender’s illness, and I accept Dr Furst in this regard.
43. Dr Furst suggests that the offender can be effectively managed in the community provided he has long-term treatment that is indefinite involuntary treatment in the community as a civilian or forensic patient. He recommends the forensic community treatment order that was commenced in 2021 continue whilst he is in custody, to be followed by long term in voluntary community treatment orders and/or hospital-based treatment for psychiatric rehabilitation when he was released on parole.
44. Consistent with the evidence and with the positions of the parties I find that there is clearly a causal connection between the state of mental health of the offender and the offending and that the principles of De La Rosa set out at [177] of that case have application here. That well-known passage is as follows:

177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] – [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] – [51]; R v Harb [2001] NSWCCA 249 at [35] – [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] – [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where 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. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● 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: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

45. It follows that the moral culpability of the offender is reduced as is the need to denounce the crime. It also means there is less need for specific and general deterrence. Depending on the adequacy of the treatment in custody it may or may not be that the offender’s mental health makes custody more onerous.
46. There remains of course the fact that untreated the offender is a significant danger to the community. Further whilst he has a good record of maintaining treatment when compelled to do so he was unable to recognise the need to remain on it without supervision. It is also important that the seriousness of this offending be properly recognised and that, whilst taking the above mitigating factors into account, the sentence remains proportional to the offending.
47. The offender is entitled to a 25% discount on his plea.
48. In terms of prospects that in this case means the prospect of the offender remaining suitably treated when back in the community so as to reduce as far as possible the prospect of further offending. The period between 2009 to date shows that when properly medicated the offending can be reduced to almost nil. That period also shows that when under supervision he is compliant. In my view this gives a basis for a significant allowance for special circumstances. There needs to be a lengthy term of supervision, and then beyond the term of this sentence such steps as can be taken to ensure further supervision as recommended by Dr Furst. Should that not be possible the longer period of supervision may serve to assist him in realising the need for the medication to be ongoing. I also note the more onerous conditions in custody due to Covid and that this is the first time in custody for the offender.
49. In terms of section 5 there is no argument that this is not a matter that requires a full time custodial sentence. In addressing the purposes of sentencing set out in section 3A whilst there is less need for deterrence and the need to promote rehabilitation there is of course significant need to protect the community as identified in the last point made in the passage quoted above from De la Rosa.  I note s3A sets of the purposes of sentencing as follows:

1. To ensure the offender is adequately punished
2. To prevent crime by deterring the offender and others from committing similar offences
3. To protect the community from the offender
4. To promote the rehabilitation of the offender
5. To make the offender accountable for his actions
6. To denounce the conduct of the offender
7. To recognise the harm done to the victim of the crime and the community

50. For reasons canvassed above, in this case it is the need to protect the community and to promote the rehabilitation of the offender that require most focus.  At the same time the sentence needs to be proportional, reflecting the objective seriousness of the crime.  It is necessary to consider each offence separately in determining the outcome, though the ultimate result is arrived at after considering the matter overall.

Determination

51. I propose to proceed by way of an aggregate sentence.  There are 6 offences to be sentenced, with Form 1 matters to be taken into account in respect of counts 1 and 4. The indicative sentences both before and after the 25% discount are set out in the table that follows. I note that the totality of the offending occurred between 14 September and 19 September a period of five days. The offending occurred in a period of mental ill-health. The facts recounted above show that the matters are occurring in the one course of events over time when after more than 10 years of medication the offender has over the period of 6 to 12 months leading up to the offending become unmedicated. The offenses, whilst separate events, clearly have as the common factor the mental ill health of the offender. In these circumstances there should be applied the principle of totality so that the overall criminality of the offending is properly reflected and is not disproportionate.  In this regard I note that in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

Table of indicative sentences

Sec	Offence	Obj Ser	Max Pen	Ind	After Disc
1	97(1)	Robbery whilst armed with an offensive weapon; s97; (and taking into consideration the F1 matters referred to above)	High low	20y	3y	27m
2	97(1)	Assault with intent to rob whilst armed with offensive weapon	Low	20y	2y	18m
3	97(1)	Assault with intent to rob whilst armed with offensive weapon	Low	20y	2y	18m
4	195(1)(b)	Intentionally damage property by fire (Hillsong)(and taking into consideration the F1 matter referred to above)	High low	10	2y	18m
5	195(1)(b)	Intentionally damage property by fire (Lismore Cathedral)	Mid	10	4y	3y
6	33B(1)(a)	Use weapon to prevent detention	High low	12	2y	18m

52. I have indicated the indicative sentences above both before and after applying the 25% discount for the guilty plea and taking into account where indicated the Form 1 matters.
53. In my view the appropriate term of imprisonment is seven years. In my view there should be significant special circumstances for the reasons stated above, namely the need for supervision and also the more onerous nature of custody resulting from Covid, which has been present throughout the offender’s time in custody to date and will continue.
54. I consider that the minimum period of incarceration required to appropriately reflect the criminality involved, which Spigelman CJ described in Simpson (2001) 53 NSWLR 704 as “the ultimate constraint”, to be 3 ½ years.

Orders

55. The offender is convicted of the 6 offences set out in the above table.
56. The offender is sentenced to an aggregate term of imprisonment with a non-parole period of 3 ½ years to date from 19 September 2020 and expiring on 18 March 2024 with a balance of term of 3 ½ years expiring on 18 September 2027.

Decision last updated: 08 September 2022