R v Pallister

[2023] NSWDC 643

District Court

New South Wales

Medium Neutral Citation:

R v Pallister [2023] NSWDC 643

Hearing dates:

10 March 2023

Date of orders:

10 March 2023

Decision date:

10 March 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 The offender is convicted.
2 I impose a term of imprisonment of 5 years with a non-parole period of 2 years to date from 27 December 2022. The non-parole period will expire on 26 December 2024 and the head sentence will expire on 26 December 2027.
3 The offender will be eligible to be released on parole on 26 December 2024.

Catchwords:

CRIME – robbery armed with an offensive weapon

CRIME – disposing of stolen property

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Legge v The Queen [2007] NSWCCA 244

R v Henry (1999) 46 NSWLR 34

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Gavin Pallister (Offender)

Representation:

Counsel:
S Tam (Crown)
D Bhutani (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
AA Criminal Lawyers (Offender)

File Number(s):

2022/79176

Publication restriction:

None

JUDGMENT

1. Gavin Pallister (the offender) appears for sentence after pleading guilty in the Local Court to the offence of robbery armed with an offensive weapon, contrary to s 97(1) Crimes Act 1900 (NSW). The maximum penalty for the offence is 20 years imprisonment.

2. The offender also asks the Court to take account the offence of disposing of stolen property where the stealing amounts to a serious indictable offence, contrary to s 188(1) Crimes Act 1900, on a Form 1 schedule.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties tendered an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. On 18 March 2022, Drew Radinoff (the victim) attended Crowbar in Leichhardt with a friend. He remained at Crowbar until around 12.30am, when he left and attended a Gentlemen’s Club in Martin Place.

9. The victim left the Gentlemen’s Club at around 5.20am on 19 March 2022. The victim walked from Martin Place toward the QVB on George Street, Sydney.

10. While the victim was walking, he saw the offender ask someone nearby what the time was. The person did not respond. The offender approached the victim and said with an aggressive voice, “What are you fucking looking at, do you have the time”. The victim responded, “Sure, I’ve got the time”.

11. The victim reached into his right-hand side pocket of his pants and pulled his phone out to check the time. The victim was looking down at his phone when he felt the offender come behind him, putting his left arm around him and using his right hand to hold something to his neck.

12. The offender told the victim that he wanted his phone and wallet. The victim told the offender that he did not have a wallet, only his phone. The victim felt a sharp object against his neck, pressing on his skin. The victim was terrified, so he dropped his phone. The phone landed in the offender’s hand. The offender then walked off down George Street towards Wynyard. The victim described the offender as being of stocky build, about 6 foot tall with short hair and wearing a red, white and blue horizonal striped jersey. The victim described the iPhone as an Apple iPhone 11 with a green background on the home screen.

13. After the offender had walked away, the victim was approached by a security guard from the Hilton Hotel, who contacted the police. The entire incident was captured on CCTV provided by the Hilton Hotel.

14. On Saturday 19 March 2022, police were travelling down Pitt Street, Sydney when they heard a broadcast about the robbery suspect being located nearby. When police arrived, they identified the offender as the person matching the description provided to them. The offender was standing with another male, later identified as Joshua Peckham. Mr Peckham was searched and an Apple iPhone, matching the description of the victim’s phone, was found in his pocket. When questioned about the phone, Mr Peckham told police that it was not his phone and that the offender had given it to him. The phone was shown to the victim who confirmed it was his, it was then returned to him.

15. Police placed the offender under arrest and cautioned him. He was transported to the Day Street Police Station, where he disclosed that he had taken heroin and “G” the night before and was still feeling its effects. He was taken to Royal Prince Alfred Hospital due to his level of intoxication and was returned to police custody later in the day.

The Offender’s Case on Sentence

16. The offender tendered the following documents:

1. Psychologist report of Dr Thomas Dornan dated 3 March 2023;

2. Reference of Meleene D’souza (Anglicare, NDIS case manager) dated 22 February 2023; and

3. The offender’s NDIS plan dated 14 March 2022.

17. The offender also gave brief evidence including reading a letter of apology that he had written. He was also cross-examined. The offender gave evidence that he has been regularly taking a number of medications since he has been in custody since his arrest. He has found these to help him to think clearly and want to change his trajectory in life. As a witness the offender presented as polite, articulate, thoughtful and contrite.

18. The following is a precis of the documentary evidence relied on by the offender.

19. The offender is the youngest of two children. His parents separated shortly after his birth and the offender rarely saw his father after that. He also has an older step-sister.

20. The offender’s mother told him that his father had substance abuse issues and was physically abusive to his mother. The offender reported that his mother prevented contact between the children and their father, as she was concerned for their safety. The offender’s father passed away in 2017 and he had “very mixed emotions” about his death.

21. The offender described his mother as a good mother, who did as much as she could as a single parent. She was not always present through the offender’s childhood as she worked long hours to provide for the family.

22. His mother entered into a relationship when the offender was eight years old which lasted for 10 years and in which his mother experienced significant physical abuse. The offender was also abused by his mother’s partner and when his mother tried to intervene, she would be beaten so badly that she could not work for days. The offender reported poor self-esteem and a decline in his mental health as a result of this abuse.

23. He reported a positive relationship with his siblings, who supported him throughout this time.

24. When the offender entered high school, he was placed into care as a result of injuries he obtained during accidents, which were seen by his school as signs of abuse. The offender spent two years travelling between a maternal aunt’s home in Melbourne, his mother’s home, and foster care. The offender reported that his mental health was very poor at this time.

25. By age 14, the offender had left care and returned to his mother’s home. He began associating with an antisocial peer, who encouraged him to miss school and engage in drug use. He had behavioural issues at this time. The offender explained that he was trying to gain his mother’s attention by rebelling.

26. In his later adolescent years, the offender began taking drugs more frequently, and one day, under the influence of drugs, destroyed his mother’s home and assaulted her. The offender was arrested for this and whilst the offender was in custody, he was sexually abused by a female youth worker. The offender stated that the sexual abuse “messed [him] up” and that his mental suffered. The offender has engaged a solicitor and is in the process of making a civil claim in relation to this abuse.

27. Upon his release from custody, the offender experienced a brief period of homelessness before his sister took him in at age 16. He lived with his sister for three months, before beginning to use drugs again and destroying her home.

28. The offender lived with his partner and her family when he was 17. He has since experienced periods of homelessness coinciding with increased drug use, interspersed with periods of imprisonment.

29. The offender struggled in both primary and high school. He anticipated that school would provide some relief from his home life, but instead he was bullied by his peers for his low socioeconomic status and absence of school resources and new clothes. He reported that his teachers also picked on him after his diagnosis of dyslexia. The offender also experienced bullying in high school and became increasingly reactive and angry, retaliating by fighting his peers, instigating fights and smashing windows.

30. The offender left school in Year 9 and began working in a meat processing plant for a year, before moving on to work for Boral Asphalt. He moved to Melbourne with his partner and her family the following year, where he found a job loading and unloading shipping containers. He worked in this position for three or four years.

31. The offender’s drug use increased when he and his partner separated and the offender moved to the country. The offender had a job seasonal fruit picking.

32. In 2014 the offender was broke and needed money before Christmas for his children. He carried out an armed robbery, for which he was imprisoned for two and a half years.

33. Upon his release from custody, the offender quickly relapsed into drug use and faced periods of further imprisonment in 2017, before being sentenced for armed robbery and assault.

34. The offender reported having few prosocial peers in the community. The offender indicated that as his mental health declined and his drug use increased, he lost all contact with friends and began associating with antisocial peers with whom he has little in common beyond drug use.

35. The offender has had one significant relationship, which began when he and his former partner were both 17. This relationship was largely positive, but the relationship ended as a result of the offender’s drug use and dysregulated behaviours. The offender has four children from this relationship. His former partner cut all contact with him after he was imprisoned the first time. She does not let the offender see their children. His inability to see his children contributes to his poor mental health. The offender told Dr Dornan that he no longer wanted to be an “absent father” and that he would like to re-establish contact with his children.

36. The offender was approved for NDIS funding, and his NDIS support began on 14 March 2022. The offender’s NDIS plan provides support for attending appointments in the community, support with finding accommodation and employment and capacity building. The offender told Dr Dornan that Anglicare manages his funding and that his case manager is very helpful. Ms D’souza, the offender’s NDIS case manager from Anglicare, will be supporting the offender upon his release from custody.

37. The offender reported that he first smoked cannabis at age 14. He began to smoke cannabis daily. He told Dr Dornan that he began using drugs to self-medicate for the trauma he was experiencing at home. By age 15, the offender began using amphetamines and only ceased using them when he switched to crystal methamphetamine. At age 17, the offender began using heroin to offset his amphetamine use and help him sleep. The offender reported that he was abstinent from drugs when he was in custody but was unable to remain abstinent in the community.

38. The offender reported that he began using crystal methamphetamine in 2013 due to a further decline in his mental health. He reported daily use and going days without sleep, becoming anxious and experiencing symptoms of withdrawal if he did not use the drug.

39. The offender also engaged in the inhalation of solvents in his late 20s, usually when he was unable to access crystal methamphetamines. 18 months prior to entering custody on this occasion, the offender also began using gamma hydroxybutyrate (GHB) daily.

40. In his most recent period of incarceration, the offender experienced difficult withdrawals. He became dysregulated and aggressive, “smashing up the TV room” and assaulting a fellow inmate. This withdrawal was made worse by COVID-19 lockdowns. Dr Dornan opined that the offender’s description of his withdrawal was consistent with entering the prodromal stage of psychosis. This was managed by antipsychotic medications administered by Justice Health.

41. The offender has only engaged in treatment for his drug use once but did not finish the program because he became violent from drug induced psychosis. The offender expressed interest in engaging in further interventions before returning to his life in the community, through a residential rehabilitation program. The offender also expressed a willingness to participate in programs in custody, including the EQUIPS program to address his drug use. He has found the Buvidal Program in custody effective.

42. In the lead up to the current offending behaviour, the offender reported that he had been using crystal methamphetamine and GHB for at least 18 months. He noted that he may also have been using heroin prior to the offending but was unsure. The offender has limited memory of the evening in question. Prior to the offending, the offender was experiencing symptoms that Dr Dornan opined were consistent with a manic episode.

43. The offender expressed remorse to Dr Dornan and in his letter to the Court.

44. The offender has previously been diagnosed with Schizophrenia, Bipolar II Disorder, and Autism Spectrum Disorder. Dr Dornan concurred with these diagnoses.

45. Dr Dornan opined that the offender meets the criteria for Persistent Depressive Disorder, Posttraumatic Stress Disorder, Cannabis Use Disorder (moderate, in early remission), Stimulant Use Disorder (severe in early remission), and Opioid Use Disorder (severe, in early remission).

46. The offender has been prescribed weekly Buvidal Depot injection to manage his drug cravings, which has been effective thus far. He has also been prescribed monthly Abilify injections to manage his schizophrenia, Lithium to manage Bipolar Disorder, Catapres to manage symptoms of Post-traumatic Stress Disorder, and daily doses of Sertraline to manage his depressive symptoms.

47. Dr Dornan opined that the offender requires the following to improve his functioning and reduce his criminogenic risk factors: psychiatric and psychological treatment; a residential rehabilitation program; continuation on the Buvidal Program; positive and productive engagement in the community.

Objective Seriousness

48. The offensive weapon used was a sharp object, that was capable of inflicting an injury. The offence involved actual violence in that the victim was grabbed from behind and the weapon held against his neck. The value of the property taken was low. The offence involved little planning and was opportunistic. The victim was alone on the street late at night.

49. The Form 1 offence consisted of giving the stolen iPhone to another person.

50. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where an offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment for a late plea of guilty. There are some distinguishing features. This offender is not young and he has a significant criminal history, including for similar offences. The victim was not in a vulnerable class. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]–[59].

51. The offender had a deprived upbringing. He had limited contact with his father. He was exposed to and was the victim of domestic violence as a child. He went into foster care and was exposed to drug use at a young age, when he could not make an informed choice. He was the victim of sexual assault and experienced instability in his accommodation. He had limited opportunities for education. He has developed a complex mental condition characterised by disorganised thinking, self-destructive behaviour and a lack of consequential thinking. As a result of all of these factors, his moral culpability for the offence is reduced.

52. I have taken into account the maximum penalty for the offence.

Deterrence

53. General deterrence is of significance in dealing with serious personal violence offences such as armed robbery. The weight to be afforded to general deterrence in this sentencing exercise can be reduced because the offender’s mental condition makes him an inappropriate vehicle for general deterrence.

54. There is a need for specific deterrence because the offender has a long criminal history that presently makes him a danger to the community and because he poses a significant risk of reoffending.

Aggravating Factors

55. The offender was on parole at the time of committing the offence. He had been released from custody for a similar offence on 26 December 2021, on a parole period of 2 years. The State Parole Authority revoked his parole as a result of this offence, and he was ordered to serve the balance of his parole of 1 year 9 months and 21 days commencing on 19 March 2022 and expiring on 26 December 2023.

56. The offender has a record of serious personal violence offences and is to be sentenced for a similar offence. The offender was previously sentenced to imprisonment for similar robbery offences on two prior occasions and has served other periods of imprisonment for other offences.

Mitigating Factors

57. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender received approval for NDIS funding to obtain services to assist him with his mental condition about five days before his arrest. I accept that these services will provide him with a level of support that he has not previously had in the community. He also has the support of his mother. He has expressed a willingness to participate in interventions but has had limited success in the past. He has committed to taking medication for his mental health in custody and that has led to significant improvement in his ability to think clearly. I am satisfied that he has good insight into what led him into his offending conduct.

58. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. He expressed an apology to the victim, the Court and the community. I accept that he has accepted responsibility for his actions, expressed remorse to Dr Dornan and that he is genuinely contrite. His plea of guilty also indicates remorse.

59. The offender’s complex mental condition has and will make his time in custody more onerous.

Other matters

60. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions have made the offender’s time in custody more onerous and that they may be imposed for some time into the future.

60. I will backdate the sentences to be imposed to 27 December 2022 to take into account the offender’s presentence custody and to partially accumulate these offences on the balance of parole period.

Penalty

62. The offender is convicted.

63. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that no penalty other than imprisonment is appropriate.

64. I make a finding of special circumstances. The offender has a complex mental condition including addiction issues that will be best treated in the community. He has NDIS funding that can be applied to get him the necessary treatment. He is also at risk of institutionalisation. He will benefit from a longer period of supervision on parole.

65. Taking into account the 25% discount for the plea of guilty and the matter on the Form 1, I impose a term of imprisonment of 5 years with a non-parole period of 2 years to date from 27 December 2022. The non-parole period will expire on 26 December 2024 and the head sentence will expire on 26 December 2027.

66. The offender will be eligible to be released on parole on 26 December 2024.

**********

Decision last updated: 01 August 2024