R v Robert ROSALIN

[2006] NSWDC 161

CITATION:	R v Robert ROSALIN [2006] NSWDC 161
HEARING DATE(S):	03/08/2006
JUDGMENT DATE:	3 August 2006
EX TEMPORE JUDGMENT DATE:	08/03/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [14]
CATCHWORDS:	Criminal Law - Sentence - Assault - Mental Health
LEGISLATION CITED:	Crimes Act
PARTIES:	Crown Robert Rosalin
FILE NUMBER(S):	06/11/0503
SOLICITORS:	NSW DPP Shopfront Youth Legal Centre

SENTENCE

1 HIS HONOUR: Robert Rosalin appears for sentence today. He pleaded guilty in the Local Court to two offences of assaulting with intent to rob in circumstances of aggravation but for reasons concerned with some defect in the committal papers, an indictment was presented today and the offender pleaded guilty once more to those two charges. However, the pleas were originally entered, if not at the earliest opportunity, then close to it so I will discount the sentence as I would otherwise have imposed by twenty-five per cent to reflect that circumstance.

2 The offences to which Mr Rosalin pleaded guilty both occurred in the early hours of Saturday 18 February 2006. The offender said that he was drunk. He met up with some friends of friends and for reasons which the offender could not explain he decided to approach an innocent passer by. This man was on Pyrmont Bridge when he was approached by the offender and another person. The offender said to him “Give me all your money”. The second person, although saying “Do not worry he is just pissed”, grabbed the victim by his throat and began searching his pockets. He said “Give me your money or we are going to bash you”. This offender, Mr Rosalin then joined in as well, putting his hand into the victim’s pockets before punching him to the right side of his face. Other punches were thrown but the victim was unaware as to exactly how many.

3 This victim eventually broke free and then made a phone call to a friend of his who was on the other side of Pyrmont Bridge. It was the victim’s intention to tell his friend not to cross Pyrmont bridge because of the violent people on it at the time. In fact as he was being warned by means of his mobile telephone, the offender, this time with two other men, approached him. He grabbed his hand, the hand holding the telephone and pulled it towards him. One of the other men went behind him and began searching his pockets. The offender said “Give me your phone you little cunt, give us your money”. This man started to run away but the offenders caught up with him. Again threats were made and violence ensued.

4 Again, the victim broke away and was chased by the offender and others with him. Eventually, they caught up with him. They began gathering around him and yelling at him. They held him and grabbed at him. He was then struck again this time by the two men with whom the offender was in company.

5 In case I did not make it clear earlier that the form of the offences to which the offender has pleaded guilty are the aggravated form, because the offender was in company at the time of the offences. The offender was arrested soon after these offences occurred. Security officers were watching the whole thing on close circuit television. They and police effected the arrest of the offender and he has been in custody since that time.

6 The offender has a criminal history. In 2002, he was dealt with in a Children’s Court for an offence of robbery in company for which he received a community service order of 250 hours and common assault for which he was placed on probation. He was not on any form of conditional liberty at the time of these offences but the similarity between the offence for which he was sentenced in the Children’s Court and these offences is immediately obvious.

7 The offender was born in 1985 and was diagnosed with a mental illness. In February 2004, it was realised at the time that he suffered from a psychotic disorder and he has now been diagnosed with schizophrenia. When unwell, he presents as hostile, threatening and intimidating. However, lest it be thought that there was a substantial link between the commission of these offences and his mental illness, the offender committed these offences at a time when he was being treated. The offender himself does not seek to justify his conduct by referring to his mental illness but does explain it by saying that he was drunk at the time.

8 The offender has spent some time living in the Philippines and some time living in Australia. He has suffered some significant difficulties in his life. His father was killed in the Philippines when he was only two years of age. At the age of nine he found his stepfather dead in the bathroom. It was in those circumstances that the offender and his mother returned to the Philippines for a short time before coming back to Australia in 1994. She then says that he then got onto the wrong side of the road. Significantly, at this time, the offender’s mother was herself incarcerated leaving the offender at a very young age alone and without support.

9 In those circumstances, it is easy to understand why the offender could have mixed with the wrong people. The offender has had some employment in the past but no doubt any difficulties he has in maintaining work are due to his mental illness. The offender has been admitted to psychiatric hospitals as an involuntary patient on two occasions. He responds well to treatment and he is compliant with his medication.

10 He is also being treated by community health centres and works with mental healthy staff effectively to maintain his mental health. He does however, have problems with drugs and in particular alcohol and as I have mentioned repeatedly is suffering from mental illness. Amongst the many consequences of those circumstances are these: the offender is a person upon whom it is inappropriate to visit a sentence containing a significant component of general deterrence. Also, there are obvious issues regarding the offender’s release from custody. He will need an extended period of supervision on parole and most beneficially in a residential rehabilitation program in order to ensure as much as possible that the offender has the best chance of leading a law abiding lifestyle upon his release from custody.

11 These were serious offences. They represented a significant breach of the peace. The young men who were the victims of these offences were entitled to spend a happy evening on the Pyrmont Bridge without being subject to violence and to the risk of their property being taken. The offences carry maximum penalties of twenty years each which demonstrates the seriousness with which the legislature considers conduct such as that indulged in by this offender.

12 The offender was asked how he thinks the victims of these offences felt. He said that they appeared to be sad and depressed. I am not satisfied that these are genuine expressions of remorse. In any case, even if the offender does genuinely believe what he said there is no indication that the offender feels sorry for having caused those consequences to the victim. Not too much however, should be made of this. No doubt, the offender’s limited insight and limited remorse is closely related to his psychiatric state.

13 The report from the service manager of Mission Australia suggests that this Court should manage Mr Rosalin’s case in the best interest of his long term development as a member of the community. That is of course one of the aims of sentencing Mr Rosalin but that is not necessarily done simply by imposing a sentence which is lenient. The offender needs to have brought home to him the problems that will follow him if he continues to abuse alcohol and drink whilst being treated for his mental illnesses.

14 For that reason a sentence which contains a component of personal deterrence is necessary in the present case. On each offence I will impose concurrent sentences. They will date from 18 February 2006 which is the day on which the offender went into custody following his arrest on these matters. I set a non parole period in each case of twelve months with a total term of three years. The offender is to be released to parole on 17 February 2007.

15 In addition to the standard conciliations of parole it is a condition of the offender’s release to parole that he is released to a residential rehabilitation facility. It is a further condition of his release to parole that he is supervised whilst on parole by the Probation and Parole Service.

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