R v Roberts
[2011] NSWDC 212
•03 November 2011
District Court
New South Wales
Case Title: R v ROBERTS Medium Neutral Citation: [2011] NSWDC 212 Hearing Date(s): 3 November 2011 Decision Date: 03 November 2011 Jurisdiction: Criminal Before: Berman SC DCJ
Decision: Referred for assessment as to his suitability to serve sentence by way of an Intensive Correction Order
Catchwords: CRIMINAL LAW - Judgement - Sentence Hearing - Cultivate a commercial quantity of prohibited plant by indoor means - Cannabis - Possess LSD - Using electricity without authority - Interfering with network operators - Possess protected fauna - Form 1 - Assessment for suitability to serve sentence by way of an Intensive Correction Order
Legislation Cited: Cases Cited: Texts Cited: Category: Sentence Parties: The Crown
Gareth Llewellyn Kidd RobertsRepresentation - Counsel: Mr R. Nicol - The Offender
- Solicitors: The Director of Public Prosecutions
Crawford and Duncan LawyersFile number(s): 2010/408299 Publication Restriction:
JUDGMENT
HIS HONOUR: Gareth Llewellyn Roberts appears for sentence today on a number of matters; cultivate a commercial quantity of prohibited plant by indoor means; supply prohibited drug (namely some cannabis); possess some LSD, as well as a number of matters on the Form 1 which are to be taken into account for the cultivate offence; using electricity without authority, interfering with network operators, and possessing a protected fauna (relating to a snake), which Mr Roberts had in his possession, that snake not being registered.
The number of offences and their seriousness is immediately suggestive of the need to impose on Mr Roberts a sentence of some severity.
The offences were detected when police went to his home on 7 December 2010, armed with a search warrant. They knocked on the door. Mr Roberts opened it. Police immediately smelled a strong odour of cannabis. The offender took them to a rear door that appeared to go under the house, he used a key pad to open the door and once inside police located three separate rooms, each containing growing cannabis plants and sophisticated equipment used for its cultivation. There were 119 cannabis plants in one room, twenty-one in the second room, and forty-five in the third room, thus there was a total of 185 cannabis plants found.
As well as the growing plants, there was a significant quantity of cannabis; 3.8 kilograms in fact. Police also discovered two sheets of coloured cardboard, segregated into small squares, which on analysis were found to contain LSD,
The offender made admissions to the police about cultivating the cannabis plants, bypassing the electricity supply, and his knowledge of the loose cannabis about the premises. He was taken to the police station and has remained in custody since that date.
Mr Roberts is twenty-five years of age. He had a happy childhood but matters started to go downhill in a number of areas, particularly after his father was diagnosed with early onset Alzheimer's disease. His father died in February 2010, but leading up to his unfortunate death his behaviour deteriorated, which caused a great deal of distress in the family and which distressed Mr Roberts considerably.
Mr Roberts initially did well at school but he left in year 11 without completing his HSC. He has worked since then for a supermarket, and at the time of his arrest he was working as a train conductor for State Rail. He married, and his wife was living with him at the time of his arrest, but that relationship appears to be on the rocks. She does not visit him in custody very often and she is not in Court to support him here today.
A psychological report was tendered today. Much more than most such reports, I found this one to be helpful. It describes a number of challenges that Mr Roberts faces as regards his mental wellbeing. He is, for example, currently on anti-depressant medication, and he was being treated in a similar way before his arrest.
He suffers from an eating disorder. He has a serious problem with alcohol, so much so that he would consume enormous quantities of alcohol by himself and this seems to be one of his main occupations; that, and cultivating his cannabis plants.
His problems with alcohol have continued whilst he has been in custody because he has been dealt with whilst in custody for making alcohol. Unsurprisingly, he has problems with drugs too, using various forms such as cannabis and ecstasy in the period up to his arrest.
The psychologist says that there appears to be a strong self-medicative component to his abuse of alcohol whereby he reportedly "drank his emotions away". Given the distress of watching his father deteriorate and die, one might be forgiven for thinking that a person in Mr Roberts' position might easily adopt that attitude.
The offender pleaded guilty at the earliest opportunity and so the sentence I will impose upon him will be twenty-five per cent less than it would otherwise have been.
The material suggests the need for intensive supervision of the offender to deal with the various problems he faces in life. The purposes of sentencing are varied and often work in competing directions but ultimately what I do is fashion orders which will protect society. In most cases it is thought that where people commit serious offences the best response is to impose harsh sentences upon them, to deter others who may be tempted to act in a similar way.
On occasions, however, this Court, and even the Court of Criminal Appeal, recognise that the protection of society can sometimes best be achieved by focusing on the rehabilitation of a particular offender. I note that the offender has spent almost eleven months in custody. The Crown quite properly did not suggest that he would need to spend more than two years further in custody. That raises the consideration of the possibility of whether it would be an appropriate order to impose a further sentence of imprisonment upon Mr Roberts but order that it be served by way of an intensive corrections order.
Such a means of serving a sentence is by no means a necessarily lenient one. Unlike a suspended sentence there is a real component of punishment as well as rehabilitation. In my view if I were simply to impose a sentence of imprisonment to be served full-time upon Mr Roberts, and make a finding, of course, of special circumstances in his favour, the resources - limited as they are - of the Probation and Parole Service to supervise Mr Roberts upon his release on parole would not be of the same intensity as the supervision which comes with an intensive corrections order.
I fully appreciate that, by focusing on Mr Roberts' rehabilitation, I am giving less weight to general deterrence and even, perhaps, personal deterrence, but as I have tried to suggest earlier, there are occasions - and this is one - where the protection of society is best achieved by focusing on rehabilitation.
I am going to refer Mr Roberts for assessment as to his suitability to serve his sentence by means of intensive corrections order, having determined that the sentence I am likely to impose upon him, if it were to date from today, would be likely to be two years or less.
It is always possible - and possibly more than that - that Mr Roberts will be found to be unsuitable for an intensive corrections order and if he is not suitable, he must, as Mr Nicol concedes, spend further time in custody. If he is found to be suitable, however, I consider it appropriate that any further term of imprisonment I might impose would be served in that manner.
Accordingly, I will adjourn this matter to 9 December 2011 at 2pm. I order an assessment be made as to his suitability to serve a sentence by means of an intensive corrections order.
Mr Nicol, as well as the standard conditions, if your client is suitable for an intensive corrections order, I can impose additional conditions and there are some recommendations made in Dr Seidler's report as to your client receiving treatment with psychologists, being referred for an atheroma, his general practitioner. I would like you and possibly the Crown to do, is to discuss possible further conditions you think appropriate having looked carefully at Dr Seidler's report in order to enhance Mr Roberts's rehabilitation.
Mr Roberts do you understand what I have done? You probably were not expecting this when you came to Court, but what I have done is this, the Probation and Parole Service are going to come and see you, they are going to make enquiries as to whether you can serve the rest of your sentence in what is called an intensive corrections order. Now, that is not an easy way of serving your sentence by any means. For a while you are subject to a curfew, and for you one of the hardest things might be, that you are not allowed to drink alcohol. So you should cooperate with them when they come and see you and do all that you can to satisfy them that you will be able to meet their requirements, because if you do not, if you are not suitable for an intensive corrections order, you will be in gaol for a while longer. Do you understand that? Right.
Thank you Madam Crown and Mr Nicol, I will see you both on 9 December.
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