R v Rozs

[2021] NSWDC 350

District Court

New South Wales

Medium Neutral Citation:

R v Rozs [2021] NSWDC 350

Hearing dates:

2 February 2021, 9 March 2021

Date of orders:

9 March 2021

Decision date:

09 March 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of three years and three months, with a non-parole period of 19 months: at [24].

Catchwords:

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Compulsory drug treatment detention — Imprisonment

SENTENCING — Relevant factors on sentence — General principles — Maximum penalty — Objective seriousness — Moral culpability

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Potential dangerousness — Special circumstances

Legislation Cited:

Crimes Act1900

Crimes (Sentencing Procedure) Act 1999

DrugCourt Act 1998

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Category:

Sentence

Parties:

Regina (Crown)

Isaac Rozs (Offender)

Representation:

Ms S Foggo (Solicitor for the Office of the Director of Public Prosecutions)

Mr P Townsend (Solicitor for the Offender)

File Number(s):

2020/79046

Judgment

1. Isaac Rozs, aged 23 years old, has pleaded guilty to one count of aggravated break, enter and commit serious indictable offence, being reckless wounding, contrary to s 112(2) of the Crimes Act1900. This offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. The maximum penalty and standard non-parole period are important yardsticks in the sentencing process to be carried out in accordance with the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

2. The orders that I will make at the end of these reasons will be that he is convicted of the offence and I impose a term of imprisonment of three years and three months with a non-parole period of 19 months and a finding of special circumstances. The term of imprisonment will commence from today. I will also order that he be referred to the Compulsory Drug Treatment Program.

3. It is conceded that he is entitled to a 25% discount for the utilitarian value of his early plea of guilty. He has been in custody since his arrest on 11 March 2020 and in the exercise of my discretion, I will order that the term of imprisonment commences today, given that he is serving a balance of parole until 27 July 2021.

4. As Mr Townsend for the offender conceded in his helpful written submissions, his client has pleaded guilty to a very serious crime. The victim was attacked and wounded in his own home early in the morning. There were other people in the house, including a child. There were six individual stab wounds inflicted on the victim by the offender, though each of those wounds was not particularly serious. They penetrated skin and muscle which caused no injury or damage to organs or bones. Mr Rozs was on parole, having been released to parole only six weeks before the offence.

5. The offence occurred on the evening of 10 March 2020. The victim was living at Mittagong, sharing a house with three other adults. The victim was Nathan Cass aged 33. A gentleman called Stokes was at the home of the victim on that evening and left about 3am. On the way home Stokes met up with the offender. Stokes and the offender went to Stokes’ residence. At about 5.30am the offender left Stokes’ home on foot. At about 6.40am the offender turned up at Mr Cass’ home; he seemed erratic and rushed. The offender threw kicks and punches towards Cass. The victim tried to protect himself and fight off the offender, and he was asking, “Where’s the bud?” The victim felt like he was being punched and kicked, but after some time he realised he was wounded and had been stabbed. The offender was wielding a sharp object described as an envelope opener or a nail file, about 10 to 15 centimetres long and made out of metal. The fight continued and the victim ended up on the ground, where he was stabbed in the leg, before the offender left through the damaged door. Police turned up and took the victim to the hospital.

6. At 8.30am Stokes was at home and the offender returned to his residence. He noted that the offender was in a state and he said to him, “Why are you sorry?” He said, “I think I’ve stabbed Nathan, I don’t know what happened.” Later that afternoon the offender was seen at Bowral Hospital with an injury to his left leg; he was arrested by Police.. An interview was not conducted as police formed the view that he was heavily under the influence of a prohibited drug.

7. Mr Rozs has a very lengthy criminal history, involving significant periods in custody, and as the Crown acknowledged the risk of institutionalisation is a matter to be taken into account in the sentencing process.

8. The sentence assessment report describes him as residing with his anti‑social brother in the Moruya area prior to his arrest. His mother said that she was willing to support her son. He was unemployed and in receipt of a Disability Pension. His offending was due to being under the influence of methylamphetamines and unstable mental health.

9. He said that he wants to be sentenced to a term of at least 18 months so that he can complete offence targeted programs in custody through the Compulsory Drug Treatment Correctional Centre to address his substance addiction.

10. He has had a daily methylamphetamine habit and has used cannabis since he was 15. He is currently receiving a monthly dose of Buprenorphone injection in custody to address methylamphetamine addiction.

11. He appeared to minimise his violence and aggression, stating that he is only violent and aggressive in custody, but then he supposed that he felt emotional at the time of this offence and when the victim kicked the door and glass shattered in his face he said it caused him to “spin out” which is when he started punching and stabbing him.

12. He is currently medicated for schizophrenia and depression. He had been un-medicated for about three weeks prior to this offence. He displayed insight into the impact of his offending and said he felt sorry for the victim and did not know why he had committed the offence. He was assessed as being at a high risk of reoffending.

13. There is a lengthy and helpful report of a psychologist, Dr Katie Seidler, and the offender affirmed the truth of the history set out in that report when he gave evidence on the last occasion.

14. His father was described as a spinner and a mental case, who suffered from schizophrenia, and was in and out of hospital. His father was an abuser of illicit drugs. Isaac was made a ward of the state when he was removed from his mother’s care at the age of 12. His family life was very rough. He was placed with a paternal aunt with whom he had a poor relationship. He was only educated until year six. Illicit drug use and criminal behaviour has been part of his life since childhood. He acknowledged that he immediately relapses into drug use as soon as he is released into the community. He even acknowledged that he was under the influence of drugs at the time of the interview with Katie Seidler.

15. When asked why he used so many drugs he described feeling like an ant when he is not drug affected, but like a lion when he is affected by drugs. He said he has contracted Hepatitis C four times from sharing needles while in custody and was positive for that condition again at the time of the interview.

16. He told Dr Seidler that he hated himself for the offending and that he recognised in the last four years his offending has become increasingly violent. He said he used to have morals and a big heart, but he says that he lost it all from the age of 18. He said that his transfer from juvenile detention to an adult correctional facility at age 18 was the worst thing he had ever done, but notwithstanding that he said he loves it too much in here, that is, in custody. The longest time he has been at liberty was apparently for only about three months from the age of 15. He even said that he had offended in the past in order to come back to gaol, because he feels he is unable to cope in the community and he feels more respected while in prison. He feels that he has no one to support him when he gets out of prison. He says that his mother and his friends are on drugs. He was diagnosed with ADHD when he was five years of age and described symptoms of schizophrenia to Dr Seidler.

17. In her report Dr Seidler notes the psychiatric report of Registrar, Dr Levine, through the Justice Health and Forensic Mental Health Network dated 20 November 2013 which indicated that he needed ongoing monitoring of his mental state as he has fluctuant psychotic lapses, substance abuse services, psychotherapy targeting reactive Attachment Disorder and family interventions targeting Conduct Disorder.

18. A specialist psychologist reported in 2012 that Mr Rozs had come into the care of the Department after an excess of 80 reports pertaining to exposure to domestic violence, illicit drug use, anti-social behaviour of the children, criminal activity of the children, lack of supervision of the children and the state of the home environment. Further, the specialist psychologist quite correctly described Mr Rozs as having had

“… a disrupted childhood and has been exposed to domestic violence, drug and alcohol abuse and neglect within his family home. As a result [he] appears to have disrupted patterns of attachment and difficulty appropriately regulating his emotions … [Mr Rozs] has few attachments in his life, and therefore has the increased tendency to associate with antisocial peer networks”

19. Dr Seidler refers to the report of a forensic psychologist, Professor Hayes, dated November 2018, in which assessed Mr Rozs’ intellectual functioning as below 96% of his aged peers, with his verbal skills being much poorer than those in the non-verbal domain. He was described by Professor Hayes as a “young man with little insight” who has had “a dysfunctional, chaotic personal background marked by being in violence, neglectful and unstable situations”

20. Dr Seidler says,

“Not surprisingly on the basis of his difficult and neglectful early life, Mr Rozs developed into a fragile and vulnerable young man, who could not continue in mainstream education and whose functioning deteriorated rapidly from adolescence…

In essence, [he] is a person for whom the normal developmental and socialisation process failed, which is, in part, a function of exposure to repeated and serious trauma, with a foundation of disturbed attachment.”

21. Dr Seidler’s report recognises that Mr Rozs has high needs with respect to intervention support and supervision, specifically in relation to mental health treatment, substance abuse intervention, education and employment training, social and living skills training, disability support, case management support and the establishment of a new and supportive pro-social peer group. She recommends a referral to the Compulsory Drug Treatment Centre so that he can be supported in an attempt to develop community living skills and establish greater independence and autonomy in a graduated fashion. She also recognises that his progress to stability, independence and pro‑sociality in the community will likely be a more slow one and will require several more transitions through the criminal justice system. She says it is commendable that he is starting to consider that he needs to make changes that will eventually take him out of the criminal justice system And emphasised that it is important that he have a positive experience of working with professionals and supports which will encourage his change over time.

22. In assessing objective seriousness, the Crown correctly points to there being no warning or provocation prior to the commencement of the assault. There were multiple kicks and other blows and a weapon was used to inflict multiple stab wounds. The victim was airlifted to Liverpool Hospital for treatment, and the victim was at his home. I accept that the offending is towards the mid-range of objective seriousness for this type of offence.

23. The objective seriousness of the offence, his lengthy criminal record, which does not entitle him to leniency, the expressions of remorse and the recognition by the offender of a need for change, are all considered against a background of a profoundly disadvantaged childhood and upbringing, which, as Mr Townsend points out significantly mitigates his moral culpability in the light of the principles set out in Bugmy v The Queen (2013) 249 CLR 571. I accept Mr Townsend’s submission that a finding of special circumstances should be made. Notwithstanding that he was on parole and had only been in the community for some six weeks at the time of this offending, the protection of the community is to be considered in the light of his need for intensive care in the Compulsory Drug Treatment Program, so that a longer period of supervision on parole would allow for a structured release supervision plan that addresses the issues that continue to confront him.

24. For those reasons the orders that I make are, as I indicated:

1. The offender is convicted for the offence.

2. Taking into account the discount of 25% for the plea of guilty, I impose a sentence of three years and three months commencing 9 March 2021.

3. I impose a non-parole period of 19 months, expiring on 8 October 2022; and

4. I find special circumstances

5. Pursuant to s 18B of the Drug Court Act 1998, I refer to the offender to the Drug Court to determine the offender’s suitability for a Compulsory Drug Treatment Order.

25. Is there anything else, Ms Crown or Mr Townsend?

26. TOWNSEND: No thank you, your Honour.

27. FOGGO: No, your Honour.

28. HIS HONOUR: Thank you very much for your assistance both of you.

29. And, Mr Rozs, I do hope that this drug treatment program has some benefit for you.

30. OFFENDER: Thank you I appreciate that.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 26 July 2021