R v Russell

[2020] NSWDC 869

District Court

New South Wales

Medium Neutral Citation:

R v Russell [2020] NSWDC 869

Hearing dates:

13/11/20, 16/11/20

Date of orders:

16/11/20

Decision date:

16 November 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years 6 months (7/8/20-6/2/24). I find special circumstances.

The indicative sentences are:

Seq 1 Robbery – 2 years 9 months

Seq 8 Robbery – 3 years (Form 1 taken into account)

Seq 4 Take motor vehicle with occupant on board – 2 years 6 months with NPP 1 year 9 months.

For seq 5 and 6 on the s166 certificate – s10A conviction but with no other penalty.

For seq 7 on the s166 certificate – I impose a fixed term of imprisonment of 4 months to date from 7/8/20

I find that the offender is an “eligible convicted offender” and I refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order.

The report of Kris North dated 29/10/20 is to be provided to Corrective Services.

Catchwords:

Crime – Sentence – Robbery – Take motor vehicle with occupant onboard

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Court Act 1998

Cases Cited:

R v Henry and Ors (1999) 46 NSWLR 346

R v Black [2001] NSWCCA 41

Bugmy v The Queen [2013] 249 CLR 571

Category:

Sentence

Parties:

NSW DPP – Crown
Damian Russell - Offender

Representation:

Mr Kanakaratne for Crown
Mr Averre for Offender

File Number(s):

20/6585, 20/70745

sentence

1. Mr Damian Russell is for sentence in relation to three offences today, two of those being robbery offences and the third being an offence of taking a motor vehicle with an occupant onboard. The maximum penalty for the robbery offence is 14 years’ imprisonment in each case and for the take motor vehicle offence, a ten year maximum is prescribed, as well as a standard non-parole period of three years. In addition to those matters, the offender asks that in sentencing him for the second, sequence 8 robbery, that I take into account offences on a Form 1 document, which I intend to do. In addition, there are three matters on a s 166 certificate that I am asked to deal with under the relevant provisions, which I will do also. Mr Russell has pleaded guilty at an early stage and is entitled to a discount of 25% on account of the utilitarian value of that plea.

FACTS

2. The facts of the offences, which are agreed, involved a series of criminal acts that commenced on 4 January 2020 and ended on 6 January 2020. The first offence in time, which is one of take and drive conveyance, is on a Form 1 document and occurred at about 12.30pm on Saturday, 4 January 2020. At that time, the offender was walking on George Street, Clyde. At the same time, Ms Dawn Koutalis was sitting inside her vehicle with the motor running as her husband, Edward, was reversing his vehicle, which was a Ford Falcon XR8, from the workshop of his automotive shop. Mr Koutalis had owned that car for 20 years and had made various improvements and enhancements to it.

3. After a brief interaction with Mrs Koutalis, who was still sitting in her car, the offender walked away but then returned to the Ford XR8 vehicle which Mr Koutalis had left in the driveway with the engine running while he went to close the doors to his workshop. The offender then entered the Ford and drove it away. Although Mrs Koutalis tried to block him, the offender drove around her vehicle and drove off. A dash-mounted camera in her vehicle recorded the offender entering and driving off in the Ford. The car was found at about 10pm that night parked in a McDonald’s at Kellyville, which I will refer to later. The offender’s DNA was located on the steering wheel of the Ford.

4. The second offence in time occurred shortly thereafter and is on a certificate under s 166. That is the offence of drive in a manner dangerous and involved the offender’s driving of the stolen Ford. The offender’s driving was captured by a dashcam inside that car. This recorded the vehicle being driven away from George Street, Clyde and onto Parramatta Road, where the offender in heavy traffic crossed unbroken lines, drove on the wrong side of the road for about 200 metres, ran through two red lights, causing other cars to take evasive action, and travelled at a speed of up to 99 kilometres an hour in a 60 zone. He also drove onto the M4 motorway, where he travelled at one stage at 145 kilometres per hour in a 90 kilometre per hour zone. It appears that the offender then drove to the Richmond area, which is where the third offence in time occurred.

5. That offence is the first robbery offence for which he is to be today sentenced. That offence occurred at about 2.10pm on Saturday, 4 January 2020. At that time, the offender entered a Priceline pharmacy at Richmond and approached the counter with an item, apparently intending to pay for it. He then produced a $10 note, but when the 17 year old girl behind the counter opened the cash register, the offender leant over and put his hand on the cash. When the young victim took hold of his hand, he told her to “let go” and leant towards her, undoubtedly in an intimidating manner. After a short period, she did let go and the offender took $235 from the cash register and left. That incident was captured by CCTV.

6. After this, it appears that the offender drove the Ford XR8 to North Kellyville, where his offending continued. At about 9.53pm that same night, the offender drove Mr Koutalis’s Ford XR8 into the carpark of a McDonald’s at North Kellyville. He then got out of the car. At that time, a Mr Manothunga drove his grey Lexus into the same carpark, intending to pick up some food which he was to deliver.

7. This brings me to the second Form 1 offence. At that time, as captured on CCTV, the offender got out of the Ford and entered the Lexus, which he drove away. This car was located by police on 8 January 2020 near Werrington railway station and was found to be damaged beyond repair and also to have the offender’s fingerprint on the steering wheel. This take and drive offence involving the Lexus is a matter which I am asked to take into account on a Form 1 in sentencing for the next offence, namely a second robbery, the facts of which I will now describe.

8. The second robbery occurred on the same day at about 10.35pm, that is, about 30 minutes after the taking of the Lexus, when the offender in the Lexus entered the drive-through section of a McDonald’s at Kellyville Ridge. At that time, a 15 year old female employee was working in the drive-through section of the McDonald’s. The offender, who was out of the car at that stage, handed the young employee a $5 note, supposedly to pay for a thick shake. However, when she opened the till, the offender leant through the window, saying, “You’ve got a lot of money in there. You don’t need that money,” and then grabbed $50 notes totalling $470. When the employee tried to push the offender away, the offender grabbed her wrist and pulled her away, as well as pushing her in the chest, causing her to stumble backwards into the wall. As a result of this altercation, the 15 year old victim suffered a small cut to her left thumb, although she was no doubt significantly traumatised by what must have been a frightening incident. In sentencing for this offence, I will take into account the two matters on the Form 1, being the two offences of taking and driving, which relate to the Ford and the Lexus. After driving off in the Lexus from the McDonald’s, the offender, who has never held a licence to drive, committed two offences of drive unlicenced. I will deal with these offences, which are on a s 166 certificate, pursuant to s 167 of the Criminal Procedure Act 1986.

9. Turning, then, to the third offence for which the offender is to be sentenced, that is an offence of taking a motor vehicle with the occupant onboard. That was the final offence in the offender’s crime spree and occurred on 6 January 2020. At about 7.50pm that day, Ms Zoe Johnson was sitting in her Honda Civic in Villiers Street, Parramatta, responding to a phone message. The offender, who was standing near her driver’s door, said, “Get out of the car,” in an angry tone and leant towards the victim. She complied, but in doing so, took her handbag with her, in which the electronic car key was located. The offender then jumped into the car and drove it away while Ms Johnson called triple-0 and gave a description of the offender to police. On this occasion, the offender did not get far because the car stopped about 40 metres away due to an immobilising function associated with the key no longer being with the car. Police attended not long after and at about 9.30pm, they stopped and arrested the offender in another street in Parramatta. His DNA was found on the steering wheel of the car.

OBJECTIVE SERIOUSNESS

10. In sentencing the offender, I must make an assessment of the objective seriousness of his offences. The maximum penalties and, where applicable, standard non-parole period are not only guideposts to the sentencing exercise, but an indication that these offences are treated by the legislature as being objectively serious.

11. Dealing firstly with the two robberies, robbery is a crime not just against property, but against persons. The fear engendered by such a crime, together with the sometimes continued adverse effects on victims, establish robbery as a serious crime which requires serious punishment. In R v Henry and Ors (1999) 46 NSWLR 346, the New South Wales Court of Criminal Appeal issued a guideline for sentencing in cases of armed robbery.

12. In this case, of course - that is, Mr Russell’s case - the robberies for which he is to be sentenced do not involve him being armed. However, in R v Black [2001] NSWCCA 41, the Court of Criminal Appeal said that the guideline judgment in Henry may well afford some assistance in sentencing for other cases of aggravated robbery. Again, I acknowledge that Mr Russell’s robbery offences do not involve an aggravated form of that offence, and so while I take some guidance from the Henry decision, that guidance is qualified by the different nature of the robbery offences that I am dealing with in this case. For the sake of clarity, I record that I do not approach these offences on the basis that the penalty should fall within the four to five year range suggested in Henry.

13. Looking at the so-called Henry factors, it can be seen that only some of them are present in this case. At 45 years of age, the offender is not young and it cannot be said that he has little criminal history. There were no weapons used and little or no actual violence, although there can be no doubt that there was some threat of violence, which would have been very real to the two young women who were the victims of these crimes and who were in vulnerable positions as shopkeepers. There was little planning involved, each of the offences being fairly opportunistic. In each case, there was a relatively small amount of money taken and although there are pleas of guilty in each case, there was a strong Crown case given that CCTV was in place.

14. I assess the objective seriousness of the first robbery as towards the lower range of objective seriousness, although not in the lowest of that range. As to the second robbery, which involved some actual violence, I regard that offence as being of greater seriousness, being well above the lower range but below the mid-range. The offence under s 154C of taking and driving a motor vehicle without the consent of the person in lawful possession while the person was in it is also clearly an objectively serious offence given that it carries a maximum penalty of ten years’ imprisonment and a standard non-parole period of three years. While there was no actual violence or any specific threat of violence in that case, there was clearly an implied threat by reason of the offender’s conduct in leaning towards the victim, demanding in an angry tone that she get out of the car, and the fact that the offender was likely larger and physically stronger than the victim. I accept the Crown’s submission that this particular offence is slightly below the mid-range of objective seriousness.

15. A significant aggravating feature on sentence in this case, however, is the fact that each of the offences were committed while the offender was on parole.

SUBJECTIVE MATTERS

16. Turning to subjective matters, I note that the offender is 45 years of age. He has a very extensive criminal history and has spent the majority of his adult life in custody. There is a real concern in this case that the offender has become institutionalised and lacks the skills required to survive and keep out of trouble in the community. This is a matter to which I will return shortly. His subjective circumstances have been placed before the Court by means of a report of forensic psychologist Kris North. As the offender did not give evidence on sentence, I approach the contents of that report with the necessary caution. However, there are some matters in the report which are not disputed by the Crown and which I accept.

17. The offender apparently had a difficult childhood involving early exposure to abuse and trauma. He was the only child of his parents, and his father has been largely uninvolved in his life. He has four half siblings on his mother’s side, although two of them are deceased. His half-brother died about four years ago and his half sister died by suicide about ten years ago, a matter which caused significant psychological trauma to the offender. He has infrequent contact with his mother and his younger half-brother is currently in custody. He described a dysfunctional upbringing to the psychologist involving neglect and exposure to domestic violence, drug and alcohol use, which apparently led to his being removed from his parents’ care. He was apparently made a state ward at age nine and thereafter spent time in various children’s home and juvenile detention centres where he reports that he was subject at times to physical and sexual abuse.

18. He left school at year 9, although he did complete one year of a TAFE apprenticeship in home appliance repair. As most of his adult life has been spent in prison, he has little in the way of work history, although he reports that he worked at times in his uncle’s waterproofing business. The offender was also the victim of an incident in custody about five years ago when hot water was thrown on him when he was asleep, resulting in serious burns to his body. He reported nightmares and flashbacks of this incident on top of intrusive memories relating to his traumatic upbringing as a child. Although he has some history of self-harm, the psychologist assessed him as currently being of low risk of self-harm. Having regard to this background, it is perhaps not surprising that the psychologist concluded that the offender satisfies the criteria for Post-Traumatic Stress Disorder, Opioid Use Disorder, and Stimulant Disorder, although these latter two disorders are in remission when the offender is in a controlled custodial environment.

19. A Sentencing Assessment Report has been placed before the Court. That report notes that the offender’s intention is to reside with his mother in Fairfield on his release and that he claims to currently be in a relationship. However, he told the author of the report that he had not spoken with his mother since being in custody and multiple attempts by Community Corrections to contact the offender’s mother were unsuccessful. The offender was apparently unwilling to elaborate on why there is no contact between he and his mother and also refused to provide consent for contact to be made with his partner or to discuss any aspect of this relationship. Although it was clearly the offender’s right to take this approach, it does have the consequence that the Court can have no confidence that the offender will have any reliable supports upon his release into the community.

20. It is also concerning, in relation to future risk, that the author of the Sentencing Assessment Report concluded that the offender appears unmotivated to participate in employment. It is further of concern that the author of that report found the offender to be combative and to display a persistently poor attitude to the preparation of the report and initially refused to discuss his offending behaviour. Ultimately, however, he told the Community Correction officer that after his release from custody, he had been using ice and heroin on a weekly basis and that the only thing he remembers on the day of his offences was that he had used a gram of ice at some point. Although he is apparently compliant at present with opioid treatment in custody, he told the community correction officer that he was resistant to continuing such treatment once released. This is broadly consistent with his attitudes as described in the pre-release report of October 2015, which noted that the offender’s history at that time did not involve any engagement with drug treatment other than methadone maintenance and that his attitude to work and educational opportunities in custody had been poor.

21. While the offender’s use of drugs provides some context to his offences, it is, of course, not an excuse and it does not mitigate the seriousness of his offences in any way. The offender indicated a willingness to undertake Community-based intervention programs and counselling for his drug and alcohol use but, regrettably, the Community Correction officer noted that the offender’s argumentative and resistant behaviour is likely to create a barrier to any meaningful intervention. The Community Correction officer also noted that the offender has an overall poor response historically to supervision and that he is assessed as a high risk of reoffending. Although the Community Correction officer found the offender to be irritable, combative and resistant to discussing his offending, the offender did, when pressed, accept that his victims must have been traumatised. I treat this, therefore, as some limited evidence of remorse.

22. It was argued that I should have some regard to the fact that the offences in this matter could have been disposed of in the Local Court with the lower maximum penalties that would have applied in that jurisdiction. I have considered this submission but I do not accept it because, in my view, the objective seriousness of the offences, combined with the additional offences on the Form 1 and the s 166 certificate, as well as the offender’s criminal history, are such that the Crown’s decision to have the matters dealt with in this Court was entirely appropriate.

23. The offender’s dysfunctional and disturbed upbringing has clearly been a contributing factor in the repeated offending and incarceration that his life to date has involved. I accept, as did the Crown, that that history does reduce his moral culpability to some degree. See the decision of the High Court of Australia in Bugmy v The Queen [2013] 249 CLR 571.

24. A significant concern in this case is that the offender’s history tends to suggest that he is becoming or has become institutionalised. That is, he has become accustomed to being in custody and is unable to live within the law outside of custody. While I have had regard to this factor, it needs to be counterbalanced with the importance of deterrence and the protection of the community. I do intend, however, to make some slight adjustment by way of a finding of special circumstances to give the offender some incentive to pursue his rehabilitation and given the need also for him to receive a significant period of supervision on parole.

25. The Sentencing Assessment Report assesses the offender as high risk of offending, which conclusion is given strong support by the offender’s criminal history and his history of breaching parole. Consistent with this, I cannot form a positive view as to his prospects of rehabilitation.

16. Clearly, the three offences for which he must be sentenced are of such seriousness that a term of imprisonment is required in each case. Furthermore, the penalty for the robbery offence to which the Form 1 matters are attached must, in my view, be increased by the need for the penalty for the substantive offence to reflect the community’s entitlement to retribution and the need for personal deterrence.

DETERMINATION

27. In determining the appropriate sentences, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Given that I have to sentence the offender for three substantive offences, I have also had regard to the principle of totality. That is, the importance of ensuring, given that the offender is to be sentenced for more than one offence, that the overall sentence to be imposed open him is not one that might be described as crushing. I accept that there is, however, some need for a level of accumulation of the three sentences given that they each involve discrete offending.

28. I intend to impose an aggregate sentence. Had I not done so, then the penalties I would have imposed for the three substantive offences are as follows. For the sequence 1 robbery offence, a term of imprisonment of two years and nine months. For the sequence 8 robbery offence, taking into account the matters on the Form 1 document, a head sentence of three years. For the sequence 4, take motor vehicle offence, a head sentence of two years, six months with a non-parole period of one year, nine months. I intend to make a slight adjustment to the normal ratio of head sentence to non-parole period on account of my finding of special circumstances. Special circumstances are justified in this case by reason of the importance of the offender being monitored in the community for a considerable period after release.

29. The offender is convicted. I impose an aggregate head sentence of five years with a non-parole period of three years, six months. I have had regard to the fact that the offender’s custody to date has not been solely due to these matters, but due also to the revocation of his parole and fixed term of four months’ imprisonment which was imposed in the Local Court on 12 August 2020. Having regard to these matters, I order that the aggregate sentence date from 7 August 2020, being the date on which he was committed for sentence after his plea of guilty. The aggregate head sentence will therefore expire on 6 August 2025. The non-parole period, which, as I said, is three years six months, will expire on 6 February 2024.

30. In relation to the three matters on the s 166 certificate, I deal with those as follows. For each of the two drive unlicenced offences, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I impose a conviction but with no other penalty. For the offence of drive manner dangerous, I impose a fixed term of four months to date from 7 August 2020. That is a term which is totally concurrent with the aggregate sentence that I have announced already.

31. Given the significance of drug abuse to the offender’s history of offending, I intend to refer the offender to the Drug Court for consideration as to whether he is eligible and suitable for the making of a Compulsory Drug Treatment Order. In order for me to refer him to that Court, I must find that he is an “eligible convicted offender” for the purposes of s 5A(1) of the Drug Court Act 1998. In that regard, I am satisfied of the following things. Firstly, that the offender has committed an offence; secondly, that he has been sentenced to a term of imprisonment by way of full time detention; thirdly, that the unexpired non-parole period is at least 18 months; fourthly, that the unexpired total sentence is not more than six years; fifthly, that the offender has a long term dependency on the use of prohibited drugs; sixthly, that the facts in connection with the offences, the antecedents of the offender, and other information indicates that his offences were related to his long term drug dependency and associated lifestyle; seventhly, that his usual place of residence is in a local government area specified in the Drug Court Regulation; eighthly, that he is over 18 years old; and ninthly, that he is male. As I say, I find each of those nine matters satisfied.

32. Accordingly, pursuant to the provisions of s 18B of the Drug Court Act 1998, the offender is referred to the Drug Court to determine whether he is suitable for the Compulsory Drug Treatment Program at Parklea Correctional Centre. Lastly, I order that a copy of the report of psychologist Kris North be referred to the Department of Corrective Services.

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Decision last updated: 10 March 2021