R v Ryan

[2019] NSWDC 650

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RYAN [2019] NSWDC 650
Hearing dates:	11 July 2019
Date of orders:	13 August 2019
Decision date:	13 August 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Aggregate sentence of four years to date from 23 May 2019 and expire on 22 May 2023 and a non parole period of two years to date from 23 May 2019 and expire on 22 May 2021.
Catchwords:	CRIMINAL – sentencing – robbery – retail outlets- mental health issues - totality
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cahyadi v R [2007] NSWCCA 1
Category:	Sentence
Parties:	Regina (Crown) Robert Mark RYAN (Offender)
Representation:	Counsel: Ms H Cantor and Mr Harris for the Crown   Solicitors: Ms L Manookian for the offender
File Number(s):	2018/00361758
Publication restriction:	Nil

SENTENCE

1. Robert Ryan (27 years of age) appears for sentence in relation to two offences of robbery pursuant to s 94(a) of the Crimes Act. Each offence was committed on 23 November 2018 at the Lake Haven Shopping Centre. The maximum prescribed penalty for each offence is 14 years’ imprisonment. There is no prescribed standard non parole period.

2. The offender pleaded guilty on 16 April 2019 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence in respect of each offence of 25%.

3. The offender has been in custody since his arrest on 23 November 2018. He has been serving a balance of parole of two years, 11 months and 21 days to date from 23 November 2018 expiring on 12 November 2021. In circumstances where one of the reasons for the revocation of the parole was the commission of these offences, I propose to backdate the sentence imposed today to 23 May 2019.

Agreed facts

4. At approximately 5.20pm on 23 November 2018 the offender entered the store of Butt’s Jewellers located in the Lake Haven Shopping Centre. The offender was wearing a backpack and approached a sales assistant Julie Miners. The offender calmly stood in front of the sales assistant. At the time there were no other customers in the store. The offender said, “Give me your money,” to which Ms Miners replied, “I haven't got any.” The offender said, “Get it now, I have got a knife in my bag. Don’t press any buttons, I’ve got a knife, get the fucking money.”

5. Fearing that the offender had a knife and would harm her, Ms Miners pressed the hold-up alarm button. Ms Miners then opened the cash register and placed the cash drawer which only contained coins on the counter. She said, “That’s it, that’s it.” The offender said, “Get the fucking notes,” and continued to make demands for the notes saying, “I will come over the counter, I’ve got a knife.”

6. The offender grabbed all of the coins out of the cash drawer. The total cash taken was approximately $64. The offender then made demands for jewellery. Ms Miners gave the offender a large amount of jewellery consisting of nine rings, four bracelets, two pairs of earrings, one pendant, three necklaces, two necklets, three jewellery stands, two pouches and one wrapper. The offender then turned around and walked out of the store and went into the shopping centre.

7. As soon as the offender, left Ms Miners yelled out to security. A CCTV captures the offender leaving the jewellers at 5.24pm and running towards the northern entry of Lake Haven Shopping Centre.

8. After riding his pushbike around the car park, the offender is then captured on CCTV re-entering the shopping centre. The offender takes off his jumper and T shirt placing them in his backpack so he is left wearing a black singlet. The offender then continues walking around the Lake Haven Shopping Centre.

9. At approximately 5.45pm the offender then entered the Liquorland Bottle Shop located at shop 30 Lake Haven Shopping Centre, Lake Haven. Bethany Fairman was working behind the register whilst her colleague Daniel filled the fridges. As the offender was wearing a backpack, Ms Fairman was watching his movement in the store and observed the offender remove a 1 litre bottle of Jack Daniel’s whisky from the shelf and line up behind other customers. Ms Fairman then observed the offender letting other customers go in front of him in the line until he was the only person left to be served.

10. When the offender reached the counter Ms Fairman began to remove the security tag from the bottle. The offender said, “Give me all the cash in the register, I’ve got a knife, I’m serious, I’ve got a knife.” Ms Fairman was not sure if the offender was serious because she observed him to be “kind of smiling” and not making sense. Ms Fairman pressed the duress alarm and opened the till. The offender said, “I saw you press the button, hurry up and give me the cash.” Ms Fairman said, “Okay, okay, just give me a second.” The offender kept reaching into his back and said, “I will stab you.”

11. Ms Fairman was in shock and began removing money from the register and the offender said, “Just give me the notes.” Ms Fairman removed a total of $645 from the till. The offender took the money and placed it in his backpack and ran from the shop. Ms Fairman contacted triple-0 immediately and yelled out to the other employee in the store. Ms Fairman walked out the front of the store to see where the offender went and saw him run out of the Coles entrance to the shopping centre.

12. There were numerous police in the vicinity at that time investigating the first robbery that had occurred about 20 minutes earlier. Police shortly thereafter arrived at the bottle shop. That offence was also captured on CCTV.

13. At approximately 5.50pm on the same day the offender was seen by detectives riding a bicycle on Gorokan Drive, Lake Haven, a short distance from the shopping centre wearing clothes matching the description of the offender. He was stopped and searched.

14. The offender’s backpack was found to contain $645 in cash, all of the jewellery that had been stolen from Butt’s Jewellers, numerous items of clothing including a black jumper and T shirt and numerous identification and bankcards in his name. No knife was located on the offender or in the bag.

15. He was arrested and taken to Wyong Police Station where he declined to be interviewed or participate in an identification parade.

Assessment of objective seriousness

16. Those facts clearly disclose very serious objective criminality. Both general and specific deterrence are important considerations on sentence in circumstances where persons who are merely going about their employment must be protected from like minded people who steal property from retail outlets.

17. In assessing the objective seriousness of each offence, I have taken into account the following factors:

1. The value of the property taken, namely $4,130 in respect of the robbery of the jewellery store and $64 in cash and $645 taken from Liquorland;

2. The property was taken from retail outlets;

3. Threats were made to harm each of the retail assistants indicating that he was armed with a knife. It was established on the evidence that the offender, in fact, did not have a knife;

4. I am satisfied there was limited planning in relation to the commission of each offence.

18. Having regard to those factors, I assess the objective seriousness in relation to each offence as being in the middle of the range.

Aggravating features

19. I accept that the offender was on parole at the time of the commission of these offences. He had been released on 8 November 2017. This offending occurred on 23 November 2018.

20. I have not taken into account the threatened use of a weapon as an aggravating feature in circumstances where I have had regard to that factor in assessing the objective seriousness.

21. I note that there was no victim impact statement from either victim in respect of these offences. Notwithstanding the absence of a victim impact statement from either victim, I accept that this would have been a very terrifying incident for each victim and also very emotionally traumatic. One of the purposes of sentencing is to recognise the harm done to the victim (see s 3AA(g) of the Crimes (Sentencing Procedure) Act).

Subjective circumstances

22. The offender is now 27 years of age. He was 26 years old at the date of the offending.

23. He has a criminal history commencing as an adult in 2012 when he was dealt with for the following offences; common assault, break, enter and steal, armed with intent, fail to appear, stalk/intimidate and common assault (domestic violence). In respect of each of those offences he was sentenced to concurrent terms of six months imprisonment.

24. In 2013 he was dealt with for an offence of destroy property. He was sentenced to 200 hours of community service. He was called up in respect to that matter and sentenced to two months imprisonment. In that same year he was dealt with for offences of possess housebreaking implements and larceny. In respect of each offence he was sentenced to a s 12 suspended sentence for nine months. In respect of each of those matters he was also called up and a sentence of nine months with a non-parole period of two months was imposed.

25. In 2014 he was dealt with for three offences of armed robbery with an offensive weapon with two further offences taken into account on a Form 1. In respect of those matters he was sentenced to a total term of eight years imprisonment with a non-parole period of three years and nine months. The offender has also been dealt with for various driving matters.

26. Whilst the offender’s criminal history is not very extensive it does involve very serious offending. In my view it disentitles him to any leniency on sentence. Also, specific deterrence is a very important consideration on sentence given his previous robbery offences.

27. The following material was tendered on behalf of the offender during the sentence proceedings:

• Exhibit 1. A report of Dr Andrew Ellis dated 8 July 2019;

• Exhibit 2. An email to Lorraine Smith dated 4 January 2019 in relation to an assessment for Odyssey House;

• Exhibit 3. A letter under the hand of Lorraine Smith dated 1 July 2019;

• Exhibit 4. A letter under the hand of Ricky Ryan dated 3 July 2019;

• Exhibit 5. A letter under the hand of Darren Morrisby undated;

• Exhibit 6. A letter under the hand of Jennifer Swaine 4 January 2019;

• Exhibit 7. Defence written submissions.

28. The offender’s background is outlined in the report of Dr Ellis (Exhibit 1). Dr Ellis interviewed the offender for two hours on 28 June 2019.

29. Dr Ellis noted that the offender is 27 years of age with no dependents. He was born in Blacktown. He has three siblings, an older brother, a younger sister and a younger half-sister. His parents separated when he was 15 years of age. He reported that he was always in trouble at home and at school describing himself as disruptive and disobedient. He denied any form of abuse during childhood.

30. He reported he was good at maths and had basic reading and writing skills. He finished his School Certificate. He moved out of the family home at 15 years of age. He lived with relatives and friends and has never had his own accommodation. He has not had any long term relationships. He has no vocational qualifications. He worked as a storeman for two and a half years. He reported that he often loses employment because he gets into fights, argues with his employers and is unreliable.

Substance use history

31. The offender reported that he began drinking alcohol from 13 years of age and would drink to unconsciousness. He said he began smoking cannabis at 13 years and increased its use over time. He began to use ice in the six to 12 months before his previous offence. He used a few times when released on parole. He reported that he began using heroin on a daily basis when most recently released from custody. He has also injected non prescribed buprenorphine in custody.

32. When previously in custody he reported he was on the methadone program which he considered beneficial. He reverted to substance use once he ceased the program. He has never been admitted to a residential rehabilitation facility. He has done drug and alcohol courses in custody.

Medical history

33. The offender did not report any significant medical history.

Circumstances at the time of the offending

34. The offender reported that at the time of the offending he was in unstable accommodation and was unemployed. He had been using ice, heroin and cannabis. He reported that upon release to parole in November he was initially doing well. He began working however, his circumstances deteriorated when he began fighting with his partner and began using drugs.

35. On the day of the offences he reported that he had had an argument with his mother and grandmother and ended up drinking in the park. On the way to his uncle’s place, he committed each of the offences.

36. Dr Ellis conducted a mental state examination. The offender reported that he feels stressed all the time and is anxious about his general situation. He described himself as feeling hopeless at times. Dr Ellis noted that the offender described “chronic periodic anger in response to interpersonal conflict”. He described a pattern of impulsive and irresponsible decision making in relation to his accommodation, work and relationships.

37. Dr Ellis was of the opinion that the offender meets the criteria for antisocial personality disorder and substance use disorder (severe). Dr Ellis stated as follows:

“As he suffers from a personality disorder his ability to control impulses reflect on decisions and solve problems particularly in relation to interpersonal dispute is impaired compared to the general population.”

38. Dr Ellis continued;

“The description of his behaviour in the two robberies is consistent with impulsive and unplanned acquisitive activity.”

Treatment

39. Dr Ellis recommended that the offender undergo substance use rehabilitation and that he would benefit from residential rehabilitation. Dr Ellis further recommended consideration be given to anti craving medication for alcohol use or opioid substitution medication. He also considered the offender would benefit from educational and vocational training and psychotherapy to address his personality disorder and anger management and also relationship function.

The relevance of mental health

40. Having regard to the diagnosis of antisocial personality disorder, I am satisfied that some modest moderation of the otherwise appropriate sentence is appropriate in circumstances where I am satisfied his mental health at the time of the offending would have contributed to his poor decision making.

Other evidence tendered on behalf of the offender

41. The offender’s mother Lorraine Smith (exhibit 3) stated that the offender’s immediate family remains supportive of him and will make every effort to assist him upon release. The offender will be able to reside with either his mother or grandmother on the Central Coast. She has made inquiries with residential rehabilitation facilities on the Central Coast. The offender also has the support of his sister in law Ms Swaine (exhibit 6).

42. The offender’s brother Ricky Ryan (exhibit 4) indicated that the offender had been employed by him between November 2017 and August 2018. He described the offender as initially, “hard working, very knowledgeable and competent in the role” however, he lost interest in his role and became unreliable.

43. Darren Morrisby (exhibit 5) has known the offender since he was four years old. He was his rugby league coach. The offender worked as a storeman with Mr Morrisby at a furniture company and also he lived with family. He described the offender as a “hard and reliable worker” and described that it distresses him and his wife greatly that Robert has “gone down the wrong path”.

The offender’s evidence during the sentence proceedings

44. The offender described the struggles he had when he was last released on parole. He told the Court he tried to contact Odyssey House in October 2018 (approximately one month before the commission of these offences). He indicated he has not had any drug treatment whilst in custody. Whilst he stated he has had no drugs whilst in custody, I note that this is contrary to what he had told Dr Ellis.

Remorse

45. Having regard to the offender’s evidence during the sentence proceedings, I am satisfied that the offender is genuinely remorseful for his offending.

Prospects of rehabilitation

46. I am unable to find the offender has good prospects of rehabilitation at this stage given his longstanding substance use issues which are currently untreated. Despite that finding there are some positive signs. When he was last released on parole he had sought out residential rehabilitation. It was very unfortunate indeed that he was unable to secure a place at that facility prior to the commission of these offences. Also, he has a very supportive family who, I have no doubt, will make every effort to support him upon his release. I note that his mother was in court supporting the offender during the sentence proceedings.

47. There is no question in my view that the offender has a difficult journey ahead. I am hopeful that he embraces all the support he will be provided upon release. He is relatively young and has a long life ahead of him. One can only hope that he does commit to his own rehabilitation and is rewarded with a positive and fulfilling life. At this stage, I cannot find he is unlikely to reoffend.

Totality

48. In circumstances where I am dealing with the offender for two offences, I have had regard to the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other, if so the sentences should be concurrent but if not there should be some accumulation: see Cahyadi v R [2007] NSWCCA 1.

49. In my view, it is appropriate that there be some notional accumulation between the offending however, recognising that there was one episode of criminality that occurred within a 25 minute period.

Special circumstances

50. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non parole period and the parole period for the following reasons; firstly, that the offender will need significant assistance with respect to his rehabilitation upon release from custody, and secondly, that there is a risk of institutionalisation in circumstances where since 2012 the offender has had only approximately 20 months out of custody.

51. Having regard to each of those matters, I am satisfied that it is appropriate to make a finding of special circumstances and I do propose to vary the statutory ratio between the parole period and the non parole period.

52. Can I also indicate that an important factor in the variation of the statutory ratio is the question of accumulation upon the sentence that the offender is currently serving for his breach of parole.

Aggregate sentence

53. I propose to impose an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act.

54. In determining the appropriate sentence I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.

55. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence (see s 5(1) Crimes (Sentencing Procedure) Act).

56. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties of 14 years’ imprisonment and the offender’s subjective circumstances.

Indicative sentences

57. Pursuant to s 53A(2)(b), the sentences that would have been imposed for each offence had separate sentences been imposed are as follows:

58. In respect of each offence the starting term is four years discounted by 25% for the plea of guilty leaving a total term of three years in respect of each matter.

59. Mr Ryan, in respect of each offence of robbery pursuant to s 94(a) of the Crimes Act you are convicted.

57. I sentence you to a total aggregate sentence of four years to date from 23 May 2019 and expire on 22 May 2023. I fix a non-parole period of two years to date from 23 May 2019 and expire on 22 May 2021.

58. The earliest date upon which you will be eligible for parole in respect of these matters is 22 May 2021.

59. I have found special circumstances and I have varied the ratio between the non-parole period, that is the time you are required to spend in custody and your time on parole.

60. There will be a parole period of two years at the completion of the non-parole period of two years. If counsel can confirm the dates.

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Amendments

20 November 2019 - Typographical error corrected on date of release to parole page 9.

Decision last updated: 20 November 2019