R v Stratton

[2025] NSWDC 224

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stratton [2025] NSWDC 224

Hearing dates:

2 May 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial order. For orders see [55]-[57]

Catchwords:

Robbery; schizophrenia

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Gary Bloomfield v R [2013] NSWCCA 315

Marrow v R [2015] NSWCCA 282

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions NSW (the Crown)
Kelly James Stratton (the offender)

Representation:

Solicitors:
Ms S Lejeune (the Crown)
Ms N Sathar (the offender)

File Number(s):

2024/00147806

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced for an offence pursuant to s94(a) of the Crimes Act 1900 (“the CA”) of robbery which occurred on 19 April 2024. The maximum penalty prescribed is 14 years imprisonment and there is no standard non-parole period. The offender is entitled to a 25% discount for his early plea of guilty and has been in custody since his arrest on 20 April 2024. The sentence hearing took place on 2 May 2025 and the Crown Sentence Summary became Exhibit A.

2. Exhibit A contained the agreed statement of the facts which may be summarised as follows:-

1. The offender was born on 27 December 1977 and on 19 April 2024 was 46 years of age. At approximately 10:30 am on that day, he attended the Westpac Bank branch in George Street, Sydney and waited in line for the teller counters. At 10:43 am he approached a teller and placed his duffle bag on the counter. The teller told him that her computer system was down to which he replied, “That’s okay, I’ve just got a note for you”. The offender then passed a note which read as follows:-

“THERE IS A BOMB IN THIS BAG. I AM ALSO ARMED WITH A GUN. DO NOT ACTIVATE ALARM OR I WILL DETONATE THE BOMB. PUT ALL YOUR DRAW CASH INTO A BAG AND NO ONE WILL GET HURT. THANKS.”

2. The teller then asked the offender, “How much do you want?” and the offender responded, “Everything”. The teller then placed cash into a white envelope approximating $10,000. The envelope was placed on top of the offender’s note. The offender then grabbed both the envelope and the note and left the branch via the George Street exit in the direction of Circular Quay. Another bank employee had observed what was occurring and activated a duress alarm, as did the teller confronted by the offender. Police attended and on the following evening arrested the offender at a hotel in Parramatta. The offender was interviewed and during his ERISP identified himself on a CCTV still as the person who committed the robbery. During his ERISP he also told police:-

1. That he just found out that he has two 10-year-old twin girls and they are “being held captive, raped and tortured as we speak”.

2. That his uncle had a hit put on him and that his uncle has hired 23 men over the last two and a half years to kill the offender. His uncle wants to kill him because his uncle thinks he stole his grandfather’s watch.

3. He and his uncle are billionaires.

4. His uncle had a farm where he would torture people and that’s where they were trying to take him to be tortured. The offender’s 10 ex-girlfriends had been tortured on the farm, and his friend Hamo is currently being tortured at the farm where they poured boiling water on him. This was the same farm where his daughters have been held captive.

3. Exhibit A contained photos of the crime scene and the still photograph from the CCTV footage of the offender whilst he was in the bank.

4. Exhibit A also included the offender’s NSW criminal history which was extensive. In 1998 he had been convicted of two drug offences for which he was fined. In 2004 he was convicted of supply a prohibited drug and related offences for which he was sentenced to periodic detention for a period of 9 months with a 6 month non-parole period. In 2008 he was again convicted of a drug offence together with an offence of goods in personal custody for which he was sentenced to 6 months imprisonment. In 2009 there were further offences of possess/attempt to prescribe restricted substance and custody of knife in a public place, together with a conviction for failing to appear in accordance with a bail undertaking for which he was sentenced to 6 months imprisonment. At the same time concurrent sentences of 6 months imprisonment were imposed for offences of obtain money by deception and goods in personal custody.

5. In 2011 the offender was convicted of shop stealing and sentenced by way of a s9 bond to be of good behaviour for 6 months. In 2014 he was convicted of an offence of take and drive conveyance without consent of the owner and sentenced to 7 months imprisonment. That sentence overlapped with another sentence of 6 months imprisonment imposed for an offence of possess or use prohibited weapon without a licence or permit, and later offences of custody of knife in a public place and possess unauthorised pistol together with related drug offences.

6. In 2015 the offender was again convicted for goods suspected stolen in custody, forge or alter prescription and common assault for which he was sentenced to concurrent terms of imprisonment of 3 months and 10 months.

7. In 2017 the offender was sentenced by way of aggregate sentence to imprisonment for 6 years and 3 months with a non-parole period of 4 years for offences of assault police officer in execution of duty, intimidate police officer in execution of duty, possess unauthorised prohibited firearm together with related offences.

8. In 2021 the offender was fined for COVID-19 related offences and in 2022 he was fined for contravene prohibition/restriction in AVO (domestic). In 2023 he was sentenced to concurrent Community Correction Orders for 2 years for offences of false representation resulting in police investigation and stalk/intimidate intend fear etc harm.

9. There were numerous other convictions on his police record for which he sentenced by way of either fines or s9 bonds or no penalty was imposed pursuant to s10A of the Crimes (Sentencing Procedure) Act (“CSPA”).

10. Exhibit A also contained the offender’s custodial record in which were recorded a number of custodial punishments, none of which occurred in his recent detention.

The Offender’s Evidence

11. The offender tendered as a bundle five documents which became Exhibit 1.1-1.5. Exhibit 1.1 was a report from Dr R Furst dated 29 January 2025. Dr Furst assessed the offender via AVL on 26 November 2024 for a period of approximately 1 hour. Under the heading “Psychiatric history”, Dr Furst recorded the offender’s family and educational history. He was an only child however there was family trauma when an aunt and uncle were shot dead in their home in 1984 following which his mother adopted the two children who were his cousins. His father was a book-maker who drank to excess and when the offender was 8 years of age, he was molested by a local priest following which he developed symptoms of anxiety, depression and intrusive memories of the abuse. Dr Furst opined that the symptoms he described were indicative of Post Traumatic Stress Disorder (PTSD) in his childhood and teenage years which were present when he was assessed by a psychiatrist in 2011.

12. The offender attended school until year 11 and subsequently studied mechanical engineering, a course he failed to complete. He worked as a apprentice motor mechanic and completed his apprenticeship, thereafter working as a mechanic for about 7 years.

13. Dr Furst noted that he was diagnosed with schizophrenia in 2014. He also noted his criminal history and periods of incarceration. He recorded that the offender was treated for his schizophrenic illness whilst in custody and when released on parole on 17 March 2021 was referred for community mental health follow-up by his treating psychiatrist, Dr Dayalan.

14. Dr Furst noted his anti-psychotic medication. His primary symptoms included the belief he was being persecuted by family members, hearing the voice of his deceased father as well as chronic anxiety and residual paranoia and hallucinations. He had a number of psychiatric admissions since his release on parole, mostly to Cumberland Hospital in 2021, 2022 and 2023 with additional admissions to both Blacktown Hospital and St Vincent’s Hospital. He also received NDIS assistance but continued to have relapses or exacerbations of his schizophrenic illness including at the time of the offending on 19 April 2024.

15. Dr Furst took a drug and alcohol history. The offender drank alcohol every weekend from age 16 to 17 years, he smoked cannabis on a daily basis from around 17 years but stopped that when he was 24 years of age after he developed paranoia and auditory hallucination. He commenced using heroin at the age of 21 years but has been treated with methadone over the last 26 years or so.

16. Under the heading “Offence related issues”, the offender reported having auditory hallucinations in which his uncle featured, and purportedly thought he was being tortured. He claims that a friend told him that he had to do a bank robbery to allow him to escape his uncle’s torture.

17. Upon mental state examination, Dr Furst opined that the offender’s grandiose delusions were persistent and that he lacked insight into being mentally unwell in relation to his delusional thoughts.

18. Dr Furst referred to the offender’s assessment by reference to Justice Health medical records and noted that in January 2021, he had been assessed by Dr Dayalan whilst in custody, who had recommended a trial of Clozapine following his then pending release to the community, a recommendation with which Dr Furst agreed, describing it as “the treatment of choice for people with treatment resistant schizophrenia”.

19. Dr Furst opined that the offender met the criteria for the following diagnoses:-

1. Schizophrenia, chronic and treatment resistant.

2. Substance use disorder (opiates, benzodiazepines, methylamphetamines).

3. Complex PTSD.

4. Panic disorder.

20. Dr Furst opined that the offender clearly had a mental health impairment by virtue of his schizophrenia, which was a psychotic disorder within the meaning of s4(2)(c) or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, however he was fit to be tried.

21. Dr Furst set out recommendations for future treatment for when he is eligible for release on parole. He was recommended for follow up with mental health services and local drug and alcohol services to maintain his prescription of antipsychotic medication, preferably Clozapine, and engagement in support programs.

22. Dr Furst opined that the offender’s diagnosis of schizophrenia increased his vulnerability in the sense that it would make a custodial sentence more onerous for him. He opined, “the stress of being incarcerated would probably make the risk of him relapsing into more acute phases of schizophrenia higher”.

23. Under the heading, “Prospects of Rehabilitation”, Dr Furst opined that the offender appears motivated to address his clinical/criminogenic issues, specifically in relation to his mental illness, addiction issues and his childhood abuse traumas. He further opined that the offender appears to have reasonable prospects of being successfully rehabilitated, although his risk of reoffending was medium-high and dependent on his capacity to achieve abstinence from drug abuse together with greater mental stability.

24. Exhibits 1.2 to 1.4 comprise 3 parts of the same document. Exhibit 1.2 was a job capacity assessment report which recorded the limitations on his work capacity caused by his mental health. Exhibit 1.3 was a letter from Dr S Perveen dated 23 March 2021 setting out his medications annexing a mental health treatment plan.

25. Exhibit 1.4 was an occupational therapy functional capacity assessment report dated 8 November 2021 and Exhibit 1.5 comprised medication administration history documents from Justice Health.

26. Exhibit 2 was a letter under the hand of Ms L Hazelton dated 29 April 2025. Ms Hazelton is a lay advocate who is working with the offender to ensure his NDIS supports meet his disability needs. She advised that she has arranged for a support coordinator for the offender who will work with him for the remainder of his sentence so as to ensure his supports align with his NDIS goals and support needs.

Crown Submissions

27. The Crown relied on a written outline of submissions noting the maximum penalty of 14 years imprisonment and that there is no standard non-parole period prescribed. The Crown noted the purposes of sentencing and referred to the guideline judgement of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 which concerned offences of armed robbery, to submit that the guideline continues to be of assistance in assessing the objective seriousness of the “offence simpliciter”. Although here the offender could not be characterised as a young offender, being 46 years of age at the time of the offending, and no weapon was ever produced by the offender (nor was there any evidence that he was actually armed at the time), the Crown submits the following features influence the assessment of the objective seriousness of the offending:-

1. Victim in a vulnerable position such as a shopkeeper or a taxi driver. The victim was a young woman working as a bank teller at a major bank in the Sydney CBD.

2. Limited, if any, actual violence but a real threat thereof. No actual violence was used, however the offender placed a duffle bag on the counter and made threats via a note to detonate a bomb. His note also told the victim that he was armed with a gun.

While there is no evidence that the offender was actually in possession of explosives or armed at the time, the victim had no way of knowing that fact. In those circumstances, the effect of the threat on the victim is exacerbated (Gary Bloomfield v R [2013] NSWCCA 315; Marrow v R [2015] NSWCCA 282). Following the incident, the victim was inconsolable.

3. Limited degree of planning. While not overly sophisticated, the offending did involve some creative planning. The offender used a duffle bag as a prop, which was then accompanied by a pre-prepared note outlining his threat.

4. Small amount taken. The offender took a significant amount of cash during the robbery, namely about $10,000. NSW Police recovered $8,881.20 of the cash in the offender’s hotel room.

5. Plea of guilty, the significance of which is limited by a strong Crown case. The Crown submits that this was a strong Crown case; the incident was captured on CCTV and the offender made clear admissions to NSW Police. As outlined later in these submissions, the offender is entitled to a statutory discount to recognise his early guilty plea.

28. The Crown submitted that the offender’s lengthy and varied criminal history disentitles him to leniency. Further, the index offence was committed whilst he was on a Community Correction Order which was an aggravating factor pursuant to section 21A(2)(j) of the CSPA.

29. The Crown acknowledged the offender’s childhood was marked by child sexual abuse and his parent’s alcoholism which likely influenced his mental health and drug dependency. The Crown accepted that the offender’s mental health significantly contributed to the commission of the offence and that his moral culpability may be reduced pursuant to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. However, the Crown submitted that if a person presents as a danger to the community due to their mental illness consideration should be given to the protection of the community.

30. The Crown submitted that Dr Furst had assessed the offender’s risk of re-offending as medium to high and submitted that the offender’s prospects of rehabilitation must remain guarded.

31. The Crown conceded that the offender had entered an early plea of guilty and was entitled to a 25% discount on sentence. It submitted that the s5 threshold had been crossed and that a full-time custodial order should be made taking into account that he has been in custody since his arrest on 20 April 2024.

32. In her oral submissions, the Crown submitted this was a serious example of offending of an offence pursuant to s94(a), noting the large amount of money taken and the threat contained in the letter handed to the bank teller

Submissions on behalf of the offender

33. The solicitor for the offender also relied on a detailed written outline of submissions and noted that whilst the Henry guideline applied to offences of armed robbery, the following Henry factors were applicable here:-

1. Limited degree of planning

2. No actual violence but a real threat of violence contained in the letter

3. Small amount taken being $10,000 of which $8881.20 was recovered

4. Early plea of guilty, entitling the offender to a 25% discount

34. The solicitor for the offender acknowledged that the offender was on conditional liberty at the time of the offence, being subject to a Community Correction Order and submitted that his criminal record was not such that it should aggravate the offending, but conceded that it would disentitle him to any leniency.

35. The submissions focused on the offender's subjective case, noting the matters concerning his disadvantaged upbringing set out in the report of Dr Furst. It was submitted that this was relevant to sentence in two ways, namely first it warrants some reduction in the weight attributed to general deterrence and secondly, it highlighted the importance of rehabilitation.

36. The submissions referred to the diagnosis made by Dr Furst and his history of treatment for schizophrenia since 2014. She submitted that it was clear from the offender’s interactions with police at the time of his arrest and during his record of interview that he was harbouring delusions at the time of the offending and these had a material effect on the commission of the offence. It was submitted that a more lenient sentence should be imposed for the following reasons:-

1. His moral culpability was reduced to a substantial degree

2. The need for denunciation was reduced

3. There was a reduced need for specific deterrence, and enhanced prospects of rehabilitation

4. The mental health of the offender increases the adverse impact of punishment and a custodial sentence would weigh more heavily on the offender

5. The offender is not a suitable vehicle for general deterrence

37. The submissions noted that since 23 November 2005, the offender had spent over 46% of his life in custody and was at risk of institutionalisation.

38. It was submitted that a finding of special circumstances should be made because of the greater need for a longer period on parole for extended rehabilitation to assist with the offender’s mental health and drug addiction and because of the onerous conditions of imprisonment.

39. Finally, the offender relied on Judicial Commission of NSW statistics showing the percentage of offenders sentenced to imprisonment and the range of non-parole periods or fixed terms imposed.

40. In her oral submissions, the solicitor for the offender agreed with the Crown submission that the offending was objectively serious but rehearsed her submission that the offender’s mental health impairment diagnosed by Dr Furst meant that he was harbouring delusions at the time of the offending and during his ERISP.

41. It was submitted that his mental health impairment meant that a substantial reduction in moral culpability should be found by the Court. It was submitted that Dr Furst had noted that the offender was motivated to address his mental health issues and he now had a lay advocate to assist him to access his entitlements pursuant to the NDIS. This will ensure that his needs will be met by the NDIS. Further, it was noted that Dr Furst agreed with Dr Dayalan’s recommendation for a prescription of Clozapine and the custodial records established that he had not been given that medication as yet. A recommendation should be made that Dr Furst’s report be sent to the relevant authority to allow him to engage with appropriate providers.

37. Finally, the Court would take into account the offender’s disadvantaged upbringing and childhood trauma. He had been on methadone for the past 26 years and Dr Furst had opined:-

“Accordingly, his mother’s alcoholism and his father’s excessive drinking and gambling likely predisposed Mr Stratton to develop his addiction to drugs in his teenage years/adolescence, his drug addiction being the product of his genetic vulnerability coupled with the traumatic effects of childhood sexual abuse he suffered as an eight year old child”.

Determination

43. The purposes of sentencing are set out in s3A of the CSPA as follows:-

3A   Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a)  to ensure that the offender is adequately punished for the offence,

(b)  to prevent crime by deterring the offender and other persons from committing similar offences,

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

(e)  to make the offender accountable for his or her actions,

(f)  to denounce the conduct of the offender,

(g)  to recognise the harm done to the victim of the crime and the community.

44. The parties agreed that the Henry guideline judgment assisted in the assessment of objective seriousness of an offence of robbery pursuant to s94(a) CA. The index offence was objectively serious offending and I have taken into account the following matters:-

1. The victim was a young woman working as a bank teller in a major bank in the Sydney CBD and was, notwithstanding the bank security systems, in a relatively vulnerable position.

2. Whilst there was no actual violence, there was a real threat thereof. Given that the offender’s note referred not only to a bomb, but also that he was armed with a gun, this would have been a terrifying experience for the victim, who had no way of knowing whether the note was accurate.

3. The offending clearly involved a limited degree of planning, which included the writing of the note and use of a duffle bag as a prop.

4. A significant amount of money was taken, although the majority of it was recovered by police.

45. I am therefore satisfied that the offending was objectively serious. An aggravating factor was that the offence was committed whilst the offender was on conditional liberty, being subject to a Community Correction Order at the time of the offence- see s21A(2)(j) of the CSPA.

46. A mitigating factor pursuant to s21A(3)(k) is that the offender entered his plea of guilty at an early stage and is therefore entitled to a 25% discount on sentence. I take into account that this plea also connotes some remorse and contrition on the part of the offender.

47. The offender’s extensive criminal history set out above does not entitle him to any leniency in the sentencing process. Parliament has set a maximum penalty of 14 years imprisonment for this offence, which indicates the seriousness with which the offence is regarded, and also provides a guideline in the sentencing process.

48. Usually, general deterrence is important in sentencing for offences pursuant to s94(a). A clear message must be sent to like-minded members of the community that such criminal behaviour is not condoned and in appropriate court cases, the Courts will impose condign punishment. However, for the reasons set out below, both general deterrence and specific deterrence have a diminished importance in the sentencing process here.

49. I have taken into account the numerous subjective matters set out in the report of Dr Furst and accept that the offender had a troubled childhood being raised by an alcoholic father and was sexually abused as a child. Whilst he had educational opportunities and completed an apprenticeship as a mechanic, he was diagnosed with schizophrenia in 2014 and has spent a great deal of his adult life in custody. The offender had a history of drug and alcohol abuse from an early age and has been on a long term treatment with methadone. He is very much at risk of institutionalisation at the age of 46.

50. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-

• “Where the state of person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

• It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

• Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24].”

51. I am satisfied that the offender has greatly diminished moral culpability for the offending being subjected to auditory hallucinations at the time of the offending. I am also satisfied that both general and specific deterrence should play a diminished role in sentencing as the offender is not a suitable vehicle for that principle of sentencing to apply. I am also satisfied that he has and will find a custodial sentence more onerous than the general prison population, particularly as his schizophrenia has not been appropriately treated.

52. I accept the opinion of Dr Furst that the offender’s risk of reoffending is in the medium-high range, and that his prospects of rehabilitation must be guarded given the chronic nature of his mental health diagnoses and drug and alcohol related issues. I am mindful however, that the subjective factors must not overweigh the objective seriousness of the offending in the sentencing synthesis.

53. I find that the threshold in s5 of the CSPA has been crossed and no sentence other than imprisonment is warranted in the circumstances. However, I find that special circumstances are made out on the basis of the offender’s mental health diagnoses and his need for a longer period on parole in order to rehabilitate himself back into the community.

54. Having applied a 25% utilitarian discount on sentence, I intend to sentence the offender to a term of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 9 months to commence on 20 April 2024 and to expire on 19 January 2026. The balance will be a term of 1 year and 9 months terminating on 19 October 2027.

Order

55. You are convicted of the offence of robbery pursuant to s94(a) of the Crimes Act. I sentence you to a non-parole period of 1 year and 9 months commencing on 20 April 2024 and expiring on 19 January 2026. The balance of term will be period of 1 year and 9 months commencing on 20 January 2026 and terminating on 19 October 2027.

56. Your parole eligibility date will be 19 January 2026.

57. I recommend that the report of Dr Furst dated 29 January 2025 be forwarded to the Department of Corrective Services and to Justice Health NSW.

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Amendments

23 June 2025 - Party details corrected

Decision last updated: 23 June 2025