R v Trinh

[2023] NSWDC 58

District Court

New South Wales

Medium Neutral Citation:

R v Trinh [2023] NSWDC 58

Hearing dates:

03 February 2023

Date of orders:

10 February 2023

Decision date:

10 February 2023

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate sentence of imprisonment of 4 years 6 months with a non-parole period of 2 years 3 months

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Penalties — Drug Court — Eligibility for program

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Court Act1998

Cases Cited:

DPP CommonwealthvDe La Rosa (2010) 79 NSWLR 1

Rv Henry [1999] NSWCCA 111

Category:

Sentence

Parties:

Rex (Crown)
Andrew Trinh (Offender)

Representation:

Andrew Wright (Solicitor for the ODPP)
Arjun Chhabra (Counsel for the Offender)

Director of Public Prosecutions (Crown)
Austere Legal (Offender)

File Number(s):

2022/00058448

Revised ex tempore JUDGeMENT

Introduction

1. Andrew Trinh pleaded guilty in the Local Court at the Downing Centre on 15 September 2022 to three offences contrary to section 97(1) Crimes Act 1900. These were:

Sequence one, that he on 19 February 2022 at Ryde in the State of New South Wales robbed the Late-Night Chemist, shop 1/46 ‑ 48 Blaxland Road, Ryde of certain property namely, 16 boxes of oxycodone Mylan, and two boxes of oxycodone Sandoz, the property of the Late-Night Chemist whilst armed with an offensive weapon namely, a knife.

Sequence two, that he on 26 February 2022 in Ryde in the State of New South Wales did rob Late Night Chemist, shop 1/46 ‑ 48 Blaxland Road, Ryde of certain property namely, $350 in cash, 16 boxes of oxycodone, and seven boxes of dexamphetamine, eight boxes of generic diazepam, the property of the Late-Night Chemist Ryde whilst being armed with an offensive weapon namely, a knife.

Sequence three, that he on 28 February 2022 at East Ryde in the State of New South Wales did rob East Ryde Pharmacy, 6 Sager Place, East Ryde of certain property namely, twelve boxes of Endone, and five boxes of Targin oxycodone hydrochloride, the property of the East Ryde Pharmacy whilst armed with an offensive weapon being a knife.

The Pleas of Guilty

2. He pleaded guilty early in the proceedings and therefore has the benefit of a discount of 25% to each of the sentences, reflecting the utility provided. The discount is applied to the sentence identified as appropriate for each of the offences, achieved upon a synthesis of the objective and subjective factors. The plea of guilty reflects in addition to the utility provided the contrition and remorse of which I am satisfied in this case. A discount is attracted by force of section 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Maximum Penalty

3. The maximum penalty specified for these offences is 20 years imprisonment; that is, for each of them. There is no standard non‑parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.

Pre-Sentence Custody

4. The offender served a period of time in custody until he was granted bail on 13 May 2022 to participate in a residential rehabilitation program, which provided significant constraints, after which he was admitted to bail, again with significant limitations upon his freedom until the matter was brought before Court for determination. The offender shall have the pre‑sentence custody, the quasi custody provided by the rehabilitation program, and the bail of limitations brought to account in assessment of the sentence and determination of when the sentence should commence.

5. Submissions on behalf of the offender urged the Court to grant him a credit of 175 days for these features of his case. I performed my own calculation and I came to a lower figure but proximate to what was urged upon me. I have taken the view that it is appropriate that I backdate this sentence by the period specified in the offender's submissions and thus the sentence I impose, which will be an aggregate sentence pursuant to section 53B Crimes (Sentencing Procedure) Act 1999, shall commence on 19 August 2022.

The Facts

6. The offences occurred in the following circumstances.

7. Sequence one, on 19 February 2022, occurred while the victims of the family names Lee and Hua were working within the shop. About 11.20am the offender entered the chemist. He was depicted on closed circuit television to remove a silver knife with a handle from a black bag. Lee heard the buzzer ring but did not notice the offender until he was standing to the right of the dispensary counter. Lee provided a description, which is included in the facts. I need not rehearse that for the purposes of this judgement.

8. She saw that he was carrying a black fabric drawstring bag and holding in his right hand a large silver kitchen knife with a black handle and a 30cm blade approximately. He had his hand with the knife close to his upper chest with the blade pointed toward the ceiling. He said to staff members, "This is a robbery, give me the Endone and oxycotin (sic) I know where it is". He followed Lee around the counter to the back of the shop to a storeroom located at the top of a small flight of stairs. The storeroom contained a safe with prescription only drugs there stored. The offender stood by the storeroom entry holding the knife with his hand while Lee entered the storeroom and opened the safe.

9. He said to Hua, "Bend down". She complied and bent down behind the counter. He said, "Hurry up I need to go". Lee removed from the safe about ten boxes of oxycodone Mylan and walked back to the counter where she dropped them near to where the offender stood. He picked up the boxes with both hands and placed them into the black fabric bag. He stared at Lee, and assuming that he wanted more she returned to the safe, opened the top part, and retrieved three boxes of oxycodone Sandoz. She brought them back to the offender. The offender said, "Quick put it in my hand". Lee placed the boxes into the offender's hands. The offender said, "Now bow down. Don't do anything.  I know where you live".

10. Lee bowed down onto the floor with her face low to the ground. The offender left the pharmacy. Hua stood up immediately and observed the man outside the store looking back at her. Hua saw the man turn right from where he was standing and then she lost sight of him. The police were called. Lee locked the entry door. A crime scene was established. A stocktake identified the drugs stolen to the total value of $48.90.

11. The second offence at the same pharmacy on Saturday, 26 February 2022 occurred when Lee was working at the premises. About 9.20am the offender entered wearing clothing described in the facts and carrying a black fabric drawstring bag as before. He approached the dispensary counter holding a large kitchen knife, again with a blade of 30cm. He held that to his upper chest with the blade pointing upwards. He said to Lee, "It's me again, anyone working?"  Lee responded, "I'm by myself". The offender said, "My family is in danger, get me oxycodone". Lee responded, "I'm getting it for you". The representation, “my family is in danger” was a lie consistent with his representations to the police when arrested, and which he acknowledged before me were untrue.

12. Lee walked around the counter, went to the storeroom, opened the safe, and took seven to ten boxes of oxycodone. The offender closed the front sliding doors and turned over the entry sign to show the premises to be closed. He returned to the storeroom. He was captured on closed circuit television as before. He is depicted holding the knife in his left hand. He opened the black fabric bag for Lee to put the boxes inside. He asked, "Where is the Valium?"  Lee replied, "It's there". Lee walked behind the counter and collected 15 boxes of Valium and 15 boxes of Diazepam. Lee placed them into the offender's bag.

13. The offender asked, "Anymore oxycodone?"  Lee replied, "That's what we have". The offender asked, "Do you have dextroamphetamine?"  Lee walked back to the safe and removed ten boxes of dextroamphetamine. Lee placed them into the offender's bag. He asked if there was any cash. Lee replied, "It's there" and moved towards a register to take out $315, placed inside the bag also. There are images of this robbery as it was unfolding. The offender said, "Bow down. Don't do anything."  Lee crouched down next to the dispensary. The value of the drugs taken was $92.94.

14. The third robbery was on 28 February 2022. This occurred at the East Ryde Pharmacy. About 8.30am on that day, the victims of the family name Nishanian commenced their shifts. There were two of them. About 9.27am, the offender entered the pharmacy wearing clothing as described. Again, there is no need for me to describe it, the information is set forth in the statement of facts. It is noteworthy, however, that on each occasion he wore a mask covering his face. The mask was a surgical type consistent with those used by some who, in the current climate, wear masks to protect against infection from the virus that has burdened our community.

15. The offender walked to the back of the pharmacy where the victims were standing behind the dispensary counter. One of them said, "You look like a thief". The offender did not respond. He fumbled around the side of his pants with both hands and said to that employee, "I can't find my script. I've left my prescription at home."  She replied, "Okay then, find it and come back. What's your name?"  He gave the name Robert Nguyen. The employee said, "I think I know you."  The offender walked to the front, closed the main entrance door, and returned with a knife with a blade of thirty centimetres. The description is comparable with the knife used on the earlier occasions, and from what occurred when the police became involved it is apparent that it was the same knife which he had taken from his home.

16. He once again had his black fabric drawstring bag. He walked behind the counter holding the knife in his right hand. He held the knife flat out from his torso. He said, "This is a hold up. I'm not going to hurt you.  I want the oxycodone". The employee replied, "Are you serious? Don't be ridiculous, put the knife down".  He said, "Go to the safe and get the oxycodone."  He then told the other employee to get on his knees, and he complied. The first employee said, "Take the money. I can open the register for you. It's easy.  Take the money and run. Don't hurt him, he's my father."  The offender replied, "No. I want the oxycodone. I'm not going to hurt you.  I am doing this for my family".

17. The female employee told the offender that she had to get the key from the drawer. He instructed her not to press any buttons. He pointed the knife at her and followed her to the safe located on a wall behind the dispensary. It contained prescription only pharmaceutical drugs. She opened the safe and removed twelve boxes of Endone. The offender held his bag in front of her and she placed the drugs inside. He asked, "Is that all?"  She replied, "Yes". She handed the offender about five packets of Targin.  The total value of the medication was about $200. At 9.30am, he ran from the pharmacy toward Elliott Avenue, East Ryde and entered a grey BMW registered XXX 90L, parked outside 24 Avenue, East Ryde.

18. He was at the time, if not at present, the registered owner of the vehicle. He was observed running from the shops and to enter the motor vehicle by a witness who recorded him doing so on his mobile phone, capturing the vehicle and the registration.

19. At 9.55am that day, police attended the offender's address, observed the vehicle in the driveway, and approached him at the front door. They cautioned and arrested him. He initially denied his involvement and claimed he went to drop off his child at childcare. The offender later said, "If I didn't get some Endone to this known gangster...He was threatening my life..." The officer responded, "Good. Good. Are you doing it for him?"  He replied, "I will do it to save my young family...knows where I live". He said the drugs were in a bag behind the Jordan shoebox. He told the police the knife was in the kitchen drawer. He denied taking any cash, and said he only took the drugs. When asked if he would identify the person who was threatening him he said, "I will 100% tell you. He was here last night."  He said he picked him up and threatened him. He identified the clothes worn in the robbery on the front seat of the car. He denied committing the two earlier robberies. The police took him to Ryde Police Station into custody there.

20. He participated in an electronically recorded interview. He confirmed that he told the police that the drugs were located in the bag behind the Jordan shoebox in the garage and that he had placed the knife in the kitchen drawer. He confirmed that he told he police the clothes he was wearing at the time of the robbery were located in his vehicle. After the police put the allegations to the offender he replied, "I admit to all three, so that's step one" and then later he said,

"I never meant to harm anyone, so you speak to, you know, the shop owners or anyone in, like, that was there, I always...he said I will never, I would not, here to hurt you at all. This is, I'm here to save my family. So if you ask them all if I said those words, I could guarantee you...there's a videorecording, I said those words every single time. So yeah, look I did all three. I admit to that but it was purely to get certain things that I needed to get to give to people to save me and like I said, I had no intentions at all of hurting anyone like and I made that crystal like I would...said that during times. Now obviously I know they were very, very scared and I'm really, really sorry that they had to go through that. You know I could take it back and, and, and, gone to you guys in the first place things would have turned out quite differently. Sorry."

21. He told the police that he selected the first chemist because there were no customers there and he returned because he was successful on the first occasion. He said he drove his car to and from the robberies and parked in the vicinity. He could not recall precisely what he obtained from the first robbery but did remember oxycodone and Endone and that he was told to get these items by “these people.”  He said that “these people” knew where he lived and where his wife and two young children lived and his parents. He said, "I made the wrong call in the end".

22. A crime scene warrant was issued and executed for the offender's premises and police recovered packets of drugs consistent with those that were stolen from the chemists. They located items in the offender's vehicle including his phone. The investigation of the phone revealed messages between the offender and an individual recorded as Mus Guy. The offender engaged in conversation with this person by this medium. He asked, "You've got rack bro". It is conceded that rack is a term for cocaine. There was discussion as to the price. He asked this person whether he would be interested in Valium or dexxies, and said he had between 50 to 100 “vals”, that he had, "Proper pharmacy in dexxies" and that he would send a picture, which he did.

23. The other person was not interested in the prescription drugs. There was discussion as to the offender's address and the delivery of what he was seeking. He, in a later message, at 11.18pm, the first at 10.37pm, said that if the other person ever needed prescription stuff he should, "Hit me up". At 11.38pm he asked whether the other person was sure that they did not want any “vals” or “dexxies” this time. The conversation is entirely consistent with someone involved in the acquisition and distribution of drugs. The messages concluded at 1.31am with the offender writing, "U want a pricelist for the pharmaceutical drugs I can get?"

The Offender

24. The offender was born in 1985 and at 38 years is therefore approaching, if not at the start of middle age. He has no antecedent record apart from driving with low range PCA in 2004, of little moment in the consideration of this matter and I put that to one side. I accept that in other respects the offender is a person of good character.

25. There is an explanation why at this stage of life he would embark upon such serious criminal activity, which shall lead to his incarceration. He is living with his wife and two young children; his parents live nearby. He has strong support from his family and his brother and his brother's family.  This information is in the sentencing assessment report tendered by the Crown.

26. He had stable employment within the banking industry for some seven years before this offending. He resigned thereafter and has been unemployed as a consequence of his misconduct and the steps taken whilst in custody and upon release pursuing rehabilitation. His offending behaviour according to this report reflected a pro‑criminal and antisocial attitude with disregard for the law and community safety, for his own personal gain. He attributed his offending primarily to substance abuse issues at the time and that he committed the offences to support his addiction.

27. His attitude contradicted his general lifestyle which, on its face, reflected strong values in respect of family, employment, and the community.

28. He used drugs recreationally until he became chronically addicted to Valium and oxycodone. He said that he engaged upon this misconduct through desperation following the unavailability of these drugs via his usual supplier. There is something consistent with that in the exchange of the texts messages to which I have referred, but it is also inconsistent that he was offering prescription drugs for sale, if the other person was interested in acquiring them.

29. The violence and aggression implicit in this misconduct is subject of comment in the report but it is acknowledged that his behaviour is linked to his substance abuse and that he denied engaging in violent or aggressive behaviour outside of the context of the robberies. His wife supports that claim. He is attributed with significant expressions of remorse and feeling glad and relieved that he was arrested and redirected. There is reference to the six-month residential rehabilitation program that he undertook on 13 May 2022, and which concluded on 14 November 2022. The report specifies 2023 erroneously. He is willing to engage in whatever other intervention he might require and has a low to medium level of risk of re-offence.

The Crown Submission

30. The Crown submission upon this material reminds me of the nature of the charge, the fact that there are three offences, the first and second of which were separated by one week and the third two days following the second. It was the same victim for the first two and the third was at a different location with different victims. The 25% discount is conceded. Objective seriousness is informed by the following factors:  that the offences were committed over a period of nine days; the offender robbed the same pharmacy twice with the same victim present; the offender and the victims were not known to each other; the victims were shopkeepers; the offender used a large silver kitchen knife; he disguised his appearance; money was taken in one of the robberies; prescription drugs to the value of $340 were taken across the three incidents; the money taken in one of them was to the sum of $315; he offered prescription drugs for sale by text messages to which I've referred. 

31. The Crown submits that the offences fall around the mid-range of objective seriousness. I would put them slightly below mid-range upon the assessment I have made of the circumstances.

32. The Crown points to the second offence involving as an aggravating factor the vulnerability of the victim working alone. The class of individual working alone in such circumstances is recognised by the law as a vulnerable circumstance to be brought to account in the assessment of punishment.

30. The Crown reminds me of the Henry guideline judgement, R v Henry [1999] NSWCCA 111. It points to the comparable circumstances in what the Court there offered and what is involved in these matters. The example given by the Court of Criminal Appeal included a young offender with no or little criminal history. It could not be said that this offender is young. There is the use of a weapon, like a knife, capable of killing or inflicting serious injury, a limited degree of planning, limited if any actual violence but a real threat thereof, the vulnerability of a victim such as a shopkeeper or a taxi driver. These victims fall within the category of shopkeeper. There is the small value in the property taken and a plea of guilty, the significance of which is limited by a strong Crown case. The case in respect of all three could not be said to be other than a strong case.

31. The assessment given by the Court of Criminal Appeal was that in such circumstances the sentence within four to five years imprisonment should apply, subject to considerations that might dictate otherwise. This is not a rule of law or a rule of prescription but was an opportunity for the appellate court to provide guidance to sentencing courts. The Crown points to the measure of planning in that that offender concealed his identity using a mask and a bucket hat as described. He has no relevant prior criminal history. The weapon is noted. The value of the property taken is noted and the vulnerability of the victims is noted. I note his plea of guilty.

32. The Crown concedes remorse although it asks the Court to bring to account that he lied to the police, misrepresenting that he was acting under some level of coercion into committing the offence in each case. It was clearly untrue. The Crown submits that the threshold provided under section 5 Crimes (Sentencing Procedure) Act 1999 is crossed. With that I agree. The Crown further submits that the only appropriate sentence, given the objective seriousness of the three offences, is that the sentences should involve a period of incarceration. With that submission I agree. The Court acknowledges that totality must be considered and that his overall criminality should be assessed according to the three robberies upon which he engaged.

The Offender’s Case

36. The offender gave evidence and explained his life and circumstances, expressed remorse, and represented that he will not put himself in any similar circumstances in the future. He has reconnected with his faith. He has been pursuing voluntary work to assist others in less fortunate circumstances. He recognised there are limitations in opportunities to do this because of the nature of his crimes, but he accepted what was offered and has performed the work that he could. He accepts the illegality of drug use and accepts that the drug use in itself was criminal. He said that he was struggling with access to oxycodone. He had been acquiring it on what he described as the dark web but was in due course unable to access the drug by that means.  He said he experienced panic, anxiety, and then decided to commit these crimes.

37. There is something of a challenge between that evidence and what is to be drawn objectively from the communications to which I have referred, but I accept that he was suffering a measure of stress that contributed to his misuse of drugs. His spoke of the challenges in prison, of limitations by reason of COVID‑19 virus. He said that while in custody he did not get to see his family. He was unavailable to his children and that was, he said, a horrible feeling. He said as hard as it was for him, he realised it was difficult for his wife also. He remained abstinent in prison and made good progress towards rehabilitation.

38. Tendered on his behalf were a number of documents.

39. There is a document from the Residential Drug and Alcohol Rehabilitation Education and Training Centre confirming the availability of a bed for him, followed by another document which specified his participation in the program between 13 May 2022 to 14 November 2022, describing the work that was undertaken and his success in his endeavours there toward complete rehabilitation. The document represents the anticipation that he would complete his rehabilitation on 14 November 2022, which proved to be the case.

40. There is a report from Jason Borkowski, psychologist, on 14 January 2023. This provides a comprehensive description of his family history. His father was loving and gentle. His mother was stern and reasonably strict, providing he said tough love through his formative and developmental years. His parent's relationship was, according to his perception, always stable. He denied any discord, abuse, or violence or even arguments. He sees their relationship as the example to follow. He has a close and stable relationship with his brother. He looks up to and respects him. The offender is the younger of the two.

41. He lived with his family until he was 32 years of age when he married his wife. They have been together for some six years in marriage. They had a close and supportive relationship until recently. She had supported him through his instability and his current legal challenges. She has employment and works full-time. She has no background that attracts criticism. He has two children aged four years and 10 months, respectively. He tries to be actively involved in his children's lives. I take that to be a representation as to present circumstances and not reflecting the lifestyle he followed prior to his commission of these crimes.

42. His social development is discussed, together with his current supports including his wife and brother and four close friends. His employment history is described. He has, it would appear, capacity to achieve. He was academically, behaviourally, and socially well-adjusted at school. He was admitted to a selective school when he entered high school. There were no behavioural concerns. He had consistent and stable social networks. After his higher school certificate, he attended TAFE and completed a Diploma of Accounting. He secured employment in an accounts management role for an online auction company. He and his brother were establishing a café business and he subsequently sought training in hospitality to work there.

43. He later acquired a Diploma in Financial Planning and he held a business banking role with one of the large banks in this country. He continued in that position for some three years before his arrest. As to vocational goals, he reflected on not being entirely happy or satisfied in the financial sector and made moves towards working in the community services sector. Since his arrest and release to bail, he enrolled in a Certificate III Community Service course so that he might assist disadvantaged young people.

44. He has no relevant physical and medical history and is currently in good physical health. The section dealing with mental health history, however, paints a more difficult picture for him. He was first involved with mental health services in the midst of the COVID‑19 pandemic when he was experiencing work related stress. This occurred when client support requests escalated. He gave evidence of this. People in difficult circumstances through which the community passed over the last two years were financially imperilled, and in his role with the bank he had to deal with their requests for assistance to help them manage their financial affairs.

45. Against that background, he was still expected to meet his sales targets. At the same time, his wife suffered two miscarriages. Through workplace arrangements, he was able to have counselling and attended some eight to ten appointments. He reported seeking psychological treatment in 2021 when he developed a dependence an oxycodone. He experienced an increase in low moods, anhedonia, amotivation, and sadness under the influence of the drug.

46. His drug and alcohol use history are discussed. Herein is a difficulty for the offender. It is not a mitigating factor to be under the influence of a substance in the commission of an offence, although, as offender's counsel acknowledged, it does provide an explanation in some cases for the misbehaviour the subject of the prosecution.

47. I find in this case that the difficulties the offender created for himself rest upon his decision to pursue a lifestyle that included use of cannabis from 16 years of age, then the sporadic use of ecstasy from the age of 17 until he continued on to make use of cocaine to which he was exposed in the corporate world where he was working.  The use of “rack” as he described it in the text messages. He was introduced to Valium as a method of coming down from the influence of the cocaine. He began to experiment with oxycodone because he knew the feeling it provided when prescribed to him for pain management after an ankle injury.

48. He found it difficult to identify the primary motivating factor for experimenting with oxycodone but recognised that it was at a time he was experiencing work related stresses and feeling overwhelmed. It became his primary drug and he developed a physical and psychological dependence upon it, occasionally supplementing the use of it with cocaine and Valium. Attempts at abstinence were unsuccessful. He sought counselling in mid‑2021 which did not succeed in having his discontinue use of the drug.

49. He spoke of the fear and trauma of incarceration and being away from his family, all of which are factors likely to motivate him to maintain a healthy, positive and drug free lifestyle in the future.

50. He also advised the psychologist that having created drama for another person in their lives by his actions is itself a deterrent from any future drug use. The explanation of the offences is discussed including the loss of access to sites where he had been obtaining the drugs in the past. He also spoke of looking to find a way to pay off a small personal loan that he had obtained. This seems to be connected with his interaction with a drug dealer, according to this report. He said that there was no moral voice telling him to desist from the actions upon which he was engaged but now he accepts 100% responsibility and wants to reach out to the victims to express his contrition, remorse, and regret.

51. He underwent psychometric testing, the results of which led to a finding that he exhibited symptoms of adjustment disorder with mixed disturbance and emotions and conduct and a substance use disorder described as severe. The analysis provided by the psychologist then continues with a description of pervasive underlying self‑doubt and perceived inadequacies which he attempted to suppress by presenting with a façade of propriety and control. He appeared reluctant to disclose psychological difficulties but aimed to present as efficient, disciplined, meticulous, and industrious. He saw himself as devoted to work and to meeting responsibilities, fearful others would view him as irresponsible, or slack in his efforts, or someone who failed to meet the expectations of others.

52. His tendency to suppress self‑doubts and uncertainties was driven by an avoidance of disapproval. It was unclear from the history provided as to the origins of these traits and it is suggested that these perceived inadequacies and insecurities be further explored through psychological treatment. Notwithstanding these factors, which the psychologist offers, the offender was able to maintain a mature, responsible, and prosocial and productive lifestyle in which he was successful in vocational pursuits, financial responsibilities, and social and family relationships.

53. There is reference also to accumulating pressures from stressful circumstances from work associated with the COVID‑19 pandemic, financial concerns, and the miscarriages suffered by his wife. These challenges are likely to have activated his underlying self‑doubts, insecurities, and fear of disapproval and failure to meet the expectations of others.

54. As I said earlier, the offender gave evidence before me and sympathetic though I am to him and what is about to befall him, I am not persuaded of the merit of all that the psychologist has sought to offer at page 10 of his report. I'm of the view, upon the material I have, that the offender chose his lifestyle and that his misuse of substances escalated to the point of oxycodone dependence.  It is accepted to be a drug of addiction of significant concern here and overseas, but ultimately he is where he is because he made those lifestyle choices and was a willing participant in that pursuit. I accept on the material that he engaged upon these crimes to fill the void when his sources of the drug were unavailable to him, but the mitigation that provides is of limited significance.

55. I accept the assessment by the psychologist that he has a low risk of re-offending. I accept that he needs further assistance, especially when he is released back into the community and for that reason there are special circumstances requiring an adjustment in the custodial component of the sentence below the ratio specified in section 44 Crimes (Sentencing Procedure) Act 1999.

56. Open Sky Psychology provided a report upon the sessions in which the offender participated between 21 September 2022, about each fortnight up until 14 December 2022. The session dates were on 21 September 2022, 4, 14 and 26 October 2022, 11 and 30 November 2022 and 9 and 14 December 2022. The report speaks of him favourably and suggests that he made appropriate progress toward the therapy goals. The experimentation with oxycodone is said here to have commenced in 2020, amid the COVID‑19 lockdowns. He noticed a sense of losing control over the drug. He successfully stopped for several months but upon relapse returned to daily use.

57. It is said upon his report that his oxycodone use was apparently to serve the function of emotional regulation, but this was not achieved. There is reference here to his failure to discuss underlying emotional challenges which in due course fuelled feelings of shame and self‑criticism and ultimately lead to his use of the drugs.  There is no reference in this report to his past drug use beginning with the cannabis and extending into the use of cocaine to which I earlier referred. There is also a reference to a similar pattern of gambling suggesting addiction about which I know little, but it appears this has been part of the problem. He attended and continues to attend Narcotics Anonymous, but this report includes that he attended Gamblers Anonymous to address whatever that difficulty might have been.

58. Accompanying this report, are the case notes for each session that he attended. There is a bundle providing particulars of his attendance at Narcotics Anonymous and there is a bundle with the results of urinalysis showing that he has not been using or are at least consistent with him not making use of oxycodone or other drugs identified for analyses undertaken. These were between 26 November 2022 and 13 January 2023.

59. There is a copy of a letter written or addressed to the owners of the Late-Night Chemist at Ryde, expressing the offender’s remorse, and explaining why he engaged upon this misconduct. There is a comparable letter written to the proprietors of the East Ryde Pharmacy. There is a letter written to the Court consistent with what the offender said to me in his evidence.

60. I accept what he has there written and the contrition, and remorse expressed, consistent with what he said to me in evidence, which I also accept.

61. There is a character reference from a friend, a practising solicitor, speaking of his qualities and his progress toward rehabilitation. There is a character reference from a man who interviewed the offender for a role at a financial planning practice. His qualities in that role are discussed. He was hardworking with high levels of empathy and care with his work.  There is a reference from the pastor of a church to which the offender has been attending. There are transcripts of his achievements at TAFE. There is a document from the St Vincent de Paul Society speaking of the work he did for that organisation and the quality of the services provided.

62. There is a comparable reference from a football club speaking to the volunteer work that he performed for them, and a comparable report from CCA New South Wales where he provided services to the community and those less fortunate than him.

63. I have considered, as I noted, the bail conditions. This material was tendered as part of the defence case. I do not intend to read the entirety of the document onto the record but I will note that there were residential restrictions, daily reporting, and limitations on his activities within the community. He could not go anywhere near the victim premises. He could not approach any prosecution witnesses. He was to engage in the Connect Global Extension program. He was to undertake any testing that was required. He was to not participate in the consumption of alcohol or consumption of drugs. He was not to travel interstate, not go near points of departure for international travel, and was to remain at the subject premises unless attending legal or medical appointments.

The Offender’s Submissions

64. The submissions on behalf of the offender replicate the more succinct statements provided by the Crown in the written submissions they provided. The submission is though that I would come to a decision that the aggregate sentence appropriate in its case would be one of three years or less whereupon I could employ section 7(1) Crimes (Sentencing Procedure) Act 1999 and impose an intensive corrections order.

65. The reasons in support of that proposition include pre‑sentence custody, bail condition, quasi custodial conditions, his progress towards rehabilitation, the state of mental health the offender exhibited requiring application of the statements of principle in the DPP Commonwealth v De La Rosa (2010) 79 NSWLR 1. There is low risk of re-offending, contrition and remorse, otherwise good character, the need for further treatment that won't be available to him in custody, and the protection of the community will be easily and more likely achieved by way of an intensive corrections order rather than by way of full-time custodial sentence.

66. I am reminded of the Henry guideline judgement and particularly what was said by Wood CJ at CL regarding the significance of the misuse of drugs. His Honour wrote of the possibility of drug addiction being a mitigating factor. His Honour pointed to the need to acquire funds to support a drug habit, even a severe habit, as not an excuse for armed robbery and of itself is not a matter of mitigation, but wrote that drug addiction might throw light upon factors such as the extent to which the misconduct was impulsive, the existence or non‑existence for any alternative reason that might have operated in aggravation of the offence, the capacity of the offender to exercise judgement, and insofar as the origin or extent of the addiction and the attempts to overcome it might impact upon the prospects of recidivism or rehabilitation and suggest that the addiction was not a matter of personal choice but attributable to some other event. 

67. In response to those propositions, I would note that this was not a case of the offender requiring funds to support his drug habit he was looking to acquire drugs that he could no longer source under his then arrangements.

68. These were not impulsive offences, bearing in mind the extent to which he masked his appearance and prepared himself for the crimes. His capacity to exercise judgement, I would expect must have been impaired to some extent and I bring to that account.

69. The subjective case is summarised in the submissions provided. I accept, as I have said, remorse and contrition. I accept the prospects for rehabilitation. I brought to account section 3A Crimes (Sentencing Procedure) Act 1999 and the purposes for which punishment is imposed in criminal cases. All of the factors there identified are engaged in this case. General deterrence is to be attributed appropriate weight. Specific deterrence does not loom as large in this case.

64. I brought to account the need to structure the sentence to facilitate rehabilitation. The conduct must be denounced and there must be recognition of the harm done to the victims in these instances of misconduct and to the community generally. The line provided in section 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and I am satisfied that no penalty other than imprisonment is appropriate.

The Sentence

71. In each case the offender is convicted. I specify an aggregate sentence of imprisonment of 4 years and 6 months to commence on 19 August 2022 and expire on 18 February 2027. This consists of a non‑parole period of 2 years and 3 months that will expire on 18 November 2024.

72. In each case, I have identified as appropriate a sentence of imprisonment of 3 years and 4 months that would have been imposed were the sentences to be announced individually and imposed upon the offender each in turn. I have applied a discount of 25% to each reflecting the plea of guilty. I find special circumstances in the need for the offender to have an extended period on parole to facilitate his reintegration in the community.  The exhibits shall remain on file for such purposes of the parties might require in the future.

73. Pursuant to section 18B Drug Court Act1998 I refer to the offender as a convicted eligible offender for assessment as to his suitability to enter the Drug Court program.

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Decision last updated: 16 March 2023