R v Weismantel (No 3)

[2015] NSWDC 227

District Court

New South Wales

Medium Neutral Citation:

R v Weismantel (No 3) [2015] NSWDC 227

Hearing dates:

1 October 2015

Date of orders:

01 October 2015

Decision date:

01 October 2015

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Offender convicted
Sentence of imprisonment
Aggregate sentence imposed
Non-parole period of four years and six months commencing on 1 March 2014 and expiring on 31 August 2018
Further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 31 August 2022.
Special circumstances found

Catchwords:

CRIMINAL LAW – Sentence – Take vehicle without consent, in company – At least two co-offenders – 87 year old victim – Planning, though not by offender – No violence, no explicit threat expressed, “kindly” – Vehicle used for two armed robberies in company – Co-offenders destroyed vehicle, offender not involved in destruction

 

CRIMINAL LAW – Sentence – Three robberies with offensive weapon, in company – Sawn-off shotgun and axe at first and second robbery; sawn-off shotgun, axe and walking stick at third – 3 co-offenders at each – First robbery, cinema, $506.50 – Second robbery, cinema patron, $90, licence, bank cards and personal papers – Third robbery, hotel, $3,873 and 3 packets of cigarettes – Planning, though offender merely “acquaintance or follower” –Sawn-off shotgun outside of category of weapon in guideline judgment Henry – Offender previously sentenced for armed robberies as juvenile and as adult – Parity – Co-offender (Roach) sentenced for these offences with one matter on Form 1 and other offences

 

CRIMINAL LAW – Sentence – Attempted robbery with offensive weapon, cause grievous bodily harm – Restaurant – Offender drug-affected – Grievous bodily harm not intended, but intentional act all that is required by statute

  CRIMINAL LAW – Sentence – Aboriginal Australian – Disturbed childhood – Historical and continuing psychotic symptoms – Abused alcohol from age 12 – Abused drugs from age 14 – History of self-harm – Significant criminal history – Risk to community – Consultant forensic psychiatrist recommended high supervision upon release including admission into community-based drug and alcohol rehabilitation centre – Totality: need to avoid a crushing sentence – Special circumstances found – Discretion as to when to commence sentence

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Muldrock v The Queen [2011] HCA 39
R v Barker [2006] NSWCCA 20
R v Clinch (1994) 72 A Crim R 301
R v Henry (1999) 46 NSWLR 346
R v MAK [2006] NSWCCA 381
R v Thomson (2000) 49 NSWLR 383
R v Weismantel (No 3) [2015] NSWDC 213
R v Weismantel (No 1) [2015] NSWDC 122
Veen v The Queen No 2 [1988] HCA 14

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW) (Crown)
Blake Weismantel (Offender)

Representation:

Counsel:
Mr S Hughes (Crown)
Mr S Schaudin (Offender)

  Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Sydney Criminal Lawyers (Offender)

File Number(s):

2014/11092014/94525

Publication restriction:

No

Judgment

1. HIS HONOUR: Blake Weismantel stands for sentence for five crimes. The first four of those crimes are part of the subject of my evidentiary ruling reported at [2015] NSWDC 122. At that time I was concerned with five counts in an indictment that had been presented by the Crown. After my ruling, which concerned coincidence evidence, the parties asked for an adjournment which was granted and the Crown eventually presented a fresh indictment containing four counts only, to each of which counts the offender pleaded that he was guilty.

2. The offender was then called on for trial on an indictment containing one count. That indictment alleged an offence on 31 December 2013 contrary to the provisions of s 98 of the Crimes Act 1900. The offender made an application for trial by judge alone, which I granted. I then conducted the trial. I found the offender guilty of the charge. My reasons for bringing in that verdict are reported at [2015] NSWDC 213. In essence, the trial was purely documentary. The defence offered by the offender was a legal one but he was unsuccessful in that regard. The nature of the defence is discussed commencing at [49] of that judgment. The facts are well known to the offender and to the Crown and are readily available to members of the public. I need not recite them.

3. I shall, however, record the agreed facts placed before me at this sentencing hearing concerning the four offences which occurred on 23 September 2013. On that day Daniel Roach and Amanda Ridden checked into room 333 at the Linwood Lodge at Artarmon under an alias. Later that afternoon they were joined by the current offender and Anthony Woodman. At about 4.45pm on that afternoon the offender and Woodman attended the Freeway Hotel at Artarmon. CCTV footage from the Freeway Hotel depicted the offender wearing a grey “Canterbury” brand T-shirt, black “Canterbury” brand shorts with a white stripe and red underwear. Woodman purchased a case of VB beer. The offender and Woodman were later seen returning to the Linwood Lodge with that case of beer.

4. At about 7.30pm that evening, Phillip Brighton, an 87 year old gentleman, was returning to his home in Lane Cove in his motor car. He noticed a group of young people standing on the pavement at the intersection of his street and another road. As Mr Brighton turned into the street in which he resided he noticed a young lady walking ahead of the group of other young people. As he turned into his driveway he remotely activated the garage door and drove into the garage. As he switched off the engine he noticed Daniel Roach, Anthony Woodman and the offender standing alongside his car inside the garage. Those three appeared to Mr Brighton to be the same persons he had seen standing at the intersection of his street as he was about to drive into his street. One of the male offenders demanded that Mr Brighton hand over his keys. That male offender said, “Give me the car keys. We’re not going to hurt you.” Mr Brighton held his hand out with the keys while he was sitting in the car. The male offender who had made the demand took the keys from Mr Brighton's hand and told him to get out of the car. He did so. It is an agreed fact that Mr Brighton handed over the keys of his car for fear of his safety. Mr Brighton was unable to say if the female, Amanda Ridden, was inside the garage as well as the three young male offenders. His car was then driven away. It was a 2003 dark blue Nissan Pulsar motor vehicle.

5. At 7.54pm that same evening Roach, Ridden, Woodman and the offender entered the Roseville Cinema on the Pacific Highway Roseville. One was armed with a sawn off shotgun. That person was the present offender. Roach was armed with an axe. Each of the four offenders had covered his or her face with other items of clothing. A movie was about to commence at the cinema and, accordingly, there were a number of patrons inside the cinema about to enter the auditorium room itself. Roach initially threatened an employee, Michael Sheppard, who was working in the Candy Bar. He demanded that Mr Sheppard hand over the money contained in the cash register of the cinema. Sheppard, perhaps foolhardily, told Roach to decamp using foul language. He ran to the box office to trigger an alarm. Roach then jumped over the Candy Bar onto the same side of the counter as Mr Sheppard. At this stage the present offender who was armed with the sawn off shotgun pointed it towards Sheppard and shouted words to the effect of, “Do you want to die?” Roach then entered the box office and demanded that Sheppard open the safe. Sheppard replied that there was no safe and told him that the silent alarm had been tripped. Sheppard took a bunch of $50 notes from the cash register and passed those notes to Roach telling him to take it and leave as the police were about to arrive. Whilst that was happening, Woodman threatened customers and demanded that they hand over their wallets. One of the customers, a gentleman named Mr Barry Price, who is described in the facts as “elderly”, handed over his wallet which contained $90 in cash together with Mr Price’s driver’s licence, credit cards and a number of personal papers. During this, the female, Amanda Ridden, was a “lookout”, or, to use the old Australian vernacular, playing the cockatoo. These four offenders then decided to decamp. A total of $506.50 was taken from the Roseville Cinema as well as the $90 which was taken from Mr Price.

6. The agreed facts tell me that the CCTV footage taken within the Roseville Cinema depicts the offender wearing red underwear which bore a similarity to the underwear worn by him in the Freeway Hotel at Artarmon earlier on that day. I have seen that CCTV footage in the process of making the evidentiary ruling to which I have referred. What is striking is not the offender’s underwear but the way in which he sought to disguise head, swathing it with other items of clothing. His head was swathed in exactly the same way at a subsequent armed robbery on the same evening, from film of which it can be seen that the offender dropped packets of cigarettes which, when examined were found to carry his DNA, thereby positively establishing the offender’s identity as the man with the sawn-off shotgun with his head swathed in a certain way at the Roseville Cinema as well as having his head swathed the same way at the subsequent crime scene.

7. The four offenders had arrived at the Roseville Cinema in Mr Brighton’s motor car. The toll and other records indicate that that car was then driven to the Revesby Pacific Hotel at Revesby. The four offenders who had participated in the armed robbery at the Roseville Cinema participated in a robbery at the Revesby Pacific Hotel which commenced about 9.40pm. At that robbery, Woodman was carrying the sawn-off shotgun, Roach was still carrying a small axe and Amanda Ridden had armed herself with a walking stick which belonged to Mr Phillip Brighton and had been taken from his car where it was normally kept by Mr Brighton. At this robbery the offender was not armed. Again, the CCTV footage taken at the Revesby Pacific Hotel shows the present offender wearing the same red underwear and his head swathed in the same fashion as it was at the Roseville Cinema. The CCTV footage clearly shows the offender accidentally spilling packets of cigarettes which he had taken from the office of the hotel into a cash register behind a bar which when tested revealed the DNA of the offender. The proceeds taken from the Revesby Pacific Hotel were $3,873 from three separate funds, the largest of the three funds being the takings of the pool table. The four offenders left the Revesby Pacific Hotel before the arrival of the police, driving the vehicle that had been taken from Mr Brighton. That vehicle was subsequently found burned out, that is, destroyed somewhere close to Parramatta but the current offender had no part to play in the destruction of Mr Brighton’s vehicle.

8. I am required to discuss the objective seriousness of the various offences which the offender committed. Clearly a degree of planning was required for these four offences. However, the evidence before me clearly indicates that the organising mind of the person who decided to carry out these robberies, the person who planned them, was not the present offender but more probably than not, Daniel Roach. Learned counsel for the offender reminded me of a statement that had been made by a witness, Ms Natalie Donaldson, a half-sister of Daniel Roach, which statement was before me when I made the evidentiary ruling to which I have earlier referred. In that statement Ms Donaldson said this:

“During one afternoon after a couple of days of them having stayed at my unit I was sitting at the dining table with Daniel and Amanda....Both Daniel and Amanda were saying they had no money. Amanda said, ‘We need money’. Daniel said, ‘Let’s do a job’. Amanda said, ‘Okay’. Daniel said he had arranged for a gun and it was coming. I said, ‘Oh, who’...The conversation chopped and changed but always seemed to return to getting the gun...I did overhear a conversation between Daniel and Amanda where Daniel mentioned the name of the person he intended to buy the gun off....During the late afternoon/early evening a day or two before the robberies, the gun supplier, along with his little son and another male came to my unit....the morning after the gun dealer had come to my unit, there was a lot of talk between Daniel and Amanda about having the gun....Daniel went and got a blue enviro bag from my bedroom. Daniel sat on the mattress in the living room and removed the gun from the blue bag....Daniel ripped (the gun) off Jordan [her son] and started pointing it at me.

I said, ‘Don’t point it at me’. Daniel said, ‘It’s not loaded’...Daniel asked me to steal a car and drive him and Amanda around while they did robberies. Daniel said, ‘Get us a car and I’ll give you half of what we get’. I said, ‘No way’. Daniel said, ‘Okay, don’t steal it, borrow a car off one of your friends’. I said, ‘No way’. Daniel said, ‘Does any of your friends need to earn any money?’. I said, ‘No way’....Daniel got mad at that and said words along the lines that I didn’t have any backbone or ticker. Daniel and Amanda started using Jorden’s mobile phone and Facebook profile in an effort to find someone to drive a car while they did robberies.”

The inference to be drawn is that Roach and/or Ridden recruited Woodman and the current offender. Other evidence that I read on the evidentiary application indicates that of the two, that is Woodman and the current offender, Woodman is perhaps the leader and the offender might be described as his acquaintance or follower. Accordingly for these four offences I can accept that the current offender was not the ringleader or planner but merely a “soldier” in a joint criminal enterprise that was organised by others.

9. As far as the carjacking is concerned, I am required to consider a number of different factors as set out in R v Barker [2006] NSWCCA 20:

• they are the level of planning,

• the number of persons involved,

• the type of threats made,

• the degree of violence,

• the number of persons in the vehicle at the time of the offence,

• the degree of fear instilled in the victim,

• the period of time in which the vehicle was used by those who had stolen it,

• the damage to the vehicle, if such damage does not give rise to a separate charge,

• the time and place at which the offence was committed, and

• the motive for the commission of the offence.

Here I accept that the planning was not done by this offender. However there were at least three offenders confronting one victim. A threat was made but the threat clearly indicated that no harm was intended to the victim. No violence was actually used. There was only one victim. Although I accept that a degree of fear was instilled in the victim the fear was not particularly great – I will shortly turn to evidence concerning that. Clearly the victim’s vehicle was used for criminal offences committed on over the evening after the stealing of the car. The car was destroyed, but I accept that the offender had no part to play in that destruction. The purpose clearly of the taking of the car was to use it as a tool in the joint criminal enterprise.

10. In a statement made to police on 21 September 2013, Mr Brighton said amongst other things that, although he felt fear during the incident, the offenders “did not appear to be menacing.” In a transcript of the triple-0 call made by Mr Brighton, he states that the offenders acted in a “kindly” fashion to him. He is reported as saying this:

“In fact they kindly said, ‘we’re not going to hurt you old fella, because I’m 87 you see.’”

Looking at things objectively, this case of aggravated taking and driving of a motor vehicle is towards the bottom of the range of seriousness. The only thing which places it not at the very bottom of the range of seriousness is a number of young offenders confronting an old man.

11. It is to be noted that the offender Roach has already been sentenced by his Honour Judge Haesler. His Honour passed an aggregate sentence on Roach. However, for the current offence his Honour gave an indicative sentence of three years and nine months with a non-parole period of two years and five months but took into account at the same time the destruction of the vehicle on a Form 1, which destruction was admitted by Roach. Clearly, any sentence to be passed upon the current offender for the same crime must be substantially less.

12. The three armed robberies are clearly to be considered in light of the guideline judgment in R v Henry (1999) 46 NSWLR 346. In that case a majority of the Court of Criminal Appeal determined that a full term sentence of between four or five years imprisonment was warranted in a case involving seven characteristics. Those characteristics are these:

1.   a young offender with no, or little, criminal history;

2.   a weapon like a knife, capable of killing or inflicting serious injury;

3.   limited degree of planning;

4.   limited, if any, actual violence but a real threat thereof;

5.   the victim in a vulnerable position, such as a shopkeeper or taxi driver;

6.   a small amount taken;

7.   a plea of guilty, the significance of which is limited by a strong Crown case.

In R v Thomson (2000) 49 NSWLR 383 it was said that the guideline judgment in R v Henry should be understood as involving a late plea of guilty for the purposes of the application of the guilty plea guideline promulgated in Thomson itself.

13. The offender was a young man at the time. He is currently 23 years old. At the time of these four offences he was 21 years old. He has a criminal history but it could not be described as “little.” He has previously been sentenced to juvenile detention on two counts of robbery armed with an offensive weapon. He has also previously been sentenced by this Court, as an adult, to imprisonment for four years with a non-parole period of two years for robbery armed with an offensive weapon. The weapons here were a sawn-off shotgun, as well as an axe, and, at the Revesby Pacific Hotel a walking stick. At the Roseville Cinema the shotgun was wielded by this offender but it was wielded by Woodman at the Revesby Pacific Hotel. The problem with a sawn-off shotgun is the same problem as encountered with any firearm. A person confronted by it does not know whether it is loaded or not and cannot escape its reach as one can escape the reach of a knife or other hand-held implement not capable of being discharged. In my view, robbery whilst armed with a sawn-off is outside the category of weapon considered in the guideline judgment in R v Henry. Clearly there was some degree of planning but it does not appear to have been particularly sophisticated. For example, the group did not bother to obtain balaclavas for them to hide their appearance but improvised using other items of clothing. No attempt was made to change their clothing in between, for example, the robberies at the Roseville Cinema and the robbery at the Revesby Pacific Hotel. I accept that there was no actual violence but clearly there was a real threat in robbery. The victim in each case should not be seen as being, “in a vulnerable position”, as a shopkeeper and taxi driver, arguably alone, or accompanied only by some junior insofar as the shopkeeper is concerned. Here, both the manager of the Revesby Pacific Hotel and the employee of the Roseville Cinema, were surrounded by others and company creates solidarity, and it lessens the fear felt by the victim, just as robbers in company because of their solidarity, increase the threat to the victim(s) of the robbery. As far as the Roseville Cinema is concerned, there was a small amount taken but the same cannot be said for the robbery at the Revesby Pacific Hotel. In the current case, the offender pleaded guilty after an evidentiary ruling which made the prospect of conviction more certain but also only after the Crown dropped one of the charges.

13. In respect of the armed robbery at the Roseville Cinema, Judge Haesler fixed an indicative sentence of seven years and six months but that was for one offence only and the robbery of Mr Price was, as far as Roach was concerned, a matter contained on a Form 1. As far as the Revesby Pacific Hotel was concerned, Judge Haesler gave an indicative sentence of seven years’ imprisonment for the armed robbery, when sentencing Roach. When discussing the seriousness of the robberies carried out on the 23 September 2014 Judge Haesler said this:

“The objective seriousness of the two robberies, armed with dangerous weapons would be obvious to anyone from my brief recitation of the facts. The offenders were in company with each other. An axe and a sawn off shotgun were used. A number of staff and patrons were present and threatened. The co-offender’s threats, as part of this enterprise, were to kill. While the planning and execution appeared to be haphazard, ill thought out, and inept, it was planning nevertheless.

There appeared to be little thought to the consequences of their crime on the individual victims, those nearby and to the community in general. There appears to be little thought given to the consequences of themselves, as arrest would have been, had anyone thought about the matter, almost inevitable.”

15. I turn now to the fifth offence, that carried out on 31 December 2013. On that occasion the offender was armed with a knife and he assaulted Mr Sathaporn Wongsamak with intent to rob him and at the time of the assault the offender inflicted grievous bodily harm upon him. This is an offence contrary to s 98 of the Crimes Act 1900. Parliament has prescribed a maximum penalty of 25 years imprisonment and fixed a standard non-parole period of seven years. I do not wish to recite the facts in greater detail. If they are required by anybody they can be found at the reported decision which I have earlier mentioned.

16. I have no hesitation in finding that the offender did not intend to inflict any harm upon the victim either actual bodily harm, let alone grievous bodily harm. The law only required an intentional act by the offender. That intentional act was seeking to ward off the victim’s attempt to stop the offender robbing the victim’s business. In the process of doing that the victim was pushed backwards and fell accidentally to the floor suffering a bad fracture of his right ankle. The offence alleged could be committed by somebody actually intending to inflict harm or actually intending to inflict grievous bodily harm. In my view the lack of any intention to harm the victim, the harm being accidental to a large extent, puts this case below the mid-range of objective seriousness.

17. In determining an appropriate sentence for this offence I am not required to assess whether or not, having regard to the standard non-parole period, the offence is within the middle range of objective seriousness. Similarly, I am not required to commence by asking whether there are reasons for not imposing a standard non-parole period. The relevant statutory provisions particularly ss 21A, 54B(2) and 54B(3) of the Crimes (Sentencing Procedure) Act 1999 require an approach to sentencing with all of the relevant factors identified and, having regard to all such factors, a determination reached as to the appropriate sentence to be applied. That is the outcome of the decision in Muldrock’s case. However I am required by the statute where there is a standard non-parole period to indicate what non-parole period I would impose for an offence which carries a standard non-parole period even if I proceed as I intend to do to impose an aggregate sentence.

18. I now turn to the offender’s personal circumstances. They are a matter of great concern, not only to the offender, but to the Court and also ought be to the community. They cause many complications in any sentencing exercise. The offender was interviewed by Dr Richard Furst, a consultant forensic psychiatrist, on 24 July 2015. Dr Furst had first assessed the offender on 1 February 2012. At that time the offender was aged 19. At the time of the more recent interview the offender was, as he is now, 23 years old. I take much of the following from the history reported by Dr Furst.

19. The offender identifies himself as an Aboriginal Australian. The offender’s father was an alcoholic and his mother was addicted to heroin. His parents separated when he was about eight years old. The offender was then raised by his mother. His mother struggled to provide for him both financially and emotionally. He was regarded as a “child at risk” by the Department of Community Services as that Department used to be known. The offender was also thought to be angrily disturbed, having anger issues and mood swings throughout childhood. He was also thought to be suffering from Attention Deficit Hyper-activity Disorder. He had a history of conduct problems throughout his childhood and during his schooling. He was suspended on multiple occasions from school and struggled in class. He ended up at a special school at Naremburn as a teenager but was expelled in year 9 because of violent behaviour. He subsequently obtained the School Certificate while in the Hornsby TAFE. The offender has been unable to gain employment. He was incarcerated as a juvenile.

20. He has been incarcerated as an adult. He has a history of psychotic symptoms dating back to his childhood, including hearing voices. He has been treated in the past by Juvenile Justice and also by Justice Health with antipsychotic medication. The offender reported a range of psychotic symptoms when assessed in custody in January 2010 including command auditory hallucinations, paranoid thoughts and a belief that God was sending him messages through the television. The offender was experiencing apparent delusions of reference when assessed by Dr Furst in February 2012 and at that time he also reported various auditory hallucinations. Dr Furst thought he was paranoid at that time. The offender told Dr Furst that people were “plotting to kill him”. He gave a history of hearing voices and seeing images of a deceased friend who had committed suicide in 2011. The offender also gave a history of visual allusions. Dr Furst thought in February of 2010 that the offender was low in mood and was suffering from anxiety and had unresolved grief issues.

21. The offender continued to experience auditory hallucinations, visual hallucinations and paranoia when discharged from custody and returning to the community in 2013. He was under the care of the Chatswood Community Health Team operating from the Royal North Shore Hospital. He was then being treated by a psychiatrist, Dr David Bell, who prescribed a range of pharmacological treatments. He was also seeing a case manager every fortnight because he was on parole. When asked about his condition in 2013 the offender said that he “was having continual arguments within my own head. Like someone hacked my own head...constant threats, commands, like a live commentary...all the time”.

22. The offender had attempted to take his own life in the 36 hours prior to the offence on New Year’s Eve 2013 because he perceived that he was unable to cope with his mental health concerns. Clearly he was very ill immediately after the events and required urgent admission to the Intensive Care Unit at the Hornsby Ku-ring-gai Hospital. When the offender discussed that offence with Dr Furst the offender told Dr Furst that he was “a bit intoxicated” and “confused” at the time, that he was apparently arguing with himself earlier that day. He gave a history of hearing voices telling him that others were going “to get him” and his family. He was under the illusion that he was being attacked by others. He clearly had little memory of the offence that he committed on New Year’s Eve 2013. It is also clear from what the offender told Dr Furst that he had little active recollection of the offences on 23 September 2013.

23. Bearing in mind the offender’s background which I have thus far described it is unsurprising that he took to alcohol and drugs to seek to ease his existential stress. He commenced abusing alcohol at the age of 12. He was drinking up to one litre of spirits at a time three times each week in his late teens. He continued drinking in that manner up until his arrest in December 2010. At the age of 14 he started abusing cannabis and valium. Very shortly thereafter, still aged 14, he took up using amphetamines and methamphetamine. He graduated to increasing doses of methamphetamine after the age of 14 years. He also used ecstasy and MDMA in his teenage years, party drugs. He used heroin between the ages of 15 and 16. He occasionally resorted to using “magic mushrooms.” His use of drugs decreased significantly when in custody but after his release from custody he involved himself in episodic binges involving the use of cannabis and methamphetamine as well as LSD.

24. Whilst in custody, the offender had completed the drug and alcohol course in Young Offenders Program at the John Morony Correctional Centre ending up completing that course at the Oberon Correctional Centre before being released on parole in December 2012. However, it is clear that the offender quickly relapsed and was labouring under the effects of illicit drugs at the time he committed the current offences.

25. When interviewed by Dr Furst on 24 July 2015, the offender reported ongoing symptoms of auditory hallucinations on a daily basis and symptoms of paranoia and he was clearly frustrated in his mood. The diagnoses offered by Dr Furst are firstly of Schizophrenia; secondly of Substance Use Disorder; and thirdly of an Anti-social/Borderline Personality Disorder. The features of Borderline Personality Disorder included multiple episodes of self‑harm in the offender’s teenage years. Dr Furst was of the opinion that that was most likely a product of the harsh treatment the offender received at the hands of his alcoholic father which included witnessing domestic violence, himself being the victim of physical violence, abuse and neglect. Both the offender’s parents were “addicts,” his father being addicted to alcohol and his mother to heroin, inferring a biological predisposition to addiction and providing poor role models for the offender in his formative years. During some formative years, namely, the offender’s early teenage years, his father was absent and the presence of a father for a male during the early teenage years is critical to social development. Dr Furst was of the opinion that the schizophrenia most likely had its onset when the offender was about 15 years old and perhaps results from or was precipitated by “chronic substance abuse.” The offender, himself, could hardly be said to be morally culpable for such psychiatric illnesses which result not from something innate to itself but from his background and upbringing.

26. There are two significant opinions offered by Dr Furst. They are contained on p 8 of his report and are these:

“Negative peer associations, limited capacity for self-reflection, and chronic impairment in his level of function by virtue of his schizophrenia and personality disorder were probably the main factors contributing to the robbery offences in question before the court.

He remains at significant risk [of] relapsing into drug use and reoffending when released into the community as a product of his personality structure, poor role models and previous history of offences, warranting more intensive interventions for his addiction problems and mental illness.”

The first paragraph which I have just quoted points in the direction of a sentence that should be reduced. The second paragraph points in exactly the opposite direction.

27. However, Dr Furst then sets out a number of recommendations for future treatment which commend themselves to me as being the most likely way of rehabilitating the present offender and returning him into the community as a worthwhile participant in it, as a man who can live without committing crime, a man who can live without drug addiction, a man who can support himself in the community. Time is running out and shall not cite in detail what is proposed by Dr Furst in any great detail. He recommends however that the offender complete an addiction program whilst in custody and a violent offender therapeutic program whilst in custody, has ongoing treatment for his psychotic condition and that he undertake educational and vocational training. Dr Furst recommends that when eligible for admission to parole, the offender not go directly into the community but go into a community-based drug and alcohol rehabilitation centre which will reinforce the previous addiction program that he has undertaken in custody, and operate in some way as a “halfway house” to ease the offender from institutionalisation in prison to independence in the community. Dr Furst recommends a higher level of monitoring and support by Community Corrections which might help the offender adjust to living in the community in the future. He also recommends psychiatric surveillance by Community Corrections and the local community mental health team.

28. In Veen v The Queen No 2 [1988] HCA 14; 164 CLR 465, the majority said at 476:

“However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. There are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.”

As I have already indicated, the offender’s mental condition mitigates his moral culpability for these crimes. However, until properly treated, the offender is a threat to the community.

29. I have come to the view that the best way of helping both the offender and the community is to impose a lengthy period in which the offender will be eligible for parole, in the expectation that the plan of treatment proposed by Dr Furst can be carried out. However, that does not mean that the offender is entitled to some nominal sentence. Far from it. The crimes which he has committed are serious. Whilst he is not an appropriate subject for general deterrence, because there are few in the community who labour under the disadvantage under which this offender labours, specific deterrence is still applicable. He must realise that he must do whatever he can to turn his life around. Furthermore, retribution is something that the law demands be imposed.

30. I bear in mind proportionality when I consider the crimes committed by Daniel Roach, proportionality to his offences, that is parity. I also have to bear in mind proportionality insofar as it concerns the length of the sentence to be passed. That is the principle referred to as totality. In R v MAK [2006] NSWCCA 381 the court identified at least two matters that are considered under the totality principle. The first is that:

“The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of the sentence.”

The Court of Criminal Appeal quoted R vClinch (1994) 72 A Crim R 301, where the Chief Justice of South Australia said, “a sentence of five years is more than five times as severe as a sentence of one year”, and that a simple arithmetical addition of two sets of sentences of seven and eight years, resulting in a 15 year sentence:

“may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence, by simply aggregating the two sets of sentences”.

The second matter referred to the by Court of Criminal Appeal in R v MAK, is that the totality principle is to avoid the Court imposing a, “crushing sentence”. In MAK, the Court said at [17]:

“...an extremely long total sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform”.

31. It is to be noted that Daniel Roach committed a number of offences which this offender did not commit. For example, Roach committed an armed robbery on a pharmacy and participated in a breaking, entering and stealing from a residence, in which the residence was ransacked. He also assaulted a police officer and assaulted another police officer and inflicted actual bodily harm on that police officer.

32. As I said, I intend to impose an aggregate sentence. For the first offence, there is maximum penalty of 14 years’ imprisonment and a standard non‑parole period of five years. I have already referred to the sentence indicated by Judge Haesler for Roach. I have come to the view that in the current offender’s case, I should start with a head sentence of three years which I discount by 10% for the late plea of guilty. That gives me a head sentence of two years and eight months. I indicate a non‑parole period of one year and six months.

33. For each of the three armed robberies, Parliament has prescribed a maximum penalty of 25 years’ imprisonment. There is no standard non‑parole period. In respect of the armed robbery of Michael Sheppard, and the taking from him of $506.50, the property of Roseville Cinema, I commence with a head sentence of six years imprisonment. I discount that by 10 per cent to arrive at 64 months or five years and four months imprisonment. For the same offence committed upon Mr Barry Price, I would impose the same sentence, that is five years and four months, but I do indicate that were those the only two offences concerned I would accumulate those two offences by only six months. For the armed robbery of the Revesby Pacific Hotel, I start with a head sentence of six years, which I discount by 10 per cent because of offender’s late plea of guilty. That is another head sentence of five years and four months.

34. For the offence of 31 December 2013, I have come to the view that I should start with a head sentence, again, of six years. I discount that by 15 per cent pursuant to s 22A of the Crimes (Sentencing Procedure) Act1999, the power to reduce penalties for facilitating the administration of justice. Here the offender clearly had little, if any, recollection of the offence. He clearly was advised that his only defence was a legal, technical defence. That was the issue tendered for my determination as the tribunal of fact. The matter proceeded on documentary evidence only. A large number of witnesses were spared giving evidence. The trial was conducted over a few days rather than over a few weeks. The offender did facilitate the administration of justice by tendering the real issue, by his counsel making appropriate submissions and taking no issue as to the reliability or credibility of the evidence obtained by the Crown. That reduces the head sentence to 61 months, which I round off at 60 months or five years. As the matter carries a standard non-parole period I indicate that the non-parole period I would impose would be three years.

31. I have come to the view that the head aggregate sentence ought be a sentence of eight years and six months imprisonment. Applying the statutory nexus between the head sentence and the non-parole period the non-parole period should be some six years and four months. I have come to the view that because the existence of special circumstances, to which I have already adverted, the treatment proposed by Dr Furst, the need for the offender to be supported for as long as possible by Community Corrections once released on parole, the non-parole period should be four years and six months.

32. The remaining issue is the date on which the sentence should commence. The offender was on parole when taken into custody on 31 December 2013. The parole authority revoked the offender’s parole. Theoretically his sentence expired on 9 December 2014. I could commence the sentence on 31 December 2013 and I could commence the sentence on 10 December 2014. The authorities make it clear that I have a discretion. In essence, the offender went into custody on 31 December 2013 because of the offence of attempted armed robbery of the Thai restaurant at Pennant Hills. However it is clear from the other material before me that the offender was at risk of having his parole revoked in any event. He had committed other offences, but they were driving offences.

33. Clearly the commission of the offences for which the offender is being currently sentenced whilst on parole was an aggravating factor. I have borne that in mind. Equally, the offender ought to have served out the whole of the remainder of the sentence for the earlier offence of 9 December 2010. As I said, the authorities make it clear that I have discretion. I believe that some portion of the offender’s period of custody between 31 December 2013 and 9 December 2014 should be attributed to the earlier sentence but the majority of it I believe I ought take into account in the current sentencing exercise.

34. I accordingly intend to commence the head sentence on 1 March 2014. If my mathematics be correct, the offender would be entitled to be eligible for parole on 31 August 2018, and the head sentence will expire on 31 August 2022.

35. Are those mathematics correct, gentlemen?

36. BOYD: That’s how I’ve worked it out, your Honour.

37. HIS HONOUR: Of each of the five offences which I have discussed in these reasons for sentence you are convicted. I sentence you to imprisonment. I set a non-parole period of four years and six months commencing on 1 March 2014 and expiring on 31 August 2018. I impose a further period of imprisonment of four years to commence upon the expiration of the non-parole period and expiring on 31 August 2022. The total sentence is therefore eight years and six months comprising the non‑parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.

38. Any other orders sought, gentlemen?

BOYD: No, your Honour.

SCHAUDIN: No, your Honour. Sorry to ask this your Honour, I just wanted to clarify something with respect to the discount applied for the s 98 offence.

HIS HONOUR: It was fifteen per cent.

SCHAUDIN: Sorry, I heard twenty-five.

HIS HONOUR: No, fifteen.

SCHAUDIN: Yes, thanks, your Honour.

HIS HONOUR: Fifteen per cent off six years, twelve sixes are seventy-two, fifteen per cent off seventy-two gives you sixty-one and then I round that down to sixty.

SCHAUDIN: Thanks, your Honour.

BOYD: I heard what my friend heard. I think it might have been an infelicity. You might have said “twenty-five” but you’d articulated during the sentencing proceedings it was going to be fifteen.

HIS HONOUR: Yes, it was fifteen.

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Decision last updated: 16 May 2016