R v West; R v Dimitriyevich

[2013] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:	R v West; R v Dimitriyevich [2013] NSWDC 112
Hearing dates:	5 April 2013
Decision date:	05 April 2013
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	In each case sentenced to imprisonment. See paragraphs [25], [26], [27] & [28]
Catchwords:	CRIMINAL LAW - Sentence - Use offensive weapon to avoid lawful apprehension - Attempted armed robbery in company - Carried in a stolen conveyance - Breaches of bonds - Addiction to drugs a mitigating factor - Circumstance of addiction
Category:	Sentence
Parties:	The Crown Jason Arthur West Daniel Dimitriyevich
Representation:	Ms S Goodwin - Offender Dimitriyevich Director of Public Prosecutions Legal Aid Commission - Offender West
File Number(s):	2012/567 2011/417701

SENTENCE

1. HIS HONOUR: As a young Crown Prosecutor I asked a detective who was giving evidence whether he had much involvement with drug related crime. He looked surprised by my question. He told me that in his experience almost all crime is drug related. My experience in the criminal law since then has proved the accuracy of what that detective said. We have an example in court today. These offenders whilst under the influence of drugs and needing to buy more, or to pay off drug debts, committed a series of serious offences. They attempted to rob people inside a hotel, people who must have been scared, indeed terrified.

1. Somewhat unusually both offenders for sentence today share a common characteristic. Often when drug addicts commit crimes to get money for their drugs little regard is had to the fact that they are drug addicts because of the element of personal choice involved in choosing to use drugs in the first place. But in the case of both offenders for sentence today their addiction to drugs was contributed to by acts of violence to which they were subject. Mr West was shot by unknown assailants and Mr Dimitriyevich was stabbed also by someone unknown. Both developed post traumatic stress disorder, not surprisingly. Mr West developed a drug addiction following opiate dependence, consequent on him being treated with pain killers following being shot and Mr Dimitriyevich found that his substance abuse significantly increased after he was stabbed. So contrary to the usual approach to drug addiction I will regard the circumstance that these offenders each had a drug addiction following acts of violence committed upon them, as very much in their favour.

1. Although there are some differences in the precise nature of the offence for which the offenders are to be sentenced, they have in common an offence of attempted robbery in company they each committed together on

30 December 2011. Before that occurred Mr West stole a motor vehicle and then filled it up with fuel without paying, both offences appearing on a Form 1 attached to his offence of attempted robbery in company. Later on

30 December the two men met up, Mr Dimitriyevich got into the stolen car (an offence of being carried in a stolen conveyance for which he is to be sentenced,) and they went to the area of the Alfred Hotel in Camperdown. They had planned to commit an offence there. Although it may well be that the offence was more planned by Mr West than Mr Dimitriyevich the latter's involvement was not a spur of the moment decision. He took part in what I would describe as 'casing the joint' and so they must have both been well aware that when they went into the premises it would be occupied by patrons and that thus this was not simply to be a case of break, enter and steal but was to be a case of robbery.

1. Mr West had with him, to Mr Dimitriyevich's knowledge, a cap gun, that is a toy gun, although it had been painted in such a way to make it look more realistic. Mr Dimitriyevich had with him a hammer, both of those items were used during the course of the offence.

1. While they were casing the hotel they were observed by the licensee. He had left the premises for a personal reason and was returning to the hotel at about 1.10am on 30 December when he noticed the two offenders acting suspiciously. When he got to the hotel he spoke about this to the security officer and so they were ready when the two offenders approached the hotel wearing balaclavas. Upon seeing this the security officer locked the front doors. The offenders thus had difficulty getting in. Mr Dimitriyevich used the hammer with which he was armed and began hitting the glass doors. Two employees of the premises locked themselves in the office area located under the hotel. Eventually Mr Dimitriyevich was successful in bashing a hole in the front door and both offenders were able to get in. They then went around the premises, in view of the patrons left inside, trying to find something to take. One or both of them, it does not really matter which, inquired about the whereabouts of a safe. Mr Dimitriyevich found a knife and used it to attempt to open the till. They were unsuccessful in obtaining access to any cash at all.

1. Police were called while the offence was occurring. When they arrived the offenders were still inside. Mr Dimitriyevich hindered police by failing to do what they requested him to do, although he gave up very soon afterwards. Mr West on the other hand did not give up easily. It will be recalled that he was armed with a toy pistol, obviously the police did not know it was a toy when it was presented to them. He was told to drop the firearm but he pointed it at police, they discharged their firearms towards Mr West, fortunately for both him and the police officers involved they missed. The offender then tried to get away. Once more he pointed the toy pistol at the police and once more they fired at him and once more they fortunately missed.

1. Nearby was the Chinese consulate. As might be expected it was well protected with, amongst other things, razor wire. The offender climbed up a wall and into the consulate premises. I should have noted that the act of pointing the toy pistol towards police in order to prevent his lawful apprehension is an offence for which the offender must be sentenced. Entering the protected premises, namely the premises involving the Chinese consulate, is also an offence, this one appearing on the Form 1.

1. Mr West cut himself quite badly on the razor wire in the events I have just described. After that he fled into a building in the Royal Prince Alfred Hospital. Police were able to follow droplets of blood through the hospital until they found a pool of blood in a kitchen area, the toy weapon and after some hours the offender was located, still within the hospital, and arrested. Also on the Form 1 is an offence of trespass involving the hospital.

1. To complete the matters for which Mr West must be sentenced I should refer to the circumstances that at the time of this offence he was on a s 12 bond from Newtown Local Court for an offence of driving whilst disqualified. He clearly breached that bond by the commission of the offences I have described and asks that I deal with the consequences of that breach today.

1. I spoke earlier about the concept of personal choice as it relates to the decision to use drugs. That idea also arises when we look at the decision of offenders to commence criminal activities. It has to be recognised that some offenders do not have the same opportunities that other luckier people in the community have, when they decide whether or not to commit crimes.

1. Mr West was denied opportunities that most other people in the community have because of the way he was brought up. He grew up in Glebe. He has no contact with his biological father although he knows that he has been incarcerated intermittently throughout his life. His mother brought up him and his three siblings, but she was unemployed and finances were limited. The home environment was described as being putrid and the necessities of life were not always available which in part motivated Mr West from a very young age to steal in order to get food in order to survive.

1. Mr West's mother was an alcoholic who was drunk every day. She simply did not care for him as she should have. On top of that she formed a relationship with a violent man, so Mr West observed domestic violence throughout his childhood. Given the chaotic and dangerous environment which existed at home Mr West quite understandably tried to spend most of his time elsewhere, living on the streets. That led to him seeking out other children in a similar position, and that in turn led to his antisocial behaviour.

1. A psychological report summarises things this way:

"It is clear that Mr West had an abusive and neglectful childhood and adolescence marked by significant failures in parenting, he was physically abused by his mother's partner and was witness to domestic violence against his mother. Additionally his mother was an alcoholic and was apparently unable to protect him or adequately supervise him. Mr West had an unstable home environment a lack of supervision and guidance and was modelled violence with criminality from a young age."

1. Those of us who did not experience a childhood like that were much more able to make an informed decision about our behaviour than Mr West was. Of course that is not to say that everything Mr West has done since then by way of his criminal behaviour can be forgiven. Ultimately there comes a time when Mr West, as an adult, has to take responsibility for his own actions. His actions have in the past been criminal. He has spent a great deal of time in custody and he will continue to do so until he makes the decision that he will change his ways.

1. Offences such as I have described on licensed premises are relatively prevalent. They are of course serious, causing great harm to those who experience them. Despite Mr West's terrible background, he must be punished and significantly so for his decision to commit the offences I have described. I do take into account that he was under the influence of drugs at the time, they had a disinhibiting effect of course. His prospects of rehabilitation depend largely on his prospects of overcoming his drug addiction. In his favour is the circumstance that the drug addiction was a recent onset, certainly the addiction to opioid, such as heroin was of recent onset and, with the support of services available both inside prison and upon his release from custody, there is some hope that Mr West might be able, sometime in the future upon his release from custody to live a better life. If he does not make that choice, he will, I am sure, as a significantly older man, look back on his life and realise that it has been largely wasted. Another factor I will specifically take into account is that his time in custody will be harder than would otherwise have been the case, simply because of the post traumatic stress disorder, albeit apparently in remission at times, from which he suffers.

1. As I am sure everyone in court knows, gaols are violent places. It would be bad enough to be in fear of such violence on a daily basis without post traumatic stress disorder, but having been shot, him being the victim of significant violence, I am sure that Mr West's time in custody will be harder because of that circumstance.

1. In Mr Dimitriyevich's case, his upbringing was not as bad as that of Mr West. His parents did separate and it seems that Mr Dimitriyevich took the absence of his father to heart. That caused him to act out in an antisocial way. He, again in contrast to Mr West, commenced using drugs including heroin at a relatively early age and so his drug addiction is of long standing. He too was under the influence of drugs at the time the offence was committed. I do notice the Crown submitted that there was some conflict between the history given to Dr Allnutt and the contents of the offender's ERISP on the day he was arrested but I am prepared to make a finding in the offender's favour that his decision as to whether to commit this offence or not was affected by drugs he had taken.

1. There are some factors which tend to suggest that Mr Dimitriyevich's prospects of rehabilitation are a bit brighter than they have been in the past. There are encouraging signs for the future, including him being in a relationship with a young woman who will be able to assist him once he is released from custody. He has plans for the future. In the past he has been able to hold down a job and once released from custody wants to work as a fitness trainer. Whilst in custody and apparently drug free, he has been exercising. Unfortunately it would appear that he cannot do his certificates through TAFE whilst in custody but he plans to do them upon his release from gaol and then work as a fitness trainer in the future.

1. I note that he was on three s 9 Bonds at the time of this offence. I do not know what for and nothing was presented to me to enable me to deal with them at this time, but it is of course a matter of aggravation that he was on bonds at the time he committed these offences.

1. He expressed his remorse to Dr Allnutt and, as Ms Goodwin suggested, what Dr Allnutt reports him saying did not appear to have just been some rote and automatic expression of what Mr Dimitriyevich thought he should say to benefit him. From what I can see, it appeared to be genuine.

1. As with Mr West his time in custody will be harder because of his post traumatic stress disorder. The apprehension that Mr Dimitriyevich feels and the fear he has about a further random act of violence, will mean that he will never be able to truly relax whilst in custody. Again that is a matter I have taken into account in his favour.

1. Of course the principle of parity arises. The offenders were dealt with together and although there were some relatively minor differences in the statements of facts prepared by the Crown in relation to each offender, it is the case that objectively the offenders' criminality was similar as regards the attempted robbery in company charge, with one slight exception, that being that the material before me satisfies me that it was Mr Dimitriyevich who was invited to participate by Mr West, rather than the other way around.

1. In both cases there are special circumstances. Both offenders will benefit from an extended period of supervision whilst on parole. If they can be assisted to give up their use of drugs then not only they benefit but so does the community. They each have significant criminal histories and it will be to the community's benefit if they are able to change their ways with the assistance of the probation and parole service.

1. The offenders are sentenced as follows:

1. For Mr West, firstly I revoke the order for suspension of the sentence imposed in the Newtown Local Court. I impose a non-parole period of four months for that matter to date from 30 December 2011. For the offence of using an offensive weapon in order to avoid lawful apprehension the offender is sentenced to imprisonment for a fixed term of two years to date from 29 February 2012. That is a fixed term because of the sentence I will shortly announce for the remaining matter.

1. For the offence of attempted robbery in company I set a non-parole period of three years and two months to date from 28 February 2013 with a head sentence of five years, the non-parole period will expire on 27 April 2016 on which day the offender is eligible to be released to parole. I confirm the order for disqualification from driving made in the Local Court. For the offence of drive whilst disqualified under s 166 certificate I impose a fixed term of imprisonment of six months to date from 30 December 2011.

1. For Mr Dimitriyevich the offence of being knowingly carried in a stolen conveyance I impose a sentence of six months fixed term to date from

30 December 2011. For the offence of attempted robbery in company I set a non-parole period of three years to date from 29 February 2012 and a head sentence of five years. The non-parole period will expire on 28 February 2015 on which day the offender is eligible to be released to parole. Because the remaining non-parole period allows it the offender is referred to the compulsory drug treatment program at Parklea gaol.

1. I will also refer Mr West to the compulsory drug treatment program at Parklea gaol.

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Decision last updated: 23 July 2013