R v Wharerau

[2021] NSWDC 790

District Court

New South Wales

Medium Neutral Citation:

R v Wharerau [2021] NSWDC 790

Hearing dates:

26 November 2021

Date of orders:

26 November 2021

Decision date:

26 November 2021

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of two years, six months with a non-parole period of 14 months: at [28].

Catchwords:

SENTENCING — Mitigating factors — Limited record of previous convictions — Plea of guilty — Rehabilitation — Remorse

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — Maximum penalty — Moral culpability — Voluntary disclosure of offence

SENTENCING — Subjective considerations on sentence — Age of offender — Deportation — Drug addiction — Mental illness — Special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Henry (1999) NSWLR 346

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Zach Wharerau (Offender)

Representation:

Ms S Charles (Solicitor, Office of the Director of Public Prosecutions)

Mr C Minette (Solicitor for the offender)

File Number(s):

2021/86503

Judgment

1. The experienced psychiatrist Dr Richard Furst described Zach Wharerau’s offence as among the least sophisticated of this category of offences he has ever seen, amongst hundreds of similar types of offences and related offenders he has ever had the pleasure or lack thereof to assess.

2. What 19 year old Mr Wharerau did on 27 March 2021 was to walk into the EzyMart convenience store in Bondi carrying a brick. He asked the shop attendant to “Give me the money”, when the cashier refused and he said “Fuck off, fuck off” raised the brick and said “I will kill you”. The victim was very scared. He thought the offender was going to kill him by hitting him with the brick.

3. He smashed the brick on the cash register display monitor, causing it to fall over and break. He took $332 from the register and walked out of the EzyMart. He put the cash in his pocket and dropped the brick on the footpath.

4. The next day he called 000, wanting to hand himself in for committing the robbery. He met Police outside the Centrelink in Surry Hills where he was arrested.

5. He made full admissions to what he had done. He said he robbed the store just because he wanted the money. He said he “saw the brick and it just came to him.” He was sober at the time of the robbery.

6. He was shown footage and photographs from the shop and he said “that’s me”. He said he called 000 because he felt bad for committing the offence.

7. He has no record in New South Wales but there are minor matters on his juvenile record in Western Australia.

8. He has been in custody since his arrest on 28 March 2021.

9. There is a sentence assessment report which indicates that he has no accommodation in New South Wales and he intends to return to Queensland eventually.

10. I am told that he is a New Zealand citizen and may ultimately be deported, but that of course is irrelevant to the sentencing process.

11. The author of the sentence assessment report states that his mother supports his assertions that he is not an aggressive person. He has reported experiencing drug-induced psychosis in the weeks leading up to his offending. He was assessed as being at a medium risk of re-offending.

12. Dr Furst provided his customarily helpful report, pointing out that when he was 17 he was prescribed anti-depressants for anxiety and depression.He was admitted to Ipswich Hospital in February of 2021 after suffering an episode of psychosis. He felt the whole world was trying to ‘get him’. He thought that the nurse in the emergency department was a police officer and all the patients were ‘testifying against him’.

13. He had been paranoid for at least two years. He had a history of cannabis, MDMA, LSD use; no significant medical problems. There is a strong family history of schizophrenia and bipolar disorder on his father’s side.

14. Dr Furst had access to Justice Health records and was unfortunately quite critical of the psychiatrist’s view in September 2021, when he said that he did not present with psychosis since he has been in custody, which was inconsistent with the contemporaneous notes.

15. He had in July 2021 phoned his from custody mother and said his ‘final goodbyes’, quit his job in the gaol and refused to eat his dinner. He was placed in a safe cell under the Risk Assessment Intervention Team and remained there for some days.

16. As Dr Furst pointed out, the unfortunate fact is that he has not yet seen a qualified psychiatrist apart from Dr Furst himself, for treatment while he has been in custody. He diagnosed schizophrenia and alcohol substance use disorder. He noted that he had discontinued his anti-psychotic medication shortly after the two-week admission into Ipswich Hospital, which likely had a further detrimental effect on his thinking, judgment and planning capacity.

17. Dr Furst said at page 7 that

Although the offending was not driven by hallucinations telling him to rob the store in question or delusions about the convenience store, the impairment from his schizophrenia is obviously much broader, including in relation to his self-care, decision making, consequential thinking and capacity for planning”

18. He notes that a Forensic Community Treatment Order is indicated.

19. As Dr Furst concluded, given that he has a serious mental illness in the form of schizophrenia and is prone to paranoid thinking, high levels of anxiety and suicidal ideations, he is particularly vulnerable in custody. As such a custodial sentence is more onerous on him than the theoretical average inmate.

20. The history suggests that he is likely to remain functionally impaired by schizophrenia, a mental illness that is frequently destabilised by the use of drugs and./or non-compliance with medication. He has little insight into his schizophrenic illness and treatment needs requiring a community treatment order.

21. The offender affirmed the history set out in Dr Furst’s report in evidence today.

22. He pleaded guilty at an early stage to a charge of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty is 20 years imprisonment and is an important yardstick in the sentencing process.

23. As the Crown correctly points out, this is a matter largely governed by the guideline judgment of the Court of Criminal Appeal in R v Henry (1999) NSWLR 346. I take into account the factors that are set out there, which characterise a typical case leading to the Court identifying a range of 4 to 5 years for the full term of custody. That of course was later qualified to mean a late plea and the appropriate adjustments for an early plea and, in my view, a further significant discount, bearing in my mind the matters set out in s 23 of the Crimes (Sentencing Procedure) Act 1999, by reason of his self-surrender, justifies a significant reduction in any term of imprisonment from the range contemplated in Henry.

24. The Crown acknowledges he is a young man. A brick was used to threaten the victim and there was clearly a limited degree of planning; limited violence, though threatened; the victim was vulnerable; a small amount of cash was taken and he pleaded guilty at the earliest opportunity.

25. In mitigation it is noted that he does not have any significant record, he pleaded guilty, he has expressed remorse, and handed himself in. While the offender is young, the Crown accepts that punishment and general deterrence may be regarded as of less importance than rehabilitation and different policy considerations apply to young offenders rather than adults.

26. The Crown does not challenge Mr Minette’s submission that special circumstances should be found. He is a young man, struggling with mental illness. It is his first time in custody. The custodial conditions during the COVID-19 pandemic are recognised every day by the Courts in sentencing, and they make conditions in custody much more onerous given the lack of visitation, lack of programs, the frequent isolation and lockdowns.

27. I accept Mr Minette’s submission, that notwithstanding that there would perhaps ultimately been a strong case if the forensic material had been examined, the offender had only been in Sydney for a short time and was unknown to the Police and the community at large, the chance of him being identified or recognised from CCTV was reduced significantly, and it was his surrender that resulted in the swift conclusion to the investigation.

28. The orders that I make are:

1. The offender is convicted of the offence.

2. I impose a sentence of 2 years and 6 months commencing 28 March 2021

3. I impose a non-parole period of 14 months expiring 27 May 2022.

4. I find special circumstances.

29. HIS HONOUR: Anything further, Mr Minette or Ms Charles? No? Alright. Thank you.

30. CHARLES: Thank you your Honour.

31. HIS HONOUR: Do you understand that, Mr Wharerau?

32. OFFENDER: Yes. Could I ask a question your Honour?

33. HIS HONOUR: Yes.

34. OFFENDER: Could you please send me to Oberon Gaol?

35. HIS HONOUR: Oberon. Look, I wish I had the power to do that but I think it entirely on the hands of Corrective Services. But I can certainly make a recommendation that you go to Oberon.

36. OFFENDER: And how long do I actually spend in gaol? Is it two years exactly or two years and ---

37. HIS HONOUR: No, it was 14 months non-parole period.

38. MINETTE: So another seven months.

39. OFFENDER: So I do 14 months in gaol?

40. HIS HONOUR: Another six months, yes.

41. OFFENDER: Alright. Thank you, your Honour.

42. HIS HONOUR: Okay.

43. MINETTE: I will give you a call, Zach. Just stay there and I will speak to you shortly okay.

44. OFFENDER: Okay, thank you.

45. HIS HONOUR: Is there a particular reason for wanting to go Oberon?

46. OFFENDER: I just heard that it is really - is a lot better there.

47. HIS HONOUR: Okay.

48. MINETTE: Young offenders, lots of young offenders there I think, your Honour, and I think it is farm work and things like for them to do at Oberon. So--

49. HIS HONOUR: Alright. Well I will recommend that he be taken to Oberon. Where are you now? John Morony?

50. MINETTE: John Morony, your Honour.

51. OFFENDER: Thank you, your Honour.

52. HIS HONOUR: Alright. Thank you.

53. MINETTE: Thank you, your Honour. If I might be excused?

54. HIS HONOUR: Alright. Thank you.

**********

Decision last updated: 30 May 2022