Regina v Zahab

[2002] NSWCCA 430

CITATION:	Regina v Zahab [2002] NSWCCA 430
FILE NUMBER(S):	CCA 60411/02
HEARING DATE(S):	20 September 2002
JUDGMENT DATE:	25 October 2002
PARTIES :	Regina v Khoder Zahab
JUDGMENT OF:	Spigelman CJ at 1; Howie J at 2; Smart AJ at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/0367
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	(C) P J P Power (R) G F Jauncey
SOLICITORS:	(C) S E O'Connor (R) D J Humphreys
CATCHWORDS:	Sentencing - 17 armed robberies - combination of drug addiction and serious psychiatric condition - sentences manifestly inadequate
CASES CITED:	Veen v The Queen (No 2) (1987) 164 CLR Pearce v The Queen (1998) 194 CLR R v Henry (1999) 46 NSWLR 346
DECISION:	See para 59

IN THE COURT OF
CRIMINAL APPEAL

60411/02

SPIGELMAN CJ

HOWIE J

SMART AJ

Friday, 25 October 2002

Regina v KHODER ZAHAB

JUDGMENT

1. SPIGELMAN CJ: I agree with Smart AJ:

2. HOWIE J: I have had the benefit of reading the judgment of Smart AJ in draft. His Honour has relieved me of the considerable burden of setting out the facts and circumstances surrounding the sentences imposed in the District Court and the matters relevant to the determination of the appeal.

3. I agree with his Honour that the sentences imposed are manifestly inadequate. In light of the number of serious offences for which the respondent was before the court and the fact that the offences were broken by a period served in custody when the applicant received treatment for his psychiatric illness, the sentences were excessively lenient to a very significant degree. This Court has no option but to allow the appeal and re-sentence the applicant notwithstanding the principles that bind this Court in determining a Crown appeal.

4. As was pointed out by the High Court in Veen v The Queen (No 2) (1987) 164 CLR 465, the sentencing of a mentally disordered offender presents a difficulty in that the mental state of the offender might point to the imposition of a heavier sentence for the protection of the community even though the offender’s moral culpability for the offence is reduced by reason of his disordered thinking. Mason CJ, Brennan, Toohey and Dawson JJ in their joint judgment stated (at 477):

… .. 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. They 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.

5. The respondent in the present case was to be sentenced for, in effect, seventeen armed robberies each of which would warrant the imposition of a full-time custodial sentence. Although he had the advantage that a large number of the offences were to be taken into account on a Form 1, the total criminality for which her Honour was to sentence the respondent, considering the offences from a purely objective basis, was considerable, not least because the respondent was on bail when he committed the offences. He has also convictions for not dissimilar matters in his criminal record and so cannot be shown leniency by reason of his antecedent history.

6. Further, the offending was interrupted when the applicant was required to serve a sentence in custody during which time his mental condition was diagnosed and treated with medication. On his release, however, the respondent stopped taking his medication, reverted to drug usage and recommenced his criminal conduct where he had left off when entering into custody. There is no justification, in my view, for considering the offences as part of the one ongoing criminal venture, to the degree that such a consideration is a matter of mitigation when there are as many serious offences as those before the court.

7. Even taking into account the pleas of guilty and the discount required by the respondent’s assistance to investigating police, the sentence which would normally be required to reflect the objective seriousness of the offences would be well into double figures. Her Honour’s suggestion that there was little actual violence employed does not, in my respectful opinion, pay sufficient regard to the fact that on each occasion the applicant was armed with a syringe with which he threatened his terrified victims. Her Honour appeared to put too much weight on the amount of money stolen in assessing the criminality of the respondent. I venture to suggest that in light of the number and nature of offences committed by the respondent the amount of money stolen was of little, if any, significance. Her Honour’s conclusion that the offences were toward the bottom of the range is manifestly erroneous in light of the approach that this Court has taken to offences of robberies committed by persons armed with syringes preying on vulnerable persons carrying out their lawful occupations.

8. Her Honour was obviously correct in her conclusion that the major motivation behind the respondent’s criminality was his desire to fund his drug addiction. Her Honour was right to disregard his addiction to illegal drugs as a mitigating factor. While the failure of the respondent to take the medication prescribed for him was appropriately viewed by her Honour as not being a matter of aggravation, it should have resulted, in my respectful opinion, in less weight being given to the importance of his mental state to his offending and more impact upon a consideration of specific deterrence and the protection of the community.

9. Other than what weight could be given to the respondent’s mental condition, there was little else in his personal circumstances to mitigate the offences or reduce the otherwise appropriate penalty to reflect the object seriousness of his criminality. The part of the sentence where more regard could be given to the respondent’s mental condition was, in my opinion, in fixing the non-parole period. This is because, or so it seems to me, the respondent poses a real danger to the community because of his mental illness, his addiction to drugs and their effect on his mental state, and his history of serious offences of violence unless both his drug addiction and psychiatric condition is controlled. But it is difficult enough for an offender with a long-standing drug addiction to achieve rehabilitation without the aggravating circumstance of a severe mental disorder.

10. This is a case where, in my view, the danger that the respondent presents to the community, as he did when committing these offences, requires a significant head sentence, although one in keeping with the criminality involved in the offences and with due regard to his pleas and assistance, and a much reduced non-parole period in recognition of the need for him both to earn parole by seeking drug counselling and taking his medication, and to be subject to a lengthy period of supervision, monitoring and control when released. This is a case where, in my view, a lengthier period of parole supervision would be appropriate than might otherwise be justified in a case of a person with a drug addition.

11. I would allow the appeal and quash the sentences imposed in the District Court and substitute sentences that would total 9 years with an effective non-parole period of 5½ years. This sentence takes into account double jeopardy. As I am in the minority in this view, it is unnecessary for me to indicate how I would structure the sentences to achieve that result.

12. SMART AJ: The Director of Public Prosecutions appeals against the asserted inadequacy of each of the sentences imposed on five counts of robbery whilst armed with an offensive weapon, taking into account on count 1 twelve further instances of that offence. The sentences imposed were:

Count Start Finish Non-parole
Period

2. 11/8/01 10/8/02 Nil
3. 11/2/01 10/2/03 Nil
4. 11/2/02 10/8/03 Nil
5. 11/2/03 10/2/04 Nil
1. 11/8/03 10/8/07 11/8/03-10/8/05

13. The sentences totalled 6 years. The fixed terms and the non-parole period amounted to 4 years. The 17 offences extended over the period from 11 March 2001 to 11 August 2001. They cover three periods:

(a) 11 March – 17 March 2001 - 3 offences
(b) 6 July – 6 August 2000 - 13 offences
(c) 11 August 2001 - 1 offence

14. The offender was in custody for other matters from 20 March 2001 – 28 May 2001 and in a psychiatric unit of a hospital from 7 to 9 August 2001. He was arrested on 11 August 2001.

15. Counts 1 to 5 could be summarised as follows:

Count	Date	Description
1.	15/3/01	At 11.55 pm offender entered 7-Eleven Store, Campsie. Walked directly behind counter and pointed a syringe at victim. About $800 and 1 packet of cigarettes stolen
2.	17/3/01	The offender entered 7-Eleven Store, Campsie. Victim threatened with syringe. About $750 stolen.
3.	9/7/01	About 12.55 am offender entered 7-Eleven Store, Campsie, forced his way into office and pointed syringe at victim. Offender grabbed hold of victim, dragged him behind counter and required him to open the till. About $900 stolen.
4.	28/7/01	About 8.50 pm offender entered 7-Eleven Store, Milperra, jumped the counter and held needle of syringe towards victim and said some words about blood and AIDS. About $1000 stolen
5.	11/8/01	About 2.50 am offender entered 7-Eleven Store at Penshurst, held a syringe with red coloured liquid in the direction of the victim, demanding that he open cash register. Told victim liquid in syringe infected with AIDS. About $800, a large quantity of phone cards and a quantity of cigarettes were stolen.

16. Brief details of the 12 counts on the Form 1 are as follows:

11/3/01	About 2.30 am offender entered 7-Eleven Store, Campsie and purported to make purchase. On victim opening till offender held up a syringe at victim and mentioned "AIDS". About $500 and a quantity of cigarettes were stolen.
6/7/01	About 9.25 pm offender entered 7-Eleven Store, Campsie, walked behind counter and produced a syringe. About $150 and a quantity of cigarettes were stolen.
13/14/7/01	About 11.55 pm on 13 July offender entered 7-Eleven Store, Revesby, walked behind counter, pointed a syringe at victim, demanded that till be opened and touched the victim on the shoulder with the needle. About $400 and 35 packets of cigarettes were stolen.
15/7/01	About 11.25 pm offender entered 7-Eleven Store, Revesby, and pointed a syringe at the victim. About $300 and a quantity of cigarettes were stolen.
27/7/01	About 2.30 am the offender entered 7-Eleven Store, Penshurst, walked around behind the counter, threatened the victim with a syringe and said that he had AIDS. About $700 and a quantity of cigarettes were stolen.
30/7/01	About 3 am the offender entered the BP store at Revesby, purchased an item and while the till was open jumped the counter, produced a syringe and demanded money. Just less than $300 and a quantity of cigarettes were stolen.
31/7/01	About 8 pm the offender entered the 7-Eleven Store, Campsie, and on the till being opened walked around the counter stood near the till demanding money and pointed the needle of the syringe at the victim. About $150 was stolen.
2/8/01	About 1 am the offender entered the 7-Eleven Store, Rockdale, held a syringe to the victim and demanded money. About $300 was stolen.
2/8/01	A little after 1 am the offender entered the store attached to the Shell Service Station, Brighton-le-Sands, pointed a syringe at the victim and demanded that the till be opened. About $160 and 150 packets of cigarettes (value $404) were stolen.
4/8/01	About 12.10 am the offender entered the 7-Eleven Store, Revesby and purported to make a purchase. When the victim opened the till, the offender jumped the counter and produced a syringe. $849 and a quantity of cigarettes were stolen.
5/8/01	About 9.30 pm the offender entered the BP Connect Store, Revesby and purported to make a purchase. When the victim opened the till, the offender jumped the counter and produced a syringe. About $489 and 60 packets of cigarettes were stolen.
6/8/01	About 1.25 am the offender entered the 7-Eleven Store at Narwee and purported to make a purchase. When the victim opened the cash register, the offender jumped over the counter and threatened the victim with a "blood" filled syringe. He pushed the victim away from he register and told him to get onto the ground. About $200 was stolen.

17. All the offences were committed at service stations with most of them committed at night in circumstances where employees were vulnerable. One employee was the victim of four armed robberies and another of three armed robberies.

18. The offender was on bail during each of the offences.

19. The offender was born on 2 April 1970. While he was convicted of offences in 1990, 1995 (Queensland) and 1996 they did not attract a custodial sentence and were relatively minor. In February 1997 the offender was sentenced to a minimum term of 12 months with an additional term of 6 months concurrent for each of robbery in company and threaten injury with intent to influence witness. The offences of steal from the person, resist police and common assault were taken into account. In October 1998 he was sentenced to concurrent fixed terms of 6 months imprisonment for each of assault occasioning actual bodily harm and larceny. In May 20000 he was sentenced for a series of dishonesty offences, two common assaults and possess prohibited drugs. All sentences were concurrent with the maximum sentence being 8 months with a non-parole period of 6 months. There were further concurrent sentences for shoplifting and larceny of 2 months imprisonment.

20. While the pleas of guilty were not entered at the earliest opportunity the judge accepted that those representing the prisoner were justified in exploring with the DPP what charges should be preferred and investigating the psychiatric condition of the offender and its effect. The judge found that the pleas of guilty had a significant utilitarian value, given the number of offences and their avoidance of the need for any of the victims to give evidence. She found that the pleas represented contrition and remorse on the offender's part. The judge held, correctly, that without the offender's admissions the Crown case on most counts was not a strong one. She thought that the Crown case on identification was virtually non-existent in most cases. She gave a discount of 25 per cent but declined to grant a greater discount as that would fail to take into account the serious nature of the offences.

21. The judge accepted that up until his mid-twenties the offender had led a relatively straightforward and crime free life. He found it difficult to accommodate the cultural values within his strict Muslim family and those that he found at school and in the wider community. The rest of his siblings have done well and not come into contact with the law. He left school, obtained trade qualifications, worked hard, married a woman of whom his family did not approve and had two children. When he was about 22 he started to use drugs. Initially, he used cannabis. Then he used heroin and cocaine. About the time he started using these latter drugs he began to experience schizophrenia and other symptoms of mental illness and to commit the more serious offences earlier mentioned. (This material was contained principally in the Pre-Sentence Report). The offender's drug use led to the break-up of his marriage and he was divorced in 1996. He has had virtually no contact with his two sons since. He ceased drug taking for about two years, such cessation broadly coinciding with his time in prison. On his release he started to use illicit drugs again, including heroin and cocaine, in large quantities. He became seriously addicted to cocaine and heroin and that addiction continued for the next four years until his arrest in August 2001.

22. On 7 August 2001 the police took the offender to Bankstown Hospital because he had tried to hang himself in a local park. He was admitted to Banks House, the Hospital's psychiatric unit. He had been taking cocaine for four days. He appeared to have a wound to his head. On admission he had persecutory delusions against members of his family and had auditory and visual hallucinations. It was noted that he had a history of psychotic illness and that six weeks previously he had been discharged from Goulburn Prison and was "non-compliant with medication". After admission his mental state improved. He was re-started on Risperidone. As his mental state improved there was no suicidal ideation, no paranoid ideation, no pressured speech and his mood was appropriate. His mental state was stable at the time of his discharge on 9 August 2001. The diagnosis was drug induced psychosis. He was referred to Drug and Alcohol Services, Bankstown Community Health Centre.

23. The judge accepted that the majority of the offences committed by the prisoner (that is the 13 offences committed between 6 July 2001 and 6 August 2001) took place when he was using a significant quantity of prohibited drugs and not taking his psychiatric medication, suffering from delusions and building up to the state which led to his admission to hospital on 7 August 2001.

24. In his record of interview the offender said that if it was not for the drugs he would not have done any of the robberies (Q & A 42). He went on to apologise for what he had done and explained:

"But when I am doing these things I'm not aware of what I'm doing 'cause of my voices, I hear voices, you know what I mean. So I'm not all there when I am doing them, mate, you know, but my intention is not to harm anyone. I'm only in there just to get the money so I can support my habit." ( Q & A 122)

25. He had earlier explained that he suffered from paranoid schizophrenia (Q & A 69).

26. A little later he said:

"I hear voices, voices come and do things mate. You know I've got a mental problem … I've just come out of Banks House". (Q & A 150)

27. He said that he needed help for his drug addiction and his mental problem (Q & A 151). He had not taken his medication "since a month after I come out of gaol." (Q & A 155). The offender said that he was hearing voices during the interview (Q & A 160). He said that when he was off medication he heard voices and did whatever the voices told him to do, but when he was on medication he was relaxed and calm and did not hear voices. (Q & A 163).

28. The Pre-Sentence report records that the offender advised the Probation and Parole Officer that he was diagnosed with schizophrenia and depression four years ago. From the information provided in this report this seems to have accompanied his renewed drug use.

29. The offender told the officer that while he agreed with the police facts he was unable to recall the details of the offences as he was under the influence of illicit substances and suffering from a mental illness which caused him to experience delusions and hallucinations at the time. He claimed that he committed the offences to support his drug habit and in an attempt to seek help. He stated that he had hoped that he would either be caught and receive appropriate treatment or be killed in the process of these acts. He again apologised for what he had done and stressed that it was not his intention to harm anyone.

30. In his report of 27 March 2002 Dr O. Neilssen, forensic psychiatrist, recorded that the offender stated that he did not begin to use illicit drugs until his mid-twenties when he began using amphetamine, cocaine and cannabis and that soon after he started using drugs he began to experience symptoms of schizophrenia. While Dr Nielssen touched on the offender's background he concentrated on the offences the subject of this appeal and the offender's recent condition. He had recourse to the entries made in the offender's records by the treating psychiatrist at Parklea. Dr Nielssen saw the offender on 12 March 2002 at Parklea, and, as the treating psychiatrist was on leave, he arranged to commence treatment with anti-depressant medication. It does not appear what happened prior to 12 March 2002.

31. Dr Nielssen wrote:

"Mr Zahab presented as a fit, strongly built man of Lebanese appearance. He appeared anxious and his hand was sweating profusely to shake and he was observed to be tremulous during the interview. He was quite labile in his affect and became tearful at several points when reflecting on unhappy experiences. His speech was dramatic, in keeping with his background but his thinking was quite disorganised and he wandered from the point in a way typical of people affected with residual mental illness or damage to the areas of the brain affecting organisation of language, such as the frontal lobes. Mr Zahab reported the experience of hallucinations of voices, although he did not offer a delusional explanation for his experiences.

His attention and concentration was affected by his disorganised thinking. His memory was also impaired and he had difficulty performing tasks involving concentration and registration of details. He acknowledged that he was mentally ill."

32. Dr Nielssen made a diagnosis of chronic schizophrenia, currently in remission; substance abuse disorder and possible brain damage secondary to meningitis. Dr Nielssen expressed this opinion:

"Mr Zahab has a chronic mental illness characterised by auditory hallucinations, disorganised thinking and impulsive behaviour. His abuse of stimulant drugs and non-compliance with antipsychotic medication probably contributed to an exacerbation of symptoms of his disorder in the period in which the offences occurred, and he was found to be acutely mentally ill on his reception to gaol.

He has entered a plea of guilty to the charges, which occurred in the course of obtaining money to buy drugs, although he also reported symptoms urging him to commit suicide and also to commit offences. However, he did not report symptoms that would have deprived him of the knowledge that his behaviour was wrong, and in my opinion he does not have the defence of mental illness open to him.

Mr Zahab has a disabling psychiatric disorder and his disorder is likely to have been a contributing factor both to his drug abuse and also to his offending behaviour. Drug use has not been proven to actually cause psychotic illness, and the illness probably arose because, of an inherited predisposition, or because of brain damage arising from an episode of meningitis at the age of twenty-two.

Mr Zahab requires long term psychiatric treatment with anti-psychotic medication. He also requires some kind of residential drug and alcohol rehabilitation prior to release to the community, and close monitoring and support in the period after his release."

33. The judge lamented that the applicant had not been adequately supervised and monitored as to his psychiatric condition and medication after his return to the community but there does not seem to be power to do so. She doubted if he would have committed the later offences if he had been supervised and monitored.

34. The judge accepted that in relation to all the offences the applicant was both under the influence of illegal drugs and subject to a mental illness causing delusions. There was sufficient evidence to justify that finding but the evidence on that point as to the offences committed in March 2001 could have been stronger.

35. The judge made the following findings:

(a) Part of the delusionary process was the offender's belief that he was being told to commit certain offences.

(b) The major reason for the offender committing the offences was to fund his drug addiction and was not as a result of his psychiatric delusions.

(c) The offender's drug addiction should not be viewed as a mitigating factor.

(d) His not taking his medication was not an aggravating factor.

(e) The offender has probably ceased using illegal drugs since being in prison.

(f) While in prison the offender will have access to drug rehabilitation counselling courses and will make use of those.

(g) The offender suffers from schizophrenia and has so suffered for at least four years and this is likely to continue.

(h) Probably, the psychotic episodes from which the offender has suffered in the past have been drug induced and there is a significant correlation between his use of illicit drugs and his schizophrenia.

(i) The offender will continue to suffer from his mental illness when he is released from prison and will require ongoing treatment including medication, to keep the symptoms under control and thus prevent him from relapsing into a delusional state where it is more likely that he will commit offences.

36. As to rehabilitation the judge held:

(a) The offender will require drug rehabilitation and counselling. He requires residential drug and alcohol rehabilitation prior to release to the community with close monitoring and support after release. That will be needed for a longer than normal period because of the overlay of psychiatric illness and the need for monitoring of his medication.

(b) The offender's prospects of rehabilitation were reasonable but depended on his psychiatric illness being kept in remission by way of medication, ongoing counselling and treatment and on his remaining free of the use of illicit drugs. He needs help to meet these requirements as the past had shown

She correctly found that there were special circumstances for the reasons which she gave.

37. The judge held that general deterrence was not so significant in view of the offender's mental illness and it playing a part in the commission of the offences.

38. The judge said that absent the pleas of guilty and the offender's subjective features, but taking into account issues of totality, the total period of imprisonment called for was about eight to ten years. Allowing for the discount of 25 per cent and taking into account the other subjective features the judge held that "on a totality basis an overall term of imprisonment of six years is called for." She accepted that "on a totality basis, two years supervision would not only be sufficient, but that any more than that would not adequately take into account the criminality involved in the commission of … what is in effect seventeen armed robberies over a lengthy period of time."

39. The Crown contended that:

(a) the sentence imposed in relation to each particular count was manifestly inadequate

(b) there was manifest leniency in the way the sentencing order was framed

(c) insufficient weight was given to the Form 1 matters

(d) excessive weight was given to the offender's mental condition, and

(e) the sentences imposed were manifestly inadequate.

40. The offender submitted that each of the Crown's contentions had not been made good, that the judge had not made the errors suggested and that the sentences fell within the permissible range, albeit at the bottom of the range. The offender stressed:

(a) his psychiatric condition

(b) the utilitarian value of the plea of guilty

(c) the value of his admissions in his record of interview

(d) his genuine remorse and contrition, and

(e) he was serving his sentence on protection.

41. The offender also submitted that the Court should in the exercise of its discretion dismiss the Crown appeal. He had been in custody since 11 August 2001 and had not been sentenced until June 2002. It is now October 2002. He has spent a long time in gaol awaiting finalisation of his sentence. He relied on the principle of double jeopardy.

Decision

42. The Crown submitted that the judge treated the offences as though they were part of the one episode of criminality whereas there was a gap between the March and August offences. The judge recognized the gap between the offences. The offender was in custody for part of that period as she noted. Although the March offences and the later offences of July-August arose out of the appellant's drug addiction and his psychiatric condition, they did represent separate episodes of criminality that needed to be borne in mind when sentencing the offender.

43. I am not persuaded that the judge attached excessive weight to the offender's psychiatric condition. It was serious and had to be given considerable weight. One of the difficult facets of that was that after being in a serious condition on 7 August 2001, he appeared to have recovered sufficiently to be discharged on 9 August 2001. Dr Nielssen records that the offender was found to be acutely mentally ill on his reception to gaol. That occurred on 11 August 2001. There may be an explanation but this history highlights the difficulty of the condition. While the offender was in the dock during the hearing of the appeal he appeared quite detached from what was happening in Court. He spent much of his time staring somewhat vacantly into the public gallery behind the Bar table. His appearance and manner were unusual. They suggested that he probably needed treatment.

44. The judge seems to have first determined the overall period of imprisonment and then worked backwards to the sentences to be served on each count. This is contrary to the approach laid down in Pearce v The Queen (1998) 194 CLR 610 That requires the determination of the correct sentence for each offence and then consideration of cumulation and concurrence in the light of the principle of totality.

45. Offences of armed robbery using a syringe against people working in vulnerable situations attract, in the absence of special or extraordinary circumstances, sentences of imprisonment and non-parole periods well in excess of one year. The sentences imposed do not fit within the pattern of sentencing which exists in this State. That pattern was discussed, inter alia, in R v Henry (1999) 46 NSWLR 346. Offences of the kind in question attract sentences in the order of 4 years imprisonment with the non-parole period varying according to the circumstances. The current sentences are, on their face, manifestly inadequate. Nor does a sentence of 4 years on count 4 with a non-parole period of 3 years when 12 further offences of armed robbery are taken into account fit within established sentencing patterns. It too is manifestly inadequate. When other offences are taken into account the sentence for the offence in question has to be increased over that which would be correct for that offence alone.

46. In making the sentences partially concurrent to the extent which she did in response to the principle of totality, the judge failed to give effect to the extensive overall criminality. In the process the effective sentences on each count and the sentences viewed overall were manifestly inadequate.

47. The judge was faced with a difficult sentencing exercise. The offender seemed to behave himself moderately until 1996 when he started to go off the rails. The period from March 2001 to August 2001 saw 17 armed robberies of the gravity earlier summarised. The amounts taken were quite small even in total but the fear created in the victims would have been considerable. They were entitled to go about their work in the knowledge that they would be safe and not subject to threats of serious violence from a syringe.

48. The primary cause of the robberies was the offender's drug addiction but there was the significant overlay of the serious psychiatric condition. There were the valuable admissions of the offender, without which the Crown would probably not have been able to prove a number of the offences, his early pleas of guilty and his remorse. Dr Nielssen has recorded that the offender said that he has had a particularly difficult time in gaol because of his symptoms and his detention in the protection area of the gaol. I would accept that with his symptoms the offender, although a big and powerfully built man, will have a particularly difficult time in gaol. He is likely to be the butt of many remarks, some of which may be provocative. Because of his psychiatric condition general deterrence does not have as much weight as it ordinarily would have.

49. In the exercise of the residual discretion vested in this Court and on the issue of resentencing the offender's affidavit of 17 September 2002 should be taken into account. He has mentioned some of the difficulties he has experienced. While at Parklea the doctors were concerned with whether he was going to harm himself. He found it difficult to open his heart to complete strangers. He was initially prescribed Rispiridone, an anti-psychotic drug.

50. The offender said that despite earlier requests he was not transferred to the Medical Transit Centre until about July 2002. His medication has been changed. He said that he now takes a different anti-psychotic drug called Zyprexa which he takes at night. The side effects are such that during rhe day he feels lost and not normal. He believes people are laughing at him. He also takes anti-depressants in the morning. He said that he feels better on the medication and knows that he must take it.

51. He said that about a year ago his name was put on a list to go to the Prison Hospital but he had heard nothing more about it. He was not receiving any counselling. Because his symptoms have been treated with medication he was not being regularly monitored. He said that he just wanted to get better and be safe when released.

52. He said that he was doing everything he could to keep busy. He trains six hours per day. He put his name down to do a special English course and a beginner's computer course. He said that the Education Unit had been dismantled and was being relocated so no courses were available. He had completed an Anger Management course and a Drug and Alcohol course. He said that since he came to the Medical Transit Centre he had had two meetings with a psychiatrist. He has also seen another doctor about his medication.

53. He receives family visits from time to time. His family had reported that his ex-wife and two sons aged 12 and 13 want to speak to him. He was finding it very difficult even to write to them.

54. The affidavit paints a bleak picture. I appreciate that we have no material from the Corrections Health Service. It is to be hoped that the offender can be given the help he needs while in custody so that he can return at least in part to the condition which he was in before he became addicted to drugs.

55. In the exercise of the Court's discretion whether to intervene and in intervening I have also given weight to the principle of double jeopardy and the restraint with which this Court traditionally acts both as to intervening and when intervening in Crown appeals against sentence

56. This is a very troubling case. Despite the powerful subjective factors in which I include discount for the pleas of guilty and the admissions the sentences do not adequately reflect the criminality involved in the 17 armed robberies. This is not a case where the Court should exercise its discretion not to intervene. There has been some delay in the sentencing process. However, it was always the case that the offences were so serious that the offender was going to have to spend a substantial period in gaol. On each of counts 2, 3, 4 and 5 the lowest permissible sentence of imprisonment was 2 years with a non-parole period of 18 months. On count 1, taking into account the 12 offences on Form 1, the lowest permissible sentence of imprisonment was 5 years 6 months with a non-parole period of 3 years. Having regard to the episodic nature of the offences and the principle of totality the sentences on counts 3, 4 and 5 (July and August 2001) should be concurrent. There should also be a measure of concurrency between the sentences imposed on counts 1 and 2 (March 2001). I appreciate that many of the offences taken into account occurred in July and August 2001.

57. There are special circumstances for the reasons given by the judge. (I add the cumulation of the sentences). The allowance for special circumstances has been made in the sentence on count 1. Weight must be attached to Dr Nielssen's opinion that the offender requires long term psychiatric treatment with anti-psychotic medication and some kind of residential drug and alcohol rehabilitation prior to release to the community and close monitoring and support in the period after his release. It would be a tragedy if he did not have the opportunity to receive the treatment and support which he needs. His earlier years of good behaviour suggest that he might be able to overcome past criminal conduct. Ultimately, so much depends on the offender.

58. It will be apparent from the orders which I propose that overall the offender has been sentenced to imprisonment totalling 7½ years with non-parole periods totalling 5 years. If it had not been for the offender's pleas of guilty and his valuable admissions the sentences overall would have resulted in imprisonment for 10 years.

59. I propose the following orders:

(1) Crown appeal against sentences allowed; sentences quashed.

(2) In lieu of the sentences imposed the offender is sentenced to the following terms of imprisonment:


(a) On each of counts 3, 4 and 5 to 2 years commencing on 11 August 2001 with a non-parole period of 18 months starting that day and ending on 10 February 2003

(b) On count 2 to 2 years starting on 11 February 2003 with a non-parole period of 18 months starting that day and ending on 10 August 2004

(c) On count 1, taking into account 12 offences on Form 1, to 5 years 6 months starting on 11 August 2003 and ending on 10 February 2009 with a non-parole period of 3 years starting on 11 August 2003 and ending on 10 August 2006.

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