The State of Western Australia v Reynolds - [2006] WASC 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- REYNOLDS [2006] WASC 31

CORAM: EM HEENAN J

HEARD: 13 FEBRUARY 2006

DELIVERED : 27 FEBRUARY 2006

FILE NO/S: INS 17 of 2006

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
NICHOLAS ROBERT REYNOLDS
Accused

Catchwords:

Criminal law - Sentencing - Armed robbery - Attempted armed robbery - Stealing - Six offences - Prior good character - No relevant previous convictions - Chronic mental illness - Alcoholism - Drug addiction - Factors for consideration - Totality principle

Legislation:

Criminal Code (WA)

Sentencing Act 1995 (WA)

Result:

Sentences of immediate imprisonment imposed
Certain sentences concurrent, others cumulative
Effective aggregate head sentence of 4 years and 5 months
Parole eligibility
Order for compensation

Category: B

Representation:

Counsel:

Prosecutor: Mr T G Wilson
Accused: Mr V M Laurino

Solicitors:

Prosecutor: State Director of Public Prosecutions
Accused: Shaddicks Lawyers

Case(s) referred to in judgment(s):

Channon (1978) 20 ALR 1
Chivers v The State of Western Australia [2005] WASCA 97
Cooley v The State of Western Australia [2005] WASCA 204
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
MacLean v The Queen [1999] WASCA 209
Magee v The Queen [1980] WAR 117
Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213
Miles v The Queen (1997) 17 WAR 518
R v Shaharuddin [1999] WASCA 229
R v Tsiaras [1996] 1 VR 398
R v Valentine [2003] WASCA 7
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
The State of Western Australia v Wells [2005] WASCA 23
Thompson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973
Wong v The Queen; [2001] HCA 64; (2001) 207 CLR 584

Case(s) also cited:

Nil

EM HEENAN J: By indictment dated 20 January 2006, Nicholas Robert Reynolds has been charged with six offences comprising two counts of attempted armed robbery (one of which was committed in circumstances of aggravation), two counts of armed robbery (one of which was committed in circumstances of aggravation) and two counts of burglary on six separate occasions, commencing on 18 April 2005 and ending on 24 October 2005. The offences charged are:
1.on 18 April 2005 at Busselton, he attempted to steal from Matthew John White, with threats of violence, money the property of John Malcolm Quin and Jenefer Ann Quin trading as Quin's Bakehouse, and that at the time he was armed with offensive weapons, namely a knife and an adjustable wrench;
2.on 6 September 2005 at Busselton, he stole from Jemma Shannon Snell, with threats of violence, money the property of Rohan Miller trading as The Corner Store, Busselton, and that at the time he was armed with an offensive weapon, namely a fishing gaff;
3.on 7 September 2005 at Busselton, he attempted to steal from Christopher David Dickinson, with threats of violence, money the property of Rohan Miller trading as The Corner Store, Busselton, and that at the time he was armed with offensive weapons, namely a knife and a screwdriver, and at the time threatened to kill Christopher David Dickinson;
4.on 24 October 2005 at Busselton, he stole from Redport Enterprises Pty Ltd trading as Cape Cellars Busselton, with threats of violence, money the property of Redport Enterprises Pty Ltd and at the time he was armed with an offensive weapon, namely a four pronged gidgee spear and at the time threatened to kill Jonathon Ralph Atkinson;
5.on or about 3 September 2005 at West Busselton, while in the place of Ryan Richard Nielsen without his consent, he committed the offence of stealing and that the place was ordinarily used for human habitation; and
6.on or about 23 October 2005 at Busselton, while in the place of Charles Francis Elliott without his consent, he committed the offence of stealing and that the place was ordinarily used for human habitation.
The accused has pleaded guilty to each of these charges and has admitted the circumstances of aggravation or circumstances leading to an increased maximum penalty alleged in respect of each of them.
Reynolds was arrested on 25 October 2005 and, in the course of police questioning, admitted to his involvement in each of the offences and made a comprehensive statement in the course of a video record of interview admitting his guilt. He has been in custody since then - on remand for these charges pending his arraignment in this Court at Busselton on 13 February 2006 when he entered formal pleas of guilty at his first presentation. He had entered pleas of guilty to these charges before the Magistrates Court in Busselton on 2 December 2005 and was thereupon committed to the February circuit sittings of this Court at Busselton on the fast track system for pleas of guilty. Judgments of conviction for each of those charges were entered in this Court on 13 February 2006, following his pleas of guilty that day.
Reynolds was born on 14 August 1980 and, therefore, attained the age of 25 years during the course of these offences which, while spread over a period of six months, mostly occurred during September and October 2005. Apart from four convictions for driving offences between October 1997 and May 2004 and a conviction for re‑entering licensed premises in January 2005, for which he received a spent conviction, he has no relevant prior criminal record. As I shall set out in more detail later in these reasons, he is a person who comes from a good family, has enjoyed considerable advantages in his short lifetime and is highly regarded by his friends, acquaintances and relatives, notwithstanding the serious nature and number of the crimes which he has admitted.
He has a history of mental illness dating from the age of 14 years, and possibly earlier, and, over more recent years has had trouble with severe alcoholism, drug abuse and related problems which appear to have interacted with and, perhaps, have been contributed to by, his mental illness. His family and friends have gone to great lengths over many years to assist him and to find effective treatment for his problems and, while those problems have been severe and very disruptive of Reynolds' prospects and career, it has been only during this period of six months in 2005 that serious criminal offences have been committed. There does not seem to be any doubt whatever that chronic alcoholism and drug taking, combined with his health difficulties, are largely responsible for this conduct and that, at the time of his arrest, he was demonstrating extreme symptoms of alcohol and drug abuse.
During the past four months when Reynolds has been in custody on remand pending this sentencing, in circumstances where he had no access to alcohol or drugs, he has made a remarkable recovery and is now described, not only by his family but by officers of the Department of Corrections who have conducted investigations for the preparation of a pre‑sentence report, by psychiatrists, other medical practitioners and by members of his family as having recovered the gentle, engaging and co‑operative personality and attitude which were his characteristics before his problems with alcoholism and drugs. He therefore presents as a tragic case of a young man of good family and prior character, showing genuine remorse for this string of very serious offences. It is therefore a task of real difficulty to decide what sentences should be imposed for these convictions which, to say the least, are extremely serious and have involved, in four instances, various serious threats being made to the victims including, in two instances, actual threats to kill. Obviously, the starting point must be to identify the details and severity of the six crimes committed.

The details of the six offences

(a) 18 April 2005 - attempted armed robbery

At about 12.40 am on Monday 18 April 2005, Reynolds entered the premises of Quin's Bakehouse at 235C Bussell Highway, Busselton, with the intention of committing an armed robbery to obtain money. He was wearing a disguise and was armed with a large bladed knife and an adjustable wrench. He entered the rear annex of the shop and confronted two employees. He gestured towards them with the knife and demanded money several times but was told that there was no money kept on the premises and he then left. He disguised his voice by using an Irish accent. In admitting this offence Reynolds has claimed that he was severely intoxicated at the time.

(b) 6 September 2005 - armed robbery

At about 7.45 pm on Tuesday 6 September 2005, Reynolds attended at The Corner Store Deli, situated at 235A Bussell Highway, Busselton, with the intention of committing an armed robbery to obtain money. He entered the store while wearing a disguise and was armed with a fishing gaff. He approached the lone female attendant and demanded money. He told her to go to the till. She removed the money from the till and placed it into a shopping bag and handed it to him. He then forced this attendant to the rear of the store before directing her to unplug the telephone line which she did. A female customer entered the store and was also told to stand at the rear of the store. Reynolds disguised his voice by using an Irish accent and then left.

(c) 7 September 2005 - attempted aggravated armed robbery

At about 8.30 pm on Wednesday 7 September 2005, Reynolds attended at The Corner Store Deli, situated at 235A Bussell Highway, Busselton (the same premises which he robbed the previous day - count 2). He was wearing a disguise and was armed with a large bladed knife and a screwdriver. He approached the lone male attendant and demanded money. He said "You've got five seconds to put all the money from the till in a bag. Don't F... with me or I will cut your eyes out". The offender disguised his voice by using an Irish accent. The attendant then went to an area near the till but seized a hidden baseball bat which he brandished and used to strike the counter. Again, with respect to this unsuccessful attempted robbery, Reynolds, in admitting the offence, says that he was severely intoxicated at the time. On seeing the attendant with a baseball bat Reynolds ran from the premises without taking anything.

(d) 24 October 2005 - aggravated armed robbery

At about 7.30 pm on Monday 24 October 2005, Reynolds attended at the Cape Cellars Liquor Store at 231 Bussell Highway, Busselton, with the intention of committing an armed robbery to obtain money. He was wearing a disguise and was armed with a four pronged gidgee spear when he entered the store. He approached the two male attendants and demanded money, whilst brandishing the gidgee at them. He repeatedly said "Put the money in the bag". One of the attendants went to the cash register. Reynolds continued brandishing the gidgee and demanding money. The attendant said to him: "Yeah alright I'm getting you the money take it easy, I have three kids at home, I'm getting you the money". The attendant commenced to put the money in a paper bag. Reynolds then said: "If you don't hurry up you're kids won't have a father to come home, I'll give you 15 seconds". He then commenced a countdown from 15. The attendant handed over the bag containing the money. During this episode Reynolds disguised his voice by using an Irish accent. Reynolds grabbed the bag from the counter and ran from the premises. The attendant and the store owner both chased him to the rear of the premises and saw him ride off on a mountain bike. The attendant threw a copper pipe at the accused, striking the bike as he rode away.
On Tuesday 25 October 2005, and in the absence of Reynolds, Detectives executed a search warrant at Reynolds' address at 12 Bower Road, Busselton. There, police seized a four pronged gidgee spear, a mountain bike, a gaff, along with a number of knives, a screwdriver and items of clothing and disguise. As a result of these and other enquiries, Reynolds was arrested in Bunbury on the evening of 25 October 2005. He participated in a video record of interview. He was questioned in relation to two offences before he requested to end the interview. He denied any involvement in the offences put to him. Later, in the charge room, he volunteered that he was guilty of all the offences. He was again cautioned and advised that he was being video recorded. He continued to speak and admitted that he committed four armed robbery offences and two burglary offences.

(e) 3 September 2005 - burglary and commit offence in dwelling

At some time after 3.30 pm on Saturday 3 September 2005, Reynolds visited the premises of Ryan Richard Nielsen at 88 Dorsett Street, Busselton, with the intention of breaking in to steal. He gained entry to the premises by smashing a rear window and, once inside, stole a Hewlett Packard laptop computer and a bottle of Glen Livet scotch whiskey. As a result of the owner mentioning to police that Reynolds was a possible suspect because he had been at the premises earlier that day and showed an interest in these items, the police interviewed Reynolds about the incident on 5 September 2005 but he denied committing the offence. However, when arrested in Bunbury on 25 October 2005 in respect of the earlier four charges, he admitted committing this offence and stealing the laptop and whiskey.

(f) 23 October 2005 - burglary and commit offence in dwelling

At some time after 9.30 am on Sunday 23 October 2005, Reynolds attended at the premises of Charles Francis Elliott at 9 Georgette Street, Busselton, with the intention of breaking in and stealing. He gained entry by smashing a glass sliding door at the side of the premises and, once inside, searched through the house and stole a Fuji brand digital camera, three Commonwealth Bank cheque books, a Commonwealth Bank Visa card and a brief case containing sundry items belonging to Charles Francis Elliott. In the course of the search on 25 October 2005 a Commonwealth cheque book belonging to Charles Francis Elliott was found, together with the brief case which had been stolen from Elliott's premises on 23 October. After Reynolds was arrested in Bunbury on 25 October 2005 in relation to the first four of these offences, he was found to be in possession of Mr Elliott's Commonwealth Bank Visa card which was located in his wallet. When initially interviewed by Detectives at Busselton on video, he denied any involvement in this offence and claimed that he had found the brief case which had been discovered at his home during the police search. Later, whilst being processed at Busselton and whilst under video surveillance he made admissions that he had committed this offence.
No money or other property was obtained by Reynolds from his unsuccessful attempts to rob the premises referred to in counts 1 and 3 above. However, he stole $550 in cash by the armed robbery committed on 6 September 2005 (count 2); $1185 by the armed robbery committed on 24 October 2005 (count 4) and stole property to the value of $3250 on 3 September 2005 (count 5) and property to the value of $550 from the offence committed on 23 October 2005. The aggregate value of all the property, both money and goods, stolen is therefore $5535. Apart from the Commonwealth Bank cheque book, the Visa card and the brief case stolen on 23 October 2005 (count 6), none of the stolen property has been recovered.

Claim for compensation

Redport Enterprises Pty Ltd, the company which trades as Cape Cellars from which the $1185 was stolen in the robbery of 24 October 2005 (count 4), has sought an order for compensation in the amount of $100 from Reynolds. This application is made on its behalf by the Director of Public Prosecutions pursuant to s 117(2) of the Sentencing Act 1995 (WA). The reason for the modest dimension of this claim is that Redport Enterprises Pty Ltd has been indemnified by its general insurer, QBE Insurance (Australia) Ltd, in respect of this loss to the extent of $1085 but has been left to meet the remaining $100. It is only in respect of the amount of $100 for which there has not been a full insurance indemnity that this claim for compensation has been made. Mr Reynolds admits this liability and consents to an order for compensation being made. This is not the full measure of his obligation at law to pay compensation or damages for the theft and it remains a possibility that the insurer, by subrogation to the owner, may pursue recovery from him of the balance of the money stolen. However, I will make an order as asked that Nicholas Robert Reynolds pay compensation to Redport Enterprises Pty Ltd in the amount of $100 in respect of portion of the money which he stole from its premises on 24 October 2005.
The first four offences were all committed at stores or business outlets close by in Bussell Highway. They are all located near to the offender's parents' home where he was staying at the time. Reynolds and members of his family have shopped at these and nearby premises regularly over many years and his parents and other relatives are now most embarrassed because, for a long time, they have known the owners or operators of these businesses and have been on friendly terms with them.
No victim impact statements or other evidence from the victims of these offences addressing the effects which the crimes have had upon them were tendered by the prosecution. Nevertheless, I have no doubt that the actual robberies and attempted robberies, when individuals were confronted by the offender menacing them with weapons capable of inflicting severe harm, threatening them and, in two instances involving actual threats to kill, were very frightening. For ordinary citizens conducting their business in a lawful manner to be confronted by an offender making actual threats to their person, must be very disturbing and the effects of such torments are likely to be prolonged, especially where there has been a direct threat to life made. I shall, therefore, proceed on the footing that, as well as suffering significant loss of property, the victims of the robberies and attempted robberies have had direct threats to their persons made and that these are likely to have engendered lasting fear, distrust and apprehension.

Approach to sentencing

Section 6 of the Sentencing Act 1995 directs that a sentence imposed on an offender must be commensurate with the seriousness of the offence and that the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors and, in particular, it prescribes that a sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
Aggravating factors are those which, in the court's opinion, increase the culpability of the offender, while mitigating factors are those which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished. A plea of guilty by an offender is a mitigating factor and the earlier in the proceedings that it is made, or an indication is given that it will be made, the greater the mitigation. In the present case there are six separate offences, each of which is serious and four of them (the attempted armed robberies and the actual robberies) involve threats being made to victims whom I regard as vulnerable in all the circumstances, particularly the threats offered to the woman customer who entered the shop during the commission of the robbery which is the subject of count 2.

There are a number of options prescribed by Parliament as to the penalties which may be imposed following conviction. They are set out in s 39 of the Sentencing Act 1995. They range from imposing no sentence; or making a spent conviction order with immediate release of the offender; to imposing a fine; imposing a community based order; imposing an intensive supervision order; or imposing a term of imprisonment, but suspending the term of imprisonment allowing the immediate release of the offender on conditions; and, finally, the imposition of an immediate term of imprisonment. Parliament has directed that a court must not use a more severe sentencing option unless it is satisfied that it is not appropriate to use any one of the less severe options available.
In deciding how to deal with Reynolds' case I must have regard to his personal circumstances, which I will set out in detail later; the gravity of the offence, the effect on the victims, his subsequent conduct, including any indication of remorse and the degree to which he has given assistance to the authorities. I must also have regard to the purposes of imposing punishment, that is, to punish an offender for the breaches of the law which he has committed; to deterrence, in order to deter him and others from committing offences in the future. In this last regard I must notice the prevalence of the offences of armed robbery; attempted armed robbery and burglary, particularly from small business and retail outlets and other places where cash may be found. The prevalence of this form of unlawful conduct has unfortunately become more common and Parliament, on behalf of the community, has reacted by increasing the sentences which can be imposed for these offences. Finally, if I reach a conclusion that a sentence of imprisonment must be imposed I am obliged to consider afresh whether or not a sentence of imprisonment should be suspended under the provisions of s 76 of the Sentencing Act 1995 or whether, having regard to the nature of the offence and the need for the protection of the community, an immediate sentence of imprisonment must be imposed.

Materials considered

In addition to the papers accompanying the order for the committal of Reynolds for sentence, including the video record of interview with the police at Busselton, a significant quantity a additional material has been received and considered. It is important that I record this evidence. It comprises:
•Police antecedent report containing personal details of Nicholas Robert Reynolds;
•Department of Corrective Services Community Justice Services Pre‑sentence Report of 3 February 2006;
•report from Dr John Kemp FRANZ CP, consultant psychiatrist, being a confidential psychiatric report obtained for the purposes of the pre‑sentence report;
•an independent psychological report from Mr Noel G Fogarty dated 6 February 2006 as a further component of the court ordered pre‑sentence report;
•a series of earlier medical reports detailing, historically, earlier treatments of Nicholas Robert Reynolds as follows:
•report of Dr Jacqueline M Scurlock FRACP, physician, 6 July 1995;
•report of Dr Roland Main FRANZ CP to Dr John Caldow treating general medical practitioner at Busselton 2 June 1999
•report of Dr Roland Main to Dr John Caldow 23 July 1999
•report of Dr Roland Main to Dr John Caldow 13 August 1999
•20 August 1999 letter of referral Dr Roland Main to admitting nurse St John of God Hospital Bunbury
•1 September 1999 Dr Roland Main to Dr John Caldow
•22 December 1999 Dr Roland Main to Dr John Caldow
•1 March 2000 letter Dr Roland Main referring Reynolds to Dr Oleh Kay, consultant psychiatrist Perth
•20 April 2000 letter Dr Roland Main to Dr John Caldow
•report of Dr Roland Main FRANZ CP to Dr John Caldow 28 April 2000
•report of Dr Paul Gibson 5 October 2005
•report of Dr Susan Grainger 7 February 2006
•report of Dr Paul Gibson 6 February 2006
•various print‑outs from hospital and retail pharmacies showing prescription medication dispensed to Mr Reynolds over the period December 2004 to January 2006 showing regular prescriptions of anti‑depressive and other prescribed medications;
•various summaries of admissions to hospitals and other similar institutions for acute care, as follows:
•8 February 1995 - admission to St John of God Hospital Bunbury - allergic Rhinitis (one day)
•21 July 1995 - attendance at accident and emergency department at Royal Perth Hospital - collapse
•28 January 1996 - presentation to emergency department Busselton District Hospital - suicidal Ideation
•5 August 1997 to 5 October 1997 - admission to Royal Perth Hospital for observation - illicit drug use
•5 October 1997 - attendance at Royal Perth Hospital accident emergency department - illicit drug use
•24 May 1999 - presentation to Busselton District Hospital - depression with anxiety and panic episodes
•28 July 1999 - admission to St John of God Hospital Bunbury until 3 August 1999 - major depression, cannabis and alcohol abuse
•26 August 1999 to 1 September 1999 - admission to St John of God Hospital Bunbury - uncomplicated alcohol withdrawals and anxiety
•26 August 1999 - attendance at Royal Perth Hospital accident and emergency department - psychiatric problems
•23 March 2000 - attendance at Royal Perth accident emergency department - palpitations
•23 March 2000 to 23 March 2000 - admission to Royal Perth Hospital for observation for IV amphetamine use
•12 April 2000 - presentation to emergency department Busselton District Hospital - chest tightness
•8 January 2003 - presentation to emergency department Busselton District Hospital - muscular chest pain
•20 December 2004 - presentation to emergency department Busselton District Hospital - gastroenteritis/dehydration
•21 July 2005 to 22 July 2005 - admission for observation at Royal Perth Hospital for drug related collapse
•22 July 2005 - admitted to drug and alcohol in‑patient withdrawal unit on referral from Royal Perth Hospital emergency department
•28 July 2005 - visit to emergency department at Royal Perth Hospital - psychiatric problems
•1 August 2005 - attendance for assessment for residential treatment at Cyrenian House Drug Treatment and Rehabilitation Centre
•4 September 2005 - presentation to emergency department Busselton District Hospital - anxiety
•12 September 2005 - presentation to Busselton District Hospital emergency department - alcohol abuse
•13 September 2005 - admission to Cyrenian House Residential Drug Treatment and Rehabilitation Centre for 11 days before self‑discharging on 24 September 2005
•24 September 2005 - ambulance delivery to emergency department Sir Charles Gairdner Hospital
•Bundle of character references from members of the Reynolds family, other relatives, friends, employers, neighbours, community members, former school colleagues and others describing Mr Reynolds' good character and capacities but acknowledging a history of problems with depression and alcohol and drug abuse.

Personal and family background

Nicholas Reynolds was born on 14 August 1980, the second of three sons in his family. He is single. He has good relationships with his parents and brothers and despite the major problems which he has experienced over the past 10 years coming to a climax with the commission of these offences, the family remains supportive of him and very concerned for his welfare. His father is an accountant, well‑known and highly respected in the Busselton district. His mother is a registered nurse and is prominent in local activities. His older brother practises as an accountant in Perth and his younger brother is currently living in Japan where he is teaching English. Nicholas was educated at primary and secondary school in Busselton, leaving school at year 11. On leaving school he began working fulltime at Action Supermarket, then went to work at Walsh's Abattoirs as a trimmer and then worked for a period for a drilling company in the mining industry. He was then employed with a fencing contractor.
Since the age of about 14 or 15, when he was then in high school, Reynolds has had difficulty in dealing with depression. Periodically he has attended for counselling and has been on antidepressant medication but still suffers from severe anxiety during most of the past seven years. He describes dealing with his anxiety as "worse than depression" and has been using both prescribed and illicit drugs to self‑medicate. He claims to have been admitted to the Bunbury psychiatric ward on four separate occasions for alcohol and amphetamine induced psychosis.
His alcohol, cannabis and amphetamine use began at school at year 10, proceeding to IV amphetamine use in year 11. He confesses to compulsive and severe alcohol consumption. His alcohol abuse and addiction has been so severe that the family has banned any alcohol in the home. Before these offences were committed in the period April to October 2005, he says that he was "doctor shopping" and had obtained multiple scrips for Valium from about eight doctors in the Busselton area and he would secretly take large doses, in addition to the therapeutic dose which was being administered by his mother. He would take up to 40 tablets at a time while drinking alcohol. During these earlier periods he has seen a number of medical practitioners, including specialists, and has received counselling and other treatment for chronic alcohol abuse and drug use, but there has been a constant pattern of rapid relapse.
At the time these offences were committed he was awaiting readmission to another residential programme at Cyrenian House and says that he is willing to attend a further period of residential rehabilitation to address his problems of anxiety, alcohol abuse and illicit substance consumption. He is appalled at the nature and frequency of his recent criminal conduct and wishes to undergo whatever treatment or rehabilitation is available which may help him to overcome his problems. The Community Justice Assessment officer considered that he is likely to comply with, and benefit from, a period of community supervision but that if he is sentenced to a period of immediate imprisonment he may benefit from the opportunity of community supervision by a parole period. Inevitably, he will need to address the problems of anxiety and depression whatever happens.
A detailed psychological assessment was undertaken by Mr N G Fogarty on 6 February 2006 at the request of the Acting Senior Community Corrections officer of the Busselton Community Justice Services office. Mr Fogarty interviewed Reynolds on two separate occasions at the Bunbury Regional Prison and had access to relevant background records and materials. In addition to the details already mentioned, Mr Fogarty reports that after Reynolds left school he returned for a short time, in year 12, and some years later completed a mature age matriculation and enrolled at Edith Cowan University in a social science course. However, he withdrew after a short time, apparently because of health, alcohol and related problems but hopes that in the future he may be readmitted to tertiary level education or to other options of pre‑apprenticeship studies and perhaps the completion of an apprenticeship within the prison industries' division. Mr Fogarty described Reynolds as co‑operative, somewhat withdrawn and reticent but increasing in confidence as the sessions progressed. Reynolds has shown remorse and bemusement at his present circumstances. His recollection of his later school years and the following years was clouded because it was a period of heavy alcohol use and occasional serious drug use. He was taken by his mother as an exchange student on holiday to Argentina, but he seems to have missed his friends and familiar surrounds during that period away. In the course of submissions, his counsel referred to difficulties which he experienced in Argentina, apparently alluding to further problems with alcohol or drugs.
Reynolds has been on antidepressant medication since the age of 15 years, except for three or four breaks of up to five months at a time. The occasions when he ceased medication were self‑initiated and resulted, in Mr Fogarty's view, in the predictable return of severe symptoms of depression.
At the age of 20, Reynolds went on a working holiday to Europe which lasted for two or three years. He formed a relationship with an English woman and went to Canada but that ended and he returned to Australia. He reported to the Community Justice Service officer that during this relationship the pair were both using cocaine and other illicit substances.
The pressure of living with depression has led Reynolds to self‑harm and self‑mutilation several times and as recently as late 2005. Those episodes have led to admissions to hospital for treatment for the wounds and for psychiatric assessment and he has been prescribed antipsychotic medication. He continues on that treatment at the direction of the visiting consultant psychiatrist at the Bunbury Regional Prison. During his admission to a rehabilitation clinic at East Perth in July 2005 he was prescribed the antipsychotic drug Campral. There is no current or recurrent suicide ideation but there have been periods in the past during bouts of deep depression when such ideas have been present.
The psychologist attempted to identify some motive for Reynolds' pattern of offences during 2005 because they appeared to be so out of character. The only explanation he could offer was that Reynolds was consumed by a need for alcohol and that this was the only means by which he could obtain money for liquor. Attempts to identify and explain the motive moved him towards a state of anxiety and confusion about how he could have been reduced to such behaviour. The psychologist observed that his actions were poorly planned and even more poorly executed and appeared to be fuelled more by desperation than by a desire for substantial material gain. He remains confused and in a state of disbelief at the course his life has taken.
The psychologist has also encouraged family visiting and support to address his destructive level of low self‑esteem and that efforts should be made to support his placement, now and in the future, where there are resources available to help him manage to learn substance abuse and particularly to combat his alcohol addiction.
Reynolds was also seen by Dr John Kemp FRANZ CP, consultant psychiatrist, at the request of the Community Justice officers who were preparing the pre‑sentence report. Dr Kemp interviewed Reynolds at the Bunbury Regional Prison and had in fact consulted with Reynolds at the prison on 14 November and 12 December 2005 beforehand. Dr Kemp had access to the police reports of these charges, the medical file of the Bunbury Prison, including reports from the previous treating psychiatrist, Dr Roland Main, dating from 2 June 1999 and to other medical reports from general medical practitioners and from Bunbury Hospital and Fremantle Hospital.
In addition to details already recorded, Dr Kemp mentions that Reynolds reported that he began to use cannabis and alcohol from about the age of 15 and had counselling in respect of depression and anxiety symptoms. When he was about 18 he had an accident whilst waterskiing and was briefly hospitalised at Royal Perth Hospital. He seems to have become very anxious and apprehensive following this. Dr Kemp refers to Reynolds' previous treatment by Dr Main, psychiatrist, for major depression, panic disorder and substance abuse of marijuana, amphetamines and alcohol from 1999 through to 2000. There was an admission to St John of God Hospital on 1 September 1999 when there was some deterioration in his psychiatric disorder associated with the chaotic alcohol and drug usage. He was then treated with an antidepressant medication and has continued on that regime ever since.
Other medical records show attendances on general medical practitioners for the management of alcohol and substance withdrawal with prescriptions of Diazepan (Valium) to cover short‑term withdrawal symptoms. He has been referred to a number of drug rehabilitation agencies, including Next Step and Cyrenian House. On his arrest for these offences he was considered to be at a high risk of alcohol and Benzodiazepine withdrawal syndrome, was referred for assessment at Bunbury Regional Hospital and transferred to the hospital unit at Casuarina Prison. He has had previous treatments for laceration and trauma following injuries when intoxicated notably at Fremantle Hospital on 5 October 2005.
Dr Kemp reports a heavy use of illicit substances and alcohol going back to his mid‑teen years. Reynolds has been a long‑time user of cannabis, alcohol and occasionally of amphetamines. Over the past five years he reported drinking in excess of 100 cans of beer per week, one to two bottles of spirits per day and, from September 2005, had been abusing prescription Benzodiazepines. Following the consultations with Dr Kemp in prison on 14 November and 12 December 2005, and the cessation of alcohol and Benzodiazepine use, there has not been any evidence of active major psychiatric disorder. He has continued on his usual antidepressant medication and this has been sufficient to control all symptoms of depression and anxiety. His latest mental state examination revealed him to be well‑groomed, articulate and intelligent. His mood was euthymic and his speech was normal in rate and form. There was no evidence of any delusional thinking or perceptual disturbance. His cognitive functioning was intact to standard clinical testing.
The diagnosis made by Dr Kemp was that Reynolds is suffering from Major Depression which is in remission. He also has major long‑term problems with substance abuse of alcohol, cannabis, amphetamines and more recently Benzodiazepines. Dr Kemp is of the opinion that Mr Reynolds' problems with Major Depression are presently well controlled and could be well managed within the prison setting or a community setting. His difficulties with substance abuse are more serious and Dr Kemp recommends that a substantial period of alcohol and drug counselling with participation in a substance abuse rehabilitation programme be undertaken and that any community phase of his sentence be subject to the requirement that he abstain from using alcohol and illicit substances and that he be monitored by random urine drug testing.
All this is confirmed by the more detailed history which has been recounted by Mr Reynolds' counsel. Some additional detail which enlarges on these explanations has also been provided in the evidence and by submissions tendered and made on behalf of Mr Reynolds. The report of the consultant paediatric physician, Dr Jacqueline M Scurlock FRACP, of 6 July 1995 to the family general practitioner at Busselton mentioned young Nicholas' varying clinical mood, occasional depression and at other times very, very excitable and aggressive nature. There was also a history of sleeping difficulties. Dr Scurlock gave advice about methods of getting rid of aggression but did not think that any treatment was then indicated (Nicholas was then aged nearly 15 years). She did not feel that medication was indicated but added (in a postscript to Dr Peterkin) that the psychiatric unit at Princess Margaret Hospital was then so under‑staffed and under‑resourced that it was refusing referrals from outpatients.
The reports from Dr Roland Main FRANZ CP of Bunbury cover the period from 2 July 1999 until 28 April 2000, that is from when Nicholas was 17 nearly 18 until shortly before he turned 20 years. In June 1999 Dr Main made a diagnosis of major depression with somatic symptoms and panic disorder. He noted a past psychiatric history with contact with a counsellor in Bunbury at age 15 and a family history of depression and anxiety. He reported binge alcohol use and intermittent cannabis use, both of which caused increases in panic. Nicholas was described as presenting with depression of moderate severity and with a more prominent panic disorder with a number of somatic features thought to be manifestations of the depression. Dr Main thought there may be a genetic predisposition to depression but that there had been a fairly stable developmental history. Arrangements were made for future counselling and antidepressant medication was prescribed. By 23 July 1999 Dr Main reported features consistent with over‑valued ideas/delusions which had then progressed to more overt psychosis. Dr Main postulated that the precipitants of this deterioration had been long working hours, increased use of marijuana and two episodes of intravenous amphetamine use. Dr Main expressed concern and arranged for an admission to St John of God Hospital at Bunbury so that he could attend the psychiatric residential unit's acute therapy programme. Further medication was prescribed.

By August 1999 Nicholas Reynolds' mental state had improved following the course of the admission at St John of God Hospital in July 1999, but on leaving hospital he reverted to the misuse of drugs and alcohol and, by then, that had overtaken his life. He was then readmitted to St John of God Hospital at Bunbury in order to detoxify him from alcohol and other substances. That readmission occurred and was successful and he was referred to the Alcohol and Drug Authority in Perth with the suggestion that he undergo residential rehabilitation. A further course of pharmacological treatment was instituted but all Benzodiazepines were ceased. Dr Main reported again, in late December 1999, after Reynolds had been working as a rigger on the mines for some months. He reported increasing problems with his thought and with a depressed and anxious mood. Dr Main thought his presentation was worrisome and his opinion was that Reynolds had a strong prodromal psychotic feel. Further close supervision out of hospital was proposed.
By March 2000 Dr Main was concerned about Reynolds' progress and referred him to Dr Oleh Kay, a psychiatrist in Perth, because of concern about psychotic symptoms and whether in fact Reynolds was presenting with features of a prodrome functional psychosis. There is no evidence that Nicholas Reynolds ever made contact with Dr Kay in Perth. In April 2000 Dr Main reported continuation of problems with substance abuse, intravenous amphetamines, alcohol binges and marijuana and noted that Reynolds appeared to be in denial over this drug and alcohol problem. Dr Main's references to a prodromal psychosis evidently must mean that Nicholas displayed early signs or symptoms indicating the development of a psychosis which could not, at that point, be fully identified or confirmed.
Nearly six years have now passed since Dr Main expressed that apprehension and while there have been reports of delusional thought and other psychotic symptoms from time to time, the most recent report from Dr Kemp identifies only depression as a current psychiatric disorder. Dr Kemp confirms that this appears to be under control by the antidepressive medication currently being prescribed and by the forced abstinence from alcohol, amphetamines and other illicit substances whilst Reynolds is in prison.
Dr Susan Grainger, a general practitioner in Busselton, reports having seen Nicholas Reynolds on five occasions between September 2002 and February 2006. She summarises the previous presentations relating to the diagnosis and treatment of psychiatric problems and then reported that, between April and October 2000, Reynolds presented on five occasions describing anxiety and depression. There were notes of alcohol binges, marijuana and amphetamine use and requests for Benzodiazepines to assist with withdrawal symptoms.
In September 2002 Nicholas Reynolds reported, after having been living in Europe for several years, where he described occasional cocaine use. At that presentation he was suffering from paranoid delusions and generalised anxiety. He returned to Europe, Denmark, for about a year and Dr Grainger saw him next in December 2004. By then he had been on antidepressants for nine months and while his depressive symptoms were satisfactory, he had high levels of anxiety. He reported binge drinking and asked for Benzodiazepines, but she refused to prescribe them. He then moved to Perth and there are admissions to Royal Perth Hospital for a detoxification programme noted in July 2005. In October 2005 he presented to another general practitioner and described having panic attacks and requested Benzodiazepines.
A similar picture emerges from reports by Dr Paul Gibson, a general medical practitioner of Fremantle, who treated Reynolds in October 2005 for alcohol problems and anxiety disorder. He was prescribed Diazepam (the Benzodiazepine - Valium). He had been assaulted the night before and attended Fremantle Hospital emergency department and Dr Gibson referred him to the Alma Street clinic for assessment for his alcohol problem.
As already noted, Nicholas Reynolds discharged himself (against advice) from Cyrenian House residential programme on 24 September 2005. That day, according to his counsel, he went to Scarborough to go to a local hotel but was assaulted in the street by a group of youths. It was on that occasion that he was taken by ambulance to Sir Charles Gairdner Hospital. A report to the police was made and it seems that following the assault he collapsed while at the White Sands Tavern leading to the ambulance attendance and the SCGH admission.
Counsel for Mr Reynolds submitted that his client had been assaulted a second time in Perth in October 2005 and that there had been an attempt by him at suicide in 2005. Apparently his younger brother was very concerned about that. Mr Reynolds' counsel also described several trips which Nicholas Reynolds had made to Thailand in recent years at times when he appeared to be beset with problems. He had lived in Thailand in unsupervised circumstances and apparently in the most basic of circumstances. During these periods he appeared to have access to, and made use of, various drugs. The last visit to Thailand was quite sudden and impulsive, following a windfall win of about $3000 which Nicholas unexpectedly had at the Burswood Casino. This was at a time when he was heavily indebted and was very anxious and disturbed because of actions on his part which had resulted in the theft and destruction (by unknown third parties) of his employer's motor vehicle. Despite this, the money was used for this fruitless trip to Thailand.

Significance of past history

The evidence which I have recounted reveals Nicholas Reynolds to be a person of good family background with substantial family support and resources, willing and available to help him through his health and addiction difficulties. His minor record of traffic offences and other small matters is not relevant, in my view, for consideration of his present position. For all practical purposes, he can be treated as a person who has had no material previous criminal history but who, in a six month period of 2005, committed a series of very serious offences including offences involving actual threats to members of the public. I am prepared to regard this conduct as quite out of character and to have been committed during bouts of extremely disordered thinking and behaviour due to chronic alcoholism, multi‑substance abuse and underlying chronic mental depression. The positive features of his family background, and the examples provided by his brothers in their occupations and concern for him, satisfy me that Nicholas Reynolds has had great encouragement and support and that the entire family ethic, and indeed his own ethic, is against illegal or irresponsible behaviour.
There is no doubt that, from about the age of 14 or 15, he has been troubled with depression which has not always been adequately controlled due, no doubt, to his own over optimistic expectations leading him to discontinue or reduce the antidepressant medication. This problem with the depression alone has led him to leave school early, withdraw from a university course for which he was considered to have the necessary aptitude, and to follow a series of occupations which, while all worthwhile and creditable, have not been continued for very long without change. His employment pattern shows an unfortunate trend of initial promise and satisfactory performance but followed by a deterioration in work performance due to outbreaks of alcoholism and associated substance abuse. This is certainly evident in the history related by his counsel of his employment as a rigger with a mining company in the northwest of this State. Other examples of employment, arranged by his family in an effort to deal with his problems and to assist in his rehabilitation, have met with similar results.
I consider that there is no doubt that there is a destructive interaction between Nicholas Reynolds' chronic depression, anxiety state and his long‑standing alcohol abuse and resort to various drugs, including amphetamines, cannabis, narcotics and Benzodiazepines. There may be scope for some uncertainty as to whether the more severe forms of his mental illness have been caused or precipitated by drug taking and/or alcoholism or whether the underlying mental disease is a precipitating factor for that alcoholism and poly drug abuse. However, because these problems arose at a relatively young age, shortly before Nicholas turned 15, and because there is a family history of depression, there are real grounds to support the opinion of Dr Main that he has a genetic predisposition towards depression and, once this had developed, that he was more than usually prone to develop alcoholism and poly substance drug abuse.
Equally, it is clear beyond dispute that there have been a series of occasions upon which Reynolds has shown frank psychotic symptoms, including delusions and disorientations and has been admitted to psychiatric units for treatment and has received antipsychotic medication. These episodes appear to have coincided with the more chaotic extremes of his alcoholism and drug abuse, but they are frank psychotic episodes nevertheless. Fortunately he has recovered after periods of treatment or rehabilitation from these psychotic episodes and, so far at least, Dr Main's fears of a prodromal psychotic condition developing have not been realised, but it would be idle to pretend that that far‑reaching possibility does not still exist.
The most recent considered diagnosis is by Dr Kemp, to the effect that Reynolds is suffering from major depression which is in remission and that he has major long‑term problems with substance abuse and alcoholism. That he now presents in relatively good health and with his depression under control has a great deal, in my view, to do with the fact that he is undergoing supervised antidepressive medication and, in his present environment, is subject to enforced abstinence from alcohol and drug abuse.
The many previous attempts which Reynolds has made to overcome his alcoholism and drug abuse, by resort to medical treatment, short‑term admissions to hospitals and other clinics, and the assiduous efforts of concerned family members have largely been unsuccessful due to rapid relapse to alcoholism and drug‑taking, followed by impulsive and irresponsible behaviour. These are, in my view, features of the underlying problem. I doubt very much whether at present, Nicholas Reynolds has the capacity to refrain from alcohol abuse and associated drug‑taking in any community setting. At least all attempts to have him do so in recent years have failed, yet the coercive nature of the treatment and the regime while now in prison has, paradoxically, been positive.
It seems to me that, in the long‑term, there appear to be good prospects of Reynolds returning to a law‑abiding life and living responsibly in the community, but only if he recognises, controls and has external assistance in combating his problem with alcohol and drug addiction. To a large degree this may be assisted if he continues under long‑term regular medication and evaluation for depression and there is an opportunity for intervention by third parties, whether family or others, at the first sign of any relapse. However, I expect that that will be a lifelong problem and a realisation of its intractability, and its extreme destructive effect will be a first step in any programme of recovery.
Any such recovery programme, in my view, can only be long‑term and short‑term or short‑lived therapies are unlikely to be any more successful in his case now than they have been in the past. In other words, I consider that there are some substantial hopes that Reynolds can avoid future serious criminal conduct and eventually live in the community as a responsible citizen, but only with the greatest care, self‑discipline, regular medical treatment, supervision and the help of family, friends and others. No doubt members of his family appreciate this and will do all they can to try and achieve it.
How then to select an appropriate sentence or sentences for the offences which have been committed? This is a particularly difficult task because the interests of Nicholas Reynolds form only one part of the issues which this Court must address. First and foremost there is the need to protect the community, dispense impartial justice and to demonstrate that conduct of this kind, no matter why it has been committed, is not tolerable in the community. This is important in order to deter other would‑be offenders and to provide a real deterrence to Reynolds himself as a realisation, where others have failed, that conduct of this kind results in severe personal adverse consequences.
The penalties prescribed by Parliament for the offences which Reynolds has committed involve sentences up to life imprisonment for armed robbery where the offender is armed with an offensive weapon (Criminal Code, s 392(c)); sentences of imprisonment for up to 14 years for attempted armed robbery in such circumstances (Criminal Code, s 552(2)(a)); and imprisonment for up to 18 years for each of the offences of burglary from a place ordinarily used for human habitation (Criminal Code, s 401(1)(b)). Against these severe potential penalties must be considered the personal circumstances which have already been described, the relative youth of Reynolds, his prior good character, his early admissions and plea of guilty, the remorse which he has shown and his prospects of rehabilitation. In addition, respect must be given to the totality principle to ensure that the combined effect of the sentences for all the offences does not produce a totally unrealistic or "crushing" sentence.
In Miles v The Queen (1997) 17 WAR 518 the Court of Criminal Appeal observed that the offence of robbery had become significantly more prevalent and that sentences had therefore been "firmed up" so that, by 1997, the range of sentences commonly imposed for a single offence of armed robbery, depending upon the circumstances, would be from six to nine years - per Malcolm CJ at 521. In the light of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) that range has been reduced by one‑third and is now four to six years. That is still commonly the range of sentences imposed for a single offence of aggravated armed robbery at present - The State of Western Australia v Wells [2005] WASCA 23; Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998 and R v Valentine [2003] WASCA 7. It has also been accepted in Miles v The Queen (supra) and in Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 and in many other cases that a discount of between 25 to 35 per cent for a fast track plea of guilty is ordinarily appropriate.
Despite these precedents, the possibility of a non‑custodial sentence even in respect of a conviction for armed robbery remains open. The statistics from the UWA Crime Research Centre "Crime and Justice Statistics for Western Australia - 2002" were examined by the Court of Criminal Appeal in The State of Western Australia v Wells (supra) and, at [10], Wheeler JA referred to the observations of Malcolm CJ in R v Shaharuddin [1999] WASCA 229 at [13] which indicated that a non‑custodial sentence was imposed in about 7 to 10 per cent of armed robbery cases. Her Honour went on to observe that one would expect a non‑custodial disposition in the case of aggravated armed robbery to be relatively rare.
Turning to the principle of totality it is necessary to recall that one must select a sentence, or a series of sentences, which are proportional to the overall criminality of the offender as reflected by all the offences - Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 and that the totality principle requires that the overall sentence to be served in real terms should not be crushing - MacLean v The Queen [1999] WASCA 209. This is coupled with the realisation that a term of imprisonment for a relatively young offender should not be longer than necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest - Magee v The Queen [1980] WAR 117 at 119 per Wickham J and see also Thompson v The Queen, unreported; CCA SCt of WA; Library No 1133; 19 March 1973.
In "Sentencing in Tasmania", 2nd ed by Kate Warner (2002) at 335, there is reference to sentences in that State imposed for crime sprees and multiple crime incidents involving multiple counts of armed robbery and other offences. Sentences in that range extend beyond 8 years to 13 years.
Some assistance may be gained from general principles of sentencing. In D A Thomas: "Principles of Sentencing", 2nd ed (1979), there are distillations of principle which, in my respectful view, are still applicable. At 18 there is the observation that:
"In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task for the Court is to determine what treatment gives the best chance of realising that objective."
These observations about young offenders are generally regarded as referring to persons in their late teens or early twenties, whereas Reynolds is now aged 25 years, but, having regard to his good family antecedents and his absence of any material prior record, I consider that he should be included in this category, especially in the light of his prospects for rehabilitation which I have already described.
Turning then to offenders with a history of mental or psychiatric illness, at 24, in Thomas: "Principles of Sentencing", there is the passage:
"The general policy of the Court towards the offender who is in need of psychiatric treatment, individualisation is the dominant theme and the considerations which underlie the tariff are virtually excluded. Treatability has replaced culpability as the effective criterion; in the majority of cases concerning offenders needing psychiatric treatment, the important questions are the practicability of treatment in various settings and the extent to which the risk of grave offences in the future justifies prolonged confinement. Abandoning the tariff in this context may well mean that the offender is subjected to a period of constraint for longer than would be considered justified by the immediate offence."
Similarly, with regard to chronic alcoholism, the court will be disposed to vary its conventional approach of refusing to treat drunkenness as a mitigating factor. At 210 in Thomas: "Principles of Sentencing" (supra) there is the passage:
"The victim of alcoholism will normally be considered a candidate for individualised treatment, if there are any reasonable prospects of success."
This approach to sentencing favouring individualised treatment in preference to the tariff when dealing with mentally disordered offenders, is again emphasised by Thomas at 291.
These approaches have been favoured and applied in Australia. They are discussed in detail by Fox and Freiberg in "Sentencing: State and Federal Law in Victoria", 2nd ed (1999) at 291 ‑ 303. Those authors observed, at 292, that the impact of a mental disorder upon the sentencing decision may be paradoxical, either aggravating or mitigating and referred to the observations of Brennan J in Channon (1978) 20 ALR 1, 4 ‑ 5:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give different significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform and one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe."
The significance of chronic mental illness as a factor reducing culpability and encouraging leniency in sentencing where there are prospects of rehabilitation was also accepted and applied in R v Tsiaras [1996] 1 VR 398 and in Cooley v The State of Western Australia [2005] WASCA 204 especially at [102] to [113].

The Australian experience, described by Fox and Freiberg (supra), also confirms the traditional posture of the court of refusing to accept drunkenness as a mitigating factor in most cases, but at 300, there is the following passage:
"Where the consumption of the substance that contributed to the criminal behaviour was due to factors that can be considered beyond the offender's control, this may be regarded as mitigatory. ...
... When addiction to drugs is put forward as a mitigating factor, it will carry less weight the higher up the trafficking hierarchy the offender stands. When the intake of alcohol has led to a diminution of self‑control, courts will be more inclined to treat its contribution to the crime as mitigatory if satisfied that the defendant is out of character and the crime is unlikely to be repeated."
And, finally, in Fox and Freiberg at 305, there is the observation that genuine remorse may be rare but when it is found credit should be given because it is part of the reformative component of the sentence.
These general observations are applicable in the present case because I am satisfied that Nicholas Reynolds uncharacteristic criminal behaviour in 2005 was significantly contributed by his underlying mental illness, aggravated by uncontrolled alcoholism which, in his case, seems to be a true addiction. There is no doubt that the combined effect of the illness and alcoholism has been aggravated by voluntary illicit substance abuse but this too is part of a complex syndrome which he is evidently unable to control. The examples of acceptable behaviour during enforced abstinence and supervision demonstrate his generally acceptable intrinsic character when it is not influenced by these potent combinations.
These and other features of the sentencing process were examined in some detail by the Court of Criminal Appeal of New South Wales in Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 which was an attempt to provide a guideline judgment, a process which has not escaped criticism: Wong v The Queen; [2001] HCA 64; (2001) 207 CLR 584 and analysed in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 255 ‑ 259. Nevertheless, the factors which I have just enumerated are recognised in the judgments in Henry (supra), especially in relation to categories of armed robbery which may be regarded as analogous in the present case, all combining to indicate a range for an offence of that character as generally between four to five years for the full term as a starting point.
Significant problems can be involved by the selection of any starting point or by attempting to work mathematically or otherwise proportionately, from some established tariff and then adopting a multi‑staged approach to the calculation of sentence. The controversy to which these constructs has given rise has been fully dissected and demonstrated by the recent decision of the High Court in Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213. What Markarian's case, and more recent authorities, conclusively demonstrate is that the entire selection, fashioning and eventual imposition of any sentence, or series of sentences, remain at the discretion and responsibility of the sentencing Judge always having regard to established principles and the need for comparative justice to be maintained. This is especially important in a case like the present where, for reasons already given, I am satisfied that the tariff should not automatically be applied because of the personal factors of the offender and eventual, but not immediate, prospects for rehabilitation. A detailed consideration of these developments was recently undertaken by Steytler P in Chivers v The State of Western Australia [2005] WASCA 97 at [20] - [27]. McLure JA agreed with those observations and Pullin JA gave a separate judgment to substantially similar effect.

Disposition of these offences

This now brings me to the difficult series of decisions about how to deal with and what sentences to impose for these six serious offences in the light of all the special circumstances which I have so far described. There is little doubt that for a series of offences of this kind imprisonment must be regarded as the most obvious form of sentencing and sentences of immediate imprisonment, rather than suspended imprisonment. Nevertheless, detailed submissions have been made by counsel for Mr Reynolds to the effect that, because of the special features of this case, consideration should be given to the imposition of a series of suspended sentences of imprisonment under Pt 11 of the Sentencing Act 1995. In this regard I must also have regard to the directive contained in s 6(4) of the Sentencing Act 1995 that no sentence of imprisonment may be imposed unless the court is satisfied that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it. In the present case I have no doubt that such a series of armed robberies, attempted armed robberies and burglaries are so serious that imprisonment is the only appropriate penalty in most cases and that the community is entitled to protection from the risk of the continuation of such conduct, or the consequences of such conduct going undeterred generally.
While I am satisfied that Nicholas Reynolds committed these offences because of a combination of mental illness, chronic alcoholism, multi drug abuse and a temporary chaotic lifestyle, I am by no means convinced that he would not relapse into a similar pattern of behaviour and become a serious risk of reoffending in the future, even in his current much‑improved condition. His history of relapses, the uncontrolled nature of his illness, addiction and alcoholism over the past eight years or more, despite the most sincere and sustained efforts by family members, is anything but encouraging. I accept that he demonstrates real remorse at present and that his condition, while free of alcohol and illicit drugs and substances, with his depression under pharmacological control, is good. The problem, however, is how to ensure that it remains good for I am not satisfied that at present, or in the immediate future, even with family and professional help, he will be able to avoid serious relapses unless and until a long period of abstinence from illicit drug use and alcoholism can be established. I therefore must treat him as a risk to the community at present as well as being a risk to himself. For this reason, but not without careful thought, I must reject the submissions to impose some form of non‑custodial sentence.
Having reached a point where a decision that imprisonment is the appropriate and only penalty, it is still necessary to examine whether or not it may be suspended, as sought by counsel for the offender. In reaching the conclusion to refuse to impose a term of suspended imprisonment I accept that it is necessary to give consideration to all the circumstances of the case, not merely to the rehabilitation of the offender - Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. In this case, for reasons already given, I am satisfied that a term of imprisonment is the only appropriate resolution of this case and, further, notwithstanding additional and separate consideration whether or not such a term of imprisonment should be suspended, I have reached the conclusion that only an immediate term or terms of imprisonment will meet the requirements of this case.
Taking into account the need to impose a separate sentence for each of the six offences, and conscious of the fact that the repetition of the pattern of offending shows a continuation of the criminal conduct over time rather than reflecting a number of acts of wrongdoing in one continuous series of episodes, but all the while giving recognition to the totality principle, I consider that the sentences which I would have imposed before the introduction of the 2003 sentencing amendment legislation and the sentences now to be imposed in relation to each of the offences having regard to that legislation, should be as follows:
Sentence to be imposed before        Sentences in accordance
2003 sentencing legislation              with 2003 legislation
Offence:
1.    18 April 2003 -
Attempted armed robbery
5 years  3 years 4 months
2.    6 September 2005 -
      Armed robbery
6 years  4 years
3.    7 September 2005 -
      Attempted aggravated
      armed robbery
5 years  3 years 4 months
4.    24/10/2005 -
      Aggravated armed robbery
7 years  4 years 8 months
5.    3/9/2005 -
Burglary and commit
      offence in dwelling
3 years  2 years
6.    23/10/2005 -
      Burglary and commit
      offence in dwelling
3 years  2 years
This choice of sentences is to mark the gravity of the various offences while, at the same time, reflecting the added significance of the successive repetition of offending, notwithstanding the diminution in culpability due to the compulsive behaviour under the addiction of alcohol and drugs, in combination with the underlying mental condition. Nevertheless, a significant degree of concurrent sentencing is, to my mind, inevitable in order to avoid a crushing aggregation of sentences and to impose an effective head sentence which is no greater than is necessary to optimise the prospects of rehabilitation after the purposes of general deterrence and rehabilitation have been vindicated.
There are various combinations of the sentences possible to effect a cumulative sentence which could be appropriate and it is, perhaps, of secondary importance just how that combination is made. However, I consider that a proportioned overall aggregate result would be justly produced by orders that the sentences on counts 1, 2, 3 and 4 (the attempted armed robberies and armed robberies) should all be served concurrently with the effect that the effective head sentence for those offences will be the 7 years imposed on count 4 (before reduction by one‑third) or 4 years and 8 months, taking into account the 2003 amending legislation, and that the sentences on counts 5 and 6, the two burglaries, should each be served concurrently but those concurrent sentences should be cumulative upon the sentences imposed for counts 1, 2, 3 and 4 so that, after reduction by one‑third for the 2003 legislative amendment, the sentences for counts 5 and 6 will become 2 years each, to be served concurrently but cumulative upon the foregoing sentences, thus producing an aggregate of 10 years, before reduction, or 6 years and 8 months after taking into account the 2003 amendment.

Further reductions for fast track pleas

It is then necessary to consider the remorse demonstrated by the offender, his early admissions of guilt, his indication of a readiness to plead guilty at the earliest opportunity and his fast track plea of guilty in this Court. I am satisfied that this is an occasion in which a full discount of one‑third for such an early plea of guilty and genuine expression of remorse should occur, so reducing each of the individual components in the sentences above by 33 per cent and to be rounded down to the nearest month, in the case of the effective head sentence of 6 years and 8 months for the combination of sentences to 4 years and 5 months, rounded off.
The prosecution accepts that Mr Reynolds should be made eligible for parole and I agree entirely with that assessment and with the observations by Dr Kemp, by the author of the pre‑sentence report and with other medical evidence to the effect that a detailed programme of supervision, random testing for drugs and treatment for alcoholism should be kept up during any supervised period in the community.
The final result, therefore, taking into account the requirements of the Sentencing Amendment Act 2003 and the further reduction for the fast track plea of guilty, is as follows:
Count 1 - 18 April 2005
attempted armed robbery - 2 years 2 months;
Count 2 - 6 September 2005
armed robbery - 2 years 8 months concurrent;
Count 3 - 7 September 2005
attempted aggravated armed robbery - 2 years 3 months concurrent;
Count 4 - 24 October 2005
aggravated armed robbery - 3 years 1 month concurrent.
All the above sentences to be served concurrently.
Count 5 - 3 September 2005
burglary and commit offence in dwelling - 1 year 4 months;
Count 6 - 23 October 2005
burglary and commit offence in dwelling - 1 year 4 months concurrent with count 5.
The sentences on counts 5 and 6 are to be served concurrently upon each other, but cumulatively upon the concurrent sentences for counts 1 to 4.
The effect, therefore, is that the total head sentence will be 4 years and 5 months (the addition of the term imposed for count 4 and the two concurrent terms for counts 5 and 6).
As Reynolds has been in custody since his arrest solely for these offences on 25 October 2005, the commencing date for the sentences upon counts 1 to 4, and in respect of which the concurrent sentences for counts 5 and 6 are cumulative, will be 25 October 2005.
There will be an order for eligibility for parole and also an order for payment of compensation in the sum of $100 in favour of Redport Enterprises Pty Ltd.