District Court New South Wales Medium Neutral Citation: R v Mellis [2020] NSWDC 749 Hearing dates: 21 August 2020; 4 September 2020; 18 September 2020; 13 November 2020 Decision date: 13 November 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Bail Granted – adjourned for purposes of rehabilitation Catchwords: BAIL – Rehabilitation Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Henry (1999) 46 NSWLR 346 Category: Procedural and other rulings Parties: Office of the Director of Public Prosecutions (Crown) David Mark Mellis (Offender) Representation: Solicitors: K McKenzie (ODPP) M Betts (Offender) File Number(s): 2019/00213535 Publication restriction: NONE Judgment INTRODUCTION 1. David Mellis is before the Court to be sentenced for one offence committed on 8 July 2019 of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment. The offender was arrested on 9 July 2019 and was in custody until 30 October 2020, referable solely to this offence from 25 September 2019, when he was granted bail. On 27 February 2020 the offender was committed for sentence in the Local Court. He adhered to his plea in this Court and is convicted of the offence. Facts 1. The following account is taken from a statement of facts that was almost entirely agreed and tendered in the proceedings. As I explain, it is unnecessary to resolve the factual disputes, since they are not significant. On 8 July 2019 the victim was working as a retail assistant at a fashion store in Oxford Street, Paddington. At about 4pm, the offender was outside the store with a female, Kim Apter. The victim was finishing up with a customer when she saw the offender speaking to Apter outside the store. The offender began to yell at the victim who recognised him from a previous interaction when he had asked for a cigarette. Apter walked away. The customer left the store and the offender entered shortly afterwards. The victim approached the offender in order to assist him with any purchase. No one else was inside the store at the time. 2. After a short time, the offender picked up a belt and brought it to the desk. The victim started to put it in a bag when the offender said, "Now put all the money in it". The victim looked up to see the offender with what appeared to be a pistol in his hand. She began to shake and hyperventilate as, unsurprisingly, she believed him to be holding a real gun. She complied with the offender's demand and open the till. The offender lent over, still holding the gun, took the cash from the till and put it into the bag. Someone walked past the store. The offender saw the victim looking at her and allegedly said, "Don't scream, if you scream I will shoot you". (The offender denies making this threat. Since, however, he was holding a gun with plainly an implicit threat to use it were the victim to refuse to comply with his demands or attempt to prevent the robbery, it does not matter whether this was made explicit. The implicit threat is no less serious than the explicit one. I am prepared to accept it as reasonably possible that the offender does not recall voicing this threat. I am left in some doubt about the matter, although I am minded to think that the victim's account is probably true. This issue not, however, need to be determined since, even if no threat was voiced, the offender's culpability is not reduced.) 3. The offender said, "I am not going to take anything that is yours. Okay, now go upstairs". The victim thought that she was going to be physically injured. She took her mobile and laptop and asked if she could go into the back room instead. The offender said, "Yes, all the way in the back". The victim then went into the back room and was told by the offender, "Look at the back wall and don't look at me or I will shoot you". (The offender denies saying the words in italics. Again, even if he had not said them, the threat was implicit and his culpability is not reduced even if his account were accepted. As with the other disputed phrase, I would accept that the victim's account is probably true but do not think it necessary to determine the issue.) The victim faced away for a short period of time and then, turning around, she saw the offender grab something and heard him touching items on the wall next to the desk. The offender yelled, "Don't turn around". 4. The offender then left the store. The victim attempted to call the stores operation manager but was unsuccessful and called 000. She feared for her safety and remained on the phone in the back room until she was told police were nearby. 5. In the morning of the following day, the offender was seen walking through Darlinghurst with Apter. They were both arrested and cautioned. The two watches were located together with $400 cash. The offender participated in an interview with police, denying the commission of any offences, asserting he had purchased the watches from someone else and that he was not the person depicted in a CCTV still shown to him. He did, however, admit to being in Oxford Street, Paddington at the time of the offence. A ballistics expert could not determine from the CCTV images whether the weapon was a genuine or an imitation firearm. It follows from this and the agreed facts that I cannot be satisfied to the requisite degree that the firearm was genuine and must proceed upon the basis that it was an imitation weapon. 6. The offender had stolen $1,418.85, a leather belt ($59.95) and two watches ($179.95 each). Criminal Record 1. I do not intend to set out the offender's criminal record in detail. It takes up some 25 pages, commencing with stealing and breaking, entering and stealing offences in 1980 (when the offender was 14 years of age), with further convictions in the Children's Court in 1982, 1983, and 1984. Further dishonesty convictions followed in 1985 for which he was sentenced to various terms of imprisonment. His first drug offence was using heroin in 1986. He was convicted in of a number of forgery related offences for which he was sentenced on 17 November 1989 to imprisonment for two years with a non-parole period of 12 months. Numerous convictions for dishonesty followed from June 1989. On 11 September 1997 he was convicted of 8 offences of armed robbery for which he was sentenced to concurrent terms of 10 years imprisonment with a non-parole period of 8 years, taking into account 8 offences of attempted armed robbery and 17 offences of armed robbery. On 16 March 2007 he was convicted of 8 offences of armed robbery for which he received an effective sentence of 7 years imprisonment with a non-parole period of 3 years, a condition of parole being that he would subject himself to participation in some form of residential rehabilitation program. On 11 April 2013 he was convicted of demanding money with menaces (with a further such offence taken into account on a Form 1), for which he was sentenced to 2 years imprisonment. He was also convicted of armed robbery and sentenced to 5 years imprisonment with a non-parole period of 2 years and referred to the Drug Court for supervision. On 30 January 2017 he was convicted of armed robbery and robbery for which he received an effective sentence of 4 years imprisonment with a non-parole period of 18 months. On 22 September 2017 he was convicted of attempting to escape lawful custody and was sentenced to 12 months imprisonment with a seven-month non-parole period. On 8 November 2018 he was convicted of breaking entering and stealing and sentenced to 2 months imprisonment. A number of convictions for possessing a prohibited drug followed for which community correction orders were imposed, with which he did not comply. On 18 June 2020 he was convicted of wilfully obstructing an officer in the execution of duty and receiving stolen property and subjected to two Community Correction Orders for a period of 12 months commencing 18 June 2020. 2. He also has several convictions for assaulting police and malicious damage to property. 3. On 9 July 2019 the offender's parole (resulting from the sentence on 30 January 2017) was revoked due to the commission of an offence of possessing a prohibited drug and possessing good suspected of being stolen that were committed on 21 June 2019. He therefore served the balance of parole from 9 July 2019 to 8 September 2019. The commission of those offences also resulted in a call up for breach of the Community Corrections Orders to which I have referred and the imposition of a sentence of full-time imprisonment from 25 July 2019 to 24 September 2019. 4. In summary, in just under the last 23 years, the offender has only spent 267 days out of prison, with the longest gap by far being 109 days between October 2018 and March 2019. Subjective features 1. The offender gave evidence in the proceedings. I thought he was candid, although some of his evidence concerning the offence itself should be approached with caution. The following account is taken largely from the report dated 5 July 2019 of Prof Lorraine Dennerstein AO, a psychiatrist. There is no controversy about the matters which are set out. The offender, who is 53 years of age, was born in Sydney and given away by his mother at the age of 5 days to Phyllis (the mother-in-law of his maternal aunt). His mother's husband was in jail at the time. Phyllis was then aged 55 years and lived with her nephew Leo who was a storeman. Sometime later, his mother re-partnered with the offender's biological father and they had 2 daughters, the offender's younger sisters. This relationship did not last. The offender spent his early childhood, which was a happy one, with Phyllis and Leo. He was at primary school where he was doing well. However, when he was about 9 years of age, he returned home from school to find that his things were packed in the car and his mother and her former husband (with whom she had reconciled) took him away with them. They were both alcoholics and he was maltreated and abused, being hit with cricket bats and metal bars. He believes, with good reason, that he was taken into their "care" so they could obtain social welfare payments. He ran away on a number of occasions, but was found by police and returned home despite his complaints about the physical abuse to which he had been subjected. He remained with his mother and stepfather for about 12 months, when he was taken to police after running away again. He was charged with being uncontrollable and sent to Royalstone Children's Home for about 6 weeks. Ultimately, the Children's Court returned him to Phyllis's care. However, by this time his behaviour had seriously worsened. It is not necessary to say more than it made it impossible for him to remain in Phyllis's home. He was admitted to Children's Ward 6 at North Ryde Psychiatric Centre, diagnosed with depression and medicated. He was eventually discharged back to Phyllis's care but, shortly after, found Leo unconscious in the backyard. He died 4 days later from an embolism. The offender then returned to the psychiatric unit and Phyllis went into a nursing home. He spent about 18 months in the Psychiatric Centre. 2. It was then 1977 and the offender was then aged about 11. He was released from the psychiatric unit to Hargrave House and remained there through 1978. Whilst there, he was sexually abused by the manager. In 1979 he spent a year with a foster family in Bega but he found it impossible to accept being part of the family and was returned to Hargrave House, where he remained until 1981, the sexual abuse resuming on his return. 3. (I interpolate that the offender had made a statement and gave evidence to the Royal Commission on Institutional Sexual Abuse. Tendered in the proceedings was a letter addressed to him by the Deputy Secretary of the Department of Communities and Justice acknowledging the abuse, mistreatment and trauma he suffered whilst at Hargrave House. Following proceedings, the offender received a significant sum by way of compensation, though far less, I think, that he would have been awarded had his claim gone to judgment. For obvious reasons, I do not state the amount the offender was paid.) 4. Following his time at Hargrave House, the offender went to another boy's home from 1981 to 1980 to, moving once more until 1983, when the home closed and he went into support accommodation. He left there at the end of 1983 when he was 17 years of age to work full-time and moved into his own flat. He had hoped to bring Phyllis home but she died soon after. 5. Although there were periods of difficulties, the offender, by and large, did reasonably well at school but left after undertaking his year 11 examinations in order to work full-time as a labourer in a poultry farm. He's had other work including labouring and as a kitchen hand but, as he criminal history shows, he has spent most of the time since he was 18 years of age in prison. He has had several unsuccessful relationships. 6. The offender's health is seriously compromised by his contracting hepatitis C which was diagnosed in 2006 when he was in prison. Interferon treatment was unsuccessful but, in 2015, he was treated with medication which had by then become available and the hepatitis C is now inactive. However, he has stage IV liver disease and requires checks every 6 months to confirm that it remains stable. His prognosis is uncertain. He suffers from varicoses on his oesophagus, which require 3 monthly checks by gastroscopy. He has twice attempted to commit suicide, which required hospitalisation. 7. The offender has been an abuser of illicit drugs of various kinds since his teenage years and presently needs methadone to stabilise his addiction. 8. Professor Dennerstein considers that the offender, as a result of the trauma and sexual abuse he suffered, has developed Post-traumatic Stress Disorder, together with depression and a developed Antisocial Personality Disorder. To Professor Dennerstein, (who saw him 3 days before the commission of the present offence) the offender expressed no remorse for the crimes he had up to then committed. He attributed them to the need to fund his drug abuse. With respect to the present offence, he said that it was instigated by Ms Apter, who provided him with a replica pistol and that he committed it to help her out. Certainly, the fact that they were arrested together is evidence of a joint enterprise. (Apter, in effect, has denied instigating the offence or, indeed, of being jointly involved.) Whether the offender was motivated by Apter, as he says, or not does not materially reduce his culpability in my view. The fact is that he intentionally undertook the robbery, well aware of its serious nature. 9. However, it is necessary to give full weight to the offender's appalling personal history. His childhood, except for a brief period of happiness was marred by gross abuse and betrayal, not only by his parents, but by law enforcement and, and greatly aggravated by the long-term sexual abuse to which he was subjected in the very State institution set up for the care and welfare of children in his situation. This extreme social and personal deprivation has, I am convinced, contributed significantly to his drug-taking, his inability to maintain stable relationships and, more generally, his criminal conduct. His continual imprisonment was, not surprisingly, hopelessly ineffectual in terms of rehabilitation. As was noted in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44], "the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending". His criminal culpability is therefore significantly reduced. 10. The offender has recently reconnected with his two sisters, his brother and cousins. This has been positive for him as they have been very supportive. Indeed, one of those sisters is undertaken the task of managing, as trustee, the compensation payment to which I have referred. One of his sisters, who travelled from Adelaide to give evidence in the proceedings and provide personal support, has agreed to accommodate him should this be permitted. If I may say so without being patronising, I was impressed by her understanding, candour and common sense. I regard this support is significant and provides ground for optimism that he will be able to end the catastrophic trajectory which has so far described his life. He has also been assisted by the counselling and support from the Rough Edges Community Centre in Darlinghurst, the manager of which has expressed the belief that the offender "is a lot of potential for giving and serving in the community". 11. The offender has written a lengthy letter to the Court, giving an account of his personal history and, significantly, expressly acknowledging that what he had done was wrong and expressing an understanding of and regret for the trauma felt by the victim. He says that it is a new experience for him to know that, when he leaves prison, there will be someone to turn to for support and, although one must naturally be cautious about such expressions in the sentencing context, I do not think that in this case they should be dismissed as self-serving. Assessment 1. It is, of course, necessary to bear in mind the serious character of this offence, particularly in light of the maximum available penalty. The offence involved the threatened use of violence and a weapon: s 21A(2)(b) and (c) of the Crimes (Sentencing Procedure) Act 1999. It was also committed when the offender was at conditional liberty: It is also necessary to take into account the guideline judgment of R v Henry (1999) 46 NSWLR 346, directed at the offence of armed robbery pursuant to s 97(1) of the Act. The Court identified a number of features to which consideration needs to be given. Of course, this is not an exhaustive list. They are the age of the offender, the nature of the weapon, the degree of planning, the threat of actual violence, the vulnerability of the victim, the amount taken, the effect on the victim, the remorse, if any, indicated by the strength of the Crown case. In the particular constellation of facts identified in that appeal, the sentence "should generally fall between four and five years for the full term". This term was described by the Chief Justice as "as starting point" although, of course, not in the sense that instinctive synthesis is compromised by adopting a two stage approach, adding or deducting any particular number as the comparative analysis proceeds. 2. Bearing in mind the objective circumstances to which I have already referred and the guidance in Henry, I would place the seriousness of this offence towards the lower end. Even so, it must be accepted that a sentence of imprisonment would almost invariably be imposed in the present case. However, the exceptional character of the offender's subjective case impels me to an alternative, if not final, result. The considerations to which the High Court referred in Bugmy and following judgments apply with considerable force in the present matter. It seems to me that, if the revolving door of offences and incarceration can be stopped, so that an opportunity for rehabilitation in the community can be effective, despite the evident risks, this will benefit both the public interest and the offender. His situation has significantly changed. He has some means to provide for himself in addition to social welfare and, of particular importance, given his disastrous family history, the reconnection with members of his family and their acceptance of and willingness to support him. To some, these might appear to be minor matters but, when viewed against the perspective of his life in the past forty-five years, I think they are of considerable importance in evaluating his prospects of rehabilitation. I bear in mind also that the offender has spent a considerable period in custody awaiting sentence, which is itself a not insignificant punishment. 3. Given his history, the offender is not an appropriate candidate for the application of general deterrence. His criminal history (taken with its likely cause) would suggest, on the other hand, that personal deterrence is capable of significance. On balance, however, I consider that it is appropriate to proceed, under s 11(1) of the Crimes (Sentencing Procedure) Act 1999, to adjourn final determination of the appropriate sentence to 12 May 2021 and to grant bail in the meantime for the purpose of assessing the offender's capacity and prospects for rehabilitation in light of the matters to which I have referred and to allow the offender to demonstrate that there are real prospects for rehabilitation, as he claims. I point out that this period is significantly longer than any other during which he has not committed an offence. Remaining of good behaviour and complying with the conditions of bail whilst it lasts would be a promising sign that he has indeed reached the crossroads and taken the right path. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2020