District Court New South Wales Medium Neutral Citation: R v Warrilow [2021] NSWDC 631 Hearing dates: 26 August 2021 Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 3 years 6 months with a non- parole period of 2 years 1 month. Catchwords: CRIME- Dishonestly obtain financial advantage by deception - Steal property in dwelling-house - Aggravated enter dwelling with intent - knowing people there SENTENCING- Relevant factors on sentence – guilty plea - multiple victims - Form 1 – elderly and vulnerable victims targeted - repeat offender - history of child hood trauma - impact of COVID restrictions - need for psychological treatment and drug rehabilitation- risk of re-offending - community safety –Intensive Corrections order refused Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Donald (a pseudonym) v R [2021] NSWCCA 198 Mandranis v R [2021] NSWCCA 97 R v Lawrence (2005) NSWCCA 91 R v Pullen [2018] NSWCCA 264 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Darren Henry Warrilow (the offender) Director of Public Prosecutions Representation: Counsel: Mr D Beaufils (for the offender) Solicitors: Abbas Jacobs Lawyers (for the offender) Mr L McGonigal (for Director of Public Prosecutions) File Number(s): 2020/00056236 sentence – ex tempore revised 1. Darren Henry Warrilow is for sentence today for three serious offences: 1. Dishonestly obtain a financial advantage by deception, namely $4,000, s 192E(1)(b) Crimes Act 1900, maximum penalty ten years imprisonment; 2. Steal property from dwelling house, s 148 Crimes Act 1900, maximum penalty seven years imprisonment; 3. Aggravated enter dwelling with intent to commit a serious indictable offence, namely dishonestly obtaining a financial advantage, knowing persons were home, s 111(2) Crimes Act 1900, maximum penalty 14 years imprisonment. 1. When I sentence him for the third offence he asks that I take into account two charges of dishonestly obtain a financial advantage by deception on a s 32 Crimes (Sentencing Procedure) Act 1999 Form 1. It is appropriate, given the circumstances, that I do so. 2. The guilty pleas were indicated in the Local Court and adhered to today. Mr Warrilow is entitled, as a matter of law, to a reduction in the otherwise appropriate sentence from each of the matters for sentence of 25%, s 25D Crimes (Sentencing Procedure) Act 1999. Those reductions will be made to the indicated sentences. As I intend to impose an aggregate sentence I will take care that the process of accumulation does not erode the utilitarian benefit of these earlier pleas. 3. Every sentencing exercise must focus on what was done. Here there are agreed facts before the Court. There are two sets of offences, described as Offence group 1 and Offence group 2. Offence group 1 Dishonestly obtain a financial advantage by deception; steal property from dwelling house 1. Victim 1 is an 87-year-old woman. She lives in Oak Flats. On Sunday, 9 February 2020 she was home alone. Her doorbell rang and she was met by the offender, who told her he was there to talk about repairing solar panels. The victim invited him in, and the offender spun her a yarn about the need to clean her solar panels or the power would be cut off. She said "no." He became impatient and went to phone her son to verify the information Warrilow had given her. While she was doing so the offender went through her bag and stole her wallet. He then ran from the home. 2. A short time later the victim received a telephone call on her landline. It was the offender pretending to be someone from the bank. Having realised her purse was missing the victim presumed that the call was genuine. Unfortunately, she then provided information to the offender which enabled him to access her bank account. He continued to take money until the card was declined. He took $4,000 from it. Offence group 2 Aggravated enter dwelling with intent to commit a serious indictable offence 1. Group two involves the aggravated and enter with intent offence against victim 2, and the matters on the Form 1 which involve victim 2 and victim 3. The victims reside in Wollongong and Mount Kembla. Victim 2 is 94, and has dementia. Victim 3 was aged 81 and also has dementia. Victim 2 1. Victim 2 has a direct debit card. On 11 February 2020 Warrilow went into her kitchen and told her that she needed to pay her electricity bill or it would be disconnected. She was told that she owed $8,500. Frightened and confused, she, at the offender's insistence, wrote out two cheques for cash. The offender then went to a bank in Wollongong and presented the cheques and spun a yarn to the tellers about a 'nightmare' customer. The cheques were processed. Investigations by victim 2's family lead to the involvement of police. A third cheque was attempted to be presented but was declined on 13 February 2020. Victim 3 1. The Form 1 matters related to victim 3. On 12 February the offender and a male friend went to her home in Mount Kembla. They spun a yarn about cleaning her gutters. Her gutters did not require cleaning as they were maintained by neighbours. Nevertheless, their persistence lead the victim to let them do some work, which then attracted attention of the one of her neighbours. 2. Eventually the offender was able to talk victim 3 into making out a cheque for $3,200. He left with it but returned and said that the cheque would not be honoured. Somehow he managed to convince not just the lady, but her also her neighbour, to go to the bank withdraw the money. Despite their suspicions being aroused, the money was withdrawn. But another neighbour called his son, a New South Wales Detective Senior Constable, who made arrangements to have the vehicle being driven by the offender and another man, stopped. The $3,200 was recovered. Objective seriousness 1. The offences involved planning, they were deliberate; some deviousness was shown, as was cunning and guile. Warrilow wanted money and each victim were targeted because of their age and their apparent gullibility. The offences occurred in their homes. Although this Court often deals with frauds in the hundreds of thousands of dollars, the amounts must have been important to each of the victims. The offences involved persistence, abuse of their goodwill and exploited elderly members of our community. 2. The cheque system, although outdated, is still used and is still a fundamental of our banking system. The fraudulent use of credit cards also undermines our credit system. Individually and collectively these matters for sentence were serious offences and, in context with other matters, require custodial penalties of some length. 3. The offender requires individualised treatment and I have to assess each offence and him. I have to have regard to the maximum penalties. I have to have regard to the purposes of sentencing, which, importantly here, include the deterrence of this offender and others from committing similar crimes. The sentence must properly recognise the harm done to individual victims and the community. The Form 1 1. The matters on the Form 1 must be taken into account when I sentence for the matter to which it relates. I do not sentence for those matters. I take them into account in accordance with the guideline from 2002 as is part of an intensive synthesis approach to formulation of the sentence before me to which the Form 1 relates: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146. The increase recognises the need for personal deterrence and retribution for the crime for sentence. 2. Although Mr Beaufils, counsel for the offender, said that these matters were relatively minor, I do not accept that submission. I prefer that of Mr McGonigal, solicitor who appears for the Director. They were substantial offences and there is no reason why any increase in accordance with the guideline cannot be substantial: Attorney General's Application No 1 at [18]. Criminal record 1. Born in 1990, the offender has a criminal record going back to the Children's Court. Initially it was mainly driving related matters, but on two occasions in 2011 and 2018, he came before the Drug Court. Since 2014, while driving offences persist, there is a disturbing pattern of dishonesty offences involving obtain benefit by deception and steal from dwellings. 2. Warrilow was first gaoled in 2015. Since then he has spent only 18 months or so in the community. He was released to parole on 18 April 2019. He served his balance of parole date and began reoffending in February 2020. He has been on remand since 20 February 2020. This sentence should commence on that date. 3. His criminal history is relevant to determining the proper sentence. It indicates that this offending is not an uncharacteristic aberration. He has shown some persistence in committing obtain benefit by deception type offences, involving similar scams to the ones here. He has been sentence to custody previously for more serious, in terms of number, of such offences. His continuing offending demonstrates his disobedience towards the law. His prior criminal history cannot result in a sentence which is disproportionate to the seriousness of the offences for sentence today, but it does warrant a consideration of more severe penalties, with additional focus on retribution, deterrence, and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477. COVID-19 1. Warrilow has been in custody on remand for 18 months. He has served that period subject to the present COVID pandemic. He entered pleas while the pandemic had its effect. Although the Victorian Court of Criminal Appeal has said that that requires some specific weight greater than the ordinary in the amelioration of sentence, in Victoria there is no specified statutory discount for the utilitarian value of the plea. There is in In NSW: s25 D Crimes (Sentencing Procedure) Act 1999. Parliament has not to date amended those provisions to take account of the pandemic. I must apply that statute, but an early guilty plea has values, other than its purely utilitarian value and they are matters I have to synthesise when I come to the appropriate sentence. 2. Also when formulating an appropriate sentence, I cannot ignore the impact of the pandemic on prisoners. Warrilow gave evidence today. He spoke of the impact of the lockdown on him. Although video links with family were meant to increase recently, he has had difficulty accessing AVL. He told me that he has had no access to programs and the only work available to him was at Parklea when he was able to work as a sweeper. Currently he just spends his time in the yard. This is particularly important to him as he sorely needs mental health and drug and alcohol programs to assist him on his release. 3. As at today, there are some indications that COVID has entered our gaols, Warrilow falls into a category that might be considered for early parole. The lack of visits, the heightened anxiety and concerns caused by the pandemic, particularly for those who cannot control their own lives, are relevant factors that I must synthesise. Subjective case 1. I have the benefit of a Sentence Assessment Report. It indicates that Warrilow has family support and work is available on release, but it also indicates that he still lacks insight into his crimes, which he sought to justify by a saying needed for money for food and bed. He indicated that he wants to apologise to his victims. It noted his long‑term drug problems, and his constant failure to date to complete programs. It also noted a recent diagnosis of Post-Traumatic Stress Disorder. It put forward a detailed supervision plan on release that would include attendance at a residential rehabilitation facility. 2. In his evidence today Warrilow told me that he had accurately described his background and history to his psychologist, Mr Awit, and his psychiatrist, Mr Robertson. Mr Awit's report sets out his personal history, which is not controversial. Mr Awit noted that this offending occurred after resumption of drug use, family discord and a move to Wollongong, as his life was spiralling out of control. 3. The report notes a history of trauma going back to when he was a child; in the home and in juvenile detention. It notes a history of impulsivity. He describes a person who is pleasant and cooperative but easily distracted. He told Mr Awit about the impact of the buprenorphine, which he's currently taking by depot medication, and it appears that consistent use of that drug has enabled him to come to grips with a longstanding drug and alcohol program. Testing reveals a diagnosis of ADHD and Post‑Traumatic Stress Disorder, a major depressive order, and a substance use disorder. 4. Mr Awit concludes, at page 11, that Warrilow is disgusted with himself, that he has yet again followed the same pattern of behaviour that had brought him back full circle, to the same outcome, gaol. In his professional opinion, Warrilow's psychological conditions and the offences before the Court are linked; he finds a link between them. This psychological link stems from Mr Warrilow's impaired decision‑making ability which in turn results from his underlying conditions and accompanying drug use. He is at risk of reoffending unless he receives intensive psychological and psychiatric intervention, and a treatment plan, once released, is attached. I will have this report and the report of Associate Professor Robertson sent with the warrant to Community Corrections. 5. Associate Professor Robertson also details Warrilow's personal history. He confirms an opinion that the offender suffers chronic Post‑Traumatic Stress Disorder following a history of sexual abuse in juvenile detention. He says this creates a causal link with Warrilow's drug misuse and the psychiatric disorders noted. The Professor provides detailed references to support that proposition. He notes that, although not inevitable, the sexual abuse of the young can lead to "psychological toxicity", which requires treatment. Sadly, that is not the first time I have received a similar opinion about offenders, such as Warrilow, who were abused, as children. 6. Professor Robertson notes a history of self‑harm and how his long‑term substance misuse disorder has been assisted by the depot buprenorphine. He also notes, disturbingly, an underlying Cluster B Personality Disorder with prominent borderline and antisocial features, for which proposed treatment may provide less benefits. That condition is described in an annexure at p 25 of his report. The offender has been offered the assistance of Voice of a Survivor to help him coming to grips with his abuse while in detention. 7. It is clear, from all the material before me, that long‑term alcohol and other drugs have been used to ease the pain of relationship breakdowns and long‑term effects of his abuse while in detention. There is also a history of emotional volatility. 8. The manner in which a mental illness, particularly a recently diagnosed one, and other psychological problems may be treated by a Court was succinctly summarised in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and more recently in Donald (a pseudonym) v R [2021] NSWCCA 198. There is some need here to take those conditions into account in amelioration of his moral culpability. They may, and should be used to reduce the need to denounce the crime. But that has to be balanced with the nature of the crime and its repetition and its impact on the victim. While this offender may not be an appropriate vehicle for a heavily general deterrence sentence, there is still a need for specific deterrence, and conversely, while his post‑traumatic stress disorder and substance abuse can be dealt with by the proposed treatment, where a person has been diagnosed with an anti‑social personality disorder there may be a particular need to give consideration to the protection of the public, R v Lawrence (2005) NSWCCA 91. Remorse 1. Warrilow also put a letter before the Court. He has some assistance its writing. It expresses the offender's disgust at what he did and proffers an apology and an explanation. Whether his victims accept that apology I cannot say. Some probably are unable to really realise what was done to them. He describes himself as foolish, reckless and lazy, with one desire only, to make quick money. He says he now wants to be there to provide for his three boys and his mother. It is sad and tragic that he did not show the same consideration to the mothers of others. He promises this time to put into action the treatment plans and avoid this time what he has done too often in the past- going back to the use of illicit drugs. 2. Not that drug use can ever be an excuse to commit crimes. The Court, even in the case where, as the SAR notes, he lacks insight, can however take into account how his drug problem came about and any steps that have been taken to deal with the problem in amelioration of sentence. Submissions 1. I have received written and oral submissions from Mr Beaufils and Mr McGonigal. Mr Beaufils says that it is in the community interest that all of the good work done since Warrilow he came into custody be rewarded, and that now is the time to test him in the community. His underlying issues that have been diagnosed and can be addressed by the depot buprenorphine and the proposed treatment plans. He submits that a sentence of less than three years could be imposed either as a total sentence or by taking into account the 18 months already served, making available, the option of Intensive Correction Order (ICO). He says that an ICO would meet both the need for community protection and the interests of the offender. Those interests requiring some sympathy because of the underlying conditions he suffers from, and the need to, as quickly as possible, address those conditions, particularly the Post‑Traumatic Stress Disorder. He said in submission that if the plan is implemented and carried out, the likelihood of reoffending would be substantially reduced. 2. For the Director, Mr McGonigal submits that in all the circumstances an Intensive Corrections Order would be an unacceptable alternative. He said given the nature of the offending, the offender's lack of insight, there is a real risk, because past behaviour is a very good indicator of future behaviour, that he would repeat his offending in the future. In such circumstances Mr McGonigal submits, community safety could not be met by an ICO and any programs that he needs can be made available to him on parole. Structure 1. I am required to impose an appropriate sentence for each offence. The overall sentence should be just and appropriate to all of his crimes. The sentences for the Offence group 1 matters - can comprehend and reflect the criminality for the other. They are part of a single episode with many common features but there must be some accumulation of penalty for the Offence group 2 offence and its Form 1 must be taken into account. 2. In his written submissions, Mr Beaufils extensively addressed the question of whether there should be an Intensive Correction Order (ICO) by reference to recent authorities of the Court of Criminal Appeal, notably Mandranis v R [2021] NSWCCA 97. Mr Warrilow is eligible for an ICO, but the decision I have to make is not which of the two modes of serving the sentencing is more likely to address the offender's risk of reoffending; a favourable opinion is not required. The intention behind s 66(1) Crimes (Sentencing Procedure) Act was that if community safety were endangered by allowing an offender to serve his sentence in the community, that consideration would override any and all others. 3. One factor which must be taken into account in consideration of community safety is the likelihood of reoffending by the offender. Which of two modes of serving a sentence is more likely to address the risk of reoffending is a matter, which as Harrison J observed in R v Pullen [2018] NSWCCA 264, can be addressed in different ways, depending on the offender, but addressing an offender's risk is but one of the considerations that contribute to such an assessment under s 66(1). 4. Other considerations such as rehabilitation and accountability, denunciation, must be considered and can give way to community safety where appropriate, but, while I have taken the 3A purposes into account when I formulate an appropriate sentence, and while they can be taken into account in relation to the ICO question, courts ultimately must formulate a sentence that meets the purposes of sentencing and questions of risk. While an ICO may allow for better targeted supervision, the offender's history of failure to date gives me no confidence that an IOC could or would benefit the community. There is, and remains, a real risk of reoffending so far as this offender is concerned. While he cannot be removed from the community for any longer than is necessary and can't be punished for that past, the pattern of behaviour acknowledged to Mr Awit and in court gives little to indicate that this time it will be different. 5. I recognise, however, that there are prosocial and protective supports in the community and that he needs psychiatric treatment for his post‑traumatic stress disorder. The attempts to engage in drug and alcohol counselling must continue, but I remain guarded about his prognosis. 6. I have to return to what he did to the victims he harmed. A proper sentence should mark the Court's view of the seriousness of those crimes and let others know the retribution which will fall upon them if they commit similar crimes. Whether he is to be released to the community and when he serves the minimum term I find is necessary, will require a finding by the State Parole Authority that release is in the interests of community safety. It would seem essential, as I am presently advised that he be able to engage in the rehabilitation programs set out in the Sentence Assessment Report. Orders 1. I will take into account the time served and all the matters to which I have referred. Synthesising all those matters, and noting a discount for the pleas, there will be, so far as the first count is concerned, an indicative sentence of two years and three months. For the second count, an indicative sentence of one year and one month; and the third count, taking into account the Form 1, two years and seven months. 2. There will be an aggregate sentence of three years and six months; reflecting a finding of special circumstances, there will be a non‑parole period of two year and one months. The sentence will start on 20 February. Warrilow will be eligible for consideration for release to parole on 20 March 2022. There will be a parole people of one year and five months from that date. To repeat – a three years six months sentence with a minimum period in custody of two years one month and one year five months on parole. Eligible for consideration for release to parole on 20 March 2022. ********** 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: 23 November 2021