District Court New South Wales Medium Neutral Citation: R v Dobbs [2022] NSWDC 129 Hearing dates: 22 April 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Orders at [61] Catchwords: SENTENCING – robbery armed with an offensive weapon – form 1 offences – larceny – common assault – bizarre facts – offender armed with a meat cleaver stolen earlier – low level of objective seriousness – diagnosis of schizophrenia – substance use disorder – offender not medicated – mental illness materially contributed to commission of the offences – reduced moral culpability – tension between mental illness and community safety - departure from guideline judgment Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Tennison [2020] VCC 343 Ith v R [2013] NSWCCA 280 Jackson v R [2010] NSWCCA 162 Legge v R [2007] NSWCCA 244 McKinnon v R [2020] NSWCCA 106 Muldrock v The Queen 244 CLR 120 R v Anderson [1981] VR 155 R v Henry [1999] NSWCCA 111 R v Israil [2002] NSWCCA 255 R v Kelso [2020] NSWDC 157 R v Stonestreet [2020] NSWCCA 212 R v Tangi (No 12) [2020] NSWSC 547 Thach v R [2018] NSWCCA 252 Valentine v R [2020] NSWCCA 116 Category: Sentence Parties: Regina Samuel Thomas Dobbs Representation: Counsel: Mr Eugene Renard, Solicitor Advocate (offender) Solicitors: Mr Andrew Hanshaw (DPP) Ms Jamiee Simonsen (offender) File Number(s): 2021/00160432 Publication restriction: Nil Judgment Introduction 1. Samuel Dobbs is a bearded large man. He looks intimidating. Armed with a meat cleaver, he is terrifying. 2. He hears voices. He is schizophrenic. He refuses to take his medication. 3. This sentence highlights the tension between those with a mental illness and the need for community safety. 4. The offender is to be sentenced for a single count of robbery armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900. The offender asks that I take a number of other matters into account on a form 1. 5. The principal offence carries a maximum penalty of 20 years imprisonment. The maximum penalty is an important guidepost in the assessment of sentence. A sentencing judge should steer by the maximum penalty, but not aim for it. 6. There is a guideline judgment for this offence: R v Henry [1999] NSWCCA 111. The guideline judgment is an important check, guide and indicator in the sentencing exercise: Legge v R [2007] NSWCCA 244 at [59]. However, it is not a tramline. Plea of guilty 1. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offences. As such, Mr Dobbs is entitled to a discount for an early plea of guilty of 25% in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The Facts 1. On 3 June 2021, the offender went to the West End Plaza in Albury, New South Wales. He walked into the Reject Shop. He was seen by a worker picking up two packets of cigarette lighters with three lighters per pack. The total value was $11.50. The worker asked the offender if he was going to pay for the lighters. The offender left the store. 2. He then went to Kmart. He took a number of items, including a pair of tracksuit pants and went to leave the store. He was stopped by an employee and gave the tracksuit pants back. 3. A security guard for the shopping centre attended outside Kmart. She arrived as the offender was handing the tracksuit pants back. The security guard confronted him with the earlier theft from the Reject Shop. 4. The offender started to walk away from the security guard. Something fell out of his pocket and the security guard asked the offender where he stole it from. The offender continued towards the exit, the security guard walking with him. He turned and walked directly towards the security guard to the point where he was almost touching her. She stepped back and said "Don't". The actions of the offender caused her to fear she would be assaulted. The offender walked out of the shopping centre. 5. After leaving the West End Plaza, he walked towards the main street of Albury and into the restaurant Schnitz. He pulled a meat cleaver that he had stolen from Kmart earlier and waved it around briefly. The victim was working at the time, and the offender told the victim that he had a lighter and a knife. The offender asked for a creaming soda and large chips. He took two creaming sodas out of the fridge. The victim told him that the total was $14.60 to which the offender said "I don't have any money. I just have my lighter and a knife". He handed one of the sodas back to the victim and left the restaurant. 6. He then walked into the Garden's Café. He picked up a box containing 20 smaller boxes of Nerds lollies, two Cherry Ripes, and three packets of mixed lollies before running from the café. The supervisor and another staff member ran after him. The offender stopped at the bottom of the stairs at the front of the café and threw the items all over the ground. 7. Police reviewed the CCTV footage of the incidents and identified the offender. He was arrested and conveyed to the Albury Police Station. He initially participated in an interview which was aborted as officers formed the view that he was under the influence of drugs. He admitted that he had, in fact, consumed drugs that day. Criminal history 1. The offender has a lengthy criminal history which includes offences of violence and larceny. In 2008, the offender was sentenced to a term of imprisonment for serious offences of violence which were suspended. The breach of these orders was back before the court less than 4 months after they were imposed, and the offender was sentenced to a term of full-time imprisonment. Since then, he has received numerous terms of imprisonment and other supervised orders. 2. At the time these offences were committed, he was on parole and on an Intensive Correction Order for shoplifting offences. It is a statutory aggravating feature that he was on conditional liberty at the time: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. I note that both court orders included conditions that required Mr Dobbs to continue with treatment and take medication. His antecedents also disentitles him to any leniency that might be afforded to a first time offender. Objective seriousness 1. The facts reveal a pattern of bizarre behaviour from the offender on the day in question. With respect to the larceny offences, the items stolen appear to be random from various stores. They were all of very low value. The robbery itself was unsophisticated. He made no attempts to disguise himself and the entire interaction was captured on CCTV. It was inevitable that he would be apprehended. 2. The common assault of the security guard did not involve any physical contact. Further, while the robbery offence may be considered more objectively serious by virtue of his waving the meat cleaver around in the restaurant, it was not presented in a directly threatening way to the worker. The threat was implied only. 3. The victim in this matter is a vulnerable victim by virtue of their position as a worker in the restaurant. Although there was no direct threat, the experience of having a man of Mr Dobbs' build and appearance displaying a meat cleaver would have been frightening. They could see the knife, even when it was under his arm, and felt scared the entire time. 4. This offending falls to the lower end of objective seriousness for like offences, though not at the very bottom. The guideline judgment in Henry suggests a sentence of four to five years imprisonment for offences with features consistent with the guideline factors: 1. Young offender with limited criminal history 2. Weapon capable of killing or causing serious injury 3. Little planning or premeditation 4. Limited actual violence but a real threat thereof 5. Victim in a vulnerable position 6. Small amount taken 7. Plea of guilty 1. However, it is not necessary for there to be exceptional circumstances before I depart from this indication set by the guideline judgment: Legge at [44]. 2. His motivation for the offence is also relevant to the assessment of objective seriousness. At the time of the offending, he was hungry having not eaten for a number of days prior. He was spending his money on 'ice' and cannabis and was stealing for food. He had not slept for two days because of his 'ice' use. He wanted food to eat. There is nothing in the material before me that he wanted to hurt the victim. 3. As I previously mentioned, the offender also asks that I take into account on sentence pursuant to section 32 of the Crimes (Sentencing Procedure) Act 1999, three charges of larceny, contrary to section 117 of the Crimes Act 1900 and one charge of common assault, contrary to section 61 of the Crimes Act 1900, listed in a Form 1, being sequences 2, 3, 4 and 7. The maximum penalty for each offence is 5 years imprisonment. 4. I note that having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518. 5. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the offender is to be sentenced and the offences taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone. 6. The fact that matters on a form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing, the Court takes the form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted. Moral culpability 1. Dr Richard Furst, forensic psychiatrist, in his report dated 14 April 2022 outlines the following with respect to Mr Dobbs' offending: "He was clearly not functioning well, was hungry and was using drugs on a habitual basis, especially cannabis and methamphetamines. His previously diagnosed schizophrenia was not being actively treated at the time of his offending, insight into his mental illness lacking, Mr Dobbs not seeing a GP or psychiatrist and not taking any antipsychotic medication at the time either. He was also using drugs, namely methylamphetamines and cannabis that are both associated with exacerbations of psychosis in people suffering from schizophrenia." 1. The fact that an offender was or is suffering from a mental disorder or disability may be taken into account on sentence: R v Anderson [1981] VR 155. An offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen 244 CLR 120 at [53]. 2. The sentencing principles outlined by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177] are relevant to these proceedings. 3. The facts reflect a very unsophisticated robbery with no planning. It was inevitable that he would be apprehended. At Schintz, he removed two cans of drink from the fridge and returns one of them to the worker before leaving the restaurant. This is simply bizarre behaviour, consistent with an offender grappling with a serious mental health condition combined with drug addiction. 4. It was submitted by the Crown that a causal link between the offender's mental illness and the offending behaviour has not been clearly established. However, there is no requirement for the mental illness to be the direct or precipitating cause of the offending, there need only be a material contribution. In written submissions, the Crown concedes that his self-medication at the time of the offending would not have had a positive impact on his mental health condition. I am satisfied that his diagnosis of schizophrenia contributed to the commission of the offence in a material way, and the offender's moral culpability is reduced. 5. Further, general deterrence must be given reduced weight in the sentencing exercise. As a result of his mental health condition, Mr Dobbs is an inappropriate vehicle for general deterrence and sending a message to others in the community who might be inclined to commit similar offences. Any custodial sentence will weigh more heavily on this offender. 6. Given Mr Dobbs' criminal history including previous sentences of full-time imprisonment for like offences, specific deterrence would usually be a pertinent sentencing consideration. However, I have found his diagnosis of schizophrenia and his mental condition at the time to have materially contributed to the offending. Ordinarily, the significance of specific deterrence is to be reduced in sentencing Mr Dobbs. However, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255. 7. Mr Dobbs' schizophrenia has been untreated for a long time and he has little, if any, insight into his mental illness. Upon release, he should be placed on a Community Treatment Order with mandatory injections. 8. Lastly, community safety looms large. It may be that because of a person's mental condition, they present a greater danger to the community. In this case, an increased sentence may be appropriate, not because of the person's mental condition, but because of that danger. Community protection is not an optional consideration: R v Stonestreet [2020] NSWCCA 212 at [44]. 9. This offending reflects an escalation in Mr Dobbs' offending behaviour, both in terms of frequency and seriousness. His poorly controlled schizophrenia and drug use which was, at the time, untreated means that community protection is a critical consideration: Stonestreet at [25]-[28] and [46]. The factors that I considered in determining the objective seriousness are relevant: there was no actual violence, the threat was implied only, and it was an unsophisticated robbery. A treatment plan has been recommended which will assist him in the future. Balancing these factors, I remain of the view that his moral culpability is reduced. Subjective circumstances 1. In 2016 or 2017, Mr Dobbs was diagnosed with schizophrenia. He was prescribed medication. There were court orders in place requiring that he continue to take his medication and engage in drug and alcohol rehabilitation. He did not. 2. I have before me a report of Dr Richard Furst, forensic psychiatrist, dated 14 April 2022. It discloses that he is a long-term user of drugs. He commenced smoking cannabis from the age of 13 years. His cannabis use was a daily habit, and he also used methylamphetamines on a regular basis. 3. With respect to his mental health, he first came into contact with mental health services when he was 12 years of age. He was emotionally distressed after being witness to an assault on his friend's mother who was stabbed by her ex-husband and the ex-husband's subsequent suicide. Mr Dobbs meets the criteria for a diagnosis of schizophrenia and substance use disorder. 4. In the past, Mr Dobbs has experienced hearing voices and talking to himself, confusion in his thinking, erratic mood, social withdrawal and excessive worry. His mental health condition is noticeable to his family. In 2017, his sister reported that Mr Dobbs remained psychotic even after discontinuing drug use the previous week. 5. He had discontinued his antipsychotic medication once he was released on parole three months earlier. He also continued to use drugs, contrary to the conditions of parole and the Intensive Corrections Order. 6. The circumstance described by Dr Furst that this offender has 'fallen through the cracks' is sadly all too common. A theme throughout the report is that this offender lacks insight into his mental health condition making treatment difficult. Dr Furst opines that the most likely cause is impairment in his level of psychosocial function and the progression of a schizophrenic illness, which has been exacerbated by a lack of treatment with medication over the last 5 years and ongoing drug abuse. 7. He enjoys the support of his mother. Upon his release, he intends to live in Holbrook with her and work with his father in Corowa. Mental health notes indicate that he has a history of aggression towards his mother when he is mentally unwell. Prospects of rehabilitation 1. Dr Furst assesses the offender as presently having a medium-high risk of reoffending. In the past, Mr Dobbs has had opportunities to engage in rehabilitation and treatment for his drug dependency issues and offending behaviour. To date, efforts at rehabilitation have been unsuccessful. 2. He has previously undergone treatment for his mental health condition, which included taking of prescribed medication, which he had voluntarily ceased at the time of the offences. He has little insight into his mental health condition. Unsurprisingly, Dr Furst recommends treatment options for Mr Dobbs in the community under the care of a community mental health service with a Community Treatment Order, explaining that more assertive measures are best for those with schizophrenia, addiction problems, and a pattern of recidivism to ensure compliance. Depot preparation rather than orally administered medication is also suggested due to Mr Dobbs' lack of insight into his mental health condition. 3. I have before me a letter from Samuel Dobbs dated 19 April 2022. He tells the Court that he is medicated in custody and is drug-free. He feels much better, and he would like to continue with the treatment recommended when he is released from custody. 4. While I am guarded in making any positive finding with respect to his prospects of rehabilitation, I accept the submissions of Mr Renard, solicitor advocate, that with the right support and treatment options in place, successful rehabilitation is certainly a possibility. Contrition/remorse 1. Mr Dobbs realises how frightening the experience must have been for the victim. He is sorry for his actions and wants to apologise to the victim. He has a developing insight into the seriousness of his offending. I am of the view that he is genuinely remorseful and contrite. COVID-19 1. The impact and restrictions of COVID-19 in the prison environment are multi-faceted. Both appellate and courts of first instance in New South Wales have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including: 1. the suspension of social and family visits: McKinnon v R [2020] NSWCCA 106 at [32] 2. restrictions to movement and subsequent isolation of inmates: R v Tangi (No 12) [2020] NSWSC 547 at [57]-[58]; R v Kelso [2020] NSWDC 157 at [46]. He has spent 36 days in lockdown at Parklea prison and 6 weeks lockdown at Junee. 3. Negative impacts on well-being including stress and anxiety: Valentine [2020] NSWCCA 116. While in the prison setting, he has caught COVID-19. He was transferred from Junee to Silverwater for treatment. He is currently at Junee. 1. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including that work opportunities during the pandemic, when available at all, are limited: DPP v Tennison [2020] VCC 343 at [36]-[39]. Special circumstances 1. Mr Dobbs is 32 years of age. He is a relatively young offender, yet he has already spent a considerable portion of his adult life in custody. His criminal history reflects recidivism in terms of his criminal offending, there is a real risk of institutionalisation: Jackson v R [2010] NSWCCA 162 at [25] 2. Earlier, I made an assessment regarding the offender's prospects of rehabilitation. He will require a substantial level of assistance and support with respect to his mental health treatment and his drug use. It is not necessary for there to be a finding that rehabilitation is likely as opposed to a possibility which would be assisted by a longer non-parole period in order for there to be special circumstances: Thach v R [2018] NSWCCA 252 at [45]. I am so satisfied. 3. In addition, his mental health condition and schizophrenic illness has a considerable impact on this offender's life. I accept that the custodial environment is more onerous for the offender. 4. The Crown concedes that a longer period on parole would be beneficial for this offender, while still satisfying the purposes of sentencing in section 3A of the Crimes (Sentencing Procedure) Act 1999. Taking all those factors into account, I make a significant finding of special circumstances in accordance 44(2) of the Crimes (Sentencing Procedure) Act 1999. Pre-sentence custody 1. The offender was arrested and bail refused for the present offences on 3 June 2021. As I have mentioned previously, he was on parole and an Intensive Correction Order at the time. By virtue of this offending, those orders were revoked by the state parole board on 23 June 2021, and he served the balance of those terms in custody. 2. The Crown submits that the offender has already had the benefit of serving the balance of parole and the Intensive Correction Order concurrently, and that the term I set for this offence should not be wholly concurrent with those. 3. The authorities make clear that the commencement date and degree of concurrency or accumulation of a sentence of imprisonment remains the discretion of the sentencing Judge: Ith v R [2013] NSWCCA 280 at [52]. 4. There should be some degree of accumulation for the Intensive Correction Order and revoked parole. The sentence is to commence from 3 August 2021. Sentence 1. It is clear that the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 is crossed, and no penalty other than one of full-time imprisonment is appropriate. 2. I would commence a head sentence with a starting point of 3 years and 4 months of imprisonment. Compared to the guideline judgment in Henry, it is below the bottom of the undiscounted range. Given the low objective seriousness, including the very low value of the goods stolen, the lack of any physical violence, and the indirect nature of the threat with the meat cleaver presented to the complainant, I am of the view that the circumstances allow me to appropriately depart slightly from the range in the guideline judgment. The circumstances need not be exceptional. 3. Applying the 25% discount to that sentence, the term of imprisonment is 2 years and 6 months. That sentence is to commence on 3 August 2021 and will expire on 2 February 2024. I impose a non-parole period of 1 year and 3 months. I have made a significant finding of special circumstances and vary the non-parole period to be 50% of the head sentence. You will be eligible for parole on 2 November 2022. 4. The report of Dr Richard Furst dated 14 April 2022 is to be forwarded to Justice Health, Corrective Services NSW, Community Corrections, and the Albury Community Mental Health Service to assist with his future management. ********** 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: 28 April 2022