New South Wales District Court CITATION: R v Bittar, Louise [2010] NSWDC 263 HEARING DATE(S): 26/08/10 and 27/08/10 JUDGMENT DATE: 17 September 2010 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted. Pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999 conditional bail granted for the purpose of assessing the offender's capacity and prospects for rehabilitation . CATCHWORDS: Criminal Law - sentencing - attempted arm robbery - female offender - armed with claw hammer - wearing balacalava - demands cash at fast food outlet - off duty security guard apprehends offender - police arrive - thereafter full cooperation with police - acts completed in pursuit of criminal purpose - 25 year old offender - difficult and sometimes traumatic childhood - drug abuse issues - contrition - full time rehabilitation at Guthrie House - importance of rehabilitation - s.11 conditional bail granted. LEGISLATION CITED: Crime (Sentencing Procedure) Act 1999 CASES CITED: Griffiths v The Queen (1977) 137 CLR 293 PARTIES: Regina Louise Bittar FILE NUMBER(S): 2010/64263 COUNSEL: Defence: P Kintominas SOLICITORS: Crown Mr. K Prince JUDGMENT 1. Louise Bittar was committed for sentence on 16 June 2010 from the Burwood Local Court, on a charge that she between 9.50 and 10pm on 12 March 2010, at Greenacre, attempted to rob Hassan El-M Ahad of certain property, to whit Australia currency, the property of Red Rooster Pty Ltd while she was armed with an offensive weapon, namely a claw hammer. 2. The circumstances of that offence were that at about 9.50pm on that date she entered the Red Rooster restaurant, on the Hume Highway at Chullora. She was wearing a black balaclava, blue short jacket, black tracksuit pants and brown shoes. At the time she came into the shop she had a claw hammer in her left hand and a plastic shopping bag in her right. The manager, a 19-year-old, Mr El-M Ahad, noticed her walk in and told his workers to go and lock themselves into the office. As I say, if anyone comes in with a balaclava it does not take Einstein to realise what is about to happen. 3. She approached the front counter where he was standing. He said to her, "What do you want?" She replied, "I want all the cash in the store." The manager replied, "Yes, okay," and opened the till. He began to take the cash out of the registry and at the same time activated the hold-up alarm situated under the counter next to the till. 4. He spoke to her in an attempt to distract her. He said, "Why are doing this for? You're risking yourself over a couple of hundred dollars." The offender replied, "I owe people money and if I don't get it back to them, they're going to kill me." He said, "It's your fault for getting yourself into this." Her response was to raise the hammer towards him, saying, "Give me the money now." He said, "Relax, I don't want any trouble because there are people under age here and I don't want anyone getting hurt. I'm responsible for the people who are working here." She said, "I won't hurt anyone if you give me the money." The manager said, "Well, I'll get you the money. Do you need a bag?" She replied, "No, I've got one." 5. He began handing the money over, but decided he would not give any money to her. He said to her, "I'm not going to give you shit. You are sad, low-life coward. You'll get what you deserve." She again raised the hammer head height towards him and demanded the money. He said, "What are you doing this for? Just leave us and go. There is still time for you to go." 6. One Matthew Atkinson, who is a licensed security guard, was sitting at a table behind the offender, waiting for his food order to arrive. He approached behind her, put his right arm around her neck in a chokehold, reached with his left hand and attempted to grab the hammer and wrestle it from her. He removed the hammer from the offender who was struggling to hang on to it. 7. The manager took possession of the hammer and then went to the front door and locked it, to close off any escape route. Atkinson held her in a chokehold for a few minutes. She struggled, saying "I can't breathe, I can't breathe" - I interpolate, if she was able to talk, she should have been able to breathe. Atkinson loosened his grip upon her, saying, "You can breathe, relax. Stop struggling, take a deep breath." 8. One of the employees grabbed the balaclava, pulled it from her face. It was at this point, for the first time, that Atkinson and I suspect El-M Ahad realised she, the offender, was a woman. Atkinson did not wish to harm her, so he asked her to get on the floor and lie down. She failed to comply with the request and complained further that she was being choked. The request was repeated a number of times, she continued to struggle. 9. He used his right leg to sweep both of hers from under her, causing her to fall to the ground on her stomach. He then detained her in a wrist and leg lock. She was saying, "I want to go, you're hurting me. I want to go." I note for the moment that she had been given that offer some couple of minutes before and had decided not to accept it. 10. The manager assisted Atkinson in detaining her until the police arrived. Their arrival is said to have been a couple of minutes later. Upon their arrival they arrested her. She was handcuffed, placed into the rear of a caged vehicle, conveyed to Bankstown Police Station and the normal procedures after arrest were pursued. While there had been a short struggle to the point of her arrest, it would appear that thereafter she cooperated with the police. She was interviewed in an ERISP and made full and frank admissions, including the following: + That she produced the hammer with the intention of scaring employees to give her money; + However she had no intent of hitting the employees with the hammer or harming them. + She needed money to buy food and support herself; + She stated she had debts to pay and people who were after her and going to kill her; + She told police she had planned the robbery by herself; + She claimed she was assaulted, rather than restrained by the male witness; + When shown the hammer, the balaclava, the plastic shopping bag, the set of car keys located at the scene, she conceded that all items belonged to her. She agreed that the hammer that she was shown was used to scare employees, the balaclava to cover her face and the shopping bag to avoid leaving fingerprints at the scene. 11. As I have already mentioned, she was committed for sentence on 16 June 2010 on the offence currently before me. Objective Seriousness of the Offence 12. In respect of the objective seriousness of the offence, attempts are always measured by the level of success or the closeness to real success that is demonstrated. In the circumstances of this case, when one considers the elements of the offence, namely that she attempted to rob Mr Hassan of certain property, in respect of that, it is fair to say that she had completed all acts necessary to put her in a position to make a demand upon El-M Ahad. 13. A robbery is usually accomplished by the threat of violence and indeed there were threats of violence by way of intimidation, that is the raising of the hammer, or putting a person in fear. I am satisfied that Mr El-M Ahad, simply by his conduct, seemed to me to be a very self-possessed young man, and the level of his fear certainly never reached a point where he was likely to surrender the property of another because his will was overpowered. 14. But that doesn't mean that somebody else in the same position would not have been afraid. But in respect of the attempt, in the circumstances of this case she did not present in such a fearful way as to cause him to fear to such an extent. That does not mean that he was not concerned or alarmed; but it was not a fear that approached the success of having the money handed over. 15. Thus the real criminality appears to be intent, coupled with the steps taken, necessary in the normal course of events, to achieve that intent. The offence is one that would normally require a substantial period of incarceration. It is relevant for the outcome of this matter and I have certainly taken into account that the offender has been in custody since her arrest on 12 March and her custody would now amount to some six months. 16. The question is, what should now happen, whether I should deal with this by way of a sentence or whether I should give the appellant an opportunity to demonstrate that she can rehabilitate and an opportunity to actually engage in activities within a rehabilitation environment so that she can present to court sometime down the track with stronger claims in respect of her capacity to rehabilitate. Subjective Matters 17. The offender was born in 1984 and is now twenty five going on twenty six years of age. She is still a young woman, although that appellation of young may need to be surrendered in the next couple of years. But she is still young enough for a court to be concerned about giving weight to rehabilitation rather than some other outcome. She has given evidence and while I have notes of that evidence and it reflects fairly much the material contained in exhibit 1, I should note that I am impressed with the sincerity of her situation in respect of drugs. 18. She is the youngest of four children with parents who are still together and supportive. Her upbringing was within an environment that she describes as challenging and traumatic, claiming to have been physically and sexually assaulted on occasion by a number of people. Certainly there appears to have been a period of sexual assaults from a period when she was prepubescent, perhaps nine or ten, until into or perhaps even most way through her puberty at thirteen or fourteen, from two sources. I am not suggesting that the on-going assault was perpetrated by both, but rather during that period she came to the attention of two, one apparently a family member and the other apparently a neighbour. 19. Those matters, as was perhaps the way back even in 94, were not really adequately dealt with in an open and therapeutic environment. She became resentful and a child difficult to manage and difficult to direct. Indeed, by the age of fourteen, she had moved from the family home and began to live with a thirty year old, who was supplying her with substances in return for sexual favours. Within that relationship there was physical and sexual abuse. Although she has a strong and close regard for and relationship with her parents, there are still scars, if I can use that word, as a consequence of some physical abuse, I think probably for discipline purposes towards her. It can be degrading in the extreme for a young female to be belted with some sort of strap and in her case across the bottom of her feet. 20. Miss Bittar is and her parents are Lebanese. All came indeed from Lebanon when she was fairly young. I understand the remaining siblings are Australian born. It may be that practices or customs from Lebanon do not translate well here, I would rather hope those sorts of customs [strapping across bottom of feet] do not translate well here. 21. The long and the short of it was and quite predictably she became a drug abuser, in fact a serious drug abuser. There is evidence before me of the extent of it and a poly drug abuser and I have no doubt that the reality was that monies that she was gaining access to were being spent on drugs or on repayment of drug debts. 22. I am satisfied the plea entered was early entered and was early entered for the purposes of demonstrating contrition and a will to reform. I am satisfied that the contrition which has been expressed is a genuine remorse and that it demonstrates some genuine insight into the impact this kind of offending can have on others. 23. I am satisfied that while there may be relevant drug and alcohol programs in prison, they are in the normal course of events programs that can be achieved within a day or two or three, or lectures for a day, a week over a period of three or six weeks. When one is dealing with entrenched drug use that has been ongoing since, say fifteen to twenty-seven, a twelve year period, that is like dealing with Ayres Rock by trying to dust it with a feather. Frankly it is just totally inadequate. 24. The result is, of course as the figures show, that notwithstanding the good work tried by people in gaol to rehabilitate, recidivism is in the order of better than 50% and breach of parole is in the order of better than 60%. That is because the programs [offered in goal] do not have a long lasting effect. I am satisfied that the best way to advance this rehabilitation is by requiring the appellant to do full time rehabilitation pursuant to the concept of compulsory rehabilitation so named by Barwick in the Griffith case [Griffiths v The Queen (1977) 137 CLR 293]. The way that compulsion is achieved is by the setting of s 11 Crime (Sentencing Procedure) Act 1999 bail terms. That as I say gives to the appellant an opportunity to demonstrate she can rehabilitate and an opportunity to rehabilitate. 25. I have before me a letter to confirm that she will be admitted to Guthrie House on 20 September providing arrangements can be made and that staff from Guthrie House will collect her from Dillwynia Correctional Centre which is out at Richmond and escort her from there directly to Guthrie House. It is a community based residential and transition service for women involved in the New South Wales Criminal Justice System. It is in the normal course of events a three month in length program and provides services including: residential accommodation for women; twenty-four hour support and supervision; welfare support services including case management; drug and alcohol assessment and counselling; group work and living skills training; information and education sessions; some recreation, I understand supervised; will make reports available to the Court and reports for DOCS case conferences, which I do not think are necessary in this case; and assistance with appropriate post discharge accommodation. 26. In those circumstances, that is at least an important start, depending upon how the appellant progresses. Further conditions may be added to her bail, particularly once she is approaching the post discharge from Guthrie House situation, concerned with training or work or community service of some kind and on going drug rehabilitation within the community through perhaps a hospital in-house drug service. 27. I should note that the prosecution no doubt conscious that the appellant had only spent six months in custody was opposed to the granting of a s11 bail. In arguments advanced to me by Mr Kintominas, a forceful case was made including long term drug addiction, the nexus between drug abuse and adult men older than herself sexually assaulting her. 28. This was the first offence of its kind by her. That rehabilitation in custody is not a guarantee that she will be rehabilitated when she comes outside. The advantage of having professionals in the community deal with her, that the needs for personal and general deterrence can be served by way of a sentence that ultimately might be suspended, particularly bearing in mind the time that she has already served, and that she can seek assistance in respect of her psychological needs and issues [seems compelling]. 29. The bail is conditional pursuant to s 11 for a period of at least nine months from today, the theory being three months in Guthrie House and six months working in the community and demonstrating a capacity to and an involvement in rehabilitation, and then if all worked out well I would seriously consider a suspended sentence as I have been asked to do. Bail may be granted by the Governor of Dillwynia or his or her delegate, conditional upon the following conditions: + That an identified representative of Guthrie House be willing to take the appellant from Dillwynia directly to Guthrie House for admission into Guthrie House for its therapeutic program. + During the bail the offender will be of good behaviour. + She will reside at Guthrie House or at any place directed by her case manager with Guthrie House until she is discharged from Guthrie House. + She will accept supervision by Probation and Parole and accept all reasonable directions from her case manager. Have I evidence from the parents that they will have her at the home? KINTOMINAS: In fact the brother gave evidence that he had spoken to his father and other members of the family including somebody that had been at loggerheads with her and they want her back at the family house. HIS HONOUR: + She will reside upon discharge from Guthrie House at A--- Street Yagoona or such other premises as she and the case manager with Probation and Parole determine. + She is to abstain from the consumption of alcoholic beverages for the duration of the bail period; she is to abstain from the consumption of illicit drugs for the duration of the bail period. + She is to submit to random breath tests and urine tests as conducted or directed by Guthrie House and/or her Probation and Parole case manager for the purpose of detecting the presence of alcohol or illicit drugs in her urine. Refusal to participate in the drug tests will be deemed a breach of bail, any dirty drug test will be deemed a breach of bail, the supply of any third party's urine will obviously be deemed to be a refusal to participate in a drug test and be deemed a breach of bail. + Upon release unless otherwise directed by Probation and Parole, she is to find and attend the local Alcoholics Anonymous three times or Narcotics Anonymous, one or other, three times weekly. + She is to attend all meetings, programs and counselling required by her case manager, she is to attend court at all times required by the court to report progress made during the rehabilitation in respect of both the issues that I am concerned about. That is what she has done about taking the opportunity and what progress she has actually made in advancing her rehabilitation. 30. When next I see her or when she begins to look elsewhere we will start to consider matters such as employment or employment training or some sort of community based activity, either through sport or a charitable organisation or a church group or whatever, mowing people's lawns, I do not mind much what it is, so long it is putting you out there in the community, meeting people who are not drug addicts or drug suppliers. 31. At each of the court appearances the responsibility of providing proof other than oral evidence from her, rests with her. In other words, if you have done random urine I would expect that to be reported by Probation and Parole. If you want to tell me that you have been working somewhere, I will need a pay slip, if you want to be working with a community activity, St Vincent de Paul or some other mob, then I need some proof of that. I am an old cynic and I do not usually believe off hand what drug addicts tell me, call me a cynic. 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