New South Wales District Court CITATION: Regina v Mathew Nathan Loria [2006] NSWDC 16 HEARING DATE(S): 6/4/2006 JUDGMENT DATE: 12 May 2006 JUDGMENT OF: Finnane QC DCJ DECISION: Because of the factors I have enunciated, I propose to have him assessed for home detention. I direct that he reports to the officer in charge of the Probation and Parole Service at the City District Office within one week of today, and I direct that he be assessed for home detention.; I stand over further hearing of this matter until a date to be fixed. CATCHWORDS: plea of guilty - mitigating factors - previous good character - attempted robbery - amphetamine - use of methamphetamine ("ice") - contrition - plea of guilty - psychotic state at time of committing offence - home detention - sentence LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v. Henry (1999 46 NSWLR 149) PARTIES: Regina Mathew Nathan Loria FILE NUMBER(S): 06/11/0037 COUNSEL: Mr M J Neil Q.C. with Mr W J Wilcher (Offender) SOLICITORS: Mr Labrum (NSW DPP) SENTENCE Introduction. 1 Every so often a case comes before me, which I can class properly as an exceptional one. This is one such case. The facts are so unusual that I would think it is most unlikely that I will ever encounter such a case again. 2 The offender, Matthew Nathan Loria is a 34-year-old man of good character. He is married to a radio presenter, who is the mother of their child, and he is the stepfather of her child. He is a qualified chef and an instructor in surfing. But for the facts that bringing before the court, he would be regarded by all persons as someone to emulate. 3 He has saved the life of a woman, he cares for his wife and family, is a well regarded employee and he has undertaken drug rehabilitation and aims to conduct the group to assist others with drug problems. 4 At 4:05 p.m. on the 27th of February 2005, he involved himself, in a most peculiar fashion in attempting to rob a cashier in the casino area of the Bondi hotel. What was peculiar is five fold: (a) He was wearing a mask and carrying a silver toy pistol. (b) He demanded money, but walked away without seriously attempting to get any. (c) He was a man of good character and had no need of money. (d) He had smoked earlier on that day large quantities of methamphetamine ("ice"). (e) He was not normally a consumer of amphetamines. 5 What happened to turn this exemplary member of the community into a would be robber lay in his consumption of methamphetamine from early in the morning of the day of the robbery in company with a friend, so that they could watch the England-Australia, test cricket on television. 6 For reasons which will appear later in this judgment, I accept that he had never previously smoked methamphetamine and had no idea what effect it could have other than the effect of keeping him awake, so that he could watch the cricket. His friend knew something of its likely effects, but did not tell him and that friend was quite shocked later in the day when he himself became quite ill on a building site. 7 The drug, which they consumed, popularly known as ""ice"", is one of the most dangerous drugs currently being distributed in Australia. It is clearly an extremely dangerous drug, which heightens the senses and can lead to the development of amphetamine psychosis, something which closely resembles schizophrenia. Wide publicity should be given to the dangers of using this drug. It is now, apparently readily available. The public needs to be aware that use of this drug can lead to consequences, which are quite unforeseen. 8 That is what happened in this case. The case also makes clear that quite respectable members of the community, holding down good jobs, can see it as perfectly normal and acceptable to purchase dangerous prohibited drugs such as "ice". Law enforcement attempts to eliminate the sale of this drug are thwarted frequently by the actions of apparently normal respectable people. Facts. 9 The offender who is 35 years old is married to Melissa Bampton, a radio broadcaster, who went to Byron Bay on about the 20th of July 2005 to do a broadcast. She arranged two tickets to be provided so that he and a friend could go to an establishment known as the Metro. On the evening of the 21st of July, the offender, and his friend, Andrew Cook met and went to the Metro. They stayed there for some hours and then went to a house in Erskineville. Mr Cook, a builder, purchased some "ice" and provided a pipe in which to smoke it. Both men then smoked the drug, each of them smoking at least six pipes, full of "ice". Thereafter the two of them at about 3:30 a.m. went to the offender's house in Woollahra, and each smoked two to three pipes more each. 10 I based the chronology so far on the evidence of Melissa Bampton and Andrew Cook. I accept both witnesses as being truthful and reliable. The offender himself appeared to have only a vague recollection of what occurred on the night of the 21st of July 2005 and gave a version to the police, which was not entirely correct. However, I accept the evidence of Mr Cook as being correct. 11 Mr Cook had smoked ice before, and knew of its likely effects. The offender, some years before had used "ice" in a small quantity, but as I understand it, had not smoked it. He did not know of its likely effects. It was his belief that if he smoked this drug, he would be able to stay awake, and watch the cricket on television. 12 Neither Mr Cook nor the offender could explain why they smoked more of this drug, when they were back in the offender's home in Woollahra. Later that morning, Mr Cook went to work on a building site, became ill and went home. He had not expected that he would become ill. 13 What the offender did after Mr Cook left was really quite extraordinary. He dropped his five-year-old stepdaughter to school at about 9 a.m. and late in the afternoon, about 6 p.m. he smoked some marijuana. Between those times, he went for a swim and then went to Chinatown where he purchased a toy pistol. He then went back to his own house, and made a mask. He then drove by car to Bondi, and at about 4.05 pm, he entered the casino area at the Bondi hotel. He approached a cashier having first pulled his disguise over his face. He said to the cashier: "give me the money." The cashier said: " mate, I don't have the key to give you the money". The demand, "give me the money." was twice more repeated and the offender then ran out of the door. 14 The cashier alerted his manager to what had happened, and a number of bystanders in the street commenced to chase him. One of those bystanders was Mr Gavan Baker, who chased him down the street and caught him. When he caught him, Mr Baker said to him: "mate, you're not going anywhere." The offender said: "I can't believe I did that; that was just so stupid. I don't know what I was thinking. I can't believe I did that, I can't believe I did that. Another man, Mr James Castle came upon the offender, and Mr Baker. The offender pulled up his shirt, revealing that he had a pistol, and he then moved away from the other men. They let him go, because they thought that the pistol might be a real one. 15 At about 7.15 that night, police arrested the offender in Maroubra. Initially, he denied anything to do with the robbery but did not object to police searching his vehicle and accompanied them to the police station without any struggle. Later that night, a full search was conducted at his premises. 16 On the same day, at about 8:30 p.m., he told a police inspector at the police station that he had some crystal meth cocaine "this afternoon, and it has just wasted me. You know what happens when someone offers you something. I don't normally do that. I've got a baby you know. I was just wasted, and I didn't know what I was doing. I went into the hotel with a gun. It was a toy gun I didn't mean any harm, I just did it. I don't know why." He also claimed that he did not get any money and that he still did not know what he was doing. He told the inspector that the toy gun was at his house and agreed that the police could search his house. He was present when that search was conducted. The pistol and the mask were recovered in the house. 17 At 9:10 p.m. that night. Police conducted a record of interview with him, in which he admitted the attempted robbery. In the course of the interview, he told the police of his watching the cricket with a friend the night before, and of his smoking of "ice", but he did not name his friend and he did not tell the police that he had smoked the ice on two separate occasions on that night. He expressed his regret and his remorse to the police. He also expressed how he was in an agitated state, following his smoking of the ice and how he went swimming to calm himself down. He expressed his sense of dismay at what happened. 18 The teller whom he approached, Hasan Mahmudul, made a statement in which he expressed his belief at the time of the attempted robbery that the gun was a real one, that he feared for his safety and that he feared he might have been shot. A couple of female patrons of the casino became aware of the attempted armed robbery, and were a little frightened. No one was threatened by any words, and no one was injured. 19 Clearly enough, the offender engaged in some planning in that he made a mask and went to Chinatown and bought a toy gun. I listened carefully to the evidence of the offender, to try and ascertain whether he was able to explain what was in his mind at the time he committed the attempted robbery. He said nothing directly about what was in his mind. What he said to Mr Baker and then later to the police inspector, was of some significance. In my opinion, that evidence enables me to draw the conclusion that his mind was confused at the time he involved himself in this crime. Clearly, however, he was able to plan to some extent, and to reason. 20 He has given evidence, which I accept, that he was earning a reasonable income as a chef and a surfing instructor. His evidence in this regard is supported by his wife and by Mr Matthew Grainger, who employed him as a surfing instructor. His wife also earns a quite satisfactory income. They do not need money. I am satisfied that money was not the motivation for this rather bizarre attempted robbery, even though he demanded money, wore a mask and carried a toy gun. 21 When the police arrested him, he acted in a cooperative manner, although he did not tell them the full story. He gave evidence before me that he did not wish to implicate Mr Cook. However, Mr Cook came to give evidence on his behalf and admitted his own use of the drug on the 21st of July 2005. Although he made this admission only after I granted him a certificate under section 128 of the Evidence Act, 1995, it says much for his friendship with Mr Loria, that he was prepared to speak publicly about these matters. Subjective matters. 22 The offender until he became involved in this offence had led a blameless life, except, perhaps, for the fact that from time to time, he was a user of marijuana and some drugs such as ecstasy. As I earlier remarked, there are many normally responsible members of the community, who consider it is their personal right to use illegal drugs. Some years ago, evidence at the Royal Commission into the New South Wales Police Service disclosed that there were a significant number of young police officers, who considered it perfectly normal that they should use ecstasy when at social functions away from work. Otherwise, they were apparently responsible police officers. Unfortunately, this attitude of entitlement to use illegal drugs, seems quite common. 23 However, his use of drugs, did not lead to his arrest at any time for any offence, and at all times, he pursued lawful occupations. He was a trained chef, and achieved this status after doing an apprenticeship. Enquiries by the Probation and Parole Service reveal that he was well regarded by his employers. For some years, he owned and operated a cafe in Balmain, with a girlfriend, with whom he lived at the time. They sold this business, and then split up. He then became an instructor at a surf school on the northern peninsula of Sydney. His employer, Mr Matthew Grainger gave evidence strongly supportive of him. The offender is the manager of the business and Mr Grainger relies on him. 24 Mr Grainger described him as being an excellent communicator, who cares a lot, as being gentle and quietly spoken. The offender manages eight to 12 staff and coordinates the movement of trucks and other vehicles to transport students to beaches on the northern peninsula. Many of his students are school children, some from country schools, some are disadvantaged, and some live locally. The Surf School is involved with charitable work, and during the Asian tsunami, Mr Loria became a major collector of money for tsunami victims. Mr Grainger has never known him to be aggressive or violent. Mr Grainger is aware of the charge and considers that what he did is entirely out of character. He has spoken to Mr Loria and told him that he cannot work at the school, if he takes drugs. Mr Loria is remorseful, according to Mr Grainger. 25 One of the more remarkable things, which Mr Loria did was to rescue Mrs Christine Frost. Mrs Frost was surfing when the fin of her surfboard slashed the femoral artery on one of her legs. She was in the water some distance from shore with blood streaming from her, when Mr Loria saw her distress, swam out to her and rescued her. She considers that he saved her life. Mr Grainger supported her view of the matter. As I understand it, the blood in the water could well have indicated a shark attack and thus, his rescue of her was very brave, as he could well have been exposing himself to shark attack. Mr Grainger will continue to employ him. Mr Loria has part-time employment as a chef, an occupation which he follows at nighttime and during winter, when the Surf School does not have many students. 26 Melissa Bampton, the wife of the offender gave evidence that she met him in July 2002 at the Metro Theatre. At the time, she was the sole parent provider for a young girl. She married the offender, five months after meeting him, and they now have a three-month-old boy. She said that they both had a joint bank account and earned good money in each of their respective occupations. As I indicated earlier, she is a radio presenter. When she was told by a telephone call that he was in trouble, she rang from Byron Bay and spoke to the police. What they told her astounded her, since before this time, he was very responsible, and looked after her daughter. She described in as being someone of even temperament. He was not violent, and was thoughtful. 27 In her opinion, attempted robbery was not consistent with his character. When she was young, she had experimented with marijuana, and she knew that he had used marijuana, but she did not approve of marijuana usage and told him so. She is now aware of his rehabilitation attempts, and she is prepared to assist him with that. 28 Mrs Ali Loria, the mother of the offender gave evidence. According to her, the offender was the youngest of three sons. He looked different to the others and was a bit of an outsider. At school he showed an interest in cooking, but was not as interested as they were in intellectual pursuits. From an early age, he wanted to be a chef and was artistic. All three sons were cricket fanatics. He is hard-working and she could not understand how he became involved in taking drugs. She was stunned when she found that he had been arrested for attempted armed robbery. She said that he was not financially driven or materialistic. She and her family would continue to support him. 29 All of these witnesses were very impressive, and I accept them all as being witnesses of truth and reliable witnesses. 30 Many of these facts are also canvassed in brief form in the Probation and Parole report. The probation officer, expresses his views as follows: "Mr Loria is a person who would not normally be expected to be before the court for an offence of this nature. He presents as a good husband and father, a responsible, hard-working employee and is generally liked by those who know him. He has no history of aggressive or violent actions, and his offences would appear to be out of character. His use of a drug known to encourage bizarre and sometimes aggressive behaviour remains the only obvious factor in contributing to an explanation of what occurred." 31 In my experience, it is rare for a probation and parole officer to express such a positive opinion of someone sent to him for assessment. I place considerable reliance on this opinion. 32 The probation officer has also assessed him as being suitable for a medium low level of intervention focusing on programs to support his stated commitment to remain drug-free. He has been assessed as suitable for community service and suitable for periodic detention. 33 The offender gave evidence and impressed me as a truthful man. I accept that he has little clear recollection of the circumstances of this offence. The. He told me that he has kept free of all drugs since this incident and some urinalysis tests were produced to support this claim. He has also. He has voluntarily attended St Vincent's Hospital, alcohol and drug service since October 2005 and has taken part in what are called SMART recovery groups. The program is well explained in a report from the senior psychologist at the hospital, Rosara Squirchuk. According to her, he has attended the recovery groups on a weekly basis since December 2005 and is now well aware of the ramifications of his use of crystal methamphetamine. He has stated that had he known of the pain and the hurt that it was going to cause others, he would never have consumed the drug. He has also expressed remorse and said that he has not used any illicit substances since the incident, and it is her opinion that it is unlikely that he will re-offend if he completely abstains from the use of crystal methamphetamine. 34 In the last six months he has progressed to such an extent that he is now a co -facilitator of the group. Expert opinion. a) Professor Graham Starmer. 35 Professor Starmer is a well-known and well-accepted expert witness. He is a pharmacologist. Sufficient of the facts were put before Professor Starmer to apprise him of what occurred on the day of the incident. He expressed an opinion that the drug taken, since it was smoked, would have produced an effect of euphoria, very quickly, and could well have been an overdose. The smoking causes the drug to be absorbed very quickly through the lungs into the blood system. 36 With amphetamine overdose, nervous system signs include restlessness, insomnia, sleep disturbance and violence and the drug can cause a manic psychosis similar to paranoid schizophrenia. Indeed, that is its most dramatic effect. Professor Starmer could not express an opinion about intent. b) Dr Julian Parmegiani. 37 Dr Julian Parmegiani is a well-known psychiatrist. Mr Loria spoke to Dr Parmegiani, who was also provided with other material in writing. Dr Parmegiani set out in his report of the 30th of March 2006, the facts as they were put to him by the offender. Apparently some of these facts were reconstructed by Mr Loria from information given to him after his arrest. 38 There was no psychiatric explanation for his memory loss, or confusion. Dr Parmegiani explained in some detail how a stimulant can cause euphoria, which can then progress to a manic state during which a person affected will behave in a disorganised and chaotic fashion. In the extreme, persons develop delusions and hallucinations. They often act in a grandiose fashion and visual or auditory hallucinations can occur. This can result in the person being in a psychotic state. However, in his opinion, there was no evidence to suggest that Mr Loria was in a psychotic state at the time of the attempted robbery. 39 In his opinion, it could not be said that Mr Loria lacked the will to commit a robbery. Dr Parmegiani did not have any certainty that methamphetamine played a significant role in what occurred subsequently. He also expressed the view that people like Mr Loria do not fare well, after lengthy custodial sentences. 40 I have considered these two reports. It is not easy to reconcile the opinions expressed in the two reports, but in my opinion I am properly able to conclude with some certainty that methamphetamine could have caused Mr Loria to suffer a manic psychosis. That does not mean that he did not have the will to commit the offence, nor that he lacked the intent to commit the offence. What it means, however, is that his mental processes were disordered at the time of the attempted robbery. Sentencing considerations. 41 Most attempted armed robberies are perpetrated by persons seeking to obtain money for the purchase of illegal drugs. Most of them are carried out against vulnerable people, such as cashiers, shopkeepers and taxi drivers. Very often, what is sought is comparatively small in value. Less frequently, armed robberies and attempted armed robberies are carried out by a well organised individual or by groups who are seeking to obtain large sums of cash or items such as valuable jewellery. 42 The prevalence of armed robberies in the late 90s, was such that in 1999 the Court of Criminal Appeal in Regina v. Henry (1999 46 NSWLR 149), laid down a guideline that a full term sentence of between four and five years was warranted in cases involving seven characteristics. The present case, has some but not all of those characteristics. It involves a man with no criminal record, who was not carrying a weapon capable of killing or inflicting serious injury, who engaged in a limited degree of planning, whose actions involved no violence, but an implied threat of violence, whose victim was vulnerable and who pleaded guilty in circumstances where there was a strong Crown case. 43 In my opinion, the facts, entitle me to come to the conclusion that although the cashier and those around him were initially concerned for their safety, they very quickly realised that this was not a serious robbery attempt. There is no suggestion that any of them have suffered any harm of any kind. No money was taken and the offender did not remain in the premises long enough to take any. When first apprehended by one of the bystanders, he expressed his regrets in a confused type of way. When the police arrested him, he did not attempt to hide his guilt and made it possible for them to search his premises. 44 Whatever may have been in his mind, I am satisfied that he did not engage in this activity for the purpose of obtaining money since he did not need any money. It is not really possible to determine what was in his mind at the time. In my opinion, he was probably suffering some form of amphetamine psychosis. 45 I accept that he did not know when taking this drug that this was a likely consequence. Many times, it is urged before me that a particular person was not entirely responsible, because he was under the influence of drugs, which he had voluntarily consumed. In the case of someone who regularly consumed that type of drug my inevitable answer is that if he consumed it, knowing what it could do, he cannot be heard to complain about it. 46 This offender, on the evidence before me, had no experience of smoking this drug, and no way of knowing what it could do to him. In that circumstance, I consider that I am entitled to accept that had he known, what could have happened, that is, that he might become psychotic, he would not have consumed the drug. 47 Guideline judgments are not meant to lay down in a rigidly prescriptive manner sentences that must be imposed by courts for particular offences, notwithstanding the circumstances. In extraordinary circumstances or exceptional circumstances, it is clear that a court can properly take a different course to the course suggested in the guideline judgment. 48 In the present case, I place a lot of store on the fact that the offender indicated from even before his arrest that he knew what he had done was wrong and when arrested, admitted what he did. He is a man of good character, he is attempting to do something about his drug problem and it is most improbable that he would ever commit a serious offence again. 49 I must give appropriate weight to the objective seriousness of the offence, the needs of general and specific deterrence, retribution and rehabilitation. In my opinion, this offence must be met with a sentence of imprisonment, but one, which is very much reduced below the level in the guideline judgment. 50 This is a case in which I find special circumstances. The basis for finding those special circumstances has already been made clear. I also extend to him the maximum discount on sentence allowable for an early plea of guilty. 51 In my opinion, taking into account all objective and subjective factors, I should impose on the offender a sentence of imprisonment of 18 months with a non parole period of 9 months. 52 I must then turn my attention to the type of imprisonment, which should be served. The Crown has properly conceded that what the offender did was out of character, and that normally, he could be regarded as an admirable character. The Crown has contended, however, that this is not a case where exceptional circumstances have been made out. Consequently, the offender should receive a sentence of full-time imprisonment. Mr Maurice Neil, QC, senior counsel for the offender has put to me that this is a case where exceptional circumstances have been made out and that imprisonment otherwise than on a full-time basis was justified. 53 I have considered those arguments, and after reflecting carefully on them. I have come to the conclusion that I am entitled to impose a sentence of imprisonment, which is one that does not require full-time imprisonment. Mr Neil urged upon me that I consider imposing a suspended sentence or home detention or periodic detention. 54 Of these three options. I am most attracted to home detention, because the probation and parole officers, who engage in this program, work intensively with the offender to get him to change attitudes and to live a normal law-abiding life. At the conclusion of the sentence, a report is submitted to the judge. I have seen a number of such reports, and I have been very impressed by the degree of rehabilitation achieved. Another feature of this sentence is that a band is placed on one of the legs or the arms of the offender and his movements are controlled by the Probation and Parole officer who, from time to time, checks that the offender is in the place that is authorised at the time. Alcohol consumption is prohibited and regular urinalysis testing is required of those with drug problems. 55 Thus, the offender's life is subject to considerable restrictions, which is a severe punishment, but he is given regular counselling and he is able to support his family. 56 A suspended sentence is also a punishment of some severity, but the offender's movements are not restricted and the daily reminder of punishment is not there. 57 I have also given consideration to whether a sentence of periodic detention should be imposed. It is a sentence, which is available, and if it were the only alternative possible to a sentence of full-time custody, I would impose it. However, in my opinion, it is not as desirable a sentence as a sentence of home detention, because it would interfere significantly with the offender's ability to carry out his work as a surfing instructor and, in practice, it is not directed as much towards rehabilitation, as is a sentence of home detention. Furthermore, in some respects, a sentence of home detention is harsher than that of periodic detention, since the movements of the offender are restricted daily and not just for two days of the week. 58 It is not possible to impose a sentence of home detention on someone who has committed armed robbery. (See crimes (Sentencing Procedure) Act, 1999, s.76). 59 Mr Neil submitted that I could impose this sentence, because the offender was not charged with armed robbery, but with assault with intent to rob, whilst being armed with an offensive weapon. (See Crimes Act, 1900, sec 97(1). This Section of the Crimes Act deals both with armed robbery and assault with intent to rob. The same penalty is provided, but a distinction is made between the two crimes. I agree with this submission. In my opinion, home detention can be imposed for the offence charged against the offender. Clearly enough, it should be imposed for this offence only in very unusual circumstances. 60 Because of the factors I have enunciated, I propose to have him assessed for home detention. I direct that he reports to the officer in charge of the Probation and Parole Service at the City District Office within one week of today, and I direct that he be assessed for home detention. 61 I stand over further hearing of this matter until a date to be fixed. ********** 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.