New South Wales District Court CITATION: Regina v David Rosser [2006] NSWDC 107 HEARING DATE(S): 31/10/06 JUDGMENT DATE: 3 November 2006 JUDGMENT OF: Nicholson SC DCJ DECISION: Sentenced - NPP 22 Mths to date from 7 July 2006 and expire 6 May 2008. Balance of term - 5mths to expire 6 October 2008.; Referred to Drug Court for Compulsory Drug Rehabilitation Program. CATCHWORDS: Criminal Law - Sentence - Assault with intent to rob whilst armed with offensive weapon - released from sentence custody two days prior - sentenced - more than 18 months NPP - referral to compulsory drug treatment program for sentenced prisoners. PARTIES: Regina David Rosser (Offender) FILE NUMBER(S): 06/21/0304 SOLICITORS: MS HALL (Offender) MS ROBERTS (Crown) JUDGMENT 1 HIS HONOUR: David Rosser had been released from prison on 5 July 2006. He had just finished serving four months imprisonment for driving whilst disqualified. It would seem his major priority on release was to consume drugs. He spent the night of 6 July, as best I can tell, at Forster House, a half way rehabilitation place with only fifty cents to his name. It would seem he did not get a good night sleep. He caught a train the following morning to Burwood. He did not pay for the ticket. He once had a friend in Burwood, but it seems he never intended to meet up with him. 2 He walked around trying to think of a way to get money. He reached a newsagency in Concord East. He saw a sign saying "Lotteries". There were two insulin syringed needles in his bum bag. He told police, and I accept it as an accurate account, "It all happened so fast, I didn't plan on doing it really until I was out the front of the shop, but then five minutes later, you know what I mean, not even that, I'm running down the road. So it all happened really fast, probably about one minute." 3 In that short space of one minute, armed with a needle in his fist, he sought to rob a 59 year old Shopkeeper. Today he answers for his criminal conduct of assaulting that shopkeeper with intent to rob him whilst armed with an offensive weapon. 4 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, confronting this victim in this community, see R v Gladue, [1999] 1 SCR, 688 at [81]. 5 My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender (subjective matters). The starting point for such assessments requires me to make findings of fact from evidence before the Court relating to the offence, and to the offender. 6 The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, the non parole period and ultimately the balance of term. 7 None of these can be determined until the primary facts have been found. What weight will need to be given to all of these matters against the imperative that sentencing should have as its primary focus, the protection of the community will also need to be determined, see R v Cuthbert, R v Rushby, R v Hayes. Facts 8 The account given by the offender differs little from the account given by the shopkeeper. I rely upon the shopkeeper's account for the purposes of sentencing. It was about 10.30am, the shopkeeper was standing behind the counter when the offender entered the store. He was wearing a dark blue fleecy hooded jumper with a zip down the front. He had a hood over his head. "He looked at some newspapers and then turned to me with a syringe in his hand. The needle in the syringe was pointing towards me. He said 'Give me some money, I'm not mucking around, I'll stick it in you". 9 David Rosser pointed that syringe at the shopkeeper, it was about a metre from him. The shopkeeper felt frightened. He was afraid he may be jabbed with the needle. He continues his account, "I reached down to near the cash drawer and pulled out a piece of half inch metal water pipe which I keep for self defence. This metal pole is about 40 centimetres in length. I raised the pole above my shoulders so that the male would see I had it. Almost immediately the male ran from my newsagency and headed north on Burwood Road towards Parramatta Road. I ran after him and yelled out "Get him, get him", and "stop him". After about 50 metres, a young guy ran across Burwood Road and helped me chase the male." The shopkeeper continues that he ran out of breath, not surprising for a 59 year old man, and the young person continued the chase. 10 Rosser was ultimately arrested and took part in the interview. Questioned at the time of his arrest, he said to the police "What do you want me to say? I did it all right; you happy?" 11 From the outset though, notwithstanding that his tone may not have been other than angry there, he co-operated with the police. He participated in a full and frank record of interview. He told police he went to rob the shopkeeper who was on his own, (Q & A 87) but because the shopkeeper resisted, he ran away. (Q & A 31). The needle was new, a new one just out of its packet. (Q &A 43 to 44). He held the needle towards the shopkeeper for two to three seconds. (Q & A 180). That was the first time he had done anything like that. He did not intend to hurt anyone. (Q & A 50, 51). 12 I am satisfied his motive for committing this offence was to obtain money for drugs. He has a record, including offences of dishonesty, to which I shall come later. 13 There are answers given in the record of interview which give an insight into his depression and despair that disclose that unhelpfully rationalised without reason, the acts that he was about to undertake (Q & A 84). Question: "What did you do between the time you got off at Burwood railway station to when you went to this particular shop at 16 Burwood Road?". Answer: "I walked up the hill trying to think of a way to get money, so I'd have some money, and then by the time I reached the shop, that's all I could think about doing" (Q & A 152 to 159). Question: "Prior to speaking to the police this morning, had you taken any substances?". Answer: "Yes". Question: "What did you take?". Answer: "Speed base". Question: "How did that affect you?" Answer: "Pretty hectic". Question: "When you say 'pretty hectic' what do you mean?". Answer: "Oh, turned into a really different person, I wasn't thinking about ...you know, I wish I didn't do it, but it's too late for that". Question: "Do you normally take speed base?". Answer: "Yeah". Question: "Does it normally have the same effect upon you when you take it?". Answer: "No, this is the first time I've done it, tried to rob somebody, it's just gotten too much for me lately with drugs. I think having going to prison had an effect as well. Going to prison had a bad effect on me. [Who] gives a fuck, you know what I mean?" (Q & A 178, 179). Question: "Did anyone pressure you to do what you did this morning? Answer: "Just drugs have done it to me, but no one agrees with me, you know, I don't even understand it. Things in my head, why I did it, I don't understand it and why I did it really just..." Objective criminality 14 From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in this instant case with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. The "objective criminality" has an important impact upon the overall sentencing outcome. 15 The criminality of robbery centres around the offender's willingness to use force to overawe the will of another person so that that other person will surrender his goods. It is an offence of violence towards the victim combined with thieving from the victim, his goods. Therefore, it is an offence against the person and also an offence against his property. 16 David Rosser chose as the means of the force he would use, a syringe needle. I am satisfied he being a drug addict, well understood a needle presented to a victim in such circumstances would almost invariably strike fear of possibility of contracting HIV, Aids, Hep C or some other needle related injury. Even though his needle was clean, David Rosser was prepared to play upon his victim's fears to overawe the will of this 59 year old man. 17 As events turned out, he failed to overawe the victim. But the victim records that when the offender made the demand, coupled with the threat of sticking the needle into him, he felt frightened. 18 The offender's motives were drug related. He was not, however, withdrawing from drugs, nor was he "hanging out", nor has he satisfied me that he was in an addictive stage of drugs. He had only been released from prisoner two days earlier. It is unlikely during the four months imprisonment he was daily abusing drugs. 19 Doing the best I can to ascertain his situation, it appears he was, in the two days of his release, on a drug bingeing spree. It is likely he was suffering at some level the effect of the amphetamine based drug he was taking as illustrated in the quotes that I have taken from the record of interview. 20 As I say, his drug induced state allowed him or enabled him to rationalise what was otherwise irrational. There was no planning, indeed, the offence on this particular shop was impulsive, although he had been deliberating on ways of getting money. His victim was alone in the shop, and in that sense was vulnerable. His demand was uttered but once, thereafter he fled as the shopkeeper took steps to defend himself and apprehend the offender. I doubt that he was confronting the victim for more than ten or fifteen seconds. He was working alone. None others were involved at any level in this enterprise. 21 At the time of the offence, he was on a bond to be of good behaviour for eighteen months. The Court takes a view that when it, through trusting an offender, releases that offender on bail, parole or a bond, any subsequent offence that the offender commits is a breach of that trust by the Court. Consequently the objective criminality of the newly committed offence that brings him to the Court is increased because of that breach of trust, or abuse, if you will, of his conditional liberty. 22 Just in passing, it might be noted that his commission of the offence within two days makes plain a fact well known to many in the community that imprisonment does not always achieve the personal deterrence that it was aimed to achieve. 23 I have had regard to the matters of aggravation enumerated in s 21A of the Crimes (Sentencing Procedure) Act, I have sought to deal with all matters of aggravation in my reliance upon the common law, and the relevant factors of aggravation in assessing the objective criminality. This is not a case where I would regard factors of aggravation being so prominent as to require them to be considered anew by reliance upon the statutory provisions contained in s 21A. Subjective matters 24 The offender did not give evidence. The evidence comes from his father who did give evidence, his record of interview and reports from Doctor Neilssen, a forensic psychiatrist, and Peter Ashkar, a forensic pathologist. In these circumstances, much of the material has not been available for testing by cross-examination. I recognise the offender's opportunity to advance untested self serving propositions. Further, propositions that I am disposed to accept, will not have been fleshed out by him in evidence. Given I regard him as having co-operated with the two expert witnesses, both of whom are experienced, and the police, I am prepared to accept and make findings of fact as best I can from most of the material before me. Family background and social dynamics 25 David Rosser is a 28 year old single man, indeed, it would appear he is a bit of a loner. His parents separated when he was aged three and he spent his early years living with his mother in East Balmain before moving to live with his maternal grandparents in Forster at the age of 11. He had, he said to Doctor Neilssen a fornesic psychiatrist, little contact with his father during his upbringing. However, it would seem in more recent times his father has made contact and visits him regularly in gaol. He has a sister who is two years younger than him. His father is a teacher and his mother worked as a secretary. 26 He left home, which I understand to mean his grandmother's, at the age of 17, and moved, it would seem, from Forster to Newcastle to live with friends and experiment with illicit substances. He has never married and has never lived in a defacto relationship. He does have a two year old son from a relationship of three months that ended in 2004. His son's mother, in her early thirties, lives in Sydney. She has or seeks to make access, at least this is how he reports it, difficult for him. He says that he cares about his son. The child's mother maintains contact with a former girlfriend and it is the offender's hope to resume contact with the child upon his release from custody. Education, skills and vocational matters 27 Testing by Peter Ashkar puts the offender within the normal range of intelligence, but if I can express it this way, well above the benchmark that marks the beginning of the normal range. There are no apparent learning difficulties and there were no events of any significance, it would seem, during primary school. The offender repeated year 3 but that was more because of his age, it would seem, than anything else. There were feelings of being different from other children because his father was not at home. The problematic behaviour did emerge in the secondary school, it would appear he was suspended on numerous occasions for oppositional behaviour and for fighting. 28 He left school during year 11 at the age of 17 when, doing the best I can, it would seem he moved out of the grandparents' home at Forster. He then moved to Newcastle and commenced work as a trade assistant, a job he held for six months. He returned to Sydney and began an apprenticeship in boiler making in which he lasted for two years; was employed as a welder for two to three years, and as a car fitter for eighteen months. That car fitter job was, I infer, at Ryde Motors where he left in May 2005. 29 The offender participated in a painting course, no doubt linked to his welding and car repair interests in 1999 and welding courses from '96 through '97 with passes and B grade passes. There were three subjects from which he withdrew with no penalties. I have inferred this was all part of his TAFE course whilst doing his apprenticeship. 30 He had been unemployed for approximately twelve months at the time of his arrest for this offence. No doubt his employment pattern of relatively continuous work suffers as a consequence of his involvement in drugs. Health 31 So far as one can tell from physical appearance, the offender appears to be a physically fit 28 year old. He did complain of asthma as a child, but there is no suggestion that as an adult, he is experiencing that difficulty. He has, of course, been in almost continuous custody since March 2006. This means that he is well fed, has available to him a gym and exercise facilities. He does, however, present with a long history of poly drug abuse. Drug and alcohol issues 32 David Rosser began using cannabis at the age of 13. He has been using cannabis mostly, almost daily since then. He reports cravings and symptoms of physiological dependence associated with his use of cannabis. His present situation is that he has not used the substance he says for five months, four of which were obviously spent in custody. He began use of alcohol at the age of 15. His drink of choice is beer, which he consumed, in large amounts on most weekends for a ten year period from 15 to 33. Again he reports cravings and symptoms of physiological dependence. He began using amphetamines at 17. He told Peter Ashkar he had been using this substance on most days since 17. He says that the substance makes him feel alert and happy. Again, there are symptoms of addiction. To this repertoire, he added ecstasy at the age of 18. Again daily use over a period of six months at the age of 25. At 19 he graduated to heroin. He reports periods of daily heroin use, mixed with periods of sustained abstinence lasting some three months on occasions; again symptoms of addiction. He began to use ice at the age of 24 and has been using up to two points of the substance most days since this time. 33 He has accidentally overdosed on ecstasy at 24 and heroin at 25. Nobody has investigated whether either of those overdoses has done him any damage. 34 On the more positive side, there is ample evidence before me to satisfy me he is now willing to do something about his adolescent and early adult life of drug abuse. Mental Health Issues 35 The offender discloses a history that includes childhood sexual abuse. The abuse occurred when he was four years old. He reports little memory of the event, but claims that the perpetrator was a baby sitter and that he was forced to perform oral sex. He said he only became cognisant of that event aged 18. He discloses no other history of sexual abuse or of neglect. 36 I have already referred to the impact he claims the loss of his father and quite possibly subsequently his mother when he moved to Forster had upon him. And I note also as a precursor to discussing mental health issues, his continuous consumption of alcohol and drugs from an early age. 37 The offender has suffered depression for many years. Doctor Neilssen reports him having a chronic low grade depression probably due to a combination of inherited factors, or lack of self esteem that often flows from lack of positive parental input, and financial insecurity during upbringing, and the effects of chronic drug use. He assessed the offender as depressed at the time of the interview, despite treatment with anti depressant medication. 38 One of the answers, I think given in an interview, whether with the police or with one of the professionals, was a sense that he did not feel there was much advantage in taking anti depressants. Of course, the drug taking whichever one you care to choose from the list I have nominated, let alone the cocktail of them, would have been counter-indicated if someone was on medication. Counter-indicated means, in effect, would have not only negatived the impact of the anti depressant, but would have aggravated the depression. Or put another way it does not appear as though he has given himself a fair chance on the anti depressants. 39 He is currently on anti depressant, Zyprexa/Olanzapine, an anti psychotic. He is also on an anti depressant medication unknown and methadone. 40 There are other mental health issues that also may need addressing. Clinical testing disclosed evidence of depressive, masochistic, avoidant, schizoid and anti social personality styles. All of these styles are characterised by negative thinking, low self esteem and social detachment. It might be remembered that earlier I said he was a bit of a loner, and that he had not gone to Burwood to look up his friend. That friendship of course may long be gone, I accept that. 41 People with depression are often anxious, mournful and tormented. They are generally so absorbed in their own suffering and misery that they lack empathy for others. Those with avoidant personality styles lead solitary lives, restrict their social environments and maintain distance from others because they fear rejection and humiliation. They have low self esteem significantly undervalue their achievements and feel lonely and empty. Schizoid personality styles have little or no interest in other people, they spend their lives as loners, and they become detached, passive and distant, have few, if any friends, rarely seek involvement with other people and function on the margins of society. 42 The combination of avoidant and schizoid personalities suggest that the disinterest and discomfort that characterises their interactions with others, emerges from a real desire to become involved with others, but that desire is denied by fear of rejection. Anti social personality types are often impulsive, hedonistic and frequently have legal and substance related difficulties. 43 A psychological profile is but a snapshot. I do not know how accurate that snapshot is of the offender, but a snapshot taken today does not necessarily have to be the snapshot that develops in a year or two. Personalities can change with proper treatment, proper focusing and a little bit of courage on the part of the person trying to heal himself. Character and antecedents 44 There is evidence that the offender came to the attention of police in Victoria in June 2002 and in South Australia in March 2002. It would appear his principal record is here in New South Wales. In November 2003, there was an assault occasioning actual bodily harm, for which he was given a two year bond. On the same day, he was also dealt with for supplying a prohibited drug and for possessing a prohibited drug. 45 In January 2006, he was before the Downing Local Court on offences related to driving whilst suspended and mid range PCA. In March 2006, he was driving whilst disqualified, possessing a prohibited drug, giving a false name and address. In Taree, he was dealt with in April for driving while disqualified. The March and April driving offences reflect the period of imprisonment that he had just completed when he went upon the drug bingeing spree to which I earlier referred. 46 In 2000, there was an offence of larceny. In 2001 at Forster, an offence of possessing a prohibited drug. In 2003, again in February, possessing a prohibited drug. And in January 2006, a mid range PCA. The Forster Local Court bond in March 2006 is the bond that he has broken. 47 The offence before the Court is by far the most serious offence he has committed to date. Before today, all his other matters, all his other offending was able to be dealt with summarily. Much of it related to driving offences and to driving whilst there was a prescribed concentration of alcohol reflecting again his alcohol problems. Attitude to offence 48 The offender has expressed his remorse to police. He was also able to indicate to them, he understood the impact that his offending conduct may have had upon the victim. He also told Peter Ashkar that he was ashamed of what he did, he did something he normally would not do, and it was out of character for him. "It must have been scary for him (the victim), I feel bad for him, I'm sorry, I wouldn't do it again, I don't want to be back in gaol." 49 He has pleaded guilty to this offence. His plea of guilty, together with his expressed intention of rehabilitating are also indicative of contrition. I intend to give him the maximum twenty five percent discount for his plea. Rehabilitation prospects 50 Where drug addicts and drug abusers are concerned, rehabilitation prospects are difficult to assess. On the positive side, his contrition, plea of guilty, acceptance of responsibility for his offending conduct and his willingness to engage in residential and outpatient treatment are all indicative of hopeful rehabilitation prospects. There also appears to be growing contact with the father who spoke warmly but realistically in evidence of the son, and I understand his mother, both of whom it appears to me have been here on each occasion the offender has been here. 51 His father has visited him regularly in prison. He told one of the professionals he had good relations with his mother and sister. He gave the police their address, although I doubt that he had darkened their door in those two days he was released. For someone, particularly a loner, to have family support is important. If the offender is interested in rehabilitation, he ought to seek to widen his support base to include others. 52 On the negative side, his prior conduct to the extent that one can use it as a foreteller of the future, is a worry. His long term drug addiction and the complex nature of it is a worry. There are, it would seem to me, apparently unresolved issues in respect of those matters I mentioned earlier, the child sexual abuse, the feelings of loss and grieving, so far as the loss of parents in his childhood were concerned, and his social isolation. These are matters that need addressing. My own view is that his prospects are more positive for rehabilitation than negative. Setting the sentence 53 Deterrence. While I note the lack of impact the period of custody had upon the offender's behaviour, the law requires that offences such as these are resolved by giving to the sentencing outcome, strong consideration to deterrence. In modern Australian society, there is a very extensive raft of criminal laws passed by the Federal and State Parliaments, the chief purpose of the criminal laws put in place by Parliaments is to deter those who attempted to breach its provisions. Parliament does that by prescribing penalties for those who engage in conduct prohibited by the criminal law. 54 Consequently, when a person is sentenced for a breach of the criminal law, he or she is exposed to the possible maximum penalty provided by statute for the offence for the statute breached. In this case, the maximum penalty available to me is twenty years imprisonment. Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalties available and their deterrent purpose when imposing sentence. 55 There is a specific deterrence aimed as individuals like minded to the offender who, but for such deterrence, would be willing to commit crimes similar to those for which the offender is being sentenced. Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him or her from re-offending. I note the impact that the last sentence had, this will be a longer sentence, the logic being, in part I suppose, that the longer the sentence, the more likely the deterrent effect. 56 I have had regard to the two guideline judgments, R v Henry and R v Thomson and Houlton in the remarks that I have thus far made. 57 I propose to set an overall sentence of three years. But for the plea of guilty, that is what the outcome would have been. Taking from that then, the twenty five percent discount, the sentence becomes one of two years and three months. I intend to set a non parole period of twenty two months to date from 7 July and an additional term of five months. 58 David Rosser, I convict you of this offence that between 10.35 and 10.38 on 7 July at Burwood, you assaulted Daryl Tomkins by putting him in fear with intent to rob him of certain property, namely, his cash, whilst you were armed with an offensive weapon, namely a syringe with a needle exposed. For that offence, I sentence you to a non parole period of twenty two months to date from 7 July 2006 and to expire on 6 May 2008. 59 I set a balance of term of five months to expire on 6 October 2008. 60 I want to indicate to the parties that I intend to refer the file of this offender to the Drug Court. I would anticipate that within a short time, the offender will hear from the Drug Court so that he will not be surprised at what next happens. 61 The offender may be returned to his custody. ********** 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.