R v Heath (No 2) [2015] NSWDC 198

District Court New South Wales

Medium Neutral Citation: R v Heath (No 2) [2015] NSWDC 198 Hearing dates: 5 November 2014; 18 December 2014; 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Sentenced to 22 months imprisonment, wholly suspended. Catchwords: CRIMINAL LAW - Sentence - relevant factors - mental health condition - time spent in custody - outstanding progress with rehabilitation following adjournment - strong family support - early plea of guilty - 25% discount Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 12 Crimes Act 1900 (NSW), s 97(1) Category: Sentence Parties: Regina (Crown) Daniel Owen Heath (offender) Representation: Counsel: Mr J Fitzgerald (offender)

Solicitors: NSW Office of the Director of Public Prosecutions (Crown) File Number(s): 2014/00046640

Judgment 1. On 5 November 2014 at Newcastle I delivered some remarks about the sentencing of Daniel Heath. I set out the crime that he has pleaded guilty to and some of his background and observations about his progress from Community Corrections and a forensic psychiatrist. 2. At the request of Mr J Fitzgerald of counsel, who appears for Mr Heath, I adjourned the proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the purposes of assessing Mr Heath's capacity and prospects for rehabilitation or demonstrating that rehabilitation has taken place. Since then Mr Heath has appeared before me on 18 December 2014 when I received updated reports demonstrating positive progress. I adjourned the matter again to today. 3. Today Mr Fitzgerald tendered further material for his client. It all shows his client in a very good light. His general practitioner describes Daniel Heath as being "highly motivated" and points out that he "has engaged well in treatment with me" as well as with a clinical psychologist. Urinalysis tests are almost all negative. A couple of positive ones are satisfactorily explained in my opinion by exhibit 8, a report from the pathologist. The psychologist, Dr Bonsor, has seen Daniel Heath three times this year and describes him as "a young man who is working hard to make substantial life changes". He added that Daniel Heath "has attended appointments regularly here and shown what appears to be a sincere desire to remain abstinent." 4. Mr Fitzgerald made available a list of job applications which his client has made. He secured some employment with a stocktaker and he is hoping to secure a business administration traineeship as well. A registered nurse of some 35 years has provided a very encouraging reference for Daniel Health. The nurse has known him almost all of Daniel Heath's life and describes him as "trustworthy and responsible" and the nurse, Mr Gary Steele, "would not hesitate to recommend him." He has also done some training to assist him going into the work place. 5. I described his background and the circumstances for the crime Mr Heath committed in my remarks on 5 November 2014. He committed a serious crime, acknowledging himself the fear which he must have engendered in the victim of his offence. Parliament has fixed a maximum of 20 years imprisonment to the crime that he committed. 6. Considering Daniel Heath's age and his mental health condition as diagnosed by Dr Bench, as well as the fact that he spent some four months bail refused in custody and has had a period on strict bail conditions, I would regard an appropriate sentence as one of three years imprisonment. 7. However, Mr Heath pleaded guilty at the earliest available opportunity. The courts have a principle that they will encourage such pleas which free up the justice system by giving a discount on sentences where people plead guilty. The discount for a plea entered at the stage that Mr Heath did is 25%. I propose to allow him that discount. I will round it off to eight months so that the sentence that I will impose on Mr Heath will be 22 months imprisonment. 8. Mr Fitzgerald has submitted on behalf of his client that I could suspend that sentence. Ms M Sellathambu who appears for the Director of Public Prosecutions acknowledges that her predecessor had acknowledged the force of that submission. 9. I regard it as an appropriate course because of the outstanding progress which this young man has made in rehabilitating himself. Daniel Heath has come from a very difficult start with his drug use and a car accident and turned his life around. This is a significant accomplishment which the courts respect and acknowledge. It is appropriate that he receive a prison sentence, but that it be suspended. HIS HONOUR: Stand up, I will sentence you now Daniel Heath. 1. I convict you of the crime of assault with intent to rob being armed with an offensive weapon under s 97(1) of the Crimes Act 1900. I impose a sentence of 22 months imprisonment for that crime. Under s 12(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order suspending the execution of the whole of the sentence for the whole of that period and I direct that you be released from custody on condition that you enter into a good behaviour bond for 22 months. The conditions of the bond are these: 1. That you be of good behaviour. 2. That you notify the Registrar of this Court of any change in your residential address. 3. That you attend court if you receive a notice to do so. HIS HONOUR: Are you being supervised by Community Corrections or not? FITZGERALD: No he is not. HIS HONOUR: I do not propose any further conditions. FITZGERALD: No your Honour his parents are taking a keen interest. HIS HONOUR: I think he has got plenty of support good. FITZGERALD: His parents have taken a keen interest and he has a program in mind for himself. HIS HONOUR: I do not think so Miss Sellathambu? SELLATHAMBU: No your Honour. HIS HONOUR: Daniel Heath I've got to explain this to you. You have committed a serious crime. You scared the life out of Ms Feng. You know that, we said that before. You've acknowledged it. I've given you a prison sentence of 22 months. One year and 10 months is a prison sentence but I have suspended it. So it doesn't have to be enforced. I've taken into account the fact that you've spent time in gaol and on strict bail conditions. A suspended sentence comes with a good behaviour bond. You've got to stay out of all sorts of trouble, not even police finding some cannabis in your pocket, which I hope that you're not using anymore. Nothing like that at all. If you change where you live you've got to let the Registrar of the Court know here by a phone call or a letter or something, email. And if you get a notice to come back to court you've got to turn up rather than have the sheriff chasing you or the police. The most important thing about a bond with a suspended sentence is what Mr Fitzgerald has explained to you. If you breach the bond it's not like other good behaviour bonds where somebody comes along and says well try again. My hands are tied. I've pretty well got to send someone to gaol because I've imposed a gaol sentence and if you breach the bond I've pretty well got to send you to gaol or give you some kind of custody for a period. So it's very important that you stay out of trouble for the next 22 months. I'm confident you will, I can see from the reports that you've changed your life around. You're surrounded by support, getting on with your life. Your mum and your dad are here. They're all very positive signs, so I have no doubt that I won't see you again, but it's important that you understand. Do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: And you will need to go to the Downing Centre. Mr Fitzgerald will tell you. Wait around. He has got another case now and he will tell you where you need to go to sign up for the bond and I'm happy for you to go there supervised by your parents, in the company of your parents.