District Court New South Wales Medium Neutral Citation: R v Makhlouta [2017] NSWDC 164 Hearing dates: 17 March 2017 Date of orders: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 2 years with a head sentence of 4 years. Catchwords: CRIMINAL LAW – Sentence –Robbery – Drug addiction Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R Category: Sentence Parties: The Crown John Makhlouta Representation: Solicitors: Director of Public Prosecutions- Crown Hunter & Braddon Lawyers - Offender File Number(s): 2016/115463 SENTENCE 1. HIS HONOUR: It is undeniable that many people who have been released from custody after serving significant sentences will face challenges as they seek to rehabilitate themselves back into the community. They find it difficult to gain employment. They find it difficult coping with life outside a regimented lifestyle. And they find it difficult to respond appropriately to temptations and challenges which come their way. 2. The person who I have to sentence today, John Makhlouta, is one of those people. His life has largely been ruined by drugs. He started using drugs after finishing High School in Year 10. He says he was about 18 when he first used drugs commencing almost immediately with the drug heroin. He has had a problem with drugs ever since. His drug use has led to him committed crimes, some of significant seriousness. He served a lengthy sentence of imprisonment for a number of robbery offences. He was released from custody on 2 December 2012. Just over three years later on 29 March 2016 he committed an offence of robbery which brings him before me today. I will describe what he did shortly, but I first want to describe how he explained his motivation for committed the offence. 3. He said that he wanted to go back inside. He said that he regarded himself as being institutionalised and found living in the community difficult. It is a terribly sad thing that any human being would prefer living in custody to living in the community but many people feel that way. What needs to happen is that people like Mr Makhlouta need to be supported quite intensely on release from custody to give them the maximum chance of them, firstly, giving up drugs and secondly, giving up crimes, one of course being related to the other. 4. So in order to get himself back in gaol he went to a café at about 10am. There was only one staff member working there. The offender went up to her and said, "Open the fucking till. Don't run. Don't go anywhere. Stay right there." Although he did not actually threaten violence, it was implicit in what he said that violence was likely unless the victim cooperated with his demands. She opened the till and then stepped away from the offender. He started grabbing notes from the till. He asked for her help to get the money out of the till and the victim complied. He stuffed the notes into a pocket on the front of his jumper and said to the victim "you're a good girl" and then left. 5. It was later determined that $590 had been taken, CCTV footage showed the entire offence and a short time later, indeed the following day, the police executed a search warrant at the home of Mr Makhlouta's mother and father. They there found clothing visible on the CCTV footage and when showing the footage to a family member confirmation that it was the offender who committed the offence was received. 6. A couple of weeks later the offender himself went to Bankstown Police Station, full knowing of course that he would be going into custody for what he had done. He made full admissions to committing the offence during an electronically recorded interview and that cooperation has continued to today. He entered a plea of guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 7. I received some submissions today about the objective gravity of the offence. As far as the vulnerability of the victim was concerned it was pointed out that she was not elderly or infirm, on the other hand she was alone in retail premises. As the security of harder targets like banks has increased, softer targets like cafes become more attractive to people like Mr Makhlouta. It is regrettably common that small businesses such as cafes, florists, newsagents and the like are targets of offences such as that I have just described. What happens is that people working in such small businesses are subject to real threats of violence for comparatively small rewards. 8. It was said that Mr Makhlouta's decision to commit the offence was an impulsive one. I am not sure whether that was true or not. It was certainly Mr Makhlouta's evidence that he wanted to go back inside but whether he had planned to do that was not explored. In any case there is nothing to suggest a high degree of planning as far as the offence is concerned, nor is there any suggestion that Mr Makhlouta was anxious to avoid detection. Had he been serious about getting away with this he might have tried to disguise himself, in particular in circumstances where CCTV cameras were installed. It was said that there was no actual threat of violence but as I mentioned earlier there was clearly an implied threat, whether it would have been carried out or not is another matter. If the victim had run away I tend to think that Mr Makhlouta may simply have let her go. 9. The amount taken from the business was not huge but I would not regard it as insignificant. 10. My attention was drawn to a couple of passages in the guideline robbery judgement of R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R not I emphasise, because the Henry guideline sentence has any direct application to the sentence in the present case. Those parts of the decision which concern the relevance of drug addiction were instead relied upon to explain why Mr Makhlouta committed this offence in the first place. The Chief Justice made the point that the consequences of drug use are so well-known that when a person chooses to take drugs then that person should be taken as choosing the consequences of that decision, but of course there are exceptions to that. Where people commence to take drugs with less than a full appreciation of the likely consequences, where people become addicted through things other than a personal choice to begin taking drugs such as where they are treated with opiates for medical reasons are exempt. But there is nothing to suggest that Mr Makhlouta was not fully aware that one possible consequence of heroin use was heroin addiction. It may be that he did not fully appreciate just how severe that addiction was. It may in fact I am sure it would be the case, that he did not appreciate that it would ruin his life as it has done, but the circumstance that as an 18 year old he began to use drugs whilst explaining this offence does not significantly mitigate his conduct. 11. I have no doubt that Mr Makhlouta wants to put his drug use behind him. Unfortunately the evidence would suggest that for reasons which are unclear he is not suitable for residential rehabilitation at Oolong House, Odyssey House or The Glen, at least at present. It is to be hoped that by the time Mr Makhlouta is eligible to be released on parole he may be suitable. I say it is to be hoped, that is not only Mr Makhlouta's sake, but for the community's as well. If Mr Makhlouta is not given substantial assistance upon his release from custody it is highly likely he will commit further offences and that will involve harm to the community and members of it. So the need to assist Mr Makhlouta does not arise only from the need to assist him to enjoy life in the community, it primarily arises from a need to do as much as can be done to stop Mr Makhlouta harming people in the future. 12. For reasons I have indicated there are special circumstances in this case and so I will vary the ratio between head sentence and non-parole period in Mr Makhlouta's favour. 13. I impose a sentence of imprisonment consisting of a non-parole period of two years to date from 14 April 2016 and a head sentence of four years. 14. Mr Makhlouta will be eligible to be released to parole on 13 April 2018. ********** 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: 03 July 2017