District Court New South Wales Medium Neutral Citation: R v Donny James TOMPKINS [2017] NSWDC 398 Hearing dates: 21 November 2017 Date of orders: 21 November 2017 Decision date: 21 November 2017 Jurisdiction: Criminal Before: KING SC DCJ Decision: Indicative sentences Agg assault w/i to take/drive m/v armed with weapon: 5 years imprisonment Robbery armed with offensive weapon: 7 years imprisonment Aggregate sentence: Special circumstances found – to ensure maximum supervision to assist the offender in reintegration into the community. I recommend that supervision include ongoing treatment and/or counselling in re drug & alcohol and mental health issues. Sentenced to a term of imprisonment for 8 years comprising of a NPP of 5 years to commence on 21 November 2017 and expiring on 20 November 2022, and a balance of term of 3 years to commence on 21 November 2022 and to expire on 20 November 2025. Catchwords: CRIMINAL – Sentence - armed with an offensive weapon - attempt to take motor vehicle with assault while armed – offences committed while on parole –- mid-range of objective seriousness - severe poly-substance use disorder - institutionalisation - poor prospects of rehabilitation - aggregate sentence subjective matters - resident at program to assist offenders reintegrate into the community Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Thomson and Houlton 49 NSWLR 383 R v McVittie [2002] NSWCCA 344,\ R v Fernando [2002] NSWCCA 28 R v Huynh [2003] NSWCCA 239 R v Moffatt (1990) 20 NSWLR 114 Callaghan v R [2006] NSW CCA 58 Bugmy v The Queen [2013] HCA 37 Category: Sentence Parties: REGINA Donny James TOMPKINS Representation: Solicitors: CROWN: MS N SAWAGID F/W: MR J ELLIOTT File Number(s): 2016/00089071; 2016/00158989 Judgment 1. Donny Tompkins appears for sentence in relation to two offences, the first being armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty provided is 20 years imprisonment. There is no standard non-parole period. 2. The second offence is attempt to take motor vehicle with assault while armed, contrary to s 154C(2) of the Crimes Act. The maximum penalty provided is 14 years imprisonment. While a completed offence has a standard non-parole period of five years, that does not apply to an attempt. 3. In relation to each of the offences, he was committed for sentence on 17 November 2016 at the Central Local Court and is entitled to a discount in the order of 25% in respect of each of the offences for the utility alone of the plea as referred to in R v Thomson and Houlton 49 NSWLR 383. 4. The facts are as follows, with a background that at the time of the offending he was the subject of parole, having been released on parole on 26 January 2016 in respect of an offence of robbery in company for which he had received a sentence of four years imprisonment with a non-parole period of two years. 5. He was then resident at the Rainbow Lodge, being a facility to assist parolees to reintegrate into the community and obtain the assistance they need in respect of drugs and/or alcohol rehabilitation or mental health services while on parole. 6. The first offence occurred on 22 March 2016, approximately one month after he had been released on parole. The facts are as follows: 1. The victim, Sin Li, on 24 February 2016 was working at the "Jurlique" skin care store located in the Mid City Arcade in George Street, Sydney. Just before 6pm the victim was counting the day's takings from two tills. She was 30 years of age and alone in the store. There was $300 in notes and coins in a tray on the counter. 2. The offender entered the store and approached the victim. He moved close to her. She looked at him. She observed him as missing numerous teeth. He said, "I have a knife. I want all the money". He moved his jacket to show that he had a knife tucked into the top of his pants. The knife was around 8 centimetres long. 3. The victim moved the tray containing the $300 towards the offender. The offender picked up all the notes and coins and then demanded the victim's money. She said she did not have any, and he then ran from the store and out of her sight. 4. Police obtained CCTV footage, which showed the offender entering and leaving "Jurlique", and CCTV footage of him riding around various parts of the city before and after the offence on a yellow bicycle with distinctive markings. All CCTV footage clearly showed the offender wearing the following: * a white helmet; * a red hat under the helmet; * large dark sunglasses; * black gloves with the fingers cut off; * white shoes with bright pink soles; * a bandage on his knee; * a bright yellow shirt; * a dark jacket with distinctive markings. 5. Police compared the CCTV to the following: On 6 February 2016 the offender had been spoken to by police and photographs of him had been taken. He was then wearing the same red hat and the same white shoes with bright pink soles. He also had with him the same yellow bicycle; On 23 February 2016, the offender attended Probation and Parole. CCTV from that meeting showed him wearing the same red hat; On 11 March 2016 the offender was spoken to by police and photographs were taken. He was then riding the same bicycle. 6. On 22 March 2016, police attended the offender's residence at Rainbow Lodge in Wigram Road, Glebe. They observed the same bicycle in front of the residence. Police saw the offender come outside and take the bicycle inside. The offender was arrested. The police observed that he was missing a number of teeth. He denied ever being near the offence location. 7. Police searched the offender's residence, Unit 6, and located the white shoes with the pink soles, the dark jacket with distinctive markings, dark shorts with distinctive markings, the bright yellow shirt, the black gloves with the fingers cut off, the bandage or bandages, a small black knife, the white helmet and the yellow bicycle. 8. On 22 March 2016 the offender participated in an ERISP which contained the following: * He stated he had been at the Pitt Street mall once or twice but couldn't recall whether he had been there this year; * He stated he gets around by riding a bike or catching a bus; * He stated that he was residing in Unit 6 at Wigram Road, Glebe; * He stated he could not recall whether he was in the Pitt Street mall area on the day of the offence; * He stated that everybody uses the yellow bike; * He stated that he does wear a bandage on his knee; * He declined to answer questions regarding the offence; * 9. He was charged with the offence. 1. The second offence occurred approximately two weeks later on 9 March 2016. The facts are as follows: 1. The victim, Cassandra Gunn, was aged 55 at the time. 2. At about 10.00am on 9 March 2016 the victim was driving her car, a silver Porsche Cayman south on the Pacific Highway at St Leonards. She stopped at a red light at the intersection with Herbert Street. She was in the right lane (closest to the median strip) of multiple lanes. 3. The offender walked onto the road and approached the passenger side of the victim's vehicle. He opened the door and began to get into the car. He was carrying a cardboard box. The victim tried to push the offender back out of the car and screamed at him to get out. Despite this, the offender forced his way into the car and shut the passenger side door. He was holding a knife with a black handle and a 15cm silver blade. He held the knife towards the complainant and yelled "drive" 4. The victim screamed: she was terrified. The victim grabbed the wrist of the hand that was holding the knife and pressed the horn of her car for around 10 seconds. 5. A man who had been seated in a nearby car, Serhiy Zhdanko, whose car was also stationary at the lights, saw the offender enter the victim's car and then heard the victim screaming. He moved to the passenger side of the victim's car, opened the door and pulled the offender out of the victim's car. 6. The offender ran away, and ran into the side of a bus that was slowing to a stop. The contents of the cardboard box he was still carrying fell onto the road. The offender then ran away carrying the cardboard box. 7. The offender ran through the North Shore Hospital. He discarded the box within the grounds of the hospital. The box was seized by police and the offender's DNA was located on the box. A jacket that had fallen out of the box and onto the road was analysed and was found to contain the offender's DNA. 8. On 24 March 2016 police spoke with the offender, he was offered the opportunity to participate in an ERISP and declined, as was his right. He was then charged. 1. In respect of the offence of robbery armed with an offensive weapon, he robbed the store at about closing time while armed with a knife with which he threatened the sole female occupant of the shop, who was then attending to the takings. Not only did he take the takings, but he endeavoured to take her own personal funds. In the circumstances, in my view, the offence was not an opportunistic offence, but one in relation to which the offender had gone to an area where he anticipated he may be able to find appropriate circumstances to enable him to rob a storekeeper. The victim was vulnerable both in the sense that she was a 30 year old female, but also in that she was alone in the shop at the time of his entry. Clearly the offence was committed for financial gain although the takings were only some $300. 2. In relation to the offence of attempting to take a motor vehicle with assault while armed, it is of course an aggravated offence because of the fact that he was armed with a knife. He presented the knife at a middle aged female who was entitled to expect that she could drive her motor vehicle in the early morning without the threat of an armed intruder forcefully entering her vehicle and threatening her. There is no evidence as to exactly what it is that the offender was contemplating doing once he had entered the vehicle. In those circumstances it must clearly have terrorised the 55 year old woman, who must have been concerned as to what his ultimate intention was; whether it was to pursue some form of physical violence against her or to in due course steal what was a very expensive motor vehicle. 3. In respect of each of the offences, in my view they are relatively common examples of such offences and each falls within the mid-range of objective seriousness for such an offence. 4. As I have previously indicated, each of the offences was aggravated by the fact that the offender was on conditional liberty at the time. The commission of offences whilst on parole is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a high punishment. R v McVittie [2002] NSWCCA 344, R v Fernando [2002] NSWCCA 28 at 42. Offences committed while on parole demonstrate that rehabilitation, which parole was designed to assist, has failed and the Court cannot proceed with the same expectation of rehabilitation that is open in other circumstances. 5. Greg James J in R v Huynh [2003] NSWCCA 239 stated that: "...it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that, if you breach that undertaking, you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally." 1. In R v Moffatt (1990) 20 NSWLR 114 it was held that the offender should not only the suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole. 2. The Court recognises that the sentencing discretion includes the ability to make any sentence imposed in this matter concurrent, partially concurrent with or wholly cumulative upon the sentence which the offender has served as a consequence of the revocation of parole for the reasons referred to by Simpson J in Callaghan v R [2006] NSW CCA 58. 3. In relation to subjective matters, the Court has before it the offender's criminal history, a New South Wales Department of Corrective Service Conviction Sentence and Appeals Report, documentation from the Parole Authority, including a breach of parole notification report dated 2 March 2016, a breach of parole report dated 31 March 2016 and the order revoking parole indicating that the parole would be treated as having been revoked on 24 February 2016, which was the date on which he committed the offence of robbery armed with an offensive weapon, although he was not arrested until 22 March 2016. In addition, tendered on his behalf is a report from Dr Kerri Eagle, psychiatrist, dated 21 June 2017 and, lastly, the offender gave evidence on sentence. Subjective matters are drawn from that material. 4. At the time of the offending the offender was 43 years of age; he is now 44. As I have already stated, he was at the time on parole residing at the Rainbow Lodge where he was able to access life skills, educational programmes and alcohol and drug programmes as well as transport services to attend Community Corrections appointments and methadone dosing at a local hospital. 5. On 2 March 2016, there was a breach of parole notification as a result of his using medication unlawfully obtained. The breach of parole notification indicates that the unlawfully obtained medications were Valium, Xanax and Rivotril over a period of days. The notification of 2 March 2016, while noting the breach, indicated he had apparently otherwise been generally compliant with supervision and it was recommended that the authority at that time take no action. Of course, he had already in fact committed the offence on 24 February 2016 of robbery armed with offensive weapon, and within approximately one week he committed the further offence of attempting to take the motor vehicle with assault while armed. The breach of parole report dated 31 March 2016, having referred to the earlier report of 2 March, indicates that whilst supervision focused on a management plan for that behaviour, that is for the use of non-prescribed drugs, further use was detected shortly thereafter and he was directed to another intervention pathway as a means of addressing that behaviour, specifically the St Vincent's Hospital's stimulant treatment programme where he was to undergo assessment and follow treatment recommendations. However, on 22 March 2016, the Community Corrections Officer was notified by the Rainbow Lodge accommodation provider of the offender's arrest. As a result, his parole was revoked, as previously referred to. 6. The offender was born in Penrith. His parents were unmarried and he has two siblings, an older sister and a younger brother. He lived with his mother and stepfather when he was a child. There was domestic violence in the home related to alcohol, his stepfather sometimes hitting him. His father was unemployed and had an alcohol problem. At nine years of age they split up, and he then lived with his grandmother for a couple of years. He would visit his mother during school holidays. When he was 12 years old, he did not return to his Nan's place after visiting his mother in Sydney, and following that he hung out in Redfern with his peers and used substances. 7. His primary schooling had been in Campbelltown, Cowra and Redfern. He had never been suspended or expelled during primary school, but when he entered high school he ended up in a boys' home. He completed Year 9 in custody, and since that time he has done courses in horticulture, hospitality and baking. However, he has never had a job due to the fact that, as his record indicates, he has spent the vast proportion of his adult life in custody with only short periods on parole before re-offending or being returned to custody. 8. He said that he informed the psychiatrist that at 11 years of age he started using intravenous 'speed' (amphetamine) and following that he was introduced to heroin used intravenously. He spent his time with his mates in Redfern and Kings Cross who also abused prohibited drugs. He was using both methamphetamines and heroin, and on a daily basis. He had smoked cannabis occasionally from the age of 12. Approximately some five years ago he started using intravenous methamphetamines, which he would use in a pattern of three days and then crash. He would use heroin or whatever he could get hold of to manage the crash. That might include Xanax, a sedative. He claims to have had a period of abstinence from all substances in 1991 when he was living with his Nan in Cowra for a period of approximately four to five months. In 2006 he entered rehabilitation at Bennelong Haven for a period of three months. Whatever benefit it provided to him, if any, it did not last long. 9. As to the commission of the offence of robbery armed with an offensive weapon, he informed the psychiatrist that he had committed the offence in the context of needing money for drugs. I note, of course, that this was while he was on parole and also on the methadone programme, as well as abusing restricted drugs which were not prescribed for him, and apparently from other information before the Court, using methamphetamines. He informed the psychologist that as he had spent a large part of his life in custody, he felt that he was institutionalised. I have examined his criminal history and the periods in prison that he has served as an adult, noting of course that he had a significant juvenile history as well, and the fact that as an adult, there has been no period of freedom in the community, whether on conditional liberty or otherwise, of anything in excess of approximately four months at any time. Most of the periods of liberty as an adult have been significantly less. 10. Although he claims to have had a relationship with Joanne for nine to ten years and to have two adult children from that relationship, it is clear that unless they visit him in gaol on a regular basis, he could have had little contact with them. Dr Eagle opined that, "He has a severe poly-substance use disorder currently being maintained on a therapy programme", and noted that, "attempts to address or control his substance abuse have not been successful." She opines that his behaviour and background "satisfies criteria for antisocial personality disorder. He has displayed a pervasive pattern of disregard for violation of the rights of others. There is information to suggest that he had conduct disorder prior to the age of 15 years." 11. She, however, opined that his symptoms were not consistent with a chronic psychotic illness, although he claims to have auditory hallucinations in that he heard voices, although he recognised them as not being real. She stated, "Mr Tompkins has a severe substance use disorder. He has been using substances to cope since a young age. This has been on the background of a dysfunctional upbringing that involved exposure to violence, the absence of stable attachment figures, childhood sexual abuse and early exposure to alcohol and illicit substances. This background has resulted in a number of psychological vulnerabilities, including emotional instability, low self-esteem, inadequate coping skills, lack of problem solving skills and poor social and vocational skills. These psychological vulnerabilities have likely precipitated and maintained Mr Tompkins' use of illicit substances. Since the age of 12 years old Mr Tompkins has been in and out of custody and this has prevented him from developing the vocational, psychological and social skills to function in society. He described a pattern of being released from custody, exposure to substances, lack of employment and relapsing into offending behaviour as a result." 1. That would in my view appear to be a fair description. As to the risk of further violent offending, she stated: "Mr Tompkins has a high loading of historical factors for future violent offending, including a history of problems with violence, other antisocial behaviour, substance use, relationships, employment, personality disorder, traumatic experiences of treatment or supervision response. These correlate with an increased risk of violent offending in the longer term. Mr Tompkins appears to have few clinical factors for violent re-offending in his current setting." 1. I note, of course, that the "current setting" is while in custody. Although she includes a heading "Prospects for Rehabilitation", she does not advance any assessment in relation to the prospect of rehabilitation. 2. The offender has a significant criminal history commencing in 1985 with offences in the Children's Court and covering a range of criminal offending. He has been the subject of recognizance orders, probation and control orders. 3. In September of 1989 he was dealt with on one occasion for approximately 26 separate offences ranging over such offences as stealing, attempting to steal, break, enter and steal, break, enter with attempt, escape, failing to appear, resisting arrest, possessing implement and malicious damage. 4. As an adult, there have been numerous offences, and he has been sentenced to a number of terms of imprisonment. They include, in general, offences such as armed with intent to commit an indictable offence; possess implements to enter or drive conveyance, steal motor car; custody of offensive implement in a public place; a variety of offences relating to the use of motor vehicles, either unlicensed or otherwise; possession of imitation replica pistol; steal from person; assault officer in the execution of duty; and resist officer. 5. Perhaps most significantly, in 2006 he committed an offence in relation to which he was sentenced in February 2008 for robbery armed with an offensive weapon in respect of which he received a sentence of 6 years' imprisonment with a 4 year non-parole period. In 2011, he received a further sentence in respect of an offence committed in October 2006, being robbery in company, for which he received a sentence of 6 years with a non-parole period of 3 years. There were a further three offences committed at an earlier date, that is 1998, which were dealt with at the Campbelltown District Court in May of 1998: a robbery while armed with dangerous weapon, in respect of which he received 1 year 8 months with an additional term of 2 years, that is a total sentence of 3 years 8 months with a non-parole period of 1 year 8 months, although it was expressed at that time as a minimum term. 6. In 2003, dealt with in 2004 at the Campbelltown District Court, he was dealt with for offences of steal motor vehicle, robbery armed with an offensive weapon and two counts of robbery in company. The longest sentence imposed was in relation to the robbery while armed with an offensive weapon. He received a term of imprisonment of 5 years 6 months with a non-parole period of three years. 7. In 2014 he was sentenced for robbery in company to a term of 4 years imprisonment with a non-parole period of 2 years, being the offence in respect of which he was on parole at the time of this offending. 8. His criminal history and the periods in custody do lead to the conclusion that the offender has become institutionalised over time, but they also lead to a conclusion that he has demonstrated, both as a juvenile and as an adult, a contumelious disregard for the law, for the property and person of others. I am of the opinion, in the light of the number of occasions of past offending, the nature of those offences and the current offences, and the absence of any acceptable evidence to the contrary, that the offender must be regarded as a significant ongoing risk to the community. However, such a conclusion cannot lead to any extension of an appropriate penalty for the offence to provide preventative detention for the protection of society; Veen v R (1988) 164 CLR 465. 9. As to remorse and contrition, I note that there is no reference to the offender evidencing to the psychiatrist any remorse or contrition, nor did the psychiatrist endeavour to assess the prospect of rehabilitation rather than simply stating what he needed, in her view. 10. The only evidence of remorse or contrition came from the offender on sentence. He said in relation to the first offence that the Jurlique employee would have been scared and that he felt bad about that, but then informed the Court that he had been using "ice" at the time, almost as if that was some justification or explanation. 11. As to Mrs Gunn and the attempt to take the motor vehicle, he stated that at the time he committed the offence he "felt it wasn't me, I've never forced my way into a car before". Well, having never forced his way into a car before may be true, but he has certainly taken and driven other people's motor vehicles on various other occasions. He said that the victim would have been scared and afraid and, again, when asked how he felt about that he said, "I feel bad", again, referring to himself as having taken ice every day. 12. I do not regard those statements as evidence of remorse or contrition, although at least they acknowledge that he would have scared the victims. 13. In cross-examination, he was asked about whether he had given evidence like this before. He said that he had and that sometimes he meant it and sometimes he did not, but said it. When asked how he expected the Court to be confident in relation to what he had said, he said, "Because I actually mean it". However, he also indicated that time does not worry him because "I'm institutionalised" and, further, "I've played the game all my life, but not the case now". 14. A plea of guilty can evidence remorse and contrition but, in these matters, the evidence against the offender was very strong. I do not accept on the basis of the evidence before me that the offender has expressed genuine remorse or contrition at all in respect of either offence but that he is merely doing, again, what he said he has done in the past, that is, saying it but not meaning it in order to attract a more lenient sentence than he might otherwise expect. 15. It was said by Mr Elliott on his behalf that essentially he had reached a "crossroads" in life and there was a good prospect of rehabilitation, that he had reached an "epiphany" and ceased using drugs since the time of his arrest in relation to these matters; that, although he had been a victim of a vicious cycle in the past, he had now broken it and that rehabilitation was a good prospect. 16. I am unable to agree with any of those submissions. In my view, the prospect of rehabilitation for this offender must be extremely guarded. The prospect of his reoffending, in my view, is high and, certainly until such time as he has completely ceased using prohibited drugs and restricted drugs not prescribed for him, there will be no real prospect of rehabilitation, and a high prospect of reoffending as he will need to commit offences in order to feed his drug habit. 17. Considering the very short periods of time between his periods of custody, I can only suspect that the offender in fact does not genuinely wish to be free in the community, whether that be on conditional liberty or not. 18. I accept that the reasoning in Fernando and Bugmy apply to this offender, to reduce his moral culpability, which must be taken into account in determining the appropriate sentence. 19. For the purposes of sentencing, I have had regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. The Court must take into account such of the aggravating factors and mitigating factors outlined in s 21(2) and (3) of that act as are present, and any other relevant factor. Any sentence must reflect all the circumstances of the offence or offences and the need for general deterrence and specific deterrence, as well as the fundamental purpose of punishment, the protection of society. I am of the view in relation to this offender that general and specific deterrence and also the protection of society are significant matters to be taken into account in determining the sentence. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all other possible alternatives, that no penalty other than imprisonment is appropriate. 20. As I intend to propose an aggregate sentence, I will indicate the indicative sentence in relation to each of the offences. In respect of the offence of attempting to take motor vehicle with assault while armed, the indicative sentence is 5 years' imprisonment. In respect of the offence of robbery armed with an offensive weapon, the indicative sentence is 7 years' imprisonment. I intend to date the sentence from today. 21. Mr Tompkins, would you please stand. 22. You are convicted in relation to each of the two offences and you are sentenced to a term of imprisonment with a non-parole period of 5 years commencing today, 21 November 2017. You will be first eligible for parole on 20 November 2022. The balance of term is three years, giving you a total sentence of eight years. The total sentence will expire on 20 November 2025. 23. Although I have dated the sentence from today, I have significantly reduced the non-parole period from the statutory relationship to ensure the potential maximum period of supervision of three years, that is, the maximum provided by the regulations for supervision, in order to assist you in reintegrating into the community and to have ongoing assistance in relation to treatment and/or counselling in respect of drugs and/or alcohol, as well as in respect of any mental health issues, however, I leave the determination of the appropriate orders to be made by the authorities when you are released on parole. 24. I note that you would understand, because of your numerous sentences and significant periods of time in custody, that you will not necessarily be released on parole on 20 November 2022. You will only be released on that date if the authorities are convinced that it is appropriate to release you at that time. You will otherwise continue to serve the sentence until such time as they believe you are fit to be released. 25. That means, Mr Tompkins that you need to take your life in your own hands and ensure that you complete all of the programs you can possibly complete in custody in relation to drugs and/or alcohol and in relation to any other personal problems that you have. If you do not do that, you will end up spending a much more significant time in custody than the non-parole period. 26. I have obviously taken into account the 18 months Mr Tompkins has already spent in custody as part of special circumstances to reduce the non-parole period from the statutory relationship to 5 years. ********** 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: 15 February 2018