R v Devries [2018] NSWDC 368

District Court New South Wales

Medium Neutral Citation: R v Devries [2018] NSWDC 368 Hearing dates: 27 July 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: At [25]. Catchwords: SENTENCING — Multiple offences – Robbery armed with an offensive weapon – Form 1 matters – offences committed while on conditional liberty – troubled childhood – background of deprivation and neglect – ongoing substance abuse Legislation Cited: Crimes Act 1901 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 DDP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ith v R [2013] NSWCCA 280 Pearce v The Queen (1998) 194 CLR 610 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Kaiva (CCA, unreported, 9 November 1998) R v Millwood [2012] NSWCCA 2 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Mark Devries (Offender) Representation: Mr T George (Crown)

Mr J Elliot (Offender) File Number(s): 2017/73569

Judgment "A young Aboriginal man who describes a chaotic and troubled childhood, a long history of persistent polysubstance abuse, a long history of offending, particularly acquisitive offending, with an impaired level of cognitive functioning assessed as being in the extremely low range." 1. That description of the offender, Mark Devries, by the Chair of the Forensic Mental Health Unit at the School of Psychiatry, Associate Professor Kimberlie Dean is an accurate summary of the circumstances of the offender who appears for sentence on two counts under s 97(1) of the Crimes Act 1901, of robbery armed with an offensive weapon. Both carry a maximum penalty of 20 years with no standard non-parole period. The maximum penalty, of course, is a yardstick against which the sentencing must occur. 2. There are two counts to be dealt with on a Form 1 attached to the first offence; they are robbery armed with an offensive weapon, also under s 97 and custody of knife in a public place (second offence). Those matters will be dealt with in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters. 3. He has been in custody since 9 March 2017 and it is conceded by Mr Elliott, who appears for the offender, that a period of full-time custody is required by the objective and subjective circumstances of this case and it is unnecessary for me to consider any alternative forms of punishment under s 5 of the Crimes (Sentencing Procedure) Act 1999. Obviously I must take into account the purposes of sentencing set out in s 3 of the Crimes (Sentencing Procedure) Act which relevantly include deterrence, punishment, protection of the community, promoting the rehabilitation of the offender, making him accountable for his actions, and recognising the harm done to the victims of the crime and the community. 4. The short facts demonstrate that he had been released on parole in February 2017 following an earlier sentence, on condition that he attend Bennelong's Haven, a rehabilitation facility on the North Coast. He absconded from that facility on 22 February, and the first offence for which he is to be sentenced today occurred three days later on 25 February when he went into a convenience store in Elizabeth Street, Surry Hills, produced a 20 centimetre knife from his pocket which had a silver blade and said to the attendant, "Give me the cash or I'll stab you". The attendant handed over about $300 to $500. The offender then said, "Give me your wallet" and so he handed over a wallet with $20 to $30 of Chinese currency and some licences and credit cards. The offender was seen running off along Belvoir Street towards the Northcote housing complex. The entire incident was captured on CCTV footage. The attendant, not surprisingly, said that he was left feeling very frightened. 5. The second incident occurred on 7 March 2017. He went into another convenience store in Surry Hills and, using much the same modus operandi, pulled out a 20 centimetre knife and told the attendant to give him some money. The attendant got about $1,000 out of a drawer and also handed over his mobile phone in fear of being stabbed. Again, this was all caught on CCTV footage, and again the attendant said he was shaken and scared. 6. The next day, 8 March, he committed the same type of offence, in a convenience store in Surry Hills where he demanded money by producing a 30 centimetre bread knife, and ultimately took $700. When the attendant yelled out and screamed for help he ran out into the street. 7. On 9 March 2017 when he was arrested he removed a 20 centimetre large kitchen knife with a silver blade and threw it over the balcony area and after that he was yelling to an unknown female, "Sis, get rid of the knife for me". 8. His record is very long for a man who is only 24 years of age. It starts with a lot of juvenile detention for offences in 2010 through to 2012. His first adult custody matters took him to prison for nine months for common assault in 2013. His record extends over 22 pages and I will not refer to all the matters in detail but there are continual periods of three, six, nine months for various types of offending including for an aggravated break and enter committed in October 2015 for which he was given three years commencing in October 2015 and concluding October 2018 with a non-parole period of one year and 18 months. He was released to parole on 8 November 2016. There was a 12 month sentence for escape lawful custody, commencing in February 2014. There was another three year sentence for robbery armed with an offensive weapon, committed in October 2015. The non-parole period of one year and 18 days expired on 7 February. As I have said Mr Devries was release to parole on the condition, imposed by her Honour Judge Traill, that he moves to Bennelong's Haven on the North Coast, lasting only a week or so there. 9. His parole was treated as having been revoked on 22 February and documents from the State Parole Authority indicate that he would be considered for a possible release date on the parole eligibility date of 8 March 2018 but I am told by the offender today that he sought parole and he was rejected in that application. 10. The report from Associate Professor Dean follows a consultation with the offender at the MRRC on 15 June. He adopted the history in evidence today and he was appropriately cross-examined by the Crown Prosecutor. He had been using ice and heroin intravenously at the time of the offences and was motivated to commit the offences by his need to obtain drugs and food. 11. For reasons that are not quite clear, the Public Trustee manages his money and his source of income when he is not in custody is a pension of about $900 a fortnight due to a disability arising out of the fact that he can supposedly not read and write, although he did say that he can write but not read when giving evidence. 12. Professor Dean also referred as source material to a report from Dr Ruth Allen, psychologist dated October 2016 which is adequately summarised in the report. His mental health has involved limited contact with mental health services in the past, there have been no psychiatric admissions or medication but he had admitted to harming himself, suicidal attempts and accidental drug overdoses. He started sniffing spray paint at the age of nine having started using cannabis at age eight and then ice for many years up until the last week or so even while in custody. As he said to me, the money that is available for buy ups is used for buying drugs to a large extent but he had taken himself off drugs for the last week or so prior to coming to court. 13. He lived with his mother after being born in Sydney but she drank heavily and could not care for him and his siblings. He has three brothers who are all in custody. He lived with his grandmother until he was 11 years of age, and then lived with his father, and then moved into foster care in his early adolescence. He stopped school at Year 5. He frequently ran away from foster carers and he lost count of the number of different placements that were made for him. He has never worked in paid employment, although he was a volunteer for two years at Taronga Zoo during a period of foster care. 14. Professor Dean summarises his background as also involving a very difficult childhood with inadequate parenting, movement between multiple caregivers and clearly inadequate levels of supervision during development. Notwithstanding his upbringing characterised by neglect and deprivation, he did not report any experiences of racism beyond name calling in public. In those circumstances he had developed a very dysfunctional pattern of coping, including engaging in offending behaviour that may prove difficult to change, but understanding the nature, extent and cause of his cognitive impairments would enable interventions, including those aimed at addressing his substance use problems, to be appropriately adapted and may open up opportunities to access support services. 15. In cross-examination the Crown correctly pointed out the very short time that he had been on parole before this series of offending, noting that he was on parole from an aggravated break and enter and armed robbery. He said he had been awake having used ice for about 11 days at this time and he frankly admitted that he was not really interested in rehabilitation and acknowledged that he would probably run away from rehabilitation as he had previously, and there is something in his reasonably belligerent manner in the witness box which suggests that he is likely to return to crime to obtain money to purchase drugs if he finds himself short of money in the future. 16. Against that rather depressing background, Mr Elliott for the offender relies upon some very comprehensive written submissions supplemented by oral submissions. They start from the correct proposition that the R v Henry (1999) 46 NSWLR 346 guideline is a useful starting point conceding that he does not meet the description of a young offender with little or no criminal history given the background to which I have referred but the other factors referred to by the Chief Justice are fairly applicable. 17. I acknowledge that the range set out by the Chief Justice there was ultimately clarified as being applicable to a late plea of guilty and the appropriate adjustment to the notional head sentences contemplated by the Chief Justice in that indicative range has been discussed in the course of sentencing submissions. Mr Elliott notes that there were threats of violence but no actual violence and the amount of property taken was relatively small. Taking into account the additional factors set out by the Chief Justice in R v Henry (1999) 46 NSWLR 346 at [170], I accept the submission that the offences are below midrange, but certainly not at the lowest end of the range as conceded by Mr Elliott. 18. Mr Elliott recognises a number of aggravating features under s 21A of the Crimes (Sentencing Procedure) Act 1999, including his criminal record, the fact that the offending was committed while on conditional liberty and that the offending was for financial gain. By way of mitigating features he relies on the plea of guilty and the fact that the injury or loss was not substantial. He points to remorse and that the offender did say that he was very sorry for the offending. There is a limited degree of remorse to be accepted and the plea of guilty should justify a 25% discount for the utilitarian value of that plea. 19. Mr Elliott correctly points to the significance of his deprived background referring to what Simpson J said in R v Millwood [2012] NSWCCA 2 and other cases such as Bugmy v The Queen [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 which are well known and need not be repeated. Further, in the light of the psychiatrist's diagnosis that he would meet criteria for a conduct disorder, or antisocial personality disorder that can have the effect of reducing moral culpability and make matters such as general deterrence, retribution and denunciation of less weight in the sentencing process. 20. As Mr Elliott concedes there is no evidence that his mental condition was a contributing factor at the time of the commission of the offences and he was drug affected. I accept the general principles set out in DDP (Cth) v De La Rosa (2010) 79 NSWLR 1 should be taken into account to a limited extent. 21. A difficult question on the appropriate term of imprisonment to be imposed arises from the fact that the offending was committed so soon after release on parole. On that issue submissions have been made principally as to the decision of Hoeben J in Ith v R [2013] NSWCCA 280. There the sentencing judge had ordered that a sentence commence at the expiration of the balance of parole for an earlier offence, and as his Honour said at [52], "The commission of such a serious offence shortly after the commencement of parole for three other significant offences shows considerable contempt for the justice system. As such it is properly taken into account as a matter of aggravation. " 1. It was not regarded in that case as constituting some form of double counting. The concept of double counting emerges as set out in at [46] - [49]. Firstly from what Kirby J said in R v Kaiva (CCA, unreported, 9 November 1998), that is, that having taken into account the fact that the offences were committed on parole, to not backdate the sentence gives the appearance of penalising the prisoner for a second time which is undesirable but in R v Kaiva the breach of parole, as in Ith v R [2013] NSWCCA 280, was referable solely to the commission of the offence for which the offender was being sentenced, whereas in this case the revocation of parole is for another reason, as I have indicated. It is clear from the authorities set out by Hoeben J that the question of how far the commencement date of the sentence can be backdated is a matter for discretion. The sentencing judge is limited, as is now common ground, by the provisions of s 47(5) of the Crimes (Sentencing Procedure) Act which prevents the commencement date being any date after today. 2. In Callaghan v R [2006] NSWCCA 58 Simpson J had said at [24], "…where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences." That is not the case here because the balance of the term is not quite short but was the better part of two years. 1. In the light of those matters and the considerations of totality in relation to Pearce v The Queen (1998) 194 CLR 610 that I must bear in mind it is appropriate in the exercise of my discretion to commence the term of imprisonment on 7 March 2018, that is, about one year after the revocation of parole. 2. The orders that I will make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 5 years, 6 months, to commence on 7 March 2018 and expiring on 6 September 2023. 3. I impose a non-parole period of 3 years, 4 months, expiring on 6 July 2021. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. Sequence 001, taking into account the Form 1 matters: 4 years, 10 months; 2. Sequence 002: 3 years, 9 months 1. I find special circumstances, given the matters to which I have referred, namely, the accumulation and the possibility of some engagement in rehabilitation, his age, his very difficult upbringing and his low level of cognitive functioning as submitted by Mr Elliott. Note – This ex-tempore judgment was revised without access to the court file