District Court New South Wales Medium Neutral Citation: R v Hakos [2019] NSWDC 151 Hearing dates: 22 March 2019 Date of orders: 22 March 2019 Decision date: 22 March 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: The offender is placed on a Community Correction Order for 12 months, subject to the following conditions: 1. The offender must not commit any offence; 2. The offender must appear before a court if called upon; 3. The offender must submit to supervision by a Community Corrections officer; 4. The offender is to participate in rehabilitation program or to receive treatment; 5. The offender must perform 50 hours of community service work; and 6. The offender must report to the Penrith Community Corrections office within seven days. Catchwords: SENTENCING — Subjective considerations on sentence — Mental illness SENTENCING — Penalties — Community Correction Order Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Muldrock v R (2011) 244 CLR 120 R v Anderson [1981] VR 155 Category: Sentence Parties: Regina (Crown) Adrian Hakos (Offender) Representation: Solicitors: Ms McWhirter (Crown) Ms Tawagi (Offender) File Number(s): 2017/00290783 Judgment HIS HONOUR: INTRODUCTION 1. Adrian Hakos appears for sentence on one charge of robbery, namely that on 25 September 2017, at Kingswood Railway Station, he robbed Timur Caynullin of a wristwatch valued at $350, contrary to s 94 of the Crimes Act. The maximum penalty is 14 years. A maximum penalty is a yardstick for a sentencing judge to take into account as well as other relevant considerations. A judge should steer by that but not aim for it. He has spent two days in pre-sentence detention. THE FACTS 1. At about 9.45pm on Monday 25 September 2017 the victim was sitting on a seat on Platform 1 at the Kingswood Railway Station waiting for a train home from university. The victim noticed the offender pacing up and down, giggling to himself. The victim had one of his headphones on and was on Facebook whilst this was occurring. 2. The offender paced up and down a few times before walking up to the victim and saying, "I have a knife in my pocket. You have any money?" The offender's arm was by his side when he spoke, which meant his hand was near his pocket. The victim was extremely scared and replied, "All I have is my Opal card." The offender said, "Give me your watch then.", to which the victim responded, "Are you serious?" The offender said, "Yeah, hand it over if you don't want to die." 3. The victim was scared and feared for his safety so he took off his watch from his wrist and handed it to the offender. The victim's watch was a black Nixon valued at $350. The offender took the victim's watch and walked a short distance before turning and walking a few steps back towards the victim. The offender threw his own watch, a black-coloured G-Shock wristwatch, at the victim, which landed on the ground, and said to the victim, "Here is my watch. Don't feel so bad." and then walked away. 4. The victim used his mobile phone to call triple-0, and kept his eyes on the offender's movement. When speaking to the operator the victim said he was robbed and that the offender said he had a knife. The victim said he was shaken up and that the offender was laughing to himself and off his head. 5. While the victim was speaking with triple-0, a lecturer, Alan, from his university walked past. The victim stopped Alan to warn him about the offender, who was still down on the platform walking around. The victim said to the lecturer, "There is a nutter walking around down the bottom." and that the offender took his watch and gave him his shitty watch for some reason. 6. Police, including Constable Smith and Constable Mozafari, arrived at the scene very quickly. The victim pointed towards the direction of the offender. After a short foot pursuit the offender was arrested, cautioned and handcuffed. Constable Smith and the offender had a conversation in regards to the incident. Constable Smith asked the offender, "Where is the watch?" and the offender replied, "I dunno. Over there somewhere." Constable Smith asked him, "Did you take someone's watch?" and the offender responded, "He wanted to do a swap so I fucking swapped with him and then he got the shits because he wanted it back so I gave it back." Constable Smith said, "Just now?" and the offender said, "No, this was a few days ago." 7. Constable Smith noticed a black Nixon wristwatch on the offender's wrist. Upon searching the offender the watch was removed. No knife was found on the offender during the search. The victim confirmed that the watch was his and it was returned by police. OBJECTIVE SERIOUSNESS 1. One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. 2. Offences of the kind committed by the offender are not trivial instances of disrespect for private property. It is a serious breach of the peace. It was a direct attack upon the security of a person and property which the law exists to protect. The victim was placed in fear by the prospect of the use of a knife, which did not exist. The taking was of short duration and due to the swift action of the police the property was returned. Although objectively serious, it was at the lower end of the scale MORAL CULPABILITY 1. I have read the Sentence Assessment Report dated 11 March 2019 by Carly Dale. The offender has been diagnosed with schizoaffective disorder and depends on medication and treatment by the Community Mental Health Team to maintain stability. He has a history of mental health-related hospital admissions and periods of poor compliance with medication. 2. Schizoaffective disorder is a chronic psychotic illness often characterised by delusional belief, auditory hallucinations, disorder of thought, difficulty in processing information, dominant mood symptoms, alternating depression and mania and bizarre behaviour as a consequence of the illness. 3. Mr Hakos was experiencing a period of extremely poor mental health at the time of the offence and had been discharged from a mental health ward four days prior after a four week admission in the context of paranoid thoughts, severe mood disturbance and chronic delusional thinking and thought disorder. 4. I note that the victim described the offender as pacing up and down, giggling to himself prior to the commission of the robbery. The offender threw his own watch to the victim after the robbery. This is indicative of his mental health at the time. 5. He has an impaired level of cognitive functioning resulting from significant mental illness, which impacts upon his understanding of social norms and contributes to his offending behaviour. He was admitted to the Pialla Unit eight weeks later on 20 November 2017. 6. The fact that an offender was or is suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of sentencing may be taken into account at sentencing: R v Anderson [1981] VR 155. An offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v R (2011) 244 CLR 120 at [53]. This is especially so where the mental condition contributes to the condition of the offence in a material way: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. 7. General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. His mental condition contributed to the commission of the offence. His moral culpability is reduced. Matters of general deterrence, retribution and denunciation have less weight and indeed general deterrence should be given very little weight because this vehicle is not an appropriate medium for making an example to others. 8. It is the opinion of Dr Furst that on balance the offender was paranoid at the time of the offence as a consequence of his schizoaffective disorder and that he had impaired judgment, poor insight into his illness and had impairment of his capacity for consequential thinking, acting on impulse when robbing the victim. I accept that opinion. PRIOR CONVICTIONS 1. The offender's varied and extensive history of antisocial behaviour must be looked at in light of his extremely poor mental health. He was on bail for common assault and assault occasioning actual bodily harm at the time of this offence. That is an aggravating feature. While on bail for this offence he was also charged and convicted of common assault. 2. His history includes: * 14 July 2004, Lidcombe Children's Court, robbery in company; * 5 February 2004, Lidcombe Children's Court, robbery in company; * 5 December 2013, Penrith Local Court, stalk, section 9 bond; * 3 September 2018, Penrith Local Court, common assault, fined $400; * 13 February 2013, Campbelltown Local Court, affray, fined $800; * 8 July 2016, Penrith Local Court, custody of knife in public place, section 10A; * 3 September 2018, Penrith Local Court, common assault, fined $300, assault occasioning actual bodily harm fined $700; * 25 September 2017, Penrith Local Court, custody of a knife, fined $400. 1. His criminal history is indicative of his mental health issues. PLEA OF GUILTY 1. The plea of guilty was entered at the first opportunity and, accordingly, he is entitled to a full discount and I assess that discount at 25%. SUBJECTIVE CIRCUMSTANCES AND THE FUTURE 1. The offender is 30 years of age. He is in receipt of a disability pension. Dr Furst, psychiatrist, provided a report, dated 17 November 2018, which is exhibit D1 in this case. Dr Furst indicates that there was a history of learning difficulties, hyperactivity and poor attention in the early years of his education. He was assessed by paediatrics and diagnosed with attention deficit hyperactivity disorder (ADHD). He ended up leaving school in Year 9. His parents separated when he was eight years of age. He has completed a number of courses at TAFE. Despite his qualifications and his wish to work, Mr Hakos has been unable to gain or maintain employment as a consequence of his mental illness. He is the recipient of a Disability Support Pension. 2. At 17 years of age he was admitted to the Pialla Unit at Nepean Hospital with symptoms of psychosis. He was treated with antipsychotic medication. He has had numerous psychiatric admissions since that time, mostly to the Nepean Hospital. He has been subject to a Community Treatment Order for over 12 months, seeing Dr O'Rourke, a psychiatrist. He was admitted to the Nepean Hospital in January 2018 as a result of his ongoing mental health issues. He is currently under the care of the Assertive Community Treatment Mental Health Team, St Marys. He will require psychiatric rehabilitation in the future as his illness has been unstable over recent times. 3. It is the opinion of Dr Furst that a prison sentence would be detrimental to his long-term mental health, including the risk of aggravating his schizoaffective disorder, precipitating future episodes of psychosis and/or mania. His disorder would make a custodial sentence more onerous. He would be vulnerable in custody to exploitation from other inmates and a custodial sentence would reduce his access to mental health services. He requires ongoing assertive psychiatric treatment, which in my view should occur in the community. 4. The offender has positively engaged with the Assertive Community Treatment Team. He is seen weekly and has a regular review with a psychiatrist. He is also receiving assistance from Resolve Program, Flourish Australia, which provides non-clinical support to people with mental illness, including residential services, after hours support, as well as community outreach. He is also receiving assistance from Partners in Recovery. Partners in Recovery aim to support people with severe and persistent mental illness by getting multiple sector services and supports they may come into contact with to work in a more collaborative, coordinated and integrated way. 5. A report from Eliza Lazos dated 15 November 2018 indicates that the offender is taking his medication, Zyprexa, and understands that he needs to continue it and said in his own words that there is "no alternative". 6. There are strong community supports in place to which the offender is responding in a positive way. His road is long but he is safely navigating it at this stage. SENTENCE 1. I have taken into account s 3A of the Crimes (Sentencing Procedure) Act. Matters of general deterrence, specific deterrence, retribution and denunciation have little weight in the sentencing of this offender by reason of his chronic mental illness. The threshold in s 5 has not been crossed. 2. I intend to impose a Community Correction Order with a conviction. The orders are: 3. Mr Hakos, you are convicted. You are placed on a Community Correction Order for 12 months. The Community Correction Order is subject to the following conditions: 1. The offender must not commit any offence; 2. The offender must appear before a court if called upon; 3. The offender must submit to supervision by a Community Corrections officer; 4. The offender is to participate in rehabilitation program or to receive treatment; 5. The offender must perform 50 hours of community service work; and 6. The offender must report to the Penrith Community Corrections office within seven days. ********** 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: 06 May 2019