District Court New South Wales Medium Neutral Citation: R v Vittori [2019] NSWDC 583 Hearing dates: 15 July 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Aggregate term of imprisonment of 4 years 6 months with a non-parole period of 2 years Catchwords: CRIME — Violent offences — Armed robbery — Offensive weapon SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1996 Police Act 1990 Cases Cited: Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1996 No 1 2002 [2002] NSWCCA 518 Bugmy v R [2013] HCA 37 R v Borkowski [2009] NSWCCA 102 R V Henry [1999] NSWCCA 111 R v Millwood [2012] NSWCCA 2 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Regina (Crown) Vanessa Jane Vittori (Offender) Representation: Mr Angelovski (Crown) Mr Pace (Offender) Director of Public Prosecutions (NSW) (Crown) Legal Aid Commission (NSW) (Offender) File Number(s): 2018/00275630 EX TEMPORE REVISED JUDGEMENT 1. Vanessa Jane Vittori is 21 years of age and has already accumulated an unenviable record of antecedent offences to which I shall come later in these reasons. She pleaded guilty in the Local Court to an offence contrary to s 97(2) Crimes Act 1900. The particulars of the offence are that she between 2.45am and 3am on 6 September 2018 at North Strathfield in the State of New South Wales did assault with intent to rob ME whilst being then armed with a dangerous weapon, to wit, a pistol. The maximum penalty specified for the offence is imprisonment for 25 years, there is no standard non‑parole period for the purpose of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The offender confirmed before me that she pleaded guilty in the Local Court and she adheres to that plea of guilty before me. 2. There is a related offence before the Court pursuant to s 166 Criminal Procedure Act 1986 of possessing an unauthorised firearm contrary to s 7A(1) Firearms Act 1996. This is in respect of same dangerous weapon used in the assault with intent to rob whilst armed with a dangerous weapon offence. The maximum penalty for this offence is imprisonment for five years but because it is before me by way of the procedural provision to which I referred, the jurisdictional limit of the Court is imprisonment for two years. She pleaded guilty to that offence when I read the Court attendance notice to her. 3. Having pleaded guilty to these offences she is entitled to a discount in each case of 25% reflecting utility of those pleas of guilty in accordance with the decision in the Court of Criminal Appeal in R v Borkowski [2009] NSWCCA 102, in particular the judgement of Howie J. The discount will be applied to the sentences arrived at for each of the offences upon the synthesis of objective and subjective facts including the extent the offender has demonstrated contrition and remorse, and my assessment of her prospects for rehabilitation. 4. She asks that I take into account additional offences when I sentence her for the assault with intent to rob while armed with a dangerous weapon. These are set forth in a Form 1 which has been signed by the offender and on behalf of the Crown. The first of the offences is being in possession of ammunition without holding a licence or permit or authority. The maximum penalty for that offence is a fine represented by 60 penalty units. That offence is contrary to s 65(3) Firearms Act 1996. 5. The second offence on the Form 1 is of wearing an item of police uniform when not being a police officer or special constable. That offence is contrary to the Police Act 1990 s 203(1), for which the maximum penalty specified is imprisonment for two years and a fine represented by 100 penalty units. The offender confirmed that she wishes the offences taken into account and she admitted that she was guilty of each of them. 6. The offender must be sentenced to a term of imprisonment which in this case will be an aggregate sentence upon the appropriate assessment of accumulation and concurrence between the two offences upon which sentence is to be determined, the sentence for the principal offence to be assessed upon the facts and circumstances relevant to that offence and her subjective case and taking into account the additional offences on the Form 1. Having availed herself of this opportunity the offender has gained considerable advantage and does not face separate punishment for what are, within context of their commission, serious offences. But at the same time she's provided utility in taking the course that she has, clearing the slate in this way, getting all matters called in and disposed of in the one sitting, and that must be brought to her account in her favour. 7. I am familiar with the statements of principle by Spigelman CJ in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1996 No 1 2002 [2002] NSWCCA 518, the guideline judgement promulgated by the Court of Criminal Appeal guiding sentencing Courts when considering the determination of sentence in which Form 1 offences are to be brought to account. The additional offences will impact upon the sentence for the principal offence, requiring an appropriate increase to the sentence that would have otherwise been applied to the principal offence were it standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct and the community's entitlement to retribution for all of the offences. 8. The increase will be of modest proportion in this case. The circumstances of those additional offences are disclosed in the statement of agreed facts, to which I shall come shortly, indicating that they should not impact other than marginally when I assess sentence for the assault with intent to rob whilst armed with a dangerous weapon. 9. There is pre‑sentence custody to be brought to account. The offender committed an offence of supplying a prohibited drug unrelated to the matters with which the Court is here concerned today. The consequence of that conviction was that she suffered a sentence of imprisonment of 120 days or four months from the 2 November 2019 to 1 March 2019. 10. I misspoke earlier in the course of the hearing when I referred to a period of four months and 14 days; that was in fact within another section of the Crown sentence summary and was not relevant. The sentence for the offence of supply prohibited drug which she has served whilst in custody waiting for this matter to be determined was as I have said four months commencing on 2 November 2019. 11. I am asked to consider the principle of totality which I must of course, and to provide a measure of concurrence between that sentence and the sentence I am about to impose. However, as the sentence is for a completely unrelated matter, and bearing in mind the time when that offence was charged, which was on 6 April 2018, some five months or so, before she committed the present sequence of offences, in my view, against the record of antecedents she has accumulated it would be not appropriate to take that course. Accordingly I shall accumulate the sentence I am about to impose upon that sentence. The result is that the sentence I impose today will commence on 7 January 2019. 12. The misconduct upon which the offender engaged was whilst she was subject to conditional liberty. She was on bail for offences of negligent driving, supply prohibited drug, and goods in custody, when she committed this sequence of offences. Moreover, she was subject to a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. In fact there were two of them, one for each of two offences, the first dealing with property the proceeds of crime of less than $10,000 value and dishonestly obtaining of property by deception. 13. According to JusticeLink she has not been called up in respect of the breach of the bond which was by reason of the commission of these further offences. As I proceed through these reasons I note that inquiries are being made to locate the paperwork relevant to that matter, or those matters I should say, to determine the breach of bonds. What I proposed in the course of the hearing of the matter was that the offender be called up in respect of each of them, that the breach in each case be found, but without imposing a penalty upon the application of s 10A Crimes (Sentencing Procedure) Act 1999 upon revocation of each of the bonds; bearing in mind that she is already the subject of conviction. I take that course, or will take that course, if it is opportunistic to do so, in light of the sentence to which she is about to be exposed. 14. The Crown concedes that the weapon used in the commission of this offence of assault with intent to rob armed with a dangerous weapon was, by definition, a dangerous weapon; but was in fact a toy pistol. 15. The concession by the Crown is that it is not in a position to prove other than that the item was a toy pistol as acknowledged by the offender in the course of the assessment by psychiatrist, and as suggested by the victim of the assault with intent to rob who by reason of the noise emitted when the slide on the weapon was activated came to the view that it was in fact a toy pistol, in response to which he was less compliant than otherwise might have been the case. Upon the application of the relevant provisions in the Firearms Act the nature of the weapon, as a matter of law, is a dangerous weapon and is an unauthorised firearm for the purposes of the related offence. 16. I should also observe the nature of the offence to which the offender has pleaded guilty. An offence contrary to s 97(2) Crimes Act 1900 is committed in the following circumstances; first of all with reference to subs (1) which provides: "Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person...shall be liable to imprisonment for 20 years." 1. Subsection (2) provides: "A person is guilty of an offence under this subsection if a person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subs is liable to imprisonment for 25 years." 1. The offence can be committed alone or when in company with another person and thus one of the matters to be brought to account in the assessment of the objective gravity of this offence is that the offence was committed in the company of another person, in the circumstances that I shall describe. 2. That other person was the sister, it appears, the offender's sister, who at law was a child. She was charged with assault with intent to rob in company, an offence which carries a maximum penalty of 20 years in contrast to the 25 years maximum penalty to which the offender before me is exposed. She pleaded guilty and was dealt with in the Children's Court where pursuant to s 33(1)(e) Children (Criminal Proceedings) Act 1987 she avoided conviction but was made the subject of a probation order for a period of 12 months. Although parity does not strictly apply, in these circumstances it is not a matter that can be overlooked when determining the sentence for this offender who appears before me as an adult by three years with an extensive array of criminal antecedents in contrast to the co‑offender who had limited, if any, antecedents as I understand it, and who as I indicated was dealt with as a child in the Children's Court. 3. The facts reveal an event involving serious criminal misconduct that is conceded on behalf of the offender that the objective gravity of this offence must fall about midrange. The Crown's submission is that it falls a little above midrange. It is always a question of judgement where to place an offence upon the scale of seriousness, and minds will differ, but it does not seem to me that the parties are very far apart on this point. Having considered the material, and the circumstances surrounding it, including matters that might at first blush appear to be strictly subjective, in accordance with what was discussed by Johnson J in Tepania v R [2018] NSWCCA 247 I have come to the view that this offence would fall about midrange of objective seriousness. 4. On 5 September 2018 at 3pm the victim commenced his shift as a taxi driver. During the early hours of 6 September 2018, namely at 2.45am, a call was placed to the taxi company from a mobile phone number ending in 424, requesting a taxi to drive one person from an address in North Strathfield to Beaumont Hills. At 2.46am the victim was dispatched to take this call. At 2.50am that same day, he arrived at the address, and a female wearing a dark hoodie pulled over her head entered the taxi; shortly after a second female wearing a black balaclava and hoodie entered the taxi and sat behind the driver and closed the door. The victim commenced the trip when the second female said to him, "I want your money; give me your money". 5. The victim turned around and realised the female was holding what appeared to be a gun to his head. He described it as being similar to a police pistol. It is common knowledge now that the police are issued with Glock semiautomatic pistols, or self‑loading pistols. What he next observed is consistent with that description. He told the females that he had just begun his shift and he did not have any money; she then told him that she would count until two and then shoot him. He said she began to "load" the gun by pulling the top part of the gun, a description consistent with the slide being brought back to engage the first round in the breech from a magazine. The victim said in his statement to the police, "When she loads the gun, I realised the gun was fake as it sounded like plastic and not metal". 6. The second female asked the victim for his wallet and he said it was in the boot and he released his seatbelt at which point the female with the gun told him not to move. The victim began to perform a U‑turn in the taxi and when he refused to stop the car at the direction of the two females they exited the vehicle at the end of Malta Street near Allen Street Reserve. The victim then alerted the taxi service at 2.55am that, "Two girls with mask had put gun on head black cloth and mask". A supervisor acknowledged at 2.58 am in regard to the delay in the taxi commencing the journey. At 3.08am another message was sent by the victim that; "Two girls wearing masks got in cab one pulled out a gun to driver's head and tried to rob driver. When she tried to load pistol driver noticed it was fake". 1. Police were called at 3.11am by the taxi company. At 11.40am the police began a canvass of the surrounding area for closed‑circuit television and obtained closed‑circuit television from the taxi company. Upon review of stills provided they identified the offender as a potential suspect. Inquiries reveal that she was living at an address in North Strathfield about 200 metres south of pickup address. The police began monitoring her social media profile, and on 7 September 2018 they observed a video posted to an Instagram profile belonging to the offender depicting her with a similar looking firearm standing next to her mother captioned, "When your mum's cool with you being a crim". 2. Also on the same profile there is a video depicting her in a New South Wales Police cap. The police were granted a search warrant, which they executed at the offender's residence. They found a New South Wales Police Force cap, a black balaclava, clear glasses, a black baseball cap, a grey Puma brand hooded jumper and a black Adidas backpack containing a Sportsbet card in her name, two blue latex gloves, a black woollen glove and a plastic replica handgun and magazine. 3. A bag of gel balls was found on a table in the rear yard. This, as I understand it, is the exhibit the subject of the charge of possessing ammunition. During the search the police spoke to a number of members of the household including a Mr Koopman; they asked if the occupants recognised the other person depicted in the CCTV stills, and later that evening Mr Koopman told the police it was his daughter, the co‑offender. She, in due course, was arrested and has been, as I said, prosecuted in the Children's Court. 4. The offender was arrested at 8.25pm at another address. Born in 1998 the offender has this year reached her 21st birthday. She has been appearing in Children's Court since November 2014 when aged 16, first of all for contravening an apprehended domestic violence order, and for common assault. She was given two bonds in respect of those offences, each for 12 months. In September 2015 for common assault and contravening the apprehended domestic violence order she was called up and suffered another two bonds for another 12 months. 5. In April 2016 for robbery armed with an offensive weapon, committed in company it appears, she was made the subject of a control order of seven months, including a non‑parole period of three months. In July 2016 for being carried in a conveyance, taken without the consent of the owner, she was made the subject of a bond for a period of nine months with supervision. In April 2018 for dealing with property proceeds of crime, and dishonestly obtaining property by deception she was ordered to enter the two bonds for periods of 18 months each, which are the bonds breached by the offending with which I am now concerned. 6. In January 2012, not in chronological sequence of course, in the Children's Court, a contravention of an apprehended domestic violence order was dismissed with caution. In November 2014 in the Children's Court a common assault resulted in a bond for 12 months, so too for a second common assault dealt with at the same time. In September 2015, she was called up for breaching each of those bonds, and was made the subject of further bonds pursuant to the same provision for a period of 18 months. 7. In June 2015 for failing to comply with a direction, assaulting a police officer in the execution of duty, the first of those was dismissed with a caution, the second resulted in probation for 12 months with conditions. She was called up in respect of that probation in September 2015, and was given probation for another 12 months. In April 2016 for assaulting a police officer in the execution of duty, for which she had the probation earlier, she was required to perform community service of 25 hours. In June 2015 for possessing or using a prohibited weapon without a permit, she was given a bond for a period of six months. She was called up for that in April 2016 and was given a bond again for six months. 8. In January 2016 for aggravated break and enter she suffered a three months' control order, for a second offence of aggravated break and enter, a further control order of three months, both concurrent. Those offences were committed in company. In July 2016 for having her face blackened with intent to commit an indictable offence, she was given ten months' probation. For stealing property in a dwelling house, she was given ten months' probation. 9. On 1 May 2019 for negligent driving she was fined, and for supplying prohibited suffered a four months' imprisonment to which I earlier referred, a period that she served whilst waiting for this matter to be presented, and for goods in custody she was convicted without penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. There is a warrant out for her arrest in Queensland for an offence of possessing tainted property, in respect of which she failed to appear. 10. Her time in custody has been unfortunately with some punishment beginning in December 2018, refusing or failing a drug sample, damaging or defacing her cell, and in January 2019 for possessing a drug implement, and refusing or failing a drug sample, and within the same month unlawfully using a phone or fax. That matter was dismissed for the lack of evidence, it appears. March 2019 she refused or failed a drug sample, in May 2019 she damaged or destroyed property. Compensation of $18.95 was awarded which would indicate that the damage could not have been extensive. There is no evidence before me, but Mr Pace upon instructions said that there was some difficulty for the offender providing urine samples when required to do so, perhaps through embarrassment or lack of privacy, I am not too sure, but that was the explanation offered for her failure to cooperate in that regard. 11. There is a sentence assessment report which is part of the Crown bundle exhibit A. This reports the support she has from her mother and family, and that she will upon release return to the family home. Her mother has made clear though that if she does not change her direction, the support will be withdrawn. She must cease in her antisocial behaviours upon release. I note that her mother and grandmother and other family members are present in Court to support the offender. 12. She has had a history of employment, limited though it is. She worked for about seven months in 2017, 2018 as a courier. The antecedent history is noted, commencing in 2014 when she was 16 years, including violent offences. She has been subject to management plans and a period of segregation due to poor behaviours in custody. She completed her last management plan successfully in January 2019, and since then it appears that there has been an improvement in her behaviour, and returning once again to the custodial record, there was unfortunately an event on 29 March and a further event on 10 May this year, which challenges that proposition in the sentence assessment report written in June. 13. She told the officer that at the time of the offending, she thought it was a bit of a joke, and thought it would be funny, and she commented that she wanted to join in with her stepsister. But beneath another heading in the report, she acknowledged the seriousness of the offending, and the potential consequences for the victim. She expressed embarrassment, and believed that she had been stupid. She was using cannabis and heroin daily up to the commission of the offence. She has agreed to participate in counselling and whatever programs might be available, as might be required. 14. She would perform community service work if required. Reference to her prior contact with Community Corrections was made. She had one period of supervision for the s 9 bonds to which I have referred. She was referred to external service providers, and her supervision was terminated in May 2018 due to her rating being assessed at medium to low at that time. That is a reference to her risk of reoffending, of course. Her response was considered to be satisfactory. She did however embark upon further misconduct thereafter. 15. She has been assessed with a medium risk to reoffending. There is a supervision plan which would include referral to drug abuse counselling, community mental health for assessment and treatment as required, drug testing, liaison with significant others to monitor progress and participation in activities to address lifestyle issues. Her report generally is favourable, but unfortunately the offending is such that the opportunities to which it refers are not options that the Court could properly consider. 16. The material tendered in the defence case includes the letter written by the offender. She has not given evidence and explains that she felt unable to do so, because her level of anxiety would such that she would not be comfortable facing that obligation and all that it would involve. 17. The difficulty the Court then has of course is the subject of comment in multiple authorities, beginning with the decision of R v Qutami [2001] NSWCCA 353 and in particular the judgement of Acting Justice Smart reminding sentence judges of the circumspection that must be observed when assessing representations attributed to or made by an offender that have not been given under oath or affirmation, and have not been tested by cross‑examination, that statements are admissible for the determination of sentence, but caution is required. 18. Her challenges in the witness box she said are caused by her mental health giving rise to anxiety and discomfort. She represents that the only way she can express herself and tell me what is in her head is by way of this document. She writes of being ashamed and embarrassed. She speaks of her immaturity and thoughtlessness, and her plain stupidity. She was on prescribed medication, Xanax, but had consumed two glasses of red wine which had a deleterious effect, it would appear, and it was contrary to the advice of her doctors that she should not consume alcohol when taking this medication, which she acknowledges here in this document. She is of the view that had she not done so, she would not be sitting where she is and facing the consequences of the misconduct. 19. She speaks of feeling horrible for the victim. She accepts that she traumatised him and his family, and caused him to fear for his life, and tried to take his hard earned money. She understands that the impact might have extended to prevent him continuing in his career. She acknowledged that if it had been her mum who suffered this behaviour, she would be terrified and shaken up, and she, the offender, would be furious at the criminal who committed the offence. Such traumatising behaviour should not be perpetrated against anyone, let alone, she said, an innocent man. 20. About the time of the offence, she was using heroin intravenously. Though it was not daily, she recognised it was a problem. She was taking medication to assist with her mental health. There was some movement about the medication and quantities prescribed to identify what was best for her need. She speaks of her evolution through the misuse of drugs to reach the stage where she was at the time of the commission of these offences. She does not like being in gaol; I do not think I have ever heard anyone say that they did enjoy it. She has been exposed to people who are in and out of gaol regularly, and she is concerned that she might end up as they are, and she concludes by representing: "My plan for release is to get on the Suboxone program, and be an outpatient to rehab the day I get out. I will go straight to Concord Hospital and do that. I will also attend NA meetings, while at the same time go and get a baker's apprenticeship. I want to look after my grandmother and spend time with my baby niece. I have never been so ready to get out and succeed, this is the first time I have seeked (sic) rehabilitation and be excited and positive as well. I know I have snapped out of my immaturities and have definitely learnt my lesson because I will do anything to go back in time. This isn't the life for me, I want to live a normal life and start a family and be healthy. May I please ask your Honour that whatever time you give me you consider me to have a longer parole period than a non‑parole period. Thank you for taking the time to read this letter. Your Honor" (Honour" is spelt H‑O‑N‑O‑R, as I see) "I am sorry." 1. Included in the material before me is a report from a psychiatrist, which I have found helpful. Dr Kerri Eagle, in my experience provides objective and appropriately detailed reports in respect of people he or she is called upon to assess. The report was written on 3 June 2019. The doctor recognises the deficiencies in an assessment made by audiovisual link, and makes the obvious statement that it is preferable to conduct psychiatric assessments face to face, but there were no specific limitations in this exercise that might impact upon the opinion that was reached, and I take some comfort in the raft of material that doctor had to reach the opinions given. He or she acknowledged the inherent limitations in any cross‑sectional psychiatric assessment, but the historical material to which reference is made must have been of great assistance, I would expect, some of that material has been included in the bundle. 2. The presenting illness identified by Dr Eagle is against the following history. At the time of the offences, she was unemployed, living with her family. She went to her father's home for about a year until April 2018. It was not too bad, she said, living with him, there were more drugs around, arising from his situation and his people. She said that she had stopped using illicit substances for a period before the offences, but then commenced again about twice a week. She began seeing a psychiatrist; she was prescribed antidepressants, and Alprazolam to help her stop using illicit drugs. She consulted Dr Chan, psychiatrist. 3. She spoke about her prescription medication, and the on and off use of prohibited drugs. She conceded that she was with her sister at the time of the offence. She doesn't qualify that relationship as it appears in the other document. Whether she was a stepsister or a sister, I accept they were in a relationship as siblings in the commission of this offence. She was diagnosed with Asperger Syndrome when she was eight, and with ADHD as child, but without medication prescribed. She said she used prohibited drugs because of depression. Her substance use history is what the Court has come to understand, unfortunately, for offenders such as this. 4. She was five years old when was introduced to alcohol by way of champagne. She began to avoid school, and would go drinking alcohol in parks. She was introduced to cannabis by her father. Once she resorted to cannabis and the later drugs, alcohol was no longer a problem. She began smoking methamphetamines and using MDMA when she was 14 until 16. She rarely smoked cannabis when she was using those drugs. She ended up in juvenile justice, and when released, she was progressing over about a year, but then started using substances intravenously. At 18 years of age, this began. She was using OxyContin intravenously, she smoked heroin, but then started to use it intravenously on and off after turning 18. A friend provided with her Suboxone strips. She planned to get onto that program. She would, she said, undertake drug and alcohol rehabilitation programs in the community. She did attend the PALMs at Randwick when she was about 14 or 15 years of age. 5. She described the offence which involved "pretty much awful things". She said the gun was purchased as a toy; it wasn't purchased in order to do robberies. She had the police cap from a New Year's Eve party, apparently the police attended that, and there was something of a fight or scuffle, and she retrieved the cap from the floor and kept it, not realising that to wear it might be an offence. She expressed regret and remorse, and feeling bad for the victim. The agreed facts are noted. 6. Her misuse of drugs began within the family. She attributed her misconduct to substance use and associating with the wrong peer group. That must be a reference to matters of history. I would not have thought she would make that comment regarding her sister with whom she committed this offence. She grew up in some difficult circumstances. There was domestic violence in the home when she was a child. 7. The upbringing she described as chaotic and violent. She moved between her father's home and her mother's home, obviously her parents separated. Her stepmother and her father would become intoxicated. Her father was violent towards her stepmother, there were arguments within her mother's home, to which she referred, and it is not difficult to take notice of the fact that a child beginning at the age of five, at a time when they ought to expect nurturing and love and affection and care through the formative years, must suffer drastically when exposed to home environments such as these, and when added is the Asperger Syndrome and the ADHD, it is not surprising that she has followed the path that she has. 8. Dr Eagle proceeded through the additional documentation, the report dated 9 May 2006, to which I shall come, includes reference to psychometric assessment undertaken when she was eight years and three months old, against the background noted of exposure to domestic violence as a child, running away from home and hiding when in trouble, demonstrating rigidity to change and difficulties with socialisation, hoarding and anxious behaviours, unsurprising in the circumstances, I might say. Her IQ of 87 is noted. 9. Diagnosis by this doctor is major depressive disorder, Asperger's Disorder, ADHD and severe substance use disorder apparently in remission in the controlled environment. Mental health issues are discussed at p 8 of the report, where the following is written: "Ms Vittori has had a childhood diagnosis of Asperger's Disorder and ADHD. Asperger's Disorder is a developmental disorder of communication and behaviour. Anxiety and behavioural disturbance have been associated with both Asperger's and ADHD. In addition, Ms Vittori has also been exposed to an acrimonious separation of her parents and domestic violence from a young age. She engaged in illicit substance use from early adolescence in the context of peer influence. Her unstable home environment and exposure to conflict likely contributed to her susceptibility to influence from others, and resulted in increased emotional disregulation that she attempted to address by using illicit substances." 1. That would seem to me to be a fair summary describing the young woman I have in front of me, and the reason why she is here. 2. There is reference to Dr Chan, and that the offender accepted treatment prior to these present offences. There is reference to her represented motivation to address her substance use disorder. When dealing with the causal connection between her mental health and the offences, the following is written, again at p 8: "Ms Vittori has a number of psychological vulnerabilities, described above, that have resulted in a susceptibility to peer influence and a substance use disorder. The use of substances, including prescribed substances such as Alprazolam and Diazepam, is associated with impairments in judgment and increased disinhibition. At the time of the index offences, Ms Vittori was in the company of her sister and reported the use of benzodiazepine type substances (Alprazolam and Diazepam). These factors are likely to have contributed to impairments in her judgment at the time of the index offences." 1. There is a reference to the risk of institutionalisation, and one could take note of the proposition here advanced that prolonged periods of time in excess of five years in an institutional setting will increase her risk of reoffending. 2. Then there is a discussion of her prospects for rehabilitation, and there are protective factors identified in her condition with her young age. Recommendations include management of her depressive disorder and Asperger Syndrome, and the ADHD. Substance use disorder needs to be addressed. She would benefit from vocational rehabilitation, appropriate accommodation support, and she needs to avoid the peers that have contributed to her pattern of offending. 3. There is a psychologist's report written by Neil P Nicoll on 31 July 2006, consistent with what has already been provided by Dr Eagle, confirming that she met the criteria for Asperger's Disorder, in 2006. The offender was eight years of age. The assessment included review of a background, including her deteriorating behaviour, her language and communication, her reciprocal social interaction, her stereotyped behaviours and restricted interests, and ultimately the opinion that she met the criteria for Asperger Syndrome. 4. St John of God Hospital provided a document written on 17 April 2018, of her presenting with depression and anxiety, which led to over her lifetime resort to heroin to self‑medicate. She was presenting with the criteria of a major depressive episode, opioid abuse in early recovery in the context of conduct disorder, lacking in a social role. This was written by Dr Charles Chan, consultant psychiatrist. 5. There is a further document from Dr Chan written on 29 May 2018 reporting upon the review conducted that day. She was brighter, more relaxed, with improved mood and sleep, reduced nightmares and anxieties, responding well to the combined medication prescribed. She at that stage was abstinent opioid use, and was staying away from her substance using friends. On 26 June 2018, he wrote upon a further review; there is reference to his advice given regarding the harmful effects of Alprazolam. She was convinced that it was the only drug that would assist with her anxieties. He switched her to Diazepam, hopefully to slowly reduce. 6. There is a series of documents provided from her custodial setting, where she is at work, and her efforts toward rehabilitation. 7. Finally I have a document from her mother, consistent with the history that I have already rehearsed from the other documents. The mother provides information regarding the home life that the offender experienced. The observation she has made regarding her mental health, and the steps taken to get help through St John of God, which led to Dr Chan, as I understand matters. With regard to the image of her and her daughter, to which I earlier referred, with the caption, "When you are mum's cool with you being a crim", she points out that her image shows that she is not impressed. She has communicated to her daughter how immature she thought it was. She recalled telling her to grow up. She could not contemplate that she would have used the toy to commit this crime. She writes of having spent eight years trying to keep her on the straight and narrow, and that she would never give up on her daughter. 8. The Crown submits that this is a matter where there is planning. There must have been planning, because of the telephone call made to arrange for the taxi to come to the point where the offender and her sister entered the vehicle. They dressed in clothing that could have no purpose other than to mask their identity. The weapon was not other than a toy, but as the Crown said, there must have been for some period of time a degree of fear experienced by the victim. I will take notice of that, although there is nothing before me other than the agreed statement of facts. There is nothing to indicate any ongoing sequelae or anxiety that the victim suffered as a consequence of this. 9. The Crown points to the prior record and conditional liberty, which is relevant, and is perforce of the legislation brought to account in aggravation, but not of the objective seriousness or the sentence that is otherwise to be imposed. It informs however of the need to give appropriate weight to specific deterrence, and the extent to which the offender cannot have leniency that might have otherwise been offered to someone with no antecedent offence, and who was not on conditional liberty at the time of the crime. He noted the medium risk of reoffending that has been observed. He reminded me of the range of sentences identified in the Henry guideline judgement, and said there are factors that point to this being more serious than the Henry guideline judgement, but other material before me that would point in the other direction. Ultimately when all is drawn in, his submission is that the offence would fall squarely within the penalty range identified in that authority. 10. Mr Pace in his usual fashion has provided detailed and comprehensive submissions that address all of the material that I need to bring to account. I am reminded of her age. I am reminded of the psychiatric assessment supported by the historical assessments given through the reports of Dr Chan. Moral culpability, he said, is reduced by reason of the diagnoses that the Court, he submits, must accept. Although there was a measure of planning, there is immaturity and limited sophistication in the commission of this offence. He submitted the robbery commenced at a point not too far distant from where the offender was then living. The mobile phone used to book the taxi was the number for the phone that her sister had, and no doubt would have been traced back in due course. 11. He recognises that this falls about midrange, it is a serious offence, but ultimately the victim was aware that it was a toy gun, and though he was no doubt fearful for period of time, upon realising that it was a toy, he was less compliant with the offender and her companion. The submissions provided are consistent with what the Crown said. This conduct is more serious than the more typical armed robbery identified in R v Henry [1999] NSWCCA 111 but the sentence would fall within the range prescribed in the guideline. She is a young offender, limited degree of planning, but there was a measure of planning to which I have spoken; a threat of violence although none was actually offered; and vulnerability because of the position of the victim as a taxi driver. 12. The differences in this case include that there are offences on the Form 1 to be taken into account; the plea of guilty was entered at an early opportunity compared to the example given in the Henry guideline judgement. A young offender though, she has an extensive record of antecedents and was on conditional liberty at the time of the offence. The weapon was a dangerous weapon, which I must say does cause me some concern. 13. A knife is clearly an offensive weapon; under the legislation, by force of the provisions a toy gun becomes a dangerous weapon exposing the offender to a higher range of penalties, but in the circumstances, an offender armed with a knife and not a toy pistol would be more likely to cause or there would be a greater risk I might have thought, of harm by reason of a knife rather than a plastic pistol. Either way, I have to approach this matter on the basis that it was a dangerous weapon, exposing the offender to a higher range of maximum penalties. She was in company, which is a factor different to the Henry judgement. 14. The ultimate submission is that a sentence would fall somewhere between four and five years, as envisaged in Henry, a proposition with which I agree. 15. The criminal record has been addressed, the s 21A matters have been addressed, the mitigating factors include the plea of guilty and remorse and insight, I am prepared to accept that there is remorse and that she has some insight. The extent to which there is are prospects of rehabilitation must be guarded in light of the history that I have before me. Accepting that she might be sincere in wanting to change her ways, having seen other inmates with greater experience of that environment than her, and the deleterious effect that might have upon them, there is a great motivator I would accept; but she has easily gone astray when given the opportunity to return to the community, so though accepting sincerity in that regard, I cannot conclude that her prospects for rehabilitation are strong; but one hopes that she has the strength supported by her mother and family, to take the opportunity that I will give her by way of a finding of special circumstances as I intend to make in this case. 16. I am reminded of Bugmy v R [2013] HCA 37. The deprivation in formative years is not confined to people of indigenous background. Unfortunately it extends across all ethnicity, and this offender, in my assessment of the matter, is one to which the principles in that decision apply. It is, I would say, beyond question that children who are brought up with such inadequate parenting, and I should pause here to note that I do not reflect upon her mother, or her grandmother, or other family members who have come here in support of her; they no doubt have their challenges through this period of time, but ultimately I am dealing with a young girl or a young woman now, I should say, who through her formative years at a young age was not given the nurturing and support constantly that she was entitled to have as a child in our society, and that has an impact. It explains why she might resort to illicit substances beginning with alcohol, at age five, and explains how she would resort to prohibited drugs particularly when synthesised with the psychiatric diagnosis which was made from when she was eight years of age. That must be brought to account in the assessment of the punishment she has to face. I am reminded of other decisions; for example, R v Millwood [2012] NSWCCA 2, and the judgement of Simpson J. There is reference to the youth of the offender which must be something to be brought to account. That sounds also with the aspect of immaturity and what is said to be impressionability again to be synthesised with the psychiatric condition or psychological condition whichever term one might use, identified in the material before me. 17. I accept the diagnoses that are made in respect of the offender. 18. All of the purposes for sentencing in s 3A Crimes (Sentencing Procedure) Act 1999 apply here, bearing in mind that the line in s 5 of that Act has been crossed and there is no sentence other than one of imprisonment, appropriate in all the circumstances. Accordingly, appropriately, there must be attention given to specific deterrence, denunciation and recognition of harm, general deterrence is not so significant in this case because of the history of psychological or mental health, but at the same time she has demonstrated a propensity for committing crime at the expense of the community; an there is a need to balance against her circumstance the need to protect the community from her tendency to commit offences. 19. As was said by Gleeson CJ, in Englert, these purposes of sentencing will pull in different directions in the exercise of judgement in such a case. 20. I have taken into account the Form 1 offences. I should note that s 21A(5)AA Crimes (Sentencing Procedure) Act 1999 does not allow self‑ingestion of intoxicating substances whether prohibited drugs or alcohol to mitigate in a case such as this, but it must be brought to account that her history of drug use is the product of the formative years in combination with the psychiatric and psychological issues to which I have referred. 21. I have brought to account the offences on the Form 1. 22. For the offence of possessing the unauthorised firearm after the application of a discount of 25% and abandoning the days that extended beyond the sentence expressed in terms of years and months, I would indicate as an appropriate sentence imprisonment of 1 year and 1 month. The 25% discount therefore is a little greater than, or the discount, rather, achieved will be a little greater than 25%. 23. Similarly, with the offence of assault with intent to rob armed with a dangerous weapon, taking into account the additional offences, and applying a discount for 25%, I reached an indicative sentence expressed in years, months and days. I have abandoned those days, so the discount in result will be a little greater than 25%. But I specify as an indicative sentence one of 4 years and 3 months for that offence. 24. I specify an aggregate sentence. I find special circumstances. There is a need for this offender to be on parole for a longer period than might otherwise be the case upon the application of s 44 Crimes (Sentencing Procedure) Act 1999. Moreover, this is her first period in an adult facility, and I am concerned to ensure that at her age she does not suffer institutionalisation rendering her more likely to commit further offences once ultimately released. Thus I will specify an aggregate sentence of 4 years and 6 months. That will include a non‑parole period of 2 years and 3 months commencing on 7 January 2019. The offender will be eligible for release to parole on 6 April 2021. Being a sentence of more than 3 years, it will be a matter for the parole authorities to determine her suitability at that time, together with whatever conditions her criminogenic need might require at the point of release. 25. To repeat those sentences, for the assault with intent to rob, 4 years and 3 months indicative. For the offence of possess unauthorised firearm, 1 year 1 month, aggregate sentence, 4 years 6 months from 07 January 2019 including the non‑parole period of 2 years 3 months, with a release to parole eligibility on 6 April 2021. She is not eligible for referral to the compulsory drug treatment program, so I will not make that order. ********** 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: 21 October 2019