Citation: R v Robert ROSALIN [2006] NSWDC 161
Court: District Court of New South Wales
Date: 3 August 2006
Judge(s): Berman SC DCJ
Background
The offender pleaded guilty to two charges of assault with intent to rob in circumstances of aggravation. Both offences occurred in the early hours of 18 February 2006 on Pyrmont Bridge in Sydney, when the offender, acting in company, twice approached the same victim and used threats and violence to demand money and a mobile phone.
In the first incident, the offender and an associate threatened the victim and punched him to the face while searching his pockets. In the second incident, shortly afterward, the offender and two other men chased the victim, made further threats, grabbed at him, and subjected him to further violence. Security officers monitored the entire sequence on closed-circuit television, and police arrested the offender shortly after.
The offender had a relevant prior record, including a robbery in company offence dealt with in the Children's Court in 2002. He had also been diagnosed with schizophrenia and had a history of alcohol misuse. The Shopfront Youth Legal Centre appeared on his behalf.
Legal Issues
- What discount was appropriate on sentence given the timing of the guilty plea?
- How should the offender's schizophrenia and mental health history bear on the sentence, including the weight to be given to general deterrence versus personal deterrence?
- What conditions of parole were appropriate given the offender's mental health and substance abuse issues?
- Whether the offender's expressed regret constituted genuine remorse, and how much weight to assign it.
Decision
Berman SC DCJ applied a 25 per cent discount to reflect the guilty pleas, which had been entered, if not at the earliest opportunity, then close to it. The plea was originally entered in the Local Court; an indictment was then presented in the District Court as a result of a defect in the committal papers, and the offender re-entered guilty pleas accordingly.
The court accepted that the offender's schizophrenia was a significant mitigating factor but was careful not to draw a direct causal link between the mental illness and the offending. The offender was receiving treatment and was compliant with medication at the time of the offences, and the court noted that the offender himself attributed his conduct to intoxication rather than mental illness. Because of his psychiatric condition, the court found it inappropriate to impose a sentence with a significant general deterrence component.
Despite that finding, the court concluded that a component of personal deterrence remained necessary. The offender needed to understand the consequences of continuing to abuse alcohol while being treated for a serious mental illness. The court rejected the submission from Mission Australia that a lenient sentence alone would best serve the offender's long-term interests, finding that rehabilitation and accountability were not mutually exclusive.
On the question of remorse, the court was not satisfied that the offender's comments about the victims being "sad and depressed" amounted to genuine expressions of remorse. However, the court attributed this limited insight to the offender's psychiatric condition rather than treating it as a significant aggravating feature.
Orders Made
- Concurrent sentences imposed on each charge, dating from 18 February 2006.
- Non-parole period of 12 months on each charge, with a total term of 3 years.
- Release to parole on 17 February 2007.
- Parole condition: the offender is to be released to a residential rehabilitation facility.
- Parole condition: the offender is to be supervised by the Probation and Parole Service while on parole.
Key Takeaways
- The District Court confirmed that where an offender's mental illness has no direct causal connection to the offending conduct, it still may appropriately reduce the weight given to general deterrence at sentencing.
- Personal deterrence remained a legitimate sentencing consideration even where general deterrence was diminished by the offender's psychiatric condition, particularly where substance abuse contributed to the offending.
- A 25 per cent discount for a guilty plea entered close to the earliest opportunity was applied, even where the plea was formally re-entered in a higher court due to a procedural defect in the committal papers.
- Limited remorse at sentencing, when attributable to a diagnosed mental illness rather than an absence of contrition, carries reduced weight as an aggravating factor.
- Parole conditions requiring placement in residential rehabilitation and supervision by Probation and Parole can be imposed where the court identifies a need to manage both mental health and substance abuse risk on release.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW) (specific provisions not cited in the judgment)
Cases cited: None cited in the judgment text.