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District Court 5 November 2014

R v Heath

[2014] NSWDC 351

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW PARTICULAR OFFENCES UNDER THE INFLUENCE OF AMPHETAMINES IMITATION GUN DISRUPTED YOUTH NO PRIOR CRIMINAL RECORD

Citation: R v Heath [2014] NSWDC 351
Court: District Court of New South Wales
Date: 5 November 2014
Judge: Cogswell SC DCJ

Background

The offender, a twenty-year-old man with no prior criminal record, pleaded guilty to assaulting a takeaway shop proprietor with intent to rob while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence carried a maximum penalty of twenty years imprisonment. On the night in question, the offender attended a local noodle store armed with a machete and a homemade imitation firearm, confronted the proprietor, and pursued her on two occasions before fleeing the scene when she stood her ground.

The offender's background was one of significant disruption. He began using cannabis at fourteen and alcohol at fifteen, left school, lost an apprenticeship due to substance abuse, and turned to amphetamines following a car accident that left him with debts exceeding $8,000. A psychiatrist's report diagnosed him with depressive disorder, social phobia, and polysubstance dependence. His stated motivation was to obtain money to pay fines arising from the accident.

The offender had been in custody for approximately 125 days before being granted bail in July 2014. Since the offence, he had also pleaded guilty to stalking and intimidation and possessing a prohibited drug, receiving a good behaviour bond. He was living with his grandparents in a supportive environment and was assessed as a low to medium risk of reoffending.

  • Whether the proceedings should be adjourned under s 11 of the Crimes (Sentencing Procedure) Act 1999 to assess the offender's capacity and prospects for rehabilitation before sentencing.
  • What bail conditions were appropriate to accompany such an adjournment.

Decision

Cogswell SC DCJ accepted the application to adjourn the proceedings pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999. The purpose of the adjournment was to give the offender the opportunity to demonstrate rehabilitation or to allow an assessment of his capacity for it before a final sentence was imposed. His Honour noted that such adjournments commonly result in offenders demonstrating rehabilitation, enabling the sentencing court to impose a sentence that does not involve fulltime custody.

The Crown acknowledged that if rehabilitation were demonstrated, a sentence not involving fulltime custody would be an available option. His Honour also noted that, had the matter been before the Local Court, the offender's psychiatric diagnoses might have made him eligible to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990.

Before adjourning, His Honour formally found the offender guilty and convicted him of the offence. Conditional bail was granted to the mention date of 18 December 2014, with further adjournment to March 2015 anticipated, at which point a final sentencing outcome was to be determined.

Orders Made

  • The offender found guilty and convicted of the offence under s 97(1) of the Crimes Act 1900.
  • Proceedings adjourned to 18 December 2014 for mention under s 11 of the Crimes (Sentencing Procedure) Act 1999, for the purpose of assessing the offender's capacity and prospects for rehabilitation.
  • Conditional bail granted until that date on the following terms:
  • Remain abstinent from prohibited drugs and alcohol.
  • Submit to regular urine drug screens.
  • Undergo regular mental health monitoring by a general practitioner.
  • Comply with all recommendations and treatments by the general practitioner, including medication compliance, attendance at appointments, and participation in individual or group therapy.
  • Transcript of proceedings directed to be available by 15 December 2014.

Key Takeaways

  • Under s 11 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may adjourn proceedings after conviction to allow an offender to demonstrate rehabilitation before a final sentence is imposed.
  • A sentence not involving fulltime custody remains an available option for a serious armed robbery charge where the offender demonstrates genuine rehabilitation, even where the offence carries a maximum of twenty years imprisonment.
  • Mitigating factors recognised by the District Court here included: no prior criminal record, an early guilty plea, a low to medium assessed risk of reoffending, a disrupted and disadvantaged background, a supportive family environment, and a psychiatric diagnosis explaining some of the offending conduct.
  • Where psychiatric diagnoses are relevant, a sentencing court may note that a diversion pathway under s 32 of the Mental Health (Forensic Provisions) Act 1990 could have applied in a lower court, even where that provision is not available in the District Court.
  • Bail conditions accompanying a s 11 adjournment can include drug and alcohol abstinence requirements, regular testing, and mandatory compliance with medical treatment, tailored to the specific circumstances of the offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (adjournment for rehabilitation assessment)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 (diversion of mentally ill offenders)

Cases cited: None stated in the judgment.