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District Court 22 March 2019

R v Hakos

[2019] NSWDC 151

Assault & violenceTheft & property

Citation: R v Hakos [2019] NSWDC 151
Court: District Court of New South Wales
Date: 22 March 2019
Judge(s): Grant DCJ

Background

The offender, a 30-year-old man with a diagnosed schizoaffective disorder, appeared for sentencing on a single charge of robbery contrary to s 94 of the Crimes Act 1900. On the evening of 25 September 2017, he approached a university student sitting on a platform at Kingswood Railway Station, claimed to have a knife in his pocket, and demanded the victim's watch valued at $350. The victim, fearing for his safety, handed over the watch.

Police arrived quickly, apprehended the offender after a short foot pursuit, and recovered the watch from his wrist. No knife was found during the search. The offender had been discharged from a mental health ward just four days before the offence, following a four-week admission for paranoid thoughts, severe mood disturbance, and chronic delusional thinking.

The offender entered a guilty plea at the first opportunity. He had a prior criminal history, including two earlier robbery convictions as a juvenile, and was on bail for assault charges at the time of this offence.

  • What was the appropriate objective seriousness of the robbery offence?
  • To what extent did the offender's schizoaffective disorder reduce his moral culpability?
  • What weight should be given to general deterrence, specific deterrence, retribution, and denunciation given the offender's chronic mental illness?
  • Whether the threshold for imposing a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed.
  • What sentence was appropriate in all the circumstances?

Decision

Grant DCJ assessed the offence as objectively serious, representing a direct attack on the security of a person and their property, but placed it at the lower end of the scale for robbery. The short duration of the taking and the swift return of the watch by police were noted, though they did not diminish the inherent seriousness of the offence.

On moral culpability, the court accepted the opinion of Dr Furst, a psychiatrist, that the offender was in a paranoid state at the time of the offence as a direct consequence of his schizoaffective disorder. The offender had impaired judgment, poor insight into his illness, and a diminished capacity for consequential thinking. His mental condition materially contributed to the commission of the offence, reducing his moral culpability. The offender's prior criminal history, which was extensive, was also viewed through the lens of his chronic mental illness.

Applying the principles from Muldrock v R and DPP (Cth) v De La Rosa, the court gave very little weight to general deterrence, retribution, and denunciation. An offender with significant mental illness is not, the court noted, an appropriate vehicle for making an example to others. Specific deterrence was also of limited relevance given the nature and severity of the disorder. The court found that the threshold for a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999 had not been crossed.

The court placed significant weight on the offender's engagement with community-based mental health supports, including the Assertive Community Treatment Team, the Flourish Australia Resolve Program, and Partners in Recovery. Dr Furst's evidence indicated that a custodial sentence would be more onerous for the offender, would increase the risk of aggravating his condition, and would restrict his access to mental health services. A 25% discount was applied for the early guilty plea.

Orders Made

  • The offender was convicted.
  • A Community Correction Order was imposed for 12 months, subject to the following conditions:
  • Must not commit any offence
  • Must appear before a court if called upon
  • Must submit to supervision by a Community Corrections officer
  • Must participate in a rehabilitation program or receive treatment
  • Must perform 50 hours of community service work
  • Must report to the Penrith Community Corrections office within seven days

Key Takeaways

  • Where a mental condition materially contributes to the commission of an offence, it can significantly reduce an offender's moral culpability at sentencing, following R v Anderson, Muldrock v R, and DPP (Cth) v De La Rosa.
  • General deterrence is to be given very little weight when an offender has a significant mental disorder, because such an offender is not an appropriate vehicle for making an example to others.
  • The District Court found that the threshold for imposing a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999 was not crossed, even where the offence was robbery carrying a 14-year maximum, because of the combination of reduced moral culpability and strong community-based mental health supports.
  • An offender's active and positive engagement with community mental health services can be a substantial factor in favour of a community-based sentence.
  • A maximum penalty functions as a yardstick to guide the sentencing exercise, not as a target, and must be weighed alongside all other relevant considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5

Cases:
- R v Anderson [1981] VR 155
- Muldrock v R (2011) 244 CLR 120
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1