By Paul Gregoire and Ugur Nedim
It was just before 9am on 26 October 2013, when 52-year old Peter Hayek pushed open the unlocked door of Sydney Cove Chemist at The Rocks and made his way into the dispensary. The lights were off, and employee Ms Gao was nowhere to be seen, although her handbag was on the counter.
Mr Hayek had followed Ms Gao into the shop. He was dressed in black and was wearing a pair of gloves. He walked over to the staircase and saw Ms Gao descending the stairs.
Ms Gao asked if she could help him.
Hayek responded that he wanted to be shown to the safe. “Codeine, Oxycontin and money,” he demanded. The nervous employee said she would cooperate and walked the intoxicated man over to the safe.
Hayek loaded up the shopping bag he was carrying with codeine, oxycodone and methadone. He told Ms Gao that he didn’t want to hurt her. Then he demanded the money, which he was told was in the till. He also asked for the cash from Ms Gao’s purse.
After grabbing the money from the till, Hayek asked to be shown where the drug Xanax was kept, and he proceeded to load up another bag.
“Sorry, I don’t want to do this, but I have a habit and the doctors won’t give me the drugs, so I have to do this,” Hayek explained, adding that if Ms Gao called the cops, he’d come after her. “Now go back into the room and count to one hundred and don’t come out until you finish”, he said.
A customer, who was waiting for the pharmacy to open, saw Hayek exiting. The witness got the attention of a police officer. Senior Constable Hayden called out to Hayek, who took off up George Street. The officer pursued him, and caught him soon afterwards.
Convicted on all charges
Peter Hayek pleaded guilty in the District Court of NSW to aggravated break, enter and commit a serious indictable offence under section 112(2) of the NSW Crimes Act 1900.
On 16 February 2015, Her Honour Judge Hock sentenced Hayek to six years imprisonment, with a non-parole period of four years.
The ‘serious indictable offence’ relied upon was robbery, and it was aggravated by the fact that a person, Ms Gao, was on the premises.
The offence carries a maximum penalty of 20 years imprisonment, with a ‘standard non-parole period’ (SNPP) of five years.
An SNPP is a ‘reference point’ or ‘guidepost’ for the sentencing court when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
Mr Hayek was also convicted on three charges of supplying a prohibited drug under section 25(1) of the NSW Drug Misuse and Trafficking Act 1985.
On top of this, he was convicted of a further six related summary offences: four of possessing a prohibited drug contrary to section 10 of the Drug Misuse and Trafficking Act, and two of possessing a prescribed restricted substance contrary to section 16(1) of the NSW Poisons and Therapeutic Goods Act 1966.
Judge Hock took into account the three drug supply charges when handing down the sentence for the offence of robbery. As for the six summary offences, no further penalty was imposed in accordance with section 10A of the NSW Crimes (Sentencing Procedure) Act 1999.
A history of drug dependency
During the sentencing proceedings, the court heard that Mr Hayek, who was 52 years old at the time of the offences, had a “long history of criminal offending.” He was first before the courts at the age of 16.
He was out on parole at the time of the offence, after serving time for a conviction of conspiracy to cheat and defraud. His parole was revoked after he was arrested for the robbery offence, and he was sent back to Bathurst prison, to finish up the rest of his that sentence.
The court heard that Mr Hayek has a teenage daughter, whom he was supporting through boarding school using the funds of a sizable inheritance he’d received from his father. He was distressed on the day of the robbery, as he had read social media posts by his daughter which suggested she was engaging in acts of self-harm.
A report from a forensic psychiatrist Dr Ellis outlined that Hayek had a long standing heroin dependency and would inject himself with the drug three to four times a day. He had also partaken in the use of a range of other drugs.
Dr Ellis wrote that Mr Hayek reported having a good upbringing. However, his drug use had become chronic at a young age and all of his subsequent offending stemmed from his addiction. The doctor found that the defendant suffered from anxiety disorder.
Hayek’s lawyers elicited testimony from their client that he first started using drugs when he was 14, due to “peer pressure,” and in an attempt to “look cool” to impress a girl. On the day of the robbery, he had taken six Xanax tablets and was deeply anxious about his daughter.
The District Court judgment
Judge Hock found that the crime fell “within the middle range of an offence of its nature,” noting that robbery was more serious than larceny. Her Honour added that it was obvious some planning had gone into it, as Hayek was wearing gloves.
Her Honour remarked that the defendant’s repeated offending demonstrated “a continuing disregard for the law.” She agreed his “long term drug use” was the underlying reasons for his offending conduct, finding that his prospects of rehabilitation were “bleak.”
As Mr Hayek plead guilty, the judge gave him a 25 percent reduction on his sentence. Her Honour also allowed some concurrency with the sentence he was already serving, so the new sentence began two months before the old one expired.
Her Honour also referred Mr Hayek to the Compulsory Drug Treatment Correctional Centre.
The ground for appeal
Mr Hayek appealed his case to the NSW Criminal Court of Appeal (NSWCCA) on the ground “that the sentence imposed upon him was manifestly excessive.” His defence lawyers argued that there were three reasons why this was so.
Firstly, they submitted that “the assessment of the gravity of the crime falling into the middle range was incorrect”, as the judge did not take into account factors that make the crime less serious, including the fact he did not forcibly break into the pharmacy, and the modest value of the property stolen.
Secondly, they argued that Mr Hayek’s “long-standing drug addiction” should have been considered a mitigating factor, along with his “health issues and his need to provide support to his daughter.”
Lastly, they calculated that after the 25 percent reduction on his sentence was applied, the starting point should have been eight years, and that this would have resulted in a non-parole period of five years and four months – a sentence which was still in excess of the SNPP of five years.
The findings of the NSWCCA
Justice Wilson of the NSWCCA rejected the first error asserted by Mr Hayek (that the assessment of the gravity of the offence was incorrect), finding that the judge considered all relevant factors.
The judge noted that Mr Hayek’s legal team had failed to address factors that “elevated the gravity of the crime”, including the actual and not just implied “threat of force.”
Drug use is not a mitigating factor
In relation to the submission that Hayek’s long term drug dependency is a mitigating factor, Justice Wilson ruled that this is incorrect at law. Hayek’s lawyers had cited SS v R; JC v R, which was a case where a 12-year-old boy had been introduced to cannabis by an uncle, who regularly abused him.
The justice distinguished that case from the present circumstances, finding that:
“An addiction formed as a child may be a mitigating factor in the particular circumstances of an individual case… But it is an entirely different proposition to suggest that it will always operate in that way, and for any person who began using drugs in youth.”
The justice noted that Mr Hayek was not forced into the use of drugs by an abusive adult, but decided to use drugs to “look cool and impress a girl”. He further noted that Hayek continued to use drugs despite the offer to access “community based rehabilitation programs with the support of community corrections authorities.”
A caution against starting points
The justice remarked that it is inappropriate to assume a starting point of a sentence in order to argue that one is manifestly excessive.
As for the SNPP, the justice noted that this is merely one factor to consider when handing down a sentence – and that a period “greater or lesser than the standard may nevertheless be imposed.”
The justice noted that the sentencing judge took into consideration all the relevant matters when handing down the sentence, which was “neither unreasonable nor unjust.”
“The applicant has failed to establish this ground,” Justice Wilson concluded. “I would not grant leave to him to bring the appeal.”
