16 The Judge summarised the facts of the conspiracy (count 2) as follows (ROS 4-5):
"In March 2006, Bell told Martin that he knew of a person called "Min" who had information about a drug dealer living in Canley Vale. The dealer was thought to keep a large quantity of heroin and about $250,000.00 in cash in his house.
Martin spoke to Jelisavac and Quarta about a proposed robbery. On a number of occasions Martin, Bell, and Jelisavac went to look at the house.
On 20 March 2006 Quarta was involved in a motorcycle accident whereby he sustained injuries. It was then determined that he would not take part in the robbery but that he would still get a share of whatever the others got.
On 24 March 2006 Jelisavac and Martin went to Quarta's house where their conversation planning the robbery was recorded.
Subsequent planning was directed to obtaining a vehicle, a glass-cutter, bolt cutters and firearms. The conversations also indicated not only the presence of cash and drugs on the premises but that the occupants would be assaulted in the course of the break and enter.
Jelisavac and Quarta were recorded having a conversation about the amount of money involved, the possibility that the dealer might have a gun with him, and what they should do in terms of their balaclavas to be worn and the language to be used.
Jelisavac and Martin met at Quarta's home on 26 March 2006. Quarta gave them advice on taking a sledgehammer, wearing balaclavas and offering them a machete and meat cleavers.
Martin and Jelisavac left Quarta's unit and, driving in Martin's car, or the car he had taken, went to collect another person said to be a co-offender, David L'Estrange. They then collected Bell at his home in Canley Vale and drove to the premises at Butters Street, Canley Vale.
Martin telephoned the woman known to Bell to ask someone to go to the premises so that the premises would be opened up. It is a matter of inference that that would be someone going to the drug dealer's premises.
After waiting a period of time the offenders decided not to go ahead with this robbery.
It does not appear from the agreed facts why the offenders did not carry out these plans. Nevertheless, they were in an advanced stage of pursuit of these plans at the time particular enterprise was called off.
Further, it cannot be said that this was a case of remorse or reconsideration leading to the withdrawal by them from the plans. What the offenders then did was to transfer their attention to the Guildford premises where Mr Bell knew, or thought that there would be, substantial amounts of money in the premises having been collected by his former employer.
That being the case it does seem to me that the conspiracy matter should be the subject of a significant penalty."
17 The facts of the Guildford break and enter (count 1 Form 1) were summarised by the Judge as follows (ROS 6):
"The offenders, Bell, Martin, Jelisavac and L'Estrange, then decided instead to rob another house at Guildford where they expected there would be substantial cash. Bell knew about those premises and the intended target. They drove to the premises at 229A Fowler Road, Guildford at about 12.30am on Monday 27 March, 2006.
The occupier of those premises, Perry Koelmeyer, had employed Bell for a six month period as a labourer. Bell knew from that experience that Koelmeyer retained cash which he had collected from his Coca Cola deliveries prior to depositing the money through the bank.
The premises were occupied by three mates - Koelmeyer, Luke Barker and another.
Bell remained outside in the car as he did not want Koelmeyer to recognise him. Martin, Jelisavac and L'Estrange wore clothing including bandanas and balaclavas to disguise themselves. Jelisavac was armed with a meat cleaver with a six inch blade.
Martin kicked in the front door. The three entered. Jelisavac handed L'Estrange the meat cleaver while he and Martin searched the kitchen. When Koelmeyer appeared Jelisavac punched him in the face with a closed fist in the mouth causing bleeding. Martin ran upstairs. He entered Koelmeyer's bedroom and started searching it. He located a number of mobile phones and other items, including a Samurai sword which he took.
Jelisavac went upstairs and realised one of the bedroom doors was locked. Martin kicked the door in and saw Luke Barker in bed. Martin then searched the bedroom and located a Samurai sword, a wallet, and other items.
Five of six associates of the occupants came to the premises. The three offenders fled and joined Bell in the car and drove off."
Bell's Subjective Circumstances
18 Bell was born on 31 January 1970. He was 36 years old at the time of the offending and 38 years old when sentenced. Bell did not give evidence during the proceedings on sentence. The Probation and Parole pre-sentence report disclosed that his parents separated when he was 12 years old and being the second eldest of five children took it upon himself to become the provider for his sisters and mother. Prior to leaving school at the age of 14 years he had been a good student. He reported a history of polydrug abuse commencing at that age.
19 The Judge noted that Bell had been in and out of gaol since he was eighteen and had accurately described himself as a habitual offender. The Judge remarked upon Bell's difficult upbringing and that he had initially been a good student until his expulsion in Year 9 which had led to his drug and behavioural problems. Bell had been in a relationship for nine years and has two young children. The Judge said (ROS at 9):
" Bell has had a relationship out of which he and his partner had a stillborn child, which traumatised him. He and his partner had two other children who are now about the age of five and three. For five years he stayed out of trouble with the law but then ended up resuming his association with people that he had met in gaol, losing his job and reverting to substance abuse and then crime."
20 Bell had been operated on for cancer of the left kidney in April 2008. The left kidney is his solitary functioning kidney as his right kidney is atrophic and non-functioning. Material placed before the Judge as to Bell's medical condition included reports from Dr Stuart Eshman and Dr David Gracey. Bell's medical condition is detailed at [57-59] below.
21 Bell has an extensive criminal record which as an adult commenced in 1988. The Judge remarked (ROS at 12-13):
"These include assaults, at least ten, or thereabouts, break and enter offences, as well as stealing and receiving charges.
Bell, as I have said, has been extended a variety of sentencing options including counselling, fines, recognisances.
Bell received a sentence of imprisonment in the District Court in 1997 for breach of recognisance. He has also had opportunities extended to him by his participation in the Parramatta Drug Court. He also has a number of driving offences. It was submitted on his behalf that his record was essentially a "Local Court record". While it is true that many of his offences were dealt with in the Local Court, he has also had a number of sentences imposed in the District Court and the Drug Court including sentences of imprisonment.
The record indicates an escalating degree of criminality whereby the offender, Bell, has not recognised any of the opportunities which have been extended to him. I do not regard his record as entitling him to any leniency whatsoever."
22 The Judge referred to Bell's record within the correctional system and particularly noted that he had failed a urine test which related to him taking anti-depressant drugs. His Honour considered that it indicated a degree of recalcitrance in Bell's refusing to accept the appropriate authorities and their regime.
23 At the time of the offending Bell was on bail. He had been sentenced in the Fairfield Local Court on 7 November 2005 to imprisonment for 12 months with a non-parole period of 9 months for driving whilst disqualified. He appealed to the District Court and bail was imposed. The appeal was dismissed and the conviction confirmed by the District Court on 29 March 2006. In sentencing Bell for the present offences, the Judge found the commission of the offences whilst Bell was subject to conditional liberty to be an aggravating factor. Bell's sentence commenced on 10 December 2006 which was accepted as the date that his custody was solely referrable to the present offences.
Jelisavac's subjective circumstances
24 Jelisavac was born on 7 July 1979. He was 25 years old at the time of the offending and 28 years old when sentenced. During the proceedings on sentence two Probation and Parole pre-sentence reports were tendered as was a report from Anita Duffy, a psychologist. Jelisavac has a longstanding problem with addiction to prohibited drugs. Mike Ryan, the author of the pre-sentence reports, reported that Jelisavac whilst in custody had attended alcohol and drug counselling regularly and had recently completed a relapse prevention course. He had participated in a number of education courses to improve his reading, writing and computer skills. Mr Ryan recounted that Jelisavac had expressed his remorse and regret for the harm he caused his victims, and would like an opportunity to say sorry to them. Ms Duffy in her report noted that the applicant expressed immense remorse and sorrow at his behaviour and frankly acknowledged he had "stuffed up".
25 References were tendered from Reverend Liva Tukutama and Herman Kim, a ministry leader of the Presbyterian Church. Reverend Tukutama referred to Jelisavac having come to terms with what he had done and his desire to show his remorse. Mr Kim related a change in the applicant's demeanour, character and outlook. He stated that he had seen him truly express remorse for the things that he had done and was changing for the 'good'.
26 Jane Kim, Mr Kim's sister, told the Judge that she had been in a relationship with Jelisavac for about thirteen and a half years and had discussed with him the possibility of marriage upon his release. She gave evidence that the applicant had shown "deep remorsefulness" for what he had done and had found his Christian faith. She spoke of his wishing to move forward through the initiatives undertaken by him whilst in custody.
27 A letter to the Judge from the applicant was also tendered in which he expressed his regret and remorse for his offending and took full responsibility for his actions. He stated that whilst in custody he was taking advantage of the resources in helping him find out where he had gone wrong and to fix the problem. An Alcohol and Other Drug report confirmed the applicant's regular attendance at alcohol and drug counselling and that he had "continued to display honesty, insightfulness and empathy to family, friends and victims of his offence". The applicant had been placed in a position of clerk at the carpenter's shop which required "a high level of trust and responsibility". Jelisavac did not give evidence during the sentencing proceedings.
28 The Judge noted that Jelisavac came from a mixed Serbian/Italian family where there was dysfunctionality involving his father's alcohol abuse and domestic violence. He also had a difficult relationship with a physically violent mother, running away from home at fourteen and ending up living on the streets.
29 His Honour recounted that Jelisavac had been involved in drugs since the age of ten graduating from marijuana to heroin and cocaine. He was using methylamphetamine and cocaine at the time of the offences. The Judge remarked that Jelisavac had a gambling problem and the offences were used to support "his chosen lifestyle". Jelisavac has hepatitis C.
30 Jelisavac had, the Judge noted, a substantial criminal record as an adult. His Honour said (ROS at 15):
"When I come to his record in the Local Court he has convictions for goods in custody; assaulting police officers; larceny; resisting police officers; break and enter; possess housebreaking implements in 1999; larceny. The opportunities afforded to him for periodic detention were not observed or taken up by him. There was a cancellation of his periodic detention. He was imprisoned for a period of forty-five weeks.
That record of non co-operation, or abusing the privileges extended to him and the opportunities he had with periodic detention are relevant and were clearly relevant to the parole authority…
His record also included offences of resisting an officer in the execution of his duty; obtaining money by deception; various offences of dishonesty; break and enter in the District Court in 2002; an aggravated break and enter with committing a felony for which was subject to terms of imprisonment."
31 The applicant had appeared for sentence in the District Court on 24 May 2002 on two counts of obtaining money by deception, two counts of breaking, entering and stealing in circumstances of aggravation, one count of breaking and entering with intent to commit a crime in circumstances of aggravation and four counts of breaking, entering and stealing. Sixteen other offences were taken into account on a Form 1, five of which were breaking, entering and stealing and two were obtaining a benefit by deceit. The other offences were escaping lawful custody, possessing housebreaking implements, resisting arrest, having goods in custody suspected of having been stolen or dishonestly obtained, stealing a motor vehicle and being carried in a stolen motor vehicle. An overall effective sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months was imposed in the District Court. Jelisavac appealed to this Court against the severity of the sentences imposed. In R v Jelisavac [2003] NSWCCA 107, Adams J with whom Smart AJ agreed, granted leave to appeal, quashed the sentences and re-sentenced the applicant. The effective head sentence remained the same but the non-parole period was reduced by 1 year. Jelisavac was eligible for release to parole on 1 February 2005.
32 Jelisavac was released to parole on 1 February 2005 and the present offences were committed before the parole period had expired. The commission of the offences whilst subject to parole the Judge found to be a factor of aggravation.
Bell's Appeal