Buckley v R

Court of Criminal Appeal (NSW)|2020-10-12|Before: McCallum JA, Garling J, Wright J, Callum JA

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2018/190985; 2018/196514; 2018/162549; 2018/162566; 2018/135741; 2018/135780 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 April 2019 Before: Sutherland SC DCJ File Number(s): 2018/190985; 2018/196514; 2018/162549; 2018/162566; 2018/135741; 2018/135780

Background

On 30 April 2018, the applicant was arrested and charged, and bail was refused. He was eventually charged with a total of 10 offences: six offences of armed robbery; one offence of possessing an unauthorised (imitation) pistol; one offence of using an offensive weapon to prevent police investigation; one offence of using an unregistered motor vehicle; and one offence of possessing a prohibited drug.
On 30 January 2019 in the Local Court at Newcastle, the applicant pleaded guilty to all of the charges. He was committed to the District Court in respect of the six armed robbery charges, possessing an unauthorised (imitation) pistol and using an offensive weapon to prevent police investigation. In addition, the applicant asked that the offences of using an unregistered motor vehicle and possessing a prohibited drug be taken into account on a Form 1 under the procedure in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).
The sentence hearing took place before Sutherland SC DCJ on 16 April 2019. At the end of that hearing, the sentencing judge delivered ex tempore remarks on sentence and imposed an aggregate sentence of 9 years' imprisonment to date from 30 April 2018 and expire on 29 April 2027 with a non-parole period of 5 years expiring on 29 April 2023.
As required by s 53A(2) of the Sentencing Procedure Act, Sutherland SC DCJ indicated the sentences that would have been imposed for each relevant offence had separate sentences of imprisonment been imposed instead of an aggregate sentence. These indicative sentences are as set out in the table below. CAN/Seq Offence Indicative sentence H…225 seq 1 14 August 2014, Newcastle West BP - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW): maximum penalty 20 years' imprisonment 1 year 8 months (after 40% discount) H…225 seq 2 24 August 2014, Newcastle West BP - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 1 year 8 months (after 40% discount) H…891 seq 1 7 October 2015, Kahiba Liquor Store - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 2 years (after 40% discount) H…778 seq 1 6 April 2018, Chippendale Cellars - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 2 years 6 months (after 40% discount) H…686 seq 1 21 April 2018, Darlinghurst Newsagency - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 3 years (after 40% discount) H…509 seq 1 27 April 2018, Tenambit Newsagency - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 3 years (after 25% discount) 30 April 2018, at Raymond Terrace - Possess unauthorised pistol (imitation) contrary to s 7(1) of the Firearms Act 1996 (NSW): maximum penalty 14 years and standard non-parole period 4 years H…840 seq 3 Taking into account on a Form 1: 4 years 6 months (after 25% discount), non-parole period 3 years H…840 seq 8, 30 April 2018, Nelsons Plains - Use unregistered motorcycle: maximum penalty 20 pu H…840 seq 9, 30 April 2018, Raymond Terrace - Possess prohibited drug: maximum penalty 2 years and/or 20 pu H…840 seq 11 30 April 2018, at Raymond Terrace - Use offensive weapon to prevent police investigation contrary to s 33B(1)(a) of the Crimes Act: maximum penalty 12 years' imprisonment 4 years (after 25% discount)

The applicant has been in continuous custody since his arrest on 30 April 2018.
The applicant has applied for leave to appeal against the aggregate sentence and it was not in dispute that the application for leave to appeal together with proposed grounds of appeal and submissions were filed within time.

Grounds of appeal

The grounds of appeal on which the applicant seeks to rely were originally identified as: "1. His Honour erred in his application of section 23 of the Crimes (Sentencing Procedure) Act by proceeding on the assumption that he was restricted to a combined discount of 40% for the guilty plea and assistance. 2. His Honour erred in failing to consider the applicant's mental health when calculating the sentence imposed. 3. His Honour erred in failing to consider whether the weight given to general and specific deterrence ought to have been moderated by reason of the applicant's assistance to authorities and/or his mental illness."
During the hearing of the appeal, however, leave was granted to rely on two additional grounds of appeal as follows: "4. The sentencing judge erred in failing to apply a discount for assistance to all offences and/or to the aggregate sentence imposed. 5. The sentencing judge erred by failing to give adequate reasons in respect of the several elements of section 23 of the Crimes (Sentencing Procedure) Act."
These grounds require the learned sentencing judge's remarks on sentence to be considered in some detail.

The remarks on sentence

Sutherland SC DCJ commenced his remarks on sentence by noting that the six offences of armed robbery were committed over a period of approximately four years between August 2014 and April 2018, and carried a maximum penalty of 20 years' imprisonment. It was also said that the early pleas of guilty entitled the applicant to a discount of 25%.
It was then noted that at the time of his arrest on 30 April 2018, the applicant was in possession of an imitation pistol which constituted an offence which carried a maximum penalty of 14 years' imprisonment and a standard non-parole period of four years. His Honour also observed that the use of such a weapon with intent to prevent a lawful investigation was also an offence carrying a maximum penalty of 12 years' imprisonment. Since the applicant had pleaded guilty to each of these offences in the Local Court, he was entitled to a discount of 25% in relation to these two offences.

14 August 2014, Newcastle West BP

The learned sentencing judge recorded that in August 2014, the applicant was 20 years of age and was living in Hamilton East, a suburb of Newcastle, about 350 m away from a BP service station. At about 1:50 AM on 14 August 2014, the applicant went to the service station and entered the shop area after the 19-year-old console operator manually opened the doors to permit the applicant entry. The applicant browsed some shelves in the vicinity of the front counter but left when a vehicle pulled up at the door. He told the console operator that he had forgotten his wallet and might be back soon.
Shortly after 2:15 AM, the applicant returned and was again allowed to enter. He approached the counter and was wearing dark clothing and a cap or hood. With his mouth and nose covered with an item of clothing, the applicant told the console operator "Sorry, mate, this is a hold-up. I need all the cash in 30 seconds". He was brandishing a large kitchen knife with a blade of approximately 25 cm. The console operator handed over approximately $295 in notes and coins. As the applicant left the service station, he said "We will be brothers in another life".
Police were contacted after the applicant had departed and reviewed CCTV footage of the incident but were not able to identify the applicant as the offender. There was no suggestion that any forensic evidence was able to be retrieved that might ultimately have led to his identification.

24 August 2014, Newcastle West BP

Sutherland SC DCJ recounted that the second armed robbery at the BP service station near which the applicant lived occurred on "[t]he following night, at approximately five minutes before midnight, still on the calendar date of 24 August 2014". If the second armed robbery occurred on "[t]he following night", the calendar date would have been 14 August and not 24 August. The court attendance notice, H…225, alleged in relation to the offence in sequence 2 that the robbery occurred on 24 August 2014 and that was the charge to which the applicant pleaded guilty. Similarly, the agreed facts dated 25 January 2019, which were before his Honour, stated that the first robbery occurred on 14 August 2014 and the second on 24 August 2014. Although the sentencing judge appears to have been mistaken as to the date on which the second armed robbery occurred, it does not appear to me that anything turns on that mistake.
Otherwise, his Honour found that, at approximately five minutes before midnight on 24 August 2014, the applicant was wearing a black hooded jacket which was pulled up over a brown beanie when he again went to the BP service station. One of the two attendants asked him to remove the hoodie from his head, which he did, but he did not remove the brown beanie. He was allowed to enter but, as he did so, he pulled up material from around his neck to camouflage his face by covering his mouth on the bottom of his nose. He produced a large butcher's style knife approximate 20 cm in length and said "All the money in the till, please. It's a big knife". He had the knife in his hand and was holding it upright with the blade pointing vertically. The applicant was asked by a second attendant how his night had been and the applicant said "It's been better". The other attendant pulled the till from its drawer and the applicant took notes and coins to an approximate value of $187. As he departed, the applicant told the two attendants to have a good night. Police were contacted but again no evidence identifying the applicant or linking him with the commission of that offence was obtained by police.

7 October 2015 Kahibah Liquor Mart

In relation to the third armed robbery, Sutherland SC DCJ found that, on 7 October 2015, the applicant went to Kahibah Liquor Mart, in Kahibah which is also a suburb of Newcastle. He was wearing a bandanna or similar covering, which concealed the lower half of his face, as well as a hoodie. At about 7:40 PM the shop attendant was stocking the fridges in the liquor store when the applicant entered, holding a small, pocket style knife with a blade estimated about 5 cm and demanded that the till be opened. He held the knife towards the victim. The victim opened the till and the applicant leaned over the counter and took a handful of notes and coins with an estimated value of a little over $1000. After the applicant left the store, police were notified but they did not obtain any forensic or other material by way of evidence that assisted in identifying the applicant as the offender.

Information provided to police in an unusual circumstance

The learned sentencing judge then recounted what he described as "a slightly unusual circumstance" contained in the agreed facts. On 9 October 2015, police were called to premises at Kahibah, where the applicant's brother lived, as a result of the applicant being involved in a physical altercation. In the course of a conversation with a general duties constable, the applicant was described as ranting about robberies that he said he had committed in 2014 and, more recently, at a bottle shop in Kahibah. He told police that he got $1,225 and that he had "spent it all on drink and drugs". Due to his condition, the applicant was taken by ambulance to a hospital.
When he was more formally interviewed on 13 October 2015, the applicant indicated that he had no recollection of the police attending the premises on 9 October and that he had no comment to make in relation to the assertion that he had robbed the liquor store on 7 October.
During these interactions with police, the applicant revealed that he had spent a period of weeks in a mental health institution attached to two hospitals, one at Port Macquarie and one in Newcastle. A DNA sample was taken at about this time but no charges were laid in relation to the "purported admissions" that the applicant had made.

6 April 2018, Chippendale Cellars

The fourth armed robbery was found by the sentencing judge to have occurred on 6 April 2018. The applicant entered a liquor store at Chippendale in Sydney at about 10:30 PM, wearing a black hoody which he had pulled over his head together with a red and gold Ironman mask which went down to his chin. Although a portion of a reddish brown beard was visible at the bottom of the mask, otherwise his face was sufficiently concealed as to make ordinary identification either not likely or impossible. The applicant pulled out a kitchen style knife about 6 inches long and said to the employee "Give me your money". When the cash drawer was opened, the applicant leant over the counter and removed notes from the cash drawer, amounting to approximately $200. The applicant stuffed the money into a pocket of his jacket and said "Nobody follow me out. If you do, I'll come back and stab you". He then ran away from the store. Police were contacted and they attended the premises and viewed CCTV footage. There was inadequate material to permit a positive identification of anybody, let alone an actual identification of the applicant.

21 April 2018, Darlinghurst Newsagency

Sutherland SC DCJ then found that two weeks later, on 20 April 2018, the applicant rode a red motorcycle to the newsagency and tobacconist in Darlinghurst Road, Darlinghurst in Sydney. He was wearing an Ironman mask. He went into the newsagency and said: "Hey, this is a robbery" and pulled out a 15 to 20 cm serrated knife. The attendant said: "Just stop, take the money". The applicant jumped onto the counter and stood over the victim pointing the knife at him and said: "Open the till". When this was done, the applicant removed approximately $1,500 in cash from the till and ran out the front door. Police were contacted but such evidence as was then available did not permit them at that stage to identify the applicant as the perpetrator.

27 April 2018, Tenambit Newsagency

The next armed robbery was found to have occurred just over a week later. On 27 April 2018 at about 3 PM, the applicant parked the red motorcycle in front of a newsagency in Tenambit, a suburb of Maitland. He walked into the newsagency with his motorbike helmet still on, carrying a 15 cm knife. He said to the sales assistant: "This is a robbery. Open the till", while bouncing the knife up and down in his left hand. The sales attendant pushed the panic button, unobserved by the applicant. The applicant said: "I'm not joking, open the till". At this point a more senior employee directed the sales assistant to open the till and hand over the notes, amounting to some $650. After taking some additional notes in the till, the applicant ran out of the front door, got onto his motorbike and rode away. The employees called the police and tried to see the number plate of the motorbike as it disappeared but it had no rear plate.
The police attended and viewed the CCTV footage which included images of the motorcycle and the applicant outside the premises. Eventually the police attended the premises in Robert Street, Tenambit, where they located a red Honda motorcycle registered to the applicant.

30 April 2018, at Raymond Terrace

Sutherland SC DCJ inferred that by 30 April 2018 police were actually looking for the applicant, having identified him by reference to the motorcycle registration. Although that registration had lapsed, it was in his name and the motorcycle had been used in relation to the robbery at the Tenambit Newsagency.
On the morning of 30 April 2018, the applicant was seen by police sitting on a fence near a Coles Express service station at Raymond Terrace. He was wearing his motorcycle helmet and a camouflage jacket. His motorcycle had either broken down or was parked.

Using an unregistered motorcycle

Police approached the applicant and asked him about his intentions at the service station and he told police that he had crashed his motorcycle at Williamstown Dam. As the registration of the motorcycle had expired, the applicant was charged with using an unregistered motor vehicle on a road. This was the charge in CAN H…840 seq 8, which the applicant asked to have taken into account on the Form 1.

Possessing an unauthorised (imitation) pistol

Sutherland SC DCJ then made findings concerning the offence of possessing an unauthorised pistol. His Honour noted that, after being spoken to by police and asked to empty his pockets, the applicant pulled out an imitation pistol from his pants. He turned around to the police and said: "I've got a gun" and pointed it towards the detectives. He then ran away and, as he was being pursued by the police, he pointed the pistol back over his shoulder towards the officers. The police officers did not know at this stage whether the firearm was a real or an imitation pistol. Later, the applicant described the officers as "bravely pursuing" him.
The applicant ran for a short distance before stopping and assuming "a fighting stance". Police approached and the applicant attempted to punch and kick one of the officers and the second officer tackled the applicant to the ground. In the course of what was described as a "punch-up", police eventually restrained the applicant, who said: "it's only a toy, it's not a gun".
The sentencing judge accepted that a forensic examination of the pistol established that it was an imitation self-loading pistol in a form, size and appearance common to that class of firearm. Since it substantially imitated a firearm, his Honour accepted that possession of such an item contravened s 7 of the Firearms Act.

Possessing a prohibited drug

It was also found that in the course of searching the applicant, a small satchel bag was located which contained a quantity of methylamphetamine. This gave rise to the charge of possessing a prohibited drug in H…840 seq 9, which was also asked to be taken into account on the Form 1.

Arrest and interview

Sutherland DCJ noted that the applicant was then arrested and his motorcycle was subsequently found in the driveway premises on Raymond Terrace Road. After being taken into custody the applicant was interviewed.
In the course of an extensive ERISP: 1. the applicant made admissions concerning his possession of the firearm which he described "as holding in the fashion of 'a confidence booster'" and "like having your favourite pair of underwear on"; 2. the applicant said that he pointed the imitation pistol at the officers in the hope of evading apprehension and that his plan was to "hopefully hold a cop at gunpoint, take his own gun and then blow my brains out … But, damn, that dude was brave, he just ran straight at me". It was implicit that these admissions and the earlier recounted facts were the basis for the charge of using an offensive weapon to prevent police investigation; 3. the applicant said that he did not have a prescription for the Seroquel tablets that had been located together with the methylamphetamine; 4. the applicant told police that he had been smoking ice that morning; and 5. the applicant made spontaneous admissions concerning the five earlier robbery matters.

Custody

Sutherland SC DCJ noted that the applicant had been in custody bail refused since his apprehension on 30 April 2018.

Objective seriousness

His Honour accepted that the first three armed robbery offences, which occurred in 2014 and 2015, fell "generically towards the low end of the range of objective seriousness for offences of the type" having regard to the circumstances of the offending, which involved limited planning, attempted camouflage and use of a knife which was clearly visible.
As to the Chippendale Cellars and Darlinghurst Newsagency armed robberies in 2018, the sentencing judge observed various similarities to the earlier offences but noted that in the first case there was a threat to return and stab the victim if the applicant was followed, and in the second case the applicant had jumped onto a counter and stood over the victim. This was found to elevate, to some degree, the objective seriousness of the particular offence. It was also noted that the Tenambit Newsagency armed robbery involved jumping over the counter and going behind the counter, which similarly elevated, to some degree, the seriousness. His Honour's conclusion in relation to these offences was that they could be categorised "within a broad midrange, or to the lower end of that, recognising … that the extent of a so-called midrange is not the subject of arithmetical calculation".
The offences of possession and use of the offensive weapon were found to fall certainly within "a broad midrange" and both were held to be serious offences. The sentencing judge went on, however, to say: "… notwithstanding the intrinsic threat or apprehension of violence by the victims, the reality is that it was not a weapon capable of discharging a projectile and, in some instances, despite the danger to the police, it is not inappropriate to note that the potential real danger may well lie upon the offender's own head. It is fortunate in the extreme that the police were brave enough to pursue him physically rather than pulling their weapons and shooting at him, as might have happened either in other jurisdictions or, on occasions, in this."

Remorse

Sutherland SC DCJ noted that the circumstances of the pleas in their timing were relied upon as being indicative of remorse. In addition, it was noted that there was a letter written by the applicant to the Court and this was found to provide "some indication of remorse". In relation to this letter, his Honour also said: "indeed, the honesty of the material contained in that letter is perhaps exemplified by what I accept as an honest revelation by the offender that, although he understood he was facing charges as a direct consequence of his own confession of the earlier offences, about which there appears, on the material before me, to have been no evidence to link him to them, he said in the letter, 'Although it was (somewhat) noble, I do regret giving my extensive confession, as it has put me in a dangerous position where you can penalise me heavily'. He goes on to say that, for that reason in particular, he seeks some clemency, or 'leniency'. He said, 'even though, when I made the confession, yes, I didn't care what happened to me, but now I do care, I care a lot'. That does not, in my view, diminish the overall impression of remorse, albeit that it places it in circumstances where he understands and recognises that, but for his admissions, he may well not be facing perhaps five out of the six armed robbery charges which are before me."

Ellis discount

The sentencing judge noted that the circumstance where his confession provided what, on the agreed facts, was the only evidence of his having committed those offences, entitled the applicant to an identifiable discount, in accordance with the principles in R v Ellis (1986) 6 NSWLR 603 and Panetta v R [2016] NSWCCA 85 and with s 23 of the Sentencing Procedure Act (NSW).
Sutherland SC DCJ was of the view that a discount "in the vicinity of 40%, including the 25% discount for the guilty plea" was appropriate in relation to each of the first five armed robbery offences.

Subjective Circumstances

The applicant was found to be the youngest of five children with a mother who has remained supportive of him and has offered to house and look after him upon his release, in due course, from prison, and who also provided a written reference about her son. He attended schools in Sydney and Newcastle and obtained the Higher School Certificate. Although he commenced tertiary studies, this was discontinued after one semester. He was described as a good sportsman playing soccer in his earlier years and later Rugby League. He was also heavily involved in a surf club from about 13 to 20 years of age.
The sentencing judge found that the applicant did not start using drugs until sometime after he finished school and began as a social user smoking cannabis but eventually escalating to include speed, MDMA and ultimately ice and heroin, by the time of the offences in 2018.
It was noted that the applicant worked as a professional lifeguard, after leaving school. This involved his working for some seven months of the year and then having time off during the colder months between April and September. In around 2013, the applicant lost his driver's license and consequently his employment as a result of being convicted for reckless driving.
At this point, the sentencing judge made findings concerning the applicant's drug use and his mental health. It was found that in the course of his use of drugs, the applicant started to suffer from drug induced psychosis.
It was also found that his use of methamphetamine was associated with the first two offences and, in August 2014, he was admitted to the Calvary Marter Hospital in Newcastle with a diagnosis of psychosis, likely drug-related.
His Honour said that in 2015, the applicant was admitted to James Fletcher Hospital in Newcastle for what was described as drug induced psychosis. After treatment he was discharged on a prescription of Olanzapine. Just two days after attending that hospital, on 30 June 2015, the applicant was charged with two minor offences of travelling without a ticket on public transport and custody of knife in a public place, for which he was convicted.
The sentencing judge found that in August 2015, the applicant moved to Port Macquarie and was admitted to the hospital there as well as being admitted to the hospital at Maitland, where "there was reference to drug induced psychosis". The admission to Port Macquarie Hospital was subsequent to an overdose which the sentencing judge found could "be variously viewed as either suicide attempts or, at the very least, overdoses that had that ideation, at least partly, in mind".
It was found that in December 2015, some months after the Kahibah Liquor Mart armed robbery, the applicant was admitted to the mental ward at Hornsby Hospital following a further overdose. It was also noted that about this time the applicant was charged with using a carriage service to harass or intimidate, for which he was convicted and received the benefit of a s 20 recognisance release order.
The sentencing judge then noted that the report of 19 November 2018 of Dr Chew, forensic psychiatrist, indicated that the psychiatric admission to Hornsby Hospital involved his being hypomanic and psychotic in the context of drug use. It was reported that he had multiple delusions and thought that he was in an alternate universe, that he was responsible for the creation of mathematics and that he had been in his current body for some three days with concerns that he was going to be transferred into the body of a female.
Sutherland SC DCJ accepted that, during the significant gap in time between the first three offences and the 2018 offences, the applicant held down two full-time jobs in the construction industry, developing a strong skill set in sheet metal. In the more recent role, the applicant was working unsupervised and running entire jobs as a full-time subcontractor. The applicant quit the last job during a lapse in his mental health and, as a consequence, "burned the only bridge that he has to that industry".
It was noted that in November 2017, the applicant was charged with two offences of possessing a prohibited drug but the severity of that offending was said to be reflected in the fact that the two offences each resulted in a fine of $300.
The sentencing judge found that, between 15 and 26 February 2018, the applicant was admitted involuntarily to the mental ward at Cumberland Hospital. He was agitated, aggressive, disordered and demonstrating symptoms, to his mother, of abusive use of illicit drugs. His symptoms also included auditory hallucinations. It was also said: "His either reuse or reintroduction to the utilisation of illicit substances culminated, at least on one view of things, with himself administering, or self creating, a tattoo above his eye, reading, 'Kill me'".
Following his discharge from hospital on 26 February 2018, the applicant was involved in an assault on two police officers and resisting arrest, although those offences only resulted in the applicant being fined.
His Honour then found that the applicant's loss of employment, his mental state and his continued drug abuse came to a head in April 2018 when he committed the armed robbery at Chippendale Cellars, two weeks later the Darlinghurst Newsagency robbery and six days later the Tenambit Newsagency robbery.
It was then noted that, in the letter the applicant provided to the court, he said that: 1. he was well aware that the court would "suspect that there is a chance of him reoffending" but he went on to say that "with all the weight that [his] words can carry, [he] swears that he will not reoffend"; 2. he hoped that, "due to the nature of him confessing to, quite literally, every crime that he had ever committed", the sentencing judge would understand the utmost remorse that the applicant had towards his victims and the community both for the "array of robberies" that he committed and also his "recklessness in carrying and brandishing a fake firearm"; 3. he had been trying to use his time in custody wisely and indicated he had met people who would be able to help in getting work in his trade or other manual pursuits as well as in hospitality and he would look forward to getting one of those types of jobs after he removed the "obscene tattoo" from his face; and 4. he described that, in the commission of the offences, he did not have the intention to hurt anybody but the sentencing judge noted that the hurt may be psychological as well as physical and, although there was no victim impact statement, it would be inappropriate to ignore completely the likely effect on persons working late nights in vulnerable positions in the community. His Honour said that the vulnerability of the victims of crime was a relevant factor to be taken into account in determining an appropriate outcome.
Sutherland SC DCJ then turned to consider the mental health of the offender stating that it was a matter which had given him some cause for consideration. Based on the report of Dr Chew, it was found that it was likely there was a chronic psychotic illness and it could be that there was a persisting chronic drug induced psychosis. His Honour also recorded Dr Chew's opinion that the extent of persistence of the symptoms, along with an apparent decline in psychosocial functioning, meant that the primary diagnosis was schizophrenia.
It was also noted that aspects of the report concerning whether the applicant was likely affected by methamphetamine or psychosis at the time of the ERISP were not relied upon. As I understood the sentencing judge's comments, the fact that those aspects of Dr Chew's opinion were not relied upon was supportive of a finding of a degree of genuine remorse on the applicant's part.
In relation to the applicant's mental health and the offending, his Honour said: "I am, however, not of the view that the drug-induced psychosis, which I find to be the more likely, and most likely, explanation, given their references in the past history, is such that that provides any mitigation in relation to the actual commission of the offences. It is, however, a relevant factor to be taken into account in consideration of the subjective features of the offender and in relation to a number of aspects, including his ultimate likely rehabilitation."
His Honour noted that the applicant had been in custody since 30 April 2018 and that it was common ground that the term of imprisonment should commence from that date.
Finally, his Honour said he intended to impose an aggregate sentence and stated that he was cognisant of the necessity for there to be a partial, presumably notional, accumulation in giving appropriate consideration to issues of totality. The submission that there should be concurrence between the possession and use of the replica pistol was accepted as sound but it was said that the precise level of interplay between accumulation and concurrency was not required to be spelt out when proceeding by way of an aggregate sentence. The indicative sentences set out above were then announced and the aggregate sentence, which has already been referred to, was imposed.

The substance of the grounds of appeal

The grounds of appeal on which the applicant seeks to rely, if he is granted leave to appeal, have been set out above. In substance, the grounds relate to two aspects of the sentencing judge's decision: 1. the discount for assistance - grounds 1, 3 (partially), 4 and 5; 2. the consideration and significance of the applicant's mental health - grounds 2 and 3 (partially).
I shall deal with the grounds relating to the significance of the applicant's mental health first. Then, the grounds relating to the applicant's assistance to authorities will be considered.

The applicant's mental health

Grounds 2 and 3 both raised the issues of whether the learned sentencing judge had considered the applicant's "mental health" when determining the appropriate sentence and, in particular, whether the weight to be given to general and specific deterrence ought to have been moderated by reason of the applicant's "mental illness". It is accordingly appropriate to deal with them together.
The expert evidence before Sutherland SC DCJ concerning the applicant's mental health or illness was contained in the 19 November 2018 report of Dr Chew, consultant general and forensic psychiatrist. Dr Chew was of the opinion that the applicant suffered from a chronic psychotic illness and said: "It could be that he has a chronic drug induced psychosis but I think that the extent and persistence of his symptoms along with an apparent decline in psychosocial functioning means that his primary diagnosis is Schizophrenia."
As was accepted by the parties during the proceedings on sentence, Dr Chew did not express an opinion as to whether the applicant's schizophrenia or drug induced psychosis was causally related to the offending.
The sentencing judge did give some consideration to the applicant's mental health and the role it played in the offending, finding in substance: 1. that the most likely explanation for the actual commission of the offences was "the drug-induced psychosis"; but 2. this did not provide any mitigation.
This may be seen as consistent with s 21A(5AA) of the Sentencing Procedure Act, to the extent that his Honour's findings implicitly accepted that at the time each of the offences was committed the applicant was suffering from self-induced intoxication.
His Honour also found that the applicant's drug induced psychosis "is, however, a relevant factor to be taken into account in consideration of the subjective features of the [applicant] and in relation to a number of aspects including his likely rehabilitation."
The sentencing judge did not, however, make a finding that Dr Chew's opinion concerning the applicant's suffering from schizophrenia should be rejected. Indeed, it is difficult to perceive on what basis his Honour could legitimately have rejected that opinion, especially as neither party challenged Dr Chew's evidence in that regard or submitted that it should not be accepted, and as there was no evidence to the contrary.
Notwithstanding the unchallenged evidence of Dr Chew, the sentencing judge did not refer to the applicant's schizophrenia in his consideration. In particular, his Honour did not expressly consider: 1. whether the schizophrenia, either alone or together with any drug induced psychosis, played any causal role in the applicant's commission of any of the 10 separate offences committed over the relevant period of almost 4 years; or 2. whether the schizophrenia, whether alone or together with any drug induced psychosis: 1. reduced the applicant's moral culpability; 2. rendered him an inappropriate or less appropriate vehicle for general deterrence; 3. had the result that a custodial sentence might weigh more heavily on the applicant; 4. reduced or eliminated the significance of specific deterrence; or 5. supported an increased sentence as the applicant presented a danger to the community, in accordance with the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] and as applied in cases such as Aslan v R [2014] NSWCCA 114 at [34].
In these circumstances, I am of the view that the second and third grounds of appeal are made out. Consequently, leave to appeal should be granted and the appeal allowed.
Furthermore, it can be noted that the sentencing judge's finding to the effect that the most likely explanation for the actual commission of all of the offences was drug-induced psychosis may have been based upon a misreading or misunderstanding of Dr Chew's report. For example, Dr Chew stated that: "[the applicant] was admitted [to the Mater Hospital] October 2014 with psychosis and was treated with Olanzapine and followed up in the community for a short period before he dropped out of treatment". The sentencing judge made a finding that: "after committing those offences in August of 2014, the offender was then admitted to the Calvary Mater Hospital here in Newcastle, where a diagnosis of psychosis, likely drug related, was made."
There was no reference in Dr Chew's report to the admission in October 2014, or the psychosis, being "drug related". The agreed facts in relation to the offences in August 2014 did not include any material concerning the applicant being affected by drugs when those offences were committed. In addition, the admission to hospital was approximately two months after the offending had taken place and thus it could not be assumed, without more, that the admission provided any relevant insight into the applicant's mental state at the time of the August 2014 offending.

The discount for assistance

Grounds 1, 3 (partially), 4 and 5 effectively raised contentions in relation to the discount for assistance.
Ground 1 involved the contention that it was an error for the sentencing judge to proceed on the assumption that he was restricted to a combined discount of 40% for the guilty plea and assistance in this case.
There was, in effect, no dispute before the sentencing judge that the applicant was entitled to a discount as a result of his disclosing the five armed robbery offences and thus assisting law enforcement authorities in the detection and investigation of those offences, in accordance with s 23 of the Sentencing Procedure Act and the principles in R v Ellis (1986) 6 NSWLR 603 as explained in later cases such as Panetta v R [2016] NSWCCA 85. This was accepted by the sentencing judge and his Honour expressly referred to the obligation to identify the quantum of such a discount.
As to actual quantification of the discount, his Honour said: "I am cognisant of the various authorities that indicate that a discount in excess of a total of some 40% for both a guilty plea and, in broad terms, assistance of the Ellis type and, indeed, of the Cartwright requires circumstances beyond the norm, albeit that in Panetta the exceptional circumstances of that case led to an allowable discount in excess of that figure. I am ultimately of the view that a discount in the vicinity of 40%, including the 25% discount for the guilty plea, is appropriate, and that that applies in relation to each of the first five counts in the indictment."
From the sentencing judge's remarks, it appears to me that his Honour did proceed on the basis that sentencing principles required him not to allow a combined discount of greater than 40%, absent circumstances beyond the norm.
In CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 (CMB), the High Court confirmed, at [40] - [43] and [70] - [73], that s 23 of the Sentencing Procedure Act now embodies and gives effect to the principle in R v Ellis. Section 23 relevantly provides: "(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters - … (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, … (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must - (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason. …"
As to quantification of the discount for assistance, French CJ and Gageler J said in CMB at [43]: "McHugh J pointed out in Ryan v The Queen [(2001) 206 CLR 267 at 272-273 [15]; [2001] HCA 21.] that the statement in R v Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' 'is not the statement of a rule to be quantitatively, rigidly or mechanically applied': 'It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.'"
The extent of the discount depends upon a consideration of the facts and circumstances of the particular case, including, most significantly, the matters set out in s 23(2) of the Sentencing Procedure Act so far as they are relevant.
This Court has expressed and endorsed the view that, in general, a single, combined discount for both a plea of guilty and assistance should not normally exceed 50%: SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [3] (Howie J; Simpson J agreeing at [1] and Buddin J to a similar effect at [53]). The basis for this view was explained by Howie J, in SZ at [4], as follows: "There is a limited degree to which an otherwise appropriate sentence can be discounted for one reason or a combination of reasons and yet result in a sentence that duly reflects the objective seriousness of the offence and the purposes of punishment. There was by applying common law principles, and there still is by the application of the provisions of the Crimes (Sentencing Procedure) Act, a bottom line beneath which a sentence cannot legitimately be set. If that bottom line is not respected, the sentence will fail to carry out the purposes of punishment. That bottom line is reflected in relation to a discount for assistance to the authorities by s 23(3) of the Crimes (Sentencing Procedure) Act. It is spelled out there in the Act because it is in relation to the application of discounts for assistance that the often conflicting purposes and policies of sentencing a particular offender come brightly into focus."
Similarly, McCallum J (as her Honour then was) held in Z v R [2014] NSWCCA 323, at [33]: "His Honour [the sentencing judge in that case] was not constrained by the fact that the applicant had not pleaded guilty to stop at 25 per cent discount for assistance to authorities. The only constraint was that imposed by s 23(3) which, as has been observed by this Court, will not generally be met by allowing a combined discount of more than 50 per cent."
Thus, the effective constraint upon the extent of any discount for assistance is not a rigid or mechanical sentencing principle that the maximum permissible percentage is 40%, when taken together with the discount applicable for a plea of guilty, in the absence of "circumstances beyond the norm". The actual constraint is established by s 23(3), which provides that any lesser penalty that may be imposed in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
In light of the sentencing judge's remarks, I am of the view that he erred by proceeding on the basis that principles of sentencing effectively constrained him not to allow a combined discount for the guilty plea and assistance exceeding 40%, absent circumstances beyond the norm.
Accordingly, leave to appeal should be granted and the appeal allowed on the basis that ground 1 has been made out. In these circumstances, it is unnecessary to deal with the other grounds of appeal in relation to the determination of the discount for assistance.

Resentencing

Since I have found that there has been error in the sentencing judge's decision, the task of this Court is now to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the Sentencing Procedure Act and any other Act or rule of law require or permit, in order to determine whether another, generally lesser, sentence should be imposed: s 6(3) Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
In re-exercising the sentencing discretion, the Court is to have regard to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
The learned sentencing judge's findings and conclusions in his remarks on sentence were not generally challenged in this matter, although, as explained above, the findings in relation to the applicant's mental health were not complete, especially in relation to his schizophrenia, and there were some difficulties with other findings concerning whether some of the offending was related to drug induced psychosis. As to the applicant's schizophrenia, I accept Dr Chew's primary diagnosis, noting however that Dr Chew did not give evidence that the schizophrenia was causally related to any of the offending. Subject to those comments, I have adopted the sentencing judge's findings, which have been referred to in some detail above and which it is not necessary to repeat here.
The applicant's affidavit of 1 October 2020 provided evidence of the applicant's current attitudes, circumstances and progress while in custody. Much of what was contained in that affidavit was supported by the documentation annexed to the affidavit of Ms Knowles of 1 October 2020 which was also read on the applicant's behalf. Based on that material, I find that: 1. The applicant has accepted his punishment for what he did and is sorry for it. He acknowledges that it was irresponsible and he now demonstrates some appreciation of the adverse impact his conduct is likely to have had on the victims. 2. He has disclosed to the police all his offending and he regrets the suffering caused in the community. 3. He has expressed the desire to improve his behaviour and welfare. 4. While at Cessnock and Goulburn correctional centres the applicant has worked in the furniture unit, done data entry and assisted with IT, performed extra work as a COVID cleaner when needed, lawn mowing and construction type work. He acknowledged that he had some work reports which were negative because he arrived late but states that this has improved and his reports have become generally positive. 5. The applicant was assaulted on 31 July 2020, because other inmates thought he was informing on their drug activity. As a result of the assault, he then spent the following four weeks in segregation, during which time he was only allowed out for 30 to 60 minutes a day to stretch his legs have a shower and make a phone call. Eventually the applicant was transferred from Cessnock to Goulburn, where he is in the minimum security section. The applicant has progressed to a C2 classification and has not had any regressions. 6. The applicant reported that in jail one has to talk about one's offences and because he had told them that he had confessed to all his charges, some inmates were distrustful of him and that made him a target for violence. 7. The applicant has had only one offence while in custody since sentencing for the possession of tobacco in his cell to which he pleaded guilty. 8. The applicant receives medication for depression, anxiety and schizophrenia whilst in custody. 9. The applicant has completed courses in Health Survival Tips, Work Health and Safety, Barber Hygiene and Forklift Driving. His participation in the EQUIPS aggression course was interrupted by the assault and he was unable to complete that course. He has expressed his willingness to participate in any drug and alcohol courses that he is offered closer to parole. 10. The applicant has support from his family, especially his mother, with whom the applicant proposes to live when he is released.
Having regard to this material, I am satisfied that the applicant's prospects of rehabilitation are improved and that he is genuinely remorseful. I also accept that because of his admissions of prior offending, the applicant has been subject to harsher custodial circumstances as a result of the assistance he provided in the detection and investigation of his earlier offending.
The circumstances of the offending have been set out above and I agree with the learned sentencing judge's assessments of objective seriousness. I have also taken into account the maximum penalties and standard non-parole period as statutory guideposts. I've applied a discount of 25% in respect of each of the offences as a result of the applicant's early guilty pleas entered in the Local Court.
Applying the provisions of s 23 of the Sentencing Procedure Act and the relevant principles referred to above in relation to determining the appropriate discount for the applicant's assistance to authorities, I am of the view that a discount of 25% should be applied in respect of the first five armed robbery offences. The only evidence of these offences was provided by the applicant himself to the police and his assistance was thus significant and useful. In addition, that assistance was truthful, complete and reliable having regard to the objective material that was available such as CCTV footage and any statements from victims. Being in effect full confessions, the applicant's assistance was very substantial in nature and extent even though that assistance was given some time after the events in question. As the applicant's letter to the sentencing judge in effect acknowledged, the applicant has not gained any benefit from his assistance. As I have already noted, the applicant's assistance has apparently caused him to be assaulted while in custody and consequently put into segregation for a period. Finally, I note that the assistance was provided in relation to five of the offences for which the applicant is being sentenced.
Given that the applicant is being sentenced for other offences in relation to which he did not provide similar assistance, and I propose to impose an aggregate sentence, it appears to me that a combined discount of 50% to be applied in respect of the indicative sentences for the five earlier offences is not in all the circumstances unreasonably disproportionate to the nature and circumstances of those offences. As to the remaining offences, I have decided not to apply any discount for assistance in relation to the indicative sentences for those offences so that the aggregate sentence appropriately reflects the overall criminality of the applicant's offending.
In regard to the applicant's mental health issues involving schizophrenia as well as anxiety and depression for which he is being treated in custody, I am of the view that these should not be found to lessen the applicant's moral culpability in relation to the offending for which the applicant is being sentenced, in the absence of any evidence that they were causally related to that offending. To the extent that any of the offending was causally related to drug induced psychosis as a result of self-induced intoxication, I also accept that this is not a mitigating factor. Nonetheless I do find that the applicant's mental health issues as diagnosed by Dr Chew should be taken into account so as to reduce to a certain extent the weight to be given to specific and general deterrence in this case. This is reflected in the indicative sentences and the aggregate sentence.
Given that this is the applicant's first time in custody and he is likely to benefit from a longer period than is provided by the statutory ratio applicable under s 44(2B) of the Sentencing Procedure Act on parole under supervision and in order to undertake drug and alcohol rehabilitation, I find that there are special circumstances for the purposes of that provision.
There is in my view a need for very substantial notional concurrency in relation to the offences of possessing an unauthorised, imitation pistol and the use of an offensive weapon, being the imitation pistol, to prevent police investigation. In addition, a consideration of all the offending and the indicative sentences in the circumstances requires further notional concurrency so that the aggregate sentence appropriately reflects the totality of the criminal behaviour involved in the present case in all the circumstances.
In determining the indicative sentences for the armed robbery offences, I have also taken into account the guideline judgment in R v Henry [1999] NSWCCA 111; 106 A Crim R 149. The present case involved, among other aspects, the elements of: a young offender with little criminal history; the carrying of a knife being a weapon capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat of violence in some cases; shop assistant victims in a vulnerable position; relatively small amounts of money taken; and, pleas of guilty but in circumstances where there was a strong Crown case as a result of admissions.
There is no reason to commence the sentence on a date other than the date on which the applicant was first taken into custody on 30 April 2018.
Having regard to all the relevant findings of the sentencing judge and the matters set out above, the purposes of sentencing in s 3A of the Sentencing Procedure Act, the objective seriousness of each offence and the subjective matters applicable to the applicant, I propose that the applicant be sentenced to an aggregate sentence consisting of a non-parole period of 4 years with a balance of the term of 3 years 6 months.
The sentences that would have been imposed for each relevant offence, had separate sentences of imprisonment been imposed instead of an aggregate sentence, are as set out in the table below. CAN/Seq Offence Indicative sentence H…225 seq 1 14 August 2014, Newcastle West BP - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW): maximum penalty 20 years' imprisonment 1 year 4 months H…225 seq 2 24 August 2014, Newcastle West BP - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 1 year 4 months H…891 seq 1 7 October 2015, Kahiba Liquor Store - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 1 year 8 months H…778 seq 1 6 April 2018, Chippendale Cellars - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 2 years 1 month H…686 seq 1 21 April 2018, Darlinghurst Newsagency - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 2 years 6 months H…509 seq 1 27 April 2018, Tenambit Newsagency - Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: maximum penalty 20 years' imprisonment 3 years 6 months 30 April 2018, at Raymond Terrace - Possess unauthorised pistol (imitation) contrary to s 7(1) of the Firearms Act 1996 (NSW): maximum penalty 14 years and standard non-parole period 4 years H…840 seq 3 Taking into account on a Form 1: 4 years, non-parole period 2 years 9 months H…840 seq 8, 30 April 2018, Nelsons Plains - Use unregistered motorcycle: maximum penalty 20 pu H…840 seq 9, 30 April 2018, Raymond Terrace - Possess prohibited drug: maximum penalty 2 years and/or 20 pu H…840 seq 11 30 April 2018, at Raymond Terrace - Use offensive weapon to prevent police investigation contrary to s 33B(1)(a) of the Crimes Act: maximum penalty 12 years' imprisonment 3 years 6 months

As the proposed aggregate sentence is less than the aggregate sentence imposed by the District Court, that sentence should be quashed and a fresh sentence should be imposed.

Conclusion and orders

Accordingly, I propose that the orders of the Court should be: 1. The applicant is granted leave to appeal. 2. The appeal is allowed. 3. The aggregate sentence imposed by the District Court at Newcastle on 16 April 2019 is quashed. 4. The applicant is sentenced to an aggregate sentence comprising a non-parole period of 4 years commencing on 30 April 2018 and expiring on 29 April 2022 with a balance of the term of 3 years 6 months expiring on 29 October 2025.

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