The sentencing judgment
7At trial there was a dispute as to the appropriate discount for the pleas which the applicant had entered. The applicant had been arraigned on an indictment which charged him with 14 counts. The trial was estimated to take about six weeks. After legal argument, one count was amended and pleas were then entered to the three counts pressed. The Crown conceded that in the circumstances the applicant was entitled to a reasonably significant discount, which her Honour determined should be 20% for count 1 and 15% for counts 2 and 3.
8Her Honour explained that count 1 related to a robbery at the West Pennant Hills Sports Club, during which two co-offenders, Justin Bourke and an unidentified male, who were armed with pistols, stole some $87,064 after staff members were threatened with a Glock pistol. The applicant provided the motor vehicle used in that robbery, a stolen Mitsubishi Lancer, which he knew was to be used in the robbery.
9The conspiracy the subject of count 2 involved the stealing of a Mitsubishi Evolution, the purchase of various items, such as balaclavas, hooded jumpers and track pants and a high speed chase, when police sought to arrest the applicant and a co-offender.
10Her Honour noted the applicant's evidence as to his role in this conspiracy to be that he had agreed with the co-offender, Oatley, while in Wellington jail, that he would help him on release. They had become very close whilst in the same pod, which her Honour considered understandable, given the applicant's youth and his lack of contact or family support during his five years in custody.
11Her Honour noted the applicant's evidence that because of his known expertise with stealing motor vehicles, which she observed was evident from the applicant's criminal history, he agreed to steal a car for the purposes of a robbery to be conducted by Oatley and some of his friends. He also agreed to buy various pieces of clothing and other items found on his arrest, because they had no money. That was consistent with the transcripts of the recordings of conversations between the applicant and Oatley.
12The firearms offence the subject of count 3 related to a bag found on the applicant's arrest to contain a Glock pistol, with an attached magazine containing 17 (9mm) Luger rounds and a Gapkal 8 military pistol, with an attached magazine which contained no ammunition. The bag also contained balaclavas, packets of washing up gloves, hooded jumpers, track suit pants, one litre of turpentine, one litre of kerosene, three pairs of shoes, bolt cutters, mobile phones and $5,080 cash. The Crown accepted that there was a reasonable doubt as to whether it was the applicant or his co-offender who had brought the firearms found in the joint possession of both offenders, to the scene.
13Her Honour noted that the applicant was cross-examined vigorously about his assertion that he did not intend to participate in the actual robbery and accepted that misplaced loyalty to his friend was the motivation for participating in this conspiracy. Her Honour considered that the applicant's evidence was for the most part straightforward and unembellished, but could not accept his evidence that he had no intention of participating in the actual robbery.
14Her Honour did accept the applicant's evidence, which was consistent with other evidence, that Oatley collected the firearms in a bag from his home and placed them on his lap and although he did not see the firearms, Oatley had informed him that there were firearms in the bag. Her Honour thus accepted that while the firearms belonged to Oatley, contrary to the applicant's case, the participation of each of the co-conspirators was equal, as the Crown submitted.
15Her Honour observed that the applicant was aged 26 at the time of the offences and 28 on sentencing. His parents had separated when he was young and he had not known his father, who he knew had perpetrated domestic abuse and violence against his mother in his early years, forcing them to relocate and change telephone numbers over a period of several years, in order to escape from his harassment and violent actions. His mother entered a new relationship when he was aged about 8 or 9, from which three younger half siblings resulted. He had enjoyed going to work with his stepfather, who worked in the excavation industry, but this relationship broke up when he was in his late teens. The applicant had since fallen out with his mother over his re-imprisonment and other issues. He had no contact with his brother and sisters.
16In 1999 the applicant was diagnosed with attention deficit disorder and conduct disorder and was placed on medication. He was referred to the St Vincent's adolescent care program, a residential program for young males with serious behavioural difficulties. He resided there for approximately 12 months prior to his arrest on earlier matters. He responded to that highly structured program and successfully completed year 10. He had employment in the past as a roof tiler for 12 months, which he enjoyed, as a labourer and an electrician's assistant. He had no post-high school education or trade qualifications.
17At the age of 18 he was imprisoned in June 2005 for an offence of robbery in company while armed with a dangerous weapon, for which he received a total term of 7 years, 6 months. He was released in June 2010 after serving his non-parole period of 5 years. He had spent all but 10 months of his adult life in custody. He lived with his mother after she collected him from jail, but after a few days she left him and moved away to northern New South Wales. His primary supporter since then was his maternal uncle, who gave evidence.
18The applicant was exposed to a criminal subculture when growing up and had been desensitised to crime, given his involvement from age 15. In the past he had found it easier to cope in custody without emotional ties and had discouraged any visits. He considered his fellow inmates as his family.
19In September 2010, while at liberty, he formed a relationship with his partner, the sister of an old friend. She is three years older than him and has a daughter, then aged 7. He had known her for over 10 years and they had been living together. He had formed a strong emotional attachment to her and her daughter, which he believed to be reciprocal. He reported that she was a stable person with a healthy lifestyle. In hindsight he was very self-critical for his failure to recognise and respond appropriately to the relationship she had offered him. The letter she wrote was strongly supportive of the applicant, but he was uncertain of his future relationship with her, believing that it would depend on the length of his sentence.
20Her Honour noted that the applicant told the psychologist, Ms Robilliard, that in committing the offences he was helping out mates, one of whom he had known since childhood. The psychologist noted that the applicant bore the hallmarks of institutionalisation, describing a set of maladaptive behaviours invoked by the pressures of living in an institutional setting.
21Her Honour observed that the applicant had spent critical years in custody, when most young people in the community were acquiring vocational and other skills, training and experiences which enabled them to become independent and self sufficient. He had minimal family support post-release, except for the relationship he was developing with his uncle and his family prior to his arrest. The psychologist noted that the most positive, yet confusing experience of his period in the community was the formation of his relationship. His primary motivation for changing his behaviour was the possibility of preserving and re-negotiating a relationship with his partner. The psychologist also considered that the applicant showed some signs of reconsidering his current attitudes and values in relation to the offers of professional assistance.
22The psychologist found the applicant to be cognitively intact and of sound average intelligence. He was a tall, athletically built young man of good appearance, who she considered could benefit from vocational training and further education, as well as individual psychotherapy, to isolate causative factors of his criminal lifestyle. Her Honour also noted that the applicant had expressed some doubts as to whether the counsellors and psychologists employed by the Department of Corrective Services were "really on his side".
23The applicant had told the psychologist that since his return to remand in January 2011 he had gained some insight into his antisocial thinking, attitudes and behaviour and was distressed and disturbed by his circumstances. The psychologist considered that his attitudes, values and behaviour were indicative of thoroughgoing institutionalisation and an antisocial personality disorder.
24Her Honour considered that he was at a crossroads situation. She referred to Mr Wisnewski's pre-sentence report, which observed that the applicant had expressed no remorse for his offending and said that he could steal any car. There were no financial motivations or drug or alcohol issues and the applicant considered that rehabilitation is a personal choice, but did not see the benefit in programs. Mr Wisnewski considered him to have little insight and that the applicant did not equate his actions as being directly linked to a victim. Her Honour observed that that accorded with his evidence at the sentencing hearing, that he did not think of the consequences of his actions, when committing the offences.
25In the pre-sentence report the applicant was described by Mr Wisnewski as arrogant, something which her Honour observed was not noted by the psychologist and an impression that she did not form of him. Her Honour considered that the applicant was not arrogant, but rather someone who had adapted and been forced to adopt protective mechanisms during his long periods of incarceration at an impressionable and vulnerable age.
26The applicant did tell Mr Wisnewski that he would like to change his behaviour for the purpose of his relationship. Her Honour also noted that he told the psychologist that he found it easier to acquire money through illegal means, but that he was making a concerted effort to behave in prison, unlike his behaviour during earlier periods of incarceration. Her Honour considered that his desire to rehabilitate himself and redirect his future had been borne out by corrective service records, which demonstrated that during earlier periods of incarceration he was punished for numerous breaches, for a variety of matters, one of them being a failed urine test.
27The psychologist assessed the applicant to be at high to moderate risk of re-offending. Her Honour noted the applicant's evidence that his attitude to offending had completely changed because of his relationship; that he did not like custody; that he was now standoffish with other prisoners, trying to work and play sport to keep himself occupied, as well as working at the metal shop and developing a number of skills. The applicant also said he now liked working and that he would participate in programs, if asked.
28Her Honour also noted his explanation for the failed urine test to be an inability to produce urine in front of other prisoners and efforts to address that issue via letters sent to the Attorney General. There was no suggestion that the applicant is a drug user or that this failure had anything to do with illicit drug taking.
29Her Honour noted the close relationship developed with his uncle after his release from custody in 2010 and the support and accommodation which his uncle offered him on release. Her Honour found the applicant's uncle to be an impressive witness, whose evidence she accepted as truthful and objective. He described the applicant's mother as having a number of significant problems and attracting a lowlife crowd to her house, which he described as always being a place of conflict, whether it be over drugs, money or relationship issues and not the best place for a young mind to be nurtured. She noted the good relationship which the applicant had developed with his uncle, who considered that he had matured quite a lot and was becoming more family oriented, as a result of his relationship. His uncle also gave evidence that the applicant had expressed remorse to him and had been in tears as to how his offences had affected others, not just himself.
30His uncle had encouraged the applicant to be positive in custody and to plan for his future. He had offered him work and accommodation on release and hoped that he would become involved with his football club, where he would have an opportunity to meet and interact with a different group of associates and friends.
31Her Honour also noted the applicant's acknowledgement that his offences were very serious, but that he did not think they were serious at the time he had committed them, not then thinking of the consequences. She concluded that there was a marked difference in the applicant's behaviour; that he had expressed remorse; and had prospects of rehabilitation, although that conclusion had to be approached cautiously, given the psychologist's opinion. Nevertheless, her Honour accepted that the applicant intended to redirect his life and not to re-offend, but considered that rehabilitation would require the applicant receiving considerable assistance in custody, as well as in the community.
32Her Honour also considered the question of parity, referring to Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540. After referring to the Crown's case that parity with the co-offender Oatley was relevant to the sentence for counts 2 and 3, but with reservations, given the different charges and maximum penalties involved; the lesser discount which the applicant ought to receive for his plea; and the offenders' different subjective circumstances, her Honour concluded:
"Although, of course, it is not impossible that strict parity may arise with co-offenders charged with different offences, I do not think Jimmy is authority for the proposition that it must follow, as seems clear from [203] of Campbell JA's judgment. What is sought to be achieved in parity, or proportionality principles, is justice before the law."
33Her Honour accepted that the question of rehabilitation had to be approached with caution, but that there had been remorse expressed; insight gained; a measure of maturity achieved in custody; relationships developed with his uncle and partner and their families; and a demonstrated change in attitude. Oatley, her Honour observed, had only very recently demonstrated any change in attitude.
34Her Honour also noted that both Oatley and the applicant had breached their parole by the commission of the subject offences. The balance of parole which was revoked for Oakley was a period of 8 months and 14 days and for the applicant, a period of 2 years, 3 months and 15 days. She also considered a significant difference between Oatley and the applicant to be that Oatley was convicted at Port Macquarie Local Court on 15 April 2012 of recklessly causing grievous bodily harm in company. This offence was committed in custody and he received a sentence of 12 months for that matter, with no parole period.
35Oatley was sentenced on 24 April 2012 for two offences: count 1 - possession of an offensive weapon whilst in company with intent to commit an armed robbery, which had a maximum penalty of 15 years, with no standard non-parole period. A charge of larceny of a motor vehicle was taken into account on a Form 1, the same matter to be taken into account on count 2 in the applicant's case. Count 2 in Oatley's case was possession of a Glock pistol without authorisation by licence or permit, the same charge as the applicant's count 3. Oatley pleaded guilty four months before the trial and was given a discount of approximately 15% for his plea.
36Her Honour noted that Oatley was approximately two years younger than the applicant, but that he had a somewhat more extensive criminal history and that in his case the sentencing judge was satisfied that there was a pattern of disobedience to the law involving offences of violence and dishonesty, that had commenced shortly after he turned 17. She considered that the applicant had more serious offences on his record, the most serious of which was robbery in company while armed with a dangerous weapon. She noted however that in Oatley's case a pattern of violence had continued even while in custody.
37She also noted that in Oatley's case, as to totality and the balance of parole, the sentencing judge concluded it to be appropriate to accumulate the sentences for the subject offences by 12 months. In the result Oatley was sentenced to:
Count 1 - a non-parole period of 3 years and 4 months and a total term of 5 years, to commence on 28 January 2012, one year after he was arrested for the offence and taken into custody.
Count 2 - a non-parole period of 33 months in a total term of 51 months to commence from the same date, 28 January 2012.
38As to the co-offender in relation to count 1, Justin Bourke, her Honour noted that he had been charged with two offences - robbery being armed with a dangerous weapon, namely a firearm, contrary to s 97(2) of the Crimes Act and possession of an unregistered firearm, and a pistol, contrary to s 36(1) Firearms Act, which has a maximum penalty of 10 years imprisonment. In addition, Bourke admitted his guilt in respect of four further offences, namely three offences of break, enter and steal contrary to s 112(1) of the Crimes Act and one offence of cultivate prohibited plant contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. Those offences were committed in breach of a s 9 bond.
39Bourke's criminal history was described by the sentencing judge as 'not a significant record', which included possession of prohibited drugs, larceny, enter vehicle without consent of the owner, break, enter and steal, assault and robbery in company. Her Honour noted that Bourke had a long history of substance abuse, adjustment disorder and ADHD. He had good continuing support in the community including that of his sister, mother, stepfather and fiancée. It was concluded that he had reasonable prospects of rehabilitation.
40Bourke received a 25% discount for his plea, entered at the earliest opportunity. He was sentenced to a non-parole period of 2 years and 9 months to date from 11 May 2011, with a total term of 5 years and 3 months on count 1, taking into account the 4 offences of a Form 1. The starting point before discount was therefore 7 years.
41Her Honour noted the applicant's case that this offence fell within the lower category of offences of this kind, because the applicant was not involved in the actual planning; that his role was minor and not integral to the commission of the offence; that he provided the vehicle to use in the robbery; that while the situation was threatening, no actual violence was used; and that there were no bullets in a gun used by Bourke and no evidence of ammunition in the other weapon.
42Her Honour noted the Crown's concession that the applicant had a relatively minor role in this offence, although it submitted that his subjective features, including his more extensive criminal history and his breach of parole, pointed in the opposite direction. The Crown also relied on his prospects of rehabilitation. Its case was that given that Bourke was also being sentenced taking into account other significant offences, albeit they were old and given the applicant's relatively minor role, the sentence should be somewhat less than that of Bourke, despite the differences in their subjective features.
43Her Honour noted as to counts 2 and 3 that alcohol or drugs affected neither Oatley nor the applicant at the time of other offences. Her Honour considered that although the conspiracy offence may have been partly committed to help a mate, on the applicant's own admissions to the psychologist, it was also committed out of greed. The planned robbery could not be carried out because of the intervention of police. Her Honour accepted that the fact that no armed robbery actually occurred, no money was taken and no one was threatened or injured had some impact on reducing the level of the applicant's criminality, but she considered that impact to be quite minimal.
44The Crown conceded that because Oatley had received concurrent sentences, in the applicant's case the sentences for counts 2 and 3 should also be concurrent. As to count 1 her Honour accepted that some accumulation was necessary, given that there was considerable potential danger, given the rounds in the Glock pistol. As to count 3 she accepted that the applicant's criminality was somewhat less than that of Oatley, who owned the firearms and brought them from his home.
45Her Honour considered that the sentences had to reflect both personal and general deterrence, but because of the applicant's immaturity, somewhat greater weight had to be given to rehabilitation, as had been the case with Oatley. As to totality, the breach of parole was accepted to be an aggravating feature. The sentence was backdated 6 months after the date of arrest to reflect what was said in Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145.
46Special circumstances were found given the accumulation of sentences, the risk of institutionalisation and the need for greater than usual supervision and assistance on release to the community.