CRIME - Sentence - break enter and steal - drive in manner dangerous knowing police in pursuit
(2005) 228 CLR 357
Muldrock v R [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
CRIME - Sentence - break enter and steal - drive in manner dangerous knowing police in pursuit(2005) 228 CLR 357
Muldrock v R [2011] HCA 39
Judgment (2 paragraphs)
[1]
Judgment
Thomas Wayne Bottom appears today for sentence in relation to six offences, which I will call the principal offences. He also is required to be sentenced in respect of six matters on a s 166 certificate. In respect of two of the principal offences I am required to take into account, in respect of one of those offences nine matters on a Form 1 and in respect of the other, two matters on a Form 1. Originally the Crown presented the material with all the matters on the one Form 1. However, identifying two principal offences, I was not sure that the Act permitted that to be so. There is thus to be considered a considerable amount of criminality involved in the offences with which I am concerned. Offences not committed over a few days or a few weeks, but committed between early August and mid to late December 2018.
The prisoner has pleaded guilty to two offences of breaking, entering and stealing committed at the same residence. That is the residence of Mr Andrew McDonald. I need not read the details of it onto the record. These offences are contrary to s 112(1)(a) Crimes Act 1900. Each carries a maximum penalty of 14 years imprisonment and they have no standard non-parole period. The third principal offence is an offence contrary to s 51B(1) Crimes Act 1900 and that was an offence committed on 18 October 2018 at Millthorpe and elsewhere. I hasten to say it is described shortly as a 'police pursuit' offence but it is particularised as the prisoner driving in a manner dangerous to others reasonably to have known the police officers were in pursuit, being required to stop, but not stopping his vehicle. This offence carries a maximum penalty of three years imprisonment.
The two breaking, entering and stealing matters that I earlier referred to were committed, firstly on 7 or 8 August 2018, the second matter involving Mr McDonald's property on 21 and/or 22 September 2018. I should point out in relation to the first breaking and entering and stealing in time that the prisoner stole a 30-06 calibre rifle, a pump-action 12 gauge shotgun and a 2 .223 calibre rifle, the property of Mr McDonald and his wife. The second breaking, entering and stealing did not involve as valuable property, nor property as dangerous, but involved three firearm bags and two telescopic sights.
The fourth offence in time is an entering dwelling with intent to commit a serious indictable offence, to wit, steal. This is an offence committed at a location, nearby to Orange, of Forest Reefs. It was committed between 21 October 2018 and 22 October 2018. That offence has a maximum penalty of ten years imprisonment. The fifth offence is an offence committed on 4 December 2018 of breaking and entering and stealing in circumstances of aggravation. That is being in company with another person. Again, on this occasion the prisoner stole two firearms. The premises that he broke into were damaged in a manner I will describe shortly. That offence, contrary to s 112(2) Crimes Act 1900 carries a maximum penalty of 20 years imprisonment, but has a standard non-parole period of five years imprisonment. The last principal offence, by reference to the order in which these offences are set out in the Crown sentence summary, is an offence contrary to s 51B(1) Firearms Act 1996. It carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years imprisonment.
I should point out, as I said earlier, that the breaking, entering and stealing in circumstances of aggravation offence is one that has to take into account in sentencing the prisoner nine offences on a Form 1. These offences include two offences of larceny, one offence of breaking, entering and stealing, one offence of disposing of stolen property, four offences of possessing suspected stolen property and one offence of having in premises under his control suspected stolen property. These various offences on that Form 1 being committed between 2 October 2018 and 19 December 2018.
The Firearms Act offence of unlawfully selling firearms on three occasions in 12 months was an offence committed by the prisoner between 23 October 2018 and 5 December 2018. Those offences all committed at Orange. The matters on the Form 1 attached to it, two in all, are one offence of supplying ammunition to a person not authorised to be in possession of the ammunition and another offence of possessing ammunition without a permit to possess that ammunition. The first offence on the Form 1 being committed on 27 November 2018, the second offence arising out of the arrest of the prisoner on 19 December 2018.
The matters on the s 166 certificate are offences of contravening an apprehended domestic violence order and five offences of driving whilst disqualified. I had foreshadowed the total sentence I propose to impose upon Mr Button. I propose to do that with two aggregate sentences, but decline to fix a non-parole period in respect of the matters on the s 166 certificate that are outstanding and require discrete sentences. Simply because the second aggregate sentence will commence partway through that sentence, in fact 12 months into that sentence.
To add to the complication, self-evident from the outline of what I have identified as relevant charges to take into account, the prisoner was sentenced to a term of imprisonment at the Local Court in 2018 in respect of an offence of damage property, intimidation, contravene an apprehended domestic violence order and another offence of intimidation. That was a total of 12 months imprisonment with a seven month non-parole period commencing on 5 January 2019. It would appear the prisoner was on bail at least between 19 December and early January, as best I can understand. That sentence is obviously relevant in this sentencing exercise to the fixing of a non-parole period. I have approached the fixing of the non-parole period on the basis of a calculation of the total sentence to be served by the prisoner, including the sentence imposed by the learned magistrate.
I have attempted to fix a non-parole period that represents 60% of the total term of imprisonment required to be served, as I said, reflecting a finding of 'special circumstances' pursuant to s 44 Crimes Act (Sentencing Procedure) Act 1999. The special circumstances are many. The partial accumulation of sentences is itself a special circumstance. The requirement of the prisoner serving his most significant terms of imprisonment to have professional assistance to adjust to community living is a special circumstance. He requires professional assistance in relation to perhaps grief counselling, but certainly in relation to drug usage and dependency. He obviously will need a great deal of assistance in relation to matters such as obtaining employment and the like.
To add to the complication, I understand from the submissions provided to me from the Crown and the Crown cover sheet, that the prisoner was subject to a s 9 bond and/or a Community Correction order at the time of the offending. I will come back to the detail of his criminal history. There is another feature of the sentencing exercise that needs to be acknowledged. There was a co‑accused in respect of part of the prisoner's offending in relation to the unlawful sale of firearms offence. This person, Mr Warrender was involved in one of the supplies to an undercover police officer involving a firearm, as I understand it, that Mr Warrender was in possession of, not the prisoner, and in respect of which supply the prisoner performed the function of a type of middle man. Bearing in mind he had established a contact with the person that he thought he could sell firearms to privately, without detection not realising of course he was dealing with undercover police, and also being subject to no doubt, police surveillance at relevant times.
I must say, I am having difficulty understanding why he was permitted to remain in the community, continuing to commit offences, when he was so closely monitored by police. It is fortunate that something tragic did not occur whilst he was at large, either with his control of motor vehicles or his criminal conduct. As for, example, happened in Melbourne with the Bourke Street slaying of people by a man driving a motor vehicle in a dangerous fashion. Be that as it may, this co-offender was dealt with in respect of an offence contrary to s 62(1)(c) of the Firearms Act. This is an offence other than the offence for which the prisoner is sentenced and he was sentenced to a total term of imprisonment of 18 months imprisonment commencing on 21 March 2019, with a non-parole period of 13 months. It hasn't been argued that any issue of "parity" arises in relation to Mr Warrender's sentence. It is a relevant matter to take into account, I appreciate that. But the criminality reflected in the s 51B Firearms Act offence is significantly greater than the criminality that Mr Warrender admitted to on a more limited basis.
With regard to parity of sentencing, again not a matter argued before me, it is to be borne in mind, as Rothman J pointed out in the decision of Jimmy v The Queen [2010] NSWCCA 60, particularly at [254]-[255], parity in sentencing is an aspect of 'equal justice'. Equal justice requires that like should treated alike and the difference in treatment of different persons should be rational. Of course, Mr Warrender and the accused are not alike, because they do not have a common crime, although their criminal activity with which they are both involved does intersect.
In this matter I have had the benefit of extensive written submissions from learned counsel for the prisoner and some oral submissions and also helpful oral submissions from the Crown. I have taken all those submissions into account and I will refer to a number of those submissions in the course of dealing with factual issues that are required of me to resolve or determine. I have also been provided with a psychologist's report, prepared for the benefit of the prisoner, which I have taken into account and which I will refer to shortly. I have also had the benefit of evidence from the prisoner in relation to his personal circumstances and matters concerning aspects of the offending, but not all aspects of the offending, and I will deal with that material that requires comment in due course.
In sentencing the prisoner in relation to the various offences that I am concerned with, there are quite a large number of issues that arise, both out of legislation and the case law. As the High Court pointed out in the decision of Pearce v The Queen (1998) 194 CLR 610, particularly at [39], [42] and [46], the sentencing of offenders and the determination of whether sentences should be concurrent or accumulative or partially accumulative, is not an exercise that should be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a much of semantics. Their Honours pointed out, or the majority of the High Court, pointed out in Pearce v The Queen that sentencing is not a process
"that leads to a single correct answer arrived at by some process admitting of mathematical precision".
As the High Court pointed out at a later time in Wong v The Queen in 2001, a decision concerning guideline judgments in respect of Commonwealth sentencing, if I might quote their Honours:
"The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of the one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment."
(See Wong v The Queen (2001) 207 CLR 584) particularly at [77].
As I said, there are a large number of offences for sentence. This invites consideration of the concept of totality of sentencing which was addressed particularly in Pearce v The Queen. The majority of the High Court there were considering a conviction appeal. But in obiter observations about the circumstances in Pearce that went to an undesirable outcome in his sentence if the appellant was acquitted in relation to one of the matters for which he had been sentenced, their Honours pointed out that when regard was had to the totality of the criminality, it still required the Court to fix an appropriate sentence for each offence and then turn its mind to the issues of concurrency, accumulation and partial accumulation to reflect the totality of criminality (at [45]). Of course, this issue and its complexities has been met to some extent by the amendment to the Crimes (Sentencing Procedure) Act, which I will hereinafter refer to as "the Act", by the introduction of s 53A of the Act, which I will utilise in sentencing Mr Bottom.
But dealing with the totality of criminality, I note three judgments. I note the decisions of the High Court in Johnson v The Queen from 2004 and Mill v The Queen from 1988, the citations I need not cite at the present time. I also note the judgment of Hall J in 2010 in the decision of XX, particularly at [52] of that judgment, where his Honour sought to encapsulate a series of principles enunciated in a range of cases primarily of the High Court and the Court of Criminal Appeal. Street CJ in the decision of Holder [1983] 3 NSWLR 245, particularly at [260], cited the practicalities of considering the concept of 'totality of sentencing'. His observations being adopted by the majority of the High Court in Mill expressly. Street CJ said, if I may quote him:
"The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of the sentence that is appropriate for each individual offence, considered separately, will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all the offences and having done so will determine what if any downward adjustment is necessary, whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
I am also required, of course, to have regard in sentencing that in each instance that I am required to fix an appropriate sentence the 'purposes of sentencing' pursuant to s 3A of the Crimes (Sentencing Procedure) Act are relevant. Those various purposes of sentencing all have applicability in this matter in various ways. There is a requirement to ensure adequate punishment to deter this prisoner and others from committing further offences. In other words, weight to be given to general and personal deterrence. There is a requirement to protect the community from the offender to some extent, but he does not present as a danger to the community in the way in which a serial sex offender or a drug supplier may present a risk. I am required to make him accountable for his conduct, to denounce his conduct, to recognise harm done to relevant victims of the crimes where victims are identified. But I am also required to promote his rehabilitation. Section 5 requires me not to sentence an offender to imprisonment unless satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Of course, in this matter there can be no doubt that imprisonment is the only penalty I can impose. I have mentioned the issue of 'special circumstances' and I have already indicated that I am prepared to make a finding of special circumstances in favour of the prisoner.
With regard to the offences involving breaking and entering of property, of which there are three principal offences, there is an offence of entering with intent but I will just put that aside for the moment, there is a breaking and entering and stealing matter on one of the Forms 1. I bear in mind what was said by Grove J in the decision of Ponfield (1999) 48 NSWLR 327 as to these types of offences. There his Honour, in his usual wise and concise fashion, identified relevant factors in sentencing people for breaking, entering and stealing offences. It was determined by the Court of Criminal Appeal that no particular guideline could be fixed for a breaking, entering and stealing offence because of the multiple circumstances in which the offence could be committed. However, his Honour pointed to various matters that were relevant to take into account.
I point out to reflect upon the perspicacity of his Honour, one of the best Judges of the Supreme Court that I ever appeared in front of, along with Wood J and Hunt J, that his Honour identified a number of factors relevant in that guideline which were subsequently incorporated by the legislature into the amended s 21A of the Act when that section was amended in about 2003. His Honour identified factors particularly relevant here, although as I say some of these matters are overtaken by the current s 21A of the Act, such as whether the offender was on conditional liberty at the time of the offending, the extent to which the offence was the result of professional planning, organisation and execution, that the offence was accompanied by vandalism or by any other significant damage to property. It is the case in relation to the breaking, entering and stealing offence in circumstances of aggravation, which is a principal offence that I have to sentence the prisoner for taking into account many matters on a Form 1, that there was significant damage done to give effect to the stealing that occurred.
I am required to have regard to the multiplicity of offences committed by the offender of like type in the context of sentencing for a particular offence, although obviously I cannot "double dip" in that regard. I am required, in relation to the offences of breaking, entering and stealing, which are principal offences, of the first two that I mentioned the second offence involved a repeat incursion of the same premises. Albeit that lesser property was stolen. I am required to have regard to the value of the property of the victim, or particularly the character of the property. It has been rightly pointed out, although the firearms themselves were, in a comparative sense, not particularly "valuable" items, although one firearm was of significant value. The fact that firearms were stolen for the purposes that they were stolen reflects upon the seriousness of the relevant offending. Given the fact that those firearms were to find their way into the community but for the intervention of undercover police. The fact that most did not enter the community is a relevant matter where applicable. Out of the facts of the particular breaking, entering and stealing, as available to me, a number of those matters I have identified have relevance to one or other of the offences as the facts summarised will make clear.
The other matter to be considered in the context of the two offences with standard non-parole periods is that I am required to take into account matters on a Form 1 and the matters to be taken into account, particularly in relation to the breaking, entering and stealing in company offence, are matters of significance. The totality of those matters standing by themselves is substantial.
The Court of Criminal Appeal in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147, particularly at [18]-[44], discussed a number of principles that needed to be considered in sentencing an offender for a principal offence, taking into account matters on a Form 1. They referred to the operation of the Act, of course and the requirement for the Court only to fix a sentence for the principal offence, not to fix discrete penalties on the matters on a Form 1. But they also pointed out that when taking into account matters on a Form 1 usually, I add the word "usually", the Court will give greater weight to the need for personal deterrence and the community's entitlement to extract retribution.
I pause for a moment to point out that stands to reason. To point out an example more serious than the situation of this present, if a man commits one armed robbery and he asks for six armed robberies to be taken into account on a Form 1, one might expect a much more significant penalty to be imposed for the principal offence than had it stood alone and because of the need for greater weight to be given to deterrence and the greater weight to be given to retribution. The Chief Justice pointed out that,
"The entire point of the process is (usually) to impose a longer sentence than would have been imposed if the primary offence had stood alone. Sometimes the additional penalty will be small, sometimes it will be substantial."
The Court pointed out amongst the many observations it made that taking into account matters on a Form 1, deterrence and retribution are entitled to greater weight than they might otherwise have been given. As I said, there is no need to quantify the relevant extent to which a greater penalty is required for the principal offence than having stood alone.
Another relevant aspect of this sentencing exercise is the operation of standard non-parole periods. Two offences have standard non-parole periods. Section 54A(2) of the Act states:
"For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to (the) Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness."
I pause for a moment to point out that recently the Court of Criminal Appeal has addressed its mind again to the operation of standard non-parole periods in the light of the legislation which was amended to reflect the decision of the High Court from 2010 or 2011 of Muldrock, which I need not cite. A particular decision I refer to is Tepania v The Queen [2018] NSWCCA 247, particularly at [112] where Johnson J said, inter alia:
"In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence [citing authorities for that proposition]. Motive for the commission of an offence is an important factor on sentence."
So far as moral culpability is concerned, Johnson J said, at [119]:
"Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires [citing Markarian v The Queen (2005) 228 CLR 357; particularly McHugh J's observations at [52]]".
I should also point out in passing that in Veen (No 2) of the High Court of Australia when it handed down that decision in 1988, identified four of the current seven purposes of sentencing and made the point that they were guideposts for the appropriate sentence, but like some guideposts, may point in opposing directions.
So far as the facts of the matter are concerned, there is an agreed statement of facts and that as purported to be summarised by learned counsel for the prisoner, in a fair fashion. I make no criticism of his industry. The prisoner was born in October 1991, relevantly thus over the period of time that these offences were committed, he was either 27 or 28 years of age. So far as his driving offences were concerned and there are many of those to be taken into account, either on the Form 1 or on the s166 certificate, he was disqualified from driving at relevant times up until December 2025.
The Rural Crime Prevention Team in Orange set about seeking to investigate thefts of firearms. The prisoner's mobile phone was readily identified by the investigators and consequently the investigations uncovered the fact that the prisoner had broken into Mr McDonald's property, stealing the firearms that I identified before, on 30-06 calibre rifle, one Browning pump‑action 12-gauge shotgun and two SAKO .223 calibre rifles with telescopic sights. One of these firearms was the most valuable firearm stolen of all the firearms. It was apparently valued at $5,000.
The next breaking and entering a month later at the same victim's premises involved the taking of a small amount of ammunition and the telescopic sights and the firearm bags, which the prisoner used. I should point out that the prisoner had been a guest at Mr McDonald's property some years before and was familiar with it. The extent to which he was entirely familiar with the location of the firearms is not abundantly clear, but it would seem on the facts available to me that the premises were targeted for the purposes of obtaining the firearms. The statement of facts goes on to identify the commission of one of the larcenies that appears on one of the Forms 1. This involves a repeat offence against Mr McDonald's property, the taking of his wallet containing personal cards, a pocketknife, a battery starter pack and a Navman, this offence being committed between 2 October and 3 October 2018.
The police pursuit offence that I identified earlier was a serious example of this type of offence. As I pointed out in the course of submission I have seen worse. In fact I have seen worse on film. But that having been said, the prisoner was driving whilst disqualified, he was not entitled to be behind the wheel of a car, whatever he thought of that. He was not even wearing a seatbelt. Police saw him near Millthorpe. They tried to pull the vehicle over. The prisoner increased speed to avoid the police. The pursuit continued for 42 kilometres until the vehicle was lost sight of in the Canobolas State Forest, on the other side of Orange, as everybody in this locality knows. During the pursuit, the offender reached speeds of 130 kilometres per hour on roads with a designated speed limit of 70 kilometres. He drove through a 40 kilometres per hour roadworks area at 120 kilometres per hour, eventually slowing to 80 kilometres per hour with workers present on the side of the road and he veered onto the wrong side of the road when negotiating corners.
If he had killed somebody in the course of driving in this manner or in the course of this particular police pursuit, he would be looking at a sentencing, standing alone of something in the order of seven or eight years imprisonment, given his history and the guideline judgments relating to dangerous driving. Thankfully nobody was killed or seriously injured. But one could not ascribe any success in that regard to planning by the prisoner.
The 'enter dwelling' offence, which is a principal offence, involved the prisoner entering premises at Forest Reefs. He again targeted these premises to obtain access to a firearm safe. I note in relation to this matter that he opened up the lock to the safe and took items, including a .410 shotgun, a pump-action .22 rifle and an air rifle and a farm motorbike was stolen from the property during this incident. But whilst that is reflected in the facts in relation to the matter, and I have not had a chance to really discuss this with the learned Crown Prosecutor, he is not charged specifically, as I understand the matter, with those offences. The entering of the premises being pleaded as being accompanied by an intention to steal. Be that as it may, the facts reveal the taking of the property as I have identified.
The most serious offence he committed was the offence contrary to s 51B of the Firearms Act. That is, unlawfully selling firearms on three or more occasions within 12 months. The first occasion involved the sale of the firearms from the theft from the Forest Reefs property. He supplied an undercover officer, unwittingly to the prisoner, on 23 October with the .410 shotgun and the pump-action .22 calibre rifle for $800. He was driving the same vehicle that he had been driving when he was pursued by police some days before. The motor vehicle, by the way, had been modified and had different numberplates than it had on the previous occasion. The firearms were contained within a firearm bag that had belonged to Mr McDonald and had been the subject of the theft from his property in September.
The prisoner was further involved in the supply of firearms as well as the supply of ammunition. This was the second of the three occasions. He met the undercover police officer on 27 November. This was the occasion that he was in company with Mr Warrender. His telephone conversations with Mr Warrender were intercepted. It was made clear that there was to be some bargaining in relation to the price for the firearm which was described as "an old gun". It was the sawn-off .22 calibre rifle and handed to the undercover officer. The prisoner produced a packet of fifty .22 calibre rounds of ammunition and one shotgun shell and said that was part of the deal and the undercover officer paid $250 for the firearm and the ammunition, handing the money to Mr Warrender. I am prepared to accept, as I said, the prisoner formed the role as a conduit in that particular aspect of the commission of the s 51B offence. The third such offence or third such supply required under s 51B occurred on 5 December 2018.
The prisoner supplied a .22 magnum calibre rifle and a quantity of ammunition for $800. He told the undercover officer that he stole the firearms the previous evening from a building he had previously worked at and he knew the security arrangements, indicating of course, if not professional planning, at least the degree of premeditation for that offence. This breaking, entering and stealing to which he referred is in fact the s 112(2) Crimes Act offence in circumstances of aggravation, which was committed on 4 December 2018.
The prisoner was true to his word, because the day before he went to Carcoar, he entered premises where the prisoner had previously worked, he entered the manager's officer where the firearm safe was located and clearly went there for the purposes of stealing firearms. The safe was bolted to the floor and the wall and was secured by both a key lock and a keypad lock. The two offenders hooked a tow rope around the safe and attached it to their vehicle, using the vehicle to force the safe from the wall and out of the door. This caused damage to a number of items of furniture and smashed the glass door fridge. Within that safe were the two firearms supplied the following day to the undercover police officer, the .22 calibre long rifle and the .22 magnum calibre rifle and an assortment of ammunition.
At various times, as the facts reveal, the prisoner when under observation by the police, apart from the time of the police pursuit, was driving a motor vehicle whilst disqualified from driving and those matters are matters either on a Form 1 or on the s166 certificate. He was also observed to be in breach of an ADVO relating to a former partner and mother of three of his children, one of whom is deceased. The facts go on to provide details of other larcenies committed by the prisoner. Amongst other things, one of those larcenies was in fact a breaking, entering and stealing offence.
The prisoner was intercepted on 12 November 2018 talking to an unknown male. They discussed "various criminal activities" reflecting the conduct with which I am concerned not being isolated conduct. The prisoner said to the other person on the phone, "Oi, what about at Manildra, The Rural Centre out at Manildra?" The other person, unknown to the police said, "We can go and have a look out there. That would be a good little earn. It would be piss easy, so I've heard". So the prisoner and the other person, never being identified by the prisoner, I hasten to say, none of the unknown co‑offenders have been nominated by the prisoner, went out to The Rural Centre at Manildra, cut through a perimeter fence, stole a petrol‑powered high pressure washer, forced open the front door of The Rural Centre, forcibly removing the hinges and there inside stole a brand new Husqvarna whipper snipper and offered the whipper snipper for sale, as well as the washer to a friend, along with photographs of the stolen property via text message.
When arrested on 19 December 2018, the prisoner was in possession of a cheque book that belonged to a person that he clearly was not associated with. This was a cheque book stolen from a car parked at a smash repair place at Orange. He is charged not with stealing, I hasten to say. When a search warrant was executed at his premises at Osman Street, Blayney, he was in possession of a range of suspected stolen factory, which matters are set out in the Form 1, including property belonging to Mr McDonald and identified as being linked to other crimes. Amongst the property that was found in his possession that had previously been stolen was a Bosch worksite stereo, a BAC welder and Bosch angle grinder, shearing equipment, various paperwork taken from a vehicle parked at Orange Airport between 12 and 20 November 2018, some property belonging to a person called Westley Miller stolen from a car at the airport between 21 and 24 August 2018 and a four‑wheel drive recovery kit stolen from a vehicle whilst parked at the smash repair centre at Orange, to which I earlier referred at some time around about 11 or 12 December 2018.
Also during the course of this search was found a range of ammunition giving rise to one of the offences on the Form 1 attached to the repeated sale of firearms. During the search of the offender's property, police located two boxes of live ammunition of various calibres. The ammunition was not stored in any appropriate storage receptacle. The prisoner obviously did not hold any licences or permits to possess either ammunition or firearms. A firearm bolt was located in the prisoner's vehicle. The prisoner, as I said, after initial arrest apparently got bail, but then returned to custody on 21 March 2019.
Whilst in custody at Silverwater, he participated in an electronically recorded interview. I note in relation to that matter, as it might reflect upon, for example, consideration of his evidence in this court, he denied committing any of the breaking, entering and stealing offences at the property of Mr McDonald, which he now admits to. Although he did admit the entering premises at Forest Reefs, and the theft of firearms and the subsequent sale of these firearms. He also admitted his part in the sale of other firearms and committing the break, enter and steal at Carcoar Saleyards on 4 December 2018 and stealing firearms. He made further admissions in relation to the sale of firearms to the undercover officer. It is to be pointed out, of course, that he was recorded and under surveillance in relation to those matters.
It goes without saying there was a very significant range of offending, a very considered and deliberate range of offending, a number of the premises broken into were specifically targeted for what they could provide in a particular way. Whilst I am prepared to accept part of the prisoner's evidence that he was a user of methylamphetamine and it may have, from time to time, affected his judgment it could not possibly have affected his judgment all the time in relation to all the matters with which I am concerned. Ultimately I can only conclude, in respect of the matters he gave evidence of concerning drug ingestion, that he was a person dependent on amphetamine. As his counsel correctly pointed out, drug addiction or drug dependency is not a mitigating factor. This was well cited by the Court of Criminal Appeal in 1998 in the guideline judgment of Henry v The Queen. In fairness, Wood J then the Chief Judge of the Common Law Division at [273] pointed out that:
"Whilst drug addiction or dependency was not a mitigating factor, it could be taken into account in a range of other ways relevant to the sentencing exercise. It may be relevant in determining whether an offender was at the crossroads".
That is a point where I could not conclude the prisoner is, even now, having been in custody for nearly a year. It might go to the impulsivity of some of the conduct with which the prisoner is charged. There is nothing really "impulsive" about most of the offending with which I am concerned. The police pursuit, of course, was not a planned event. It was "an impulsive" act, a deliberate attempt to avoid arrest by the police. But the substantial breaking, entering and stealing matters, the selling of firearms and the like were clearly deliberated actions, clearly not impulsive. Whilst I am prepared to accept that "planning" as it arises under s 21A(2) is not an additional aggravating factor in relation to the offences with which I am concerned, there was still a considerable degree of planning in each of the offences attracting consideration of that aspect under s 21A(1) of the offending.
In the context of the issue of planning, as a mitigating factor, that is the lack of planning, I am prepared to accept that the police pursuit matter was not a "planned" offence. Some of the offences may have had elements of opportunism, stealing property from cars parked at a smash repair centre, but the various principal offences that I am concerned with do not have, with the exception of the pursuit offence, any absence of planning as a relevant "mitigating" factor. I will come back to s 21A(2) and (3) as it relates to particular offences shortly.
The prisoner has a criminal history that does not entitle him to any particular leniency. It is to be fairly said that this period of criminal conduct that I am concerned with is the most significant and intense in the prisoner's criminal history. However, the criminal history available to me shows that in 2012 he was convicted of assault occasioning actual bodily harm in company. The criminal history points to two offences of this type, but the same result is recorded. A bond for 12 months under s 9 of the Act, as it then stood, and a fine of $1,000. But the two offences are said to be dated 2 January and 16 March. Whether that is the same offence somehow repeated in the criminal history or not I do not know. I am prepared to accept it is one offence for the purposes of this sentencing exercise.
The prisoner has a range of offences involving misuse of motor vehicles, driving whilst suspended, driving whilst disqualified. Hence he was disqualified, as I said earlier, until 2025. For example at Wagga Wagga Local Court, he was convicted of driving whilst suspended and he was disqualified for 12 months. He had been previously charged with drive whilst suspended at Orange Local Court in 2014 and got the benefit of a s 10 order. He again got the benefit of a s 10 order at the Orange Local Court in June 2015 for driving whilst suspended.
Subsequent to his appearance in Wagga, he was convicted in June 2016 of driving whilst disqualified, fined and disqualified further. He was then arrested again and convicted within three months of the previous offence, of an offence of driving whilst disqualified, for which he was fined $2,000 and further disqualified. He has convictions for which he was sentenced at the Bathurst Local Court in February of this year of 'stalk and intimidate' and related matters and the aggregate sentence was imposed that I earlier identified. He has findings of guilt in respect of street offences, behaving in an 'offensive manner' and 'damaging property'. He was placed on a s 9 bond for the damage property offence at the Local Court on 25 February 2015. But was in fact called up in relation to that matter when sentenced for the intimidation offence and that matter was part of the aggregate sentence imposed upon him.
He had a charge brought against him in respect of stalk or intimidate at the Local Court on 9 October 2018. This was in the course of the offending with which I am concerned. According to the record I have, on 9 October 2018 he was held to serve a Community Correction Order for 12 months. Therefore all the offences committed from 9 October onwards were committed whilst subject to that Community Correction Order.
I point out that I did not discuss this with the Crown. While the Crown said the prisoner was in breach of s 9 bonds at the time of the offending with which I am concerned, my reading of the criminal history, by reference to the date of the s 9 bond imposed on 25 February 2019 reflects the fact that the only conditional liberty to which the prisoner was subject was the matter of the CCO for which orders were made, as I said earlier, on 9 October 2018. The prisoner may have been on bail in relation to that.
Could you just clarify that matter for me, Mr Crown?
CROWN PROSECUTOR: Yes, we're just looking at it now, your Honour. My friend has got it on the right page.
HIS HONOUR: It wasn't made clear in the submissions. He's clearly subject to the CCO from 9 October. I'm assuming from the detail of the--
ROFF: I might be able to assist. If your Honour goes to p 3 of the watermarked criminal history you'll see down the bottom that there's an offence of the 23rd?
HIS HONOUR: Yes, 23 January 2018 dealt with on 26 July 2018, he's ordered to serve the Community Service Order.
ROFF: There was that, although that wouldn't necessarily--
HIS HONOUR: And the s 9 bond, I'm sorry, you are right, I've missed that.
ROFF: Over the page.
HIS HONOUR: Yes, I've neglected to identify that. 26 July 2018 he was ordered to serve 100 hours community service, but he was also placed on a good behaviour bond pursuant to s 9 of the Act.
ROFF: Yes.
HIS HONOUR: So he was - and I note that and I am glad I corrected it - subject to a s 9 bond at all relevant times.
To just deal now with some of the matters that arose out of the subjective case conducted by the prisoner. I have already referred to parts of his evidence. There is a significant matter, I acknowledge that it has some relevance to this sentencing exercise. The prisoner told me in evidence earlier today that he has five children out of two or three relationships, plus a child who passed away, he told me, two years ago. The chronology in the psychologist's history of the prisoner is apparently wrongly stated, which does highlight sometimes the circumspection with which Courts are entitled to approach histories provided in documents prepared by psychologists and psychiatrists. But I do not blame the prisoner for that.
The child that died, he said, died on 10 November 2017. She had a congenital condition, as I understand it. She was 15 months old and I acknowledge, in the context of having an understanding of these matters, the death of a child having a profound effect upon him and no doubt upon his relationship. The prisoner said that this was a matter that was relevant to his use of amphetamines, although both his evidence and the history given to the psychologist is very vague in respect of this matter. There seems to be, to my mind in the evidence that he has given and the chronology he gave today, a history of amphetamine use well before the death of his child. But I am prepared to accept it is a matter of some relevance and that explains the prisoner ceasing to be employed in some respects and perhaps increasing his use of amphetamines. Although one could not be conclusively satisfied of those matters on the available evidence.
He has no history of mental health treatment. In fact, there is no history, not that the psychologist can diagnose, of mental illness or mental disability. He has no history of conduct disorder, which is consistent with his criminal history commencing in 2012, when he was 21 years of age. I am prepared to accept he had been in regular employment up until relatively recently before he came into custody. That is, before he came into custody in early 2019. The death of his child had an impact upon his employment situation. He gave some account of his mood and attitude being "depressed". But the extent to which his symptoms of "depression" are a result of using drugs or not is completely unclear. He has had no longstanding difficulties with intellectual function. There was some psychometric testing. He's assessed as being within average to low average range of intelligence with a consolidated intelligent quotient score of 90.
He is said to have cooperated with the psychologist to the extent that her testing reveals matters that might be regarded as reliable conclusions. He noted that he regretted his behaviour. He saw it as a low part of his life. He ceased drug use, he said, on entering custody. He has, as he said in his evidence before me, undertaken some courses and sought some limited counselling as it may be available. It was the view of the psychologist that he did not present in psychometric assessment with "entrenched antisocial attitudes", but clearly that assessment has to be seen in the context of his proven behaviour over a four month period. He was emotionally fragile at the time of the offending I accept.
The psychologist opined that he could link the deterioration in his functioning with the onset of his drug problems and his drug problems were related to his offending behaviour, a matter I have already dealt with. He has recommended he undertake counselling in the future both in custody and out of custody and I have taken that into account, both in the fixing of the non-parole period and the finding of special circumstances. He may need to seek what I would call "medical" assistance, although there is no evidence of him receiving any particular medical treatment for matters relating to depressive illness and the like at present. Certainly there is nothing in this report that is capable of diagnosing a relevant depressive illness. Whether it remains undiagnosed or not, is not served by this report. The assessment of the offender's presentation, of course, has to be seen in the context of his custodial setting and the circumstances in which he finds himself at the present time.
As I said, it was clear from the report and it seemed to be conceded in the course of submissions that there were not matters within the report that warranted conclusion that some reduction to be given to weight to be afforded to general and personal deterrence or even the moral culpability of the offender. But of course, as his counsel submitted and I accept his personal circumstances, particularly the death of his child and the breakup of his relationship with his partner, provide a context for understanding what followed.
He expressed the view in his evidence that he would seek to avoid using drugs on his release from custody. He said to the learned Crown Prosecutor as well as his counsel, he would hope to live with his parents or his mother on his release. His mother lives on the Cargo Road on the road to Canowindra. There is accommodation there for him. He would like to re‑establish a relationship with the mother of at least three of his children, although she is currently protected by an apprehended domestic violence order and in fact the prisoner was in breach of that order in visiting her. What the facts of that are I do not know, but I accept that he is desirous of establishing a relationship with his children, as each mother will permit.
So far as the evidence of the prisoner is concerned, concerning contrition and the like, I am ultimately prepared to accept, on balance that the prisoner is relevantly contrite. I have noted what the prisoner has said about his plans for the future and I wish him well in that regard. But I could not, by regard to the character of the offending with which I am concerned, the seriousness of some of the offending, the period of time over which it occurred, the skill with which the prisoner was able to commit some of these offences, albeit short of professional skill, that the prisoner is unlikely to reoffend or that he has good prospects of rehabilitation. These are matters I could not be satisfied of on balance.
As I have said earlier of the principal offences with which I am concerned as a mitigating factor arising under s 21A(3), there is only one offence that I could conclude was relevantly "unplanned". That is the police pursuit matter. I am prepared to give the prisoner a discount of 25% upon the otherwise appropriate sentence for all the offences requiring discrete terms of imprisonment, to recognise the utilitarian benefit of the pleas of guilty at the Local Court.
With regard to the assessment of the objective seriousness of the offences, of course, the objective seriousness of the offences varies from one matter to the other. I pointed out the police pursuit matter, albeit unplanned, is a serious offence of its type, having regard to the period of time and distance over which the offence was committed and the character of the driving of the offender and the fact that he was driving whilst disqualified. But then again, it has a maximum penalty of three years imprisonment and most police pursuit cases do not involve any planning on the part of the offender. It is a reaction, usually, to the fact that police have detected the vehicle or wish to speak to the driver.
With regard to the two offences for standard non-parole periods, I have concluded firstly in relation to the breaking, entering and stealing in company that that offence is beneath the middle range of objective seriousness. I am mindful of the character of the property that was stolen, which is clearly a significant matter. But there are other features of the case that need to be considered. Firstly, there is the fact that the pleaded circumstance of aggravation is of being 'in company'. Of course, circumstances of aggravation can vary in seriousness and intensity and in this particular matter, this particular circumstance of aggravation is very much at the lower end of the range of circumstances of aggravation contemplated under s 112(2) of the Act. I have also taken into account the absence of planning, as an aggravating factor, although obviously the premises were particularly targeted.
I have had regard, in the assessment of the matter, of course, to the damage that was done to the property. I have already referred to Ponfield and that is a matter that adds to the seriousness of the offending. But ultimately, having regard to the pleaded offence and the value of the property, even though the property included firearms, I am not prepared to conclude the offence is within the middle range of objective seriousness.
With regard to the firearms offence, that is the s 51B offence, I have ultimately concluded that that too is just below the middle range of objective seriousness. There are a number of reasons for concluding this. Firstly, whilst it is a relevant matter, to my mind, adding to the seriousness of the offending or aggravating the seriousness of the offending, that the relevant firearms that were sold were in fact, with the exception of one firearm, stolen by the prisoner. He was aware of the fact that those relevant firearms were stolen. Obviously he was the person who stole them. I have taken into account, however, that the firearms were sold to an undercover police officer. The Crown points out that this is not a "mitigating" factor. But it means, in the context of the principles that relate to selling drugs to undercover police officers, that the offending is absent the aggravating factor that the firearms have found their way into the community. The intervention of the police and the involvement of the undercover police officer has prevented these firearms being used for graphically illegal conduct, such as shooting people or committing other serious offences like armed robbery, drug supply and the like.
In considering the seriousness of the matter, I am mindful of the fact that the offences involve, on two of the three occasions, the selling of multiple firearms not just one firearm all of significant firepower in each instance to the undercover police officer. One of the supplies, as I pointed out, was the accused acting as an intermediary, which is a relevant matter to reduce the objective seriousness of the offending. If the offence involving the co-offender, Mr Warrender, had involved multiple firearms, that the prisoner had known was stolen, of course that would make the overall offending more serious than it currently is. Where Mr Warrender obtained the firearm from, of course, I have got no idea. Neither did the prisoner.
I am mindful of the fact that the degree of profit obtained by the offender in relation to the firearms that he sold for himself, was not significant, albeit that some of the firearms were, of course, quite valuable. I am mindful of the fact in sentencing a prisoner in respect of the s 51B offence that I have to take into account related offending, very much interconnected to the s 51B offence. I have had regard, in considering the objective seriousness of the offending in the terms of s 54A(2) of the Act to the particular matters identified by learned counsel for the prisoner, that the firearms were registered firearms, that the firearms themselves were not "prohibited" firearms, although these firearms, as I said, were certainly more potentially lethal than firearms otherwise covered under the legislation, such as air rifles and the like.
Although it is not directly relevant to the s 51B offence, it is relevant obviously to the principal breaking, entering and stealing offences that not all the firearms stolen by the prisoner are accounted for. I am told, and it is not present in the facts available to me, but I am prepared to accept it from the bar table, that there is some forensic evidence to suggest that at least one or two of the firearms stolen by the prisoner may have been destroyed in a fire or in some other circumstance. I cannot conclude, as was pointed out that the firearms have found their way into the community to be used for crime. Certainly there is no evidence provided to me that there is a link between the missing firearm or firearms and crimes that have been committed in the wider community.
As I said, by reference to the objective matters standing alone, I am prepared to find in relation to the 51B matter that it is slightly below the middle range of objective seriousness. Clearly, not at a low level of objective seriousness for reasons I have identified. Counsel, in his submissions to me, sought to argue that there were mitigating factors that I should take into account in favour of his client. I have already concluded that I could not be satisfied that on balance the prisoner had reasonable prospects of rehabilitation or was unlikely to reoffend. However, having said that, that is not to say that it is not possible for that to occur and I have noted what the prisoner has said about his wishes for the future. These are matters some years down the track and the prisoner will have to earn parole. But I am prepared to conclude that the prisoner has shown relevant remorse, which is one step on the way to rehabilitation and that is a relevant mitigating factor under s 21A(3) and the pleas of guilty are mitigating factors in relation to all offences that the prisoner receives a discrete discount.
So far as the statutory aggravating factors, I have already pointed out that all the offences were obviously committed when subject to conditional liberty. The terms of those conditional liberties increasing, if that is the correct expression, from 9 October 2018 onwards. I have already concluded that planning or organised criminal activity is not a relevant aggravating factor. The breaking, entering and stealing offences and the sale of the firearms offences, the entering dwelling offences, were all committed for financial gain, but as was pointed out, that is an integral feature of those offences. In fact, particularly for example in relation to s 51B, it is an element of the offence that the relevant firearms be sold.
I cannot conclude individual offences specifically involve "multiple victims or a series of criminal acts". There were multiple victims and there were a series of criminal acts, but each of those victims and criminal acts constitutes a discrete offence. Thus s 21A(2)(m) is not engaged. As I said, his criminal history is such that I could not conclude that he is entitled to any particular leniency. It is certainly not an aggravating factor, although I am prepared to accept that these offences that I am concerned with now represent the most serious offences.
I have taken into account the various subjective matters that his counsel has referred to. I have already dealt with the issues of totality and the commencement of sentences. I have taken into account, as I have said, the Crown's helpful submissions and I believe that a number of the matters reflected by the Crown or commented upon by the Crown are reflected in my remarks and also in the outcome of this sentencing exercise. He is quite correct to point out, without me having to cite authority, that in the last ten or 15 years many things have been said by the Court of Criminal Appeal and by the legislature about increased importance to be placed upon general deterrence and personal deterrence in relation to firearms offences to try and reduce the risk of firearm crime in our community in a range of ways. Ultimately, of course, these matters have to be seen in the context of all the issues that are to be taken into account, as required in decisions such as Markarian, to which I earlier referred, and the decision of Muldrock which I earlier cited in a different context.
I am sorry, Mr Bottom, a lot of what I said may have been of little significance to you and I am not criticising you for that. There are quite a range of issues that I am required to address. I have got to acknowledge everything that has been put to me by the parties. I have also got to acknowledge those matters within my experience as a judge that I am required to reflect upon in order to impose an appropriate sentence. The sentence I am imposing upon you is a substantial sentence. But you must understand that substantial criminality. You are way outside the ambit of the Local Court and you appreciate - I am not being critical of you, please do not misunderstand me, nothing I have said is meant to be personally offensive and I am very appreciative of some aspects of your evidence, particularly the tragedy within your family would have derailed you to some extent.
But your criminality occurred, as the Crown pointed out, not over a limited period of time and of course, just standing alone, you are driving whilst disqualified matters, you could have got a sentence of three or four years from a magistrate in relation to those, for all I know, if you had been sentenced for those matters.
Thus the orders I make are as follows. In respect of all the offences to which you have pleaded guilty, you are convicted. Taking into account the matters on two Forms 1, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, I sentence you to an aggregate sentence of nine years imprisonment to commence on 5 August 2020 and expire on 4 August 2029. I fix a non-parole period of five years and four months in respect of that sentence to expire on 4 December 2025. In this respect I am sentencing you to that aggregate sentence in relation to sequences numbers 1, 2, 6, 7, 14 and 16. That is, two break, enter and steals, one police pursuit, one enter dwelling with intent, one breaking, entering and stealing in company and the s 51B firearms offence.
The indicative sentences are as follows. For the first breaking and entering and stealing at Mr McDonald's premises you are sentenced to three years imprisonment. In relation to the second breaking, entering and stealing, you are sentenced to 18 months imprisonment. In relation to the pursuit offence, with a maximum penalty of three years, I fix an indicative sentence of 18 months imprisonment. In respect of the enter dwelling, even though you did steal property it is not pleaded, I sentence you to 12 months imprisonment. In relation to the breaking, entering and stealing offence in company, that is sequence 14, taking into account nine matters on the Form 1, I sentence you to four years imprisonment with a two year, five month non-parole period. I am required to fix a non-parole period as an indicative sentence. In relation to sequence 16, taking into account two matters on a Form 1, the indicative sentence is six years imprisonment, with a four year non-parole period. Of course if I added all those up, that would total nearly 20 years imprisonment. So I have telescoped them.
In relation to the s 166 certificate matters, you are convicted of each matter. Your sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 to two years imprisonment, commencing on 17 July 2019 and expiring on 16 July 2021. I decline to fix a non-parole period in relation to that matter. I fix indicative sentences as follows. In relation to sequence 1, that is the beach of the ADVO, you are sentenced to nine months imprisonment. In relation to the five drive whilst disqualified matters, each of those I affix indicative sentences of 12 months imprisonment, but each have a maximum penalty of two years imprisonment for those offences.
I've noticed that I've made an error immediately. I'm wondering whether it's an error that works adversely against your client or not, Mr Roff. And it's this. I've fixed the aggregate sentence for the principal offences to start on 5 August 2020, but I've fixed the aggregate sentence to start for the s 166 matters on 16 July 2019.
CROWN PROSECUTOR: I think it is adverse to his client, your Honour.
HIS HONOUR: It works adversely to his client, does it?
CROWN PROSECUTOR: That's right, I think the--
HIS HONOUR: Right.
CROWN PROSECUTOR: Based on what your Honour has said, I had understood that you would be starting the aggregate sentence for the larger sentence some weeks earlier, to give--
HIS HONOUR: I can say straight out, I had intended that all the sentences on top of the sentence imposed in the Local Court would start on 5 August. However, having said that and having announced it, bearing in mind it's a matter of three weeks, I am prepared to adjust the orders I have made to commence the major aggregate sentence on 17 July 2020, expiring on 16 July 2029 and fix a non-parole period of five years, four months to expire on 16 November 2025. So I give your client the benefit of three weeks for my mistake, Mr Roff.
ROFF: May it please the Court.
HIS HONOUR: Yes, I had initially calculated those sentences - when I was mulling over this and working out when to commence the sentences I'd chosen 17 July based upon something that you'd put in your written submissions and my misunderstanding of the date that your client came into custody.
ROFF: Yes.
HIS HONOUR: But I've noticed that that has infiltrated the order I've made in relation to the aggregate sentence for the s 166 certificates and I haven't corrected it. But I'm prepared to - I mean, your client may say, he's not helped me much, three weeks is not going to help me a great deal, but he is going to be eligible for parole three weeks earlier than I earlier identified, arising out of that error.
ROFF: May it please the Court.
HIS HONOUR: Mr Bottom, your non-parole period, on my calculation will expire on 16 November 2025, not 4 December 2025. Do you understand that? I point out immediately, you have got your rights of appeal, the Crown has got its rights of appeal. I am completely answerable to judges superior to me. I understand all that, but I am just stating what orders I have made at this particular point of time. So do you understand the total sentence I have imposed?
OFFENDER: Yes, your Honour.
HIS HONOUR: It is an effective sentence of ten years with a non-parole period of six years, four months.
There is something wrong there. Just bear with me. The total sentence he is subject to, counting what the Magistrate imposed is ten years, seven months. I want to give effect to a non-parole period of 60% of ten years, seven months. 60% of ten years is six years, is that right?
CROWN PROSECUTOR: Yes.
HIS HONOUR: 60% of seven months is approximately four months. That means that the non-parole period should expire six years and four months after 5 January 2019 which should make it 4 June 2025.
That's right, isn't it?
ROFF: Now that your Honour has said it out loud in that fashion, that seems--
HIS HONOUR: Yes, well that's mathematically right.
ROFF: Yes.
HIS HONOUR: That's mathematically right, Mr Crown, is it not?
CROWN PROSECUTOR: Yes, your Honour.
HIS HONOUR: I've made another error, Mr Bottom, which works to something in your favour. Just bear with me a moment?
ROFF: Will your Honour allow me to approach the dock for a moment?
HIS HONOUR: Yes, sure. The non-parole for the second aggregate sentence in time, that is the nine years imprisonment, it should be four years, 11 months, rounding it up a little bit and thus if that sentence commences on 17 July to conform with the other order I made, it would expire on 16 June 2025. Sorry to hold you up, gentlemen, Corrective Services, gentlemen, I'm sorry. The mistake I've made is calculating the non-parole period without regard to the seven months non-parole period imposed by the magistrate or--
ROFF: The Local Court matters, yes.
HIS HONOUR: That's the mistake I've made, mathematical mistake I've made. Is that right, Mr Crown, to give effect to what I've said to be the effective non-parole period of 60% upon the total penalty, including what the magistrate had imposed, which I've got to take into account.
CROWN PROSECUTOR: Yes, your Honour, I've quickly done the maths and to me it works.
HIS HONOUR: That sounds right, doesn't it, yes.
I do apologise, Mr Bottom and I am sorry to hold everybody up, I know everybody wants to go about their business and get home or whatever. But in relation to the aggregate sentence for the principal offences, I sentence you to an aggregate sentence of nine years imprisonment, to commence on 17 July 2020 and to expire on 16 July 2029. I fix a non-parole period of four years, 11 months imprisonment to expire on 16 June 2025. Thus your non-parole period has gone from 4 December 2025 to 16 June 2025.
Do you understand that? So it has been reduced to give effect to what I intended, all right? I apologise for that confusion, but it has to worked to your advantage to a modest extent. Thank you. Thank you, Mr Bottom, you are free to go - you are not free to go, unfortunately, you have to go with the gentlemen, but I thank you very much for your patience. Thank you.
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Decision last updated: 27 February 2020