R v Burns; R v Corkery

R v Burns; R v Corkery - [2020] NSWDC 530 - NSWDC 2019 case summary — Zoe

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Judgment

The offender Allan Burns appears for sentence in respect of 27 offences committed between 28 October 2017 and 13 November 2017.
The offender Zachary Corkery appears for sentence in respect of 30 offences committed between 19 October 2017 and 13 November 2017.
In respect of a significant number of the occasions of offending, the offenders were co-offenders, although not necessarily charged with the same offences. In general, the offending can be reasonably described as a crime spree commencing in and around Griffith and continuing until concluding with their arrest at Wollongong. There is a certain degree of escalating seriousness of offending, particularly as they sought to avoid apprehension by pursuing police in motor vehicles assisted by PolAir.
Some of the offences in respect of the individual offenders are to be dealt with by being taken into account on a Form 1 pursuant to s32 of the Crimes (Sentencing Procedure) Act 1999.
Allan Burns was committed for sentence in respect of all charges against him on 31 October 2018 and a discount of 25% for the utility alone of the pleas is accordingly appropriate and has been provided.
Zachary Corkery was committed for sentence in respect of all but the Group 5 charges against him on 31 October 2018 and a discount of 25% for the utility alone of those pleas is accordingly appropriate and has been provided. In respect of Corkery and the Group 5 offences, the pleas of guilty were entered on the first day of trial following a prior listed trial date when the matter was not reached. A discount of 10% for the utility alone of those pleas is appropriate and has been provided.
Each of the offenders was arrested on 13 November 2017 and each has been in custody since that date.
In respect of all of the charges against Zachary Corkery there is a statutory aggravating factor to be taken into account (s21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999). That is, that at the time of all offences he was on conditional liberty. On 12 August 2016 he was sentenced at the Griffith District Court to an aggregate sentence of imprisonment of 2 years commencing on 12 March 2016 and concluding 11 March 2018, with a non-parole period of 18 months concluding on 11 September 2017. He was released on parole on 11 September 2017. The aggregate sentence imposed was in respect of 5 offences as follows: 1. Receive property - theft = serious indictable offence < = $5,000 - on 20 October 2015. 2. 3 x Dishonestly obtain property by deception - on 20 October 2015. 3. Aggravated break and enter with intent in company - on 21 October 2015.
Parole was revoked on 12 January 2018 because he had failed to abide by the residential and curfew conditions of his parole and had been charged with these then outstanding offences. The balance of revoked parole was 4 months, 10 days commencing 13 November 2017 and expiring 22 March 2018.
In respect of each offender I intend to provide an aggregate sentence. I am required to provide an individual assessment of the objective seriousness of each and every offence including, where the legislation provides, a Standard Non-parole Period (SNPP), an assessment against a hypothetical "mid-range" of objective seriousness. An indicative sentence is also required to be stated in respect of each individual offence as well as an indicative non-parole period in respect of offences where a SNPP is provided.
The facts have been agreed, and as a matter of convenience and to assist those who may wish to subsequently assess the individual indicative and aggregate sentences, I will specify my conclusion as to the objective seriousness of the individual offences as I refer to the relevant agreed facts. However, I note that each offence was committed by the relevant accused in the course of what can be reasonably described as an outrageous and continuing course of criminal offending.
As a matter of convenience, when referring to the facts in respect of the individual charge against an accused, I will specify the maximum sentence provided by the legislation and where relevant, the SNPP and my conclusion as to objective seriousness.

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Corkery - Sequence 1 H68370555: s97(1) Robbery in Company [Max 20 yrs] 1. About 9:50pm Vaman Patel, driving the Holden Astra, arrived at the delivery address. He pulled into the units and left the keys in the ignition of the vehicle and was walking towards Unit 3 to make the delivery when he was approached on his left side by Zachary Corkery and an unknown co-offender. 2. Corkery grabbed the delivery from Patel's hands and put his right hand over his mouth and punched Patel to the left cheek. The co-offender removed property from Patel's pockets, including a mobile phone, Indian driver's license, $900 in cash, Commonwealth bank card and his NSW photo ID card.

[Objective Seriousness - While it might be inferred that the robbery was pre-planned, at least by the time the order was placed, there is no information in the facts to preclude the possibility that it was a genuine order by someone at Unit 3. Accordingly that inference cannot be drawn, leaving this as an opportunistic robbery of a vulnerable person going about his ordinary work who could be expected to have at least some monies on him, although probably not $900. The amount stolen was not substantial but not trivial. Stolen from the victim were also a number of personal items. The Indian driver's licence and the NSW Photo ID card could not have been of any utility to the offender. The Commonwealth bank card could have been used to commit further offences but there is no evidence of it being used or any relevant charge indicating use. There is no reference in the facts to any of the property being recovered and it is reasonable to assume that at the least the victim was significantly inconvenienced by having to replace the stolen items. The victim was punched in the face but the facts contain no information as to injury or even pain, let alone any significant sequelae. While no weapon was used, which would have constituted an offence contrary to s97(2), the offence was committed in company. As referred to by Latham J in Ibrahimi (2005) NSW CCA 153 at (22-23): "It is a well-established sentencing principle, emphasised in the decision of Ranse NSW CCA 8 August 1994, that offences involving direct attacks on the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace."]

[6]

Corkery - Sequence 1 H67063354 - s112(1)(a) Break, Enter and Steal [Max 14 yrs] + Form 1 H67063354/2 1. The first victim is Chad Dilks, who is a farm manager residing in premises at Bowditch Road, Tharbogang. 2. The victim is the owner of a Honda TRX480 quad bike which he stored in a shed attached to the office on the property. The office holds all of the necessary paperwork, computers and keys for all of the farm machinery. 3. At about 8:00pm on 26 October 2017, the victim locked the office and shed before finishing work for the day. 4. At about 3:00am on 27 October 2017, the victim was in bed when he heard his quad bike driving on the property. He immediately got into his vehicle and saw Corkery riding the quad bike away from the property. The victim pursued Corkery and caught up to the quad bike on Walla Avenue, Griffith. The victim bumped it slightly, which caused Corkery to fall from the bike, and he ran away into nearby bushes. 5. The victim called police and they attended and seized the bike. The victim returned to the property with police and found that the office door had been forced open. The following items had been taken:

Samsung computer screen valued at $500;
Quad bike keys;
Two Ryobi drills valued at $420;
Ryobi Whipper Snipper valued at $600;
Various Chromtec tools valued at $700.

[Objective Seriousness - Force was used to enter the office and shed. The attempt to steal the quad bike only failed because of the actions of the owner who pursued it onto a public road and dislodged the offender. There is no evidence of damage to the quad bike or any damage occasioned by the forced entry. There is no evidence of any of the stolen items listed above being recovered or returned, and they are valued at $2,220. In the circumstances this offence falls at the lower end of objective seriousness for such an offence. I note that the items stolen and referred to at 13 a, c, and d above were not recovered and are unlikely to have been carried away by the offender when riding the quad bike or running from it after being dislodged. It is reasonable to infer that they were otherwise transported from the property as part of a joint criminal enterprise with a person unknown. This does not alter the finding as to objective seriousness.]

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Burns - Sequence 1 H69123781 - s112(2) Aggravated Break, Enter & Steal - in company [Max 20 yrs - SNPP 5 yrs] 1. At about 10:45am on 28 October 2017, Stella Gioia left premises in Blumer Avenue, Griffith, and went into the township of Griffith. 2. At about 12:20pm, the offenders entered that residence by unlocking and opening the rear door to the garage. Once inside the garage, the offenders entered the main dwelling through an unlocked but closed internal access door. Once inside, the offenders used suitcases located inside the residence to pack and steal the following items:

$30,000 worth of jewellery;
Passport belonging to Bruno Gioia;
Passport belonging to Vita Gioia;
Vita Gioia's purse with $900 in cash;
Two suitcases;
Various items of clothing;
Two laptop computers;
Two Apple IPads; 1. At about 12:30pm, witnesses driving on Blumer Avenue observed the offenders walking out of the premises carrying suitcases over their backs. The witnesses also observed the blonde haired offenders to be wearing gloves. The witnesses called the Griffith Police and reported their observations. 2. On 31 October 2017, Judy Emery left her premises in Verri St, Griffith, with the garage roller door slightly up. She returned at 2:30pm and in the garage located a suitcase full of belongings which did not belong to her. 3. Emery took the belongings to Griffith Police Station. On 15 November 2017, Stella Gioia attended Griffith Police Station and identified the property as stolen on 28 October 2017. The following items were recovered:
One laptop;
A bag containing a large amount of jewellery;
Purse of Vita Gioia;
Passport of Bruno Gioia;
One blue suitcase
One Apple IPad;

[Objective Seriousness - "Stealing" is an offence on the threshold of "serious indictable offences" relevant to s112(1) and "in company" is amongst, if not the lowest, "aggravating circumstance" relevant to s 112(2). There was no actual force, violence or damage used or occasioned during the offence. As there was no person present at the time of the offence "in company" is a factor devoid of the intimidation of the victim(s) as is ordinarily the case. Property to a considerable value was stolen, but while the facts refer to $30,000 of jewellery as stolen they only refer to a "large amount of jewellery" recovered without any indication as to value. A single item not recovered may have represented most of the value of what jewellery was stolen. At least one IPad and one laptop were not recovered or returned, as well as a number of other items including $900 and the passport belonging to Vita Gioia. In the absence of any information as to the value of the jewellery recovered, this matter falls well below the midrange of objective seriousness for an offence of this type.]

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Burns - Sequence 1 H66318834 - s97(1) Robbery in company [Max 20 yrs] 1. About 6:00pm on 8 November, 2017 the victim, Isaac Foscarini, reverse parked his utility in an angled parking bay outside Rossi's Supermarket (Foodworks) situated on Banna Avenue, Griffith. Mr. Foscarini had his 2014 KTM 450 SFX motorbike, valued at $10,000, in the tray. 2. Shortly after parking, the victim observed a white coloured Holden Rodeo utility park across the front of his vehicle. The driver of the vehicle was wearing something covering his face. Both of the offenders exited the vehicle whilst the driver, who remained in the vehicle, drove away a short time later. 3. The offenders approached the victim and yelled at the victim "Give me your fucken keys." The victim refused to give his keys to the vehicle. At this time, a short scuffle broke out between Corkery and the victim. 4. The victim broke free from Corkery and ran across Banna Avenue towards the Belvedere Restaurant. The complainant heard Corkery yell "Get him, grab him!" 5. Burns chased the victim across Banna Avenue. As the victim reached the entrance doors to the Belvedere Restaurant, he was caught by Burns. The victim turned to see Corkery undoing the ratchet straps securing the KTM 450 motorbike to the rear tray. Burns with a closed fist punched the victim hard in the face, causing the victim's nose to bleed. Medical evidence later confirmed this punch had broken the victim's nose. 6. The victim attempted to fight Burns off, however Burns took hold of the victim's clothing and pinned him against the front door of Belvedere Restaurant. Community members exited the restaurant to assist the victim. 7. At this time, Burns ran back across Banna Avenue and assisted Corkery in removing the KTM motorbike from the rear of the victim's vehicle. 8. After removing the KTM motorbike from the victim's vehicle, Corkery and Burns proceeded to wheel it into Benerembah Lane, where they started it and rode away from the location.

[Objective Seriousness - The offence was clearly pre-planned, Corkery and Burns were deposited at the scene from a vehicle driven by an unknown person wearing a face covering who immediately drove away. The pre-planning was likely to have been of short duration, the offenders were likely to have been driving around in order to identify an offence to commit. The victim had only parked shortly before commencement of the incident. Beyond reasonable doubt the intention was to steal both the victim's utility and the motorbike in the tray. That intention was foiled by the victim refusing to provide his keys to the vehicle and fleeing. Burns at the direction of Corkery pursued the victim and then violently assaulted him breaking his nose. Corkery used the opportunity to release the motorbike from the tray, and both then participated in its theft. The motorbike was of a substantial value, $10,000, and has not been recovered or returned. No weapon was used and there is no evidence of any significant sequelae to the broken nose. Although there is no relevant SNPP requiring an assessment against the "hypothetical mid-range" of objective seriousness, in the circumstances of the parties' submissions (Crown & Burns) referring to mid-range, I find the matter falls within the mid-range of objective seriousness.]

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Burns - Sequence 3 H128735002 - s112(2) Aggravated Break, Enter and Steal, in Company [Max 20 yrs SNPP 5 yrs] (Form 1 - to Seq 5) 1. At 8.10pm on 11 November 2017 Burns and the Corkery attended the BP Service Station located on the Newell Highway at Beckom. At this time the service station was closed and unattended. 2. Both offenders were occupying the stolen Holden Commodore and they stopped outside the front door to the service station. Burns and Corkery exited the vehicle and kicked the front glass door to force entry without success. Burns obtained a metal baseball bat from the vehicle and began to hit the lower glass panel of the front door to the premises, causing the glass to break. 3. Both offenders climbed through the broken lower panel and entered the premises. The offenders rummaged through the premises for several minutes and used the baseball bat to force open locked drawers. The offenders managed to find keys which opened some drawers and removed an unknown amount of cigarettes. 4. The till was removed as well as some chips, lollies and a bottle of Fanta. Both offenders climbed back through the broken door and left the premises.

[Objective Seriousness - The offenders at night as part of a joint criminal enterprise using a metal baseball bat smashed a glass door panel to obtain entry at an unattended service station. Although they used the baseball bat to force open locked drawers there is no evidence of any damage to the drawers or of the cost of replacing the glass door panel. Stolen was an unspecified quantity of cigarettes and a minor amount of confectionery. In the circumstances the matter falls at the upper end of the low range of objective seriousness.]
[Comment - I am aware of past adverse comment made in decisions of the Court of Criminal Appeal NSW as to the inappropriateness of offences in respect of which a SNPP is provided by the legislation being included on a Form 1 at all, let alone where the Form 1 attaches the SNPP offence to an offence that does not have a legislated SNPP. However, I have accepted that in the circumstances of this matter and the large number of offences the subject of sentence, it is appropriate to deal with the matter as accepted by the parties even though I am of the view that it would have been more appropriate to reverse the primary and the Form 1 offences.]

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Corkery - Sequence 2 H68128551 - s53(3) Driver never licensed (Road Transport Act) [6 mths &/or 20 pu] (Form 1 to Seq 1) 1. About 1:38 pm on 12 November 2017, police observed Corkery driving a white coloured VE Commodore sedan. 2. Corkery was travelling south on Wyangan Avenue, Griffith. Police were travelling in a fully marked highway patrol vehicle in the opposite direction. As police approached, Corkery conducted a left turn onto Wood Road. Police observed Corkery seated in the driver's seat of the vehicle and Burns seated in the front passenger seat of the vehicle. 3. Corkery accelerated and moved the vehicle onto the incorrect side of the roadway for a brief period of time before turning right onto Evatt Street. Police activated their warning devices in an attempt to stop the vehicle. The vehicle continued to accelerate away, and a pursuit was initiated. 4. The white Commodore continued driving in a southerly direction along Evatt Street at a speed in excess of 80kph. Evatt Street is a narrow street in a residential area with a speed limit of 50kph with houses on both sides of the road. Corkery turned right onto Messner Street and then left onto Wyangan Avenue, where he overtook a vehicle travelling in the same direction at speed. Corkery continued along Wyangan Ave and through the roundabout at Ortella Street, where he overtook a vehicle travelling south. 5. Upon reaching the intersection of Animoo Avenue, Corkery turned right onto Animoo Avenue, where he reached a speed in excess of 80kph. As Corkery approached Kooringal Street, he overtook a vehicle travelling in the same direction. Corkery continued and turned right onto Anzac St and left onto Binya Street, and then right onto Burrell Place. 6. The pursuit was terminated by Police. The entire pursuit was captured on the In Car Video.

[Objective Seriousness -- Corkery (Seq 1) - s51B(1) Police pursuit: Shortly after midday on a Sunday the offenders, with Corkery as driver and Burns as passenger, ignored police warning devices and engaged in a police pursuit through a number of residential streets in Griffith. Their vehicle reached speeds at least of 80kph including in streets limited to 50kph. One street, Evatt Street, is described as narrow, and on three occasions the speeding vehicle overtook other vehicles travelling in the same direction. The pursuit was terminated by police. While not stated in the facts the pursuit represented a significant potential danger to other road users, pedestrians and children, particularly at midday on a Sunday. There is no evidence of any realised danger referred to in the facts. In the circumstances this offence falls in the upper end of the low range of objective seriousness for such an offence. Burns - (Seq 1) - s154A(1)(b) Knowingly carried in stolen conveyance: Burns was being transported in the stolen vehicle as driven dangerously by Corkery for the purposes of both of the offenders, and Burns was as interested as Corkery in avoiding apprehension. He was not some mere joy-riding participant on the way to get a hamburger, taken by surprise at Corkery's failure to stop. In the circumstances, this offence falls in the upper end of the low range of objective seriousness for such an offence.] Corkery - (Seq 2) - s53(3) Driver never licensed: The danger of never licensed persons driving motor vehicles is self-evident and there is no practical utility in assessing the objective seriousness.]

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Corkery - Sequence 1 H65417270 - s97(1) Robbery in company [Max 20 yrs] 1. About 2:40pm on 12 November 2017 Julia Nardi parked her 2005 Ford Falcon in angled parking bays on Pine Avenue, Leeton. 2. The vehicle was parked between Lanham's Jewellers and Wade Pharmacy, front to kerb, near the pedestrian thoroughfare of Jarrah Street. 3. Ms Nardi exited her vehicle and met with an associate of hers at a nearby business. Nardi returned to her vehicle and slowly reversed onto Pine Avenue. The victim turned to look through her rear passenger window and then observed a white Holden Commodore VE sedan driving west on Pine Avenue. Nardi stopped reversing to permit the Holden Commodore to travel past her vehicle. 4. The Holden Commodore driven by Burns parked directly behind Ms Nardi's vehicle and Corkery exited it. 5. Corkery approached Ms Nardi who was still seated in her vehicle and said "Get the fuck out of the car!" Ms Nardi told Corkery to "Fuck off". 6. Corkery reached inside the vehicle with his left arm and took hold of the keys and removed them from the ignition. 7. Ms Nardi took hold of the remote control component on the key ring with both parties pulling at the key ring. Corkery said; "Get the fuck out of the car now!" 8. Corkery began to open the driver's door as Nardi was pulling it closed from within. Corkery said; "Leave your purse and get out." 9. Ms Nardi, fearing for her safety, got out of the vehicle. Corkery entered the vehicle, started the engine and reversed the vehicle onto Pine Avenue and drove away. 10. The property taken in addition to the vehicle included Ms Nardi's purse and a laptop computer. 11. On 17 November 2017, Ms Nardi identified Burns as the driver of the white Holden Commodore from a photographic identification board.

[Objective Seriousness - I infer beyond reasonable doubt, particularly in the circumstances of the offenders' repeated and continuing offending over a significant period, that they were driving around with the intention of finding an offence to commit. This offence may have been the spontaneous reaction to opportunity but it was an opportunity they were looking for, and they coordinated their actions to complete the offence as part of a joint criminal enterprise. The victim was intimidated and placed in fear by the offender's conduct in stopping her car from being reversed and by repeated demands that she get out of the car, the car keys being forcefully removed and being told to leave her purse. There is no evidence that the car or her purse were recovered or returned or of their value. The victim was entitled to believe that she could go about her ordinary life without being robbed of her property in the mid-afternoon on a main street in Leeton. As referred to by Latham J in Ibrahimi (2005) NSW CCA 153 at (22-23): "It is a well-established sentencing principle, emphasised in the decision of Ranse NSW CCA 8 August 1994, that offences involving direct attacks on the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace."]

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Burns - Sequence 2 H69114753 - s15(1)(a) Road Transport (Driver Licensing) Regulation - Learner not accompanied [Max 20pu - Disqualification 3 mths automatic - maximum 12 mths] (s 166 certificate) 1. Around 4.57pm on 12 November 2017, police were patrolling along a portion of dirt road at Ariah Park Road, Tallimba, in relation to the stolen white Nissan Patrol utility. Police were travelling in a generally northerly direction when the vehicle driven by the offenders was travelling in the opposite direction. Police moved to the shoulder of the dirt roadway as the vehicle occupied by the offenders approached. The vehicle narrowly missed the driver's side mirror of the police vehicle. Police performed a U-turn but did not engage in a pursuit due to the dirt surface and the fact that large amounts of dust coming from the vehicle made it dangerous to catch up to it. 2. As the vehicle passed police it was observed that Burns was the driver. Police followed the dust trail along Ariah Park Road at a distance of about 1 km until the vehicle turned left turn onto Bartells Lane and then travelled east. Police continued to follow at a distance due to the dust. As police approached the intersections of the Newell Highway and Bartells Lane, information was received that the vehicle had turned left and was travelling south along the Newell Highway. Police were also advised that a male wearing a red T-shirt was standing in the rear tray of the vehicle. 3. Shortly after, police observed the vehicle turn left on Kildary Lane and travel east again. While police were following the vehicle, the male wearing the red T-Shirt, being Corkery, was throwing objects such as a large tool box, numerous tools, a wheel brace and other items from the rear of the utility onto the dirt surface. 4. As the stolen vehicle approached the intersections of Kildary Lane and Mary Gilmore Way at Barmedman, the vehicle turned left and travelled east. A short distance later, the vehicle stopped and police observed the reversing lights of the vehicle as it then reversed towards the police vehicle at speed. To avoid a collision, police also reversed. The stolen vehicle slowed before driving into a position where it was parked across the roadway with the driver's window facing towards the police. The driver's side window was lowered, which resulted in police conducting a U-turn and travelling in the opposite direction due to fears for their safety. 5. Once police were approximately 2km away, the vehicle travelled in an easterly direction towards the township of Barmedman. Police also travelled towards Barmedman at a distance and did not have sight of the vehicle. Police stopped at the intersections of Mary Gilmore Way and Goldfields Way, Barmedman, and while they were speaking with another police officer, the offender's vehicle was observed to come from a side street and travel at speed directly towards both stationary police vehicles stopped at the intersection.

[Objective Seriousness - The vehicle was driven in reverse at the police vehicle which was forced to take action to avoid a deliberate collision. This was part of a process of attempting to intimidate the police. While the driving was dangerous it did not eventuate in any actual collision or damage. In the circumstances this matter falls at the low end of objective seriousness for such an offence.]

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Corkery - Sequence 1 H66976254 - s154C(2) Aggravated attempt to assault with intent to take motor vehicle - in company [Max 14 yrs] (+ Form 1 Group 12) 1. About 6:25pm on 12 November 2017, the victim, Peter Moss, attended the BP service station on Zouch Street, Young. He parked his black Ford XR8 utility directly outside the service station attendant's window; he left the keys in the ignition and the driver's window down. The victim entered the BP Service Station and commenced using an ATM located at the rear of the store. 2. A short time later the offenders attended the service station. Burns was driving the Nissan Patrol Utility and Corkery was in the passenger seat. On entering the service station, Burns parked the vehicle alongside the victim's Ford Utility. Corkery exited the vehicle and entered the driver's side of the victim's Ford Utility. 3. Burns drove the white Nissan Utility forwards, stopped near the exit and waited for Corkery. 4. The service station attendant observed Corkery enter the victim's vehicle and alerted the victim to what was happening. The attendant utilised the public address system and called "Get out of the vehicle." As the victim ran from the store towards his car, he observed a male person dressed in dark clothing with a hoodie pulled up over his head sitting in the driver's seat of his car. The victim dived into the driver side window and a struggle between the victim and Corkery resulted in the victim being struck to the head numerous times. 5. Corkery managed to start the vehicle and commenced to drive forwards, the victim pulled on the steering wheel, causing it to turn to its right. At this stage, the victim's legs were still protruding from the driver's side window. 6. The victim managed to remove the keys from the ignition, causing the vehicle to stall and come to rest near the service station exit driveway. Corkery was attempting to exit the vehicle and climb through the passenger's side door. Burns, who was still waiting in the Nissan Patrol Utility commenced calling out to Corkery "Let him go, fucking let him go!" The victim heard a car revving and stood up and turned to see the white Nissan Utility driving directly at him. 7. The utility struck the victim, knocking him to the ground, and at the same time collided with the driver's side door of his motor vehicle. The Nissan reversed backwards while Corkery managed to exit the victim's vehicle and commenced to kick and jump on the victim, who was still on the ground. 8. The victim grabbed hold of one of Corkery's legs until he heard the sound of the Nissan Utility revving and driving towards him again. The victim released his grip of Corkery and scrambled clear of the Nissan Ute. Corkery got back into the passenger's side of the Nissan Utility before it drove off in a southerly direction on Zouch Street, Young.

[Objective Seriousness - This was an opportunistic but pre-meditated offence which only failed because of the victim's intervention to protect his vehicle from theft. Corkery had endeavoured to make his identification difficult by wearing a "hoodie". The victim was "struck to the head numerous times" by Corkery as part of a joint criminal enterprise; his safety was put at risk by Corkery attempting to drive off while the victim's body was partially protruding from the window. Burns drove a vehicle into the victim, knocking him to the ground, and damaged the victim's vehicle by colliding with it. Corkery kicked and jumped on the victim while he was still on the ground and Burns again attempted to hit the victim by driving into him. There is no evidence of injury to the victim or of what damage was caused to his car but it must have been a terrifying experience for him. In the circumstances this is a serious incidence of such an offence.]

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Corkery - Sequence 1 H 67922682 - s154A(1)(b) - Carried in stolen conveyance [Max 5 yrs] 1. During the evening of 12 November 2017, Highway Patrol Officers attached to Hume Highway Patrol were patrolling the Hume Highway in relation to the stolen white Nissan Patrol utility. 2. About 10pm police became aware that the vehicle was travelling north on the Hume Highway at Marulan, being then driven by Burns. Highway Patrol vehicles were sent to the area to intercept it. A short time later, police located the vehicle heading north on the 'Mittagong Bypass' section of the Hume Highway. A patrol vehicle activated all warning devices and signalled for the vehicle to stop, which it failed to do. A pursuit was then initiated. 3. The Nissan Patrol utility travelled at speeds between 90kph and 150kph per hour in an 110kph sign posted zone. The vehicle continued north, straddling the centre lane line of lanes one and two, at one point cutting in front of a vehicle travelling in lane one. The vehicle turned onto the Colo Vale Township (Church Street) exit, and travelled off the freeway and entered the small rural township of Colo Vale. The pursuit was terminated by police along Colo Road, Colo Vale, as the road surface was unsealed and rough and not suitable for the pursuing highway vehicle. 4. A police caged 4WD vehicle was granted permission to follow the vehicle, which it did at a distance of around 60 metres. The stolen vehicle travelled along dirt roads and through properties. The vehicle did not stop for closed gates, but drove through them. Police continued to follow the vehicle. The vehicle entered the property known as 'The Stockyard' situated near 630 Colo Road, Colo Vale.

[Objective Seriousness - Burns (Seq 1) - s51B(1) Police pursuit: Burns drove the vehicle at speeds of up to 150kph on a 110kph limited highway, at times straddling lanes, and overtaking one vehicle. The pursuit was terminated because of the poor quality of the roads and because they had entered a small rural township. The potential danger was high although no adverse incident occurred. In the circumstances this matter falls at the upper end of the low range of objective seriousness for such an offence. Corkery (Seq 1) - s154A(1)(b) - Carried in stolen conveyance: Corkery was being transported in the stolen vehicle being driven dangerously by Burns for the purposes of both of the offenders. Corkery was as interested as Burns in avoiding apprehension. He was not some mere joy-riding participant taken by surprise at Burn's failure to stop. In the circumstances this offence falls in the upper end of the low range of objective seriousness for such an offence.]

[44]

Corkery - Sequence 2 H 67922682 - s195(1)(a) Destroy/damage property [Max 5 yrs] 1. The vehicle wove its way around the property, attempting to find an exit, passing police and travelling out the same gate it had just come though. Police followed the vehicle out of the property at a distance. As police left the property, the vehicle turned around and stopped directly ahead of them. Due to the terrain, police were unable to move their vehicle. The stolen vehicle then drove directly towards the police vehicle at speed, and struck it head on. At the time the police vehicle was stationary. The impact of the collision caused the air bags to deploy and the police vehicle was pushed backwards approximately 20 metres up an embankment, coming to rest near a tree. The police vehicle was rendered inoperable. 2. The offenders drove away, enabling the police to exit their vehicle. At this time, a police helicopter was patrolling the area and observed the offenders running from the stolen vehicle.

[Objective Seriousness - Burns (Seq 3) - s33B(1)(a) - Use offensive weapon to resist arrest: The offensive weapon was a motor vehicle driven at speed directly into the front of a then stationary police vehicle with sufficient force to cause the airbags to deploy and to push the vehicle 20 metres up an embankment and render the police vehicle inoperable. The police officers were put at serious risk of injury but there is no evidence of any injury to them. There is no reference in the facts to the extent of damage or cost of repair to the police vehicle. The airbags would of necessity require replacement and the vehicle would require such rectification before further use. Corkery (Seq 2) - s195(1)(a) Destroy/damage property: The foundation for this charge is the offence committed by Burns as part of a joint criminal enterprise to resist arrest. Corkery was not the driver but by his plea accepts that what Burns did was with his agreement and/or encouragement. In each case the offence by each offender was objectively a very serious incidence of the respective offence brought against that individual offender.]

[55]

Corkery - Sequence 5 H65500425 - s154C(2) Aggravated take vehicle, person on board in company [Max 14 yrs] 1. The offenders exited the Mitsubishi Outlander and ran up to the Subaru Impreza. Corkery was armed with a small metal pole and opened the driver's side door while yelling, "Get out of the car, get out the car". Corkery reached into the driver's side and tried to undo Ms Crossland's seatbelt. Ms Crossland got out of the driver's seat. 2. At this time Burns opened the front passenger door and began removing Mr Crossland. Mr Crossland sustained a laceration to his forearm as a result. 3. Once all passengers inside the vehicle had been removed, both accused entered into the Subaru Impreza with Burns as the driver and Corkery the front passenger. The vehicle proceeded along Colden Street and onto Menangle Street, Picton, where it continued east at high speeds continuing onto Picton Road. 4. A marked Highway Patrol vehicle sighted the Subaru Impreza travelling at high speeds and activated all emergency warning lights and sirens. The vehicle continued accelerating, and a pursuit commenced. While being pursued, the vehicle travelled a distance of 7.4km with a top speed of 166kmph with the majority of the roadway being covered controlled by 80kph and 100kph speed zones. 5. The vehicle travelled on the wrong side of the road and overtook several vehicles along Picton Road. On approach to the Hume Highway overpass, the vehicle failed to stop and proceeded through a red light at speed. 6. The movements of the offenders during pursuit were monitored and recorded by PolAir. PolAir maintained surveillance of the vehicle as it continued east along Picton Road, Wilton, and into the Wollongong area.

[Objective Seriousness - Burns (Seq 5) - s154C(2) Aggravated take vehicle, person on board in company & Corkery (Seq 5) - s154C(2) Aggravated take vehicle, person on board in company: As part of a joint criminal enterprise to evade apprehension by the police, in an opportunistic but beyond reasonable doubt pre-meditated action, "car jacked" a vehicle being driven by the daughter of the couple also present in the vehicle. Corkery, while armed with an offensive weapon, opened the driver's door and demanded she get out and physically continued the intimidation of the driver by trying to undo her seat belt. Simultaneously Burns opened the passenger door and physically began removing the driver's father who sustained a laceration to his forearm as a result. The victims must have experienced a considerable degree of fear in the circumstances of the violence displayed and applied. This is a very serious incidence of an offence of this nature.]

[59]

Corkery - Sequence 6 H65500425 - s154A(1)(b) knowingly carried in conveyance [Max 5 yrs] (Form 1) 1. About 10:40am on 13 November 2017, a message was broadcast via police radio that PolAir was following the Subaru Impreza east along Picton Road from Maldon. At the time the message was broadcast, the Subaru Impreza could be seen to be passing Cataract Dam. Police travelling west along Picton Road saw the Impreza travelling east, however due to the concrete dividing barrier in the middle of the road, were unable to turn around. PolAir continued to follow the Impreza as it made its way east toward Wollongong while alerting local police as to its location and progress.

[Objective Seriousness - Burns (Seq 6) - s51B(1) Police pursuit & Corkery (Seq 6) - s154A(1)(b) knowingly carried in conveyance: While these are charged as separate offences to those of a like nature that had preceded them and must be dealt with separately to avoid double counting, the reality is that this pursuit of the offenders can be seen as part of a pursuit commenced at 10pm on 12 November 2017 on the Hume Highway at Marulan (Group14 -paragraph 102). Previous pursuits were terminated by the police because of danger to the public. The offenders stole a series of vehicles to avoid apprehension and further pursuits were initiated by police when the offenders were next located. However, in this instance there is no evidence contained in the facts as to excessive speed, driving in a manner dangerous, damage to property or injury to any person. There is also no reference in the facts to any action by the authorities that indicates that they were then specifically aware of any instant pursuit except possible observation of the police vehicle travelling in the opposite direction and later following, or observation of PolAir following above them. From the facts, the pursuit was terminated when the offenders stole a further vehicle (white Holden Commodore utility) in the carpark of a construction site west of Rosemount Street, Wollongong. Once again, the conduct designed to avoid apprehension was participated in by each offender as part of a joint criminal enterprise in which only one could drive the vehicle and the other must of necessity be a passenger. In the circumstances each of these offences falls in the low range of objective seriousness.]

[61]

Corkery - Sequence 7 H65500425 - s154A(1)(b) Knowingly carried in conveyance [Max 5 yrs] (Form 1) 1. The Impreza made its way to Urunga Parade, Wollongong, where it entered the car park of a construction site west of Rosemont Street. While in the car park, PolAir observed two occupants get out of the Impreza and into a White Holden Commodore utility. PolAir alerted police that the two offenders were in the process of stealing the Commodore just as police entered Urunga Parade. 2. The Commodore drove east along Urunga and turned into Rosemont Street. At this time police observed Burns driving and Corkery in the passenger seat. The Commodore turned onto Crown Street, Wollongong, and began to head east, and at this time it was evident that there was damage to the rear near side tyre. The Commodore turned into Staff Street and continued along Staff Street before re-joining Crown Street and travelling east before making a right hand turn into Gladstone Avenue, Wollongong. Police at this time were given permission to use road spikes to disable the Commodore and follow at a distance. PolAir was still maintaining surveillance of the progress of the offenders. 3. The Commodore continued south along Gladstone Avenue, swerving due to the damaged rear tyre at a speed well in excess of the posted 50kph speed limit. Police continued to follow at a distance and could see it swerving to the wrong side of the road, barely able to maintain control due to the damaged rear tyre. The Commodore continued south along Gladstone Avenue and at the intersection of Bridge Street, Coniston, crossed again to the wrong side of the road, narrowly avoiding oncoming traffic while making a right hand turn into Bridge Street. 4. Police following could see the Commodore 300 metres ahead, swerving all the way along the road over both lanes of traffic. The Commodore turned left onto Heaslip Street. At this point the following police lost sight of the Commodore due to the speed at which it was travelling. 5. PolAir continued to observe the Commodore which travelled through the suburb of Mangerton, eventually travelling along Woodlawn Avenue and turning left onto Crown Street, West Wollongong. The Commodore continued south along Crown Street as it turned onto the Princes Highway. The Commodore continued south along the Princes Highway, travelling through a set of red traffic lights and to the intersection of The Avenue.

[Objective Seriousness - Burns (Seq 7) - s154A(1)(a) Take and drive conveyance & Corkery (Seq 7) - s154A(1)(b) Knowingly carried in conveyance: Another joint criminal enterprise incident where only one could drive necessitating the other being a passenger. In the circumstances, these offences are each in the low range of objective seriousness but not at the bottom of that range. They might be referred to as par for the course in respect of these offenders.]

[62]

Burns - Sequence 8 H66808973 - s117(2) drive in a manner dangerous [Max 9 mths &/or 20 pu] (Form 1) 1. The Commodore turned left onto The Avenue and travelled east and made a left turn into Preston Street, Figtree, and continued as it became Sedden Street, Figtree, which is a dead end street. Police had made their way into that street and the Commodore made a U-turn in the cul-de-sac of Sedden Street, colliding with a concrete fence and a blue Holden Astra. The Commodore then travelled south back along Preston Street at speed, almost colliding with a number of police vehicles. Highway Patrol officers deployed road spikes which were successful in deflating the two rear tyres. The Commodore continued along Preston Street, fishtailing due to the deflated tyres, and crossed straight over the intersection of The Avenue. The Commodore launched over the median strip and started travelling south along the northbound exit ramp of Masters Road, Figtree. The Commodore collided with the steel barrier at the side of the off ramp causing the car to come to a stop. 2. Both accused exited the vehicle and jumped into a large concrete storm water canal and began to run north in the canal crossing through a tunnel under The Avenue. 3. Police chased the offenders and called on them to stop running. After a short time, Corkery stopped running and put his hands in the air. Burns then also stopped running and put his hands in the air. Both Burns and Corkery were arrested and conveyed to Wollongong Police Station. Later that day, Corkery received treatment at Wollongong Hospital for various injuries.

[Objective Seriousness - The dangerous driving included when executing a U-turn colliding with a concrete fence and another vehicle, fishtailing, launching over a median strip and almost colliding with police vehicles, only stopping after running over police-deployed disabling road spikes. In the circumstances this is a serious incidence of an offence of this nature even though it was of relatively short duration.]

[63]

Subjective Matters - Zachary CORKERY

The offender did not give evidence on sentence. Available to the court are the following:

NSW Criminal History;
NSW Dept. of Corrective Services Conviction, Sentences and Appeals Report, printed 1/8/19. Updated document printed 15/7/20;
Sentencing Assessment Report under the hand of Rachel Bennett, dated 6 December 2019;
Psychological Report under the hand of Anne Lucas, dated 20 June 2019;
Letter from Megan Corkery, sister of offender, dated 22 October 2019;
Evidence on sentence of Maxine McKay, mother of offender, on 23 October 2019;
Four pages of Justice Health Documents - Entries dated 8 March 2018, 8, 17 & 31 October 2018, 27 February 2020.

Subjective matters are drawn from that material.
The offender was 26 years of age at the time of the offending and is now 28 years of age. He is an indigenous person with two older sisters. His parents separated when he was 2 years of age. The father moved out and the offender and his two sisters remained residing with their mother (Ms McKay T16232/10/19) for the next four years until she gave the children to their father for one year because she was unable to cope with her drug and alcohol problems, and she went to Queensland for that year. She returned to Griffith and took the children back into her care when the offender was about 8 years of age.
Inconsistently, Ms Lucas in the psychological report states that when the offender was 2 years of age his mother left home, and he and his two sisters lived with his father until he was six when their mother re-joined the family. His sister states that they stayed with their father and that it was only after their mother had returned from Queensland that she and the offender then lived with their mother for 2 or 3 years before they went with her to Darwin for 10 months before returning to Griffith for 6 months, and then going to South West Rocks with their mother for a "couple of years" then returning to Griffith, their mother not returning with them.
The father is also described as having problems with drugs and alcohol as well as being violent to Ms McKay and the children. Ms McKay is also referred to as frequently going off for months "to party" before returning.
At 14 years of age, the offender went to live with one of his sisters and by 15 he had "given up" trying to engage in family life and had adopted a lifestyle characterised by living where he could and taking drugs.
Whatever the factually correct history of the family is, I accept that it was dysfunctional, with poor parenting and unstable housing and community connection.
The offender commenced "chroming" (paint sniffing) and experimenting with marihuana and alcohol when he was 8 or 9. He transitioned to ecstasy and amphetamine use between the ages of 13-14 years and commenced using heroin and "ice" by 16 years of age. His juvenile associates were fellow drug users and criminal offenders he assisted with break and enter offences from a young age.
He was expelled from school in Year 8 and completed the School Certificate in Juvenile Detention. He does not have an intellectual or physical disability and is in the average range of intelligence. His mother states that as a child he was diagnosed and treated for ADHD although he was resistant to using the medication.
He is said to have had Hepatitis C but having completed treatment for it. Justice Health records record an application by him on 8 March 2018 to be placed on the Methadone program because he was concerned that because of his intravenous use in custody he might again contract Hepatitis C. He informed the psychologist that he is currently positive for Hepatitis C. The further Justice Health entries referred to above appear to indicate efforts to be referred to the Methadone program and/or drug and alcohol courses. These efforts have been apparently thwarted because he has not yet been sentenced. He has participated in the Methadone program twice in the past but clearly returned to using prohibited drugs when at large in the community. He has previously completed the EQUIPS custodial programs for Aggression and Addiction and reported these as having had no impact on his struggle with drugs and crime, as is evident from his record of offending.
Corrective Service records indicate that he was diagnosed with Schizophrenia in 2009 and prescribed medication but he declined to sign a release of information consent to allow the Sentence Assessment officer to confirm his current compliance. No psychiatric report has been provided and the psychological report refers only to periods of drug induced psychosis and paranoid ideation resolving with abstention. He has never had any psychological or psychiatric intervention. Ms Lucas opined that the offender has had "mental health difficulties since childhood/adolescence, including persistent anxiety and episodic acute arousal bordering on panic, depressed affect and chronic negative self-appraisals".
He has never held formal employment and was in receipt of Newstart Allowance when arrested. In custody he has been employed as a cleaner.
He has an extensive history of offending and a significant number of breaches of prison regulations both before this arrest and subsequently, including drug related matters. His offending commenced in 2002 as an 11 year old juvenile and continued as an adult with generally, as an adult, only short periods at large in the community. On three previous occasions he has been returned to custody shortly after release for breaching parole. I accept that from his criminal history it appears that he is at risk of becoming institutionalised.
The Sentence Assessment Report indicates that: "(He) has entrenched antisocial attitudes. He opined that he is "institutionalised" due to spending majority of his life in a custodial environment and has anxiety when not in custody. He expressed that he "hates authority" and reacts to situations in the community as if he were still in custody. … At the time of his offending, Mr Corkery described being in a "drug induced paranoia". He thought his behaviour was "justified" and did not care about the repercussions of his actions. … Mr Corkery describes himself as a very angry person who can't slow down his reactions. … CSNSW records indicate a pattern of aggressive and intimidating behaviour against correctional staff and other inmates. Mr Corkery has been charged with 17 institutional offences including but not limited to, fight or other physical combat, disobey direction, fail to comply with correctional centre routine, possess offensive weapon/instrument, assault and intimidation."
That report in respect of institutional offences was based on information available as at the date of the report, 1 June 2019. The updated NSW Dept. of Corrective Services Conviction, Sentences and Appeals document printed 15 July 2020 indicates that since the offender's arrest in respect of these matters, 25 institutional offences are recorded. As at the date of the SAR, there appear to be only 12 recorded rather than the 17 referred to in the report. There are also a significant number of institutional offences relating to previous periods of custody.
It would appear that there is a consistency in his conduct whether or not in custody. As to the current offences, in the absence of the offender having given evidence subject to cross-examination, there is no evidence other than untested hearsay that at any time relevant to the offending between 19 October and 13 November 2017 that he was in fact affected by any prohibited drug. I accept, however, that it is entirely possible that a number of the offences, particularly the earlier ones, were committed with the intention of obtaining money or items that could be bartered or sold to purchase drugs. While that may explain the motivation for some of the offences it does not in any way excuse them.
When last released on parole he stayed with his sister for approximately one month, and she was not aware of him using drugs during that period. On release he continued a previous relationship and believed that his girlfriend was pregnant to him only to discover from an ultrasound that the child could not be his because it must have been conceived while he was in custody. The relationship ended and he ceased staying with his sister.
He has been assessed as having a high risk of reoffending by Ms Bennett. That appears to be an entirely appropriate assessment based on his history of offending. Ms Lucas does not suggest otherwise.

[64]

Subjective Matters Allan BURNS

The offender did not give evidence on sentence. Available to the court are the following:

NSW Criminal History;
NSW Department of Corrective Services Conviction, Sentences and Appeals Report, printed 1/8/19. Updated document printed 15/7/20;
Sentencing Assessment Report under the hand of Gavin Arnold, dated 9 December 2019;
Psychiatric Report under the hand of Dr Sam Calvin, dated 9 December 2019;
Affidavit of Olivia Harris, solicitor, dated 6 March 2020 and attachments from records of the NSW Department of Community Services (DOCS) and NSW Justice Health.

Subjective matters are drawn from that material.
The offender was 24 years of age and is now 27 years of age. He is of indigenous decent. He is one of eight children and the father of two young children, both daughters under 6 years of age from a failed relationship, which he cited as a catalyst for his "decline into drug abuse and a self-defeating attitude."
Ms Lewer, Counsel for the offender, has appropriately, in accordance with the material I have taken into account, summarised some of the relevant subjective matters as follows ( Para 43 to 51): "Some of the offender's subjective features are outlined in the Colvin (sic) report. Large measure of these matters is corroborated by other documents from Justice Health and Family and Community Services (DOCS) as annexed to the affidavit of Olivia Harris affirmed 6 March 2020. His parents were drug addicts. They separated when he was very young. His childhood was "very traumatic": Colvin report at [15]. The FACS records show that there has (sic) been interventions by the Department since at least 2001, when the offender was seven years of age. There have been well over 40 reports made about the offender. It was noted on many occasions that he was at high risk of harm. There are notations regarding chronic neglect, exposure to domestic violence, violence inflicted on the offender, of "multifaceted abuse, of sexual harm, of parental drug use, of drug and alcohol use by the offender, disturbing behaviours exhibited by the offender, lack of housing and homelessness and psychiatric interventions. Perhaps unsurprisingly, the offender had significant behavioural problems and was diagnosed and placed in a special education scheme. He struggled with his schooling: Colvin report at [16]. The offender first came into contact with the court system when aged just 11 years of age. The offender was subject to sexual abuse by a family member at the age of 5 years. The FACS materials reveal that there was an investigation of sexual abuse of the offender. The abuse led to emotional difficulties and the offender acting out. This led to placement in a foster home. But he was soon returned to his family: Colvin report at [17]. The offender has achieved very limited educational, vocational or training outcomes. Despite this fact, he has been gainfully employed in a variety of unskilled jobs in the past. Very concerningly (sic), when aged just 11 or 12 years of age, he left home and resided in a sexual relationship with older women (Colvin report at [18]). The adult relationships involved drug use. Again such account is corroborated by FACS materials. The offender has apparently had very little, if any, treatment to deal with what was apparently a highly traumatic and dysfunctional background. The offender has a long history of substance misuse beginning at the age of nine years. He was drinking alcohol and smoking cannabis at the age of 11 years (Colvin report at [12]). This is corroborated by contemporaneous FACS records. He was injecting intravenous methylamphetamine by the age of 13 years. In recent years the offender's drug use has escalated, and he is a poly substance user: Colvin report at [13]. The offender was released from custody in 2016. A long term relationship broke down at the same time and the offender was itinerant and heavily using drugs at the time of the offending: Sentence assessment report (SAR) at p 2."
Dr Calvin reports: "Mr Burns stated that over the past few years, his drug use has escalated. He started to obtain drugs for free because of his profile and would use drugs daily. He said he would use about 7 gm of methylamphetamine every week, half an ounce of cannabis daily, Ecstasy tablets, heroin injections about 3.5 gm, several tablets of oxycodone and the benzodiazepine Xanax around three tablets daily."
What it was about his profile that caused him to be regularly supplied with such significant quantities of drugs or part thereof is not explained. The SAR adds cocaine to the list of drugs used by the offender and Dr Calvin also refers to hallucinogens. He is currently on a methadone program although he was still accessing the prohibited drugs heroin and "ice" and other prisoners' prescribed buprenorphine and Seroquel in March 2019 (Justice Health Clinical Notes 14 March 2019). He has a history of paranoid thoughts and referential ideas while on drugs and in custody has been prescribed the anti-psychotic Quetapine but there is no evidence of an enduring mental illness (Calvin p 39).
Ms Lewer on behalf of the offender has accepted that the Court could not on the balance of probabilities find a clear causal connection between a major mental illness and the offending. (Ms Lewer's Submissions at 64). However, his problems remain relevant and must be taken into account.
He was unemployed at the time of the offending and had been for 4 years with the exception of helping his father on the family property at Talimba. He blames his unemployment on Community Corrections.
As to the current offences, in the absence of the offender having given evidence subject to cross-examination, there is no evidence other than untested hearsay that at any time relevant to the offending between 28 October and 13 November 2017 that he was in fact affected by any prohibited drug. I accept, however, that it is entirely possible that a number of the offences, particularly the earlier ones, were committed with the intention of obtaining money or items that could be bartered or sold to purchase drugs. While that may explain the motivation for some of the offences it does not in any way excuse them.
He denies any historical treatment and disputed the effectiveness of AOD interventions or that they would have any impact on his addictions. He has not engaged in any meaningful interventions to address his anger or aggression and required some convincing when discussing therapeutic programs in custody, claiming that he had already done them. However, Community Corrections records do not support that assertion (SAR p 3).
He has a moderately extensive criminal history, consisting of juvenile convictions for serious property offending, including Robbery Armed with Offensive Weapon, violence in company, Affray and Aggravated Break Enter and Steal. The SAR appropriately describes the current offending "as an escalation of his historical behaviours, underpinned by substance abuse and criminal peer influences" (SAR p 3).
He has served a number of periods of imprisonment with only short periods in the community, generally about 2 months, before being returned to custody because of breach of parole or offending. At the time of this offending he had successfully completed his last period of parole, which commenced on 24 November 2016, having been compliant with reporting and supervision, and was accordingly at large in the community without reoffending for a period of approximately 1 year before commencing this course of offending. On 3 previous occasions his parole has been revoked. At the time of the SAR, 1 December 2019, he had acquired 7 institutional offences since arrest and as at 14 July 2020 a further three.
He informed Dr Calvin that he was a problematic child with a bad temper and significant behavioural problems and was diagnosed as ADHD, unable to learn, read or write and was placed in a special classroom (Calvin P 16). He hated school and found academics very challenging. He was soon destroying property, punching holes in the school walls, and throwing rocks at his parents and teachers until he was suspended (SAR p 4).
As to his "Attitudes" the SAR records: "Mr Burns suggested that he had little alternative but to offend. He justified his behaviour by claiming that he needed to provide for a new relationship and began offending to source income. He reflected that he 'had to do what he had to do'."
As to "Insight into Impact of Offending" the SAR records: "Mr Burns did not seek to deny his offending, however claimed that some of the facts provided in the police facts had been exaggerated. … Mr Burns acknowledged the significant impact of his offending on his victims. He was able to demonstrate some empathy, acknowledging the financial loss to the victims and the loss of their personal security. … Mr Burns expressed feelings of sympathy for the people who had witnessed his actions, describing his behaviour as a 'life or death struggle'. …He appeared to temper his regret by claiming to have been mindful of the risks to others at the time, but felt that he had no choice once he got to a point of 'no return'."
Dr Calvin states that "Mr Burns reported remorse and said that he regretted his actions (Calvin at p 28). Dr Calvin does not say how remorse was "reported" and the offender did not give evidence, so that any claim to remorse and contrition could be assessed by the Court.
Dr Calvin reported that the offender as an adult displays features of Cannabis, Opioid, Stimulant and Alcohol Use Disorders and also several features of Personality Disorder and as a juvenile, Conduct disorder and ADHD. In the light of his history, confirmed by DOCS materials and including episodes of self-harm, it is not difficult to appreciate the obvious causes and his consequent development as an adult.
It would appear reasonable to anticipate that the offender is, as opined by Dr Calvin, institutionalised, or has a significant risk of institutionalisation even though he managed to stay at large in the community for one year immediately prior to this offending.
He clearly has issues to deal with, particularly in respect of drugs and violence.
He has been assessed as having a high risk of reoffending by Mr Arnold. That appears to be an entirely appropriate assessment based on his history of offending. Dr Calvin does not suggest otherwise.

[65]

Corkery and Burns

The period over which the offending occurred and the nature and number of offences committed by each as well as their respective roles in any offence and personal circumstances are matters that must be taken into account on sentence.
Corkery was 24 years of age and Burns was 26 years of age at the time of the offending. It has long been recognised that psychological and emotional maturity does happen simply because an individual reaches 18 years of age. Usually it can be anticipated by the early to mid-twenties. I am fully aware of the statements that have been made in that regard in the past in such matters as BP v The Queen 2010 NSWCCA 159, and Bullock v the Queen (2016) NSWCCA 131 and, in particular, the comments of Hodgson JA, at paras 4, 5 and 6.
In respect of each of the offenders it is also likely that their maturation has also been held back by the significant periods of imprisonment that each has served in the past. While there is a two year difference in their ages, this is not a significant distinguishing feature.
Both of the offenders have criminal histories which do not assist them. Burns' criminal history is more extensive than that of Corkery's but this, at least in part, is no doubt the reflection of his greater age. Neither of their criminal histories, even though there are some like offences to some of those the subject of the current proceedings, is such as to warrant a finding that the statutory aggravating circumstance of s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 applies. This is again not a significant distinguishing feature between the offenders. Their records do however in each case deny them leniency.
In each case there is a relatively continuous course of offending; in the later period one offence leading to the next offence as they were being pursued by police. The individual offences may have some element of planning or foresight but in essence they are simply opportunistic continuations of a determination to obtain funds or items of value while avoiding apprehension. The aggravating circumstance of s 21A(2)(n) does not apply.
It is accepted that each of the offenders was significantly exposed to violence, drugs and alcohol at very young ages in dysfunctional family circumstances as has been previously referred to in these reasons on sentence. The factors relevant to sentencing referred to in Fernando, Bugmy and Millwood are enlivened in respect of each of the offenders and operate to reduce the moral culpability of the offender and ameliorate the sentence to be imposed. In this regard, although there are differences in their individual histories, social circumstances and disadvantages, there is otherwise no significant distinction between them.

[66]

Remorse and Contrition

A plea of guilty is not in itself necessarily an indication of remorse or contrition. It is frequently simply the acknowledgement of the inevitable. Neither offender made admissions when arrested. Corkery in respect of all charges and Burns in respect of all charges with the exception of the Group 5 charges, entered pleas of guilty on 31 October 2018, which is almost one year after arrest. Early admissions of guilt and pleas of guilty may have assisted in demonstrating genuine remorse and contrition but neither is present here.
Although no submissions were made in respect of why there was a one year delay before any guilty plea it is likely that the necessity to muster the evidence to provide a committal brief in respect of such a significant number of offences was responsible for a significant part of the delay. But each of the offenders knew they had committed the offences yet delayed taking any step that might have reduced the delay and the efforts that must have been necessary for the prosecution to progress in compliance with the legislated requirements.
It would also have assisted the individual offender in respect of this issue if he had assisted police to recover any of the stolen property by identifying where it was located or how it had been disposed of. There is no evidence that either sought to assist in this fashion.
Dr Calvin recorded that Burns "reported remorse" and "regretted his actions" although he does not say how remorse was "reported" or what he "regretted" about his actions and as to any insight this was only referred to as relating to his drug abuse. Burns did not give evidence on sentence to allow the Court to make its own judgement. The SAR indicates that he appears to have some relevant "insight" and "empathy" as quoted above. However the benefit of such observations is significantly diminished by his justification on reflection that he "had to do what he had to do" and was involved in a "life and death struggle" having reached a point of "no return".
Ms Lucas in her report referred to Corkery as claiming a lack of detailed memory of the offending due to drug use, "reported regretting his actions and the harm caused to victims of his offending". His sister, Megan Corkery, did not state that the offender had ever expressed remorse or contrition to her although she had visited him in custody, but made her own observation: "I feel that he hates himself for having let so many people down, the victims, us and himself." His mother, Maxine McKay, in her evidence gave no evidence relevant to the offender's remorse or contrition. Corkery did not give evidence on sentence to allow the Court to make its own judgement.
In the circumstances it cannot be said in relation to either offender that there is acceptable evidence of genuine remorse or contrition.

[69]

Corkery - Conditional Liberty (Parole)

One matter in respect of which there is a significant difference between the offenders is that at the time of these offences, Corkery was on conditional liberty as a result of being released on parole on 11 September 2017, as referred to above, that is, approximately one month before this sequence of offending commenced. While there is little practical distinction between the offenders other than the actual offences each is to be sentenced in respect of, the breach of parole is a significant sentencing issue to be taken into account in respect of the determination of any sentence to be imposed on Corkery for any offence.
The commission of offences whilst on parole is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a higher punishment. R v McVittie [2002] NSWCCA 344. R v Fernando [2002] NSWCCA 28 at 42. Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed, and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances.
Greg James J, in R v Huynh [2003] NSWCCA 239 stated that: "...it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally".
In R v Moffatt (1990) 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole.
The Court recognises that the sentencing discretion includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with, or, wholly cumulative upon the sentence to which the offender was serving as a consequence of the revocation of parole for the reasons referred to by Simpson J, in Callaghan v R [2006] NSWCCA 58.
I will return to that question of application after indicating in respect of each offender and offence the sentence or indicative and aggregate sentences.

[70]

Delay

These matters first came before me on 14 October 2019 on the first day of a three week circuit at Griffith. Burns was listed for sentence during the circuit. Corkery was due to go to trial in respect of only the Group 5 charges on 21 October 2019 and on that date entered pleas of guilty to the Group 5 offences and was then listed for sentence together with Burns on 23 October 2019. However, on 22 October 2019 Ms Lewer on behalf of Burns but in his absence sought to vacate the sentence date to obtain further material for sentence. The application was deferred to the following day, 23 October 2019, when Corkery and Burns were both due to be present from custody for sentence. The application was renewed that day and refused due to the fact that it was inevitable that there would be a significant delay which would provide ample opportunity to obtain sentence materials.
On 23 October 2019 Ms Mendes, Counsel on behalf of Burns, called and tendered evidence. Sentence Assessment Reports were ordered in respect of each offender. Both matters were adjourned to the Downing Centre on 13 December 2019. This became an unsuitable date for all or some of the parties and a new sentence hearing date of 13 March 2020 was established. From that date it was adjourned to today to allow for proper consideration to be given to the significant number of offences and the subjective matters relevant to each offender.
Ms Mendes has in the interim tendered further material and made further written submissions on behalf of Burns. I have also requested further updated material from the Crown (NSW Department of Corrective Services Conviction, Sentences and Appeals report) and submissions from the parties as a result of considering the material while reserved. Ms Mendes has appropriately responded.
In addition it was obvious that I would not be able to give proper consideration to the matter until I was able to do so while on leave and could set aside sufficient time. Judges of this court are expected to deal on a daily basis with an unending and unrelenting stream of fresh matters without regard to any outstanding matters.
In the background to these adjournments was the need for time to allow the Crown to prepare a single set of facts in chronological order and schedules of the charges in respect of each offender and for those to be checked by the parties and the Court.
It is regrettable that it is now three years since the offenders were arrested and two years since the initial pleas. In part Burns' sentencing has been held up so that both offenders could be dealt with at the same time by the same judge, allowing for Corkery not pleading to the Group 5 matters until 21 October 2019.
Delay in sentencing always places additional stress on offenders who are anxious to know what the sentence is. While the delay in this matter have been inevitable any sentence must take into account the additional stress caused to the offenders by the uncertainty of resolution, even where in part they are responsible for at least some of the delay.
As submitted by Ms Mendes on behalf of Corkery but relevant to both offenders, it has long been recognised that sentenced prisoners have greater access to programs, education, work and services generally than prisoners on remand: R v Todd (1982) 2 NSWLR 517 per Street CJ at 519; Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190.

[76]

ALLAN BURNS

Charge Group 3, Sequence 1, s 112 (2) aggravated break, enter and steal in company, the victim Stella Gioia. The indicative sentence is three years, three months, with an indicative non-parole of two years, five months.
Group 4, Sequence 1, s 112 (1) (a) break, enter and steal, the victim Christian Files. The indicative sentence is two years, nine months.
Group 6, Sequence 1, the offence of s 97 (1) robbery in company, the victim Foscarini. The indicative sentence is three years, ten months.
Group 7, the matter on the 166 certificate, being Sequence 2, s 15 (1) (a) Road Transport Drivers Licencing Regulation, learner not accompanied. The sentence is a s 10A conviction with no other penalty, except three months' disqualification.
Group 8, Sequence 2, s 188, receiving stolen property, the victim Catherine McPherson. The indicative sentence is one year, eight months.
Group 9, Sequence 2, s 111 (2) aggravated enter dwelling with intent to commit a serious indictable offence, stealing knowing persons were there, the victim Brittney Jones. The indicative sentence is one year, nine months.
Sequence 5, s 111 (2) aggravated enter dwelling house with intent to steal in company, the victim Deborah Smith. Including the Form 1 being a further s 112 (2) aggravated break enter and steal in company, the victim Rachanpal Singh, and Sequence 4, being an offence contrary to s 192E (1) (a) dishonestly obtain property by deception, the victim OilsPlus. The indicative sentence for Sequence 5, taking into account those matters on the Form 1, is four years, two months.
In relation to Group 9, Sequence 6, s 154A (1) (b) take, drive conveyance, the victim Deborah Smith. The indicative sentence is one year, six months.
In respect of Group 10, Sequence 1, s 154A (1) (b) knowingly be carried in stolen conveyance. The indicative sentence is one year, eight months.
In respect of Group 11, Sequence 1, s 97 (1) robbery in company, the victim Julie Nardi. The indicative sentence is three years, four months.
In respect of Sequence 7, being s 154A (1) (a) take drive conveyance. The indicate sentence is one year, four months.
In relation to Group 12, Sequence 1, s 117 (2) of The Road Transport Act, drive manner dangerous. The indicative sentence is three months and the disqualification period is one year.
In relation to the matter from the 166 certificate, being Sequence 2, s 15 (1) (a) of The Road Transport Driver Licencing Regulation, learner not accompanied by driver. The offence will be dealt with by way of a s 10A conviction with no other penalty other than a three months' disqualification.
Group 13, Sequence 1, s 154C (2) aggravated attempt to assault with attempt to take motor vehicle, the victim, Peter Moss. The indicative sentence is four years.
Group 14, Sequence 1, s 51B (1) police pursuit on the Hume Highway. The indicative sentence is one year, six months and a one year disqualification period.
Sequence 3, s 33B (1) (a) use offensive weapon, car, to prevent lawful detention. The indicative sentence is four years, six months.
Sequence 4, s 7A (1) of the Firearms Act, possess unauthorised firearm. The indicative sentence is one year, six months.
In relation to Group 15, Sequence 2, s 112 (2) aggravated break enter and steal in company, including all of the matters listed on the Form 1 to be taken into account, the indicative sentence is five years, nine months with an indicative non-parole period of four years, three months and three weeks.
In relation to Sequence 5, s 154C (2) aggravated take vehicle, person on board, in company, the victim Ms Jennifer Crossland. The indicative sentence is five years.
Taking into account all of the matters that I have referred to the aggregate sentence in respect of Mr Burns is a non-parole period of seven years, six months with a balance of term of two years, six months, giving a total sentence of ten years' imprisonment. The term of imprisonment will commence from the date of his arrest 13 November 2017, so he will be first eligible for parole seven years and six months later, on 12 May 2025 and the total term will expire on 12 November 2027.
It will be apparent that I have not found special circumstances. The period of parole is two and a half years, which in itself is a very significant period and, in fact, supervision is rarely provided beyond three years.

[77]

ZACHERY CORKERY

The indicative sentences are as follows:
Group 1, Sequence 1, s 97 (1) robbery in company, the victim Vaman Patel, the indicative sentence is three years' imprisonment.
In respect of Sequence 2, s 154F steal motor vehicle, again the victim Vaman Patel. The indicative sentence is two years, three months.
In respect of the Group 2 offences, Sequence 1, s 112 (1) (a) break enter and steal, the victim Chad Dilks. Taking into account the matters on the Form 1, being Sequence 2, s 148 steal property from dwelling house, the victim Maryann Battisel. The indicative sentence is three years' imprisonment.
In respect of Group 3, Sequence 1, s 112 (2) aggravated break and enter commit serious indictable offence in company, the victim Stella Gioia. The indicative sentence is three years, six months' imprisonment, with an indicative non-parole period of two years, seven months and two weeks.
In respect of Group 5, Sequence 2, s 195 (1) (a) destroy or damage property, the victim Joe Severino. The indicative sentence is one year, two months.
In relation to Sequence 3, s 97 (1) and the plea on indictment, belatedly, a s 97 (1) offence of robbery in company. Taking into account also the Form 1 offence contrary to s 154A (1) (b) of knowingly be carried in a conveyance without consent. The indicative sentence is four years.
In relation to Group 6, Sequence 1, s 97 (1) robbery in company, the victim Issac Foscarini. The indicative sentence is four years.
In relation to Group 8, Sequence 1, s 112 (1) (a) break and enter house et cetera, steal, value less than $60,000, victim Catherine Mcpherson. The indicative sentence is two years, nine months.
In relation to Group 9, Sequence 2, s 51B, police pursuit - not stop - drive dangerous - second offence, at Griffith. The indicative sentence is two years' imprisonment and two years' disqualification, which is not indicative, it applies.
In respect to Sequence 5, s 111 (2) plus the Form 1 offences, being Sequences 3 and 4. Sequence 5, being s 111 (2), aggravated enter dwelling with intent to steal in company, and the matters on the Form 1 being aggravated break and enter to commit serious indictable offence, and dishonestly obtain property by deception. In respect of Sequence 5, including the Form 1, the indicative sentence is four years, six months.
In respect of Sequence 6, s154A(1)(a) take and drive conveyance in relation to Deborah Smith, the indicative sentence is one year, eight months.
In respect of Group 10, Sequence 1, s 51B (1) police pursuit, the indicative sentence is two years. And the minimum period for disqualification will apply, that is two years. That also takes into account the offence on the Form 1 of never licensed person drive vehicle - prior offence s53 (3) Road Transport Act.
Group 11, Sequence 1, s 97 (1) robbery in company, the victim Julia Nardi. The indicative sentence is a term of imprisonment of three years, six months.
In relation to Sequence 4, being s 154A (1)(a) take/drive conveyance, the indicative sentence is one year, six months.
In relation to Group 13, Sequence 1, s 154C (2) aggravated attempt to assault with intent to take motor vehicle, the victim Peter Moss. Taking into account the matters on the Form 1, the indicative sentence is four years, three months.
In respect of Group 14, Sequence 1, s 154A (1) (b) be carried in a stolen conveyance, the indicative sentence is one year, six months.
In relation to Sequence 2, destroy property s 195 (1) (a), the indicative sentence is two years, six months.
In respect of Group 15, Sequence 2, s 112 (2), plus the Form 1 offences, being Sequences 1, 3, 6, 7 and charge H232003398, Sequence 1, taking into account all those matters the indicative sentence is six years with a non-parole period of four years, six months.
In relation to Sequence 5, s 154C (2) aggravated take vehicle, person on board, in company, the indicative sentence is five years, three months.
That, I believe, deals with all of the relevant charges.
The aggregate sentence in respect of Mr Corkery is a non-parole period of nine years with a balance of three years, giving a total sentence of 12 years.
As one of the factors relating to the revocation of his parole was, in fact, that he had been charged with these, although, as yet at that time unresolved charges, I will commence the sentence in respect of Mr Corkery, giving him the benefit of the late supplied parole document on 13 November 2017, which I would not have done except for the fact that that material was finally supplied to the Court. So that is a 12 year sentence, commencing on 13 November 2012. He will be first eligible for parole on 12 November 2026, and the total term of three years expires on 12 November 2029.
Again, what I said about special circumstances in relation to Mr Burns applies here.
If you total the individual sentences you will find that in respect of Mr Burns, if there was no concurrency, the total head sentence would be 47 years 9 months. In respect of Mr Corkery, it would be a head sentence of 58 years 4 months. Fortunately we do not live in the United States of America.
Having taken account of the relevant principles, the sentences that I have imposed in each case, in my view, are appropriate to reflect the overall criminality, particularly taking into account all of their personal subjective matters and the objective seriousness of each of the offences. There was a mistake as I went through the schedule in relation to one of the matters, so I am not in a position to provide a copy of the schedule to anyone at the moment. It will be forwarded to you shortly, Ms Mendes. And if I can arrange to have a copy of the schedules sent down to the cells I will do so. I am sure they would like to be able to compare and contrast. MENDES: Thank you. And may it please the Court, thank you, your Honour. HIS HONOUR: Sorry, and in each case I will have the papers marked as referrals to the - what's the correct term? MENDES: The Drug Court. HIS HONOUR: Compulsory Drug Treatment Court. MENDES: Thank you, your Honour, I was about to raise, yes, a referral to Compulsory - the language-- HIS HONOUR: It's the CDT-- MENDES: The CDTCC, Compulsory Drug Treatment Correctional Centre. HIS HONOUR: On each of them they will be referred to the CDTCC. THOMAS: Your Honour, one last thing, relates to in the agreed facts the compensation orders sought against Mr Corkery for the vehicle and the lamp on the bicycle. HIS HONOUR: Yes, what about them? THOMAS: I'm seeking compensation of the $2,500 per vehicle for Mr Patel and $60 for Ms Battisel. HIS HONOUR: Mr Thomas, I would anticipate that hell will freeze over before he is ever in a position to be able to pay that.
However, I will make the orders for $2,500 compensation. Plus $60 compensation to be paid out to the relevant parties, Mr Thomas. THOMAS: Thank you, your Honour.
HIS HONOUR: And I should indicate, as I have omitted to do, in relation to each of the disqualification that I had imposed it will be evident that I have, in each case, imposed the minimum period of disqualification that must be imposed under the section. I do understand that when prisoners are released from gaol a serious difficulty in obtaining work is their ability to transport themselves around, and that particularly applies in country areas, where I expect it will be that each of the offenders will be returning to the area of Griffith, much to the chagrin, no doubt, of the local police. However, that is why I have imposed the minimum period of disqualification on each occasion. MENDES: Thank you, your Honour. THOMAS: Thank you very much. HIS HONOUR: A copy of the schedule of charges and sentences with relevant detail in respect of each of the offenders, as supplied to the parties will be attached hereto to assist the parties in consideration of the sentences. BURNS table summary (82551, pdf) CORKERY table summary (83731, pdf)

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