R v CAMPBELL-BETTS; R v COE

District Court of NSW|2021-07-27

REMARKS ON SENTENCE

The offenders appear before the court with each charged with the following: 1. That (he) on 21 April 2020 at Tolland in the State of New South Wales, being in company (of each other) robbed Daniel Kisela of certain property, namely $150 of Australian currency, a Samsung S20 mobile phone and a coin dispenser the property of Daniel Kisela and Marino Baggio, contrary to s 97(1) of the Crimes Act, 1900; and further 2. That (he) on 21 April 2020 at Tolland in the State of New South Wales, while armed with an offensive weapon assaulted Daniel Kisela with intent to take a motor vehicle and took and drove a motor vehicle, a white Toyota Camry with NSW Taxi Registration TC-2199 without the consent of the person in lawful possession of the motor vehicle, Daniel Kisela contrary to s 154C(2) of the Crimes Act.
Both were committed for sentence from the Local Court on 16 December 2020. Each adhered to the pleas of guilty entered at the Local Court at the sentence hearing at the Wagga Wagga District Court on 11 June 2021 and accordingly each are entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The maximum penalty for the aggravated robbery charge is 20 years imprisonment. There is no standard non-parole period specified, although the Guideline Judgment in R v Henry & Ors (1999) 46 NSWLR 346 will need to be considered. The maximum penalty for the aggravated car-jacking offence is 14 years imprisonment. Parliament has specified a standard non-parole period of 5 years in respect of that offence.
The offender Campbell-Betts also appears for sentence in respect of a charge of Unlicensed Driver (Never Licensed) contrary to s 53(3) of the Road Transport Act, 2013. As indicated at the sentence hearing I propose to deal with that matter by s 10A of the Crimes (Sentencing Procedure) Act, 1999.

Facts

The facts are before the court by way of agreed facts and the facts are common to both offenders. Campbell-Betts was 20 years of age at the time of offending and Coe was 19 years of age.
The victim of the robbery Daniel Karl-Kisela is a 35 year old taxi driver. He started his shift in TC-3199 and later in the night received a job notification to collect two people of 35 Bruce Street, Tolland. At 20:46 (8.46pm) the victim parked outside the address. Campbell-Betts got into the front seat wearing a white hoodie with the hood pulled over his face and dark tracksuit pants. Coe got into the rear seat and said to the victim, "Just drive and we will tell you where to go".
At 8.49pm the victim was directed by one of the offenders to stop near a bus shelter on the corner of Heath Street and Fernleigh Road, Turvey Park. Both offenders took out knives. Coe leant over and put the knife to the chest of the victim and said, "Give us all your money".
The facts then recite that the victim was "freaked out and shocked by this" and his first thought was that he did not want to get stabbed. He put his hands up and he decided he would comply with their demands. He said, "Woah, woah, woah". He removed $100 from his shirt pocket and gave it to the rear passenger. One of the offenders asked, "Where is the rest of it".
The victim then took the coin dispenser which contained about $50 from the console of the taxi and handed it to Coe. Coe then demanded the victim's phone and phone password and the victim handed Coe his mobile phone that had a retail value of approximately $1500.
Those are the facts that relate to the aggravated robbery charge. The aggravated car-jacking occurred immediately thereafter. Campbell-Betts placed the knife he was carrying close to the victim's chest while the co- offender held him from behind and told the victim to get out of the cab.
The victim got out of the taxi, leaving it running. Campbell Betts got into the driver's seat and drove north along Heath Street. The pair abandoned the vehicle at 8.52pm, meaning they were driving for 6 minutes. The entire incident is caught on CCTV.
The victim contacted police by triple-0 call. A short time later Taxi 11 passed the victim and the victim flagged down that vehicle. The victim told the driver Kevin Newman that he had been robbed. While the victim was speaking with Newman a call came over the radio within Newman's taxi tablet requesting a check-in on TC-3199 which was located on the corner of Blamey and Bourke Streets, Turvey Park. The pair drove to the location and found TC-3199 parked with the engine still running, the driver's door open and the headlights on. The victim retrieved his wallet and personal keys from the vehicle and stood aside until police arrive.
On 23 April 2020 police attended 31 Margaret Street, Mount Austin and arrested the offender Campbell-Betts. Coe was arrested at 10/35 Bruce Street, Tolland on 28 April 2020. Coe had an injury to his foot and was taken to hospital where the charge process was completed.

Assessment

So far as the participation of the offenders it seems to me that there can be no practical distinction made between the role and participation of each of them. The robbery was clearly planned to some extent, given that they both were armed with knives. However the planning could not be said to be substantial. Given the events and the offender Campbell-Betts placing the knife at the chest of the victim, the car-jacking offence also was the subject of some planning but, again, not substantial planning.
The Crown maintains that the robbery offence was above the "Henry" Guideline given in particular the criminal histories of both offenders. The representatives of each of the offenders submitted that the robbery matter was below the Henry guideline, as I understood the submission because of the early plea of guilty.
The Guideline in Henry & Ors sets out a number of common features of offences of aggravated robbery, namely: (i) Young offender with no or little criminal history (ii) Weapon like a knife, capable of killing or inflicting serious injury (iii) Limited degree of planning (iv) Limited, if any, actual violence but a real threat thereof (v) Victim in a vulnerable position such as a shopkeeper or taxi driver (vi) Small amount taken (vii) Plea of guilty, the significance of which is limited by a strong Crown case.
However, Spigelman CJ went on to say at [162]: "Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term."
There is an abundance of authority to the effect that the judgment is a "guideline" and not a "tramline". However, going to the factors present in the matter presently under consideration both offenders are young but neither could be said to have a limited criminal history. This is especially so far as the offender Coe is concerned. Both were armed with knives and there was limited planning involved. While there was no actual violence with the robbery clearly there was a very real threat of violence with the knife being placed against the victim's chest. The victim was a taxi driver and therefore vulnerable. The property that was taken could not be described as substantial but considering the value of the victim's phone nor was it trifling. Both entered early pleas of guilty. The offence on which sentence is being passed is Robbery in Company, however a weapon was used. I am of the opinion that the matter is within the "Henry" guideline noting the early plea but also taking into account the criminal histories of the offenders.
So far as the "car-jacking" offence is concerned, there is the decision in the Crown appeal of R v Barker & Gibson [2006] NSWCCA 20 in which Howie J (Basten JA, Hall J agreeing) at [63] said on the issue of assessing the objective seriousness of a matter contrary to s 154C(2) of the Crimes Act: "It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle."
There were two people involved and there was limited planning. The conduct included placing a knife to the victim's chest in addition to doing that same thing with the robbery offence. There were no other threat than the use of the knife but no doubt that would have instilled significant fear into the victim. The violence was limited to the use of the knife. The vehicle was used for a very short period of time. There was no special vulnerability of the victim. The motive of the offenders for the car-jacking offence appears to be the means of making good their escape after the robbery. I am fortified in this last finding by the fact that the vehicle was abandoned very soon after it was taken. I indicated at the sentence hearing that I was of the opinion that the car-jacking offence was below mid-range but not significantly so. I remain of that opinion. I did not understand any of the legal representatives to disagree with that indication.

Criminal History - Campbell-Betts

Campbell-Betts was born on 9 September 1999 and accordingly was 20 at the time of offending and 21 at the time of sentence.
He has a substantial history, including armed robbery as a juvenile but there appears to be a break in offending of slightly over two years between 2015 and 2017. Noting the effect of the decision in Dungay v R [2020] NSWCCA 209 I will only take into account the matters recorded in 2017 and thereafter. In 2017 he was dealt with by way of Control Order for Use Offensive Weapon to Commit Indictable Offence, Possess Unauthorised Pistol and a number of counts of larceny. In 2018 he was sentenced to Imprisonment by the Local Court for Aggravated Assault with intent to Take and Drive and Demand Property with Menaces. In July 2020 he was dealt with by Community Corrections Orders to which he was subject at the time of the offending for which he now appears for sentence for a number of charges of Dishonestly Obtain Property by Deception. He has also been convicted by the Magistrate's Court in Wodonga, Victoria for Burglary and Theft. He was subject to an order of Probation imposed by the Children's Court for similar offending.
Even commencing consideration of the offender's record in 2017 he has a record that does not entitle him to any particular leniency. Further, there is breach of conditional liberty and accordingly, the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is made out.

Criminal History - Coe

Jai Coe was born on 18 July 2000 and accordingly was 19 at the time of the offending and not quite 21 at the time of sentence.
In 2020 he was convicted of goods in Custody and Possess Housebreaking Implements. He was sentenced to Community Correction Orders for those offences. He was later convicted of Goods in Custody and Resist Police. In particular on 26 February 2020 he was convicted of Assault Occasioning Actual Bodily Harm in Company and was sentenced to 14 months imprisonment to be served by way of Intensive Correction Order.
That Intensive Correction Order was revoked with effect from 28 April 2020. Since then he has been sentenced to a number of short fixed terms of imprisonment. At the time of offending he was subject not only to the ICO for the Assault Occasioning Actual Bodily Harm in Company but he was also subject to a number of Community Corrections Orders and Conditional Release Orders. Again, there is the factor of statutory aggravation of offending while on conditional liberty - s 21A(2)(j) Crimes (Sentencing Procedure) Act. Coe also has a record that does not entitle him to any particular leniency.

Subjective Case - Campbell-Betts

Oral evidence was called from Rebecca Campbell-Betts, the mother of the offender. In addition some written material including a psychological report is relied upon. Ms Campbell-Betts confirmed the contents of a one page letter, exhibit 3. In that letter she says that the relationship with her ex-partner had an impact on the offender. She explains in the letter that the relationship was on again/off again for four years and involved domestic violence. The offender's father passed away while he was in custody (as a juvenile) and was not able to attend the funeral.
The evidence expanded a little on the letter with Ms Campbell-Betts telling the court that her partner would come around to the house and argue with her and it impacted on the children. There was no physical violence but threats and intimidating behaviour by her ex partner was almost a daily occurrence. She went on to say that her son regrets getting into trouble and that he was hanging around with the "wrong crowd". The offender has told his mother that he wants to attend drug and alcohol rehabilitation. I accept that the offender has a strong and good relationship with his mother. The offender will have that family support upon his eventual release.
As I indicated at the sentence hearing, acting on the offender's mother's evidence and the contents of the psychological report I am prepared to find on balance that he is remorseful. However I am not prepared to give that finding as much weight as I might in other circumstances where the offender himself has given evidence and it is clear that the offender has fully accepted responsibility for the offending.
Exhibit 2 is a set of medical records in the form of notes from Justice Health. Ms Dreher, who appeared for the offender at the sentence hearing, indicated that those notes were to simply confirm that the offender has been prescribed certain medications, namely, regular Buvidal injections and olanzapine and mirtazapine both apparently being anti-psychotic medications.
Exhibit 1 is the psychological report prepared by Ms Anica Spatz of Duffy Robilliard, Psychologists. At the sentence hearing I voiced some criticism of the report as it appears to me the author became an advocate for the offender rather than giving an objective opinion. As Lonergan J observed in Atkinson v Coles Supermarkets Pty Ltd [2020] NSWSC 1063 at [23,] Schedule 7 of the Uniform Civil Procedure Rules (Expert Witness Code of Conduct) "is not a meaningless incantation". One of the particular concerns is the attachment of the "Treatment Plan" which is usually provided in applications for diversionary dispositions and the suggestion at paragraph 5 of that report that an Intensive Correction Order be considered.
The offender reported to the author (paragraph 2) that he had an upbringing free of trauma and that he had a good relationship with his mother and step-father. The report sets out that offender's father suicided when the offender was 16 years of age. At paragraph 7 of the report the author notes that the offender was diagnosed with ADHD while in juvenile custody. He was treated with Ritalin at the age of 14. He self-harmed for a short period of time while 15 years of age in juvenile custody. The offender told the author of the report that the medication he is receiving assists with his sleep and mood.
According to the report (paragraph 12) the offender began using cannabis at the age of 13 and started drinking alcohol to excess at the age of 16 to 18. At 15 he started using other illicit substances, such as methyl amphetamine, heroin and MDMA. The offender described to the author of the report that for twelve months before the offending his methyl amphetamine use was "out of control slightly more so than his heroin use". He has been participating in an Opioid Treatment Programme in gaol. He expressed an interest in participating in a residential rehabilitation programme.
The offender told the author of the report that he committed the offences for money to buy drugs (paragraph 20). He had difficulty in remembering the events and said "I don't really know what happened". He reported to the author of the report that he was in financial distress due to his out of control drug use. He said that the taxi driver is "probably scared to return to work. I feel for him". This is part of the reason I was prepared to find on balance that the offender is remorseful.
At paragraph 25 of the report Ms Spatz opines that that the offender has a positive diagnosis of ADHD. There were moderately severe depressive symptoms in the clinical range (paragraph 28). At paragraph 34 Ms Spatz opines that the offender's mental health diagnoses likely are adjustment disorder with mixed anxiety and low mood, Attention-Deficit/Hyperactivity Disorder, combined presentation, Stimulant Use Disorder and Opioid Use Disorder. The offender was intoxicated at the time of the commission of the offence (paragraph 35). A little earlier (paragraph 31) she suggests that the offender may benefit from psychopharmacological treatment for ADHD.
One of the portions of the report that caused me to make some criticism of it appears at paragraph 33, namely: "His current offences were motivated by Mr Campbell-Betts' perceived need to fund his substance use, as he did not have the financial means to satisfy his drug cravings. The lack of finances resulted from his limited education and his unemployment which in turn were caused by symptoms of ADHD and his substance use".
I accept that the offender has the various mental health issues. However, in this case they are simply part of the overall subjective mix. The offender was intoxicated at the time of the commission of the offences and the offences were committed for money to buy drugs. There is nothing in the report in my view that reaches an opinion of a causal connection between the offending and the mental health conditions.
It is submitted that the offender has had a disadvantaged upbringing. I accept that that is so. However the evidence of disadvantage is not to the same level or extent that this court has seen with many other indigenous offenders particularly in western and north-western New South Wales. The principles enunciated in Bugmy v The Queen (2013) 249 CLR 571 are enlivened to an extent reducing the offender's moral culpability. However the weight given to those factors will not be as much as in other circumstances where there is significantly greater disadvantage.
The offender is a young man and entitled to consideration for that fact conformably with decisions such as Locke v R (2010) 207 A Crim R 34 at [41-[49] per Hulme J. However, "young offender" is one of the factors that is already taken into account with the considerations of the "Henry Guideline" and care will need to be taken to ensure that there is no double counting.
Given the record and the breaches of conditional liberty I could not find on balance that the offender is unlikely to re-offend. It is put (paragraph 32 Written Submissions, MFI 2 on sentence) that I could find that there are prospects of rehabilitation. It is submitted that the factors include the offender's youth, his abstinence from drugs while in custody, his acknowledgement that he requires ongoing support and his family support. I am prepared to find that there are some prospects of rehabilitation but I am not prepared to find that there are "good" prospects of rehabilitation. Much will depend upon the offender's attitude upon release and the manner in which he engages with the relevant authorities upon that release.
It is submitted on behalf of the offender and I accept that there should be a finding of special circumstances. The offender's age has already been taken into account. What justifies a finding of special circumstances in this case is the need for an extended period of supervision to ensure that the offender receives the appropriate treatment and counselling for alcohol and substance abuse and that he continues to receive appropriate treatment for his mental health issues.

Subjective Case - Coe

No oral evidence was called by or on behalf of the offender although Ms Winn for the offender read an affidavit sworn or affirmed by Leon Coe, an older first cousin of the offender. That affidavit became exhibit 5. Leon Coe gives an account of the relationship between the offender's biological parents was "toxic" involving significant substance abuse. Leon Coe was present when the offender's mother arrived with a new boyfriend and told his father that he would have to take the offender. The offender then went to live with his father and his sister in Griffith. The offender's father re-partnered and the relationship between the offender and his step-mother was "not very good". The offender's grandmother passed away in 2009 and her passing had a significant effect on the offender. The offender was treated differently (and not as well) as the other children in the household.
Leon Coe goes on to give an account of the offender being sent to live with relatives in Cobar. Leon Coe opines that the offender felt abandoned. In 2017 Leon Coe had a chance meeting with the offender in Dubbo at Christmas and the offender accepted Leon's invitation to return home with him. The offender was introduced to his biological mother and they began using drugs together.
The offender would contact his cousin Leon "when there was some emergency" such as the offender being arrested or at hospital. According to Leon Coe, the offender would relapse and go back to his drug using acquaintances quickly.
Leon Coe has supported the offender while he has been in custody. They exchange letters. The restrictions because of the COVID-19 pandemic have meant that the offender has not been allowed visitors.
Leon Coe lives in Bega with his family and is working in the building industry. His wife is employed at K-Mart. He would like the offender to move to Bega upon his release and he will do what he can to obtain accommodation and employment for the offender. He accepts that the offender will have to help himself by "staying away from the wrong crowd".
Clearly the offender has some family support. Further, the principles enunciated by the High Court in Bugmy v The Queen are also enlivened for the offender Coe, but to a greater extent than the co-offender Campbell-Betts. Clearly the moral culpability of the offender is also reduced because of those factors. The contents of the report of Ms Dombrowski to which I will now go reinforces the fact that the "Bugmy" factors are enlivened. See in particular paragraph 9, 10 and 17 of that report.
Exhibit 4 is a psychological report prepared by Ms Julie Dombrowski of the Legal Psychology Group Australia. At paragraph 6 the author sets out that at the time of the offences the offender was in Wagga Wagga living with his mother and subject to the ICO. However because of the restrictions in place because of the COVID-19 pandemic the offender was not attending any therapeutic programmes. The report then goes on to record, "He returned to daily methyl amphetamine use within 24 hours of leaving custody because he was associating with other methyl amphetamine users (including his mother)". The offender denied to the author of the report of having any premeditated plans to rob the taxi. However he also told the author of the report that he always carries a knife for protection and that (like the co offender) robbed the taxi driver to fund his ongoing methyl amphetamine use.
The offender expressed some remorse to the author of the report saying, "It was stupid…I didn't really mean for it to happen…I didn't want to hurt him...I feel sorry for the bloke…I know he didn't deserve it…that's their personal stuff". I am not prepared to give the expressions of remorse much weight as they are entirely untested.
Some of the personal background of the offender is set out at paragraphs 9 and 10 of the report. It is this portion of the report in particular that fortifies me in the finding that the principles enunciated in Bugmy v The Queen are enlivened. The offender confirmed to the author that his cousin (Leon) has kept in touch and wants the offender to go to Bega upon his release.
The offender began using cannabis at the age of 14 and smoked several grams per day until 18 when he commenced using methyl amphetamine. He last used methyl amphetamine shortly before his arrest in respect of the offences for which he now appears for sentence. He has been prescribed buprenorphine since 2020 to prevent intravenous needle sharing and non-prescribed buprenorphine use while in custody.
The history of disadvantage includes in utero exposure to heroin.
Ms Dombrowski opines that the offender's primary criminogenic treatment need relates to his substance use. I understand her to recommend a culturally sensitive residential rehabilitation programme.
As with the co-offender, it this issue that justifies a finding of special circumstances. The offender will require a period of intensive and extensive supervision to ensure he receives appropriate treatment and counselling for his substance abuse issues. Given that the ICO to which he was subject was revoked as from 28 April 2020 the issue of accumulation of sentences also goes to justifying a finding of special circumstances.
Given the criminal history and the breaches of conditional liberty, taken with the offender returning to illicit drug use within 24 hours of release from custody, I could not find on balance that the offender is unlikely to re-offend.
Ms Winn on behalf of the offender at paragraph 12 of her written submissions (MFI 3 on sentence) puts that I would find that the offender has good prospects of rehabilitation. In oral submissions this was modified to that I would find that there were guarded prospects of rehabilitation. The offender has the support of Mr Leon Coe. The offender has apparently acknowledged the offer of assistance by his cousin (paragraph 10 Ms Dombrowski's report) but there is nothing concrete in any of the material to suggest that the offender is prepared to accept that offer of assistance.
In all the circumstances, noting the offender's record, the breaches of conditional liberty and the return to illicit drug use within 24 hours of release at this point in time I find that the offender's prosects of rehabilitation are very guarded. If he does accept the offer of assistance from his cousin and if he does something meaningful by way of residential rehabilitation then his future will be far more positive. However, any prospects of rehabilitation will depend entirely on the attitude of the offender when he is eventually released. This includes how he will engage with the relevant and appropriate agencies and authorities.

Competing submissions and General Remarks

In passing sentence I will need to give regard to and proper effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. In this matter noting the maximum penalties, the Henry Guideline in respect of the aggravated robbery charge, the criminal histories and the breaches of conditional liberty clearly there must be a sentence of imprisonment imposed in this matter. No contrary submission is made on behalf of either offender.
In respect of the offender Campbell-Betts the sentence must date from his arrest, namely 23 April 2020. In respect of Coe the ICO to which he was subject at the time of the offending was revoked with effect from 28 April 2020. At the sentence hearing I suggested that I would commence the sentence from 28 October 2020. Neither the Crown nor Ms Winn for the offender took issue with that suggestion.
Both Ms Dreher for Campbell-Betts and Ms Winn for Coe submitted that the aggravated robbery matter was below the Henry Guideline. The Crown submitted that it was above the Henry Guideline. Indeed Ms Winn in her written submissions (paragraph 13) puts that "the starting point for this offender should fall below the range of four to five years imprisonment, although not significantly so". The issue I have with that submission is the suggestion that the starting point be below the Guideline, which of course, takes into account a late plea of guilty.
Since hearing submissions in this matter, while hearing another sentence matter involving a robbery of a taxi driver, I was referred to the recent decision of Qoro v R [2020] NSWCCA 276. The facts in that matter were more serious that the robbery in the matter presently under consideration. The offender in that matter was not on conditional liberty.
There is also the issue of parity to be considered in this matter. I have already observed that there can be no practical distinction in the criminality or involvement of the offenders in the offences. There is no real difference in the moral culpability, noting that the Bugmy factors attain more weight with Coe. Coe has a slightly stronger subjective case but was subject to an ICO at the time. Campbell-Betts was also subject to conditional liberty but not an ICO. Both offenders have records that do not entitle them to any particular leniency. In these circumstances I am minded to impose the same sentence in respect of both offenders.
It was submitted on behalf of the offenders that wholly concurrent sentences be imposed. Ms Winn submitted that it was the assault with the presentation of the knife that was the significant aspect of the offending. That submission had some initial attraction. However, the proceeds of the robbery were handed to the offenders before the victim was ordered out of the taxi. I note the Crown submitted that there should be some partial accumulation of sentences.
I note the effect of the authorities such as Cahyadi v R [2007] NSWCCA 1 at [27] and Nguyen v R [2007] NSWCCA 14 at [12]. Further, there is the decision of R v Merrin (2007) 174 A Crim R 100; [2007] NSWCCA 255, where at [36]-[37] Howie J (Giles JA, Fullerton J agreeing) said: "This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle. [37] There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the Judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade. As counsel for the respondent pointed out, a single offence of break enter and steal committed by an 18 years old youth with limited record would not ordinarily warrant a sentence of imprisonment for four years. Yet that is the sentence that the Judge imposed for each of the offences of non-aggravated break, enter and steal. Although it has been recognized by the High Court that the principle in Pearce is not the only method of achieving totality when sentencing from multiple offences; see Johnson v The Queen (2004) 78 ALJR 616, no appellate court has authorised the manner in which the sentencing judge approached the task before him since Pearce was decided."
I am firmly of the opinion that it is appropriate to impose partially accumulated sentences in respect of the separate offences to acknowledge the different offending. The extent of the partial accumulation while meaningful noting the different offending would not be substantial.
Despite there being only two offences, I am of the opinion that this is an appropriate matter to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary to indicate the sentences that would have otherwise been imposed. I have dealt with the issue of partial accumulation.
In respect of both offenders the sentences that would have been imposed had separate sentences been imposed are: In respect of the charge of aggravated robbery contrary to s 97(1) of the Crimes Act a total sentence of 3 years 9 months with a starting point of 5 years; and In respect of the charge of aggravated car-jacking contrary to s 154C(2) of the Crimes Act a non-parole period of 2 years with a balance of term of 1 year making a total sentence of 3 years indicating a starting point of 4 years.

In respect of the offender Campbell-Betts

In respect of the offences to which the offender has pleaded guilty he is convicted.
The offender is sentenced to an aggregate sentence of 4 years 9 months with a non-parole period of non-parole period of 3 years and 2 months. The non-parole period will date from 23 April 2020 and will expire on 22 June 2023. The balance of term of 1 year 7 months (19 months) will date from 23 June 2023 and will expire on 22 January 2025.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
Although it is entirely a matter for the parole authorities I recommend that any release to parole be subject to supervision and that the offender receive appropriate counselling and treatment for alcohol and substance use.
The non-parole period is two-thirds of the total sentence which indicates a finding of special circumstances the reasons for which have been set out earlier in these reasons.

In respect of the offender Coe

In respect of the offences for which the offender has pleaded guilty he is convicted.
The offender is sentenced to an aggregate sentence of 4 years and 9 months with a non-parole period of 3 years 2 months. The non-parole period will date from 28 October 2020 and will expire on 27 December 2023. The balance of term of 1 year 7 months (19 months) will date from 28 December 2023 and will expire on 27 July 2025.
The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
Although it is entirely a matter for the parole authorities I recommend that any release to parole be subject to supervision and that the offender receive appropriate counselling and treatment for alcohol and substance use.
The non-parole period is two thirds of the total sentence which indicates a finding of special circumstances, the reasons for which have been set out earlier in these reasons.
The effect of these orders is that the total period in custody or total effective sentence for the offender Coe is 5 years 3 months (28 April 2020 to 27 July 2025) and the period in actual custody is 3 years 8 months (28 April 2020 to the earliest release date of 27 December 2023. The actual period in custody is approximately 69% of the total sentence which still indicates a finding of special circumstances. It seems to me that the co-offender would have a justifiable sense of grievance if Coe received a shorter non-parole period because of the partial accumulation on the sentence for the revocation of the ICO.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2021

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Judgment (11 paragraphs)

Cases Cited (10)