R v CARR

District Court of NSW|2022-12-02

REMARKS ON SENTENcE

The offender appears for sentence in respect of a multiplicity of very serious offending. On one set of papers is a single charge of Aggravated Break Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act, 1900. A plea of guilty was entered in the Local Court on 19 May 2021 and that plea was adhered to at the sentence hearing at the Wagga Wagga District Court on 2 December 2022. The offender is therefore entitled to the full 25% discount utilitarian value of the plea of guilty on that matter.
In respect of the other set of papers there is a total of eight matters on an indictment. In respect of those matters the offender was committed for trial from the Wagga Wagga local Court on 5 May 2021. Pleas of guilty were entered on 21 July 2022 following a ruling I made as to the admissibility of evidence. I will return to this aspect later in these remarks.
The matters in the order in which they appear on the indictment are as follows: 1. Aggravated Break Enter and Commit Serious Indictable Offence (Larceny), contrary to s 112(2) of the Crimes Act, 1900; 2. Break Enter and Steal contrary to s 112(1) of the Crimes Act; 3. Steal Motor Vehicle contrary to s 154F of the Crimes Act; 4. Armed Robbery contrary to s.97 of the Crimes Act; 5. Aggravated Break and Enter and Commit Serious Indictable Offence (Damage to Property), where the aggravation is deprivation of liberty, contrary to s 112(2) of the Crimes Act; 6. Damage to Property contrary to s 195(a) of the Crimes Act; 7. Take and Drive Motor Vehicle Without the Consent of the Owner, contrary to s 154A(1) of the Crimes Act, and 8. Aggravated Break Enter and Steal contrary to s 112(2) of the Crimes Act.
I understood it to be the joint position of the parties that the offender is entitled to a discount of 10% for the utilitarian value of the pleas of guilty in respect of those eight counts on the indictment. Independently I agree that that is the appropriate discount for the eight matters on the indictment to which pleas of guilty were entered on 21 July 2022.

Admissibility of Statement of David Willis

By way of notice dated 8 April 2022, which was amended on 11 April 2022 the Crown made application to the court to admit pursuant to section 67 of the Evidence Act 1995 first-hand hearsay, maker not available. That Notice set out the Crown's intention to lead evidence of Mr David Willis, the victim in counts four and five on the indictment by leading the entire contents of the statement made by him to police on the date of the offences.
Argument was heard by me on 13 July 2022 on this issue. The accused had previously made application for trial by judge alone, which was consented to by the Crown. On 13 July 2022 the Court was very busy including taking submissions in a judge alone trial (R v Harris - reasons published [2022] NSWDC 301). In this matter the parties indicated they required or at least it was highly desirable that reasons be given the following day as to the admissibility of the statement of Mr Willis.
The disputed evidence was admitted. Written reasons were delivered for that decision on 14 July 2022. At the hearing of the argument the previous day neither party favoured me with any authorities. In the course of my reasons, I extracted from the decision of The Court of Criminal Appeal in Sio v R [2015] NSWCCA 42. I realised soon after delivering the decision that that decision was overturned by the High Court in Sio v The Queen [2016] HCA 32. In that decision at [64] the Court (French CJ , Bell, Gageler, Keane & Gordon JJ) said (footnotes omitted): "Section 65(2)(d)(ii) requires a trial judge to be positively satisfied that the representation which is tendered was made in circumstances that make it likely to be reliable notwithstanding its hearsay character. One category of circumstances that has been recognised as warranting a relaxation of the exclusionary effect of the hearsay rule was identified in Wigmore on Evidence as those circumstances that "are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed"; in other words, circumstances that of themselves tend to negative motive and opportunity of the declarant to lie."
Their Honours went on to say at [69]-[71]: "In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that: 'evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.' That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted. When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character."
This issue (i.e. the decision of the High Court overturning the decision of the Court of Criminal Appeal) was raised with the parties before the sentence hearing commenced on 2 December 2022. The parties were given the opportunity to take instructions and it was indicated to the parties that if they wished to re-argue the matter they could do so. Neither party sought to do so. In any event, I note at [51] and following of my decision given on 14 July 2022 I go into some detail addressing the issue of the circumstances in which the representations by Mr Willis were made. Applying the decision of the High Court my decision would not have been any different. This was indicated to the parties on 2 December 2022 at the sentence hearing after they indicated that they did not wish to revisit the decision of 14 July 2022.

Facts

The facts of all matters were before the court by way of agreed facts. I will initially go to the single count where the offender was committed for sentence. The victim, Mr Guy Weidemann lived in a single story house in Glenfield Park, a suburb of Wagga Wagga attached to the dwelling is a single garage with a lockable roller door at the front and a single wooden lockable door at the side. The garage is used by the victim to store his collection of motor cycles, one of which was a Yamaha YZ 250 Trail bike worth about $4000.
The victim went to bed at about 9pm on 19 February 2020 The doors to the house and both doors to the garage were locked. The victim's utility vehicle was parked in a carport immediately adjacent to the garage. Between about 9:30pm on 19 February and about 6:20 AM on 20 February 2020 the offender entered the yard and opened the door of the garden shed in the backyard. The offender took a flat related screwdriver from a screwdriver set from within that shed as well as a chisel. He then used the screwdriver and chisel to pry open the side door of the garage and gained entry. The facts recite the damage to the extent of $400 was occasioned to the door. The offender entered the garaged and opened the roller door from the inside. He then rolled the Yamaha motorcycle out of the garage and took it away. The motorcycle has not been recovered.
The victim discovered the break-in as he left for work at about 6:30am on 20 February 2020. He also noticed the shed in the backyard had been opened and that the chisel and screwdriver were missing from the shed. The police were informed. DNA testing from the handles of the screwdriver and chisel returned a result with profiles consisted with the offender. The offender was arrested on 20 May 2020 following a police pursuit.
So far as the assessment of seriousness of this matter is concerned the offending occurred at residential premises either late at night or in the early hours of the morning. The occupants were home, which given the hour is hardly surprising. This relates to the factor of aggravation pleaded in the charge. However, the offence was committed in the home of the victim enlivening s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, 1999. Some damage was occasioned to the side door of the garage and property to the value of about $4000 was taken. Larceny is at the cusp of being a serious indictable offence. Noting what was said by Adams J in Hunter v R [2011] NSWCCA 144 at [52], I assess this matter at being moderately below mid-range.
I now turn to the matters on the indictment. Count one occurred at the Settler's Village aged care facility at Estella, a northern suburb of Wagga Wagga near the Charles Sturt University. Between 1 AM and 2 AM on 16 May 2020 this offender and an unknown co-offender entered the staff room of the facility by opening a closed rear door of the building. The offender "rifled" (to use the word used in the facts) through two lockers belonging to staff and stole two handbags, car keys, wallets and mobile phone. The two victims Louise McDermott and Catherine Sosoli both of whom worked at the facility found the handbags and other items in the car park of the facility.
Ms McDermott had property to the value of $1200 stolen, which included an Apple iPhone, various cards, a wallet, handbag and a set of keys. The handbag was recovered at the scene. Ms Sosoli had property to the value of $250 stolen which included a handbag, a car key and assorted keys, medication and a wallet. Some of the property including the car key was located at the scene.
CCTV footage from the facility depicts two males walking around the entrance of the village, one of whom is wearing a hoodie and baseball cap with distinctive marking on the peak. The males have possession of a torch on the CCTV.
Noting the location of the offending, the limited amount of property taken, noting that a good portion of it was found at the scene, the nature of the serious indictable offence, I am of the opinion this matter is well below mid-range but not at the bottom of the range.
Counts 2 and 3 on the indictment relate to events at the home of Mr Paul Williams at Estella. On 15 May 2020 Mr Williams parked his 2009 Suzuki Swift motor vehicle in his driveway at an address in Franklin Drive Estella. He left the car keys on a table in the dining room. He left the rear sliding door to his home closed but unlocked. A short time before 2:50 AM on 16 May 2020 this offender entered the victim's home via that rear sliding door. Once inside the offender picked up the car keys. Other than the car keys all of those items were found on the lawn in the rear yard. The offender used the car keys to steal the vehicle which the offender drove to the food works supermarket at Forest Hill. Forest Hill is a suburb of Wagga Wagga some 10 km to the east near the airport.
Noting the nature of the offending so far as the brake enter and steal matter is concerned including, the time at which it occurred, the nature of the breaking and entering and the nature of the property taken the matter is below mid-range. I note that count 2 was committed in the home of the victim enlivening s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act. The larceny of the motor vehicle is an unremarkable (meaning typical) example of that offence and if I were required to be more specific the matter is below mid-range but not significantly so.
Counts 4 and 5 on the indictment relate to the most serious offending for which the offender appears for sentence. Both are serious examples of the offences. I will expand on an assessment of the criminality after I deal with the facts relating to these matters.
At about 3am on Saturday, 16 May 2020 the victim Mr David Willis arrived at the FoodWorks store (a supermarket) at Forest Hill, a suburb of Wagga Wagga 10 kms to the east of the city and where the airport servicing Wagga Wagga is located. The victim Mr Willis worked as a delivery driver and was delivering bread to the supermarket. As he drove into the supermarket car park, he saw a Suzuki Swift motor vehicle drive out of the car park. Mr Willis parked his track near the side loading dock. While Mr Willis was in the rear of the truck obtaining the bread the offender drove back into the car park and parked next to the truck. The offender got out of the Suzuki, walked over to Mr Willis and said, "give me everything you've got." The offender was carrying a large knife in his hand and he pointed it at Mr Willis. Not surprisingly Mr Willis was frightened and believed he was going to be stabbed. He handed over his mobile phone. The offender said, "give me everything, give me your wallet." Mr Willis said that he did not have his wallet on him.
The offender told Mr Willis to let him into the store. Mr Willis did as the offender directed believing if he did, he might not get stabbed. Mr Willis opened the side door to the store and deactivated the alarm. The offender told Mr Willis to take him to the safe. Mr Willis did not know the location of the safe, so they walked to the front of the store to a cigarette display. The offender directed Mr Willis to open the display, but Mr Willis told the offender he did not have the keys to the cabinet.
In the office they located a large old safe. Still fearing for his life, Mr Willis believed that the quicker the offender found what he was after the quicker he would leave him alone. Mr Willis observed a fire extinguisher and suggested that he use that to break open the cigarette display cabinet downstairs. They returned to the cigarette display and Mr Willis used the fire extinguisher in an attempt to open the cigarette cabinet but could not get the lock to break.
The offender found a hammer behind the counter and told Mr Willis to use the hammer instead of the fire extinguisher. He did so but was still unable to open the display cabinet. The offender continually threatened to stab and kill Mr Willis the entire time that this was going on. They returned to the office area upstairs where the offender found some keys. The keys did not fit the cigarette display cabinet. The offender then asked Mr Willis where he lived and demanded that Mr Willis give him money from his bank account.
Mr Willis retrieved his wallet from the cabin of the truck and walked to an ATM which was at the front of the store. Fearing for his safety Mr Willis withdrew five lots of $400, totalling $2000 and handed that money to the offender. As Mr Willis was withdrawing the money the offender continued to make threats that he would stab and kill Mr Willis. The offender demanded that Mr Willis get into the car.
The offender told Mr Willis that they were going to another bank. Mr Willis feared that he would be killed if he did not comply with the offender's demands and got into the car. He was seated in the front passenger seat and the offender was driving. While the offender was driving, he directed Mr Willis to set up card-less cash on his phone. Mr Willis did not know how to do this, and the offender told Mr Willis what to do. During the journey the offender said, "just relax, you will get a holiday out of this traumatic experience. The bank will give your money back." While attempting to download the card-less cash app on his phone the offender said, "if you're trying to call the police, I will take you to a house and put a gun in your mouth."
During the drive from Forest Hill to Kooringal, another suburb of Wagga Wagga the offender was travelling west along Kyeamba Avenue at high speed when he lost control of the vehicle at the intersection of Vincent Road. The offender drove through the intersection across the verge and into a barbed wire fence. The vehicle became stuck on the fence.
The offender and Mr Willis were able to remove the vehicle from the fence. The offender drove to the Kooringal Malll. Once at the mall the offender made Mr Willis withdraw cash from an ATM. He was able to withdraw his remaining cash totalling $1550. Once the offender realised that was all the money that Mr Willis could withdraw he walked back to the vehicle telling Mr Willis to call the police. The offender then drove away and Mr Willis rang the police and reported the incident.
The total taken from Mr Willis was $3,550. Mr Willis described the vehicle as being an older style white Suzuki Swift. He described the offender as being male, around 18 years old, about 5'9" tall with slim build, moderately dark skin, a weak looking jawline, and a bit of stubble on his top lip and a bit on his chin.
Given that the count 4 is an offence of Armed Robbery some assessment in the context of the Guideline Judge in R v Henry & Ors (1999) 46 NSWLR 346 will need to be made. The use of the knife is an element of the offence but it was a significant weapon. The offender is a young offender. It could not be said that he has a limited criminal history. I accept that there was limited planning. There was a very real threat of very real violence. A number of threats were made and the victim would have regarded those threats as very real. The victim was in a vulnerable position. The amount of money taken was substantial, and indeed would have been very substantial so far as Mr Willis was concerned. In ordinary circumstances the matter is within the Henry Guideline. However, the offence occurred over a considerable period of time and in two different locations. While the factors set out at [162] of the "Henry Guideline" might initially suggest the matter is within the "Guideline" given the extended period of time over which the offending occurred the matter in my view is more serious than an armed robbery contemplated by the Guideline. The nature of the weapon is taken into account in determining the seriousness of the matter.
The entire incident at the supermarket at Forest Hill was captured on CCTV. The offender was wearing a black hoodie, a black baseball cap with a distinctive logo on the peak, gloves that were grey on the palms and dark green on the back. The knife blade was approximately 6 inches long and serrated.
The offending to which count 5 relates is a serious example of Break and Enter and Commit Serious Indictable Offence. The offender was armed with a weapon, namely a reasonably substantial knife. The facts recite that the offender threatened to stab or kill the victim on a number of occasions. The damage was occasioned clearly with the intention of stealing property. The offending took place over a considerable period of time. However, by far the most serious aspect of this offence is the deprivation of the liberty of Mr Willis, which continued for some considerable period of time. The CCTV footage shown at the time of the hearing relating to the Notice of Motion to admit the statement of Mr Willis shows the offending very graphically. Count 5 is well within the mid-range. In coming to this conclusion, I remain cognisant of the decision in Hunter v R.
The Suzuki vehicle was found in the middle of Harris Park, Turvey Park, another suburb of Wagga Wagga. A torch, which was not in the vehicle at the time it was stolen, was found under a seat. Testing of that torch revealed a DNA consistent with that of the offender.
When the offender dumped the Suzuki motor vehicle he attempted to set fire to the vehicle in the front seat. The fire did not take hold but there was damage done to the seat of the vehicle. This relates to the damaged property charge, which is count 6 on the indictment.
There is no detail given on the facts of the value of the damage occasioned to the front seat of the Suzuki motor vehicle. The facts indicate damage was occasioned to the front seat and accordingly the extent of the damage would be a few hundred dollars. In the circumstances the matter is well below mid-range. The offender is charged with Damage to Property contrary to s 195(a) of the Crimes Act and accordingly I ignore that the damage was occasioned by fire - see Di Simoni v The Queen [1981] HCA 31; 147 CLR 383.
Harris Park is located short walking distance from the offender's residence. Police conducted a canvas of the area linking both locations. CCTV footage was retrieved from a house in Scherger Place which shows the offender walking from the direction of Harris Park towards his house in Philip Avenue. The footage also shows the offender removing gloves from his hands as he walks by. Police located those gloves in a garbage bin belonging to a house directly opposite the offender's home. Those gloves were examined and DNA profile consistent with the offender was found on those gloves.
Count 7, that is the charge of Take and Drive Conveyance Without the Consent of the Owner contrary to s 154A of the Crimes Act related to the offender and co-offender taking a Nissan Navara vehicle registered BS 42 ZA from the front yard of a house in Springvale, a suburb of Wagga Wagga to the south of the city, sometime after 3:40 AM on 17 May 2020. The vehicle was driven to The Rock, a small community on the Olympic Highway.
The charge relating to the taking and driving of the Nissan motor vehicle is an unremarkable example of that type of offence, noting that the vehicle was recovered some few hours later apparently without damage. It was however, used to convey the offender and a co-offender to The Rock in order for them to commit the offence to which count 8 relates. The matter (that is the Take and Drive charge) is below mid-range.
In the early hours of the morning of 17 May 2020 the offender and co-offender went to the FoodWorks supermarket store in the township of The Rock. After forcing his way into the store by pushing in a window the offender took quantities of cigarettes and alcohol and placed them in a metal rubbish bin that was located outside the store. The stocktake revealed that 689 packets of cigarettes and 60 different bottles of alcohol were taken. The total value of the goods taken was $26,375, which is a substantial amount of property. The incident was captured on the shops security CCTV system. The offender is seen wearing the same hoodie and is depicted in the CCTV footage from the shop in Forest Hill. The Nissan vehicle was located at about 9:40am on 17 May 2020 in Fernleigh Road Ashmont.
On 20 May 2020 police saw the offender riding a blue coloured trail bike in Bourke Street Tolland with a pillion passenger. A short vehicular and foot pursuit followed and the offender was apprehended inside the rear yard of 238 Bourke Street. The pillion passenger was found to have on him 14 different packets of cigarettes the brand names and other details are set out at paragraph 46 of the agreed facts. I infer that these were part of the proceeds of the Aggravated Break and Enter offence at The Rock.
So far as count 8 is concerned, the offender gained entry to the supermarket by pushing in a window. That would have created inconvenience and expense to the proprietor noting the hour and that arrangements for short-term security would have been required, as well as the attendance of a glazier. The value of the property taken was quite substantial. The irresistible inference is that none of the property has been recovered. The premises were commercial premises and the offending occurred at a time when it could not reasonably have been expected that anyone would be in the premises. The factor of aggravation pleaded is that the offender was in company. Larceny is at the cusp of being a serious indictable offence, but as I have said the value of the property taken was substantial. In the circumstances noting particularly the quantity of property taken this matter is slightly below mid-range.
The events of 16 and 17 May 2020 can accurately and appropriately be described as a crime spree. A good deal of the offending, particularly that to which counts 4 and 5 relate is individually very serious indeed and collectively the offending is very serious. Citizens such as Mr Willis should be able to go about their work without fear of becoming victims of the substantial criminality in which this offender engaged. No doubt Mr Willis would have been absolutely terrified. I note the material that was tendered on the issue of the admissibility of his statement dealt with earlier in these remarks.
Despite what is undoubtedly a very strong subjective case there will need to be an element of general deterrence factored into the sentence imposed in this matter.

Criminal History

The offender was born on 27 November 2000, and accordingly was 19 years of age at the time of the offending and is just 22 at the time of sentence. The offender has a lengthy history of Break Enter and Steal type offences in the Children's Court. I understood that Mr Keller of counsel for the offender relied upon the Children's Court record as going to the issue of the "Bugmy factors".
The offender has been convicted in the Local Court for weapons offences, dealing with the proceeds of crime, resist police, escaping police custody driving in a manner dangerous in the course of a police pursuit and failed to stop and assist after an impact causing injury. Even ignoring the Children's Court record (for the purpose of determining the use to be made of the record in determining the appropriate sentence) the offender has a record that does not entitle him to any particular leniency. It was my understanding that this was the joint position of the parties at the sentence hearing.
However, the offender was subject to conditional liberty at the time of the offending. Accordingly, the factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is enlivened.
I accept the submission advanced by Mr Keller on behalf of the offender that the juvenile history is consistent with an offender to whom the "Bugmy factors" apply so far as the subjective case is concerned.

Subjective Case

No oral evidence was called from or on behalf of the offender. However, a volume of written material was provided. Exhibit 1 is a report from Ms Julie Dombrowski, psychologist, Exhibit 2 is a letter from the offender's grandfather and Exhibit 3 is a letter from Maayu Mali, a residential facility at Moree.
Going first to Ms Dombrowski's report she noted at paragraph 8 that there were no obvious indicators of psychosis. The offender was however subdued when he was interviewed. The offender was released from custody in July 2019, experienced a depressed mood, and started to regularly use cannabis, heroin and methamphetamine. He had been living with his grandfather who asked him to leave the house because of his erratic behaviour when intoxicated. The offender was homeless at the time of the offending. The offences were committed to fund his ongoing substance use and living expenses.
So far as the offending behaviour is concerned the offender told the author of the report "I'm sorry for it…at the time I was going through a lot and was lost…I know it was the wrong thing to do…I didn't mean to cause trauma or harm to anyone". Given the decision of Lloyd v R [2022] NSWCCA 18 the offender is entitled to a finding that he is remorseful. This is also one of those matters where the plea of guilty can be an indication that the offender is remorseful. The offender entered pleas of guilty after my initial decision to admit the evidence of Mr Willis and did not seek to have that decision revisited. That fortifies me in the decision that the offender is entitled to a finding that he is remorseful. Ms Dombrowski also notes that the offender expressed frustration with his own decision-making that led to his offending.
At paragraph 10 of the report the author notes that the offender was returned to prison in April 2022 after breaching his bail conditions. The report also notes that the offender did not report any significant difficulties adjusting to prison routine. Given the number of custodial sentences imposed in the Children's Court this may indicate that there is some danger of the offender becoming institutionalised.
From paragraphs 11 and continuing the background of the offender is set out. He grew up in Wellington in central New South Wales with his mother and older brother. He had sporadic contact with his father of whom he has vivid memories of physically assaulting him and his mother. His mother used heroin and methamphetamine on a regular basis. He regularly went without adequate food or parental supervision for the first four years of his life, at which age he was taken into care.
The offender experienced multiple changes in foster carers over a six-year period until his maternal grandfather became his primary carer when he was 11 years of age. He developed a close relationship with his grandfather's brother. This person died of cancer when the offender was 14. His grandfather also struggled with his own heroin use and it seems was unable to provide much in the way of caregiving after his grandfather's brother's death. The offender commenced offending shortly afterwards and received a number of custodial sentences in the Children's Court.
The offender sought out contact with his mother throughout his childhood and early adulthood. He continues to struggle with feelings that his mother had rejected him. The offender gave an account of his mother continuing to use heroin and methamphetamine. She too has been incarcerated for offending. He avoids contact with his father but maintained contact with his grandfather who remained supportive.
In that regard I note that the maternal grandfather, the author of the letter, Exhibit 2, has been present at court supporting the offender on each occasion this matter has been before the court. I am confident that the offender will retain the support of his grandfather.
Returning to the report, Exhibit 1 on sentence, the offender attended school until year nine and attended 13 different primary schools because of the changes in foster care placements. There were disciplinary issues with the offender at school. He has limited literacy skills.
At paragraph 16 of her report Ms Dombrowski records that the offender gave a history of commencing to use cannabis at 12 and methamphetamine at age 14. He has regularly smoked cannabis. He has also smoked heroin from age 17 when not able to access methamphetamine. This history of substance use is lamentably consistent with histories particularly from indigenous offenders of which I read or heard when sitting as the resident judge at Dubbo.
The offender is indigenous. Given the background, the experiences and deprivations suffered by the offender in his formative years, undoubtedly the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a significant extent, reducing the moral culpability of the offender to that extent. As I observed in the decision of R v Naderi [2022] NSWDC 534 at [101]: "As I understand the principles, consideration is extended to an offender by reducing the moral culpability of an offender to whom the principles apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years a person has a distorted or unrealistic and/or an incomplete or limited or very little if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the "Bugmy factors" are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender."
I have dealt with numerous offenders including indigenous offenders in country and regional New South Wales over a period of many years in two different jurisdictions. I have lived in a number of those centres. I am very much aware of the impact of exposure to violence, drug abuse and deprivation in formative years has on young people. I have seen it first hand all too often.
Ms Dombrowski notes at paragraph 15 that the offender has felt disconnected from his indigenous culture. The offender has completed the 12 week residential course at the Maayu Mali facility in Moree. The offender apparently enjoyed the cultural specific aspects of that program and found it particularly helpful in better understanding his patterns of use and his risk of relapse. Clearly the offender has experienced significant issues with substance abuse.
Given his age and his history of chronic substance abuse clearly there will need to be a lengthy period of supervision upon the offender's eventual release to ensure that he receives the appropriate level of supervision and treatment for his substance abuse issues. This of course justifies a finding of special circumstances in my view. Added to that is of course that the offender will need significant assistance in proper reintegration into the community upon his eventual release after what will have to be a significant sentence of imprisonment. I note that Ms Dombrowski at paragraph 21 of her report sets out that the offender will require further treatment for substance abuse.
Ms Dombrowski says at paragraph 23 of her report, "Mr Carr is at a crossroads in his life and the decisions he makes today, and opportunities he is afforded today, particularly regarding his substance use and associations, will influence his offending trajectory into the future. He is at risk of developing a cluster B (dramatic/erratic) personality disorder with antisocial features in the absence of timely intervention and with further exposure to a criminal subculture". This very much fortifies me in the opinion I expressed in the paragraph immediately above about the offender requiring assistance in proper reintegration into the community upon his eventual release.
The offender was diagnosed with attention deficit hyperactivity disorder (ADHD) at the age of 6. The offender denied any ongoing difficulties with concentration or restlessness at the time of the preparation of the report. The offender was also diagnosed with oppositional defiance disorder (ODD). He also gave an account of being diagnosed with depression by psychiatrist in 2022. He has been taking medication which he believes to be a mood stabiliser for some few months.
It occurs to me it is appropriate that a copy of Exhibit 1 should be forwarded to the Department of Corrective Services with the warrant that issues after sentence has been pronounced.
Noting the offending, the criminal history, and the contents of Exhibit 1 I am unable to find on balance that the offender is unlikely to reoffend. Essentially for those same reasons I am not able to find on balance that the offender has good prospects of rehabilitation. Be that as it may there are at least signs. I did not understand counsel for the offender to advance a submission that such findings could be made. The offender has the support of his grandfather and at least has expressed some willingness to undertake rehabilitation noting his successful completion of the course at Moree. The offender very much needs to be very much aware that he is at a crossroads and that upon his eventual release he will need to make some positive decisions about the course on which he embarks and engagement with appropriate agencies with the appropriate level of counselling and treatment.
In Exhibit 2 on sentence the offender's grandfather expresses his continuing support for the offender and a willingness to assist him upon his release. He also sets out that the offender was sexually assaulted by his mother's boyfriend. This issue does not appear to have been raised by the offender with the author of the report Exhibit 1. Given the other experiences of the offender in his formative years I am prepared to accept that that assault occurred and adds the many other issues that go to enliven what have become known as the "Bugmy factors". The history of a sexual assault by a mother's partner or member of extended family is likewise all too common in my experience. It is also common within my experience that people such as the offender are reluctant to speak of sexual abuse.
Exhibit 3 on sentence confirms the offender's participation in the course of rehabilitation conducted by Maayu Mali in Moree. That is a facility operated by indigenous persons for indigenous persons and has a culturally appropriate focus. From my understanding the facility enjoys quite good success.

General Remarks

Both parties provided written submissions or an outline of submissions. The Crown's submissions were prepared by the solicitor assisting the learned Crown Prosecutor who appeared. If the court acceded to some of the submissions contained in the Crown's written submissions the court would make an error in either double counting or taking into account something which is an element of the offence. I note in this regard the judgment of Howie J in Elyard v R [2006] NSWCCA 43 at [39], namely: "It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands."
I have otherwise given reasons for findings as to the seriousness of each of the matters in the course of dealing with the facts. I did not understand Mr Keller counsel for the offender to submit that the principles enunciated in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] were enlivened. However, clearly the mental health issues referred to in Ms Dombrowski's report are all part of what I have already described as a strong subjective case.
In oral submissions, Mr Keller appropriately emphasised the significance of the "Bugmy factors" so far as the offender's subjective case was concerned. It was put that the offender expressed that if "Pop (reference to his grandfather) can do it, so can I". In his letter (Exhibit 2) the offender's grandfather makes reference to his own criminal record and how that is now "well and truly behind him". I do not resile from my earlier findings that I am unable to find on balance that the offender is unlikely to re-offend, but at least the offender has indicated an intention to lead a law abiding life upon release. I accept that his grandfather is genuine in wanting to assist the offender in this regard.
Mr Keller submitted that the court backdate the commencement of the sentence to 11 February 2021. However, noting the sentences imposed in the Local Court I am of the opinion that the commencement date should be 11 June 2021. My note and memory is to the effect that Mr Keller submitted that would still be within the court's discretion. I did not understand the Crown to dissent from that as a commencement date for the sentence being within the court's discretion. I will commence the sentence on 11 June 2021, but in doing so will need to factor in partial accumulation into the finding of special circumstances.
Counsel for the offender also reminded me in oral submissions of the effect of the Covid-19 pandemic. Lockdowns are longer and more frequent, face to face visits are severely restricted, the access outside agencies have to correctional centres is far more limited and inmates are required to isolate on being moved from one institution to another. All of this goes to make custody more onerous and goes to the issue of special circumstances.

General remarks

In passing sentence, I will need to properly consider and give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. 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 the circumstances of this case noting the very significant offending, the maximum penalties and the standard non-parole periods in matters where they apply clearly there must be a sentence of imprisonment imposed in respect of all matters. I did not understand counsel for the offender to submit otherwise.
Clearly, this is a matter that is appropriate for an aggregate sentence. If there were separate sentences imposed there would need to be some level of partial accumulation to recognise the different offending. That level of partial accumulation would need to be quite meaningful in respect of counts 4 and 5. Some accumulation would be required to take account of the different victims and the difference offending. If separate sentences were imposed the sentences in respect of counts 3 and 6 on the indictment (theft and damage of the Suzuki motor vehicle) would be concurrent. Proper regard would need to be paid to the principal of totality.
The criminality in this matter is very significant, particularly in respect of counts 4 and 5. The offender is to be sentenced in respect of a total of nine offences, 5 of which carry maximum penalties of 20 years imprisonment, with three of those offences carrying standard non-parole periods of 5 years.
I will set out the sentences that would have been imposed if separate sentences were imposed in tabular form.

H75305808 Count Offence and section Brief Description Maximum penalty and standard NPP if applicable Indicative sentence 1 Aggravated Break Enter and Steal - s 112(2) Crimes Act, 1900 19-20 Feb 2020 - home of Guy Weidemann at Glenfield - larceny of motor bike 20 years SNPP 5 years NPP 1 year 10 months, balance of term 1 year 2 months, totally sentence 3 years - starting point 4 years

H74946514 - Indictment 202009532 Count Offence & section Brief Description Maximum Penalty and Standard NPP if applicable Indicative sentence 1 Aggravated Break Enter and Steal - s 112(2) Crimes Act Break in at Settlers Villages - bank cards, keys and personal items 20 years - SNPP 5 years NPP 1 year 8 months, balance of term 12 months, s/p 3 years 2 Break Enter and Steal - s 112(1) Crimes Act Franklin Drive, property of Paul Williams, wallet and duffel bag 14 years imprisonment, no SNPP Total sentence 2 years 8 months - s/p 3 years 3 Steal Motor Vehicle - s 154F Crimes Act 2009 Suzuki Swift - EEK-42K - property of Paul Williams 10 years - no SNPP Total sentence 18 months - s/p 1 year 8 months 4 Armed Robbery - s 97 Crimes Act David Willis - $3,550 and mobile phone 20 years - no SNPP Total sentence 5 years 4 months s/p 6 years 5 Aggravated Break Enter and Commit Serious Indictable Offence - Intentionally Damage to Property - - Deprive David Willis of his liberty - s 112 Crimes Act FoodWorks - Forest Hill - office door, cigarette cabinet damaged - Mr Willis deprived of his liberty 20 years - SNPP 5 years NPP 3 years 4 months balance of term 2 years - s/p 6 years 6 Intentional Damage to Property - s 195(1)(a) Crimes Act Damage to 2009 Suzuki Swift the property of Mr Williams 5 years - no SNPP 10 months (s/p 12 months) 7 Take and Drive Conveyance without Consent of Owner - s 154A(1)(a) Crimes Act 2008 Nissan Navara - BS-42-ZA - property of Dennis Scutt 5 years - no SNPP 10 months -s/p 12 months 8 Aggravated Break Enter and Steal - s 112(2) Crimes Act Foodworks, The Rock - cigarettes and alcohol 20 years - SNPP 5 years NPP 2 years 4 months b.o.t 1 year 5 months total sentence 3 years 9 months - s/p 4 years 3 months

Orders

The offender is sentenced to an aggregate sentence of 10 years with a non-parole period of 6 years 3 months
The non-parole period is to date from 21 June 2021 and will expire on 20 September 2027
The balance of term on parole is to commence on 21 September 2027 and will expire on 20 June 2031
The offender will be eligible for release at the expiration of the non-parole period and I recommend that release.
The sentence indicates a finding of special circumstances, the reasons for which were given within these reasons. The non-parole period is 62.5 % of the total sentence.
I direct that a copy of the report of Ms J Dombrowski, exhibit 1 on sentence be forwarded to the Department of Corrective Services with the relevant warrant.

Amendments 22 December 2022 - Amended name of DPP solicitor. Sorry!! 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: 22 December 2022

At a glance

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Judgment (11 paragraphs)

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Cases Cited (12)

Cited By (1)