HIS HONOUR: Mohamed Chaker appears today for sentence in relation to two offences both committed on 7 August 2013.
The first offence in time is an offence of demanding property with menaces in company of Talat Taskin, who is yet to be sentenced, from victim Angelique Palinginis. The property in question is a Westpac bankcard. This offence contrary to s 99(2) Crimes Act carries the maximum penalty of 14 years imprisonment.
The second offence in time is an offence contrary to s 97(1) Crimes Act 1900 which carries the maximum penalty of 20 years imprisonment and that offence is an offence alleged to have occurred obviously on 7 August 2013 of robbing Mitchell Links of certain property to wit $100 in cash whilst armed with an offensive instrument to wit a 15 centimetre metal pointy object.
As I have earlier indicated the two offences were related in time. There is an agreed statement of facts which will suffice to be briefly summarised in my remarks. The victim of the first offence in time was a woman who was walking in William Street at about 4 am in the morning. She was approached by this prisoner and his co-accused, Mr Taskin, and they followed her as I understand it from one side of William Street to the other, eventually confronting her in the vicinity of the southern side of the intersection of William Street and Forbes Street in East Sydney.
This prisoner demanded money from her but she replied she did not have any. The prisoner again demanded cash and when she showed him her empty purse she walked away. The prisoner and his co-accused continued to follow her and apparently demanded her bankcard which was a Westpac bankcard and her PIN number. The prisoner took the purse of the victim from her, removed her Westpac card and walked to a Westpac ATM which was nearby. The willingness of the victim to hand over the bankcard in part would have arisen from the fact that she knew that she had no money to lose because the account balance was zero.
The prisoner returned to where the victim was standing with the co-accused. A request was made for her mobile phone. She said, "She didn't have it" and no other cards so the prisoner gave her purse back to her and the prisoner and his co-accused walked away. Obviously the presence of the two offenders and the demands made would have been intimidating to the victim, can be no doubt of that, but there were no specific threats made. The victim was uninjured. The victim did not report the incident immediately to police after it occurred, although that of course does not reflect adversely upon the victim and there is no victim impact statement.
Within a half an hour of the commission of that offence the prisoner along with Mr Taskin approached a man and a woman again near the corner of Forbes Street and William Street. On this occasion the prisoner had a metal spike protruding about 15 centimetres from underneath the sleeve of the upper garment he was wearing and this was seen by the victim. The prisoner demanded the male victim's wallet. The victim told the prisoner and Mr Taskin he did not have any money but ultimately produced his wallet. The prisoner removed a Commonwealth bankcard from the victim's wallet and gave the wallet to Mr Taskin. The prisoner then demanded the PIN number from the victim which was eventually provided. The prisoner suggested to the victim that he would be "in all sorts" ... of trouble it would seem if he did not give the correct PIN number.
The co-accused remained with the victim and his friend holding onto the victim's wallet. At the point the facts rather enigmatically suggests that the victim reacted towards the co-accused in some way intimidating him at that point. I mention in passing that Mr Taskin, who is part heard before me, is a man with a long history of mental illness and drug dependency. When the prisoner returned to where his co-accused was in company with the male victim and his female friend, he said he had been given the wrong PIN number and made a threat to stab the victim. The victim told the prisoner that he would take the prisoner himself to the ATM.
During this period of time the female companion of the male victim rang triple-0 and it would appear that the female was seen using the phone at some point. The prisoner apparently told Mr Taskin on seeing the female with her phone in her possession to run away down Forbes Street but the prisoner himself remained with the victim at the ATM. Whilst the victim was endeavouring to withdraw some money the prisoner became impatient apparently, he completed the transaction, eventually pushing the victim away and taking $100 in cash from the machine.
The two prisoners were identified on police investigation from CCTV footage, particularly Mr Taskin who was known to the police locally and the two men were later, on 8 August or 7 August it does not matter very much, were arrested at Mr Taskin's premises in Forbes Street and apparently they were wearing the same clothing as they had been wearing at the time of the contact with the respective victims. They provided very little information when interviewed and were eventually arrested and charged, firstly, in respect of the robbery matter and then subsequently in relation to the demand money with menaces in company matter.
This prisoner was born on 3 March 1993. He was thus at the time of the relevant offending as I understand it 20 years of age. His co-offender is almost 20 years older being born in 1972. His co-accused has a somewhat longer record but was not on parole as was this prisoner at the time of the offending. It is clear, notwithstanding what was put in the helpful submissions of learned counsel for the prisoner, that this prisoner played a leading role in relation to each offence. The facts that I read had him specifically making particular demands and when necessary undertaking relevant actions or transactions in respect of cards that were either provided to him or taken from the respective victims.
In relation to the robbery matter, it was this prisoner who was armed and it was this prisoner who made particular oral threats. There is little or no evidence in the facts available to me that this prisoner was directed by the co-accused. There is no specific reference to this prisoner being influenced by his co-accused beyond perhaps some hearsay representations by the prisoner about that matter. I accept of course this prisoner was considerably less mature than his co-accused and he has an intellectual disability which I will deal with in a moment which may make him "easily led" or prone to suggestion. But as the objective facts in the Crown case make clear it was the prisoner, as I said earlier, who took a leading role in perpetuating and executing the offences most of the time while the co-accused remained somewhat silently nearby or in company with one or other of the dramatis personae in the offences.
As I said the prisoner was on parole at the time of these offences. When he came into custody as I understand it on 8 August 2013 he was in custody, first of all I assume, bail refused in relation to these matters but then his parole was revoked by order of the parole authority on 29 August and the revocation of the parole was backdated to the date he came into custody. The balance of parole expired in early October 2014. The reason he was on parole was because of a conviction for armed robbery and related offences largely taken into account on a form 1 of dishonestly obtain financial advantage by deception or attempting to do so. These various offences were committed in early January 2012 and he was sentenced in relation to these matters at Parramatta District Court on 14 December 2012. The total sentence imposed for the armed robbery, taking into account the various matters on a form 1 which were very much related to the principal offence, was two years six months with a non-parole period of one year imprisonment. The armed robbery was committed on a taxi driver. The prisoner took from the victim who the prisoner had hailed to pick him up, the wallet of the victim, some cash, the victim's iPhone and various cards that belonged to the victim. The offences relating to either the attempt or the actual dishonest obtaining of financial advantage by deception concerned various negotiation by the prisoner with the use of one of the cards of the victim at particular places in the western suburbs of Sydney.
Prior to that conviction, which I note was recorded when the prisoner was only 18 years of age, the prisoner had a finding of guilt against him for armed robbery in the Children's Court in April 2010. For that matter he was placed on probation and he had other findings of guilt including entering inclosed lands and having goods in custody suspected of being unlawfully obtained for which he was sentenced to one month imprisonment in the Local Court in November 2011 or January 2012.
I have a letter from his mother which speaks of some aspects of his character, his slow mental development, his religious faith and offers of support to him on his release from custody as well as steps that his mother would endeavour to take to obtain employment for him on his release. She apologised to the Court for her inability to attend, she has a number of health issues and I understand her failure to attend is not through lack of interest in her son. I accept that she will continue to support the prisoner in the future.
I have a presentence report from the Probation and Parole Service which provides a deal of information obtained from the mother which is in conflict with the history provided by the prisoner. This was a report I requested as I understand it or it was requested when the matter first came before me in October 2014. I also have material relating to the circumstances of the revocation of parole. One of those reports notes that the prisoner had been compliant under supervision and had endeavoured to undertake a Positive Lifestyle Program but had to be withdrawn from that program unfortunately due to his limited intellectual ability which affected his capacity to engage in the program. That report prepared in August 2013 noted that at that time he appeared "stable" on parole but it is clear, as I understand the matter, that his offending arose in circumstances where he had in fact broken away from his family it would seem in the weeks before the offending and had commenced using prohibited drugs. His parole was recommended to be revoked in the report of 13 August, obviously prepared after he came into custody, because he had allegedly committed offences of a similar nature.
With regard to the presentence report there is not a need to go through it in detail, there is reference to his recent custodial performance and I will deal with that matter when I come to some submissions put on his behalf by his counsel. That report noted that whilst on parole he had been primarily living with his family who would continue to provide him with accommodation. His mother stated she had not noticed any indication of drug and alcohol use and attributed the prisoner's actions to his associations with friends that she believed had a negative influence upon him. This is possibly so in the case of Mr Taskin, as I say he has a complex history of mental illness and drug abuse but I could not, on the limited material available at this stage in Mr Taskin's case, conclude necessarily that he was the cause of the prisoner lapsing into drug usage.
The prisoner had given some history of his employment which was not in accord with information provided by the mother. I accept that the prisoner is not a particularly reliable historian in some respects not out of dishonesty but probably and primarily because of his intellectual disability. There is some history in the report that I discussed with learned counsel for the prisoner about his claims of drug usage particularly in custody, there is some Justice Health records that confirm his use of drugs in custody but I cannot believe whilst in custody that he has been able to spend the amounts per day that he claims to have spent, it would be impossible for him to have access to those funds based upon the information available to me. He is however being maintained on methadone and I note he expressed the motivation to address his substance abuse by going to a residential rehabilitation facility, that will be a matter for the parole authority. He claimed a problematic gambling dependency or addiction whilst he was at large before coming back into custody.
He told the Probation and Parole officer that his conduct was not planned which I accept. He said that he was endeavouring to obtain money to facilitate drug use. He acknowledged the level of fear his victims would have experienced but also sought to minimise his actions when he stated that one of his victims, I take it to be the first victim in time, was "just a sex worker", not quoting his words but quoting the words in the presentence report.
He is considered to be at medium risk of reoffending based upon the actuarial risk/needs assessment conducted by the Community Corrections Service but given the multitude of issues they identified one wonders whether this is entirely an accurate assessment. His needs are identified as being related to education, employment, his finances, his leisure and recreation, his alcohol drug problems, his emotional and personal problems, his attitude and his orientation. Given the fact that I am dealing with him now in relation to a third robbery style offence or offences in the period of four years, bearing in mind he committed these offences having only just been released to parole some months before the commission of these offence, one would have thought that the risks of reoffending, particularly if he began using drugs again, would be somewhat higher than "medium" but I respect the actuarial tool that was used.
The report also reflects upon the intellectual disability of the prisoner and I will deal with that evidence from more direct sources. Justice Health records confirm the prisoner has been diagnosed with Asperger's Syndrome. He experiences periods of insomnia, he is quick to anger and he needs assistance in relation to anger management, this is confirmed by his mother. The prisoner's incarceration has been a matter of some difficulty. It would be very difficult to accommodate him without compromising his safety. The assessment of the prisoner by the Corrective Services Community Corrections officer is that whilst he remained polite and cooperative he appeared to lose focus and was difficult to engage at particular times. The assessment noted the family support in the post release accommodation but his mother is concerned about his anger management and his poor choice of associates. It also noted his willingness to address substance abuse issues by way of residential rehabilitation to which I earlier referred and made recommendations in terms of future supervision in relation to particular matters.
The prisoner himself gave oral evidence before me. He apologised for his conduct, he expressed sincere regret for what he had done. He said in effect that he was "all over the shop" at the time of the offending. He had been in some dispute with his family and his drug taking had escalated. He said he had been using cocaine and crystal methylamphetamine with his co-accused. He said that he had been working in a family business installing air conditioning and was making good money before he relapsed. He said that he would like to continue his relationship with Mr James, the psychologist who reported on his behalf in this Court, and spoke about his methadone usage, he has reduced his methadone intake in custody from 60 milligrams to 30 milligrams and it confirmed the need, in his view, to go to a residential program. He believed that he did not get sufficient direction from the Parole Authority. I am not here to make a judgment in relation to that matter, I do not have sufficient information but it certainly would appear through no fault of his that he was unable to complete programs that may have been of assistance.
He was cross-examined about what he was spending on drugs whilst he was living with his parents but there seemed to be some conflict again as it emerged in the cross-examination between his activities and things that his mother had said in her reference.
When the prisoner was sentenced in 2012, the Court had available to it a report from Duffy Robilliard Psychologists under the hand of Debbie Case, who has a Master in Psychology and wrote a very informative report. She identified him as an intellectually disadvantaged person and specifically administered the relevant tests, the Wechsler Abbreviated Scale of Intelligence or (WASI) measure which identified him as being in the mild mental retardation range that is within a range of 50 to 55 to approximately 70. She said his intellectual incapacity would need to be taken into consideration as he was likely to be confused by lengthy complicated documents and the like and made recommendations about his treatment. The findings in relation to that report are specifically referred to in the Community Corrections report.
A more up to date report is from Mr James who gave a detailed report setting out the details of the prisoner's family background, education, use of alcohol and the like and notes the previous psychological assessment of Ms Case. He noted from her assessment that the prisoner's intellectual functioning was lower than 98% of individuals in his range group. His assessment of the prisoner was that whilst there was no evidence of sensory perceptual impairment cognitive impairment was noted and his cognitive functioning was felt to be no higher than borderline range.
Various risk assessments were undertaken and it was concluded that the prisoner was not "psychopathic". He was at a low to moderate risk of re-offending. He was at a moderate risk of committing future violent offences, having regard to his history of past offending, his previous drug abuse history, his psychosocial skills in dealing with frustration, impulsivity and his exposure to destabilising influences.
There are, however, a moderate range of proactive factors that may defend against committing future violent offences, including family support, the opportunity of regular work and, if taken up, a stable home environment.
The opinion of the psychologist was that the prisoner's difficulties arose in part because of a dispute he had with his family and his brother, that resulted in him leaving home without clothing or basic necessities and what emerged from his association with his co-accused.
His ability to understand the consequences of the offences was affected by his lower than average intelligence. His ability to understand the seriousness of the offences was probably limited to some extent by his intellectual disability. There was also the issue of drug use and its effect upon him.
He recommended a treatment program to address his clinical and identified risk management factors. His diagnosis was that the prisoner suffered from the following disorders: Intellectual disability of mild severity, amphetamine type substance use disorder and opioid use disorder of moderate severity and the recommendations he made included addressing stress management, drug rehabilitation, vocational education and social skills training, psychotherapy to address his impulsiveness and psycho-education to address a number of the other disorders.
It was noted in a supplementary report or letter of 14 October 2014 that individuals suffering mild intellectual disability experienced disability across conceptual, social and practical domains. It was indicated that,
"Within social interaction, Mr Chaker may have limited understanding of risk and social situations. His social judgment may be immature for his age and he is at risk of being manipulated by others."
I have taken into account all the evidence that has been presented to the court.
If I might just deal with the submissions as they provide a focus for the issues I need to address, I will deal firstly with the oral submissions and then turn to the very detailed and helpful submissions of counsel for the prisoner. It was submitted orally on behalf of the prisoner I should place no weight upon the matters reflecting infractions in custody. It was submitted that in fact this should be no surprise that he has developed what would appear to be something of a formidable record in this regard because of his difficulties of complying with the strictures of the custodial regime with his intellectual disability.
With regard to the history he gave to the Probation and Parole Service, where it conflicts with his mother's account of things, again this may be attributable to his intellectual disability. There were some elements of exaggeration and this was clearly so.
It was submitted that his intellectual disability reflected his difficulty of functioning on a day-to-day basis. It was also submitted to the court that I should, in sentencing him for the current offences, be guided somewhat by the measure of the sentence previously imposed in relation to the armed robbery matter, when he was dealt with in late 2012.
If I might deal with that last submission, the difficulty with it is that, firstly, that offence of armed robbery was not an offence committed whilst on parole, which is the case here. Secondly, the difficulty with that submission is in assessing an appropriate sentence. Whilst there are many common elements, of course, the intellectual disability remains with the prisoner as it did two years ago, I am sentencing the prisoner for two offences, not one offence, albeit linked in time, with the reality that he has a prior conviction as an adult for a similar offence, which of itself is a matter that ordinarily disentitles him to any particular leniency.
Although the Crown submitted that there was not a great deal to "disagree with", in the written submissions it noted a number of matters, particularly in its submission the need for some element of specific deterrence, having regard to the fact that the prisoner had committed similar offences to an offence for which he was on parole at the time of the offending.
The Crown took me to a decision of the Court of Criminal Appeal, Carrion v R [2007] NSWCCA 174, particularly the observations of Hislop J at [13]. There his Honour sought to briefly summarise matters relevant to the sentencing of an offender suffering from a "mental disorder or disability", in the context of longstanding principles suggesting that ordinarily lesser weight may be given to general deterrence, particularly where there is a causal link between the mental disability or the disorder and the offending.
I appreciate the Crown's reference to that authority but I should point out, jumping ahead of myself somewhat, that the learned counsel for the prisoner assisted the court by taking it to the decision of Hemsley, a 2004 decision of the Court of Criminal Appeal, particularly in the judgment of Sperling J where his Honour sought to summarise the relevant principles in a somewhat more precise fashion than that set out by Hislop J. I think that as helpful as both those judgments are, the most helpful judgment in this regard, in so far as it encapsulates the relevant principles, is the decision of the learned Chief Judge at Common Law, in DPP (Cth) v De La Rosa [2010] NSWCCA 194. There, at [177] his Honour pointed out, if I may quote,
"Where an offender is suffering from a mental illness, intellectual handicap or other mental problems, the courts have developed principles to be applied when sentencing ... They can be summarised in the following manner:
Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in sentence.
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence would be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.
It may reduce or eliminate the significance of specific deterrence.
Conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances, considerations of special deterrence may result in an increased sentence (citing particular authorities)."
His Honour went on to make some observations in relation to the relevant "antisocial personality disorder" with which this prisoner has not been diagnosed.
He went on to say at [178],
"I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity, it may, nevertheless, be appropriate to moderate the need for general or specific deterrence."
Counsel for the Crown also very kindly and properly took my attention to the guideline judgment of R v Henry (1999) 46 NSWLR 346, particularly the judgment of the learned Chief Justice, where at [162] his Honour set out what he described as the category of case which is sufficiently common for purposes of determining a guideline and then therein after at [163]-[165] set out the "guideline", which I take into account.
I bear in mind, of course, as everyone understands, that his Honour, in fixing the guideline, as the majority of the Court in adopting the guideline pointed out, there still existed a residual sentencing discretion in fixing the appropriate sentence, not the least explained and justified by the observations of the Court through the judgment of the learned Chief Justice at [10], where his Honour cited with approval the observations of Acting Chief Justice Mahoney in the unreported judgment of Lattouf, which I have taken into account.
I am also mindful of the factors, the Crown reminds me, of the matters identified at [169]-[170], where his Honour identified aggravating and mitigating factors that may justify a sentence below or above the range, particularly matters of increased intensity arriving from common features of armed robbery offences.
There was also reference by learned counsel for the Crown to some observations of the Chief Justice relating to the matter of personal choice in drug use and abuse and dependency. I am mindful of the fact that there was some debate amongst the judges of the Court about the issue of personal choice in this regard but, as I understand the judgment, the majority of the Court certainly accepted what Wood J said in the same judgment at [273] concerning the relevant principles that related to consideration of "drug addiction" or drug "dependence" in sentencing offenders for armed robbery and I have taken those matters into account.
Of course, the complexity of matters to which his Honour identified is to be seen in the context of the overlay of intellectual disability as it arises in this case.
It was conceded in the written submissions of Mr Chaker's counsel that the only appropriate sentence is one of fulltime custody and it was also submitted that relevant factors included the fact that the objective seriousness of each of the offences was in the lower range. The mental instability or disability of the prisoner may be not an appropriate vehicle for general deterrence and reduced his moral culpability, a matter relevant to the consideration of the Henry guideline.
It was submitted there may be a need to place greater weight on specific deterrence but there should be a finding of special circumstances with minimal accumulation of the sentences for each of the offences with which I am concerned and partial accumulation or perhaps even no accumulation upon the balance of parole that the prisoner has served.
With regard to the armed robbery matter, it was submitted the weapon used was not of lethal quality, such as a knife or a gun, which I accept. The use of a weapon was limited, which I accept. The amount of violence used in the robbery matter was limited to a push that was made when the prisoner was at the ATM with the victim, endeavouring to hurry him up to complete the transaction.
There were some threats of violence but they were not of a high intensity. There was a negligible value of property stolen and what was described as a "relatively low level of fear and impact on victims", noting the absence of victim impact statements. I appreciate, of course, in relation to both offences, that there would have been an impact upon the victims. They would have been confronted by two men, in an area of Sydney which, at the very least, is a dangerous area, notwithstanding the constant presence of sex workers in that area during the early hours of the morning. I make no criticism of the victims for their presence in this area at this time; they are fully entitled to go about their business and should be free from molestation from people, whether they have intellectual disabilities, drug dependency or not.
There was a clear lack of planning and sophistication, it was submitted and with that I agree, although it must be said between one offence and the other the prisoner somehow became armed with the metal spike, as it is referred to.
With regard to the demand property with menaces matter, it was noted there was no actual threat of violence, which is correct; no direct threat against the victim beyond that implicit from the presence of the two men; the period of contact with the victim was slightly longer than ordinarily would be the case in such circumstances, but the impact upon the victim was not substantial.
It was conceded in submissions, in relation to both offences, that the aggravating factors that arise, particularly arising under s 21A(2) Crimes (Sentencing Procedure) Act 1999 were the commission of the offences whilst the subject of conditional liberty, particularly parole, for an offence of armed robbery which it must be said is a significant aggravating factor.
The armed robbery matter was "committed in company", although, as an aggravating factor, it was not particularly intense. The co-accused, as I have pointed out, played more of a wallet holding role at one point and at one point, apparently, was "intimidated" by those that he was supposed to be minding.
It was submitted on behalf of the prisoner that the armed robbery included "multiple victims". The Crown did not make any comment about this but I could not conclude adverse to the prisoner than that is a relevant aggravating factor in this matter. There were two people present when the prisoner and his co-accused robbed the particular victim but the female companion seemed, on the facts available to me, to be incidental to the affair and she was not threatened or robbed at all as I understand it.
Mitigating factors that arise include the fact that the offences were not planned in the way that that word or that expression has been understood by the superior courts and I accept that as a mitigating factor. The offences were not part of organised crime, which is self-evident.
It was submitted that the prisoner was not fully aware of the consequences of his actions. I could not find that as a mitigating factor. I accept that he has a significant intellectual disability but it is clear by his own actions and words that he had a clear understanding of what he was doing.
I accept, however, that there was not "substantial loss" and I accept that the prisoner has expressed remorse, taking responsibility for his conduct in the manner contemplated by section 21A(3).
I also note the pleas of guilty as a relevant mitigating factor, although for that the prisoner receives the discreet discount of 25 per cent for the utilitarian benefit of the pleas of guilty in accordance with the guideline judgment of Thomson and Houlton.
In the written submissions references were made to the report of Mr Jones and the earlier report from 2012. Obviously, I accept those findings and references were made to Hemsley as I earlier noted.
It is submitted in this particular matter that there should be lesser weight to general deterrence, denunciation and punishment.
It is submitted and I accept that the intellectual disability does reduce his moral culpability and that there should be less weight given to general deterrence. He is not what is sometimes described as an "appropriate vehicle" for the message of general deterrence, to some extent.
I accept too that a custodial sentence will weigh more heavily upon him. However, it was submitted that the level of danger which the prisoner presents to the community may sound in specific deterrence and there must be some element of specific deterrence in this matter, as the Crown correctly pointed out, because of this course of offending over some period of time in relation to like offences and the fact that the prisoner has committed this offence in circumstances where he had been released to parole in relation to a similar offence only some months before.
I was taken to the High Court judgment in Muldrock [2011] HCA 39, which reflects upon the relevance of mental disability to moral culpability and I accept, of course, what the High Court has said about that matter and apply it in this matter.
Whilst there was material in the information from the parole authorities concerning the prisoner's gullibility, capacity for manipulation and the like, the submission made by the prisoner that he was in some way manipulated or encouraged by the co-accused, to my mind, is not sustained by the facts, although I accept that the use of drugs would have compounded the prisoner's capacity for calmly assessing the nature and gravity of his offending behaviour.
Reliance is also placed in the submissions of counsel for the accused on the observation in Muldrock at [54], that where the court is sentencing a "mentally retarded" offender, because of a capacity to reason as an ordinary person might, the issue of the "causal relationship between mental illness and the commission of the offence" is "less likely to arise" and I accept that analysis.
References were made in the written submissions to the prisoner's performance in custody and I have already commented upon that. This was not a matter of any particular specific comment by the Crown in any event.
It was conceded that the sentences to be imposed should not be wholly concurrent, in the written submissions of counsel, but noting the very short time and physical distance between the commission of the offences and the underlying common motivation of the offending, the two offences could be seen as aspects of a single course or very closely related course of conduct. I accept that latter submission.
With regard to the commencement date of any sentence to be imposed, noting the revocation of the prisoner's parole, the balance of parole being required to commence on 8 August and expiring on 7 October, which apparently robbed the prisoner of one day, it was submitted that the court should be very careful not to indulge itself in the process of "double dipping", discussed by Basten J in R v DW [2012] NSWCCA 66, particularly at [35].
This matter was discussed in considerable detail as well in the judgment cited by counsel for the prisoner of R v Callaghan [2006] NSWCCA 58, in the judgment of Simpson J. I accept her Honour's analysis, as that of Basten J, as I must. I must be very careful in noting the breach of parole as an aggravating factor not to double dip, so to speak, in consideration of the relevance of the balance of parole served by the prisoner to the commencement date of the sentencing exercise that I must undertake.
I also note in relation to this matter that the prisoner previously had a finding of special circumstances but that is not extinguished by subsequent events, given some common features to this exercise and the previous matter, where the prisoner did receive a very lenient non-parole period.
Although I do not propose to backdate the sentences I must impose upon the prisoner to the date of revocation of parole, in my view that would be absurd and reflect no recognition of the previous offending and no respect for the earlier sentence imposed by the learned sentencing judge and the implications of that sentence, particularly bearing in mind the prisoner was released to parole and he was expected to be of good behaviour. He should have expected to return to custody to serve the balance of the sentence if he was involved in any separate offending during the time of parole, even with his intellectual disability.
Having said that and in context of consideration of the double dipping issue, and taking all other relevant matters into account, including the matters that flow from the prisoner's mental disability, I propose to date the effective sentences I impose from 8 February 2014, that is six months after the commencement date of the period served by way of revocation of parole.
I accept the submission that the effective partial accumulation is to create a "special circumstance" pursuant to s 44 Crimes (Sentencing Procedure) Act. I accept that the prisoner's mental state is one that requires close monitoring and he definitely needs intensive professional assistance.
I accept that because of his relative youth, he was still only 20 years of age at the time of the offending and was 18 years of age when he committed the offence for which he was on parole at the relevant time, are relevant matters to the issue of special circumstances. His use and abuse of drugs, the need for professional direction and assistance in that regard is also another relevant matter to the issue of "special circumstances".
I note some of the matters available to him, including family support, were available to him when he was previously released to parole but, as I said, the issues that are relevant to the finding of special circumstances are not necessarily "extinguished" by subsequent events.
I have already pointed out the need for a discount to recognise the utilitarian benefit of the plea of guilty. I appreciate counsel sought to provide some judgments which provided what he submitted were "illustrative sentences". The illustrations he gave me, though, were not "comparative" cases. What they illustrated was that for more serious forms of armed robbery there were certain sentences imposed, in other cases confirmed by the Court of Criminal Appeal, that might suggest a range of sentencing beyond that appropriate in this particular case.
Taking all these matters into account in determining the sentence for the demand property with menaces in company matter, having regard, of course, to what I would regard as the vulnerability of the victim, whatever her occupation, I am of the view that the appropriate sentence to be imposed on this prisoner in relation to that matter should be a term of two years, six months imprisonment.
The sentence to be imposed upon this prisoner in relation to the armed robbery matter should be four years imprisonment.
The second sentence should be partially accumulative to the extent of six months upon the first, the first sentence, of course, being partially accumulative six months upon the period covered by the revocation of parole.
I would propose to fix a non-parole period that would permit the prisoner to be considered for release to parole two years after 8 February 2014. The fixing of the non-parole period takes into account, as I have pointed out, the partial accumulation of these sentences upon the balance of parole.
Thus, the sentences I will impose are as follows:
In relation to offence of demand property with menaces in company, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of 12 months to date from 8 February 2014, to expire on 7 February 2015.
The balance of sentence I fix is one year, six months. That balance of sentence will expire on 7 August 2016.
In relation to the offence of armed robbery, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of 18 months imprisonment to date from 8 August 2014 and expiring on 7 February 2016.
In relation to that sentence, I fix a balance of sentence of two years, six months, which will expire, on my calculation, on 7 August 2018.
The earliest date you will be eligible for release to parole will be 8 February 2016.
In relation to the first sentence, although the sentence in total is less than three years and I fix a non-parole period, I do not direct that you be released to parole at the expiration of that non-parole period because of the effectively subsequent sentences.
Mr Crown, any matters from you?
MURREY: No, your Honour.
HIS HONOUR: Any matters from you, Mr Chhabra?
CHHABRA: No, your Honour.
HIS HONOUR: Mr Chaker, the total sentence imposed upon you is four and a half years imprisonment. It is a non-parole period of two years. You will be eligible for release to parole, as I calculate it, on 7 February 2016. It will be a matter for the parole authority, of course, whether you are released to parole. That will depend upon your domestic circumstances and a range of other matters. But, despite all the difficulties you have, it is very important when you are released to parole, if you are released to parole, that you understand that if you commit offences whilst on parole you automatically will go back into custody. Thank you.
[2]
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: 26 May 2015