R v Corey Smith

Guideposts

1. The maximum penalties represent the legislature's assessment of the seriousness of the offences. In exercising its sentencing discretion, the Court must always arrive at an outcome that is just in all the circumstances. The following sentences and non-parole periods apply to the offences for which the Offender is to be sentenced: 1. for the offence of aggravated break and enter and steal with people there, the maximum penalty is 20 years' imprisonment with a standard non-parole period of five years' imprisonment. This clearly indicates that the community considers the offence to be one of great severity for which an Offender ought to be adequately punished; 2. in respect of the second group of offences, being possess unauthorised prohibited firearm in contravention of s7(1) of the Firearms Act 1996, the maximum penalty is 14 years' imprisonment with a standard non-parole period of four years' imprisonment. Again these penalties reflect the fact that the legislature considers these offences to be serious. It is not in the interests of the community for unauthorised persons to be in possession of prohibited firearms.

Form 1 or s166 matters

1. The Offender has requested that in sentencing on the principal charges the Court take into account further offences which the Offender has been charged but not convicted. The Offender has admitted guilt in relation to those Form 1 matters.
2. The charges on the Form 1's, of which there are three in relation to these sentences, are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principle offences to which the Form 1 attaches. The Court does so by giving greater weight to two elements which are necessary and material in the sentencing process. The first is the need for personal deterrence and the second is the community's entitlement to extract retribution for serious offences.
3. For the 2016 offending, the following additional charges take their place on the Form 1: 1. sequence 2, being take and drive a conveyance without the consent of the owner in breach of s154A(1)(a) of the Crimes Act which, if dealt with on indictment, carries a maximum penalty of five years' imprisonment, but if dealt with in the Local Court would be limited to its jurisdictional maximum of two years; and 2. sequence 3, being dishonestly obtain property by deception in breach of s192E(1)(a) of the Crimes Act which, if dealt with on indictment, carries a maximum penalty of ten years' imprisonment.
4. For the 2017 offending, the following additional charges appear on the Form 1 and attach to sequence 22: 1. sequence 18 being possess an unregistered prohibited firearm in breach of s36(1) of the Firearms Act which, if dealt with on indictment, carries a maximum penalty of 14 years' imprisonment; and 2. sequence 20, being not keeping a prohibited firearm safely in breach of s39(1)(a) of the Firearms Act which, if dealt with individually, carries a maximum penalty of two years' imprisonment and/or a fine of 50 penalty units.
5. The following additional charges appear on a second Form 1 in respect of sequence 23 of the 2017 charges, namely: 1. sequence 1 being possess a prohibited drug, being 0.04 grams of methylamphetamine, in breach of s10(1) of the Drug Misuse and Trafficking Act which, if dealt with individually, carries a maximum penalty of two years' imprisonment and/or a fine of 20 penalty units; 2. sequence 12 being possess ammunition without holding a licence, permit or authority in breach of s65(3) of the Firearms Act, which if dealt with individually, carries a maximum penalty of 50 penalty units; 3. sequence 19 being in possession of an unregistered firearm in breach of s 36(1) of the Firearms Act which, if dealt with on indictment, carries a maximum penalty of 14 years' imprisonment; and 4. sequence 21, namely, not keeping a firearm safely in breach of s 39(1)(a) of the Firearms Act which, if dealt with individually, would carry a maximum penalty of two years' imprisonment and/or a fine of 50 penalty units.

Procedural History

1. The 2016 offending was committed on 25 April 2016. The Offender was arrested and charged for the 2016 offending on 31 May 2017. On 21 March 2018 the Offender was committed for sentence in the District Court. The Offender pleaded guilty to the charges on 21 March 2018 in the Burwood Local Court at a relatively early stage of proceedings. This will be taken into account in assessing the utilitarian value of the guilty plea.
2. The Offender has been in custody for these offences for a period of 356 days, from 16 November 2016 to 18 November 2016 (2 days), where on 16 November custody had expired for an unrelated offence and from 18 July 2017 to 22 June 2018.
3. The 2017 offending was committed on 3 July 2017 whilst the Offender was on bail for the 2016 offending. The Offender was arrested and charged for this offending the following day. The Offender has been in custody for this matter since his arrest on 4 July 2017. On 6 July 2018, the Offender was committed for sentence in the District Court. The Offender pleaded guilty to the 2017 charges on 6 July 2018 in the Penrith Local Court at a relatively early stage which will be taken into account in determining the value of the guilty plea and any discount to be applied to sentence.
4. The evidence on sentence for the Crown comprised the following: 1. the Crown bundle for the 2016 offending (Exhibit A); 2. the Crown bundle for the 2017 offending (Exhibit B); and 3. the Crown submissions on sentence (MFI 1).
5. The Offender relied upon the following material: 1. a report by Patrick Sheehan, psychologist, dated 15 June 2018 (Exhibit 1); and 2. the Offender's submissions on sentence (MFI 2).

Agreed Facts

1. The parties have helpfully agreed upon the facts pertaining to the charges. The following are the agreed facts:

2016 Offending

1. Michael Sheekey and Maree Sheekey reside at 90 Cobham Avenue, Melrose Park with their four young children. The Sheekeys' residence is a two-storey house with all bedrooms situated on the top floor.
2. On the evening of Thursday 24 April 2016 Mr Sheekey parked his wife's black Mazda 3 on the street in front of his residence and locked the car before entering his house. Just before going to bed at about 10.30pm he checked that the sliding doors at the back of the house were locked.
3. That same evening the Offender and his co-accused, Cory Chamberlain, were partying at a mutual friend's place around Bidwill, New South Wales, along with Leanne Mather. The mutual friend referred to asked Ms Mather if she wanted to drive Chamberlain and the Offender around to scope out houses and said whatever they get, she will get half. Chamberlain and the Offender said they were looking for a "flash house". Ms Mather agreed and, as discussed, drove round in a yellow Mazda 2, the registration number of which is referred to in the agreed facts, with Chamberlain in the front passenger seat and the Offender sitting behind him in the rear passenger seat.
4. The trio eventually settled on Melrose Park and Ms Mather parked the car. Chamberlain and the Offender entered the Sheekeys' residence. Mather estimated that she was waiting in the car for about 40 minutes before Chamberlain and the Offender ran back to the car and got in. She saw that they were carrying a laptop and multiple handbags.
5. The following facts relate to the take and drive charge appearing on the Form 1. The Offender then got into Ms Sheekey's car, being the black Mazda previously referred to. Ms Mather drove off with Mr Chamberlain in the car and the Offender was following in Ms Sheekey's car. Both cars travelled a couple of streets away in Lancaster Street, Melrose Park. When the Offender stopped the Mazda car belonging to Ms Sheekey and returned to the car with Ms Mather, they left the Mazda behind as the Offender said, "It's red hot."
6. At about 6am Ms Sheekey noticed the back door was open. Two drawers beside the front door were open. Mr and Mrs Sheekey noticed the following items were missing from inside their house: 1. Mr Sheekey's wallet containing a number of identification and bank cards; 2. Mr Skeekey's keys; and 3. Ms Sheekey's handbag containing her wallet, identification and bank cards, a garage door remote and a key to the family's other vehicle.
7. Mr Sheekey then noticed the black Mazda was missing from the front of their house.
8. The following facts relate to sequence 3 on the Form 1, dishonestly obtain property by deception:
9. At about 4.19am on Friday 25 April 2016 the trio drove to the Caltex Service Station at Rydalmere where Smith entered and purchased three bottles of Coke and some cigarettes totalling $81.80. The Offender used a stolen ANZ credit card belonging to Mr Sheekey and he was captured doing so on CCTV. They then drove to the 7-Eleven at Emerton where, at about 5.01am, the Offender used Mr Sheekey's stolen ANZ credit card to make a purchase. He bought $80.97 worth of cigarettes. Again the Offender was captured on CCTV committing this offence. The total value of property dishonestly obtained by the Offender using Mr Sheekey's ANZ credit card was $162.77.

Investigation

1. At some stage that morning Ms Mather was directed to an underground car park in Carlisle Avenue, Mount Druitt where they disposed of some of the stolen items from the break and enter. Later Ms Mather told police where to find the items and, when searching the area Ms Mather described, police found an HCF medical benefit card in the name of Michael Sheekey in a drain underneath a grate.
2. Police reviewed the fraudulent card transactions and collected CCTV footage from the service stations visited. From this police identified the yellow Mazda 2, being a hire car which was in the possession of Ms Mather at the time of the offending.
3. On 19 May 2016 police offered Ms Mather the opportunity to participate in an electronically recorded interview. Ms Mather accepted and, under caution, detailed the offending as outlined above. On 2 August 2016 police offered the Offender the opportunity to participate in an electronically recorded interview, which he declined.

Background

1. The Offender, Corey Smith, date of birth 16 January 1993, is a nominee of the Finks outlaw motorcycle gang. At the time of these offences the Offender was subject to both firearms and weapons prohibition orders which were personally served on the Offender on 18 June 2017 and the Offender's residence was searched by police on that date. The Offender was subject to these orders due to previous convictions having been issued with a recent consorting warning notice being subject to AVOs and he was on bail for several charges.

Search

1. About 3.30pm on Monday 3 July 2017 police attended 8 Hertz Place, Emerton for the purpose of conducting a lawful firearms and weapons prohibition search. At the time the premises at the address were leased to Ms Ann Mitchell who had resided at the property for five years. The Offender had resided at the property since late 2016 and occasionally paid rent to Ms Mitchell.
2. Police approached the front door of the property and spoke to Ms Mitchell. Police informed her they wished to conduct a lawful search of the premises for firearms and Ms Mitchell allowed police entry to the premises. Three males were located within the rear bedroom belonging to the Offender. They were the Offender, Terrance Leroy and Eli Heigh. A further two males, Damien Morrison and Keegan Mitchell, were located in the back yard and tried to flee, but were detained. All five males were brought to the back yard and a video recording commenced.
3. Police spoke to the Offender and asked if he could direct police to his room within the premises. The Offender indicated that he resided in the rear room. This room appeared to be a verandah that had been closed in. Within the room were large cupboards down either wall with a mattress on the floor in the middle of the room. The room was separated from the hallway of the house via a sheet hung from the ceiling.

Search of Offender's Bedroom

1. Police commenced searching the Offender's bedroom. Located in a pink laundry basket on top of the cupboard on the left side of the room police located a .177 calibre rifle which was in plain view of any person walking into the room. Police immediately took a photograph of the firearm using a phone. The Offender, while sitting in the back yard, was cautioned and shown the photograph of the firearm. The Offender denied ownership or any knowledge of the firearm, claiming he had never seen it before.
2. A second firearm was then located slightly behind the pink laundry basket on top of the cupboard. This firearm was a .22 calibre rifle which was wrapped in a white Stihl brand bag and a yellow towel was wrapped around the bag. The Offender was again cautioned and shown the photograph of this firearm and he again denied ownership or knowledge of the firearm.
3. Police then pulled down the pink laundry basket and found within it a glass bowl containing a round of .22 ammunition. The Offender denied having ever seen this.
4. On a chest of bedside drawers within the room police located a small amount of crystal substance on the top of a set of scales as well as some personal items in the Offender's name, including his Bankcard, Medicare card and a bailee receipt. The Offender made full admissions that the crystal substance was ice and that it was in his possession for personal use.
5. A CCTV setup was found to be operating in the bedroom. All relevant items were seized and subsequently forensically examined.

Forensic and Ballistic Results

1. The crystal substance was identified as being 0.04 grams of methylamphetamine. The Offender's DNA was located on: 1. a trace swab taken from the ammunition loading area of the .177 rifle; 2. a tape lift taken from both sides of the yellow towel in which the .22 rifle was wrapped; and 3. a trace swab taken from the exterior surface of the .22 ammunition.
2. The findings of the ballistics experts were as follows: 1. the .177 rifle was identified as being a .177 calibre Shanghai China model 61 single-shot air rifle. This firearm had no serial number, was in working order and was shortened by way of a portion of the butt stock having been removed. This firearm was found to be a prohibited firearm for the purposes of the firearm legislation previously referred to; 2. the .22 rifle was identified as being a .22 long rifle calibre Lithgow model 1B single-shot rifle. The firearm had a serial number 206267, was in intermittent working order and was shortened by way of a portion of the butt stock having been removed. This firearm was found to be a prohibited firearm for the purposes of the legislation referred to; and 3. the round of .22 ammunition was identified as being a .22 long rifle calibre soft-struck cartridge bearing a Winchester head stamp and consisting of a cartridge case fitted with a priming compound and projectile. It was determined to be suitable for use in the .22 rifle.
3. Six test bullets were fired using the .22 rifle. A comparative microscopic examination of the six test bullets and the .22 ammunition revealed they had been fired by the same firing pin.
4. Subsequent police investigation confirmed that the firearms were both unregistered and the Offender was not the holder of a licence or permit which authorised the possession or use of firearms or prohibited firearms or the ammunition that was located in this matter.

Arrest, ERISP and Charging

1. On 4 July 2017 police attended the Hertz Place, Emerton address and arrested the Offender. The Offender was conveyed to Mount Druitt Police Station where he was introduced to the custody manager and entered into custody. The Offender was read and explained his part 9 rights under LEPRA.
2. The Offender spoke to both Aboriginal Legal Aid and an independent solicitor. After the advice, the Offender participated in an ERISP. The Offender made full admissions to possessing the methylamphetamine for personal use, but denied knowledge or ownership of the firearms. The Offender conceded he resided in the rear room and said he was aware of the implications and restrictions of the firearms and weapons prohibition orders.
3. The Offender consented to a forensic procedure, being a buccal swab, which was electronically recorded. The Offender was then charged.

Elements of Offences

1. Before turning to consider the objective seriousness of the offending in relation to the matters charged, it is helpful to first identify the elements of the offences.
2. With regards to the offence of aggravated break, enter and steal, the definition of a dwelling house includes any building or structure intended for occupation as a dwelling. Plainly, this being the house of the victims, it comes within that definition.
3. The serious indictable offence which was committed after the break and enter was larceny and the elements of that offence are, of course: 1. that the property stolen must belong to someone else; 2. secondly, it must be taken and carried away; 3. thirdly, it must be taken without the consent of the owner of the property; next, the property must be taken with the intention of permanently depriving the owner of it; 4. next, the property must be taken without a claim of right made in good faith; and 5. the property must be taken dishonestly.
4. Plainly, those elements of that offence are made out as acknowledged by the Offender in his guilty plea.
5. Breaking in terms of entering may be actual or constructive. Actual breaking is where the security of the house is infringed though there need not be any actual breaking of any object. The opening of an interior closed door, for example, is sufficient to meet that definition.
6. The circumstance of aggravation is that the Offender knows or in this case knew that there were persons in the place where the offending was to be committed. As I have already said, by his guilty plea, the Offender has acknowledged the elements of the offence.

Objective Seriousness

1. A predominant factor relevant to the sentence is the objective seriousness of the offence. It is not, however, necessary to articulate a determination by placing the offending along a hypothetical range. It remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence.
2. The starting points are the legislative guideposts including the maximum penalties and standard non-parole periods to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

2016 Offending

1. In the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 the Court, comprising Grove J, Spigelman CJ with Sully J agreeing, considered whether the prevalence of s112(1) offences involving larceny and the inconsistency of sentences imposed warranted the promulgation of a guideline judgment. The Court declined to specify a sentencing range or starting point for sentences in view of the great diversity of circumstances in which the offence is committed: [43] and [46].
2. A further significant consideration was the fact that the Crown elects to have the majority of Offenders charged under s112(1) and dealt with in the Local Court with the maximum penalty that can be imposed is two years' imprisonment: [8] and [144].
3. The Court outlined the appropriate considerations that are to be taken into account on sentence for offences of break, enter and steal. The Court expressed the guideline at [48] and [49], and I do not intend to recite it verbatim, however, I note that the Court stated that the sentencing court should regard the seriousness of the offence as enhanced and reflect that enhanced seriousness in the quantum of the sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is an accumulative effect upon the seriousness and the need for appropriate reflection: 1. the first matter is whether the offence was committed whilst the Offender was on conditional liberty, on bail or on parole. I note that when the offence was committed the Offender was the subject of s12 bonds for charge number H ending 308 and H ending 206, and a s9 bond for a charge ending 133 and a charge ending 994; 2. the offence is a result of professional planning, organisation or execution. It does not appear to me that this is so in this case as it appeared to be a relatively impulsive decision to leave the party attended by the Offender to commit the subject offence; 3. whether the Offender has a record of prior like offending. I note that in 2010 the Offender was convicted in relation to robbery in company. There have also been other incidences of break, enter and steal. So the answer to that consideration is, yes, the Offender has had prior record, particularly for like offences; 4. next is whether the offence was committed at the premises of the elderly, the sick or the disabled. None of those apply, although I do note that the family comprising the parents and children were at home at the time of the offending, thereby being the aggravating factor the subject and element of the offence; 5. next, the offence is accompanied by vandalism and by any other significant damage to property. There is no evidence of that in this case; 6. next, the multiplicity of offences. In sentencing for multiple counts, regard must be had to the criminality involved in each, and I refer to the decision of the High Court in Pearce v R (1998) 72 ALJR 1416; 7. next, the offence is committed in a series of repeating incursions into the same premises. The evidence does not establish there was any more than one incursion into the same premises and that it lasted for the period of time referred to in the agreed facts which, from recollection, was a period of about forty minutes. 8. next, the value of the stolen property of the victim, whether that value is measured in terms of money or sentimental value. In this case, the most valuable piece of property taken was the family car which was disposed of shortly after its removal from the premises. Other than that, of course, there was credit and other cards taken by the Offender which no doubt caused the victim some inconvenience but there is no suggestion of any sentimental value; 9. next is that the offence was committed at a time when absence was acknowledged on the part of the Offender as defined in the circumstances of aggravation pursuant to s105A(1)(f). It was likely the premises would be occupied, particularly at night. I note that this charge has proceeded on the basis that there was aggravation of the offending on the basis that there were people present at the time; 10. the next consideration per Ponfield is whether or not actual trauma was suffered by the victims. There is no suggestion that the victims were aware of the Offender's presence at the property until the next day when they observed the back door open; and 11. next, whether or not force was used or threatened. There is no suggestion of that in this case.
4. The Crown has submitted that the break and enter offence is an unremarkable example of this type of offence and satisfies the number of relevant guidelines in the Ponfield judgment. The Crown submitted that the break and enter offence falls towards the lower range of objective seriousness. It was submitted on behalf of the Offender that the break and enter offences fall towards the lower end of the range of objective seriousness as the offending did not fulfil all of the criteria in the Ponfield guideline judgment.
5. In my view, it is not necessary to fulfil all the criteria in order to elevate the level of offending beyond or above the low range. In my view, having regard to the range of criminal conduct which this offence covers, the offending in question falls at the high end of the low range.

2017 Offending

1. With respect to the firearms offences, the Court of Criminal Appeal in R v Farrell [2014] NSWCCA 30 discuss matters relevant to the objective seriousness of possess firearm offences. Relevant factors to this case include the following: 1. the nature of the weapons; 2. the circumstances attending the possession of the firearms, being that one of them was in plain view; 3. ammunition was also discovered at the residence; and 4. the weapons were found in an entirely unsecured state.
2. The Crown drew the Court's attention to the Offender's involvement with an outlaw motorcycle gang. The Crown noted that in Athos v R [2013] NSWCCA 205 at [56] that the protection of the community from criminals armed with firearms must be recognised by regarding the knowledge of an Offender that prohibited weapons are to be handed over to persons with criminal backgrounds as a substantial aggravating factor. The Crown did concede that they could not take this submission higher than an inference that the firearms would be used for criminal activity. The Crown submitted that the firearms offences were objectively serious. Plainly that is so, although there is no direct evidence as to the intended purpose or use of the firearms in this case.
3. The solicitor for the Offender submitted that both the firearms were non-repeating, non-self-loading, single shot weapons that required reloading on every occasion that it was discharged. It is conceded that the Offender was on bail for the aggravated break and enter offences when the firearms offences were committed. It was submitted on behalf of the Offender that the firearms offences fall below the mid-range of objective seriousness.
4. Having regard to those submissions and the agreed facts generally, I find the firearms offences fall at the lower end of the mid-range of objective seriousness.

Aggravating and Mitigating Factors

1. The Court may also have regard to any aggravating or mitigating circumstance particular to the Offender and the offending. The former are to be proven beyond reasonable doubt and the latter on the balance of probabilities.
2. The aggravating factors which are relevant and exist here with regards to the break and enter include the following: 1. the Offender has a record of prior convictions of a similar nature; and 2. the offence was committed in company.
3. The aggravating factor which is relevant with regards to the firearm offences is that the offence was committed whilst the Offender was on conditional liberty for the aggravated break, enter and steal offence.
4. The mitigating factors that exist here, of course, are that the Offender eventually, albeit at an early stage, pleaded guilty.

Subjective Case

1. The Offender is twenty-five years of age. He was raised in Queensland until the age of thirteen and then western Sydney thereafter. Both of the Offender's parents are of Aboriginal heritage. His parents separated when he was two years of age and he remained in the care of his mother. The Offender has only met his father on two occasions since that time.
2. The Offender has a total of ten half-siblings, five who lived with him during his childhood. His mother was occasionally employed and the family lived in public housing. The Offender's mother had several further relationships but the Offender did not have a positive male role model in his upbringing.
3. The Offender was not directly exposed to domestic violence or other trauma and had a stable home-life. However, the Offender and his brother misbehaved from a young age, escaping the house at night to engage in sensation-seeking behaviour. The Offender reported a range of behavioural problems such as fire lighting. The Offender was charged with arson offences as a child. Subsequently, the Offender's mother moved the family to Sydney.
4. The Offender first moved from the family home at seventeen years of age when his then girlfriend was pregnant. He lived with his partners' family for a period of two years before returning to the family home. The Offender stayed in Sydney when his mother returned to Queensland. A number of the Offender's siblings have followed a path of crime, drug use and imprisonment.
5. The Offender attended primary school in Brisbane but had poor conduct and struggled to develop literacy. The Offender attended a high school in St Marys until the end of year 9. The Offender described a negligible employment history, with his only role being unpaid horse-riding which he maintained for a period of six months in his mid-teens. In his interview with the psychologist, the Offender expressed an intention to gain employment in the future but his plans remain vague and undeveloped.
6. The Offender has been associated with antisocial groups since his early development. He began associating with more serious organised crime associates at the age of twenty, being a peripheral associate or a nominee of an outlaw motorcycle gang for the past eighteen months.
7. The Offender has never married but has had several intimate relationships, his longest lasting for about four and a half years, ending when he was aged nineteen years. The relationship ended when he discovered his partner was unfaithful. The Offender's most recent relationship persisted for one and a half years. That relationship ended with hostility and the Offender was convicted for stalk/intimidate and AVO offences.
8. The Offender currently has two children. The Offender understood that having a more involved life with his children will require him to achieve a stable and conventional community life. When asked of this, the psychologist noted the Offender said, "If I have to choose, then I choose my children." That is plainly a commendable attitude.
9. The Offender commenced use of cannabis at the age of sixteen and amphetamines from the age of seventeen. At the age of nineteen he started smoking methylamphetamine with his use escalating to daily use. Upon entering into custody for a period, he desisted from drug use but relapsed. The Offender reported that during 2017 he independently chose to cease his drug use. However, on the date of his arrest he had smoked methylamphetamine with associates in his home when he was offered the drug. I note that one of the related or backup charges relates to being in possession of a small quantity of a prohibited substance.

Deprived Upbringing

1. Generally, the Offender's background could be described as deprived. The circumstances that an Offender has been raised in a community surrounded by alcohol/drugs abuse and violence may mitigate the sentence because his moral culpability is likely to be less than the moral culpability of an Offender whose formative years have not been marred in that way. The effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every case.
2. A background of that kind may leave a mark on the person throughout life and compromise the person's capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending. Attributing full weight in every case is not to suggest that it has the same relevance for all of the purposes of punishment. Social deprivation may impact on those purposes in different ways.

Previous Convictions

1. Section 21A(2)(d) of the Crimes (Sentencing Procedure) Act provides the aggravating factors to take into account in determining the appropriate sentence. It includes the Offender has a record of previous convictions. I have already made mention of some of those.
2. In the matter of R v McNaughton (2006) 66 NSWLR 566, the Court of Criminal Appeal sat as a bench of five to determine how a sentencing judge should treat prior criminal record. In approaching the sentencing exercise in this matter, I have had regard to the seven principles enunciated by the Court of Criminal Appeal in that decision.
3. Of course, the Court is required to explain the manner in which the prior record has been taken into account. Here, the relevant previous offending includes robbery in company, larceny, break and enter dwelling house, steal and break for which the Offender was given a s9 bond for two years which was later breached, resulting in a period of imprisonment of seven months.

Remorse

1. Evidence of contrition or remorse in respect to the subject offending is also a relevant consideration. Evidence of remorse must be assessed in context. Remorse is but one feature of post offence conduct which an Offender may seek to rely upon as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.
2. Here, the evidence of remorse is the early guilty plea and his statements of remorse. However, they do show a limited insight into his offending.

Rehabilitation

1. Having given careful consideration to the evidence which informs this matter, I find that the prospects of successful rehabilitation are guarded. That evidence includes the opinion of Patrick Sheehan who notes that the Offender shows some ambivalence to changing his life in order to be a positive role model for his children.

Re-Offending

1. Consistent with my finding concerning rehabilitation, I find the likelihood of re-offending is guarded. I have also had regard to the opinion in this matter by Patrick Sheehan who noted that his trajectory throughout development and early childhood had been to gravitate towards social environments where his problems are less of an impediment, namely, within antisocial groups. This regrettably increases the need for specific deterrence.

General Principles

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a court may impose a sentence on an Offender as follows: 1. punishment. To ensure that the Offender is adequately punished for the offence or, to state it in another fashion, to ensure that the sentence reflects the criminality involved in the offending; 2. deterrence. There is no doubt that the conduct of this Offender, in breaking into private domestic premises whilst the family are at home, calls for a sentence which will provide general deterrence as well as specific deterrence, particularly in light of the Offender's history of similar offending; 3. protection, that is, to protect the community from the Offender. That is a real consideration in the context of this case where at the time of the break and enter the family were at home and asleep; 4. rehabilitation. There is no doubt that the Offender requires the assistance of rehabilitation; 5. accountability. He must be accountable for his actions and the sentence I will impose will strive to achieve that outcome; 6. denunciation. The Court denounces, without hesitation, the conduct of this Offender and others like him who break into the homes of innocent members of society to deprive them of their possessions when they are sleeping and at home. That type of conduct cannot be tolerated by the courts or by society, and it calls for strict denunciation; and 7. recognition, that is, recognition of the harm done to the victim of the crime and the community. Fortunately in relation to the firearm offences, there are no known victims, although the community at large is obviously affected by an unauthorised person having access to unauthorised weapons. It poses the potential for harm to the community. In relation to the break and enter offence, fortunately, as the family remained asleep, there was no harm done to them personally but, nevertheless, there is a need for recognition that the family no doubt were disturbed, that is affected, by the conduct of the offending.

Instinctive Synthesis

1. Sentencing is ultimately an exercise in instinctive synthesis, as the Court of Criminal Appeal recently reminded sentencing judges in the matter of Conte v R [2018] NSWCCA 209. It involves the consideration of the purposes for sentencing in the context of weighing the objective gravity of the offending with the Offender's subjective case.
2. In the present case, there are considerations which work for and against the Offender. The Court, in coming to the sentence to be imposed, has measured offending in light of the goalpost considerations which apply against the various features in the subjective case, including the Offender's upbringing, addiction and mental health.

Proportionality

1. The common law has long recognised that the punishment must fit the crime. That is also consistent with one of the purposes for sentencing, to ensure adequate punishment. The proportionality principle requires, however, that the sentence should neither exceed nor be less than the gravity of the crime, having regard to the objective circumstances. There must be a reasonable proportionality between the sentence and the circumstances of the crime. The relevant importance of the objective facts and the subjective features will of course vary in every day and due weight must be given to the objective circumstances as the Court engages in what I have referred to as a process of instinctive synthesis.

Imprisonment

1. I must be satisfied, having considered all possible alternatives, that no sentence, including non-custodial sentences, other than imprisonment is appropriate. In this case, the Crown contends that the threshold under s 5 has been met and that a term of imprisonment is warranted. It is conceded on behalf of the Offender that this threshold has been met.
2. I find that, after considering every alternative, imprisonment by way of fulltime custody is called for and is appropriate.

Guilty Plea

1. In accordance with s 22 of the Crimes (Sentencing Procedure) Act, the Court must also, in passing sentence, take into account the guilty plea and may impose a lesser penalty than it would otherwise have imposed. Of course, the guilty plea in the context of this case must be weighed against the strength of the Crown case, which I consider to have been solid, comprising CCTV footage in relation to the break and enter offending, and possession of the firearms in relation to the firearm-related offending.
2. In this case, the Offender pleaded guilty to the 2016 offences on 21 March 2018 in the Local Court, which would be considered an early stage. On the 2017 offences, the Offender pleaded guilty on 6 July 2018 in the Local Court, at again a relatively early stage. It was submitted on behalf of the Offender that a discount of 25% was indicated. The Crown agreed with that submission.
3. In the circumstances, I find that a discount in sentence of 25% would be just and reasonable, and I have applied that discount to the sentence to be imposed. I find that such a discount will not result in a lesser penalty which is unreasonably disproportionate to the nature and circumstances of the offences.

Special Circumstances

1. It is agreed that special circumstances exist so as to justify a departure from the statutory ratio for parole. However, the degree of special circumstances was contentious between the parties.
2. The Crown accepts that special circumstances exist as there is a need for an extended period of supervision in the community. The Offender submitted that special circumstances would be found as the Offender required extended supervision in the community but additionally there was a risk of institutionalisation with this particular Offender. The Crown submitted that the risk of institutionalisation was premature with regard to the Offender, and I accept that submission. Nevertheless, I do find that special circumstances exist.

Consistency

1. The purpose of having regard to statistics is to attempt to achieve consistency in sentencing, not to ensure some mathematical or numerical equivalence. In this case, I have had regard to the statistics of sentences for offences of these types and I am satisfied that the sentence to be imposed does not offend the principle of consistency which the statistics strive to achieve. I do note, however, that the use of statistics in any other fashion should be approached with caution, as they plainly are a blunt instrument. The Court has no knowledge of the particular circumstances, in particular, the subjective cases that presented in each of the matters the subject of the statistics.

Totality, Concurrency and Accumulation

1. In considering the principle of totality, the Court must have regard to the sentencing options of concurrency and accumulation, or a combination thereof. It is necessary for this sentence to reflect the total criminality of the offending. The sentence must be just, having regard to sentencing principles and not crushing. As will be apparent in a moment, I have adopted an approach to sentencing which incorporates both concurrency and accumulation in order to ensure that the overall sentence is not crushing but does reflect the overall criminality of the offending for which the Offender is today to be sentenced.

Commencement Date

1. Taking into account time spent in prison prior to today, the sentence will commence on 1 July 2017.

Discount

1. The discount to be applied to the sentence, as previously stated, is 25%.

Standard Non-Parole Periods

1. There are standard non-parole periods applicable to some of these offences. The standard non-parole period represents the non-parole period for an offence in the middle range of the objective seriousness. I note the provisions of s54A of the Crimes (Sentencing Procedure) Act.
2. The Court is required to set the standard non-parole period as the non-parole period for these offences unless it determines that there are reasons for setting a non-parole period that is longer or shorter than the standard. The purpose of s54B(3) is to incorporate the full range of well-established sentencing principles into the determination for departing from the specified standard non-parole period. Subsection (c) specifically requires the Court to take other subjective or objective factors which affect the relative seriousness of the offending into account.
3. I note the standard non-parole period specified in the table in the Crimes (Sentencing Procedure) Act should be understood as having been specified for a mid-range offence where the Offender was convicted after trial. This particular matter follows a plea of guilty by the Offender, which is one of the matters to have regard to under s21A and which would justify a departure from the standard non-parole period.
4. The other relevant consideration in this particular case is that the standard non-parole period for the s112(2) offence is five years, which, when taken in conjunction with the standard non-parole periods for the possess unauthorised prohibited firearm, two counts, four years each, would give rise to a base standard non-parole period of some thirteen years, which would, in my view, be crushing in the circumstances. Those factors warrant a departure from the standard non-parole period in this case.

Aggregate Sentence

1. I have turned my mind to the question of whether an aggregate sentence would be appropriate. Given the temporal disparity between the offending, I have decided that it is more appropriate to sentence the Offender in respect of each of the charges but to allow some degree of concurrency to avoid an overall sentence which is disproportionate to the level of criminality involved.
2. Mr Smith, you are convicted of the three offences set out on the Crown case summaries, namely, aggravated break, enter and steal, secondly, possess an unauthorised prohibited firearm, and next, possess an unauthorised prohibited firearm, being the second count of the same offence.
3. You are also convicted of the two related offences which are on the 166 certificate in the firearm offences, that is, possess prohibited firearm in contravention of a firearms prohibition order that was in force and the same offence in relation to a different weapon.
4. In all, there will be convictions on five counts.
5. For the offence of H6516216/22, being possess an unauthorised prohibited firearm in breach of s7(1) of the Firearms Act, and taking into account the charge sequences 18 and 20 on the form 1, you are sentenced to a term of imprisonment of three years which, after a discount of 25%, becomes a term of two years and three months with a non-parole period of one year and four months. That sentence did commence on 1 July 2017, with the non-parole period expiring on 31 October 2018 and the head sentence expiring on 30 September 2019.
6. For the offence of H number ending 161 sequence 23, being possessing unauthorised prohibited firearm in breach of s7(1) of the Firearms Act, and taking into account charge sequences 1, 12, 19 and 21 on the form 1, you are sentenced to a term of imprisonment of three years which, after a discount of 25%, becomes a term of two years and three months with a non-parole period of one year and four months. The sentence for that charge will commence on 1 April 2018, with the non-parole period expiring 31 July 2019 and the head sentence expiring 30 June 2020.
7. For the related charge, being sequence H ending 161 sequence 16, being possess a prohibited firearm in contravention of a firearms prohibition order that was in force, you are sentenced to a fixed term of eight months which, after a discount of 25%, becomes a term of imprisonment of six months commencing 1 October 2019 and expiring 31 March 2020.
8. For the related charge, being sequence 17 on charge number H ending 161, being possess a prohibited firearm in contravention of the firearms prohibition order, you are sentenced again to a fixed term of eight months which, after a discount of 25%, becomes a term of six months commencing 1 January 2020 and expiring 30 June 2020.
9. For the offence of charge number H64642459 sequence 13, being aggravated break, enter and steal in breach of s112(2) of the Crimes Act and taking into account the charges 2 and 3 on the form 1, you are sentenced to a term of imprisonment of five years and four months which, after a discount of 25%, becomes a term of four years with a non-parole period of two years. The sentence will commence 1 July 2019 with the non-parole period expiring 30 June 2021 and the head sentence will expire 30 June 2023.
10. This means that you have been sentenced to an effective term of six years imprisonment with a non-parole period of four years. The sentence is backdated to commence on 1 July 2017 with the non-parole period expiring 30 June 2021 at which time you will be eligible for parole. It will be a matter for the parole authority as to whether you get parole at that time or some later time. They may also impose conditions upon parole which you must comply with.
11. I direct that a copy of the report by Patrick Sheehan accompany the Offender's warrant of commitment.

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 May 2019