HIS HONOUR: In the case of Mr Doolan, if you would just mind standing up, Mr Doolan, you are convicted in relation to each of the three offences. You are sentenced to a total term of imprisonment four years, nine months, and I propose to fix a non-parole period of in effect two years, six months. That effective sentence will date from the date you came into custody, which is as I understand it 8 June 2015.
For the supply matter on 22 May, you are convicted and sentenced to 12 months' imprisonment. For the ongoing supply matters, you are convicted and sentenced to a total of two years, three months' imprisonment. I fix a non-parole period of one year for that offence. For the armed robbery matter, you are convicted and sentenced to three years, nine months' imprisonment. That sentence is accumulative upon the non-parole period for the ongoing supply and for that matter, I fix a non-parole period of one year, six months to date from 8 June 2016. You will be eligible for release to parole on 7 December 2017 but that will be a matter for the Parole Authority. Just take a seat. I will make those formal orders shortly subject to any matters of correction and matters of detail.
Matthew Joseph Costello appears today for sentence in relation to an offence of being an accessory after the fact to armed robbery committed a Cootamundra on 8 June 2015. The armed robbery was committed by the man who sits with him at the moment in the dock, Justin Doolan. The facts in relation to the two offenders in respect of this offence and the offence to which Justin Doolan pleaded guilty to of armed robbery are common. I will come back to the facts in a moment.
The maximum penalty for this crime is 14 years' imprisonment. The crime has no standard non-parole period. I am also required to sentence the prisoner for three offences on a s 166 certificate. They are one of dealing with property suspected to be the proceeds of crime and a further crime of dishonestly obtaining property by deception, which has separate criminality to the accessory after the fact to the armed robbery crime, concerning the use of a Commonwealth debit card and ultimately the purchase of goods to the value of $43.97 at a service station on the Illabo Road, Junee.
The third offence on the s 166 certificate is intimately bound up with the accessory after the fact to the armed robbery offence. It concerns the offender driving a motor vehicle whilst his licence was suspended. The maximum penalty for that offence is 18 months' imprisonment or 30 penalty units, and a disqualification on conviction for a minimum period of two years. I am assuming for the purposes of the sentencing proceedings, having not been advised to the contrary, that the two other matters on the s 166 certificate when dealt with summarily would have a maximum penalty of two years. They are very minor offences of their type.
The prisoner pleaded guilty to the committal for sentence matter at the Local Court and was committed for sentence in relation to that matter and for all intents and purposes, his plea of guilty was entered at the first reasonable opportunity. He thus receives a 25% discount upon the otherwise appropriate sentence reflecting the guideline judgment of the Court of Criminal Appeal from 1999 of Thomson and Houlton v R. I will come back to the evidence in his case, some of which of course relating to the facts is common to that of Mr Doolan.
Justin James Doolan appears today for sentence in relation to three offences for which he was committed for sentence, although they come forward in two separate files. There is the armed robbery committed at Cootamundra on 8 June 2015 to which I earlier referred. That carries a maximum penalty of 20 years' imprisonment and has no standard non-parole period. The prisoner has been in custody since his arrest in relation to that matter. Presumably whilst in custody, he was brought to the Wagga Wagga Police Station to be interviewed in respect of an ongoing or past police operation that ensnared apparently quite a large number of drug users and dealers in Wagga Wagga.
He has pleaded guilty at the Local Court and again in this Court to two indictable offences. One of ongoing supply of a prohibited drug in the period of time, as I understand it, between 22 April 2015 and 21 May 2015, an offence contrary to s 25A Drug Misuse and Trafficking Act which carries a maximum penalty of 20 years imprisonment and/or 3500 penalty units. He is also charged with a further 'supply' of methylamphetamine occurring the day after the 30 day period expired on the ongoing supply charge. The ongoing supply charge of course required proof of three or more supplies of prohibited drugs other than cannabis for financial reward over a fixed 30 day period. That supply offence, contrary to s 25 of the Drug Misuse And Trafficking Act, carries a maximum penalty of 15 years' imprisonment and/or 2000 penalty units. It has no standard non-parole period and is intimately in many respects bound up with the course of conduct with which the prisoner was concerned in respect of the more serious ongoing supply offence. The prisoner pleaded guilty at the first reasonable opportunity and was committed for sentence. He, as with Mr Costello, receives a 25% discount upon the otherwise appropriate sentence for the utilitarian value of the plea of guilty.
To deal with the facts of the matter that is common to both offenders, although they are liable in different ways as the pleadings indicate, the prisoner Costello was driving a vehicle in the Junee area with his co-accused a passenger in the car. They travelled to Cootamundra to meet a friend of Doolan's and remained in the Cootamundra area. What precisely they were doing in Cootamundra other than driving around and perhaps ingesting prohibited drugs is not entirely clear.
What is entirely clear, however, is that at about 5.30am, the prisoner Mr Costello and his co-accused Mr Doolan drove into a laneway in the vicinity of the Cootamundra newsagency. Mr Doolan got out of the vehicle and had a knife in his possession, a knife that he told me that he had in his possession for some form of protection related to his dealing in "ice". Mr Costello remained in the vehicle. The pleading makes clear that Mr Costello was unaware that Mr Doolan was going to rob anybody, let alone the Cootamundra newsagency.
Mr Doolan went into the newsagency, he put what is described as a "dark covering over his face" and confronted the unfortunate owner of the newsagency, the victim Mr Ruxton. He said, "Open the cash register, open the cash register," pointing a knife at the victim. The victim opened up the cash register of the business and removed $200 in cash in $20 notes. The victim threw the money onto the counter. Doolan picked it up, turned and ran. The victim rang the police. Doolan returned to the car where the prisoner Costello was waiting and told him "go" and the car drove off through a number of streets of Cootamundra towards Junee along the Olympic Highway, the car travelling apparently at high speed in parts of Cootamundra with one headlight illuminated.
In terms of Mr Costello's evidence of what he knew and he did not know at relevant times, obviously by reference to the pleading and the statement of facts, the Crown cannot prove that Mr Costello was aware that a robbery was to be committed. In fact, the Court could not be satisfied beyond reasonable doubt that he was aware that his co-accused was armed with a knife. But having regard to the fact that the car was being driven at various points within Cootamundra at high speed, I conclude that he must have become aware that his co-accused had committed some crime requiring them to escape to Junee.
The vehicle travelled from Cootamundra to Junee, along the way, Mr Doolan throwing away clothing that he had worn during the offence. When they returned to Junee, they went to a Shell service station where one of the crimes on the s 166 certificate relating to Mr Costello was committed. They refuelled the vehicle and bought cigarettes from the money that was the proceeds of the robbery. But, as it transpired, as they were about to leave the service station a Highway Patrol police officer was fortuitously on the scene. The description of their vehicle had obviously been circulated at this point and the two men were arrested.
They were found in possession of a quantity of cash within the vehicle. That was found in fact in the wallet of Mr Doolan and he was in possession of a "six inch hunting knife". The prisoners were arrested and taken to Wagga Police Station. Mr Costello when first interviewed immediately confessed his involvement to the point where he said that he was directed by Mr Doolan to park in a laneway. Doolan had indicated to him that he was going to a newsagency and that Doolan returned to the vehicle, told him to 'go'. He, Mr Costello, was given two $20 notes to pay for fuel and cigarettes at the service station in Junee.
Mr Doolan when first interviewed by police denied having travelled to Cootamundra, claiming that he had in fact remained in Junee. Whilst in custody before he had been processed to go back to Junee Correctional Centre, he requested, it appears from the facts, a second interview. He obviously had a change of mind or heart about the denials earlier made and his detention was extended lawfully. During this second interview, he made admissions during the second interview about travelling to Cootamundra and deciding whilst in Cootamundra to rob the newsagency, directing Costello to park the car and having on himself the knife that he used. He admitted covering his face and various facts confirmed by the victim.
It is clear, just dealing with this crime as it concerns both offenders, obviously to some extent Ms Costello was a captive to the circumstances presented to him by Mr Doolan. From what I have earlier said taken into account, it would mean that once Mr Doolan got back in the car and Mr Costello became aware that a robbery had occurred, he would appear to have had little choice in the matter. It is true, he could have stopped the car and told Mr Doolan to get out and fend for himself. But the men obviously knew each other well. They were obviously friends. They had a common interest in the use of drugs. Mr Doolan gave Mr Costello very little choice in relation to the matter.
But having said that, Costello enabled Mr Doolan to make his escape and he shared in the profits of the enterprise, albeit modestly, as were the proceeds of the robbery in the scheme of things quite modest. Mr Doolan on the other hand, it would be clear from the facts presented to me, did not plan this particular offence. I could not conclude, even allowing for the way in which his evidence about his possession of the knife works adversely to him in the consideration of the other charges, that Mr Doolan went to Cootamundra planning to rob the newsagency.
So the crime was one of little if any planning and could be fairly described as "opportunistic". One of the aspects of the opportunism of Mr Doolan was that he took the opportunity to confront a victim who he must have known at 5.30 in the morning would have been alone in the newsagency with very little chance of members of the public interrupting the affair. Clearly the victim was a vulnerable person. The issue of vulnerability of course is a relevant aggravating factor under s 21A(2).
Would you two gentlemen just be quiet and not talk to one another when you're in the dock, or I'll separate you and I'll sentence you separately, right? We're not having a party here, this is not for your enjoyment. Do you understand that? So sit there and be quiet and stop talking to one another, please.
Just to return to what I was saying, the victim being vulnerable is of course an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as the Act. But I accept that there are degrees of vulnerability. There is another aspect of vulnerability that needs to be considered and I think it is intimately bound up with the issue of the degree of planning. There a quite a number of crimes committed where people very deliberately and intentionally plan to cause harm or commit crimes against vulnerable victims, be they children, people with disabilities, people working alone.
As I said, whilst the victim in this matter was a vulnerable person - and these comments, I hasten to say, do not affect Mr Costello given his lack of knowledge of the robbery occurring - but so far as Mr Doolan is concerned in the context of what I said about his opportunism, I could not conclude that whilst he took advantage of the victim's vulnerability, that it was a significant factor in the planning of the offence because on the facts available to me, there was little planning indeed.
Just to return to Mr Costello for a moment, I have adverted to the circumstances of the matters on the s 166 certificate to be dealt with under s 167 of the Criminal Procedure Act. The facts state, and there is no comment about this, that the prisoner was given a Commonwealth Bank debit card by Mr Doolan telling Mr Costello that he found the card. Mr Costello walked to the same Shell service station where the proceeds of the robbery were later spent, this offending occurring on 16 May 2015, and purchased tobacco, drinks and some food items for the value of $43.97.
It is a very minor offence within the scheme of offences of this type and it really should have been dealt with in the Local Court many, many months ago, not placed on a s 166 certificate. It bears no direct relationship at all to the offending with which I am concerned and I just do not understand why these matters are not dealt with then and there. The prisoner admitted his involvement in these two offences of dealing with proceeds of crime and dishonestly obtaining property by deception. That is, holding himself out to be the cardholder Daniel Foley.
I have dealt with the issue of the driving whilst suspended offence. Dealing with the prisoner's traffic record firstly, because his criminal history intersects with his traffic record, the only criminal conviction he has, without downplaying its significance or importance, is a conviction recorded in March 2014 for a crime committed in December 2012. It was recorded at the Newcastle Local Court and for driving with high range PCA. The prisoner was sentenced to 12 months' imprisonment to be served by way of Intensive Correction Order. That sentence commenced on 24 March 2014 and expired on 23 March 2015. He has successfully completed that order. I will come to the pre-sentence report from Community Corrections in a moment on that aspect.
He was also convicted of having in his custody a knife in a public place, a crime committed on the same date as the drive with high range PCA offence, and placed on a good behaviour bond for a period of 12 months pursuant to s 9 of the Act. The offences with which I am concerned were not committed whilst subject to conditional parole. His traffic history reflects essentially relatively minor matters, not complying with conditions of his provisional license such as carrying more than one passenger on three occasions, two matters of not displaying the P plates.
Of course, there is the drive with high range PCA that I have referred to, which is of course a far more serious matter. He had been issued with a learner license in 2006 but was currently suspended at the time of the crime with which I am concerned for sentencing purposes relating to the newsagency. Mr Costello gave evidence before me, part of which I have already adverted to, in the sentencing proceedings concerning the circumstances of his possession of a knife.
There is no evidence before me, as I said earlier, that Mr Costello knew that Mr Doolan had a knife. The Community Corrections Service report reflects upon his supervision. He has successfully completed that. He had what were described as "multiple complex issues", particularly what are described as ongoing health issues, and a "difficult family dynamic" which is quite apparent from the reference from his parents. He did, however, have a positive attitude towards his CSO work. As I understand the chronology of events, although sentenced in Newcastle, he came back to Junee and performed the Intensive Correction Order in Junee and successfully completed that as well as the good behaviour bond.
He started up a small lawn mowing business which he worked in addition to the voluntary component of his Intensive Correction Order. He has had a long history of drug dependency, which is apparent from the evidence he gave before me, the material provided by his parents and the detail of the community corrections officers. His parents continue to support him, as their reference makes clear. What appears to have happened, from his evidence and from the reference, is that he went to Sydney to obtain work and worked as a receptionist, as it is described, for a law firm in the city area of Sydney. However he became a drug user, lost that employment, and has had a couple of at least periods in drug rehabilitation programs but they have not had a long term benefit for him.
It is also said in the community corrections report that one of his problems that when he returned to Junee, he fell into a drug "subculture", which includes, I take it, hanging out with people like Mr Doolan, who at least in April and May was prepared to supply drugs to others. The prisoner Costello has a positive attitude to work though and that is confirmed by his parents in their references. He completed his community service, it is said, to a "high standard" and received positive reports from his Community Service work supervisors whilst performing the intensive correction order.
What is reflected upon is his longstanding abuse of alcohol and drugs going back over ten years, it would appear. The prisoner was born in February 1990, thus has just turned 26, and has had these difficulties since he was 15 or 16 years of age. He was said to have been previously diagnosed with depression and anxiety and a drug induced psychosis but there is little medical evidence before me and certainly no medical evidence or any evidence of any importance that would show a causal connection between the offending with which I am concerned and a mental illness or disability.
He did not downplay his involvement in the offence but maintained his lack of knowledge of his co-accused's intentions. He said that he had become "stuck in the situation" which is reflected in the facts provided to me. There is some cynicism about this in the pre-sentence report but the reporter obviously was not fully aware of what facts would be alleged against the prisoner. He had been, he said, using drugs quite heavily in the days before the offence. He is, as the Crown pointed out in his helpful submissions, at medium risk of reoffending and has a number of particular needs to be addressed when he is released from custody, encompassing his education and employment, his financial circumstances, his companions, obviously his alcohol and drug problems and other personal issues.
It is thought by Community Corrections that he would benefit from continued treatment and monitoring in relation to drug and alcohol rehabilitation, having substantial support from his parents and siblings. Community Corrections could particularly assist him in relation to alcohol and other drug issues and also mental health issues by referring him to an appropriate mental health counselling service. He may benefit from an intensive residential drug rehabilitation program. This will be a matter for the parole authority.
I have, as I said earlier, references from his parents. I have read those. They speak, as you would expect parents to do, positively of a number of his characteristics, particularly his work ethic, and that is confirmed by the Community Corrections Service. They speak of the devastation caused to him by the use of the prohibited drug methylamphetamine and this is a matter that Mr Doolan should reflect upon, as should other suppliers of the drug. They themselves may be drug users, but here we have offenders not only damaged by the use of drugs but in part being prepared to commit serious crimes such as armed robbery or assist armed robbers to escape from arrest for the purposes of short term gain.
The parents speak about the time in custody having a positive effect upon him and they state that they will continue to support him, which is noted by Community Corrections. I have a reference also from his grandmother who speaks positively of him and particularly his ability to work, and she has some comments to make about him remaining in gaol. I note I have some historical references that deal with work that he has done in the past, speaking positively of his industry which I have already noted.
With regard to the submissions made in relation to Mr Costello, if I could just deal with those very briefly, they were fairly uncontroversial. Mr Barron spoke of the discount that I am required to give. His cooperation with the police is evidence of his remorse and I accept that that is so. I believe he took responsibility for his conduct within a very short period of time and I am prepared to find in his case that he is genuinely remorseful and it is relevantly a mitigating factor under s 21A(2) of the Act.
He submitted that the structuring of the sentence should recognise the need he has, allowing for his relatively young age and his certainly not significant criminal history, he is a person who needs supervision particularly with regard to drug use and rehabilitation. With regard to the disposal of the matter, it is acknowledged that I must impose a term of imprisonment and there is no other practical way of dealing with the matter in the circumstances confronting all of us. I have ultimately concluded in the context of the appropriate sentence to be imposed upon the principal offender that the starting point of any sentence I impose should be in the order of two years, six months, and with a discount of 25%. I have concluded that the appropriate sentence should be one year, ten months.
I have concluded in Mr Costello's case, as was submitted by his counsel, that I should make a finding of 'special circumstances' (pursuant to s.44 Crimes (Sentencing Procedure) Act 1999) to adjust the relationship of the non-parole period to the balance of sentence to extend the period of supervision. In coming to that conclusion, I have had regard of course to the Crown's helpful submissions. The criminality with which I am concerned in relation to Mr Costello is in respect of the common offending less serious, that is self-evidently so. I am mindful of course of the maximum penalty but there are obviously different categories of accessorial responsibility, both moral and legally, touching upon the crime of accessory after the fact.
As I cannot conclude that this prisoner was involved in any way in the execution of the crime and as the prisoner, as I said, was left with little choice in one sense, once Mr Doolan had returned to the car, lacking the commonsense or the maturity to indicate that he would not assist. My view of the matter is that a starting point of two years, six months is an appropriate assessment of the mix of objective and subjective factors. I will come back to some other general principles of sentencing that I have to take into account in relation to Mr Costello as I deal with Mr Doolan.
I have dealt with the facts in relation to the armed robbery matter concerning Mr Doolan. With regard to the two supply matters, there is an ongoing supply between 22 April 2015 and 21 May 2015. The prisoner in relation to the ongoing supply matters supplied prohibited drugs on six separate occasions. It would appear that he was approached by a male undercover police officer and the prisoner, with few details available to me as to how these arrangements were made, supplied the undercover officer with 0.21 grams, that is just over two points of methylamphetamine, for $280. The drug was ultimately analysed and it had a purity of 82%.
The next sale to an undercover police officer, all sales being to undercover police officers, concerned less than a 'point' as it is described of methylamphetamine, here 0.04 grams. The prisoner sold it to the officer for $100 and it was found to be methylamphetamine. The level of purity is not known. The third sale was for the same quantity, 0.04 grams, this time for $200 and it was found to be methylamphetamine with no purity identified on analysis, but it was sold to an undercover police officer on his approach to the prisoner.
The first "buy" was on 22 April, the second "buy" on 14 May, the third "buy" on 15 May. There was another "buy" again on 15 May as the request of the undercover officers became more focused and the prisoner supplied 0.14 grams of a substance held out to be methamphetamine. This was sold for $200 but no prohibited drug was identified. The fifth sale was for 0.45 grams of methylamphetamine on 20 May. This was an escalated quantity. The accused sold this for $600. The undercover officer asked the prisoner if he could "provide larger amounts". The prisoner stated he could see what he could do, clearly suggesting that he obviously did not have larger amounts in his presence. The substance he supplied on this occasion, 20 May, was found to have methylamphetamine in it. No purity is identified.
The sixth purchase was by an undercover officer at the request of finding greater amounts. This was 3.03 grams of methylamphetamine on 21 May. The prisoner sold this as what is described as an 'eight ball', that is, 3.5 grams or approximately 3.5 grams of methylamphetamine for $1300. This was found to have a purity of less than 1.5% but still contained some methylamphetamine within it. We all know that for the purposes of the Drug Misuse and Trafficking Act, it is the quantity of the substance which includes a prohibited drug and add mixture which is the measuring stick so to speak, unlike under Commonwealth law.
The very low level of purity suggests that what the prisoner did was to cut down a smaller quantity. The extent to which he did that, it is impossible to say, but clearly the prisoner sought to profit from the exchange by that activity. The substantive offence of supply, that is, the offence on 22 May for which the prisoner is to be separately sentenced, involved again the sale of an eight ball. This was at the request of the undercover officer. This was again sold for $1300. This was tested but no prohibited drug was identified and the prisoner has given evidence that he sold to the undercover officer rock salt in the belief or suspicion that the person with whom he was dealing was in fact a police officer.
Certainly in relation to that particular offence the matter that obviously arises for consideration based upon his oral evidence today is the matter that was discussed in the Court of Criminal Appeal decision of Kalpaxis. Kalpaxis was a case involving a man called Angelo Kalpaxis who conned an NCA informant into believing that he, Kalpaxis, who was then living in Greece, could provide up to 200 kilograms of cocaine. The sentencing of Kalpaxis proceeded upon the fact finding by the sentencing judge that in fact Kalpaxis had no capacity to supply any cocaine at all and had simply been talking up quantities to entice money out of the person with whom he was dealing.
It was fairly described as an "extraordinary case" but the Court of Criminal Appeal in its judgment reflected upon, to use more modern language, the diminution of moral culpability in circumstances where a person commits an offence of supply of whatever quantity, as the law permits, such as agreeing to supply, even in the knowledge that what one is agreeing to supply does not have prohibited drug in it and not intending that the drug be supplied. To my mind, ultimately there is some element of what was discussed in Kalpaxis in two of the transactions with which I am concerned. But having said that, even making allowances for the fact that the quantities involved were relatively small quantities on most occasions, one larger quantity, 'an eight ball', contained a very small percentage of methylamphetamine consistent with a cutting exercise.
As the Crown particularly submitted in his submissions, the facts were that he was able to supply prohibited drugs, that he knew of prohibited drugs at relevant times and was willing to do so, even if approached by undercover police officers. Mr Doolan's criminal history is, to my mind, of more significance in this sentencing exercise than it is in Mr Costello's instance. Mr Doolan has been appearing at courts since 2012, which is of course relatively recently. But he has acquired a large number of findings of guilt, many to be fairly said consistent with his history of drug use but others involving crimes of personal violence and dishonesty.
In the Children's Court, he has findings of guilt for contravening AVOs, possession of prohibited drugs, breaking and entering, common assault, and possession of equipment for administering drugs and possessing prohibited drugs in the Local Court, custody of a knife in a public place in the Local Court, offensive manner, some minor offences relating to the misuse of a bicycle, which appears to occupy a good deal of his adult criminal history, driving whilst disqualified and misuse of a motor vehicle.
His criminal history shows that he has regularly appeared before the Court over three years and been given quite a number of opportunities by way of probation and other Court orders. Although I note in relation to his criminal history that he has not previously had any period of adult supervision, certainly not been previously imprisoned. He has no prior convictions for drug supply. His personal upbringing has been disadvantaged, it must be fairly said. Through no fault of his, his mother and father have had little to do with one another. In fact, he gave evidence before me that his father he met for the first time in prison and his father is apparently still in prison serving a sentence of imprisonment for crimes the prisoner does not know. They did not get around to discussing the fine detail of his father's incarceration.
His mother's background is no less colourful. She, when he was six years of age, was herself convicted of armed robbery and sentenced to 18 months' imprisonment apparently and he was left in the care of his grandparents. He has a strong relationship with his grandparents who have lived in the Cootamundra area up until recently. However his recent years of substance abuse have greatly strained that relationship. They would appear to be the most steadying influence in his life.
I cast no aspersions upon his mother of course. She has obviously been visited with many hardship perhaps beyond her control. She has been subjected to domestic violence in multiple relationships which the prisoner no doubt has had to experience and this is clearly an environment that would have a deleterious effect upon him. He is said to have been diagnosed with Attention Deficit Hyperactivity Disorder when in year 7 and medicated for a number of years. He failed to complete his education and his employment history has been largely confined to unskilled work.
He did work at the local abattoirs for a period of two years but was dismissed in 2013 for various reasons I need not go into and has largely been living on benefits, either Newstart or Youth Allowance, since that period of time. He has been using methylamphetamine intravenously since the age of 18 and his use of drugs is largely to medicate himself, it would seem from the circumstances of his everyday life. With regard to the commission of the armed robbery he tended to describe it as a crime committed out of boredom. He said, however, the crime was not planned and he did not really know why he committed the crime because at the time, he had sufficient money and drugs on him.
It seems from that explanation he gave that it was not a crime motivated simply to obtain money to buy drugs. He has a large number of issues that need to be addressed, as does Mr Costello. Like Mr Costello, he is assessed at 'medium' risk of reoffending. He is not receiving any medication at the moment for any mental health issues and apart from the contextual issue of having ADHD, there is not any mental disability or disorder that seems to be a direct contributing factor to his offending. It would seem either his boredom, or perhaps the heightened sense of excitement caused by the use of drugs, has in some way contributed to the decision to commit clearly the most serious crime he has committed up until that time, certainly more serious than anything he has committed previously.
The assessment of Community Corrections is that although he had not had previous contact with Community Corrections, he presented as a young man with too much time on his hands and a lack of motivation to engage in pro-social activities. His primary explanation for the armed robbery was, as I said, because he was "bored". There is little attention in that report, I hasten to say, to the drug supply matter. At that stage, he had not been committed for sentence. It would seem to me that the commission of the drug supply matters, albeit on the approach of the undercover officer, was simply to obtain money. Some of which, I am prepared to accept, would have been used by him for the purposes of purchasing prohibited drugs for himself.
He needs assistance from Community Corrections in a range of ways, including, as with Mr Costello, supervision in relation to alcohol and other drug issues, referral to mental health services for assessment, which has not been undertaken, and obviously to try and obtain employment. Optimistically he is assessed as being suitable for community service but that is not a realistic alternative here. Of the evidence he gave before me, some of that evidence I have referred to already relating to his family background, the support of his grandparents up until recently, and of course the circumstances of his offending particularly in relation to the supply of drugs to the undercover officer.
He did say in his evidence, which is self-evident from the facts, that there was no element of planning in the commission of the offence and he made a frank admission against interests about his possession of the knife. He gave evidence that he had been a regular user of prohibited drugs. The submissions of Mr King, who ably represented his client as did Mr Barron represent his client, focused upon, in respect of the supply drug matters, the relatively small quantities that were supplied on each occasion. I have been through those matters. He noted the escalating requests of the undercover officer. But I also note up, until the supply of the substance that the prisoner knew was not a prohibited drug, the willingness of the prisoner to accommodate him. He noted the prisoner's willingness to undertake a residential rehabilitation program. He will certainly need professional assistance on his release from custody.
The Crown's submissions to the Court included helpful written submissions setting out some background to the charges which I have already noted and the quantity of the drugs involved and the pre-sentence custody. The Crown made submissions about how I should categorise the seriousness of the offence. I accept that there are some obiter observations by some Judges of the Court of Criminal Appeal about the way in which the seriousness of offending ought be categorised. The use of the term "seriousness of the offence" rather than "objective seriousness" appeared to me to be merely reflections of the same concept, matters of expression of no great significance.
I cannot accept the Crown's submission that the armed robbery offence falls within the middle range of objective seriousness. It is not a category of classification which directly arises where there is no standard non-parole period. There are a number of judgments of the Court of Criminal Appeal that have criticised judges at first instance seeking to use the language of Pt 4, Div 1A in other sentencing exercises. Having said that, if that be a convenient reference point, one only needs to look at the lack of planning and the relatively small amount of money obtained in the range of offending of this type to see how the offence could be categorised as falling below what is appropriate where there is a standard non-parole period as a point of reference for the expression 'middle range of objective seriousness'.
It is quite obvious that armed robbery is a serious crime. It has been held to be a serious crime for as long as I have been practising in the criminal law and way back in the 1970s. In more lenient sentencing days courts only granted non-custodial orders in exceptional circumstances. Furthermore, as the Crown rightly points out, we have now had since 1998 the guideline judgment in R v Henry (1999) 46 NSWLR 346, particularly with RS Hulme J dissenting. The majority of the Court comprising a Bench of five accepted the analysis of the learned Chief Justice that there should be a guideline for armed robbery in New South Wales and he noted what he described as characteristics that were common or sufficiently common for the purposes of determining and guideline, and the Crown very helpfully has gone through those various characteristics as they relate to the facts of this particular case.
With regard to the Crown's observations, it might be said that this, while being a young offender, was not someone with a limited to no criminal history. But I have already said that I do not believe his criminal history is particularly significant given the character of the previous offending. As with the factors identified at [162], the weapon was a knife capable of killing or inflicting serious injury. There was limited degree of planning, as I have already held. There was limited if any actual violence but a real threat thereof, although not as serious as the threat that arose in Henry. The victim was vulnerable, as I held, there was a small amount taken.
In Henry, which was decided before Thomson and Houlton v R, the Court reflected upon the guideline, referring to a case where a plea of guilty was limited in its significance by a strong Crown case. The use of the language "utilitarian benefit of the plea of guilty" had not quite entered the lexicon of sentencing language in New South Wales. When Thomson and Houlton was handed down about a year after Henry the Court of Criminal Appeal said in Thomson and Houlton that the utilitarian benefit of the plea of guilty was to be reflected by an appropriate discount, despite the strength of the Crown case.
So, in a sense, the guideline so far as it assists us in this particular sentencing exercise has some features that are very common. It has some features where this offender might be seen as less favourably viewed as offenders of similar category. But has other features that work to the benefit of the prisoner. I am mindful also, of course, of the additional factors set out at [170] that might increase the seriousness of the offending but they do not arise here. It is to be fairly said, as was subsequently observed by the Court of Criminal Appeal, that whilst the Court of Criminal Appeal in Henry, as it had earlier in Jurisic, fixed the guideline or guidelines for particular offences, it was the case at [10] that the learned Chief Justice also pointed out that what had been said by Mahoney ACJ in the decision of Lattouf, an unreported decision of the Court of Criminal Appeal, still applied:
"There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it ... But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case."
Of course, despite attempts to add greater and greater rigour to sentencing, ultimately the High Court in Markarian acknowledged in 2005 that sentencing of offenders was a complex issue that involved consideration of many matters for which the judges to be ascribed the special gift of instinctive, or intuitive, synthesis to endeavour to arrive at the correct result.
That having been said, the Crown submitted by reference to the guideline that the appropriate starting point of sentence was in the vicinity of four to five years, then to allow for a discount between the difference between a late plea and plea prior to committal. I have ultimately concluded, just getting ahead of myself for the moment, in relation to the matter that in respect of the armed robbery matter, the starting point of the sentence to be imposed was one that permitted, with a discount of 25%, a sentence of three years and nine months, which roughly accords with the mathematics of the Crown Prosecutor.
With regard to the sentencing of the offender in relation to the drug supply matters, I have already referred to some aspects of the offences so far as the issue of supplying material that the offender knew did not contain prohibited drugs. I have already made observations about the quantities involved being modest. I have made observations about the fact that the quantities that were provided to the undercover officer were provided at his urging or requests, and it is clear on the objective facts that the prisoner had to obtain the drugs from elsewhere on occasions in order to fulfil the order that had been made by the undercover officer.
With regard to the issue of supplying to undercover officers, I am mindful of a number of authorities referred to in the Sentencing Bench Book which note that in terms of any form of mitigation, the mitigation usually will be modest because the person supplying the drugs usually supplies them to the undercover officer not in the knowledge the person is an undercover officer and thus has an intention in effect to provide the drugs for dissemination to the community. But the fact is by selling the drugs to undercover police officers, the drugs do not become circulated within the community.
I accept the observation made in the submissions of learned counsel for the prisoner that the prisoner could fairly be categorised as a user/dealer and thus I could accept that part of the profit obtained by the prisoner was utilised towards his own use of the drugs. But that would not be the only purpose for which the funds were utilised. The prisoner being on an allowance from the government obviously would have been supplementing his Newstart Allowance or his Youth Allowance with some of the proceeds of the supplies that were given to police officers.
The bottom line is, however, in the context of some of the authorities to which the learned Crown referred to in his submissions, that is, the decision of Clark from 1990 or the decision of Gu ([2006] NSWCCA 104), that the criminality of the prisoner reflected in the two indictable drug offences reflects that the prisoner was substantially involved in the trafficking of prohibited drugs and that ultimately the imposition of a full time custody sentence is the appropriate course. No other course is obviously available, given the time that he has spent in custody.
No argument of exceptional circumstances was volunteered in any event. I am mindful of many authorities that discuss the assessment of the objective seriousness of ongoing supply offences. One such judgment is Giang [2005] NSWCCA 387, particularly at [18] and [19]. Also, there is the early judgment from RS Hulme J in Smiroldo (2000) 112 A Crim R 47. In that judgment, of course whilst there was an undercover officer involved and there were increasingly large supplies, the quantity of the drugs supplied, or agreed to be supplied, by Mr Smiroldo was considerably greater than the quantities with which I am concerned here.
I am mindful that Howie J said in the case of Mirza [2007] NSWCCA 248, particularly at [11], that it may well be that the seriousness of this type of offence will not be diminished simply because the overall amount of drugs supplied is small. But it does not follow that the amount of the drug supplied is an irrelevant matter in determining the seriousness of the particular offence. Clearly there will be cases, he said at [12], "where the amount of the drug supplied is determinative of the sentence". Of course, I have already pointed to the fact of the prisoner supplying a substance that he knew not to be a prohibited drug.
Both offenders in sentencing require the Court to consider the terms of s 3A, the 'purposes of sentencing'. Obviously some element of general deterrence applies to both offenders but I believe more so of course to Mr Doolan, given his offending is more persistent and more serious. Some element of personal deterrence is to be considered, but both men are serving their first terms of imprisonment, which may serve as salutary experiences. They are both required to be adequately punished and made accountable for their conduct. Protection of the community is to some extent an element in the sentencing of Mr Doolan, not so much in relation to Mr Costello. They both require a promotion of their rehabilitation.
With regard to particular aggravating factors concerning Mr Costello, ultimately I can only find one aggravating factor, that is, the offence was committed for "financial gain". But having said that, it was a very modest financial gain and it was really an ex post facto benefit, not something that he had particularly planned or foreshadowed necessarily in his agreement to drive his co-accused away. With regard to him, the mitigating factors ultimately are that the offence was not part of planned or organised criminal activity and the prisoner did not have a significant record of previous convictions.
I cannot find ultimately that he was necessarily a person of good character and I cannot find that he is unlikely to reoffend. But I am prepared to accept by reason of his only prior conviction being unrelated to drugs, violence or dishonesty, that he has good prospects of rehabilitation and I have commented upon the fact that I find him remorseful and thus that is a mitigating factor. His plea of guilty is a mitigating factor as we well.
With regard to Mr Doolan, in relation to the armed robbery matter, I have already mentioned the significant aggravating factor is the vulnerability of the victim. With regard to the crime of ongoing supply and supply of prohibited drugs, whilst I do not conclude they were planned or organised criminal offences, clearly he is not part of any criminal organisation, it is to be fairly said that other features of the matter I have referred to from the common law position, the fact that he was substantially involved in drug trafficking is a clear relevant factor to the assessment of the objective facts.
With regard to mitigating factors that arise, the offence of armed robbery was not part of planned or organised criminal activity. The prisoner did not have, as I said, a significant record of previous convictions. I cannot conclude in his case that he was a person of good character. Again, I cannot conclude he is unlikely to reoffend. His prospects of rehabilitation, in my view, are somewhat more guarded than that of Mr Costello and I could not find that as a mitigating factor. But I am prepared to accept ultimately that his plea of guilty and his change of heart about admitting his guilt within a short period of time reflect remorse and taking of responsibility on his part. His plea of guilty is likewise a mitigating factor.
I forgot to mention, I must say, and it is an important matter to bear in mind insofar as the sentencing of Mr Doolan is concerned, his relatively young age. He was born on 9 April 1994, he thus will turn 22 within a month and a few weeks. The offences with which I am concerned were committed when he had just turned 21 and as I have pointed out, his criminal history reflects quite a number of entries but nothing of great significance in the context of the offending with which I am now concerned.
I have concluded that there are 'special circumstances' that arise in relation to each offender that require adjustment of the relationship of the non‑parole period to the balance of sentence. In Mr Doolan's case, of course, there is the issue of partial accumulation which is itself a special circumstance. He needs, to my mind, a particularly significant period of supervision given the range of offending with which I am concerned and the far less settled personal circumstances he has. He has had far greater disadvantage of course than Mr Costello, but it seems to me that Mr Costello has a better support network to return when he is released which will aid the work of community corrections.
Mr Doolan will need fairly intensive supervision over an extended period of supervision if any effect is going to be given to his rehabilitation and the benefit that may give him and other members of the community. Therefore hopefully having taken into account all that has been put by the learned Crown and the respective counsel, I will move to sentencing each offender.
Could you stand up please, Mr Costello. In relation to the sequence 1 offence for which you were committed for sentence, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of nine months. That will date from 8 June 2015 and expire on 7 March 2016. I direct that you be released to parole and that you be subject to the supervision of the Parole Authority for a period of one year and one month from the date of your release. In respect of the related offences, I will just describe them by sequence number. Sequence 2, deal with proceeds of crime, you are convicted. You are sentenced to three months' imprisonment. That will date from 8 June 2015, expire on 7 September 2015.
In respect of the sequence 3 offence, dishonestly obtain property by deception, you are convicted. I order that you enter into a good behaviour bond pursuant to s 9 of the Act for 12 months from today. Conditions of that bond are that you are to be of good behaviour, that you are to advise the registry of any change of residential address, thirdly, you are to appear before Court if called upon to do so, fourthly, you are to be supervised on your release by the Community Corrections Service and obey all reasonable directions of the officers of that service.
The effect of that bond is that your parole will expire before the supervision of the bond, but if you are in breach of your parole during that period of almost 11 months that you will be at large on parole, you can be called up before the District Court and sentenced to an additional term of imprisonment. With regard to the drive whilst suspended matter, you are convicted but pursuant to s 10A of the Act, I propose to impose no penalty. You are disqualified from holding a motor vehicle driver's license for two years from today. If you drive whilst disqualified, you will go back to gaol. You can take a seat. Thanks very much.
I have given thought, of course, to totality of sentencing, but I have concluded that the two offences for which terms of imprisonment are realistically appropriate, the proceeds of crime and dishonestly obtain property by deception offences are so minor that I should not make the total sentence any greater than the sentence for the accessorial liability offence.
Mr Doolan, in relation to you, concerning the supply matter which I understand is sequence 1, the offence of 22 May, you are convicted. You are sentenced to one year's imprisonment to date from 8 June 2015. That will expire on 7 June 2016. For the sequence 8 offence, the ongoing supply offence, you are convicted. You are sentenced to imprisonment by way of non-parole period for a period of one year. That will commence on 8 June 2015 and expire on 7 June 2016. In relation to that sentence, I fix a balance of sentence of one year, three months. That balance will expire on 7 September 2017.
In relation to the armed robbery matter, you are convicted. You are sentenced to a term of imprisonment by way of non-parole period for one year, six months. That will date from 8 June 2016 and expire on 7 December 2017. That is the earliest date you will be eligible for release to parole. The balance of sentence will be two years and three months. The balance of sentence will expire on 7 March 2020. I direct that you be released to parole. The total sentence I have calculated is four years and nine months with a non-parole period of two years and six months.
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Decision last updated: 22 February 2017