R v Faletau

The Facts

1. At about 2.20pm on Saturday 31 August 2013 Mr Gorman saw the silver Nissan Pulsar drive past his house. It was driven around the block and then pulled in front of his house. Williams alighted from the vehicle and approached Mr Gorman. This conversation followed: Williams: "What have you got?" Gorman: "What have we got? Who are you looking for, mate?" There was no immediate reply from Williams. The conversation then restarted: Gorman: "Are you looking for Troy?" Williams: "Does he live next door, does he?" Gorman: "Yeah." The offender and Roberts had alighted from the vehicle and walked towards Williams. The three offenders then walked from 20 Dalhunty Street into 18 Dalhunty Street.
2. The three offenders entered through the front door of 18 Dalhunty Street without knocking. Ms McKnight was in the lounge room. At the time Mr Newland and Ms Robb were in the master bedroom. Ms McKnight called to Mr Newland, who left the bedroom and then spoke to Williams: Williams: "Do you remember me?" Newland: "Yes." Williams then stepped forward and shook Mr Newland's hand. The conversation then continued: Williams: "Do you think next door would have some smoko and how much would they have?" Newland: "I'm not sure but I can find out." Faletau: "Show him this isn't a laughing matter." The "him" would appear to refer to Mr Newland rather than Mr Gorman, as the offender pulled a replica firearm, described as a black shortened rifle with silver coloured tape around the barrel, from the waist of his trousers and pointed it at Mr Newland's forehead. There were about 12 inches between the barrel of the firearm and Mr Newland's forehead.
3. Ms McKnight then stepped forward towards Mr Newland. Williams then picked up a vacuum cleaner tube and held it as if he was about to strike Ms McKnight with it. Mr Newland stepped forward towards Williams. As he did so Roberts stepped forward and pulled from his sleeve a flat bar with a handle and attacked Mr Newland with that weapon. This offender punched Mr Newland in the throat. Roberts struck Newland on the right leg. Then both the offender and Roberts continued to assault Mr Newland. Eventually they stopped doing so. Williams then said, "What money have you got, throw your phones on the floor in a pile."
4. By this time Ms Robb had entered the lounge room. She threw her father's slide phone and her Huawei phone on the floor. Ms McKnight threw her "touch phone" on the floor and Mr Newland did likewise. Williams then said to Ms Robb, "Get your bag." She produced the bag. Williams tipped its contents out and took $230 from her purse. Mr Newland took out his wallet and said, "I've only got $100." This offender grabbed his wallet and said, "You've got to have more than that." Williams then removed $100 from Mr Newland's wallet and threw the wallet on the floor. Roberts then picked up the money and the phones and a camera, a Sony 14.1 megapixel camera, which belonged to Ms Robb. The three offenders then headed towards the front door. As they were leaving Williams said, "I'm going to be in town for a bit, will be back to pick up the rest."
5. The proceeds of the aggravated armed robberies at 20 Dalhunty Street were the four mobile phones, $330 in cash and Ms Robb's Sony camera. Mr Newland suffered soreness in his neck, jaw, spine, hip and right leg as a result of the assaults upon him.
6. The three offenders after leaving 20 Dalhunty Street walked across the driveway between the two houses and approached the front door of number 18. Mr Gorman and Ms Blomley were in the lounge room. Williams called out, "Seen Troy." Mr Gorman replied, "How did that go, mate?" Williams then opened the flyscreen door at the front of the house and entered, walking briskly past Mr Gorman causing Mr Gorman to stumble backwards. Williams then approached Mr Barton and as he was taking his mobile phone out of his pocket. Williams punched Mr Barton in the face with both fists. Ms Blomley then yelled out, "I've got a kid here, no fucking shit." Williams replied, "I don't give a fuck."
7. This offender and Roberts then entered number 18. Roberts was armed with a black metal bar. He struck Mr Harris with it on the right knee causing him to fall to the ground. Williams then said, "Hand over everything." Roberts then approached Mr Gorman and pushed the black metal bar against his throat. The present offender who was holding the replica firearm pointed it towards Mr Brumby's head. Mr Lubke was standing next to Mr Brumby. Both those men took out their mobile phones and placed them on the coffee table. Roberts then took a black LG mobile phone from the pocket of Mr Harris' jeans. Ms Blomley ran out the backdoor to attend to her five year old child, who, fortunately, was in the backyard. As that was happening the three offenders collected the mobile phones that were on the coffee table.
8. Mr Gorman, believing that Mr Brumby was about to be shot by this offender, grabbed the black metal bar being held against his throat by Roberts and pushed it away. Roberts then started saying to the offender, "Shoot him! Shoot him! Shoot him, bro." Mr Gorman ran out the back door and armed himself with a hoe. He returned to the lounge room and again confronted Roberts. They clashed their weapons. Williams then approached Mr Lubke, tapped him on the head and said, "Have a good arvo." The three offenders left through the front door, ran down the driveway, entered the previously stolen Nissan Pulsar and were driven away by Kinchella.
9. The proceeds of the aggravated armed robberies at 18 Dalhunty Street were five mobile phones. Mr Gorman suffered contusions to his throat and his shoulders. Mr Barton suffered a laceration to the inside of his mouth. Mr Harris suffered soreness in his right knee.
10. At about 4.30pm an off-duty police officer saw the silver Nissan Pulsar on the Snowy Mountains Highway in Tumut. Other police then made a patrol along Forest Street and located the stolen vehicle at the western end of that street. All four offenders were inside the car. The police managed to arrest Roberts and this offender but the other two decamped. The offender and Roberts were taken to the Tumut Police Station and each participated in an electronically recorded interview. The offender denied any involvement in the offences. He was then charged, as was Roberts.
11. Kinchella went on to commit other offences and was eventually arrested on 4 September 2013 at Minto. Williams also went on to commit other offences and was arrested on 17 October 2013.

Seriousness

1. I turn to consider the seriousness of the offences. The offender committed offences under s 97(1) of the Crimes Act 1900 by, firstly, being in company and, secondly, robbing or assaulting with intent to rob certain persons. He committed the aggravated offence constituted by s 97(2) by being armed with a dangerous weapon. "Dangerous weapon" is defined in s 4 to include "an imitation firearm". An imitation firearm is incapable of discharging any projectile, however those threatened with the imitation firearm do not know that. They consider themselves threatened by a firearm and know not whether it be loaded or unloaded. An imitation firearm can induce the same fear, the same terror, as a loaded, operable firearm. The agreed facts in this case show that Mr Gorman believed that Mr Brumby was about to be shot by this offender.
2. Clearly the offender was part of a joint criminal enterprise with Williams and Roberts, and probably Kinchella, but there is no need to make a finding about his involvement. The actual use of violence against Mr Newlands in count 1 and Messrs Gorman, Barton and Harris in count 2 is an aggravating factor, as acknowledged by Norrish DCJ who, on 25 November 2014, sentenced both Williams and Roberts.
3. The Crown has submitted that the offences were committed in company, which was an aggravating factor pursuant to the Crimes (Sentencing Procedure) Act 1999, s 21A(2)(e). The offender accepts this, see his written submissions, MFI 2[8]. Despite what I said about the offender's committing the offence under s 97(1), that being in company was part of the offence, if one approaches that offence as involving one of the co offenders, Roberts, being armed with an offensive weapon, in respect of each count in the indictment, then one can readily accept that the fact of being in company was not an element of each offence and therefore that being in company was an aggravating factor. I do so.
4. In my view, the best way of considering the seriousness of the offences is to compare these offences to the one provided in the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; (1999) 106 A Crim R 149. In that case a majority of the Court of Criminal Appeal determined that a full term sentence of between four and five years' imprisonment was warranted in cases involving the following seven characteristics: 1. a young offender with no or little criminal history, 2. a weapon like a knife capable of killing or inflicting serious injury, 3. a limited degree of planning, 4. limited, if any, actual violence, but a real threat thereof, 5. victim in a vulnerable position such as a shopkeeper or taxi driver, 6. a small amount taken, 7. a plea of guilty, the significance of which is limited by a strong Crown case. In R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; (2000) 115 A Crim R 109 it was said that this guideline should be understood as involving a late plea of guilty for the purposes of the application of the guilty plea guideline promulgated in that case. This case does involve a late plea of guilty.
5. I turn now to the seven criteria: 1. The present offender is a young man, 23 years old at the time of the offence, but he has a significant criminal history including crimes of violence, 2. Whilst the imitation firearm carried by the offender was incapable of emitting a projectile, the weapon or weapons carried by his co offender Roberts were capable of inflicting serious injury, 3. There appears to me to be more than a limited degree of planning, however I do not accept that the degree of planning falls within the Crimes (Sentencing Procedure) Act 1999 s 21A(2)(n). The facts strongly suggest that at least Williams suspected that he might find drugs at one of the addresses in Dalhunty Street, Tumut. A group of four men had assembled and obtained weapons. Antecedent to these aggravated armed robberies, a car had been stolen from the Campbelltown area and driven south towards Tumut. North of Tumut, at Murrumbateman, number plates were stolen from another motor vehicle, probably to disguise the real identity of the Nissan Pulsar. This vehicle was then used to convey the offenders to the crime scene. However, as Norrish DCJ pointed out at p 32 of his reasons, it would be impossible to find beyond reasonable doubt that the taking of the car and the number plates was part of the plan to commit these aggravated armed robberies, or indeed any aggravated, armed robbery. However, the inescapable view is that the taking of the car and the taking of the number plates were for some form of criminal enterprise yet to be determined. This degree of planning should be compared with this example: a young drug affected man needing money to buy more drugs takes a carving knife from his kitchen drawer, drives to a nearby services station, convenience store or food outlet and pulling a hood over his face enters the premises and demands money while brandishing the knife. This is an example of a very typical robbery falling with the Henry guideline. 4. There was in respect of each set of offences actual violence used and fear generated by the imitation firearm as well as a real threat of violence. The present cases exceed the guideline in this respect. 5. The present victims could not be put in the "vulnerable category" but here there is the aggravating factor that the crimes were committed in the homes of those residents of 20 Dalhunty Street and in the home of two of the residents of 18 Dalhunty Street. That aggravating factor is provided by s 21A(2)(eb). 6. In this case, in line with the guideline only a small monetary amount in both cash and or kind was taken. 7. The final characteristic is guideline is satisfied in the present case: a late plea of guilty.
6. In summary therefore the present offences are objectively more serious than a case having the seven characteristics identified in Henry. Moreover, Henry concerns an offence contrary to s 97(1) for which the maximum penalty is 20 years imprisonment whereas the maximum penalty for an offence under s 97(2) is, as I have said, 25 years imprisonment.

Criminal history

1. The offender's criminal history must be considered. On 3 January 2005 at the age of 15 the offender committed the offence of breaking, entering and stealing. The Children's Court dismissed the charge but gave the offender a caution. On 20 June 2005, again at the age of 15, the offender committed assault occasioning actual bodily harm. For that offence the Children's Court put him on a bond to be of good behaviour for two years. At the same time he was charged with aggravated robbery, the circumstance of aggravation being the infliction of actual bodily harm. For that he was sentenced to 60 hours community service. There was then a 19 month break in the offender's criminal career.
2. On 11 February 2007, at the age of 17, he committed common assault for which he was given a further bond to be of good behaviour for one year. He also resisted a police officer in the execution of the officer's duty and was placed on probation for one year. Two months later, on 13 April 2007, again at the age of 17, he committed assault occasioning actual bodily harm for which he was sentenced to 200 hours community service. On 2 August 2008, aged 18, the offender recklessly caused grievous bodily harm. For that offence he was sentenced by this Court sitting in Campbelltown on 31 August 2009. The sentence imposed was imprisonment for three years and nine months with a non-parole period of two years. The imprisonment commenced on 4 October 2008.
3. However, before that period of custody commenced, the offender committed further offences. On 24 August 2008 he committed affray. That offence was taken into account by this Court when it passed sentence upon the offender for recklessly causing grievous bodily harm. Also on 24 August 2008 the offender committed assault occasioning actual bodily harm for which the Local Court merely imposed a conviction pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. On 27 September 2008 the offender committed an offence of driving with a mid-range prescribed concentration of alcohol as well as two other driving offences. He was dealt with for those offences at Wagga Wagga and fines were imposed. As I have just mentioned, he went into custody on 4 October 2008 and was released on parole on 3 October 2010.
4. On 6 March 2011 he committed the offence of destroying or damaging property. That offence was detected by the police at Broken Hill and the offender was sentenced by the Local Court at Wentworth to one month's imprisonment commencing on 6 March 2011. However as that offence was a breach of the offender's parole he was not released from custody until 7 May 2011. On 24 July 2011 he assaulted two police officers, resisted a police officer in the execution of the officer's duty and intimated another police officer in the execution of that officer's duty. For each of those offences he was sentenced to imprisonment for two months commencing on 24 July 2011. Those sentences were all concurrent. However as those offences also constituted a breach of parole the offender was not released from custody until 3 July 2012 at the end of the head sentence for the offence of recklessly inflicting grievous bodily harm. The present offences were committed less than 14 months later.
5. The offender has a considerable criminal history going back to the age of 15. Since the age of 17 he has been committing serious crimes of violence. This shows that the present offences are outside the first characteristic of the Henry guideline. It also demonstrates that the offender is not entitled to any leniency when considering the sentence to be passed. It also raises two other issues: firstly, the protection of the public needs to be given greater weight in sentencing, and secondly, on the other hand, the offender runs the risk of institutionalisation. Since turning 18 years old, that is in almost nine years he has only been out of prison for less than two years, on the calculation of his counsel.
6. The need to protect the community indicates that a lengthy custodial penalty ought be imposed. The risk of institutionalisation points in the opposite direction and can amount to special circumstances to warrant a shorter non-parole period than required by the statutory ratio imposed by s 44 of the Crimes (Sentencing Procedure) Act 1999. The authority for that proposition is Jackson v R [2010] NSWCCA 162 per Fullerton J at [24] to [25]. There is no direct evidence of the risk of institutionalisation. Counsel for the offender raised this issue. The nearest the evidence alludes to this issue is the following statement in the pre-sentence report: "Mr Faletau….claimed he has utilised his time in custody to consider his actions. He declared he wasted too many years in his life in custody and indicated a desire to address his offending behaviour if afforded the opportunity." There is force in Mr Williams' submission. Especially is that so when it is clear, as I shall soon discuss, that the offender has fallen in with bad company in prison. On the need to protect the public on the other hand Mr Reville for the Crown helpfully referred me to Dyer v R [2011] NSWCCA 185 at [50] to [51]. These are yet two more matters to be taken into account in imposing the sentence or sentences which must be imposed.

Personal circumstances

1. I turn now to consider the offender's personal circumstances. The sources concerning the offender's personal circumstances are limited. No one gave any oral evidence. The offender tendered a letter from his sister Ms Tina Coleman dated 21 October 2016 which became exhibit 5. The only other relevant information is in the pre-sentence report which is exhibit 7.
2. The offender was born on 30 October 1989. He is the youngest of eight siblings. According to the pre-sentence report he was raised in a positive environment. Ms Coleman's letter supports that conclusion. His parents separated when he was a teenager. He remained in the care of his mother. His father is described by Ms Coleman as "an abusive, alcoholic father". According to the pre-sentence report the offender maintains that he has a close relationship with both his parents and with his siblings. According to Ms Coleman his "seven older siblings….are currently highly successful in their own careers varying from property investment, the health industry and the Australian public service". That family history negates any suggestion of childhood disadvantage.
3. The offender clearly has a Pacific Islander background. Like most with such a background he was a regular church goer "from birth". His recently deceased grandfather was a Minister of a church for over 40 years. Ms Coleman went on to say this: "Papani is extremely close to his mother and siblings. He is a quiet, generous, very helpful, hardworking, sensitive young man who loves to invest a lot his time when he wasn't at work caring for his nieces and nephews, helping family, churches, friends and neighbours that are in need, helping his mother and sisters around the house physically and financially. Papani is a very selfless and kind-hearted young man who without would always put other people's interests first before his own." Ms Coleman goes on to make further statements about the offender's good character. There is clearly a dichotomy between the young man described by Ms Coleman and the young man's crimes which I have detailed so far. As Mr Williams submitted, it is likely that Ms Coleman is describing the young brother she remembers and would like to recover than the young man whose exploits since the age of 15 I have outlined.
4. The offender completed year 10 at school and then found work with Statewide Sleepers at Minto. This work is described in pre-sentence report as being "a labourer in the railway construction and maintenance industries". I accept as described by Ms Coleman that this was hard physical work and that the offender's work performance was appreciated by his employers. Ms Coleman described the offender as getting himself into trouble in 2007, clearly when he was 17 years old and his employer seeking to assist him to try and keep him out of trouble. Ms Coleman then said this: "Papani can be very gullible and be so easily misled by the wrong people due to his empathetic and caring nature". This suggests that the offender, otherwise a good person, has been led astray by poor peer pressure. That is confirmed as Ms Coleman's opinion by this statement: "My whole family will continue to support Papani. We have offered a number of options to assist Papani in getting himself settled. We have relocated from Airds and now reside in Hinchinbrook to end the cycle and to avoid any association with people he used to surround himself with". The letter goes on to offer the offender a job in one of his elder brother's business on his release from custody and to record that the offender's family are prepared to pay for any counselling the offender may require: "whether it is to address childhood issues, drugs, alcohol or depression".
5. The offender's drug and alcohol history also suggests he fell in with a poor peer group in his teenage years. According to the presentence report, that history is this: "Mr Faletau reported a history of chronic alcohol problems which commenced in his early teenage years and became increasingly problematic within a short amount of time. During the same period he began the use of cannabis on a weekly basis. The use of alcohol and cannabis continued up until his recent incarceration. Mr Faletau advised that whilst imprisoned he commenced the use of methyl amphetamine for which he has attributed to his offending behaviour in custody. He insisted he ceased to use the use of methyl amphetamine within the last two months [prior to 30 June 2016] and expressed his desire to address his substance abuse by way of counselling/programs in the community if presented the opportunity". If that history be accurate, and there is nothing to say otherwise, the offender was only a user of alcohol and cannabis prior to his arrest on 31 August 2013.
6. The presentence report commences with pointing out, as I have already pointed out, that the offender previously breached the parole granted to him as a result of the sentence imposed by this Court at Campbelltown on 31 August 2009. Under the heading "Response to Imprisonment", the report says this: "Since Mr Faletau was incarcerated in September 2013 relating to the subject offences, he has declined to engage in any programs to address anger management or alcohol and other drug use. CSNSW records note that Mr Faletau is associated with an Outdoor Motorcycle Gang (OMCG) known as 'Outkast' whilst in custody. Mr Faletau has incurred 17 Institutional Misconduct Charges whilst in custody. During this period of incarceration charges have included: drug possession, assaults, refused/failed to supply sample, physical combat, damage/destroy or deface cell and failure to comply with Correctional Centre routine. Furthermore, Mr Faletau has been convicted of a further violent offence whilst in custody. Accordingly Mr Faletau has spent considerable time in segregation". The 17 institutional misconduct charges were the total number of such charges incurred throughout the offender's previous periods of incarceration. Since the presentence report was compiled, the offender has incurred two further charges. The total number of charges incurred since 31 August 2013 is 12. The further conviction was for affray committed in custody on 27 October 2015 for which the Local Court at Parramatta sentenced the offender to imprisonment for six months commencing on 27 October 2015.
7. To account for that offence, the parties have agreed that the sentence or sentences to be passed for these offences should commence not on 31 August 2013 but six months later on 28 February 2014.
8. The presentence report refers to the offender's attitude to his offending. It says this: "Mr Faletau stated he agreed with the police facts. Whilst discussing his involvement in the subject offences, he stated: 'I wasn't in my right mind at the time', and alleged 'it all just escalated into chaos before I knew it'. In interviews, Mr Faletau presented as avoidant and was unable to demonstrate any insight into his violent behaviours when other than identifying substance use as a contributing factor. Mr Faletau insisted he regretted his involvement in the subject offences..." Whether this represents true contrition and remorse, true victim empathy, is impossible for me to determine.
9. The presentence report recommends that if there is a minimum period of imprisonment of two years post sentence, the offender would be placed on a list to undertake the Violent Offender's Therapeutic Program. On the other hand, the report states the offender would benefit from a period of supervision by Community Corrections and that case management strategies should include, firstly, referral for appropriate Community Corrections programs, secondly, referral to general psychology services to address violent behaviours and thirdly, referral to counselling to address alcohol and drug abuse.
10. It is extremely unfortunate that the offender has not participated in any courses or programs since his incarceration on 31 August 2013. However, he has now expressed a desire to address his offending behaviour and to undertake courses and programs on release from custody. It is possible that his criminal associates in gaol have prevented him from participating in schemes to address his rehabilitation whilst in custody. How he has behaved to date in custody may well not reflect how he will co-operate in rehabilitation after release on parole. His best goad to undertake rehabilitation may be his mother and siblings and extended family.

Parity

1. Considerable time was spent at the sentencing hearing considering issues relating to parity. As I have already mentioned, Norrish DCJ sentenced Williams and Roberts on 28 November 2014 and his reasons covering 49 pages form part of exhibit 1. At p 37, his Honour referred to the fact that Kinchella had been sentenced on 13 November 2014 by Conlon DCJ at Wollongong but his Honour's reasons were not available to Norrish DCJ. They have not been made available to me either. No submission has been made by either party that I should take into account the sentence passed by Conlon DCJ in considering the appropriate sentence for the present offender.
2. I must point out pertinent differences between the present offender and his co-offenders. I shall firstly deal with Roberts. As I have already pointed out, Roberts was 22 years old at the time of the offences. The present offender was then 23 years old. Roberts has an Aboriginal background and grew up in the Campbelltown area where he was subjected to racial abuse which his Honour categorised as "social exclusion". His Honour accepted that the Fernando/Kennedy/Bugmy line of authority applied to Roberts. Roberts also had a chronic psychotic illness, schizophrenia, which was diagnosed in his teenage years and for which he was on medication during his incarceration. At p 29, Norrish DCJ said this: "With regard to Mr Roberts, it was submitted the history of early drug use following upon alcohol use graduating through methyl amphetamine by the age of 17 or 18 set the scene for an understanding of the circumstances of the commission of crimes to obtain money to obtain drugs (SS v Regina [2009] NSWCCA 114). The occurrence of drug addiction at a very young age has been recognised as an exception to the general rule laid down in the matters discussed by Wood J in R v Henry...particularly at [273] where his Honour discussed, if I might then call them, the qualifications to the general proposition that drug use or addiction does not mitigate sentence in the sentencing for armed robbery matters." This was a submission which his Honour accepted to some degree as stated on p 31 of his reasons. For the present offences, Roberts was entitled to a 25% discount of his sentence because of his early plea of guilty and the contrition and remorse that that plea demonstrated. On the other hand, all the offences for which Roberts stood for sentence were committed while he was at conditional liberty, whilst he was on parole, an aggravating factor not applicable to Mr Faletau.
3. In addition to the offences for which this offender is to be sentenced, Roberts also stood for sentence for an offence under s 97(1) on 27 August 2013, an armed robbery of a newsagency at Mt Pritchard and an offence under s 97(2) on 30 August 2013, an aggravated armed robbery of a service station at St Helens Park committed in company with Williams. Roberts' criminal history was summed up by Norrish DCJ thus: "Mr Roberts first appeared in the Children's Court in 2007 and has a range of appearances in the Children's Court subsequently for property offences, particularly, breaking, entering and stealing offences, four offences of violence, including a finding of guilt in relation to an offence of reckless wounding for which he was sentenced to a 12 month control order with a non-parole period of two months, and other offending. He was given various orders over the years, he appeared in the Children's Court including probation, orders to perform community service and control orders. As an adult in 2010, he appeared at the Local Court. He was convicted of common assault and affray and ultimately imprisoned in total to seven months' imprisonment with a non-parole period of one month and three days. In August 2011 he appeared at the Campbelltown District Court and was convicted of the armed robbery to which I referred earlier. The term of imprisonment, as I said, was three years nine months with a non-parole period of two years and six months commencing on 16 October 2010, hence his release to parole, as I said earlier, in April 2013. Since coming into custody after his arrest in relation to the current matters, he has a number of matters of failing to perform or failing objectively prescribed urinalysis and other infractions." In my assessment, the criminal histories of each of Roberts and this offender could be considered comparable.
4. The present offender has these advantages over Roberts: He did not commit the offences whilst at conditional liberty and he did not commit the offences of 27 August and 31 August 2013. On the other hand, this offender cannot rely on social exclusion or disadvantage, or on a serious psychiatric illness, or on an early childhood addiction to powerful illicit drugs or on an early plea of guilty. I turn now to consider the differences between the current offender and Williams.
5. As I earlier pointed out, Williams was 32 years old at the time of these offences compared to the current offender's 23 years. The facts strongly suggest that Williams was the protagonist in these offences. Norrish DCJ acknowledged this at p 40, but ultimately reached the view that there was little to distinguish the criminality of Williams to that of Roberts. Nevertheless, Williams's sentence was longer. As between Williams and Faletau, I would accept that Williams's criminality was greater.
6. Williams is an Aboriginal Australian. He grew up in Brungle, a small Aboriginal community between Tumut and Gundagai. Norrish DCJ pointed out that it was "a very impoverished, disadvantaged community". The Fernando/Kennedy/Bugmy principles applied squarely to Williams.
7. A psychologist provided a report concerning Williams. He had a history of anxiety and panic attacks commencing in 2000. He had had auditory hallucinations. He had a number of symptoms "consistent with a psychotic reaction to drugs he had been taking". That is a statement of Norrish DCJ. At the time of testing by the psychologist he had moderate levels of depression, anxiety and stress. He appears to have qualified for a substance abuse disorder. It appears that the psychologist provided a positive or favourable prognosis if the drug habit could be overcome.
8. Williams had a history of criminal offending since probably his teenage years. Norrish DCJ accepted that his criminal record was related to both poor peer pressure and drug-taking. He appears to have been a chronic drug user. For five years prior to his arrest he was addicted to crystal methylamphetamine. Like Roberts, Williams was entitled to a discount of 25% for an early plea of guilty, showing contrition and remorse. His Honour set that out on p 31 of his reasons. Unlike Roberts, Williams was not subject to conditional liberty at the time of his offending. Like Roberts, Williams also stood for sentence for crimes additional to those committed by the present offender.
9. These additional crimes were an offence under s 97(2) committed on 30 August 2013, the aggravated armed robbery of the service station at St Helen's Park, committed in company with Roberts, an offence under s 112(2) on 22 September 2013, an aggravated breaking, entering and stealing of a dwelling house at Leumeah, an offence of taking and driving a car late on 21 September 2013 or earlier on 22 September 2013 and unlicensed driving.
10. Williams' criminal history was lengthy. His Honour Norrish DCJ attempted to summarise it on pp 13 and 14 of his reasons: "Mr Williams' record extends over a longer period of course than Mr Roberts' because he is over ten years older. He, likewise, had a number of appearances in the Children's Court for offences of dishonesty, assault, affray, robbery, assault police and various street offences. As an adult he has findings of guilt. Shortly after turning 18, at Gundagai Local Court and at Tumut Local Court for various offences, including intimidating a police officer, damaging property, breaking, entering and stealing, taking and driving a vehicle without consent, stealing a motor vehicle, driving in a manner dangerous to the public, assault occasioning actual bodily harm. These convictions are recorded over a period of time between 2000 and 2006 and he received various forms of penalty including a term of imprisonment for 18 months in relation to taking of a motor vehicle in 2000, and another sentence of 12 months with a non-parole period of nine months for an offence of assault occasioning actual bodily harm which sentence was imposed in 2006. He also had a finding of guilt against him for a crime of wounding for which he was sentenced to two years' imprisonment, which was suspended on him [sic] entering a s 12 bond. This was an order made in the District Court and could well have been made by me, however, I have no recollection of the offender. At the same time he was convicted of entering a building and committing an indictable offence for which he received a term of imprisonment of 18 months suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act. These offences were committed on 23 August 2002. Between 2006 and 2010 there was effectively a break in his offending although there was some minor offending in 2009 in one sense. He was convicted of assault occasioning actual bodily harm which of course can be a very serious offence, but was given a Community Service Order. He then started to appear at Court more frequently in 2011 and 2012. In 2011 he was placed on a s 9 [bond], then, after committing offences with which I am directly concerned, he appeared in the Local Court [at Wagga Wagga] this year in relation to a number of offences, including driving under the influence of alcohol and other drug, possessing implements to enter and drive a conveyance, taking and driving a conveyance without the consent of the owner, and driving recklessly in the course of police pursuit for which he received various terms of imprisonment that total effectively 14 months with an effective non-parole period of nine months due to expire on 29 December 2014." His Honour backdated the Local Court's nine month non-parole period at the time of Williams' arrest on 17 February 2013 and commenced the sentences imposed by him on 27 July 2014.
11. It appears to me that the prior offending of Williams whilst lengthy did not involve crimes of the same gravity as those previously committed by Roberts and by this offender.
12. I should record that it appears that both Roberts and Williams were charged in the same way as this offender for the offences at Tumut. That can be found on p 3 of his Honour's reasons. Norrish DCJ imposed wholly concurrent sentences for the two offences at Tumut. For Roberts his Honour started with a head sentence of seven years which, discounted by 25%, became five years and three months. He fixed a non-parole period of two years. For Williams his Honour clearly started with a head sentence of eight years which discounted by 25% became six years. He imposed a non-parole period of two years and five months. Clearly his Honour found special circumstances in respect of each of these offenders.
13. When the other offences committed by Roberts and Williams were taken into account, bearing in mind the principle of totality, Roberts received an overall sentence of seven years and three months with a non-parole period of four years, but four months of that non-parole period was concurrent with an earlier sentence. Williams received an overall head sentence of eight years with a non-parole period of four years and five months.

Consideration

1. With profound respect to my learned colleague Norrish DCJ, I am unable to accept that wholly concurrent sentences for each count in the indictment should be imposed. The offences at 20 Dalhunty Street although followed immediately by the offences at 18 Dalhunty Street were discrete the offender could have decided not to enter number 18 and he would not have committed the offences comprising count 2 and the associated matters on the Form 1 applicable to that count. The victims in each house were different. The proceeds of robbery in each house were different. Some accumulation is therefore called for.
2. Independently of Norrish DCJ, I have reached the conclusion, when considering the seriousness of each offence, that a range of sentence for each offence is between six and seven years. I note that statistics available from the Judicial Commission indicate that the median head sentence for an offence contrary to s 97(2) is imprisonment for six years. The sample of cases is 317 indicating that the statistics have some validity.
3. I wholly agree with the seven years indicative sentence chosen by his Honour for Roberts and the eight year indicative sentence chosen for Williams. I have already found that Williams' criminality was greater than that of Faletau. Accepting parity with the sentence imposed for Roberts but allowing for accumulation I have decided to choose an indicative sentence of six years for each of the offences committed by the present offender. Six years less 10% rounded in the offender's favour gives a head sentence of five years and four months. Applying the statutory nexus that would result in a non-parole period of four years. However with accumulation the non-parole period would be greater.
4. Here again parity must come into play. Roberts total non-parole period was four years. Williams' total non-parole period was four years and five months. Each of those offenders committed a greater number of offences and as far as Roberts was concerned the aggravating factor of offending whilst at conditional liberty made his offending greater than that of the present offender.
5. Despite the differences in the discounts I have reached the conclusion that the offender would be left with a justifiable sense of grievance if he were required to spend longer in custody than his two co-offenders. Thus he should not have an effective non-parole period exceeding four years.
6. The questions raised by the Crimes (Sentencing Procedure) Act 1999 s 44(1) is whether four years is the minimum period for which this offender must be kept in detention in relation to the offences on the indictment taking into account the eight matters on the two Forms 1. Bearing in mind all the matters I have canvassed thus far in these reasons I believe it is.
7. Necessarily there will be a lengthy additional period during which the offender will be eligible to be released to parole. Whether he is released on parole will be a question for the Parole Board. It will be up to the offender to persuade the Board that he is suitable to be released to parole. The offender will need to prove to the Board that he does wish to stop substance abuse, that he does wish to break criminal associations and that he does wish to undergo counselling to resolve angry and violent behaviours. If he does not do so the Board may well refuse to admit him to parole.
8. Papani Faletau on the charge that on 31 August 2013 at Tumut in this State whilst being armed with a dangerous weapon namely a replica firearm you robbed Amanda Robb of two mobile phones, a Sony 14.1 megapixel camera and $230 in Australian currency the property of Amanda Robb you are convicted. I sentence you to imprisonment. I set a non-parole period of four years commencing on 28 February 2014 and expiring on 27 February 2018. I impose a further period of imprisonment of one year and four months expiring on 29 June 2019. The total sentence is therefore five years and four months comprising the non-parole period and a balance of sentence. You are eligible to be considered for release to parole on 27 February 2018. In passing that sentence I have taken into account the matters on the Form 1.
9. On the charge that on 31 August 2013 at Tumut in this State whilst being armed with a dangerous weapon, namely a replica firearm you robbed Timothy Gorman of a mobile phone the property of Timothy Gorman you are convicted. I sentence you to imprisonment. I set a non-parole period of three years and six months commencing on 31 August 2014 and expiring on 27 February 2018. I impose a further period of imprisonment of one year and ten months expiring on 30 December 2019. The total sentence is therefore five years and four months, comprising the non-parole period and the balance of the sentence. I find special circumstances. Firstly the requirements of parity and secondly that the total non-parole period for all the offences you committed ought not exceed four years. You are eligible to be considered for release to parole on 27 February 2018. In passing that sentence I have taken into account the matters on the Form 1.
10. Any other orders sought? REVILLE: Not by the Crown your Honour. WILLIAMS: No your Honour may it please the Court.

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: 16 February 2017