R v Garnett; R v Goodfellow

District Court of NSW|2014-07-18

MAXWELL DEREK GARNETT

On 12 February 2014, Maxwell Derek Garnett was committed for sentence following a plea of guilty to one offence. That offence is as follows: that he, on 4 May 2013, at Hazelbrook in the State of New South Wales, did rob employee Sharon Snelling of certain property, to wit, $10,070 in assorted Australian currency the property of Hazelbrook Bowling and Sporting Club, whilst being then armed with a dangerous weapon, to wit, a shortened .22 calibre pump action Winchester rifle.
The offence is contrary to s 97(2) Crimes Act 1900 (NSW). A maximum penalty of imprisonment for 25 years is prescribed.
I convict Mr Garnett of this offence.

FACTS

The factual context of the offence is found in a statement of agreed facts which is follows: "Robbery whilst armed - 4 May 2013 About 6.00am on Saturday 4 May 2013, the offender, Garnett, and the co-accused, Goodfellow, attended the Hazelbrook Bowling and Sporting Club. Garnett and Goodfellow were recorded on closed circuit television (CCTV) footage to loiter in the car park area before continuing through the car park and out of view. At about 7.00am that morning, the greens keeper, Les Brett, arrived at the location. A short time later, Goodfellow approached Brett whilst wearing a blue and black coloured balaclava and armed with a sawn off pump action rifle. He forced Brett to unlock the front doors to the club. Goodfellow threatened to shoot Brett if he did not comply. Around that time, Garnett emerged from shrubs which surround the car park and walked to the front doors of the club whilst wearing a black coloured balaclava. Goodfellow then removed the green coloured 'Turf Care' brand baseball cap which Brett had been wearing and put it on his own head. Goodfellow directed Brett to the office area. Once inside, Goodfellow removed the cap and put a balaclava on. At that time Garnett had entered the club. He was armed with a yellow coloured axe. Goodfellow was wearing a black and blue coloured balaclava, a maroon and blue coloured wind jacket with the word 'Glorious' written across the back in white writing, grey tracksuit pants with two white stripes running down each leg, beige coloured gloves and white coloured sneakers with blue accents. Garnett was wearing a black coloured balaclava, a blue chequered flannelette shirt, dark coloured jacket, grey tracksuit pants with three white stripes running down each leg, black and blue coloured gloves and white coloured 'Adidas' sneakers. A number of these items of clothing were later recovered by police in bushland at Warragamba. Police also located a number of other exhibits including the CCTV footage from the Hazelbrook Bowling Club. Whilst in the office area, Goodfellow demanded Brett open the safe. Brett stated that he was unable to access the safe as he did not have the key. Goodfellow asked how long it would be before someone with keys to the safe arrived, to which Brett replied that it would not be until 11.00am. Brett was told to wait in the bar area while both offenders searched through the club for cash. Goodfellow emptied a garbage bin and proceeded to place items which he had stolen from the club inside it. At about 8.00am, Goodfellow escorted Brett from the club to the car park area where he directed Brett to drive his white coloured Toyota Prado four wheel drive to the loading dock area of the club. Goodfellow then forced Brett back inside the club where they waited for the other employees to arrive. At about 8.29am, Goodfellow walked to the bar area and removed cans of 'Coke'. He handed one to Garnett and also to Brett. Goodfellow and Garnett are recorded on CCTV drinking from the cans. Throughout the proceeding two hours, Goodfellow and Garnett are seen to remove what appears to be mobile telephones from their pockets and look at the screen. Goodfellow is also seen to spray a cleaning liquid over items that he or Garnett had previously touched, including the cash register and safe area. At about 11.05am, several other employees attended the club and were confronted by the two offenders. All of the victims, except Sharon Snelling, were forced to crawl to the poker machine area where they were told to lie down on the floor where Garnett stood guard over them with the yellow axe. Snelling was forced by Goodfellow to open the safe located within the office area. Brett and Snelling were directed by Goodfellow to place the money into a silver metal bin. $5,000 was removed from the safe. Snelling was visibly upset during this time, crying openly. Goodfellow directed Brett to take the silver metal bin and a crate full of poker machine note acceptors to the back door area. Goodfellow also directed Snelling to open the Automatic Teller Machine (ATM) located within the club. Snelling was forced to remove the cash canisters and hand them to Goodfellow. $5,000 was removed from the ATM. At about 11.20am, Goodfellow removed the CCTV hard drive from the office area, causing no further recording of the movements within the club. Goodfellow directed Brett to assist him to carry all of the cash and other items stolen from the club to Brett's Toyota Prado. Once all the items were loaded into the vehicle, Goodfellow and Garnett drove from the area in Brett's Toyota Prado and continued out of sight. At 11.28am, Brett telephoned the police and reported the incident. Police arrived and the area was secured for a subsequent crime scene examination. All witnesses were interviewed and a description of the offender was obtained. At about 6.30pm that evening, Brett's stolen Toyota Prado four wheel drive was located parked and unattended in Clearview Parade, Hazelbrook, by member of Brett's family, who had been driving through the streets in Hazelbrook looking for the vehicle. They reported finding the vehicle to police, who arrived and secured the vehicle for subsequent forensic examination. Identification of Goodfellow and Garnett The first offender, Goodfellow, is described as having a tattoo on his neck, being similar in shape to two 'half moons' or a 'wreath' by the victims. CCTV footage also depicts a similar shaped tattoo on the neck of the first offender, as the balaclava he was wearing rode up his neck slightly. Police charge photographs of Goodfellow taken on 25 April 2012 depict a tattoo on both the left and right side of his neck. The tattoos are words which resemble a wreath shape as described by Brett. Goodfellow was released from Corrective Services custody on 23 April 2013 after serving a 12 month imprisonment for unlawful possession of a firearm and ammunition. On 24 April 2013, Goodfellow connected telecommunication service ending in 067 which is one day after he was released from prison. This mobile service is turned off the day before the offence and only turned on at 17:53 the afternoon of the offence, in the Vincentia area. The second offender, Garnett, is recorded on police holdings as being 160-170 centimetres tall and between 60-70 kilograms with a medium build and blue eyes. Garnett fits the general height and build of the second offender. Garnett is subject to a current parole order in which he provided his contact phone number ending in 578. This mobile service is turned off at 08:18 the morning of the offence and turned on again at 11:53 that morning. When this mobile service is turned on at 11:53, it indicates that the mobile service was in the Springwood area. The mobile service is then tracked via cell site locations to the Springwood, Glossodia, North Richmond, Warragamba and Wallacia areas before travelling back to the South Coast where it is in the South Nowra area at 17:49. Police allege that Garnett was in possession of this mobile service during the day of the offence. This is supported by CCTV footage. Recovery of exhibits On 9 May 2013, a member of the public located property stolen from the robbery at a fire trail off Farnsworth Avenue, Warragamba. Located items include 14 cash boxes, a metal bucket the offender placed the ATM cash canisters in, a grey plastic crate used by the offenders, the CCTV hard drive from the club, a blue cash tin from the club, items of clothing matching that worn by offender two during the robbery, that being grey tracksuit pants with white stripes down one side, flannelette shirt and grey jacket. Clothing matching that worn by the male, being a purple jacket and grey track pants, along with two balaclavas, was also located. Amongst these items were two receipts which were located by crime scene examiners. Purchase of fuel after the offence One receipt was for a purchase of petrol at 12.01pm on 4 May 2013 at Prime Fuel, 281 Hawkesbury Road, Winmalee, for motor vehicle BS42YV (white coloured Holden Commodore station wagon). Police subsequently reviewed CCTV footage from the Prime Fuel Service Station for that specific time, and it depicted Garnett attending the counter area and paying for the fuel. The CCTV footage also depicts a second male standing beside vehicle BS42YV. That male strongly resembles Goodfellow. Prime Fuel at Winmalee is 17.9 kilometres east of the Hazelbrook Bowling and Sporting Club. The fuel purchase took place approximately 30 minutes after the offenders left the Hazelbrook Bowling and Sporting Club. The second receipt was for an Optus mobile telephone recharge voucher for $10, which was purchased about 2.20am on 3 May 2013 at the Mobil Service Station, Bomaderry. Police have reviewed the CCTV footage from that date and time and it depicts Garnett purchasing the recharge voucher. Vehicle BS42YV Vehicle BS42YV is registered to Martina Lee Craig of xx Way, Nowra. Craig is a known associate of Goodfellow and is currently in a relationship with Garnett. On 2 May 2013, police spoke with Craig at her current residence, xx Street, Vincentia. Also present at the location was Goodfellow and Damien Pratt. Vehicle BS42YV was parked at the residence. On 3 May 2013, Garnett was stopped by police for a traffic offence in vehicle BS42YV at Railway Street, Bomaderry. Damien Pratt was with [her] at the time. Forensic examination of exhibits seized A subsequent forensic examination of a number of exhibits were conducted, including: Blue glove: DNA profile recovered - Paul Goodfellow Black glove: DNA profile recovered - Paul Goodfellow Black and blue balaclava: DNA profile recovered - Paul Goodfellow White running shoe: DNA profile recovered - Paul Goodfellow Green 'Turf Care' baseball cap: DNA profile recovered - Paul Goodfellow 'Coke' can: DNA profile recovered - the DNA recovered is a mixture that originates from at least three individuals. The major component of this mixture has the same DNA profile as Maxwell Garnett. Black beanie with eyeholes: DNA profile recovered - Maxwell Garnett Flannelette shirt: DNA profile recovered - the major component of this mixture has the same DNA profile as Maxwell Garnett Mouth rim of 'Jack Daniels' can: DNA profile recovered - Maxwell Garnett The abovementioned exhibits were seized from the crime scene and also from bushland at Warragamba. Arrest of Goodfellow and Garnett Maxwell Garnett, the offender, resides with Paul Goodfellow, the co-accused, at xx Street, Vincentia. On 6 June 2013, Goodfellow and Garnett were arrested at xx Street, Vincentia. They were conveyed to Nowra Police Station where they were interviewed and then charged with the matters now before the Court. A search warrant was also executed at xx Street, Vincentia. A number of items were seized, including a sawn off pump action .22 calibre rifle which was located in the granny flat under a mattress. Goodfellow's wallet was also located on a table in that room. Police allege that this firearm is the weapon used in the armed robbery at the Hazelbrook Bowling and Sports Club on 4 May 2013."

OBJECTIVE SERIOUSNESS OF THE OFFENCE AND THE HENRY GUIDELINE JUDGMENT

From a recitation of the facts, it is clear this offence, being the s 97(2) offence, is objectively very serious: Simpson v R [2014] NSWCCA 23 at [25]-[27] (Hoeben CJ at CL). Put another way, it is a very serious example or a very serious instance of the behaviour made criminal by s 97(2): R v Campbell [2014] NSWCCA 102 at [27]-[33] (Simpson J).
The parties made submissions as to where the offence fell in a range of objective gravity.
Defence counsel submitted the offence falls within the lower end of the middle range.
The Crown submitted the offence fell within the upper level or upper end (see transcript 14 July 2014 p 62 line 36 ff and p 66 line 6 ff, 15 July 2014 p 29 line 43 ff, and 18 July 2014 p 31 line 11 ff).
Before I consider their submissions, it is important to note the Crown does not rely on the taking of the motor vehicle of Mr Brett in relation to this prisoner, or his being in the vehicle. His criminality ceases when the armed robbery is complete and they leave the club. I put that completely to one side in relation to this prisoner.
By way of comparison with the co-offender, Mr Goodfellow, he has this offence contrary to s 154C(2) being on a Form. Mr Goodfellow, on the other hand, does not have the detaining of Mr Brett as part of the s 97(2) offence. Mr Givorshner emphasised the shortened rifle was not discharged, there is no evidence it was loaded, no gratuitous application of violence, nobody physically hurt, no tying up and no substantial planning.
The Crown compared the present case to the Henry guideline. This is of course not a s 97(1) offence, rather a s 97(2). But as noted in Hamze v R [2006] NSWCCA 36, s 97(2) builds on s 97(1). The Crown also emphasised the length of time the offence took.
I accept what defence counsel say as to the absence of those features.
As against that, the offence was committed in company and that is not an element of the offence charged: Hamze at [37] (Giles JA). This is a feature of aggravation pursuant to s 21A(2)(e) Crimes (Sentencing Procedure) Act.
Turning then to the Henry guideline, the prisoner cannot be described as young. He was born on 3 July 1985. He is now aged 29 years and one and a half months. He was aged 27 years and 10 months at the time of the offence. Nor could it be said he has no or little criminal history.
Reference has just been made to the prisoner's record in relation to factor (i) in Henry: "young offender with no or little criminal history".
I wish to make it quite clear that I have not taken into account the prisoner's record in relation to the objective seriousness of the offence: R v McNaughton (2006) NSWLR 566; 163 A Crim R 381. The reference to it at this point in the remarks is only in respect of the comparison of the present case with the guideline.
The offence involved more than a limited degree of planning as stated in Henry. There was, in my view, considerable planning. Certainly in this respect, the present offence is more serious than an offence of the character identified in the guideline. Although I do not, nor did the Crown, elevate this to a feature of aggravation under s 21A(2)(n) Crimes (Sentencing Procedure) Act.
A balaclava and gloves were used. Each turned off their mobile phones. They sprayed cleaning liquid over touched items. A different vehicle, one with a connection to the offenders, was used to get the offenders from the South Coast to the Blue Mountains and back again. That vehicle was not at the club and accordingly not driven from the club. They travelled a considerable distance to the location. The offence was certainly not opportunistic or spur of the moment. The CCTV hard drive was removed. Other items were taken, as noted in the facts, and dumped a considerable distance away. Clothing was abandoned.
As against that, defence note the DNA of Mr Garnett was the major component of a mixture of DNA which originates from at least three individuals found on a can of Coke. This demonstrates, the defence say, a lack of professionalism. Also, the items left at the fire trailer were not destroyed, only dumped.
The armed robbery lasted for in the order of four hours to four hours and 20 minutes, from 7.00am to about 11.20am.
Mr Brett was detained in the course of the robbery and subject to the robbers the whole time.
The victim noted in the charge is Ms Snelling. She only arrived at 11.05am and therefore was only subjected to detention and the armed robbery for in the order of 20 minutes.
Mr Brett was not named as a victim and the Crown stated a number of times during the submissions there was only one victim, Ms Snelling. However, others were involved in the armed robbery. Several employees, including Ms Snelling, attended the club at 11.05am. What they were told to do and had to do is noted in the facts.
This is not an aggravating feature pursuant to s 21A(2)(m) Crimes (Sentencing Procedure) Act ("the offence involved multiple victims or a series of criminal acts"): see Campbell. In my view though, the offence is made somewhat more serious because of others being caught up in and subject to the armed robbery.
As to the length, the 20 minutes or so is a significant period of time. Ms Snelling is the victim noted and that is the amount of time she was subjected to the armed robbery. She was ordered to do things during this time. She was visibly upset and openly crying.
Mr Garnett had both an axe - a frightening weapon itself - and is liable for the shortened rifle, he being part of a joint enterprise.
Accordingly, there were two weapons utilised during the armed robbery.
I do not consider the victim was vulnerable in the sense used in Henry.
There was not a small amount taken.
All of these features (putting completely to one side the criminal history) in my view place the offence in the bottom band of the upper range, which is slightly above the band that is the middle range.
This must have been a terrifying experience for Ms Snelling.

DETERRENCE

General deterrence must be a significant feature of this sentencing exercise. Specific deterrence has only limited importance in this case. I say this because of the prisoner's prior record. It remains, though, a consideration.

PRIOR CRIMINAL RECORD

The prisoner's record is not one which in my view disentitles him completely to leniency. He has nothing on his record nearly as serious as the present offence.
He has previously been sentenced to periodic detention, although the order was revoked and he spent some time in full-time custody, and has been ordered to undertake community service. He received suspended sentences in October 2011. He was subsequently called up and sentenced, on 18 July 2012, at age 27, to an effective 18 months with a non-parole period of 12 months. The offending though dated back to October 2010. The 18 months commenced on 20 January 2012, expiring on 19 July 2013. He was released to parole on 19 January 2013.
He has had short periods of being in custody bail refused. The sentence though he was still serving on parole at the time of the present matter is the first full-time custodial sentence imposed upon him.
He was arrested on 6 June 2013 and has been in continuous custody from that date. The balance of parole concluded on 21 August 2013, being a period of two months six days. The pre-sentence report says the parole was revoked because of the present offending.
The sentence I intend to impose will commence on 6 July 2013, allowing one month for the balance of parole.
It is a feature of aggravation the offence was committed on parole.

DEFENCE SUBMISSIONS AND SUBJECTIVE MATTERS

As already noted, the prisoner was born on 3 July 1985. He is now aged 29 years and one and a half months, and was aged 27 years and 10 months at the time of the offence.
I have taken into account the following material tendered in the defence case and the pre-sentence report: the pre-sentence report under the hand of Gordon Schuberg, dated 10 June 2014, part of Exhibit A; the psychiatric report under the hand of Dr Stephen Allnutt, dated 5 June 2014, part of Exhibit 1; affidavits sworn by the prisoner, dated 12 July 2014, and Derek Roy Garnett, dated 14 July 2014, part of Exhibit 1; Consultation Report under the hand of Dr Toby Greenacre, Consultant Physician in Diseases of Childhood, dated 5 September 1997, part of Exhibit 1; TAFE New South Wales certificates, all part of Exhibit 1, being Certificate III in Metal Roofing Trade, August 2004; Statement of Attainment in Responsible Service of Alcohol, December 2003; Statement of Attainment in Responsible Conduct of Gambling, December 2003; and Statement of Attainment in Course in Bonded Asbestos Removal (Construction), 17 October 2012; Certificate of Completion of Twelve Session Alcohol and Other Drug Program 'Getting Smart', Goulburn Correctional Centre, November 2012, part of Exhibit 1; letter from the Opioid Substitution Treatment Program, Drug and Alcohol Services, Justice Health, dated 8 January 2014, Exhibit 2; and the sworn evidence of his mother.
Mr Givorshner made extensive oral submissions on his client's behalf.
The reason for committing the offence was the debt he had accumulated to maintain his drug use. He has a long history of abusing drugs.
He came into custody addicted to drugs and unfortunately there was a considerable delay in his being able to enter the methadone program. That delay was no fault of his.
He has skills and has previously been a hard and talented qualified tradesman. He has two children.
He has significant and real family support.
In the light of R v Speeding [2001] NSWCCA 105; 121 A Crim R 426, Bichar v R [2006] NSWCCA 1, and Thewlis v R [2008] NSWCCA 176; 186 A Crim R 279, Mr Givorshner abandoned his original argument. He did then submit the words said, "Are you all OK" (transcript p 5, 15 July 2014), I would take into account on the issue of contrition. I reject this submission.
In my view, the matter cannot and should not be used in any way in the prisoner's favour.
Section 21A(5AA) Crimes (Sentencing Procedure) Act applies to this case. It provides: "In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor." The provision commenced on 31 January 2014 and the prisoner only pleaded guilty on 12 February 2014.
Mr Givorshner submitted his client had good prospects of making something of his life. I accept that he has reasonable prospects for rehabilitation. So much will depend on his ability to control his illegal drug use and because of that I am only prepared to find reasonable prospects, rather than good prospects.

PARITY

The prisoner's co-offender in the s 97(2) offence also is before me for sentence. Parity principles are only relevant to a very limited extent. This is because the other offender has other charges arising out of the same armed robbery and different criminality even within the armed robbery. That is, the detention of Mr Brett does not form any part of the s 97(2) offence. On the other hand, he has the s 154C offence on the Form and the Crown does not rely upon this at all in relation to Mr Garnett. He is much older and he has an extensive criminal record for offences of armed robbery and prior firearm offences.
In my view, neither of the prisoners has any basis for a justifiable sense of grievance in relation to the sentences imposed on each.
Mr Givorshner submitted, and the Crown conceded, there were special circumstances in this case. The prisoner will need assistance upon his release from custody to reintegrate back into the community and treatment in relation to his drug abuse. This treatment can be better provided in the community.

SENTENCE TO BE IMPOSED

The Court in every case must bear in mind the maximum penalty prescribed and the particular facts and circumstances, both objective and subjective, of the case, and the requirement for general deterrence.
The non-parole period imposed in this case is the one which in my view appropriately reflects the objective seriousness of the offending, the requirement for general deterrence, and the subjective matters.
In my view, there are special circumstances in this case, they being those referred to in my remarks on sentence.
The sentence I would have imposed prior to a reduction of 25 percent for utilitarian considerations only is 7 years and 3 months. That reduced by 25 percent is 5 years, 5 months, 1 week, rounded to 5 years, 5 months.
I impose the following sentence: A non-parole period of 3 years and 2 months, commencing on 6 July 2013 and expiring on 5 September 2016. The total term is a period of 5 years and 5 months, commencing on 6 July 2013 and expiring on 5 December 2018.
You will be eligible for consideration for release to parole on 5 September 2016.
Accordingly, the total effective term, including the one month allowed for the balance of parole, is 5 years 6 months. The total effective non-parole period is 3 years and 3 months.

PAUL GOODFELLOW

On 8 May 2014, Paul Goodfellow pleaded guilty to three offences in an indictment. Those offences are as follows: 1. On 4 May 2013 at Hazelbrook in the State of New South Wales, whilst in the company of Max Garnett, detained Les Brett with the intention of committing a serious indictable offence, namely armed robbery. 2. On 4 May 2013 at Hazelbrook in the State of New South Wales, whilst armed with a dangerous weapon, namely a shortened pump action .22 calibre Winchester rifle, robbed Sharon Snelling of $10,070 in Australian currency, cash drawers and a CCTV recording device, the property of Hazelbrook Bowling and Sporting Club. 3. On 6 June 2013 at Vincentia in the State of New South Wales, possessed a prohibited firearm, namely a shortened pump action .22 calibre Winchester rifle, without being authorised to do so by a licence or permit.
Count one is an offence contrary to s 86(2)(a) Crimes Act. The maximum penalty prescribed is imprisonment for 20 years.
Count two is an offence contrary to s 97(2) Crimes Act. The maximum penalty prescribed is imprisonment for 25 years.
Count three is an offence contrary to s 7(1) Firearms Act 1996 (NSW). The maximum penalty is imprisonment for 14 years. A standard non-parole period of three years is prescribed.
I convict Mr Goodfellow of each of these three offences.
In addition, he asks that two offences on a Form 1 be taken into account in respect of count two. The first offence is one of possess means of disguising face with intent to commit an indictable offence contrary to s 114(1)(c) Crimes Act: on 4 May 2013 at Hazelbrook in the State of New South Wales, had his face disguised with intent to commit the indictable offence of armed robbery. The second offence on the Form is an aggravated assault with intent to take / drive motor vehicle contrary to s 154C(2) Crimes Act: on 4 May 2013 at Hazelbrook in the State of New South Wales, whilst in the company of Max Garnett, assaulted Les Brett with intent to take a motor vehicle and took and drove a motor vehicle, namely a Toyota Prado four wheel drive bearing registration number LB-005 without the consent of Les Brett, the owner of the motor vehicle.
Further, there are two related offences on the s 166 certificate, to which he has today pleaded guilty. Those offences are as follows: 1. H51246825, Sequence 6, not keep firearm safe, s 39(1)(a) Firearms Act: between 11.30am and 3.30pm on 6 June 2013 at Vincentia did not take all reasonable precautions to ensure that a firearm was safely kept, the said Paul Goodfellow being the person who possessed the said firearm. The maximum penalty for this offence is two years or 50 penalty units, or both. 2. H51246825, Sequence 7, possess ammunition without holding licence / permit / authority, s 65(3) Firearms Act: between 11.30am and 3.30pm on 6 June 2013 at Vincentia did possess ammunition for a firearm without holding a licence or permit for a firearm which takes that ammunition / without being authorised to possess that ammunition by a licence or permit. The maximum penalty for this offence is 50 penalty units. H51246825, Sequence 9, possess shortened firearm (not pistol) without authority, s 62(1)(b) Firearms Act, is withdrawn.
I convict the prisoner of each of these two offences.

PLEAS OF GUILTY

The offences all took place on 4 May 2013. The prisoner was committed for trial in relation to counts two and three on the indictment on 27 March 2014. He pleaded guilty on arraignment in the District Court on 8 May 2014 to counts one, two and three on the indictment, count one coming forward as an ex officio indictment.
In my view, the appropriate reduction for utilitarian considerations only in relation to counts two and three is 15 percent. In relation though to count one, it being an offence first made available to him to plead to in the District Court, the appropriate reduction is 25 percent. This was defence counsel's submission and the Crown's submission.
In relation to remorse, the only reference to it is in the psychological report. He said he regretted committing the offences and he said he understood the victims would have been terrified and they could develop long-term psychological distress as a result of his action. He could not though feel empathy and this is a matter which concerns him. Section 21A(3)(i) Crimes (Sentencing Procedure) Act provides: "the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)". This being a matter of mitigation, I am satisfied on the balance of probabilities this is made out.
The prisoner has been in custody, bail refused, since the date of his arrest, being 6 June 2013. Accordingly, the effective sentence I impose will commence from that date.

FACTS

The factual context of the offences are found in a statement of agreed facts which is as follows: "At approximately 6.00am, 4 May 2013, the accused, Paul Goodfellow, and the co-accused, Maxwell Garnett, were recorded on closed circuit television (CCTV) footage to loiter in the car park area of the Hazelbrook Bowling Club before continuing through the car park and out of view. At about 7.00am that same morning, Les Brett, greenkeeper of the Hazelbrook Bowling and Sporting Club, was approached in the shed by the accused who was wearing a black balaclava and was pointing a sawn off rifle at him. He was told to get on the ground. The accused is described as a large / solid guy, about five foot 10 inches to six foot with an Australian accent. He has blue eyes, was about 35 to 40 years old and was wearing a dark black / grey bomber jacket, dark Adidas type track pants, white shoes with blue trim and beige gardening gloves. He had a tattoo on his neck on the left side like a sheaf. CCTV footage also depicts a similar shaped tattoo on the neck of the accused, as the balaclava he was wearing rode up his neck slightly. Police charge photographs of the accused taken on 25 April 2012 depict a tattoo on both the left and right side of his neck. The tattoos are words which resemble a wreath shape as described by Mr Brett. The co-accused, Maxwell Garnett, was behind the accused wearing a black balaclava and holding a yellow tomahawk. He was described as having a shorter, lighter build and was about five foot seven inches with an Australian access and blue eyes. He was about 30 years old. He was wearing grey tracksuit pants, a dark jacket and a flannelette shirt with black and blue gloves. The accused walked Mr Brett to the clubhouse and threatened Mr Brett that he would be shot if he turned around to look at him and didn't act normal. He was told to turn off the alarm. Mr Brett then opened up the bar and back room. The accused was asking a number of questions including inquiries about exits to the club and the back dock. The accused removed the green coloured 'Turf Care' brand baseball cap which Mr Brett had been wearing and put it on his head. Whilst in the office area, the accused demanded Mr Brett open the safe. Mr Brett stated that he was unable to access the safe as he did not have the keys and informed the accused that Sharon Snelling had the keys to the safe and she would not arrive until 11.00am. Mr Brett was told to wait in the back room whilst both offenders searched through the club. Whilst they were searching, Mr Brett heard a noise and saw that they were spraying something similar to Windex. This is also seen on the CCTV footage. The accused emptied a garbage bin and proceeded to place items which he had stolen from the club inside it. At about 8.00am, the accused escorted Mr Brett from the club to the car park where he directed Mr Brett to drive his white coloured Toyota Prado four wheel drive to the loading dock area of the club. The accused then forced Mr Brett back inside the club where they waited for the other employees to arrive. At about 11.05am, a number of people arrived at the club, including Sharon Snelling. Mr Brett was taken to the bar area and the employees and patrons were confronted by the two offenders. All of the victims, except Sharon Snelling, were forced to crawl to the poker machine area where they were told to lie down on the floor where the co-accused stood guard over them with the yellow axe. Ms Snelling was told by the accused to follow him to the back room where Mr Brett was standing and to open the safe located within the office area. Mr Brett and Ms Snelling were directed by the accused to place the money into a silver metal bin. Ms Snelling was visibly upset during this time, crying openly. During this time the co-accused was walking between the office and the poker machine area. The accused directed Mr Brett to take the silver metal bin and a crate full of poker machine note acceptors to the back dock area. The accused also directed Ms Snelling to open the Automated Teller Machine (ATM) located within the club. Ms Snelling was forced to remove the cash canisters and hand them to the accused. At about 11.20am, the accused removed the CCTV hard drive from the office area, causing no further recording of the movements within the club. The accused directed Brett to assist him to carry all of the cash and other items stolen from the club to Brett's Toyota Prado. Once all the items were loaded into the vehicle, the accused and co-accused drove from the area in Mr Brett's Toyota Prado and continued out of sight. At 11.28am, Mr Brett telephoned police and reported the incident. Police arrived and the area was secured for subsequent crime scene examination. All witnesses were interviewed and descriptions of the offenders were obtained. The Office Manager of Hazelbrook Bowling Club confirmed that the following items were stolen during the robbery: Keno - $536; Bar - $1,523; Dollar coin float - $691; Till - $1,910; Rear poker machines - $1,780; Blue tin - $750; ATM - $2,720; Tip jar - $160; Total = $10,070. Costs to replace 14 cash boxes and keys = $700. CCTV hard drive = $1,000. At about 6.30pm that evening, Brett's stolen Toyota Prado four wheel drive was located parked and unattended in Clearview Parade, Hazelbrook, by members of Brett's family. Garnett is subject to a current parole order in which he provided his contact phone number ending in 578. This mobile service is turned off at 08:18 the morning of the offence and turned on again at 11.53am that morning. When this mobile service is turned on at 11:53, it indicates that the mobile service was in the Springwood area. The mobile service is then tracked via cell site locations to the Springwood, Glossodia, North Richmond, Warragamba and Wallacia areas before travelling back to the South Coast where it is in the South Nowra area at 17:49. Police allege that Garnett was in possession of this mobile service during the day of the offence. This is supported by CCTV footage. On 9 May 2013, a member of the public located property stolen from the robbery at a fire trail off Farnsworth Avenue, Warragamba. He handed the following items to police: Leilou brand shoes; Jacket; Check shirt; White / grey track pants; Cleveland Golf baseball cap; Turf Care cap. Police were then taken to the fire trail and the following items were located: Eastern side of the track Small cash box ('5' handwritten on it); Small cash box ('9' handwritten on it); Plastic bag with raffle tickets, paperwork and drinks cans; Green lighter ('Hazelbrook Bowling Club' inscribed); Blue money box; Blue enviro bag on top of rolled up newspaper; White plastic bags containing white plastic bags; Brown metal bin; Black cash box ('11' handwritten on it); White and blue left shoe - size nine 'Leilou' brand; Powerpack; NZ keyring and seven keys; White and blue right shoe - size nine 'Leilou' brand; Plastic resealable bag with blue 'Nowra Show Society Inc' wrist band; Bundled clothing - purple and blue jacket, check flannelette shirt, white cap 'Cleveland Golf', grey track pants with light stripe; Various lighters scattered throughout the bush with 'Hazelbrook Bowling Club' print; Biscuit tin; Garrison remote on silver tin lid / yellow key tag; Cash box ('10' handwritten on it); 'Heaven' brand biscuit tin; Various receipts, drink bottles and food wrappers. Western side of the track 375ml Coke can; Cardboard box with straws and stationery; Black sunglasses; PACOM digital video recorder; Grey milk crate with orange bar mat; Black cash box ('7 handwritten on it); Black cash box ('6' handwritten on it); Four cash boxes, marked '3'; Black picnic blanket plus cloth ANZ bag; Black cash box ('14' handwritten on it); Powershield surge protector unit; Two cash boxes ('1' and '2' handwritten on them); 375ml Coke Zero can; Pair of silver scissors; Yellow and black handled side cutter pliers; Three cash boxes ('4', '8' and '12' handwritten on them). Amongst these items were two receipts which were located by crime scene examiners. One receipt was for a purchase of petrol at 12.01pm on 4 May 2013 at Prime Fuel, 281 Hawkesbury Road, Winmalee, for motor vehicle BS42YV (white coloured Holden Commodore station wagon). Police subsequently reviewed CCTV footage from the Prime Fuel Service Station for that specific time, and it depicted the co-accused attending the counter area and paying for the fuel. The CCTV footage also depicts a second male standing beside vehicle BS42YV. That male strongly resembles the accused. Prime Fuel at Winmalee is 17.9 kilometres east of the Hazelbrook Bowling and Sporting Club. The fuel purchase took place approximately 30 minutes after the offenders left the Hazelbrook Bowling and Sporting Club. The second receipt was for an Optus mobile telephone recharge voucher for $10, which was purchased about 2.20am on 3 May 2013 at the Mobil Service Station, Bomaderry. Police have reviewed the CCTV footage from that date and time and it depicts co-accused purchasing the recharge voucher. Vehicle BS42YV is registered to Martina Lee Craig of xx Way, Nowra. Craig is a known associate of the accused and is currently in a relationship with Garnett. On 2 May 2013, police spoke with Craig at her current residence, xx Street, Vincentia. Also present at the location was the accused and Damien Pratt. Vehicle BS42YV was parked at the residence. On 3 May 2013, the co-accused was stopped by police for a traffic offence in vehicle BS42YV at Railway Street, Bomaderry. Damien Pratt was with him at the time. A subsequent forensic examination of a number of exhibits were conducted with the following results: 'Coke' can on bar (R1) - Garnett is the major component; Inside blue trim glove (R8) - Goodfellow is the major component; Inside black trim glove (R9) - Goodfellow can't be excluded; Inside black beanie with eyeholes (R10) - Garnett; Inside black and blue beanie with eyeholes (R11) - Goodfellow; Right 'Leilou' shoe (R13) - Goodfellow was the major contributor; 'Turf Care' cap (R14) - Goodfellow can't be excluded; Jacket (R15) - Goodfellow and Garnett can't be excluded; Tracksuit pants (R17) - Goodfellow the major contributor; Flannelette shirt (R18) - Goodfellow the major contributor; Mouth rim on 'Jack Daniels' can (R19) - Garnett; Mouth rim on 'Jack Daniels' can (R20) - Garnett. Item one was found on the bar at the Bowling Club. Items two to 10 were found at Warragamba. Items 11 and 12 were located and seized as part of an operation to obtain DNA from Garnett to compare to DNA from the crime scene. On 6 June 2013, the accused and co-accused were arrested at xx Street, Vincentia. They were conveyed to Nowra Police Station where they were interviewed and then charged with the matters now before the Court. During the interview, the accused made a number of statements including: That he disclosed to police searching his house knowledge of a .22 rifle in the back of the house where he lived but it was not his; That he was previously convicted of armed robbery twice in relation to the Hazelbrook Bowling Club.; He claims he was set up; He said the mattress on the floor (where the rifle was located) is not his. A search warrant was also executed at xx Street, Vincentia. A numbers of items were seized, including a sawn off pump action .22 calibre rifle which was located in the granny flat under a mattress. The accused's wallet was also located on a table in that room."

OBJECTIVE SERIOUSNESS OF THE OFFENCES AND THE HENRY GUIDELINE JUDGMENT

From a recitation of the facts, it is clear that the s 97(2) offence is objectively very serious: Simpson v R at [25]-[27] (Hoeben CJ at CL). Put another way, it is a very serious example or a very serious instance of the behaviour made criminal by s 97(2): Campbell at [27]-[33] (Simpson J).
There are though three offences the prisoner has pleaded guilty to.
Mr Guirguis made submissions as to where the s 97(2) offence fell in a range of objective gravity. He did not in terms address each of the offences separately. Defence counsel submitted the offence fell within the lower end of the middle range. Because of this, a submission was requested to be made by him about this matter.
The Crown submitted the s 97(2) offence fell within the upper level or upper end (see transcript 14 July 2014 p 62 line 36 ff and p 66 line 6 ff, 15 July 2014 p 29 line 43 ff, and 18 July 2014 p 31 line 11 ff). He equally did not make a separate assessment in relation to each of the three offences. Because of this, a submission was requested to be made by the Crown about this matter.
Before I consider these submissions, it is important to note the Crown does not rely on the detention of Mr Brett in relation to the s 97(2) offence. This is because there is a separate charge in respect of this, being count one.
The disguising of the face in respect of planning of the s 97(2) offence cannot be taken into account because it is a separate offence on the Form.
The taking of the vehicle cannot be seen as a continuation of the armed robbery because it is a separate offence on the Form. This must be put completely to one side in relation to the armed robbery.
In terms of parity with the co-offender in relation to the s 97(2) offence only, weight must be given to the offence on the Form, being the s 154C offence. Mr Garnett was not charged with this and the Crown in this case accepted his criminality was complete after they left the club.
As against that, in relation to Mr Garnett, the detention of Mr Brett is part of the s 97(2) offence and because of that his criminality is heightened.
Returning to the s 97(2) offence only, Mr Guirguis emphasised the shortened rifle was not discharged, there is no evidence it was loaded, no gratuitous application of violence, nobody physically hurt, no tying up and no substantial planning.
The Crown compared the present case to the Henry guideline. This is of course not a s 97(1) offence, rather a s 97(2). But as noted in Hamze, s 97(2) builds on s 97(1). The Crown also emphasised the length of the time the offence took.
I accept what defence counsel say as to the absence of those features.
As against that, the offence was committed in company and that is not an element of the offence charged: Hamze at [37] (Giles JA). This is a feature of aggravation pursuant to s 21A(2)(e) Crimes (Sentencing Procedure) Act.
Turning then to the Henry guideline, the prisoner certainly cannot be described as young. He was born on 24 May 1969. He is now aged 45 years and about three months. The offences (with the exception of the firearms offence) were committed just three weeks prior to his 44th birthday. Nor could it be said he has no or little criminal history. He has a very poor history of committing armed robberies and also he has a criminal history for firearms offences.
Reference has just been made to the prisoner's record in relation to factor (i) in Henry: "young offender with no or little criminal history". I wish to make it quite clear that I have not taken into account the prisoner's record in relation to the objective seriousness of the offence: McNaughton. The reference to it at this point in the remarks is only in respect of the comparison of the present case with the guideline.
The offence involved more than a limited degree of planning, as stated in Henry. There was, in my view, considerable planning. Certainly in this respect the present offence is more serious than an offence of the character identified in the guideline. Although I do not, nor did the Crown, elevate this to a feature of aggravation under s 21A(2)(n) Crimes (Sentencing Procedure) Act.
Gloves were used. Each turned off their mobile phones. They sprayed cleaning liquid over touched items. A different vehicle, one with a connection to the offenders, was used to get the offenders from the South Coast to the Blue Mountains and back again. That vehicle was not at the club and accordingly not driven from the club. They travelled a considerable distance to the location. The offence was certainly not opportunistic or spur of the moment. The CCTV hard drive was removed. Other items were taken, as noted in the facts, and dumped a considerable distance away. Clothing was abandoned.
As against that, defence note the items left at the fire trail were dumped and not destroyed. The prisoner was a major contributor to the DNA recovered on certain items found there. This demonstrates, the defence say, a lack of professionalism.
Because of the separate offence found in count one, the length of the s 97(2) offence must be only from when Ms Snelling and, as stated in the facts, "a number of people arrived at the club".
Ms Snelling is the victim noted in the charge which is count two. She only arrived at 11.05am and was therefore only subject to detention and the armed robbery for in the order of twenty minutes. Mr Crown said on a number of occasions during submissions there was only one victim, Ms Snelling. However, others were involved in the armed robbery. Several employees, including Ms Snelling, attended the club at 11.05. What they were told to do and had to do is noted in the facts.
This is not an aggravating feature pursuant to s 21A(2)(m) Crimes (Sentencing Procedure) Act ("the offence involved multiple victims or a series of criminal acts"): see Campbell. In my view though, the offence is made somewhat more serious because of others being caught up in and subject to the armed robbery.
As to the length, the 20 minutes or so is a significant period of time. Ms Snelling is the victim noted and that is the amount of time she was subjected to the armed robbery. She was ordered to do things during this time. She was visibly upset and openly crying.
The Crown tendered a Victim Impact Statement from Ms Snelling. The terrible impact upon her of this terrifying experience is clear. Having said that, in my view the impact is no greater than one would expect. I do not take this into account as a feature of aggravation pursuant to s 21A(2)(g) Crimes (Sentencing Procedure) Act: "the injury, emotional harm, loss or damage caused by the offence was substantial". There was no submission by the Crown that I should.
Two weapons were used. The co-offender had an axe - a frightening weapon itself.
I do not consider the victim was vulnerable in the sense used in Henry.
There was not a small amount taken.
All of these features (putting completely to one side the criminal history), in my view place the offence in the bottom band of the upper range, which is slightly above the band which is the middle range.
I turn now to count one. The length of the detention is in the order of four hours to four hours and 20 minutes, from 7.00am to about 11.20am.
The Court in R v Newell [2004] NSWCCA 183 at [32] identified factors relevant to the seriousness of the given offence under s 86 which include:

the period of the detention - already noted;
the circumstances of the detention - being told what to do to assist in the armed robbery;
the person being detained - an employee of the club;
the purpose of the detention - to enable an armed robbery to be carried out. None of these though are conclusive as to the seriousness of the offence.

Mr Guirguis submitted that in relation to the s 86(2) offence, it was not a ransom-type situation. The victim was not tied up or blindfolded. The victim was not physically assaulted. This was not a vigilante or gang-related attack, and the duration was relatively limited.
In this case, the offender "walked Mr Brett to the clubhouse and threatened Mr Brett that he would be shot if he turned around to look at him and didn't act normal."
Mr Guirguis submitted: "given that the actual and threatened use of the firearm will be taken into account in respect of the s 97(2) offence, it would be double counting for this aggravating factor to be taken into account again for the s 86(2) offence. The actual use of the firearm, and all threats, implied or otherwise, can be, in my submission, properly characterised as forming part of the robbery offence."
The Crown submitted it is aggravated pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act.
I am of the view, this being a separate offence, it is not double counting in the circumstances of this case to take this feature of aggravation, being the threatened use of a weapon found in s 21A(2)(c) Crimes (Sentencing Procedure) Act, into account in relation to the s 86(2)(a) offence. In any event, this earlier part of the detention when he first confronted Mr Brett at about 7.00am was not taken into account in respect of the armed robbery, as already noted.
Mr Guirguis submitted this offence fell within the lower end of the middle range. The Crown submitted it is in the upper end or towards the higher end. The two relevant passages of the transcript which Mr Crown adopted is found at 14 July 2014 at about line 47, p 62 continuing to p 63, line 1 and 18 July 2014, p 31, line 11.
The offence in my view falls well into the middle range.
Finally, the possess prohibited firearm. The firearm in respect of this offence is the same as the firearm identified in count one as being used in the armed robbery. Mr Guirguis submitted that relevant considerations are it was not loaded, there was no child in the granny flat, it was located underneath the mattress and again this offence fell within the lower end of the middle range.
The Crown submitted the offence fell within the middle range.
In my view this offence falls just into the middle range.
The offence has a standard non-parole period and I take it into account in terms of the case of Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254.

OFFENCES ON THE FORM

The criminality in the Form 1 offence, being the s 154C(2) offence, must be given weight to. The usual purpose of the Form 1 process is to impose a greater sentence than if the principal offence stood alone. A court can take into account the criminality of the Form 1 offence to increase the penalty for the principal offence: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. The other offence is part of the s 97(2) offence.

GENERAL DETERRENCE AND SPECIFIC DETERRENCE

Both of these must be a significant feature of this sentencing exercise.

PRIOR CRIMINAL RECORD

In the circumstances of this case, it will suffice to say the prisoner has a very poor record in relation to committing armed robberies. He has committed a very substantial number of them. He has had two prior episodes, putting to one side the offence when he was a juvenile. Also, he has a history in respect of firearms offences.
I repeat again, in the circumstances of this case, it will suffice to say what I have said in relation to those matters.
He has a record of more recent times which has had him serve a fifteen month term from 15 February 2010, expiring on 14 May 2011. He was then imprisoned for offences including a number of offences involving a firearm committed on 25 April 2012. The effective sentence was 12 months imprisonment. He was released full-time on 23 April 2013, only some 11 days prior to the present offending.
His record is one which in my view evidences his continuing attitude of disobedience to the law and indicates that more weight is to be given to retribution, personal deterrence and protection of the community: McNaughton at [11]-[12] and [30] (Spigelman CJ), [63] (McClellan CJ at CL) and [83] (Barr and Bell JJ).

DEFENCE SUBMISSIONS AND SUBJECTIVE MATTERS

As noted above, the prisoner is now aged 45 years and about three months, having been born on 24 May 1969.
I have read and take into account the psychological report of Barbara Panagiotopoulos, dated 10 June 2014, and also the Corrective Services Case Note Report, both of which form Exhibit 1.
The prisoner had a sad, disruptive and deprived early life. His background is a relevant consideration affording some mitigation.
He has had a long history of abusing drugs, in more recent times methamphetamines.
He has worked when out of gaol and when in gaol.
The prisoner's prospects of rehabilitation must be guarded. Indeed, I would say they are only poor to fair.

PARITY

The prisoner's co-offender in the s 97(2) offence also is before me for sentence. Parity principles are only relevant to a very limited extent. This is because the other offender has no other charges arising out of the same armed robbery and different criminality even within the armed robbery.
Mr Garnett has the detention of Mr Brett as part of his armed robbery but the s 154C offence has no relevance to him at all.
The subjective features are very different, in particular, he is much younger and has a much less serious criminal record.
In my view, neither of the prisoners has any basis for a justifiable sense of grievance in relation to the sentences imposed on each.
Defence counsel submitted there were special circumstances in this case. The Crown said there were not.
In relation to accumulation, the defence conceded there must be some accumulation in relation to counts one and two but count three should be served wholly concurrently. In my view, as the Crown submitted, there should be partial accumulation in respect of each of the offences.
The special accumulation is a special circumstance in this case. Further, given what is contained in the psychological report, the treatment required by the prisoner can be better received by him in the community. Further, institutionalisation is a real concern in this case: Jackson v R [2010] NSWCCA 162 at [24]. The allowance, however, will only be moderate.

SENTENCES TO BE IMPOSED

Totality is an important consideration in this case.
The effective non parole period imposed is the one which in my view is the least period in custody required to properly reflect the objective seriousness of the offending, the requirement for general deterrence, and the subjective matters.
In my view there are special circumstances in this case, they being those referred to in my remarks on sentence.

Count 3 - s 7(1) Firearms Act

The sentence I would have imposed prior to reduction of 15 percent for utilitarian considerations only is 4 years and 3 months, reduced to 3 years, 7 months, 11 days, rounded to 3 years, 7 months.
The formal order I make is as follows: There is a non parole period of 2 years and 3 months, commencing on 6 June 2013, expiring on 5 September 2015. The total term is 3 years and 7 months, commencing on 6 June 2013, expiring on 5 January 2017.

Count 2 - s 97(2) Crimes Act and the offences on the Form

Taking into account the offences on the Form, the sentence I would have imposed prior to reduction of 15 percent for utilitarian considerations only is 8 year 6 months, reduced to 7 years 2 months 2 weeks 5 days, rounded to 7 years 2 months.
The formal order I make is as follows: There is a non-parole period of 4 years 8 months, commencing on 6 June 2014, expiring on 5 February 2019. The total term is 7 years 2 months, commencing on 6 June 2014, expiring on 5 August 2021.

Count 1 - s 86(2)(a) Crimes Act

The sentence I would have imposed prior to reduction of 25 percent for utilitarian considerations only is 5 years 9 months, reduced to 4 years 3 months 3 weeks, rounded to 4 years 3 months.
The formal order I make is as follows: There is a non-parole period of 18 months, commencing on 6 December 2017 and expiring on 5 June 2019. The total term is 4 years 3 months, commencing on 6 December 2017, expiring on 5 March 2022.
Accordingly, the total effective non-parole period is 6 years and the total effective term is 8 years and 9 months.
The allowance for special circumstances is 6.75 months.
You will be eligible for consideration for release to parole on 5 June 2019. In relation to each of the two offences on the s 166 certificate, the provisions of s 10A of the Crimes (Sentencing Procedure) Act will be utilised. So there is a conviction but no further penalty.
I make an order for the destruction of the firearm and the ammunition.

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: 02 October 2015

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