R v JOHNSTONE; R v KELLY-NELDER

Facts

1. Given the multitude of offending committed by both offenders I will deal with the seriousness of the matters as I deal with the facts. With some minor variations the facts are essentially common to each offender. The offenders were in a relationship at the time of the offending. As much as possible I will deal with the facts in chronological order.
2. The first matter is the Take and Drive Conveyance Without the Consent of the Owner contrary to s 154A(1)(a) of the Crimes Act. On 18 November 2018 Collette Bath lent her gold coloured Toyota Camry vehicle BL-70-VU to an acquaintance of hers, Johnny Texereria while she was at his residence in order for him to collect Johnstone. After about 10 minutes Texereria returned alone. In answer to an inquiry by Bath's son, Texereria told Bath that Braydon (the offender Johnstone) needed to use it and he will be back soon. Bath was angry that the vehicle had been lent to someone she did not know.
3. Bath waited for a couple of hours and eventually rang Johnstone who said he would bring the car back soon. She waited about 30 minutes and when she attempted to call Johnstone she received a message to the effect that the number had been disconnected. The vehicle was never returned to Bath however it was recovered at about 10.30pm on 19 November 2018 at a boat ramp in West Albury, bearing Victorian registration plates ATA-364 with the key sitting on top of the driver's side front tyre under the wheel arch. Kelly-Nelder also drove the vehicle between it leaving Ms Bath and the vehicle being recovered. Mr Mortimer for Johnstone submits (p 6 MFI 2 on sentence) that this was "low range offending". Mr King for Kelly-Nelder adopted that submission so far as his client was concerned. My note and memory is to the effect that the Crown took issue with the submission that this was at the bottom of the range of offending because the vehicle was used in connection with other offending. There is some substance to the Crown's submission but nevertheless the matter is well below mid-range.
4. The next two offences were Attempted Aggravated Take and Drive Vehicle Without the Consent of the Owner and the Attempted Robbery. These arise out of the one incident. At about 7.20pm on 18 November 2019 Joshua Esler was seated in his blue Commodore registered 1NF2JN at a service station in Wodonga Place, Albury with the window down and the door unlocked.
5. Kelly-Nelder drove into the service station in the gold Camry with Johnstone in the passenger's set and stopped behind the blue Commodore. Johnstone exited the vehicle and approached the driver's side of the blue Commodore. He opened the door, removed the keys from the ignition and told Esler to get out of the vehicle. Esler said, "what for, what's happening" to which Johnstone replied, "Get out of the car or I will stab you. Johnstone motioned as if to indicate that he had a knife behind his back.
6. Esler grabbed his phone and wallet and got out of the car. Johnstone on seeing the phone said, "I'll have your phone" and reached over to grab it. Esler pulled the phone away and ran from the car to the service station where he spoke to the attendant who indicated that she had seen the incident on CCTV.
7. Johnstone sat in the driver's seat attempting to start the vehicle but he was unsuccessful as, being a manual vehicle, the clutch needed to be depressed in order for the vehicle to start. After about 15-20 seconds Johnstone gave up and he and Kelly-Nelder left the service station in the Camry. Esler went back to the car. Some time later he was driving along Kiewa Street when he saw the Camry behind him. He believed that the offenders were after him and he disobeyed a red light to get away and drove straight to the police station.
8. In the Crown appeal of R v Barker & Gibson [2006] NSWCCA 20 Howie J (Basten JA, Hall J agreeing) at [63] said on the issue of assessing the objective seriousness of a matter contrary to s 154C(2) of the Crimes Act: "It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle."
9. In the matter involving Mr Esler's Commodore vehicle I could not be satisfied that the offence was planned; there were two people involved, the conduct involved the threat but not actual use of a weapon, the conduct lasted a few minutes at most, the threats were by conduct as well as an actual threat to stab, clearly there would have been some fear instilled in the victim limited particularly by the time the incident took, there was no damage to the vehicle, the attempt was unsuccessful, the offending occurred at about 7.20pm or thereabouts in mid-November so it would not have been dark. Wodonga Place is the major thoroughfare (other than the Hume Freeway) from Albury to Wodonga. There is no special vulnerability about the victim. The overwhelming inference that the motive for this offending was to obtain the use of the vehicle.
10. Mr Mortimer submits that the offending was at the lower end of the range. Mr King adopted that submission. My note and understanding of the Crown's submission was that the Crown did not necessarily dissent from that however the Crown also submitted that the court when considering the seriousness of the offending consider the cumulative effect of the three days of offending. The property the subject of the attempted robbery was a mobile phone. I have already commented on the threatened violence.
11. While the Crown's submission has some force, it occurs to me that the cumulative effect of the offending over the few days is something that is more properly taken into account in determining the extent of partial accumulation of sentences rather than the assessment of the seriousness of the individual offences.
12. Essentially I agree with the submissions of Messrs Mortimer and King that the criminality for the Attempt Aggravated Take and Drive Motor Vehicle and the Attempted Robbery is at the lower end of the range of seriousness for offences of those types.
13. The next offences to be considered are the Aggravated Take and Drive Motor Vehicle contrary to s 154C(2) and Armed Robbery. At about 3.10pm on 19 November 2018, Blake Braakman drove his 1998 model Holden Statesman registration CD-77-HM into the undercover carpark at the Lavington Shopping Centre. Lavington is a northern suburb of Albury. The two offenders in the gold Camry drove in behind him into the same bay of car spaces. By this time the Camry's plates had been changed to the Victorian plates ATA-364.
14. Mr Braakman did not notice the gold Camry behind him until he went to reverse to adjust his park. Kelly-Nelder parked the Camry but kept the engine running while Johnstone went to the driver's door of the white Statesman and said to Braakman, "I'm going to have to take your keys". He then said, "Give me the keys cunt or I'm going to stab ya". Braakman observed that Johnstone was holding a small black handled paring knife with a blade of about 10 cm in length. Johnstone also said, "I'm going to have to take your phone as well" and reached in and grabbed Mr Braakman's Samsung Galaxy S9 phone.
15. Mr Braakman grabbed at his backpack that contained his work gear. Johnstone grabbed Mr Braakman's left shoulder and pulled him out of the car. Johnstone then got into the driver's seat and drove out of the carpark followed by Kelly-Nelder who was driving the Camry. Mr Braakman went into the shopping centre, borrowed a mobile phone and called police.
16. I will go initially to the carjacking charge. There was the threat of violence with the presence of the knife and actual violence with the offender Johnstone pulling Mr Braakman out of the vehicle. The circumstance of aggravation relied upon by the Crown in respect of Johnstone is being armed with an offensive weapon and the circumstance of aggravation relied upon in respect of Kelly-Nelder is being in company. Being in company is less serious than being armed with an offensive weapon and being armed with an offensive weapon is less serious than the intentional or reckless infliction of actual bodily harm.
17. The offending was opportunistic to an extent. However there must have been some discussion or planning between the co-offenders, noting the manoeuvring of the Camry - essentially to prevent Mr Braakman from driving off - the presence of the knife and the fact that Kelly-Nelder kept the vehicle running. The threats included the use of the knife. There was only Mr Braakman in the vehicle at the time. Clearly there would have been some fear instilled in him. There is no apparent damage to the vehicle and one would always expect persons to be present in and around the carpark at Lavington during the afternoon, noting that the offence occurred at about 3.10pm. The motive for the offending was the obtaining the use of the vehicle.
18. Mr Mortimer on behalf of Johnstone submits that the offending is at the lower end of the range but not at the bottom of the range. Mr King adopted this so far as his client was concerned. I understood the Crown to submit, particularly noting that the Crown made a submission about the manoeuvring of the vehicle, that the offending was more serious than that submitted on behalf of the offenders. Given the matters to which I have referred the matter is moderately below mid-range.
19. The Armed Robbery count relates to Mr Braakman's mobile phone. The being armed with an offensive weapon is an essential ingredient of the offence. Going to the factors discussed in R v Henry & Ors (1999) 46 NSWLR 346: While Johnstone was 24, he did not have a limited record. The weapon was a knife and given that it is described as having a blade of 10 cm it was certainly capable of inflicting serous injury. The offending was opportunistic and not planned. There was a real threat of violence but no actual violence to which the robbery relates. The victim was not a vulnerable victim. The property was one mobile phone. With the amount of information stored and the use to which a mobile phone is put in modern days the loss of a phone would inevitably lead to very considerable inconvenience. I am not informed of the intrinsic value of the phone.
20. Mr Mortimer's submissions, and in particular the very useful table contained within those submissions, refers to the car being stolen. The court attendance notice pleads or avers only the mobile phone as the property nominated in the Armed Robbery charge. The Armed Robbery is entirely unremarkable and is similar to but in my opinion less serious than that contemplated by the Henry Guideline. If required to be more specific I would find the matter is very much towards the lower end of the scale of seriousness for a charge of Armed Robbery.
21. There are three counts of Dishonestly Obtain Property by Deception all of which relate to the putting petrol in the vehicles and driving off without paying. The offences occurred at about 6.10 pm on 19 November 2018 at the Shell Service Station at Corowa, at about 11.10am on 20 November 2018 at the Mobile Service Station at Corowa and 11.55am on 20 November 2018 at the BP Service Station at North Albury. The quantities of fuel involved were 39.58 litres, 21.44 litres and 31.24 litres respectively.
22. Given the nature of some of the more serious matters being dealt with, one would ordinarily have expected the matters relating to the petrol to be on a Form 1 document. Each of the matters relating to the petrol is, as the representatives for the offenders submit low range offence.
23. The agreed facts then deal with the charge of Take and Drive Conveyance that is on the Form 1 document in respect of Johnstone but a substantive matter for Kelly-Nelder. At about 6.30pm Mr James Jelbart parked his Colorado utility under a tree between a machinery shed and an old house at the property "Elmslea" at 121 Burrumbuttock Road leaving the keys in the ignition. At about 7.45am on 20 November 2018 Mr Jelbart found the vehicle was missing.
24. Meanwhile in the early hours of the morning of 20 November 2018 a number of residents of the Glenroy area (northern suburb of Albury) heard the noise of vehicles and a male and female arguing. One of them noticed that the male and female were in possession of a white Statesman and white tray back utility.
25. The facts then have a heading "Gazcon Commodore" which relates to a Commodore sedan bearing the Victorian registration plate "GAZCON". This vehicle is connected with two of the charges of Dishonestly Obtain Property by Deception and a charge of Possession of Property Stolen Outside New South Wales so far as both offenders are concerned and a number of matters relating to the offender Kelly-Nelder.
26. At about 10.40am on 20 November 2018 Jayden McCluskey was travelling at about 100 km/h from Wangaratta Victoria to Wahgunyah Victoria on Federation Way in his mother's 2010 model Holden Commodore sedan bearing the plates "GAZCON". About half way along Federation Way the offenders drove alongside McCluskey in the white Statesman in an attempt to cut him off. McCluskey applied the brakes to avoid a collision. He slowed and the offenders pulled directly in front of him slowing down as they did. Johnston put his hand out of the window and motioned McCluskey to pull over. McCluskey accelerated around him. The offenders then overtook McCluskey before stopping in front of him. Oncoming traffic meant that he had to stop behind the offenders.
27. Johnston got out of the car, opened the door of McCluskey's vehicle and told him to get out. He pulled him by his shirt collar. McCluskey hit Johnstone with the left hand into his chest and Johnstone then punched McCluskey to the face and pulled him out of the vehicle. Johnstone drove off in that vehicle and Kelly-Nelder drove off in the Statesman.
28. That offending occurred in Victoria, which is why the offenders are charged with Possession of Property Stolen Outside of New South Wales contrary to s 189A of the Crimes Act.
29. The gravamen of the offence is the possession of property stolen outside New South Wales. Mr Mortimer on behalf of Johnstone submits in MFI 2 on sentence (p 7) that "If it were to be the carjacking type of offence this would infringe the principle in R v Di Simoni [1981] HCA 31". The taking of the car would amount to a carjacking offence if it occurred in New South Wales. Be that as it may the agreed facts are that the offenders were in possession of a vehicle which was stolen outside the jurisdiction of New South Wales by means that included violence. This must be a relevant factor to the determination of the seriousness of the matter. The property being a motor vehicle was not (as Mr Mortimer correctly submits) "of trivial value". The s 189A charge in my opinion is within the mid-range of that type of offence.
30. The facts then deal with the serious traffic offences of Drive in a Manner Dangerous to the Public and Drive While Disqualified that attach to a s 166 Certificate in relation to Kelly-Nelder. Kelly-Nelder was driving the vehicle at about 11.40 am on 20 November 2018 in the vicinity of Elm and Sackville Streets in Albury. She reached speeds in excess of 100 km/h in a 50 km/h zone and drove on the incorrect side of the road requiring the driver of an unmarked police vehicle to take evasive action to avoid a collision.
31. After the last of the three offences involving the taking of petrol, Kelly-Nelder then drove north in the GAZCON Commodore on the Olympic Highway towards Wagga Wagga. Police commenced a pursuit of the offenders, part of which is shown in footage of the pursuit taken from "POLAIR 1" which is exhibit C on sentence. Road spikes were deployed damaging one of the rear tyres of the vehicle however Kelly-Nelder kept driving.
32. At about 12.30 pm Constable Carr, wearing full uniform and driving a marked vehicle of the Highway Patrol, heard a broadcast over the police radio that the Commodore was being pursued. He left Wagga Wagga and travelled south towards The Rock. Police Aviation Support Branch began following the vehicle from about 12.35pm.
33. Constable Carr was about two kilometres south of The Rock when he observed the vehicle. Kelly-Nelder was driving the GAZCON Commodore at approximately 140 km/h in a 100km/h zone when she crossed over from the northbound lane into the southbound lane and drove directly in the direction of the vehicle being driven by Constable Carr. Constable Carr was forced to pull over to the left hand side of the roadway with the near side tyres on the edge of a steep slope that leads into a gully. The course of driving in the direction of the vehicle being driven by Constable Carr is graphically shown on the Polair footage. By this stage the rear tyre was damaged and Constable Carr could see pieces of rubber spraying into the air
34. It is the act of deliberately driving at Constable Carr that grounds the charge contrary to s 33B of the Crimes Act. The Crown submits (MFI 1 on sentence) that this was "of particular concern" and that the matter was at least within the mid-range of seriousness. Noting the inherent danger of the manoeuvre, including the speed involved and the vehicle had a flat tyre making it more difficult to control, I am of the opinion that the matter is in the upper end of the mid-range.
35. Constable Carr activated the warning lights, completed a U-turn and began a pursuit of the Commodore being driven by Kelly-Nelder. Soon after the pursuit began the Commodore moved onto the incorrect side of the roadway with a B-Double truck approaching, immediately moved back to the correct lane, before returning to the incorrect side of the road. Constable Carr advised police radio that he was terminating the pursuit.
36. As he did this the Commodore drove at approximately 140 km/h head on towards a tipper truck which was travelling into the south bound lane at 100km/h. This caused the truck to brake very harshly and swerve fully to the side of the road. The Commodore then continued north in the south bound lane at high speed. Constable Carr lost sight of the vehicle.
37. The GAZCON Commodore kept driving north through the township of Uranquinty where they were observed by a number of police officers in an unmarked vehicle outside the Uranquinty Hotel. The officers commenced travelling in the same direction as the Commodore maintaining a speed of 100km/h and in doing so not gaining any distance.
38. Kelly-Nelder was disqualified. The speed reaching during the pursuit was significant as was the distance over which the pursuit lasted. The driving was in places erratic. The driving occurred on the Olympic Highway, which is the major thoroughfare from Wagga Wagga to Albury. Traffic can be expected on that roadway at any time. The matter is within the mid-range of a police pursuit matter. The Drive in Manner Dangerous to the Public attaching to the s 166 Certificate relates to the driving after the pursuit was terminated. The offending is a serious example of Driving in a Manner Dangerous to the Public, noting in particular the truck having to take evasive action and the fact that Kelly-Nelder was a disqualified driver.
39. The last offences are two counts of Aggravated Detain for Advantage contrary to s 86(2) of the Crimes Act relating to both offenders and one count of Common Assault relating to Kelly-Nelder.
40. At about 1pm the Commodore began to slow, there being a significant amount of damage to the rear of the vehicle and the rear bumper bar was dragging on the ground. The vehicle was also emitting a lot of smoke. As the vehicle slowed it again veered to its incorrect side of the roadway, intercepting a white Mazda BT utility with Victorian registration 1BC2PG being driven by Garry Sassella, who was returning to Wodonga with his friend Terry Bullivant after attending a medical procedure in Wagga Wagga. He stopped the vehicle as the Commodore being driven by Kelly-Nelder stopped in front of him.
41. Kelly-Nelder exited the vehicle and approached the Mazda utility, first opening the driver's side door and then jumping into the back seat through the rear passenger door on the right hand side of the vehicle. A few seconds later Johnstone exited the Commodore and jumped in the white Mazda utility through the same rear passenger door.
42. While in the back seat, Kelly-Nelder reached between Sassella and Bullivant and grabbed Sassella's phone that was in the centre console. Sassella grabbed her hand and took the phone back from her. Kelly-Nelder then dug her hands into Sassella's arm which caused pain and some minor bleeding. Kelly-Nelder was yelling "go, go" throughout all of this.
43. Johnstone entered the vehicle as Sassella and Kelly-Nelder were wrestling over the phone. He was yelling "go, go, go" as he entered the car. Johnstone reached over Sassella's shoulders with one arm over each side of Sassella's head and tried to grab the keys from the ignition. Sassella was pushing back to prevent him from doing so. He was also holding the gear shift lever in Park to prevent the offenders from putting the vehicle into Drive. Johnstone said, "I've got a gun" on a number of occasions.
44. The officers who had pursued the vehicle from Uranquinty arrived a short time later. The offenders were pulled from the Mazda and arrested. Constable Carr arrived a short time later and said to Kelly-Nelder, "You tried to kill me," to which she responded, "I wasn't trying to kill you, I was trying to get away".
45. Both offenders were taken to the Wagga Wagga Police Station where they both declined to be interviewed. An oral sample was taken from Kelly-Nelder which was positive for Methyl amphetamine which relates to the remaining matter attaching to the s 166 Certificate.
46. As to objective seriousness of the Aggravated Kidnapping charges, I note the decision of R v Speechley [2012] NSWCCA 130. The period of detention in respect of both Messrs Sasella and Bullivant was a matter of a few minutes at most. Mr Mortimer in his submissions( MFI 2 at p 8) - and adopted by Mr King - puts that the detention would have been seconds. Given the narrative of the events contained within the agreed facts, the detention would have been minutes as opposed to seconds. Be that as it may the period of detention is very short indeed. The circumstances of the detention would however have been absolutely terrifying for the two men. The offending was opportunistic. There is nothing about the victims that elevates the seriousness of the matter. The purpose of the detention was to obtain the vehicle and as Mr Mortimer submits a very badly conceived effort to avoid arrest despite the presence of a number of uniformed police officers in the immediate vicinity.
47. In assessing the seriousness, the whole of the circumstances of the detention must be taken into account. Given the very short period of the detention, the matters are towards the lower end of the scale of seriousness but noting the overall circumstances the matters are not at the bottom of the range.

Criminal History

1. Johnstone was born on 3 April 1994; accordingly, he is now 26 years of age and was 24 at the time of offending. He has a criminal history that does not entitle him to any particular leniency. He has matters recorded against him in New South Wales for domestic violence. However, he has a more extensive history in Victoria, including for matters of domestic violence, assault, Threaten Serious Injury, Commit an Indictable offence on bail, Recklessly Cause Injury, Aggravated Burglary and Affray. He also has matters in the Children's Court in Victoria.
2. Johnstone was subject to conditional liberty at the time of this offending in that he was subject to a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act. The factor of statutory aggravation in s 21A(2)(j) is therefore enlivened.
3. Kelly-Nelder has no record in Victoria or New South Wales but does have a record in Queensland. She has a number of convictions recorded against her for Possession of Dangerous Drugs, a Breach of Bail, a conviction for Fail To Appear and some matters of dishonesty in respect of which short custodial sentences were imposed. Mr King put in submissions that her Queensland record is a "nuisance drug user's record". The submission continued that her record is such as to not entirely disentitle her to leniency. She was disqualified by the Beenleigh Magistrates Court in Queensland for driving offences.
4. Although her record is not as extensive as Johnstone, and after considering Mr King's submission, I am of the opinion that the record of Kelly-Nelder does not entitle her to any particular leniency. If I am incorrect in this conclusion then any leniency extended to her would be very minimal.
5. Kelly-Nelder was also subject to conditional liberty in that she was subject to a suspended sentence in Queensland for Possession of Dangerous Drugs and other related matters, that sentence being imposed at the Beenleigh Magistrates Court on 15 August 2018. As with Johnstone the factor of statutory aggravation in s 21A(2)(j) is enlivened.

Subjective case - Johnstone

1. No oral evidence was called from or on behalf of the offender Johnstone. A psychiatric report from Dr Antonio Simonelli is exhibit 1 on sentence. Exhibit 3 on sentence is two testimonial references, one from his parents and the other from an aunt. The court is also assisted by a Sentence Assessment Report (SAR) which is at tab 9 of the Crown tender bundle, exhibit A on sentence.
2. Dr Simonelli sets out at p 2 that the offender Johnstone accepted that he had committed the offences and expressed remorse by saying he felt very bad for what he had done. At p 3 of the SAR the author notes that he (offender) would not have reacted in such a way had he not been under the influence of drugs. The author of the SAR also notes that the offender Johnston maintained that he could not remember the offences so cannot feel bad for something he does not remember. Further, the offender acknowledged to the author of the SAR that he could see that the victims would be upset.
3. However, I note from p 6 of Dr Simonelli's report that the offender Johnstone at the age of 12.5 years was diagnosed to be in the mild intellectual disability range. The report does not indicate what exactly the IQ was assessed to be.
4. Be that as it may there is nothing on which I could find on balance that the offender is remorseful. The bland untested statement in a psychiatric report in my opinion is entirely insufficient to base such a finding.
5. According to the report (p 2) the offender recounted that he was "flat out on ice" at the time of the offending. That is consistent with what the offender told the author of the SAR.
6. At p 3 of the report Dr Simonelli opines that the offender met the criteria for Major Depressive Disorder when he was 19, which appears to have been triggered by the relationship with the mother of his eldest daughter. He attempted suicide by medication overdose in 2018.
7. Dr Simonelli goes on to note at p 4 of the report that the offender Johnstone identified his ice abuse as his most significant problem behaviour. The offender exhibited many of the criteria for "problematic pattern of stimulant use". He has never attended residential rehabilitation but is motivated to engage in that form of treatment.
8. Further Dr Simonelli opined (bottom p 4) that there was no thought disorder as seen in psychosis and a little later noted that there no noticeable psychomotor agitation. The offender denied any psychotic symptoms. The offender did not demonstrate any gross cognitive impairment but his simplistic language and lack of detail pointed to decreased intellectual functioning. The doctor conducted a comprehensive review of documents, one of which related to the diagnosis of mild intellectual disability. At p 7 of the report Dr Simonelli states that the intellectual impairment with which the offender has been living since childhood was constant and was a non-altering brain condition.
9. Dr Simonelli opines (p 7) that the offender was suffering with multiple mental health conditions at the time of the offences, most significantly that he was intoxicated with methamphetamine. The offender meets the criterial for severe methamphetamine disorder. The doctor further opines that the offender requires intensive drug and alcohol interventions with the underlying conditions of depression and an assessment for adult ADHD. It is recommended that as part of the rehabilitation the offender should have services targeted for intellectual disability.
10. At p 8 of the report Dr Simonelli sets out that people with intellectual disability have trouble connecting cause and effect. There is the related problem of poor frustration tolerance. Further the offender's ability to make responsible and rational decisions at the time of the offending would have been seriously impacted by his methamphetamine intoxication. His drug abuse history has impaired his ability to engage in effective treatment for his problems and to make rational decisions towards his safety and the safety of others.
11. The difficulty for the offender so far as the self-induced intoxication with methamphetamine is concerned is s 21A(5AA) of the Crimes (Sentencing Procedure) Act. Self-induced intoxication is not mitigating.
12. Dr Simonelli also opines (p 9) that the offender may become a vulnerable inmate who is targeted or stood over by other inmates. Further, remaining in custody will worsen his prognosis of recovery from depressive illness. Although there is a strong subjective case there is no appropriate alternative to a sentence of full time custody and as much is appropriately conceded by Mr Mortimer in his written submissions (p 12, MFI 2 on sentence).
13. The author of the SAR assesses the offender Johnstone as being a medium-high risk of re-offending. Given this assessment, the criminal history and the breach of conditional liberty I could not find on balance that the offender Johnstone is unlikely to re-offend.
14. The letter from the offender's father in exhibit 3 on sentence provides some insight into the background of the offender. The offender obviously had noticeable issues from a relatively early age noting that he was referred to a number of medical specialists in his early childhood. He was apparently diagnosed with a number of issues including ADHD and ODD (oppositional defiance disorder). He commenced using drugs at about 16 and soon came into conflict with the criminal law. The offender did not cope well with the end of the relationship with the mother of his oldest child. The offender developed the methamphetamine habit as an adult. The offender was on a "massive ice bender" involving three days of no sleep at the time of the commission of the offences. The offender has the support and will continue to have the support of his parents upon his eventual release. Some of what his father says is confirmed by Ms Walker, the aunt who is the author of the second reference.
15. Mr Mortimer submits (p 9, MFI 2 on sentence) that the offender has good prospects of rehabilitation in that there has been a diagnosis of a major depressive illness, there is a strong bond with the mother of his youngest child, there is ongoing support from his family and there is evidence (p 3, Dr Simonelli's report) that the offender can demonstrate pro-social attitudes when abstinent from substances.
16. The offender still has unresolved issues relating to the use of illicit substances. There are some positive, and indeed very positive, signs so far as rehabilitation is concerned. However much will depend on what occurs when the offender is released and how he engages with the relevant authorities. In particular much will depend on how sincere the offender is about pursuing full time residential rehabilitation. Put simply, although there are positive signs it is simply "too early to tell" to make a positive finding on balance at this point in time that there are good prospects of rehabilitation.
17. I turn now to the issue of and the significance of the mild intellectual disability. I have reviewed the evidence from Dr Simonelli as to the offender Johnstone having a mild intellectual disability. I also note from the doctor's report (pp 5-6) that the offender was schooled at a special school. On the issue of the expression of "mild intellectual disability" I note what I said in R v MW [2019] NSWDC 307 at [14], namely: "At p 2 of the report the following appears: 'While Mr W scores on the various sub-tests and his overall intelligence Quotient are not included in the Pre-sentence Consultation Report, it is clear that because he has been assessed as functioning within the range of intellectual disability his IQ, at best, is only 70. … As such Mr W meets the criteria for what, in Australia, is technically called mild intellectual disability. The word mild should not be misinterpreted in that the condition involves substantial deficits in reasoning, problem solving, planning, abstract thinking, judgements, academic learning and experiential learning.'"
18. In Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
19. I was cognisant of this and took this into account when making an assessment of the seriousness of the matters when dealing with the facts.
20. Submissions were also made on the issue of moral culpability - see p 10 of MFI 2 on sentence. Johnson J in Tepania at [119] said: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
21. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
22. McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 said at [177]-[178]: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]."
23. In the matter presently under consideration the court is dealing with an offender with a mild intellectual disability rather than an offender suffering from a mental condition. I note what was said by Beech-Jones J in Ngati v R [2014] NSWCCA 125 at [46]: "Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the application was "fully aware" that his conduct was "seriously wrong". Considered in this context the finding that he was "fully aware" was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences"
24. In this regard I note the contents of Dr Simonelli's report at p 8 (as submitted in MFI 2 on sentence) to the effect inhibited capacity to control impulses is a feature of intellectual disability as in diminished frustration tolerance. However, also of significance is that part of the report that says (p 8): "Furthermore, Mr Johnstone's ability to make responsible and rational decisions at the time of the offence would have been seriously impacted by his methamphetamine intoxication…At the time of the offences Mr Johnstone would not have been able to think through his actions because the methamphetamine intoxication would have seriously impaired his cognitive function".
25. While the issue of the mild intellectual disability so far as Johnstone is concerned is a relevant factor to take into account, however, because of the issue of the self-induced intoxication by methamphetamine it does not achieve the significance that it would in other circumstances if that intoxication was not present.
26. Mr Mortimer submits that there should be a finding of special circumstances. It would be double counting to take into account the issue of intellectual functioning on the issue of special circumstances. However, it seems to me that there will be a need for intensive and extensive supervision when the offender Johnstone is eventually released to ensure that he is able to reintegrate into the community but moreover to ensure that he gets the appropriate treatment, counselling and access to appropriate rehabilitation services so far as his issue with illicit substances is concerned.

Subjective case - Kelly-Nelder

1. No oral evidence was called for or on behalf of the offender Kelly-Nelder. A report from Mr John Sheppard, Psychologist is Exhibit 2 on sentence and there is a Sentence Assessment Report (SAR) at tab 9 of the Crown Tender Bundle, Exhibit B on sentence.
2. The report sets out that she was born in Albury in 1992; she is now 27 years of age and therefore would have been 25 (almost 26) at the time of offending. Her biological parents separated when she was quite young and she grew up with her mother, siblings, step siblings and step-father. The report goes on to say that she had an unhappy childhood characterised by ongoing conflict with her mother as a result of which she was "kicked out" of the house when she was about 12 or 13 years of age and became a "street kid". The report however notes (p 3) that she was not subject to the negative influence of excessive use of alcohol or illicit drugs.
3. The relatively bland statements contained within Mr Sheppard's report gives no real detail of the conflict. Likewise it gives no details of her experiences or deprivations while she lived as a street kid. This is not a criticism of the author but merely an observation. Despite the lack of detail I accede to Mr King's submission that the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to an extent, reducing her moral culpability - again to an extent. However because of the lack of detail of the offender's experiences, the extent to which those principles are enlivened cannot reach that which that this court saw all too often in western and far-western New South Wales with indigenous offenders.
4. Mr Sheppard goes on to record that the offender Kelly-Nelder struggled academically at school and that she was in special classes. However, there is no suggestion that any further testing was conducted to determine her IQ or the like. She has however completed a TAFE Certificate in hospitality.
5. The report sets out that the offender has had a number of relationships one of which was marred by domestic violence and the other by drug use. Her five year old daughter lives with her father (i.e. offender's ex-partner) in Sydney.
6. Under the heading "health" the report sets out that the offender told the author that since her incarceration she has been taking Avanza for depression and Olanzapine which is an anti-psychotic medication. The offender apparently told Mr Sheppard that these were prescribed by a psychiatrist while she was in Wellington Correctional Centre. These complaints are self-reported by the offender and the court could put little if any weight on them. Certainly there is no diagnosis or suggestion by the author of the report that there is a causal connection between these issues and the offending for which she appears for sentence. My note and memory is that Mr King submitted that these issues were part of the overall subjective mix.
7. The offender told Mr Sheppard that she commenced using cannabis at 13 and ecstasy when she was 15. She was using methamphetamine (ice) in the time leading up to the offences and was using a couple of times per day. The offender also told Mr Sheppard that during her various relationships both she and her partners engaged in frequent drug use.
8. So far as the relationship with the co-offender is concerned, she told Mr Sheppard that she was wanting to end the relationship but he had threatened to bash her. Further, it was not her original intention to steal cars but she was frightened because of relationship issues as the situation escalated.
9. At an initial stage of his submissions Mr King put that a central theme of his submissions is that Kelly-Nelder was very much the junior partner. The submissions continued that the facts make it clear that Mr Johnstone was the driving force. The submission continued that it would be necessary to examine who did what. I understood this to be a submission directed to that there would need to be separate findings as to the seriousness of the offending in respect of each of the two offenders.
10. However, I did not understand that Mr King's submissions extended to a submission I would find that there was non-exculpatory duress. If I am incorrect in this understanding I find that on the material before me the offender has not discharged her onus in establishing the facts which are said to operate to mitigate the penalty - see Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [31]-[33] per Johnson J (Tobias JA, Hall J agreeing).
11. Returning to Mr King's submissions, he pointed to the comparison of the criminal records, the examination of the individual actions and the other subjective material as to the nature of the relationship between the two offenders. Mr King then went through the offending chronologically.
12. It was put on behalf of Kelly-Nelder that she had nothing to do with the "ruse" to obtain the gold Camry; that her liability is limited to being in company with Johnstone and involvement was at the "bottom of the range". I could not be satisfied beyond reasonable doubt that she had anything to do with the "ruse" to obtain the vehicle. However the vehicle was used in the joint criminal enterprise in other offending. In respect of the Attempt Aggravated Take and Drive involving Mr Esler it was put that Kelly-Nelder did not get out of the Camry and that she took no part in the threats towards the victim. Again, it was a joint criminal enterprise where each played a different role. It was put that her involvement was towards the bottom of the range.
13. Similar submissions are made in respect of the matter involving Mr Braakman. It was put that her involvement was "very low indeed". It is also put that she took no part in the robbery. She is not charged with that.
14. I agree with the submission of Mr King that the matters involving the petrol will have very little effect on the overall sentence to be imposed.
15. The submissions continued that the offending on 20 November 2018 began with Kelly-Nelder reluctantly getting into the car. The contents of paragraph [20] of the agreed facts support this submission. Be that as it may, she was an active participant in the taking of the "GAZCON" Commodore in that it appears from the facts (i.e. that Johnstone drove away the Commodore) that Kelly-Nelder was driving the Statesman. In any event it was clearly a joint criminal enterprise.
16. The difficulty with the submissions attempting to reduce the involvement and moral culpability of Kelly-Nelder is that most of the offending apart from the driving offences and the offence contrary to s 33B of the Crimes Act that were committed by Kelly-Nelder is that the offending was very much part of a joint criminal enterprise. Both took active but sometimes different roles in the offending. There is some substance to the Crown's oral submission that they were both willing participants in the enterprise. I am asked to make findings favourable to Kelly-Nelder based essentially on hearsay statements to the authors of reports and the drawing of inferences. That is not unlike a sentencing court being asked to find remorse based on such statements. See for e.g. Imbornone v R {2017] NSWCCA 144 at [57].
17. Submissions continued as to the driving matters. Mr King put that the offence contrary to s 33B of the Crimes Act is "bound up" with the police pursuit and is very much part of the same conduct. It is part of the one ongoing course of conduct but the deliberate driving towards the vehicle being driven by Constable Carr is a serious matter in itself.
18. So far as the Aggravated Kidnapping charges are concerned it was put on behalf of Kelly-Nelder that while they are serious offences they were not the most serious offending committed by her. The brief period of the detention was emphasised.
19. I have already made findings as to the seriousness of the offending. The offending where both are jointly charged was in the nature of a joint criminal enterprise. In these circumstances I am not going to further refine findings of the seriousness in respect of each offender but the respective roles played will be taken into consideration in the determination of the appropriate sentence in the "instinctive synthesis" approach.
20. In other submissions Mr King put that general deterrence is not the primary consideration in s 3A of the Crimes (Sentencing Procedure) Act. It is not the primary consideration, but it is a consideration. I agree that specific deterrence has little if any work to do in this sentencing exercise.
21. I have already dealt with the submissions made on Kelly-Nelder's behalf as to use to be made of the criminal history and also the "Bugmy" factors. I have dealt at some length with Mr Sheppard's report.
22. There is no or at least no sufficient material before me on which I could make a finding on balance that the offender Kelly-Nelder is remorseful. In this regard I note that the author of the SAR notes that while she acknowledged her role in the offending she displayed limited insight into the impact of her offending.
23. Given her criminal history and breach of conditional liberty I am not prepared to make a finding on balance that she is unlikely to re-offend. In this regard I note that the author of the SAR opines (p 3) that she is at a medium risk of re-offending.
24. My brief note and memory is that Mr King submitted that there would good prospects of rehabilitation. It was submitted that when a comparison is made with the photograph displayed on the criminal history and the appearance of the offender now it is clear that she has made substantial efforts. Clearly it seems she has ceased the use of illicit substances. While there is some substance to Mr King's submission in this regard I remain a little guarded and take the view that it is simply "too early to tell". Much will depend on the manner in which she engages with the relevant authorities and agencies when she is released.
25. Mr King argues that there should be a very generous finding of special circumstances based on her need for "a lot of assistance" and "quite significant intervention when she is released into the community". I agree that these are reasons for a finding of special circumstances. Clearly there will be a need for intensive and extensive supervision when Kelly-Nelder is released.

Crown's submissions

1. The Crown relied on the written submissions - MFI 1 on sentence - provided to the court in advance. One matter amplified in oral submissions was that the Crown maintained that the offending was an "ice-fuelled crime spree across three days by two participants". While it is difficult to disagree with that assessment it is still necessary to determine the seriousness of each offence individually. On the same topic the Crown also submitted orally that on the issue of objective seriousness the cumulative effect of the offending needed to be considered. I maintain the position that each offence will need to be considered individually.
2. The Crown submitted (paragraph 23, MFI 1 on sentence) that there is "a strong need for deterrence both general and specific". I agree that both have work to do in this sentencing exercise but in respect of the offender Johnstone there is the issue of intellectual functioning that reduces the impact and significance of general deterrence. Specifically, referring to the charge contrary to s 33B of the Crimes Act against Kelly-Nelder, I note what was said in The Attorney-General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 2 of 2002 (2002) 137 A Crim R 196 at [22] (Guideline Judgment on Assault Police) in that: "Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police."
3. Although the Court of Criminal Appeal was dealing with different offending in the Guideline Judgement, it seems to me that the principles are equally applicable in this matter so far as the s 33B charge is concerned.
4. The Crown opposed a finding that Johnstone had good prospects of rehabilitation. As I understood the submissions, the Crown put that it was all but inevitable that Johnston would re-offend and that drugs were a major criminogenic factor. It was put that there was tension between the submissions as to Johnstone's mild intellectual disability and the prospects of rehabilitation. Mr Mortimer in reply put that the issue of the intellectual disability lowered the offender's moral culpability but that did not mean that the court could not find good prospects of rehabilitation. Despite Mr Mortimer's submissions and submissions in reply, I maintain my earlier finding that I cannot be satisfied on balance that Johnstone has good prospects of rehabilitation.
5. In respect of Kelly-Nelder, the Crown submitted orally that one of the central themes of the submissions of her counsel was that she was a reluctant participant. The Crown submissions continued that that submission cannot be sustained because of the many stages she had to drive elsewhere. There were a number of occasions when Johnstone was in another vehicle. There is some substance to these submissions.
6. The Crown also dealt with the objective seriousness of the various offences, which issue has been dealt with at length.

General Remarks

1. In passing sentence I must give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending including the multiplicity of offending, the maximum penalties involved and the standard non-parole periods prescribed for some of the offences, both offenders must be sentenced to terms of imprisonment. Given the offending there must be terms of full-time imprisonment. I did not understand counsel for either offender to submit otherwise.
3. In respect of the offender Johnstone, he was sentenced to a fixed term of two months imprisonment to commence on 17 November 2018 for an offence of Contravening a Domestic Violence Order. At the sentence hearing I suggested to Mr Mortimer that the sentence for Johnstone would commence on 20 December 2018 to allow for the issue of totality. I did not understand Mr Mortimer to dissent from that suggestion. The sentence for Kelly-Nelder must date from the date of her arrest, i.e. 20 November 2018.
4. Given the multiplicity of offending, this is an appropriate matter for the imposition of aggregate sentences in respect of both offenders. I did not understand any of the parties to dissent from this. These remarks have been reduced to writing and a copy will be provided to the legal advisers of each of the offenders on pronouncement of sentence.
5. There are a considerable number of offences involving different victims. As I have already stated, the offences relating to what was essentially the theft of petrol will have no real practical impact on the ultimate sentences to be imposed. However, if separate sentences were to be imposed there would need to be some meaningful partial accumulation of sentence in order to recognise the different offending and in particular the fact that there are different victims. The principle of totality will also need to be properly applied when determining the ultimate sentence to be imposed. However, there would be very substantial concurrency where matters arise out of the same incident, e.g. the Aggravated Carjacking and the Armed Robbery involving Mr Braakman's Statesman vehicle and phone. Where there are separate victims, e.g. the two counts of aggravated kidnapping, there would need to be some partial accumulation to recognise the separate victims.
6. I have no note or memory of any submission relating to parity being put by any of the parties. There are a number of complicating factors such as the intellectual disability of Johnstone, but also Kelly-Nelder is facing charges that Johnstone is not facing such as those contrary to ss 51B and 33B of the Crimes Act relating to the driving in the police pursuit and the driving at Constable Carr prior to their apprehension. Kelly-Nelder is younger and has a lesser record. When the various competing circumstances are taken into account the sentences imposed will not be different to any marked degree.
7. The offender Kelly-Nelder is facing a number of serious driving matters that carry licence disqualifications. In this regard I note in particular the police pursuit matter. Given the nature and seriousness of the driving offences and the number of them I am firmly of the opinion that I should impose the automatic period of disqualification.
8. As I propose to invoke s 53A the Crimes (Sentencing Procedure) Act and impose an aggregate sentence, it will be necessary for me to set out the sentences that would have been imposed if separate sentences had been imposed. I will do so in tabular form for each offender. I will use the same order of the offending as it appears on the cover sheets of the respective Crown tender bundles.

Re the offender Braydon Connor Johnstone - H69060324 Seq Maximum Indicative No Offence Description Penalty and SNPP where Sentence Applicable 2 Attempt Aggravated Take and Drive Motor Vehicle Attempt Agg Take and Drive - Mr Esler's Commodore at Wodonga Place 14 years imprisonment 2 years 3 months s. 154C(2) Crimes Act SNPP not apply because attempt starting point 3 years 3 Aggravated Take and Drive Motor Vehcile Taking and driving away Mr Braakman's Statesman vehicle at knifepoint on 19.11.2018 14 years imprisonment 3 years 9 months NPP 2 years 6 months (starting point 5 years) s 154C Crimes Act 5 years SNPP 4 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act Obtain petrol without paying 10 years imprisonment 2 months (starting point 3 months) with rounding down 39.58 litres at Shell Corowa Armed Robbery 5 s 97(1) Crimes Act - Robbery of Mr Braakman's mobile phone at knifepoint on 19.11.2018 20 years imprisonment 2 years 3 months with a starting point of 3 years Note Form 1 attaches to this matter 8 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act Obtain petrol without paying 10 years imprisonment 2 months with starting point 3 months with rounding down 21.44 litres Mobil Corowa 20.11.18 9 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act Obtain petrol without paying 10 years imprisonment As above 31.24 litres BP North Albury 20.11.18 10 Take and Drive Conveyance Without consent of Owner - s 154A(1) Crimes Act Take and Drive Camry the property of Collette Bath on 18.11.2018 10 years imprisonment 12 months with a starting point of 18 months with rounding down 11 Attempt Robbery Attempt robbery of Esler's phone on 18.11.2018 14 years imprisonment 1 yr 3 months with a starting point of 1 year 8 months s 94(a) Crimes Act 6 Receive Property Stolen Outside NSW - s 189A Crimes Act Possession of GAZCON Commodore 10 years imprisonment 2 years 7 months with a starting point of 3 years 6 mo On 20.11.2018 7 Aggravated Take and Detain Detention of Garry Sassella on 20.11.2018 20 years imprisonment 2 years 7 months with a starting point of 3 years 6 mo s 86(2)(a) Crimes Act 8 Aggravated Take and Detain Detention of Terrance Bullivant on 20.11.2018 20 years imprisonment As above s 86(2)(a) Crimes Act

Re: the offender Ebony Kelly-Nelder - H69779966 Seq Maximum Indicative No Offence Description Penalty and SNPP where Sentence Applicable 2 Attempt Aggravated Take and Drive Motor Vehicle Attempt Agg. Take and Drive - Mr Esler's Commodore at Wodonga Place 14 years imprisonment 18 months with a starting point of 2 years s 154C(2) Crimes Act SNPP not apply because attempt 3 Aggravated Take and Drive Motor Vehicle Taking and driving away Mr Braakman's Statesman vehicle at knifepoint on 19.11.2018 14 years imprisonment 3 years with a starting point of 4 years, NPP 1 year 10 months s 154C Crimes Act 5 years SNPP 4 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act Obtain petrol without paying 10 years imprisonment 2 months with a starting point of 3 months with rounding down 39.58 litres at Shell Corowa

5 Take and Drive Conveyance - s 154A(1)(a) Crimes Act Take and Drive James Jelbart's Colorado Utility on 20.11.18 5 years imprisonment 9 months with a starting point of 12 months (this matter on Form 1 for Johnstone) Obtain petrol without paying 7 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act 21.44 litres Mobil Corowa 10 years imprisonment 2 months with a starting point of 3 months with rounding down 20.11.18 Obtain petrol without paying 9 Dishonestly Obtain Property by Deception - s 192E(1) Crimes Act 31.24 litres BP North Albury 10 years imprisonment As above 20.11.18 10 Take and Drive Conveyance Without consent of Owner - s 154A(1) Crimes Act Take and Drive Camry the property of Collette Bath on 5 years imprisonment 9 months with a starting point of 12 months 18.11.2018 1 Receive Property Stolen Outside NSW - s 189A Crimes Act Possession of GAZCON Commodore 10 years imprisonment 2 years 3 months with a starting point of 3 years On 20.11.2018 2 Drive Manner Dangerous - Police Pursuit Police Pursuit Prior to arrest on 20.11.2018 3 years imprisonment 18 months with a starting point of 2 years s 51B Crimes Act 4 Use Offensive Weapon to Avoid Apprehension - s 33B Crimes Act Deliberately drive at Const. Carr to avoid apprehension on 20.11.2018 12 years imprisonment 3 years with a starting point of 4 years 6 Common Assault - s 61 Crimes Act Assault on Garry Sassella on 20.11.2018 2 years imprisonment 4 months with a starting point of 6 months 11 Aggravated Take and Detain Detention of Garry Sassella on 20.11.2018 20 years imprisonment 2 years 7 months with a starting point of 3 years 6 months s. 86(2)(a) Crimes Act 12 Aggravated Take and Detain Detention of Terrance Bullivant on 20.11.2018 20 years imprisonment As above s 86(2)(a) Crimes Act

Section 166 Certificate Matters - H 67779966 Seq Maximum Indicative No Offence Description Penalty and SNPP where Sentence Applicable 8 Drive Manner Dangerous Driving in a manner dangerous to the public in Albury on 20.11.2018 9 months imprisonment 3 months imprisonment with a starting point of 4 months s. 117(2) Road Transport Act, 2013

Section 166 Certificate matters - H72069089 Seq Maximum Indicative No Offence Description Penalty and SNPP where Sentence Applicable 3 Drive Manner Dangerous Driving in a manner dangerous to the public at Henty on 20.11.2018 9 months imprisonment 4 months imprisonment with a starting point of 6 months with rounding down s 117(2) Road Transport Act, 2013 9 Drive With Illicit Substance in oral fluid Oral sample positive to methamphetamine 20 penalty units fine only s 10A s 111(1) Road Transport Act 2013 10 Drive While Disqualified The offender Kelly-Nelder was a disqualified driver. 6 months imprisonment 3 months imprisonment with a starting point of 4 months s 54(1)(a) Road Transport Act

In respect of the offender Braydon Connor Johnston:

1. In respect of the matters to which he has pleaded guilty he is convicted.
2. The matter on Form 1 (H69060324-006 Take and Drive Conveyance) is taken into account when determining the indicative sentence for sequence 5 (Armed Robbery).
3. Braydon Connor Johnstone is sentenced to an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months imprisonment.
4. The non-parole period will commence on 20 December 2018 and will expire on 19 June 2024.
5. Thereafter there will be a balance of term on parole of 3 years to date from 20 June 2024 and which will expire on 19 June 2027.
6. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
7. Although it is entirely a matter for the parole authorities I recommend that any release to parole be conditioned that he be supervised and that in particular he obey all reasonable directions relating to ongoing treatment and counselling for substance abuse issues.
8. The non-parole period is approximately 65% of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated within these reasons.

In respect of the offender Ebony Kelly-Nelder

1. In respect of the matters to which she has pleaded guilty she is convicted.
2. The offender Ebony Kelly-Nelder is sentenced to an aggregate sentence of 8 years with a non-parole period of 5 years.
3. The non-parole period will commence on 20 November 2018 and will expire on 19 November 2023. Thereafter there will be a balance of term on parole of 3 years to date from 20 November 2023 and which will expire on 19 November 2026.
4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. Again, although it is entirely a matter for the parole authorities, I recommend that any release to parole be conditioned that she be supervised and that she obey all reasonable directions as to treatment and counselling for substance abuse.
6. The non-parole period for the offender Kelly-Nelder is 62.5% of the total sentence which indicates a finding of special circumstances, the reasons for which have been enunciated within these reasons.
7. In respect of the matter on H72069089 sequence 2, i.e. the charge of Drive Manner Dangerous in a Police Pursuit contrary to s 51B(1) of the Crimes Act the offender is disqualified for the automatic period of 3 years.
8. In respect of sequence 8 on H69779966 and sequence 3 on H72069089, i.e. the two charges of Drive in a Manner Dangerous attaching to the s 166 Certificates (one to each s 166 Certificate) the offender is disqualified for a period of 18 months on each matter.
9. In respect of sequence 10 on H72069089, i.e. a charge of Drive While Disqualified attaching to one of the s 166 Certificates the offender is disqualified for a period of 12 months
10. In respect of sequence 9 on H72069089, i.e. the charge of Drive with Illicit Drug in Oral Fluid etc. attaching to one of the s 166 Certificates the offender is disqualified for a period of 6 months.
11. The periods of disqualification are to be concurrent.

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: 30 April 2020