R v Nateghi [2019] NSWDC 815 | Case summary

ARREST AND ERISP

At about 2.25pm on 17 January 2019, police sighted the offender driving the Toyota Yaris of Ms Bogdanovski with the registration plates of Ms Fu's white Toyota at Kogarah. They stopped the Toyota Yaris and removed the offender from the driver's seat. He was wearing, amongst other clothing, a red and white cap. He was arrested and conveyed to the Kogarah Police Station.
At 4.04pm on 17 January 2019, he participated in an electronically recorded interview and told police inter alia the following:
He was consuming large amounts of alcohol in January 2019.
He approached the lady in the Toyota Yaris with a kitchen knife in his hand and asked her to get out of the car.
He said he told the lady 'can you please take your bag ... please call your insurance and call the police, you'll get a reference number from them. Call your insurance you'll get paid out."
The Toyota Yaris he was arrested in was the same one stolen on 1 January 2019.
He put many different plates on the Toyota Yaris every two to three days to avoid detection.
He took $46 worth of petrol from the Coles Express Service Station at Kirrawee without making any attempt to pay for it on 10 January 2019.
He did not remember being at Miranda Westfield on 7 January 2019 or at any time (he was shown a still of CCTV footage from Miranda Westfield from 10 January 2019 and admitted that it recorded him).
He did not remember being involved in the police pursuit on 10 January 2019.
He put the stolen licence plates YKN 43T on the Toyota Yaris but did not remember stealing them from Amos Street, Westmead.
The Toyota Yaris was seized and examined. A small kitchen knife was located inside the car. DNA and a fingerprint recovered from the inside of the Toyota Yaris matched the offender.
As to objective seriousness in respect of what is generally referred to as carjacking offence in R v Barker; R v Gibson [2006] NSWCCA 20, Howie J (Basten JA and Hall J agreeing) outlined (non-exhaustively) the circumstances that are relevant to the gravity of a carjacking offence contrary to s 154C(2).
In the present case the offender targeted what I take it to be a middle‑aged female late at night, being approximately 10.30pm, while she was parked waiting to collect her son from work in the vicinity of the Woolworths store loading dock. It has not been specifically referred to in the facts but I would infer that the loading dock was a relatively isolated part of the premises at that time of night, the victim was threatened with a knife, and it can also be reasonably inferred that in the circumstances she would have been terrified and considerably concerned for her safety, and as to the intensions of the offender.
Although the offender did not inflict any actual violence, it was implicit in his demands that she get out of the car and give him the keys, and stating "I don't want to hurt you" that he was in fact threatening to hurt her if she did not comply at a time that he had the knife in his hand. There was in those circumstances a very real threat of violence towards a middle‑aged female, defenceless in the driver's seat of a stationary motor vehicle with the window down.
The offender had approached Woolworths walking, clearly carrying with him the knife. It is not possible in the circumstances to say how long prior to the offending conduct he had planned the offence but in my view it is reasonable to infer, and I do infer that he had been out searching for a vulnerable victim who he could rob with the use of a knife which he had taken with him for that purpose. That is, I am of the view that although it cannot be determined how long in advance he had planned the offence it can be determined that he had clearly planned it before executing it. He used the vehicle for a period in excess of two weeks.
I accept in those circumstances the Crown submission that the offending falls below the mid‑range of objective seriousness, but I reject the defence submission that it falls at the lower end of the range of objective seriousness. In my view it approaches the mid-range, although below it.
Latham J in Ibrahimi [2005] NSWCCA 153 at [22-23] stated: "It is a well-established sentencing principle, emphasised in the decision of Ranse, NSWCCA 8 August 1994, that offences involving direct attacks on the security of persons and their property as they go about their lawful business are regarded as serious breaches of the peace. The judgment of Gleeson CJ (as he then was) in Ranse has been affirmed many times: 'One of the primary purposes of the system of criminal justice is to keep peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fears of physical violence. It also embraces respect for the property of others'.
Those comments are just as applicable to a citizen going about their ordinary business, waiting for someone in a parked motor vehicle.
As to the objective seriousness in respect of the police pursuit, he was using the vehicle he had stolen earlier; he had disguised it by affixing to it stolen numberplates and he was driving at a time when he was disqualified from driving. The manner in which he drove created in my view a considerable risk to the community as well as himself; it included him crossing to the incorrect side of the road to overtake another vehicle in circumstances where it must have been patently obvious to him that he had been detected by the police, he drove straight over a roundabout rather than around it at the next intersection and failed to stop at a Stop Sign. He proceeded to travel the wrong way through a subsequent roundabout, requiring another vehicle to take evasive action, and then continued to travel through a red light. While the distance covered is relatively limited, that is only because with his dangerous and reckless driving he managed to evade police. All of the pursuit took place in a residential area. Although late in the evening it is obvious that there were other motor vehicles placed in danger by the offender's conduct.
I accept in respect of this offence the Crown submission that it falls in the mid-range of objective seriousness and reject the defence submission that it falls at the low end of objective seriousness.
As to the matters on the Form 1 which relate to the two charges of larceny in relation to two separate sets of registration plates stolen and dishonestly obtain benefit by deception in respect of fuel which are contained on a 166 certificate, these are three offences committed on entirely separate occasions. They are offences of a relatively minor nature, but they must be acknowledged when taken into account on the Form 1 as separate criminal conduct, which is required to be taken into account by increasing the penalty that would otherwise be appropriate for the offence to which they are attached to by way of the Form 1. That is done by giving greater weight to the two elements that are always material to the sentencing process: personal deterrence and retribution.
As to aggravating factors, the offences were committed while the offender was on conditional liberty. He was at the time on bail in relation to the offences that were the subject of the severity appeal that I have previously referred to. One of those offences was of course steal motor vehicle, a similar offence to the current offence of aggravated take and drive motor vehicle with person in it.
In R v Richards (1981) 2 NSWLR 465 at [465], Street CJ said the following: "The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes".
The Chief Justice's comments in Richards were in fact an acknowledgement of a long line of authority that a breach of bail was a serious aggravating factor.
There is a further aggravating factor in relation to the offences and that is that the offender has a record of previous convictions. He has an extensive criminal history commencing as an adult in 2009.
His history includes a variety of offences and on many occasions a number of similar offences, I will simply refer to the type of offences: possess prohibited drug, a number of motor vehicle related offences such as uninsured, unregistered, not display P‑plate, drive unlicensed, drive suspended, drive disqualified, goods in custody, larceny, dishonestly obtaining financial advantage, take and drive, implements to enter/drive conveyance, possession of equipment to administer drugs, possess or use prohibited weapon, possess housebreaking implements, possess prescribed restricted substance, stalk/ intimidate, steal motor vehicle, carry cutting weapon, enter enclosed lands, break and enter dwelling house with intent to steal.
As I have indicated, a number of the offences referred to occur on more than one occasion in his record. As to take and drive offences, there are two previous offences in 2011 and 2013. As to drive while disqualified or what I regard as similar offences such as drive while suspended or drive while unlicensed, there are approximately five previous relevant offences.
Of serious concern in relation to the offender's criminal history is that while he has in the past on many occasions received the benefit of a lenient sentence such as a bond under s 9, and on occasion bonds subject to supervision, his record discloses that he has been frequently called up for being in breach of the sentences imposed; on some occasions more than once in relation to the same sentence.
His intersection with the criminal law and the justice system, including the fact that he has spent a number of periods in custody as a result of previous offending, appears to have had little effect on him,. It can be said of this offender that his criminal history, including the matters the subject of the severity appeal and the matters before the Court for sentence today, demonstrate in my view a contumelious disregard for the law.
Since commencing his offending conduct, he has managed to stay out of trouble only for the period between early 2013 to late 2016. His criminal history disentitles him from leniency.

SUBJECTIVE MATTERS

As to subjective matters, the Court has before it the offender's criminal history, which I have previously referred to, his traffic record report, a report from Emma Hubner, a psychologist with Duffy Robilliard, dated 3 October 2019, Exhibit N3, four references being from the offender's father, Dr Morteza Nateghi, dated 28 September 2019, Professor Akbar Khatibi, dated 30 September 2019, Dr Olga Bukhteeva, dated 2 October 2019 and Jamil Ispahany, dated 3 October 2019, and an affidavit from the offender, Exhibit N4, dated 15 November 2019.
As indicated during the sentence proceedings, I regard letters to the Court from offenders, and affidavits as being of little weight in the sentencing process in the absence of the offender giving evidence on sentence. As has been stated by the Court on many occasions, a sentencing judge needs to be circumspect in respect of second hand material or even affidavits from offenders where the assertions are not the subject of cross-examination, see Qutami [2001] NSWCCA 353 at [58] - [59]: 58 There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. 59 There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
In relation to this offender and the extent to which material provided by him, either through a psychologist or through an affidavit, can be accepted as relevant is the fact that when arrested in respect of the matters which were the subject of the severity appeal he gave an entirely false story to the police, designed to exculpate himself as not having committed the offences that he was charged with and also designed to create problems for the victims or victim of the offence. That is, he falsely stated that he had taken the motor vehicle by consent as a result of an arrangement to commit an insurance job. I also note that the vehicle was apparently never recovered because he would not disclose what he had done with it.
Presumably if it was at some stage located, there would have been information in the facts before the Court to that effect. There would at least have been some significant delay in my view of an insurance company paying out on the vehicle until they were satisfied that it had in fact been stolen rather than being the subject of an insurance job involving the owner/victim. However there is no evidence before me one way or the other in that regard.
Subjective matters are drawn from that material. The offender was born on 21 September 1987 in Iran, and he is now 32 years of age. He is the youngest of three boys born of his parents' union. The family moved from Iran to Sydney in 1995 to enable his father to pursue a university education. The offender at that time was eight years of age. His father eventually completed his studies and gained employment as a lecturer in mechanical engineering at the University of New South Wales, having completely a Masters at University of New South Wales and a PhD at Sydney University in the field of engineering, and having then been involved for some years in the academic environment.
Both of the offender's older brothers had similar ambitions to their father, one has a master's degree in engineering and works in that field, and the other has worked for the Australian Federal government for the past 11 years. The offender described his parents as strict, controlling and perfectionistic, and feeling pressured by them to succeed academically and asserting that they withheld emotional support, that is love and affection, unless he met their high expectations. This is said to have made him feel rejected and inadequate and as result, "I looked for an outlet and turned to drugs".
At age 15 he gravitated towards peers with whom he drank alcohol and committed crime. That association continued throughout adolescence and into adulthood. He had attended Matraville Public School from kindergarten until Year 6, when he went to Randwick Boys High from Year 7 until halfway through Year 8, and Hurstville Boys High for the completion of Year 8 until Year 11 when he was expelled for non-attendance. He then transferred to James Cook High where he was again expelled for the same reason before the completion of Year 12. He is reported to have had average grades at school and to feeling pressured by his parents to achieve better. However in respect of classes in which he thought he was under-performing he simply ceased attending.
Between 17 and 21 years of age he is said to have worked at McDonald's and to have then completed a two year training program with My Freight Career, and then working within the freight industry for a further seven years. During that time he is said to have completed courses in logistics/freight‑forwarding and business administration at St George TAFE as well as completing a medical science course at Granville TAFE. At age 27 he gained employment as a labourer and worked in that capacity until late 2018 when he was fired. At age 29 he commenced a commerce degree through Wollongong University and there is before the Court a letter from the university indicating that he had enrolled.
Between the ages of 22 and 27 he continued to use drugs, being methamphetamines, MDMA and anabolic steroids. Between the ages of 27 and 30, he managed to reduce his drug use, move out of home and gain employment, and successfully applied to enter university. That is in effect the period that I have referred to really commencing from early 2013 to late 2016, when he was not in trouble with the law.
As to the issue of remorse and contrition, the offender in his affidavit said the following on p 3: "Remorse: "10. I believe my actions show how sorry I am. My actions include: (a) admitting what I did wrong in the interview; (b) not applying for bail; and (c) pleading guilty."
I accept that the offender admitted what he had done wrong in the interview, but as to whether his not applying for bail and pleading guilty can be taken as representing genuine remorse and contrition, I do not agree. A plea of guilty is not necessarily evidence of remorse or contrition.
In respect of the sentence matters it is clear from the facts that the offender must have been readily identifiable as the person who had stolen the Toyota Yaris on 1 January. He was recorded on CCTV footage in relation to larceny of registration plates and in relation to obtaining petrol without payment. While I did not earlier refer to it, there are descriptions of the clothing worn on several of the occasions which is similar on various occasions, if not identical. He is apprehended while using the stolen vehicle. The Crown had in my view a very strong case in relation to all of the charges. Considering the offender's history of criminal offending, I have no doubt that the significant factor in his making admissions was his realisation of the assistance that might give him in ameliorating any sentence.
As to his not applying for bail, it was in circumstances where the offending the subject of the sentence proceeding today had occurred while he was on bail in respect of the matters the subject of the severity appeals. Not making an application for bail in my view was simply an acknowledgment of the fact not only that the Crown had a strong case in relation to the sentence matters but that he was unlikely to achieve bail as a result of the breach of the previous and current bail.
As to the balance of his affidavit, it contains absolutely no expression of remorse or contrition. In my view it serves little purpose in these proceedings other than to give the offender the opportunity to blame his offending on a number of factors such as the termination of his accommodation, the termination of his relationship with a girlfriend and the fact that the State Debt Recovery Office had garnisheed his employer in relation to unpaid fines and that because he was stressed as a result of those matters, he had returned to over-indulging in alcohol.
I note in respect of the report from Ms Hubner that when she deals with this matter under the heading of "Current Offence and Attitudes", it again appears to be the offender suggesting that his offending is because of his past symptoms of depression and anxiety as a result of his perceived failure to meet the family expectations, his loss of employment, the eviction and the separation from his partner.
Again, with Ms Hubner he claimed heavy alcohol consumption during January 2019, and claimed to have no memory of having stolen the numberplates or of having been involved in the police pursuit on 10 January 2019. As to why he had committed the offences, he said, "I grabbed a car to live in for a couple of weeks" and "It was a bad reaction to a tough situation".
The material before the Court in my view indicates that the offender has failed to acknowledge the impact of any of his offending on any victim or on the community. The offending was simply as a matter of convenience for him and he seeks to excuse it by referring to situations that he created for himself if they are in fact truthful assertions. He appears to be an individual who cannot cope with the exigencies of life, that is life as created by himself.
It is suggested in the psychological report that his claim with the psychologist that he instructed the owner to take her bag and to call her insurance company and police suggests some degree of contrition. I note that the facts refer only to him telling the victim to take her purse, not to making an insurance claim, and in the circumstances where the offender has not given evidence I decline to accept the untested, self-serving statement as made to the psychologist. In any event, providing advice to a victim as to how they might over time, and taking the trouble to make a claim, be recompensed for the vehicle is in my view in no way a sign of remorse or contrition. I do acknowledge that he at least told her to take her handbag with her.
As to the references that I have previously referred to, I note that the offender claims to have suffered from anxiety and depression in the past. His father's letter to the Court indicates that he had suffered from anxiety and depression for the past couple of years. His father repeats a number of the matters on which the offender relies as excusing his behaviour, such as the fact that he had received correspondence from Revenue New South Wales about deductions to be made from his wages to repay previously accumulated unpaid fines from the past ten years. That is of course one of the circumstances that I have referred to as being entirely created by the offender himself committing offences.
His father states that the action by Revenue New South Wales "adversely affected Mohammad's life (and to a point ruined it), causing him to leave his job as his earnings were not enough to sustain the large payments to Revenue NSW and being able to survive". Provided together with the offender's affidavit is a garnishee order issued on 15 November 2018 for the amount due of $7,882.04. It indicates that if the full amount cannot be deducted in one single payment the order may be paid at the rate of $610 per fortnight commencing next pay period until the total amount of $7,882.04 is paid.
The offender's affidavit indicates that his employer having received the garnishee order was taking out $200 per week; that is, $400 a fortnight to pay the garnishee order and he claims that this left him little to live on once he had paid rent. However, I note that he has also included as part of his affidavit a New South Wales Revenue Examination Notice issued on 23 July 2018. It includes the following: "What are my options if I cannot pay in full?" Revenue New South Wales is aware that financial circumstances may impact on the ability of a person to pay fines and a number of options are available for people in difficult circumstances. You can apply for a payment plan to repay your debt over a period of time by offering to pay an amount per fortnight as above. If you are in receipt of a Centrelink payment, we can arrange to have payments deducted automatically from your pension or benefit. To use this option please contact Revenue New South Wales."
And provided is an email and telephone number "or complete the form and return it to Revenue New South Wales."
The offender's father appears to be of the opinion that in fact, $680 was being deducted per fortnight rather than $200 and of course, it was always open to the offender to put his circumstances before Revenue New South Wales in order to make an arrangement whereby the garnishee order would be in a much lower figure. I have no doubt that Revenue New South Wales is accommodating in relation to assisting persons to repay their fines in circumstances where the balance of their salary or wage will not meet the ordinary circumstances of living and to allow the repayment over very extended periods of time in order to facilitate that process.
His father also refers to the carjacking as being completely out of character and due to the offender's severe alcohol intoxication, anxiety, and depression resulting from his loss of income and financial hardship. There is no evidence in relation to any of the offending that the offender at any time was affected by alcohol other than unchallenged, self-serving statements. Indeed, the police pursuit appears to be entirely inconsistent with the offender being significantly affected by alcohol at the time, and there is certainly no evidence in relation to the theft of Ms Bogdanovski's motor vehicle that she at any time noticed the offender as being in any way affected by alcohol, even though he leaned in through the open door window to take the keys.
Nor is there any evidence in relation to any of the offences that the offender was affected by any drug at any time. Even if the offender had been affected by alcohol and/or some drug there is no indication in the material before me that it was so significant as to have any causal relationship in relation to the offending, and indeed, intoxication by alcohol or prohibited drug is not an excuse for criminal offending.
I accept that his father has been supportive of the offender throughout his life and will continue to be so, but I note that his father's reference appears to be to some extent not cognisant of the offender's true circumstances, indeed, possibly even of his full criminal record.
Dr Nateghi refers to his son and the carjacking as being completely out of character. Considering the like past offences and his significant criminal history otherwise, I do not understand how Dr Nateghi can suggest that the carjacking was completely out of character. Although his father refers to his son while in custody as having a changed and positive attitude and his son wishing to complete his studies, I note that there is no information in his father's reference to suggest that his son has ever expressed remorse or contrition to him.
The further reference from Professor Khatibi is addressed to the presiding judge. It refers to the offender's father as being a close family friend and he refers to the offender inter alia as "honest, trustworthy." He speaks otherwise about the offender's academic career. What he does not do is suggest that at any time the offender has ever expressed remorse or contrition to him. There is in fact no reference in the letter to the Court to having any knowledge of the offences that the offender is to be sentenced for, nor any reference to any knowledge of his past criminal history.
A reference in those circumstances of this nature which basically speaks about his ability as a student at university is of no assistance to the Court. It is clear that he cannot be regarded as honest or trustworthy, and I doubt very much if Professor Khatibi, if aware of the full circumstances of his criminal history and the offending, would have expressed his opinion in that manner.
There is a further reference from Dr Bukhteeva, a senior environmental engineer, who has known the Nateghi family for the past ten years. Again it would appear that she is a professional colleague or acquaintance of Dr Nateghi. She refers to the offender as being "hard working and honest", as well as "compassionate and kind in nature". She addressed her reference to the presiding judge and she refers in it to knowing he was in remand for an offence related to the carjacking. She states that, "This kind of behaviour is totally out of character for Mohammad and shockingly unexpected for anyone that knows him. I am confident that this poor decision by his part is an isolated one in which he will learn from it not to be repeated".
Accordingly, she then recommended him as being of good character and great potential. Other than the reference to knowing that he was remand for carjacking, there is no reference to his having expressed to her remorse or contrition, nor is there any reference to her being aware of his extensive criminal history and like offending in the past.
Again, I express the view that it is difficult to conceive of how an intelligent person as Dr Bukhteeva must be could have expressed the opinion that the carjacking was out of character, if she had been aware of his past offending.
The final reference was from Jamil Ispahany, the Change and Release Manager of Cyber Security Centre, Enterprise Services, Commonwealth Bank of Australia. He has known the offender for the past 15 years. One of the offender's older brothers is a close family friend. He refers to the offender as being an honest person, and that over the past five years the offender has pursued his career in logistics and supply change management. That appears to be somewhat, although not necessarily inconsistent with his starting at university. As to what offending he is aware of, he refers to the carjacking and states his opinion, "I would say this is not in Mohammad's nature or expected from him or anyone from his family, and I was surprised when I heard about it. Mohammad, in my opinion, is a person with a positive nature and someone that is committed to overcome this and other challenges and better his life. He is on the right track with his study and benefits from loving family who will support him financially or otherwise during challenging times now and in future."
Again, although the letter is addressed to the presiding judge, and it refers to knowledge of the carjacking, he makes no reference to any knowledge of the offender's past criminal history or like offending. To suggest that he could honestly hold the opinion, if he was aware of those matters, that the offender is an honest person in my view defies common sense and reality. I am accordingly of the view that none of the references provided are of any assistance to the offender, other than his father's reference to the extent that like every other parent who has a son before this court, in my experience, he has expressed his determination to provide assistance in the future. I have no doubt however that Dr Nateghi has always supported his son throughout his trials and tribulations. It would be surprising if he was not aware of his son's past criminal history. I accept that he will continue to support his son, but in my view history shows that Dr Nateghi's support in the past has had little or no effect on the offender except perhaps allowing that it may have been of some assistance in encouraging him to return to university studies and in ceasing to offend at least in relation to anything other than prohibited drugs between early 2013 and late 2016. I say that because the information in the psychological report tends to indicate that the offender, while not otherwise offending, had an ongoing problem with prohibited drugs during that period.
Ms Hubner assessed the offender as being as having a 'moderate - high' risk of reoffending on the basis of his childhood conduct problems, criminal history, substance abuse, and association with antisocial associates. I accept her assessment as appropriate.
For the purposes of sentencing. I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and I take into account such as the aggravating factors and mitigating factors as referred to in s 21A(2)(3) of that section, as are present and have already been referred to. That includes obviously the fact that he was on conditional liberty, his significant criminal history and of course the plea of guilty. It has been conceded on behalf of the offender that there is no other penalty that is appropriate other than a term of imprisonment, such a concession was entirely appropriate.
When dealing with the sentences, in my view there is need for a substantial accumulation on the sentence for the aggravated take and drive motor vehicle in respect of the offence of police pursuit. It is clear in this matter that both specific and general deterrence are of substantial importance. The offender's conduct requires denouncement, and the protection of the community, although the protection of the community cannot result in the imposition of a sentence of any more extended duration than is otherwise appropriate.
I intend to proceed by way of an aggregate sentence, and in those circumstances I am a required to indicate indicative sentences in relation to each of the matters for sentence.
In relation to the aggravated take, drive motor vehicle with person in it contrary to s 154C (2) allowing for the 25% utility discount and taking into account the three matters contained on the Form 1 as previously referred to, the indicative sentence is a non-parole period of four years six months with a balance of term of one year, six months, giving, expressed otherwise, a total sentence of six years with a non-parole period of four years and six months.
In relation to the police pursuit contrary to s 51B(1), again having given the offender the benefit of a 25% utility discount, the indicative sentence is two years' imprisonment and the automatic period of disqualification of three years will apply.
As to the offence of drive while disqualified contrary to s 54 (1)(a), the indicative sentence is nine months' imprisonment and the automatic period of disqualification of one year will apply. Those last two offences were the matters contained on the s 166 certificate.
It will be noted in respect of the indicative sentence provided for the aggravated take and drive, including the Form 1 offences, that I did not find special circumstances, and the statutory relationship between the non-parole period and the balance of term was applied.
In providing the aggregate sentence in the absence of the matters the subject of the severity appeal this morning, I would not have found special circumstances, but I am required to take into account the principles of totality and accumulation, and I have done so. The aggregate sentence is a non-parole period of five years with a balance of term of two years, giving, expressed otherwise, a sentence of seven years with a non-parole period of five years and a balance of term of two years.
In relation to the commencement date of the sentence, I have taken into account two matters: first of all, that on 24 June 2019 the magistrate imposed a number of sentences which I have confirmed. The effect was a sentence in relation to all offences which had the effect of a prison term of 20 months dating from 24 June 2019 with a non-parole period of 12 months which would accordingly expire on 23 June 2020.
It has been submitted on the offender's behalf that the sentence in respect of these matters should be dated to commence from the date of his arrest on 17 January 2019, including the period that he has now served for the offences that were the subject of the severity appeal. In my view, that would be entirely inappropriate. It would mean that the offender had served no time for the offences that were the subject of the severity appeal, and in my view, considering the separate nature of the offending, he should be required to have served all of that sentence as imposed by way of the non-parole period of 12 months.
Accordingly, in the absence of any previous period of custody, I would have dated the sentence in this matter from 24 June 2020, being the expiry of the non-parole period resulting from the sentences the subject of the severity appeal. However, from 19 January 2019 to 23 June 2019, the offender was in custody only in relation to the offences the subject of sentence. That is a period of 156 days, so I will backdate the sentence from 24 June 2020 to ensure that the offender is given full credit for the time spent in custody before commencing to serve the sentence in relation to the severity appeals.
Accordingly, the sentence of seven years will commence on 20 January 2020 to take account of the 156 days, and the offender will be first eligible for parole on 19 January 2025. The balance of term is two years giving a sentence of seven years which will expire on 19 January 2027. That restores the statutory relationship of the balance of term representing 25% of the overall sentence and the non-parole period 75% or, expressed differently, the balance of term being 33% of the non-parole period. Are there any particular errors that anyone has detected either in the calculations or in what I have said about any of the material that is before me or anything that I have overlooked? HAWKE: No, your Honour.

R v Nateghi

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