R v Ortiz

Sentence 1HIS HONOUR: Armando Salinas Ortiz appears today for sentence in relation to two offences of accessory before the fact to robbery in company. The first offence in time was committed on 30 May 2012. It was particularised as happening at Killara, and the robbery in company was robbery in company, by persons unknown, of a man called Li Jun Wei of $200,000 worth of assorted jewellery. I will outline the facts in relation to that matter. 2The particulars of accessorial liability by reference to the charge are that he did, "Incite, move, procure, counsel, hire and command the said persons", although the liability of the prisoner is not that of the "principal" in the criminal scheme in which he was involved. 3The second offence in time of accessory before the fact of robbery in command occurred at Haberfield on 12 June 2012. The robbery in company was of two persons, Chi Ho So and Po Seng Choi of certain property, namely $750,000 worth of assorted jewellery, $20,000 in Australian currency, the property of Man King Jewellery Company Ltd of China, Chinese passports, a laptop computer and printer and a Rolex watch worth $6,000, the property of Po Seng Choi. 4The particulars of accessorial liability are identical as to the first charge. Again it is not the Crown case, nor could I conclude, that the prisoner was a principal in the planning and preparation, nor obviously the 'executive', of the offence given his plea to being an accessory before the fact. 5I will deal with the facts of the matter and what flows from them in the context of other material in the case in a moment, but it goes without saying that having regard to the actual robberies in company and the very significant value of property that was stolen from particular people, that this is a serious example of accessorial liability before the fact to robbery in company, having regard to the ultimate crime that was committed. 6Of course, as I will analyse in a moment, I cannot conclude that the prisoner knew precisely what property was to be taken in each case. But it is clear that he must have known that there would be substantial property obtained given the degree of obvious planning that went into this, of which he was at least part, and given the fact, particularly in relation to the second charge, that he had already participated in the first count. 7It is a matter of speculation of precisely what he knew of what occurred when the robbery in company occurred in May and what was actually stolen. I cannot fill the gaps in the evidence with speculation. But given his own admissions, so far as he is prepared to make admissions, he had contact with the same person in relation to the commission of both offences. It seems to me completely beyond any understanding of human affairs, or any other excuse or explanation, that the prisoner was, on the second occasion he became an accessory before the fact, not aware of what in substance had occurred before. 8At the end of the day it does not make any difference because he will be sentenced in accordance with the agreed facts, which very much point to the significance of his moral culpability. It should be clearly understood, of course, that if the prisoner had been convicted of being a principal of these very serious offences, then the penalties to be imposed would have been very substantially greater than the penalties that I am imposing. 9The prisoner at the time of the commission of the offences was, as I understand the matter, twenty-five years of age. He was born on 14 January 1987, and thus at the beginning of 2012, on my calculation, would have turned twentyfive. He came to Australia on 10 February 2012 with, as I understand it, some alias, because in the facts he is referred to as "AKA Jorge Andre Prieto Torres(?)", holding a Mexican passport, number G08316645, which he, as I would understand it, was not legally entitled to have. 10He is a citizen of Columbia. He has proffered the explanation, whether it is true or not I am unable to say, to a psychologist that Columbians find it difficult to come into Australia on visas. Because of their country's reputation I assume, not that that matters at this point. It is easier for a person from Columbia to come into Australia with a Mexican passport. He thus, in reality, was not legally entitled to be in the country, having, I think to fairly put it, misled the Australian authorities as to his true identity and most importantly his true nationality. 11The facts reveal that on 28 May 2012 an unknown person purchased a motor vehicle, which was a red/maroon Toyota Camry sedan from a private seller. That registration number was WKY 519. Another motor vehicle, which is described as having registration number VLY 731, was purchased on 30 May 2012, again by an unknown person, from a private seller in the Maroubra area. As to the events of 30 May 2012 giving rise to the first count, the victim was in the Parramatta car park in his motor vehicle. It is stated in the facts that the vehicle at 2.04pm, that I will shortly refer to as WKY, that is the red/maroon Toyota, entered the Westfield Shopping Centre. The driver is unknown. However, the front passenger was a coaccused, Horacio Javier Laguna Cantor, also known as Manuel Leonardo. Whether this person is a Columbian or a person from Mexico, I am unable to say. Whether this person was in Australia on the same false basis as the prisoner, I am unable to say. 12One of the features of this case, although the prisoner of course always has a right to silence, is the prisoner has not sought to assist in any way to the filling of the gaps in the material before me. I do not regard the version that he gave the psychologist as being a conscientious effort to fill in relevant gaps. Many things are not referred to in that history he has given, as I will demonstrate. 13The victim of the first robbery in company, Li Jun Wei was a businessman involved in the sale of jewellery, mainly in shopping centres, and the facts refer to him being in the Parramatta Shopping Centre up until about 4.07pm. He had a suitcase on wheels which contained approximately $200,000 worth of assorted jewellery. He was attending a number of jewellers in the centre, presumably to make sales. For a period of hours CCTV footage captured the offender, in conjunction with the coaccused that I have named and another unknown male, following Mr Li around the centre. The facts state that it appears on the CCTV that the offender is acting together with these persons and their surveillance activities. The coaccused and unknown male on separate occasions follow Li into the male toilets of the centre. 14The victim left Parramatta car park in his motor vehicle, followed by the vehicle WKY and the other vehicle VLY that I earlier mentioned had been purchased on 30 May. A short time later those two vehicles were seen to enter the Rhodes Shopping Centre. At 5.02pm the victim Li is observed to enter the Rhodes Shopping Centre car park lift. The coaccused that I have referred to changed appearance, according to closed-circuit television. This male was also observed to be wearing one headphone piece. 15Whilst at Rhodes the victim, Mr Li, attended a jewellery store for the last sale of the day. At about 5.46pm the coaccused and another male, seen earlier with the offender at Parramatta Westfield, exited the Rhodes car park lift. Shortly before this the prisoner was observed waiting at the lift to the car park. The victim Li entered that lift, along with the prisoner. At 5.53pm Mr Li was observed exiting the lift and returning to his motor vehicle, but the prisoner did not exit the lift at this time. 16Mr Li exited the Rhodes Shopping Centre car park at 6.13pm. WKY left the car park, as did VLY. The prisoner was not identified on CCTV footage at the Rhodes Shopping Centre after this time. Mr Li drove to his residence in Killara, parked his car in a driveway. He then heard a loud boom sound, whereby the driver's side window was smashed. An unknown person reached into the vehicle and removed the keys from the vehicle's ignition. This person commenced punching Li repeatedly to the face. Li indicated this person had something partially covering his face. This person was wearing darkcoloured gloves. Then there was a second loud booming sound and at this point the victim realised the jewellery in the bag was being stolen by a second person. When the rear vehicle window was smashed, Mr Li's assailant ceased punching him to the face and ran off. 17Mr Li saw a darkcoloured vehicle some distance along the road on the Pacific Highway. He suffered injuries to the corner of his eye, a cut to the left hand and pain in the back and shoulder area. The estimated value of the stolen jewellery is $200,000. On 6 June 2012 motor vehicle WKY 519 was located abandoned one street from the robbery. 18The facts assert, and I quote them directly: "By following the movements of the victim at Westfield Shopping Centre at Parramatta and then at Rhodes Shopping Centre and obtaining information of the movements of the victim, the offender assisted unknown persons by making them aware of the movements and the whereabouts of the victim, which facilitated the robbery to be committed upon the victim by the unknown persons." 19It is conceded by the prosecution that the offender was not present at the scene at the time of the commission of the robbery. The offender agrees that he knew the victim was a jewellery seller and that a robbery in company was to be committed against the victim by the persons unknown to the prosecution. It is agreed by the prosecution and the offender, that the offender, whilst being aware that the victim would have in his possession assorted jewellery and cash at the time of the robbery, was unaware as to the exact amount or value of the jewellery or cash that was in fact robbed by the persons unknown to the prosecution. 20It is clear from the extent of planning in relation to this matter and the time that it took to execute the crime, consistent with the overall degree of planning in relation to the offence, that the prisoner must have known that substantial property was to be taken. In submissions counsel for the prisoner used the word "significant". In this matter it would be a semantics, although "substantial" I think is sufficient for all purposes. 21So far as the second crime is concerned, it had a very similar modus operandi. The victims attended Westfield at Burwood for selling jewellery and they arrived at Westfield in Burwood at about 12.30pm. Two motor vehicles were identified as following the victims into the car park, one was a goldcoloured Toyota Camry, registration AP 37 BK, and a bluecoloured Holden Commodore station wagon, with a registration number WTJ 691. The victims entered the shopping centre at 12.58 pm. CCTV footage captures the offender entering the shopping centre via the same entrance and wearing an earphone in his right ear. At 1.07pm the offender is observed upon CCTV footage to exit the shopping centre and return to motor vehicle WTJ 691, that is the bluecoloured Holden Commodore station wagon. 22At 1.44pm the victims left the Westfield store and returned to their vehicle. They were followed by the vehicle with the registration AP 37 BK, that is the Toyota Camry. They drove to Haberfield to a jewellery store. When they stopped their vehicle the Toyota Camry, that is AP 37 BK, parked suddenly diagonally across their path. Three persons got out of the vehicle and approached the victims. A male described as "skinny", wearing a light blue hooded jumper, gloves, black reading glasses with cotton material covering his mouth, pointed a handgun at the victim passenger. Another male person wearing a hooded jumper approached the victim driver and smashed the driver's side window with a handgun. This male then pointed the gun at the driver. The third male smashed the rear window of the victims' vehicle and stole two backpacks and a briefcase. The backpacks contained $740,000 worth of assorted jewellery. 23The man who pointed the gun at the victim passenger took the victim's Rolex wristwatch from him. A laptop computer and printer that were in the car of the victims were also taken away. The three unknown assailants returned to their vehicle and drove away. The stolen property is as I have particularised from the charge. Motor vehicle AP 37 BK was located abandoned near a nearby street. Shards of glass were located in this vehicle as suspected as coming from the victims' vehicle. 24The prisoner was arrested in the Ashfield area on 21 June 2012. When he was taken to the police station he exercised his right to silence. He was then charged for the matters before the Court. He was subjected to forensic procedures. The second motor vehicle which followed the victim's car at the Burwood Westfield car park, being the bluecoloured Holden Commodore sedan which the prisoner was seen in, was found abandoned in Alexandria on 8 August 2012 and subjected to a forensic examination. The DNA profile of the offender was identified on the steering wheel and on other items. 25The facts state: "By following the movements of the victims at Westfield Shopping Centre at Burwood and obtaining information of the thereabouts of the victims, the offender assisted unknown persons to commit the robbery upon the victims by making them aware of the whereabouts of the victims." 26It is conceded by the prosecution the offender was not present at the scene at the time of the commission of the robbery. The offender agrees that he knew the victims were jewellery sellers and that a robbery in company was to be committed against the victims by the persons unknown in the prosecution. It is agreed by the prosecution and the offender that the offender, whilst being aware that the victim would have in his possession assorted jewellery and cash at the time of the robbery, was unaware as to the exact amount of jewellery or cash that was in fact robbed by the persons unknown to the prosecution. 27The offender maintains that he was unaware that any of the persons unknown to the prosecution who committed the robbery was going to be armed with any weapon at the time of committing the robbery, and the prosecution concedes that there is no evidence to establish that the offender had such knowledge about any weapons that the unknown persons carried. 28In relation to that last matter, I assume that the offender asserts this through his counsel. I am not aware of any version the prisoner has given other than the version he gave to the psychologist. But, be that as it may, that is the state of the agreed facts, and as I said in relation to the first count the prisoner must have known that substantial property was to be stolen. The exact amount of course he did not know, but he knew, as with the first charge, that the victim or victims intended for the robbery were jewellery salespeople and of course he had been involved in the previous robbery. 29In relation to the criminal history of the prisoner, he has no relevant criminal convictions in Australia. A finding of guilt for which he received an order under s 10A Crimes (Sentencing Procedure) Act 1999 appears on his record. That is irrelevant. I am informed as far as the prosecution is aware he has no convictions in Columbia or Mexico. 30He has been in custody since his arrest on 21 June and the effective sentences will date from that date. He did give evidence before this Court, as I have earlier mentioned. He did not participate in an interview with police. What has been tendered on his behalf is a report from a consultant forensic psychologist, Dr Peter Ashkar, dated 20 August 2013. 31I have been confronted in the course of submissions with some propositions about the evidentiary value of what is contained within the report which cannot be accepted. 32Firstly, I cannot accept the proposition that because the prisoner said something it must be accepted because there is no evidence to contradict it. That general submission is, with respect, misconceived. I am prepared to accept those matters that to my mind amount to admissions against interest and in that regard I accept the fact that the prisoner had contact with a Spanish speaking person who was commonly concerned with the commission, in one way or another, of both offences. But as to the prisoner's account of what he was paid and how he was recruited, I cannot accept the version that he has given. 33In relation to that aspect of the matter, I do not accept the version he has given of his involvement in the offence beyond what is in the agreed facts for a number of reasons. Firstly, the prisoner has never given a version before he gave the version to the psychologist. He has not given any evidence to adopt the version given to the psychologist and been subject of the test of crossexamination. What he has told the psychologist about the matter involves a bare minimum of information and there are many things that he has either chosen to, or not bothered to, provide information about. 34In relation to what the psychologist has recorded, I note para 8 of the report. "Mr Torres, his employer, instructed him to follow the first victim's car on 30 May 2012, which he did. His employer also instructed him to follow the first victim through the Parramatta Shopping Centre on that day, which he did. 'They told me to keep an eye on him and follow him and report what he was doing on the phone.'" 35I pause for a moment. That is the account given as to his involvement on 30 May. It says nothing about his presence at the other shopping centre, the Rhodes Shopping Centre on that occasion. 36The only attributable account given by the prisoner in relation to the second robbery is, "Mr Torres, his employer, instructed him to follow the second victim's car on 12 June 2012, which he did." That version is painfully inadequate in explaining what is set out in the facts which I have quoted. There is no reference to the earpiece that is referred to in the facts, no reference to the prisoner's presence within the shopping centre. The truth of the matter is that the version that the prison has given in relation to his involvement in this offending to the psychologist is very much of the category of "confess and avoid." 37Of course, as I said earlier, I cannot fill gaps in the evidence conveniently left behind by the prisoner, with respect, with speculation. But if the prisoner is asserting, as is counsel suggests, that his only involvement in this robbery was as part of his employment of being paid $500 per week to be a driver for an unknown person that the prisoner is not prepared to name, then I do not accept that account. What is the truth of the matter, what he was paid, if anything, I cannot conclude in the absence of evidence. 38With regard to his personal circumstances, he has told the psychologist that he was born and raised in Bogota, Colombia. He claimed a happy childhood. He has five brothers between thirty-four and twenty-two. He has two brothers living in the United States. He has no family in Australia. He says his parents are aged in their fifties. His mother works at home and his father is a construction worker. He claims that he is very close to his family and he misses them terribly, and he speaks to his mother on the telephone every day. His parents are very sad and concerned about his legal situation. He said that "my mother has become ill because I am in gaol. She is depressed, sad. I call her and all she does is cry." He had a relationship with a woman in Australia. That is now over. He has no children. Whether any of those details are true or not, I am unable to say. They are uncontroversial. They may be true. It is impossible to judge the matter based upon a hearsay account that is untested. 39No request has been made by the prisoner for a report from the Probation and Parole Service for any information he could provide to the Probation and Parole Service to be verified. That is his right. 40He completed secondary school in Colombia he said in 2003 and entered university, studied for eighteen months but discontinued his studies in 2005, he said because of limited finances. He made some money selling clothes sent to him by his brothers in the United States. 41He claims not to use illicit substances. He tried cannabis once but did not like it. He reported occasional alcohol use, occasional binge drinking in social circumstances. He denied having a problem with this substance. So there is no background of drug addiction or dependency, alcohol addiction or dependency that is causally connected to the offending, nor is there any mental disability or mental illness. He has no history of mental illness, he has no history of self-harming. He has no medication of significance, apparently taking some medication for acne. He has an aunt who has lupus. 42The assessment of the psychologist, which of course is not a medical diagnosis, reflects upon reactive "significant symptoms of anxiety and depression," but the psychologist, to be fair, says "they are a normal response to his legal circumstances," although his mental state will need to be monitored. 43In relation to psychometric assessment, the report is unimpressive. Paragraph 12 states: "Abbreviated assessment of Mr Torres's non-verbal intellectual functioning placed him in the "low average to average" range of twenty-first percentile, ie better than twenty per cent of the population." Apart from the sparse detail of that passage, there is no other information beyond the footnote. "He completed the Wechsler Abbreviated Scale of Intelligence subtests, the Wechsler Adult Intelligence Scale subtests." I am prepared to accept on the assessment that he is performing at what is described as "better than twenty per cent of the population." I am not fully informed as to whether it is twenty per cent of the population of his profile or twenty per cent of the general population. 44There was a submission made that he was in the lower level of intellectual functioning. He is a long way away from having a psychological disability. It was suggested that he was "vulnerable" because of what was described as his "low intelligence." In the context of not being able to decide or know with any confidence what the true situation is as far as his involvement in the offence, I could not be satisfied that his supposed lower level of functioning which is, as I said, far away from borderline, contributed or not to his involvement in the commission of this offence. 45Certainly nothing in the evidence available, nor in any submission that was made, would cause the Court to consider those principles that are summarised in cases such as Hemsley and De La Rosa, where a mental disability might operate to diminish the weight to be given to general deterrence. Although, of course, there are other considerations in such a case. In any event none of those matters were adverted to, nor could they reasonably arise on the evidence. 46The prisoner did give an account to the psychologist that when he came to Australia he came here on a Mexican passport because it was "very difficult to obtain an Australian visa on a Colombian passport". I must confess I find that all rather suspicious. Of course, I am not sentencing the prisoner for being part of a drug cartel, or anything of the sort. But I find it difficult to understand how he could come to Australia with an expectation of learning an English language when he did not speak any English at all, and only $3,000 in his pocket. 47He said to the psychologist that he "paid a deposit of $1,000 to enrol in an English language course, but was unable to commence the course until he paid the balance of $7,000". No evidence has been produced to support that assertion, it may be true, it may not be true. 48He claimed that he looked for work quite constantly, but nobody was prepared to employ him without English. He quickly started to run out of money. Again this may be true, it may not be true. I get back to the confident submission made that because the prisoner has made an assertion - I am bound to accept it. One might have thought that some of the matters to which he adverted in his report could have been supported by at least some documentation. But no documentation has come forward. 49Although I have considerable doubts about his version and I approach it with some circumspection, I am prepared to accept that the prisoner at the time of his involvement in these offences was in some financial difficulty. These offences, as I have earlier pointed out, were well planned offences. 50There were cars obtained that were subsequently abandoned. There were people, including the prisoner at one stage, wearing ear pieces, there were a number of people involved. The professionalism, and to some extent the cold hearted brutality of the commission of the offences, particularly the first offence, speak of the principles involved in the commission of the robberies being skilled professionals, certainly a far cry from amateurs. 51I am mindful of the fact the prisoner is pleading guilty as an accessory before the fact. I am mindful of the fact that on the facts available to me I could not conclude that the prisoner was the principal planner of what occurred, he was a person obviously employed to perform a limited function to enable others, most importantly on the agreed facts, to carry out a robbery that he expected to be committed against people that he knew were selling jewellery. 52It is true, as a number of authorities have pointed out, that an accessory is not necessarily less culpable than a principal. Sometimes an accessory can be more culpable than a principal, particularly where the accessory instigates and plans a particular crime (R v Norman, R v Olivieri [2007] NSWSC 142 at [30]). 53There is no evidence upon which I could conclude that this prisoner instigated or planned these crimes. He was, however, involved in the planning and obviously played an important role in providing information to others to enable them to commit the crime. I have concluded the prisoner is not as culpable as those that actually committed the principal crime. I have got no way of knowing whether, if put in the same position, the prisoner could have committed the principal crime. He certainly by his plea has acknowledged that the principal crime was to be committed, and he did what is set out in the facts in the knowledge that that was to occur. Thus, clearly he had an important role to play. He is not as culpable without knowing the full facts in relation to co-offenders. There is only one co-offender charged, as I understand it. 54As to the extent of any financial reward he was to receive I cannot say. With respect I find the assertion that he made that involvement in these two robberies was part of some employment at $500 a week driving somebody around completely absurd. In any event he has not chosen to give evidence about it, it cannot be tested. 55There are a number of authorities that deal with the circumspection that courts must exercise in dealing with histories that are given to psychologists. On a number of occasions in this Court people turn up with psychological reports, they are tendered, sometimes over objection from the Crown, and bold assertions are made that one can act upon what is asserted by the prisoner in circumstances where the information provided by the prisoner is untested and not supported by other evidence that might otherwise be available. 56Of course, I have had regard to the conclusions of the psychologist. They are conclusions that are not particularly revelatory. Assuming for the moment even that the prisoner has told him the truth about his own personal circumstances, I would expect the prisoner to be experiencing significant symptoms of anxiety and depression as a reaction to his current situation, but in the absence of any history of mental illness it is clear that those aspects of the matter are related to his current situation, as the psychologist makes clear. 57In the course of submissions I discussed a number of matters with learned counsel for the prisoner. In relation to the matters raised by counsel I accept ultimately on analysis that there are a number of matters about which one could be highly suspicious that are not established if they be matters in aggravation beyond reasonable doubt. 58It is clear that his role in the planning of this matter was "limited". Although I don't accept the submission of "very limited", whatever that could mean in the circumstances as I understand them from the agreed facts. I have already pointed to the fact that I do not find that the prisoner was a principal in the planning and the execution of the robbery. 59Having said that of course, having regard to the facts, and the involvement of the prisoner, I am satisfied that the prisoner knew that these were planned criminal activities and that is, as such, an aggravating factor. However, the facts speak for themselves for the precision and planning involved in the commission of these crimes. 60The victims in each case were chosen at vulnerable moments when they least expected it. They were clearly targeted. They obviously - although I do not say that the prisoner knew this - were people that had been targeted some time before. Obviously there was some knowledge available to somebody that these people were in the business of selling jewellery, and there was - if not by the prisoner before the event - an expectation by the principals that substantially valued property would be obtained, and clearly after the first robbery the principals would have known that to be so. 61I am also satisfied beyond reasonable doubt that I can draw an inference at the very least that the prisoner committed the offence for financial gain. On the other hand I point out that crimes such as this are always, as a matter of rule, committed for financial gain. The prisoner is not a member of the Red Brigade, or some other political organisation committing serious robberies for political purposes. The prisoner is committing this crime in league with others, at the direction of others, knowing that a robbery was to be committed, and it is clear that the robbery was not committed for, and the prisoner's involvement in the planning of it was not concerned with what could be called altruistic purposes. 62There is one other important aggravating factor that arises in relation to this matter and that is that there was substantial loss occasioned. None of the property that has been stolen has been recovered. I appreciate, of course, that others almost certainly were responsible for on-selling the jewellery or secreting it and the like, given what I have found as to be the prisoner's involvement in the planning. But his knowledge of the fact that a robbery was to be conducted in the context of being an accessory before the fact contributed of course at least indirectly to the very, very substantial loss occasioned to both victims. Whether they were insured or not, I do not know. It does not matter. It seems to me, and it is no criticism of the victims, that taking around Sydney that substantial amount of jewellery should involve the presence of a licensed armed guards. 63With regard to mitigating factors there are few. The prisoner was a person of good character I am prepared to conclude at least in relation to the first offence. Admittedly he had not been convicted of anything by the time he committed the offence but he had already committed he knew the earlier offence, but I am prepared to accept he was a person generally of good character. I also accept that he did not have a record of previous convictions. However, in the circumstances of the matter, bereft of reliable information about this prospects or his background, I am unable to conclude that the prisoner is unlikely to re-offend or had good prospects of rehabilitation. I note his age. He is twenty-six or twenty-seven now, but that is the age of a mature person. He did express regret to the psychologist and I have noted that but I could not conclude having regard to s 21A(3)(i) that the prisoner has demonstrated remorse because he has not provided evidence that he has accepted responsibility for his actions beyond the account he gave the psychologist which is painfully incomplete. He has failed to provide any information that could lead to the identity of other people and he has not adequately in my view acknowledge the relevant loss or injury or damage suffered by the various victims. 64The plea of guilty is a mitigating factor. The prisoner however gets a discount of 25 percent upon the otherwise appropriate sentence for each offence to represent the utilitarian value of his pleas of guilty in accordance with the guideline judgment of Thomson and Houlton. The submissions of his counsel I have averted to in the course of a number of the matters I have summarised. I have taken into account all of the submissions she has made on his behalf. I do not believe there is a need to particularly refer to any other matter. 65The Crown in its submissions properly addressed the fact as it must be in this case that notwithstanding the criminal history of the prisoner, the crimes are of considerable seriousness and thus given the character of the robberies ultimately committed and the prisoner's role in them, general deterrence is an important consideration in sentencing. Personal deterrence is also an important matter, although I appreciate the prisoner, when he has served his sentence, will be deported back to Columbia and will never be allowed to return to Australia unless he comes back on another false passport. There is a need to denounce his conduct and to make him accountable for his actions. There is a need notwithstanding the fact he is a foreign national and will be deported to promote his rehabilitation. At the end of the day the purposes of sentencing that arise under s 3A and I have only mentioned some of them, are like signposts as was said in the decision of the High Court in Veen (No 2). They were signposts that sometimes point in opposing directions. I am mindful of the fact that I cannot conclude that the prisoner is part of organised criminal activity. If the prisoner was recruited out of his financial difficulties it may mean that his capacity to rehabilitate himself in the future will be enhanced. If the prisoner is a person with entrenched criminal proclivities, notwithstanding the absence of criminal history and has associates with entrenched criminal proclivities his progress or rehabilitation will be of course limited. 66In relation to s 3A I obviously thus have regard to that section. Reference was made in the course of submissions to the guideline judgment of Henry, the guideline judgment of Court of Criminal Appeal was handed down in 1998 or 1999, it is reported at (1999) 46 NSWLR 346. It has been held in a number of authorities that the Henry guideline is equally applicable to the offence of robbery in company, which has the same maximum penalty as the offence of armed robbery and I note authorities such as Murchie [1999] NSWCCA 424, Lesi [2004] NSWCCA 63 amongst others. The decision of Stanley [2003] NSWCCA [233] held that the seven considerations enumerated by the learned Chief Justice in Henry, at [162], apply mutatis mutandis to the s 97 assault in robbery and assault with intent to rob offences. The prisoner, I appreciate, is pleading guilty to being an accessory before the fact, but I have already dealt with that matter. 67It is to be fairly said, by reference to the principal offence, given the prisoner's lesser moral culpability as I have identified, that the guideline if I could use that expression which his Honour settled upon in respect of the matter of sentences generally falling between four and five years, was concerned with offending a world away from the particular offences with which I am concerned. The guideline was fixed as a guideline, not a tram line, by regard to a profile involving a young offender, using a weapon capable of killing or inflicting grievous bodily harm. I appreciate the prisoner had no knowledge of the use of weapons, with limited degree of planning, with small amount taken and a plea of guilty the significance of which is limited by a strong case, et cetera. Of course one should bear in mind that Henry was decided before Thomson and Houlton. A number of the observations there need to be considered in light of the subsequent guideline. I appreciate the victims themselves were not "vulnerable" people. They were business people who it must be said perhaps without being too critical, were foolish in not having adequate security protection. I cannot understand how someone could be dragging over $700,000 worth of jewellery around Sydney and not have some form of security protection. But, be that as it may, they are entitled to the protection of the law and the protection of the law requires for those found guilty of involvement in the robbery in due course condign punishment to be imposed. 68In relation to the guideline I have taken it into account. I have made allowance for the prisoner's legal culpability as an accessory before the fact in the circumstances I have outlined. 69But even making that allowance he has admitted to very substantial criminality within the context of he being less liable than others, including those that recruited him. 70In relation to this matter the principles set out in the High Court majority in Pearce v R [1998] 194 CLR 610 particularly at [45] arise. I am required to fix an appropriate sentence for each offence than by regard to the totality of the criminality determine the appropriate degree of concurrency and or accumulation. Having regard to the sequence of events that the first offence was less serious than the second offence and that the prisoner having committed the second offence in the knowledge that he had already committed the first offence, I have determined that a greater sentence should be imposed for the second offence than the first offence, primarily for those reasons. I have also considered that there must be some partial accumulation which is not disputed by the Crown or the defence. 71The Crown has submitted quite properly that a term of fulltime custody must be imposed. I have had regard to s 5 Crimes (Sentencing Procedure) Act and clearly no other penalty but fulltime imprisonment must be imposed. I have had regard to what has been put on behalf of the prisoner about his isolation from his family. Courts of course are not required to express sympathy for this situation, but I certainly understand the difficulties for the prisoner. Although they are very much self imposed. But having said that this prisoner is not quite in the same category an offender who, for example, is knowingly involved in the importation of drugs and comes to the is country to commit crimes against its laws. There is no evidence upon which I can conclude that the prisoner came to this country with a view to committing crime. It may be correct to say that he came here to start a new life or to advance his life beyond some situation of deprivation in Columbia. But, of course, as I have said earlier, one could not just act on the prisoner's say so of relevant matters when one realises how much information he has withheld of a material character in relation to his own offending. 72Having regard to Pearce principles I have determined as I have foreshadowed earlier that there should be some partial accumulation, in my view that should be the extent of eighteen months. I have determined that the starting point of any sentence in relation to the first offence in time should be five years with a discount of 25 percent that sentence will be three years nine months and it will date from 21 June 2012. In relation to the second offence in time the starting point is seven years with a discount of 25 percent. On my calculation that amounts to a sentence of five years three months and that will date from 21 December 2013. I shall move to the formal orders. If you could stand up please Mr Ortiz. 73In relation to the offence committed in May 2012 you are convicted. You are sentenced to a term of imprisonment of three years nine months. That sentence will date from 21 June 2012 and will expire on 20 March 2016. I decline to fix a non-parole period in relation to that offence because that sentence will be absorbed by the sentence I impose in relation to the offence committed in June 2012. 74In relation to that offence you are convicted. You are sentenced to a term of imprisonment of five years three months. That will date from 21 December 2013. On my calculation the balance of sentence will expire on 20 March 2019. In relation to that sentence I fix a non-parole period of two years and six months. That will date from 21 December 2013 and expire on 20 June 2016. Thus the total sentence I impose is six years nine months with a non-parole period of four years all effectively dating from 21 June 2012. 75I have made a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. The special circumstances are that the second sentence is partially accumulative upon the first and I am only required to fix a non-parole period for the second sentence. I accept that you will need an extended period of supervision to adjust to community living. I also accept in the context of fixing the appropriate penalties and the fixing of a non-parole period that this is your first time in prison custody. You will suffer hardships in custody arising out of your lack of English, although that will improve over the years to come, and from being separated from your family and culture. Of course, the law is that in relation to foreign nationals, who are to be deported as you will be, the Court is still required in sentencing you to fix a non-parole period and to give consideration to your non-parole period, as I would to an Australian citizen or any other person living in Australia where such consideration can be given on the evidence. Thus, all things considered as I said I have made a finding of special circumstances which includes considerations of matters that go simply beyond the partial accumulation of sentence. 76Yes Mr Crown are there any technical matters from you? 77KANAKARATIVE: No your Honour. 78HIS HONOUR: Ms Mayne are there any technical matters from you? 79MAYNE: No your Honour. 80KANAKARATIVE: Yes your Honour, I agree. 81HIS HONOUR: Mr Ortiz do you understand the length of the sentence? 82INTERPRETER: Six years and nine months. 83HIS HONOUR: Do you understand the length of the non-parole period, what is it? 84INTERPRETER: No I don't. 85HIS HONOUR: Well it's four years effectively from 21 June 2012 the date you came into custody. That means on 20 June 2016 you become eligible to be released to parole. You may or may not be released to parole. That will be a matter for the Parole Authority. When you're released to parole you'll be taken to a detention centre, perhaps Villawood if it exists or some other place and in due course when the arrangements can be made you'll be put on a plane and flown back to your country of birth or origin I'm not sure. 86Just one matter before I leave it. I hadn't forgotten it but I read the statistics that were provided to me. They're almost of no assistance. They're concerned with a total of twenty-two cases of which seven involved terms of imprisonment. Terms of imprisonment for five cases varied between twelve months and forty-two months for offenders convicted of aid and abet, accessory before robbery armed or in company. I have no knowledge of the facts in relation to the various matters or the objective seriousness of those matters by comparison as the learned Chief Justice said in 1998 the value of statistics will vary but with score samples and without facts in relation to other offences they merely provide the very barest assistance and certainly these statistics are of no assistance in a real sense whatsoever. The critical issue in this matter of course is the maximum penalty for the crime in question and assessment of the prisoner's responsibility within the range of conduct anticipated by the legislature. The other matter I think I should advert to before I discharge the prisoner is the - no I think I've dealt with everything I need to deal with in the circumstances I'm confronted with. Yes thank you very much Mr Ortiz. Ma'am thank you very much for assisting us in this matter. You're excused Mr Ortiz. Do you want to speak to your client with the benefit of the interpreter? 87MAYNE: With the benefit of the interpreter your Honour. 88HIS HONOUR: Here or downstairs. 89MAYNE: I don't know if the interpreter will come downstairs with me.