Mr Philpott, I tell people in advance what sentence is to be imposed and in your case there has to be a substantial sentence. I propose to sentence you to seven and a half years imprisonment. That term of imprisonment will commence on 10 April 2019, it will start roughly half way through the balance of parole that you are required to serve and I propose to fix a non‑parole period of four years nine months commencing on 10 April 2019. On my calculation you will be eligible for release to parole will be 9 January 2024.
Mr Philpott appears today for sentence in relation to matters he pleaded guilty to at the Local Court. I heard evidence and submissions in relation to this matter two days ago and I am grateful for the written submissions of both Crown and defence as well as their helpful oral submissions. I do not have a transcript, but I have extensive notes and a clear memory of what occurred before me.
The prisoner has pleaded guilty to three offences for sentence in this Court. He receives a discount upon the otherwise appropriate sentence for each offence of 25% in accordance with s 25D Crimes (Sentencing Procedure) Act 1999 which I will herein after refer to as the "Act".
Two of the offences are of considerable seriousness and represent a significant escalation in his criminality. To deal with them in the order in which they are presented to me in the Crown Sentence Summary; there is an offence of possessing a shortened firearm, not a pistol, without authority, contrary to s 62(1) Firearms Act 1996. That offence has a maximum penalty of 14 years and has no standard non‑parole period. The second offence is an offence of specially aggravated break and enter and commit serious indictable offence contrary to s 112(3) Crimes Act 1900; that carries a maximum penalty of 25 years' imprisonment and has the standard non‑parole period of seven years.
The third offence, the least serious of the three offences that I am concerned with, is an offence of take and drive conveyance without the consent of the owner, contrary to s 154A Crimes Act. That carries five years imprisonment and has no standard non‑parole period.
R v Philpott [2020] NSWDC 645 | Case summary | Zoe
There are two matters to be dealt with on a Form 1 in respect of the 'possess shortened firearm'. The facts of those matters are intimately bound up with the character of the firearm and the condition in which it was found when the prisoner was arrested. Those two offences of 'possessing ammunition without authority' contrary to s 65 Firearms Act 1990 and 'not keep prohibited firearm safely', contrary to s 39 Firearms Act 1990.
I will come back to the facts of the matter and the way in which these matters are to be assessed for their gravity by reference to the relevant legislation shortly.
The standard non‑parole period in respect of the specially aggravated break enter and commit serious indictable offence matter is to be considered in the context of ss 54A(2) and 54B(2) of the Act. Section 54B(2) requires, once having determined where an offence fits within the range of offences regarded as the middle range of objective seriousness of that particular offence, one has to take into account other matters arising, for example, under s 21A of the Act, s 44 of the Act, s 25D of the Act and other relevant matters, including regard to matters falling outside the Act that are not specifically identified in that legislation.
In this particular matter, I have determined that there should be an aggregate sentence to reflect the totality of the criminality. I make the general point at this stage that I acknowledge that the offences were committed over a relatively short period of time, that is, during 10 January 2019. How long the prisoner had been in possession of the firearm, of course, is not known to the Court. The prisoner has not shed any light on that. He has given no evidence nor provided any information as to where the firearm came from. Clearly the firearm used in the commission of the specially aggravated break and enter and commit serious indictable offence is the same firearm that was found in the possession of the prisoner on his arrest.
It is the case in assessing the totality of the criminality that there is considerable "overlap" between the two more serious offences. But having said that, the character of the possession of a firearm both before and after the commission of the break and enter offence, increases the totality of the criminality of the two offences considered together.
The take and drive conveyance without consent is related in time. The exact relationship in time is not clear and certainly, again, not the subject of any comment by the prisoner. But it is a separate offence from the other two and has to be assessed in that context, albeit related in time.
With regard to the facts of the matter, the prisoner was born in September 1997, thus at the time of the commission of the offences with which I am concerned, he was 21 years of age. He now appears before me at 22 years of age.
The prisoner was on parole at the time of the commission of the offence, and I will come back to the way in which that matter should be approached. It goes without saying of course that that is a breach of conditional liberty and an aggravating factor in relation to each of the offences pursuant to s 21A(2) of the Act.
The take and drive motor vehicle offence occurred at approximately 2am. A person who was the owner of the motor vehicle and known to the prisoner was driving the car in the region of South Nowra. For some reason the vehicle stopped in a particular street. The prisoner walked away from the car. The owner of the car then got out and walked away from the car. Having left the car the prisoner 'doubled back', as it is described in the facts, and took possession of the car and drove off leaving the owner of the car standing in the street. The motor vehicle was found elsewhere in South Nowra in a place called Quinns Lane. I took the liberty of having a look at a Google map to just see the relationship of Quinns Lane to the road where the car was taken. It would seem to me the car was driven only a relatively short distance, perhaps a kilometre at the most. However, the car was abandoned and it was found with two tyres deflated. Obviously it seems, without dispute from the bar table that the prisoner is responsible for the deflation of those tyres. Of course in assessing the seriousness of this offending, bearing in mind it was committed whilst on parole, I can accept that it was at a low end of seriousness of offences of this type. The control of the vehicle was for a short period of time. There was no suggestion of endeavouring to obtain financial gain. The vehicle when abandoned was not cannibalised as can often happen in these cases. But having said that, it was an act of meanness, for want of a better expression, on the part of the prisoner to abandon the owner in the middle of a street and a further act of meanness to deflate two tyres for reasons best known to the prisoner. It no doubt reflects somewhat upon his character.
The next offence in time, although the timing is a little vague having regard to the Agreed Statement of Facts that were wrong in material respects, and having regard to the discussion I have just had with the parties, occurred when the prisoner, apparently by himself, attended upon another premises in another road separate from the roads connected to the vehicle in South Nowra. The house in question was occupied by a 15 year old boy and a woman, who was not present. I am given a host of names but from the facts as I best can understand them, at the time of the breaking and entering by the prisoner, the only person in the premises was the 15 year old boy who could be fairly described as a child. It would seem, although it is not abundantly clear, that the prisoner was familiar with the people in the house. In fact the primary victim of the crime recognised the prisoner notwithstanding the fact that he sought to disguise himself. It must have been a very terrifying experience for this young person to be confronted by the prisoner. He was armed with the shortened firearm that I have earlier referred to.
It was described as a one barrel wooden gun by the victim, brown in colour, consistent with the appearance of the firearm later found by police. I should point out that when the firearm was later found by police, later on 10 January sometime after 3pm, there was a .22 calibre bullet in the chamber which reflects the fact that when the prisoner attended upon the premises the gun was loaded. He has not provided any information to deny the strength of that inference to be drawn.
The prisoner, on entering the house awoke the victim. Bearing in mind all that has been put to me, it is clear as an aggravating factor under s 21A(2) of the Act, beyond the aggravations that are pleaded, the victim was a vulnerable person. He is awoken at night; he is a child; he was confronted with demands for car keys and jewellery.
I note in relation to the matter that apart from being armed the prisoner was wearing what is described as a "scream" mask to disguise his face and he was wearing dark clothing. As I said, his body shape was recognised by the victim and it is no doubt on some information of recognition, that ultimately the police found him later that same day.
The facts speak of a degree of planning in this. Planning is not an aggravating factor as such, but it cannot be said that this was an opportunistic offence. The prisoner clearly chose premises with which he was familiar or had occupants with whom he had some familiarity. He disguised himself, he brought a weapon and was very pointed in his demands. The prisoner held the gun throughout his presence in the house in company with the young person. He asked for property. Ultimately he took a grey bag that belonged to one of the occupants. He took some jewellery, although one item of jewellery was dropped in the front yard. Apparently he took a set of gold cufflinks. He also took a white and purple Yamaha motorcycle, a dirt bike, from the property. It seems to me he was there steal whatever property he could find or carry away at the time.
The victim rang an uncle after the prisoner left. The facts suggested initially that the mother of the victim arrived home at 5.30am. She saw the house in disarray and noticed property missing including, in addition to what I have already indicated, a gold bracelet. The jewellery items apparently were stored in a small white pouch with a draw-cord. The motorcycle and a helmet for riding a motorcycle were also missing. She rang the police. She located the ring.
When police arrived it is apparent that a number of rooms were ransacked, as it is described in the facts. So the prisoner went around the premises searching for what property he could take away. The police were later told that a motorcycle had been located in the front yard of other premises and the helmet and motorcycle that had been taken were found lying on the ground behind bushes of those premises. Thus, the motorcycle was obviously only in the possession of the prisoner for a short period of time and apparently was not damaged.
With the information available, the prisoner was arrested shortly after 3pm at the home of another person. He attempted to escape by jumping out of the window of one of the bedrooms. However, he was arrested a short time later and the firearm that is the subject of the 'possess shortened firearm' offence was found in the top drawer of a bedside table. A small white jewellery bag was found as well as a face mask. A pair of gold cufflinks was recovered.
It would seem that all the property taken was recovered although I see no reference to the recovery of the gold bracelet. I am not advised of the value of the jewellery that was stolen.
The prisoner exercised his right to silence on arrest. But as I said, he has not endeavoured in any way to shed any light that is reliable upon his motivation for these respective offences and the background of which they were committed.
In the consideration of the objective facts I have already dealt with the steal motor vehicle matter. The Crown submitted that the specially aggravated breaking and entering and stealing matter was a matter above the middle range of objective seriousness. Counsel for the prisoner, as I understood his written submissions, said that it was at the lower end of the middle range of objective seriousness. There are a number of matters to consider in determining the objective seriousness of the offending. There are, firstly, any relevant aggravating factors that can be identified from the general facts under s 21A(1) or additional aggravating factors under s 21A(2). Then there needs to be an examination of the circumstances of aggravation themselves as well as a consideration of the relevant serious indictable offence that was committed.
I am assisted to some extent by the submissions of learned counsel for the prisoner who concentrated largely upon the character of the serious indictable offence, being that of larceny and thus not one of the more serious indictable offences that can be contemplated to be committed in breach of s 112. In that regard counsel for the prisoner referred the Court, for example, to the decision of R v Huynh [2005] NSWCCA 220, in the same year was another decision I have cited of Harris v R [2005] NSWCCA 204, in which the Court of Criminal Appeal came to the same conclusion. That is, that larceny is not one of the more serious indictable offences specified in s 4 of the Crimes Act and that is a relevant circumstance in considering the objective gravity of a particular offence under the section. There is also to be considered the value of the property stolen.
Reference is made also in the written submissions of counsel for the prisoner to the decision of Cohen v R [2011] NSWCCA 165, particularly the observations of Simpson J reflecting upon what I have just observed. Also the general observation that the Court is required to have regard to those "circumstances of aggravation" that might be pleaded under s 112(2) or as special circumstances of aggravation under s 112(3) of the Act. In that regard I turn to s 105A. The circumstances of aggravation identified in that section, are relevant to a consideration of s 112 include a range of matters. Here it was not pleaded that the offender was armed with an offensive weapon. That is a matter that is picked by the circumstances of special aggravation.
So turning to the particular circumstances of aggravation pleaded in this matter it is alleged that the prisoner knew that there was a person or that there would be persons in the place where the offence is alleged to be committed. It is correctly pointed out that that circumstance of aggravation is of itself to be seen in context, as not one of the more serious circumstances of aggravation that can be pleaded for an offence of this type. For example an offender may be in company with another person which could be, or may not be, depending on the facts of the matter, a more serious aggravation than knowing people are inside the house. There may be the use of corporal violence. There may be intentional or reckless infliction of actual bodily harm. There may be deprivation of liberty. Every case, of course, will depend on its facts. I am not saying necessarily that a particular circumstance of aggravation that I have identified is inherently more serious or not more serious than another. But in this particular matter, it might be said that the particular circumstance of aggravation is at the lower end of seriousness of such circumstances. Save for one matter to be borne in mind. That is, that the accused must have known, because he was obviously familiar with the people inside the house, that there would be a child inside the house even if he did not know the primary victim directly when he confronted him. It seemed to me there was no need for him to produce the firearm in those circumstances and, of course, that victim was vulnerable. So in considering that circumstance of aggravation one has to take into account that "additional aggravating factor".
Then we turn to the circumstances of "special aggravation". Again by reference to s 105A there are three such circumstances and it would seem to me that prima facie, being armed with a dangerous weapon, as serious as it is, warranting a finding of a circumstance of special aggravation, would usually be seen as not as serious as wounding or intentionally inflicting grievous bodily harm upon another person, or inflicting grievous bodily harm upon a person and being reckless as to causing actual bodily harm to that or any other person. In other words causing injury to someone else could be seen prima facie as being more serious than being in possession of a dangerous weapon.
Of course, these matters again turn on their facts, such as how the weapon is used. It is not suggested in the facts available to me that the prisoner threatened to discharge the firearm, which I have taken into account. It is not alleged that the prisoner caused any harm directly to the victim, notwithstanding the fact that he must have been terrified by this conduct. Particularly given the way in which the prisoner sought to disguise himself, which, to my mind, was designed to maximise the concern of any person that he confronted.
It is thus, in these circumstances, noting the character of the serious indictable offence, the character of the property stolen, the circumstances of aggravation pleaded in the context of the facts and also the circumstance of 'special aggravation' that I have concluded that that offence is at the lower end of middle range of objective seriousness of offences of this type as submitted by counsel for the prisoner. I could not conclude reasonably that it was above the middle range of objective seriousness. I note, of course, that the middle range of objective seriousness is not a "narrow band".
With regard to the possess firearm offence; we are denied details as to how long it was in the prisoner's possession, but certainly within his possession during 10 January. Having regard to the character of the weapon, noting the circumstances that might pertain to such an offence would be relatively narrow given the character of the offending, it could be characterised well within the middle range of objective seriousness if I was required to make that assessment. I use it as a term of reference, albeit that it is not necessary given the fact that there is no standard non‑parole period. It is a serious offence committed by the prisoner, however, and it is made obviously more serious in a consideration of it that it was a weapon not just in the possession of the prisoner but was used for the purposes of committing the other offence to which I have referred.
I have already noted the relationship of the offences to one another in time. I am mindful of the fact that in fixing an aggregate sentence I am required, in accordance with the principles laid down by the majority in Pearce v R (1998) 194 CLR 610 at [45], to fix an appropriate sentence for each offence and then turn my attention to the issue of the totality of the criminality. In structuring the aggregate sentence, I make it very blunt the way I have reasoned, there is a high degree of concurrency between the sentence imposed for the possess firearm offence and the break and enter in circumstances of aggravation and special aggravation. The totality of those two offences is "increased" by the two offences being considered together. I have considered that, bearing in mind it is a relatively modest sentence to be imposed for the take and drive motor vehicle, that the sentences for the two offences related to the firearm should be calculated to be cumulative upon the sentence imposed in relation to the motor vehicle offence.
That brings me to the issue of the start date of the sentence to be imposed. I have had regard to the submissions of the parties, particularly the helpful submissions of learned counsel for the prisoner. In his submissions he refers specifically to the decision of Callaghan v R (2006) 160 A Crim R 145. That is in fact a judgment of Simpson J who counsel for the prisoner quotes extensively in the context of the reference to the decision of Cohen. In that judgment her Honour, citing the earlier decisions of the Court of Criminal Appeal noted, that when one is considering revocation of parole it is usually in the circumstances of considering a breach of conditional liberty as an aggravating factor under s 21A(2). The Court is not permitted to double dip on aggravating factors that can be identified in the matter and thus one must be cautious when concluding that committing the offence whilst on parole is a serious aggravating factor to then make the sentence I impose entirely cumulative upon the balance of parole. This would be to double dip. There are a number of ways of going about this but in my view the appropriate way to deal with the matter is to commence the sentence I propose part way through the balance of parole on the date that I have identified when I foreshadowed the orders to the prisoner.
As is pointed out, this is a "discretionary" matter. In calculating the sentences I have imposed I have also made some adjustment to the non‑parole period, albeit in the context of a general finding of 'special circumstances' to reflect the partial accumulation which of itself is a special circumstance. The material available to me demonstrates that the charging of the prisoner with these offences was the basis for the revocation of parole. It is claimed in the Parole Authority report that the prisoner's response to supervision had been "satisfactory" in the month or so that he had been subject to parole. However, it seems by reference to the evidence of his grandmother and the facts of the matter emerging from the history he gave the psychologist that the prisoner had returned to drug use during the period of parole and ultimately was 'an accident about to happen'.
With regard to the subjective circumstances of the prisoner the starting point for consideration of those matters is his criminal history. The prisoner is a person who has built up a substantial criminal history since a young age reflecting very much circumstances of disadvantage, the subject of evidence from his grandmother. He has findings of guilt in the Children's Court in relation to damaging property and breaking entering and stealing although many of his offences are relatively minor ones in the scheme of things. However, I do note in April 2018 he was found guilty of taking and driving a conveyance without the consent of the owner. He received an aggregate sentence in 2018 for a number of offences, some relatively minor, not being licensed and the like, taking and driving motor vehicles. There is an offence of resisting police in the execution of their duty, damaging and destroying property. Amongst those various offences for which he was sentenced in 2018, was an offence of breaking, entering and stealing. To be fair to him there is not, apart from one matter in his Children's Court record, a sustained history of such offences although that prior offence is of a character not dissimilar to the principal offence with which I am concerned. In respect of all of those various offences committed it would seem in April and May 2018 the prisoner was sentenced to a total sentence of 15 months' imprisonment commencing from 23 May 2018 and he was given the benefit of what I understand to be a non‑parole period reflecting special circumstances, expiring on 22 November 2018. He was released to parole, and these offences were committed six to seven weeks after that release to parole.
Considering his record I cannot accept the submission of the Crown, as useful as it is meant to be, that his record represents an additional aggravation under s 21A(2). The prisoner's counsel concedes he is not entitled to any particular leniency by reason of his criminal history but it is not an additional aggravating factor apart from the extent to which he was in breach of conditional liberty.
That brings me to evidence adduced in his case which to a large extent may explain the aspects of his criminal history and perhaps to a limited extent explain this offending, albeit this offending represents a significant escalation in seriousness of his previous antisocial conduct.
I have heard evidence from his grandmother. She is a very impressive woman. Her affidavit is very extensive and in conjunction with the history given by the prisoner, albeit that he did not give evidence before me, I am prepared to accept a high level of dysfunction and disadvantage the prisoner has suffered throughout his life. This is a matter both of concern and a matter for some "sympathy", albeit not misplaced sympathy. His life has been, to be fair, if I might use the expression, a 'litany of woe'. He has been abandoned and then taken back by his mother. He has had issues in relation to his paternity. I do not propose to go through the detail of it if only to have the prisoner understand that I am not here to "embarrass" him or to humiliate him or to in any way seek to indicate that I am not appreciative of the impact of his upbringing upon his current circumstances. He has had a disrupted education. He has had violence perpetrated against, as I understand it, a younger brother by others, leading to Family and Community Service placement.
He has had substantial health issues. I understand from his grandmother that in 2012 he was diagnosed with a form of meningitis requiring three months in hospital, although in the context of the psychological report there does not appear to be any particular matter arising out of that that provides some explanation for his criminal behaviour in the past or presently.
His grandmother speaks of her knowledge of his use of drugs and he has been a regular user of prohibited drugs for some period of time to some extent to self‑medicate.
He has positive aspects to his character, it is clear. His grandmother speaks of his affection for his mother notwithstanding the troubled background he has had in the past. In her affidavit she has been in contact with him as best she could up until the COVID‑19 crisis and has spoken of his desire to change "for the better" and to return to some form of stable environment on his return to the community. She gave evidence orally of opportunities that might arise; they are very vague I hasten to say; of employment within National Parks. Of course he would be required to get some minimal qualifications but I am aware of the fact that within the various parts of New South Wales, Indigenous Australians can get opportunities to work with National Parks if properly qualified. He has indicated to her, in fairness to him, and I see it as a positive quality, that notwithstanding all that he has been through, and his current situation, it is his long term goal, to help other young people who have been through what he has been through and to help them deal with their trauma, their disrupted education and their contact with the justice system. It is admirable that he is proposing to set himself up as an example for others. But I have to see those wishes on his part in the context of the reality of him appearing for sentence a relatively short time after committing serious crimes himself.
There is one aspect of his grandmother's evidence though that needs to be noted. She would seem to indicate from the specifics of her oral evidence that the prisoner's position back in November 2018, when he was released to parole, was a little different from what it is now or might be expected to be on his release to parole in some years' time. She offered him the comfort of her own home in Sanctuary Point, which is some way away from the turmoil of Nowra where obviously the prisoner has associations that lead him into drug use and the like. However, on release to parole he only stayed with her one day and it is quite clear she had no control over him. Whilst he did visit her from time to time he did not commit himself to establishing any stability, perhaps by living at her place and considering his future in terms of employment. He saw for himself it better to pursue the lifestyle that he had led before he had gone into custody earlier in 2018.
It thus falls to be considered the fact that one has to approach his prospects of rehabilitation with considerable caution and also the likelihood of him re-offending. I am not in a position to make a prediction of the future. The sentence I impose is a substantial one by any measure, particularly having regard to the previous sentences imposed upon him. But then again, this is very serious offending and it requires some weight to be given to general deterrence, particularly for some message to be sent to other people within the Nowra community that home invasions of this type cannot be tolerated. They are very serious offences, particularly when people go into other people's homes at night armed with weapons that would appear to be loaded, albeit that the prisoner did not threaten to kill anybody or discharge the weapon.
The prisoner is a person of average intelligence. There is evidence from assessments made of him well before he came to this Court, assessments made when he was at school, showing that the prisoner has abilities. His verbal and non‑verbal IQ were scored between 106 and 98 and his full scale IQ was assessed when he was in year 7 as 102, so that places him within the average and shows that he has the capacity to both learn and to benefit from past experience. It shows he is not intellectually disabled. There is no issue, in my view, of any particular health issue that could be said to be causally connected directly to the offending. It may be fairly said that his life's disadvantages and these traumatic experiences may make him more susceptible to drug use and drug abuse and I can see an indirect link in that regard. But there is no mental illness that can be safely identified or diagnosed from the information available to the Court.
In that respect I have noted the clinical psychologist's report; it is very extensive. She details a great deal of history confirmed by the grandmother.
I pause to say, if I have not already said so, I was very impressed with the extent of preparation that went into the grandmother's affidavit. Often we are having people stand up at the bar table telling us about their client's disadvantage in the absence of any reliable evidence. But in this particular case it is clear that this young man has had very significant disadvantages in his upbringing, some related to what is described as his "Aboriginality" but not necessarily all so described.
Ultimately the psychologist concluded that the prisoner was, as had been previously assessed, of average intelligence. She undertook proper psychometric assessment in that regard. She sought to indicate that on examination he had symptoms consistent with criteria that might, in a formal diagnosis, lead to a conclusion that the prisoner suffers from Attention Deficit Hyperactivity Disorder, that he had symptoms that were consistent with the criteria for Post‑Traumatic Stress Disorder. But he also has symptoms that are consistent with a Borderline Personality Disorder as outlined in DSM5, the diagnostic statistical manual. The problem with a Borderline Personality Disorder is that it represents symptoms such as emotional dysregulation, relationship difficulties and instability of mood et cetera, as might be reflected by, perhaps, some of the offending with which I am concerned.
She said that in her interview with him the prisoner did struggle to maintain focus and concentration. He has a long history, as I have earlier outlined, of emotional and behavioural difficulties with a traumatic early upbringing. And she noted, as we understand from the many reports we see over the years, that the early years of a child's life are a critical period for the development of emotional and relationship security and there are many aspects of disadvantage that can arise then, including emotional and relationship instability. These experiences can give rise to conditions such as Post‑Traumatic Stress Disorder and the like.
Despite his good intelligence, his general environmental circumstances negatively impacted upon his ability to participate in his schooling and develop healthy relationships. He has largely been associated with an "antisocial peer group" throughout his life and that might have taught him bad life lessons. But, of course, this offending has got nothing to do with antisocial peer pressure.
His life circumstances have impacted upon his drug use and the psychologist opines that the offending with which I am concerned has to be seen in the context of what she describes as "addiction" and "poor mental health". Living with the issue of addiction will, going back to a decision I cited extensively yesterday, Wong, the guideline judgment on armed robbery offences, but observed and acknowledged in subsequent years as relevant to many other types of offending, will not be a mitigating factor and it is not a mitigating factor here. Sometimes, of course, drug dependency or addiction will be relevant in the mitigatory sense both by reference to objective facts and other subjective circumstances of an offender as discussed by Wood J in Henry [273]. In this particular matter, by reference to the matters that Wood J identified as relevant "subjective" issues, it could not be said this prisoner is at the "crossroads", that is clearly not the case. It is far too early to conclude that, and there is nothing in the character of the offending, given the preparation that was taken by the prisoner to commit the offence or the offences, suggesting impulsivity motivated by drug addiction.
As to the other vexed area whether addiction or drug use is a personal choice or a matter beyond the control of the prisoner, of course with the prisoner's disrupted upbringing, it is open to conclude that he was preordained to finding himself abusing drugs given the lack of support he has had and disruptions to education, family life et cetera.
But I have to consider that matter in the context of the fact that only shortly before this offending he had been sentenced to a term of imprisonment at a relatively young age. He had had a period of time to reflect upon what he wished to do when he was released from custody but when released from custody to parole it would seem he readily returned to drug use. Of course the damage done to him in the years past might have made him more vulnerable to those choices but that is the situation that he has not taken the opportunity that may have been presented to him by the previous sentence imposed in the Local Court.
A number of other issues arose from the evidence and from the submissions that I have taken into account. For example his counsel sought to draw my attention to the comparative youth of the offender and I take that into account. I acknowledge in a general way, the fact that maturity, brain development and the like are works in process for young people up until their mid‑20s, perhaps beyond. The fact that someone turns 18 does not suddenly imbue them with full maturity and full responsibility.
Counsel for the prisoner referred me to the decision of R v LNT [2005] NSWCCA 307 and the observations made in that judgment. I acknowledge that it is not necessarily the case that one needs to sentence a person for serious crimes when they are young on the basis that they have behaved as an adult and should be treated accordingly. But it should be also pointed out by reference to the authority itself that that case is concerned with a person who was subject to the provisions of the Children (Criminal Proceedings) Act, which this prisoner is not, and thus the protection, for example of s 6 under that Act, does not apply to this particular prisoner. Another authority that I referred to yesterday, again dealing with someone who was a child is, KT v R (2008)182 A Crim R 571, in the judgment of McClellan CJ at CL.
But I accept, notwithstanding the fact that both that judgment and the judgment cited by the defence is focusing upon principles that relate to the sentencing of a young offender who might be regarded as a child, that the law does recognise the potential for cognitive, emotional and/or psychological immaturity to contribute to the breach of the law. It is not a matter determined solely by biological age. Youth is a relevant matter in this sentencing exercise. But it has to be assessed in the context of the prisoner at the relevant time being 21 not 18. The submission as to the immaturity of the offender, however, is one which does not appear to be evidenced based. I have not been pointed to any material, even in the psychological report, that reflects upon the commission of the offences with which I am concerned as being a product of "immature" conduct. And in fact, the character of the offending is very much inconsistent with immaturity on the part of the prisoner. That having been said he is still a young man and that is a matter that can be taken into account in a range of ways, in this matter in my view, by concern of the Court to determine that there are special circumstances pursuant to s 44 of the Act.
The other matter that I have adverted to is the issue of the prisoner's Aboriginality which I have taken into account. His counsel has referred me to the High Court majority judgment in Bugmy v R [2013] HCA 37 at [43]-[45]. I do not need to read those paragraphs onto the record. But it is worthwhile pointing out, by reference to the very passage quoted by counsel for the prisoner, that taking into account a person's upbringing, their "profound childhood depravation", not diminishing with the passage of time and giving full weight to that background in every sentencing decision, is not to suggest that an offender's deprived background has the same mitigatory relevance for all the purposes of punishment. One has to give weight to the conflicting purposes of punishment which, of course, as their Honours pointed out, makes the exercise of the sentencing discretion so difficult.
When one turns to the decision handed down on the same day of Munda v R [2013] HCA 38 at [51]‑[59], one can see observations in that particular case about the fact that general deterrence may not have impact upon particular offenders or community so damaged and diminished by their circumstances as matters which clearly cannot apply in this particular case. There is no suggestion of the prisoner coming from the community as damaged and dysfunctional as, for example, the community that Mr Munda came from, nor for that matter, the community that Mr Bugmy came from. The circumstances of people in the Nowra district are considerably different from those of people living in the remote areas, for example, of New South Wales, denied access to facilities and services that are readily available in this area.
I have taken into account the matters on the Form 1 in accordance with the guideline judgment of Attorney General's Application (No 1) (2002) 56 NSWLR 147. They provide some factual context for the principle offending but do not significantly increase the offending beyond, as I said, the objective fact of the live ammunition the subject of one of the charges in the Form 1 charges being found in the chamber of firearm. I have already made comment upon that.
Obviously I have had regard to the 'purposes of sentencing' pursuant to s 3A giving clear weight of everything that has been said on behalf of the prisoner about his youth and his social context. There still is a need for general deterrence as an element of this sentencing exercise. There is a need, in my view, to protect the community from the offender. Although I do not believe he is inherently a danger to the community, but his actions on this occasion represent his potential in that regard. I have to make him accountable for his actions, denounce his conduct, recognise the harm he has done to the victim, although I do not have a victim impact statement. But I am also required to promote his rehabilitation. These purposes of sentencing are guideposts, as the majority in Veen (No 2) v R [1988] HCA 14; 164 CLR 465 said, that sometimes point in opposite directions. Clearly the s 5 threshold has been passed.
The mitigating factors that might be identified under s 21A(3) as opposed to s 21A(1) are few. In my view the plea of guilty is a mitigating factor. The prisoner has expressed remorse but I cannot conclude remorse has been established relevantly on balance in the absence of evidence from the prisoner. He declined to cooperate with police on his arrest which is entirely his right. He has declined to provide any useful information as to the circumstances in which he gained access to the firearm.
Clearly, I cannot find he was a person of good character and as I have said at this stage it is not possible for me to determine that he has good prospects of rehabilitation or he is unlikely to re-offend. That having been said, that is not a reason to deny him a finding of 'special circumstances'. It is people such as this prisoner who run the risk of being institutionalised, or people with profound issues associated with their past and current circumstances who do need the intense professional assistance of the Parole Authority. A person of good character who has a stable environment to return to, may not need the intensity of supervision that a person such as this prisoner needs. There is, of course, the element of partial accumulation upon the balance of parole that I have taken into account. Of itself a 'special circumstance', but here the relevant matters requiring professional assistance of the prisoner to adjust to community living are substantial indeed. Although it is fairly said that the non‑parole period should not represent a failure to recognise the seriousness of the offending in question.
In R v Wong (1999) 108 A Crim R 531, the High Court, when striking down guideline sentences in relation to Commonwealth importation cases, noted that the core of the difficulty in sentencing lies in the complexity of the sentencing task. A sentencing judge is required to take into account a wide variety of matters which concern both the seriousness of the offence or offences for which the offender is to be sentenced as well as their personal history and circumstances. As with the purposes of sentencing, the Court noted there are "competing and contradictory considerations". Yet from all these considerations a judge is required to distill an answer which reflects human behaviour in either time or monetary units of punishment. And hence, the delicacy of the task required to be undertaken and the difficulty of it. Bearing in mind what the High Court said in Markarian v R [2005] HCA 25; 228 CLR 357 about the need to instinctively or intuitively synthesize all that is before the Court.
Thus, Mr Philpott, having had to cover a lot of territory, I do so for your benefit; I do so for the benefit of the community; I do so for the fact that in about four or five years' time you will go before the Parole Authority and they will have to look at my remarks on sentence and work out what to do with you.
I have determined that you should be sentenced to an aggregate term of imprisonment of seven years six months commencing on 10 April 2019 expiring on 9 October 2026. I fix a non‑parole period of four years nine months commencing on 10 April 2019 expiring on 9 January 2024. You will be eligible for release to parole on 9 January 2024.
Unlike your previous sentence you may not automatically be released to parole. The other sentence was a short sentence, this one is one that will require the Parole Authority to give serious consideration as to what you are going to return to when you are released to the community.
The indicative sentences I impose are follows:
In relation to the possess firearm offence, taking into account the matters on the Form 1, you are sentenced to three years imprisonment.
In relation to the specially aggravated breaking entering and stealing you are sentenced to six years imprisonment with a non‑parole period of four years.
In respect of the take and drive motor vehicle you are sentenced to 12 months imprisonment.
[2]
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Decision last updated: 27 October 2020