R v Salem Soukkar

District Court of NSW|2014-09-12

Introduction 1The offender has pleaded guilty to one count of attempted robbery armed with a dangerous weapon (H 54197162/1) and five counts of robbery armed with an offensive weapon (H 54197162/2-6). 2Each of the charges is brought pursuant to s 97(2) of the Crimes Act 1900. Each carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period. 3The offender seeks to have two offences taken into consideration on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The first is an offence of break, enter and steal pursuant to s 112(1) of the Crimes Act on 20 September 2013 at Como West Public School, and the second is a similar offence which occurred on 7 February 2014 at Santa Sabina School at Strathfield. 4The offender entered pleas of guilty at committal on 27 February 2014 and it is common ground that he is entitled to a 25% utilitarian discount on sentence in respect of each charge. 5The offender had originally pleaded guilty to one count of break, enter and steal at Como West Public School and one count of receiving stolen property (two Apple computers) from the Santa Sabina burglary. He was committed for sentence on both charges, however, on 9 May 2014 he provided a written statement to the investigating police admitting his involvement in the Santa Sabina burglary. The offender also gave information to the police about a co-accused involved in those burglaries. On 17 June 2014 the offender provided police with a second signed witness statement in respect of a co-accused involved in two armed robberies at the Caltex Service Station in December 2013, being Sequences 162/3 and 4. He has undertaken to give evidence consistent with those two signed statements at the trial of the co-accused.

The Sentence Hearing 6The Crown tendered a bundle on sentence (exhibit A) which included a statement of facts, a pre-sentence report compiled by Cheryl Robinson dated 22 May 2014 and remarks on sentence from His Honour Judge Sides QC in the District Court at Parramatta on 28 May 2014 in respect of the co-accused, Christopher Michael Succar, in relation to the armed robbery committed at North Richmond Panthers Sportsman's Club on 7 February 2014 (Sequence 5). 7Also tendered by the Crown were a Form 1 signed by the offender (exhibit B), together with an envelope containing an affidavit from a Detective Inspector of Police, together with material evidencing certain assistance provided by the offender to the police (exhibit C). 8The offender tendered a report from Mr Tim Watson-Munro dated 26 May 2014 (exhibit 1), a bundle of seven testimonials (exhibit 2), an undated letter from the offender addressed to the Court (exhibit 3), together with copies of draft letters addressed to the owner and staff of various premises where the offences were committed (exhibit 4). 9The offender also gave evidence. He told the Court that he was sorry for his involvement in the offences and that he regretted every moment of it. Whilst he was using drugs at the relevant time, he did not blame his involvement on those drugs. When asked whether the use of drugs affected his decision making at the time, he said "Possibly but I highly doubt it". 10The offender gave evidence that he had before the offending, helped his parents with mortgage payments on their home. Part of his motivation arose from his father's inability to make those payments. He now realises that he was of less help to them now. He said he was "disgraced with himself". He understood that the victims of the various offences would have felt very scared and that he had undertaken to assist police in further investigations. 11For the future, the offender had plans to open a restaurant and he planned to spend his time in gaol planning for his future and think about what he needed to do. In respect of a comment made by the author of the presentence report that during an interview he had inappropriately smirked when discussing the offences, he gave evidence that he was nervous at the time and did not intend to do so. He realised the offences were a big mistake, that he had let down his parents and family, and he felt very sorry for the victims. He was not cross-examined.

Circumstances of the Offending 12The first offence in time occurred at 4.10am on 13 December 2013 (Sequence 4). The offender entered a Caltex Service Station at 334 Parramatta Road Homebush West, selected two drinks from the fridge and approached the consul operator when he produced a black coloured handgun. He said to the operator "Give me all the cash and all the smokes, otherwise I will kill you". 13The offender left with 30 packets of cigarettes and $700 in cash. 14The second offence occurred at 8.35pm on 27 December 2013 at the same Caltex Service Station (Sequence 3). On that occasion he selected a drink from the fridge and approached the consul operator and requested two packets of cigarettes. He then produced a black coloured handgun and a taser. He activated the taser and demanded money and left with $800. 15The next offence (Sequence 2) occurred on 29 January 2014 at the 711 service station at 104 Great Western Highway at St Marys. Again, he selected a drink from the fridge and approached the consul operator and requested two packets of cigarettes before producing a taser and black handgun. He said "Give me all the money from both tills" and "Give me or I will shoot you". He left with $500 and two packets of cigarettes. 16The next offence occurred at 3.10pm on 3 February 2014 (Sequence 6). The offender entered the 7/11 service station at 75 Mamre Road St Marys, selected a number of items and then approached the consul operator. He said he had forgotten his wallet and would be back. He returned 10 minutes later and requested two packets of cigarettes and then said "Give me money" and produced a handgun and taser. He left with $700. 17The next offence occurred at 10.46pm on 4 February 2014 (Sequence 1). He entered the 7/11 service station at 222 Forresters Road St Marys, selected a drink from the fridge and approached the consul operator and again asked for two packets of cigarettes. He then produced a black taser which he activated and said to the operator "Give me money". Immediately the victim ran into a back room away from the accused and locked the door. The accused fled the store without any property. For this conduct the offender was charged with attempted robbery. 18The last offence (Sequence 5) occurred at 8.45am on 7 February 2014 when the offender and a co-accused, Christopher Succar gained entry to the North Richmond Sportman's Club by jumping the rear fence to gain access to the loading dock area. At 9.15am the manager of the club unlocked the doorway to an adjacent area, unknowingly allowing both offenders to enter the club. The offender had a taser and the co-accused produced a black coloured pistol. They threatened the manager who was sorting cash within a room containing the safe which was open. They stole $15,000 in cash and two mobile phones belonging to the manager. They escaped by leaving through the same doorway that they had entered. During that escape, a bag was dropped that contained some proceeds of the robbery. They were observed leaving the area in a Ford falcon utility with an aluminium tray parked in a nearby cross street. That vehicle was later located at a rural property situated at Shanes Park, where the offender was arrested. The co-accused, who was his cousin, was arrested inside the house. Various items were seized from the premises which had been used during the various robberies, together with $13,167.30 taken from the North Richmond Sportman's Club, two hand guns and a taser. 19The offender participated in an Electronic Record of Interview where he made admissions in relation to all of the armed robberies. He had purchased the handgun four years previously and during a number of the offences he had "racked" the firearm to ensure that the victim's believed the handgun to be real. He informed the police that he committed the robberies because he was unable to meet the monthly mortgage repayments on his family's home. 20A separate statement of facts was provided in relation to the two break, enter and steal charges on the Form 1. In respect of charge Sequence H 54537346/1, the offender's cousin, Taufic Succar, had obtained a position of driver for a courier business commencing on 19 September 2013. On that day he attended to a number of deliveries with the owner of the business, including collecting 32 Apple I-pad computers from a JB Hi-fi distribution centre and delivering them to Como West Public School. At 3.02am on 20 September 2013 an intruder alarm was activated at the school and the next morning it was discovered that the seven boxes of I-pads were missing. A DNA profile taken from blood on a window through which access was gained to the building, matched the DNA profile of the offender. Call charge records for his mobile phone also established that the offender was in the area at the time. 21On 28 March 2014 the offender was arrested and participated in an electronically recorded interview with the police. During that interview he identified his cousin, Taufic Succar, as the delivery driver and admitted that he was driven to Como by his cousin and helped open the window of the school with a crowbar and assisted by carrying away the boxes containing the computers, "but that he was unaware of the contents". 22The second offence on the Form 1 occurred on 7 February 2014 at 1.01am at Santa Sabina School at Strathfield. Fifteen Apple computers were stolen from a classroom on that occasion. 23On 7 February 2014 the offender was arrested for unrelated offences and a search of his vehicle revealed two of the computers stolen from Santa Sabina School. Call charge records from his mobile phone were obtained and established that the phone was activating a cell tower at Strathfield at around the time of the offence. 24On 10 February 2014 a search warrant executed at the home of the offender's cousin, Taufic Succar, led to police seizing 12 computers stolen from Santa Sabina on 7 February 2014. The offender later provided a statement to police admitting his involvement in the offence. Hence, his charge was amended from receiving stolen property to break, enter and steal.

Submissions on behalf of the Offender 25The offender was 22 years at the time of the offences and recognised the seriousness of the criminal conduct involved. He had made admissions in respect of all of the matters and it was agreed that he was entitled to a 25% discount on sentence. 26The solicitor for the offender agreed with the Crown submissions that the matters fell within the guideline judgment promulgated in R v Henry (1999) 46 NSWLR 346 and further that all of the armed robbery offences in the service stations were aggravated by the fact that the attendants were vulnerable by virtue of their employment (see R v Goundar (2001) 127 A Crim R 331 at [36]). 27In mitigation, it was submitted that the losses were minimal except in relation to the last offence in time, being the offence at the North Richmond Sportman's Club. 28The offender had no prior offences and was, prior to this offending, a man of good character. He should be regarded as a low to medium risk of reoffending and had demonstrated his remorse. He had also provided assistance to the investigating authorities which should be taken into account. He had undertaken to give future assistance by way of evidence at the trial of a co-offender. The assistance was quite detailed. 29It was submitted that he was a young person with potential. He was qualified as a chef and therefore had a job to come out of gaol to. He was also a young man with a good upbringing and no psychological problems. He had suffered anxiety and depression from his incarceration on remand. 30In respect of the sentencing of his co-offender (Sequence 5) by Judge Sides QC, it was submitted that the principles of parity should apply. The co-offender was sentenced to a total term of 5 years imprisonment with a non-parole period of 2 years and 6 months. 31It was also submitted that the offender was entitled to an "Ellis type discount" in respect of the Santa Sabina break, enter and steal, as he had initially been charged with receiving but later volunteered by admission his involvement in the incident which led to a more serious charge being laid - see R v Ellis [2002] NSWCCA 211.

Crown Submissions 32The Crown prepared a thorough and helpful written outline of its submissions. The first submission was that the guideline judgment in R v Henry, supra, is applicable to this case. To fall within the Henry guideline the cases have the following characteristics: (i)Young offender with little or no criminal history. (ii)Weapon like a knife, capable of killing or inflicting serious injury. (iii)Limited degree of planning. (iv)Limited, if any, actual violence but a real threat thereof. (v)Victim in a vulnerable position such as a shopkeeper or taxi driver. (vi)Small amount taken. (vii)Plea of guilty, the significance of which is limited by a strong Crown case. 33With respect to the use of a weapon, it was submitted that the first robbery in time involved a handgun. Thereafter the robberies involved a handgun and a taser. As threatened violence and the presence of an offensive weapon were both elements of the offences to which the offender had pleaded guilty, they should not be considered as aggravating features. However, the nature and extent of the violence and the nature of the weapons used are relevant in an assessment of the objective gravity of the offences. The Court is entitled to look at whether there was a heightened level of threat or a specific use of the weapon, relying on R v Dougan (2006) 160 A Crim R 135. 34In the first armed robbery, the offender threatened to kill the employee if he did not comply with the offender's demands. During the second armed robbery, and two of the other robberies, including the armed robbery at North Richmond Sportman's Club, the offender activated the taser. During the robbery at the service station on the Great Western Highway the offender "racked" the handgun and threatened to shoot the service station employee if he did not comply with his demands. The co-offender in the last armed robbery at the North Richmond Sportman's Club "brandished" the handgun at an employee of the club, however, I have not taken that into account in sentencing here. 35In respect of that last armed robbery, the offender was in the company of a cooffender. The presence of both an offensive weapon and a co-offender increases the objective seriousness of the offence, relying on R v Sok [2000] NSWCCA 121 at [17] per Hulme J. 36The Crown further submitted that there was a degree of planning involved in the commission of each of the offences. In all of the service station armed robberies the offender used the same modus operandi in asking the attendant for cigarettes and then producing a weapon whilst the attendant's back was turned. However, the most sophisticated degree of planning was involved in the last armed robbery at North Richmond. In that robbery the co-accused wore a balaclava, both offenders gained access to the club through an unlocked door and knew that at that time of day the safe would be open. They bought a hood to place over the head of any club employee they encountered in that room. The amount stolen on that occasion, namely $15,000, was a significant amount of money. 37The Crown submitted that the Court can impose a lesser penalty than it would otherwise have imposed on the offender for the assistance that he is undertaking to provide. The Crown conceded that his evidence is potentially very important to the Crown cases in respect of Taufic Soukkar. 38The course of serial criminal conduct that the offender embarked upon took place over the space of 18 weeks, during which he committed five armed robberies and one attempted armed robbery. Given the number of offences committed by the offender, the Crown submitted that a total sentence exceeding the guideline judgment in Henry should be imposed. Further, as the offending conduct of the offender continued, each succeeding offence calls for greater punishment than the earlier offence, to reflect the need for specific deterrence, relying on R v Smith [2007] NSWCCA 100. 39The Crown submitted that a degree of accumulation in respect of the individual sentences imposed is necessary in order to properly address the nature of the offending conduct and the impact that the offender's conduct had on the victims. It was an aggravating feature pursuant to s 21A(2)(l) that in respect of all the armed robberies at service stations the attendants were vulnerable by virtue of their employment. 40In respect of the Form 1 matters, the Crown submitted that proper weight should be given to the Form 1 matters, reflected in an increase to the sentence otherwise appropriate for the armed robbery offences. 41The Crown conceded that youth is a mitigating factor on sentence and that rehabilitation of the offender is a significant factor for the Court to consider. Here, the offender was aged 22 years, and given the adult conduct of the offender and the fact that the offences committed by him were serious and involved violence, the Crown submitted that appropriate weight must also be given to retribution and deterrence. In relation to general deterrence generally, the Crown relied on R v Sharma (2002) 54 NSWLR 300 per Spigelman CJ at [74]. The Crown submitted therefore that considerations of general and specific deterrence loom large in respect of these matters. 42The Crown conceded that the offender had a strong subjective case with good prospects of rehabilitation. However, in respect of the non-parole period to be set, the Crown submitted that the Henry guideline would be appropriate. There should be some parity with respect to the sentence given by Judge Sides QC to the co-offender in respect of the offence that occurred at the North Richmond Sportman's Club. It was the most serious of all of the offences and involved a greater degree of planning.

Submissions in reply 43The solicitor for the offender submitted that this was an appropriate case for an aggregate sentence pursuant to s 53A of the Sentencing Act, given the number of offences involved.

Determination 44It is clear that the present offending falls within the guideline judgment in R v Henry, and has all of the relevant characteristics as set out above. The offender was a young man of 22 years with no criminal history. Whilst he was abusing drugs at the time of the offending, he does not blame his conduct on the consumption of those drugs. He has expressed both remorse for his actions and empathy for the victims of the crimes he committed. His motivation seems to have been a misplaced desire to assist his parents in the payment of their mortgage facility. 45However, the objective seriousness of the offending must be assessed without regard to those subjective factors. 46The first armed robbery at Caltex Homebush West (Sequence 4) involved the use of a handgun. The second armed robbery at that same service station (Sequence 3) involved the use of a handgun and a taser, as did the armed robberies at the Great Western Highway, Mamre Road and the attempted robbery at Forresters Road St Marys. The armed robbery at North Richmond (Sequence 5), which was carried out in company with Christopher Succar, also involved the offender using a handgun and taser. I note that threatened violence in the presence of an offensive weapon are both elements of the offences to which the offender has pleaded guilty. Those matters should therefore not be considered as aggravating features, however, the nature and extent of the violence and the nature of the weapons used are relevant to an assessment of the objective seriousness of the offending. In assessing that seriousness, the court is entitled to determine whether there was a heightened level of threat or a specific use of the weapon involved - see Dougan v R (2006) 160 A Crim R 135. 47Here, the handgun involved was an air gun capable of propelling plastic projectiles. However, that was not known to the victims, and the offender's conduct of "racking" the weapon so as to give the appearance that it was ready to fire, heightened the level of threat involved. The taser was in working order and capable of administering an electric shock. It was activated and also would have heightened the level of threat involved. 48In respect of the offence in Sequence 5, namely the robbery at North Richmond, the use by the co-offender of the handgun being "brandished" at the manager of the club, (which I have not taken into account) and the taser being activated, together with the use of a weapon by the co-offender, increases the objective seriousness of that offence. The fact that the offender was in the company of the cooffender in respect of that offence also increases its objective seriousness - see R v Sok supra, at [17]. 49I accept the Crown's submission that the armed robbery at North Richmond had the most sophisticated degree of planning involved. The offender and his co-offender clearly planned to gain access to the club in the morning when it was first opened. The co-offender wore a balaclava and they took a hood to place over the head of any club employee they encountered. 50I further find that all of the armed robberies were aggravated by the fact that the attendants at the service stations, and the manager of the North Richmond Sportman's Club were vulnerable by virtue of their employment - see R v Goundar, supra at [36]. 51It is clear therefore that the offending conduct of the offender had a high degree of moral culpability and the objective seriousness of the offending in respect of each charge was high. Further, that offending was aggravated by the aggravating features set out above. 52In the sentencing process, however, I must also have regard to the relatively young age of the offender, namely, 22 years at the time of offending, and the fact that he was previously of good character, although the importance of that diminishes in respect of these charges. He was a qualified chef and has good employment prospects upon his release from custody. I accept that he will use his time in custody to plan for his future and that with rehabilitation he will present a very low risk of reoffending upon his return to the community. 53As outlined above, it is agreed that the offender is entitled to a 25% discount in respect of his plea of guilty to all charges. In addition to that, he has expressed genuine remorse for his actions and empathy for the victims of his criminal conduct, and he is entitled to further leniency in respect of that. 54Pursuant to s 23 of the Sentencing Act a court may impose a lesser penalty that it would otherwise impose on an offender where the offender has assisted, or undertaken to assist law enforcement authorities in their investigation of the offence or other offences. In this case the offender has given two statements to the police and has given an undertaking to the court to give further assistance by way of giving evidence against other offenders. I am therefore going to further reduce any penalties by 10% on the basis of his assistance and undertaking to give further assistance. 55The solicitor for the offender submitted that a mitigating feature was the minimum losses of the various businesses which were subject to the armed robberies. This may be taken into account pursuant to s 21A(3)(a). It does not apply to the armed robbery of the North Richmond Sportsman's Club, however, I note that most of the money stolen as a result of that offence was recovered. 56The authorities make it quite clear that in respect of offences pursuant to s 97(2), both general and specific deterrence are important in the sentencing process. Notwithstanding that the offender has expressed remorse for his offending and has good prospects of rehabilitation with a low risk of recidivism, the prevalence of armed robberies of this character committed by young persons has been identified as a matter leading to general deterrence being given significant weight in the process of sentencing, notwithstanding subjective matters such as the young age of the offender - see R v Sharma, supra at [74].

Sentence 57Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "(a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 58It is clear from the guideline judgment in R v Henry, supra, and the offender accepts, that no penalty other than full time custodial sentence is appropriate here (s 5 of the Sentencing Act). 59Notwithstanding the subjective features of the offending set out above, it is clear that the aggravating features referred to above and the need for general deterrence, together with the number and seriousness of offences involved, mandate a lengthy period of imprisonment to meet the objects of sentencing set out in s 3A above. 60There is also the need for some parity in respect of sentencing in respect of Sequence 5. In respect of that offence, the co-offender, Christopher Succar, was sentenced by Judge Sides QC on 28 May 2014. His Honour found special circumstances pursuant to s 44(2) and fixed a non-parole period of two and half years and a total term of five years to commence on 7 February 2014. The Court ordered that Mr Succar's parole eligibility date was 6 August 2016. In achieving parity, the Court must have regard to all of the circumstances of the offending and the co-offender's subjective features. Each case is to be dealt with on its own facts. 61There are a number of distinguishing features in respect of the cooffender's subjective features. He had a number of medical conditions, poor educational background, limited employment opportunities and a significant criminal history consisting mainly of traffic offences, but major traffic offences which the Court held deprived him of the benefit of prior good character. The Court held that the offending was a serious example of the offence under s 97 and I agree with that. 62In sentencing the co-offender, Judge Sides QC referred to a submission made on his behalf that it was the offender here who had persuaded the co-offender to join him in committing the offence at North Richmond. However, there was no evidence about that and the Court was unable to determine who instigated the offence. Judge Sides QC therefore did not accept that the co-offender only participated in the offence because of the pressure from the offender here. No submission was made to this Court in relation to that aspect of the matter, and I have disregarded it as being relevant to sentencing the offender. 63I have had regard that the maximum penalty for each offence pursuant to s 97(2) is 25 years imprisonment. This is a guide post to be taken into account in considering all of the circumstances of the offending. I am also mindful of the principles of parity, proportionality and avoidance of double punishment referred to in Pearce v The Queen (1998) 194 CLR 610 at [45]. 64There is no general rule as to whether sentences should be served concurrently or cumulatively, and I acknowledge that the issue is one of totality; see Cahadi v The Queen (2007) 168 A Crim R 41. 65I further find that there are special circumstances here pursuant to s 44(2) of the Sentencing Act so that the ratio of the non-parole period to any head sentence may be varied, given the offender's young age, his remorse, his intentions to return to the community with the benefit of rehabilitation and to become a constructive member of society. 66I have also taken into account the two offences of break, enter and steal pursuant to s 112(1) of the Crimes Act that the offender has admitted to and asked the Court to take into account on the Form 1 (exhibit B). I have certified that I have taken those matters into account on the Form 1. 67Of concern here is the number of offences. The Crown has submitted, and I accept, that as the offending of the offender continued, each succeeding offence calls for greater punishment than the earlier offence, to reflect the need for specific deterrence, relying on R v Smith, supra. At [66], Simpson J, (with whom Howie and Hyslop JJ agreed) said as follows: "66 The guideline judgment promulgated in Henry ... is of four to five years head sentence, with an appropriate minimum term (depending, inter alia, upon whether or not special circumstances are found); as I have mentioned above, it incorporates some discount for a plea of guilty, although a late plea. It is also applicable where the offender is charged with a single offence. Multiplicity of offences plainly calls for a total sentence well in excess of the four to five years so promulgated. While it may be correct that each individual sentence could fall appropriately within the four to five year range, it must also be recognised that, as the offending continues, each succeeding offence calls for a greater punishment than the earlier, if only by way of personal deterrence. And to order that all sentences be served concurrently has the effect of neutralising, or at least minimising, the sentences applicable to the later offence. To sentence in that way does nothing to discourage sequential offending; indeed, it gives the appearance that once an offence has been committed, the offender has little or nothing to lose by repetition." 68In that case, the sentencing judge imposed, in respect of one offence of assault with intent to rob whilst in company, and five offences of robbery in company, pursuant to s 97(1) of the Crimes Act, together with four offences on a Form 1, a total term of imprisonment comprising a non-parole period of 2 years and 1 month and a balance of term of 1 year and 8 months. His Honour had ordered concurrent terms of imprisonment in respect of each offence. The Court of Appeal upheld the Crown Appeal on the basis of manifest inadequacy, quashed the sentence and imposed an overall non-parole period of 3 years and 9 months and an overall head sentence of 5 and a half years. Her Honour went on to state at [68] that that sentence was "barely adequate to recognise the criminality involved or the affront to the victims", however, it acknowledged well known sentencing principles applicable to successful Crown appeals and also took into account the respondent's youth and that the offences were committed over a short space of time. 69Section 53 and s 53A of the Sentencing Act provide as follows: "S 53 Multiple sentences of imprisonment (1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence. (2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section." 70I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v The Queen (1988) 166 CLR 59 at 63. 71The offences occurred over a short period of time and, with the exception of Sequence 5, involved a similar modus operandi by the offender. Having regard to the principles of sentencing referred to above and in particular those of totality and proportionality, I propose to aggregate the sentences to be imposed, having first assessed the indicative sentences to be imposed in respect of each Count. It is clear that aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences - see R v Rae [2013] NSWCCA 9. 72The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process. 73The indicative sentences that I would have imposed are as follows: Sequence 1 - Total term of 3 years with a non-parole period of 1 year and 6 months. Sequence 2 -Total term of 3 years and 6 months with a non-parole period of 2 years Sequence 3 - Total term of 3 years and 6 months with a non-parole period of 2 years Sequence 4 - Total term of 3 years and 6 months with a non-parole period of 2 years Sequence 5 - Total term of 4 years with a non-parole period of 2 years and 6 months Sequence 6 - Total term of 3 years and 6 months with a non-parole period of 2 years 74I have also had regard to the fact that in respect of each sequence of offences, the offences arise out of similar criminal conduct over a relatively short period of time and would otherwise warrant some partial concurrency in sentences.

Sentence 75I order as follows: (1)I convict you of each of the offences set out above and pursuant to s 53A I impose an aggregate term of imprisonment. (2)I fix an aggregate non-parole period of 4 years and a total aggregate term of imprisonment of 7 years. (3)I therefore sentence you to a non-parole period of 4 years commencing on 7 February 2014 and terminating on 6 February 2018. The balance of sentence of 3 years will commence on 7 February 2018 and terminate on 6 February 2021. (4)Your parole eligibility date will be 6 February 2018. 76You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. 77I further direct that the envelope containing exhibit C be sealed and remain on the Court file. I direct that it is not to be opened unless authorised by myself or any other Judge of this Court. This direction to be placed on the envelope. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2014

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