R v SILVANO

• 23 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J Tuesday, 15 August 2006

2005/1040 R v Oliver SILVANO REMARKS ON SENTENCE 1 On 8 May 2006 the Prisoner was arraigned on 3 charges:- (i) that on 28 April 2004 he assaulted David Horan with intent to rob him, whilst armed with a dangerous weapon, viz a double barrel shotgun; (ii) that on 28 April 2004 he murdered Tracey Lee Oliver; and (iii) that on 28 April 2004 he maliciously shot at David Horan with intent to do grievous bodily harm to him. 2 To each of these offences he pleaded not guilty. On 19 May 2006 a jury found him guilty of all 3 charges and it falls on me to sentence the Prisoner. In the course of that exercise, I must determine the facts relevant to the sentences to be imposed including those relevant to the Prisoner's criminality and his subjective circumstances. In that process I am bound by the findings necessarily implicit in the jury's verdict considered in light of the issues fought at trial but my task is not otherwise to determine what the jury decided - R v Martin (1981) 2 NSWLR 640 at 642; Sandord (1994) 72 A Crim R 160 at 194. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities - see Pilley (1991) 56 A Crim R 202 at 203-4; R v Olbrich (1999) 199 CLR 270. The Offences 3 Apart from forensic evidence obtained at the scene where Tracey Oliver's body was found and of some surrounding events recorded on Sydney City Council CCTV cameras, the principal witness as to the commission of the offences was Mr Horin whose evidence generally I accept. Mr Horin's account of events was corroborated in substantial measure by a statement of agreed facts which became Exhibit F in the Prisoner's trial, a "walk-around" or demonstration in which the Prisoner and police participated and which was recorded on video, by the Prisoner in the third and fourth interviews he had with police and by evidence the Prisoner gave during his trial. That is not to suggest that all the Prisoner had to say argued for his guilt. In particular in his first and second interviews and in his evidence he gave an account radically different in material respects. However, I am satisfied that the account given in the third and fourth interviews is much to be preferred. I accept also a deal of what is recorded on the walk-around video. 4 The circumstances of the offences and the events leading up to them were as follows. On 27 April 2004 the prisoner and the deceased left the Nowra region in the deceased's car and drove to Sydney where they checked into a room at the Country Comfort Hotel in George St. At some stage in the evening the two left the hotel and went shopping, before returning to the hotel at around 10 o'clock that night. 5 I am satisfied that upon returning to the hotel the accused and the deceased each had a number of alcoholic drinks, and that the deceased consumed a quantity of amphetamine, or speed. The Prisoner may also have partaken of this drug but there is such a degree of inconsistency in what he said on a variety of topics that I am unable to make any finding about this. At some time around midnight the two again left the hotel, this time the Prisoner being in possession of a back-pack which contained, inter alia, a loaded sawn-off double barrel shotgun and a walkie-talkie. Both the deceased and the Prisoner left their mobile phones and identification at the hotel, taking with them the back-pack, money and in the case of the deceased, a walkie-talkie matching the one in the back-pack. The prisoner and the deceased were together for a period of time and then separated. 6 At around 2.13am on 28 April 2004 Mr Horin's motor vehicle was captured on CCTV on George Street. Mr Horin is pictured at 2.17am at or adjacent to a kebab shop near the corner of George and Goulburn streets. At about that time he was accosted by the deceased asking for help. Mr Horin said that he wanted to purchase a kebab first and did so. He was not certain of how events played out, but at about this time he also re-parked his car. The deceased again sought help, probably saying that she did not feel well. The deceased then led Mr Horin into the CKC Car Park which is located behind shops fronting onto George Street, south of Goulburn Street, and which can be accessed via a walkway leading off George Street. Police later recovered a kebab at the car park, near the end of the walkway, it's wrapper bearing the fingerprints of both Mr Horin and the deceased. 7 Upon reaching the car park, the deceased headed towards a small building constituting a pay station, since demolished, which was adjacent to the northern wall of the enclosure. Again "she said she was sick or going to be sick or something of this nature…(and) put her hand up near the wall like she - like a person would, having a bilious attack or vomiting". She leaned against the western wall of the pay station, facing the building. Mr Horin said that he wanted to go and get her some water but that "She was - appeared to want me to pay attention to her, in this direction, so my back was to the rear of the laneway". 8 Mr Horin recalled that as he turned to fetch water "some individual who I don't know - to me I had never met, came running round from the edge of the laneway - the end going into the car park waving something - something, I don't know, I don't understand guns but whatever it was, anyway waving and - like Rambo guy, like a tough Rambo man or something". At this point in his evidence Mr Horin became extremely agitated. However the tenor of his testimony was that the man yelled expletives at him and told him to "Get down - bend down - I'm going to - something like blow your head off". The Crown relied as constituting the offence the subject of the first count, on the evidence of the Prisoner pointing the gun at Mr Horin and telling him to get down, contending that at that time the Prisoner's intention was to commit armed robbery. 9 Mr Horin did not comply with the Prisoner's demands and the latter, now at very close quarters, shoved the shotgun towards Mr Horin's stomach. Mr Horin pushed the shotgun away from his person and in his words the "gun went off". The discharge struck the deceased causing a major wound over the left breast, and minor abrasion to the left arm. The chest injury resulted in a severance of the aorta and perforation of the heart, and lead to Ms Oliver's death. 10 Mr Horin said that he then ran off in the direction of the walkway and that as he did "The gun went off again behind my head". In fact one shotgun pellet lodged in Mr Horin's shoulder. Forensic examination showed that a number of others had impacted on and near a garage door further away from the pay station than where Mr Horin would logically have been while running towards the walkway. 11 There was no significant difference between Mr Horin and the Prisoner's account in his third and fourth interviews as to the order of events and where people were at particular times. In the demonstration or walk-around video recording, the Prisoner is seen demonstrating where he and Mr Horin were at the time of the second shot and where he pointed the shotgun. From that demonstration it is easy to see how a pellet may have lodged in Mr Horin while he was running towards the passageway and how most pellets hit the garage door. 12 In the third interview, which occurred on 30 April 2004 at Silverwater Metropolitan Remand Centre, and at the Prisoner's request, there was the following exchange:- "Basically, we went to take this guy's wallet off him, OK, I got there after Traceys taken him to the alleyway, OK and I got close to him, I did ask him to get down, like he says, and the gun ignite accidentally, like he says. I got really angry after that because my girlfriend dropped on the ground and that's why I turned around and tried to shoot him and that is what happened. I don't think I would've reacted, I don't think I would've done anything like that if I wasn't under the influence of that drug, I never had it before, that was the first time. When you say that drug --- The speed

OK and when did you take --- I've taken it that night before we went out. … OK Can you tell me why you and Tracey came to Sydney? We came to Sydney to basically to have a good time, do a bit of shopping and she reckons she could come up with a good plan to get some money. … Can you tell me what the plan was? To get someone as they walk out of the bar, we take their card, the money off them. And is that what happened? Yeah. … What can you tell me about the gun? The gun, I got that gun on my way down to Victoria, I picked up a hitchhiker and I bought it off him for $70. … Can you tell me why you bought it? I don't know. Seemed like a good deal at the time, don't know, that's all I can say, mate, I just bought it. Never had any plans of any of this. … I don't know where the ammunition come from, I didn't have to pay for it, my girlfriend got hold of it for us, I don't know where she got that from.

Right. Why did you take the gun out with you on that night? For the purpose of the robbery.

How were you going to use the gun? Just as a threaten. (sic) OK To be honest I didn't even think it was loaded. Did you load it --- I thought we left the shells at the motel. … I walked towards him and I told him to get down, he didn't get down, I came really close and he grabbed the gun I think or moved it out of the way, I don't know what happened then, and the gun went off on Tracey and that was it. He ran off, I saw my girlfriend dropped on the ground and I was driven by this and I just turned around and tried to get at him. When you say you tried to get at him, what do you mean? I tried to shoot him. Right. Why? Because my girlfriend was on the ground, I just got really angry. And what did you think would happen as a result shooting him? I don't know, I don't know what I was thinking. I wasn't myself. I've never taken this speed. Are you saying that, you shot at this male as revenge for what happened to your girlfriend? Yeah, I guess so. All right. And what did you think was going to be the result of ---? I didn't think that far. Right. I never planned for that man to get shot, I never planned for my girlfriend to get shot, I never planned for any of this to happen, it just went the wrong way, the very wrong way, it was wrong as it was, but it just went really wrong." 13 In the fourth interview the Prisoner gave a similar account. In my judgment the Prisoner was, in the course of those interviews, genuinely attempting to unburden himself and inspired to a substantial degree by guilt and remorse at what had occurred. 14 In light of the jury's verdicts I need give little attention to the Prisoner's other versions. When first interviewed on 28 April 2004 he had asserted that whilst looking for somewhere to go to the toilet the deceased had disappeared. He heard her making noises of distress and located her in the car park being accosted by a man with a gun. He, the Prisoner, attempted to rescue Tracy, and whilst wrestling with the assailant the gun went off, inflicting the fatal wound. The assailant then ran towards the walkway, leaving the shotgun in the Prisoner's hands. The Prisoner said he shot at the assailant and then attended to the dying Tracy. 15 In a second record of interview on the same day the Prisoner had it put to him that it was in fact he who had been in possession of the shotgun, that ammunition for such a weapon had been located by police in the hotel room he and the deceased had been using and that the other man in the car park had implicated the Prisoner as the aggressor. The Prisoner elected not to change his story at that time. 16 In evidence the Prisoner resiled from the explanation that he and the deceased were engaged in an attempt to commit an armed robbery, and told the jury that before leaving the hotel at around midnight the deceased "couldn't find the amphetamine and she became agitated about it and she was in extreme need of it…She said that she could get it around the area of Scruffy Murphy's…we ended up going to get it". As to why he took the shotgun the Prisoner claimed "I felt we were going to put ourselves in a dangerous situation by going out there on the street purchasing amphetamines from a stranger and I was slightly paranoid about the city itself". The Prisoner maintained it was his belief that the deceased took Mr Horin to the car park for the purposes of purchasing amphetamine from him. 17 As to what occurred between the deceased and Mr Horin in the car park, the Prisoner agreed that when he entered the enclosure they were over by the pay station wall, and that the deceased was facing the wall and somewhat hunched over. The Prisoner said "He [Horin] was on to her from behind. She was bent over, his hands were around her waist and it looked like he was trying to drag her to the ground", and that "She was trying to break loose". This he claims inspired him to put his back-pack down and retrieve the shotgun from it before proceeding to Tracy's rescue. 18 He explained the second shot as a warning shot, not aimed at Mr Horin, but for fear of Mr Horin, saying "I pointed at his direction and as he continued to run I steer it to the left and discharged to it" (sic). It is implicit in the jury's verdict on count three that this explanation was not accepted. 19 Mr Horin having decamped, the deceased threw the shotgun into a narrow gap between the northern most wall of the car park enclosure and the pay station. He then went to the kebab shop from which Mr Horin had made the earlier purchase and informed a person working there that his girlfriend had been shot. Returning to the car park the Prisoner moved the shotgun this time secreting it behind some corrugated iron near another wall. Soon thereafter police arrived. 20 I am satisfied that the first offence occurred as an incident of a plan between the Prisoner and the Deceased to rob someone - as it happened Mr Horin. The second offence was occasioned as a result of the implementation of that plan and the use of a loaded firearm in the course of it. I should also record that I am satisfied that the discharge of the firearm killing the deceased was unintentional even though its presence and its condition at the scene was not. 21 So far as the third offence is concerned, while I accept that the Prisoner shot at Mr Horin with intent to do him grievous bodily harm and that the Prisoner, in his third interview, to some degree acquiesced in the proposition that he had fired in revenge, I doubt that at the time his mind was operating with that degree of clarity. It seems to me just as likely that his actions were the result of shock at what had occurred - a shot, and the injury to, and collapse of his girl-friend, none of which he was expecting, and an instinctive reaction to having a gun in his hand and the other side of the confrontation in the form of Mr Horin, running away. I do not seek to ignore the jury's verdict or the fact that the Prisoner brought about what occurred but I do think that the third offence was to a large degree the result of circumstances as distinct from a planned or premeditated offence. I am not persuaded that the additional criminality involved in this offence extended over more than about a second or two. 22 Before I turn to the Prisoner's subjective circumstances, there are a couple of other matters to which I should refer. I accept, as the Prisoner said in his third interview, that the shotgun was purchased by the Prisoner during the course of driving to Melbourne to visit relatives on or about 29 March 2004. I am unable to find any explanation for why this occurred and it may be that it was no more than a response to an offer made to him. I feel equally unable to come to any conclusion as to who purchased the ammunition or when this occurred. In this latter respect I am much influenced by the extent of the inconsistencies in the Prisoner's versions of events.

Subjective Circumstances 23 The Prisoner immigrated to this country from Columbia with his mother in 1994, when he was about 17 years of age. They took up residence in Nowra in New South Wales. Shortly thereafter the Prisoner met, and became involved in a relationship with the deceased, that relationship producing a daughter in 1996.

24 Four months after the birth of their daughter Natalia, the Prisoner and Ms Oliver separated. From that time until his arrest in respect of these matters the Prisoner raised Natalia on his own, Ms Oliver having visited on only a few occasions in the first months following the separation, and then not again until April 2004. A rekindling of the former relationship then began, this apparently inspiring the trip to Sydney which resulted in the events the subject of these proceedings. 25 At that time the Prisoner was employed on a part time, cash in hand basis as a photographer in Nowra. He described the income he derived from this as "anything from $80 to, in a good week, to $300". His income was supplemented by what the Prisoner described as "a sole parent pension and child maintenance and all that" from Centrelink in the order of $500 a fortnight. He said he also worked at Thredbo as a barman during the winter season. 26 The Centrelink money was used to pay rent or bills, as well as a weekly $100 payment to Natalia's bank account, from which $144 was paid monthly to a scholarship fund for Natalia's education. The Prisoner gave evidence that this usually left him with $90 odd a week for shopping. Documents in evidence confirm to my satisfaction that the Prisoner adopted a very, indeed an unusually, caring and disciplined approach to his daughter's future well being. 27 An antecedents report records that the Prisoner was born on 24 June 1977. His first recorded conviction was for driving a vehicle with a licence not appropriate for that vehicle class and mid range PCA in 1998. For those offences he was dealt with by way of fine, and was disqualified from driving for eight months. He was convicted of driving whilst disqualified in 1999, subjected to a community service order, and disqualified from driving for a further twelve months. Also in 1999 he was convicted of having goods in custody reasonably suspected of being stolen, for which he was fined. In 2001 he was convicted of common assault and of possessing a knife in public. Again he was dealt with by way of fine, and latter in that year of contravening an apprehended domestic violence order. For this offence he was placed on a bond to be of good behaviour for a period of twelve months. Prior to the events with which I am presently concerned the Prisoner had not been incarcerated. 28 Having regard to the extent of the differences between all of these offences and those with which I am concerned, I regard them as not providing any evidence adverse to the Prisoner. Indeed, in what the report does not say, it indicates that the offences for which the Prisoner falls to be sentenced are completely out of character. The report tends also to suggest that the Prisoner has not had any drug addiction and to make inexplicable the purchase of the shotgun (though I do not forget what I have said about the first of these matters). 29 On the other hand, a psychological report tendered on his behalf indicates that he has had an ongoing problems with drug taking, and appreciable difficulties in his early years. 30 A lengthy pre-sentence report is not entirely favourable to the Prisoner on the issue of drug taking and a number of other matters. Albeit on a hearsay basis, the report suggests that the Prisoner may have been easily influenced by the deceased and certainly this is a possible contributing cause in what seems to have been the Prisoner's first venture into serious crime. It would seem that since the Prisoner has been incarcerated he has made real and substantial efforts to improve himself both by way of courses and seeking psychological or other counselling. 31 I should also acknowledge that I accept that the Prisoner has suffered grief and a degree of "self punishment" as a result of causing the death of his partner and these are matters that I may take into account in determining to impose a lesser sentence than would otherwise be required. I regard such matters as falling within the last paragraph of Section 21A(1) of the Crimes (Sentencing Procedure) Act and thus ones which I am entitled to take into account under Section 54B(3). 32 There are some other matters to which I shall refer. On 13 January 2005 the Prisoner was anally raped while in the shower, soap being rubbed into his eyes, no doubt to help in the perpetrator's anonymity. The Prisoner did not report this for 9 days and there is no corroborative evidence. Nevertheless I accept this incident occurred. 33 On 15 August 2005 the Prisoner was punched by another inmate and swelling to his face and bleeding from his eye was noticed by others. According to the Prisoner, whose hearsay statements in this respect also I accept, he has lost substantial vision out of this eye. 34 The Prisoner has been housed in a Special Management Area Placement for a substantial period. For reasons which I need not detail but which are the subject of evidence before me, it is likely that in the immediate future he will be given a higher protected custody classification. 35 Insofar as a prisoner may be subjected to more than normal restrictions in prison, a court may take this into account on sentencing. However otherwise, the fact that a prisoner may have suffered or may suffer injury or serious injury at the hands of other inmates is not, as I understand it, something of which a sentencing judge may take account. Accordingly, I do not propose to make any allowance for the injuries which the Prisoner has suffered but I do propose to reduce the sentence I would otherwise have imposed on account of the fact of past and probably future protective custody. 36 What allowance should be made in that regard is a matter of guess-work. Some Corrective Services institutions are adapted so as to provide persons so classified with substantial access to benefits commonly available. Others are not. Court of Criminal Appeal experience shows that the prison authorities endeavour to make appropriate arrangements but experience also shows that there are nevertheless significant restrictions in many prisons. There has been put before me a document from the Corrective Services Department which details many of these matters but again experience indicates that there are limitations both as to the time prisoners in protective may be out of their cells and as to the opportunities for courses or employment. 37 There is a deal of authority as to the undesirability of the court specifying allowances for specific aspects taken into account on sentencing. However, in the circumstances of this case and in particular because of the nature and incidents of the topic with which I am presently dealing, and so that both the Crown and the Prisoner are aware of my allowance in this regard, and may challenge it if so advised, I believe I should do so. On account of the matters to which I have just referred I propose to reduce the sentence I would otherwise have imposed by 3 years.

Statutory Provisions and Sentencing Principles 38 The principal statutory provisions to which I must have regard are the following. Section 97(2) of the Crimes Act provides the maximum sentence for assault with intent to rob, whilst armed with a dangerous weapon is imprisonment for 25 years. Section19A of the Act provides that the maximum sentence for murder is imprisonment for life. Section 33 of the Crimes Act provides that the maximum penalty for shooting at someone with intent to do grievous bodily harm is 25 years imprisonment. 39 Section 21 of the Crimes (Sentencing Procedure) Act provides that the Court may impose a lesser sentence than that prescribed, and in the case of all offences, general principle lays down that the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed - Ibbs v R (1987) 163 CLR 447; Veen v R (No. 2) (1988) 164 CLR 465 at 478. I must therefore address where, on the imprecise scale of criminality of offences falling within each category, the Prisoner's offences lie. To the lay person this may seem strange, particularly in the case of murder where, by definition, the offence has resulted in a death but experience over many years has demonstrated to the courts and to Parliament that there are other matters to be also taken into account. 40 Section s3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a Court may impose a sentence. No counsel suggested that this was an appropriate occasion to compare what is there set out with what has been said by judges over the years on the topic but clearly the purposes referred to in R v Veen (No 2) v R (1987-1988) 164 CLR 465 and Alexander (1994) 78 A Crim R 141 are encompassed by the section. 41 Sections 54A et seq. of the Crimes (Sentencing Procedure) Act provide, subject to the qualifications in those sections, a standard non-parole period of 20 years for the offence of murder in the circumstances here and of 7 years for the offence of shooting with intent to do grievous bodily harm. There is no standard non-parole period for the Prisoner's first offence. 42 Section 21A of the Crimes (Sentencing Procedure) Act provides that, subject to some qualifications contained in the section, in determining an appropriate sentence the Court is to take into account, in addition to any other objective or subjective factor that affects the relative seriousness of an offence, such of two defined lists of matters, referred to as aggravating and mitigating, as are relevant. In light of the qualifications, and the inherent elements of the offences here, the only aggravating features which I regard as of possible significance here are:- (a) The first offence was committed in company; (b) The injury, emotional harm, loss or damage caused by the offence was substantial; (c) The first offence involved a series of criminal acts; and (d) All offences were part of a planned or organised criminal activity (although it was only the first offence that was itself planned). 43 In the circumstances, I regard the first of these matters as relevant to only the first offence but it certainly aggravates that offence. I should say something more about the second matter. 44 There was physical injury in the lodging of a pellet in Mr Horin's shoulder. However at the time of trial it had not been removed and this leads me to the view that it has not caused him significant discomfort. However if he has an operation to remove the pellet, the operation and its consequences may well do so. Of possibly more significance is the topic of emotional harm. The Crown submitted that in the case of Mr Horin this was substantial by reason of him being confronted with a firearm and knowing that as a consequence of defending himself, a person lost her life and he had to flee for his own. 45 In this regard I should make 4 points. Firstly, while I would record that Mr Horin was, by far, the most nervous witness I have ever come across, the evidence does not permit me to say to what extent this was the result of the Prisoner's behaviour as distinct from Mr Horin's prior nature. The second are the terms of Mr Horin's Victim Impact Statement. While unusual, they are if I may say so, a credit to him. "I find this opportunity correct at least from the point of view that alas, I can say, to the court that the real shock to me is not my mental and/or physical disability, no, my real problem and fear is what shall happen to the child of this marriage. This matter sadly will always haunt me. Therefore whether or no, (sic) this young man shall be able to redeem himself and hopefully in doing so may in some way, Your Honour bring a positive outcome to this tragic matter and therefore hopefully become a positive influence in this child's life. The above matter shall always be a burden to my soul although it will be less if this child is saved." 46 The third is that in accordance with R v Previtera (1997) 94 A Crim R 76 there are difficulties in placing weight on the impact of the deceased's death and fourthly, it is difficult, if not impossible to determine what was the impact on Mr Horin of one offence rather than another. In these circumstances, it seems to me that I cannot find that the impact on Mr Horin of the offences other than murder were substantial. There was undoubtedly some. 47 Lest it be thought that I have forgotten the matter, I should record that the death of Tracey Oliver is not an aggravating factor within s21A, because, while obviously very relevant, is an element of the offence of murder. 48 The Prisoner's previous convictions are such that I do not regard them as aggravating factors in this case. (Of course, even if I held another view, s21A(4) and numerous authorities would limit the way those previous convictions could be used.) Nor do I regard the offences as ones committed without regard for public safety. I do not understand the paragraph of s21(2) referring to this topic as directed to the situation of victims generally even though those victims may be subjected to danger. 49 The only mitigating factors I regard as of significance are:- (d) The Prisoner does not have a record of previous convictions that I regard as significant; (f) The Prisoner is unlikely to re-offend; (g) The Prisoner had good prospects of rehabilitation; (h) The Prisoner has shown remorse; and (i) There was some degree of pre-trial disclosure in the Statement of Agreed Facts. 50 Having regard to the Prisoner's previous convictions, and the distinct possibility that he might have been an amphetamine user, I am not persuaded that he was of good character. I take that view notwithstanding a number of references adduced on the Prisoner's behalf speak of him in complimentary terms. While I accept that he has some good qualities, factors which contribute to my view that he has good prospects of rehabilitation and is unlikely to re-offend, I do not regard him as of good character. 51 I should say something more on the topic of remorse. I am satisfied that he is genuinely remorseful and, as I have said, that this was a major inspiration for what he said in his third and fourth interviews with police. I acknowledge that his plea of not guilty and his evidence argues to the contrary but it does not persuade me that the conclusion should be other than that at which I have arrived. I have no doubt that a major inspiration for the remorse lies in the fact that the victim was the woman with whom the Prisoner wanted to have a domestic relationship and the mother of his daughter - a fact that tends to strengthen rather than diminish his contrition. 52 The Prisoner is also entitled to some credit for the Statement of Agreed Facts which was tendered during the course of the trial. Although a deal of the information contained therein was also to be found in the record of one or other of the Prisoner's interviews, I accept that the Statement did assist and shorten to some extent the running of the trial. 53 Before I return specifically to the Prisoner's offences, I should say more about the purposes of sentencing, particularly as applicable to this case. A good guide is provided by the remarks of Hunt CJ at CL in Alexander to which I have referred. At p142, his Honour said:-. "Except in well defined circumstances such as youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in prevent the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that just has been done." 54 The special dangers that weapons cause in the community have led, not only to legislation designed to minimise their possession but to the courts emphasising the need for strongly deterrent sentences on those who use them illegally. The nature of the offences adds weight to the importance of general deterrence in this case. No one sitting where I do can but be conscious of the frequency with which guns and other weapons are carried, used offensively in the course of robberies, and do substantial damage. And the entering into robberies, the carrying and the use of the weapons are nearly all conscious deliberate acts to be, and capable of being, discouraged. 55 Before I leave this part of my reasons I should acknowledge that the Crown tendered and I have read victim impact statements of Jean Oliver, Tracey Oliver's mother and 2 of Tracey's sisters, Michelle and Kristy Oliver. Such statements bring home with clarity the sad, and sometimes devastating, consequences of murder. Conclusions 56 In what I may say were very helpful submissions, the Crown drew attention to the guideline judgment in R v Henry (1999) 46 NSWLR 346 where the Court of Criminal Appeal indicated as a guide that in the circumstances there set out an armed robbery could be expected to attract a sentence within the range of 4 to 5 years. The Crown submitted that the case here was worse because the Prisoner had not pleaded guilty and is thus not entitled to the discount such a plea generally attracts and which was an element in the Court's selection of 4 to 5 years in R v Henry. 57 That proposition is obviously correct although there are other differences also. Included is the fact that, although placed in a vulnerable position once lured into the car park, Mr Horin was not in the position of vulnerability of which R v Henry speaks. A second is that I would not regard the Prisoner, aged almost 27 at the time of the offence as a "young offender" within that case. A third is that the offence was committed in company. A fourth is that the weapon here, a loaded sawn-off shotgun, is to my mind significantly more dangerous than a knife or the like contemplated in that case. When regard is had to that matter, and despite the other differences, I regard the Prisoner's offence as significantly worse that that considered in R v Henry and him as not entitled to the discount that was reflected in the guideline sentence. The offence considered in R v Henry was also under Section 97(1) of the Crimes Act rather than Section 97(2) as the offence with which the Prisoner was charged and which carries a higher penalty. 58 On the other hand, one of the factors that led to the particular guideline in R v Henry was the danger caused by the presence of a weapon of the nature contemplated. Where that danger has in fact culminated in injury the subject of a separate charge, it would be wrong not to recognise that fact by making the sentences reflecting the creation of the danger and its culmination to some degree concurrent. Otherwise there will be an element of double punishment. This consideration is in addition to any concurrency that may arise from considerations of totality. (I may perhaps add that the Crown did not dissent from the substance of the point made in this paragraph.) 59 The Crown also drew attention to R v Mills (unreported, CCA, 3 April 1995) where the relative seriousness of felony murder, as the Prisoner's offence was, and murder where there has been an intention to kill was considered. That case establishes that there is no prima facie presumption that in a comparison of the inherent nature of such offences, felony murder is less heinous. 60 Because the offence of murder is one to which a standard non-parole period applies, I should address specifically the question of whether the Prisoner's offence is in the middle range of objective seriousness, below or above that range. Factors that I regard as particularly significant in this connection are the fact that the original felony that created the risk was planned and the weapon used was one calculated to do much damage if it went off. Such danger must have been obvious, whatever the subjective assessment of it being discharged may have been. The offence was committed in company but in the circumstances, I do not regard this as increasing in any material respect its objective criminality. But for one matter, I would have regarded the offence as falling in the middle of the range. 61 As it is I regard the offence as falling just below the middle of the range. The one factor that leads me to this view is that the person killed was a co-offender with the Prisoner and someone who willingly undertook the risks that the night's activities carried. I do not mean by taking this approach to suggest that the Prisoner's offence was other than extremely serious. However in numerous cases of murder including felony murder, the courts have placed emphasis on the fact that an innocent person, not responsible in any way for events, has lost their life. If that emphasis is not just empty air - and I do not so regard it - then the absence of that factor means the particular offence is not as objectively serious as when the factor is present. 62 I regard the third offence, maliciously inflicting grievous bodily harm with intent to do so as also falling below the middle of the range for offences of its type. Although the nature of the weapon and the Prisoner's actions argue strongly for that offence being above the mid-range, the limited extent of the injury and harm to Mr Horin, and the shortness of the Prisoner's additional criminality argues in the opposite direction and, in my view, even more strongly. 63 I do not intend to impose the standard non-parole periods for the second and third offences. Section 54B of the Crimes (Sentencing Procedure) Act provides that the reasons for taking that approach are only those referred to in Section 21A. I have already adverted to the concluding paragraph of Section 21A(1). There are of course the earlier paragraphs of that subsection also. 64 Section 54B(4) stipulates that the court must make a record of its reasons in this regard and record "each factor that it takes into account". Save and except for saying expressly that I take into account the purposes in Section 3A of the Crimes (Sentencing Procedure) Act, I believe I have done so. 65 I should record that I was asked to find special circumstances in consequence of the "self punishment" which the Prisoner has undergone, the fact that this is his first time in custody, that he will serve at least part of his sentence in protection and fourthly, because of accumulation of sentences. I do not regard the first of these matters as justifying such a finding. Nor do I so regard the third which, if it is to be taken into account, should in my view be reflected in the non-parole period(s). The second of the matters is commonly regarded as a "special circumstance" but because the non-parole period(s) I intend to impose on the Prisoner are the minimum which I believe he should serve in custody and the balance of term will be sufficient to enable him to re-adjust into the community, if ever that is to occur, I do not regard the fact that this is his first time in custody as, in the circumstances of this case, a reason for finding special circumstances or for increasing the balance of term at the expense of the non-parole period. I do regard the accumulation of sentence as a reason for finding special circumstances although I think it necessary or appropriate to reflect that finding only in the sentence for murder.. 66 I should record also 2 further matters. Firstly, the Prisoner has been in custody in respect of the subject matters from 28 April 2004. Secondly, before ultimately deciding on the sentences to be imposed, I have reflected on each, the component parts of each, and the totality of the sentence to be imposed. 67 For the offence of assault with intent to rob whilst armed with a dangerous weapon I sentence you to imprisonment for a non-parole period of 7 years commencing on 28 April 2004 together with a balance of term of 2 years and 4 months commencing on 28 April 2011. 68 For the offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm I sentence you to imprisonment for a non-parole period of 4 years commencing on 28 April 2005 together with a balance of term of 1 year and 4 months commencing on 28 April 2009. 69 For the offence of murder I sentence you to imprisonment for a non-parole period of 16 years commencing on 28 April 2005 together with a balance of term of 5 years and 4 months commencing on 28 April 2021. 70 I record that the earliest date upon which it appears to me you will become eligible for parole is 28 April 2021.

23/08/2006 - date error - Paragraph(s) na 23/08/2006 - date error - Paragraph(s) 70

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.