R v White

| Count | Section | Offence | Max penalty / snpp | | 1 | s97(2) Crimes Act (CA); | Attempt armed robbery, armed with a dangerous weapon | 25y; no snpp | | F1 | 93G(1)(c) | Fire firearm in manner likely to endanger property or any person | 10y; no snpp | | 2 | 51B(1) CA | Police Pursuit | 3y; no snpp | | 3 | 24(2) DMTA | Manufacture prohibited drug not less than commercial quantity | 20 y; 10y snpp | | 4 | 24(2) DMTA | Manufacture prohibited drug not less than commercial quantity | 20 y; 10y snpp | | F1 | s25(1) DMTA | Supply more than indictable quantity but less than commercial quantity (Butanediaol; 107.6g) | 15y; no snpp | | F1 | 25(2) DMTA | Supply not less than commercial quantity (GBL) | 20y; 10y snpp | | 5 | s62(1)(b) Firearms Act | Possess shortened firearm | 14y, no snpp | | Related | s65(3) of the FA | Possess ammunition without permit | Fine only; max 50 penalty units |

3. The offending occurred between 1 September 2023 and 21 November 2023. The offender has been in custody since his arrest on 21 November 2023 and the date of commencement of the sentence will be 21 November 2023.

4. In relation to the maximum sentences and, in respect of the section 24(2) offence (and the s25(2) Form 1 matter), the standard non-parole period, those matters are taken into account as legislative guideposts. They represent the legislature’s view of the seriousness of the offending so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

5. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

6. In respect of the related matter by section 168 of the CSPA the matter is to be dealt with in the same way as if it was in the Local Court.

The facts and objective seriousness

7. The facts refer to a co offender. That co offender is Ms. Amy Dolinski. Ms Dolinski was sentenced in respect of 1 offence of taking part in the manufacture of a prohibited drug of not less than the commercial quantity, and with a further offence of supplying a prohibited drug. There was also a further charge dealt with summarily of concealing a serious indictable offence, that offence being the armed robbery of this matter. The only offence where Ms Dolinski and the offender were co offenders was the manufacture charge, which is count 3 in the present matter. The supply charge of Ms Dolinski was different to the 2 supply charges on a Form 1 in the present matter. In relation to the events of count 3 I note that I considered Ms. Dolinski to have played a meaningful role in that manufacture and after discount of 25% for her plea the indicative sentence was 27 months.

8. The supply charge for which Ms Dolinski was sentenced involved GBL, as does count 3, and as does one of the matters on the Form 1 in the present matter. That drug is recognised by the authorities as calling for a lesser sentence, all other factors being equal, due to its lesser profitability. This issue was canvassed in the sentence remarks for Ms Dolinski and I will not repeat them here.

9. At the time of the offending by both the offender and Ms. Dolinski they were in a relationship and lived together with Ms. Dolinski’s two children then aged 6 and 7 in Murwillumbah.

Attempted robbery

10. This occurred at a Murwillumbah service station, where the two employee attendants were a 45-year-old woman (Ms McDonald) and her 17-year-old son. The offender drove into the premises and got out of his vehicle wearing a hat, a blue surgical facemask and stockings on his lower arms concealing tattoos. In his evidence in court he admitted to taking off the bull bar and license plate of the vehicle and of having given thought to avoiding detection.

11. He was carrying a bag in which was a firearm, a single barrel shotgun which was loaded. He walked towards the counter and pulled the firearm from the bag and pointed it at Ms McDonald with her son less than a metre from her and told them to open both tills. Ms McDonald screamed and shielded her son and told the offender to go away and said “don’t you dare I got fucking kids”.

12. The offender then yelled to open the tills as he pointed the weapon at both victims.

13. Ms McDonald screamed for help. The offender raised the firearm and brought it down to smash the computer monitor. Ms McDonald yelled “no” and the offender kept yelling “open the tills”.

14. Ms McDonald then walked around the counter from behind it, still screaming and the offender continued to yell to open the tills. He stepped back and pointed the firearm into the air and fired one round into a plaster bulkhead at least 1 m above and to the left of Ms McDonald. Plaster fell to the floor. This was deliberate firing of the firearm.

15. Ms McDonald screamed and her son huddled behind the counter and Ms McDonald ran back behind the counter. The offender moved closer, right to the counter, pointing the firearm directly at Ms McDonald screaming “open it open it” and jabbing the firearm towards her. She screamed “no” and “go away”. The offender then turned and ran away carrying the firearm but without taking any money or property.

16. This was all captured on CCTV. Notable about the event is the obduracy of Ms McDonald to the demands to open the tills, the casualness with which the offender walks and removes the firearm from his bag whilst another customer is leaving the shop, and the acceptance by the offender that he should abort his plan.

17. There is the guideline judgment of R v Henry (1999) 46 NSWLR 346. With reference to the matters referred to in that judgment the offender is not young and has a significant criminal history; the weapon is capable of killing; there has been some, but in my view limited, planning; there has been a real threat of violence; the victims were vulnerable, in the position of shopkeepers; nothing was taken, and there was a plea of guilty at an early stage (so differs in that regard to the guideline).

18. The suggested range for a matter within the guideline was 4-5 years, with the plea occurring late. In the present case, the factor of the offender not being young and with his criminal history distinguished it from the guideline, but care must be taken with the factor of a criminal history, and for present purposes I will give it no weight; it will plainly be taken into account in general sentencing considerations, and it should not be double counted. The nature of the dangerous weapon and the intensity of the threat of violence adds to the seriousness of the matter. The early plea in this case is another difference to the guideline case.

19. In the submission of the offender it is conceded that the armed robbery offence is serious. The submission is made that the gun was pointed deliberately away from a person and into the roof and when it was pointed at a person it was not cocked. The basis for this submission which I accept comes from evidence given by the offender.

20. The Crown notes the multiple vulnerable victims, some planning, a particularly dangerous weapon which was loaded and used. I accept there was a significant risk of harm through misadventure; there was the intensity of the scene, an agitated offender holding a loaded weapon and firing it. At the same time I accept the offender’s evidence of it being unlikely that the uncocked firearm would discharge when he struck a monitor with it.

21. That the offence is an attempt does not really assist the offender and he did not argue that it did. It was only an attempt due to the conduct of Ms McDonald.

22. I find this offence is in the mid range of objective seriousness, by which I mean, in an effort to give some better precision, at the upper end of the middle 30%. By reference to the guideline, overall the offence is more serious than the guideline case. It is to be remembered that the present offence is one brought under s97(2), the aggravated version of the guideline matter, and so has a greater maximum penalty than the case being considered in Henry.

The police pursuit

23. Next is the police pursuit. What was just described occurred commencing at 2:44 PM when the offender entered the service station driveway.

24. Upon leaving the service station he was observed by police at 2:58 PM who noticed he had no number plates. Although not stated in the facts, it is accepted by the parties that the police were aware of the robbery having occurred and acted on the basis the vehicle was involved in the robbery.

25. The police caught up to the offender but he failed to stop and accelerated to avoid them. His driving caused a car in front of him to pull to the side and he partially crossed double unbroken lines to pass the vehicle. At times he went completely on to the incorrect side of the road (twice) and on one occasion for nine seconds. An oncoming car needed to take evasive action to avoid collision with the offender. It is admitted that he drove dangerously. There was in-car footage of this offence.

26. In terms of the police pursuit it was submitted for the offender to be dangerous and within the mid range but it is noted it was short and in a rural area.

27. The Crown notes the offender's admission to driving dangerously, to the point that it caused police to drop off the chase. The offender drove on the wrong side of the road more than once.

28. My view is this does not reach the mid range. It was undoubtedly at high speed for part of the short period of the pursuit. Yet it occurred on a seemingly quiet country road, albeit that it affected other road users. There were some bends in the road, but also reasonable lengths of straight road. Far more dangerous police pursuits are regularly dealt with on appeal from the Local Court.

Drug matters

29. Police investigations into the armed robbery identified the offender as the suspect in the robbery matter, and telephone intercepts were lawfully obtained which captured conversations concerning the robbery amounting to admissions. The conversation recorded him describing him “let one rip into the roof”.

30. The telephone intercepts also uncovered the manufacture offence of GBL. The calls showed the offender and Ms Dolinski discussing sourcing items needed for that manufacture and other equipment such as gloves. Solvent was purchased as was dichloromethane. Arrangements were made to provide a sample of the drug being manufactured to an associate named Nomad. The offender boasted about making the best level “drink”, being a reference to the drug.

31. Police then attended at the offender’s premises and asked him where the shotgun was. After initially feigning ignorance he frankly told them it was in the bedroom under the drawers.

32. A search of his vehicle located a bottle of clear liquid which was found to be 107.6 g of butanedial, and this is one of the 2 Form 1 matters to be taken into account with count 4.

33. Police also seized ammunition (related matter) and the shotgun and a book with notes concerning manufacture of GBL.

34. A laboratory inside a small garden shed was located. It was inactive but had been used recently and had paraphernalia consistent with manufacturing drugs including a condenser and heating mantle.

35. 54 litres of suspected GBL in the process of manufacture was seized. A small amount of dark brown liquid in a flask was also seized. These amounts were sent for analysis. The larger amount was later found to have an estimated pure mass of 2196 g of GBL and the smaller amount a total mass of 78 g of GBL, giving a title of 2246 g of GBL in the process of synthesis. The threshold for commercial quantity is 1 kg. The agreed fact is that the offender had not less than the commercial quantity of the drug.

36. The offender was interviewed and said he would make no comment but then agreed to talk once told of the intercepts. He said he had a debt of $7200 on a motorbike which if he did not repay he would lose the motorbike.

37. He admitted to the robbery and to removing his number plates. He had the firearm for years and assumed it was stolen.

38. He admitted to the police pursuit as described.

39. He admitted to the manufacture of GBL.

40. The offender also admitted to having previously manufactured (count 4) GBL in the amount of not less than a litre, and to having supplied that amount, i.e. on one kilogram (second Form 1 matter in respect of count 4). He said he gets about $2500 per litre and had last sold a litre about two months before.

41. In respect of the first manufacture offence, count 3 it is conceded he was the principal offender but it is said it is well below mid range due to the quantities produced and the relatively low value of the drug. Reliance was placed on Bott v R [2023] NSWCCA 255.

42. The Crown describes this as a moderately serious offence. The offender’s role was that he was in effect the sole proprietor, if you like, of the laboratory, being meaningfully assisted by Ms Dolinski. Although it would seem there was likely an intended recipient, he was acting on his own account, on the property at which he resided. It was, in my view, a fairly amateurish operation. The weight of the drug here is double the necessary amount for the threshold of large commercial quantity. It is not one of those cases where there is no upper limit. I note the submissions concerning the nature of the drug GBL as recognised by the authorities such as Bott.

43. The Crown relies on the profit motive of the offender, and his desire to pay off his debt. In my view that does not add meaningfully to the seriousness of the offence. There is a profit motive to varying degrees in nearly all cases of manufacture, be it in kind or money. Considering the objective matters I would place this offence as not reaching the mid range.

44. In respect of the second drug matter (count 4) it should be noted that this is known about only because of the disclosure of the offender, as is the supply matter on the Form 1 in relation to it. Little is known about it, other than what the offender disclosed, though it is plain on the facts, beyond a reasonable doubt, that he manufactured it in the shed. This offence is distinguishable to count 3 by reason of the weight being less, but it should also be noted the drug was successfully supplied. Yet that is being taken into account by way of the Form 1 procedure. I consider count 4 to also be below the mid range, or mid point, and less serious than count 3.

Possess shortened firearm

45. Count 5 is the possess shortened firearm. It was used in the robbery and found on the search of the offender’s house. The offender acknowledges he possessed it for a lengthy period and that the seriousness is added to by reason of it being loaded. The Crown position is much the same. The Crown describes it as a serious example of this type of offence. I agree. The object of the legislation in broad terms is to minimise the availability of firearms in the community for the benefit of public safety, and this offence targets shortened firearms specifically. This is not some shotgun of a person’s grandfather left in the attic; this is a shortened shotgun being possessed in circumstances where its illegal use was likely, as shown by count 1. That said, the fact of it being a shortened firearm is an element of the offence, and although the offender concedes possessing it for a lengthy period, relevantly that period is the 18 months since he was released from custody. This is just below the mid range.

46. Lastly there is the related matter of possessing ammunition, which both parties consider a minor matter. The Crown suggests it be dealt with under s10A CSPA. I agree both that it is minor and that is a sensible way to proceed.

47. The Form 1 matters are indicated on the table as to which offences they relate to. The s93G matter adds little to count 1, as it is a matter taken into account in determining the seriousness of the robbery itself. The two Form 1 matters relating to count 4 do add to the need to reflect deterrence and retribution. They show the offender was no stranger to drug offending. The Butanediaol matter is however minor, though the same cannot be said for the GBL supply, though the lesser seriousness of that offence as discussed above is relevant to note.

Subjective case

48. The offender is entitled to a 25% discount on the basis of his early plea of guilty. Additionally, in respect of count 4 he is entitled to a further discount by reason of disclosing that offence to the authorities along with the supply matter on the form one in relation to BCL. There were no submissions as to just what that additional discount should be. In circumstances where there is nothing in the material to suggest that those matters would otherwise have come to light a discount of an additional 35% in respect of count 4 is appropriate.

49. A feature of this case is the offender’s criminal history. The Crown submitted without contradiction that it includes no less than 16 earlier robberies, three of which were armed. The offender has spent approximately 20 of the past 23 years in custody and had been at liberty for 18 months prior to the commission of this offence. When the offender was cross examined he accepted the earlier 16 robberies, and also accepted apart from the occasion he shot someone, the weapons were replicas.

50. The offender relied upon a psychological report of Dr. Clara Fritchley. The offender was born on 4 December 1969 and so is now 56 years old. The psychologist considered that cognitively he presented as a man of good intelligence with the capacity to reflect on his behavior and identify his emotional states. It said his judgment was sound and that he recognised the harm he had caused. His background is that he had no contact with his biological father but had a good relationship with his stepfather. His relationship with his mother was not so favourable with her being physically and verbally abusive to him. The family moved within Australia and to various places in Asia. His education as a result was somewhat dislocated, attending different schools in different countries. It also varied from public education at Beenleigh High School to Scots college. Whilst boarding at Ipswich Grammar School he was sexually abused by one of the teachers. Then when at Scot’s college at about the age of 12 he was repeatedly sexually abused by an older boy to the extent of suffering damage to his penis and his anus. In recent times he received $200,000 compensation for this which he entrusted to his sister and on his account she misused $100,000 or more of it. In his evidence to the court he for some reason refused her offer to pay it back by instalments. His last school seems to have been in Singapore where he was caught with drugs and deported back to Australia when 16 years old.

51. Also in late adolescence his stepfather and mother separated. It is said that the resort to drugs was a way to cope which I take to mean in response to the abuse as well as the separation.

52. He has little work history due to the extensive periods in custody.

53. His drug use started with cannabis at age 14. On return to Australia at about 16 he used amphetamines and also became abusive of alcohol describing himself as a functional alcoholic. In his mid-20s he began using heroin and he continued this in custody. He also has gambling compulsions.

54. He explains the most recent manufacture of drugs offences as his attempt to make money. He began using GHB to get off Suboxone to which he had become dependent in prison. He was also abusing alcohol, drinking as much as a litre of vodka and 2 litres of wine in a day, together with using methamphetamine.

55. It is said he meets the diagnosis for opioid use disorder, cannabis use disorder, stimulant use disorder, alcohol use disorder, other substance use disorder and gambling disorder. It is said he has had no periods of abstinence from substances whilst living in the community and also used illicit drugs while incarcerated.

56. The report notes his time in custody as commencing when he was 20. He explained he became involved in holding up banks to support his lifestyle and drug use. As already noted at about the age of 30 he commenced an almost unbroken period of 20 years in custody. He describes himself as institutionalized and it is hard not to agree.

57. In terms of his mental health he describes feeling very down and low and ashamed and worthless, consistent with depression. His attitude is that he deserves bad things because he has hurt people and he feels intense guilt and shame. He has attempted suicide and has intense worries for the future.

58. Additional symptoms are identified of posttraumatic stress arising from his mother’s conduct towards him, the sexual abuse he suffered and his involvement with bikies.

59. The psychologist considers he presents with symptoms of ADHD, a major depressive disorder with severe anxiety and a posttraumatic disorder. He has never engaged in treatment but had sought to begin to connect with some treatment prior to the current incarceration

60. He expressed remorse for the offending.

61. In terms of his plans he says he is at his best in prison and that is where he is switched on. In his evidence to the court he did state that it was not like it used to be which I took to mean that prison is now more difficult. One difference in his present circumstances is that in the community he now has what he considers a family, being that of Ms. Dolinski and her two children.

62. Some psychometric assessments were made with the findings being consistent with the clinical findings.

63. The ultimate opinion is that the offender’s difficulties are best understood in the context of biological vulnerabilities and his early life experiences. I frankly do not understand what is meant by biological vulnerabilities but certainly that his life issues arise from his early life experiences is undoubted. He is said to be motivated to make changes but is unsure how to do it.

64. His high level of exposure to adverse childhood experiences has increased the likelihood of poor mental and physical health outcomes, and placed him at high risk of emotional difficulties and the development of substance use disorders. His early use and continued use of drugs and alcohol is a way to cope. Underpinning this also is a poor state of mental health. On his return to the community he struggled and is said to have been distressed and overwhelmed. What I take from this is that when faced with difficulty he really was not equipped to respond in a way other than to reoffend. His continued reliance on drugs and alcohol obviously would make this more likely and would affect his ability to exercise prudent judgment.

65. In contrast to this is that the psychologist considers that he presents as of good intelligence and reflective capacity and indeed he did impress that way in the giving of his evidence. Perhaps also in his favour is that he is of an age where you would expect someone, indeed well before now, to seek to make significant change. This is all well in theory however and very regrettably there is really no evidence to suggest that it will be so. Particularly given that in the 18 month period that he was in the community he did have the benefit of the family that he now says motivates him to change his ways upon release. If the family provides that motivation to change his ways, why was there the offending?

66. The recommendations offered are pharmacological and counseling treatment which will necessarily need to be long term.

67. In addition to the evidence of the psychological report the offender relied on a letter he wrote and was read out by him in Court, and a letter from the chaplain of the Clarence Correctional Centre. In the latter letter the chaplain speaks well of him and says has a desire to improve himself and has expressed remorse. In the letter written by the offender, he speaks of his guilt that he feels, and the hurt that he has caused, consistent with what was said by the psychologist. He speaks of having a family for the first time. He refers to a lack of assistance that he received on being released after so long in custody, the abuse he has suffered and the fact that he was drinking heavily and addicted to GBL in the lead up to the offending, but was seeking help by way of a mental health plan, but says he had difficulty getting an appointment due to difficulty in funding the $130 gap payment. This led to considering crime. He did attend a mental health drop in centre, and was also getting help with financial matters. The offender talks of his compensation payments, and of plans to invest in an earthmoving business, which was thwarted by his sister using his compensation money, or part of it. What money he had left he lost on a bitcoin scam. The prospect of losing his motor bike was the defining moment and he committed the robbery to repay the debt on it. The offender says there is a glimmer of optimism as there is a second compensation payment due to him, and he hopes to be placed in custody at Muswellbrook and do a traineeship with a mining company on a work release programme. His hope is Ms Dolinski will relocate to that area and with his compensation a house can be bought for her and the children and he can ultimately join them there.

68. This letter is heart wrenching, a short story of missed opportunity and regret. I accept the good intentions of the offender in terms of his expressed aspirations, but must also take into account the cold reality of his difficulties with trauma and addiction throughout his adult life, and the fact that the community is placed at risk by his actions.

Consideration

69. The purposes of sentencing set out in section 3A CSPA are as follows:

70. To ensure the offender is adequately punished

71. To prevent crime by deterring the offender and others from committing similar offences

72. To protect the community from the offender

73. To promote the rehabilitation of the offender

74. To make the offender accountable for his actions

75. To denounce the conduct of the offender

76. To recognise the harm done to the victim of the crime in the community

77. In the present case there is a need for deterrence both specific and general, to denounce the offender’s behaviour, and to protect the community, and recognise the harm done to the victims. There is also the need to promote the offender’s rehabilitation.

78. In terms of the harm to Ms McDonald and her son, there was no victim impact statement. Nevertheless, it is an available inference which I draw that the offender’s conduct would have caused them harm; the actual event with a gun being pointed at Ms McDonald would have been terrifying. Whilst she did not accede to any request of the offender, the CCTV footage shows clearly her panic if not outright terror. Her son was just 17.

79. The need for general and specific deterrence is tempered to some extent due to the background of the offender.

80. The submissions for the offender rely on the psychological report to assert that the offender’s resort to substance use is a way of coping with the various traumas he has experienced, and that this reduces his moral culpability.

81. It is submitted for the offender that the principle of totality would result in some significant concurrency. Further there should be a finding of special circumstances to minimise the further institutionalisation of the offender and to give him the benefit of an extended period of supervision and to seek to engage in recommendations of the psychologist noting his attempts already to rehabilitate himself and his good conduct in custody supporting some positive prospect of rehabilitation.

82. The Crown submitted fairly to the offender that there was to be a discount under section 23 in respect of count 4. In this regard the Crown made clear that but for the frankness of the offender count 4 and the supply matter of 1 litre of GBL on the Form 1 would have been unknown to authorities, so that when the matters set out at s23(2) are considered, they result in a favourable additional discount for the offender in respect of count 4 to the extent already stated above.

83. The Crown submitted that the prospects of rehabilitation were poor given the history of the offender and it is difficult to come to some other conclusion. There is the point of difference in this case that he now has a family but that was the position at the time of the offending.

84. As to totality the point is made that the ultimate sentence must still reflect the degree of criminality or objective seriousness of the offending.

85. The Crown concedes some allowance should be made on the basis of institutionalisation and recognises the offender's difficult background. As is often the case that is a consideration that pulls in opposite directions.

86. I accept the submission of the offender concerning totality particularly in respect of counts 1 (armed robbery) and 5 (possess shortened firearm, though plainly he possessed it beyond just the time of the robbery), and also that the consideration of the Form 1 matter under s93G adds little to the sentence of the primary offence, given that the firing of the firearm is what adds markedly to the seriousness of the principal offence. The police pursuit can be seen as part of the robbery. The two manufacture offences occur within a month or so of each other and are clearly part of the one ongoing period and activity of offending. None of this is to suggest total concurrence in respect of the various relevant matters, but it does make it plain that the lineal approach would be disproportionate, and there needs to be significant concurrency to ensure proportionality.

87. I also accept that this is a case where the offender, due to his traumatic background of sexual abuse, and the abuse from his mother, has made it more likely than otherwise that he would resort to drugs to cope. The position is analogous to that spoken of by Simpson J in Millwood [2012] NSWCCA 2, where her Honour rejected the idea that an offender who had the start in life as the respondent in that case bears equal moral responsibility with a person who has had what might be termed a “normal” or “advantaged” upbringing. Similarly, the fact the offender is suffering from the range of mental ailments that he does means, in line with De La Rosa [2010] NSWCCA 194, he is not an appropriate vehicle for general deterrence which may result in a lessening of the sentence to be imposed. In this case in my view the offender is not an ideal vehicle for general deterrence, but that is not to say the sentence should not reflect some weight being placed on general deterrence; in my view the offender's mental health tempers to some degree, but by no means removes that consideration.

88. The Crown submission that the prospects of rehabilitation are poor is irresistible on the evidence. The offender argues he now has a family to motivate him, and his plans for the future should be encouraged so far as possible, and within the bounds of sentencing considerations. Whilst it is to be hoped that he will be motivated by his family, the facts show that when with his family this offending occurred. It is tempting to think that now in his fifties the offender must realise that he must change his behaviour. Yet he has issues of great trauma, and a background of such entrenched substance abuse, that the realistic assessment is that further offending when ultimately released to the community once more, must be a significant likelihood. Regard must be had to community safety.

89. I make a finding of special circumstances for two reasons. One is in an effort to minimise the potential increase of institutionalisation, and the second is because the offender will need significant assistance for a considerable time when he is released to the community, to aid him in dealing with his addictions and trauma, and to be able to handle life in the community.

Determination

83. I propose proceeding by way of an aggregate sentence. It is necessary to first state the indicative sentence for each matter. Having considered all the above factors, objective and subjective, I set out in the below table the indicative sentences, taking into account for counts 1 and 4 the relevant Form 1 matters, before and after the 25% discount for the timing of the plea of guilty, and in respect of count 4, noting the additional discount of 35% as permitted by s23.

| | Sec | Offence | Obj Ser | Max Pen | F1 | Ind | Ind less 25% | | 1 | s97(2) | Attempted armed robbery, armed with dangerous weapon | Mid | 25 | s93G(1)(c) fire firearm | 8 | 6 | | 2 | 51B(1) | Police pursuit | Below mid | 3 | | 1 | 9m | | 3 | 24(2) | Manufacture prohibited drug, not less than commercial quantity | Below mid | 20/10 | | 4 | 3 | | 4 | 24(2) | Manufacture prohibited drug, not less than commercial quantity | Less serious than count 3 | 20/10 | s25(1) DMTA (107.6g of Butanediaol s25(2); not less than comm quantity GBL | 3 | 14.4m (additional 35%) | | 5 | S62 FA | Possess shortened firearm | Below mid | 14 | | 3 ½ | 2y 7m | | R | s65(3) FA | Possess ammunition without permit | minor | Fine only | | 10A | |

84. The indicative non parole periods for counts 3 and 4 respectively are 2 years and 10 months respectively, which are periods which approximate the ratio of the balance of the term to the non parole period of the aggregate sentence. The periods differ from the standard non parole periods due to the offences being assessed as below the mid point of seriousness objectively, and because of the respective discounts applicable to those two offences, and because of the factors relied on for the finding of special circumstances.

85. I have outlined the totality considerations above. The aggregate sentence obviously does not capture the related offence, which is a fine only matter which will be dealt with by way of s10A. The aggregate sentence will be a term of 10 years imprisonment with a non parole period of 6 ½ years. The sentence will date from 21 November 2023, so that the earliest date the offender will be eligible for release will be 20 May 2030.

Orders

1. The offender is convicted of counts 1, 2, 3, 4 and 5 on the indictment, and of the related offence.
2. I note the indicative sentences are set out above, which take into account the relevant Form 1 matters where applicable, and the relevant discounts, as noted above.
3. In respect of counts 1, 2, 3, 4 and 5, the offender is sentenced to an aggregate term of imprisonment to date from 21 November 2023, with a non parole period of 6 ½ years expiring on 20 May 2030, and with a balance of term of 3 ½ years expiring on 20 November 2033.
4. In respect of the related matter, I proceed by way of s10A CSPA so that there will be a conviction, but no further penalty.

**********