2 On 10 September 1998 the applicant pleaded guilty in the District Court to an indictment containing three counts. The first count was of robbery, the second of aiding and abetting an attempted robbery, and the third of attempting to use an offensive weapon to prevent lawful apprehension. The applicant was indicted with a co-accused, Michelle Liddicoat.
3 Pursuant to s94 of Crimes Act 1900 the offence of robbery carries a maximum penalty of penal servitude for 14 years; pursuant to s94 together with s344A and s346, the maximum penalty applicable to the second charge was also 14 years; and pursuant to s33B(a), the third offence is punishable by penal servitude for 12 years.
4 In addition to these offences the applicant asked that four further counts be taken into account pursuant to s21 of the Criminal Procedure Act. These were one offence of driving whilst unlicensed, one of take and use a motor vehicle without the consent of the owner, one of using a weapon to avoid apprehension, and one of driving in a manner dangerous.
5 On 11 December 1998, Judge Mahoney QC sentenced the applicant and Ms Liddicoat. On the first and second counts he sentenced the applicant to concurrent terms of penal servitude for 5 years. These he divided conventionally into minimum terms of 45 months and additional terms of 15 months. He specified that the minimum terms were to commence on 11 December 1998 (the day the sentences were pronounced) and expire on 10 August 2002, and the additional terms were to commence on 11 August 2002 and expire on 10 November 2003.
6 On the third charge his Honour imposed a total sentence of penal servitude for 3 years, again conventionally divided, but he specified that this sentence was to be served cumulatively upon the sentences already mentioned. His Honour stated that this sentence was to commence on 11 August 2002 and expire on 10 November 2004.
7 It will be seen that a mathematical error crept into the calculation of the date of expiration of the minimum terms imposed in relation to the first and second counts, and that this error continued and infected the specification of the dates thereafter. Correction of the error is a minor matter and can readily be effected. The expiration date of the minimum terms applicable to counts one and two (stated as 10 August 2002) should be corrected to read 10 September 2002; the commencement of the additional terms in relation to those offences (stated as 11 August 2002) should read 11 September 2002; and the expiration date in relation to that sentence is not 10 November 2003 as stated, but 10 December 2003.
8 The minimum term of the 3 year sentence, to give effect to his Honour's intention, should have been specified to commence on 11 September 2002, and expire on 10 December 2004; the additional term should have been specified to commence on 11 December 2004 and expire on 10 September 2005. When the dates specified are so corrected the combined minimum terms imposed on the applicant are of 6 years; the additional term is one of 9 months.
9 His Honour expressly rejected a submission that he should find that, pursuant to s5(2) of the Sentencing Act 1989, special circumstances existed justifying departure from the statutory ratio.
10 Judge Mahoney heard evidence on sentence on Friday 11 December 1998. He adjourned for a short time to consider the evidence and the submissions that had been put to him, and the sentences were imposed late that afternoon. On Monday 14 December his Honour re-listed the matters, in the absence of the applicant, his co-accused and their legal representatives (but having contacted the legal representatives and obtained their agreement to the course he was about to take), specifically for the purpose of noting that, while he had made no mention of it in his remarks on sentence, he had taken into account periods of pre-trial custody. In the applicant's case the period was 8 months and 12 days. When that period is added to the sentences imposed (as it must be, properly to reflect the real sentences imposed) the effective combined minimum terms were terms of 6 years, 8 months and 12 days.
11 It is convenient now to state the facts of and surrounding the offences. All were committed on 29 March 1998. At about 11.30 that morning the applicant and Ms Liddicoat took, and the applicant drove, a previously stolen motor vehicle from near Stanmore railway station. The applicant did not hold a driver's license. These events constituted the first and second offences on the Form 1.
12 The applicant drove to a bus stop, left the vehicle and approached a young woman seated with her baby in a bus shelter. The baby was playing with the woman's handbag. The applicant seized the bag from the baby with sufficient force to cause one of the handles to break. Another woman who was nearby chased the applicant and temporarily retrieved the bag. The applicant pushed her and regained possession of the bag. He re-entered the car and drove off. These events were the foundation of the first charge on the indictment, that of robbery. The bag contained $50 in cash, a jewellery pouch, and other personal items.
13 When sentencing, Judge Mahoney accepted the applicant's denial of an assertion that prior to robbing the victim, he had sat beside her and engaged her in conversation. However, he rejected the applicant's denials that he knew the baby was present.
14 The applicant and Liddicoat drove on, and stopped near Petersham fire station. A middle aged woman was about to enter the building for a ceremonial occasion. Liddicoat approached her, grabbed hold of her shoulder bag and demanded the victim give it to her. In the struggle that followed the bag was damaged. The applicant shouted to Liddicoat to return to the car, which she did, without the bag. The applicant's participation in this offence constitutes the second count in the indictment, that of aiding and abetting an attempted robbery. The victim sustained cuts to her thumb and index finger.
15 A little later the vehicle was observed by police in Enmore, its registration number having been taken both by the victim of the attempted robbery, and by the young woman bystander at the first offence. Police approached the vehicle and told the applicant and Liddicoat to alight. The applicant drove the vehicle on the footpath for a distance. Police pursued the vehicle and it collided with another car, forcing the driver off the road. This was the dangerous driving that constituted the fourth offence on the Form 1. The applicant drove the vehicle at a marked police car, which moved to the left to avoid collision, but the applicant drove the vehicle into the police car. This was the offence of using a weapon to avoid apprehension that is the foundation for the third count on the Form 1.
16 Other police joined in the pursuit. Two constables travelling in an unmarked police car activated its lights and siren. The applicant drove the stolen car on the incorrect side of the road directly towards the police vehicle, swerving at the last moment and colliding with a parked car. This constitutes the third offence on the indictment, of attempting to use an offensive weapon to avoid apprehension. The judge accepted that there was no actual injury, but was conscious of the very real potential for injury.
17 The applicant was then arrested. When interviewed, he claimed that a friend had given him the car at Stanmore station but admitted that he did not have the owner's permission; he admitted taking the handbag from the first victim, but said she was not holding it, and that he did not realise that the baby was present; he admitted that he let Liddicoat out of the car at Petersham fire station, but said that he did so because he believed she was going to buy some cigarettes; and he admitted driving away from police to avoid arrest for the bag snatch and said he recalled colliding with one car but not with the police car.
18 The applicant was born on 3 June 1968. He was a little under 30 at the date of the offences, 30 at sentencing. He has a record that commenced in 1982, when he was 14 years of age, with a charge of break enter and steal. Thereafter he was convicted of a number of offences of dishonesty of various kinds, of possession and supply of drugs, robbery with striking (1987), and, in 1993, three counts of armed robbery. In all there are 16 entries on his record.
19 Before his Honour were a pre-sentence report from the Probation and Parole Service, and a comprehensive psychological report prepared by Ms K Barrier. These reports disclose a history of deprivation and mal-adjustment from an early age. The applicant is of aboriginal decent. His parents separated when he was very young and his four younger siblings were placed in institutions. He remained with his mother. They moved constantly to avoid contact with the applicant's father. His mother became involved with another man who was violent and unreasonable and who asked the applicant to leave the home when he was about 12 years of age. This was said to be because of the applicant's aboriginal heritage. For the next two years he lived around Sydney in the Kings Cross area. He began drinking alcohol at about age 13, and progressed to cannabis, amphetamines and LSD, and by the age of 15, heroin. He has made a number of attempts to overcome his addiction, in residential rehabilitation centres and on methadone programs. He has suffered epilepsy since the age of 14, possibly as a result of amphetamine use. He has been diagnosed with Hepatitis C, but at the time of reporting, did not exhibit symptoms. His intelligence level has been assessed as in the below average range.
20 Ms Barrier reported that, during his early years, the applicant's family life was marked by significant pathology. She said that his father was imprisoned for seven years following an attack upon his step-father who was himself physically and emotionally abusive towards the applicant. It is clear that the applicant has had no opportunity to develop normal relationships or a normal sense of responsibility.
21 Psychological testing indicated a self image of worthlessness, "a well entrenched dispirited and discouraged quality, a sense of permanent hopelessness", with fatalistic attitudes and an acceptance of criminal behaviour. Ms Barrier thought he had a multitude of problems that need addressing, and will require long-term therapeutic intervention and a full-time intensive drug rehabilitation programme. He has become institutionalised.
22 Evidence was given on the applicant's behalf by Ms Karen Shaw, who was described as his half-sister, but who is probably more accurately described as the step-daughter of his father.
23 Ms Shaw said that, initially after the family went their separate ways, she lost touch with the applicant but regained contact during a period when he was in prison. After his release the applicant lived with her for a time, during which she had no problems with his behaviour. However, she was under pressure from her own family, had limited accommodation, and was of the opinion that it was time for the applicant to become independent. She encouraged, or even pushed, him to find his own accommodation. She is now willing to offer him a home and support and guidance on his eventual release.