"Fuck off I'm not scared of you. Give him the money or I'll do time for you. I've been to prison, it doesn't scare me, give him the fucking money or else!"
Police were called and the applicant was arrested.
Subjective circumstances
7 Evidence of the applicant's subjective circumstances was before the Judge by way of a report of a psychologist, Suzanne Freeman, and the oral evidence of the applicant himself and his brother, Mario Saban.
8 The applicant was born on 8 June 1974 and at the time of offending was aged 31 years. It appears that he had a very dysfunctional and fearful early life. The family moved to Bathurst when he was a child. His parents were of Croation background. His father, a violent alcoholic, physically abused all members of his family. There were nine children, the applicant being the fifth child. Two of the daughters were sexually abused. The children were often hungry and their father who was on a pension scavenged for food from supermarket bins. As a result of his father's behaviour the applicant was treated as an outcast at school. When he was 11 years old, his parents separated. The applicant's father after making several threats that he would do so committed suicide by burning down the house with himself inside. After his father's death, the applicant attempted to overdose on tablets.
9 The applicant was expelled from school at the beginning of year 9. After leaving school he attended Bathurst TAFE where he completed an apprenticeship course in spray painting.
10 He had commenced using cannabis and drinking alcohol at about the age of 12 or 13. After he left school he was drinking daily although not when he was in employment. He moved to Western Australia in about 1994-1995. The applicant has had various jobs the last being with Beaurepaires in Sydney following his return to New South Wales.
11 The psychologist in her report noted that when the offences occurred he had been drinking and the applicant had stated he "cannot remember much" because he "got really totalled". He expressed his remorse for his [offending] behaviour and he recently recognised he had a big problem with alcohol. Recently the applicant completed a drug and alcohol relapse and prevention course in Parklea Correctional Centre.
12 During his evidence, the applicant told the Judge that he had never thought about his addiction to alcohol "as much as I have this time in this prison sentence….." and "I even got off my own behind and approached the drug and alcohol person in, in prison at Parklea and did a, a drug awareness certificate program". (T13, 26/07/06)
13 Ms Freeman opined that the applicant is extremely anxious and suffers from symptoms of depression. He has a withdrawn, isolated personality style with strong depressive, self-defeating and anti-social features. He requires counselling to help alleviate his depression and anxiety and to help him improve his self-esteem.
Prior criminal history
14 The applicant has a lengthy criminal record as a juvenile and as an adult. Included in that record are sentences of imprisonment in New South Wales for offences of assault occasioning actual bodily harm and malicious wounding. Of particular significance are convictions in Western Australia on 12 June 2000 in the Perth District Court for robbery and threats to injure and in the same court on 12 April 2002 for receiving, burglary and breach of suspended sentences.
15 For the offences which I have last mentioned the applicant received a total sentence of 6 years imprisonment to date from 25 December 2001. It appears that the applicant was released on parole which was transferred to New South Wales.
16 It is appropriate to note that at the time of the commission of the present
offences the applicant was subject to that parole.
Dealing with the Appeal
17 The sole ground of appeal is the applicant's contention that the Judge gave insufficient weight to the applicant's background and prospects of rehabilitation as a consequence of which the sentence is manifestly excessive.
18 The applicant contends that his Honour gave only cursory attention to the background of extreme deprivation and violence and the Judge's only regard to that was a reference to the psychologist's report. The applicant complains that his Honour remarked that he was unaware of anything untoward in the applicant's mental state despite references in the psychologist's report to several suicide attempts and symptoms of depression.
19 It is evident from his Honour's remarks that he paid more than cursory attention to the background of the offending. He referred to the psychologist's report and to the applicant's background and upbringing. The Judge acknowledged the tragic death of the applicant's father, his unhappy childhood and teenage years. He noted his excessive consumption of alcohol and smoking of cannabis. His Honour, however, did not expressly mention the applicant's attempted suicides and the psychologist's assessment of continuing depression and anxiety. The Judge did note [ROS at para 11] that [the applicant] "has suffered episodes of depression". In any event, the assessment made by Ms Freeman was confined, as mentioned, to depression and anxiety.
20 The applicant complains that it was not open to his Honour to find that the applicant had no desire to change his ways and would be likely to re-offend. There was evidence before the Judge, the applicant contends, that he had for the first time recognised that he has a problem with alcohol and had sought to address this problem.
21 This contention is based on remarks on sentence made by the Judge. His Honour, relevantly, said (ROS at para 27):
"As to the prospects of the offender's rehabilitation and the likelihood of the offender not re-offending, I doubt that, having regard to his past, the offender has any desire to change his ways and I suspect that, if he does not get his way or want (sic) he wants, he will re-offend."
22 His honour had earlier noted that [the applicant] had been dealt with for fifteen offences in New South Wales, one offence in Queensland and twenty offences in Western Australia.
His Honour remarked:
"It is obvious and fair to say that the offender has learnt nothing whatsoever from his earlier offending and the sentences imposed upon him for those offences." (ROS at para 8)