Aslett v R - [2006] NSWCCA 360

No judgment structure available for this case.

CITATION: ASLETT v REGINA [2006] NSWCCA 360
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 May 2006

JUDGMENT DATE:
16 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 47; Hoeben J at 48

DECISION: 1. Grant leave to appeal; 2. Uphold the appeal in part and quash the sentence imposed for the count of murder; 3. Sentence the applicant for the count of murder to a non-parole period of 22 years commencing on 22 August 2022 and expiring on 21 August 2044 and a balance of term of six years expiring on 21 August 2050; 4. Otherwise the appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - APPEAL AGAINST SENTENCE - Murder - aggravated sexual assault - armed robbery - aggravated kidnapping - aggravated car jacking - obtain benefit by deception - larceny of a motor vehicle - offences on Form 1 - life sentence imposed - effect of criminal history - application of Veen (No 2) - degree of criminality - felony murder - whether ongoing danger to community - principle of totality - s 21A aggravating factors - whether sentence manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: Mill v The Queen (1988) 166 CLR 59
R v Bellamy [2005] NSWCCA 329
R v Berg [2004] NSWCCA 300
R v Blair (2005) 152 A Crim R 462
R v Bushara [2006] NSWCCA 8
R v Doolan [2006] NSWCCA 29
R v EM [2005] NSWSC 212
R v Fernando [2002] NSWCCA 28
R v Harris (2000) 50 NSWLR 409
R v Henry (1999) 46 NSWLR 346
R v Jacobs and Mehajer (2004) 151 A Crim R 452
R v Johnson [2004] NSWCCA 76
R v McNaughton [2006] NSWCCA 242
R v McQueeney [2005] NSWCCA 168
R v Mills, unreported, NSWCCA, (3 April 1995)
R v Previtera (1997) 94 A Crim R 76
R v Shankley [2003] NSWCCA 253
R v Sharma [2002] NSWCCA 142
R v Wickham [2004] NSWCCA 193
R v Williams [2005] NSWCCA 99.
Regina v Tadrosse [2005] NSWCCA 145
Veen v The Queen (No 2) (1987) 164 CLR 465

PARTIES: Dudley Mark Aslett (Appl)
The Crown

FILE NUMBER(S): CCA 2005/2047

COUNSEL: J Stratton SC (Appl)
D Arnott SC (Crown)

SOLICITORS: Brenda Duchen, Solicitor (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/18

LOWER COURT JUDICIAL OFFICER: Wood CJ at CL

LOWER COURT DATE OF DECISION: 15 December 2004

LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 1228

2005/2047

McCLELLAN CJ at CL
JAMES J
HOEBEN J
THURSDAY 16 NOVEMBER 2006

ASLETT, Dudley Mark v REGINA

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against sentences imposed on him by Wood CJ at CL in respect of nineteen offences. They comprise one count of murder, two counts of aggravated sexual assault in company, eight counts of robbery whilst armed with a dangerous weapon, two counts of robbery whilst armed with an offensive weapon, one count of specially aggravated kidnapping, one count of aggravated car jacking, one count of obtain benefit by deception and three counts of larceny of a motor vehicle. The applicant asked that nine further offences be taken into account on three separate Form 1 documents.

2 Wood CJ at CL imposed a sentence of life imprisonment in relation to the count of murder. In relation to the other charges, the applicant was sentenced to a series of determinate sentences, resulting in a total sentence of 36 years, with a non-parole period of 28 years. The sentence was made partly cumulative on other sentences imposed on the applicant in the District Court. The sentence, the subject of this application, commences on 22 August 2008. The head sentence for the other matters for which the applicant was sentenced by Wood CJ at CL expires on 21 August 2044 and the non-parole period on 21 August 2036.

The sentences imposed in the District Court

3 The sentences imposed in the District Court were imposed for a series of serious offences. There were eight counts. An appeal in relation to the sentences was upheld by this Court, except for the sentence on the eighth count. The counts and the ultimate sentences are as follows:

4 Count 1: specially aggravated breaking and entering:

On 17 July 2003 in a certain suburb of Sydney he broke and entered a certain dwelling house and committed therein the serious indictable offence of robbery in circumstances of aggravation, namely being in the company of Steven Aslett, Jamie Aslett and Christopher Bonham and in circumstances of special aggravation, namely wounding one of the complainants, whom I shall refer to as SA;

He was sentenced to a non-parole period of 10 years to commence on 22 August 2003 with the balance of the term being one of 3 years and 4 months.

Count 2: Sexual intercourse without consent

At the same time and place he had sexual intercourse with SA without her consent while in the company of the same persons and for a period afterwards deprived her of her liberty.

He was sentenced to a non-parole period of 20 years to be served concurrently and partially cumulatively upon the sentence for count 1, with the balance of the term being one of 6 years and 8 months. The non-parole period to commence on 22 August 2003 and expiring on 21 August 2023 and the balance of the term to commence 22 August 2023 and expire on 21 April 2030.

Counts 3 & 4: Sexual intercourse without consent

At the same time and place he had sexual intercourse with SA without her consent while in the company of the same persons and for a period afterwards deprived her of her liberty;

He was sentenced in respect of each offence to a non-parole period of 15 years. The sentences to be served concurrently with one another, but partly cumulative on the sentences for counts 1 and 2. The non-parole period in each case to commence on 22 August 2010 and expire on 21 August 2025. The balance of the term of each sentence of 5 years to commence on 22 August 2025 and expire on 21 August 2030.

Counts 5, 6 & 7: Sexual intercourse without consent

At the same time and place he had sexual intercourse with SA without her consent while in the company of the same persons and for a period afterwards deprived her of her liberty;

He was sentenced in respect of each offence to a non-parole period of 8 years. The sentences to be served concurrently with one another, but partly cumulative on the sentences for counts 3 and 4. The non-parole period in each case to commence on 22 August 2025 and expire on 21 August 2033. The balance of the term of each sentence of 10 years to commence on 22 august 2033 and expire on 21 August 2043.

Count 8: Aggravated act of indecency

At the same time and place, while in the company of the same persons, he incited SA, who was sixteen years of age, to commit an act of indecency upon herself.

He was sentenced to a fixed term of 2 years to be served concurrently with sentences for counts 1 and 2 and to commence on 22 August 2003 and expire on 21 August 2005.

The relevant facts

5 Wood CJ at CL made factual findings in relation to each count. All of the offences included in the indictments and in the Form 1 documents were committed between 3 May 2003 and 20 August 2003. The offences of murder (s 18), aggravated sexual assault in company (s 61JA) and aggravated carjacking (s 154C) fall within Division 1A of Part 4 “Standard Non-parole Periods”, of the Crimes (Sentencing Procedure) Act 1999. His Honour’s findings are set out below:

“ THE OFFENCES

INDICTMENT DATED 24 JUNE 2004

Count 1: On 3 May 2003 at Newington in the State of New South Wales, being then armed with an offensive weapon namely a gun and a knife, the Prisoner did take and drive a motor vehicle bearing registration number EUN-603 without the consent of [EC], whilst [EC] was in the motor vehicle. [ Crimes Act 1900 s 154C(2)]

Count 2:

Crimes Act

Count 3:

Crimes Act

Count 4:

Crimes Act

Count 5:

Crimes Act

Count 6:

Crimes Act

Facts

On 3 May 2003 at about 9 PM, EC parked her red Mercedes coupe, registration number EUN 603 in the wash bay zone of her sister’s unit block in Newington.

At around 11 PM she left these premises with her Maltese terrier dog. She saw two men in the alley, and waited until they had passed the gate before walking out. As she began to walk to her car she saw one of the males standing in the alleyway. Suddenly the Prisoner emerged from the bushes and stood in front of her. When he spoke, her dog started barking and she picked it up and walked on towards the Woolworth’s car park. She decided to delay getting into her car while the two men were in the area.

After walking around the car park for a few minutes she returned to the wash bay area of the units and looked, but could not see, either of the two men. As she was about to enter the car, she heard running footsteps. She looked up and saw the Prisoner running from in front of the vehicle. He grabbed the offside door and pulled it open. The victim could see that he was the same person who had earlier appeared out of the bushes.

The Prisoner pushed a black gun against her temple and she began to scream. He said, “Shut up”, and pushed her over to the front passenger seat. As she was moving into the passenger seat he demanded the keys to the car, threatening her with a knife. She could see the second man standing at the passenger door. He was also trying to get into the car, but the door was locked. While the Prisoner was trying to start the car the victim saw that he was holding a knife which was approximately 20 centimetres long with a silver blade. As the Prisoner was attempting to start the car he was yelling at the victim.

After placing the vehicle into motion he drove around the streets of Newington with the victim on board. When she asked him what he wanted he replied “nothing”.

There was some conversation about his companion when they saw him walking along the side of the road. The Prisoner stopped the car and told the victim to get into the back. As she did so she felt the Prisoner push her. She saw that he had the knife in his hand. His companion sat in the front passenger seat and the two men began talking to each other, and laughing and giggling.

The Prisoner asked the victim if she had a purse or a credit card and she replied in the negative. He drove the car through Lidcombe, Chester Hill, Villawood and onto the Hume Highway. He stopped the vehicle near a service station in the vicinity of the intersection with Woodville Road. The passenger took some coins out of the ashtray and left the car. The Prisoner then climbed onto the back seat carrying a knife in his hand. The victim began to scream softly and the Prisoner said to her, “Shut up and don’t look at me.” He slapped her face and pulled her legs towards him. She screamed and the Prisoner repeated his earlier instruction and pushed her face away from him.

He cut her underpants and when she tried to push him away she was threatened with the knife. Whilst still wearing gloves the Prisoner inserted fingers of his right hand into her vagina for several minutes. It felt rough and hurt her, and she cried. The prisoner withdrew his fingers, undid his pants, punched her arms and slapped her face with one hand while holding the knife in the other. He then pushed his penis into her vagina while telling her to shut up and pushing her face away from him.

When he had finished, the second male opened the door of the car and the Prisoner climbed across the victim and left the vehicle. The two men began talking while standing beside the passenger side of the car. The Prisoner pulled some wet tissues out of the glove box and passed them to the victim and told her to clean herself up.

As the Prisoner began to get back into the vehicle he noticed the victim’s wallet in the door pocket. He began to shout and swear at her. He opened the wallet and found her licence and bankcard. He demanded the PIN number for the account and threatened to injure or kill her with the knife, if she did not provide the PIN number. She could not remember the number but told him several numbers which were later unsuccessfully tried by the Prisoner.

The victim was eventually released and ran to a nearby block of units where she was unable to obtain any assistance. She then ran to a townhouse behind those units and while there spoke to her mother and to the police.

When her car was eventually recovered it was found that her mobile phone had been stolen. The SIM card belonging to Linda Berry, the de facto partner of the Prisoner has been identified by Vodaphone as being subsequently used in this phone.

On 4 May 2003 Dr Young examined the victim and identified several injuries to her. She was found to have bruising to her head and damage around her vagina which was painful to the touch. There was a superficial laceration 3.5 centimetres long to the Labia minora and a tear 2 centimetres in length further into the labia minora. The underpants of the victim had been cut open.

Police recovered three “Wet Ones” tissues on a grassed area near the Mobile Service Station at Lansvale. The Prisoner’s DNA was identified on a high vaginal swab and it could not be excluded as being a major contributor to DNA located on the seat of the victim’s motor vehicle.

SECOND INDICTMENT DATED 24 JUNE 2004

Count 3:

Facts

At about 6:30 PM Hoang Thi Nguyen was working in a convenience store at Canley Heights. When she went out the back of the store to her car, the Prisoner pushed her into the vehicle. At the time he was armed with a knife approximately 30 centimetres in length with a silver coloured handle.

After forcing her into the driver’s seat he held a knife to the right side of her neck and asked “Where’s your money?” The victim replied that she had no money, and said that she just worked there. The Prisoner said that she was a liar, to which the victim replied that she was telling the truth, adding that her friend had money, and was waiting outside. The Prisoner instructed her to open the door and to call her friend. She replied that she could not do that because she was waiting outside with her boyfriend. The Prisoner said that he knew that only the two of them worked at the shop and that she had to call out in English. The Prisoner then took hold of her hair and forced her to the back door of the shop.

When she opened the door she saw Thi Thanh Ho. The Prisoner released her and grabbed Ho. A second person seized Nguyen and forced her to the ground.

The Prisoner held a knife to the right side of Ho’s neck. He seized her handbag and went through the contents. He took a sum of money totalling approximately $6,000 in cash. He then said that he wanted more money and asked where it was. He asked her to show him how to open the front cash register and she then opened the cash register and the young boy with the Prisoner took about $500 from it.

The Prisoner then took Ho and Nguyen to an office at the rear of the store where he forced Ho to open a cash drawer which was however empty. The Prisoner said that they were lying and asked Ho to show them where the money was. The second offender kept watch over the two women whilst the Prisoner went into the shop and returned a short time later with a box full of cigarettes and phonecards. The two offenders then left the shop with the money, cigarettes, phonecards and the mobile phones which they had taken from each of the women and entered a light blue coloured car.

Police later located that car at the residence of the de facto wife of the Prisoner at Tregear. A white coloured porcelain water pipe was subsequently identified as coming from the store. When a search warrant was executed at 8 Disalvo Close, Cabramatta West, which was a place of residence used by the Prisoner, police located a number of phone cards similar to those which had been stolen during the robbery.

Ms Nguyen had a Nokia model 8210 mobile telephone handset and Ms Ho had a Nokia model 8855 mobile phone handset stolen during this armed robbery. Inquiries from Vodaphone Law Enforcement revealed that Ms Nguyen’s phone had been used between 29 July 2003 and 6 August 2003 with a SIM card in the name of Amanda Aslett, who was the sister of the Prisoner.

Inquiries from Vodaphone Law Enforcement showed that the phone belonging to Ms Ho had been used between 12 August 2003 and 22 August 2003 with a SIM card of Linda Berry who was the de facto partner of the Prisoner. It was also used with the SIM card of Amanda Aslett on 28 July 2003.

Count 4:

Facts

At about 8:10 PM on this day, Eduardo Arbis left the Shooting Academy in Auburn carrying a Smith and Wesson model 666 .357 calibre Magnum six shot revolver and a Colt model 1911 eight shot semiautomatic pistol. These firearms were secured in a green canvas bag which was locked with a padlock. It also contained 10 rounds of .357 calibre ammunition as well as some earmuffs, a visor and a cleaning kit.

As Arbis placed the bag into the boot of his car he saw the Prisoner who was armed with a baseball bat running towards him. The Prisoner swung the bat in the direction of Arbis’ head. Arbis lifted his hand over his head to defend himself. The bat struck his right hand. The Prisoner then swung the bat again, saying to Arbis, “Back off”. Arbis stepped back and the offender removed the bag containing the firearms, and other items from the boot of his car and then ran off.

On 22 August 2003, the Prisoner was arrested in the Liverpool area in relation to other matters. At the time of his arrest, he was found to be in possession of the Smith and Wesson Magnum revolver. During the execution of a search warrant, at an address where he had been residing, a 35 millimetre camera film was seized. The film was developed and included a number of photos that show the offender posing with this firearm. This weapon was later used by the Prisoner in the several armed robberies and one murder.

The second firearm that was stolen has not been recovered.

As a result of being struck with the baseball bat during the robbery, Arbis suffered bruising and cuts to his right little finger.

Count 5:

Facts

At about 8:40 PM on 31 July 2003 Jeky Li, who was the owner of Mega Lighting of 1/10 Newton Street South Auburn, commenced to close his store. He placed the day’s takings ($800) into a black laptop. At approximately 9 PM he locked and closed the store and left the premises through the rear door and walked to his car. As he started the vehicle he was approached by the Prisoner who was wearing dark clothing, a balaclava and black gloves with the fingertips cut off. He was holding a silver coloured handgun. He was accompanied by a second person who was also wearing a black balaclava, and holding a knife approximately 30 centimetres long.

The Prisoner placed the gun up against Mr Li’s head. The second male placed the knife to his throat. The Prisoner instructed Mr Li to get the money. Mr Li replied that he did not have any. The Prisoner pushed the gun hard up against his head and as a result Mr Li removed a wallet from his bag and handed it over. The Prisoner took the gun away from his head, but then said that there was not enough money in the wallet and once again pointed the gun to his head.

Mr Li attempted to push the weapon way and the Prisoner warned him not to touch the gun, indicating that if he touched it he would die. He opened the chamber of the gun and showed Mr Li the six rounds of ammunition that were loaded in the chamber.

Mr Li produced his personal wallet and the Prisoner took $150 - $200 in cash from it. He also removed approximately $30 in change from the car.

The Prisoner then dragged Mr Li to the rear door of his store. He forced him to open the door and to turn off the alarm, and pushed him into the store where he asked where was “the big money?”

As Mr Li was walking towards the main showroom he could feel the gun being pressed into his back. When he reached the cash register he showed the Prisoner there was no money in the cash trays. The Prisoner asked where was the money, and when Mr Li informed him that there was no more money, the Prisoner took him to the rear storeroom where he was made to lie on the ground. He said “We’re going to kill you. Where’s the money?” He also commanded Mr Li to hand over his mobile phone, which he did. Mr Li was made to walk, at gunpoint, into the toilet, where he was instructed to remain otherwise he would be killed. Sometime later Mr Li left the toilet and called the police.

Approximately $180-$230 in cash and a mobile phone were stolen. The description of the firearm that was used matches the Smith & Wesson 666 .357 Magnum revolver which had been stolen on the previous day.

The Prisoner pleaded guilty to Counts 3, 4 and 5 before Judge Sides in the District Court on 6 August 2004. Upon that basis the Crown has permitted the matters which had originally been charged under Counts 1 and 2 to be taken into account when the Prisoner is sentenced for Count 3 (that is, items (a) and (b) below). A further three matters are to be taken into account, on a separate Form 1, when sentencing the Prisoner for Count 5 (that is, items (c) to (e) below).

The Form 1 offences were as follows:

(a) Robbery while armed with an offensive weapon:

This related to the robbery of Ms Ho on 25 July 2003, three days before the offence charged in Count 3. The Prisoner went to her shop and followed her after she closed the shop that night. She became frightened and took refuge in a nearby shop before walking to her car and driving to the BKK car park in Cabramatta. As she left her car the Prisoner threatened her and took her handbag which contained $3000 in cash and three mobile phones.

(b) Robbery while armed with an offensive weapon:

This related to the robbery of Ms Ho of her handbag, containing $6000 in cash, and cigarettes and telephone cards referred to in the facts outlined for Count 3 of the indictment.

(c) Robbery while armed with a dangerous weapon

This offence was committed just after 5 PM at the premises of Bob Jane T-Mart, when Mathew Ryder noticed the Prisoner inside the store which had been closed, wearing a balaclava and carrying a gun. A second, younger male who was in his company, held a knife to the victim’s throat. Cash was taken from the till and from the victim’s pocket. The Prisoner instructed the victim to open a safe. When this could not be achieved, the Prisoner smashed all of the landline phones in the store and took some mobile phones and car keys. The victim was tied by his hands and feet before the offenders left.

(d) Take and drive conveyance

Having left Mr Ryder bound in the store, the Prisoner went to his Ford Falcon utility and drove it away without the victim’s permission.

(e) Aggravated kidnapping

This related to the fact that the victim the subject of Count 5 was forced, at gunpoint, to walk to the toilet where he was instructed to remain under threat of being killed.

INDICTMENT DATED 1 JULY 2004

Count 1:

Facts

The deceased, Emad Youssef, was the proprietor of a pharmacy situated in a small shopping centre at Canley Heights. At about 6:15 PM on Friday 1 August 2003 the Prisoner who was armed with a .357 Magnum pistol went to these premises with the intention of robbing Mr Youssef of the day’s takings.

At about 6:30 PM the deceased, having closed the pharmacy, walked with a staff member, Eva Keovongsack, to the secure parking area at the rear of the centre. Ms Keovongsack reversed her car out of the secure area and the deceased followed and locked the gate. As he re-entered his car, he was confronted by the Prisoner who had been waiting in a car in the public parking area which was also located behind the shopping centre.

The Prisoner was seen by Katherine Tran to open the door of the deceased’s car, whereupon the men began to struggle. The Prisoner placed his hand into his pants pocket and took out a gun. The weapon discharged inflicting the wound from which the victim died.

Ms Keovongsack who was, at this time, driving down the service lane between the car park and Peel Street heard a gunshot. She looked in her rear vision mirror and saw the deceased staggering towards her vehicle and calling out her name. She stopped her vehicle and ran back to where he had collapsed. She noticed that he was bleeding, and ran into one of the shops to raise the alarm. Mr Youssef was, however, dead by the time that the police and ambulance arrived.

After shooting the deceased the Prisoner took his brief case and fled to his sister’s house at Cabramatta West. There he made admissions to both his sister Catherine and to Irene Lynette to the effect that his attempt to rob the pharmacist had gone wrong, and that he had accidentally shot the man. Later that night a teenage nephew of the Prisoner disposed of the stolen briefcase by throwing it into a creek behind the Mount Pritchard Community Club, where it was later found.

On 22 August 2003, police received information that the Prisoner was at premises in Busby. Members of the Tactical Operations Unit were dispatched to the area and shortly after 10:50 PM Senior Constables Lawlor and Smith approached those premises through the rear yard. As they approached the rear dividing fence they heard the sound of footsteps and saw the Prisoner climbing over the fence. The Prisoner ignored a direction not to move, and jumped over the fence, throwing an object away as he did so. He was apprehended, and, in the area where the Prisoner had thrown the object, Police found a pistol in a black holster. The prisoner acknowledged having thrown it there.

He was taken into custody, and on 26 August 2003 he was interviewed by members of the Risk Assessment Team attached to the MRRC at Silverwater. The Prisoner began to sob and said “I can’t sleep, I’m thinking about the man I killed.” He admitted killing a man at Canley Vale during the course of a robbery which went wrong. He said that the police had found the pistol which he had used.

Whilst still in custody the Prisoner contacted Detective Sergeant McNeil by telephone and indicated that he wanted to speak to him. On 23 October 2003 he was interviewed by Det Sgt McNeil and admitted that he had gone to the shopping centre on 1 August 2003, armed with a pistol, with the intention of robbing the deceased. He said that a week or so before the robbery a friend had shown him how the deceased left his business. He said that on the day of the killing he had been smoking “ice” and heroin. He acknowledged that after running to the driver’s side door of the deceased’s vehicle, he had operated the lever to open the boot. The deceased, he said, had grabbed his arm and began yelling. He pulled out his gun, intending to scare his victim. He said that he had spoken to police to get the matter off his conscience. He indicated that he had run away believing the victim had only been shot in the shoulder and that he would be alright.

The pistol which was recovered by Det Lawlor was examined by the Police ballistic and fingerprint experts. A comparison of the bullet recovered from the body of the deceased with a bullet which was test fired from the gun, revealed that both bullets had been fired from the same weapon. An examination of the weapon by a fingerprint expert showed that a left thumbprint found on the right side of the barrel matched that of the Prisoner.”

6 In relation to this offence his Honour received and read the victim impact statement provided by the widow of Mr Yousseff. In reading the statement his Honour acknowledged s 3A of the Crimes (Sentencing Procedure) Act 1999 and approached the matter as provided in R v Previtera (1997) 94 A Crim R 76:

“INDICTMENT DATED 29 NOVEMBER 2004

Count 1:

Facts

At about 9 PM on 6 August 2003 an employee of the Toowoon Bay Cellars, Warren Richardson, was closing the business. He was standing inside the store near the front door when he was confronted by the prisoner and an unknown accomplice, each of whom was wearing a balaclava. The Prisoner said to him, “We don’t want to hurt you. We want the money”. At that stage the Prisoner pointed a loaded silver coloured .357 calibre magnum revolver to the stomach of Mr Richardson and said “It has hollow nose bullets.”

The Prisoner directed Mr Richardson to go behind the counter and give him the money. When Mr Richardson opened the cash register the Prisoner instructed him to put the money in a plastic bag. Mr Richardson then removed the cash money, placed it into a plastic bag, and handed the bag to the offender who asked “Where is the rest of the money?”.

The co-offender said “I will have some cigarettes”. Mr Richardson was then directed to remove a quantity of Longreach and Winfield cigarette packets which he placed into the same white plastic bag. He filled another bag full of cigarette packets.

A total of $596 in cash, assorted bottles of alcohol and cigarettes belonging to the business, as well as a sports bag containing a jacket, wallet, personal papers and assorted cards, the property of Warren Richardson, were taken.

When interviewed by police the Prisoner admitted to the commission of these offences saying that he had travelled to Toowoon Bay Cellars in a 1987 VL turbo Holden Commodore which he had previously stolen from Gosford. He informed police that he had divided the cash which had been stolen because he did not drink alcohol or smoke, and the remaining property had been kept by his co-offender.

Count 2:

Facts

Between 8 PM and 9 PM on 6 August 2003 a VL Holden Commodore XLD 216 was stolen from the service area of Grawill Ford, at Gosford

This vehicle was recovered on 21 August 2003 at the intersection of Bay Road and Ocean Parade, The Entrance. The vehicle was found to be missing a steering wheel, stereo, speakers, turbo pop-off valve and car mats. It was also found to be fitted with different wheels and tyres.

When interviewed the Prisoner admitted to the theft of the vehicle from the service area. He claimed that at the time of the theft he had only the intention to take and use the vehicle. He said that he later sold some of the parts, which he had taken from the vehicle, to a friend, and that this friend had also removed some parts without his consent.

Count 3:

Facts

At about 4:40 PM on Monday 11 August 2003 the Prisoner and an unknown co-offender parked the vehicle which they were driving in the vicinity of the Ourimbah Medical Centre. The Prisoner and his companion walked to the Ourimbah Post Office. Each disguised his appearance by wearing a balaclava. They there confronted the owner of the business, Shirley Ellis.

Whilst armed with a loaded silver coloured .357 calibre magnum revolver the Prisoner and his accomplice jumped the service counter and removed cash from the wooden style cash drawers beneath that counter. They placed the money into a dark-coloured backpack before running from the Post Office.

Outside the premises the co-offender confronted Haley Kuhn and demanded the keys to her motor vehicle. Whilst the co-offender was trying to remove them from her hand, the Prisoner called out, “Don’t take your anger out on her, come on.”

The Prisoner and his companion were last seen driving away. A sum of $1840 was stolen from the Post Office. When interviewed by police the Prisoner admitted the offence and stated that he tried to calm the victim down due to her hysteria and age.

Count 4:

Facts

At about 6:35 PM on Wednesday 13 August 2003 the owners of the Maidens Brush Newsagency, at Wyoming, Paul and Jennifer Marlow, were closing the business down for the night. Paul Marlow walked outside the rear door to remove rubbish from the premises. When he returned he left the back door open. Jennifer Marlow walked to the door and was there confronted by the Prisoner and a co-offender. Both were wearing balaclavas. Mrs Marlow screamed when she saw that the Prisoner was in possession of a handgun. The Prisoner took her to the safe and said “Open the safe you cunt”. Mrs Marlow said that she did not know how to do so. The Prisoner said, “Yes you do cunt.” He then directed her to lie on the floor and to face the wall.

While lying on the floor Mrs Marlow screamed, which alerted Mr Marlow. He turned and saw the prisoner pointing the firearm towards him. He ran from the shop to an adjoining premises where he caused the police to be contacted. The prisoner remained in the newsagency for a short time and again demanded that Mrs Marlow open the safe. She again claimed that she did not know the combination. The Prisoner remained in the shop for a short while longer before stealing a black coloured briefcase containing personal papers.

When interviewed by police the Prisoner admitted the offence. He said that on leaving the store he ran on foot for a short distance before entering the vehicle, which was not stolen and then travelled back to The Entrance area. He claimed that he threw the black briefcase from the car whilst returning to The Entrance.

Count 5:

Count 6:

Facts

Shortly before 5 PM on Thursday 14 August 2003 the Prisoner drove to the Post Office at Bateau Bay in a stolen Holden Commodore registration number UMZ-549 accompanied by two co-offenders. He entered the Post Office in the company of one of his co-offenders, and in possession of a loaded .357 magnum revolver. Each was wearing a balaclava.

The Prisoner approached the service counter and forced the only customer, Gregory Culpan, to the ground. He demanded money from Gary and Beryl Ives, the owners of the business. He remained on the customer side of the service counter while his co-offender jumped over the counter and removed an amount of cash from the cash drawers. While that was happening he also took the wallet of Gregory Culpan which had been left at the service counter.

The Prisoner and his co-offenders left the Post Office and escaped in the vehicle UMZ-549.

Count 7:

Count 8:

Count 9:

Facts

At about 3:55 PM on Wednesday 20 August 2003 the Prisoner entered the National Australia Bank in the Westfield Shopping Centre Tuggerah. He was disguised with a cap and sunglasses. He approached a staff member, Peter Sutherland, who was behind an open inquiry area and threw to him a plastic bag which landed on the floor.

Mr Sutherland collected the bag and at that time noticed that the Prisoner had produced a loaded silver coloured .357 calibre magnum revolver which was partially concealed within a leather holster. The Prisoner said, “Fill it up. Do as I say and no one will get hurt.” He followed Mr Sutherland through an access door leading into the teller area. Mr Sutherland removed all of the cash from the top three drawers between two female staff members, and placed it in the plastic bag.

The Prisoner said, “Where is more?” Mr Sutherland then opened the lower drawer and removed three bundles of $50 notes which he also placed in the plastic bag.

The Prisoner said to him “Don’t look at me”. While behind the customer counter area he pointed to a mobile telephone belonging to a staff member, Jennifer Hickman and said “Give me the mobile phone”. That phone was then placed into the same plastic bag by Mr Sutherland. This mobile telephone was located on the Prisoner when he was arrested. The Prisoner then walked away from the customer area and left the Bank.

As a result of the commission of these two offences a total amount of cash comprising $28,075 in Australian currency, 20 Great Britain Pounds, and 300 Eurodollars, and one Nokia 3310 mobile telephone were stolen.

During the commission of the offences a witness made observation of tattoos on the left fingers of the offender and the description of those tattoos is similar to those on the hand of the Prisoner.

At the time of his arrest the Prisoner had a total amount of $9,396.90 upon his person. He used a portion of the proceeds of this robbery to purchase a vehicle.

When interviewed the Prisoner admitted to committing the offences. He also admitted having stolen a Maroon coloured Holden Commodore NQL-340 from the Supa Centre at Tuggerah which he had driven to the Westfield Shopping Centre.

He said that he had used an amount of amphetamines and heroin before stealing another vehicle which was a red coloured VN Commodore registration number QRU 579. He then drove that vehicle to the car parking area outside the National Australia Bank where he carried out the robbery mentioned. He then left the bank and drove the red Commodore back to the rooftop of Westfield Shopping Centre and parked it in a different location. The vehicle sustained damage to the ignition and steering column. He then entered the first stolen vehicle, NQL-340, before travelling to Anzac Road Long Jetty where it was abandoned.

Criminal Procedure Act

The Form 1 offences were as follows:

Robbery while armed with a dangerous weapon:

This related to the robbery of Ms McKinnon’s mobile phone during the offence the subject of Count 7.

Carried in conveyance:

This related to the Prisoner being carried as a passenger in the stolen Holden Commodore registration number UMZ 549 prior to the commission of the offence the subject of Count 5.

Carried in conveyance

This related to the Prisoner being carried as a passenger, on 8 August 2003, in a stolen motor vehicle OLM 650 in the Tuggerah area.

Armed with intent to commit an indictable offence

This relates to the fact that on 8 August 2003 the Prisoner attended outside the Long Jetty Post Office with the intention of committing a robbery at those premises, while armed with the 357 Magnum.”

Subject circumstances and prior offending

7 Wood CJ at CL gave consideration to the applicant’s subjective circumstances. He firstly considered the prior offending which was the subject of the sentences in the District Court and the previous appeal to this Court. His Honour summarised the facts of those offences in the following terms:

“The sentencing of the Prisoner for this extraordinary saga of ongoing, and major, criminality is complicated by the circumstance that, on 26 November 2004, he was sentenced by Judge Finnane, after trial in the District Court, in relation to eight further exceedingly serious offences, which were also found to have been committed during the period mentioned.

The reasons for sentence of Judge Finnane record that those offences were committed on 17 July 2003 (that is, before all of the matters for which I am to impose sentence save for those included in the first of the four indictments set out above), when the prisoner and three younger persons went to the suburb of Newington looking for a place to burgle. They selected the unit of a family of Asian origin, which they entered after climbing up to a balcony. They wore masks and gloves and carried knives. The male householder was tied up and threatened with knives upon his return home from work at about midnight, and his wife was compelled to open a safe, from which jewellery was stolen. Additionally the offenders stole money, electrical goods and compact discs. The premises were ransacked.

His Honour found that the Prisoner was responsible for leading this venture and for giving orders to his accomplices. He was the first to have sexual intercourse without consent with the 16 year old daughter of the household. He did so at knifepoint, having threatened to poke her eyes out if she looked at him.

Although she had been a virgin he had vaginal intercourse which left her bleeding and distressed. With the Prisoner’s encouragement, two of his accomplices also had forced sexual intercourse with her without her consent. Their conduct included vaginal rape, anal rape, and forced fellatio. The young girl suffered extensive tearing to her vagina and perineum which required surgery later that morning.

The offences were described by Judge Finnane as having involved a particularly brutal and planned home invasion, and together with the sexual assaults as ones in which gratuitous cruelty had been inflicted. His Honour went on to find that the Prisoner had expressed no remorse or compassion for his victims and in sentencing him took into account his finding that the Prisoner was a “cold, callous, vicious and extremely dangerous criminal”, a finding which precisely reflects my own assessment of him.”

8 His Honour was mindful that appeals had been lodged (and not then determined) against both the convictions and sentences but recognised that he was required to sentence on the assumption that they would not be disturbed. As it happens the appeals against conviction were dismissed. The appeals against sentence were upheld. The total effective sentence originally imposed was of forty years with a non-parole period of thirty years. Following the appeal the overall head sentence was reduced to thirty years and the overall non-parole period to twenty-two and one half years.

9 Wood CJ at CL recounted the applicant’s personal circumstances in the following terms:

“His criminal history began in the Children’s Court at the age of 11 years, when on 18 May 1982 he was sentenced to four years probation for offences of take and drive, offences of break enter and steal, offences of stealing, offences of malicious injury, and one offence of attempt to steal.

On 7 September 1982 he was committed to an institution in general terms for an offence of break enter and steal. On 14 June 1983 he was placed on probation for 12 months for an offence of larceny. While on probation he was committed to an institution, on 22 March 1984, for offences of malicious injury, break and enter with intent, and stealing (two offences). Those committals were however suspended upon him entering into a good behaviour bond for 12 months.

The encouragement of a recognisance seemingly had no effect upon him, because, within two months, he was charged with stealing and was then, on 10 May 1984, committed again to an institution in general terms.

On 14 February 1985 he was recommitted to an institution in general terms for stealing a motor vehicle, and illegal use of a motor vehicle. On 27 September 1985 he was committed to an institution for two years for a total of thirteen offences of stealing a motor vehicle, five offences of malicious injury, one offence of escaping lawful custody, one offence of absconding from proper custody, one offence of stealing, as well as offences of unlicensed driver, driving in a manner dangerous and negligent driving.

On 14 October 1985 he was committed to an institution for 12 months for offences of break enter and steal, and stealing, and for 15 months for offences of take and drive conveyance, unlicensed driving, and two offences of stealing motor vehicles.

Just seven days later on 21 October 1985 he was committed to an institution for an accumulation of three months for one offence of stealing a motor vehicle.

On 18 December 1985 he was again committed to an institution in general terms for a further offence of absconding and for illegal use of a conveyance, while on 20 January 1986 he was again back in the Children’s Court and recommitted to an institution in general terms for two further offences of absconding and two offences of stealing.

On 28 February 1986 he was committed to an institution for 18 months for one offence of absconding lawful custody, one offence of malicious injury, two offences of stealing a motor vehicle, and three offences of unlicensed driver.

On 11 March 1986 he was committed to an institution for 2 years for three offences of stealing a motor vehicle, one offence of malicious injury, one offence of escaping lawful custody and two offences of break enter and steal. Nine days later, on 20 March 1986 he was committed to an institution for 3 years for offences of take and drive conveyance and absconding.

On 1 July 1986 he was again committed to an institution in general terms for four offences of escape lawful custody, and four offences of absconding.

On 15 July 1986 he was again committed to an institution for 3 years for illegal use of a motor vehicle, unlicensed driving and absconding.

On 21 January 1987 he was committed to an institution for 3 months for absconding from lawful custody.

On 8 July 1987 sentences committing him to an institution were suspended conditional upon him entering into a 12 months community service order for two offences of possess an implement to enter a conveyance, two offences of take and drive, one offence of malicious injury and one offence of illegal use of a conveyance.

On 17 August 1987 a control order for 18 months was imposed when he appeared on two further counts of stealing a motor vehicle.

On 25 January 1988 a control order for 2 years with a 12 months non probation order was imposed for an offence of stealing a motor vehicle, and a control order for 6 months was imposed for an offence of malicious injury.

On 15 February 1988 control orders were made for 21 days for an offence of escaping lawful custody, and of 2 years with a non probation period of 2 months for offences of stealing a motor vehicle and possession of implements.

On 6 September 1988 and on 22 September 1988 control orders of 6 months and of 1 month were imposed respectively for offences of malicious injury and attempting to escape lawful custody (two counts).

On 4 October 1988 another control order, this time for 4 months, was imposed for an offence of malicious damage. This was followed by another control order on 14 November 1988 of 3 months for yet another offence of escape lawful custody; on 21 November 1989 by a control order for 6 months for an offence of break enter and steal; and on 14 February 1990, by control orders for 12 months for offences of break enter and steal and carry a cutting implement.

This brought to an end the Prisoner’s appearance in the Children’s Courts of this State which had seen him sentenced by Courts at Cobham, Yasmar, Minda, Bidura, Yass, Orange, Kempsy and Tamworth.

His record, however continued unabated in Local Courts and in the District Court.

On 17 March 1989 a control order for 12 months with a non probation period of 5 months was imposed in the District Court in Parramatta for an indictable assault.

On 20 July 1989 he was sentenced to 6 months hard labour, and fined in the Local Court of Port Macquarie for driving in a manner dangerous.

On 1 September 1989 he was sentenced to imprisonment for 5 years with a non-parole period of 4 years and 6 months, in the District Court at Port Macquarie for an offence of possession of property stolen outside the State. Sentences of 3 years and 2 years were imposed for offences of stealing and possessing household implements.

On 2 April 1990 the Prisoner was sentenced in the Burwood Local Court to imprisonment for 18 months for an offence of break enter and steal, for 12 months for offences of malicious damage and illegal use of a motor vehicle, for 15 months for an offence of possessing implements, for 3 months for failure to appear, and for 12 months for stealing a motor vehicle.

On 10 May 1990 cumulative control orders were imposed in the Sydney District Court of 6 months for four offences of larceny of a motor vehicle.

On 10 July 1990 he was sentenced in the Local Court at Cessnock to a fixed term of 6 months for malicious damage. On 18 May 1993 he was given separate fixed terms each of 6 months for offences of illegal use of a conveyance, disqualified driver, drive manner dangerous, and possess implements.

On 12 February 1996 he was sentenced in the Parramatta District Court to a fixed term of 18 months for offences of break enter and steal and larceny of a motor vehicle and to concurrent terms of 12 months for possession of implements, larceny, larceny of a motor vehicle and possession of housebreaking implements. On the same date, he was also sentenced to a fixed term of 2 years for an offence of accessory after the fact to malicious wounding; to a minimum term of 2 years 6 months with an additional term of 2 years for an offence of assault with intent to rob while armed; and to a fixed term of 12 months for a further offence of possess implements. All of these sentences were set to commence on the same day, but to the extent of the overlap there was an accumulation. Additionally on the same date a concurrent fixed term of 9 months was set for an offence of escape lawful custody.

On 25 February 1998 at Fairfield Local Court the Prisoner was sentenced to a minimum term of 12 months with an additional term of 4 months for an offence of stealing a motor vehicle, and to fixed terms of 6 months each for offences of driving in a manner dangerous and possessing a prohibited drug. Upon appeal the last two convictions and sentences were confirmed but the sentence was reduced to a minimum term of 8 months with an additional term of 8 months.

On 7 August 1998 he was sentenced in the Sydney District Court to a fixed term of 3 months for attempted escape.

On 27 July 2000 the Prisoner was sentenced in the Liverpool District Court to imprisonment for 5 years with a 2 year non-parole period for an offence of robbery in company, commencing from 23 September 1999. He was sentenced to a concurrent term of 2 years, in the same Court on the same date for a further offence of robbery in company.

On 21 November 2002 in the Liverpool Local Court he was sentenced to fixed terms each of 6 months for offences of assaulting an officer in the execution of his duty, possessing implements, take and drive conveyance, custody of a knife in a public place and possession of equipment for the administration of drugs.

Finally on 8 December 2004 the Prisoner was sentenced in the Local Court for eight offences: one offence of goods in custody, two firearms offences, two offences of assault occasioning actual bodily harm, one offence of assault police, one offence of resist police, and one offence of drive conveyance without consent, to concurrent terms of imprisonment totalling 12 months arising out of the events which are later referred to in these reasons, as being the events which on the Prisoner’s account preceded the sustained period of criminality that most recently brought him back into the criminal justice system.

I have omitted from this dismal record a number of offences that were dealt with by way of a fine, or by the Prisoner being sentenced to the rising of the Court, or taken into account in relation to other matters.

While most of the offences related to offences of dishonesty, particularly involving the stealing or unlawful use of motor vehicles, the overall seriousness of which risks being overstated if attention is confined to their number, the record also includes other serious matters. It also presents a picture of wilful disobedience to the law, a complete failure on the Prisoner’s part to respond to any of the opportunities that have been provided for rehabilitation and for supervision, as well as an escalating pattern of criminality.

The Evidence Tendered by the Prisoner

Fernando

R v Fernando

The Prisoner claimed to Ms Robilliard that he was sexually molested by one of his step brothers for a period of two years or so, commencing when he was aged eight years. He eventually ran away from home and began to associate and identify with a delinquent peer group. It was at that stage of his criminal behaviour that detention in boys homes commenced. At one stage he was placed in foster care but ran back home as he did not care for that experience.

He was educated in the community to part way through Year 8, and thereafter continued his education, on an intermittent basis, while in custody, which regrettably included learning, from older boys, how to steal motor vehicles. He does not seem to have passed beyond Year 10, and has never held down any form of employment, although he has acquired some training and experience as a welder and labourer while in custody.

He has been involved in some short term unstable relationships which collapsed because of his imprisonment. The last relationship ran into problems because of his use of drugs and his friendship with another woman, which apparently led to a fight between her and his partner. The Prisoner became involved in this altercation, and was charged with several offences, although on his account unfairly.

It was by reason of his concern about being sent back to prison because of these charges, and his lack of confidence in the solicitor who was acting for him that, he said, led to him not appearing in court. It was also this factor, he says, that sent him seriously off the rails in 2003, and led him into an escalating use of illegal drugs and to the saga of criminality that now sees him awaiting sentence for the 19 offences which I have mentioned.

The Prisoner informed Anna Robilliard that he had sniffed glue and petrol in late childhood but gave that practice away because of an unfortunate experience while in a detention centre. In his evidence he claimed to have commenced sniffing these substances at the age of eight or nine years.

He began to smoke cannabis, although not to any great extent, preferring to smoke heroin, a practice which he says he began in late 1997 while in Lithgow Correctional Centre. Following his release from custody in mid 2003, he stopped using heroin in favour of smoking “shabu” or “ice”, in the free base form of methamphetamine.

His intelligence has been assessed as falling within the average range. From Ms Robilliard’s report, it appears that psychological testing has shown that he has a “highly significant score on a dimension measuring symptoms of paranoid personal disorder”, as well as “significant scores on the dependent, depressive, antisocial, avoidant, schizoid and passive/aggressive scales in that order”.

Ms Robilliard reported:

‘The central issue for people suffering Paranoid Personality Disorder is suspiciousness and defensiveness combined with feelings of superiority. They are likely to feel bitter toward other people who have been successful and deny their own shortcomings, often blaming others as the cause. They are constantly vigilant, expecting others to criticise, deceive or injure them, and innocuous events will be perceived as insults or attempts to control and manipulate them. Responses will frequently be abrasive, touchy, hostile and irritable. The self fulfilling nature of Paranoid Disorder reinforces the patterns of behaviour. Others react to them negatively thus reinforcing their perception of the world as a dangerous and insecure place.

Paranoid disorder in combination with Schizoid and Avoidant personality attributes, results in a progressively more insular, reclusive and socially isolated disposition. Insularity is intended to protect the individual from fears that others may be able to influence or control them. In combination with Passive/Aggressive personality attributes, paranoid presentation would represent an exaggeration of the persons’ fault finding, resentful and discontented characteristics.

Antisocial personality attributes are consistent with an history of criminal behaviour and substance abuse. Impulsive acting out of antisocial feelings is the hallmark and these individuals who are typically interpersonally irresponsible violating the personal rights of others in work, relationship and financial context.’

Ms Robilliard also reported:

‘On the section of the test that measures current reactive mood states and behaviours, significant scores on this profile are on scales measuring Anxiety, Dysthymia, Drug Dependence and Post Traumatic Stress Disorder. The highest score, which is on the Dysthymia scale, is equivalent to reactive depression. The individual is acknowledging feelings of sadness, pessimism, hopelessness, apathy, low self-esteem and guilt, which are directly related to current life events and circumstances. A sense of futility generally pervades their thinking and they are pre-occupied with their own inadequacy and helplessness. Suicidal ideation may be present and should be monitored.’

Of concern, apart from the foregoing, is the history which the Prisoner provided to Ms Robilliard of having a sense of hopelessness, and of his idea about the future being “a blank”, as well as her assessment that the current offences took place at a time when his life was in chaos and that the more chaotic he felt the greater the amount of drugs he used. She thought him likely to become fragile, and possibly self destructive after sentencing was completed. Clearly the correctional authorities will need to give careful attention to this, as he has a history of attempted suicide.

Ms Robilliard found no signs of psychiatric illness, such experience that he had had in the past of paranoid and delusional episodes having been attributable in her view to heavy drug use.

Primer of Drug Action

‘a free base form of methamphetamine”. In other words ‘ice is to methamphetamine as crack is to cocaine: the free base concentrated smokable form of the parent compound. Unlike crack, methamphetamine has an extremely long half life (about 12 hours) resulting in an intense, persistent drug action.

Repeated high dosage of methamphetamines are associated with violent behaviour and paranoid psychosis...Just as prolonged cocaine use can result in psychoses resembling paranoid schizophrenia, smoking ice produces a pattern of acute, delusional and psychotic behaviour. However, unlike that of cocaine, amphetamine induced psychosis can persist for several weeks.”

In a lengthy report that was tendered by the defence, Associate Professor Starmer described the effects of methamphetamine, cannabis and cocaine use.

In relation to the substance methamphetamine, of which crystallised “ice” tends to be a very pure form, he explained that it “can have an effect in increasing libido, and a speeding of mental processes to the extent that the subject becomes submerged in a flood of thought associations, so that the attention jumps rapidly and ineffectually from one thought to another, as in a manic psychosis”. He also stated that high doses can result in the development of an amphetamine psychosis, which is characterised by intense emotional lability, hallucinatory phenomena and paranoid ideation in a setting of clear consciousness, and which closely resembles schizophrenia. He also indicated that the substance may lead to thought disorder, and that withdrawal can lead to amphetamine “crash”, which involves a depressive phase, fatigue, and suicidal tendencies.

Otherwise he referred to the well known effects of chronic cannabis and cocaine use, in relation, for example, to impairment of memory, concentration, cerebration, and elevated mood or euphoria; which do not require any greater analysis. Professor Starmer observed, finally, that while it is entirely possible that a change in behaviour can be attributed to the use of “ice”, that would require a close examination of time-relationships between its use and the change in the pattern of offending.

The Prisoner did claim in his evidence that his use of this substance escalated after the assault charges had been brought, and that the more he smoked this substance the more he committed offences. He also said that he had not considered that the further offences mattered because of the likely consequences of the assault charges. The proceeds of the robberies he said he used to purchase more drugs.

On his account the whole period was quite unreal and he cannot believe the mess in which he found himself. Otherwise there is very little material available upon which I can determine the extent of his use of “ice” or its time relationship to the offences. That it had some effect may be accepted, but it is also not to be overlooked that the Prisoner had anything but a good record before the assault charges, and there is very strong evidence that he was already committed to a life of crime.

In relation to the murder offence, he said that it had been his intention, having checked out the location and the habits of the deceased, to wait for his departure, to open the boot of his car, to grab his bag with the day’s takings, and to then run. The plan went astray, on his account, when the deceased seized his arm as he tried to operate the boot release, and held onto him and yelled out.

He said that he pulled out the gun, which he had previously loaded, in an attempt to scare off the deceased, but when he continued to struggle with him, the weapon discharged inflicting the fatal wound.

He said that he had been smoking “ice” before committing the offence, and had not realised, until the following day, that the victim had died.

He indicated that he had difficulty in talking about his emotions, but said that he felt “pretty bad” about this offence and that he felt “sorry” for the victim’s family, although he acknowledged that was a “feeble” word to express his feelings. He claimed to have had bad dreams about the incident, and had acknowledged his guilt to police to get it off his conscience, an observation which does not sit well with his continuing offending after this offence, or with his attempt to escape arrest on 22 August 2003.

One might have expected that, having killed in the course of a robbery, he would have refrained from any further robberies using a gun had he been truly remorseful for the murder. To the contrary he committed a large number of further robberies over the course of which he presented the same weapon at his victims. His explanation to the effect that he had pushed the earlier murder to the back of his mind does not sit comfortably with him having entertained any great concern over that offence.

In relation to the offences involving Ms EC, he asserted that he had also taken drugs before its commission, and had gone to the shopping centre where the hijack occurred, only with the intention of stealing a motor vehicle, and without any plan to have forced sexual intercourse with anyone. He acknowledged that when he had been interviewed by police, he had been prepared to admit his guilt, but had not wanted to talk about the matter because he felt ashamed and embarrassed about his conduct. He claimed to feel “bad” about the victim.

The selection of the victim’s motor vehicle, with her sitting inside it was, on his account, a spur of the moment decision, although as he conceded he and his companion had been casing the area for some time looking for a suitable vehicle to steal.

When asked what he had attempted to do in the past to address his drug habit, he said that he had approached several medical practitioners for help, but had been turned away as they did not treat “junkies”. He also said that he had never been offered any assistance while in custody, and that during his last release, he had tried home detoxification but that it had only lasted a few weeks, having been interrupted because of his relationship problems and the assault charges.

His mother gave evidence to the effect that he had first fallen into trouble due to the encouragement of the boyfriend of one of his sisters, who had been a car thief, and that from the age of ten or eleven until the age of seventeen he had spent most of his life in boys homes. Thereafter, until his latest release, she said he had spent most of his life in adult prisons.

She also said that his last release had been his longest period outside and confirmed that he had tried to obtain assistance from medical practitioners, without success. She had enlisted the aid of the Aboriginal Health Service, and as a result he had tried detoxification at home. She also confirmed that he had gone off the rails again as a result of his concern that his parole would be revoked by reason of the assault charges, which he had described as having been a police set up.

She said that both she and her husband had health problems which made it difficult for them to visit him in custody. She had however seen him twice since his arrest on 22 August 2003, and noticed that he had put on weight and looked “like [her] son again”. She said that he phoned his family daily and had sent letters to them apologising and expressing regret for what he had done. She also noted that he has said that he now has “no future”.”

10 His Honour accepted that the applicant entertained some remorse, particularly for the murder and the sexual assault of EC but not of such significance that he was deterred from re-offending in a very significant way. Wood CJ at CL also accepted that he had some limited insight into the stupidity and violence of his past behaviour.

11 In relation to the applicant’s use of drugs his Honour found that he had used “ice” and may also have used cannabis, heroin and cocaine. His Honour assessed their relevance in the sentencing process in the manner which he had described in R v Henry (1999) 46 NSWLR 346.

Pleas of guilty

12 The applicant pleaded guilty to each of the 19 counts. His Honour accepted the pleas as having a great utility in saving the time and cost of the courts, police and prosecutors and avoiding the need for traumatised victims to undergo the ordeal of giving evidence. His Honour said of the relevance of the pleas to the sentencing process:

Regina v Thomson and Houlton

R v Kalache

Regina v Thomson and Houlton

Although it was submitted that absent the Prisoner’s confession the Crown would have found difficulty in proving his guilt of the murder offence, that overlooks the ballistics and fingerprint evidence, the fact that he was arrested in circumstances where the weapon was linked to him, and the availability of eyewitness evidence.”

Offences committed whilst on parole and deterrence

13 Of particular relevance to the sentencing process was the fact that all of the offences were committed while the applicant was on parole – a matter of serious aggravation R v Fernando [2002] NSWCCA 28. Most of the victims were in a position of vulnerability which was also relevant to the determination of appropriate sentences.

14 Wood CJ at CL also considered the need for the imposition of sentences which provided both general and personal deterrence. His Honour stressed the remarks of Spigelman CJ in R v Sharma [2002] NSWCCA 142 where the Chief Justice emphasised the need to provide in the sentencing process for sentences which would operate to deter young people from committing armed robberies.

Prior record and totality

15 His Honour had particular regard to the applicant’s prior record and principles of totality. His Honour said:

Pearce v The Queen

Johnson v The Queen

R v Hammoud

R v Finnie

Mill v The Queen

R v Bavadra

R v Henry

R v AEM and Ors

Crimes (Sentencing Procedure) Act

Veen v The Queen (No 2)

“... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”

Veen (No 2)

R v Shankley (Glen William)

“The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that ‘retribution, deterrence and protection of society may indicate a more severe sentence is warranted’.”

Regina v Johnson

R v Kalache

R v Cotter

R v KM and Ors

R v Wheeler

Regina v Hutchins

R v Sinanovic

The effect of the very heavy sentences imposed by Finnane DCJ would be to lead to a virtual life sentence if there were to be any accumulation, upon those sentences (either on the non-parole period or a large proportion of it), that are appropriate, in this case, for the armed robbery and aggravated sexual assault offences, leaving aside the sentence for the murder count. This does provide something of a conundrum in the present case, particularly if those sentences are successfully appealed. I propose to resolve that by imposing sentences which I consider individually appropriate, and by postponing their commencement by 5 years from the time of arrest, so as to allow for a partial accumulation, and more importantly, to take the offences dealt with by Finnane DCJ into consideration, so far as they are relevant for my assessment of the Prisoner’s dangerousness and prospects of rehabilitation, which are of central importance for the sentence in relation to the murder count.”

A danger to the community

16 Wood CJ at CL gave careful consideration to the evidence relevant to the question of whether the applicant was a danger to the community. His Honour said:

“While it may be accepted that the Prisoner had used drugs at the time of the relevant offences, his behaviour at the scene of the various crimes does not suggest that he was other than aware of what he was doing or in full control of the situation. He had chosen his targets with some care, and the offences were premeditated, although perhaps with the exception of the sexual assault of Ms EC, which in all probability involved a spur of the moment decision.

Of concern is the fact that for a number of the offences for which I am to impose sentence, and also for the offences which were dealt with by Judge Finnane, the Prisoner had taken younger males with him. The encouragement that he was giving these young persons to follow him into a life of crime was particularly discreditable. It indicates not only that he presents as a danger to the community, but underlines the need for the sentences to demonstrate, by way of deterrence, the consequences for any offender who choses to follow in the footsteps of the Prisoner.

R v SLD

R v McNamara

That this is so appears from the lengthy record of the prisoner, the very great objective culpability involved in each of the offences before me, the number of these offences, and the appalling criminality involved in the offences for which he was sentenced by Judge Finnane. The Prisoner has shown himself to have no regard for person or property, he has ignored the lessons which his prior sentences should have conveyed, and he has effectively placed himself outside all normal standards of behaviour or constraints of civilised living. The manner in which he posed with a fistful of bank notes and with a pistol on his hip in the photograph which was tendered, says much as to the way in which he regards himself.

The psychological profile similarly holds out very little hope of him ever being rehabilitated, or of controlling his aggressive and dangerous impulses. He came from a supportive family. While it was a big family which had its own problems, with the exception of the alleged sexual abuse by a step brother, of which no evidence came from the Prisoner or his mother, there is nothing to suggest that his early years were particularly dysfunctional.

His subsequent periods of custody either in boys homes, in detention centres or in adult prisons have, no doubt, hardened him to the point where, if he is not already institutionalised, he is very close to it. Again, his history of almost continuous detention away from his family, and the inevitable exposure to delinquent peer behaviour almost certainly go a long way to explaining where he is today, and why he has chosen to continue offending.

Crimes (Sentencing Procedure) Act.

While it is hard for an offender to rehabilitate himself, or to abandon the use of drugs, it can be done, and there are opportunities for rebuilding lives available for those who chose to use them

Veen v The Queen (No 2)

Crimes (Sentencing Procedure) Act

R v Valentini

R v Cuthbert

Veen v The Queen

(No 2).

Wood CJ at CL’s reasons for each sentence

17 When sentencing for the individual offences his Honour was careful to explain his reasons. As those reasons in relation to some counts are relevant to some of the grounds of appeal I set out his Honour’s remarks in relation to each sentence. In relation to the count of murder his Honour said:

“This is an offence where the aggravating factors mentioned in s 21A(d), (g), (i), (j), (l), (m) and (n) were present, not being elements of the offence. The only mitigating factor present was that referred to in s 21A(3)(k) which I take into account.

Crimes (Sentencing Procedure) Act

R v Harris

Its commission is now to be considered in the light of the fact that it followed the very serious offences of armed robbery and aggravated sexual assault which have been dealt with pursuant to the other indictments before me. It also follows the quite appalling offences in reference to which the Prisoner had been sentenced by Judge Finnane. It involved not only an utter recklessness and disregard of human life, but it also occurred in the course of a planned armed robbery. I am of the view that the level of culpability in its commission, even though it was a case of felony murder, combined with my finding of the dangerousness of the Prisoner to the community, and his negligible prospects of rehabilitation, are such that the objectives of punishment spelled out in s 3A, leave me with no alternative other than to impose the maximum sentence of imprisonment for life.

Accordingly, in relation to this Count I sentence the Prisoner to imprisonment for life. The commencement date of this sentence is of little moment, but for convenience I will direct that it commence from the time of the Prisoner’s arrest, namely 22 August 2003.

FOURTH INDICTMENT

Count 1: Robbery while Armed with a Dangerous Weapon

Henry

I sentence the Prisoner in relation to this offence to a fixed term of 5 years to date from 22 August 2026 to expire 21 August 2031.

Count 2: Steal Motor Vehicle

This was an offence where there were present the aggravating factors mentioned in s 21A(2)(d), (e), (j), (m) and (n) not being elements of it. The only mitigating factors were those referred to in s 21A(3)(a) and (k), which I take into account. It was closely associated with Count 1 and I sentence the Prisoner to a concurrent fixed term of 1 year to date from 22 August 2026, and to expire on 21 August 2027.

Count 3: Robbery while Armed with a Dangerous Weapon

Henry

Count 4: Robbery while Armed with A Dangerous Weapon

This was an offence where there were present the aggravating factors referred to in s 21A(2)(d), (j), (l), and (n), which were not elements of it. There were present the mitigating factors mentioned in s 21A(3)(a) and (k) which I take into account.

Henry

Count 5: Robbery while Armed with a Dangerous Weapon

Henry

I sentence the prisoner for this count to a fixed term of 5 years to commence from 22 August 2028 and to expire on 21 August 2033.

Count 6: Robbery while Armed with a Dangerous Weapon

This was an offence where there were present the aggravating factors referred to in s 21A(2)(d), (e), (j), (m) and (n) which were not elements of it. The mitigating factors present were those referred to in s 21A(3)(a) and (k) which I take into account.

Henry

Count 7: Robbery while Armed with a Dangerous Weapon

This was an offence where there were present the aggravating features referred to in s 21A(2)(d), (g), (j), (l), (m) and (n) which were not elements of it. The only mitigating factor present was that referred to in s 21A(3)(k) which I take into account.

Henry

For these offences, taking into account the Form 1 matters, I sentence the Prisoner to a non-parole period of 7 years to date from 22 August 2029 and to expire on 21 August 2036 and to a balance of parole of 8 years, expiring on 21 August 2044. The case is one where, subject to the life sentence surviving any appeal, there is justification, by reason of the special circumstances previously mentioned, to allow for an extended period of supervision on parole, it being the last sentence in a series of accumulated sentences. The period of 8 years is less than that which is contemplated by s 44 of the Act, and represents a lower proportion than is the norm when the overall sentence is taken into account. However, any longer period would not have served any useful purpose.

Counts 8 and 9: Steal Motor Vehicle

In this case there were present the aggravating factors referred to in s 21A(2)(d), (j) and (n), which were not elements of it. There were present the mitigating factors referred to in s 21A(3)(a) and (k), which I take into account.

By reason of their close association with the other offences in each case I sentence the Prisoner to fixed terms of imprisonment of 2 years to date from 22 August 2029 and to expire on 21 August 2031 and upon that basis to be wholly concurrent with the sentence for Count 7.

The effective overall sentence for the offences charged in this indictment is accordingly one providing for a total non-parole period of 10 years commencing from 22 August 2026 and expiring on 21 August 2036 with a balance of parole of 8 years expiring on 21 August 2044.”

Regina v Harris

18 Wood CJ at CL summarised the effect of the sentences and explained how he had assessed the individual offences and the other offences for which the applicant had been sentenced in the District Court when assessing the applicant’s dangerousness to the community and the weight to be given to each of the 3A sentencing objectives. His Honour added:

“I recognise that, in the event of the Appellant successfully appealing against the convictions for the matters dealt with by Finnane DCJ, and being acquitted after retrial or otherwise, then occasion may well arise for the life sentence to be reviewed on appeal.

Regina v Harris

The appeal

19 There are seven grounds of appeal. I will consider each in turn.

Ground one: His Honour erred in imposing a natural life sentence for a murder, which was far from the worst class of case.

20 Although the applicant complains that his Honour failed to refer to the fact that the applicant gave evidence that he did not intend to kill or shoot the victim or even fire the gun, his Honour correctly identified that this was a “case of felony murder.” The foundational crime was robbery whilst armed with a dangerous weapon (s 97(2) Crimes Act 1900).

21 The applicant’s guilty plea carried with it an admission that the shooting was deliberate and not an accident. As the Crown submitted, it must be accepted that the applicant carried the loaded gun in circumstances where he contemplated resistance, took it out of his pocket when resistance occurred and deliberately discharged it. A murder committed in these circumstances may be as serious as a murder committed with intent to kill R v Mills, unreported, NSWCCA, (3 April 1995); R v Jacobs and Mehajer (2004) 151 A Crim R 452 and R v EM [2005] NSWSC 212 per James J.

22 When sentencing for the offence of murder a New South Wales court must also have regard to and apply s 61(1) of the Crimes (Sentencing Procedure) Act 1999 which is in the following terms:

“61 Mandatory life sentences for certain offences

(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

23 When first enacted there was concern that s 61(1) may operate to confine the reach of the common law. In R v Harris (2000) 50 NSWLR 409 this Court authoritatively determined that this was not the case and held that s 61(1) effectively provided a statutory statement of the principles of the common law explained in Veen v The Queen (No 2) (1987) 164 CLR 465.

24 There has been a divergence of views in this Court as to the correct application of Veen (No 2) (see R v Wickham [2004] NSWCCA 193; R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v Blair (2005) 152 A Crim R 462; R v McQueeney [2005] NSWCCA 168; R v Bellamy [2005] NSWCCA 329; R v Bushara [2006] NSWCCA 8; R v Doolan [2006] NSWCCA 29.) However, that controversy has now been resolved by a five judge bench in R v McNaughton [2006] NSWCCA 242. An offender is required to be sentenced to a punishment which can be no greater than the maximum range of punishment appropriate for the particular offence. The role of any previous offending will not increase that punishment but may be taken into account in determining whether that maximum or some lesser punishment within the range should be imposed. Prior offending may diminish any leniency which might otherwise be shown to the offender. The principle in Veen (No 2) at 477-8 is as follows:

Director of Public Prosecutions v. Ottewell

25 To my mind there is some difficulty reconciling the result in Harris with the principle defined in Veen (No 2). If a prior offence, including a prior killing, is not capable of informing the objective criminality of the instant offence, even if it be another killing, the imposition of a life sentence for the latest killing, as was done on appeal in Harris requires that the latest offence qualifies as an offence of extreme culpability justifying a life sentence (s 61(1)). Be that as it may, as I have said, the approach to the issue of prior offending has been authoritatively determined in so far as this Court is concerned in McNaughton.

26 Appropriate application of the principles in Veen (No 2) as explained in McNaughton to the present case leads inevitably to the conclusion that the life sentence which Wood CJ at CL imposed for the count of murder was not appropriate. When sentencing Wood CJ at CL observed that “standing alone” the offence did not justify a life sentence. However, his Honour decided to impose a life sentence in light of the fact that the murder followed other serious and appalling offences for which the applicant had been and was now being sentenced. Finding that the murder involved an utter recklessness and disregard of human life and occurred in the course of an armed robbery, his Honour concluded that the dangerousness of the applicant to the community and his negligible prospects of rehabilitation left no alternative but to impose a life sentence.

27 The difficulty with his Honour’s approach is that, notwithstanding the legitimacy of each of the individual findings which his Honour made as to the criminality involved in the offences and the personal characteristics of the applicant, his Honour concluded that standing alone the offence would not have qualified for a life sentence. This must mean that his Honour concluded that the culpability of the applicant for the crime of felony murder, even one involving utter recklessness and disregard of human life, could not justify a life sentence.

28 With respect I agree with Wood CJ at CL that the offence, standing alone, did not justify a life sentence and this Court must intervene. However, the applicant’s record and personal characteristics undoubtedly required the maximum penalty which this Court could impose for a felony murder committed in the present circumstances. Those circumstances include the fact that when using the gun the applicant did not intend to kill the victim.

Ground 2: His Honour erred in finding that the prisoner was a “very serious ongoing danger to the community”

Ground 3: His Honour erred in the application of the principles in

Veen (No 2).

29 The applicant addressed these grounds together. To my mind there is no substance in ground 2. The applicant’s past conduct reflects an almost complete disregard for the law. His actions have brought great harm to many people and reflect, to an extraordinary degree, a lack of concern for other people. I have no doubt that he represents a serious ongoing danger to the community.

30 When dealing with ground 1 in the appeal I have considered the appropriate application of Veen (No 2). Wood CJ at CL sentenced the applicant before the decision in McNaughten which provides a clear statement of the relevance of any prior history of offending by an offender.

Ground 4: His Honour did not properly apply the principles of totality

31 Under this ground complaint is made that there is an extraordinary degree of accumulation in the sentences imposed. The sentence imposed for count 3, on the second indictment does not commence until 22 August 2019, at which time the applicant will have been in custody for 16 years. The sentence imposed for count 5 on this indictment will not commence until 22 August 2023, at which time the applicant will have been in custody for 20 years.

32 In these circumstances it is submitted that the principles of totality required that either that there be a shortening of the individual sentences, or that there be a degree of concurrency: Mill v The Queen (1988) 166 CLR 59.

33 There are always difficulties in determining appropriate sentences when an offender has engaged in multiple and disparate criminal acts. Determining a total sentence which is just to the offender and adequately meets the community’s expectations having regard to the offences he or she has committed involves a judgment which, as is so often the case in sentencing, requires the reconciliation of many factors which may point in different directions. The task of sentencing the appellant was made difficult by the fact of his commission of a multitude of terrible crimes all occurred within a relatively short space of time. Most of these crimes justified separate terms of imprisonment of considerable length. The fact that Wood CJ at CL felt bound to commence some of the sentences at a date significantly into the future was the inevitable consequence of the extraordinary criminal rampage undertaken by the applicant.

34 I am not persuaded that the principles of totality were other than properly applied.

Ground 5: His Honour erred in taking into account the following aggravating factors under s 21A

Crimes (Sentencing Procedure) Act

, s 21A(2)(g) (“the injury, emotional harm, loss or damage caused by the offence was substantial”), and s 21A(2)(m) (“the offence involved multiple victims or a series of criminal acts”).

35 With respect to the count of murder his Honour mentioned that the aggravating factors were s 21A(d), (g), (i), (j), (m) and (n) and the only mitigating factor was that referred to in s 21A(3)(k).

36 Although these subsections were mentioned it is not apparent how, if at all they influenced his Honour’s decision to impose a life sentence. I have already considered the matters which his Honour articulated when determining to impose that sentence.

37 Complaint is made that, because the victim of a murder is dead, s 21A(g) must be an irrelevant consideration when imposing sentence: R v Williams [2005] NSWCCA 99. However, I do not understand s 21A(2)(g) to be limited to the identified harm to the victim. Obviously, as Wood CJ at CL found, the loss of a spouse and father will cause considerable emotional harm and especially, as in the present case, if the deceased is the bread winner in a family, may cause considerable financial loss to any dependent family. The applicant’s submission should accordingly be rejected.

38 With respect to s 21A(2)(m) it would seem likely that his Honour has considered the offence of murder as part of a sequence of criminal offending. If his Honour took this approach it is another manifestation of the problem identified in Ground 1 of the appeal where I have already found that there is a need to reconsider the appropriate sentence. The applicant correctly points out that s 21A(2)(m) is directed to “the offence” which is one involving multiple victims or a series of criminal acts. The principles were discussed by Howie J in Regina v Tadrosse [2005] NSWCCA 145 and need not be repeated.

Ground 6: In the event that the convictions or sentences imposed upon the applicant in the District Court are set aside, the applicant will need to be resentenced in this Court for the Supreme Court matters.

39 As it happens the convictions entered in the District Court were not disturbed on appeal. However, the applicant’s sentence was reduced from a non-parole period of 30 years to a non-parole period of 22½ years and the overall sentence from 40 years to 30 years. Although the commencement date of the sentences was not changed the expiry date of the non-parole period was reduced from 21 August 2033 to 21 February 2026. I see no reason why this variation of the applicant’s sentence for those other matters would lead to any injustice requiring the intervention of this Court in relation to the sentences imposed by Wood CJ at CL.

Ground 7: The sentence was manifestly excessive.

40 But for the sentence for murder I am satisfied that the sentences which Wood CJ at CL imposed were appropriate. The applicant’s criminality was of the highest order involving repeated criminal enterprises inflicting violence and degradation on his victims. Lengthy prison sentences with a long total sentence were inevitable.

Resentencing for murder

41 It is unnecessary to repeat the detailed description of the offence and the personal characteristics of the offender. For this offence, he must be sentenced mindful of his plea of guilty. The offence is a standard non-parole period offence. Wood CJ at CL was of the opinion that standing alone it would have justified a non-parole period of at least twenty years. I share this view and in my opinion a non-parole period of 22 years is appropriate with a balance of term of 6 years making a total term of 28 years. The questions of concurrency and accumulation must be resolved.

42 If the sentence I propose for murder was to commence on 22 August 2003, as provided by Wood CJ at CL, it would be wholly consumed in the sentences for the other offences. This would not be just. An additional and identifiable term must be served for the murder. As it happens the complete term of the sentences imposed by Finanne DCJ is consumed by the sentences imposed by Wood CJ at CL for the offences, other than the murder offence.

43 The applicant was born in 1971 and is now aged thirty-five years. The sentences imposed by Wood CJ at CL, apart from the murder, would mean that the earliest he could be released to parole is 21 August 2036 when he will be sixty-five years of age. However, if not released to parole he would not be released until age seventy-three.

44 In my opinion for the offence of murder the applicant should be required to serve an identifiable additional term of eight years making him eligible for release on parole when he is seventy-three years of age. This outcome may be achieved by imposing a sentence of 22 years commencing from 22 August 2022 and expiring on 21 August 2044 and a balance of term of six years expiring on 21 August 2050.

45 The consequence will be that the applicant will not be eligible for parole until he is seventy-three years of age. In many cases this may be an excessive sentence to impose on a person who is less than forty years of age. However, in the applicant’s case, having regard to his history of offending and the lack of almost any redeeming feature in his personal circumstances, I am satisfied that the sentence I propose, although lengthy, is nevertheless appropriate.

46 I propose the following orders:

47 JAMES J: I agree with McClellan CJ at CL that the orders proposed by his Honour should be made, for the reasons given by his Honour in his judgment. However, as I am joining in allowing an appeal from part of a carefully considered sentencing decision of the former Chief Judge, I would like to briefly state why I consider that the appeal against the life sentence for the offence of murder should be allowed.

48 In his remarks on sentence Wood CJ at CL found that the offence of murder, standing alone, would not have warranted the imposition of a life sentence. In determining that a life sentence should nevertheless be imposed, Wood CJ at CL took into account the other offences for which he was sentencing the applicant, which his Honour described as “very serious” and the offences for which Judge Finnane had sentenced the applicant, which Wood CJ at CL described as “quite appalling”.

49 I agree with McClellan CJ at CL that such an approach is now prohibited by the decision of the Court of Criminal Appeal in McNaughton 2006 (242). At par 24 of his judgment in McNaughton Spigelman CJ, with whose judgment the other members of the Court agreed, said:-

Veen No.2

Baumer

50 Accordingly, Wood CJ at CL was not entitled to use the applicant’s other offences as warranting the imposition of a life sentence for an offence which, standing by itself, would not warrant the imposition of a life sentence.

51 HOEBEN J: I agree with McClellan CJ at CL.

**********

22/11/2006 - Sentence in para [46] order 3 incorrectly expressed. - Paragraph(s) [46] order 3

Citations

Aslett v R [2006] NSWCCA 360

Most Recent Citation

Cases Citing This Decision

19

R v Bayda; R v Namoa (No 8) [2019] NSWSC 24

R v Khaja (No 5) [2018] NSWSC 238

R v Anderson [2016] NSWSC 399

Cases Cited

24

Statutory Material Cited

2

Hall v The Queen; Barker v The Queen [2017] ACTCA 16

R v Fernando [2002] NSWCCA 28

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CITATION:	ASLETT v REGINA [2006] NSWCCA 360 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 May 2006
JUDGMENT DATE:	16 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 47; Hoeben J at 48
DECISION:	1. Grant leave to appeal; 2. Uphold the appeal in part and quash the sentence imposed for the count of murder; 3. Sentence the applicant for the count of murder to a non-parole period of 22 years commencing on 22 August 2022 and expiring on 21 August 2044 and a balance of term of six years expiring on 21 August 2050; 4. Otherwise the appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - APPEAL AGAINST SENTENCE - Murder - aggravated sexual assault - armed robbery - aggravated kidnapping - aggravated car jacking - obtain benefit by deception - larceny of a motor vehicle - offences on Form 1 - life sentence imposed - effect of criminal history - application of Veen (No 2) - degree of criminality - felony murder - whether ongoing danger to community - principle of totality - s 21A aggravating factors - whether sentence manifestly excessive
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	Mill v The Queen (1988) 166 CLR 59 R v Bellamy [2005] NSWCCA 329 R v Berg [2004] NSWCCA 300 R v Blair (2005) 152 A Crim R 462 R v Bushara [2006] NSWCCA 8 R v Doolan [2006] NSWCCA 29 R v EM [2005] NSWSC 212 R v Fernando [2002] NSWCCA 28 R v Harris (2000) 50 NSWLR 409 R v Henry (1999) 46 NSWLR 346 R v Jacobs and Mehajer (2004) 151 A Crim R 452 R v Johnson [2004] NSWCCA 76 R v McNaughton [2006] NSWCCA 242 R v McQueeney [2005] NSWCCA 168 R v Mills, unreported, NSWCCA, (3 April 1995) R v Previtera (1997) 94 A Crim R 76 R v Shankley [2003] NSWCCA 253 R v Sharma [2002] NSWCCA 142 R v Wickham [2004] NSWCCA 193 R v Williams [2005] NSWCCA 99. Regina v Tadrosse [2005] NSWCCA 145 Veen v The Queen (No 2) (1987) 164 CLR 465
PARTIES:	Dudley Mark Aslett (Appl) The Crown
FILE NUMBER(S):	CCA 2005/2047
COUNSEL:	J Stratton SC (Appl) D Arnott SC (Crown)
SOLICITORS:	Brenda Duchen, Solicitor (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/18
LOWER COURT JUDICIAL OFFICER:	Wood CJ at CL
LOWER COURT DATE OF DECISION:	15 December 2004
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWSC 1228