R v COLLINS

[2025] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:

R v COLLINS [2025] NSWDC 107

Hearing dates:

19 March 2025, 31 March 2025

Date of orders:

4 April 2025

Decision date:

04 April 2025

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see [112]-[129]

Catchwords:

Sentence – Aggravated Break Enter and Commit Serious Indictable Offence – Steal Firearms – Use Offensive Weapon to Avoid Apprehension – issue of seriousness of s 33B charge – Whether “Bugmy” enlivened – totality – commencement date of sentence

Legislation Cited:

Crimes Act, 1900

Crimes Sentencing Procedure Act 1999

Criminal Procedure Act, 1986

Firearms Act, 1996

Cases Cited:

Bugmy v The Queen [2023] HCA 37

Cotter v R [2020] NSWCCA 299

Courtney v R [2022] NSWCCA 223

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Dungay v R [2020] NSWCCA 209

Elahmad v R [2024] NSWCCA 250

Hunter v R [2011] NSWCCA 141

Nasrallah v R [2021] NSWCCA 207

R v Knight [2023] NSWSC 321

R v Tuala [2015] NSWCCA 8

Tepania v R [2018] NSWCCA 247

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

The Queen v Di Simoni (1981) 147 CLR 383

Category:

Sentence

Parties:

The King
Marcus COLLINS

Representation:

Counsel:
Mr A Dixon for the Crown
Mr A Metcalfe for the Offender

Solicitors:
Office of the Director of Public Prosecutions
De Novo Legal

File Number(s):

2022/305959, 2022/375527

Publication restriction:

No

REMARKS ON SENTENCE

1. The offender appeared before a Magistrate on 29 May 2024 and pleaded guilty to four charges, namely:

H92173118

Sequence 1: Aggravated Break Enter and Commit Serious Indictable Offence (larceny) contrary to s 112(2) of the Crimes Act, 1900.

Sequence 2: Steal Firearm contrary to s 154D(1) of the Crimes Act

H91519466

Sequence 1: Use Offensive Weapon to Avoid Apprehension, contrary to s 33B of the Crimes Act; and

Sequence 2:   Possess Shortened Firearm, contrary to s 62(1)(b) of the Firearms Act, 1996.

2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 19 March 2025. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

3. The maximum penalties for the offence of Aggravated Break Enter and Commit Serious Indictable Offence is one of 20 years imprisonment with a standard non-parole period of 5 years. The maximum penalty for the offence of Steal Firearm is 14 years imprisonment. The maximum penalty for use Offensive Weapon to Avoid Apprehension is 12 years imprisonment. The maximum penalty for the offence of Possess Shortened Firearm without Authority is 10 years imprisonment.

4. When sentencing the offender for the Aggravated Break Enter and Commit Serious Indictable Offence the offender asks that I take into account one charge of Be Carried in Conveyance Without the Consent of the Owner, which is on a Form 1 document. I will need to apply the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146. I observe that the matter on the form 1 will have no practical effect on the sentence to be imposed.

5. Further, there are two matters attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986, namely:

H91519466

Sequence 4:   Not Keep firearm Safely, contrary to s 39(1)(a) of the Firearms Act, 1996 and

Sequence 5:   Possess Ammunition without Licence of Permit, contrary to s 65(3) of the Firearms Act.

6. The offence of Not Keep Firearm Safely carries a maximum penalty of 12 months imprisonment and the Possess Ammunition without Licence carried a maximum penalty of a fine of $5,500.

Facts

7. The facts are before the court by way of a set of agreed facts. There are two episodes of offending, namely the Aggravated Break Enter and Steal and Steal Firearm offending that occurred on or about 3 October 2022 and the Use Offensive Weapon to Avoid Lawful Apprehension and Possess Shortened Firearm that occurred on 6 or 7 October 2022. The Use Offensive Weapon to Avoid Apprehension is a very serious example of that offence noting that it involved a police siege that continued for some hours. I will go to the offending first in time.

8. The Aggravated Break Enter and Steal and Steal Firearm offences occurred at Ayton Vale Farm, Moorong, near Wagga Wagga. The property is occupied by June and Terry Storch who are aged 84 years of age and their daughter Angela. June and Terry Storch purchased the 350 acre property in 1975 and have resided in a three-bedroom home located on the property since that time. In 2008 the property was renovated and a one-bedroom unit at the rear of the property, attached to the main house. The unit shares the same roof as the main property and adjoining veranda and pergola area, however it is not accessible from the main house. Angela Storch resided in the unit from 2008 until 2021. The agreed facts within the tender bundle have a photograph of the dwelling. More legible colour copies are annexed to the Crown’s written submissions.

9. In 2009 Angela Storch acquired a New South Wales Firearms License and shortly thereafter purchased a Sterling .22 Magnum bolt action firearm. Following this, she purchased two further firearms, being a Sako 17 Bolt Action Rifle and a Lithgow 22 Long Rifle Bolt action rifle. These three firearms were stored in a gun safe located in the wardrobe of the bedroom of the unit on the farm. The key for the safe was stored in a drawer, located in a bedside locker adjacent to the victim’s bed.

10. In 2021 when Angela Storch moved from the unit most of her personal belongings remained at the property as she would visit her parents on a regular basis.

11. The offender is known to the victims as the offender commenced working on the farm in 2007 and assisted Terry Storch in the construction of the unit in 2008. The offender concluded working on the farm prior to the completion of the construction of the unit.

12. On 29 September 2022 the victim Angela Storch was at the property and inside the adjacent unit. Upon leaving the residence, noting the remoteness of the location, the victim closed the door to the unit however did not lock the door.

13. At 7:14 pm on 3 October 2022 the offender and his co-offender (Peter Johnson) had the following conversation:

Offender: Oi, where ya at cuz ya get a ride bruv this lad wants the stuff.

Co offender:   I just tried no one wants to drive around they was drinking last night.

Offender: Where you at bra meet ya at shops walk the bag up and we’ll walk around to do this.   

14. Following this exchange and at approximately 11pm the offender and co-offender walked to the Ayton Vale Farm together. June and Terry Storch were present at the residence on 3 October 2022 and went to bed between 9pm and 10pm, leaving the back door to the main residence closed but unlocked. To enter the farm property, access is gained through three front gates located on the property, the first being an electric gate which requires a remote or keypad entry to access. On the night of 3 October 2022 the electric gate and the other gate were closed with the third gate remaining open.

15. Upon approaching the farm the offender and co-offender entered the property through the front two closed fences by unknown means. They then approached the property on foot and entered the unit located at the rear of the residence, through the closed but unlocked front sliding door. The offender and co-offender also entered the main residence through the closed but unlocked front door. The victims were unaware that the offender had entered the unit and only became aware of the offence upon finding their property moved or missing.

16. The facts then go to deal with observations about a Land Cruiser motor vehicle that had been moved. The only relevance of that to this matter is that it was observations about that vehicle being moved that led to the discovery of the Break and Enter offence.

17. At approximately 7:30am on 4 October 2022 Angela Storch was told by her parent’s neighbour, Rebecca Smith, that the farm had been broken into and she needed to check on her parents. Following this, Angela Storch travelled to the farm. On arriving at the main house she noticed that the front door to the unit was wide open. She ran into the unit and observed the room had been ransacked and all of the cupboard doors had been opened. Upon seeing this she went to the cupboard and shelf where she stored her jewellery and observed that all of her jewellery had been taken. The jewellery included:

1. Omega Constellation Watch valued at $12,000;

2. Black Tahitian strand of pearls with matching pearl and diamond earrings – value $10,000

3. a Robert Clerc strand of pearls with matching drop earrings – value $6000

4. Mikimoto pearl pendant and pearl studs – value $2500

5. James Allen Halo Stud Earrings (Diamond) – value of $10,000

6. yellow gold studded earrings – value $4,000 dollars

7. opal ring – value $2000; and

8. assortment of additional jewellery items value unknown.

18. Following this the victim observed that the gun safe located in the cupboard was open and the following firearms were missing:

1. Sako model L461, bolt action rifle

2. Stirling model 1500 22 Magnum calibre bolt action rifle

3. Lithgow model Slazenger 12, 22 Longrifle calibre bolt action rifle

4. rifle scope

5. two boxes of Remington Premier accutip .17 (both full boxes)

6. one box of Winchester 22 PowerPoint 40gr (was half full); and

7. 2 boxes of MPC predator .22 Magnum (one full box, one half box).

19. The firearms relate to the charge contrary to s 154D(1) of the Crimes Act.

20. The facts then go to the offence that attaches to the Form 1 document, that is, be carried in conveyance taken without the consent of the owner. June Storch owned a Toyota Camry motor vehicle. When she woke at 7am on 4 October 2022 she noticed that her vehicle was missing. She had parked the vehicle the day before and left it unlocked with the spare key to the vehicle inside the centre console.

21. At approximately 1:23am on 4 October 2022 motion sensor CCTV captured from a neighbouring property captured the Toyota Camry vehicle being driven from the location and driving through the front electric fence. At 7:30am on 4 October 2022 police located the vehicle abandoned on Edward Street, Wagga Wagga. The two passenger-side tyres were flat and there was some minor damage to the front bumper.

Investigation

22. Police were contacted and attended the Ayton Vale farm a short time later. As a result of forensic examination, a DNA profile matching the offender was located on the internal compartment lip of the gun safe which was in the cupboard of Angela Storch’s bedroom.

23. On 5 October 2022 police also located a communication the offender sent the co-offender which said, “Doing brother, oi I’ve got wheels and my brz with me he’s own jewellery shop brz he can tell us how much the stuff actually worth brz so we don’t get ripped off and he prob wants to buy it for whatever it’s worth”. The co-offender replied, “There at my sister’s house and my sister kids are sleep”.

H91519466 – offending on 6/7 October 2022

24. At about 4:10pm on 6 October 2022 police attended the known address of the offender at 14/72 Travis Street Wagga Wagga. Police had received information that the offender may be in possession of a firearm. Upon arriving at the location police surrounded the premises as other officers approached the front door of the residence. They observed the front door of the property to be partially “kicked in”.

25. Senior Constable Giddings knocked on the door and called out, “Police, come to the door.” There was no answer and the demand was repeated. After repeated knocking, the offender shouted “Who the fuck’s banging on my fucking door”. The officer identified himself stating “Marcus, it’s Matt Giddings from Wagga police, come to the door now or we will kick it in”. The offender shouted “You fuckin come inside and I’ll fucking shoot you cunt”.

26. Following that threat by the offender, police retreated from the location and moved to an area within a safe distance of the offender’s residence and established a perimeter. Police attended on several adjacent residences and advised the residents to evacuate the area if possible.

27. At approximately 6pm, police negotiators attended the location and approached the garage door of the adjacent unit to 14/72 Travis Street Wagga Wagga. Negotiators attempted to yell to the offender who was located inside the residence, however the offender was too far away for police to be able to ascertain what he was saying. Negotiators encouraged the offender to move closer to the window inside the unit, however the offender was angry and agitated.

28. After about 30 minutes, negotiators returned to a command post which had been established in the driveway of the unit complex to communicate with the offender via phone. Police establish contact with the offender via mobile phone and discussed with the offender the reason police had attended the unit earlier that day. The offender responded to police with words to the effect of, “I have court tomorrow, not today. The warrants are lies, you guys are here to kill me”.

29. Negotiations continued until about 10pm when police negotiators in the front yard of the residence were on the phone with the offender he became extremely agitated and yelled “You’ve done it now” and “You’re all dead”. Police were still on the phone with the offender and heard a single gunshot followed by the offender yelling the words to the effect of “The next one is at you cunts”.

30. At approximately 11pm the offender broke the bottom pane of glass located on the front window of the residence and threw his mobile phone, which he had broken, out of the window onto the footpath located at the front of the residence. Throughout the course of the night police maintained their position outside the premises and heard noises coming from inside the front bedroom, which was believed to be the actioning or manoeuvring of a rifle bolt being locked into position by sliding the bolt forward. The offender yelled, “I’ve got 1000 rounds and I’m ready for war”.

31. Then at approximately 11:40pm a member of the Tactical Operation Unit approached the front door of the residence from a southerly direction. As the officer approached, the offender said “What are you doing?” And “fuck off right now”. The offender pointed a cylinder type tube, one half to three quarters of an inch in diameter, towards the Tactical Operation Unit operatives. Police yelled, “Gun!” Negotiators continued attempts to speak to the offender and calm him down without success.

32. In the early morning of 7 October 2022 police observed the offender tapping on the front window of the premises with a firearm barrel. Officers who made this observation informed the other operatives at the location.

33. During the incident, the offender threw a blood covered cloth through the hole in the broken window. The offender stated to police that he had cut his hand on the broken glass when he broke a window. At 7:59am police conducted a food drop at the location the offender was advised there was food available however police received no response.

34. At 8:03am police cut power to the offender’s unit. There was no response from the offender. At 8:47am police broke a window of the front of the unit and threw a mobile phone to the adjacent room to establish communication with the offender.

35. At 9:20am the offender advised police he had a large wound from breaking the glass and could not control the bleeding. The offender put his hand through the window to show police. An emergency action plan was authorised. At about 9:20am on 7 October 2022 the Tactical Operations Unit personnel used force to enter the premises, where the offender was apprehended and placed under arrest.

36. After being arrested the offender was advised that he was to be scheduled under the provisions of the Mental Health Act. The offender was searched. A total of 18 .22 calibre rounds of ammunition was found in the pants pockets of the offender. The offender was conveyed to Wagga Wagga Base Hospital for mental health assessment. He was detained as an involuntary patient for about three weeks.

37. Police returned to the offender’s unit later that day and executed a search warrant. The door to the offender’s bedroom was heavily barricaded and upon entry police observed what appeared to be a bullet hole located in the ceiling of the offender’s bedroom. A search of the bedroom located the firearm lying on the ground, leaning against the bedroom wall. The firearm appeared to have been shortened. The facts contain photographs of the weapon. Clearly it has been substantially shortened.

38. The offender’s fingerprints were found on the firearm. A DNA profile consistent with that of the offender was found on the bolt handle, barrel, trigger guard and adjustment strap of the firearm.

39. Police located a live .22 calibre bullet on the ground where the firearm had been located. Additional .22 calibre rounds were also located scattered throughout the property, including nine rounds of Winchester .22 calibre Holken Point located in a box. A rifle scope was located in a bag on the ground in the lounge room.

40. Various jewellery items were located in the residence, which were shown to Angela Storch who confirmed that the jewellery, ammunition and rifle scope belonged to her and they were items taken from the Ayton Vale farm.

41. The firearm located at the offender’s residence was examined and determined to be a shortened .22 Winchester Magnum Rimfire Calibre ARMSCOR (Stirling) model 1500 repeating (bolt action) rifle. The facts recite that the firearm was tested and determined to be capable of propelling a projectile by means of an explosive. That is essentially the definition of a firearm set out at s 4 of the Firearms Act. It was a firearm that had been taken from the Ayton Vale farm.

Assessment

42. The Aggravated Break Enter and Steal charge carries a standard non-parole period. I note and have regard to what Adams J said in Hunter v R [2011] NSWCCA 141 at [52]. The offence was brazen, committed at night at a relatively isolated farm house, which was occupied. The fact that the premises were occupied goes to the establishment of the factor of aggravation within s 105A relied upon and should not further aggravate the matter. The offender did not confront the occupants of the house, who it would seem remained asleep throughout the commission of the offence. The property taken was significant and it would seem from the victim impact statement of sentimental value.

43. I noted and raised with the Crown at the sentence hearing that although paragraph 56 of the agreed facts sets out that various items of jewellery were shown to Angela Storch who identified them as her property, she maintains in the victim impact statement that none of the jewellery has been recovered. I understood the Crown to concede at the sentence hearing, given the conflict between the facts and the victim impact statement, that I could not be satisfied beyond reasonable doubt that the property has not been recovered.

44. The Crown somewhat forcefully submitted that I would find established the statutory factor of aggravation provided by s 21A(2)(eb) of the Crimes Sentencing Procedure Act 1999, i.e. the fact that the offence was committed in the home of the victim. The Crown took me to the authority of Elahmad v R [2024] NSWCCA 250 at [12] per Hulme AJ (Davies & Yehia JJ agreeing) and the sentence judgment of Yehia J in R v Knight [2023] NSWSC 321 at [46].

45. Mr Metcalfe, counsel for the offender, put at the sentence hearing that to find the statutory factor of aggravation established would be to engage in double counting. The fact that the premises were the home of the victim is taken into account in the assessment of the seriousness of the matter.

42. I accept that technically the statutory factor of aggravation of the offence being committed in the home of the victim is made out, but given it is taken into account in determining the seriousness of the matter it attains no further weight.

43. In all of these circumstances the charge contrary to s 112(2) is below mid-range but not substantially so. Ultimately, I did not understand either party to take any issue with that determination that I indicated as a preliminary view early in the sentence hearing.

44. The Steal Firearm charge was committed at the same time as the Aggravated Break Enter and Steal offence and both were part of the same criminal activity. In these circumstances it occurs to me that the sentence for the Steal Firearm offence will be largely but not totally concurrent with the sentence for the Aggravated Break Enter and Steal offence.

45. However, the offence was committed on a relatively isolated farm and it involved the offender gaining access to a gun safe in which the firearms were properly kept. There were a number of firearms taken. The facts are silent as to whether the firearms were recovered or not and, accordingly, I cannot make a finding one way or the other, but I cannot be satisfied beyond reasonable doubt that the firearms have not been recovered. The offence of Steal Firearm in all of these circumstances is within the mid-range.

46. Although it carries a lesser maximum penalty than the Aggravated Break Enter and Steal charge, undoubtedly the most serious offence for which the offender appears for sentence is the Use Offensive Weapon to Avoid Apprehension, contrary to s 33B of the Crimes Act. The offensive weapon was a firearm. The firearm was discharged. However, as the Crown submitted, that fact can be put to limited use, namely that the firearm was operable, and that police were aware it was operable. To factor the actual discharge of the firearm into the assessment of the objective seriousness would be to breach the principles enunciated in The Queen v Di Simoni (1981) 147 CLR 383.

47. As I observed at the sentence hearing, the matter involves what was a siege situation in suburban Wagga Wagga in an area where there a number of residential flats or apartments. The siege continued for approximately 17 hours. Multiple police officers including negotiators were involved. The firearm was at one stage pointed at police through the broken window. The offender threatened to shoot police.

48. So far as the offending on 6 and 7 October 2022 is concerned there is the complicating factor of the offender’s mental condition. In Tepania v R [2018] NSWCCA 247, Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

53. Submissions were also made on the issue of moral culpability. Johnson J in Tepania at [119] said:

“Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

54. I will deal with the report of Dr Ellis in more detail later in these reasons, however for the purpose of the assessment of the seriousness of the offending on 6 and 7 October 2022 I note that at p 11 of the report (part of exhibit 1 on sentence) he says:

“As noted the opinion is that he has a mental health impairment characterised by two conditions of post-traumatic stress disorder and substance induced psychotic disorder. The post-traumatic stress disorder is chronic and presents across the period of the alleged offending. The substance induced psychotic disorder is more episodic, however by his self report was present across the period of the allegations. The evidence he gives is that he was admitted to a psychiatric unit immediately following his arrest and required antipsychotic medication and this would support at minimum the offences close to this time were impacted by psychotic symptoms of delusions and hallucinations”.

55. That part of the report to my mind clearly establishes a causal connection between the mental health conditions and the offending on 6 and 7 October 2022. I did not understand the Crown to dissent from that proposition. I understood that Mr Metcalf for the offender did not rely on this causal connection so far as the offending on 3 and 4 October 2022 was concerned.

56. At the sentence hearing Mr Metcalf initially submitted that the offending was below mid-range. In submissions in reply he took me to the authorities of Cotter v R [2020] NSWCCA 299, in particular at [30]-[36] and Courtney v R [2022] NSWCCA 223.

57. The offensive weapon in Cotter was a motor vehicle deliberately driven at police officers. At [30] Bellew J (Payne JA, Wright J agreeing) set out the factors about the use of the vehicle namely:

1. accelerating into the stationary vehicle in front of him and then reversing into the stationary vehicle behind;

2. accelerating again (after being directed to get out of his vehicle), and colliding with the rear of the police vehicle in the process;

3. reversing again (having again been directed to get out of the car), striking a police officer and causing him to be thrown onto the bonnet of another vehicle, following which the applicant aggressively opened and closed the driver’s side door to prevent apprehension; and

4. accelerating again, and colliding with the police vehicle.

58. In the following paragraph his Honour noted that the relevant vehicle had been stolen, the offender was disqualified from driving and had taken an illicit substance. The matter was found at [36] to be “at or about the mid-range.”

59. Courtney also involved the use of a motor vehicle and deliberately driving at police officers. Bellew J (Meagher & Mitchelmore JJA both agreeing with additional comments) said at [89]:

“The sequence 4 offence was obviously serious. It involved several separate and distinct instances of the applicant “ramming” into the police vehicle, culminating in his actions of driving directly at that vehicle, the ultimate collision being of sufficient severity to immobilise it, and to cause the airbags within it to be deployed. For the reasons previously set out, it was aggravated by the fact that the victims were police officers who were obviously put at risk by the applicant’s conduct.”

60. The offending in the cases to which Mr Metcalfe referred me is entirely different in nature to the matter that I am considering. The offender used an operable firearm to keep police at bay for the better part of 17 hours. The weapon was pointed in the direction of the police. Negotiators were engaged. Considerable community and police resources were employed. In all of the circumstances, including what I have noted about the decision of Tepania v R and the matters to which I have referred, the matter is slightly above the mid-range of seriousness.

Criminal History

61. The offender has some history in the Children’s Court, which I will ignore – see for e.g. Dungay v R [2020] NSWCCA 209. However, the offender has an unenviable record as an adult. He has been convicted of a number of domestic violence offences including “Stalk/Intimidate” and Contravention of an Apprehended Violence Order. He has also been convicted of Damage to Property, Custody of a Knife in a Public Place, Resist Police, Not Keep Firearm Safely and Common Assault. Notably in 2020 the offender was convicted and sentenced to imprisonment for Use Offensive Weapon to Avoid Lawful Detention.

62. In all of the circumstances the offender has a criminal history that does not entitle him to any particular leniency.

Victim Impact Statement

63. A Victim Impact statement has been provided by Angela Storch. That statement speaks of what I will describe as a sense of betrayal felt by the Storch family given that they assisted the offender in his teenage years. Not surprisingly Ms Storch’s parents do not feel safe in their home.

64. Ms Storch says in the statement that the jewellery has not been recovered. This is at odds with the agreed facts. As I indicated earlier I cannot be satisfied beyond reasonable doubt that the property has not been recovered.

65. Clearly enough, the offender knew of the home and the break and enter offending cannot be said to be random. However, despite the understandable feelings of betrayal and violation felt by the Storch family, the Victim Impact Statement cannot be used to ground the finding of any factor of aggravation or any factor that might aggravate the seriousness of the matter. In this regard I note and have regard to the decision in R v Tuala [2015] NSWCCA 8.

Subjective Case

66. No oral evidence was called from or on behalf of the offender at the sentence hearing on 19 March 2025. However, the proceedings were re-opened on 31 March 2025 and the offender gave evidence via AVL. I understood that the application by counsel for the offender to re-open the sentence proceedings was to lead evidence of remorse. The evidence called went beyond that.

67. Early in the evidence from the offender on 31 March 2025 it was put by leading question to the offender that he would like to say how sorry he is for the offending in October 2022. The offender is illiterate and given the evidence was taken by way of three-way AVL link I accept it was difficult for counsel. The evidence continued, again in response to a leading question that the he was very sorry for what happened, he wished it had never happened and that it was no one else’s fault but his.

68. The evidence continued that the offender had been on parole and on the bivudal (or “bupe”) programme. He was removed from that programme as he arrived about 15 minutes late for a dose. His mental health thereafter took a downwards spiral and in the period leading up to the offending he was experiencing “low” mental health, a depressive state and was very confused. It would seem that the offender was also concerned that he was being targeted by those within the drug milieu of Wagga Wagga.

69. When asked how he felt about the break and enter offending he answered to the effect that it was a complete disgrace and that he has trouble sleeping at night knowing that he offended as he did in circumstances where he knew Mr Storch and that he had worked on the farm. It was only after his arrest and his medication regime was re-established that he realised what had happened.

70. The evidence continued that the offender’s right knee was injured in the course of the arrest. I specifically asked counsel as to whether he was submitting as to extra-curial punishment. The answer was in the negative, but the evidence as to the injury to the knee went to the submission that custody will be more onerous. I accept that the offender has undergone a number of surgical procedures on the knee and further surgery is proposed. I accept that that will more custody more onerous for him.

71. When asked how he thought the police would have felt during the siege the offender said that they would have been scared, he felt very silly and stupid, he cannot believe that it happened, he wished none of it had happened and he has nightmares about the matter.

72. The offender was cross-examined. He was asked what has he done to make amends for the offending. Mr Metcalf objected on the basis that the offender is in custody, and the jewellery and firearms were recovered. The offender is illiterate and in custody. Realistically there is very little he can practically do to make amends. The offender denied that he was now expressing he was remorseful because it may lead to a lesser sentence.

73. Mr Metcalf put in brief oral submissions on 31 March 2025 that I could find remorse on balance. The Crown reminded me of the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. As the risk of repetition, the offender is illiterate and it is obvious from the other material that he has had a limited formal education. It was obvious to me that he was having difficulty expressing himself.

74. However, ultimately I am persuaded on balance that the offender is remorseful. The remorse was expressed in the offender’s words and not in the words so often heard in sentence proceedings, “I am very remorseful”, which usually gives the impression of it being learnt by rote. It would have been better had the issue been raised at the initial sentence hearing, but that said, I am nevertheless of the opinion that the offender is entitled to some consideration for remorse.

75. Further, a volume of written material was admitted into evidence. The offender relies on the report of Dr Andrew Ellis, forensic psychiatrist, which is exhibit 1 on sentence.

76. Initially I note at pages 1 and 2 of the report Dr Ellis details domestic violence type offending. For the purpose of dealing with the matters before me I ignore details of any alleged offending other than what is included in the matter before me.

77. The report notes (page 3) that the offender is a 31-year-old Australian male with no dependents. Prior to his arrest he was living alone at premises in Wagga Wagga. He was working at landscaping and cleaning and was taking oral buprenorphine. However, he was discharged from that program for failing to attend appointments. He was not seeing a mental health professional.

78. The offender has been in custody since October 2022. He was initially admitted to the secure psychiatric unit at the Wagga Wagga Base Hospital for approximately three weeks, where he was given injections of psychotropic medication. He was then remanded to the Junee Correctional Centre where he was seriously assaulted, which resulted in skull and eye socket fractures. At the sentence hearing Mr Metcalf tendered relevant medical records in this regard. In answer to a question by me, counsel indicated that the material relating to these injuries go to a finding that custody will be more onerous for the offender, justifying a finding of special circumstances. I am prepared to make the finding that custody will be more onerous. On this issue, there is also the issue of the injury to the offender’s knee.

79. The report goes on to set out (page 4) that the offender has nightmares including of being kidnapped and related to the sexual abuse he suffered when he was placed in juvenile detention. The offender recounted to the author of the report that memories of the abuse “tips me off” and when he thinks about the abuse he feels “dirty, yuck and unsafe”. The offender told the author of the report that these feelings drove him to use it substances. There were no current symptoms consistent with delusions or hallucinations, although he had experienced hallucinations in the past when he was using substances.

80. Further, the report sets out that the offender was diagnosed with attention deficit hyperactivity disorder as a child. The offender also reported to Dr Ellis that he had been prescribed the antipsychotic medication quetiapine and the antidepressant medication mirtazapine in the past. He has been admitted to the psychiatric unit at the Wagga Wagga Base Hospital on a few occasions, commencing in his late teenage years.

81. The offender gave an account to Dr Ellis of attempting to shoot himself during the siege before his arrest, but he had not previously made any suicide attempts. He said that at times he had self-harmed when in custody.

82. According to the report the offender began smoking tobacco the age of 23 and stopped 26. He has never regularly consumed alcohol. He used cannabis between the ages of 15 and 23 and experimented with ecstasy (MDMA). He had used heroin intravenously from the age of 21 and had used crystal methamphetamine (ice) from about the same age.

83. Under the heading “background and development” (page 6) the report sets out that the offender does not know his father. He was raised by his mother and maternal grandparents in Housing Commission accommodation. He slept in the same bed as his mother until he was 10 years of age as he was scared of the dark as a child and generally felt unsafe. He attended a number of primary and high schools and was “kicked out” of every school he went to because of behavioural issues.

84. The offender gave a history of being sexually abused by an adult male neighbour when he was four years of age. He was also sexually abused when he was housed in juvenile detention at age 15. He moved out of the family home at age 15 and has lived on and off with his family and his “fly in fly out” work friend. He has lived in Cairns and in Sydney briefly on occasions.

85. The offender gave an account of not sleeping well, using heroin and “ice” and would often “pass out”. Further the offender gave an account of being in a distressed mental state over this period of time and that he began to believe that someone had taken out a “hit” on him. He believed this was drug dealers around the town. He had experienced a heightened lack of trust in others and believed the drug dealers would shoot him. He had “heard around town” that there was the threat to his life. He could not describe in detail what this constituted. He would often barricade himself in his room, worried that people were coming to get him.

86. In respect of what Dr Ellis describes is the second set of allegations (I take this to mean the offending at the Ayton Vale Farm) the offender gave an account of becoming increasingly paranoid about drug dealers around town. The offender had worked at the property 15 years ago and knew that there were guns there. He intended to take the guns in order to protect himself from drug dealers. In respect of the siege, the offender gave an account that he “just wanted the pain to end” he thought that no one believed him and he did not want drug dealers or corrupt police to have the satisfaction of getting him. He was wanting to end his life at this time.

87. Under the heading “mental state examination” Dr Ellis sets out that there was no evidence of formal thought disorder. His external emotional expression showed full range and variability. There was no evidence of depressive cognitions, delusions or hallucinations. He reported a persistent sense of vigilance and traumatic memories of sexual abuse from his childhood and he had a poor self-image.

88. Dr Ellis’ diagnosis is that the offender meets the criteria for substance use disorder, primarily opioids and stimulants. The disorder is currently in remission in a controlled environment whilst on replacement therapy. Further, Dr Ellis (page 9) maintains “It is likely that he meets criteria for post-traumatic stress disorder, and as trauma has impacted during his crucial developmental years this has also pathologically impaired personality development.” Dr Ellis goes on to say that it is likely that the offender meets the criteria for personality disorder with antisocial and borderline features. Further, Dr Ellis maintains it is not likely that any cognitive impairment the offender has would rise to the level of a clinical disorder but may be a clinical concern as they could impact on the expression of his other disorders and response to treatment.

66. The report deals with fitness to be tried which is not a relevant consideration in these sentence proceedings. However, at p 11 of the report Dr Ellis says:

“As noted the opinion is that he has a mental health impairment characterised by two conditions of post-traumatic stress disorder and substance induced psychotic disorder. The post-traumatic stress disorder is chronic and presents across the period of alleged offending. The substance induced psychotic disorder is more episodic, however by his self-report was present across the period of the allegations. The evidence he gives is that he was admitted to a psychiatric unit immediately following his arrest and required antipsychotic medication, and this would support at minimum the offences close to this time were impacted by psychotic symptoms of delusions and hallucinations”.

90. Clearly, this establishes a causal connection between the mental health conditions and the offending so far as the siege is concerned. I did not understand the Crown to take issue with this.

91. On this issue I note that in the penultimate paragraph (page 12) Dr Ellis sets out that by the time of the siege the offender was suicidal. The offender reported that he continued to believe that he is being persecuted and wanted to end his life under his own terms rather than allow the syndicate and corrupt police to kill him. Dr Ellis opined that this would indicate the offender’s ability to reason with a moderate sense of composure was impaired given that he was experiencing suicidal ideation and required psychiatric hospitalisation an involuntary treatment immediately after the events.

92. I note that at the sentence hearing Mr Metcalf did not submit that there was a causal connection between the mental health conditions and the offending so far as the Aggravated Break Enter and Steal and Steal Firearm offences were concerned. However I note that Dr Ellis (page 12) says that it is likely that the offender’s delusional beliefs impacted on his knowledge of wrongfulness that he felt he was required to acquire a firearm or firearms to defend himself from lethal assault and ordinary means of protection were not available to him.

93. Clearly the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened. The relevant part of the decision is:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

94. I am satisfied that the mental health conditions mean that the impact of general and specific deterrence are reduced. The moral culpability of the offender is also reduced. Because of the causal connection between the offending and the mental health conditions in respect of the s 33B charge the first four dot points in De La Rosa attain more weight.

95. At the sentence hearing the Crown submitted to the effect of that it is difficult to disentangle the mental health conditions from the offender’s use of illicit substances. I understood the submission to continue that the disorder under which the offender was labouring was induced by the ingestion of substances, which the offender chose to take. It occurs to me that the answer to that submission is as I put to the Crown at the sentence hearing a drug induced psychosis remains a psychosis.

96. At the sentence hearing the Crown, to use Mr Metcalf’s euphemistic expression, “rather boldly” put that given that Dr Ellis opined (p 9 of the report) that “it is likely he would meet criteria for a personality disorder with anti social and borderline features” enlivens the fifth dot point in De La Rosa giving rise to protection of the community. I firmly reject the Crown’s submission in this regard. The expert material does not reach anywhere near the height required for that fifth point in [177] of De La Rosa to be enlivened.

97. Mr Metcalfe in his written and oral submissions puts that the principles enunciated by the High Court of Australia in Bugmy v The Queen [2023] HCA 37 are enlivened therefore reducing the offender’s moral culpability. On this aspect it is worth repeating something Dr Ellis says at p 9 of his report, namely:

“…it is likely that he meets criteria for post traumatic stress disorder, and as trauma has impacted during his crucial developmental years this has also pathologically impaired personality development.”

98. The Crown submits that the principles enunciated in “Bugmy” are not enlivened as the issues arise from discreet traumatic events rather than a history of profound deprivation suffered in the offender’s formative years. The Crown relied upon the decision of Nasrallah v R [2021] NSWCCA 207, in particular at [8]-[14] and [20].

99. In Bugmy the plurality at [43]-[44] said:

“The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

100. Bell P (as the Chief Justice then was) in Nasrallah said at [8]-[14]:

“Assuming, without deciding, the correctness of Brereton JA’s observations in Hoskins as to the Bugmy plurality’s use of the word “profound” in conjunction with deprivation, the use of that word was to emphasise and describe a very high degree of deprivation. There is no doubt some correlation between the nature, degree and extent of an offender’s deprivation as a child and any reduction in the moral culpability that would otherwise attach to the offender’s conduct. As the plurality said in Bugmy, “[a]n Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.”Their Honours were there concerned with the significance of “an offender’s background of deprivation in mitigation of sentence”. Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence.

On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. This does not mean that “full weight” has not been given to Bugmy considerations.

When the plurality in Bugmy spoke of “deprivation” and “profound childhood deprivation”, their Honours were referring to the deprivation of an environment in which a child was not exposed in a sustained and endemic way to “abuse of alcohol and alcohol-fuelled violence”, noting that such an environment will often be the product of extreme social disadvantage in terms of the absence of education, employment and opportunities.

An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse. Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated for, as has been observed, “while courts have applied the Bugmy principle in cases where offenders have had a wide range of adverse childhood experiences, in each instance, the circumstances of the offender’s deprivation occurred over a lengthy period of time and generally within the offender’s family”. As Simpson AJA said in Irwin, the “Bugmy principles … are concerned with the impact on sentencing of a historyof disadvantage and deprivation” (emphasis added).The boundaries of Bugmy have not been clearly or definitively delimited.

That is not to say, however, that the consequences of sexual assault, including a single sexual assault, on a child may not produce profound and highly detrimental impacts on the child so assaulted. Nor is it to say that such impacts may not be relevant, by way of mitigation, in the sentencing of a child so abused who subsequently offends, as was held by the Victorian Court of Appeal in R v AWF, in which Chernov JA said:

‘the fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear.’

In the same case, Ormiston JA, having made reference to a number of New South Wales authorities in which an offender’s sexual abuse as a child was seen as relevant and taken into account in mitigation of moral culpability, observed that:

‘One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.’

AWF, a pre-Bugmy decision,was referred to by McCallum J (as her Honour then was) in JL v R. There, the sentencing judge, whose decision was upheld, did not accept that the offender’s sexual abuse as a child lessened his moral culpability other than to a minor degree associated with the link between that abuse and the offender’s abuse of alcohol.

In the present case, the evidence relied upon to attract the operation of the Bugmy principles is set out in the psychologist Mr Albassit’s report, extracted in extensive detail in Hamill J’s reasons. That evidence discloses an attempted sexual assault by the applicant’s uncle one month prior to her 14^th birthday and a kidnapping by a person she had met though an internet ‘chat room’, accompanied by depression, trauma, rebellion and a growing association with older people doing ‘bad things’, leading to her being sent by her mother to Lebanon to get away from her spiralling lifestyle in Australia. This in turn reinforced feelings of neglect and disengagement. The evidence does not, however, disclose an environment of systemic or endemic sexual, physical or psychological abuse, alcoholism and substance abuse or of any particular social disadvantage or deprivation. In this sense, the applicant’s childhood history, although sad and no doubt traumatic for her, is far removed from cases in which Bugmy has been applied where there has been a history of child sexual or non-physical abuse or other environmental dysfunction.”

101. Hamill J in his dissenting judgment in Nasrallah repeated the observation of Brereton JA that there “is no magic in the word profound”. Further, Hamill J went on to say (footnotes omitted) at [111]:

“…The relevant consideration is the impact of the childhood trauma on the applicant’s development and the course her life took as a result. It is this that informs a proper assessment of the offender’s moral culpability. This is not to extend or “to consider the precise boundaries of the Bugmy principles.”Rather it is to recognise the analogous situation of an offender whose life was shaped by childhood trauma, an analogy recognised as long ago as the decision in R v Henry.^”

102. Price J in his judgment (agreeing with Bell P, as the Chief Justice then was) in Nasrallah said at [50]:

“The material before the sentencing judge did not mandate a finding that the Bugmy principles were engaged. It was not a binary question. It would have been open to the judge to make such a finding. As in many aspects of the difficult task faced by sentencing judges, reasonable minds might differ.”

103. Noting the extract from the report of Dr Ellis set out at [97] of these reasons and noting that the decision is something about which reasonable minds may differ, I do find that the principles enunciated in Bugmy are enlivened reducing the offender’s moral culpability. However, given the state of the authorities, no reasonable criticism can be directed to the Crown for making the submission that it did.

104. However, even if I am incorrect in finding that “Bugmy” is enlivened, nevertheless, noting what Bell P (as the Chief Justice then was) said in Nasrallah at [12] (part of the extract from the decision set out above), the sexual assault suffered by the offender as a young person remains a significant matter in mitigation. The practical effect of whether Bugmy is enlivened or consideration is given to the sexual assault as a factor of mitigation is that any difference in the ultimate sentence imposed would be negligible bordering on the non-existent.

105. I accept that in all of the circumstances, in particular that the offender has been in segregation and in particular noting the contents of the report of Dr Ellis, that custody will be more onerous for the offender. In this regard I also note the few pages of the Justice Health medical records tendered that confirm the substantial injury received by the offender in custody.

106. I have read and considered the testimonial references tendered on behalf of the offender. Mr Johnston sets out that the offender’s use of substances has led him into conflict with the law. Both referees set out that the offender wishes to commence a new and law-abiding life upon his release.

107. Given the criminal history of the offender and what appear to be unresolved mental health issues I am unable to find on balance that the offender is unlikely to re-offend. That is essentially a neutral finding.

108. Provided the offender receives appropriate treatment and counselling for his mental health and substance abuse issues his prospects of rehabilitation are reasonable. I note that he has some family support. He has employment available to him on release.

General Remarks

109. The remaining area of dispute between the parties was the commencement date of the sentence. Mr Metcalf on behalf of the offender put that the sentence for the present set of offending should commence three to six months after his arrest on 7 October 2022. At the sentence hearing I gave a preliminary indication that I was contemplating 7 April 2023. I understood Mr Metcalf to submit that that was within the appropriate discretion.

110. However, the Crown argued that the commencement date should be no earlier than 27 June 2023 but some time before 26 December 2023. At paragraph 33 of the written submissions the Crown sets out that on 16 November 2022 at Wagga Wagga Local Court the offender was sentenced to imprisonment to a non-parole period of 6 months, balance of term 4 months, total sentence 10 months to date from 13 October 2022. The 6 months non-parole period expired on 12 April 2023. This was in respect of a charge of Assault Occasioning Actual Bodily Harm committed on 20 October 2021.

111. Then on 10 July 2024 the offender was sentenced to a non parole period of 6 months, balance of term 3 months, total sentence 9 months which commenced on 27 June 2023 and expired on 26 March 2024. That sentence was imposed in respect of a charge of Contravene Apprehended Violence Order committed on 4 October 2022, which I note is the same date as the Aggravated Break Enter and Steal charge.

109. There is an issue of totality to be considered, not only in respect of the sentences to be imposed for the offending presently under consideration but also for the other sentences referred to immediately above. I note in particular that the Contravene AVO matter was committed on 4 October 2022. In all the circumstances I maintain that 7 April 2023 is an appropriate commencement date for the sentence.

110. I will need to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

114. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, the maximum penalties, the standard non-parole period specified in respect of the Aggravated Break Enter and Steal charge clearly there must be a sentence of imprisonment imposed in this matter. No contrary submission was put on behalf of the offender.

115. However, there must be a relatively generous finding of special circumstances. There will need to be an extended period of supervision in the community to ensure that the offender continues with relevant counselling and treatment for his mental health issues and substance abuse issues. There is also the issue of ensuring that the offender is properly reintegrated into the community. There is also the issue of partial accumulation relating to the sentence imposed in the Local Court on 16 November 2022, i.e. the non-parole period expiring 12 April 2023.

116. Mr Metcalf did however put in his written submissions, and to my memory maintained the position in oral submissions, that the sentence would be such that the non-parole period would be nearing its conclusion. As I put to counsel at the sentencing hearing that submission was somewhat optimistic.

117. This is an appropriate matter for the imposition of an aggregate sentence. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are:

1. In respect of the Aggravated Break Enter and Steal charge contrary to s 112(2) of the Crimes Act, taking into account the Form 1 document, a non-parole period of 17 months with a balance of term of 10 months making a total sentence of 2 years 3 months indicating a starting point of 3 years;

2. In respect of the charge of Steal Firearms contrary to s 154D(1) of the Crimes Act a total sentence of 2 years 3 months indicating a starting point of 3 years;

3. In respect of the charge of Use Offensive Weapon to Prevent Lawful Apprehension, a total sentence of 3 years indicating a starting point of 4 years; and

4. In respect of the charge of Possess Shortened Firearm contrary to s 62(1)(b) of the Firearms Act a total sentence of 1 year 10 months and 15 days indicating a starting point of 2 years 6 months. The precision to the number of days is to comply with the decision in Sampson v R [2025] NSWCCA 25.

118. If separate sentences were imposed there would need to be substantial concurrency so far as the offences of Aggravated Break Enter and Steal and Steal Firearms charges are concerned given that the offences were committed as the one criminal enterprise. However, given that the offender went to the premises to obtain the firearms (see the report of Dr Ellis) there should not be total concurrency.

119. However, in respect of the charges relating to the siege, i.e. the charges of Use Offensive Weapon to Avoid Apprehension and Possess Shortened Firearm, the sentences would to my mind be wholly concurrent given that the shortened firearm was the offensive weapon used to commit the offence the subject of the s 33B charge.

Orders

120. In respect of the offences to which the offender has pleaded guilty he is convicted.

121. In respect of the charges of Not Keep Firearm Safely and Possess Ammunition Without a Permit I record convictions and pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999 impose no further penalty.

122. The offender is sentenced to an aggregate sentence of 4 years 6 months with a non-parole period of 2 years 10 months.

123. The non-parole period will commence on 7 April 2023 and will expire on 6 February 2026.

124. The balance of term of 1 year 8 months will commence on 7 February 2026 and will expire on 6 October 2027.

125. The offender will be eligible for release to parole at the expiration of the non-parole and I recommend that release.

126. I recommend that any release to parole be conditioned that the offender be supervised by the Department of Community Corrections and obey all reasonable directions of that service relating to ongoing treatment and counselling for mental health issues and substance abuse issues.

127. The sentence indicates a finding of special circumstances. The non-parole period is approximately 63% of the total sentence. The ratio between the non-parole period and the total sentence is slightly lower than what might be otherwise appropriate because of the issue of partial accumulation on the sentences imposed in the Local Court.

128. The offender has been in continuous custody since his arrest on 7 October 2022. As a result of the sentence I have imposed today, the total effective sentence the offender is serving dates from 7 October 2022 and will expire on 6 October 2027, which is exactly 5 years. The actual period in custody, presuming the offender is released at the expiration of the non-parole I have specified dates from 7 October 2022 and expires on 6 February 2026, which is a period of 3 years 4 months. The actual period in custody is 66.6% or two-thirds of the total effective sentence.

129. I direct a copy of the report of Dr Ellis be forwarded to the Department of Corrective Services with the relevant warrant.

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Decision last updated: 09 April 2025