R v Craig John Drew

[2006] NSWDC 190

CITATION:	R v Craig John Drew [2006] NSWDC 190
HEARING DATE(S):	4/7/06, 10/7/06 & 11/7/06
JUDGMENT DATE:	8 December 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted of 3 offences of robbery with offensive weapon (Counts 1,2 & 4).; Sentenced to 3 yrs to expire 17/6/08. Set additional term of 1 year to expire on 17 June 2009.; Count 3 - Convicted of offence at Mortlake being armed with offensive weapon assaulted Christopher Pascal with intent to rob and wound Christopher Pascal – sentenced to a NPP 4 years to date 18/6/06 and to expire 17 June 2010. ; Set additional term of 2 years 17 June 2011.
CATCHWORDS:	Criminal Law - Sentencing - after trial - robbery being armed with offensive implement (x3), assault with intent to rob being armed with offensive implement, with wounding - objective criminality - standard non parole period - reasons for not applying - role of victim impact statements - special circumstances.
LEGISLATION CITED:	Crimes (Sentencing Proceedings) Act 1989
CASES CITED:	R v Gladue [1990] 1 S.C.R. 688 at 80 R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1NSWLR 594 R v Hayes [1984] 1 NSWLR 740) R v Rause Unreported NSWCCA 8th Aug 1992 R v Buttworth [1983] 1 NSWLR 658 at 625 1 NSWLR 658 at 625 per O’Brien CJ of Cr D R v Henry (1999) 46 NSWLR 346
PARTIES:	Regina Craig John Drew
FILE NUMBER(S):	11/01/2005
COUNSEL:	Offender: B. Glennon Cr: S. Apps

Subject to Crown Appeal to the Court of Criminal Appeal

SENTENCE

1 HIS HONOUR: This case more clearly than many others reveals the savage consequences undisciplined drug addiction imposes upon both victim and offender. Regrettably, many members of society are addicted to drug or alcohol but they are able to exercise sufficient discipline to keep their addiction within the limits of their budget and/or the confines of their home. Where addiction triumphs over established social boundaries and taboos, what is otherwise a personal health problem becomes antisocial criminal conduct.

2 Craig John Drew is a heroin addict. In 2004 however he was able to attend weekly meetings with the Exodus Foundation Men’s Group. He was well liked and appears to have been well supported by others. In Christmas of 2004 he donated a number of Christmas presents to be given to needy children at the annual Exodus Foundation Christmas party.

3 By contrast between 11th and 13th June 2005 he was severely addicted to heroin. His sense of self discipline disintegrated between those dates, when he robbed three bus drivers and seriously wounded a fourth when attempting to rob him. The money he captured was to feed his drug addiction.

4 On the other hand Robert Baraclough and Christopher Pasquale were two bus drivers confronted by Craig Drew. Robert Baraclough now experiences a level of stress so severe that it incapacitates him. He is now unable to work as a bus driver. Craig Drew’s robbery of him was a significant event in contributing to that stress.

5 Christopher Pasquale now carries a 16 per cent impairment of his upper limb function as a result of being wounded by Craig Drew’s knife. He is depressed, has flashbacks, has gone backward financially. Both victims suffered as a consequence of the criminal offending of Craig Drew who engaged in antisocial criminal conduct in response to his drug addiction. The consequences for those men was dire.

6 Today Craig Drew must face the consequences for his criminal offending brought about by that antisocial response undertaken to satisfy his drug need. His criminal offending has been reviewed by a jury who was satisfied beyond reasonable doubt that between 11 June 2005 and 13 June 2005 on three occasions, being armed with an offensive instrument, he had robbed three different bus drivers of varying sums of money in cash and also that on 13 June 2005 at Mortlake, again armed with an offensive weapon, namely a knife, had assaulted Christopher Pasquale with intent to rob him of cash and that he, at that time of that assault, wounded Christopher Pasquale.

7 As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these offences before this Court committed by this offender, harming these victims in this community. R v Gladue [1990] 1 S.C.R. 688 at 80. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to the offender. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly.

8 Before any sentence can be made there are likely to be technical question relating to deterrence, discounts, whether special circumstances are to be found, whether there is a standard non-parole period attracted and, if so, the length of the parole period and finally of course the ultimate length of the term of imprisonment that is to be imposed.

9 None of those can be commenced until the primary facts are determined. That determination must be consistent with the findings made by the jury.

10 What weight needs to be given to all these matters against the imperative that all sentencing should have as it’s primary focus the protection of the community, would also need to be determined. See R v Cuthbert [1967] 2 NSWR 329; R v Rushby [1977] 1NSWLR 594 and R v Hayes [1984] 1 NSWLR 740).

Facts.

11 Between 11 and 13 June 2005 Craig Drew targeted four State Transit Authority buses plying routes in inner suburban Sydney, primarily inner west. Drivers having finished the outgoing journey would turn their empty buses around for the ingoing journey. The drivers would rest for a few minutes and at the appointed timetable moment would commence the ingoing journey. At an early stop the offender would board a still empty bus approaching the driver as though to deal with him. He would be dressed in a garment usually with a hooded top or be wearing a baseball cap, sunglasses and loose fitting clothing, thereby making accurate description of him difficult. In his right hand he would be armed with a knife which he produced immediately upon entry into the bus. The production of the knife was accompanied by a demand for money from the till. In the three robberies immediately upon receiving the booty, he would depart through the open front door before the driver had any chance of closing it.

12 On 13th June the first attempt at robbery was unsuccessful. The offender followed his usual procedure, boarding the bus, producing the knife and making his demand. The accused moved forward to secure the money. The driver, not surprisingly, at the accused movement, became fearful, believing he may be attacked. I am satisfied that there was no intention at that point in time by the offender to attack. The driver swung the cash tray; the offender lunged forward with the knife wounding Pasquale’s outer left forearm. In the melee the offender lost his sun glasses, coins spilt on the floor, the accused sought to collect his sunglasses from the floor saying, “I’ll kill you” or words to that effect. Pasquale tried to kick the offender but did not connect. The offender decamped, running from the bus towards a rendezvous point. He left behind his glasses.

13 When Pasquale was looked at by doctors at the Concord Hospital there was evidence of complete left ulna tear nerve injury at the forearm level with weakness of the ulna inverted hand muscles and numbness of the volar and dorsal aspects of the ulna and one and half fingers of the left hand. There was a repair done under microscopic control. In June 2006 Pasquale had been assessed as having lost 40 per cent of his ulna nerve function which equates to a 16 per cent upper limb dysfunction. His prognosis is to have always some degree of loss of manual dexterity in his left hand as a result of this injury.

14 The first robbery at Abbotsford yielded $180. The second at Canterbury $100, and the fourth at Abbotsford $120 or figures in that region. The attempted robbery at Mortlake yielded nothing.

Objective Criminality.

15 From the facts as he finds them to be sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of this offender. That is done by comparing objectively the criminality exhibited in all of the incident offences with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact on the overall sentencing outcome.

16 Robbery constitutes a crime against the person and against property. In this case the person having custody of the property was not it’s owner. In that sense the driver’s employer, the State Rail Authority, is also a victim. The crime against the person is constituted by putting that person in fear through threat of, or through actual violence to such a point that the person surrenders, against his will, property to a robber. In this case the offender secured advantage to his violence by presenting a 25 centimetre knife. While I suspect that the State Rail Authority has a policy requiring their drivers to surrender property without struggle in such circumstances, each of the drivers experienced fear to a point of surrendering the items anyway. The offender has demonstrated to each of his victims an intention of being ruthless by menacing each with the exposed blade of the knife.

17 Gleason J, when Chief Justice of New South Wales, encapsulated the essence of the legal wrong done by robbers and the reason why a substantial punishment is required in R v Rause, Unreported NSWCCA 8th August 1992. His Honour said,

“One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect of private property, they are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect”.

18 In respect of this offending conduct there are aggravating features. Each victim was vulnerable, not only because each was alone, but each was contained behind a barrier that hampered his freedom to respond. It must be obvious from the modus operandi that a degree of thought and planning had gone into the execution of each robbery. Part of that planning was to ensure that the victim was at his most vulnerable, that is, that the bus was empty.

19 The wounding of Mr Pasquale resulted in permanent impairment to him. Whilst wounding is an element of the offence a wound which causes permanent impairment must be viewed as an aggravating feature. One measure of criminality is the degree of harm caused, the greater the harm the more serious the offence. See R v Buttworth [1983] 1 NSWLR 658 at 625 1 NSWLR 658 at 625 per O’Brien CJ of Cr D.

20 In one sense the aggravating feature of a permanent wound illustrates this point but on the other hand the sums of money taken total to less than $600 on my account. The motive for the robberies was to obtain money to feed a drug addiction. While drug addiction may be a matter that can be taken into account as a subjective feature, its impact on the objective seriousness of the armed robbery offences and the attempted armed robbery offences in this case must be minimal. There is no evidence of any desperation because of a biochemical withdrawal symptoms wracking the body of the offender. The case presents as one where the offender was simply maintaining a cash flow through crime to sustain a drug habit.

21 As was said by an eminent Chief Justice in South Australia in respect of a heroin addict convicted of armed robbery in that State in a similar type of case, is accepted as and a proposition equally applicable in New South Wales,

“It must be made clear beyond misunderstanding that when a person engages in robbery while armed with a weapon, he can expect when apprehended and convicted a long sentence of imprisonment. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present. In this case mitigating factors are few. The appellant has a criminal record, he is addicted to heroin. One feels sympathy for a person who has become entangled in drug addiction but the Courts cannot treat addiction as an excuse or even as a mitigating factor in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime they must expect to receive the same severe punishment as would be received by others”.

22 When his Honour spoke of mitigation there or the absence of mitigation, he was, of course, referring to the objective seriousness of the offence.

Mid range of seriousness.

23 An issue that needs to be determined is whether the assault with intent to rob with wounding is an offence that falls within the mid range of seriousness for offences captured by Item 11 in the table in Division 1A Standard Non-Parole Periods of Part 4 sentencing procedures for imprisonment contained in the Crimes (Sentencing Proceedings) Act 1989.

24 In the normal course of events, “attempts” do not qualify for standard non-parole periods. However in the instance which this offence may constitute an attempted armed robbery it has clear cut choate elements, in particular, (a) assault, (b) being armed and (c) wounding. True, at the time of the assault there must have been an attempt to rob or at least an intention so to do, but the assault and the wounding are choate criminal acts. This offence is one specifically created by s 98 and therefore one properly falling within a class of offences captured by Item 11 in the Table in Division 1A.

25 In assessing the objective seriousness of the offence for the purpose of considering whether it reaches a mid-range of seriousness I have had regard to it as though it stood alone. I paid no regard to it’s position in the sequence of offending conduct. I note s 98 applies to both dangerous weapons and to offensive instruments (see definition “offensive instruments”). Generally speaking a knife, lethal though it may be, will be regarded as attaching less criminality to an offence than the use of a dangerous or prohibited weapon. That is because of the potentiality for dangerous or prohibited weapons in the hands of criminals to create greater carnage. It is also of significance that the intended robbery was not consummated. The criminality of the wounding accompanied by the intended loss of property must be a greater offence than the criminality of the same order but where the robbery is completed.

26 The aggravating features - planning, the seriousness of the wound and the vulnerability of the victim, alone and trapped behind the barrier, certainly elevate the seriousness of the offending. The wounding occurred in circumstances where the victim initially moved. I am satisfied the offender did not intend to wound the victim until such time as the victim moved. I am satisfied thereafter that the movement of the knife was an intentional response and therefore criminal. However, the injury was not coldly gratuitous. There was only one victim put at risk.

27 The law regards drivers of public vehicles as being vulnerable and requiring the protection of the sentencing courts by the application of specific deterrence for like-minded would be offenders.

28 Not without hesitation have I determined this offence falls below the mid range of seriousness. I do regard it as approaching a mid range. The objective criminality of each of these offences is of sufficient seriousness to warrant a substantial full time custodial sentence.

Victim Impact Statements.

29 I have received three victim impact statements from three of the drivers. The material contained in each of the victim impact statements is not sworn evidence and has not been subject to cross-examination. To the extent that any opinions are expressed in the statement, I recognised those opinions are not of a qualified expert. The victim impact statement coming as it does from each of the primary victims may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effect upon each.

30 The function of statements such as these is firstly to give to the victims the opportunity of being heard in sentence proceedings by publicly identifying the impact of the trauma visited upon them by the actions of an offender.

31 Secondly it enables the sentencing proceedings to assist victims as they move to some closure of grief, resentment and brooding arising from the criminal conduct of an offender.

32 Thirdly, the victim impact statement contributes to an offender, at least hearing at first hand and perhaps gaining an insight into the impact his offending conduct had upon each of his victims.

34 Finally the victim impact statement ensures that the Court has a continuing consciousness of the impact violent crime has upon those ordinary men and women who are it’s victims. As such, a victim impact statement plays an important part in the administration of criminal justice. Robert Baraclough writes this:

“Severe trauma, stress, weeks off work, anxiety, real difficulty sleeping, wary to venture out of doors after dark, now have a doctor monitoring me, had to eventually resign from job due to this abuse and real fear for my personal safety. Scared now of strangers”.

35 There is attached a special report which might shed some insight actually into the life of a bus driver. It is a report from his doctor. It also indicates that this is not the only offence that has impacted upon him. The doctor says that he has been treating Robert Baraclough who is 62 years of age for about two and half years. The doctor says he has been slowly deteriorating in his work and has had several very stressful things happened which brought back symptoms of an old illness.

36 On 12 June 2005, that is the offence with which I am dealing, he was held up with a knife while working and robbed at Canterbury. Two months later he was punched in the face by a passenger while working at Rockdale and on 4th May this year he was threatened with a gun at Campsie. He says he has also been under frequent verbal abuse which he says all bus drivers get. As a result of all of that, but adding as I said earlier, the contribution of this offence, he is now severely incapacitated and unable to work further. He has been certified as permanently medically unfit to work.

37. Mr Prasad says this:

“The week that the incident happened to him, [and the offence against him was on 11th June, in that week on the Saturday which was 17th June], he was expected to sit for an examination towards a graduate certificate in Human Resources Management at Meadowbank TAFE. As a consequence of the incident he became extremely tensed, was unable to think and as a result failed his examination paper. It was the only one of four that he did that he failed. The incident happened at night so he is still afraid to go anywhere alone at night. He deferred his studies and hoped to continue this year. When he went this year the course was no longer offered at Meadowbank TAFE and he has to go to Ultimo, but even worse the fees had gone up from eight hundred and something dollars to $3800. Tied in with that course was his ambitions to apply for management graduate scheme which was offered by his employers. Now he sees he has to stagnate as a bus driver”.

38 The victim who was wounded, Mr Pasquale, speaks of pain and suffering from the injury, after surgery having to wear a sling all the time, even having to sleep with his arm elevated for a month, his hand remained in plaster for several months, then came physio three times a week for a year, even yet he still experiences shooting pains, numbness, weakness in his left hand. He knows now, because he has been told by doctors, that he will never be fully recovered. He experiences flashbacks, fear of another assault and he fears suspicious looking passengers when people climb on to his bus. Financially he lost penalties for nine months, that left him in debt and he had to catch up when he worked again. The injury left him so handicapped he could not tie his shoelaces or cut meat when he was eating at the table. He was unable to drive his mother around for several months because his vehicle was manual. He and his wife enjoy dancing, that had to be put on hold and he says that the assault had an impact on his whole family because his wife and children fear it will happen again. Financially he has been put back several years, he knows he is not going to make a full physical recovery, he is afraid that there may be need for future surgery and he is particularly afraid of doing the Mortlake bus route.

Subjective matters.

39 I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offences but I am also sentencing this offender for them. Each offender coming before the Court varies from other offenders who stand or have stood for sentence. Circumstances personal to the offender may offer to the Court some explanation and insight into the commission of this offence by this particular offender or some reason why a more or a less severe sentencing outcome is appropriate.

Social background and dynamics.

40 Craig Drew is 42 years old. He is the older of two children. His mother to whom he was close, died of cancer when he was aged 12. His father dealt with the grief by immersing himself in work with two or three jobs at a time. Craig Drew feels an absence of being nurtured once his mother had passed on. He has never married although he had a girlfriend who overdosed on heroin. He was in a relationship for eight years but that ended in June 2005 because he was in custody on these matters. He claims now to be close to his father. Probation and Parole could not verify that claim; nor is there anything before the Court supporting it.

Education, skill and work experience.

41 Drew left school in year 10 then aged 16. He struggled with his grades although he claims literacy. Until his mother died he had performed reasonably well but lost motivation once she had passed away. During his custody he has returned to education. He gained a forklift licence and completed a basic computer course. There is a certificate from TAFE attesting an interest in, and completion, of a portion of a clothing production course during 2005, passing four units of that certificate. Aged 16 he commenced his working career as a storeman and packer. At 17 he was a station assistant for State Rail. At 19 he was a truckies offsider. He was then a truck driver off and on for 15 years. Since his mid-thirties he has not worked much, some casual cleaning work and some work as a storeman. At the time of his arrest on the present matters his income stream came from the Newstart allowance

Health issues - physical.

42 He reports a soft tissue injury to his back, there is also some residual impairment from an old knee injury. He presents as overweight which did not appear to be the situation at the time of the robberies.

Mental health issues.

43 He did not cope well with his mother’s death. He feels there are still grieving issues to be resolved for him. He may also feel some sense of abandonment as a result of his father’s workaholic practices. John W Taylor, a forensic psychologist, diagnoses him as moderately depressed with feelings of failure, sadness and pessimism as to the future. He has sought help for his depression both inside and outside gaol. There are impulse control issues in that there appears to be a diminished capacity to regulate affect, impulse and conflict. There is an above average predisposition for substance abuse. He returned to drug using upon his release in 2003. That would appear to witness his vulnerability to drugs.

Poly drug abuse.

44 For 15 years starting in his early twenties he was a constant user of cannabis. Prior to 35 he did not use heroin but he has become an addict since then. He speaks of heroin numbing the pain and helping him to relax. He concedes that he was abusing heroin at the time of these offences. To his credit he has attended detox on some seven occasions, each time however he has returned to heroin use within a couple of weeks.

Character and antecedents.

45 Prior to his heroin addiction Craig Drew possessed a good work ethic. If one accepts 35 being the age when he became addicted he only has one Children’s Court matter, 1982 stealing, and a series of driving offences in November 1999 on his record. Thereafter when his response to his addiction problems became antisocial criminal behaviour, his record deteriorated dramatically. In March 2001 he was dealt with for two armed robberies that occurred in October 2000 and January 2001. There were also charges of demand money with menaces, using an offensive weapon to prevent his apprehension, and two counts of assault occasioning actual bodily harm. He appears to have received concurrent sentences for all of these matters that ran with concurrent sentences he had received for the robberies. The overall sentence appears to have been one of four years with, as best I can determine, a non-parole period of two and half years. His parole was completed in early 2005. This offending does not constitute any breach of his parole. At the outset of these remarks I referred to the good work he had done with the Exodus Foundation

Contrition.

46 There is nothing in the material before me suggesting any insight into, or contrition for these offences. His case was that he was not the robber and had nothing to be contrite about or display insight into. It is certain from observing him that he is not contrite and feels no need to suggest he has any insight into anything related to these robberies. Strangely, there is a psychometric assessment prepared by John W Taylor, Psychologist, three months before the trial. It was said to have been prepared “in relation to his present legal proceedings”. I am aware there are other proceedings before his Honour Charteris DCJ. Whether there was a trial in that matter or not I am unsure, although I thought there was. Interestingly the report makes no reference to the offender’s attitude to the offence or offences before me or Charteris DCJ. In those circumstances I am reluctant to accept the validity of the testing for recidivism conducted by Mr Taylor. I note the offender scores three for his criminal history, said to be an elevated score. But what criminal history did Mr Taylor take into account. Did it include the matters before me or the matter before his Judge Charteris.

47 This offender’s rehabilitation prospects must be regarded as guarded. There are several factors warranting such a prognosis:

• Apparent lack of contrition and insight;
• Repetitive offending conduct in June 2005;
• Repetitive criminal behaviour since 2001. To the extent that the recent past behaviour can be said to be indicative of future behaviour, the position does not look good;
• The offender must now spend considerable time in an environment that is counter indicated for rehabilitation;
• He has an entrenched heroin addiction problem coupled with antisocial criminal offending response to it;
• Several failed attempts at rehabilitation, particularly in respect of drugs;
• A general absence of strong family or friend network for personal support;
• Impaired impulse control revealed in psychometric testing.

48 On the other hand the picture is not entire gloomy, there are some positive indicators:

• Late onset of criminal offending, aged 35 before his first serious conviction;
• Some psychometric testing suggests a low to moderate risk of recidivism although as I noted earlier, criminal tendencies and conduct problems appear to cloud that diagnosis;
• Good use of community based resources after his last release from gaol, particularly the Exodus Foundation and the Community Restorative Centre;
• Some serious attempt to return to education and obtain skills;
• A history of seven attempts at detoxification indicating at least a desire to do something about his drug addiction;
• There is a reasonable history of employment until aged 35.

49 While there are important positives the best that can be said at this stage for the offender is that his prospects are guarded.

Setting the sentence.
Deterrence.

50 In modern Australian society there is a very extensive raft of criminal laws passed by the Federal and State Parliaments. The chief purpose of the criminal law put in place by Parliaments is to deter those who would breach the criminal provisions. Parliament does that by prescribing maximum penalties for offences for those who engage in conduct prohibited by the criminal law. Consequently when a person is sentenced for a breach of the criminal law, he or she is exposed to the possible maximum penalty provided by the statute breached. In the case of the assault with intent to rob with wounding and the offensive weapon, Parliament also puts in place a standard non-parole period of seven years.

51 Sentencing for breaches of the criminal law requires a sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalties available, the standard non-parole period and their deterrent purpose. There is also a specific deterrence aimed at individuals likeminded to the offender, who but for such deterrence would be willing to commit crimes similar to those for which this offender is being punished.

52 Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him or her from re-offending. In this case I have taken the view that each of those forms of deterrence needs some waiting in the outcome of this matter. The maximum penalty for each of the robberies is 20 years. The maximum penalty for the assault with intent to rob, plus wounding, and the use of an offensive weapon carries a maximum penalty of 25 years. As I said but a minute ago, the standard non-parole period for that is seven years.

53 This is a matter in which the guideline judgement of the R v Henry has some application. Spelt out in that case is an indicia of what one might expect in the common case of robbery. Indicia in this case does not compare favourably to the three of the eight criteria set out in Henry’s case. Namely;

i. In Henry’s case, young offender with little or no criminal history.
In this case the position is different on both scores;
ii. Limited degree of planning.

Again the planning here was carefully done and became, in fact, a modus operandi;

iii. Plea of guilty in Henry’s case against a strong Crown case,

In this case there was no plea of guilty.

I have dealt with planning, age of the offender and the question of his criminal history.

54 As for the absence of a plea of guilty, the law has always recognised that a plea of guilty acts to mitigate penalty. No such mitigation is present in this case. The offender is, of course, not to be punished for running his trial. His situation is he simply does not get the benefit of any discount for a plea of guilty, such as was envisaged in the Henry guideline judgment.

Sentences concurrent and cumulative.

55 In this case it is important that the assault with intent to rob plus wounding be recognised as the most serious of the offences with which I am dealing. That recognition is achieved by partly accumulating the sentence for that offence to the other three sentences. In respect of the three remaining offences of robbery the criminality associated with each is identical. The sentences for these three will be inflated to the degree that is necessary to take into account the question of totality of criminality as among those three. The question of totality as among the four is taken into account by the point at which accumulation commences.

Mandatory non-parole period.

56 In my analysis of the objective features of the third count in the indictment I found that upon the objective features alone the case did not reach a position where it could be said to be within the mid range of seriousness. There is nothing in the subjective features which elevates the offence to that threshold. This is not therefore an offence that attracts the standard non-parole period. However, while I note that the offence will not attract a standard non-parole period, I must nonetheless regard the standard non-parole as a benchmark. It is, of course, a non-parole period that applies to offences that are more serious than the offence that I am dealing with. Consequently it will drive upwards sentences and non-parole periods that do not reach that mark. I have noted that this offence falls slightly below a mid range of seriousness and consequently the non-parole period that I set must have some regard to that standard non-parole period.

Special circumstances.

57 This is a case in which special circumstances are appropriate for the third count, that is the assault with intent to rob count. The reasons include the age of the offender, at 42, he will be older than most offenders in custody and to some extent thereby isolated. By the time he will be eligible for release he will be approaching 45. At that age he will need an extended time resettling into the community. He has serious drug addiction issues. Frankly these are better resolved in the community than in the hothouse of a gaol culture where the prevailing ethos among prisoners is counterproductive to drug rehabilitation. If he is to return to the workforce and hopefully that would be something he would entertain, he will need the assistance appropriate to one who has been unemployed for a long term.

Custodial history.

58 The offender has been in custody since his arrest on 18 June 2005 therefore the sentences that I am imposing will commence from that date.

59 Craig John Drew, I convict you of these three offences, that on 11 January 2005 at Abbotsford being armed with an offensive weapon you robbed Sugundra Prasad of $183 in cash, the property of Sydney Buses State Transit Authority and Sugundra Prasad. You are likewise convicted that you on 12th June, that is the following day at Canterbury, whilst you were armed with an offensive instrument, namely a knife, robbed Robert Baraclough of something in the order of $100 in cash, that was likewise the property of the State Transit Authority and that on the following day at Abbotsford, again being armed with an offensive weapon, namely a knife, you robbed John Zhang of about $120 in cash that was again the property of the State Transit Authority.

60 You are sentenced for each to a non-parole period of three years to date from 18 June 2005 and to expire on 17 June 2008. There will be for that an additional term of one year to expire on 17 June 2009.

61 Mr Drew I also convict you of the offence that at Mortlake on 13 June when you were armed with an offensive weapon, that is a knife, you assaulted Christopher Pasquale with the intention of robbing him of cash and that at that time you wounded him. You are sentenced to that offence for a non-parole period of four years to date from 18 June 2006 and to expire on 17 June 2010. I set an additional term of two years to expire on 17 June 2011.

62 I note that because you have been sentenced to a minimum of more than three years you will not automatically be given parole but you will have to earn it. The Serious Offenders Review Council is the body that will determine your parole. They will take into account the way in which you behave yourself whilst you are in prison, what happens in respect of your drug addiction and what happens in terms of your prospects of re-offending before they release you into the community. The earliest date upon which you can be released is 17 June 2010.

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