R v Daniel

[2022] NSWDC 729

District Court

New South Wales

Medium Neutral Citation:

R v Daniel [2022] NSWDC 729

Hearing dates:

14 October 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 10 years 6 months with a non-parole period of 6 years 6 months.

Catchwords:

CRIME – Robbery armed with offensive weapon -

Assault with intent rob while armed with dangerous weapon – Specially aggravated B&E & commit serious indictable offence - Robbery while armed with dangerous weapon

SENTENCING - Relevant factors on sentence – many serious offences over a short period- victim impact - early guilty plea- drug use- history of trauma – totality – avoiding a crushing sentence -special circumstances

Legislation Cited:

CrimesAct1900

Crimes (Sentencing Procedure) Act 1999

FirearmsAct 1996

Cases Cited:

Afu v R [2017] NSWCCA 246

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146

Cahyadi v R (2007) 168 A Crim R 41

DPP C’th v Beattie [2017] NSWCCA 301

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59

Moodie v R [2020] NSWCCA 160

Nasrallah v R [2021] NSWCCA 207

Nguyen v The Queen [2016] HCA 17

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Gavel [2014] NSWCCA 56

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Herring (1956) 73 WN (NSW) 203

R v MAK [2006] NSWCCA 381

R v MJB [2014] NSWCCA 195

R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704

R v White [2022] NSWDC 265

R v Windle [2012] NSWCCA 222

Ryan v The Queen (2001) 206 CLR 267

Stanton v R [2021] NSWCCA 123

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category:

Sentence

Parties:

Michael John Daniel (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Booker (for the offender)
Ms N Keay, Deputy State Crown Prosecutor

Solicitors:
Legal Aid NSW (for the offender)

File Number(s):

2021/00105149, 2021/00264899

sentence – ex tempore revised

Introduction

1. For most of his life Michael Daniel has lived a law-abiding life in the community. He is now 43. He has raised a family. He was able to maintain regular work. However, during the pandemic a number of significant stresses in his life led to him taking up the use of methylamphetamine. His drug use was, in part, a maladaptive coping mechanism for anxiety, that has some genesis in childhood trauma. Whatever the cause his methylamphetamine use was the catalyst for him committing, within a period of weeks, a series of very serious criminal offences. Those offences were crudely planned, opportunistic or not well thought out. The crimes he committed are indicative of his drug use; as there were many irrational aspects to them. That fact does not and cannot mitigate; as he accepted in his evidence today. His drug use increased the risk for his victims because he was not thinking rationally.

2. All 11 victims of his crimes were left terrified and scared and it is presumed suffered some form of trauma. The fact that there are no Victim Impact Statements before the Court does not and cannot mitigate.

3. As a consequence of his crimes Daniel must spend a lengthy period in custody.

Matters for sentence

4. There are six matters for sentence and a number of matters that have to be dealt with on Crimes (Sentencing Procedure) Act 1999 Forms 1:

Western Sydney offences

1. 19 March 2021 - robbery armed with an offensive weapon, at a newsagency in Arndell Park: s 97(1) of the Crimes Act 1900: sequence 1 on a Form 1 for sequence 2.

2. 19 March 2021 - robbery armed with an offensive weapon, a machete of the McDonald’s at Wetherill Park: s 97(1) Crimes Act: sequence 2.

3. 28 March 2021 robbery armed with an offensive weapon, a machete of the McDonald’s at Mt Anan: sequence 3.

4. 31 March 2021 assault with intent to rob armed with a dangerous weapon, a shortened double barrel shotgun or imitation at Arndell Park: s 97(2) Crimes Act: sequence 4.

5. 31 March 2021 armed with an offensive weapon of the McDonald’s at Eastern Creek, s 97(1): sequence 5 on a Form 1 for sequence 4.

Wallacia Hotel and Mount Keira offences

1. 2 April 2021 specially aggravated break and enter commit serious indictable offence, robbery armed with a dangerous weapon knowing persons were there of the Wallacia Hotel: s 112(2)(3) Crimes Act, sequence 5.

2. 2 April 2021 damage to property at the Wallacia Hotel: s 195(a)(1) Crimes Act; on a Form 1 to sequence 5.

3. Assault with intent to take and then assault with intent to take motor vehicle; s 154C(2) Crimes Act: on a Form 1 to sequence 5

4. 13 April 2021 robbery armed with a dangerous weapon, an imitation shotgun at Mt Keira (victim 1): s 97(2) Crimes Act: sequence 2.

5. 13 April 2021 damage property by fire at Mt Kiera; s 195(1A)(b) Crimes Act: on a Form 1 to sequence 2

6. 13 April 2021 robbery armed with a dangerous weapon at Mt Keira (victim 2): s 97(2): sequence 3.

Plea

5. I intend to impose an aggregate sentence. The indicated sentences will each reflect a reduction of 25% to take into account the utilitarian value of the offender’s guilty pleas which were entered in the Local Court and adhered to today: s 25D Crimes (Sentencing Procedure) Act 1999. I have tried not to erode the benefits given for those pleas when formulating the aggregate sentence.

Facts

6. There are two sets of facts for sentence for the today’s matters.

Western Sydney offences

Sequence 1 - on Form 1 for sequence 2

7. About 2.15pm on 19 March 2021 Daniel rode a motorbike onto the pavement outside a newsagency in Arndell Park. He was wearing full motorcycle gear including a helmet and gloves and leathers. What he did next was captured by CCTV. He approached the owner of the business, a gentleman aged 43. He went up to the counter and asked for a carton of cigarettes. As the owner went to get them the offender reached into his bag, produced a machete, with a blade approximately 40 centimetres in length. He pointed it at the owner and started yelling and swearing. Understandably the owner was afraid. He thought he was going to be hurt. He threw the carton of cigarettes onto the counter. Daniel then yelled, “Give me all the cash, open the fucking register”.

8. The owner instead, bent down, took a metal pole from behind the counter, and raised it to defend himself. The offender ran from the store, hopped on his motorbike and rode away. The carton of cigarettes, which he took with him was valued at $196.

Sequence 2

9. Shortly after, the offender rode his motorcycle into a McDonald’s at Wetherill Park. What he did was captured on CCTV. He made an order and at the payment window and said to the 18-year-old attendant, “I want cash”. She thought he was joking and replied, “How much do you want?” He then said, “I want all of it.” As he did so, he lifted the front of his jacket, pulled out at bag and showed the machete to the attendant. She was afraid and feared for her safety. She said she could not open the door. He told her she better find of way of doing so. She began to touch buttons at random, the till opened and she grabbed all the notes. Daniel said to her, “Quickly or I will chop your hands off.” After the money was handed over, aware of the distress of the complainant who was crying, the offender said, “Sorry darling I need this for my kids.” She responded, “There are better ways to get money.” The offender said, “Yes I know but I’m struggling”. $889 was taken.

Sequence 3

10. At about 12.30am on Sunday 28 March 2021 the offender rode his motorbike into a McDonald’s drive through at Mt Anan. Again, he was wearing a helmet and full leathers. He placed his order and then went to the delivery area. He spoke to the attendant, a woman aged 19. He said, “Can I withdraw money”. After a discussion about whether or how much could be withdrawn, he took a pink handled knife from his bag. He placed the bag on the counter so that the attendant could see the knife. He told her, “Put the cash in there.” She said, “I can’t open the register.” The offender said, “Yes you can, just open it, see this, I’ve got a knife, just punch in a number”. The attendant was scared and shaking. But she did succeed in opening the drawer and handed over, or poured, cash and coins into the open bag. The offender left taking $480.

Sequence 4

11. On 31 March at about 1.40pm the offender drove his motorcycle to a brothel in Arndell Park. Again, he was wearing full motorcycle gear, including helmet, leathers and gloves. He went inside the premises and approached three women. He removed what looked to them like a shortened double barrel shotgun and pointed it at them. He yelled, “Give me cash, give me the cash”. One of the women said, “I don’t have any.” He replied, “You better get some”. He moved he gun around pointing the barrel at them. They were all terrified and thought he would use the firearm. They fled and he left the premises without taking any property and rode away.

Sequence 5

12. At 1.55pm on 31 March the offender rode his motorcycle to the Eastern Creek McDonald’s. He approached the attendant, a woman aged 17. He made a demand for cash. The attendant thought he was joking but he said, “No I’m being serious give me your money, just give it to me”. He showed her the blade of a machete in his bag. The attendant called for help and attempted to close the window. The offender put his hand on the window to stop it from closing saying, “No, no, no”. The attendant stepped away and the offender grabbed his bag and rode away. She was left distressed and shaken.

13. Police were obviously involved, and an investigation based upon comparison of CCTV footage took place.

Wallacia Hotel and Mount Keira offences

Sequence 5 - Sequence 6 & 7 on Form 1

14. At 4.20am on 2 April 2021 the offender walked into the grounds of the Wallacia Hotel. He was carrying what appeared to be a shortened double barrel shotgun. He was wearing black clothing, gloves. He carried a duffle bag. A skull mask was concealing his face and head. The hotel was closed but there were two employees inside finalising closing procedures. He removed a screen attached to the hotel’s kitchen window and entered the kitchen area. He was seen by those inside on the CCTV display. He used something, an implement to crack the glass doors. He then used the shotgun to smash a hole through the glass. He went inside the premises and held the gun to the heads of each of the two employees demanding money and the keys to a 2013 Holden Commodore Clubsport vehicle was parked outside. That car was valued at approximately $45,000.

15. He forced both employees to the ground. He put the barrel of the shotgun into the back of the head one of them. He left with $34,000 and the car keys. He returned soon after and demanded that the owner of the car help him start the vehicle. After the owner did help start it, the offender said to him, “You just saved your life bro”. He drove off in the car. Police were called but were unable to find the car.

16. In the intervening period the offender took steps to disguise the car by obtaining vehicle registration plates, from a former friend, He then drove to the Mt Keira area. He drove there with Ms White a woman he had only recently met. She was a fellow drug user: see below at [75].

17. At Mt Keira he tried to disguise the vehicle taken by spray painting it to look like the vehicle from which the plates had been taken. At some point the kill switch on the vehicle was activated and he could not get it to start.

18. By this time, it was the early hours of the morning of Tuesday 13 April. At the same time a gentleman aged 66 was doing some work nearby. He had a backhoe on a trailer attached to his prime mover. He was securing his backhoe onto the trailer when he was approached by Daniel. Daniel told him, “I’ve broken down up the road, do you have insulation tape so I can tape some wires together”. The victim agreed to this request and gave Daniel some tape.

19. At that time Daniel produced what appeared to be a sawn-off shotgun. He pointed it at the victim. The victim had some knowledge of firearms, and he believed the firearm was real. He was understandably terrified and agreed to do what he was told by the offender. He was told to stop and sit on the ground. He was then tied up using the electrical tape.

20. White was standing nearby with bags that had been taken from the disabled Holden. Daniel told the victim that White was going to keep an eye on him while he went across and tried to start the prime mover. He demanded of the victim instructions on how to detach the trailer. Leaving the victim tied, he detached the trailer and he and White drove off. The victim was detained for about 20 minutes in all.

21. After the prime mover had driven off, he was able to flag down a passing motorcyclist and, using their phone, call Triple‑0.

22. The prime mover did not get very far. Shortly afterwards it arrived at the lookout at Mt Kembla. There the second victim, a 26-year-old man was parked looking at the view. He saw the prime mover turn up. Daniel approached him and asked if he had jumper leads. Daniel then produced the shortened double barrel shotgun. White remained in the truck. He said to his victim, “Give me your keys, wallet and phone and walk towards the bush”.

23. Understandably frightened, the victim handed Daniel his keyring, which had on them the keys to his car, his unit and work premises. He also handed over his mobile phone and wallet which had $10 in it and personal cards. Daniel said to him, “Walk towards the bush”. He then told him to turn round and get on his knees. Before saying, “run into the bush and keep running.” The victim, extremely scared, thought he would be shot or seriously injured if he did not do what was asked of him and went into the bush.

24. Attempts were then made to destroy the truck prime mover by starting a fire in the cabin. The interior was set alight, however, as the doors were closed the fire was starved of oxygen, although the cabin was left badly damaged.

25. Daniel and White drove away in second victim’s vehicle. Soon after he was able to flag down someone and used their phone to call Triple‑0.

26. A police investigation led to Daniel’s arrest on 15 April 2021. He has been in custody ever since.

27. On 4 May 2021 he took part in an electronic interview and put forward matters that were later contradicted by evidence. After the interview, however, he did agree to show the police where he had hidden the shortened double barrel shotgun. He directed police to a bush area and it was able to be recovered. It was determined that it was a firearm under the Firearms Act 1996 but it was an imitation as it could not be fired and was not in working order. A photograph of it indicates that Victim 1 from Mt Keira was quite right in his assessment that superficially it looked very much like a real shortened firearm.

Objective seriousness

28. Crimes such as those for sentence are crimes against people, no matter that property was taken or sought to be taken. Where citizens are robbed, assaulted and threatened by weapons, it can have a terrible impact on them. Such crimes can have more serious consequences. People lose confidence in institutions. They feel they cannot be protected by police or other security measures. CCTV, although present on a number of occasions, did not prevent the commission of these offences.

29. The community, hearing about such matters and victims of such matters, learn to fear others and lose their trust in others. Where people are fearful the entire community suffers. As a consequence, we lose our freedoms to go out and participate in community activities, we lose the freedom to simple things like going to the newsagents, going to the pub, going to work, going to a McDonald’s restaurant.

30. Where criminals are caught committing such offences the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency shown by sentencing judges led the highest court in New South Wales in 1999 to publish a guideline judgment desired to guide the sentencing discretion of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

31. While not prescriptive, careful attention to applicable guideline judgments of the Court is required. They must be taken into account: s.42A Crimes (Sentencing Procedure) Act 1999; Moodie v R [2020] NSWCCA 160.

32. In each matter I have to have regard to the nature of the weapon used and how it was used. In each offence there was a real threat of violence, at times that threat was made with some intensity. Each event involved some planning, although even for the Wallacia matter, the planning was rudimentary.

33. Each of the victims were in their own way vulnerable.

34. The amounts taken are also relevant, it varied from nothing to a few hundred dollars to the $34,000 or the taking, for a short period, the of the truck’s prime mover.

35. Daniel now admits, through his psychologist, that he was affected by methylamphetamines at the time of each of the offences. That fact does not mitigate and, as he admits, he was not “thinking straight.” His drug use, while armed and stressed, made him more unpredictable and thus more dangerous.

McDonald’s offences

36. McDonald’s restaurants such as this are an easy target. Often, as here, with young staff, in each case here women, in vulnerable positions. The offences were committed for little or no reward. While the weapon was not brandished the threat of the weapon was very real. The word “machete” should be enough to convey that to readers of this judgment. The weapon was produced and intended to scare, as it did ,and done so to ensure compliance with his demands.

The brothel offence, Arndell Park

37. The people in the brothel were inside their work premises. They were confronted by a disguised, armed man and as a consequence were very scared. The crime was badly thought out, indicating how desperate Daniel was. Although the weapon could not have been fired, as I accept, they did not know this. It was brandished, used, and its use was accompanied by threat with the intention of scaring the victims to ensure their compliance.

Wallacia

38. This was the most serious offence, given the way the hotel and the car were targeted, and the amount taken. Obviously, Daniel was aware staff were there as that he wanted the car in the carpark. The amount taken, the nature of the threats made and the intensity with which they were made must be given full weight.

Mt Keira

39. The first victim at Mt Keira was subject to actual violence as he was tied up and left behind. Each victim was confronted in an isolated location. They were forced into vulnerable positions. They were confronted by two desperate individuals, and both must have thought that there was a real and palpable risk that they would be seriously injured or killed, as that was what was intended.

Other factors

40. By reference to the Henry guideline, I note Daniel was much older than the offenders referred to. He has a number of prior convictions for personal violence, but they were, in the scale of things, minor. He was on bail having been released after making a promise to be of good behaviour.

Forms 1

41. Daniel asks that when I sentence him for three of the offences, I take into account other matters on a s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 Form 1. He has admitted his guilt in relation to each of those matters. It should be clear from this judgment in all of the circumstances it is clearly appropriate I take them into account. There must be an increase in sentence, the increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146. I do not sentence for the matters on the Forms 1. I take them into account I do so as part of the instinctive synthesis approach to sentencing, noted in particular by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. Sometimes as here, that increase can be substantial: Attorney General’s Application No. 1 at [18].

41. I have to be careful however, as to the extent the facts of Form 1 matters are interrelated with the matters for sentence, I should not double count.

42. I note, I should have said earlier, the damage to property in the Wallacia Hotel was not the damage when he entered the premises but other relatively minor damage. Some of the matters on the Form 1 were quite separate and serious and that is relevant when assessing the objective seriousness of the matter for sentence.

43. Looking at the Forms 1, the serious ones. At Wallacia, there was an additional confrontation with the victim and his motor vehicle was taken. It was a valuable motor vehicle, as the offender well knew. Some matters about it and that owner were raised in sentence today but they are not pressed in mitigation. I am left with the situation where he took this car, and it was ultimately recovered in a damaged state.

44. The other vehicle, the Subaru belonging to the second victim at Mt Keira was not recovered.

45. I j make this observation, unless you are lucky enough to own a home, a motor vehicle is generally the most expensive and valuable item a person can own. To lose a car means not just financial loss but loss of the ability to move freely about the community. Not all vehicles are insured and even if they are thefts lead to higher insurance premiums that are passed on as a cost to the whole community.

46. Victim 1 Mt Keira’s truck prime mover was damaged by fire, it was his tool of trade. I do not underestimate the loss of impact of that vehicle would have had on him and his business, while it was being repaired. Again, it is not an answer to say it might have been insured; we do not know. And, as I said earlier, even insured vehicles take time to be replaced and their loss, even temporary loss, can be incalculable.

Maximum penalty/Standard non‑parole period

48. Robbery armed with an offensive weapon, s 97(1) Crimes Act, carries a maximum penalty of 20 years imprisonment.

49. Assault with intent to rob armed with a dangerous weapon, 97(2) Crimes Act, carries a maximum penalty of 25 years.

50. Specially aggravated break enter and commit serious indictable offence, s 112(2)(3) Crimes Act, carries a maximum penalty of 25 years imprisonment and Parliament has said that for an offence that, taking into account only objective factors, falls into the middle of the range has a standard non‑parole period, that is a minimum period in custody, of seven years.

51. Robbery armed with a dangerous weapon, s 97(2), carries a maximum penalty of 25 years imprisonment.

52. In any sentencing exercise, there must be careful attention to maximums and where applicable standard non‑parole periods. Both are important guides to the exercise of a judge’s sentencing discretion, and content must be given to the standard non‑parole period. In matter such as this, as I have noted earlier, reference must also be had to the guidance offered by the guideline judgment.

Criminal record

53. Daniel’s criminal record is not extensive, but it denies him leniency often given first offenders. He was on bail, breaking a promise to be of good behaviour.

54. He has been in custody since 15 April 2021. His sentence must commence from that date. He has spent a lengthy period on remand.

COVID

55. Daniel has endured significant COVID restrictions. Although he has had restricted his access to programs, he has shown some initiative by engaging in work and doing what programs he could.

56. He told me that he had been locked in cells for 76 days. Courts are aware of the impact of COVID restrictions on prisoners and we do not underestimate their impact. Prisoners have no control over how they live their lives. Being locked in a cell is effectively solitary confinement. It used to be, and perhaps sometimes is, a form of additional punishment for disciplinary matters. I take into account that he has had less access to programs and less access to what limited facilities area available, and that these restrictions may continue.

Subjective case

57. Daniel gave evidence today. He also provided a letter to the Court expressing his remorse and asking for the forgiveness of his victims. He also adhered to the history given to a psychologist, Ms Duffy, whose report is before the Court.

58. He expressed of appropriate remorse and recognition of the harm he had done. He said that he accepted the trauma that he must have inflicted on each of his victims. He made a promise to do better.

59. He told me of his history and how he went from a regular worker to a regular user of methylamphetamine. He told me that during his initial time as a methylamphetamine user he was able to maintain a superficial appearance of normality when dealing with his children and other members of the community. He said that he did not want to make excuses for what he did. It seems clear from his evidence that at the time of his offending, he was simply thinking only of himself, not about his family, not about his obligations as a citizen and certainly not about his victims. His sole selfish desire was to get more and more drugs.

60. The reports before me set out a number of important stresses that were upon him at the time. But as Ms Keay, for the Director of Public Prosecutions, pointed out, and Mr Booker accepted, those stresses apply to many, many people in the community during the pandemic. It is not unusual for people to have problems; obtaining work, providing for the family, or having to deal with sick relatives or a difficult separation from a long‑term spouse. Some do resort to drugs but few, thankfully, resort to the sort of crimes that Daniel committed.

61. He tells me, and I am prepared to accept, that drug free he is capable of reviewing what he did in a dispassionate manner. He says goal is so different from the life he lived before.

62. He is taking advantage of the discipline in gaol to train, to increase his weight, to look after himself, to work and to lead within the gaol community.

63. He told me that he is not a person who was disposed to talk about mental health issues or stresses, that he bottled it up. He said he felt some shame about matters that occurred when he was a child, where he has reported sexual abuse by a teacher. He does not understand the impact of that abuse but Ms Duffy, a respected forensic psychologist, has given me her opinion.

64. He accepts responsibility for what he did, and it appears has some genuine insight. Of concern, of course, is that he showed no such insight when he committed these offences. And he must, even drug affected, have understood what he was doing was seriously wrong and was serious offending against other individuals. That flaw in his character not only means he has to be gaoled and removed from the community, but it also means I must be guarded about his future prospects.

65. I accept his evidence now shows his remorse and insight. He has made a practical effort to show that remorse by his early pleas. They have their utilitarian value, but they also have other value. While I cannot quantify it in percentage terms, his subsequent disclosure of where the weapon could be found at least prevented someone else using it in the same way he did.

66. He told me that the money from the Wallacia Hotel was gambled away or used to buy drugs. Gambling and drug use can never be the excuse for serious crime. But the fact of an addiction to drugs and gambling, how it came about, what is to be done about it, can help explain offending and are relevant to what is to happen in the future and the offender’s prospects of either recidivism or rehabilitation. It helps me understand his state of mind at the time, his incapacity to exercise sound judgment at the time: Henry at [273]. But as I said it does not excuse.

67. I will not go into the details, but Ms Duffy’s report reveals a history of childhood trauma. A sentencing a court does not devalue the impact of particular traumatic events. It is well recognised that sexual assault on a child can have a destructive impact on them which continues or perhaps forever. It is relevant by way of mitigation: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallah v R [2021] NSWCCA 207.

68. Some care needs to be taken, as Daniel told me, these things are discussed in gaol, such claims can be invented, but here the revelations seem to accord with his history of anxiety and feelings of rejection and abandonment and drug use; and the other matters noted by Ms Duffy. On balance I can accept it occurred. A person’s background such as this is always relevant, it should be given proper effect when synthesising an appropriate and just sentence. It is also one reason to help explain why someone took up illicit drug use.

69. The matters disclosed by Ms Duffy do go to the offender’s moral culpability and moderate some of the strictures that general deterrence principles often call for. They also call for some understanding.

70. In her comprehensive report Ms Duffy sets out the details of the abuse. She also sets out Daniel’s personal history - work history, family history, the taking up of drugs and the various stressors that were operating at the time he did so.

71. Her testing revealed high scores for anxiety and depression and elevated scores on scales for Post‑Traumatic Stress Disorder (PTSD). She concludes four disorders were revealed by the testing and her assessments: stimulant, (methylamphetamine) use disorder, gambling disorder, persistent depressive disorder with anxious distress and PTSD (a provisional diagnosis).

72. In Ms Duffy’s opinion, having detoxed from drugs and thinking more clearly and able to accept responsibility, Daniel has demonstrated a willingness to participate and continue to participate in any programs made available to him. She believes he would benefit from the intensive IDATP program and the real understanding of self‑help programs (RUSH) and EQUIPS programs.

73. She notes that at 50 his main risk factors for recidivism are, substance and abuse and gambling, but he can reduce the risk by behavioural controls when affected by stressors. But his depression and post‑traumatic stress disorder will increase the risk of relapse. He can be assisted by counselling; cognitive behaviour therapy and dialectic behaviour therapy.

74. She also notes that if given that assistance there are also several protective factors that reduce the risk of reoffending including; his steady employment history, his strong work ethic, his desire to take a positive role in the upbringing of his children and a relative lack of criminal record. He will, however, require supervision and assistance after release from custody.

Parity

75. On 18 February 2022 I sentenced Carol White for her role on the Mt Kembla offences: R vWhite [2022] NSWDC 265. For Count 1 (victim 1), taking into account a Form 1 matter involving destruction of the truck, I indicated a sentence of four years imprisonment. In relation to Count 2 (victim 2), I indicated a sentence of three years imprisonment. I imposed an aggregate sentence of four years and four months with a non‑parole period of two years and four months.

76. I must have regard to that sentence and the respective degrees of culpability of both offenders - like must be compared with like. While there is a need to, so far as possible, ensure equal justice they did have different roles, different criminal histories, different background. Importantly, I found that White played a much lesser role in each offence. These factors mean that there will be a real difference in the time each spend in prison: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.

77. I do not accept Mr Booker’s submission that the degree of criminality attributed to each offender is “largely similar albeit in different ways.” Her assistance was, with respect, minimal for victim 1 and she was in the truck when the offences against victim 2 occurred. She made no aggressive move to either victim. Her role in the joint criminal enterprise was significantly different.

Submissions

78. Ms Keay put forward reasons for significant upward departure from the Henry guideline, she asked me to consider in each case the degree in intensity of the violence and the nature of the weapon used. Each victim, she said, was in their own way vulnerable, each felt scared and in some cases they were terrified.

79. Mr Booker, counsel for Daniel, asked that his offending be considered through the prism of his personal history and his recent mental health diagnosis. At the time he commenced drug use there had been significant changes in his life and one wrong decision, the use of drugs, was compounded because he was not thinking rationally due to the use of drugs. That can in part be explained by matters that were revealed by Ms Duffy’s testing.

80. He asked that the offending be contextualised, as it was clear, he said, that the serious abuse of drugs followed a seismic shift in Daniel’s life, and in part derived from abuse when he was a child. This he submitted mitigated against a totally retributive sentence.

81. He suggested there was an alternative, a longer period on parole given that Daniel needs therapeutic intervention and rehabilitation in the community. He indicated he had in the past and while in custody demonstrated pro‑social habits. He asked that a short aggregate non‑parole period would best meet the purposes of sentencing.

Structure

82. The Crimes (Sentencing Procedure) Act assumes concurrency in the absence of a direction to the contrary: s 55. The Act, however, does not confine the approach to be taken to the structure of two or more sentences.

83. I am required to indicate an appropriate sentence for each offence and to structure the sentence as such that the overall sentence is just and appropriate to the totality of Daniel’s offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63; Nguyen v The Queen [2016] HCA 17.

84. Here, the various charges seek to encompass all his criminal conduct. Some are for sentence, and some are Form 1 matters. Questions of concurrence or accumulation is not one of temporal proximity but whether the offence for one can comprehend the criminality of the others. If it cannot there should be at least partial accumulation otherwise there is a risk the total sentence will fail to reflect total criminality: Cahyadi v R (2007) 168 A Crim R 41.

85. Sentences are not made concurrent just because of their similarity or even where they are part of a course of conduct. Madam Crown submits, and I accept, public confidence in the administration of justice requires sentencing courts avoid the suggestion of a discount for multiple offending: R v MAK [2006] NSWCCA 381.

86. Courts have to be careful. Long sentences can have significant impact on a person and their prospects for the future. Long sentences have what some judges describe as a compounding affect; that is, a sentence of two years has more severe an impact on a person than a sentence of one year and a sentence of five years has more of an impact on a person than a sentence of two years and so on.

87. Judges do not ignore the impact of gaol and long‑term removal of a person from the community. Mr Booker cautioned me about the danger of a person becoming institutionalised, that is by the length of time in custody they forget how to live a normal life in the community or become so adapted to life in gaol that they cannot lead a life in the community.

88. Judges are given considerable flexibility on how an aggregate sentence is structured: Nguyen v The Queen [2016] HCA 17 at [36] – [40]. And I note that while each offence here is separate many of the matters that have to be taken to into account in formulating an appropriate sentence do overlap.

89. Too severe a sentence may result in a disproportionate level of punishment and the severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroying an expectation of a useful life after release. The value of steps taken to date which promote rehabilitation may diminish. This affect both increases the severity of the sentence to be served and also destroys, potentially, what prospects that there are of rehabilitation and reform. However, it has to be noted that the proportionate sentence and whether it is crushing or not can depend on the perspective of the observer, whether they are the offender, the victim or victims, the community or even the appeal court: DPP C’th v Beattie [2017] NSWCCA 301, Basten JA at [26]-[45].

90. Ms Keay submitted that any sentence I impose would of itself allow sufficient time on parole without the need for a finding of special circumstances: s44 Crimes (Sentencing Procedure) Act.

91. Mr Booker’s position was that as the chance of re‑offending is low, the longer Daniel is supervised and assisted in the community the less he will become institutionalised and the greater the chance he can lead a normal community life on release.

92. It is important to note that a Bureau of Crime Statistics study reveal offenders who receive supervision upon release take longer to commit new offences and are less likely to commit serious offences than those released unconditionally: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.

93. The evidence relating to the offender’s prospects justify a finding of special circumstances. I, accept his evidence that he has plans for release and that he has capacity to improve himself on release. He is seeing a psychologist for the first time, and he will need to continue those appointments when he is in the community. There are a number of underlying matters that will need concerted psychological help.

94. He will also need help after a lengthy period in custody adjusting to normal community life in the community. If given an extended period of parole, with appropriate supervision and assistance, it is highly unlikely he will re‑offend, and certainly not in the way that he offended in this very short period. That said I am mindful of the requirement of the minimum period he should be imprisoned must properly reflect the gravity of the offences and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesis

95. Daniel makes a compelling case for this one month of his life being aberrant. He had a number of underlying problems that must be addressed but there are protective factors and others can be put in place. It is unlikely he will re‑offend if this occurs. He has in the past demonstrated a capacity to lead a normal life in the community. I believe he will do in the future.

96. He has shown insight and capacity, but his short period of offending also indicated that he has the capacity, if drug affected, to lose all moral compass, that is, to offend in serous ways, knowing the consequence of his offending. The number and seriousness of each offence require individually and collectively lengthy custodial sentences. But while he will get some benefit from concurrency, he must be punished for what he did.

97. Each matter for sentence carries with it the community expectation that offenders will suffer severe punishment: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. A proper sentence marks the Court’s view of the seriousness of the crime and should let other wrongdoers know the retribution which fall upon them will if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. Although I have accepted that his moral culpability was reduced because of matters in his background general deterrence is still an important factor. So far as specific deterrence is concerned his time in custody has already, I believe, drawn home to him the consequences of his action.

95. The mitigating factors, while it must be given an appropriate case, cannot lead to a disproportionate penalty. As I said at the beginning offences such as this cause considerable disquiet, and sentencing courts have an obligation to vindicate the dignity of each victim of violence in each matter, to express the community’s disapproval of the offending and by the structure and length of the sentence attempt to afford some protection to the vulnerable against the repetition of this sort of offending by others.

Orders

99. I indicate a sentence for each matter, each indicated sentence takes into account the reduction of 25% for the plea of guilty.

Western Sydney offences

100. Sequence 2, Robbery armed with offensive weapon (Wetherill Park), taking into account the matter on the Form 1, I indicate a sentence of 3 years 4 months.

101. Sequence 3 Robbery armed with offensive weapon (McDonald’s, Mount Annan) I indicate a sentence of 3 years.

102. Sequence 4, Assault with intent to rob while armed with dangerous weapon s 97(2), (Arndell Park), taking into account the Form 1, I indicate a sentence of three years nine months.

Wallacia Hotel and Mount Keira offences

103. Sequence 5, Wallacia Hotel: Taking into account the matters on the Form 1, as it carries a standard non parole period, I indicate a sentence of six years and nine months, non‑parole period four years four months.

104. Robbery while armed with dangerous weapon – victim 1 Mt Keira: Taking into account the matter on the Form 1, I indicate a sentence of four years six months.

105. Robbery while armed with dangerous weapon – victim 2 Mt Keira, I indicate a sentence of three years and nine months.

106. There will be an aggregate sentence in this matter of ten years and six months imprisonment. The sentence will commence on 15 April 2021. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 14-Oct-2027. The balance of the sentence of 4 years is to commence upon the expiration of the non-parole period on 15 October 2027 - expiring on 14 October 2031.

107. There is a substantial finding of special circumstances. Eligibility for release to parole will be dependent upon the decision of the State Parole Authority. I make no recommendations in relation to that, that will be a matter for the State Parole Authority when he becomes eligible for consideration for release. They will not release him into the community unless matters of community safety can be satisfied and that will depend upon his progress in gaol.

**********

Decision last updated: 05 April 2023