R v Derbas

[2023] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:

R v Derbas [2023] NSWDC 62

Hearing dates:

2 February 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Fulltime custodial aggregate sentence. For orders see [74].

Catchwords:

CRIME – sentence – aggravated robbery – aggravated enter dwelling with intent knowing people there – s166 related offence – drive motor vehicle during disqualification period – offence on Form 1 - custody of knife in public place.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing and Procedure) Act 1999

Road Transport Act 2013

Summary Offences Act 1988

Cases Cited:

Chung v R [2017] NSWCCA 48

DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194

Harris v R [2013] NSWCCA 296

Jackson v R [2010] NSWCCA 162

R v Cahyadi [2007] NSWCCA 1

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.

Smith v R [2013] NSWCCA 209

Category:

Sentence

Parties:

Ahmed Derbas (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr Crawford-Fish (Offender)

Solicitors:
Ms Tam (Crown)

File Number(s):

2021/108886

Publication restriction:

Nil.

REMARKS ON SENTENCE

1. The offender who was born on 17 February 1989 is to be sentenced in respect of the following offences to which he has pleaded guilty:-

• Count 1 - aggravated enter dwelling with intent (knowing person present) pursuant to s111(2) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is no standard non-parole period prescribed.

• Count 2 - robbery pursuant to s94(a) of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment and there is no standard non-parole period prescribed.

2. The offender has asked that a further charge be dealt with on a Form 1 as follows:-

• Sequence 4 – custody of knife in public place an offence pursuant to s11C(1) of the Summary Offences Act 1988. The maximum penalty prescribed is 2 years imprisonment and/or 20 penalty units.

3. The offender has admitted his guilt in respect of that matter and asks that it be taken into account on sentence for Count 1.

4. The offender is also to be sentenced for an offence on a s166 certificate as follows:-

• Sequence 3 – drive motor vehicle during disqualification period: second plus offence pursuant to s54(1)(a) of the Road Transport Act 2013. The maximum penalty for that offence is 12 months imprisonment and/or 50 penalty units.

5. Two further charges on the s166 certificate are to be withdrawn.

6. The index offences occurred between 17 and 19 April 2021. The offender was arrested on 19 April 2021 and has been in custody since that date.

7. At the time of the offending the offender was on parole. On 7 July 2020 he had been sentenced for an offence of dishonestly obtain property by deception to a term of imprisonment of 2 years to date from 13 December 2019 with a non-parole period of 1 year which expired on 12 December 2020. His parole was revoked on 17 April 2021.

The sentence hearing

8. The sentence hearing took place on 2 February 2023. The Crown sentence summary bundle became Exhibit A and it included a statement of agreed facts which can be summarised as follows.

9. The offender had known the victim who lived in premises at Bankstown since 2015. On Thursday 15 April 2021 the victim awoke to several missed calls and text messages from the offender asking her to “come downstairs”. She did not respond however later when she went downstairs an argument ensued with the offender. The victim went to hotel premises in Bankstown to play poker machines and saw the offender enter those premises shortly after her.

10. On Saturday 17 April 2021 the victim returned home at approximately 4pm. Shortly after walking into her home she saw the offender standing inside the premises, she said, “What the fuck are you doing here? Get the fuck out”.

11. The offender repeatedly said “Why didn’t you answer any of my calls? Where’s my fucking money?”. This was the conduct that constituted Count 1 an offence pursuant to s111(2) of the Crimes Act 1900.

12. The offender then picked up the victim’s mobile phone and demanded that she pay him money via an application known as “PayID”. She again told him to leave and said she was going to call the police.

13. The victim tried to snatch her phone back and as she did that the offender put his right forearm across her throat and pinned her against the bathroom door causing it to open inwards and the offender fell on top of the victim. He said to the victim, “I’ll fucking kill you. I need the money”. The victim said, “Police will come and you will go to jail for a long time, just leave, please, look what you are doing”. The altercation continued and the offender again asked the victim to “Just PayID me”.

14. A further altercation occurred when the offender pushed the victim onto a couch, placed his knee against her ribs and punched her once in the head. He then pulled the victim to the ground and straddled her placing his hands around her throat. She pushed the offender off her and he fell backwards. The victim then walked onto the balcony and saw the offender take her bag containing her wallet, $120 cash, bankcards, a Bankstown RSL Club card, an Opal card and a Medicare card, amongst other cards. He then placed his hand inside another bag which contained $200 cash and took that and a small blue plastic bag which contained cannabis. The victim observed him to cross the road to a neighbour’s home.

15. At approximately 5pm the victim entered that neighbour’s home and asked him to call the police telling him that she had just been robbed. She observed the offender driving away in a red Holden Commodore. She took photographs of the vehicle.

16. The offender was arrested on 19 April 2021 when the police observed the offender’s car and followed him into a petrol station at Chester Hill. As at that date he was disqualified from driving. The police search located a knife concealed in his underwear (Sequence 4 on the Form 1) and seized the victim’s smartphone, her bag and wallet together with four cards belonging to the victim.

17. Exhibit A also contained the criminal antecedents of the offender which commenced in the Children’s Court in 2004. Relevantly in 2013 there were a number of drug and driving offences with similar offences in 2014 and 2015 for which he was ultimately sentenced to a number of short periods of imprisonment. In 2015 his offending escalated to both drug and dishonesty offences including larceny and goods in personal custody, for which he was again sentenced to various terms of imprisonment.

18. In 2016 he was sentenced to 12 months imprisonment for a drive motor vehicle during disqualification period – second plus offence and in 2018 he was sentenced to 3 years and 3 months imprisonment for an offence of aggravated break and enter - commit serious indictable offence – inflict actual bodily harm. A non-parole period of 1 year and 10 months was imposed concluding on 19 October 2018. In 2020 the offender was sentenced to imprisonment for 2 years for an offence of dishonestly obtain property by deception and he was on parole in respect of that offence when the index offending occurred.

19. Exhibit A also included the RMS Traffic Record Report which revealed that the offender had in 2015 and 2016 been declared an habitual offender and disqualified for 5 years.

20. Exhibit A included a Breach of Parole Report under the hand on Mr G Johns dated 22 April 2021. That report noted that the offender had been directed to engage with a psychologist and an alcohol and other drugs service (“AOD”) to address his criminogenic and responsivity needs. Despite that direction being reiterated on multiple occasions the offender had failed to engage with a psychologist and had disengaged from the AOD service after attending two sessions. The author opined that the offender’s overall response to supervision had been superficial. He also opined:-

“Mr Derbas’ history of similar offending indicates his unremitting impulsive behaviour. Given he expresses no aspirations to reintegrate back into some semblance of a normal lawful community life and is avoidant of engaging in intervention, it is considered that he poses an increased risk to community safety as well as a continuing risk of reoffending.”

The offender’s evidence

21. The offender tendered a bundle of documents which became Exhibit 1.1 to Exhibit 1.6. Exhibit 1.1 was a report of Mr S Albassit, psychologist dated 25 January 2023. He recorded the family history in which the offender reported experiencing “a traumatic, displaced and difficult upbringing”. His father was a chronic gambler and he witnessed ongoing domestic violence. He left school in Year 10 and described his schooling years as “traumatic and psychologically scarring”. At approximately 10 years of age he was a victim of a sexual assault by a teacher and reported that his behaviour changed. He was suspended from school on several occasions for poor, erratic and reckless behaviour and began socialising with antisocial people. He kept running away from home and carried out petty crimes. He reported being introduced to illicit substances at the age of 11 and within 18 months was smoking cannabis daily. At age 14 he graduated to the use of MDMA, cocaine and ice.

22. The offender reported growing up on the streets and witnessing stabbings, drug overdoses and violent crimes. At age 17 he was incarcerated in a Juvenile Justice Centre where he was physically, sexually and emotionally abused by officers working at the centre. He was also subjected to a number of physical assaults by other inmates and was set upon for his ethnicity and his religious beliefs. Upon his release to the community he returned to using illicit substances and was only able to obtain employment for short periods of time because of poor attendance or for being drug affected. He was invariably in trouble with the police and from the age of 23 he was incarcerated and over the last 10 years has spent the majority of his life in custody.

23. Psychological assessment of the offender revealed his symptoms were consistent with the dual diagnosis of complex Post-Traumatic Stress Disorder (“PTSD”) and Bi-Polar Disorder. The author opined that there was a direct nexus between his mental health impairments and his offending behaviour. He was also diagnosed with a Substance Dependence Disorder.

24. The offender acknowledged he was wrong to have committed the offences, he was remorseful and bitterly disappointed with his actions. He had a long-standing chronic gambling addiction which played a significant role in his desperation for money and his level of intoxication contributed to his inability to understand the consequences of his actions.

25. The offender reported being abstinent from illicit substances over the last 18 months and demonstrated some insight into how reckless and impulsive his behaviour had been.

26. The author described this as a high level of insight which suggested there were prospects for rehabilitation. The offender reported that he had been diagnosed with Oppositional Defiance Disorder, Attention Deficit Hyperactivity Disorder and major Depression at the age of 22. He had not however received any treatment of real significance.

27. Mr Albassit set out a treatment plan which would in his opinion significantly decrease the likelihood of the offender’s impulsivity and self-destructive behaviours.

28. Exhibit 1.2 was a report from Dr S Paisley dated 5 September 2022. Dr Paisley is a psychiatrist who examined the offender via video conference on 5 September 2022. Dr Paisley took a history of the offender’s sexual abuse as a child and in the juvenile justice system. He also took a family history, a medical history and forensic and personal histories and diagnosed PTSD and Opiate Use Disorder. He opined that it was unlikely that the offender’s condition will improve substantially within the next year, with or without treatment. Dr Paisley also set out opinions as to the offender’s ability to work and his capacity to undertake work in the future, which he described as “difficult to predict”. He concluded as follows:-

“Mr Derbas’ prognosis is guarded. His conditions are chronic and persistent. His education is limited, he lacks work experience and skills, he is prone to engaging in unhealthy relationships which do not last, and he has difficulty staying off drugs and out of prison.

Despite this, he has a supportive family and expresses a desire to improve his life and has clear goals of wanting to stay out of prison, off drugs and find stable employment and have a family.”

29. Exhibit 1.3 is a letter of apology from the offender dated 18 January 2023 in which he unequivocally apologises to the victim and to the community for his criminal behaviour. He also set out his history of sexual abuse and early exposure to alcohol and illicit drugs. The offender also set out his recent history including his custodial history and the hardship endured by him in custody over the last 22 months. He stated that he is now committed to addressing his drug and mental health issues and began participating in a buprenorphine program and has attended regular psychologist appointments. He has attended some sessions of an EQUIPS Drug Addiction Course and is currently working as a sweeper which is a trusted position in gaol. He annexed a schedule of his locked-in days and a certificate of completion of a working safely course whilst in custody.

30. Exhibit 1.6 is a letter from Ms A Derbas, the offender’s older sister. She reported being in regular contact with the offender since he entered custody through phone calls. She expressed her belief that he had definitely changed his mindset and “improved on himself”. He spoke to her daily about his desire to deal with his drug problems by attending rehabilitation when he is released from gaol.

The Crown’s submissions

31. The Crown relied on a written outline of submissions in which it gave a history of the offender’s late plea of guilty to Count 1 entitling him to a 5% utilitarian discount on sentence pursuant to s25D(2)(c) of the Crimes (Sentencing and Procedure) Act 1999 (“CSPA”). The Crown conceded the offender was entitled to a 25% utilitarian discount on sentence in respect of Count 2 pursuant to s25E(3)(a) of the CSPA. The Crown acknowledged the offender’s plea spared the victim from giving evidence and being cross examined.

32. The Crown submitted that both Counts 1 and 2 were serious examples of criminal offending. The victim was ambushed in her home and was subjected to a sustained violent attack. It was submitted that Count 1 is on the lower level of objective seriousness whereas the conduct in Count 2 fell just below the mid-range of objective seriousness for an offence pursuant to s94(a) of the Crimes Act 1900. The Crown submitted that whilst the offence itself was of relatively short duration it could not be characterised as momentary or fleeting. Notwithstanding it’s short duration, the court may take into account that it was extremely frightening for the victim, relying Chung v R [2017] NSWCCA 48 at [77].

33. The Crown submitted that whilst there was no evidence of planning, break and enter offences pursuant to s111(2) are often committed without significant planning or premeditation and the absence of those features does not reduce the seriousness of those features to any material degree, relying on Smith v R [2013] NSWCCA 209 at [57].

34. The Crown submitted that the following aggravating factors should be taken into account pursuant to s21A(2) of the CSPA:-

1. (2)(eb) the offence was committed in the home of the victim; and

2. (2)(j) the offender was on conditional liberty i.e. he was serving a period of parole at the time of the offending.

35. The Crown submitted the aggravating factors should be applied to both offences.

36. The Crown submitted that the self-induced intoxication of the offender at the time of the offence is not to be taken into account as a mitigating factor pursuant to s21A(5AA) of the CSPA relying on Harris v R [2013] NSWCCA 296.

37. The Crown submitted that the offender’s criminal history disentitles him to leniency and demonstrates that the index offences were not an aberration. Similarly the offence on the s166 certificate will be the offender’s fourth conviction for drive whilst disqualified and he is presently disqualified from driving until 23 April 2030.

38. The Crown submitted that the offender had demonstrated a lack of motivation towards rehabilitation, that he had a history of failing to follow directions regarding his drug, alcohol or mental health issues and therefore there were concerns about his risk of reoffending. There were also two institutional infractions on his custodial records which occurred in 2021.

39. The Crown submitted that the s5(1) threshold had been crossed and no sentence other than imprisonment was appropriate.

40. In her oral submissions the Crown identified that the significant diversion from the offender’s submissions was the Crown’s assessment of objective seriousness for Count 2 at falling in the mid-range whilst the offender submitted it was below the mid-range.

41. The Crown submitted that the offender was at a significant risk of reoffending because of his longstanding drug addiction. He had commenced taking drugs at age 11 and had suffered social deprivation. His prospects for rehabilitation could only be seen in a “cautious light”.

42. The Crown highlighted that the breach of parole report noted the offender’s poor engagement with rehabilitative services. He also demonstrated a superficial response to supervision having only attended two initial assessment reports. The Crown submitted that this demonstrated that he was at an increasing risk to the community’s safety and whilst the principles in DPP (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 applied, the impact on general deterrence in the sentencing process should be moderated.

43. On the question of totality the Crown submitted that whilst this was one episode of criminal conduct, there should be some accumulation as there are two distinct acts of criminality.

44. The Crown submitted that whilst it was a matter for discretion to backdate the sentence it should not be wholly backdated to the offender’s arrest on 19 April 2021 following which he was bail refused. His parole was revoked on 22 April 2021.

45. The Crown noted the offender’s letter of apology and conceded that a finding of special circumstances was open pursuant to s44 of the CSPA. Ultimately it was submitted that considerations for rehabilitation should not override other purposes of sentencing, including denunciation and protection of the community.

The offender’s submissions

46. Counsel for the offender also relied on a detailed written outline of submissions. Counsel referred to the opinion of Dr Paisley to the effect that childhood abuse had left the offender with lifelong psychological scars and has caused him to lead an abnormal life characterised by dysfunction in most areas. The index offences were committed by the offender who had spent six of the last ten years of his life in custody and was on parole at the time of the offending. He is now aged 33 and wants to change and accepts the need for help in his rehabilitation.

47. It was submitted that the offence in Count 1 was at the lower end of objective seriousness for an offence pursuant to s111(2) of the Crimes Act 1900. This section contemplates an intention to commit a considerably more serious offence than that of intimidation including offences of actual violence or threats of violence involving weapons and assaults including sexual assaults. It was conceded that the offence is aggravated by the offender knowing that the victim was present. It was submitted that the offender’s plea to the robbery offence in Count 2 was consistent with there being no intention to steal at the time the offender entered the victim’s home. His intention then was to intimidate by way of demand. Further, it was submitted that although violent, the robbery was without planning and it sits below the mid-range of objective seriousness pursuant to s94(a) of the Crimes Act 1900.

46. Counsel submitted that the offender’s moral culpability was diminished as a result of his childhood sexual abuse and his diagnosis of PTSD. He had also been diagnosed as suffering Bi-Polar Disorder and Substance Dependence Disorder and these mental health issues reduced his moral culpability. In accordance with authority, general deterrence, retribution and denunciation should carry less weight in the sentencing process.

47. On the question of totality counsel submitted that the two offences arose out of one criminal enterprise and were connected. The principle of totality meant that there should be considerable concurrency of sentence.

48. Given the offender’s childhood abuse and social deprivation it was submitted that the rehabilitative aspects of his sentence assume a more significant role relying on R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at [273] and [336].

49. Counsel noted that both Dr Paisley and Mr Albassit reported that the offender has taken full responsibility for his conduct and was remorseful. He was also motivated now to engage in psychological intervention and his prospects of rehabilitation should be categorised as positive. Also relevant was his supportive family.

50. Counsel submitted that the offender’s sentence should be backdated to 19 April 2021.

51. It was submitted that the risk of institutionalisation was a factor the court could take into account in finding special circumstances pursuant to s44 of the CSPA, relying on Jackson v R [2010] NSWCCA 162 at [25] per Fullerton J. Also relevant to that determination was the impact of COVID-19 on the prison population, and the offender’s mental health issues and need for extended supervision and support upon release.

52. In his oral submissions counsel submitted that the protection of the community was best served by the offender being subjected to short-term custody and a long-term rehabilitation program. Dr Paisley had described the lifelong psychological scars brought about by his childhood abuse, warranting a significant variation of the statutory ratio between head sentence and non-parole period.

53. Counsel rehearsed his submissions relating to the objective seriousness of the offending and the application of the principle of totality. Whilst his previous response to supervision had been poor, that was two years ago and he now desired a change to his life. He had also ignored steps taken by him in custody since April 2021 to rehabilitate. The court would accept the observations of his sister, namely, that he had a desire for change, and a family to support that change.

54. Counsel acknowledged that the offender’s criminal history did not entitle him to leniency and rehearsed his submissions that his childhood abuse and social deprivation meant that it was appropriate that his rehabilitation would assume increasing significance. Although he had not completed the EQUIPS Program, he had missed a number of sessions for reasons that were beyond his control.

Determination

57. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community”.

58. In assessing the objective seriousness of the offending in Count 1 I accept the submission made on behalf of the offender that the section contemplates intention to commit a wide variety of offences of which intimidation is not the most serious. The offence however was aggravated by the offender knowing that the victim was present. I note that there is no evidence of significant planning or premeditation for the offence although this is often the case with break and enter offences pursuant to s111(2) of the Crimes Act 1900 and I accept the Crown’s submission that the absence of those features does not reduce the seriousness of the offending to any material degree. Having regard to all of the circumstances I find that the objective seriousness of the offence fell within the lower range for an offence pursuant to s111(2), and in the middle of that low range.

59. The objective seriousness of the offence pursuant to s94(a) of the Crimes Act was an example of serious criminal offending. The victim was subjected to a sustained and violent attack in her own home which would have been extremely frightening for her. Whilst the amount stolen was not large, it may have been significant to the victim. I note that the four cards were returned to her. Again, the offending which was of short duration fell in the low range for an offence pursuant to s94(a) but towards the upper end of the low range. It still constituted serious offending.

60. The offence on the Form 1, namely, custody of a knife in a public place pursuant to s11C(1) of the Summary Offences Act fell at the low end of the range for such an offence.

61. It was an aggravating factor in respect of both Count 1 and Count 2 that the offence occurred in the home of the victim pursuant to s21A(2)(eb) of the CSPA. It was a further aggravating factor that the offences occurred whilst the offender was on conditional liberty on parole, pursuant to s21A(2)(j).

62. The offender’s criminal history included serious offending of a similar nature for which he had been imprisoned and disentitles him to any leniency. I have regard to what the High Court said in Veen v R [No. 2] (1998) 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

63. The offender’s criminal history means that he falls into that latter category.

64. It is a mitigating factor that the offender has pleaded guilty to both counts on the Indictment and is entitled to a 5% utilitarian discount on sentence in respect of Count 1 and a 25% discount in respect of Count 2. I also accept that the offender has expressed some remorse for his offending conduct both to Mr Albassit, Dr Paisley and his sister. He also apologised unequivocally to the victim in his letter to the court.

65. General deterrence is important in sentencing for offences of aggravated break and enter and robbery. Citizens are entitled to be and feel safe in their own homes and not be subjected to violent attacks. A clear message must be sent to the community that Parliament has prescribed lengthy maximum penalties of imprisonment for such offences and that the courts will impose condign punishment for such offences, particularly for repeat offenders.

66. Specific deterrence is also important in that the offender must understand that if he were to continue to offend in this way then he would be subjected to increasingly lengthy terms of imprisonment being imposed on him. I accept the family and personal histories set out in the reports of Mr Albassit and Dr Paisley which were not opposed by the Crown. I find that the offender was subjected to physical and sexual abuse as a child, both at school and in the juvenile justice system and his childhood was marked by social deprivation. It is well established that a childhood marked by such abuse and deprivation diminishes the offender’s moral culpability for his offending, the significance of general deterrence and denunciation in the sentencing process and makes rehabilitation of the offender an increasingly significant factor. In this offender’s case his criminal history and repeat offending demonstrates a complete failure to rehabilitate on previous occasions, including on this occasion when he had been on parole for only four months.

67. I accept the offender’s submission that he is now committed to addressing his drug and mental health issues and is participating in an opiate substitution program. It is no small thing to overcome a multifactorial drug addiction and his prospects of rehabilitation must remain guarded subject to him being able to attend appropriate programs and have the support of relevant treatment and supervision when he returns to the community to prevent relapse into drug and alcohol abuse. I also take into account that his risk of recidivism is entirely dependent on his relapse prevention. The offender is now 33 years of age and must understand having spent 6 of the last 10 years in custody that it is up to him to avoid a real risk of institutionalisation for the balance of his adult life.

68. I have taken into account the maximum penalties for the offences in Counts 1 and 2 of 14 years imprisonment as a guidepost in the sentencing process. The maximum penalties indicate the seriousness with which Parliament regards such offending conduct, and is a guidepost in the sentencing process.

69. I am satisfied that the threshold in s5 of the CSPA has been crossed and no penalty other than imprisonment is appropriate in all of the circumstances. The Form 1 matter attached to Count 1 must involve some accumulation however I note that the offence in Sequence 4 is at the lowest end of the range of objective seriousness. Counts 1 and 2 involve one episode of criminal conduct and having regard to the totality of criminality there must be substantial concurrency in sentence between the two offences.

70. I also make a finding of special circumstances pursuant s44(2B) of the CSPA. I intend to vary the statutory ratio between the head sentence and non-parole period to provide an extended period of supervision of the offender upon his return to the community for him to address drug and alcohol and mental health issues. The sentence is to be backdated to 19 April 2021.

71. I intend to sentence the offender by way of an aggregate sentence pursuant to s53A of the CSPA. Taking into account all of the matters outlined above including the discount for his pleas, the indicative sentences are as follows:

1. For Count 1 the offence pursuant to s111(2) of the Crimes Act 1900, 2 years and 6 months imprisonment.

2. For Count 2 the offence pursuant to s94(a) of the Crimes Act 1900, a term of imprisonment of 3 years.

72. In arriving at an aggregate sentence I am required to apply principles of totality and proportionality in sentencing. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

73. Having regard to concurrency and the totality of criminality in the index offending I intend to order a term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 3 months to commence on 19 April 2021.

Orders

74. I order as follows:-

1. You are convicted of the following offences:-

1. Count 1 aggravated enter dwelling with intent (knowing person present) pursuant to s111(2) of the Crimes Act 1900.

2. Count 2 robbery pursuant to s94(a) of the Crimes Act 1900.

2. I sentence you by way of an aggregate sentence to a term of imprisonment of 3 years and 6 months to commence on 19 April 2021.

3. There will be a non-parole period of 2 years and 3 months commencing on 19 April 2021 and expiring on 18 July 2023. The balance of the term will be a period of 1 year and 3 months terminating on 18 October 2024.

4. In respect of the offence on the s166 certificate of drive motor vehicle during disqualification period, second plus offence, pursuant to s54(1)(a) of the Road Transport Act, you are convicted but I impose no further penalty pursuant to s10A of the CSPA.

5. I have certified that I have taken the matter on the Form 1, Sequence 4, into account on sentence in respect of Count 1.

6. I note that the two further charges on the s166 certificate are to be withdrawn.

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Decision last updated: 17 March 2023