R v Dumas

[2020] NSWDC 520

District Court

New South Wales

Medium Neutral Citation:

R v Dumas [2020] NSWDC 520

Hearing dates:

22, 24 & 30 April 2020

Decision date:

30 April 2020

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found to take account of the period in custody served as a result of the revocation of parole.

Indicative sentences:

001 – 3 years and 8 months - NPP of 2 years and 3 months

002 – 2 years and 4 months

Aggregate sentence:

Sentenced to a term of imprisonment for 4 years comprising a NPP of 2 years, 9 months and 21 days to commence on 10/7/19 and to expire on 30/4/22, and a balance of term of 1 year, 2 months and 9 days to expire on 9/7/23.

Catchwords:

CRIME – property offences - sentence – robbery armed with offensive weapon, a barbeque multi-tool - aggravated break and enter & commit serious indictable offence, people there - on parole at time of offences – institutionalisation – parity – subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Beale v R [2015] NSWCCA 120

Bugmy v the Queen [2013] HCA 37 249

Callaghan v R [2006] NSWCCA 58

R v Fernando [2002] NSWCCA 28

RvHenry & Ors [1999] NSWCCA 111

R v Huynh [2003] NSWCCA 239

R v McVittie [2002] NSWCCA 344

R v Moffatt (1990) 20 NSWLR 114

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Regina
Isaac Dumas

Representation:

Counsel:
Defence: Mr J Tyler-Stott
Solicitors:
Crown: Ms L Hill

File Number(s):

2018/00329480

Judgment

1. Isaac Dumas appears for sentence in respect of two offences. The first of those offences is that he, on 26 October 2018, in Macksville, New South Wales, did break and enter the dwelling house of Kristen Harvey, situate in Wallace Street, Macksville, and then in the said dwelling house did commit a serious indictable offence, namely stealing, in circumstances of aggravation, namely he knew there was a person present within the said dwelling house. That is an offence contrary to s 112(2) of the Crimes Act 1900 and the maximum penalty provided is 20 years’ imprisonment, and there is a standard non-parole period provided of five years.

2. The second offence is that on the same date at Macksville, he did rob Brian Bush of certain property, namely $400, the property of Caltex Macksville, whilst being armed with an offensive weapon, namely a barbeque spatula. The maximum penalty provided for that offence, which is contrary to s 97(1) of the Crimes Act, is 20 years’ imprisonment. There is no standard non-parole period.

3. He was first arrested on 26 October 2018 and he was committed for sentence on 18 December 2019, 14 months after having been arrested. He has been in custody since that date; however at the time of his arrest he was on parole in respect of four offences of aggravated break, enter and steal in company. His parole was revoked on 7 November 2018 to date from the date of his arrest, that is, 26 October 2018. His balance of term in respect of those matters expired on 9 July 2019.

4. In relation to that, I note that in the Crown’s submissions, dated 28 April 2020, on p 5, the last paragraph on the page states as to backdating:

“If the Court treats the breach of conditional liberty as an aggravating feature then the Crown submits it is open to the Court to backdate the sentence to the date of arrest, 26 October 2018, however the Crown submits some accumulation is appropriate.”

In the light of that comment in the Crown’s submissions I think it is appropriate, Mr Tyler-Scott, to ask you whether you have any further submissions you wish to make in order to provide procedural fairness, because that is not a proposition that attracts me?

TYLER-SCOTT: Your Honour, I don’t think it should be backdated to 26 October, but I would say that there is some degree of accumulation. I think in my written submissions, I said the same yesterday, I would respectfully submit that it should not date from the expiration of the balance of term, but it could start from a date that your Honour feels is appropriate, perhaps some months following 26 October.

HIS HONOUR: I should indicate, Mr Tyler-Scott, that at the moment, In my view, it should in fact date from the expiry of the balance of term, particularly as this involved two offences, an aggravated break and enter and steal in company, when in fact the previous offences your client was on parole for were four offences of the same nature.

TYLER-SCOTT: If your Honour takes that view, I would ask that your Honour takes that into account when your Honour makes the decision about the appropriate ratio for special circumstances.

HIS HONOUR: Yes, I will do that.

TYLER-SCOTT: Thank you, your Honour.

5. HIS HONOUR: Although there was a delay between arrest and entering the plea of guilty of some approximately 14 months, I accept that as the plea of guilty was entered in the Local Court it is appropriate to provide a discount of 25% for the utility alone of the plea, as provided for in Thomson and Houlton (2000) 49 NSWLR 383. Such a discount will be provided.

6. The facts are agreed and they are as follows.

BACKGROUND

7. The offender was released to parole on 5 April 2018, initially to live in Taree, but by September 2018 his parole supervision had been transferred to Kempsey, where he moved to live with his partner, Shyeesha Donovan, and her mother, Juanez Donovan, at premises in Keith Moses Crescent, West Kempsey.

8. The offender and Shyeesha had their two young children living with them. Shyeesha’s brother, Matthew Donovan (aka Morris), also stayed occasionally at the house.

AGGRAVATED IN COMPANY BREAK, ENTER AND STEAL, WALLACE STREET, MACKSVILLE - S 112(2) CRIMES ACT 1900

9. At around 1am on 26 October 2018, the offender and Matthew Morris walked into the unfenced yard of Kristen Harvey’s home in Wallace Street, Macksville. Ms Harvey’s blue Commodore was parked in the driveway. Morris stood watch in the driveway while the offender entered the house via a closed glass sliding rear door. Ms Harvey was then taking a shower, with the bathroom door open, only a couple of metres from where the offender entered the house. It would have been apparent to him that there was a person in the house. There were in fact as well two young children sleeping in the bedrooms, although as their bedroom doors were closed, the offender may not have been aware of their presence.

10. The house had several CCTV cameras and their activities were filmed. Neither of the offenders wore face coverings.

11. The following property was stolen from within the house.

• . Black Samsung mobile phone - value $900.

• . Handbag containing a wallet - $750 plus credit cards.

• . IPad.

• . Two packets of cigarettes.

• . Small black handled carving knife.

• . Barbeque tool.

• . Car keys.

12. The CCTV footage recorded the offender leaving via the back door carrying the handbag then emptying it onto the back lawn and looking through its contents with the assistance of the light from a torch. All property, bar the cash, iPad and cigarettes, was subsequently recovered. The car was driven from the house using the keys stolen from a hook inside the house.

ARMED ROBBERY - S 97(1) CRIMES ACT 1900

13. Minutes after Ms Harvey’s blue Commodore was driven away from her home, one kilometre away at the Caltex Service Station, Macksville, Brian Bush, console operator, saw the blue Commodore drive slowly past the pumps in both directions as he served another customer.

14. Ten minutes later, when he was then alone in the store, two men entered the store. The first was the offender, whose face was obscured by clothing. He held a barbeque multi-tool and jumped onto the counter yelling at Bush to “Get back”. Then, holding a knife in front of him, and yelling “Get down the other end”, he pushed Bush towards the restaurant area. He asked Bush “Where’s the safe?”, and Bush indicated where it was but said that he did not have the keys. Simultaneously, Matthew Morris, his face also obscured, ran around the end of the counter to the restaurant till and took the drawer, which was full of cash. The two offenders then left in the Commodore.

15. A police officer observed the car being driven by a young Aboriginal male with a grey hoodie (Morris) and gave chase but lost the car. It was subsequently found abandoned in a paddock. It contained a small crowbar (not the property of Ms Harvey) and a cash register, but no cash. A total of $650 cash was stolen.

ARREST

16. An arrest warrant was issued at the offender’s home in Keith Moses Crescent on 26 October 2018; he was not then present, but was arrested later that day and exercised his right to silence, as he was entitled to.

17. The aggravated break, enter and steal offence related to residential premises at a time when the occupant and her children were home. As it was 1am and she was showering in close proximity to the point of entry, it is highly unlikely that the offenders were not aware that there was someone present in the house because of either lights and/or noise. It was this offender who entered the home in order to collect the items that were taken from the premises, including the car keys from the hook while the co-offender, Matthew Morris, stood watch outside.

18. The value of the property taken from inside the house was not particularly significant, it being expressed in the facts as being $900 for the black Samsung mobile phone, and $750 in cash, but of course the iPad also in particular added to the value of what was taken, and significantly, while the Commodore was of course parked outside the house, the keys to operate it were taken from inside the house.

19. In my view, the value of the property taken should be regarded as significant, although a significant amount was recovered other than the cash, the iPad and the cigarettes. In my view, the offence was an objectively serious offence. If placed on a range, in my view it falls within the mid-range of objective seriousness.

20. As to the armed robbery offence, I note the following matters. Both offenders as part of a joint criminal enterprise entered the service station with their identities protected by face coverings. The offender presented the barbeque implement and a knife at the attendant who was providing services at the premises in the early hours of the morning.

21. The barbeque implement was described as a multi-tool, and in my view, having some experience of barbeque implements, I have no doubt that a barbeque multi-tool would be capable of inflicting significant injury if applied to a person, and otherwise presenting a knife, which may be the small black-handled carving knife stolen earlier, but there is insufficient evidence to be able to make a firm conclusion.

22. The fact that the offender had with him a torch in order to check what property he had removed from the house, and discern what he wished to take, indicates that there was premeditation in relation to the aggravated break, enter and steal. The fact that the Commodore was stolen, and very shortly thereafter used to complete two drive-bys of the service station in order to ascertain, in my view, a time at which there would be no customers present when they attended, also indicates that the armed robbery was premeditated.

23. It is difficult in the circumstances to say to what extent, or how long, the premeditation had occurred in relation to either offence, and whether the theft of the car was in fact part of a pre-determined plan to acquire a vehicle that would not be linked to them for the purposes of them committing the service station armed robbery.

24. I am however unable to conclude beyond reasonable doubt that the determination of the intention to commit the armed robbery occurred prior to the aggravated break and enter, but certainly very shortly thereafter it must have been the intention to carry out the armed robbery.

25. Each of the offenders at the time of the armed robbery was equipped with something to disguise their appearance by covering their faces, and I further note that when the Commodore was recovered, although the facts do not refer to it, when, having been abandoned in a paddock, it contained a small crowbar which was not the property of the vehicle’s owner, as well as a cash register but no cash. I cannot determine from the facts whether the cash register is in fact a reference to what is described in the facts as the drawer from the “restaurant till full of cash”.

26. In respect of the armed robbery, two weapons were utilised. The victim was a service station attendant working alone in the early hours of the morning, and accordingly fits the description of “vulnerable” as referred to in R v Henry & Ors (1999) NSWCCA 111.

27. I accept that there was at least planning in respect of the service station robbery from the time the Commodore was stolen, although the final determination may not have been made until such time as the two drive-bys had been completed in order to determine an absence of customers.

28. The offender brandished the two weapons in front of Mr Bush and he was pushed physically during the course of the robbery. While the violence was limited, there was a real and present threat of it to Mr Bush, and I accept that he must have been considerably scared by the presence of two offenders, masked and with weapons, making demands of him.

Mr Crown, Mr Tyler-Scott, the reference to $650 cash in the facts appears to be unrelated specifically to either of the offences, but I note that there was $750 cash stolen from the premises in relation to the offence of break, enter and steal, I presume that the $650 cash relates specifically to the service station.

WEBB: Yes, your Honour, that’s the conclusion the Crown would invite your Honour to draw.

HIS HONOUR: All right.

TYLER-SCOTT: Your Honour, there’s no issue with that. I note the court attendance notice specifies $400, but the facts clearly state $650.

HIS HONOUR: Thank you, Mr Tyler-Scott.

29. The amount of cash stolen from the service station was not a large quantity, but it was not insignificant.

30. In respect of the armed robbery offence, I accept the Crown’s submission that it falls “comfortably within mid-range of offences of this type”.

31. In relation to each of the offences, the offender was in fact on parole at the time, and I have previously referred to the relevance of the fact that it was in respect of the sentence imposed for four offences of aggravated break, enter and steal in company, that is, very similar to the aggravated break, enter and steal in company offence before this Court.

32. In relation to the break, enter and steal it is a further aggravating feature that it was committed in the home of the victim.

33. In relation to each of the offences, in my view it is a further aggravating feature that the offender has a record for previous convictions, which I will deal with shortly.

34. In summary, however, the offender’s criminal history reveals significant prior offending in respect of dishonesty matters and some matters of personal violence. A mitigating factor in relation to each of the offences is of course, as provided by the legislation, the plea of guilty.

35. Before the Court in respect of subjective matters are: the offender’s criminal history, a Sentencing Assessment Report under the hand of Shantelle Crandell, dated 8 April 2020, and tendered on behalf of the offender, and a psychological report under the hand of Megan Godbee of LSC Psychology dated 20 April 2020. The offender did not give evidence on sentence and the subjective matters are taken from the material I have referred to.

36. The offender has an extensive criminal history, although, he being at the time of the offending 24 years of age, and being now 26 years of age, the most substantial part of his criminal history relates to offences committed as a juvenile. Those offences remain relevant to issues such as the prospect of rehabilitation. Of particular concern is that he commenced committing offences as an 11 year old in 2005, the first offence being enter a building with intent to commit an indictable offence, two counts for which he received bonds under s 33(1)(B) of 12 months.

37. There then follow a significant number of further offences, although on 11 May 2009, he was dealt with at the Campbelltown Children’s Court in relation to 25 offences of a relatively similar nature, being offences such as break and enter with intent to steal; break, enter and steal; on some occasions multiple counts apparently committed on the same date.

38. There are a total number of counts as a juvenile in relation to break, enter and steal, or like offences such as enter building or land with intent to commit an indictable offence, or aggravated break and enter, on my count at 35 as a juvenile, which is an extraordinary amount of offending between the ages of 11 and turning 18.

39. As an adult, he has continued committing like offences, there being at least, on my count, some six offences of a like nature, being either aggravated break, enter and commit serious indictable offence in company, or break and enter house and steal. His criminal history as an adult indicates that he has received a number of terms of imprisonment, and it is unfortunate that whenever he has been released on parole he rarely seems to be able to stay out of custody for anything over six months before he is detected committing further offences and returned to custody.

40. On a number of occasions, despite having been dealt with leniently, particularly in relation to his juvenile offences, he has been called up because he has failed to comply with the beneficial orders imposed, that is, on at least one occasion as a juvenile, and it appears that frequently when he comes before the Court as an adult, he is dealt with on the one occasion for, in effect, a raft of offences.

41. The offender was interviewed for the purpose of the psychology report by AVL link on 15 April 2020. The report from Ms Godbee indicates that he grew up in Taree and is the third of four children born to his parents. Although he described his parents’ relationship as being “pretty good” he did recall seeing his father engaged in violence towards his mother.

42. His parents separated when he was ten years of age, apparently not because of any violence but because of his father’s infidelity, and the offender and a brother moved to Kempsey with their mother. He then only saw his father once or twice a year from that time, and does not perceive himself as having a father/son relationship with his father.

43. His mother apparently struggled to cope with the divorce and she began engaging in heavy alcohol consumption. He felt abandoned by his father, but his mother was described by him as supportive, and he felt loved by her. There were frequently strangers drinking in the house during his teens and he did not always feel safe at those times. There was unfortunately frequent violence at the drinking parties at his home as well as violence among his extended family members.

44. He first entered juvenile detention at the age of 13. He stated that he had been sexually abused by a staff member while in juvenile detention, which he did not report at the time, but has subsequently reported, and it is said has been investigated. He attributes his abuse of prohibited substances as arising essentially from his experience of sexual abuse.

45. Many of his family members have also engaged in substance abuse and that was modelled to him throughout his childhood. He left home at the age of 13 to reside with an older sister in Taree, he then being on the run from police after an incident. Apparently several of his family members have a history of offending and the report states that “Many of them are currently in custody for offences such as assaults and armed robberies”.

46. He described his early life as “not a good childhood” which would appear to me on what I have read in the material as a fair comment. He disliked school, was apparently diagnosed with ADHD, and had difficulties with reading and writing, requiring the assistance of a teacher’s aide. He estimated his grades as being below average, and he did not have friends at school due to his aggressive behaviours. He was suspended for behaviour such as fighting and stealing a teacher’s handbag.

29. On his estimate, he attended less than half of Year 5 and 6, and left school in Year 7. He later completed the Life Skills equivalent of Year 10 while in custody, and has also completed TAFE certificates in bricklaying and horticulture. On his estimate he has spent a total of ten years in custody from the age of 13.

30. He has never been employed in the community and has always supported himself through crime as well as receiving Centrelink benefits. Although on occasions he has held roles as a sweeper or bed maker while in prison, he has typically been stood down for failing to follow directions. He apparently has no plans for employment upon release.

31. He has no particular significant medical history. As to his substance use, he commenced consuming alcohol at the age of 11 with his family, and binge drinking in his teens a few times each year. He also began smoking cannabis around the age of 11 and engaged in daily use for a few years in his teens. He stopped using that drug when he switched to other substances. He began using heroin and methylamphetamine, or ice, at the age of 13, and he also started using Xanax, Fentanyl and Oxycontin daily from the age of 15.

32. He usually continued to use illicit drugs, as well as buprenorphine, during prison sentences. He reported his last use of substances occurring approximately one week prior to the interview with the psychologist on 15 April 2020, at a time when he was in custody, however he also explained to the psychologist that there has been a difficulty with the accessibility of prohibited drugs while in custody, being explained on the basis that it has become difficult because the prisons are closed to visitors.

33. I acknowledge his frankness in relation to disclosing to the psychologist that he had been using prohibited drugs while in custody and the comment he made to the psychologist is not just limited to the current period of custody but appears to relate to his custody in the past.

34. I note that the criminal history has also attached to it a New South Wales Department of Corrective Service Conviction, Sentence and Appeals Report and there is no entry indicating that the offender at any time when in custody, either currently or in the past, has ever committed any breach of prison regulations. For that reason I accept that his disclosure to the psychologist as to his use is a matter in his favour.

35. He is said to have a problem with gambling since the age of 18, spending up to $4,000 per day. I take it, in view of his lack of work history and other matters, that that could only be a reference to occasions rather than a day to day practice: that is, on some occasions he may have gambled up to $4,000 in the one day, not each day.

36. He has apparently been prescribed opioid substitution treatment while he was in juvenile detention, which he indicated helped reduce his heroin use for a few years before he returned to spending time with his old associates and relapsed.

37. He has apparently completed the EQUIPS addiction and the Getting Smart program during previous sentences, but again frankly indicated to the psychologist that he had continued to abuse drugs throughout the programs, another example of the offender’s honesty when dealing with the psychologist.

38. Unfortunately, the report goes on to say that he does not believe he currently has a problem with substance abuse and said “he does not need to do a rehabilitation program because he will ‘just go straight’ on release”. The psychologist appropriately indicates that that shows limited insight into his substance abuse and a need for intervention such as by way of participation in an intensive rehabilitation program, in respect of which while in custody he would be ineligible if he returned to positive drug tests.

39. The offender identifies as Aboriginal, and his childhood experiences were characterised by role modelling of violence, substance abuse, and other antisocial activities, many of his friends being involved in drugs and crime.

40. The report indicates that he is currently supported by his mother, sisters, brother and girlfriend; however the psychologist notes that any support they could provide would be limited pro-social support given their own issues with substance use and offending.

41. He met his current partner some five years ago. They have a four year old son and a three year old daughter. Parenthood has been a struggle for him because he has committed offences and been in custody for most of the children’s lives. His partner has apparently previously had problems with substance abuse and the children had been temporarily removed from her care by Family and Community Services, although, as she has since abstained from drugs, they have been returned.

42. Although the offender has attributed his substance abuse and offending to his experience of sexual abuse in custody, the psychologist notes that he was engaging in stealing, fighting and substance abuse prior to the sexual abuse, as is indicated by his juvenile history.

43. As to committing the offences, he reported that he at the time had a “raging drug habit” in the months prior, and on the day of the offence he had no money and no drugs, so he then committed the offences on impulse. He indicated that he now feels “regretful” about his behaviour, and he now feels guilty for abandoning his children because he is now in custody.

44. When asked about his release plans during the interview he gave the psychologist the “impression that he does not have a mental conceptualisation of a pro-social life, instead reflecting that he grew up in prison and does not know any other lifestyle”. In the psychologist’s opinion, the offender has become institutionalised and has difficulties conceptualising a life without drugs and crime.

45. Having considered his history and all of the material before me I accept that it is appropriate to regard him as likely to become institutionalised in the near future, if he has not already. The psychologist states:

“It is difficult to identify protective factors for Mr Dumas as he appears to have continued to abuse drugs in custody and he did not report any specific plans for release. He has limited insight into his need for intervention. Mr Dumas did present some awareness that he needs to change his social group but he did not describe any specific plans for doing so and I note that his remaining support people also appear to have difficulties with drugs and crime...Mr Dumas will require intensive rehabilitation and support to make changes to his lifestyle.”

After referring to what might assist him by way of therapy and treatment, the psychologist opines:

“However Mr Dumas did not present with motivation to engage in these rehabilitative activities.”

64. The Sentence Assessment Report refers to him as stating that he intends to become a good role model for his children. In my view that would depend entirely on his ceasing to commit criminal offences so that he could be in the family home, and that has of necessity a need to stop abusing prohibited drugs, as it is no doubt his desire to use them that leads to his need to commit offences in order to acquire the funds to purchase them. Although he has received Government benefits in the past, and no doubt will in the future, they will never be enough to provide for continued purchase of prohibited drugs.

65. The Sentencing Assessment Report describes his history of antisocial behaviour as commencing as a juvenile and consisting of theft, drug possession, driving, break and enter, robbery and violence offences:

“…(he) has consistently offended whilst at liberty and has increased in severity in correlation with an escalation of illicit substance use…

In addition all sentences Mr Dumas has received as an adult have been for similar offences…Since being remanded on 27 October 2018 Mr Dumas has received seven internal sanctions consisting of disobeying direction, fighting, failure to comply with Correctional Centre routine, create/possess prohibited goods and intimidation.”

66. I note that I previously referred to the New South Wales Department of Corrections Service Conviction, Sentence and Appeals Report - it contains no such references in the material provided to me, although I accept that the Community Corrections Officer would have had access to the records. At least in respect of what is recorded that I just referred to in terms of internal sanctions there is no reference to prohibited drugs.

67. As to his attitude, although he is referred to as taking responsibility for the index offences, he “however, attributed his actions to excessive illicit substance use” and “his only focus during the offences was obtaining money for illicit substances and he was not concerned about the consequences or impact of how he obtained this”.

68. As to the involvement of violence and aggression in relation to the armed robbery the offender “denied that the offence was aggressive or violent anyway as the weapon he produced was a barbeque tool and he denied this was threatening”. As I have previously referred to, it was both a barbeque tool and a knife that were presented at the service station attendant, and at least the barbeque tools which I am familiar with which seem to fit the various descriptions that have been used in this matter is an instrument capable of inflicting significant injury, but there was no photo produced of the particular implement, nor was it apparently recovered.

69. He apparently expressed guilt to the Community Corrections Officer and stated that he regretted the offence. Expressing guilt in the circumstances of the plea of guilty and stating that he regretted the offences does not, in my view, evidence remorse or contrition. As I have referred to, there was a 14 month delay between his arrest and the entry of the pleas of guilty in the Local Court.

70. Pleas of guilty in themselves do not necessarily reflect remorse and contrition. It may be so if they are entered shortly after being arrested¸ or otherwise bolstered by admissions shortly after being arrested as to having committed the offences, and matters of that nature. The offender has not given evidence on sentence and I do not accept that regret is a reflection of remorse or contrition. I am of the view that there is insufficient evidence to be able to make a positive finding in relation to the offender of genuine remorse and contrition, particularly where he is otherwise said to only be able to “acknowledge minimal insight into the impact the offences would have had on the victims”.

71. He has in the past been the subject of supervision in 2014, 2016 and 2018 and his response is described as being:

“Deemed unsatisfactory on all occasions due to failure to engage with interventions, re-offending, and regularly attended appointments under the influence. All periods of supervision were for robbery and break and enter related offences and were both breached for committing the same type of offences. Case management focussed on addressing use of illicit substances and association with negative peers.”

72. It would appear in the circumstances of this offending that he has learnt nothing from the assistance he has been provided in the past.

73. He was assessed by the Community Corrections Officer as being a “high risk of re-offending according to the level of service inventory revised”.

74. In the light of his criminal history, and the matters that I have referred to, I accept that he must be regarded as a high risk of re-offending in the future. That is of course not to say that he is beyond rehabilitation.

75. He was 24 years of age at the time of this offending and he is now 26 years of age. There is still time for him to turn his life around. It frequently happens that offenders do not realise the stupidity of their conduct, and the significant effects their conduct has on their family and the community, until they reach their 30’s. He was at the time of the offending 24 years of age. It has long been recognised that emotional and intellectual maturity does not necessarily happen at the age of 18 when individuals are then regarded as being adults, and that it is frequently, particularly in relation to males, that such maturity arrives later. Rehabilitation is unlikely to occur until such time as the offender recognises, and accepts assistance in relation to treating his problem; the primary problem of course being the abuse of prohibited drugs. The abuse of prohibited drugs may explain why he committed these offences but it does not in any way excuse his commission of the offences.

76. I accept that his background history as a child raises the issue, or the factors, referred to in the cases of Bugmy and Fernando, particularly his exposure to prohibited drugs early in life, and that this operates to lower his moral culpability in relation to the current offending.

77. I will take all of the matters that I have so far referred to into account in establishing the appropriate sentence, however I also need to refer to the fact that the co-offender in relation to these offences, that is, Matthew Morris aka Donovan, was sentenced on 5 March 2020 by Flannery SC DCJ at Port Macquarie. In relation to these specific offences the indicative sentence indicated by her Honour was one of two years in respect of the aggravated break, enter and steal in company, and in respect of the armed robbery the indicative sentence was three years and four months. Her Honour did not specify an indicative non-parole period as required by the legislation; however that is by the by.

78. A difficulty in respect of the aggregate sentence imposed by her Honour and the question of parity in respect of this offender is that her Honour was not only dealing with the co-offender in respect of the same two offences, she was also dealing with the co-offender in respect of a further six counts of aggravated break, enter and steal, and of course the aggregate sentence imposed by her Honour had to reflect some accumulation in respect of each of those offences.

79. There is not a significant difference between the two offenders, although in my view there is at least a difference in relation to each of these two offences. In my view it was this offender who took the major role in relation to each. It was he who in fact entered Ms Harvey’s premises and removed the property, including the car keys, while the co-offender stood watching the driveway. In relation to the armed robbery at the service station, it was the offender who first confronted the victim, Mr Bush, while armed with the barbeque tool and a knife, while the co-offender merely went around the counter and removed a drawer from a till. It was also this offender who made various demands of the victim and pushed him physically.

80. Each of course is liable for the conduct of the other as each were clearly party to a joint criminal enterprise in relation to each offence, but I am of the view that there is at least some distinction between them in terms of the role played.

81. While I have previously referred to this offender’s criminal history as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act, it is perhaps more appropriate to refer to it as a disentitlement to leniency.

82. A further aggravating factor, as previously referred to, is that he was on parole in relation to similar offences. The commission of offences while on parole is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a hard punishment. R v McVittie (2002) NSWCCA 344; R v Fernando (2002) NSWCCA 28 at 42 Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed, and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances.

83. Greg James J in R v Huynh (2003) NSWCCA 239 stated that:

“It is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you had been liberated conditionally.”

84. In R v Moffatt (1990) 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence but should also suffer a significant punishment for the latter offence to mark the gravity of his conduct in abusing his parole.

85. I recognise that I have a sentencing discretion which includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with, or wholly cumulative on the sentence to which the offender was serving as a consequence of the revocation of parole for the reasons referred to by Simpson J in Callaghan v R (2006) NSWCCA 58. I decline to exercise that discretion in favour of the offender in the circumstances of the offender’s criminal history as referred to above, however I will find as a special circumstance a need to impose a sentence where the non-parole period will not reflect the statutory relationship between the non-parole period and the balance of term in order to take account of the period in custody as a result of the revocation of parole.

86. Also relevant to that issue is what I see as being a relatively vain hope of rehabilitation, although I do not rule it out completely. In Beale (2015) NSWCCA 120 Beech-Jones J at (68) stated as follows:

“There is no doubt that the risk of an offender becoming institutionalised, that is becoming so conditioned to an institutional environment that their release into society leads to a heightened risk of their re-offending, is a matter that is capable of warranting a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act, see Jackson v R (2010) NSWCCA 162 at (24). If such a finding is made then it can justify a reduction in the non‑parole period and an increase in the additional term to facilitate the offender’s supervision on parole, however the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing court to find special circumstances and reduce the non-parole period.

The overall purpose of the exercise is to facilitate the offender’s rehabilitation. To that end ‘there must exist significant positive signs which show that if the offender is allowed a longer period on parole rehabilitation is likely to be successful’. (R v Twta (2014) NSWCCA 40 at (57), see also R v Carter (2003) NSWCCA 243 at (20).”

87. While I have previously indicated that I accept that the offender has either already become institutionalised or will in the near future become institutionalised, there is little to suggest that giving him the benefit of reducing the non-parole period from the statutory relationship would be effective in assisting him in the future.

88. I have given careful consideration to the issue of parity and am of the view that there must be some distinction between this offender and the co‑offender Morris, sentenced by Flannery SC DCJ. I intend to proceed by way of an aggregate sentence and in that case I will need to provide an indicative sentence in relation to each of the offences.

89. I take into account the purposes of sentencing as referred to in s 3A of the Crimes (Sentencing Procedure) Act. In my view it is important in this matter to take into account both the need for specific deterrence and general deterrence. It is always relevant of course to take into account the issue of the protection of the community.

90. In relation to the offence of aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act the indicative sentence is two years and four months.

91. In relation to the offence of armed robbery contrary to s 97(1) of the Crimes Act the indicative sentence is three years and eight months with a non-parole period of 2 years 9 months that being a requirement, as there is a standard non-parole period relevant as a guideline.

87. I have then taken into account the need for some accumulation between the offences, representing different offending although on the one day but at different times, and offending of a different nature.

88. The sentence will be a sentence with a total term of four years as the aggregate sentence. The offender has been in custody since 26 October 2018 until the completion of the balance of his revoked parole on 9 July 2019, a period of eight months and 13 days. I will commence the sentence of four years on the following day, being 10 July 2019. The total sentence will expire on 9 July 2023.

89. However, in determining the non-parole period, I have taken account of the period of eight months and 13 days of revoked parole, and I have endeavoured to re-establish an overall relationship between the total term from 26 October 2018 to 9 July 2023, so that the non-parole period provided in relation to this offending will represent slightly less than 75% of the overall term, including the revoked parole period.

90. To do that most accurately would be a sentence commencing on 10 July 2019 with a non-parole period expiring on 5 May 2022. However, I have made some adjustment to that. The non-parole period will in fact be a period of two years, nine months and 21 days. So the non-parole period will expire on 30 April 2022. The balance of term is then one year two months and nine days.

91. To put that more succinctly for the benefit of the parties, the sentence will commence on 10 July 2019. The non-parole period is two years, nine months and 21 days expiring on 30 April 2022. The balance of term is one year, two months and nine days, giving a total term of four years, expiring on 9 July 2023.

92. I note in the past the Court of Criminal Appeal has expressed some dislike for sentences being expressed in specific days. In my view, it was the only way to achieve what I wished to achieve in this matter: that is, a special circumstance to reflect the additional time in custody in respect of the revoked parole period.

Now it may be that there is some significant matter that I have omitted, if there is, would someone let me know?

WEBB: Your Honour, there are no matters from the Crown’s perspective.

HIS HONOUR: All right, thank you.

TYLER-SCOTT: Nor from the offender, your Honour.

HIS HONOUR: Thank you for your assistance, gentlemen.

WEBB: May it please the Court.

HIS HONOUR: I should say, I am sure, Mr Dumas, you understand what that means?

OFFENDER: Yes, your Honour.

HIS HONOUR: You no doubt realise that you will first be eligible for parole on the expiry of the non-parole period, but because of the actual term of the sentence you will not necessarily be released then.

OFFENDER: Yes.

HIS HONOUR: In order to be released at the earliest opportunity, you need to impress the authorities who make the determination that you have changed your ways. That means not engaging in any breaches of the prison discipline such as fighting, or being in possession of prohibited items, or using prohibited drugs.

You were frank enough, even though the Corrective Services Report was deficient, to indicate your past offending in relation to the use of prohibited drugs. If you are detected using those it is most unlikely that you will be released at the conclusion of the non-parole period.

OFFENDER: Yes.

HIS HONOUR: Take the benefit of what programs you can do in custody. Stop using drugs because it is the fundamental problem that you have that is going to otherwise lead you to be, if not already, genuinely institutionalised and simply becoming another victim of the revolving door of the prison system. Do you understand that?

OFFENDER: Yes.

HIS HONOUR: Well I hope so, Mr Dumas.

AUDIO/VISUAL LINK TO SHORTLAND CORRECTIONAL CENTRE CONCLUDED AT 1.38PM

TELEPHONE LINK CONCLUDED AT 1.38PM

ADJOURNED

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Decision last updated: 10 September 2020